https://new.kenyalaw.org/akn/ke/judgment/keca/2026/958

British American Tobacco Kenya (Ltd) v Ekaya (Civil Appeal 402 of 2019) [2026] KECA 958 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 958 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 402 of 2019 W Karanja, J Mohammed & WK Korir, JJA May 15, 2026 Between British American Tobacco Kenya (Ltd) Appellant and Stanley Osango Ekaya Respondent (Being an appeal from the judgment of the High Court of Kenya at Nairobi (Nambuye J.) (as she then was) dated 28th September 2012 in HCCC No. 226 of 2004) Judgment Introduction 1.This appeal arises from an employment dispute between British American Tobacco Kenya (Ltd) (the appellant) and Stanley Osango Ekaya (the respondent). The genesis of this appeal predates the establishment of the Employment and Labour Relations Court (ELRC). The respondent filed a suit by way of a plaint dated 10th March 2004 before the Nairobi Milimani Commercial Courts from which the following facts emerge. 2.The respondent averred that he served the appellant for 36 years and 2 months from 17th April 1967 to 31st July 2002 when he was retrenched.During this period, the respondent was a member of the Provident Fund and asserted that he was entitled to Kshs.6,325,108 as at the date of his retrenchment which sum had not been fully paid. 3.The respondent further averred that he was a member of the appellant’s Staff Pension Scheme from 1968 to 2002 and was entitled to Kshs.980,000 upon winding up of the scheme together with interest thereon at the rate of 20% per annum from 31st July 2002 until payment in full of the Kshs.980,000. Additionally, the respondent claimed entitlement to Kshs.2,880,745 under the Retirement Benefits Scheme, together with interest until payment in full. 4.In sum, the respondent particularised his entitlements upon retrenchment in the plaint dated 10th March 2004 as follows:-a.One month’s salary in lieu of notice of Kshs.78,241/=b.One month’s house allowance of Kshs.4,000/=c.One month’s salary for the month of July 2002 –Kshs.78,241/=d.One month’s house allowance of Kshs.4,000/=e.Severance pay being 4 days salary for every worked month i.e Kshs.56.1 x Kshs.78,241 = Kshs.4,389,367.71/=f.July 2002 salary of Kshs.78,241/=g.July 2002 house allowance of Kshs.4,000/=h.Refund of Provident Fund Company’s part on 1.3 & 6 =Kshs.15, 648/=i.Leave earned but not enjoyed commuted to cash at the rate of Kshs.152/30 days x Kshs.78,241 = Kshs.317,662/=j.Transport of household goods from Nairobi to Kitale on retrenchment of Kshs.100,000/=k.Refund of medical fees being an amount erroneously deducted by the appellant from the respondent’s entitlement of Kshs.50,000/=Total - Kshs.15,305,254/= less any dues paid. 5.The respondent sought payment of the said sum, costs, interest, and any further relief that the court deemed fair and expedient to grant in the circumstances. 6.In its defence dated 8th April 2004, the appellant contended that vide a letter dated 20th May 2002 the respondent voluntarily applied for early retirement and entered into an agreement dated 21st June 2002. The appellant asserted that under the said agreement, the respondent was paid all his dues amounting to Kshs. 5,395,078.85 made up as follows in full and final settlement:i.12 months’ pay including house allowance with effect from 31st July 2002ii.Refund of provident fund contributions in accordance with the rules of the fund;iii.Retirement benefits in accordance with the rules of the Retirement Benefits Scheme;iv.Leave pay earned but not taken up to 31st July 2002;v.The month of July would serve as the notice period. 7.The appellant denied any further liability and invoked the equitable principle that a party cannot approbate and reprobate. For the aforesaid reasons, the appellant urged that the respondent’s suit be dismissed with costs. 8.The suit proceeded by way of viva voice evidence. The respondent testified as PW1. He confirmed that he was employed as a trainee accounts clerk with the appellant where he worked from 17th April 1967 to 31st July 2002. He stated that at the time of leaving his employment with the appellant, he was the Treasury Accounts Assistant. It was his testimony that the appellant was going through some business and financial challenges between 2001 and 2002, whereupon it proposed to its employees a voluntary retrenchment through a circular dated 26th April 2002. 