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ELRCPartially AllowedCause No. 2216 of 2015 (Memorandum of Claim dated 2nd November 2015)· [2020] KEELRC 278 (KLR)

Muchiri Kiraithe v Teachers Service Commission [2020] KEELRC 278 (KLR)

Employment and Labour Relations Court
27 October 2020
3,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled that TSC's disciplinary process against a teacher was flawed because the wrong official interdicted him and his appeal was ignored.

What this practically means

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Executive summary

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Muchiri Kirathe, a teacher, sued the Teachers Service Commission for wrongful and unfair interdiction arising from his queries over the handling of the 2011 KCSE examinations at Bathi Secondary School. He was served a show cause letter in June 2012, interdicted by the Head Teacher in July and August 2012, invited to a disciplinary hearing before the TSC in October 2012 where he was suspended for six months without pay, and his appeal was only dismissed in November 2014. He sought 12 months' withheld salary, losses for incomplete postgraduate studies, denied promotion, unserviced loans, and damages for wrongful disciplinary action. The Respondent maintained the disciplinary process followed the Code of Regulations and that some valid reasons existed. The court found that negligence of duty (admitted by the Claimant) provided some valid reasons for discipline, and that the allegation of sniffing tobacco was disproved by a Government Chemist report. However, the process was flawed from the outset because the Head Teacher who issued the interdiction letter was never shown to be a delegated TSC agent, and the Claimant's appeal was dismissed years later without affording him a hearing. The court awarded the salary for the 12-month suspension (Kshs. 879,240) and damages equivalent to 8 months' salary (Kshs. 586,160), totalling Kshs. 1,465,400 less statutory deductions, with costs and interest. The other heads of loss were not granted.

Key legal issues

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01

Whether the interdiction and suspension were based on fair reasons and due process

Holding

There were some valid reasons (negligence of duty admitted by the Claimant), but the process was flawed ab initio because the interdiction letter was issued by the Head Teacher without evidence of delegation by the TSC

Reasoning

The court traced the chronology and found the show cause process commenced properly, but Regulation 66(2) of the Code vests interdiction powers in the Commission or its agents as prescribed. The Head Teacher who wrote the interdiction letter was never shown to be a delegated agent under Section 4(1)(b) of the then TSC Act. Some allegations (sniffing tobacco) were disproved by the Government Chemist report, but negligence of duty was admitted, providing partial justification.

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02

Whether the Claimant was denied his right of appeal

Holding

Yes - the appeal against suspension was not acted upon until 2014 and was dismissed without giving the Claimant an opportunity to be heard

Reasoning

The Respondent admitted receiving the appeal but attributed the delay to challenges in constituting a full Commission and creating a Review Board. The court found that dismissing the appeal years later without a hearing breached both the right of appeal and the Claimant's right to be heard, compounding the procedural unfairness of the disciplinary process.

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03

Whether the Claimant is entitled to the remedies sought

Holding

Partially - salary for the 12-month suspension period and damages equivalent to 8 months' salary awarded; the other heads of loss were not granted

Reasoning

Having found the process flawed and the appeal right breached, the court awarded the withheld salary for June 2012 to May 2013 computed at Kshs. 73,270 per month, plus damages for the wrongful disciplinary process at 8 months' salary, subject to statutory deductions, with costs and interest. The claims for lost studies, lost promotion, loan servicing losses and open-ended damages were not awarded.

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Legal principles established

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  • The power to interdict a teacher is vested in the Teachers Service Commission or its agent, and an interdiction by a Head Teacher not shown to be a delegated agent is flawed from the outset
  • A delayed appeal decided without affording the employee an opportunity to be heard breaches the employee's right of appeal
  • An employer may rely on valid reasons for disciplinary action even where some allegations are unproved

Court orders

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  1. 1.Payment of salary for June 2012 to May 2013 being 12 months' salary: 12 x 73,270 = Kshs. 879,240
  2. 2.Damages for wrongful disciplinary process equivalent to 8 months' salary: 8 x 73,270 = Kshs. 586,160
  3. 3.Total award of Kshs. 1,465,400 less statutory deductions
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSections 41, 45
  • Teachers Service Commission Act, Cap 212 (Repealed by Act No. 20 of 2012)Sections 2, 4(1)(b), 8(3)
  • Code of Regulations for Teachers (Revised 2005)Regulations 65, 66(1), 66(2), 66(3)(a) & (b), 66(6)(b), 68; Schedule XXXVIII
  • Teachers Service Code of Conduct and Ethics, 2005
  • Constitution of Kenya, 2010Article 41
  • Basic Education Act
  • Judicature Act

Cases cited (2)

  • Bett Francis Barngetuny & Another v. Teachers Service Commission and Another
    Civil Appeals No(s). 26 & 27 of 2012
  • Judicial Service Commission v Gladys Boss Sholei & another
    Nairobi Civil Appeal No. 50 of 2014
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied by the nature of the claim); the suit is a first-instance Memorandum of Claim under the Employment Act and TSC Code of Regulations

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, "Muchiri Kiraithe v Teachers Service Commission [2020] KEELRC 278 (KLR)", Case Analysis (2020). Cause No. 2216 of 2015 (Memorandum of Claim dated 2nd November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/278/eng@2020-10-27

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