Ngei v Teachers Service Commission (Constitutional Petition E007 of 2024) [2025] KEELRC 3732 (KLR)
The bottom line
#Kenya's employment court ruled that a disabled teacher's forced transfers amounted to constructive dismissal, awarding her Kshs 2 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's repeated transfers amounted to constructive dismissal
Yes - the repeated transfers to Makueni despite known ill health amounted to constructive dismissal
The court applied the Coca Cola v Ligaga principles. The respondent knew of the petitioner's acute health condition arising from the 1998 bomb blast, yet transferred her three times to a hilly terrain far from specialty medical care, causing her to take early retirement. The failure to appeal the transfer was immaterial given prior returns from the same station and the CAJ's conclusive finding. Constructive dismissal was proved on a balance of probability.
Whether the transfer violated the Petitioner's constitutional rights
Yes - violation of Articles 28, 41 and 47
The conditions at Mukaa, a remote station far from Makueni Level 5 hospital, threatened the life of a petitioner dependent on supplemental oxygen. The transfer was made with knowledge of her frail health and certified disability, without fair and humane consideration and without written reasons, breaching fair labour practices and fair administrative action.
Remedies available
General damages of Kshs 2 million (approximately 12 months' gross salary) with interest and costs; statutory compensation under the Persons with Disabilities Act refused
Relying on section 12 of the ELRC Act, the court awarded general damages for the constitutional violations leading to constructive dismissal. It found no statutory basis for compensation for the extended retirement age and declined aggravated, exemplary and torture damages for want of pleading, treating the general damages as adequate.
Legal principles established
#- While transfer of an employee is a management prerogative, it must be exercised fairly and humanely, particularly where the employer knows of the employee's medical condition
- A finding by the Commission on Administrative Justice, conclusive on appeal, must be respected by the court under Article 159(2)
- Constructive dismissal requires the employer's conduct to be the effective cause of the employee's exit, proved on a balance of probability
Court orders
#- 1.Declaration that the voluntary retirement amounted to constructive dismissal
- 2.Declaration that the transfer to Makueni, Mukaa was an unfair labour practice and unfair administrative action in violation of articles 28, 41 and 47 of the Constitution
- 3.General damages of Kshs. 2,000,000 for the constructive dismissal and violation of articles 41 and 47, with interest at court rate from the judgment date
- 4.Costs of the petition to the Petitioner
- Jurisdiction invoked
- Articles 41, 47 and 23 of the Constitution; Section 12 of the ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngei v Teachers Service Commission (Constitutional Petition E007 of 2024) [2025] KEELRC 3732 (KLR)", Case Analysis (2025). Constitutional Petition No E007 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3732/eng@2025-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.