9.The respondent testified that he opted into a voluntary retirement scheme through a letter dated 29th April 2002 but was compelled to accept reduced benefits contrary to the applicable Collective Bargaining Agreement (CBA). He maintained that the computation of his dues was incorrect and that he was entitled to redundancy benefits under the CBA. 10.The respondent testified that since the terms thereof were not favourable, he rejected the proposal since it would result in underpayment of his dues. The respondent testified that he was verbally requested to accept the terms and subsequently raise a complaint. The respondent produced a letter dated 21st June 2002 from the appellant’s Human Resource Manager which offered him payment of 12 months’ pay together with house allowance with effect from July 2002 and provident funds, retirement benefits according to scheme rules and leave pay. 11.The respondent further testified that when he received the letter dated 24th June 2002, he complained that some items were left out, being payment for transfer of household goods and entrepreneurship training. The respondent stated that upon raising the complaint, he was issued with another letter dated 21st June 2002 which included the two excluded items. The respondent testified that the letter did not address the 4 days’ pay calculated on basic pay including house allowance for each completed month of service with the appellant company. He testified that if the rule had been applied, he would have been entitled to 56.1 months’ pay but instead he was given 12 months’ pay. 12.The respondent further testified that, pursuant to Rule 31 of the Voluntary Early Retirement (VER) rules, the issue concerning the five-year period did not arise. This was on the basis that the said rules conferred upon the appellant the discretion to require an employee who had attained the age of forty-seven (47) years to proceed on early retirement. The respondent averred that he was compelled to accept the terms offered and did so by way of a letter dated 20th May 2002. 13.Regarding what he was eventually paid, the respondent testified that on 26th March 2006, he received a cheque for Kshs.50,000 and Kshs.83,518 for 40 days’ leave. He further testified that he was a member of the Staff Pension Scheme from 1968 until the time of departure before it was wound up. The respondent testified that he was entitled to Kshs.980,000 as the last serving member of the retirement scheme. It was his submission that this was notwithstanding the fact that there was no rule entitling the last serving member to the available funds. The appellant conceded that he was a member of the Retirement Benefits Scheme and was paid Kshs.153,413. It was his testimony that according to his calculations, he was entitled to Kshs.2,880,745. In sum, the respondent claimed the difference between what was paid to him and what was due to him and costs and interest on the outstanding amount. 14.In cross-examination, the respondent testified that he had no negotiation power as against the appellant and signed a letter dated 21st June 2002 which allocated him 12 months’ pay without the elements of training and transport of goods. The respondent testified that he knew that the CBA rules bound both parties and was specific regarding the amounts payable to employees in the event of voluntary early retirement. The respondent confirmed that he received Kshs.4,254,230.68 and Kshs.2,070,872.68. The appellant contended that the amounts paid were not properly computed. The respondent claimed Kshs.980,000 in respect of the Staff Pension Scheme. 15.The respondent further stated that the correct salary amount that ought to have been used as the basis of computation is Kshs.78,241.86 but what was used was Kshs.63,508. The respondent conceded that he was paid Kshs.153,413 from the Retirement Benefits Scheme. 16.Mr. David Kiambi (Mr. Kiambi) (DW1) the then appellant’s Head of Human Resources testified on behalf of the appellant. He confirmed that the appellant was going through what he termed as a ‘lean period’ and in order to reduce costs, the appellant introduced a staff voluntary early retirement scheme. It was his testimony that the appellant received a letter dated 20th May 2002 from the respondent acceding to the early retirement scheme but the appellant declined since the respondent had only one year before retirement and his job was not amongst those affected by the voluntary early retirement scheme. 17.Mr. Kiambi further testified that the respondent was determined to leave employment and in order to find a truce, the appellant offered the respondent 12 months’ pay, retirement benefits, refund of provident fund in accordance with the rules and leave pay in accordance with Rule 12 of the CBA. It was his further testimony that the respondent agreed to the terms in writing without duress through a letter dated 21st June 2002. It was his further testimony that the appellant agreed to two additional benefits in favour of the respondent being the transfer of household goods and entrepreneurship training at the appellant’s expense. 