Stephen Koech v Teachers Service Commission [2017] KEELRC 1979 (KLR)

The primary documents (the 1977 Temporary Appointment letter and the 1979 Agreement) expressly provided there was no guarantee of permanent employment. The scheme of service and the Code of Regulations required professional qualifications for appointment to permanent and pensionable terms or Graduate/Approved Teacher positions, which the Claimant, an Untrained Teacher, did not hold. Conduct evidenced by Pay Change Advices was secondary and could not override the primary documents. The Claimant's continued requests for confirmation after the purported conversion showed he knew he was not confirmed.

The Court held the purported promotion and salary adjustments could not form the basis of a genuine misrepresentation. The Claimant was aware of the qualification requirements, as shown by his repeated requests for confirmation into permanent and pensionable terms in 2001, after the purported conversions. His claim that he rescinded his decision to pursue a postgraduate diploma in education on the strength of the upgrades therefore failed.

Having found the contract was never converted, the Court held that rectification of the erroneous upgrading after notice to the Claimant was not a breach. The Claimant was given notice of the cancellations in January 2002 and raised no specific complaints against the revocation until after his retirement in 2004, so the rectification was not unilateral or wrongful.

The Counterclaim was brought in 2014, nine years after the Respondent noticed the mistake in 2002, and after the Claimant had retired in 2004. The Respondent allowed the Claimant to retire without diligently recovering the balances, and the mistake leading to the payments was attributable to the Respondent itself. Recovery would therefore be unconscionable.