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Court of AppealDismissedELRC Cause No. 459 of 2014 (appeal)· [2024] KECA 620 (KLR)

Teacher Service Commission v Adhiambo (Civil Appeal 427 of 2017) [2024] KECA 620 (KLR)

Court of Appeal
24 May 2024
SKS. Gatembu KairuPNP. NyamweyaGNG. W. Ngenye-Macharia
4,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a teacher was unfairly dismissed after her employer waited twelve years, and she keeps a Kshs 1.59 million award.

What this practically means

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Executive summary

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The Teachers Service Commission appealed the judgment of the Employment and Labour Relations Court at Nairobi (Nderi Nduma J., 21st July 2017) awarding Jane Consolata Odhiambo Kshs 1,593,696/-, comprising twelve months' salary as compensation for wrongful and unfair dismissal and Kshs 1,471,104/- in salary arrears for twelve years. The Respondent, a head teacher, had applied in August 1999 for two years' unpaid leave from January 2000, but the TSC, citing the absence of unpaid leave in the Code of Regulations, deemed her to have resigned by letters dated 25th March 2000 and 31st July 2000. Twelve years later she was interdicted for desertion and dismissed in September 2012 following a disciplinary hearing. The Court of Appeal, applying its review role under Selle v Associated Motor Boats, held that the termination procedure was unfair and unlawful: there was no evidence of resignation or desertion, no notice or opportunity to make representations on the resignation decision, no explanation for terminating on a different ground twelve years later, and the delay was unexplained. On remedies, the Court held that the twelve months' maximum compensation under section 49(1)(c) was justified, and that salary arrears were an allowable remedy under section 49(1), having been specifically pleaded through the exemplary damages claim, while reinstatement was barred by section 12(3)(vii) of the ELRC Act. The judgment of the ELRC was upheld in its entirety and the appeal dismissed with costs to the Respondent.

Key legal issues

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01

Whether the termination of the Respondent's employment was substantively and procedurally fair

Holding

The termination was unfair and unlawful; the employer's inconsistent positions (resignation then desertion), lack of evidence of desertion or resignation, and unexplained twelve-year delay invalidated both the interdiction and dismissal.

Reasoning

The Court found the employer's letter of 25th March 2000 deemed the Respondent to have resigned effective 1st January 2000, yet she was interdicted for desertion only on 6th January 2012 and dismissed on 20th September 2012. There was no evidence of resignation or desertion, no notice or opportunity to make representations on the resignation decision, and the twelve-year delay was unexplained. The trial Judge was right to find the termination a sham, unfair and unlawful.

p. 7
02

Whether the award of maximum compensation and twelve years' salary arrears was justified

Holding

Both the twelve months' maximum compensation and the salary arrears award were justified; wages due are an allowable remedy under section 49(1), and the salary arrears claim was specifically pleaded via exemplary damages for withholding of dues.

Reasoning

Given that no valid basis for termination was demonstrated and the Respondent was kept waiting twelve years, maximum compensation under section 49(1)(c) was reasonable. Reinstatement was barred by the three-year limitation in section 12(3)(vii) of the ELRC Act, but wages for the period she was willing to work were payable, and the factors in section 49(4)(f)-(i) supported the award.

p. 8

Legal principles established

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  • An employer that first deems an employee to have resigned cannot, twelve years later and without explanation, interdict and dismiss the same employee for desertion; the delay and shifting grounds render the termination unfair and unlawful.
  • Wages due for a period during which an employee was wrongfully kept from work are an allowable remedy under section 49(1) of the Employment Act, and where specifically pleaded, salary arrears may be awarded in addition to the maximum twelve months' compensation under section 49(1)(c).

Court orders

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  1. 1.The judgment dated 21st July 2017 by the Employment and Labour Relations Court in ELRC Cause No. 459 of 2014 is upheld in its entirety
  2. 2.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1)
  • Employment Actsections 41, 43, 45, 47(5), 49(1)(b), 49(1)(c), 49(4)
  • Teachers Service Commission Actnot specified
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Code of Regulations for Teachersregulation 70

Cases cited (10)

  • Selle & another v Associated Motor Boats Co. Ltd & others
    (1968) EA 123
  • Jabane v Olenja
    (1968) KLR 661
  • Mbogo & Another v Shah
    (1968) EA 93
  • Bett Francis Bargetuny & another v Teachers Service Commission & another
    [2015] eKLR
  • Stanley Omwoyo Onchweri v Board of Management, Nakuru YMCA Secondary School
    [2015] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2002] eKLR
  • Wilfred Kipchirchir Rotich v Metkei Multipurpose Company Limited
    Eldoret Civil Appeal No. 94 of 2017
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    Nairobi Civil Appeal No. 352 of 2017
  • Caltex Oil (Kenya) Limited v Rono Limited
    Nairobi Civil Appeal No. 97 of 2008
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Cause No. 459 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Court Act and the Court of Appeal's appellate jurisdiction (Memorandum of Appeal dated 4th December 2017)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Teacher Service Commission v Adhiambo (Civil Appeal 427 of 2017) [2024] KECA 620 (KLR)", Case Analysis (2024). ELRC Cause No. 459 of 2014 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/620/eng@2024-05-24

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