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MagistratePartially AllowedMCELRC Cause No. 1025 of 2019· [2026] KEMC 466 (KLR)

Nyatol v Maweni Primary School & another (Cause 1025 of 2019) [2026] KEMC 466 (KLR)

Chief Magistrates Court at Mombasa
30 July 2026
EMEmily M. Mwamuye
3,644 words in judgment
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The bottom line

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A Mombasa court ruled a teacher's pay was stopped in a way that legally counted as dismissal, awarding her Kshs.84,000 but rejecting larger claims.

What this practically means

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Executive summary

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The claimant, an ECDE teacher employed at Maweni Primary School from 1994 at a monthly salary of Kshs.10,000, sued the school and its Board of Management alleging unfair termination and non-payment of terminal dues after she was barred from teaching in 2019 for lacking a TSC registration certificate, and her salary was stopped. The respondents denied dismissal, contending she remained free to return upon registration, and argued that pre-primary education being devolved, the County Government of Mombasa should have been sued. The court held the respondents were the proper employers: the 2021 devolution statute could not apply retrospectively and there was no evidence of absorption or novation of the contract. Although no termination letter was issued, barring the claimant from teaching and stopping her salary amounted in substance to termination at the employer's initiative. The lack of TSC registration, a statutory requirement under the TSC Act and Code of Regulations, constituted a valid and fair reason, making the termination substantively justified. However, the failure to hold a disciplinary hearing, issue notice, or invite representations rendered the termination procedurally unfair under section 45 of the Employment Act. The court awarded one month's notice pay (Kshs.10,000), two months' compensation (Kshs.20,000) and house allowance at 15% of basic salary for 36 months (Kshs.54,000), totaling Kshs.84,000, plus a certificate of service within 30 days and interest. Claims for salary arrears, gratuity and service pay failed for want of proof, pleading and NSSF membership respectively. Each party was to bear its own costs.

Key legal issues

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01

Proper employer where pre-primary education is devolved

Holding

The school and its BOM were properly sued; the 2021 devolution legislation could not be applied retrospectively and there was no evidence of novation to the County Government.

Reasoning

The dispute arose in 2019, before the Early Childhood Education Act, 2021. No evidence showed absorption, transfer of the contract, assumption of liabilities, or that the County Government issued the barring decision. The Head Teacher and BOM issued the instruction, so the Respondents remained responsible.

p. 8
02

Whether termination occurred absent a termination letter

Holding

Yes; barring the Claimant from teaching and stopping her salary brought the employment to a practical end.

Reasoning

From January 2019 the Claimant was not permitted to teach, received no salary, had no defined exclusion period and no alternative duties. The exclusion was tied to a condition of uncertain fulfilment. Substance over form: the arrangement was practically ended by the employer.

p. 10
03

Substantive justification - TSC registration

Holding

Lack of TSC registration was a valid and fair reason; termination was substantively justified.

Reasoning

Section 23(2) of the TSC Act and Regulation 19 of the Code of Regulations prohibit unregistered teaching. The employer could not lawfully permit unregistered teaching. Long prior service created no entitlement to continue in contravention of statute. The Claimant's ineligibility was not disproved.

p. 12
04

Procedural fairness

Holding

Termination was procedurally unfair despite the valid reason.

Reasoning

No formal disciplinary or termination hearing was held, no termination notice or letter issued, and no opportunity given to make representations on registration, extension of time, or deployment to non-teaching duties. Meetings and reminders did not amount to a formal pre-termination process under section 45 of the Employment Act.

p. 13
05

Constructive dismissal characterisation

Holding

The case was one of termination at the employer's initiative, not resignation-based constructive dismissal.

Reasoning

Constructive dismissal ordinarily involves an employee resigning in response to the employer's fundamental breach; here the Respondents directly prevented the Claimant from working, so the employer-initiated termination framework applied.

p. 10

Legal principles established

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  • An employer cannot avoid the legal consequences of termination by indefinitely excluding an employee and stopping her salary; the substance and practical effect of the employer's actions prevail over labels.
  • A valid reason for termination does not dispense with the obligation to follow a fair pre-termination procedure.
  • Devolution of a general function does not transfer contractual liabilities absent evidence of novation or absorption of the employee.
  • Gratuity must be founded on contract, collective agreement, statute or established practice, not length of service alone.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondents jointly and severally: one month's salary in lieu of notice of Kshs.10,000; compensation equivalent to two months' salary of Kshs.20,000; unpaid house allowance of Kshs.54,000; total Kshs.84,000
  2. 2.The Respondents shall issue the Claimant with a certificate of service within 30 days
  3. 3.The sum awarded shall attract interest at court rates from the date of judgment until payment in full
  4. 4.Each party shall bear its own costs
  5. 5.The claims for gratuity, salary for January to April 2019 and service pay are dismissed
Jurisdiction invoked
Employment and labour relations jurisdiction of the magistrates' court (ELRC cause); Employment Act, Teachers Service Commission Act

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, "Nyatol v Maweni Primary School & another (Cause 1025 of 2019) [2026] KEMC 466 (KLR)", Case Analysis (2026). MCELRC Cause No. 1025 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/466/eng@2026-07-30

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