Nyatol v Maweni Primary School & another (Cause 1025 of 2019) [2026] KEMC 466 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. 1025 OF 2019** **BENTA ANYANGO NYATOL…………………………………………………..CLAIMANT** **VERSUS** **MAWENI PRIMARY SCHOOL………………….……………….……….1ST RESPONDENT** **BOARD OF MANAGEMENT,** **MAWENI PRIMARY SCHOOL…………….……………………………2ND RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant instituted this suit through a Memorandum of Claim dated 25th October 2019, alleging unfair termination of employment and non-payment of terminal dues and contractual benefits. 2. The Claimant pleaded that she had been employed by the Respondents as an Early Childhood Development Education teacher from 1994 until 3rd May 2019, when the Respondents stopped her from teaching on the ground that she did not possess a Teachers Service Commission registration certificate. 3. She pleaded that she earned a monthly salary of Kshs.10,000 and sought the following reliefs: One month’s salary in lieu of notice — Kshs.10,000; Gratuity for 26 years — Kshs.1,560,000; Salary for January to April 2019 — Kshs.40,000; Compensation for unfair termination — Kshs.120,000; House allowance for three years — Kshs.108,000; Costs and interest. The total claim was stated as Kshs.1,838,000. 4. The Respondents filed a Response to the Memorandum of Claim dated 19th October 2020. They denied that the Claimant had been unlawfully or unfairly terminated and contended that she had continued teaching without the statutory registration required of a teacher. The suit proceeded to a viva voce hearing on 11th February 2026, when both parties called their respective witnesses. 5. The Claimant testified on her own behalf. The Respondents called Mr. Oscar Gullani Charo, the Head Teacher of the 1st Respondent, as their sole witness. At the conclusion of the hearing, the parties filed written submissions, which the Court has considered together with the pleadings and the oral and documentary evidence. **The Claimant’s case** 1. The Claimant’s evidence was that she trained as a pre-school teacher at St. Paul’s Mission Homecraft Nursery Teachers Training Centre, Homa Bay, between 6th January 1992 and 31st December 1992. She produced a certificate and leaving certificate showing that she completed the one-year course and attained Grade A. 2. She was initially appointed by the Maweni Primary School Parents Teachers Association as a nursery school teacher with effect from 1st January 1994. Her letter of appointment was dated 27th January 1994. 3. A subsequent letter of appointment from the School Management Committee indicated that she was appointed as a nursery school teacher at a salary of Kshs.3,338 per month and that her appointment could be terminated by one month’s notice. 4. The Claimant testified that she continued serving the Respondents until 2019 and that, at the material time, she was earning Kshs.10,000 per month. 5. Her evidence was that when she was employed, she was not required to possess a TSC registration certificate. She maintained that she served the school for about 25 years without such a certificate. 6. According to the Claimant, in 2019 she was told not to report to work until she produced a TSC registration certificate. She could not produce the certificate because she was not registered with the Teachers Service Commission. 7. The Claimant regarded the instruction not to report to work as termination of her employment. She contended that: She was not issued with a formal suspension letter setting out the period or conditions of the suspension; She was not issued with a notice of intended termination; She was not subjected to a disciplinary hearing; She was not issued with a formal termination letter; and her salary was stopped. 8. She produced a payment voucher dated 30th May 2019, acknowledging receipt of Kshs.20,000, being wages for November and December 2018 at Kshs.10,000 for each month. She also produced a demand letter dated 30th July 2019, through which her advocates demanded gratuity of Kshs.1,560,000, calculated at Kshs.5,000 per month for 26 years. 9. In her submissions, the Claimant asserted that the Respondents’ open-ended instruction barring her from teaching, coupled with the stoppage of her salary, amounted to constructive and unfair termination. 10. She further contended that the Respondents’ witness admitted that no disciplinary hearing was held, no termination letter was issued and no statutory termination procedure was followed before her salary was stopped. 11. During cross-examination, however, the Claimant admitted that: She had been informed of the requirement to obtain a TSC registration number; Other ECDE teachers who produced TSC numbers were absorbed by the County Government; She continued teaching without a valid TSC number; Her contract did not expressly provide for gratuity; and she had been a member of NSSF and contributions had been made during part of her employment. **The Respondents’ case** 1. The Respondents’ position was that the Claimant was not dismissed. According to them, she was instructed not to continue teaching until she produced the legally required TSC registration certificate. 2. Mr. Gullani testified that the Claimant had worked at Maweni ECDE for over 20 years but did not possess a TSC registration number. He stated that, around September or November 2018, the Claimant and other ECDE teachers were informed that they were required to register with the Teachers Service Commission before continuing to teach in a public institution. 3. The Respondents produced a letter addressed to the Claimant under the heading “Teaching Without a T.S.C Registration Certificate.” The letter stated that: The Claimant had gone to the Labour Office to claim wages for January, February, March and April 2019; Towards the end of the previous year, she had been summoned to the Head Teacher’s office in the presence of BOM officials, the Deputy Head Teacher and a senior teacher; She had been advised to register with the Teachers Service Commission before continuing to discharge teaching duties; She had not complied with the requirement; and her case would be considered after she obtained the registration certificate. 