https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/399

**REPUBLIC OF KENYA** **THE JUDICIARY** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **MCELRC CAUSE NO. E203 OF 2025** ***[A. P. NDEGE; SPM]*** THOMAS JOGOO BUKONO-----------------------------------------------CLAIMANT VERSUS KABARAK UNIVERSITY-----------------------------------------------RESPONDENT **JUDGMENT** 1. The Claimant herein, Thomas Jogoo Bukono, was engaged by the Respondent, Kabarak University, as a cook, on a fixed-term contract signed on 16/11/2021, for a defined term of 3 years, running from 01/11/2021 to 31/10/2024. The employment contract and the accompanying offer letter confirm this arrangement. A copy of the **Contract** and **Offer letter** were produced herein as **Dexh. No. 1** and **3**, respectively. His salary was subsequently increased via a **letter from the Respondent**, produced herein as **DExh. No. 4**, thereby cementing their master-servant relationship herein. Upon completion of his probation period, his appointment was subsequently **confirmed** via **Dexh. No.5.** 2. However, on 21/10/2022, the Claimant was served with a letter under the hand of the Respondent’s Registrar (Administration and HR), who also testified herein as RW1, **Prof Simon K. Kipchumba**, PhD, terminating his services. The relevant excerpt of the said letter is set out herein below: ***Re: Notice of Termination*** ***Following the restructuring in the Catering Section, we wish to inform you that the University is not in a position to continue with your services. You are therefore given notice of termination of service as per your terms of employment which you signed between yourself and the University. This is with effect from 1st November 2022. Your last date of service will be on 31st October 2022 and you will be paid all your entitlements after clearing with the University.*** ***Arising from this notice of termination, you will be entitled to the following terminal benefits;*** * + - * 1. ***Three months’ salary in lieu of notice.*** 2. ***Salary up to and including 31st October 2022.*** 3. ***Value of unutilized leave days as at 31st October 2022.*** 4. ***Gratuity for the period you served the University.*** ***The University will release your terminal benefits upon presentation of a duly completed clearance certificate…[[1]](#footnote-1)*** 1. Apparently, the claimant acknowledged receipt of the amount as computed therein. Be that as it may, the claimant believed that the termination was unfair, unlawful and in breach of the terms of the fixed-term employment contract and the provision of Sections 35, 41, 43 and 45 of the Employment Act. His claim is that the Respondent failed to conduct any hearing or disciplinary process as required by section 41 of the Employment Act before arriving at the decision to terminate. He particularized the Breach of Contract of Employment claims as paragraph 15 of the Memorandum of Claim dated 23/05/2025 as follows; - * 1. Termination without due notice as required under the contract and Employment Act; 2. Failure to pay for overtime hours worked; 3. Non-payment of leave travelling allowance; 4. Denial of salary for the remaining unexpired term of contract; 5. Failure to follow due process prior to termination. 2. It is on that basis that he challenges his termination in this cause. He sought the following orders: - 3. 3 months’ salary in lieu of notice – Kshs. 77,046.00 4. Unpaid salary for the month of October 2022 – Kshs. 25,682.00 5. Payment for 61 pending leave days – Kshs. 31,225.40 6. Leave travelling allowance for 15 years – Kshs. 75,000.00 7. Gratuity for 15 years of service – Kshs. 115,175.70 8. Unpaid public holidays for 172 days worked – Kshs. 176,090.95 9. Salary for reminder of fixed-term contract (breach of contract) – Kshs. 796,142.00 10. Unpaid overtime pay for 15,040 hours worked – Kshs. 889,646.00 11. Compensation for unfair termination under Section 49(1) (c) of the Employment Act (12 months’ salary) – Kshs. 308,184.00 12. Costs of this suit; 13. Interest on items (a) to (i) at court rates from the date of filing until payment in full; 14. Any other relief this Honorable Court may deem fit to grant. 15. In its Response, the Respondent denied all the allegations of unlawful termination and breach of contract. It pleaded that the Claimant was engaged under a written fixed-term contract dated 16/11/2021, running from 01/11/2021 to 31/10/2024. That Clause 2.0 of the contract expressly permitted termination before expiry by 3 months’ salary in lieu of notice. That the Respondent invoked the said clause lawfully and paid 3 months’ salary in lieu of notice. That all accrued terminal dues were fully computed and paid. That the Claimant voluntarily executed a Discharge Voucher confirming full and final settlement. That no redundancy was declared, and no statutory breach occurred. 