Gitau Harrison Joshua v Teachers Service Commission & another [2015] KEELRC 817 (KLR)
The bottom line
#Kenya's Employment Court ruled the Teachers Service Commission could transfer a headteacher but could not demote him without consent or due process.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer of the Claimant from Hyrax Primary School to Menengai Primary School was lawful
The transfer was lawful; the TSC had authority to transfer him, but as Headteacher, since he did not request the transfer
Article 237(2)(c) and (d) expressly authorise the TSC to assign, promote and transfer teachers. Regulation 27(3) reserves a discretionary power to transfer without request, while regulation 27(5)(a)(iii) governs deployment of holders of administrative posts such as Headteacher. The court found the TSC had contractual and statutory authority to transfer the Claimant to another school provided he remained Headteacher.
Whether deployment as Assistant Teacher was lawful
The deployment as Assistant Teacher was unlawful, null and void, being a demotion to a non-existent position without due process
Neither the TSC Act, 2012 nor the Code of Regulations defines a category or grade of Assistant Teacher, so the position appears non-existent. Demotion to a lower position could only be at the Claimant's request. Article 236(b) protects public officers from demotion or reduction in rank without due process, and the evaluation exercise by TAC tutors was not a disciplinary hearing. Alternatively, the change was a fundamental unilateral variation of the contract without consent.
Whether the exercise by TAC tutors on 27 January 2014 amounted to due process
It was not a disciplinary process; if it was to ground action against the Claimant, he was entitled to a hearing
The exercise was purely investigative, aimed at establishing the cause of declining performance at Hyrax Primary School. The Respondents did not allege any breach of a standard or Code or point to any disciplinary proceedings against the Claimant. The evaluation could not substitute for a disciplinary hearing.
Legal principles established
#- A public officer may not be removed from office, demoted or reduced in rank without due process (Article 236(b))
- An employer cannot unilaterally and fundamentally vary an employee's contract; such variation requires the employee's consent
- A public employer cannot deploy an employee to a position unknown in the relevant law or contract; deployment to a lower position requires the employee's request
Court orders
#- 1.Declaration that the deployment of the Claimant as Assistant Teacher was unlawful, null and void
- 2.The 1st Respondent to compute and pay the Claimant any financial loss, benefits or allowances lost as a result of its actions up to the date of judgment
- 3.Claimant denied costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair labour practices and violation of constitutional rights under Articles 236 and 41 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau Harrison Joshua v Teachers Service Commission & another [2015] KEELRC 817 (KLR)", Case Analysis (2015). Cause filed 2 May 2014 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/817/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.