Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others
The bottom line
#Kenya's Court of Appeal confirmed a teacher's dismissal was procedurally unfair but cancelled his reinstatement, awarding him Kshs. 2.5 million instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally unfair despite a show-cause notice and investigation committee hearing
Yes. The HR Manual prescribes distinct investigatory and disciplinary processes; the Committee was only investigative, and termination before a Discipline Panel hearing short-circuited the process, denying the respondent the section 41 protections.
The HR Manual at paragraphs 116 and 118 provides distinct investigatory and disciplinary processes. The Committee itself clarified it was investigative, not disciplinary. Only before the Discipline Panel could the respondent secure full section 41 Employment Act protections, including the presence of another employee or union representative. Terminating on the investigation report alone deprived him of that opportunity, rendering the termination procedurally unfair.
Whether reinstatement was an appropriate remedy
No. The trial Judge focused on procedural flaws without adequately considering the section 49(4) factors, particularly practicability, the seniority of the position, and the breakdown of trust.
Reinstatement is discretionary and exceptional. The respondent held a senior position (Deputy Commission Secretary) requiring high trust; the allegations touched on Chapters 6 and 13 of the Constitution involving abuse of office and procurement interference. The investigation report contained findings that, if true, would undermine trust. The trial Judge failed to weigh these factors, so her discretion was erroneously exercised and the reinstatement order could not stand.
Whether the reinstatement order violated the Government Proceedings Act
No. Section 12 of the ELRC Act expressly confers jurisdiction on the ELRC to grant reinstatement; the Government Proceedings Act does not oust it.
The court held the two statutes must be read harmoniously, with the specific provisions of the Employment Act prevailing over the general provisions of the Government Proceedings Act. The ground was therefore without merit.
Whether the respondent should leave empty-handed once reinstatement is set aside
No. Having proved the termination unprocedural, he was awarded compensation equivalent to eight months' salary, fixed at Kshs. 2,500,000 with interest.
Although the Committee found the respondent culpable of serious allegations, he remained entitled to compensation for the unprocedural termination. Balancing these, the court found eight months' salary adequate, computed from his monthly salary of Kshs. 308,423 and rounded to Kshs. 2,500,000, attracting interest from the date of judgment.
Legal principles established
#- Employers undertaking disciplinary proceedings must adhere strictly to the procedures in statute and their human resource manuals; an investigatory committee cannot substitute for the disciplinary process required before termination.
- Termination of employment requires both valid substance and fair process; an employer with good reasons may still terminate unfairly if procedure is not followed.
- Reinstatement is an exceptional remedy, not to be granted routinely; the court must be satisfied the employment relationship can be restored without undue strain.
- The Government Proceedings Act does not oust the ELRC's statutory jurisdiction to order reinstatement; the specific Employment Act provisions prevail over the general Government Proceedings Act.
- For senior public officers entrusted with public resources, the threshold for reinstatement is higher where allegations of integrity-related misconduct arise.
Court orders
#- 1.Civil Appeal E168 of 2023 withdrawn by consent with no order as to costs
- 2.The remedy of reinstatement set aside; the trial court's order of reinstatement cannot stand
- 3.Award to the respondent of Kshs. 2,500,000 as compensation for violation of his right to fair process, with interest at court rates from the date of judgment until payment in full
- 4.Each party to meet own costs of the appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Petition No. E132 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC under the Employment and Labour Relations Court Act; appeal against judgment and orders of Mbaru, J.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others", Case Analysis (2026). Civil Appeal E109 & E168 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.