16. **Mr. Mwallo**, learned counsel for the Claimant, submitted that the claimant was terminated on account of restructuring of the catering department which amounted to redundancy. That if that be the case, then the Respondent failed to comply with the provisions of sections 40 and 45 of the Employment Act. That otherwise, the Respondent failed to prove a valid reason for termination, and further, failed to comply with sections 10(7), 40, 41 and 74 of the Employment Act. That the Respondent terminated a long-serving employee abruptly. That the termination was therefore both substantially and procedurally unfair. 17. On his part, **Mr. Opondo**, learned counsel for the respondent, submitted that the dispute herein is purely legal: Whether lawful contractual termination can be recharacterized as unfair termination attracting statutory compensation and cumulative monetary claims. That it is uncontested that the Claimant executed a written fixed term contract dated 16/11/2021 running from 01/11/2021 to 31/10/2024. That Clause 2.0 of that contract expressly provided that either party may terminate the contract before the expiry of the term by giving 3 months’ notice or payment in lieu thereof. That section 36 of the Employment Act expressly permits termination without notice where payment in lieu is made. On this point, learned counsel referred the court to the Court of Appeal decision in ***CMC Aviation Ltd v Mohammed Noor [2015] eKLR***, where it was held that where a contract provides for termination by notice and such notice (or pay in lieu) is issued, the termination is lawful unless independent unfairness is proven. That further, in ***Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho [2017] eKLR***, the Court affirmed that courts must give effect to clear contractual termination clauses, and that early termination in accordance with the contract does not automatically amounts to breach. Learned counsel further submitted that in this case, there was no redundancy notice as no severance pay was computed or claimed, no workforce reduction matrix was undertaken, no abolition of position was demonstrated and the respondent did not rely on section 40 at all. That as such, this cannot be said to be a case of redundancy as claimed by the claimant. That the claimant expressly acknowledged that he signed the discharge Voucher dated 31/10/2022, acknowledging receipt of Kshs. 92,462/- in full and final payment of all dues arising from the employment herein. That the claimant admitted in cross-examination that he signed the voucher, that he read its contents, understood the phrase ‘full and final settlement’, he was not forced, coerced, or threatened; he did not raise any written protest at the time, and that he retained payment. That the Court of Appeal in ***Coastal Bottlers Limited v Kimathi Mithika [2018] eKLR*** held that a discharge voucher signed voluntarily and without vitiating factors constitutes binding settlement unless fraud, misrepresentation, mistake or duress is proven. 18. I have considered the record, submissions by counsel and the law. I start with the last issue raised by the learned counsel for the respondent in his written submissions. There was a settlement clause in the discharge voucher herein. The **discharge voucher** is marked as **Dexh. No. 7**. It confirms that the claimant received Kshs. 92,462.80, ‘***in full settlement of my final dues from Kabarak University. I discharge Kabarak University from any liabilities claimed arising from the contract of my employment***[[2]](#footnote-2)’. 19. While considering the said discharge agreement, I bear in mind that employment contracts are governed by the general law of contacts. This much was restated by the Court of Appeal in ***Krystalline Salt Limited vs. Kwekwe Mwakele & 67 others [2017] e KLR: -*** ***… it is important to bear in mind that in Kenya, employment is governed by the general law of contract as much as by the principles of common law now enacted and regulated by the*** [***Employment Act***](https://kenyalaw.org/akn/ke/act/2007/11) ***and other related statutes. In that sense employment is seen as an individual relationship negotiated between the employee and the employer according to their needs.*** 1. Whether or not a discharge voucher bars a party thereto from making further claims depends on the circumstances of each case. The Court of Appeal in ***Coastal Bottlers Limited v Kimathi Mithika [2018] eKLR*** held that a court faced with such an issue should address its mind firstly, on the import of such a discharge/agreement; and secondly, whether the same was voluntarily executed by the concerned parties. 