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ELRCAllowedCause No 5 of 2019· [2020] KEELRC 1184 (KLR)

Stella Ndunge Kimatu v Teachers Service Commission [2020] KEELRC 1184 (KLR)

Employment and Labour Relations Court
29 April 2020
3,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that cutting an employee's salary or reversing a promotion without first hearing them is unlawful, and ordered the teacher's full reinstatement.

What this practically means

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Executive summary

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The Claimant, a teacher registered with the Respondent since 2000, sued after the Respondent in May 2018 reversed her promotions (to Graduate Teacher II, Job Group K in 2015, and to Senior Teacher I, Job Group L in 2017) and reduced her salary to that of a Primary Teacher II, without notice or hearing. The Respondent admitted the employment and the reversal but maintained it merely rectified an irregular promotion granted contrary to its Code of Regulations, Schemes of Service and circulars on vacancies, funds and qualifications. The court found the claimed instruments were never produced, so the alleged breach was unsubstantiated, and RW1's own evidence confirmed the claimant held a Bachelor of Education degree and that vacancies and funds existed for pre-8.1.2014 applicants. Both promotions were held regular and lawful, the second being automatic after three years in Job Group K and effected through the payroll even though no promotion letter issued. On the reversal, the court held that Article 47 of the Constitution, section 4 of the Fair Administrative Action Act and section 10(5) of the Employment Act make prior notice, an opportunity to be heard and consultation mandatory before adverse administrative action; RW1 admitted none was given. The reversal was therefore irregular, unfair and unlawful and amounted to demotion, irrespective of the Respondent's motive of correcting an error. Judgment was entered for the Claimant: declarations nullifying the salary reduction and demotion, a permanent injunction against implementing them, and reinstatement to Senior Teacher I, Job Group L with all applicable salary, allowances and benefits. No express costs order appears in the judgment.

Key legal issues

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01

Regularity of the promotions to Job Groups K and L

Holding

Both promotions were regular and lawful; the claimant held the degree, applied on 1.11.2013, and RW1 confirmed a vacancy and funds existed, while the alleged governing instruments were never produced.

Reasoning

The respondent alleged the promotion violated its Code of Regulations, Schemes of Service and circulars but produced none of these as exhibits, so the allegation was unsubstantiated. RW1 admitted the claimant applied on 1.11.2013 and that vacancies and funds were available for pre-8.1.2014 applicants, contradicting the defence pleading. The second, automatic promotion to Job Group L followed from the lawful first promotion and was effected through the payroll.

p. 4
02

Lawfulness of the unilateral reversal of promotions and salary reduction

Holding

The reversal was irregular, unfair and unlawful and amounted to a demotion because the claimant was given no notice, hearing or consultation.

Reasoning

Article 47 of the Constitution, section 4 of the Fair Administrative Action Act and section 10(5) of the Employment Act require prior notice, an opportunity to be heard and consultation before adverse administrative action or contract variation. RW1 admitted the claimant was never notified nor heard. The claimant lost income, status and suffered financial embarrassment. It did not matter that the respondent claimed to be rectifying an irregular promotion.

p. 5
03

Entitlement to reliefs

Holding

The claimant was entitled to the declaratory, restraining and reinstatement reliefs sought.

Reasoning

Having found the promotions lawful and the reversal irregular, unfair and unlawful, the court entered judgment for the claimant in the terms of the amended claim: nullification of the salary reduction and demotion, permanent restraint against implementing them, and reinstatement to Senior Teacher 1, Job Group L with all applicable salary, allowances and benefits.

p. 5

Legal principles established

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  • An employer must consult and hear an employee before taking administrative action that adversely affects the employee's terms, including reversing a promotion or reducing salary.
  • Failure to comply with the Fair Administrative Action Act, section 10(5) of the Employment Act and Article 47 renders a unilateral reversal of a promotion irregular, unfair and unlawful, even if the employer believes it is correcting an irregularity.
  • A contract variation may be effected by conduct; the delay in issuing a promotion letter and paying arrears does not negate a promotion already effected via the payroll.

Court orders

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  1. 1.A declaration that the Respondent's decision to reduce/slash/cut the claimant's salary was unlawful and therefore null and void
  2. 2.A declaration that the Respondent's decision to demote the claimant was unlawful and therefore null and void
  3. 3.An order permanently restraining the respondent, its officers, agents, employees or any other person whomsoever from implementing, proceeding with, or acting on the respondent's decision demoting and reducing/cutting/slashing the claimant's salary and other allowances
  4. 4.An order reinstating the claimant to the position of Senior Teacher 1, Job Group L with all the salary, allowances and benefits applicable thereto

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1) and (2); also Article 10 and Article 50 referred to by the claimant
  • Fair Administrative Action ActSection 4(2) and (3)
  • Employment ActSection 10(5)

Cases cited (3)

  • Melisa Akinyi Ayoyi v Claudio Benaglia t/a Royal Tulia Resort
    [2018] eKLR
  • Judicial Service Commission vs Mbalu Mutava & Another
    [2015] eKLR
  • Nicholas Muturi Okemwa & 8 Others v Judicial Service Commission
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; claim of unlawful demotion and salary reduction); constitutional basis in Article 47 of the Constitution

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, "Stella Ndunge Kimatu v Teachers Service Commission [2020] KEELRC 1184 (KLR)", Case Analysis (2020). Cause No 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1184/eng@2020-04-29

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