Monica Jepkorir Kipketer v Teachers Service Commision [2021] KEELRC 2378 (KLR)
The bottom line
#The Employment Court ruled the Teachers Service Commission unfairly dismissed a teacher because it failed to prove she forged a transfer letter or deserted duty.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved that the Claimant used a forged transfer letter
The Court was not persuaded that forgery was proved to the civil standard; the letter's circumstances created doubt, and the respondent had itself acted on the letter for over a year.
The purported author denied the signature and format, but the respondent's Head Office acted on the letter, changed the Claimant's coding, and took over a year to question it. No allegation was made that the Claimant authored or procured the letter. Her explanation that she received it through the Post Office was as plausible as the respondent's own conduct in acting on the letter it later disowned.
Whether the Claimant deserted duty by failing to report back to Kipkaren Primary School
Desertion was not established because it was not proved that the Claimant was properly released from Eldoret Polytechnic back to Kipkaren Primary School.
The release letter dated 31st January 2013 was not copied to the Claimant and no copy was produced in court. The respondent also produced no letter seeking her whereabouts or requiring her to show cause on desertion. Without proof of proper release and notice, the accusation of desertion could not stand.
Whether the summary dismissal was for valid and justifiable reasons
The Court returned a verdict of unfair termination of service because the respondent failed to prove the reasons for dismissal to the required standard.
Section 43 of the Employment Act places the burden of proving reasons for termination on the employer. Since neither the forgery charge nor the desertion charge was satisfactorily proved, the respondent failed to discharge that burden, and the dismissal was unfair.
Whether the respondent was entitled to judgment on its counterclaim for Kshs. 1,392,097.80
The counterclaim was disallowed.
The Court was not persuaded that the Claimant was procedurally released from Eldoret Polytechnic, and there was no evidence of additional efforts by the respondent to trace her. It could not therefore be said she deserted duty while continuing to draw salary.
Legal principles established
#- Under section 43 of the Employment Act, the burden lies on the employer to prove the reasons for termination, and failure to do so renders the termination unfair.
- Proof in civil cases is on a balance of probability.
Court orders
#- 1.Kshs. 191,718 being three months salary in lieu of notice
- 2.Kshs. 383,436 being six months salary as compensation for unfair termination of service
- 3.Costs of the suit to the Claimant
- 4.The respondent to restore the Claimant to the Register of Teachers
- 5.Items (a) and (b) to be subject to taxes and statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 43 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Jepkorir Kipketer v Teachers Service Commision [2021] KEELRC 2378 (KLR)", Case Analysis (2021). Memorandum of Claim filed on 20th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2378/eng@2021-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.