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ELRCPartially AllowedNot stated in the judgment as provided (Memorandum of Claim dated 28th December 2023)

Towett v Teachers Service Commission (Claim E030 of 2023) [2025] KEELRC 3715 (KLR)

Employment and Labour Relations Court
16 December 2025
5,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a teacher employed by the Teachers Service Commission in 1992, applied in February 2016 for early retirement on medical grounds, supported by medical reports. The Commission asked her in March 2016 to furnish a medical report to enable a medical board to be convened under Regulation 162(2) of the Code of Regulations for Teachers, but the process was never completed and no medical board was convened. The Commission nonetheless paid her salary until December 2020, then in June 2022 demanded a refund of Kshs.4,391,309.90 as overpayment, alleging she deserted duty from July 2016. It counterclaimed for the refund, while the Claimant claimed constructive and unfair termination, terminal dues, her TSC file and a certificate of service. The court framed four issues: breach of contract, desertion, entitlement to relief, and the counterclaim. It found both parties failed to follow the prescribed procedure, but held the Commission was grossly negligent in ignoring the retirement request for over four years and never initiating disciplinary action despite the alleged desertion. Desertion was not proved; no termination letter was ever served; and the termination failed both substantive and procedural fairness under sections 41, 43 and 45 of the Employment Act. The court held the Claimant was constructively terminated by the Respondent's silence and inaction, and that the Respondent was estopped from demanding the refund. The salaries already paid, factoring in the COVID-19 period, were commuted into compensation for unfair termination and to satisfy the prayers for severance and benefits. The counterclaim was dismissed, the Claimant was to receive her TSC file and certificate of service within 45 days, and costs were awarded to the Claimant.

Questions the Court framed

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

  1. 1.Whether the Respondent breached its contract with the Claimant
  2. 2.Whether the Claimant deserted or abandoned her work
  3. 3.If the Claimant deserted, whether she is entitled to the relief sought
  4. 4.Whether the counterclaim is merited

Key legal issues

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01

Whether the Respondent breached the employment contract by its silence and inaction on the Claimant's medical retirement request

Holding

Yes. The Respondent slept on the job for over four years, never processed the medical retirement request nor convened a medical board, and its failure to engage breached the contract and the Claimant's right to fair administrative action.

Reasoning

The Claimant applied for early retirement on medical grounds in February 2016 and submitted medical reports, but the Respondent, which alone could convene a medical board under Regulation 162(2), never did so. It continued paying salary until December 2020 without any follow-up, disciplinary action or termination letter. The court held the prolonged silence and inaction amounted to constructive termination and a breach of fair administrative action under section 4(1) of the Fair Administrative Action Act.

p. 10
02

Whether the Claimant deserted duty

Holding

No. The Respondent failed to prove desertion; it neither produced attendance records nor issued any notice to show cause or disciplinary hearing.

Reasoning

Although the Respondent alleged desertion from July 2016, it produced no attendance records and did not call the Principal of Kericho Teachers Training College. The employment records were the employer's responsibility under section 74 of the Employment Act. The employer never communicated with the employee about desertion nor initiated disciplinary proceedings, and no termination letter was ever served. The court found the desertion claim unproved and held the Respondent responsible for the record-keeping failure.

p. 9
03

Whether the counterclaim for refund of Kshs.4,391,309.90 is merited

Holding

No. The counterclaim fails because the Claimant does not owe the money; the payments are commuted to compensation and the Respondent is estopped from demanding a refund.

Reasoning

The Respondent continued paying the Claimant's salary knowing she was on sick leave and pursuing medical retirement, and only demanded a refund in June 2022. The court found the demand unfair and the Respondent estopped. The court also noted the period partly coincided with the COVID-19 pandemic shutdown. Having found no desertion and constructive termination, the court held the Claimant owes nothing and the payments cover her compensation and terminal dues.

p. 10
04

Whether termination was procedurally and substantively fair

Holding

No. The Respondent proved neither substantive justification nor procedural fairness under sections 41, 43 and 45 of the Employment Act.

Reasoning

Section 45 makes it mandatory for an employer to give a valid reason for termination, and section 41(1) requires an explanation and hearing before termination on grounds of misconduct or incapacity. No termination letter was served, no disciplinary hearing was held, and the desertion ground was being raised belatedly at trial, which the court declined to entertain. The court applied the twin-test principle from Walter Ogal Onuro v Teachers Service Commission.

p. 10

Legal principles established

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  • Cases of abscondment must be proved by the employer communicating with the employee and initiating disciplinary proceedings
  • Termination must satisfy the twin test of substantive justification and procedural fairness
  • A government institution's inordinate delay in processing an employee's critical request such as retirement on medical grounds breaches the right to fair administrative action
  • An employer who continues paying salary with knowledge of an employee's sick-leave status is estopped from demanding a refund

Court orders

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  1. 1.The salaries paid to the Claimant during the period in issue, taking into account the COVID period, are commuted to cover compensation for unfair termination and to cover fully prayers (iii), (iv) & (v) of the Statement of Claim
  2. 2.The Claimant has no obligation to pay any money to the Respondent on the counterclaim; the counterclaim is dismissed
  3. 3.The Claimant to be presented her TSC file and certificate of service within 45 days from the date of judgment
  4. 4.Costs of the suit to be paid to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; employment established under Article 237 of the Constitution (Teachers Service Commission)

Relief refused

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Declaration of unfair employment practices / punitive damages framed as standalone declarations

The court instead converted the salary paid into compensation and declined a separate refund-style award; specific declarations were not separately granted

p. 10

Costs

Costs of this suit will be paid to the Claimant

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.

The court finds the Claimant was constructively terminated from her employment by the sheer silence and inaction by the Respondents.
p. 10Constructive dismissal by employer inaction
Cases of abscondment must be proved by the employer communicating to the employee about the said desertion.
p. 9Proof of desertion
The court will order the part of salary paid to the Claimant taking into consideration the COVID period be commuted to cover compensation for unfair termination and to cover fully prayers 26(iii), (iv) & (v) of the Statement of Claim.
p. 10Final orders - commutation of salary paid to compensation
The Claimant has no obligation to pay any money to the Respondent as a counterclaim as same is not deserved.
p. 11Dismissal of counterclaim
The Claimant is to be presented her TSC file and certificate of service within 45 days from today's date.
p. 11Delivery of TSC file and certificate of service
Costs of this suit will be paid to the Claimant
p. 11Costs
for termination to pass the fairness test it ought to be shown that there was not only substantive justification for the termination but also procedural fairness.
p. 10Twin test of termination fairness
The idea that a government institution can delay processing such critical matters should not be accepted, especially where health is concerned, since health is the foundation of productivity without it, work cannot be performed.
p. 8Public institution delay in processing medical retirement

Issues in the judgment

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minor

Pleadings and evidence dates are inconsistent: the Response and Counterclaim is dated 15th April 2025 yet the Claimant's reply to it is dated 28th May 2024; also the Claimant's retirement letter is given variously as 15th February 2016, 13th February 2016, and her testimony refers to applying in October 2020 for early retirement citing family reasons, and the court refers to 'prayers 26(iii), (iv) & (v)' although only eight prayers are listed.

minor

Section 74 of the Evidence Act appears to be attributed to the Employment Act: 'under section 74 of the Employment Act, the employer is responsible for maintaining employment records' - the record-keeping provision is in the Employment Act but the numbering as cited cannot be verified within the judgment's own references.

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, "Towett v Teachers Service Commission (Claim E030 of 2023) [2025] KEELRC 3715 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Memorandum of Claim dated 28th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3715/eng@2025-12-16

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