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ELRCDismissedCause No 1031 of 2010· [2018] KEELRC 687 (KLR)

Marion Caroline Kanuri v Teachers Service Commission [2018] KEELRC 687 (KLR)

Employment and Labour Relations Court
2 November 2018
MOMAUREEN ONYANGO
3,151 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 upheld a teacher's interdiction and unpaid suspension, ruling the TSC followed fair disciplinary procedure and owed no salary.

What this practically means

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Executive summary

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The Claimant, a former teacher employed by the Teachers Service Commission, challenged her interdiction by the Board of Governors of Kimuchu Secondary School in September 2009 and her subsequent four-month suspension by the TSC in April 2010, on charges of chronic absenteeism, insubordination, negligence of duty and infamous conduct. She sought a declaration that the interdiction and suspension were unlawful, payment for the interdiction/suspension period, payment for about four months she remained unposted after suspension, payment for two months worked but unpaid, costs and interest. The Respondent defended the disciplinary process as compliant with Regulation 66 of the Code of Regulations for Teachers and the rules of natural justice, relied on Regulation 68 barring pay during interdiction for absenteeism, and argued the post-suspension delay arose from the Claimant's refusal of an offered posting while pursuing a PhD. The court found the quorum of the Board proper, the claimant was heard in writing and at a disciplinary hearing where she cross-examined witnesses, and she admitted most charges and did not contest adverse findings. Relying on authority that courts should exercise great caution before interfering with fairly conducted disciplinary findings, the court held the interdiction and suspension lawful, found no malice, and held that the post-suspension delay and lost pay were of the claimant's own making. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Lawfulness of the interdiction and suspension

Holding

Both were lawful; the disciplinary process complied with Regulation 66 of the Code of Regulations for Teachers and the rules of natural justice

Reasoning

The quorum of the Board was proper; the claimant was given opportunities to respond in writing and at the disciplinary hearing, to cross-examine witnesses and present her case. She admitted most charges, did not contest the findings against her, and produced no evidence she was present on the days she was absent. No malice was proved.

p. 4
02

Entitlement to salary for interdiction/suspension and non-working periods

Holding

No entitlement; Regulation 68 bars pay during interdiction for absenteeism, and pay for the post-suspension period was refused because the claimant refused posting and stayed away

Reasoning

The Code provides for interdiction without pay on absenteeism grounds and suspension without pay as punishment. The delay in posting resulted from the claimant's own request for a school near Thika for her PhD; she should have reported first and appealed afterwards. Pay cannot accrue for periods not worked.

p. 4

Legal principles established

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  • Where an employer conducts disciplinary proceedings fairly in accordance with statutory or laid-down regulations, a court should exercise great caution before interfering with the employer's findings
  • Where an administrative body has complied with the rules of natural justice, courts will be reluctant to interfere with its proceedings
  • A teacher interdicted on grounds of absenteeism is not entitled to salary for the interdiction period, and salary cannot be reinstated before the teacher reports back to work

Court orders

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  1. 1.The entire claim fails and is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Education ActCap 211
  • Teachers Service Commission ActCap 212
  • Code of Regulations for TeachersRegulations 66 and 68
  • Judicature ActNot specified
  • ConstitutionNot specified (referenced generally regarding courts created thereunder)

Cases cited (4)

  • BETT FRANCIS BARNGETUNY & ANOTHER VS. TEACHERS SERVICE COMMISSION AND ANOTHER
    Civil Appeals No(s). 26 & 27 of 2012
  • JUDICIAL SERVICE COMMISSION VS GLADYS BOSS SHOLEI AND ANOTHER
    (2014) eKLR
  • REPUBLIC -V- EGERTON UNIVERSITY EX PARTE ROBERT KIPKEMOI KOSKEV
    2006 KLR
  • KENYA REVENUE AUTHORITY -VS- MENGINVA SALIM MURGANI
    Civil Appeal No. 108 of 2009
Jurisdiction invoked
First-instance employment and labour relations claim under the Employment and Labour Relations Court's jurisdiction (no specific provision cited in the judgment)

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, "Marion Caroline Kanuri v Teachers Service Commission [2018] KEELRC 687 (KLR)", Case Analysis (2018). Cause No 1031 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/687/eng@2018-11-02

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