Kenya Education Staff Institute v Kenya Union of Post-Primary Teachers (Kuppet) & 2 others [2020] KECA 898 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed two teachers were unfairly dismissed and reinstated, but struck out money awards that were never properly claimed in court pleadings.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants were employees of the appellant
Yes; they were absorbed as employees, assigned and discharged duties within the appellant's establishment, and their release to TSC without complying with clauses 7(5) and (6) of Legal Notice No. 565 of 1988 was of no effect.
Clause 7(2) and (4) of Legal Notice No. 565 of 1988 donated absolute power to the appellant's council to appoint staff with no residual role for the PSC or DPM. No rule or regulation mandating PSC sanction was identified. The plea of secondment failed for want of documentary evidence, continued payment of salaries by TSC was explained as a temporary arrangement at the appellant's own request, and the parties' mutual conduct evinced an implied contract of employment.
Whether the grievants' employment was unfairly terminated
Yes; the release of the grievants to TSC on 19th August 2008 contravened the mandatory procedure in clauses 7(5) and (6) of Legal Notice No. 565 of 1988 and the Employment Act.
The appellant was obliged to convene its council and pass a resolution with a hearing before terminating employment; instead it acted on directions from the PS of the 2nd respondent. The reasons given for the release also contradicted the reasons later advanced, demonstrating lack of good faith. The requirements of sections 41, 43 and 45 of the Employment Act were likewise not met.
Whether the remedies awarded by the trial court lay in law
Reinstatement with attendant benefits was proper and affirmed; the awards of 12 months' salary compensation and salary top-up were set aside as unpleaded and, in the case of compensation, an impermissible alternative remedy.
Reliefs attendant on reinstatement are proper since a reinstated employee is entitled to attendant benefits. But the 12 months' compensation was not pleaded, was not canvassed before the trial court, and could only pass as an alternative remedy for which there was no jurisdiction once reinstatement had been granted. Top-up salaries were neither pleaded nor proved. The appeal therefore succeeded in part.
Legal principles established
#- Where a statutory or legal notice provision confers on a body the power to appoint staff using mandatory language ('shall') without reserving any sanctioning role to another body such as the PSC, that body's exercise of the power requires no external sanction.
- Lack of a formal written contract of employment is not of itself evidence that no employer/employee relationship exists; the obligation to provide a written contract lies with the employer under section 9(2) of the Employment Act, and an implied contract may be inferred from conduct.
- A court has no jurisdiction to award an alternative remedy (such as compensation) where consideration for the main remedy (reinstatement) preceded consideration of the alternative remedy.
- Issues for determination in a suit flow from the pleadings, and a trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties.
- Remedies under section 49 of the Employment Act are discretionary rather than mandatory, to be granted on the basis of the peculiar facts of each case and guided by the thirteen considerations in section 49(4).
- Termination of employment must follow the procedure laid down in the instrument governing the employment relationship; an employer acting on ministerial directions in breach of that procedure unfairly terminates the employment.
Court orders
#- 1.Affirmed that the appellant's termination of the grievants' employment was unfair
- 2.Affirmed that the grievants are entitled to reinstatement into the appellant's employment together with all attendant benefits
- 3.Disallowed payment of salary compensation for 12 months
- 4.Disallowed payment of the difference in salary between what was paid by TSC and the equivalent earned by counterparts in the appellant's employment
- 5.Affirmed the order that each party to bear its own costs
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
- Industrial Cause No. 224 (N) of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (judgment signed under Rule 32(3) of the Court of Appeal Rules following retirement of Waki JA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Education Staff Institute v Kenya Union of Post-Primary Teachers (Kuppet) & 2 others [2020] KECA 898 (KLR)", Case Analysis (2020). Civil Appeal No. 238 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/898/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.