Calista Kina Gitobu v Teachers Service Commission [2018] KEELRC 2002 (KLR)
The bottom line
#A Kenyan court dismissed a teacher's gratuity claim against the Teachers Service Commission because she produced no evidence proving she was entitled to it.
What this practically means
#Executive summary
#Key legal issues
#Whether the temporary terms of service violated the Constitution/law
The temporary terms did not violate the Constitution or any law; the claimant entered into the engagement on temporary terms voluntarily and failed to correlate the contractual provisions with any violation of fair labour practices or fair administrative action.
The court reasoned that the contractual relationship was an expression of the constitutional right to freedom of association, and the parties had autonomy to agree the terms. The engagement was governed by the offer letters, the Letter of Temporary Appointment and the Code of Regulation for Teachers (Revised 1986), which excluded temporary teachers from pension and confined gratuity to Local Agreement teachers. The claimant did not show she was on Local Agreement or link the terms to any constitutional or statutory violation.
Whether the Claimant was discriminated against
No discrimination was established. The claimant provided no evidence that other employees on the same terms had been paid pension or gratuity, and no regulation limiting temporary appointments to one year was identified.
The court noted the claimant's allegations of discrimination were vague. She did not cite the regulation said to limit temporary appointments to one year. The Act and Regulations expressly excluded temporary-term employees from pension and gratuity. The Director of Pensions' letter merely clarified why amalgamation of pensionable and temporary service was not possible. No comparative evidence of payments to other similarly placed employees was adduced.
Whether late remittance of NSSF contributions amounted to discrimination or loss
No loss or discrimination was demonstrated; contributions were remitted in arrears and no evidence, including a statement of account, showed that what was paid excluded interest.
The claimant contended she lost interest because NSSF deductions were paid late. The court found the issue was resolved when contributions were remitted in arrears, and the claimant failed to lay an evidential foundation that the amounts paid did not include interest. Not even a statement of account was produced to substantiate the alleged loss.
Legal principles established
#- A party who alleges constitutional or statutory violation in an employment relationship must demonstrate and prove it with evidence; failure to do so is fatal to the claim.
- Under Regulation 17(3)(c) and (d) of the Code of Regulation for Teachers (Revised 1986), teachers employed on temporary terms were not eligible for pension, and only those on Local Agreement were eligible for gratuity.
- The Employment Act, 2007 recognises different types of contracts, including contracts of definite and indefinite duration, and does not prohibit engagement on temporary terms.
Court orders
#- 1.Dismissal of the Statement of Claim and the causes of action presented
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Calista Kina Gitobu v Teachers Service Commission [2018] KEELRC 2002 (KLR)", Case Analysis (2018). Cause No 420 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2002/eng@2018-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.