18.It was Mr. Kiambi’s further testimony that Clause 31B of the CBA Rules did not apply since the appellant did not declare the respondent redundant. The respondent testified that the appellant was a member of two provident funds (the old fund and the new fund) which was administered by a board of trustees in respect of which, under the new fund, the appellant received Kshs.2,000,872.68 while under the old fund he received Kshs.4,254,235.68 19.Mr. Kiambi denied that the respondent’s salary increased from Kshs.63,508 to Kshs.78,241. Mr. Kiambi contended that an employee cannot accumulate more than 40 days’ leave in a year without written authority. It was his further testimony that to his knowledge, the respondent was paid Kshs.83,518 in lieu of the 40 days’ leave. It was his further testimony that the respondent received a total of Kshs.5,395,078.85. 20.On cross-examination, Mr. Kiambi reiterated that the VER scheme was not applicable to the respondent. It was his further testimony that the terms of the CBA did not apply to the respondent. He confirmed that the respondent was entitled to benefit from the Provident Fund. Further, that payment of the 40 days’ leave in lieu of notice was paid to the respondent on 16th March 2006. 21.Mr. Sammy Mbugua Kariuki testified as DW2. It was his testimony that at the material time he worked with AON Minet Insurance Brokers, the administrators of the appellant’s Provident Fund. He confirmed that the appellant had a BAT old fund and a BAT 1991 Fund. It was his testimony that the formula used to calculate pay-outs for both funds are similar except for the old fund the benefits were frozen whereas the 1991 funds contributions are made regularly. 22.In cross-examination, Mr. Kariuki testified that the applicable trust deed is dated 30th March 1992. That Clause 6A thereof provided for the computation of dues on retirement of an employee in so far as the fund applicable in 1991 was concerned. He stated that the contributions to the old fund stopped in 1990. 23.After due consideration of the evidence on record, the High Court found inter alia that the respondent voluntarily applied for and accepted the VER package. The agreement was valid, binding, and enforceable, and allegations of coercion, duress, or undue influence was not proved. 24.With regard to the applicable terms governing the respondent’s retirement, the court held that the CBA constituted the binding framework governing the parties’ relationship. Any retirement arrangement, including the VER, was subject to and could not derogate from the CBA provisions, particularly those relating to retirement benefits. 25.On the question whether the respondent was paid his retirement dues, the trial court found that although the respondent received payments, the computation of his benefits was erroneous and incomplete, having been based on an incorrect (lower salary) figure. The trial court therefore found that the respondent was not fully paid his lawful dues. 26.On the effect of the discharge/ “no further claims” undertaking, the trial court held that while execution of a discharge voucher generally bars subsequent claims, it does not preclude recovery of entitlements lawfully due but underpaid or miscalculated. The respondent’s claim was therefore not wholly defeated by the no further claims undertaking. 27.Regarding whether the suit was incompetent or an abuse of process, the trial court rejected the respondent’s objection and held that the suit disclosed a reasonable cause of action and was competently before the court. 28.On the entitlement to provident fund dues, the High Court found that the appellant was entitled to recalculation of the provident fund benefits due to him on the basis that the correct salary of Ksh. 78,241. That he was entitled to payment of any resultant shortfall. Further, that such computation be undertaken in accordance with the governing scheme rules. 29.On the question whether the respondent was entitled to Kshs. 980,000 under the Staff Pension Scheme, the trial court held that the respondent was a contributing member and, therefore, had a legitimate claim to benefits under the scheme. The trial court found however that such entitlement was subject to the rules of the scheme and the availability of funds, and was not automatically recoverable in full as claimed. 30.Regarding the respondent’s entitlement under the Retirement Benefits Scheme, the trial court found that the respondent’s benefits under the Retirement Benefits Scheme were likewise miscalculated and ought to be recomputed using the correct salary basis, with the respondent entitled to the resulting balance, if any. 31.On the claim for interest, the trial court held that entitlement to interest was not automatic and must be determined in accordance with the applicable scheme rules and upon proper computation of dues. The trial court held that the respondent’s claim for interest as pleaded was therefore not established. 32.On the claim for leave dues, the trial court found that the respondent had been paid for accrued leave amounting to 40 days and failed to strictly prove an additional entitlement. The trial court, therefore, found that the claim for further leave dues was not proved to the required standard. 