Otieno v Teachers Service Commission (Employment and Labour Relations Cause E020 of 2022) [2024] KEELRC 1630 (KLR)
The bottom line
#A Kenyan court ruled that even fairly dismissed employees cannot lose the pension they have already earned, though the dismissal itself was upheld.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were valid reasons to warrant the Claimant's termination
- 2.Whether the Claimant was subjected to due process before termination
- 3.Whether the counterclaim is proved
- 4.Whether the Claimant is entitled to remedies sought
Key legal issues
#Validity of reasons for termination
Valid reasons existed - negligence as examination centre manager and insubordination by employing teachers without TSC registration.
The claimant was interdicted on grounds of negligence and insubordination. As examination centre manager he had a duty to safeguard examination materials, which were found in the school in unauthorised circumstances. He admitted employing teachers without TSC registration certificates. Although acquitted in Criminal Case No. 24 of 2019, the disciplinary charges were independent and the standard of proof differs. The court therefore found substantive justification under section 43 of the Employment Act.
Procedural fairness of the disciplinary process
The claimant was accorded a fair process compliant with section 41 of the Employment Act, including show cause, hearings, appeal and review.
The claimant was notified of the allegations, responded, was heard before the disciplinary panel, notified of the decision, and exercised his right of appeal twice, culminating in partial reinstatement to the teachers' register. Minutes of the process were produced and undisputed. The court held the process envisaged under section 41 was complied with.
Forfeiture of pension upon dismissal
Pension already earned is a right; regulation 82(2) of CORT, which forfeits pension upon dismissal, is unconstitutional and was set aside as against the claimant.
Relying on George Kuria Kamanda Mwaura v TSC, the court accepted that while pension must be lawfully arrived at, pension already earned is a proprietary and social security right under Articles 40 and 43 of the Constitution. The claimant, having served 27 years, was entitled to his accrued pension notwithstanding dismissal; forfeiture of earned pension would unjustly enrich the employer.
Counterclaim for overpayment of Kshs. 300,623
The counterclaim failed for want of proof.
Although the respondent alleged that the claimant was erroneously paid salary and allowances between November 2018 and June 2019 and demanded a refund, it led no evidence to confirm those payments. The claimant denied receiving the amounts erroneously and stated he never received any letter demanding refund. The burden of proving the counterclaim was not discharged.
Legal principles established
#- Pension already earned is a proprietary right that cannot be forfeited for whatever reason, including lawful dismissal.
- An employer need only prove reasons it genuinely believed to exist at termination (subjective test under section 43 Employment Act).
- Acquittal in criminal proceedings does not bar a guilty finding in disciplinary proceedings, given differing standards of proof.
Court orders
#- 1.The decision to dismiss the Claimant without his pension is set aside as unconstitutional
- 2.The Claimant's pension be processed and released to him
- 3.The Respondent to pay costs of the suit
- 4.The counterclaim is dismissed as unproved
- 5.Reinstatement and other reliefs are refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance employment claim under the Employment Act, 2007 (sections 41, 43, 45, 49) and Article 41 of the Constitution
Relief refused
#Reinstatement to former position
Claimant found culpable of the charges; also out of service over 3 years contrary to section 49 Employment Act
Compensation for loss and suffering/pecuniary embarrassment
Termination found fair and substantively justified
Refund claim in the counterclaim (Kshs. 300,623 overpayment)
Respondent led no evidence to confirm the alleged overpayments
Costs
The Respondent will pay costs of this suit.
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.
I therefore return the verdict that there were valid reasons to warrant the Claimant's termination.
The disciplinary process as envisaged under Section 41 of the Employment Act was therefore complied with and I return the verdict that the Claimant was subjected to a fair disciplinary process.
It is indeed true as held herein that pension already earned is a right and cannot be taken away from an employee for whatever reason.
I order that the claimant's pension be processed and be released to him accordingly.
The counterclaim was not therefore proved and is rejected.
The Respondent will pay costs of this suit.
Issues in the judgment
#The counterclaim period is inconsistently stated within the judgment as both 22/11/2018 and 22.1.2018.
The year of the letter communicating the claimant's retention of benefits is inconsistently given as 23rd March 2022 in the evidence narrative but 23rd March 2023 in submissions.
The reliefs as drafted refer to 'the Respondent's termination from employment of the claimant', an apparent drafting error in the claim.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muthoni v Teachers Service Commission (Employment and Labour Relations Cause E698 of 2022) [2025] KEELRC 2437 (KLR)[2025] KEELRC 2437 (KLR)18 Sept 2025
- Makori v Public Service Commission & another (Petition 98 of 2018) [2025] KEELRC 1624 (KLR)[2025] KEELRC 1624 (KLR)29 May 2025
Cite this brief
#Cite this brief
Caselaw, "Otieno v Teachers Service Commission (Employment and Labour Relations Cause E020 of 2022) [2024] KEELRC 1630 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1630/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.