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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1649 (KLR)

Samuel Maina Njoroge v Teachers Service Commission & another; Board of Management, Thangira Umoja Secondary School & another (Interested Parties) [2019] KEELRC 1649 (KLR)

Employment and Labour Relations Court
15 May 2019
NMNzioki wa Makau
3,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A teacher wrongly suspended beyond his served disciplinary term won reinstatement, back pay, and Kshs. 1.6 million because the Teachers Service Commission ignored its own disciplinary rules.

What this practically means

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Executive summary

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The Claimant, a principal employed by the Teachers Service Commission, sued over his interdiction, suspension and non-payment of salary following allegations that he sexually assaulted students after a 2016 student strike. He complained of a 20-minute appearance before an investigative panel, an immediate handing-over notice, interdiction without particulars, frozen school accounts, a disciplinary hearing convened on less than the required notice with no witnesses appearing, and continued non-deployment after serving a six-month suspension. He sought declarations, reinstatement, arrears, SACCO dues and general damages. The 1st Respondent maintained it followed the Code of Regulations for Teachers and accorded him a fair hearing, relying on written admissions by students who later recanted; the 2nd Respondent conceded the claim. The court held that although the charges were grave, the disciplinary process flouted the Respondent's own manual - insufficient notice under the CORT and an unduly brief investigative hearing - breaching natural justice and Article 47. The Claimant's failure to redeploy him after his suspension breached his legitimate expectation. The court found general damages were warranted despite their ordinary unavailability, as the process was flawed whatever the merits of the initial complaints, and noted the Respondent's failure to avail the anonymous letter and leaflets that triggered the process. Judgment was entered against the 1st Respondent: a declaration that the continued suspension was null and void, a deployment letter, reinstatement on payroll from the expiry of the suspension, arrears of salary, general damages of Kshs. 1,600,080, costs, and interest, with statutory deductions applying only to arrears. Claims for SACCO dues and against the 2nd Respondent failed. The court reminded the teacher of the trust reposed in the profession and directed the Respondent to sensitize its staff to follow the law in disciplinary cases.

Key legal issues

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01

Fairness of the disciplinary process

Holding

The process was flawed: the Claimant was given only 20 minutes before the investigative panel and less than the 30 days' notice required under the CORT

Reasoning

Although the charges were grave, the conduct of the disciplinary process left much to be desired. The investigative panel gave the Claimant a mere 20 minutes to present his defence, and the notice to attend the disciplinary panel was shorter than the 30 days required under the Code of Regulations for Teachers, breaching natural justice and the employer's own manual.

p. 3
02

Continued non-deployment after serving suspension

Holding

The continued suspension after service of the sentence was null and void and breached the Claimant's legitimate expectation of redeployment

Reasoning

The punishment was lawful in itself, but the Claimant was never deployed after serving his 6-month suspension and no letter was issued on expiry of the suspension as the CORT requires. This breached his legitimate expectation, entitling him to reinstatement on payroll, a deployment letter, arrears and damages.

p. 3
03

Evidence supporting the disciplinary action

Holding

The Respondent's failure to avail the anonymous letter or leaflets that initiated the complaint undermined its case

Reasoning

The disciplinary action originated from anonymous reports of sexual harassment, yet the Respondent's witnesses produced no documentary evidence of the leaflets or letter. The court found the process flawed whatever the merits of the initial complaints, warranting general damages for the unlawful indefinite interdiction/suspension.

p. 3
04

General damages in employment claims

Holding

General damages, ordinarily not granted in this court, were warranted in the exceptional circumstances of this flawed process

Reasoning

While general damages are ordinarily not granted in the ELRC, the law makes provision in certain circumstances. Here the Respondent and the 2nd Interested Party embarked on a flawed process, justifying general damages of Kshs. 1,600,080 for the unlawful indefinite interdiction/suspension.

p. 3

Legal principles established

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  • An employer must follow its own disciplinary code; flouting it renders the process flawed regardless of the merits of the initial complaints
  • A teacher who has served an imposed suspension and is not redeployed is entitled to reinstatement on payroll and backdated salaries from the expiry of the suspension
  • While safeguarding learners, the employer must not infringe the rights of its employees

Court orders

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  1. 1.A declaration that the continued suspension of the Claimant despite his serving the sentence meted out by the disciplinary panel is null and void and a deployment letter be issued to the Claimant with immediate effect
  2. 2.Immediate reinstatement of the Claimant to the 1st Respondent's payroll effective the date of termination of the 6 months suspension
  3. 3.Payment of arrears of salary from date of termination of the suspension to date
  4. 4.General damages of Kshs. 1,600,080
  5. 5.Costs of the suit
  6. 6.Interest on the sums in (c) and (d) at court rates from the date of judgment till payment in full, with only the arrears sum subject to statutory deductions under Section 49 of the Employment Act, 2007

Authorities

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Legislation

  • Constitution of KenyaArticles 41(1), 47, 50, 25(c), 27(1) and (2), 28
  • Employment ActSections 41, 49
  • Teachers Service Commission ActNot specified
  • Code of Regulations for Teachers (CORT) (2015)Regulations 15, 146, 146(3)(a), 147, 148(1); Thirty Fourth and Thirty Fifth Schedules

Cases cited (8)

  • Fredrick Saundu Amolo v Principal Namanga Mixed Secondary School & 2 Others
    [2014] eKLR
  • Patrick Wanyonyi Khaemba v Secretary Teachers Service Commission & Another
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Republic v Board of Governors Our Lady of Victory Girls School Kapnyeberai & Another ex parte Korir Kipyego Joseph & Another
    [2015] eKLR
  • George Wekesa v Multimedia University of Kenya
    [2016] eKLR
  • Professor Gitile J. Naituli v Multimedia University College & Another
    [2013] eKLR
  • W.J & Another v Astarikoh Henry Amkoah & 3 Others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (Employment Act; Teachers Service Commission Act and Code of Regulations for Teachers invoked)

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, "Samuel Maina Njoroge v Teachers Service Commission & another; Board of Management, Thangira Umoja Secondary School & another (Interested Parties) [2019] KEELRC 1649 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1649/eng@2019-05-15

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