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Court of AppealPartially AllowedCivil Appeal No. 238 of 2015

Kenya Education Staff Institute v Kenya Union of Post-Primary Teachers (Kuppet) & 2 others [2020] KECA 898 (KLR)

Court of Appeal of Kenya
7 February 2020
9,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed two teachers were unfairly dismissed and reinstated, but struck out money awards that were never properly claimed in court pleadings.

What this practically means

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Executive summary

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This first appeal arose from an Industrial Court Award of 1st April 2011 in Industrial Cause No. 224 (N) of 2008, in which two teachers (grievants) recruited by the appellant, Kenya Education Staff Institute, were held to be its employees and awarded reinstatement and ancillary reliefs. The Court of Appeal (Nambuye JA, with Koome JA concurring; Waki JA having retired, the judgment being signed under Rule 32(3) of the Court of Appeal Rules) identified three issues: whether the grievants were the appellant's employees; whether their employment was unfairly terminated; and whether the trial court's remedies lay in law. The court affirmed the trial court's finding that the grievants were employees of the appellant, holding that clauses 7(2) and (4) of Legal Notice No. 565 of 1988 vested absolute power in the appellant's council to appoint staff with no requirement of PSC or DPM sanction; that the plea of secondment was unsupported by evidence; and that an implied contract of employment could be inferred from the parties' mutual conduct, the absence of a written contract being the employer's responsibility under section 9(2) of the Employment Act. The finding of unfair termination was also affirmed, the appellant having released the grievants to TSC on ministerial directions without complying with clauses 7(5) and (6) of the Legal Notice and the Employment Act. On remedies, reinstatement with all attendant benefits was affirmed, but the awards of 12 months' salary compensation and salary top-up were set aside: the compensation was unpleaded, uncanvassed, and an impermissible alternative remedy where reinstatement had been granted; the top-up was neither pleaded nor proved. The order that each party bear its own costs was affirmed. The appeal partially succeeded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievants were employees of the appellant.
  2. 2.Whether the grievants' employment was unfairly terminated by the appellant.
  3. 3.Whether the remedies awarded to the grievants by the trial court lie in law.

Key legal issues

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01

Whether the grievants were employees of the appellant

Holding

Yes; they were absorbed as employees, assigned and discharged duties within the appellant's establishment, and their release to TSC without complying with clauses 7(5) and (6) of Legal Notice No. 565 of 1988 was of no effect.

Reasoning

Clause 7(2) and (4) of Legal Notice No. 565 of 1988 donated absolute power to the appellant's council to appoint staff with no residual role for the PSC or DPM. No rule or regulation mandating PSC sanction was identified. The plea of secondment failed for want of documentary evidence, continued payment of salaries by TSC was explained as a temporary arrangement at the appellant's own request, and the parties' mutual conduct evinced an implied contract of employment.

p. 8
02

Whether the grievants' employment was unfairly terminated

Holding

Yes; the release of the grievants to TSC on 19th August 2008 contravened the mandatory procedure in clauses 7(5) and (6) of Legal Notice No. 565 of 1988 and the Employment Act.

Reasoning

The appellant was obliged to convene its council and pass a resolution with a hearing before terminating employment; instead it acted on directions from the PS of the 2nd respondent. The reasons given for the release also contradicted the reasons later advanced, demonstrating lack of good faith. The requirements of sections 41, 43 and 45 of the Employment Act were likewise not met.

p. 8
03

Whether the remedies awarded by the trial court lay in law

Holding

Reinstatement with attendant benefits was proper and affirmed; the awards of 12 months' salary compensation and salary top-up were set aside as unpleaded and, in the case of compensation, an impermissible alternative remedy.

Reasoning

Reliefs attendant on reinstatement are proper since a reinstated employee is entitled to attendant benefits. But the 12 months' compensation was not pleaded, was not canvassed before the trial court, and could only pass as an alternative remedy for which there was no jurisdiction once reinstatement had been granted. Top-up salaries were neither pleaded nor proved. The appeal therefore succeeded in part.

p. 10

Legal principles established

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  • Where a statutory or legal notice provision confers on a body the power to appoint staff using mandatory language ('shall') without reserving any sanctioning role to another body such as the PSC, that body's exercise of the power requires no external sanction.
  • Lack of a formal written contract of employment is not of itself evidence that no employer/employee relationship exists; the obligation to provide a written contract lies with the employer under section 9(2) of the Employment Act, and an implied contract may be inferred from conduct.
  • A court has no jurisdiction to award an alternative remedy (such as compensation) where consideration for the main remedy (reinstatement) preceded consideration of the alternative remedy.
  • Issues for determination in a suit flow from the pleadings, and a trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties.
  • Remedies under section 49 of the Employment Act are discretionary rather than mandatory, to be granted on the basis of the peculiar facts of each case and guided by the thirteen considerations in section 49(4).
  • Termination of employment must follow the procedure laid down in the instrument governing the employment relationship; an employer acting on ministerial directions in breach of that procedure unfairly terminates the employment.

