https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1547

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E404 OF 2025** **NICHOLAS ONDIGO GWIYANGA…………...................APPELLANT** **-VERSUS-** **SIMBA DUTY FREE LIMITED………………………… RESPONDENT** **(Being an appeal from the Judgment of the Chief Magistrate Court at Nairobi (Honourable Lucy Ambasi) delivered on 4th November, 2025 MELRC 878 of 2024*)*** **JUDGMENT** 1. Through the Memorandum of Appeal dated 17th November, 2025 the Appellant appeals against whole of the Judgment of Honourable Lucy Ambasi delivered on 4th November, 2025 MELRC 878 of 2024 on grounds inter alia: 2. THAT the learned Magistrate erred both in law and fact in dismissing the claimant’s suit. 3. THAT the learned Magistrate erred in law and in face in holding that the termination of the appellants employment was neither unfair nor unlawful. 4. THAT the learned Magistrate erred in law and in fact in holding tha there was a mutual separation agreement between the Appellant and the respondent. 5. The Appellant consequently prayed that the appeal be allowed and the judgment by learned Magistrate delivered on 4th November, 2025, be set aside and the same be substituted with judgment and decree for finding substantial unfairness leading to dismissal of the and further that the judgment be substituted with compensation for substantive and procedural unfairness leading to dismissal for 12 months for Kshs. 576,000/- 6. The Appeal was disposed of by written submission **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocate, Mr. Ojienda submitted among others that the learned trial magistrate erred in law and fact when she held that the appellant and the respondent entered into a mutual separation agreement and that the appellant accepted Kshs. 125,871 as final settlement and thereafter could not claim that he was dismissed from employment. Counsel submitted that the respondent served the appellant with a termination letter dated 15th March, 2024 and the email correspondence dated 4th April, 2024 communicating mutual separation agreement was issued almost three weeks after the termination that is to say the appellant’s service was terminated long before the mutual separation agreement. Mr. Ojienda therefore submitted that the learned magistrate therefore erred when she held that there was a mutual separation agreement hence the appellant could not claim unfair termination of service. 2. Counsel submitted that the appellant had been placed between a rock and a hard place since the respondent had superior bargaining power and took advantage of the appellant who had everything to lose after his services had already been terminated. According to counsel, the appellant having been terminated was presented with an ultimatum that he either accepts the agreement and leaves with something or if he does not, he leaves with nothing. According to counsel, mutual separation agreement is usually initiated by an employee and not imposed by an employer who has already terminated the service of an employee. Counsel submitted that at the trail the appellant denied any discussions or negotiations prior to the alleged mutual separation agreement. Further, the email in question sought to settle the dues payable upon termination and not a mutual separation deal. Such discharge, counsel submitted could not absolve the respondent from its statutory obligations. In this regard counsel relied on the case of **Thomas De La Rue (K) Ltd v. David Opondo[2013]eKLR** where the Court of Appeal held that a discharge agreement could not itself absolve an employer from statutory obligations and was not a bar to ELRC interrogating the lawfulness or fairness of the termination. 3. Mr. Ojienda therefore contended that the appellant was therefore terminated without the benefit of substantive and procedural fairness as contemplated in sections 41, 43 and 47 of the Employment Act and in that relied on the often-cited case of **Walter Ogul Anuro v. TSC [2103] eKLR.** In conclusion, counsel urged the court to find that the appellant was unfairly terminated by the respondent and set aside the judgment of the trial court and further assess compensation due to the appellant. **RESPONDENT’S SUBMISSIONS** 1. Counsel for the respondent Ms. Nyabinge submitted among others that the contention by the appellant that there was no mutual separation agreement contradicted documentary evidence on record and that the learned trial magistrate correctly analysed the email dated 4th and 5th April, 2024 which demonstrated clear offer and acceptance. The respondent in the email of 4th April proposed a settlement further to the prospect of severing ties with the company and the appellant replied on 5th April seeking clarification on the formula used for computation and further on the same day directing the respondent’s representative to proceed with the settlement. According to counsel, the appellant did not at any time dispute the settlement or show any disaffection with the proposal and in fact thereafter accepted a payment of Kshs. 125, 871/- including gratuity as full and final settlement. 2. Ms. Nyabinge further submitted the appellant was the one who initiated the mutual separation agreement when he stated in his response to the show cause letter that he found the work environment “toxic” that he could no longer be productive and that he could not work with the supervisor (the Finance Manager). Faced with the appellant’s expressed unwillingness to continue the employment relationship, the respondent proposed a mutual separation agreement as a pragmatic solution to avoid a protracted and adversarial disciplinary process. According to counsel, it was in fact the appellant’s evidence during the trial that he was the one who requested for the termination letter. 