Joshua Kipkeitany Cheptim v Teachers Service Commission [2016] KEELRC 1592 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The Respondent substantially complied with procedural fairness/natural justice
The Claimant was interdicted with the allegations set out in writing, given 21 days to respond, responded in writing, was granted an oral hearing at which witnesses were examined, and lodged an appeal which was considered. Though he complained he could not question witnesses or call his own, the Court held a disciplinary hearing is not a mini-court and formalities of a trial need not be followed.
Substantive fairness of the dismissal
The dismissal was substantively unfair; the Respondent failed to prove the reason as valid and fair
The burden under sections 43 and 45 lay on the employer. The pupil witness disowned paternity of her child; the second witness was untruthful, claiming his letters were written under duress while on remand; the Respondent's witnesses were inconsistent on where the incident occurred (office versus toilet); and the Respondent declined the Court's suggestion to use DNA science. The reason for dismissal was therefore not proved.
Whether payment under section 36 of the Employment Act excuses an employer from giving reasons
It does not; sections 43 and 45 require the employer to prove valid and fair reasons regardless
The Respondent relied on David Mwaniki Maluki v Sandies Tropical Village for the suggestion that an employer paying under section 36 need not give reasons. The Court rejected that suggestion as contrary to the express statutory requirements of sections 43 and 45, holding section 45 gives ordinary employees security of tenure.
Appropriate remedies
One month's pay in lieu of notice at Kshs 13,380/- and maximum compensation of 12 months' gross wages at Kshs 23,849/- per month; reinstatement and lost prospective income refused
Compensation was fixed considering length of service (employed 2007, dismissed 2009) and the conclusion of unfairness. Lost prospective income was declined because the McQueen authority concerned a fixed-term contract unlike the Claimant's permanent and pensionable one, and reinstatement was deemed unsuitable.
Legal principles established
#- A disciplinary hearing is not a formal court proceeding; procedural fairness is assessed on the circumstances of each case
- An employer bears the onerous burden of proving valid and fair reasons for termination under sections 43, 45 and 47 of the Employment Act
- Section 45 of the Employment Act confers security of tenure on ordinary employees, and an employer must prove reasons even after payment in lieu of notice under section 36
Court orders
#- 1.Declaration that the dismissal was substantively unfair as the Respondent failed to prove the reason as valid and fair
- 2.Payment of 1 month pay in lieu of notice (Kshs 13,380/-)
- 3.Payment of maximum compensation of 12 months gross wages (Kshs 286,188/-)
- 4.Total award of Kshs 299,568/- payable by the Respondent to the Claimant
- 5.Costs of the cause to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim of unfair dismissal (Employment Act, 2007); Cause transferred to Nakuru by direction of the Principal Judge on 5 August 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kipkeitany Cheptim v Teachers Service Commission [2016] KEELRC 1592 (KLR)", Case Analysis (2016). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1592/eng@2016-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.