Nyang'au Erick Nyakundi v Secretary Teachers Service Commission [2016] KEELRC 1417 (KLR)
The bottom line
#Kenya's Employment Court ordered the Teachers Service Commission to re-employ a teacher it had fired without a hearing or proof of the stated reason.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant met the minimum qualifications for appointment as a graduate teacher
The Respondent failed to establish that the Claimant did not meet the relevant qualifications based on the documents he submitted at recruitment
The Respondent did not submit the Claimant's transcripts to prove non-compliance, did not explain why it took two years to discover the alleged deficiency, and relied on November and December 2011 checklists even though the Claimant was appointed on 30th August 2010. No evidence showed the 2010 requirements matched the 2011 guidelines. RW1 also confirmed the Respondent held all the Claimant's documents but did not produce them to the court.
Whether the termination complied with due process
The termination was procedurally unfair: the Claimant was neither informed of the intention to terminate nor given a chance to respond, and the Section 41 procedure was not followed
The termination letter did not specify how or which requirements the Claimant failed to meet. The Claimant was never advised of the intention to terminate so as to enable him confirm his qualifications. The Respondent ignored its own disciplinary process in the Code of Regulations and breached Section 41 of the Employment Act. The stated reason was also unproven, breaching Section 43.
Entitlement to reinstatement
Reinstatement was refused as out of time under the Industrial Court Act, but re-employment was ordered as an alternative remedy
The Industrial Court Act limits reinstatement orders to within 3 years of termination, which had lapsed. However, the Employment Act provides re-employment as an alternative, and RW1 testified that similarly terminated teachers were re-engaged on production of relevant documents. The Respondent's authorities were distinguished as decided before the Employment Act and Industrial Court Act conferred reinstatement jurisdiction on this court, or as irrelevant to the prayers sought.
Legal principles established
#- An employer must inform an employee of the reasons for intended termination and give the employee an opportunity to be heard, per Section 41 of the Employment Act
- An employer bears the burden of proving valid reasons for termination under Section 43 of the Employment Act
- The Industrial Court (now Employment and Labour Relations Court) has jurisdiction to order reinstatement, derived from the Employment Act and the Industrial Court Act
Court orders
#- 1.The Respondent to re-employ the Claimant and place him at the level he would have attained as at the date of re-employment had his employment not been terminated on 1st August, 2012, with re-employment to be effected within 30 days from the date of judgment and subject to the Claimant producing all relevant requirements and satisfying that he holds the relevant minimum qualifications
- 2.The Respondent to pay the Claimant salary in lieu of notice with interest from the date of filing suit at court rates
- 3.The Respondent to pay the Claimant's costs of the suit
- Jurisdiction invoked
- Employment Act and Industrial Court Act (Employment and Labour Relations Court jurisdiction over unfair termination claims)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic ex parte Nicky Odongo Lubanga v The Kenya Medical Laboratory Technicians and Technologist Board & Abel Onyango[2017] KEHC 9675 (KLR)6 Dec 2017
Cite this brief
#Cite this brief
Caselaw, "Nyang'au Erick Nyakundi v Secretary Teachers Service Commission [2016] KEELRC 1417 (KLR)", Case Analysis (2016). Cause No. 9 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1417/eng@2016-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.