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ELRCPartially AllowedPetition filed at High Court Bungoma, transferred to Industrial Court at Kisumu (disciplinary Case No. TSC/DISC/1067/05/2011/2012 referenced)· [2014] KEELRC 1261 (KLR)

Patrick Wanyonyi Khaemba v Secretary – T.S.C & Zahara Bashir Sheikh (Constitutional Petition 231 of 2013) [2014] KEELRC 1261 (KLR)

Industrial Court (Employment and Labour Relations Court), Kisumu
16 September 2014
HWHellen S. Wasilwa
4,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that the Teachers Service Commission denied a teacher fair treatment by interdicting him without proper investigation, and ordered his full salary backdated to 2012.

What this practically means

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Executive summary

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The petitioner, a teacher employed by the Teachers Service Commission since 1992, was interdicted by letters dated 17.4.2012 and 23.5.2012 for alleged desertion of duty and tampering with the school time-table at Rhamu Girls Secondary School, and after a disciplinary hearing in Nairobi was suspended for two months with loss of salary from 1.2.2012. He petitioned the High Court at Bungoma (later transferred by consent to the Industrial Court at Kisumu) seeking declarations that his rights to fair hearing under Article 50(1), fair administrative action under Article 47 and fair labour practices under Article 41 were violated, judicial review orders of certiorari, prohibition and mandamus, damages including for defamation, and a declaration that Regulation 68 of the Code of Regulations for Teachers was discriminatory. The respondents maintained he deserted duty and was accorded due process. The court, Hellen S. Wasilwa J, dismissed the suit against the 2nd respondent, holding she was improperly sued in her personal capacity under Section 22 of the TSC Act and Section 62 of the Basic Education Act, applying the KACC v Judith Marilyn Okungu decision. On due process, the court found no investigation preceded the interdiction and that the disciplinary panel ignored evidence that the petitioner had been removed from the timetable and had complained to the Commission, rendering all decisions arising from the verdict null and void. However, the defamation claim failed for want of malice. The court declared Regulation 68 unconstitutional and discriminatory to the extent it denied certain interdicted teachers half salary, contrasted it with PSC, JSC and Prisons regulations, and ordered quashing of the disciplinary decisions, payment of full withheld salary and benefits, and costs against the 1st respondent.

Key legal issues

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01

Proper parties - personal liability of public officers

Holding

The 1st respondent (Commission secretary) was properly sued; the 2nd respondent (Principal) was improperly sued in her personal capacity and the suit against her was dismissed

Reasoning

Section 22 of the TSC Act shields officers acting in good faith from personal liability, and Section 62 of the Basic Education Act protects board secretaries acting in official capacity. Following the KACC v Judith Marilyn Okungu decision, public officers sued over official acts are improperly enjoined absent personal benefit.

p. 6
02

Due process in disciplinary proceedings

Holding

The disciplinary process violated the petitioner's right to fair hearing because no investigation preceded interdiction and the panel ignored evidence that the petitioner had been removed from the timetable and had complained to the Commission

Reasoning

Regulation 66(3)(a) requires investigation before interdiction. The Principal's evidence contradicted itself and that of the Director of Studies, who confirmed the petitioner's name was missing from the timetable list. The panel ignored the petitioner's visits to TSC headquarters evidenced by visitor passes. The guilty verdict was therefore without valid consideration.

p. 8
03

Constitutionality of Regulation 68 of the Code of Regulations for Teachers

Holding

Regulation 68 is unconstitutional to the extent it denies certain interdicted teachers half salary while other public officers receive it

Reasoning

Article 27 guarantees equality and non-discrimination. Comparable regulations under the PSC, JSC and Prisons provide at least half salary on interdiction, leaving teachers uniquely exposed to total denial of pay. Presuming interdicted employees guilty is unconstitutional; the regulation was declared null and void to that extent.

p. 9
04

Defamation

Holding

The defamation claim failed as there was no evidence of malice

Reasoning

The court found the 1st respondent followed its Code of Regulations in the process against the petitioner, and there was no indication of malicious treatment; hence the claim had no force of law despite the eventual nullification of the verdict.

p. 8

Legal principles established

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  • An employer/Commission must investigate allegations before interdicting a teacher and must consider evidence favourable to the employee; failure to do so violates Article 47
  • A disciplinary verdict reached without valid consideration of the employee's evidence and explanations is null and void
  • Any regulation presuming interdicted employees guilty and denying them all salary is unconstitutional and discriminatory

Court orders

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  1. 1.Declaration that the 1st respondent did not comply with the law and regulations governing disciplinary Case No. TSC/DISC/1067/05/2011/2012, infringing the petitioner's right to a fair hearing under Article 50(1), and that all consequential decisions and measures are null and void
  2. 2.Declaration that Regulation 68 of the Code of Regulations for Teachers (Revised 2005) is unconstitutional, null and void to the extent it permits discrimination against certain interdicted teachers by denying them half salary
  3. 3.Order quashing all decisions and measures taken against the petitioner arising from the disciplinary proceedings
  4. 4.Order directing the 1st respondent to halt implementation of decisions arising from the disciplinary case and forthwith pay the petitioner his full salary, allowances and benefits withheld from 1.2.2012
  5. 5.1st respondent to meet costs of the petition
  6. 6.Suit against the 2nd respondent dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1), 27(4), 33, 35, 41(1), 47, 50(1), 253(a) and (b)
  • Teachers Service Commission Act Cap 212Sections 9, 21(1), 21(2), 22
  • Code of Regulations for Teachers (Revised 2005)Regulations 6, 18(d), 26(3), 65(1)(a), 65(1)(c), 66, 66(2), 66(3)(a), 68
  • Employment Act 2007Sections 5, 43, 46(h)
  • Basic Education Act (2013)Section 62
  • Education Act Cap 211Not specified
  • Government Proceedings Act Cap 40Section 4(3)
  • Public Service Commission RegulationsRegulation 23
  • Judicial Service Commission RegulationsRegulation 17
  • Public Service Commission (Prison Service) Regulations 2006Regulation 23

Cases cited (1)

  • Kenya Anti-Corruption Commission Vs Judith Marilyn Okungu & Another
    (2013) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction; petition transferred by consent from High Court at Bungoma to the Industrial Court; rights under Articles 41, 47, 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Patrick Wanyonyi Khaemba v Secretary – T.S.C & Zahara Bashir Sheikh (Constitutional Petition 231 of 2013) [2014] KEELRC 1261 (KLR)", Case Analysis (2014). Petition filed at High Court Bungoma, transferred to Industrial Court at Kisumu (disciplinary Case No. TSC/DISC/1067/05/2011/2012 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1261/eng@2014-09-16

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