Nyatol v Maweni Primary School & another (Cause 1025 of 2019) [2026] KEMC 466 (KLR)
The bottom line
#A Mombasa court ruled a teacher's pay was stopped in a way that legally counted as dismissal, awarding her Kshs.84,000 but rejecting larger claims.
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 Respondents were the Claimant's employers and were properly sued
- 2.Whether the employment relationship came to an end and, if so, in what manner
- 3.Whether the requirement for TSC registration constituted a valid and fair reason for stopping the Claimant from teaching
- 4.Whether a fair procedure was followed
- 5.Whether the Claimant is entitled to the remedies sought
- 6.Who should bear the costs of the suit
Key legal issues
#Proper employer where pre-primary education is devolved
The school and its BOM were properly sued; the 2021 devolution legislation could not be applied retrospectively and there was no evidence of novation to the County Government.
The dispute arose in 2019, before the Early Childhood Education Act, 2021. No evidence showed absorption, transfer of the contract, assumption of liabilities, or that the County Government issued the barring decision. The Head Teacher and BOM issued the instruction, so the Respondents remained responsible.
Whether termination occurred absent a termination letter
Yes; barring the Claimant from teaching and stopping her salary brought the employment to a practical end.
From January 2019 the Claimant was not permitted to teach, received no salary, had no defined exclusion period and no alternative duties. The exclusion was tied to a condition of uncertain fulfilment. Substance over form: the arrangement was practically ended by the employer.
Substantive justification - TSC registration
Lack of TSC registration was a valid and fair reason; termination was substantively justified.
Section 23(2) of the TSC Act and Regulation 19 of the Code of Regulations prohibit unregistered teaching. The employer could not lawfully permit unregistered teaching. Long prior service created no entitlement to continue in contravention of statute. The Claimant's ineligibility was not disproved.
Procedural fairness
Termination was procedurally unfair despite the valid reason.
No formal disciplinary or termination hearing was held, no termination notice or letter issued, and no opportunity given to make representations on registration, extension of time, or deployment to non-teaching duties. Meetings and reminders did not amount to a formal pre-termination process under section 45 of the Employment Act.
Constructive dismissal characterisation
The case was one of termination at the employer's initiative, not resignation-based constructive dismissal.
Constructive dismissal ordinarily involves an employee resigning in response to the employer's fundamental breach; here the Respondents directly prevented the Claimant from working, so the employer-initiated termination framework applied.
Legal principles established
#- An employer cannot avoid the legal consequences of termination by indefinitely excluding an employee and stopping her salary; the substance and practical effect of the employer's actions prevail over labels.
- A valid reason for termination does not dispense with the obligation to follow a fair pre-termination procedure.
- Devolution of a general function does not transfer contractual liabilities absent evidence of novation or absorption of the employee.
- Gratuity must be founded on contract, collective agreement, statute or established practice, not length of service alone.
Court orders
#- 1.Judgment entered for the Claimant against the Respondents jointly and severally: one month's salary in lieu of notice of Kshs.10,000; compensation equivalent to two months' salary of Kshs.20,000; unpaid house allowance of Kshs.54,000; total Kshs.84,000
- 2.The Respondents shall issue the Claimant with a certificate of service within 30 days
- 3.The sum awarded shall attract interest at court rates from the date of judgment until payment in full
- 4.Each party shall bear its own costs
- 5.The claims for gratuity, salary for January to April 2019 and service pay are dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the magistrates' court (ELRC cause); Employment Act, Teachers Service Commission Act
Relief refused
#Salary for January to April 2019 (Kshs.40,000)
The Claimant did not perform teaching duties and the Respondents had a legally sustainable basis to decline to permit an unregistered teacher to teach.
Gratuity (Kshs.1,560,000)
Not founded on the contract, a collective agreement, statute or established practice; the contract had no gratuity clause.
Service pay (alternative claim)
Not pleaded or quantified; and the Claimant was an NSSF member, excluded from statutory service pay.
Maximum 12 months' compensation
The Respondents had a valid statutory reason and the Claimant's own non-compliance substantially contributed to the cessation of employment; two months' salary awarded instead.
Costs
Each party shall bear its own costs, the Claimant having succeeded only in part.
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.
Judgment is entered for the Claimant against the Respondents jointly and severally as follows
As the Claimant has succeeded only in part, each party shall bear its own costs.
The Respondents shall issue the Claimant with a certificate of service within 30 days.
The termination was substantively justified but procedurally unfair;
I find that the Respondents were properly sued.
The mere devolution of the general function of pre-primary education did not, without evidence of a transfer or novation of the particular contract, absolve the Respondents from responsibility for decisions made by them concerning the Claimant.
The claims for gratuity, salary for January to April 2019 and service pay are dismissed.
Issues in the judgment
#Hearing date appears inconsistent with suit timeline: 'The suit proceeded to a viva voce hearing on 11th February 2026' with judgment delivered 30th July 2026 in a cause filed 25th October 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyatol v Maweni Primary School & another (Cause 1025 of 2019) [2026] KEMC 466 (KLR)", Case Analysis (2026). MCELRC Cause No. 1025 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/466/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.