Teachers Service Commission v Henry Kamau Ngari & another [2020] KECA 217 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a teacher lawfully dismissed for gross misconduct forfeits their pension entirely.
What this practically means
#Executive summary
#Key legal issues
#Eligibility for pension where employment is terminated by dismissal for gross misconduct
A teacher lawfully dismissed for gross misconduct is not eligible for pension; retirement is a condition precedent and dismissal triggers forfeiture under Regulation 82
Regulation 73(1) of the Code of Regulations for Teachers limits eligibility for pension to teachers who retire in specified circumstances. Retirement is a sine qua non for pension eligibility. Since Mr. Ngari's dismissal was justified, valid and fair — a finding not challenged on appeal — he did not retire and Regulation 82 provides that a dismissed teacher forfeits all claims to pension. Abdul Majid Cocker, which protects persons already eligible for pension, does not assist a person never eligible.
Judicial substitution of an employer's disciplinary decision
The ELRC Judge erred in substituting TSC's dismissal decision with retirement in the public interest; a court's duty is to review fairness, not rewrite the employer's decision
The Judge's order substituting dismissal with retirement in the public interest was inconsistent with his own finding that the termination was justified and procedural. Citing Murkomen v Telkom Kenya, the Court reaffirmed that courts determine whether dismissal was valid and fair, not whether they would have reached the same decision. No party sought the substituted relief, so the Judge acted in excess of jurisdiction.
Determination of unpleaded issues and award of unclaimed relief
The Judge erred in raising and determining the constitutionality of the pension provisions and in granting relief not sought by the claimant
Neither party pleaded that the forfeiture provisions were unconstitutional; the Judge raised and determined that issue sua sponte. The claim as pleaded was for wrongful termination and terminal benefits, which could only succeed on a finding that the dismissal was wrongful. A party is not entitled to relief not specified in its claim, and unpleaded issues require amendment of pleadings.
Legal principles established
#- Retirement is an indispensable condition for eligibility for pension; a teacher dismissed from service forfeits all claims to pension
- A court may not substitute its own decision for that of an employer when determining the fairness of a termination
- Parties are bound by their pleadings and a court cannot award relief not sought nor pronounce on unpleaded issues
Court orders
#- 1.Appeal allowed
- 2.Judgment of the ELRC given on 11th March 2016 in Nyeri Cause No. 47 of 2013 set aside in its entirety
- 3.TSC to have the costs of the appeal and of the proceedings in the lower court
- On appeal from
- Employment & Labour Relations Court at Nyeri
- ELRC Cause No. 47 of 2013
- Jurisdiction invoked
- First appeal from the Employment & Labour Relations Court under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- SGA Security Solutions Ltd v Kasanya (Appeal E079 of 2025) [2025] KEELRC 2683 (KLR)[2025] KEELRC 2683 (KLR)2 Oct 2025applied
- Otieno v Teachers Service Commission (Employment and Labour Relations Cause E020 of 2022) [2024] KEELRC 1630 (KLR)[2024] KEELRC 1630 (KLR)24 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Henry Kamau Ngari & another [2020] KECA 217 (KLR)", Case Analysis (2020). Civil Appeal No. 35 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/217/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.