3. According to counsel, the initiated disciplinary process may have proceeded to logical conclusion but the parties opted for an alternative mode of separation. Concerning the contention by the appellant that the termination letter predated the mutual separation agreement hence the latter amounted to coercion, Ms. Nyabinge submitted that this ignored the legal principle that parties by subsequent agreement, vary the manner of separation. Counsel therefore submitted that the subsequent email exchange between the appellant and the respondent after the issuance of termination notice converted what could have been a disciplinary process into a mutual separation. In this regard counsel relied on the case of **Thomas De La Rue (K) Ltd v. David Opondo[2013] eKLR** cited earlier especially where the Court of Appeal observed that the court in each and every case has to make a determination, if the issue was raised whether the discharge voucher was freely and willingly executed when the employee was seized of all the relevant information and knowledge. According to counsel, the appellant did not provide at the trial any evidence to support the allegations of coercion, fraud or misrepresentation and that the trial court was right when it relied on the case of **Gitariari v. Nairobi Hospital [2024]eKLR** where the court held that an employee who opts for mutual separation could not later resile from it merely because a disciplinary process had been initiated. The mutual separation agreement therefore constituted a binding contract between the parties and the appellant accepting it waived his right to pursue any further claims over the same issue subject of the mutual separation agreement. 4. Ms. Nyabinge, in conclusion submitted that the judgment of the trial court was well reasoned, legally sound and based on correct application of evidence and the law and that the appellant had failed to demonstrate any error of law or fact that would justify the Court’s intervention and urged the court to dismiss the appeal. **DETERMINATION** 1. The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in the often-cited case of **Selle vs Associated Motor Boat Company Limited [1968] E.A 123** where it was stated thus:- *An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”* And further in the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR,** where it was stated that:- *“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”* 1. The Judgment of the trial court was that the appellants claim before the trial court was dismissed after that court found that there was no unfair termination of service and that the parties to the employment contract subject of the dispute mutually separated pursuant to a mutual separation agreement. 2. The appellant feeling aggrieved by the finding of the trial court, brought the present appeal against the entire judgment of the trial court and urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and urging this court to assess compensation due to the appellant as a result of unfair termination of his service by the respondent. 3. As observed above concerning the role of this court as a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law. 4. The appellant has urged this court to overturn the finding by the trial court that the termination of the respondent’s service was lawful and fair and substitute with a finding that the termination was unlawful and unfair and further urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and urging this court to assess compensation due to the appellant as a result of unfair termination of his service by the respondent. 5. The main issue in this appeal is whether the parties herein mutually separated or the appellant’s service was terminated in contravention of his contract of service and applicable statutory provisions concerning termination of contracts of service, especially the provisions of the Employment Act. From the supplementary record of appeal filed on 19th December, 2025 at page 142, the appellant is recorded to have stated as follows in cross-examination: - “…I got a NTSC, I responded but was not invited for a disciplinary hearing. I insisted on getting a termination letter on the same date of 15th March. We had no discussions on severing ties with the company. The separation was not mutual. I saw the computation breakdown which we had not agreed on… I was paid terminal dues of Kshs. 125,871/-…” From the foregoing, it is clear that the appellant was the one who requested for a termination letter which the respondent obliged to and issued him with one. Thereafter the respondent in the email of 4th April, 2024 proposed a settlement stating that: “further to the prospect of severing ties with the company please find the settlement from Simba for your attention. Please acknowledge to allow us finalize the prospect for settlement” From the record, there is no evidence of counteroffer, objection or reservation by the appellant on the suggested action by the respondent. The appellant further went ahead and accepted the settlement of Kshs. 125,871/-. It therefore cannot be right as submitted by Mr. Ojienda that the appellant’s service was terminated well in advance of the proposed mutual settlement by the respondent when the appellant was the one who insisted on one and the respondent obliged. It would not be incorrect to interpret the insistence by the appellant to be issued with a termination letter as a strong desire to separate from the respondent and the offer for mutual separation was one of the natural outflows of his expressed desire. The other option would have been as rightly contended by Ms. Nyabinge was to subject the appellant to a disciplinary process whose outcome could possibly have been worse than mutual separation agreement proffered by the respondent. 1. **The foregoing having been said and considering caselaw relied on by both counsel and further placing the same in the context of the findings by the trial court, this court is persuaded those findings by the *court aquo* reiterating that they were sound both in fact and law and I find no reason to interfere with the same. The appeal is therefore found without merit and is hereby dismissed with costs.** 2. **It is so ordered.** **Dated at Nairobi this 5th day of June, 2026** **Delivered virtually this 5th day of June, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**