Maureen K. Imbiakha & another v Teachers’ Service Commission & 2 others [2019] KEELRC 1634 (KLR)
The bottom line
#Kenya's Employment Court dismissed teachers' bid to stop a TSC disciplinary process, ruling they must first complete the employer's internal procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition properly raises constitutional issues under Articles 47(1), 50(1) and 237(1)
The interdiction is governed by the COR 2015, which embodies the rights under Article 47 and Section 41 of the Employment Act; the court adopted the principle that a litigant should not bypass enacted legislation to sue directly on the Constitution where the statute affords a remedy
The court noted the petition cited Articles 237(1), 47(1) and 50(1), and that Article 47(3) contemplated legislation, namely the Fair Administrative Actions Act 2015, with fair hearing rights also in Section 41 of the Employment Act and the COR 2015. Relying on the South African Transnet decision and Naptosa, it held that where Parliament enacts legislation to give effect to a constitutional right, it is ordinarily impermissible to found a cause of action directly on the Constitution without alleging the statute is deficient. The court expressly agreed with that position.
Whether the respondents complied with the investigation and interdiction procedure under Regulation 146 of the COR 2015
The interdiction complied with the COR 2015; the investigation was proper and the petitioners were heard, responded to show-cause letters, and were allowed to cross-examine the witness
The court traced the process: the petitioners snubbed the guidance and counselling panel, were heard at the 6th January 2017 meeting attended by the County Director's office, BOM and Head Teacher, issued with show-cause letters which they answered on 9th February 2017, and later appeared before the County Disciplinary Panel where they cross-examined the whistle-blower. Regulation 146 permits investigation by the Board of Management, County Director or Head of Institution, and all three bodies were involved; the letters of interdiction were signed by the TSC Sub-County Director, Kakamega South.
Whether the interdiction was unconstitutional, including on the ground of panel composition overlap
There was no violation of the petitioners' rights or of the relevant regulations; the overlap between the investigation and disciplinary panels was minimal and the petitioners did not object to panel composition
Only the Secretary (Lameck Rasugu) sat on both the 27th April 2017 disciplinary hearing and the 6th January 2017 investigation panel, and the petitioners attended both meetings, were allowed to interrogate the witness and defend themselves, and did not object to the composition of either panel. The court therefore found no infringement of Regulation 146(12) or of Article 47(1) rights.
Whether the petitioners are entitled to the remedies sought
The petitioners did not prove entitlement to the orders sought; the disciplinary process is internal, still ongoing, and the court will not take over the employer's disciplinary role, so the petition was dismissed
The court reaffirmed the line of authority (Rose W. Kiragu, Frederick Saundu Amolo, Dr. George Wekesa) that courts intervene in internal disciplinary processes only in rare cases of mismanagement to the employee's detriment. Since the process had not run its course and the petitioners remain free to move the court after appearing before the Commission, the petition failed.
Legal principles established
#- Where legislation is enacted to give effect to a constitutional right, a litigant should ordinarily found the cause of action on that legislation rather than directly on the Constitution, absent an allegation that the statute is deficient in remedies
- Courts should not take over the disciplinary role of an employer and will only intervene in internal disciplinary processes where the process has been mismanaged to the detriment of the employee
- Where there is a clear procedure prescribed by the Constitution or an Act of Parliament for redress of a grievance, that procedure should be strictly followed
Court orders
#- 1.The entire petition is dismissed
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Constitution of Kenya, 2010, Articles 47(1), 50(1) and 237(1); Teachers Service Commission Act 2012; Fair Administrative Actions Act No. 4 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwito v Teachers Service Commission & another (Petition E098 of 2022) [2023] KEELRC 3086 (KLR)[2023] KEELRC 3086 (KLR)28 Nov 2023
- Caroline Kemuma v Teachers Service Commission & 3 others [2021] KEELRC 1154 (KLR)[2021] KEELRC 1154 (KLR)27 Jul 2021
Cite this brief
#Cite this brief
Caselaw, "Maureen K. Imbiakha & another v Teachers’ Service Commission & 2 others [2019] KEELRC 1634 (KLR)", Case Analysis (2019). Petition No 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1634/eng@2019-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.