1. Through a memorandum of claim filed on 12th October, 2018, the claimant averred that he was on or about 18th October, 2007 he was employed by the respondent as a General Manager based in Nairobi.
2. He served the respondent for 10 years and had neither been subject of any disciplinary process nor a warning notice.
3. On or about 31st January, 2017 he entered into a mutual separation and settlement agreement with the respondent terminating his employment through amicable separation in accordance with the terms of the agreement.
4. The terms of the agreement were fully agreed on vide the employment contract executed between the parties as result of which the employment relationship between parties ceased with effect from 31st January, 2017.
5. The claimant further stated that as expected, on 31st January, 2017 he duly handed over to the company and wrote a handing over report to that effect. One of the respondent’s Directors acknowledged receipt of the handing over report and signed the same as confirmation that the same was in order.
6. The stated that the agreed terms in the agreement for settlement in relation to the mutual termination was that the claimant was to be paid his benefits amounting to Kshs. 10,511,559.40 in two instalments.
7. The first instalment referred to as settlement amount A was Kshs. 9,456, 163.30 and second settlement, namely settlement B was Kshs. 1,055,396.10. The settlement amount A was paid to the claimant on 1st February, 2017 and settlement B was payable on or before 1st May, 2017. The settlement B was however not paid as agreed, prompting the suit.
8. The respondent filed a response and averred that the claimant served it for a period of 10 years however not dutifully nor diligently as alleged. Further, that pursuant to the mutual separation and settlement agreement the respondent was entitled to require the claimant to account for the respondent’s property. However the claimant failed to return certain missing items.
9. The respondent further by way of counterclaim averred that according to the terms of the mutual separation agreement at paragraph 4, the claimant was mandated to hand over the respondent’s property in his possession and or control. However the claimant failed and or refused to hand over some of the respondent’s property. Further that the settlement amount B was not payable unless the effective handover date falls prior to May 1st, 2017. The effective handover date under the said agreement meant the date on which the company shall confirm in writing to the claimant that it has received and accepted the last of any outstanding document information, account or report required from the respondent so as to render the claimant’s handover report as complete and satisfactory.
10. The respondent further averred that the claimant failed to handover all requisite documents and properties within his possession. Further the claimant did not provide any such assistance as and when required for the effective transition and handover of his duties and functions as an employee.
11. The respondent further pleaded that the claimant in his capacity as the general manager was responsible for the respondent’s inventory. That the following items were missing from the respondent’s premises.
a) Two generators previously at Gethumwini Farm;
b) One generator previously located at Ruera Farm in Langley House
c) One Landcruiser backseat
d) One KBA tractor that went to Nakuru
e) One diagnostic computer
f) 200 metre cable three core armoured formerly Karogo Farm
g) One HP Computer and printer
h) Caterpillar/Grade parts.
12. The respondent held the claimant responsible for the missing items named herein as a result of which the respondent has suffered loss and damage. The respondent therefore sought for the immediate return of these items.
13. At the hearing the claimant stated that he filed a witness statement on 28th June, 2018, supporting documents and further witness statement which he relied on as his evidence in chief. It was his evidence that the respondent was his employer and that he signed a mutual separation agreement with the respondent in which he was to be paid his dues in two plans. The first plan was Kshs. 9,456, 150/30 and the second Kshs. 1,000,550. The second plan was not paid. The claimant further stated that he never waived anything and that he needed to sign the waiver document because he needed another job. According to him, all the line managers were in charge of certain assets. When handing over, no issue was raised over missing items when he handed over and that it was only raised when he claimed the second instalment. He denied being in possession of the items counterclaimed.
14. In cross-examination he stated that the respondent received the handover report, acknowledged and signed it. He denied knowledge of the standard operation procedure and was only aware of the mutual separation agreement. He further stated that Andrew did not sign the handover report but was present when he presented it. He did not have official minutes of the meeting where he handed over but all the managers were present.
15. The claimant on further cross-examination admitted that he was aware of the respondent’s standard operating procedure and that he signed the same in 2015. He was further not issued with exit clearance form and that he did not have a duly signed exit form.
16. The respondent’s witness Hassan Ndisho stated that he was the respondent’s head of Human Resource. He recorded a statement on 19th September, 2022 which he relied on as his evidence in chief. He also relied on the documents filed with the response. According to him, the claimant was in charge of day to day operations and was also the custodian of respondent’s assets. He kept log books and title documents. It was his evidence that the claimant has not been paid because he has not assisted in identifying where the missing items were. The claimant was aware of the respondent’s standard operating procedures(SOP) and that he never followed the SOP when leaving the respondent. It was his evidence that the handing over report does not constitute clearance. The report must be cross checked with what is physically on the ground.
17. In cross examination he stated that the claimant was a general manager and that the respondent had thirteen departments spread across the Country. The respondent had 10 farms. Three were sold. In the farms there were equipment and tools. There reports and inventory of the respondent’s assets however the report and inventory were not before the Court.
18. He further stated they took four months to revert to the claimant because the evidence was on the ground and they had to compare with the claimant’s report. They recorded statements from individual managers about the lost items. They however did not file in court a report on the lost items.
19. Mr. Hassan further stated that He knew Andrew. He was the Chief Financial Officer of the respondent and that he was present in the Boardroom when the claimant was bidding farewell.
20. The dispute herein is over the claimant cleared from employment in terms of 4.2 of the mutual separation agreement. According to the claimant, cleared as required while the respondent maintains that the report prepared by the claimant did not amount to effective clearance as the assets inventoried by the claimant had to be verified on the ground before the claimant can be deemed to have cleared.
21. The respondent upon verification, called upon the claimant to account for the items listed in the counterclaim. The claimant did not provide any evidence that he responded to the request. According to the respondent, the claimant instead filed the present action. It should be noted that the parties herein do not dispute that the claimant is entitled to settlement plan B. The point of departure is over the handing over. Clause 4.2 of the Mutual Separation Agreement stated in paraphrase that the respondent was entitled to require the claimant to provide such further document, information, account or reports as it may deem necessary to render the employee’s handover report complete and satisfactory. The respondent exercised this right by asking the claimant to account for the items listed in the counterclaim. The claimant never provided any evidence that of how he responded to the request. The court was not told whether the claimant refuted the request or attributed the responsibility to account on someone else.
22. As an employee exiting employment, the respondent is within its right as an employer to require him to account for respondents assets under his custody and care. The Court therefore cannot decree that an employee should not clear as a precondition for payment of his or her terminal dues especially where the separation document is clear on the matter. As observed earlier, the claimant did not react to the request to account for the respondent’s assets listed in the counterclaim. In that regard the Court finds and holds that the claim is without merit and hereby directs that the claimant do accounts for or effectively responds to the respondent’s request concerning the items contained in the counterclaim prior to the payment of the balance of the amount outstanding as per the mutual separation agreement.
23. Regarding the Counterclaim, the court makes no order over the same as the respondent did not quantify any value over the same. In any event the order made above concerning the claimant once sufficiently complied with and in accordance with clause 4.2 of the mutual separation agreement will sufficiently address the counterclaim.
24. Each party to bear their own costs of the suit.
25. It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day
of……………………….…2023
Abuodha J. N.
Judge