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ELRCDismissedCause No. 2 of 2019 (formerly Eldoret ELRC Cause No. 316 of 2017, formerly Kisumu ELRC Cause No. 140 of 2016)· [2019] KEELRC 619 (KLR)

Patrick Nyongesa Makokha v Teachers Service Commission & Eldoret Polytechnic [2019] KEELRC 619 (KLR)

Employment and Labour Relations Court of Kenya
17 October 2019
4,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a teacher's fraud against parents and students justified his dismissal, and skipping his own disciplinary hearing cost him any due process claim.

What this practically means

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Executive summary

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The claimant, an Assistant Lecturer employed by the Teachers Service Commission in 1998/1999 and posted to the Eldoret Polytechnic, was interdicted on 25 November 2014 following complaints by a parent and three students that he collected money from them on the pretext of registering them for examinations or clearing fees balances, which he failed to do. After a governing council hearing, an amended interdiction, and an adjourned TSC hearing, the claimant declined through his advocates to attend a rescheduled disciplinary hearing at Nairobi on 26 January 2016, and was summarily dismissed. He claimed notice pay, leave pay, severance pay, damages for breach of contract, compensation for unfair termination, Ksh.743,100.00 for production units from the Polytechnic, a certificate of service and costs, alleging denial of due process contrary to sections 41, 43, 45 and 47 of the Employment Act. The respondents maintained the dismissal followed due process and was grounded on gross misconduct. The court held that the employer complied with section 41; the claimant's failure to attend the hearing was his own doing. His admitted receipt of monies from a parent and students, though partly repaid, amounted to fraud, abuse of office and gross misconduct justifying summary dismissal under section 44. Claims for notice pay, severance, leave pay, compensation and the production units were declined. However, the court noted that denying pay to an employee on prolonged interdiction is an unfair labour practice, though no such claim was pleaded. The suit was dismissed with each party bearing their own costs, save that a certificate of service under section 51 of the Employment Act was ordered to issue.

Key legal issues

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01

Due process in disciplinary proceedings under section 41 of the Employment Act

Holding

The 1st respondent followed due process; the claimant was interdicted, investigated, invited to hearings and opted not to attend the rescheduled hearing at Nairobi, so his section 43 rights were not breached

Reasoning

The court traced the sequence of complaints, the governing council hearing, the interdiction, the amended interdiction letter, the adjourned hearing of 18 August 2015 and the invitation for 26 January 2016 which the claimant's advocate declined in writing. The court found the claimant received the invitation, confirmed by his advocate's reply referencing the TSC file number, and his failure to attend defeated his due process complaint.

p. 5
02

Validity of the grounds for summary dismissal

Holding

The claimant's fraudulent receipt of monies from a parent and students over school fees and examination registration amounted to gross misconduct justifying summary dismissal under section 44 of the Employment Act

Reasoning

The claimant admitted receiving Ksh.33,500 from a parent for examination registration of her daughter, which he failed to do, and repaying part of the monies. As a lecturer he had no responsibility to collect fees or registration monies; borrowing money from a parent over such matters constituted fraud, abuse of office and professional misconduct warranting sanction. Repayment did not clear the misconduct.

p. 5
03

Interdiction as an administrative measure

Holding

Interdiction is a lawful administrative action to allow investigations; the regulations denying wages during interdiction, however, become an unfair labour practice where proceedings are prolonged, though the claimant did not plead unpaid interdiction salaries

Reasoning

Relying on Kurgat and Chiloba, the court affirmed the employer's right to interdict. But until the summary dismissal letter of 26 January 2016 the claimant remained an employee entitled to salaries. The interdiction-without-pay rule, when proceedings drag on, is an unfair labour practice - yet because the claim was never pleaded it could not be awarded.

p. 6
04

Annual leave for employees of public academic institutions

Holding

Leave pay beyond the scheduled long vacations would amount to unjust enrichment given the institutional holiday schedule

Reasoning

The court held that institutions under Article 237 of the Constitution operate academic calendars with long holidays factoring in time off for employees, so claiming annual leave over and above scheduled vacations and rest days cannot stand.

p. 6
05

Liability of the 2nd respondent for extra teaching/production units

Holding

The 2nd respondent is not liable; the claimant's sole employer was the 1st respondent who paid his salary

Reasoning

The claimant was seconded to the 2nd respondent, which paid him only for extra work as directed. Claiming pay outside his employment with the 1st respondent would breach his contract since he had no capacity to carry parallel employment. The dismissal letter issued through the 2nd respondent's principal was as agent of the employer.

p. 6
06

Certificate of service

Holding

A certificate of service should issue under section 51 of the Employment Act regardless of the dismissal's validity

Reasoning

The court held the certificate of service, together with the letter terminating employment, is due to the employee as of right under section 51 of the Employment Act, 2007.

p. 6

Legal principles established

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  • An employer has the prerogative to interdict an employee to allow for investigations, removing the employee from the workplace pending disciplinary action
  • Keeping an employee on interdiction without pay for prolonged disciplinary proceedings is an unfair labour practice, but unpaid interdiction salaries must be pleaded to be awarded
  • An employee who declines to attend a properly convened disciplinary hearing cannot later blame the employer for breach of due process
  • Rules removing pay during interdiction that prolong disciplinary proceedings amount to an unfair labour practice

Court orders

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  1. 1.The claims made are dismissed as they lack merit
  2. 2.The claimant shall be issued with his Certificate of Service under the provisions of section 51 of the Employment Act, 2007

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 237(2)/237
  • Employment Act, 2007sections 40, 41, 43, 44(4), 45, 47, 51
  • Teachers Service Commission Act
  • Code of Regulations for TeachersRegulation 148 (TSC Code of Conduct)
  • TSC Code of Conduct and Ethics
  • Public Officers' Ethics Act
  • Economic Crimes Act

Cases cited (8)

  • Samson Kipkoech Chemai versus Richard Ekskline Leakey & 2 others
    [2017] eKLR
  • Bryan Mandila Khaemba versus Chief Justice and President of the Supreme Court of Kenya & another
    [2019] eKLR
  • Evans Kamadi Misango versus Barclays Bank Limited
    [2015] eKLR
  • Anthony Mkala Chitavi versus Malindi Water & Sewerage Co. Limited
    [2013] eKLR
  • Kenya Power & Lighting Co Limited versus Aggrey Lukorito Wasike
    [2017] eKLR
  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau
    [2014] eKLR
  • Ezra Chiloba versus Wafula Wanyonyi Chebukati & 7 others
    [2018] eKLR
  • Moses Moro Kaunda versus CMC Motors
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution and the Employment Act, 2007 (claimant employed under Article 237 of the Constitution, 2010)

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, "Patrick Nyongesa Makokha v Teachers Service Commission & Eldoret Polytechnic [2019] KEELRC 619 (KLR)", Case Analysis (2019). Cause No. 2 of 2019 (formerly Eldoret ELRC Cause No. 316 of 2017, formerly Kisumu ELRC Cause No. 140 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/619/eng@2019-10-17

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