Kimilu v Teachers Service Commission (Cause 522 of 2019) [2024] KEELRC 1137 (KLR)
The bottom line
#Kenya's Employment Court dismissed a teacher's unfair termination case, ruling that misused school funds and prolonged unexplained absence justified his dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether desertion of duty was proved
Desertion was not proved as the Claimant had requested a transfer and his whereabouts were known, but he absented himself without leave or lawful cause, amounting to absence without authority/gross misconduct
The Claimant wrote requesting transfer, so he had no intention to abandon employment and could not be deemed to have deserted. However, he failed to prove any threat or danger, and rendered no services from October 2016 to dismissal. The court found the hostility claim overdramatized and unsupported, so his absence was without lawful cause, constituting gross misconduct justifying dismissal.
Whether failure to account for Kshs.1,668,652 was a valid reason
Yes - the Claimant used ICT funds for other purposes without authority, kept no proper books and did not submit accounts for audit, satisfying the employer's burden under Section 43 on a balance of probability
The Standards Assessment Report and 2017 audit showed funds meant exclusively for ICT equipment were diverted, no tender committee or internal controls existed, bouncing and blank cheques were issued, and no books were submitted for audit for 8 years. The Claimant admitted using the funds for other purposes. The employer need only prove reasons it genuinely believed to exist on a balance of probability.
Whether the procedure under Section 41 was followed
Yes - the Claimant received notices to show cause, responded to interdiction letters, was given ample notice of hearings, attended and cross-examined witnesses; procedural threshold was met
The Claimant received the essential documents, was notified of hearings with nearly a month's notice, was heard four times, cross-examined witnesses, and was even given a second chance after failing to attend one hearing. The absence of a BOM-level hearing did not prejudice him. The court found no ambush and concluded Section 41 requirements were satisfied.
Entitlement to reliefs
All reliefs declined: declaration unmerited, reinstatement time-barred under Section 12(3)(vii), dues unproven, damages unsustainable
Having found substantive and procedural fairness, the declaration and damages fell away. Reinstatement lapsed after three years. The alternative claim for dues was not particularised or proved and could not be introduced via submissions, which are neither pleadings nor evidence.
Legal principles established
#- For a termination to pass muster the employer must prove a valid and fair reason and follow a fair procedure
- Desertion requires intention not to return; an employer relying on desertion must show efforts to ascertain the employee's whereabouts
- Submissions are neither pleadings nor evidence and cannot found a judgment
- Reinstatement under Section 12(3)(vii) ELRC Act is unavailable after 3 years from termination
Court orders
#- 1.The Claimant's suit against the Respondent is dismissed.
- 2.Parties shall bear their own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (Section 12) - Employment and Labour Relations Court jurisdiction over employment claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimilu v Teachers Service Commission (Cause 522 of 2019) [2024] KEELRC 1137 (KLR)", Case Analysis (2024). ELRC Cause (Statement of Claim filed 9th August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1137/eng@2024-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.