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ELRCPartially AllowedCause No 251 of 2018· [2021] KEELRC 1753 (KLR)

Eric Owino Ouma v Secretary, Teachers Service Commission & another [2021] KEELRC 1753 (KLR)

Employment and Labour Relations Court
12 May 2021
1,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a teacher's unfair dismissal case because his witness statements were never sworn, confirming only sworn evidence counts.

What this practically means

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Executive summary

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The Claimant, a teacher, sued the Teachers Service Commission and the Attorney General on 5 July 2018 alleging unfair termination of employment and breach of contract. The parties consented on 22 July 2020 to proceed on the basis of the record and submissions, but the witness statements filed were never produced or adopted under oath. The Court held that pleadings and unadopted witness statements are not evidence and carry no probative value, so the Claimant failed to discharge the burden under section 47(5) of the Employment Act, 2007, and the Cause would fail on that ground alone. Examining the merits in the alternative, the Court found the dismissal procedurally fair: the Claimant was investigated, appeared before the County Disciplinary Committee, was interdicted and invited to respond in writing (twice), attended an oral disciplinary hearing on 13 July 2015, and his appeal was heard and dismissed. On substantive fairness, relying on Court of Appeal authority, the Court held that the Claimant's acquittal in Ndhiwa Magistrates Court Criminal Case No. 19 of 2016 did not render the dismissal unfair, criminal and disciplinary processes being distinct with different standards of proof. On the contractual heads, the claim for outstanding leave of Kshs 24,646/- was allowed because the employer keeps leave records; the claim for salary during interdiction failed under Regulation 68(h) of the Code of Regulations for Teachers (allegations of carnal knowledge being an exception to half salary); and the back pay claim failed for want of evidential foundation. The certificate of service, a statutory entitlement, was to issue within 21 days. The Cause was dismissed with costs save for leave and certificate of service.

Key legal issues

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01

Evidential effect of witness statements not adopted under oath where parties consent to proceed on record and submissions

Holding

Such statements have no probative value; the Cause must fail for want of evidence

Reasoning

The parties consented to proceed on the record and submissions but filed witness statements that were never adopted under oath. The Court held that pleadings, even with verifying affidavits, are not evidence, and parties choosing that mode should file affidavits. Without sworn evidence the Claimant could not discharge his burden under section 47(5) of the Employment Act.

p. 2
02

Procedural fairness of the dismissal

Holding

The dismissal was procedurally fair

Reasoning

The record showed investigations, appearances before the County Disciplinary Committee, two interdiction letters with invitations to respond, written responses, an oral disciplinary hearing on 13 July 2015 and an appeal heard on 9 September 2016. This satisfied sections 35(1) and 45 of the Employment Act and the TSC Act and Regulations.

p. 2
03

Effect of criminal acquittal on disciplinary dismissal

Holding

The acquittal in Ndhiwa Magistrates Court Criminal Case No. 19 of 2016 did not invalidate the dismissal

Reasoning

Relying on Court of Appeal authority, the Court held criminal and disciplinary proceedings are separate and distinct with different standards of proof; an acquittal does not render a dismissal based on neglect of duty or misconduct invalid or unfair.

p. 3
04

Unpaid leave

Holding

Allowed, since the employer keeps leave records

Reasoning

The Claimant sought Kshs 24,646/- for 19 months. The Commission argued leave could not be carried forward under Regulation 53(4)(a) and that no leave year was disclosed. Relying on section 10(3) and (7) of the Employment Act and the employer's duty to keep leave records, the Court allowed the claim.

p. 3
05

Salary during interdiction

Holding

Claim misplaced; the interdiction related to allegations of carnal knowledge, an exception to half salary under Regulation 68(h)

Reasoning

Under Regulation 68(h) of the Code of Regulations for Teachers, an interdicted teacher is entitled to half salary except in certain conditions including allegations of carnal knowledge. The allegation against the Claimant fell within the exception, so no salary was due for the interdiction period.

p. 3

Legal principles established

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  • A written witness statement not produced or adopted under oath has no probative value; pleadings and verifying affidavits are not evidence
  • An acquittal in a criminal case does not automatically render an employee immune to disciplinary action; criminal and disciplinary processes are distinct with different standards of proof
  • Procedural fairness under sections 35(1) and 45 of the Employment Act is met where the employer informs the employee of the charges, affords an opportunity to respond in writing and orally, and considers an appeal
  • A certificate of service is a statutory entitlement of a separated employee

Court orders

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  1. 1.The Cause is dismissed with costs save for leave and certificate of service
  2. 2.The Commission to issue a certificate of service to the Claimant within 21 days
  3. 3.The claim for outstanding leave of Kshs 24,646/- is allowed

Authorities

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Legislation

  • Evidence Actsection 35
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007sections 35(1) and 45
  • Employment Act, 2007section 28
  • Employment Act, 2007sections 10(3) and (7)
  • Teachers Service Commission ActNot specified (with attendant Regulations)
  • Code of Regulations for TeachersRegulations 53(4)(a) and 68(h)

Cases cited (2)

  • Kenya Power & Lighting Co Ltd v Aggrey Lukorito Wasike
  • Nelson Mwangi Kibe v Attorney General
    (2003) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and breach of contract claim)

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, "Eric Owino Ouma v Secretary, Teachers Service Commission & another [2021] KEELRC 1753 (KLR)", Case Analysis (2021). Cause No 251 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1753/eng@2021-05-12

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