Ngei v Teachers Service Commission (Constitutional Petition E007 of 2024) [2025] KEELRC 3732 (KLR)
The bottom line
#Kenya's employment court ruled that a disabled teacher's forced transfers amounted to constructive dismissal, awarding her Kshs 2 million in damages.
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 actions of the Respondent amounted to constructive dismissal
- 2.Whether the Respondent violated the Petitioner's constitutional rights
- 3.What remedies are available to the Petitioner
Key legal issues
#Whether the Respondent's repeated transfers amounted to constructive dismissal
Yes - the repeated transfers to Makueni despite known ill health amounted to constructive dismissal
The court applied the Coca Cola v Ligaga principles. The respondent knew of the petitioner's acute health condition arising from the 1998 bomb blast, yet transferred her three times to a hilly terrain far from specialty medical care, causing her to take early retirement. The failure to appeal the transfer was immaterial given prior returns from the same station and the CAJ's conclusive finding. Constructive dismissal was proved on a balance of probability.
Whether the transfer violated the Petitioner's constitutional rights
Yes - violation of Articles 28, 41 and 47
The conditions at Mukaa, a remote station far from Makueni Level 5 hospital, threatened the life of a petitioner dependent on supplemental oxygen. The transfer was made with knowledge of her frail health and certified disability, without fair and humane consideration and without written reasons, breaching fair labour practices and fair administrative action.
Remedies available
General damages of Kshs 2 million (approximately 12 months' gross salary) with interest and costs; statutory compensation under the Persons with Disabilities Act refused
Relying on section 12 of the ELRC Act, the court awarded general damages for the constitutional violations leading to constructive dismissal. It found no statutory basis for compensation for the extended retirement age and declined aggravated, exemplary and torture damages for want of pleading, treating the general damages as adequate.
Legal principles established
#- While transfer of an employee is a management prerogative, it must be exercised fairly and humanely, particularly where the employer knows of the employee's medical condition
- A finding by the Commission on Administrative Justice, conclusive on appeal, must be respected by the court under Article 159(2)
- Constructive dismissal requires the employer's conduct to be the effective cause of the employee's exit, proved on a balance of probability
Court orders
#- 1.Declaration that the voluntary retirement amounted to constructive dismissal
- 2.Declaration that the transfer to Makueni, Mukaa was an unfair labour practice and unfair administrative action in violation of articles 28, 41 and 47 of the Constitution
- 3.General damages of Kshs. 2,000,000 for the constructive dismissal and violation of articles 41 and 47, with interest at court rate from the judgment date
- 4.Costs of the petition to the Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41, 47 and 23 of the Constitution; Section 12 of the ELRC Act
Relief refused
#Compensation for salary up to age 65 under the Persons with Disabilities Act (loss of earnings of Kshs 22,257,144)
The Act does not provide for compensation in the event of unfair termination; general damages deemed adequate
Kshs 10,000,000 for physiological torture and mental anguish
No pleading of torture or violation of the right to protection from inhuman or degrading treatment in the petition
Exemplary and aggravated damages and compensation for medical expenses
Not awarded; court instead awarded a single global award of general damages
Costs
Costs of the petition awarded to the Petitioner
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 holds that while it is a management prerogative the transfer ought to be fair and humane.
The very act threatens the right to life of the petitioner.
The Court, on its own evaluation of the evidence by the petitioner, found that the petitioner had proved a case of constructive dismissal on a balance of probability.
The decision is final and not per-incuriam having been concluded on appeal. The court will respect the decision of CAJ.
The petition is allowed. A declaration is issued that the voluntary retirement amounted to constructive dismissal.
The petitioner is awarded general damages for the constructive dismissal and for the violation of articles 41 and 47 of the Constitution, in the amount of Kshs. 2 million, with interest at the court rate from the judgment date, and the Costs of the petition.
Issues in the judgment
#Statutory citation contradiction on disability retirement age: the petitioner cites section 21(6) of the Persons with Disability Act, 2025 ('five years above the mandatory age'), while the court's ruling quotes section 15(6) as providing a minimum retirement age of sixty years
The judgment inconsistently records the date of the petitioner's letter requesting reinstatement as 6th December 2023 and 12th January 2024 in one passage and 23rd January 2024 in the respondent's case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngei v Teachers Service Commission (Constitutional Petition E007 of 2024) [2025] KEELRC 3732 (KLR)", Case Analysis (2025). Petition dated 1st October 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3732/eng@2025-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.