Justine Nguma Kitonyo v Teachers Service Commission [2020] KEELRC 611 (KLR)
The bottom line
#A teacher dismissed without being told won his case against the Teachers Service Commission, recovering Kshs. 293,202 plus costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Limitation of time
The claim was filed within time because time began to run in February 2017 when the Claimant learnt of his dismissal; the Respondent did not prove earlier notification.
Section 90 of the Employment Act requires employment claims within three years. Relying on Rika J's decision in Ezekiel Nyangoya Okemwa, time runs from notification of termination. The Respondent placed the dismissal letter in the Claimant's file while he was in custody and never notified him, so it could not rely on its own failure to notify to defeat the claim. The earlier preliminary objection had been overruled by Makau J on 12th April 2018 as raising factual issues.
Whether the dismissal was lawful and fair
The dismissal was wrongful and unfair both procedurally and substantively.
Under Sections 41 and 43 of the Employment Act the employer must prove valid reasons and conduct a fair procedure. The disciplinary hearing proceeded in the Claimant's absence while he was in custody; witnesses merely confirmed hearsay statements with material inconsistencies and were not questioned; the Claimant's written account and the P3 Medical Examination Report, which did not support the allegation, were ignored. The employer therefore fell outside the band of reasonable responses of a reasonable employer.
Remedies
Reinstatement refused; twelve months' salary in compensation and one month's salary in lieu of notice awarded, with certificate of service and costs.
Reinstatement is discretionary and reserved for exceptional circumstances, none of which existed given the lapse of nearly ten years and the Claimant's alternative employment. Compensation of twelve months' salary was fixed taking into account length of service and the Respondent's violation of the law. The claim for salary up to retirement lacked legal basis.
Legal principles established
#- In employment claims arising from termination, limitation time under Section 90 of the Employment Act begins to run when the employee is notified of the termination.
- An employer bears the burden under Section 43 of the Employment Act to prove a valid reason for termination, judged on the range of reasonable responses test, and procedural fairness under Section 41 requires the employee be heard.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was wrongful and unfair (as found by the Court)
- 2.Twelve (12) months' salary in compensation of Kshs. 270,554
- 3.One (1) month's salary in lieu of notice of Kshs. 22,554
- 4.Total judgment of Kshs. 293,202 with interest at court rates from the date of judgment until payment in full
- 5.Issuance of a certificate of service to the Claimant
- 6.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claims arising out of termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justine Nguma Kitonyo v Teachers Service Commission [2020] KEELRC 611 (KLR)", Case Analysis (2020). Memorandum of Claim dated 6th March 2017, filed 7th March 2017 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/611/eng@2020-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.