The Teachers' Service Commission (TSC) has been directed to compensate a teacher with full payment of all monies owed from the date she was removed from the payroll until her rightful retirement date.
In a statement shared by the Commission on Administrative Justice (CAJ) on Monday, October 6, the ombudsman found that TSC erred in terminating the teacher's services on grounds of public interest without following due process.
The case involves a teacher identified as MJG, who was retired from her teaching position at Rwika Technical Institute in March 2024 on vague grounds of public interest.
In March 2024, the Commission received a complaint from MJG alleging that she was unjustifiably retired from her teaching position at the technical institute.
By way of inquiry, CAJ wrote to TSC on April 2, 2024, and received a response on April 3, 2024, stating that a complaint resolution process had been initiated and a response would follow once the process was complete.
Read More
CAJ followed up on April 23, 2024, requesting an update within 30 days.
On July 9, 2024, TSC stated that MJG had retired in the public interest and that her pension and benefits had been processed and paid in 2005.
However, MJG, in a rejoinder dated May 5, 2025, categorically denied any history of mental illness and asserted that TSC did not seek authority from the Medical Board appointed by the Director of Medical Services to confirm any incapacity.
The Commission informed TSC of this rejoinder on April 23, 2025, requiring a response within 14 days. TSC replied on May 29, 2025, providing documents supporting that MJG was retired in the public interest.
The Commission analyzed whether the complainant was unfairly retired on public interest grounds.
CAJ observed that TSC consistently relied on "Public Interest on Medical Grounds" to justify MJG's retirement. However, the ombudsman noted that retirement on medical grounds are distinct modes of retirement recognized under the Teachers Service Commission Code of Regulations.
In DK Njagi Marete v Teachers Service Commission &118, the court stated that retirement in the public interest must always be based on objective and demonstrable grounds, emphasizing that such decisions require proper justification.
"When a public employer justifies the premature termination of a contract of employment on the grounds of public interest, such an employer must show that a public policy objective drives its decision and that the decision taken is legitimate and justifiable. It is not enough to merely wish to offer to inform the employee of retirement on public interest grounds. There must be valid reasons amounting to public interest to justify the termination,” the court stated.
The Commission found that retirement on public interest or medical grounds is valid only if it is objectively shown that medical issues affected MJG's capacity to perform her duties, per a valid medical report from a Medical Board appointed by the Director of Medical Services.
The Supreme Court in Gichuru v Package Insurance Brokers Ltd (Petition 34 of 2019) KESC 12 (KLR) held that employers must demonstrate that medical assessments were conducted, which rendered the employee incapable of performing.
TSC was also faulted for not following due process. The Commission noted that TSC failed to adhere to Employment Act provisions on termination for incapacity. Section 41(1) of the Employment Act (Cap 226) requires the employer to explain the reasons for considering termination and afford the employee a hearing. This was not done in MJG's case.
Based on these findings, CAJ has ordered TSC to compensate the teacher fully by paying all monies owed from the date she was removed from the payroll until her rightful retirement date.
