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ELRCPartially AllowedCause No. 1001 of 2011· [2018] KEELRC 915 (KLR)

Ezekiel Muchesi v Teachers Service Commission [2018] KEELRC 915 (KLR)

Employment and Labour Relations Court
4 October 2018
HWHellen S. Wasilwa
1,643 words in judgment
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The bottom line

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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 1990, was arrested and charged in 2004 with stealing school books at Shanderema Secondary School. He was transferred to Lirhembe Girls' Secondary School, reported as directed, but his October 2004 salary was withheld. He was interdicted on 10th September 2004, appeared before a TSC disciplinary panel in 2005 (receiving an amended interdiction letter the same morning), and was dismissed by letter dated 11th October 2006. In April 2007 the Chief Magistrate's Court at Kakamega acquitted him under Section 210 of the Criminal Procedure Code, but the TSC refused to review its decision. He sued for damages for unlawful dismissal. The court framed three issues: valid reasons, due process, and remedies. It held there were no valid reasons for dismissal: the acquittal rested on the failure to call the alleged book purchasers, the same Vendors did not testify before the TSC, and their alleged statements were hearsay without probative value; on the transfer/insubordination charge, the Claimant did not instigate the transfer. Due process was, however, followed as a hearing was conducted. Applying Dr. Anil Mussani, the court found the dismissal unfair and unjustified despite procedural compliance. It awarded unpaid interdiction salary of Kshs 772,925 (25 months), damages of Kshs 371,004 (12 months' salary), totalling Kshs 1,143,929, with costs and interest. The claim was partially allowed: due process was upheld but the dismissal was found substantively unfair.

Key legal issues

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01

Valid reasons for termination

Holding

There were no valid reasons to warrant the Claimant's dismissal; the evidence of the Vendors was hearsay and the Claimant could not be blamed for the transfer he did not instigate.

Reasoning

The Claimant was charged with stealing books but acquitted under Section 210 of the CPC because the alleged purchasers were never called as witnesses. Before the TSC, the Vendors again did not testify, so there was no eyewitness evidence linking the Claimant to theft and sale of books. On the transfer charge, the PDE Western effected the transfer; the Claimant neither instigated it nor transferred himself. The dismissal was therefore not founded on sound evidence.

p. 2
02

Due process

Holding

Due process was followed as the Claimant was accorded a hearing where charges were read and witnesses called, but the dismissal was nonetheless unfair and unjustified because the hearing relied on hearsay.

Reasoning

The Claimant appeared before the TSC, a disciplinary hearing was held, charges were read to him and witnesses were called, satisfying the Respondent's own disciplinary manual. However, even such proceedings must call crucial witnesses; the failure to call the Vendors found with the stolen books meant the finding rested on hearsay with no probative value. Procedural compliance could not cure the absence of sound evidence.

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03

Entitlement to remedies

Holding

The Claimant was awarded unpaid interdiction salary for 25 months and 12 months' salary as damages for unfair termination.

Reasoning

Having found the dismissal unfair and unjustified, the court awarded salary withheld during interdiction from 10th September 2004 to 11th October 2006 (25 months at 30,917) plus the equivalent of 12 months' gross salary as damages for unfair and unlawful termination, together with costs and interest.

p. 3

Legal principles established

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  • A professional disciplinary hearing must base its findings on probative evidence, not hearsay; crucial witnesses must be called.
  • Professional disciplinary hearings are not criminal or quasi-criminal in nature despite their potentially serious sanctions.

Court orders

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  1. 1.Payment of unpaid salary during the period of interdiction from 10th September 2004 to 11th October 2006, being 30,917 x 25 months = Kshs 772,925
  2. 2.Damages for unfair and unlawful termination, being 12 months x 30,917 = Kshs 371,004
  3. 3.Total award of Kshs 1,143,929
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment

Authorities

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Legislation

  • Penal CodeSection 306(a)
  • Criminal Procedure CodeSection 210
  • TSC Act Cap 212Section 7(3)
  • Code of Regulations for TeachersRegulation 26(3); Regulation 26(1); Regulation 72

Cases cited (1)

  • Dr. Anil Mussani and College of Physicians and Surgeons of Ontario
    (2003) 64 O.R (3d) 641
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Claimant filed suit seeking damages for unlawful dismissal)

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, "Ezekiel Muchesi v Teachers Service Commission [2018] KEELRC 915 (KLR)", Case Analysis (2018). Cause No. 1001 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/915/eng@2018-10-04

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