33.Regarding the claims for transport, medical and other allowances, the trial court held that these claims constituted special damages, which must be strictly pleaded and proved. The trial court held that the respondent failed to discharge this burden, and accordingly dismissed the claims. 34.On the question whether redundancy provisions applied, the trial court determined that the respondent’s exit from employment was pursuant to a voluntary retirement scheme, not redundancy. In the circumstances, the trial court held that redundancy provisions were inapplicable. 35.On costs, notwithstanding the respondent’s partial success, the trial court exercised its discretion to award costs to the respondent. 36.The final decree of the trial court was in the following terms: -a.The respondent’s benefits from the Provident Fund be recalculated based on the retiring salary of Kshs. 78,241/= in accordance with the rules governing the said Fund;b.The respondent is entitled to be paid Kshs. 980,000/= on winding up of the staff pension scheme since the respondent was the sole surviving member and the rules do not exhibit what would happen to the funds of the surviving contributing member who retired from employment;c.The respondent’s renting allowance of Kshs.4,000/= was allowed;d.The respondent was granted costs of the suit. 37.Aggrieved by the decision, the appellant commenced this appeal by filing a Memorandum of Appeal dated 23rd August 2019 which was later amended on 12th July 2024 pursuant to this court’s ruling of 5th July 2024. The appellant appeals against the decision of the High Court on the following nine grounds: -i.The Judge erred in law by disregarding the appellant’s submissions that the respondent had no cause of action against the appellant as the Provident and Pension Fund were run by separate legal entities;ii.The Judge exceeded her jurisdiction by awarding prayers not sought or specifically pleaded by the respondent being the entitlement of Kshs. 980,000/= on the winding up of the Staff Pension Scheme;iii.The Judge erred by awarding interim decree at the final judgement stage;iv.The Judge erred by awarding interest for the four years delayed period of writing judgement;v.The judge erred in not upholding the principle that one cannot approbate and reprobate by failing to uphold the surcharge voucher dated 3rd July 2005 and failed to take into account the payments that the respondent had been received;vi.The Judge erred in holding that the respondent was entitled to payments in respect of severance pay under the terms of the Collective Bargaining Agreement in respect of redundancy and by holding that the respondent was declared redundant;vii.The Judge erred in holding that the parties could not contract out of the Collective Bargaining Agreement and the court failed to appreciate the legal principles in respect of Voluntary Early Retirement;viii.The Judge erred in law and in fact by finding that the respondent’s retiring salary was Kshs.78,241/= and Kshs.4,000/= as housing allowance;ix.The Judge erred in holding that the respondent’s final dues and funds under the Provident funds should be recalculated. 38.The appellant urged that the appeal be allowed, the judgment of the High Court delivered on 28th September 2012 be set aside; or in the alternative and without prejudice to the foregoing, the quantum of damages awarded against the appellant be reviewed and reassessed; and that costs of the appeal be paid by the respondent. Submissions by Counsel 39.At the hearing of the appeal, Ms. Opiyo appeared for the appellant, while Mr. Agina appeared for the respondent. 40.In highlighting the appellant’s submissions, Ms. Opiyo submitted that the parties entered into a voluntary early retirement agreement dated 21st June 2002. Counsel submitted that the trial court held that parties could not contract outside the provisions of the CBA. Counsel submitted that the correct legal position is that parties are at liberty to enter into binding agreements. Counsel relied on the decision of National Bank of Kenya Limited v Hamida Bana & 103 Others [2017] eKLR where this Court affirmed that courts do not have jurisdiction to rewrite the terms of a contract freely entered into by the parties. Counsel contended that the trial court had no power to set aside the agreement between the parties in the absence of evidence that other vitiating factors existed such as mistake, duress or misrepresentation. Counsel asserted that the existence of a CBA does not preclude parties from entering into negotiations for separate contractual arrangements. 41.Counsel further submitted that a VER arrangement did not equate to a redundancy. To buttress this position, counsel relied on the persuasive decision of the Employment and Labour Relations Court (ELRC) in Kenya Plantation & Agricultural Workers Union vs Bamburi Cement Limited & Another (Cause 90 of 2015) KEELRC 1302 (KLR) where a clear distinction was made between redundancy and voluntary retirement. 