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ELRCDismissedPetition (number not stated in judgment)· [2017] KEELRC 1952 (KLR)

C A v Teachers Service Commission [2017] KEELRC 1952 (KLR)

Employment and Labour Relations Court
19 January 2017
MOMaureen Onyango
3,978 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a sacked teacher's constitutional petition because it vaguely pleaded rights violations and the TSC followed fair disciplinary procedure.

What this practically means

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Executive summary

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A former teacher petitioned the Employment and Labour Relations Court challenging his 2011 dismissal and removal from the register of teachers by the Teachers Service Commission on allegations of an illicit relationship with a Standard 8 pupil. He sought a declaration that the dismissal was unconstitutional, reinstatement, and salary and dues from the date of dismissal. He argued the interdiction was made without delegated authority, that he was denied a fair hearing, that disciplinary proceedings were barred by his absolution by the CID and prosecution office in Kakamega (another man, Abdul Nassir Kassim, allegedly having defiled the pupil), and that procedural safeguards under the Employment Act were breached. The TSC countered that it followed the disciplinary procedure in the TSC Act and the Code of Regulations for Teachers, that criminal and disciplinary processes are mutually exclusive, and that the petition failed to plead constitutional violations with precision. The court, per Maureen Onyango J, held the petition fell short of the Anarita Karimi Njeru standard: it neither identified the constitutional provisions violated nor how they were violated, and confused complaints about interdiction with those about dismissal. On the evidence, the Petitioner was given a fair hearing - charges were read, he cross-examined witnesses, and he filed written defences. His claim of dismissal before investigations was unfactual, his failure to attend an 18th April 2011 meeting was noted, and the Kassim allegation was an afterthought absent from all his defence statements. Criminal and disciplinary proceedings were held mutually exclusive, and the Petitioner was never acquitted by a competent court. The petition was dismissed with no orders for costs.

Key legal issues

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01

Whether the petition met the constitutional pleading standard

Holding

The petition fell short of the Anarita Karimi Njeru test; it did not state the constitutional provisions violated or how

Reasoning

The petition generically asserted rights violation without identifying provisions or the nature of injury, contrary to Rule 10(2) of the Mutunga Rules and the Anarita Karimi Njeru principle as reinforced in Mumo Matemu. There was also confusion between complaints about interdiction and dismissal, raising questions of competency.

p. 6
02

Whether the Petitioner was accorded a fair hearing

Holding

The Petitioner was subjected to a fair disciplinary hearing under the TSC Act and Code of Regulations for Teachers

Reasoning

The disciplinary proceedings of 15th August 2011 show charges were read to the Petitioner, he cross-examined witnesses, presented written defences, and was heard at earlier meetings. His claim of dismissal before investigations was found unfactual, and his failure to attend the 18th April 2011 meeting was noted.

p. 7
03

Whether acquittal by police/CID bars disciplinary proceedings

Holding

No; criminal and disciplinary proceedings are mutually exclusive, and the Petitioner was never tried by a competent court

Reasoning

The standard of proof in criminal cases is higher; the disciplinary charge was professional misconduct under civil law. Under Section 44(4)(g) of the Employment Act an employee may face discipline on the same grounds as criminal charges. Moreover, the Petitioner was never acquitted by a court, only absolved by investigators.

p. 7
04

Whether the allegation that another person (Abdul Nassir Kassim) committed the offence was credible

Holding

It was an afterthought, never raised in the disciplinary proceedings or written defences

Reasoning

The three defence statements of 18th May, 12th July and 9th September 2011 never mentioned Kassim; the allegation first surfaced in the petition and could not stand against the documented disciplinary record.

p. 7

Legal principles established

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  • A person claiming constitutional infringement must state with precision the constitutional provisions violated and the manner of violation (Anarita Karimi Njeru principle)
  • Disciplinary proceedings and criminal proceedings are mutually exclusive, with different standards of proof

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 19(2), 20(1),(3),(4), 21(1), 22(1), 23(1), 28, 47(1) and (2), 48, 50(1), 237(1)
  • Teachers Service Commission Actgenerally
  • Code of Regulations for TeachersRegulations 66(2), 66(5)(c)
  • Public Officer Ethics Act (No. 4 of 2003)Section 5(1)
  • Employment ActSections 41, 43, 44(4)(g), 45
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4(1), 10(1) and (2)
  • Industrial Court ActSection 4(1)

Cases cited (7)

  • Catherine Wanjiru Watoro V. Teachers Service Commission & 2 Others
    [2014] eKLR
  • Sarah Nyanchama Ratemo – Kizito V. Teachers Service Commission
    [2013] eKLR
  • ANARITA KARIMI NJERU V. REPUBLIC
    [1979] eKLR
  • MUMO MATEMU V. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS
    [2013] eKLR
  • JOSEPH MUJIBI OUMA V. NATIONAL CEREALS AND PRODUCE BOARD AND TWO OTHERS
    Civil Suit No. 156 of 1997
  • DALMAS B. OGOYE V. KNTC
    Civil Appeal No. 125 of 1995
  • UNIVERSITIES ACADEMIC STAFF UNION V. MASINDE MULIRO UNIVERSITY OF SCIENCE AND TECHNOLOGY
    Cause No. 379 of 2010
Jurisdiction invoked
Articles 19(2), 20, 21(1), 22(1), 23, 28, 47(1) and (2), 48 and 50(1) of the Constitution of Kenya 2010, invoked by the Petitioner

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, "C A v Teachers Service Commission [2017] KEELRC 1952 (KLR)", Case Analysis (2017). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1952/eng@2017-01-19

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