[2016] KEELRC 1805 (KLR)
The court held that a discharge note, especially one executed as a routine condition for payment of dues, does not bar the court from inquiring into the legality of a termination of employment. The court emphasized that allowing such discharge notes to preclude judicial scrutiny would enable employers to evade...
Source-derived case information.
- Citation
- [2016] KEELRC 1805 (KLR)
- Parties
- Claimant: Evans Achimba; Respondent: Wananchi Clothing Factory Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1259 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- L Ndolo
- Legal Topics
- Discharge Notes, Termination of Employment, Employment Settlement, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Achimba
Claimant
Wananchi Clothing Factory Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant is barred from bringing a claim due to execution of a discharge note.
- 2 Whether a discharge note executed as a condition for payment of dues precludes inquiry into the legality of termination.
Ratio Decidendi
The court held that a discharge note, especially one executed as a routine condition for payment of dues, does not bar the court from inquiring into the legality of a termination of employment. The court emphasized that allowing such discharge notes to preclude judicial scrutiny would enable employers to evade statutory obligations and perpetuate injustice against employees, who are typically the weaker party in employment contracts. Therefore, the preliminary objection based on the discharge note was not upheld, and the matter should proceed to substantive hearing.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1259 OF 2014
EVANS ACHIMBA..................................................................................CLAIMANT
VS
WANANCHI CLOTHING FACTORY LTD.......................................RESPONDENT
RULING
1. This ruling proceeds from a preliminary objection raised by the Respondent by notice dated 11th December 2015. The objection is based on the ground that the Claimant was paid all his dues upon which he executed a discharge note on 2nd November 2013.
2. Counsel for the Respondent, Mr. Gitonga submitted that having executed an unequivocal discharge to the effect that he had no further claims, the Claimant cannot now lay a claim against the Respondent. His current claim should therefore be struck out.
3. In reply, the Claimant appearing in person told the Court that the discharge note should not be taken in isolation, adding that he was forced to sign it by the police. He submitted that it was only fair that the matter be heard substantively.
4. The single issue for determination in this application is whether the Claimant is barred from bringing this claim on account of a discharge note signed by him on 2nd November 2013. The relevant part of the discharge note reads as follows:
“I Evans Achimba a former employee of Wananchi Clothing Factory (K) Ltd accept the (sic) Shillings Twenty Thousand as a full and final settlement of all claims against the Company and the Director Mr. Shabbir Anjarwalla and hereby state that I have no further claims against them.”
5. The Court was referred to the decision in Moses Olubandwa Wemisiko v Unga Limited & 2 Others (Cause No 273 of 2012) where Nzioki Wa Makau J held that a similar document signed by an employee was an unequivocal discharge.
6. I hold a different view on this matter. In Simon Muguku Gichigi v Taifa Sacco Society Limited (Cause No 681 of 2012)this Court held that a discharge note which departing employees are routinely required to execute as a condition for payment of their dues, cannot be used by an employer to circumvent their obligation to an employee.
7. If the law is not followed in effecting a termination of employment, no form of discharge can cure the irregularity. To hold otherwise would be to grant employers a licence to disregard the law and wave a form of discharge as a defence thus perpetuating injustice against employees who are often the weaker party in an employment contract. The Court cannot be barred from inquiring into the legality of a termination of employment by a document executed at the work place.
8. For the foregoing reasons, I find the preliminary objection not well taken and proceed to overrule it with costs being in the cause.
9. It is so ordered.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS22ND DAY OF JANUARY 2016
LINNET NDOLO
JUDGE
Appearance:
Evans Achimba (the Claimant in person)
Mr. Gitonga for the Respondent