42.Counsel further submitted that the respondent was not entitled to redundancy or severance payments. In support of this proposition, counsel relied on the decision of this Court in Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others (Civil Appeal No. 79 of 2015) (2017) KECA 717 (KLR) to buttress the position that severance pay is only payable where redundancy is established. 43.Counsel further submitted that the respondent was duly paid his dues, which was twelve months’ pay, provident fund benefits, retirement benefits, two months’ pay, and payment for 40 days’ leave. Counsel pointed out that the respondent signed a discharge voucher indicating that he had no further claims against the appellant. Counsel asserted that in the circumstances, the respondent was estopped from making further claims as he cannot approbate and reprobate as held in Kenya Reinsurance Corporation vs V.E. Muguku Muriu CA 48 of 1994 (UR).Further reliance was placed on the decisions of Trinity Prime Investment Limited vs Lion of Kenya Insurance Company Limited [2015] eKLR and Coastal Bottlers Limited vs Kimathi Mithika [2018] eKLR which affirmed the enforceability of discharge vouchers. 44.Counsel further submitted that the provident fund and retirement benefit schemes claims by the respondent were not specifically pleaded and proved. That there was no amendment of the plaint in respect of the claim of Kshs.980,000 and there was no documentary evidence to support that amount. Counsel asserted that there was nothing in the scheme rules to show that the respondent was entitled to that amount. 45.Counsel further submitted that it is a principle that special damages must be strictly pleaded and proved as was held by this Court in NSSF vs Sifa International Limited [2016] eKLR, that he who alleges must prove as was held by the Supreme Court decision in Dari Limited & 5 Others vs East African Development Bank Petition (Application) No E012 of 2023 and that parties are bound by their pleadings as was held by this Court in Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others [2014] eKLR. 46.On the issue of interest, Counsel submitted that the respondent filed its submissions on 31st January 2008 while the appellant filed submissions on 1st February 2008 but judgment was delivered 4 years later. The appellant urged that the Supreme Court in the decision of Muthuuri & 4 Others vs Attorney General & 2 Others (Petition) (Application) 15 (E022) KESC 74 (KLR) held that delays caused by a court’s administrative processes to the detriment of a party should not be visited upon a party as the delay is beyond the party’s reach. 47.Counsel further submitted that the court erred by awarding an interim decree at the final stage. It was submitted that the interim decree as to the calculation of the dues meant that the judgment was not complete and this is contrary to the finality of judgments as it was held by this Court in Heineken East Africa Import Company Limited & Another vs Maxam Limited (Civil Appeal No. E403 & E404 of 2020) (Consolidated) [2024] KECA 625 (KLR) and Kenya Revenue Authority vs Menginya Salim Murgani [2010] eKLR. 48.On behalf of the Respondent, Mr. Agina submitted that the issue of converting the CBA into an enforceable agreement was not among the matters raised before the trial court. Counsel further took issue with the approach adopted by counsel for the appellant, contending that she introduced a ground not canvassed at trial, proceeded to dismiss the same, and thereafter asserted that the decision of the court was erroneous. 49.With respect to the claim for Kshs.980,000 from the Staff Pension Scheme, Counsel submitted that the applicable rule provided that the last employee to exit the organization would be entitled to the balance held in the Fund. Counsel contended that the respondent sufficiently demonstrated that he was the final employee to leave the organization and was therefore entitled to the said amount. 50.Counsel further submitted that, although the appellant’s witness, Mr. Kiambi, testified that there were no governing rules regulating disbursement of monies from the Scheme, the respondent adduced documentary evidence indicating that entitlement to the Scheme accrued to the last employee exiting the appellant company. DIVISION - Determination. 51.This being a first appeal, our mandate as a first appellate court under Rule 31 (1) of the Court of Appeal Rules, 2022 is to re - evaluate the evidence on record, draw our own inferences of fact, and arrive at independent conclusions, while bearing in mind that we neither saw nor heard the witnesses testify.This duty was aptly articulated by this Court in J. S. M. vs E. N. B. [2015] eKLR in the following terms: -“We shall however bear in mind that this Court will not lightly differ with the trial court on findings of fact because that court had the distinct advantage of hearing and seeing the witnesses as they testified and was therefore in a better position to assess the extent to which their evidence was credible and believable. Should we however, be satisfied that the conclusions of the trial judge are based on no evidence or on a misapprehension of the evidence on record or that the learned judge demonstrably acted on wrong principles, we are enjoined to interfere with those conclusions.” 