Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment Cause (filed 17th July 2017)· [2020] KEELRC 652 (KLR)

Job Kunsinjilu Alero v Teachers Service Commission [2020] KEELRC 652 (KLR)

Employment and Labour Relations Court
16 July 2020
MNMathew N. Nduma
2,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a teacher's dismissal despite his criminal acquittal, but ruled his 31 years of accrued pension must still be paid.

What this practically means

#

Executive summary

#
The claimant, a teacher employed by the Teachers Service Commission on 15th February 1985 and promoted to head teacher, was dismissed on 2nd December 2016 for allegedly defiling a 12-year-old pupil of a neighbouring school. He had been interdicted on 4th March 2016, prosecuted in Kakamega CM S.O. No. 22 of 2016 and acquitted under section 215 of the Criminal Procedure Code on 3rd October 2016, after which TSC nonetheless dismissed him following its own investigations and disciplinary hearing. He sought a declaration that the termination was unlawful and unfair, salary arrears, severance, notice pay, reinstatement or alternatively compensation, general damages, interest and costs. The court framed two issues: whether the dismissal was for a valid reason and followed fair procedure, and whether the claimant was entitled to the reliefs sought. It held that an acquittal in a criminal trial does not exonerate a person in disciplinary proceedings, where the standard of proof is lower, and found the misconduct proved on a balance of probabilities, with due process followed. The claimant failed to discharge his burden under section 47(5) of the Employment Act. However, the court held that accrued pension over 31 years is property under Article 40 and that retroactive deprivation of it violates Articles 40 and 41 as an unfair labour practice. The court commuted the dismissal to a normal termination and directed TSC to process and pay the claimant's pension from 2nd December 2016. All other reliefs were dismissed, with each party bearing their own costs.

Key legal issues

#
01

Whether the dismissal was for a valid reason and followed fair procedure

Holding

Yes - the misconduct of defiling a pupil was proved on a balance of probabilities and due process was followed

Reasoning

The court evaluated the testimony of CW1 against RW1 and RW2 and the investigation and disciplinary records. The claimant participated fully in the investigation and the TSC disciplinary hearing and was given opportunity to defend himself, which he did, but the defence was unsatisfactory. The claimant did not produce evidence supporting his alibi of travel to Nairobi. The court found TSC complied with sections 41, 43 and 45 of the Employment Act.

p. 3
02

Effect of criminal acquittal on disciplinary proceedings

Holding

Acquittal under section 215 CPC does not bar internal disciplinary action, the standard of proof being lower

Reasoning

The claimant had been acquitted by the Kakamega Magistrate's Court of defilement on the same facts. The court held that the acquittal does not exculpate him of civil liability or provide immunity against internal disciplinary action, since disciplinary proceedings require proof only on a balance of probabilities.

p. 3
03

Entitlement to accrued pension despite dismissal for gross misconduct

Holding

Retroactive denial of accrued pension is unconstitutional; dismissal commuted to normal termination for pension purposes only

Reasoning

The claimant had served TSC for 31 years on permanent and pensionable terms. The court held that accrued pension is property under Article 40 and that retroactive deprivation constitutes an unfair labour practice under Article 41, being unconscionable as against the employee and his innocent family. The court therefore commuted the dismissal to a normal termination solely to enable payment of pension.

p. 4

Legal principles established

#
  • An acquittal in a criminal trial does not exonerate a person from being found guilty in civil or disciplinary proceedings, where the standard of proof is lower.
  • Retroactive deprivation of an employee's accrued pension for misconduct committed after accrual violates Articles 40 and 41 of the Constitution and is an unfair labour practice.
  • Accrued pension constitutes property protected under Article 40 of the Constitution.

Court orders

#
  1. 1.The court commuted the dismissal of the claimant to a normal termination of employment
  2. 2.TSC directed to facilitate the processing and payment of pension to the claimant with effect from the 2nd December 2016, the date of termination
  3. 3.The rest of the reliefs sought by the Claimant dismissed
  4. 4.Each party to meet their own costs of the suit

Authorities

#

Legislation

  • Sexual Offences Actsection 8(1)(3)
  • Criminal Procedure Codesection 215
  • Employment Act, 2007sections 41, 43, 45, 47(5)
  • Constitution of Kenya, 2010Articles 40, 40(3)(a), 41, 48, 159(2)(d)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure Actsection 18

Cases cited (2)

  • David Kemei – vs- Energy Regulatory Commission (2013) eKLR
    Industrial Cause No. 1492 of 2011
  • Clement Mutiso Muinde – vs- British American Ins. Co.
    Industrial Cause No. 14150 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 47(5)) and Articles 40 and 41 of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Job Kunsinjilu Alero v Teachers Service Commission [2020] KEELRC 652 (KLR)", Case Analysis (2020). Employment Cause (filed 17th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/652/eng@2020-07-16

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