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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court claim filed April 2019, Amended Memorandum of Claim dated 17th July 2019)· [2024] KEELRC 1225 (KLR)

Mberia v Teachers Service Commission (Cause 390 of 2019) [2024] KEELRC 1225 (KLR)

Employment and Labour Relations Court
7 May 2024
NMNzioki wa Makau
3,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a teacher's dismissal unfair because she was never heard, awarding only three months' salary despite valid misconduct reasons.

What this practically means

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Executive summary

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The Claimant, a Graduate Teacher employed by the Teachers Service Commission since 1992 and serving as Assistant Deputy Director, was dismissed summarily on 12th November 2018 for irregularly transferring teachers to Teachers Training Colleges without Staffing Committee approval. She sued for declarations of unfair termination and a raft of terminal dues exceeding Kshs 30 million. The Respondent defended the dismissal as lawful, justified and fair, and counterclaimed Kshs 846,776.25 as salary overpaid after dismissal owing to an administrative error. The court framed three issues: whether the dismissal was wrongful, unfair and unlawful; the Claimant's entitlement to reliefs; and the Respondent's entitlement on the counterclaim. The court held the Respondent had substantive justification, since the reason for termination was the employee's refusal to obey a lawful order, but faulted the Respondent for denying the Claimant a hearing, as she was interdicted and terminated in absentia without an opportunity to defend herself, rendering the termination unfair under sections 41, 43, 45 and 47 of the Employment Act. On remedies, most heads failed: pension had been paid in excess of the claim, notice pay was received, interdiction half salary was due under the Code of Regulation for Teachers, severance applies only to redundancy, and NSSF claims were unproven; anticipatory salary for unrendered service was rejected. The counterclaim failed as the continued payroll payments were the Respondent's fault. Judgment was entered for the Claimant for 3 months' compensation of Kshs 585,744/-, with costs limited to that sum and interest from the date of judgment; the counterclaim was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant's summary dismissal was substantively justified and procedurally fair

Holding

The Respondent had a valid reason (refusal to obey a lawful order on transfers) but the process was unfair because the Claimant was not given a chance to defend herself

Reasoning

The court accepted the Respondent had reason to terminate given the Claimant's insistence on effecting transfers despite a caution memo. However, the Respondent circumvented her right to a fair hearing: she was suspended and dismissed in absentia without being given a chance to defend herself, contrary to the rules of natural justice and sections 41, 43, 45 and 47 of the Employment Act, rendering the termination ipso facto unfair.

p. 6
02

What remedies flow from the finding of unfair termination

Holding

Only compensation of 3 months' salary; all other heads of claim failed as dues were paid or claims unproven

Reasoning

The court found the Claimant was paid her dues including pension exceeding her claim, notice pay, and half salary during interdiction as provided by the Code of Regulation for Teachers. NSSF and severance claims lacked evidential support. Anticipatory salary is not payable. The only successful head was procedural unfairness, compensated with 3 months' salary.

p. 7
03

Whether the Respondent's counterclaim for salary overpayment succeeds

Holding

Counterclaim dismissed; the overpayment was the Respondent's own fault

Reasoning

The Respondent held the Claimant's file and it was its duty to stop the half-salary payments after dismissal. The termination was communicated late and the Respondent's systems were inefficient. The Claimant cannot be asked to right a wrong she had no part in; hence the counterclaim was tenuous and dismissed with no order as to costs.

p. 7

Legal principles established

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  • Termination effected without affording the employee an opportunity to be heard is unfair and unlawful notwithstanding substantive justification
  • Anticipated salary for unrendered future service is not recoverable; salary is paid for work done

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs 585,744/- being 3 months' compensation
  2. 2.Costs on the sum of Kshs 585,744/-
  3. 3.Interest at court rates on the sum of Kshs 585,744/- from the date of judgment till payment in full
  4. 4.Counter-claim dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsections 40, 41, 43, 44, 45, 47 (including 47(5))
  • Code of Regulation for Teachersprovision on half salary for a teacher on interdiction
  • Teachers Service Commission HR Manual for Secretariat Staffclauses 112(3)(g), 119(2)
  • Scheme of Service for TSC Secretariat Staffclause 3

Cases cited (5)

  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Rotich v Metkei Multi-Purpose Company Limited
    (Civil Appeal 94 of 2017) [2021] KECA 161 (KLR) (19 November 2021)
  • Bonventure Asakwa Ofutso v Jubilee Insurance Co. of Kenya Ltd
    [2018] eKLR
  • Monica Sang v Habib Bank Limited
    [2019] eKLR
  • Marete D.K. Njagi v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 47 engaged)

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, "Mberia v Teachers Service Commission (Cause 390 of 2019) [2024] KEELRC 1225 (KLR)", Case Analysis (2024). Not stated in judgment (Employment and Labour Relations Court claim filed April 2019, Amended Memorandum of Claim dated 17th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1225/eng@2024-05-07

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