52.We have considered the record of appeal, the submissions by counsel, the authorities cited, and the applicable law. We discern the following issues for determination:i.Whether the CBA governed the respondent’s exit from employment;ii.Whether the respondent’s exit constituted redundancy;iii.What constituted the respondent’s correct retiring salary and applicable allowances;iv.Whether the respondent was legally entitled to Kshs. 980,000;v.The benefits due and payable to the respondent;vi.The legal effect of the discharge voucher executed by the respondent;vii.The issue of interest payable, if any; andviii.Whether the trial court exceeded its jurisdiction by granting reliefs not specifically pleaded or proved. 53.The principal dispute between the parties concerns the nature of the respondent’s exit from employment and the attendant financial consequences. The starting point is the terms and conditions of the VER Scheme. 54.It is common ground that by a notice dated 26th April 2002, the appellant introduced a VER scheme prompted by the prevailing adverse economic conditions as part of the ‘bearing the storm’ initiative. At paragraph 5 of the VER the appellant proposed to the interested applicants that: -“the Voluntary Early Retirement Scheme is open to all staff. A period of two weeks effective 29th April 2002 has been allowed for considerations. All applications should then have been received by Friday 10th May 2002.” 55.The VER Scheme reserved to the appellant discretion to accept or reject applications and to implement compulsory retirement where necessary. 56.The terms and conditions of VER Scheme included: -i.Salary up to and including the last date of employment;ii.One month’s basic pay and one month’s salary in lieu of notice;iii.4 days’ pay (calculated on basic pay including house allowance) for each completed month of service;iv.Accrued leave and leave allowance as per individual’s entitlement in the CBA;v.Waiver of the vesting period under the Provident Fund Rules;vi.Transfer of household effects; andvii.Entrepreneurship training at the company’s expense. 57.Upon interpretation, it is evident that all staff members without exception, were invited to apply for early retirement due to the appellant’s financial constraints, subject to the appellant’s discretion. 58.In answering to the invitation, the respondent applied and accepted the terms via a letter dated 29th April 2002 requesting to be considered.Subsequently, revised terms were communicated in a letter dated 21st June 2002 which included -a.Twelve (12) months’ pay inclusive of house allowance with effect from July 2002;b.Refund of Provident Fund contributions in accordance with the Fund Rules;c.Retirement benefits in accordance with the Retirement Benefits Scheme; andd.Leave pay in pursuant to Rule No. 12 (1) of the CBA in respect of accrued but untaken leave up to 31st July 2002. 59.It is further undisputed that the respondent was a unionisable employee governed by a CBA effective from 1st April 2001 to 31st March 2003. 60.The appellant contends that since the respondent was not declared redundant, the CBA provisions did not apply, and instead the governing terms were those in the letter dated 21st June, 2002. On the other hand, counsel for the respondent maintains that the CBA agreement superseded any subsequent agreement. The respondent’s exit was by voluntary early retirement and not redundancy. 61.We have perused through the terms of the CBA. Clause 33 (1) (b) provided as follows: -“The Company may require an employee to retire within 10 years of reaching the maximum age of 57 years. Where the company so requires the employee to retire early, payment to the employee will be as per the Redundancy Clause No. 31 and the Provident Fund Rules.” 62.Accordingly, even where early retirement applied, terminal dues were to be determined in accordance with Clause 31, which provided for redundancy benefits, including: One month’s basic wage plus one month’s salary in lieu of notice; Four (4) days’ pay per completed month of service; Leave pay in under Rule No. 12 (1); Waiver of the Provident Fund vesting period; Staff Pension Scheme options; Transportation of household effects; and Entrepreneurship training at the expense of the Company. 63.The binding nature of a CBA is anchored in Section 59 (1) of the Labour Relations Act, which provides that a CBA binds: -a.The parties to the agreement;b.All unionisable employees employed by the employer, and;c.Employers who are or become members of an employers’ organisation party to the agreement. 