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Court of AppealDismissedNot stated in the judgment (appeal from ELRC, filed by memorandum of appeal dated 17th July 2019)

Adipo v Teachers Service Commission (Civil Appeal 143 of 2019) [2024] KECA 1591 (KLR)

Court of Appeal of Kenya
8 November 2024
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a teacher cannot block an interdiction early in the disciplinary process where the employer followed the required show-cause and investigation steps.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against the judgment of the Employment and Labour Relations Court (Nduma J.) dated 14th March 2019, which dismissed the appellant's claim against her interdiction by the Teachers Service Commission. The appellant, a school principal, had sought a permanent injunction suspending a letter of interdiction dated 6th October 2016, contending that the interdiction was issued unilaterally and unprocedurally without compliance with regulation 146(6) of the TSC Code of Regulations for Teachers, which guarantees procedural safeguards before interdiction, and in violation of her right to fair administrative action under Article 47 of the Constitution. The respondent maintained that a show-cause letter was issued, answered, an investigation conducted, and only then the interdiction letter sent, and that the disciplinary process was a stillbirth since the appellant had stopped it in its tracks. Writing the leading judgment, Mumbi Ngugi JA reappraised the record and found the respondent's uncontroverted averments established a sound basis for the interdiction; that at that early stage no infringement of the regulation 146(6) safeguards had been shown; and that the prayer sought was not capable of grant. Kiage and Joel Ngugi JJA concurred. The appeal was dismissed with costs to the respondent, affirming the decision of the ELRC.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the respondent had commenced and followed the disciplinary process provided by law, including regulation 146(6) of the TSC Code of Regulations for Teachers, before issuing the letter of interdiction
  2. 2.Whether the letter of interdiction dated 6th October 2016 infringed the appellant's right to fair administrative action under Article 47 of the Constitution
  3. 3.Whether the prayer in the statement of claim (a permanent injunction suspending the letter of interdiction) was capable of being granted

Key legal issues

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01

Whether the respondent complied with regulation 146(6) of the TSC Code of Regulations for Teachers before interdicting the appellant

Holding

The Court found the respondent had a basis for its actions: a show-cause letter was sent, the appellant responded, an investigation was carried out, and only then was the interdiction letter issued; at that early stage no infringement of the regulation 146(6) safeguards was shown

Reasoning

The respondent's uncontroverted averments in the replying affidavit of Mary Rotich showed it received information of misconduct, issued a show-cause letter dated 10th February 2016, received the appellant's reply, investigated, and then interdicted. Although the annexures to the affidavit were omitted from the record, the averments stood uncontroverted. The disciplinary process had only commenced, so the safeguards in regulation 146(6) had not yet been, and were not in danger of being, infringed.

p. 6
02

Whether the prayer sought in the memorandum of claim was capable of being granted

Holding

The Court agreed with the trial court that a permanent injunction suspending the interdiction letter could not be granted upon final determination of the suit, notwithstanding the appellant's 'copy paste error' explanation

Reasoning

The trial court had found the prayer misconceived and incapable of grant at final determination because interdiction is an intermediate step in the disciplinary process. The Court of Appeal agreed that there was a sound basis for the interdiction letter and that a permanent injunction against the intended disciplinary process could not issue at that stage.

p. 6
03

Duty of a first appellate court

Holding

The Court affirmed its duty to reappraise the evidence and reach its own conclusions

Reasoning

As a first appellate court, the Court is obliged to re-evaluate the material before the trial court and draw its own conclusions, which it did by examining the pleadings, the replying affidavit and the regulatory framework governing interdiction before affirming the trial court's dismissal of the claim.

p. 2

Legal principles established

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  • A first appellate court is under a duty to reappraise the evidence before the trial court and reach its own conclusions
  • At the early interdiction stage of a disciplinary process, an employee cannot obtain a permanent injunction against the interdiction where the employer has shown cause, conducted an investigation and issued the interdiction letter on a lawful basis

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
Employment and Labour Relations Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (not expressly stated; appeal per memorandum dated 17th July 2019)

Relief refused

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Permanent injunction suspending the contents of the letter of interdiction dated 6th October 2016

The prayer was not capable of being granted at that early stage of the disciplinary process, and the respondent had shown a lawful basis for the interdiction

p. 6

Declaration that regulation 146(6) procedural safeguards had been violated

At the interdiction stage the disciplinary process had only just started; no evidence that the safeguards under regulation 146(6) had been or were in danger of being infringed

p. 6

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In light of the above matters, I find no merit in this appeal. I would dismiss it with costs to the respondent.
p. 7Disposition - dismissal of the appeal
The disciplinary process had just started, and at this early stage, there was no evidence or a basis to argue that the procedural safeguards that the appellant was entitled to in the disciplinary process as provided under regulation 146(6) had been infringed or in danger of being infringed.
p. 6Prematurity of claims challenging interdiction at the commencement of disciplinary process
The appellant had been sent a letter requiring her to show cause. She had responded. An investigation had been carried out, then the letter of interdiction had been sent.
p. 6Compliance with the regulatory sequence before interdiction
the prayer before the court was not one that could be granted 'upon final determination of the suit on the merits'
p. 6Incapability of the prayer sought
As a first appellate court, we are under a duty to reappraise the evidence before the trial court and reach our own conclusions.
p. 2First appellate court duty
A memorandum of appeal shall concisely set forth under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against
p. 2Rule 88(1) Court of Appeal Rules - concise memoranda of appeal

Issues in the judgment

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minor

Inconsistency in dates of the appellant's reply to the show-cause letter: the judgment records the respondent averring a reply dated 15th July 2016, and later the same reply as dated 17th July 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Adipo v Teachers Service Commission (Civil Appeal 143 of 2019) [2024] KECA 1591 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal from ELRC, filed by memorandum of appeal dated 17th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1591/eng@2024-11-08

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