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ELRCDismissedNot stated in the judgment· [2019] KEELRC 242 (KLR)

Humprey Muthuri Riungu v Teachers Service Commission [2019] KEELRC 242 (KLR)

Employment and Labour Relations Court
3 December 2019
NMNzioki wa Makau
2,992 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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Kenya's Employment Court upheld a teacher's dismissal, ruling that a fair hearing can proceed without the accuser and without criminal charges.

What this practically means

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Executive summary

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The Claimant, a P1 teacher who rose to head teacher at T Academy in Marsabit with over 19 years' service, sued the Respondent (the employer) after being interdicted on 30th May 2017 and dismissed on 15th June 2017 over allegations that he sexually molested a class 2 pupil, ASA, in the girls' dormitory. He sought a declaration that the termination was unfair and wrongful, reinstatement with back salary of Kshs. 33,000/- per month, general damages, costs and interest. The Respondent maintained that investigations by its county office established culpability, that the Claimant was interdicted, invited to submit a defence, and heard before a disciplinary panel which allowed him to cross-examine the witnesses present, and that the minors' absence was due to age, cultural and religious factors, with their evidence taken in line with the Children Act and the Code of Regulation for Teachers. The Claimant argued the hearing was a sham because the minor accuser did not attend for cross-examination and no criminal proceedings were pursued. The court found the disciplinary hearing fairly complied with Section 41 of the Employment Act and the Code of Regulation for Teachers; the failure to pursue a criminal prosecution did not absolve the employment offence, and under Section 43 the employer had genuine grounds for dismissal. The Claimant's explanation for entering the dormitory unaccompanied and his allegations of staff hostility were rejected as unfounded. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Fairness of the disciplinary hearing

Holding

The hearing fairly complied with Section 41 of the Employment Act and the Code of Regulation for Teachers despite the minor witnesses not attending

Reasoning

The Claimant was interdicted, invited to write a defence, attended disciplinary meetings, and was allowed to cross-examine witnesses who appeared. The minors' absence was justified by their age, cultural and religious factors, and the panel proceeded in the best interests of the minors. The Child witness provisions of the Children Act supported taking their evidence without exposing them to the accused.

p. 4
02

Effect of absence of criminal proceedings

Holding

Failure to prosecute the Claimant criminally did not invalidate the dismissal

Reasoning

The Claimant argued the serious nature of the offence required police investigation and charge. The court held the employer was concerned with professional culpability, which is not subservient to the filing of a criminal charge; under Section 43 the employer only needed reasons to genuinely believe grounds for dismissal existed, which the investigation and disciplinary findings satisfied.

p. 4
03

Credibility of the Claimant's explanation and hostility allegation

Holding

The Claimant's reasons for entering the dormitory unaccompanied were not cogent and the allegation of animosity from staff was unfounded

Reasoning

The Claimant claimed he was checking on the matron's negligence and that staff hostility motivated his removal. The investigating officer denied animus, no complaints of bad blood were raised before or during investigations, and other witnesses had no knowledge of the alleged fixing by the matron.

p. 4

Legal principles established

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  • Failure to pursue a criminal proceeding does not absolve an employee of the employment offence; the employer need only show it genuinely believed grounds for dismissal existed
  • Where minors are complainants, a disciplinary process that takes their evidence without exposing them to face the accused, having regard to cultural and child-protection considerations, may still fairly comply with Section 41 of the Employment Act

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 44(2)(9)
  • Children Act 2001Section 4(2)-(4)
  • Code of Regulation for TeachersRegulation 146(7)
  • Code of Regulation for TeachersRegulation 148(1)

Cases cited (5)

  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Rueben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
  • Clement Karuri v Kenya Ports Authority
    [2017] eKLR
  • Simon P. W. Karimi v Kenya Commercial Bank Limited & Another
    [2005] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claim (Employment Act)

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, "Humprey Muthuri Riungu v Teachers Service Commission [2019] KEELRC 242 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/242/eng@2019-12-03

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