Court orders

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  1. 1.Affirmed that the appellant's termination of the grievants' employment was unfair
  2. 2.Affirmed that the grievants are entitled to reinstatement into the appellant's employment together with all attendant benefits
  3. 3.Disallowed payment of salary compensation for 12 months
  4. 4.Disallowed payment of the difference in salary between what was paid by TSC and the equivalent earned by counterparts in the appellant's employment
  5. 5.Affirmed the order that each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Authored the leading judgment; affirmed the Industrial Court's findings that the grievants were employees of the appellant and were unfairly terminated, but set aside the awards of 12 months' salary compensation and salary top-up as unpleaded and unproven.

My view on the above provision is that, sub-Clause 7(2) donates power to the appellant to appoint and develop suitable professional and supporting staff.p. 7
Martha Karambu Koome
M.K. KoomeJA
Currently serving
concurring

Concurred entirely with the judgment of Nambuye JA in a separate short concurring opinion.

I have had the opportunity to read in draft the judgment of Nambuye, JA, I do concur with it in its entirety. I have nothing useful to add.p. 11
On appeal from
Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
Industrial Cause No. 224 (N) of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (judgment signed under Rule 32(3) of the Court of Appeal Rules following retirement of Waki JA)

Relief refused

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Payment of 12 months' salary compensation for unfair termination

It was not pleaded for, the trial court was not addressed on it, and it amounted to an alternative remedy awarded without jurisdiction where the main remedy of reinstatement had already been granted

p. 10

Payment of top-up (difference in) salaries

Neither pleaded nor proved; the grievants never complained of being underpaid and accepted the salaries paid by TSC

p. 10

Costs

I affirm the order that each party to bear own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

1. The orders affirmed are as follows: (a) That the appellant's termination of the grievants' employment with them was unfair. (b) That the grievants are entitled to an order for reinstatement into the appellant's employment together with all attendant benefits for an employee reinstated back to his/her employment as affirmed above.
p. 10Final orders - reliefs affirmed
2. The reliefs dis allowed are as follows: (a) Payment of salary compensation for 12 months. (b) Payment of the difference in salary if any earned by the grievants as paid by the T.S.C and the equivalent earned by their counterparts then in the appellant's employment at the material time.
p. 10Final orders - reliefs disallowed
I affirm the order that each party to bear own costs.
p. 10Final orders - costs
there is no jurisdiction to award an alternative remedy in instances where consideration for the main remedy awarded preceded consideration for the award of the alternative remedy
p. 10Alternative remedies under section 49 of the Employment Act
Lack of a formal contract of employment between the appellant and the grievants was not perse evidence of lack of existence of an employer/employee relationship between them
p. 8Implied contracts of employment
As correctly found by the trial court, no residual power is reserved in the above clauses for the PSC or the DPM to sanction the appellant's councils' employment exercise executed pursuant to the above sub clause, before being actioned or given effect to.
p. 7Employment power under Legal Notice No. 565 of 1988

Issues in the judgment

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minor

The judgment inconsistently dates the governing instrument, referring to it as 'Legal Notice No. 565 of 1988' in most passages but as 'Legal Notice No. 565 of 1998' in one passage, and gives the issuance date as 13th December, 1988 by the then Minister for Education Hon. Aloo Aringo

minor

The judgment inconsistently cites the case Rift Valley Textiles Ltd versus Edward Onyango Ogada with different years, [1994] eKLR and [1944] eKLR

minor

Waki JA is listed in the coram but the judgment records he had ceased to hold office upon retirement; the judgment was signed under Rule 32(3) of the Court of Appeal Rules with the agreement of Koome JA

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Education Staff Institute v Kenya Union of Post-Primary Teachers (Kuppet) & 2 others [2020] KECA 898 (KLR)", Case Analysis (2020). Civil Appeal No. 238 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/898/eng@2020-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.