64.Further, Section 9 of the Labour Relations Act provides as follows:“ 9.Provision may not be varied by agreementA provision in any contract of employment or collective agreement, whether concluded before or after the commencement of this Act, that contradicts or limits any provision of this section is invalid, unless the contractual provision is expressly permitted by this Act.” 65.The VER terms substantially mirrored Clause 31 of the CBA. The evidence indicates that the appellant intended to settle employees under the VER Scheme in accordance with the CBA. Notwithstanding that the respondent did not plead duress regarding the letter of 21st June 2002, we concur with the trial court that any side arrangements purporting to vary the CBA to the respondent’s detriment were neither sanctioned by the appellant nor the union. In addition, correspondence dated 7th June 2001 confirmed that all affected employees would be compensated under the new CBA. 66.Accordingly, the CBA remained binding and its sanctity must be upheld.We find that the CBA governed the respondent’s exit package. 67.On the issue of salary, the record includes an Industrial Court decision awarding: -“10% increase for the first year and another 12% increase for the second year. These increases are exclusive of merit increase.” 68.In the circumstances, we affirm the trial court’s finding that the respondent’s retiring salary was Kshs.78,241 and house allowance was Kshs.4,000. There is no evidence of accrued leave. 69.Regarding the claim for Kshs.980,000 from the Staff Pension Scheme, no supporting evidence was presented. Further, the claim was not pleaded.It is settled law that parties are bound by their pleadings as articulate by this Court in Kabura (As the Administrator of the Estate of Ishak AF) vs Board of Trustees National Social Security Fund (2025) KECA 733 (KLR). Accordingly, the award of Kshs.980,000 is hereby set aside. 70.As to the claims made under the Provident Fund, evidence indicated that the respondent received Kshs. 2,000,872.68. The trial court ordered recalculation based on the revised salary. However, the precise claim under this head remains unclear. In view of the uncertainty, we uphold the order for recalculation based on the retiring salary where applicable. 71.On the alleged incompleteness of the judgment, we find the judgment of the High Court to be complete. We find that the direction for recalculation was appropriate and did not amount to abdication of judicial responsibility. The circumstances herein are distinguishable from the decision of Kenya Revenue Authority v Menginya Salim Murgani (supra) where the trial court relegated its judicial function to the Deputy Registrar for assessment of damages. 72.On the issue of interest, Section 26 of the Civil Procedure Act vests discretion in the trial court. The trial court properly differentiated interest across various heads. Interest on special damages accrues from the date of filing suit, as affirmed in South Nyanza Sugar Company Limited vs Oreko (2022) KECA 570 (KLR) where this Court pronounced itself in the following terms:-“The objective for awarding interest is to ameliorate the loss suffered by a party who has been kept out of use of money that would otherwise be due to him. Although, by dint of the words of Section 26, the grant of interest is discretionary, it is a discretion to be exercised judiciously. One way of proper exercise of this discretion is to make an award that is in consonance with the underlying objective for which an order of interest is made. The indubitable outcome is that interest on special damages will be from the date of filing of suit as the money would have been due to the claimant at the very least on that date. General damages, which is the product of an assessment process by the court, is due on the date when the assessment is made which is in the judgment date.” 73.The High Court found that the respondent was entitled to interest for the four (4) years that the High Court delayed in rendering its judgment. The Supreme Court in Muthuuri & 4 Others vs Attorney General and 2 Others petition (Application) 15 (E022) KESC 74 (KLR) 4 November 2022 (Ruling) held that delays caused by a court’s administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a party’s reach. 74.By parity of reasoning, in the circumstances, and in the interests of justice, we make no order as to costs. 75.In the result, the appeal partially succeeds. The award of Kshs.980,000 is set aside. All other findings are upheld. 76.We further direct that recalculations be undertaken within thirty (30) days. The matter shall thereafter be mentioned before a Judge of the Employment and Labour Relations Court in Nairobi to confirm compliance. 77.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.W. KARANJA...................................JUDGE OF APPEAL JAMILA MOHAMMED..................................JUDGE OF APPEALW. KORIR……………................ JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR