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ELRCDismissedPetition No E169 of 2022· [2023] KEELRC 937 (KLR)

Oiyo v Teachers Service Commission (Petition E169 of 2022) [2023] KEELRC 937 (KLR)

Employment and Labour Relations Court
25 April 2023
2,840 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a retired teacher's bid to stop his retirement, ruling he waited too long and could not get a final remedy early.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 23rd September 2022 in which a retired teacher, formerly of Nyambaria High School, sought a temporary stay of the Teachers Service Commission's notice of retirement issued on 18th February 2021 and an interim order compelling the Commission to resume payment of his salary from August 2022, pending hearing of his petition. The applicant argued that, as a person living with a disability, he was entitled under Circular No. 13 of 2017 to serve until 65 years, and relied on Giella v Cassman Brown, Mrao Ltd and Article 27(4) of the Constitution. The Respondent countered that the applicant retired on attaining age 60 on 1st July 2022, was not registered as a person with disability at the date of retirement, applied late with only disability documentation emerging in July 2022, and that the salary order would amount to final reinstatement relief. The court framed two issues: whether the threshold for the orders was met and whether the orders were final or interlocutory. It found a prima facie case with probability of success on the face of the documents, but held that irreparable loss was not shown since the claim was quantified (Kshs.10,673,460/=) and compensable, and that the balance of convenience did not favour the applicant given his over-one-year delay; the retirement notice had lapsed. The court further held that an order resuming salary would be tantamount to reinstatement, a final remedy not grantable interlocutorily. The Notice of Motion was dismissed with costs in the cause. Judgment delivered virtually at Nairobi on 25th April 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Prima facie case

Holding

A prima facie case with probability of success was demonstrated

Reasoning

Applying Mrao Ltd and Habib Bank AG Zurich, the court found the documents forwarded in July 2022, on their face, suggested the applicant's rights may have been violated, though the earlier two-year extension request on other grounds had been declined. The court did not adjudicate the main petition at this stage, only gauging the strength of the applicant's case.

p. 5
02

Irreparable loss

Holding

Not established

Reasoning

Other than alleging loss of livelihood, no irreparable injury was shown; the applicant quantified his claim at Kshs.10,673,460/= and sought compensation, indicating an adequate remedy in damages. Injury quantifiable in monetary terms is not irreparable under Halsbury's formulation.

p. 6
03

Balance of convenience

Holding

Not demonstrated in the applicant's favour

Reasoning

The delay of over a year in seeking the injunction, and the fact that the notice of retirement had already lapsed, meant the balance of convenience did not favour the applicant. An equitable remedy must be pursued promptly.

p. 6
04

Whether salary-resumption order is interlocutory

Holding

It is a final remedy

Reasoning

Since the applicant's salary was discontinued upon retirement on 1st July 2022, an order to resume payment would be tantamount to reinstatement, a final relief unavailable at the interlocutory stage, following Vivo Energy Kenya Ltd and Kenya Breweries Ltd v Washington O. Okeyo.

p. 6

Legal principles established

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  • An order resuming payment of salary to a retired employee at the interlocutory stage amounts to final reinstatement relief and cannot be granted interlocutorily
  • Temporary injunction is an equitable remedy to be sought without undue delay

Court orders

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  1. 1.The Notice of Motion dated 23rd September, 2022 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • TSC Circular No. 13 of 2017Extension of service for public servants with disabilities

Cases cited (12)

  • Giella v Cassman Brown Co. Ltd
    (1973) EA 358
  • Paul Gitonga Wanjau V Gathuthi Tea Factory Co. Ltd & 2 others
    (2016) eKLR
  • Mrao Ltd V First American Bank of Kenya & 2 others
    (2003) KLR 125
  • Margaret Martha Byama V Alice A. Otwala & 3 others
    (2016) eKLR
  • Olive Mwihaki Mugenda & another V Okiya Omtata Okoiti & 4 others
    (2016) eKLR
  • Dennis Nyagaka Ratemo V The Kenya Film Commission & another
    (2014) eKLR
  • Nguruman Ltd V Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Habib Bank AG Zurich V Eugene Marion Yakub
    CA No. 43 of 1982
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Bryan Chebii Kipkoech V Barnabas Tuitoek Bargoria & another
    (2019) eKLR
  • Vivo Energy Kenya Ltd V Maloba Petrol Station Ltd & 3 others
    null
  • Kenya Breweries Ltd & another V Washington O. Okeyo
    (2002) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Employment and Labour Relations Court (petition alleging violation of rights, incl. Article 27(4) of the Constitution of Kenya, 2010)

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, "Oiyo v Teachers Service Commission (Petition E169 of 2022) [2023] KEELRC 937 (KLR)", Case Analysis (2023). Petition No E169 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/937/eng@2023-04-25

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