Odhiambo v Board of Management, Khalsa School (Cause 616 of 2019) [2023] KEELRC 2623 (KLR)
The bottom line
#A Kenyan court ruled that ignoring a warning letter to obtain TSC registration counted as resignation, so the teacher's unfair termination claim failed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the claimant was unfairly terminated
- 2.whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the letter dated 5th August 2019 amounted to termination of the claimant's employment
The letter was a caution requiring the claimant to submit his TSC registration certificate, not a termination letter; the claimant ceased reporting to work on his own volition and thus resigned
The court held that had the claimant submitted the TSC certificate he would have complied with the TSC requirement and continued working. The letter set out a condition and sanction, consistent with a normal work-related warning as described in Jaswinder Kaur Ghataaura. By failing to report to work on 8th August 2019, the claimant resigned rather than being terminated.
Whether there was a valid reason for termination under section 43 of the Employment Act
The requirement of TSC registration was mandatory and beyond the Respondent's control; continued employment without registration would have been illegal, so the reason was fair
The TSC circular of 2nd May 2019 made teacher registration mandatory. The claimant, a Bachelor of Commerce graduate and not a trained teacher, knew of the requirement, attended the staff meeting of 25th July 2018 and was reminded severally, yet never obtained registration. Performance of the teaching contract became illegitimate without registration, a requirement the employer could not control.
Who terminated the employment - the Respondent or the Claimant
It was the claimant who resigned by failing to report to work on the date given in the warning letter
The court distinguished termination from self-inflicted absence. Failure to comply with a lawful instruction amounted to gross misconduct under section 44(4)(e), but the Respondent never actually dismissed him. By not reporting to work on 8th August 2019 after the compliance deadline, the claimant was treated as having resigned, disentitling him from notice pay and compensation.
Legal principles established
#- A letter cautioning an employee to comply with a requirement, with stated sanctions, is not a termination notice
- Failure by an employee to obey a lawful instruction may amount to gross misconduct under section 44(4)(e) of the Employment Act justifying summary dismissal
Court orders
#- 1.Dismissal of the Claimant's claim
- 2.Costs of the claim awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; first-instance employment claim under the Employment Act and Articles 41(1) and 47(1) of the Constitution
Relief refused
#Declaration that the termination was unprocedural and amounted to unfair termination
The court found the letter of 5/8/2019 was a caution, not a termination letter, and the claimant resigned by failing to report to work
Three months' notice pay
The court found the claimant resigned himself; the claim for notice was not granted as part of the dismissal of the claim
Compensation for unfair termination and unpaid salary
The Respondent did not terminate the claimant; he resigned by failing to report to work on the date given in the warning letter
Costs
The Claimant's claim was dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Court hereby dismisses the Claimant's claim with costs.
It is so ordered.
The performance of the contract became illegitimate thereafter since the claimant could not continue teaching without TSC registration.
Failure to obey the Respondent in this regard leads to gross misconduct under section 44(4)(e) of the Employment Act which justifies summary dismissal
Issues in the judgment
#The judgment does not state the names of the parties, the case number or the neutral citation anywhere in the text provided
Internal contradiction on the TSC requirement at recruitment: the claimant pleaded the requirement was never mentioned at recruitment, while the court found the advert specifically needed a candidate with a TSC number
Typographical/typographical inconsistency in paragraph 23 stating the claimant 'worked for 5 years since August 2019' when employment ran from 1st September 2014 to August 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Board of Management, Khalsa School (Cause 616 of 2019) [2023] KEELRC 2623 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2623/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.