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ELRCPartially AllowedAppeal against Kisumu CMCC Cause Number 88 of 2019 (with cross-appeal dated 27th September 2021, consolidated)· [2022] KEELRC 363 (KLR)

Teachers Service Commission v Timothy Onyango Olale [2022] KEELRC 363 (KLR)

Employment and Labour Relations Court
4 April 2022
CBChristine N. Baari
2,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court cut a teacher's unfair dismissal payout in half and wiped out salary arrears, confirming reinstatement is never guaranteed.

What this practically means

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Executive summary

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This is a first appeal and consolidated cross-appeal from the Kisumu Chief Magistrates Court, which had declared the claimant teacher's dismissal unfair and unlawful, declined reinstatement, awarded salary arrears from September 2017 to 7 June 2021 at Kshs. 62,527 per month, and awarded twelve months' salary as general damages. The Teachers Service Commission appealed the awards; the claimant cross-appealed against the refusal to reinstate him. The court, exercising first-appeal jurisdiction, re-evaluated the evidence and upheld the finding that the reasons for dismissal were not entirely proved, there being disagreement among the appellant's investigative bodies, though the claimant's admitted conduct with a learner contributed to his dismissal. The court held that salary arrears are attendant on reinstatement; since reinstatement was declined, the award of salary arrears for a period when no services were rendered was unjustified and was set aside in its entirety. The twelve months' compensation was reduced to six months' salary at Kshs. 62,527 per month because the trial court failed to consider the Section 49 factors and the claimant contributed to his dismissal. On the cross-appeal, the court upheld the refusal of reinstatement, noting the three-year limitation in Section 12(3)(vii) of the ELRC Act and the eroded trust between the parties. Each party was ordered to bear its own costs of the appeals.

Key legal issues

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01

Award of salary arrears where reinstatement is declined

Holding

The award of salary arrears from September 2017 to 7 June 2021 was set aside in its entirety; salary arrears are attendant to reinstatement and unjustifiable for a period when no services were rendered

Reasoning

Reinstatement restores an employee to the position they would have occupied absent dismissal, including withheld salaries and benefits. The claimant would only have benefited from salary arrears had he been reinstated. Compensation for a period when the claimant did not work would amount to unjust enrichment, and the trial court gave no reasons justifying the award for the period without service.

p. 3
02

Award of 12 months' salary as damages

Holding

Substituted with 6 months' salary at Kshs. 62,527 per month, because the trial court failed to consider the Section 49 factors and the claimant largely contributed to his dismissal

Reasoning

Sections 49 and 50 of the Employment Act regulate compensation. Although the reasons for dismissal were not entirely proved and there was an element of unfairness, the claimant admitted being at a resort and drinking with his learner. The maximum award without considering the 13 factors in Section 49 was unjustified.

p. 4
03

Whether the trial court erred in declining reinstatement (cross-appeal)

Holding

Cross-appeal dismissed; the trial court's decision declining reinstatement was upheld

Reasoning

Dismissal was effective 10 July 2018 and judgment delivered 8 June 2021, one month short of three years. Section 12(3)(vii) of the ELRC Act limits reinstatement to within three years of dismissal. Reinstatement is discretionary, involving balancing the parties' interests; time lapse and eroded trust were justified reasons for declining it.

p. 4

Legal principles established

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  • Salary arrears are an attendant relief to reinstatement; where reinstatement is declined, an award of salary arrears for a period when services were not rendered is unjustified
  • Maximum compensation for unfair dismissal is unjustified where the employee contributed to the dismissal; the factors in Section 49(4) of the Employment Act must be considered
  • Reinstatement is a discretionary remedy, not an automatic right
  • On a first appeal, the court re-assesses and re-evaluates the entire evidence and arrives at its own conclusions, while respecting the lower court's findings of fact

Court orders

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  1. 1.The Trial Court's award of salary arrears from September, 2017 to 7th June, 2021 is set aside in its entirety
  2. 2.The Trial Court's award of 12 months' salary in damages is set aside and substituted with 6 months' salary in compensation for unfair dismissal at Kshs. 62,527/- per month
  3. 3.The Trial Court's decision declining reinstatement of the Respondent/Claimant is upheld
  4. 4.Each party shall bear their own costs of the appeals

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 45, 47, 49, 49(4), 50
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Code of Conduct for Teachers, 2015
  • Teachers Service Commission RegulationsRegulation 148(h)

Cases cited (9)

  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    Nairobi Civil Appeal No. 66A of 2017
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    Nyeri Civil Appeal No. 29 of 2016 (2017) eKLR
  • Kridha Limited v Peter Salai Kituri
    Msa Civil Appeal No. 27 of 2019 (2020) eKLR
  • Musera vs. Mwechelesi & Another
    [2007] KLR 159
  • Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others
    (2008) 12 B.L.L.R 1129 (CC)
  • Abraham Gumba v Kenya Medical Supplies Authority
    (2014) eKLR
  • Lawrence Onyango Oduori v Kenya Commercial Bank Ltd
    (2014) eKLR
  • Kenya Chemical Allied Workers Union v National Cement Company Limited
    (2014) eKLR
  • Sotik Highlands Tea Estates Limited v Kenya Plantations and Agricultural Workers Union
    Nyeri Civil Appeal No. 23 of 2017 (2017) eKLR
On appeal from
Kisumu Chief Magistrates Court
Cause Number 88 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's employment cause (ELRC Act, Section 12(3)(vii) considered on reinstatement powers)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Teachers Service Commission v Timothy Onyango Olale [2022] KEELRC 363 (KLR)", Case Analysis (2022). Appeal against Kisumu CMCC Cause Number 88 of 2019 (with cross-appeal dated 27th September 2021, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/363/eng@2022-04-04

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