[2019] KEELRC 2430 (KLR)
The court found that the claimant's employment with Airkenya Express Limited was governed by a fixed-term contract that expired on 4th May, 2009. Upon expiry, the claimant received a final settlement payment and signed a declaration waiving any further claims against the respondent. There was no evidence of coercion...
Source-derived case information.
- Citation
- [2019] KEELRC 2430 (KLR)
- Parties
- Claimant: Moses Thuo Mwithiga; Respondent: Airkenya Express Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 948 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Unlawful Termination, Fixed Term Contracts, Final Settlement, Accrued Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Moses Thuo Mwithiga
Claimant
Airkenya Express Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was wrongfully, unlawfully, and maliciously terminated.
- 2 Whether the claimant is entitled to further claims after signing a final settlement declaration.
Ratio Decidendi
The court found that the claimant's employment with Airkenya Express Limited was governed by a fixed-term contract that expired on 4th May, 2009. Upon expiry, the claimant received a final settlement payment and signed a declaration waiving any further claims against the respondent. There was no evidence of coercion or misrepresentation in signing the declaration. The court also noted that representations regarding accrued leave and terminal benefits from the previous employer were not disputed in this case, and there was no evidence that such benefits were unpaid. Consequently, the court held that the claimant's termination was not wrongful, unlawful, or malicious, and that the claim was...
Court Disposition
claim dismissed
Orders
- The claimant's claim is disallowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 948 OF 2014
MOSES THUO MWITHIGA..............................................CLAIMANT
VERSUS
AIRKENYA EXPRESS LIMITED..............................RESPONDENT
JUDGMENT
1. The claimant pleaded that he was employed by the respondent and his contract governed by the Employment Act.
2. On or about 30th April, 2009 the defendant wrongfully, unlawfully and maliciously terminated his services without any notice or reasonable cause.
3. According to the claimant, he diligently, effectively and efficiently worked for the defendant from 22nd January, 1998 until 30th April, 2009 when his service was terminated.
4. The respondent in its defence pleaded that it was incorporated in 2005 and thereafter the plaintiff was employed on 4th May, 2006. The respondent further denied that the claimant’s service was wrongfully, unlawfully and maliciously terminated and averred that his contract of employment dated 4th May, 2006 which was for a period of three years lapsed and the same was never renewed.
5. On 17th September, 2018 when the matter came up for hearing Counsel for both parties agreed to dispense with oral hearing and asked the court to consider the witness statements on record and supporting documents as well as submissions in deciding the dispute.
6. By a letter of appointment dated 22nd January, 1988, the claimant was employed by Air Kenya Aviation Limited as a licensed engineer. The contract was to be continuous from date of commencement until such time as it is terminated by either party.
7. On 30th November, 2005 Airkenya Aviation was put under receivership and claimant and his colleagues informed through a letter of the same date that effective that date they would be employees of the receiver manager on the same terms and conditions as are detailed in their contracts of employment, with all leave entitlements and benefits included.
8. By a memorandum dated 10th April, 2006 addressed to all staff members of Airkenya Aviation Limited, they were informed that from that date (10th April, 2006) they ceased to be employees of Airkenya Aviation Limited henceforth their contract was to be with Airkenya Express Limited and that their employment contract would be on the same terms as laid down by the contracts with Airkenya Aviation Limited.
9. Further by a letter dated 11th April, 2006 the receiver manager formally terminated the services of the employees of Airkenya Aviation Limited and confirmed that their accrued leave and any terminal benefits which had accrued since the original employment with Airkenya would be transferred to Airkenya Express which would be issuing new contracts of employment in due course.
10. On 4th May, 2006 the claimant was issued with a new contract by Airkenya Express for a period of three years with effect from 4th May, 2006. This implied the contract would expire on 4th May, 2009.
11. On 30th April, 2009 the claimant received a cheque for Kshs.274,259. 60 as his final dues against a declaration that it was his final payment. He further declared that he would not make any other claim against Airkenya Express or related company of director or employee.
12. In the claim before the court, the claimant avers that the respondent maliciously, wrongfully and unlawfully terminated his service. This cannot be true because as observed above the claimant received the sum of Kshs.274,259. 60 as his final dues against a declaration that it was in full and final settlement against the respondent and further declared that he would not make any other claim against the respondent. The claimant was fairly senior and cannot claim to have been coerced or misled into signing the declaration. In any event he did not claim to have been misled or coerced in his pleadings or statement.
13. There was however representation to the claimant and other staff of Airkenya Aviation that moved to Airkenya Express the respondent herein that their accrued leave and terminal benefits would be moved and become payable by Airkenya Express. Nothing came upon this dispute concerning this aspect hence the court can safely assume they were paid.
14. In conclusion the court is of the view that the claimant’s claim is without merit and the same is disallowed with no orders as to costs.
15. It is so ordered.
Dated at Nairobi this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
Delivered this 25th day of January, 2019
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.
Abuodha J. N.
Judge