Towett v Teachers Service Commission (Claim E030 of 2023) [2025] KEELRC 3715 (KLR)
The bottom line
#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 Respondent breached its contract with the Claimant
- 2.Whether the Claimant deserted or abandoned her work
- 3.If the Claimant deserted, whether she is entitled to the relief sought
- 4.Whether the counterclaim is merited
Key legal issues
#Whether the Respondent breached the employment contract by its silence and inaction on the Claimant's medical retirement request
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.
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.
Whether the Claimant deserted duty
No. The Respondent failed to prove desertion; it neither produced attendance records nor issued any notice to show cause or disciplinary hearing.
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.
Whether the counterclaim for refund of Kshs.4,391,309.90 is merited
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.
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.
Whether termination was procedurally and substantively fair
No. The Respondent proved neither substantive justification nor procedural fairness under sections 41, 43 and 45 of the Employment Act.
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.
Legal principles established
#- 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
#- 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.The Claimant has no obligation to pay any money to the Respondent on the counterclaim; the counterclaim is dismissed
- 3.The Claimant to be presented her TSC file and certificate of service within 45 days from the date of judgment
- 4.Costs of the suit to be paid to the Claimant
The bench
#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
#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
Costs
Costs of this suit will be paid to the Claimant
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.
The court finds the Claimant was constructively terminated from her employment by the sheer silence and inaction by the Respondents.
Cases of abscondment must be proved by the employer communicating to the employee about the said 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.
The Claimant has no obligation to pay any money to the Respondent as a counterclaim as same is not deserved.
The Claimant is to be presented her TSC file and certificate of service within 45 days from today's date.
Costs of this suit will be paid to the Claimant
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.