4. The Respondents maintained that other teachers complied with the registration requirement and were subsequently absorbed by the County Government, but the Claimant did not obtain or produce a TSC registration certificate. 5. Their witness stated that the Claimant’s employment had never formally been terminated. She remained free to return for consideration after producing the certificate. 6. The Respondents contended that Regulation 19 of the Teachers Service Commission Code of Regulations for Teachers, 2015 prohibited a person from practising as a teacher without a certificate of registration. 7. They consequently argued that allowing the Claimant to continue teaching would have been contrary to the law and that the employment arrangement had been frustrated by the statutory registration requirement. 8. They further contended that pre-primary education is a devolved function and that the Claimant should have pursued any employment claim against the County Government of Mombasa. 9. On the monetary claims, the Respondents argued that: Gratuity was not provided for in the Claimant’s contract; The Claimant admitted membership of NSSF and was therefore not entitled to service pay; Service pay had not been pleaded; Salary was not payable for the period during which the Claimant did not teach; and the claim should be dismissed with costs. **Issues for determination** 1. Having considered the pleadings, evidence and submissions, the issues arising for determination are: 2. Whether the Respondents were the Claimant’s employers and were properly sued; 3. Whether the employment relationship came to an end and, if so, in what manner; 4. Whether the requirement for TSC registration constituted a valid and fair reason for stopping the Claimant from teaching; 5. Whether a fair procedure was followed; 6. Whether the Claimant is entitled to the remedies sought; and 7. Who should bear the costs of the suit. **Analysis and determination** Whether the Respondents were the employers and were properly sued 1. The Claimant produced an appointment letter dated 27th January 1994 issued by Maweni Primary School PTA. A subsequent appointment document was issued by the School Management Committee. 2. The Respondents’ witness acknowledged that the Claimant had worked at Maweni Primary School for over 20 years. The Respondents’ own correspondence referred to her as “our ECDE teacher.” 3. There is consequently no genuine dispute that the Claimant was engaged to teach at Maweni Primary School and was subject to the supervision and control of the school’s management. 4. The Respondents argued that pre-primary education is a devolved function and that the County Government of Mombasa should have been sued. Under Part 2 of the Fourth Schedule to the Constitution, pre-primary education is among the functions assigned to county governments. The Early Childhood Education Act, 2021 also assigns county governments responsibility for the recruitment and remuneration of ECDE teachers in public education centres. 5. The present dispute, however, arose in 2019, while the Early Childhood Education Act relied upon by the Respondents was enacted in 2021. It cannot, without an express retrospective provision, be used to retrospectively extinguish an employment relationship or transfer an accrued liability from one employer to another. 6. Further, no evidence was produced showing that: The County Government formally absorbed the Claimant; Her contract was transferred to the County Government; The County Government assumed the Respondents’ liabilities to her; or the County Government made the decision barring her from teaching. 7. On the contrary, the evidence demonstrates that the instruction not to teach was issued by the Head Teacher and the Board of Management of Maweni Primary School. 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. I therefore find that the Respondents were properly sued. Whether the Claimant’s employment was terminated 1. The Respondents maintained that the Claimant’s employment was never terminated because she was only asked to obtain a TSC registration certificate before resuming duty. The Court must consider the substance and practical effect of the Respondents’ actions rather than the label assigned to them. 2. From January 2019, the Claimant was not permitted to teach. She did not receive her monthly salary. No defined period was attached to her exclusion from the workplace, and no alternative duties were assigned to her. 3. The letter produced by the Respondents informed the Claimant that she could not continue teaching without registration and that her case would be considered after she obtained the certificate. It did not state that she remained on paid suspension or identify a definite date on which her employment status would be reviewed. 4. Suspension ordinarily preserves the employment relationship and is, by its nature, temporary. The Claimant’s exclusion was tied to a condition whose fulfilment was uncertain, while the Respondents stopped paying her salary. 5. By preventing the Claimant from discharging her duties and ceasing payment of salary, the Respondents brought the existing employment arrangement to a practical end. 6. I am therefore unable to accept the submission that no termination occurred merely because no formal termination letter was issued. An employer cannot avoid the legal consequences of termination by excluding an employee indefinitely, stopping her salary and leaving the contract in abeyance. 7. I find that the Claimant’s employment was terminated by the Respondents when she was barred from continuing to teach and ceased receiving salary. 