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ELRCDismissedPetition (filed 8th October 2015) - number not stated in judgment· [2019] KEELRC 1047 (KLR)

Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] KEELRC 1047 (KLR)

Employment and Labour Relations Court of Kenya
16 July 2019
MOMaureen OnyangoMNMathews Nderi Nduma
5,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a teacher's challenge to his interdiction, ruling he pleaded constitutional rights too vaguely and went to court too early.

What this practically means

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Executive summary

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The petitioner, a teacher at Kapletingi Mixed Day Secondary School, petitioned the Employment and Labour Relations Court against the Teachers Service Commission, the Chairman of the school's Board of Management and the head teacher, Francis Tanui. He alleged breaches of Articles 19, 22, 25, 27, 28, 29, 31, 35, 41, 47, 50, 53, 159, 165 and 259 arising from a BOM disciplinary meeting of 29th July 2015 and his subsequent interdiction on 3rd August 2015, and sought declarations of nullity, certiorari, prohibition and mandamus to halt the disciplinary process, compensation, salary withheld from 1st August 2015, and costs. He claimed the BOM lacked mandate to discipline him, that he was ambushed without disclosure of charges or witnesses, that the process was biased and a cover-up for the head teacher's handling of pregnancy testing of girl students, and that his treatment was disproportionate to that of a colleague who received only a warning. The respondents maintained the BOM was properly constituted, the meeting was duly convened under the Code of Regulations for Teachers, and the petitioner admitted hosting a pregnant former student, Faith, in his house and sending students to deliver books to her. The court held that the petitioner failed to plead violations with the particularity required by Anarita Karimi Njeru, that the BOM was properly constituted as an agent of the TSC under the Education Act and complied with the Code of Regulations for Teachers, and that the petition was premature since interdiction is only the initial disciplinary stage with a full TSC hearing to follow. Citing authority that courts should be slow to interrupt internal disciplinary processes, the court dismissed the petition in its entirety. No express costs order was made.

Key legal issues

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01

Pleading of constitutional violations with particularity

Holding

The petition failed the Anarita Karimi Njeru standard; the petitioner did not demonstrate how his rights were breached

Reasoning

While Article 22 allows any person to enforce Bill of Rights freedoms, the petitioner must show precisely which provisions were infringed and how. The court found the petition merely listed articles without demonstrating breaches, citing Anarita Karimi Njeru and Mathew Okwanda, and held the pleading did not disclose a violation with due particularity.

p. 5
02

Mandate of the respondents to interdict the petitioner

Holding

The TSC and the BOM had both constitutional and statutory power to interdict, and the Code of Regulations for Teachers was complied with

Reasoning

The TSC exercises disciplinary control over teachers under Article 237. The BOM was properly constituted as an agent of the TSC under sections 4, 10, 11 and 12 of the Education Act. The head teacher received information of misconduct, the matter went to the BOM, and the interdiction with 21 days to respond complied with the Code of Regulations for Teachers. Ignorance of the circular prohibiting hosting students was no excuse.

p. 7
03

Prematurity of the petition before conclusion of the disciplinary process

Holding

The petition was premature; interdiction is only the initial stage of discipline and the petitioner would be heard later

Reasoning

Following Judith Mbayah Tsisiga and David Kimolo Kingoo, the interdiction letter assured the teacher of a full hearing before the TSC. The petitioner filed before the process concluded and showed no basis to halt it; the court is not a finder of fact on the veracity of allegations and should not usurp management prerogatives.

p. 7

Legal principles established

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  • A petitioner alleging constitutional violations must plead with reasonable precision the provisions violated and the manner of violation
  • Courts are loath to interfere with internal disciplinary processes of domestic bodies and will only intervene where a fair hearing was denied or great injustice would result
  • The constitutional/judicial review court is not a finder of fact on the truth of allegations in a disciplinary process; its concern is whether a fair hearing was accorded
  • Initiation of disciplinary processes is a management prerogative and courts should be slow to intervene, particularly at interlocutory stages

Court orders

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  1. 1.Dismissal of the petition in its entirety - the petition was found to have no merit and to fail

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19(2)(3), 22(1), 25(a)(c), 27(1), 28, 29(d), 31, 35(1)(2), 41(1)(2), 47(1)(2), 50(i)(j), 53, 159(1)(d)(e), 165(3), 237, 259
  • Basic Education Actsections 56, 101; sections 4, 10, 11, 12 (Education Act)
  • Basic Education Regulations, 2015composition of BOM
  • Fair Administrative Actions ActNo. 4 of 2015, section 4
  • Code of Regulations for TeachersRegulations 66, 146(6); paragraph 7 of CORT
  • TSC Code of Conduct and Ethicsgenerally; Regulation 146(6)
  • Employment Actmanagerial prerogatives
  • Interpretation and General Provisions Actread with section 101 of the Education Act
  • Industrial Court (Procedure) Rules, 2010Rule 16(8)(a)
  • TSC Circular No. 3 on protection of students from sexual abusegenerally

Cases cited (8)

  • Anarita Karimi Njeru v Republic
  • Mathew Okwanda v Minister of Health and Medical Services & 3 Others
    [2013] eKLR
  • Judith Mbayah Tsisiga v Teachers Service Commission
    [2017] eKLR
  • Marion Caroline Kanuri v Teachers Service Commission
    [2018] eKLR
  • Daniel Nyongesa & Others v Egerton University College, Civil Appeal No. 90 of 1989
    [1990] eKLR
  • Professor Gitile Naituli v University Council Multimedia University College and Another, Cause No. 1200 of 2012
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • David Kimolo Kingoo v Teachers Service Commission Machakos County Director & another
    [2017] eKLR
Jurisdiction invoked
Articles 22, 165(3) and 159 of the Constitution of Kenya 2010 (enforcement of Bill of Rights before the Employment and Labour Relations Court)

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, "Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] KEELRC 1047 (KLR)", Case Analysis (2019). Petition (filed 8th October 2015) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1047/eng@2019-07-16

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