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ELRCDismissedCause No 158 of 2013· [2023] KEELRC 603 (KLR)

Makutwa v Godrick & 2 others (Cause 158 of 2013) [2023] KEELRC 603 (KLR)

Employment and Labour Relations Court
15 March 2023
1,222 words in judgment
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The bottom line

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Kenya's Employment Court upheld a teacher's dismissal and confirmed that employees cannot claim salaries they would have earned up to retirement.

What this practically means

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Executive summary

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The Claimant, a teacher, sued six Respondents alleging unfair termination of employment by the Teachers Service Commission following a complaint received on 5 October 2009 that he had sexually assaulted a pupil. After preliminary investigations at which he was present and for which he recorded a 14-page statement, he was interdicted on 10 November 2009, responded in writing, and was invited to a disciplinary hearing on 14 June 2010 which he did not attend. He appealed, and was notified of the outcome on 1 February 2011. He alleged procedural unfairness, claiming he was never served with summons, the interdiction letter or the hearing invitation, and that his appeal to the Teachers Service Appeal Tribunal was ignored. The Court found that service through his last known postal address - an address previously used successfully - was effective and that the Commission substantially complied with sections 35(1) and 41 of the Employment Act, 2007, the Code of Regulations for Teachers and natural justice. On substantive fairness, the claimant's own statement contained admissions of a sexual relationship with a pupil, and his allegation of coercion was not raised in his witness statement. The Court held the Commission proved valid and fair reasons under sections 43 and 45. His claim for lost income of Kshs 5,093,760/- to retirement age was rejected as speculative, applying Bank of Uganda v Tinkamanyire. The Court declared the dismissal fair and dismissed the Cause with no order on costs, considering the claimant had not secured alternative employment.

Key legal issues

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01

Procedural fairness in disciplinary proceedings

Holding

The Commission substantially complied with procedural fairness requirements; service of the invitation through the claimant's last known postal address was effective

Reasoning

The invitation and interdiction letters were sent to the claimant's last known postal address, which had previously been used successfully. The claimant responded in writing to the interdiction and appealed, with the appeal outcome communicated on 1 February 2011. He did not demonstrate a formal appeal to the Teachers Service Appeal Tribunal. The Court found substantial compliance with sections 35(1) and 41 of the Employment Act, the Code of Regulations for Teachers and natural justice.

p. 3
02

Substantive fairness and burden of proof

Holding

The Commission proved valid and fair reasons for dismissal based on the claimant's own admitted statement

Reasoning

Sections 43 and 45 of the Employment Act place the burden on the employer to prove validity and fairness of reasons. The claimant's 16 October 2009 statement contained admissions of a sexual relationship with a pupil and a proposed marriage. His assertion of coercion at trial was not raised in his witness statement, and the statement itself indicated he wrote it willingly. This breached the Code of Regulation for Teachers.

p. 3
03

Lost income claim

Holding

Lost income to retirement age is not recoverable

Reasoning

The claimant sought Kshs 5,093,760/- being remuneration he would have earned to normal retirement age. Following the Supreme Court of Uganda in Bank of Uganda v Tinkamanyire, compensation for the remainder of the years to retirement is unattainable in law and such claims are speculative. The claim fails.

p. 3

Legal principles established

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  • Lost income for the unexpired period to retirement is not compensable; such claims are speculative

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was fair
  2. 2.The Cause is dismissed with no order on costs

Authorities

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Legislation

  • Employment Actsections 35(1), 41, 43, 45
  • Code of Regulations for Teachersnot specified

Cases cited (1)

  • Bank of Uganda v Tinkamanyire
    (2008) UGSC
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Cause)

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, "Makutwa v Godrick & 2 others (Cause 158 of 2013) [2023] KEELRC 603 (KLR)", Case Analysis (2023). Cause No 158 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/603/eng@2023-03-15

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