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Court of AppealDismissedCivil Appeal No. 26 of 2012 (with Civil Appeal No. 27 of 2012)· [2015] KECA 82 (KLR)

Bett Francis Barngetuny & another v Teachers Service Commission & another [2015] KECA 82 (KLR)

Court of Appeal of Kenya
10 December 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
3,871 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that teachers fairly dismissed by the TSC cannot rely on criminal acquittals or the Appeals Tribunal to get their jobs back.

What this practically means

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Executive summary

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Two former teachers, Bett Francis Barngetuny and Constantine Simati, dismissed by the Teachers Service Commission following allegations of sexual misconduct against pupils, challenged their dismissals in the High Court at Eldoret by way of constitutional petitions under the repealed Constitution, seeking among other reliefs reinstatement. The High Court (Azangalala, J.) dismissed both petitions, holding that the teachers had been given an opportunity to be heard and that the Teachers Service Appeals Tribunal lacked jurisdiction over dismissal cases. On appeal, counsel agreed that one judgment could dispose of both appeals, which were heard together but not consolidated. The Court of Appeal framed two substantive issues: whether the disciplinary proceedings violated the teachers' right to a fair hearing, and whether the Tribunal had jurisdiction over their appeals. The Court held that the disciplinary process complied with the rules of natural justice and regulation 66 of the Code of Regulations for Teachers: the appellants were served with interdiction notices, given adequate time to respond, appeared in person, testified and cross-examined witnesses before dismissal. On jurisdiction, the Court held that only a teacher refused registration or removed from the register of teachers may appeal to the Tribunal; dismissal from employment is a distinct outcome. The Court further held that disciplinary proceedings by an employer are not equivalent to criminal proceedings: the standards of proof and objectives differ, so Bett's acquittal of the rape charge did not entitle him to reinstatement. The Court affirmed the High Court's judgment in its entirety and dismissed both appeals with costs to the respondents.

Key legal issues

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01

Whether the appellants were accorded a fair hearing in the TSC disciplinary proceedings

Holding

The disciplinary process complied with natural justice: the appellants were served with interdiction notices, given time to respond, appeared in person, testified, cross-examined witnesses and their evidence was considered before the dismissal decision

Reasoning

Regulation 66 of the Code of Regulations for Teachers prescribes the disciplinary process: interdiction notice, investigations, adequate time to prepare and present a defence, and an opportunity to be heard in person. What constitutes 'adequate time' is contextual; neither appellant complained of inadequate time when he appeared. The record showed Bett attended, testified and cross-examined the complainant. The court followed the Nigerian Supreme Court decision in Imonikhe v Unity Bank Plc on fair hearing requirements.

p. 6
02

Whether the Teachers Service Appeals Tribunal had jurisdiction over appeals from dismissals (as opposed to removal from the register)

Holding

The Tribunal had no jurisdiction, as regulation 66(7)(b) confines appeals to cases of refusal to register or removal from the register of teachers; dismissal from employment is a distinct outcome

Reasoning

Regulation 66(7)(b)(i) permits only a teacher aggrieved by the Commission's refusal to register him or by removal from the register to appeal to the Tribunal within 28 days. The Commission, on finding a teacher guilty, may order dismissal and may also remove the teacher's name from the register; these are separate outcomes. The Tribunal's chairman had himself stated that it has no jurisdiction over dismissal cases, and the High Court could not be faulted for so holding.

p. 6
03

Whether Bett's acquittal of the rape charge obliged TSC to reinstate him

Holding

No. TSC acted in a quasi-judicial capacity, was not bound by the rules of evidence and procedure applicable in criminal courts, and applied a different standard of proof

Reasoning

TSC is empowered to interdict a teacher reasonably alleged not to be of good moral character and acts on general evidence relating to character or conduct. The court adopted the reasoning in Sinha v General Medical Council distinguishing criminal proceedings (establishing guilt for punishment by society) from professional disciplinary proceedings (assessing whether a professional has fallen below professional standards). In criminal cases doubt favours the accused, but disciplinary proceedings pursue distinct objectives.

p. 7
04

Whether the learned judge erred in reliance on the repealed Constitution and in failing to grant the reliefs sought

Holding

The submissions invoking Articles 22, 23, 24 and 25 of the 2010 Constitution were misplaced because the petitions were filed under the repealed Constitution of Kenya

Reasoning

Both petitions were brought under the repealed Constitution (sections 74, 77(9) and (10) and 84(1)). The right to a fair hearing under the repealed Constitution now finds expression in Articles 25(c) and 50(1) and (2) of the 2010 Constitution, but the applicable framework at the material time was the repealed provisions. The judge's reliance on De Souza v Chairman, Members of Tanga Town Council on the principles guiding quasi-judicial tribunals was correct.

p. 3

Legal principles established

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  • Dismissal of a teacher from employment is not the same as removal from the register of teachers; only a teacher refused registration or removed from the register may appeal to the Teachers Service Appeals Tribunal
  • Disciplinary proceedings by an employer cannot be equated to criminal proceedings; an acquittal in a criminal case does not bar an employer's disciplinary findings, as the standards and objectives of proof differ
  • A court of law should exercise great caution before interfering with an employer's findings where the disciplinary proceedings were conducted fairly in accordance with statutory or laid-down regulations

Court orders

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  1. 1.The two appeals are dismissed
  2. 2.Costs of the appeals awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 84(1)
  • Constitution of Kenya (repealed)section 74
  • Constitution of Kenya (repealed)section 77(9) and (10)
  • Constitution of Kenya, 2010Articles 22, 23, 24, 25(c) and 50(1) and (2)
  • Penal Codesection 140
  • Teachers Service Commission Actsection 7(b)
  • Teachers Service Commission Actsection 9
  • Teachers Service Commission Actsection 10
  • Teachers Service Commission Actsection 11
  • Regulations for Teachers (Code of Regulations for Teachers)regulation 66 (including 66(2), (3), (4)(a), (4)(b), (7)(b))
  • Regulations for Teachers (Code of Regulations for Teachers)regulation 70(2)(a)

Cases cited (7)

  • Charles Mbembe Oloo V Kenya Posts & Telecommunications Corporation
    [1982-88] 1 KAR
  • Judicial Service Commission Vs Gladys Boss Shollei & Another
    [2014] eKLR
  • Hypolito Cassiani De Souza V Chairman, Members Of Tanga Town Council
    [1961] E. A. 77
  • B. A. Imonikhe V Unity Bank Plc
    S. C. 68 of 2001
  • Owners Of The Motor Vessel "Lillian S" V Caltex Oil Company (Kenya) Limited
    [1989] KLR 1
  • Sinha And General Medical Council
    [2009] EWCA Civ 80
  • Nampak Corrugated Wadeville V Khoza
    (JA 14/98) [1998] ZALAC 24
On appeal from
High Court of Kenya at Eldoret
Jurisdiction invoked
First appellate jurisdiction over the High Court (petitions brought under sections 74, 77(9) and (10) and 84(1) of the repealed Constitution of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bett Francis Barngetuny & another v Teachers Service Commission & another [2015] KECA 82 (KLR)", Case Analysis (2015). Civil Appeal No. 26 of 2012 (with Civil Appeal No. 27 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/82/eng@2015-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.