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ELRCDismissedPetition No. 14 of 2012· [2015] KEELRC 411 (KLR)

Peter Kabunyi Gathinji v Teachers’ Service Commission [2015] KEELRC 411 (KLR)

Employment and Labour Relations Court
8 October 2015
HWHellen S. Wasilwa
2,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a teacher acquitted in a criminal case could still be lawfully dismissed after a fair disciplinary hearing.

What this practically means

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Executive summary

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The Petitioner, a former P1 teacher employed by the Teachers Service Commission, was interdicted in March 2007 over allegations of carnal knowledge of two standard four pupils. He was charged with two counts of attempted defilement under Section 9(2) of the Sexual Offences Act before the Resident Magistrate's Court at Limuru and acquitted on both counts in June 2007 under Section 210 of the Criminal Procedure Code for lack of sufficient evidence. He nonetheless appeared before a Disciplinary Committee of the Commission on 8th May 2008 and was dismissed from service the same day for contravention of the TSC Act and Code of Regulations. He petitioned the Employment and Labour Relations Court claiming infringement of Articles 20(1), 21(1), 28, 47 and 50 of the Constitution, seeking declarations, reinstatement, compensation, general damages and costs. The Respondent maintained he was accorded due process, having been given notice, an opportunity to respond and to cross-examine witnesses. Wasilwa J framed four issues and held that the Petitioner received a fair hearing; that disciplinary proceedings are not bound by criminal trial outcomes, applying the distinction in standards of proof; and that the Commission's disciplinary mandate was not ousted by the acquittal. The court found valid reasons for dismissal and dismissed the Petition with costs to the Respondent.

Key legal issues

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01

Whether the Petitioner was accorded a fair hearing

Holding

Yes - notice was given, the Petitioner attended, heard the evidence and cross-examined witnesses.

Reasoning

Regulation 66(3) of the Code of Regulations for Teachers 2005 outlines the disciplinary process, requiring investigation, interviewing of witnesses and a hearing. Evidence showed witnesses were called and the Petitioner cross-examined them. Notice of the meeting was given and he attended. The panel therefore complied with the Code and the dismissal decision, made in 2008, was independent of the criminal proceedings.

p. 4
02

Whether an employer's mandate to discipline is ousted by the outcome of a criminal trial

Holding

No - the Commission was not bound by the criminal court's acquittal to reverse its own decision.

Reasoning

Disciplinary proceedings pursue a different objective from criminal trials: the former deal with a delinquent under internal rules while the latter inflict penal punishment. The degree of proof differs - beyond reasonable doubt in criminal cases versus preponderance of probability in disciplinary matters. The court relied on Joseph Wambugu Kimenju and Gladys Boss Shollei to hold the employer's mandate intact.

p. 4
03

Whether the reasons for dismissal were justified

Holding

Yes - the victims gave evidence and the Committee confirmed the misconduct.

Reasoning

The evidence showed the two pupils gave evidence before the Committee, which confirmed the alleged carnal knowledge of the minor. This was also not the first time the Petitioner was dismissed for related behaviour, having been dismissed in 1979 and reinstated in 1988. The court found valid reasons existed to dismiss him under the TSC Act and Code of Regulations.

p. 5

Legal principles established

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  • The standard of proof in disciplinary proceedings is lower than in criminal proceedings; acquittal in a criminal court does not bind an employer.
  • An employer's disciplinary mandate is not ousted by the outcome of a criminal trial.

Court orders

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  1. 1.The Petition is dismissed.
  2. 2.The Petitioner to pay costs of the Petition to the Respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1), 21(1), 28, 47, 50
  • Teachers Service Commission ActCap 212
  • Sexual Offences ActSection 9(2)
  • Criminal Procedure CodeSection 210
  • Code of Regulations for TeachersRegulation 66(3) (2005)
  • Penal Code

Cases cited (4)

  • Constantine Simati vs. Teachers Service Commission and Another
    Eldoret Petition No. 628 of 2006
  • Peter Nidrangu vs. Teachers Service Commission
    Cause No. 879 of 2014
  • Joseph Wambugu Kimenju vs. Attorney General
    Industrial Court Case No. 15/2013 (2013) eKLR
  • Gladys Boss Shollei vs. Judicial Service Commission
Jurisdiction invoked
Articles 20(1), 21(1), 28, 47 and 50 of the Constitution of Kenya, 2010

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, "Peter Kabunyi Gathinji v Teachers’ Service Commission [2015] KEELRC 411 (KLR)", Case Analysis (2015). Petition No. 14 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/411/eng@2015-10-08

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