8. Although the Claimant’s submissions describe the termination as constructive dismissal, the classical concept of constructive dismissal ordinarily involves an employee resigning or leaving employment in response to the employer’s fundamental breach. In the present case, the Respondents directly prevented the Claimant from working. The matter is therefore more accurately treated as termination at the employer’s initiative rather than resignation-based constructive dismissal. Whether there was a valid and fair reason 1. The Respondents’ stated reason for barring the Claimant from teaching was her failure to obtain a TSC registration certificate. Section 23(2) of the Teachers Service Commission Act provides that a person shall not engage in the teaching service unless registered as a teacher under the Act. 2. Regulation 19 of the Teachers Service Commission Code of Regulations for Teachers, 2015 similarly provides that no person is qualified to practise as a teacher unless the person holds a certificate of registration issued by the Commission. The registration requirement was therefore not a mere internal preference of the Respondents. It was a legal requirement applicable to persons engaged in teaching. 3. Significantly, Regulation 20 expressly provided a route for registration of early childhood education teachers. A person qualified for registration as an ECDE teacher if she held, among other qualifications, a certificate in Early Childhood Education from a recognised institution. 4. The Claimant possessed a pre-school teaching certificate. No evidence was presented that she applied for registration and that her application was rejected. Equally, no evidence was produced by the Respondents from the Teachers Service Commission showing that she was ineligible for registration. 5. The Respondents’ assertion that she was unable to register because she lacked adequate qualifications was therefore not proved. The evidence established only that she did not obtain or produce a registration certificate. 6. The Claimant admitted that she had been informed of the need to obtain a TSC registration number and that she did not obtain one. She also admitted that other teachers who complied were absorbed by the County Government. 7. An employer operating a school cannot reasonably be compelled to permit an unregistered person to continue engaging in teaching when statute expressly prohibits that engagement. 8. The Claimant’s long service before the registration requirement was enforced did not create a lawful entitlement to continue teaching in contravention of the subsequently applicable statutory framework. 9. The failure to register therefore related to the Claimant’s legal capacity and eligibility to continue performing the particular work for which she had been engaged. 10. I find that the Respondents had a valid and fair reason to prevent the Claimant from continuing to perform teaching duties until she obtained TSC registration. The termination was consequently substantively justified. Whether a fair procedure was followed 1. The existence of a valid reason does not, by itself, dispense with the obligation to act fairly. The evidence shows that the Claimant was spoken to towards the end of 2018 in the presence of several school officials. She was informed that she needed to register with the Teachers Service Commission. She was also issued with written correspondence reiterating the requirement. 2. The Claimant therefore had prior knowledge of the registration issue and was afforded time to obtain the certificate. Nevertheless, the Respondents’ own witness admitted that: No formal disciplinary or termination hearing was conducted; No termination notice was issued; No termination letter was issued; and no procedure under the Employment Act was followed before salary was stopped. 3. The Respondents did not issue the Claimant with a notice stating that her employment was liable to be terminated on account of incapacity or statutory ineligibility. They did not invite her to make representations on whether: She had applied for registration; She qualified for registration under the ECDE provisions; She required a reasonable extension of time; She could be deployed to non-teaching duties; or termination was the only reasonable option. 4. The meetings and reminders established that the Claimant was aware of the requirement. They did not, however, amount to a formal pre-termination process in which she was informed that the employment relationship itself was under consideration and afforded an opportunity to respond before a final decision was made. 5. The Respondents also did not formally communicate the effective date of termination or settle the Claimant’s terminal entitlements. I therefore find that, although the reason for termination was valid, the Respondents did not demonstrate that the termination was effected in accordance with a fair procedure. The termination was accordingly procedurally unfair within the meaning of section 45 of the Employment Act. **Remedies** 1. One month’s salary in lieu of notice- The Claimant’s appointment terms provided for one month’s notice. No termination notice was issued. The existence of a valid reason to end the employment relationship did not entitle the Respondents to dispense with contractual or statutory notice, unless circumstances justifying summary dismissal were established. This was not a case of proven gross misconduct warranting summary dismissal. The Claimant is therefore awarded Kshs.10,000, being one month’s salary in lieu of notice. 