2. In an earlier case of ***Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR***, the same court stated that the answer lay with the facts of each case. In its own words, the Court in the aforementioned case expressed: ***We would agree with the trial court that a discharge voucher per se cannot absolve an employer from statutory obligation and that it cannot preclude the Industrial Court from enquiring into the fairness of a termination. That is however, as far as we are prepared to go. The court has, in each and every case, to make a determination, if the issue is raised, whether the discharge voucher was freely and willingly executed when the employee was seized of all the relevant information and knowledge.*** 1. I have interrogated the facts prevailing herein. I do find that this was a fixed-term contract that was duly terminated as per clause 2.0 thereof. This was therefore not a case of a dismissal, summarily or otherwise, as claimed by the claimant. It was also not an act of redundancy as claimed. This was a termination of a fixed-term contract and I find no unfairness, whether substantially or procedurally, as claimed herein. 2. As correctly, submitted by the learned counsel for the Respondent, the claimant confirmed that he voluntarily executed the discharge voucher herein. Apart from clearing the respondents from liability for payments of salary in lieu of notice, and 6 days leave balance, the discharge voucher had the following settlement clause which read in part: ***I Thomas Jogoo of ID No… Do hereby confirm receiving Kshs. 92,462.80 in full settlement of my final dues from Kabarak University. Subsequently, I discharge Kabarak University from any liabilities claimed arising from the contract of my employment*** 1. In my mind, it is clear that the parties had agreed that payment of the amount stated in the settlement clause would absolve the Respondent from any further claims under the contract of employment and even in relation to the claimant’s termination. It is instructive to note that the claimant never denied signing the said agreement or questioned the veracity of the agreement. Further, from the record, I do not discern any misrepresentation on the import of the said agreement or incapacity on the claimant’s part at the time he executed the same. It did not matter that the amount thereunder would be deemed as inadequate. As it stood, the agreement was a binding contract between the parties. In ***Trinity Prime Investment Limited vs. Lion of Kenya Insurance Company Limited [2015] eKLR*** the Court of Appeal, while discussing the import of a discharge voucher observed: ***The execution of the discharge voucher, we agree with the learned judge, constituted a complete contract. Even if payment by it was less than the total loss sum, the appellant accepted it because he wanted payment quickly and execution of the voucher was free of misrepresentation, fraud or other. The appellant was thus fully discharged.*** 1. All that I am required to do is therefore to give effect to the intention of the parties as discerned from the settlement in the discharge voucher. My position is fortified by the sentiments of Sir Charles Newbold P in ***Damondar Jihabhai & Co Ltd and another vs. Eustace Sisal Estates Ltd [1967] EA 153*** that: - ***The function of courts is to enforce and give effect to the intention of the parties as expressed in their agreement. In the English Court of Appeal case above - Globe Motors Inc & Others vs TRW Lucas Electric Steering Ltd & Others (supra) – Lord Justice Beatson stated as follows: -*** ***'Absent statutory or common law restrictions, the general principle of the English law of contract is [that parties to a contract are free to determine for themselves what obligations they will accept]. The parties have the freedom to agree whatever terms they choose to undertake, and can do so in a document, by word of mouth, or by conduct.*** 1. Giving effect to the parties’ intention means that this court cannot entertain the suit filed by the claimant. This is because the claimant had waived his rights to make any further claim in relation to his relationship with the respondent. Having expressed myself as hereinabove, I see no reason to delve into the other claims, which I also do agree are unavailable herein as this was a fixed-term contract which was contractually terminated and payment in lieu of notice made as per the discharge voucher herein and clause 2.0 of the contract. In the end, I find that the claim has no merit and is hereby dismissed it in its entirety with costs. **DATED AND DELIVERED AT NAKURU, VIRTUALLY THIS…29th . DAY OF…July…, 2026** ALOYCE-PETER-NDEGE **SENIOR PRINCIPAL MAGISTRATE** *In the presence of;* **Claimant’s Counsel: Mwallo** **Respondent’s Counsel: Opondo** **Claimant: n/a** 1. Dexh. No. 6 [↑](#footnote-ref-1) 2. Clause or paragraph 3 [↑](#footnote-ref-2)