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ELRCDismissedNot stated in the judgment· [2016] KEELRC 1780 (KLR)

Herman Musambi v Secretary Teachers Service Commission [2016] KEELRC 1780 (KLR)

Employment and Labour Relations Court
21 January 2016
MOMAUREEN ONYANGO
1,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent, Teachers Service Commission, filed a Preliminary Objection seeking striking out of the Claimant's suit on the ground that it raised no reasonable cause of action against it. It argued that the Claimant's promotion from P1 to S1 grade was awarded by the Ministry of Education, Science and Technology pursuant to a letter dated 22nd December, 1994, and that the same promotion was cancelled by the Ministry following a verification committee report which found 617 promotion letters, including the Claimant's, to be irregular. The Respondent contended that promotion to grades P3, P2, P1 and S1 was a statutory function of the Minister for Education under section 5(2) of the (repealed) TSC Act and Regulations 40(2) and 41(2) of the Code of Regulations for Teachers, so the Ministry, a distinct legal entity, ought to have been sued. The Claimant countered that the cancellation and salary deductions were effected by the Respondent without a hearing, and that the authority relied on by the Respondent was distinguishable. The court, applying the Mukisa Biscuit definition of a Preliminary Objection, held that the objection was a matter of evidence rather than a pure point of law, and that it was uncontested that the Respondent was the Claimant's employer and the one that took the action complained of. An employer acting at the behest of another cannot escape liability; its remedies are to enjoin that other person or seek third party notice against the Ministry. The Preliminary Objection was dismissed with costs in the cause, allowing the suit to proceed to full hearing.

Key legal issues

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01

Whether the Respondent's objection could properly be raised as a Preliminary Objection under the Mukisa Biscuit test

Holding

The objection did not qualify as a Preliminary Objection because it was a matter of evidence rather than a pure point of law.

Reasoning

Applying the definitions by Law JA and Newbold P in Mukisa Biscuit, the court held that a Preliminary Objection must be a pure point of law argued on the assumption that all facts pleaded are correct. The contention that the Ministry of Education, not the Respondent, effected the cancellation depended on ascertaining facts, and it was uncontested that the Respondent was the employer who took the action complained of.

p. 3
02

Whether the suit discloses no reasonable cause of action against the Respondent because the promotion was awarded and cancelled by the Ministry of Education, Science and Technology

Holding

No - the Respondent, being the Claimant's employer and the actor complained of, cannot escape liability; it may enjoin the Ministry or seek third party notice.

Reasoning

The court found that although the Ministry directed the promotion and its cancellation, the Respondent was the employer that implemented the reversal and recovery of salary. Having acted at the behest of another, the Respondent remains liable to the Claimant and must join the Ministry as a party or issue third party notice rather than resist the suit on that basis.

p. 3

Legal principles established

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  • A Preliminary Objection must be a pure point of law; where the issue raised is a matter of evidence, it cannot properly be raised as a Preliminary Objection.
  • An employer that acted at the behest of another person remains liable for the action complained of; its remedy is to enjoin that person or seek third party notice.

Court orders

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  1. 1.The Preliminary Objection filed by the Respondent is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Teachers Service Commission Act (Cap 21, now repealed)section 5(2)
  • Code of Regulations for Teachers (Revised 1986/1989, now repealed)Regulations 40(2) and 41(2)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd -vs- West End Distributors Ltd
    [1969] E.A 696
  • George Orito Okuya -vs- Vegi Vegi Restaurant
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (no specific provision cited in the judgment)

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, "Herman Musambi v Secretary Teachers Service Commission [2016] KEELRC 1780 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1780/eng@2016-01-21

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