Jane Wambui Gathuru v Teachers Service Commission & another [2020] KEELRC 613 (KLR)
The bottom line
#Kenya's Employment Court ruled a teacher was only acting Principal, dismissed her suit and contempt claim, and costs went to the Teachers Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit, commenced by Notice of Motion under Rule 4 of the 2013 Practice and Procedure Rules, was properly before the Court
The suit was defective since a Notice of Motion is not a recognised originating process, but the Court entertained it on the merits under Article 159 rather than striking it out
Rule 4 of the ELRC (Procedure) Rules requires suits to be commenced by Statement of Claim, and Rule 7 requires petitions to follow the Mutunga Rules, under which Rule 10 mandates a petition in Form A. A Notice of Motion fits neither. However, since parties had argued the matter to near conclusion, the Court invoked Article 159 to determine substantive merits without undue regard to procedural technicalities.
Whether the Applicant was substantively appointed Principal or deployed temporarily in an acting capacity
The Applicant was deployed temporarily as Principal until further notice following the retirement of the substantive Principal; she was never substantively appointed
The deployment letter of 4th July 2018 was expressly temporary; the Applicant signed BOM minutes of 13th July 2018 as Acting Principal; her pay was adjusted to Deputy Principal status under the CBA; she ranked last on the March 2017 merit list; and she signed a re-designation sheet seeking Deputy Principal designation. The Court found the prayer for a transfer letter would compel designation as Principal outside the career progression framework.
Whether the Respondents were guilty of contempt of the interim orders of 5th February 2019
No contempt established: the order was ambiguous as to its duration ('until then'), and the status quo at service of the order was that the 2nd Respondent had already reported to the School as Principal on 30th January 2019
The ex parte order granting 'Prayer 2' 'to last until then' created ambiguity between lasting until the inter partes hearing on 20th February 2019 and until final determination. The Court found the Respondents' understanding plausible. Further, the prevailing status quo was that the 2nd Respondent had reported as Principal by 30th January 2019 and the Applicant had signed an entry and exit report confirming this, so the Respondents maintained the status quo prevailing at the time of service.
Legal principles established
#- A Notice of Motion is not a recognised originating process in the ELRC unless specifically provided for by statute, but the Court may nonetheless determine the merits under Article 159
- To cite a party for contempt, the order must be clear and unambiguous, duly served, and the disobedience wilful; an ambiguous order cannot found contempt
- Courts should not take over or exercise the managerial prerogatives of the employer at the workplace
Court orders
#- 1.The Originating Motion dated 5th February 2019 is dismissed
- 2.The Contempt Application (Notice of Motion dated 15th March 2019) is dismissed
- 3.Costs of both applications awarded to the Respondents
- Jurisdiction invoked
- Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, read with the Employment and Labour Relations Court Act and Rules; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wambui Gathuru v Teachers Service Commission & another [2020] KEELRC 613 (KLR)", Case Analysis (2020). Misc Application No 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/613/eng@2020-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.