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ELRCDismissedNot stated in judgment· [2025] KEELRC 1162 (KLR)
Abwao v Teachers Service Commission (Employment and Labour Relations Cause E018 of 2024) [2025] KEELRC 1162 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court refused to reinstate a dismissed teacher pending trial, confirming reinstatement can only follow a finding of unfair termination.
What this practically means
#Executive summary
#The Claimant, a former employee of the Respondent (the Teachers Service Commission, as described in the judgment), brought a Notice of Motion dated 21st May 2024 seeking interim reinstatement to his employment on the terms subsisting as of 23rd August 2023 and restoration of his name to the register of teachers, pending the hearing of his claim that his dismissal was unfair. He alleged his employment was terminated on malicious and unfounded allegations of sodomising a pupil, without investigation or a hearing, and despite the Director of Public Prosecutions finding no evidence to sustain a charge. The Respondent opposed, arguing the prayers were final in nature and would dispose of the entire claim at the interlocutory stage, and that it had a statutory duty to protect learners. In written submissions, the Claimant argued he had established a prima facie case and exceptional circumstances for interim reinstatement; the Respondent cited authorities holding reinstatement unavailable before a finding of unfair termination under section 45(2) of the Employment Act and Rule 17(10). The court framed two issues: whether the orders sought could be granted at the interim stage, and whether they should be granted as prayed. Relying on sections 49(3) and 49(4) of the Employment Act and section 12(3) of the ELRC Act, the court held that unfairness of termination can only be determined after hearing evidence, and that reinstatement is not automatic even upon such a finding, requiring exceptional circumstances assessed under section 49(4). The court applied its own decision in Duke Oriku Machini v Regis School Runda to the same effect. Both prayers were found premature. The application dated 21st May 2024 was dismissed with no order as to costs.
Key legal issues
#01
Whether reinstatement can be ordered at the interlocutory stage before a finding of unfair termination
Holding
No - reinstatement presupposes a determination that termination was unfair, which can only be made after hearing the evidence
Reasoning
The court held that allegations of unfair termination are matters for trial. Section 49(4) factors and exceptional circumstances for reinstatement can only be assessed on the evidence at the hearing. The interim prayers were therefore premature, the court not being seized of the material evidence needed to determine entitlement to reinstatement.
p. 5
Legal principles established
#- Reinstatement is not an automatic remedy; it requires a finding of unfair termination after hearing and exceptional circumstances under section 49(4) of the Employment Act
Court orders
#- 1.The application dated 21st May 2024 is dismissed with no order as to costs
- Jurisdiction invoked
- Article 47 & 159 of the Constitution of Kenya; sections 12(3)(vii) & (viii), 13 and 20 of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abwao v Teachers Service Commission (Employment and Labour Relations Cause E018 of 2024) [2025] KEELRC 1162 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1162/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.