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ELRCPartially AllowedELRC Petition 83 of 2018 (Consolidated with Cause 288 of 2018)· [2020] KEELRC 596 (KLR)

Onindo & 5 others v Teachers Service Commission & 3 others (Petition 83 & 288 of 2018) [2020] KEELRC 596 (KLR)

Employment and Labour Relations Court
30 July 2020
OMOnesmus N. Makau
4,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenyan employers must give written reasons and a hearing before demoting or adversely transferring staff, even when the underlying decision is justified.

What this practically means

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Executive summary

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Petition 83 of 2018 and Cause 288 of 2018, consolidated on 23 January 2019, were brought by six teachers initially employed as primary school teachers by the Teachers Service Commission who were later deployed as lecturers at Migori Teachers Training College. In July 2018 the TSC transferred them back to undisclosed primary schools within Migori County. They contended the transfers were unlawful, a demotion, discriminatory and effected without reasons or a hearing, seeking declarations, certiorari, reversal of the transfers and damages. The TSC countered that the original deployments to the TTC were themselves irregular and unprocedural (done without vetting of qualifications, without staffing panel approval under regulation 65(3) of the Code of Regulations for Teachers, and by an officer who was later disciplined), so the reversals were lawful and did not amount to demotion since salaries and allowances would remain unchanged. The court (Makau J) framed four issues and held that the transfers were administrative action amounting to a demotion because they reduced the teachers' status; that they were unlawful for breach of sections 4(1), (2) and (3) of the Fair Administrative Actions Act and Article 47, no written reasons having been given and no hearing afforded; and that Articles 41 and 47 were violated. However, the teachers failed to prove discrimination or violation of Articles 27, 28 and 29. Declarations issued and each of the three petitioners was awarded Kshs.300,000 general damages, but the court declined to reverse or quash the transfers because there was justifiable reason for them, and awarded no costs as the parties remain in an employment relationship.

Key legal issues

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01

Whether the transfers amounted to an administrative action

Holding

Yes - the transfer back to primary schools reduced the teachers' status (a demotion) and detrimentally affected them, hence an administrative action.

Reasoning

The court adopted the ordinary meaning of demotion as reduction in rank or status. Even without salary reduction, moving from TTC lecturer to primary school teacher reduced their social standing. Applying section 2 of the Fair Administrative Actions Act, the decision had a detrimental effect on their legal rights and interests and was therefore administrative action.

p. 5
02

Whether the transfers were unlawful

Holding

Yes - the TSC failed to give written reasons or a hearing as required by sections 4(1), (2) and (3) of the Fair Administrative Actions Act and Article 47.

Reasoning

The transfer letters did not state reasons nor afford the teachers an opportunity to be heard, despite the action being adverse (a demotion). Even though the TSC had justified reasons for reversing the irregular original deployments, procedural fairness was mandatory; a decision made without following prescribed procedure will be impugned regardless of its substantive merits.

p. 5
03

Whether Articles 27, 28 and 29 were violated

Holding

No - the teachers failed to prove discrimination, malice or unreasonable treatment; the transfer was a genuine reversal of irregular deployments.

Reasoning

The respondent demonstrated a genuine reason for reversing the irregular transfers, so the transfers were not a witch hunt or malicious. Arguments about underutilization of graduate resources could only arise if the original promotion had been lawful. In both the promotion and demotion the wrong procedure was used, but that did not establish discrimination.

p. 6
04

Whether the orders sought should be granted

Holding

Declarations granted and damages awarded to petitioners only; reversal/quashing of transfers refused on substantive justification grounds.

Reasoning

Having established breach of due procedure and violation of Articles 41 and 47, the court issued declarations. However, because there was a justifiable reason for the return to primary schools (the original deployments were irregular and disciplinary action was taken against the officer), the court declined to reverse the transfers or quash them by certiorari, awarding instead Kshs.300,000 general damages to each petitioner.

p. 6

Legal principles established

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  • The Fair Administrative Action Act and Article 47 of the Constitution apply to contracts of employment; an employer must give written reasons and a hearing before an administrative action such as a transfer that adversely affects an employee.
  • A transfer that reduces an employee's status is a demotion and an administrative action, and is unlawful if made without complying with section 4 of the Fair Administrative Action Act, even where the decision-maker has valid substantive grounds.

Court orders

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  1. 1.A declaration that the Respondent's decision dated 13th July 2018 violated the Petitioners rights and fundamental freedoms under article 41 and 47 of the Constitution.
  2. 2.A declaration that the transfer of the Claimants is unlawful and unfair.
  3. 3.Each of the 3 petitioners is awarded Kshs.300000 as general damages for violation of their rights under Article 41 and 47 of the constitution.
  4. 4.Declined to reverse/quash the transfers; declined to award costs because the parties are still in employment relationship.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 29, 41, 47, 201(d), 236, 23
  • Fair Administrative Actions ActSection 2, section 4(1),(2),(3), section 6
  • Code of Regulations for TeachersRegulations 55, 63(2), 65(1), 65(2), 65(3)
  • Employment ActSections 41, 42, 44, 45, 46, 47 (Part IV)
  • TSC Policy on Post Basic Qualification, 2006null
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Judicial Service Commission vs. Mbalu Mutava & Another
    [2015] eKLR
  • Naomi Connie Lusiche vs. Barclays Bank of Kenya
    [2018] eKLR
  • Silvanus Lukoko Were v Ministry of Lands & Physical Planning & Another
    [2020] eKLR
Jurisdiction invoked
Article 23 of the Constitution (Employment and Labour Relations Court jurisdiction)

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, "Onindo & 5 others v Teachers Service Commission & 3 others (Petition 83 & 288 of 2018) [2020] KEELRC 596 (KLR)", Case Analysis (2020). ELRC Petition 83 of 2018 (Consolidated with Cause 288 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/596/eng@2020-07-30

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