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ELRCPartially AllowedCause No 336 of 2017· [2021] KEELRC 1726 (KLR)

Kevin Otieno Onyango v BOG Life Centre High School [2021] KEELRC 1726 (KLR)

Employment and Labour Relations Court
19 May 2021
RSRadido Stephen
856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court voided a teacher's employment contract because he lacked Teachers Service Commission registration, but still awarded him three months' unpaid stipend.

What this practically means

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Executive summary

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The Claimant, a Pastor and School Administrator, sued the Board of Governors of Life Centre High School alleging unlawful summary dismissal, unfair termination and withholding of dues under the Employment Act. The Respondent denied an employment relationship, contending in the alternative that the Claimant was a volunteer at a school the church was establishing, paid only a monthly stipend of Kshs 20,000/-. The Claimant relied on a contract dated 11 January 2016, which the Respondent disputed as unsigned. The Court, applying Article 237 of the Constitution and section 23(2) of the Teachers Service Commission Act, held that without proof of registration with the Teachers Service Commission, the contract for service as Principal or teacher was void, and inferred that the Claimant was at most a volunteer entitled to a stipend. It followed that no finding of unfair termination or desertion arose, and claims for accrued leave, underpayments, house allowance, commuter allowance and overtime failed, both for want of evidential basis and because such entitlements accrue to employees under a contract of service. The Court allowed only the claim for 3 months' unpaid stipend, awarding Kshs 60,000/-, noting the Respondent's witness had conceded willingness to pay the arrears. Noting that both parties filed submissions long after agreed timelines, the Court ordered each party to bear its own costs. The claim thus partially succeeded on a single head.

Key legal issues

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01

Whether a person engaged to teach without Teachers Service Commission registration can maintain a contract of employment

Holding

The contract of employment was void for want of registration with the Teachers Service Commission

Reasoning

Article 237 of the Constitution vests registration of trained teachers in the Teachers Service Commission, and section 23(2) of the Teachers Service Commission Act bars anyone from engaging in teaching service unless registered. The Claimant did not demonstrate registration, so the contract was void. Without a valid contract of service, claims premised on unfair termination and employment benefits fall away.

p. 2
02

Whether the Claimant was an employee or a volunteer

Holding

At most, the Claimant was a volunteer entitled to a monthly stipend of Kshs 20,000/-

Reasoning

Having found the contract void, the Court inferred that the relationship was that of a volunteer receiving a stipend. Consequently, neither unfair termination nor desertion of a contract of service could arise, and heads of claim accruing to employees under a contract of service were not available.

p. 2
03

Whether the unpaid 3-months stipend was payable

Holding

The Respondent was ordered to pay the equivalent of 3 months' stipend, Kshs 60,000/-

Reasoning

The Claimant testified that he was owed 3 months' stipend at separation, and the Respondent's witness conceded a willingness to pay the arrears out of good heart. The Court allowed this head of the claim.

p. 2

Legal principles established

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  • A contract to employ a person as a teacher where that person is not registered by the Teachers Service Commission is void

Court orders

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  1. 1.Declared that the contract between the Claimant and Respondent for the Claimant to serve as a Principal or teacher was void
  2. 2.Declared that the Respondent was not in breach of contract in respect of accrued leave, underpayments, house allowance, commuter allowance and overtime
  3. 3.Declared that the Respondent owes the Claimant the equivalent of 3-months stipend
  4. 4.Awarded the Claimant Kshs 60,000/- being 3-months stipend
  5. 5.Ordered each party to bear own costs

Authorities

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Legislation

  • Employment Actsections 43(1), 44(2), 45(1), (2) & (4)(a) & (b), 25(1) & (2)
  • Constitution of KenyaArticle 237
  • Teachers Service Commission Actsection 23(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 43(1), 44(2), 45(1), (2) & (4)(a) & (b) and 25(1) & (2)) as pleaded in the Issue in Dispute

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, "Kevin Otieno Onyango v BOG Life Centre High School [2021] KEELRC 1726 (KLR)", Case Analysis (2021). Cause No 336 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1726/eng@2021-05-19

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