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ELRCAllowedCause No 129 of 2014· [2014] KEELRC 1008 (KLR)

Gitau Harrison Joshua v Teachers Service Commission & another [2014] KEELRC 1008 (KLR)

Employment and Labour Relations Court
23 May 2014
1,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a teacher's demotion and transfer, ruling that pay cuts and disciplinary action require notice, a hearing, and proven performance grounds.

What this practically means

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Executive summary

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The claimant, a professional teacher deployed as head teacher of Hyrax Primary School, was by letter dated 1.04.2014 deployed as an assistant teacher and transferred to Menengai Primary School with effect from 1st April 2014. He filed suit with a notice of motion seeking conservatory orders suspending the letter, contending he was demoted without notice, hearing or reasons, in breach of fair labour practices under Article 41 and fair administrative action under Article 47. The respondents, through the replying affidavit of Agnetta Kitheka Mwikali, asserted that the Teachers Service Commission had constitutional and statutory power under Article 237 and the TSC Act, 2012 and regulations 26(1) and 27(3) of its Code of Regulations to transfer and deploy teachers, and justified the demotion on consistently declining KCPE performance for 2011-2013. Applying the Giella v Cassman Brown principles, the court found the claimant's professional reputation was at stake; that the unilateral demotion without notice, hearing or reasons was an unfair labour practice and irreparable injury not compensable in damages, establishing a prima facie case with probability of success grounded in Articles 41, 47, 50(1) and 236. The court held the loss of the responsibility allowance meant the transfer was a demotion constituting disciplinary action requiring due process, and that absent agreed targets or objective appraisal reports the poor performance could not be attributed to the claimant. The application succeeded: implementation of the transfer was stayed, the claimant continues as head teacher with full pay and benefits, and the respondents were ordered to pay the costs of the application, with directions on the main suit to follow.

Key legal issues

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01

Whether the claimant established a prima facie case warranting conservatory orders

Holding

Yes - the demotion without notice, hearing or reasons breached natural justice and Articles 41, 47, 50(1) and 236 of the Constitution.

Reasoning

The claimant was a long-serving teacher whose professional reputation was at stake. The respondents, despite their wide discretion to transfer and deploy, did not show why the transfer had to be a demotion effected without notice, hearing or reasons. Such unilateral demotion was an unfair labour practice and an irreparable injury not compensable in damages, establishing a prima facie case with probability of success.

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02

Whether the transfer amounted to a demotion

Holding

Yes - the claimant would lose the responsibility allowance paid to a head teacher, so the transfer was a demotion constituting disciplinary action requiring due process under Article 236.

Reasoning

The respondents agreed that if the transfer took effect the claimant would not be paid the responsibility allowance attached to the head teacher position. Applying the court's definition of demotion as conferment of an office with lower pay or pay scale, the transfer was a demotion and therefore disciplinary action attracting due process of law under Article 236 of the Constitution.

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03

Whether declining KCPE performance justified the demotion

Holding

No - no benchmarks, agreed targets or objective appraisal reports were filed to attribute the poor performance to the claimant.

Reasoning

The respondents relied on consistently declining KCPE performance at Hyrax Primary School for 2011-2013. However, they filed no benchmarks establishing that the poor performance was attributable to the claimant. Without agreed performance targets and an objective individual appraisal report, the alleged poor performance could not ground the demotion.

p. 3

Legal principles established

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  • A demotion is conferment upon an employee of an office or designation with lower pay or lower pay scale, and amounts to disciplinary action attracting due process.
  • Poor performance cannot be attributed to an employee absent agreed targets and an objective individual appraisal report.
  • Giella v Cassman Brown test applies to injunction applications: prima facie case, irreparable injury, balance of convenience.

Court orders

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  1. 1.Pending hearing and determination of the suit, stay of implementation of the claimant's transfer on demotion as conveyed in the letter dated 1.04.2014 Ref. TSC/NKR/288140
  2. 2.Pending hearing and determination of the suit, the claimant to continue serving as head teacher at Hyrax Primary School with full pay and benefits
  3. 3.Respondents to pay costs of the application
  4. 4.Parties invited to take directions on the hearing of the main suit

Authorities

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Legislation

  • Civil Procedure Actsections 3, 3A
  • Civil Procedure RulesOrder 51
  • Employment Actsections 45, 49
  • Constitution of Kenya, 2010Articles 23, 41, 47, 50(1), 236, 237
  • Teachers Service Commission Act2012
  • Teachers Service Commission Code of Regulationsregulations 26(1), 27(3)

Cases cited (1)

  • Giella –Versus- Cassman Brown & Company Limited
    (1973) E.A 358
Jurisdiction invoked
Article 23 of the Constitution; sections 3, 3A Civil Procedure Act; Order 51 Civil Procedure Rules; sections 45 and 49 Employment Act

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, "Gitau Harrison Joshua v Teachers Service Commission & another [2014] KEELRC 1008 (KLR)", Case Analysis (2014). Cause No 129 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1008/eng@2014-05-23

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