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ELRCPartially AllowedCause No 100 of 2018· [2022] KEELRC 420 (KLR)

Johnstone Inaweti v Teachers Service Commission [2022] KEELRC 420 (KLR)

Employment and Labour Relations Court of Kenya
30 March 2022
1,420 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A teacher wrongly fired over inconsistent misconduct allegations won 12 months' salary and full retirement benefits because the TSC's disciplinary hearing was unfair.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Radido Stephen, J) determined a claim by Johnstone Inaweti, a Deputy Director and Sub-County Director with the Teachers Service Commission, challenging his dismissal over allegations of sexual relations with a pupil in May and October 2015. On procedural fairness, the Court found that the Commission's disciplinary panel overruled the Claimant's relevant and material questions to three witnesses and denied him the opportunity to cross-examine his own witness, a Deputy Head Teacher who turned hostile, without any explanation, contrary to sections 35(1) and 41 of the Employment Act, 2007. On substantive fairness, the Court held that the Commission failed to discharge its burden under sections 43 and 45 to prove valid and fair reasons for dismissal: the pupil's account contained glaring inconsistencies, the investigations report itself cast doubt on the truthfulness of the evidence, and an uncontroverted senior Nursing Officer from Serem hospital testified that the pupil was never seen at the facility and the medical note she produced was a forgery. The Commission's counterclaim for Kshs 4,665 paid during interdiction was dismissed. Reinstatement was declined as three years had elapsed since dismissal; instead, the Court converted the dismissal into normal retirement with full benefits and awarded maximum compensation equivalent to 12 months' gross salary based on the June 2015 wage, ordered restoration to the register of teachers, payment of all terminal dues, and costs to the Claimant. Judgment was delivered at Kisumu on 30 March 2022.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

The Commission did not adhere to the basic tenets of procedural fairness by overruling relevant questions and denying cross-examination of a hostile witness

Reasoning

The Commission's panel overruled the Claimant's questions on the dates of the alleged sexual relations, the undated investigations report and the basis for the pregnancy finding, and refused him the chance to cross-examine his own witness after the witness disowned his recorded statement. The questions were relevant and material, and the Commission offered no explanation for overruling them, breaching sections 35(1) and 41 of the Employment Act.

p. 2
02

Substantive fairness of the dismissal

Holding

The Commission failed to prove valid and fair reasons for dismissing the Claimant

Reasoning

The only direct evidence came from the pupil, whose narration contained glaring inconsistencies recorded in the Commission's own investigations report, including accusations against another person and conflicting accounts. A senior Nursing Officer from Serem hospital testified, uncontroverted, that the pupil was never seen at the facility and the medical note was a forgery, casting doubt on the pregnancy evidence relied upon by the Commission.

p. 3
03

The Commission's counterclaim for Kshs 4,665

Holding

The counterclaim failed because the dismissal itself was found unfair

Reasoning

The Commission counterclaimed for Kshs 4,665 allegedly paid unlawfully during interdiction, contrary to the Code of Regulation for Teachers, which entitled a teacher on interdiction to half salary. Since the Court found the dismissal unfair, the amount was not recoverable.

p. 3
04

Appropriate remedies

Holding

In lieu of reinstatement, the dismissal was converted into normal retirement with full benefits and maximum compensation of 12 months' gross salary

Reasoning

Reinstatement was no longer practical because three years had elapsed since the dismissal. The Claimant had served for 27 years. The Court therefore converted the dismissal into normal retirement with full benefits and awarded the maximum compensation equivalent to 12 months' gross salary, computed on the gross wage for June 2015.

p. 3

Legal principles established

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  • An employer must allow an employee to cross-examine witnesses whose evidence is relevant and material to the allegations, and unexplained overruling of such questions breaches procedural fairness under section 41 of the Employment Act
  • Under sections 43 and 45 of the Employment Act, the burden lies on the employer to prove, as valid and fair, the reasons for dismissal

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was procedurally and substantively unfair
  2. 2.Declaration that the removal of the Claimant's name from the register of teachers was procedurally and substantively unfair
  3. 3.The Respondent to restore the Claimant to the register of teachers
  4. 4.The Respondent to compute and pay the Claimant the equivalent of 12-months gross salary as compensation based on the gross wage for June 2015, being the last month served fully
  5. 5.The Respondent to pay the Claimant all terminal dues he would have been entitled to upon normal retirement
  6. 6.The Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007Section 35(1)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Code of Regulation for TeachersChapter X, 3(c)

Cases cited (1)

  • Zahira Habibullah Sheikh & Ar v State of Gujarat & Ors
    AIR (2006) SC 1367
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Johnstone Inaweti v Teachers Service Commission [2022] KEELRC 420 (KLR)", Case Analysis (2022). Cause No 100 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/420/eng@2022-03-30

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