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ELRCDismissedNot stated in judgment

Odhiambo v Board of Management, Khalsa School (Cause 616 of 2019) [2023] KEELRC 2623 (KLR)

Employment and Labour Relations Court
27 October 2023
2,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the Respondent school from 1st September 2014 as an unregistered Form Tutor and acting Deputy Head, sued for unfair termination and unpaid terminal dues totalling Kshs 1,600,000 after a letter dated 5th August 2019 required him to submit his TSC registration certificate by 8th August 2019 failing which he would be deemed removed from teaching staff. He did not submit the certificate and did not report to work thereafter. The Respondent maintained that the letter was a mere caution, that the claimant had been told at a staff meeting on 25th July 2018 to obtain TSC registration by 30th November 2018, and that the claimant resigned by failing to comply and to report to work. The court framed two issues: whether the claimant was unfairly terminated, and whether he was entitled to the reliefs sought. Relying on Jaswinder Kaur Ghataaura v Naredrasing R. Mahida & Another, the court held the letter was a caution, not a termination notice. The TSC circular of 2nd May 2019 made registration mandatory, rendering continued employment without registration illegitimate. The court found a fair reason under section 43 of the Employment Act, that failure to obey amounted to gross misconduct under section 44(4)(e), and that the claimant resigned himself by failing to report to work. The claim was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the claimant was unfairly terminated
  2. 2.whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the letter dated 5th August 2019 amounted to termination of the claimant's employment

Holding

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

Reasoning

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.

p. 4
02

Whether there was a valid reason for termination under section 43 of the Employment Act

Holding

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

Reasoning

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.

p. 4
03

Who terminated the employment - the Respondent or the Claimant

Holding

It was the claimant who resigned by failing to report to work on the date given in the warning letter

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the Claimant's claim
  2. 2.Costs of the claim awarded to the Respondent

The bench

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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

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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

p. 4

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

p. 4

Costs

The Claimant's claim was dismissed with costs to the Respondent

Quotable passages

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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.
p. 4Final orders - dismissal of claim
It is so ordered.
p. 5Closing disposition
The performance of the contract became illegitimate thereafter since the claimant could not continue teaching without TSC registration.
p. 4Illegality of contract 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
p. 4Gross misconduct under section 44(4)(e)

Issues in the judgment

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minor

The judgment does not state the names of the parties, the case number or the neutral citation anywhere in the text provided

minor

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

minor

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

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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, "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.