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ELRCPartially AllowedCause Number 1783 of 2014· [2017] KEELRC 1811 (KLR)

Omariba Elijah Kemonde v Secretary Teachers Service Commission [2017] KEELRC 1811 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
10 February 2017
JAJ. N. Abuodha
1,287 words in judgment
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The bottom line

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A Kenyan court ordered the Teachers Service Commission to give a teacher priority in future recruitment after a missed job offer, but refused reinstatement.

What this practically means

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Executive summary

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The claimant, a teacher employed by the Teachers Service Commission on contractual terms from 27th September 2010 and posted to Sheikh Ali High School in Mandera County, had his services terminated with effect from 1st February 2012 for lacking the requisite academic qualifications (a grade of C- in English, a teaching subject, at KCSE). Following a government conversion of contractual teachers to permanent and pensionable terms, he undertook a bridging course, met the requirements, and was reinstated and redeployed by letter dated 20th September 2012. The claimant alleged he never received the appointment letter, which the respondent said had been posted to the contact address he supplied (his former school's address), and that his failure to report within thirty days of 1st October 2012 caused the offer to lapse and be forfeited. The claimant attributed his delay to tribal clashes between Mandera and Wajir, impassable rainy-season roads, and harassment by his former Principal. The court characterised the case as one of possible miscommunication and misapprehension of the claimant's personal circumstances, faulted the respondent for its inflexibility and for failing to investigate the harassment allegations, but declined reinstatement since the job offer had lapsed. It directed the respondent to give the claimant priority in recruitment at the next available exercise, with no order as to costs. Judgment was delivered at Nairobi on 10th February 2017 by Abuodha J.

Key legal issues

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01

Whether the claimant's employment offer lapsed and whether reinstatement could be ordered

Holding

The court found the case to be one of miscommunication and misapprehension of the claimant's personal circumstances; it declined reinstatement because the offer had lapsed but directed that the claimant be given recruitment priority.

Reasoning

The claimant had been terminated for lacking requisite qualifications, later fulfilled them and was reinstated, but the appointment letter posted to his former school's address may never have reached him. Having moved to Kisii amid insecurity and impassable roads in Mandera, his delay was plausible. The court balanced the lapsed offer against the claimant's legitimate career ambitions and the respondent's failure to address harassment complaints.

p. 2
02

The respondent's obligation to investigate allegations of threats and harassment

Holding

The respondent erred in ignoring the claimant's allegations of threats and harassment by the Principal of his former school without tabling any evidence of cross-checking them.

Reasoning

The claimant raised serious allegations against the Principal, including being chased away on 19th November 2012 and pressure to clear from the school. The respondent produced no evidence demonstrating any inquiry into these allegations, which the court treated as an issue the respondent should not have ignored when assessing the claimant's failure to report.

p. 2

Legal principles established

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  • An employer ought to exercise flexibility where difficulty or delay in receiving an appointment letter is attributable to the employee's understandable personal circumstances.
  • Serious allegations of harassment of an employee by a school principal, raised by the claimant, cannot be ignored by the employer without evidence to cross-check their veracity.

Court orders

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  1. 1.The court declined to order reinstatement since the claimant's new job offer had lapsed before he could take it up
  2. 2.The respondent is directed to give priority to and recruit the claimant as a teacher at the next available recruitment exercise
  3. 3.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)

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, "Omariba Elijah Kemonde v Secretary Teachers Service Commission [2017] KEELRC 1811 (KLR)", Case Analysis (2017). Cause Number 1783 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1811/eng@2017-02-10

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