Godfrey Khalitaba Lukorito v Teachers Service Commission [2019] KEELRC 922 (KLR)
The bottom line
#A Kenyan court threw out a teacher's interdiction because he was never told the allegations or given a chance to respond before being disciplined.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Regulation 146(6) of the CORT
Regulation 146(6) was not complied with; the petitioner was never informed of the allegations with sufficient details, never charged, and never given the required seven days to prepare a defence
The investigation, report and interdiction all occurred within two days. The petitioner's two letters were complaints against the supervisor, not defences to charges. There is no indication he was made aware he was under investigation or required to defend himself against any offence.
Bias - investigator, complainant and decision-maker in one person
The County Director, who received the complaint, witnessed the events and chaired the investigation panel, acted contrary to Regulation 146(12) which bars an investigator from presiding over the disciplinary process
The petitioner complained to Mr. Adan about the supervisor, requested a replacement, and Adan was present when the supervisor was locked out. Adan then chaired the investigation panel, making him complainant, investigator and decision-maker, contrary to the rule against acting as a judge in one's own cause.
Fair hearing under Article 47 and the Fair Administrative Actions Act
The petitioner was denied a fair hearing; he was interdicted before being informed of the charges against him and given an opportunity to respond
Having found non-compliance with Regulation 146, the denial of a fair hearing extended to the constitutional and statutory guarantees of fair administrative action. The interdiction letter was issued before the petitioner knew he was under investigation.
Whether the subsequent dismissal rendered the petition moot
The court's power was not defeated by the subsequent disciplinary hearing and dismissal; a regular interdiction is a condition precedent to a valid disciplinary hearing
The respondent argued that courts do not act in vain since the petitioner had already been heard and dismissed. The court agreed only that courts do not act in vain, holding that the disciplinary process starts with investigation and interdiction, and a flawed interdiction cannot be sanitized by a later hearing. The respondent proceeded with the hearing knowing the petition was pending.
Legal principles established
#- An officer who participates in an investigation of an offence shall neither preside nor sit as a member of the disciplinary panel determining the same
- A defective interdiction is not cured by a subsequent disciplinary hearing; the interdiction is the foundation of the disciplinary process
Court orders
#- 1.Declaration that the interdiction was irregular and unlawful to the extent the petitioner was never given a hearing as anticipated under Regulation 146
- 2.Lifting of the interdiction and any consequential action by the respondent arising out of the interdiction
- 3.Reinstatement of the petitioner
- 4.Release of the petitioner's salary and allowances withheld from 7th November 2016
- 5.Respondent to pay the petitioner's costs
- Jurisdiction invoked
- Article 47 of the Constitution; fair administrative action claim against the Teachers Service Commission (judgment does not cite the specific jurisdictional article)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Khalitaba Lukorito v Teachers Service Commission [2019] KEELRC 922 (KLR)", Case Analysis (2019). Petition (Employment and Labour Relations Court, Kisumu; formerly JR No. 8 of 2016 Kitale / JR No. 2 of 2017 Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/922/eng@2019-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.