2. Salary for January to April 2019- The Claimant seeks Kshs.40,000 as salary for January, February, March and April 2019. Salary is ordinarily consideration for services rendered or for the employee’s readiness to render services where the employer unlawfully prevents performance. In this case, the Claimant did not perform teaching duties during the four months. The Respondents had a legally sustainable basis for declining to permit an unregistered teacher to continue teaching. Although the Respondents did not follow a fair termination procedure, the Court cannot direct payment of salary for teaching services that the Claimant was legally ineligible to perform during the relevant period. The prayer for Kshs.40,000 is therefore declined. 3. Gratuity- The Claimant claims Kshs.1,560,000 as gratuity for 26 years, calculated at Kshs.5,000 per month for each year worked. Gratuity is not an automatic statutory entitlement arising solely from length of service. It must be founded upon the contract of employment, a collective agreement, an applicable statutory instrument or a proven established practice. The Claimant admitted that her contract did not contain a gratuity clause. She did not produce a collective bargaining agreement, policy or established practice entitling her to gratuity. The figure of Kshs.5,000 for every month of each year worked was also not traced to any term of the employment contract or applicable wage instrument. The claim for Kshs.1,560,000 gratuity is therefore dismissed. 4. Service pay- In her submissions, the Claimant sought service pay in the alternative. Service pay was not expressly pleaded or quantified in the Memorandum of Claim. A party is ordinarily bound by its pleadings, and written submissions cannot introduce a new substantive monetary claim. 5. In any event, the Claimant admitted in cross-examination that she was a member of NSSF and that contributions were remitted during her employment. Section 35(6) of the Employment Act excludes members of NSSF and other prescribed pension or provident arrangements from statutory service pay. The alternative claim for service pay therefore fails. 6. House allowance- The Claimant seeks Kshs.108,000 as house allowance for the three years between 2016 and 2019. An employer is required either to provide reasonable housing or pay sufficient rent in addition to wages, unless the contract expressly consolidates the basic wage and housing element. The Respondents did not produce a written contract showing that the Claimant’s monthly salary of Kshs.10,000 was expressly consolidated to include house allowance. There was also no evidence that she was provided with housing. The Claimant is therefore entitled, in principle, to a housing component. However, she did not identify the applicable statutory wage order or evidentiary basis for calculating house allowance at Kshs.3,000 per month, equivalent to 30 per cent of her salary. In the absence of proof of the claimed rate, the Court considers 15 per cent of the basic salary to be a reasonable housing component: Kshs.10,000×15%=Kshs.1,500 per month For the pleaded period of 36 months: Kshs.1,500×36=Kshs.54,000 1. Compensation for unfair termination- The Claimant seeks the equivalent of 12 months’ salary, amounting to Kshs.120,000. Compensation under section 49(1)(c) of the Employment Act is discretionary and is assessed with reference to the factors set out in section 49(4). In favour of the Claimant, the Court considers: Her exceptionally long service of approximately 25 years;The abrupt stoppage of her salary; The absence of a formal hearing; The absence of a termination letter; and the failure to settle her terminal entitlements at the time of separation. Against the maximum award, the Court considers: The Respondents had a valid statutory reason for preventing her from teaching; She had been notified of the requirement to obtain TSC registration; She failed to obtain or produce the certificate; There was no evidence that she applied to TSC and was wrongfully denied registration; and her own non-compliance substantially contributed to the cessation of the employment relationship.This is therefore not an appropriate case for the maximum compensation of 12 months. Balancing the Claimant’s long service against the valid statutory reason and her contribution to the circumstances, an award equivalent to two months’ salary is fair and proportionate. The Claimant is awarded: Kshs.10,000×2=Kshs.20,000 1. Certificate of service- The Claimant pleaded that she was not issued with a certificate of service. A certificate of service is a statutory entitlement and is distinct from a testimonial or letter of recommendation. The Respondents shall issue the Claimant with a certificate of service within 30 days of this judgment. **Final determination** 1. In conclusion, the Court finds that: 2. The Respondents were the Claimant’s employers and were properly sued; 3. The Respondents terminated the Claimant’s employment when they barred her from teaching and stopped her salary; 4. Lack of TSC registration constituted a valid and fair reason for preventing her from continuing to teach; 5. The Respondents did not follow a fair termination procedure; 6. The termination was substantively justified but procedurally unfair; 7. The Claimant is entitled to notice pay, limited compensation and house allowance; and 8. The claims for salary arrears, gratuity and service pay have not been proved. **Orders** 1. Judgment is entered for the Claimant against the Respondents jointly and severally as follows: 2. One month’s salary in lieu of notice Kshs.10,000 3. Compensation equivalent to two months’ salary Kshs.20,000 4. Unpaid house allowance Kshs.54,000 **Total Kshs.84,000** 1. The Respondents shall issue the Claimant with a certificate of service within 30 days. 2. The sum awarded shall attract interest at court rates from the date of this judgment until payment in full. 3. As the Claimant has succeeded only in part, each party shall bear its own costs. 4. The claims for gratuity, salary for January to April 2019 and service pay are dismissed. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**