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ELRCPartially AllowedCause No. 323 of 2013· [2016] KEELRC 866 (KLR)

Zakayo Mbogo Mbogo v Teachers Service Commission [2016] KEELRC 866 (KLR)

Employment and Labour Relations Court of Kenya
16 June 2016
2,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan teacher's dismissal was cut to ordinary termination because the exact misconduct charged was never proved — though serious evidence of intent stood against him.

What this practically means

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Executive summary

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The Claimant, a teacher employed by the Teachers Service Commission since 1993, was interdicted in February 2011 on allegations of immoral behaviour with a student, DM, said to have occurred on 27th June 2008. After an amended interdiction letter, a disciplinary hearing and an unsuccessful appeal, he was dismissed on 6th September 2011. He sued for a declaration that the dismissal was unfair and unlawful, terminal benefits, notice pay, unpaid salary, general damages, compensation and lost years totalling Kshs.11,741,348/-. The Respondent defended the dismissal as following a rigorous disciplinary process before an impartial panel. The court framed four issues: the Claimant's residence on the material date, whether he was found in his house with DM, whether the termination was unfair, and entitlement to remedies. On the evidence, the court disbelieved the Claimant's account of rescuing DM from boys at a bus stop, finding instead that he was arrested from his house at Birongo Market and escorted to the police post together with DM. The court held that the disciplinary process complied with section 41 of the Employment Act and the Code of Regulations for Teachers, so the procedure was fair. However, although the circumstances showed an intention to have carnal knowledge of the student, the specific charge of carnal knowledge was not proved. The court therefore reduced the summary dismissal to termination and awarded notice pay of Kshs.148,038/- (three months' salary per the appointment letter). Damages, compensation and the lost years claim were refused, and each party was ordered to bear its own costs. Judgment was delivered on 16th June 2016 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the Claimant was unfairly dismissed

Holding

The dismissal was procedurally fair, but the substantive ground of carnal knowledge was not proved, so the summary dismissal was reduced to termination

Reasoning

The court found the Claimant was subjected to disciplinary hearings by the Board of Governors and the Commission, at which he participated, satisfying section 41 and the Code of Regulations for Teachers. However, on the merits, although evidence showed he was found in his house with his student, there was no proof of carnal knowledge. The circumstances indicated an intention to have carnal knowledge, which did not sustain summary dismissal.

p. 5
02

Whether the Claimant was found in his house with DM

Holding

The court believed the Respondent's witnesses that the Claimant was found in his house with DM at Birongo Market and escorted to the police post

Reasoning

The evidence of RW1 and RW2, corroborated by the written statement of the Assistant Chief (deceased), explained in detail how the Claimant was found in his house with the girl. The Claimant's rescue narrative left unanswered questions and he did not controvert the Assistant Chief's statement. The court found he did not tell the truth about the reasons he was taken to the police post.

p. 5
03

Whether the Claimant was residing at Birongo Market on 27th June 2008

Holding

No proof that the Claimant was not living at Birongo (Irondi) on the material date

Reasoning

The Claimant testified he had moved to Keumbu in March 2008 but produced no corroborating evidence such as proof of tenancy. The Respondent's witnesses RW1 and RW2 gave detailed accounts of finding him at his house at Birongo Market, which the Claimant did not controvert.

p. 5
04

Remedies entitlement

Holding

Claimant entitled only to three months' notice pay of Kshs.148,038/-; damages, compensation and lost years refused

Reasoning

Having reduced the dismissal to termination, the court applied the contractual notice entitlement in the letter of appointment. Compensation and damages were denied because of the circumstances of the misconduct, and the lost years claim lacked legal foundation.

p. 6

Legal principles established

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  • For a termination to be valid there must be both a valid reason under section 43 of the Employment Act and a fair procedure under section 41
  • Where the proved misconduct does not support the ground stated, summary dismissal may be reduced to ordinary termination

Court orders

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  1. 1.Summary dismissal reduced to termination
  2. 2.Claimant awarded pay in lieu of notice of Kshs.148,038/- being 3 months salary as provided in the letter of appointment
  3. 3.Claims for damages, compensation and lost years dismissed
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 41
  • Code of Regulations for Teachers (Revised 2005)Chapter 10; Regulation 66(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute over unfair termination)

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, "Zakayo Mbogo Mbogo v Teachers Service Commission [2016] KEELRC 866 (KLR)", Case Analysis (2016). Cause No. 323 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/866/eng@2016-06-16

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