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ELRCStruck OutCause No E001 of 2022· [2022] KEELRC 1511 (KLR)

David & another v PO (Principal K Girls Sec.) & 2 others (Cause E001 of 2022) [2022] KEELRC 1511 (KLR)

Employment and Labour Relations Court
16 June 2022
1,794 words in judgment
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The bottom line

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The Employment and Labour Relations Court struck out a teacher's challenge to his TSC interdiction because he had to finish the internal disciplinary process first.

What this practically means

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Executive summary

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A teacher at K Girls Secondary School in Kilifi County, sued alongside the KUPPET branch secretary, challenged his interdiction on 24th February 2022 by the Teachers Service Commission following a student's complaint of sexual molestation. He sought setting aside of the interdiction, resumption of duty at a different institution, and by interlocutory application under Order 40 of the Civil Procedure Rules, a stay of the interdiction, continued discharge of duties and full salary and allowances. The Respondents filed a Preliminary Objection, principally that the suit was premature as the internal dispute resolution procedures had not been exhausted, and raised the question whether the Magistrate's Court's jurisdiction over employment disputes where the gross monthly salary does not exceed Ksh. 80,000 ousted the ELRC's jurisdiction. The court held that the TSC Code of Regulations for Teachers, 2015 (Part XI, regulations 139-156) provides an elaborate disciplinary procedure which the Claimant had barely begun, that no procedural lapse was asserted, and that interdiction is not termination since the Claimant was invited to file his defence. Applying the principle of exhaustion and the settled position that courts should not meddle in proper internal disciplinary processes absent irregularity, the court found the Claim premature, upheld the Preliminary Objection and struck out the Claim with costs to the Respondents. It held the 2018 legal notice conferring jurisdiction on the Magistrate's Court does not divest the ELRC of jurisdiction under Article 162 of the Constitution and section 12 of the ELRC Act, and left the Claimant free to invoke the court's jurisdiction if the disciplinary process proves procedurally or substantively unfair.

Key legal issues

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01

Prematurity of suit before exhaustion of internal disciplinary mechanisms

Holding

The Claim was premature; the Claimant had just begun the disciplinary process entrenched in the TSC Code of Regulations and had a duty to submit to it before approaching the court.

Reasoning

The court examined Part XI of the TSC Code of Regulations for Teachers, 2015, which provides an elaborate procedure covering reporting of indiscipline, investigation, interdiction, hearing, communication of determination and review. The Claimant did not assert any procedural lapse; interdiction is not termination and he was asked to file his defence to the charges. Since no violation of procedure was demonstrated, the exhaustion principle required the Claimant to submit to the internal process first. The court applied the authorities on non-interference with internal disciplinary processes and struck out the Claim.

p. 4
02

Whether the Magistrate's Court salary-based jurisdiction ousts the ELRC's jurisdiction

Holding

The legal notice donating power to the Magistrate's Court does not divest the ELRC of jurisdiction over such employment causes.

Reasoning

The court held that while the legal notice of 2018 confers jurisdiction on the Magistrate's Court over employment disputes where the gross monthly salary does not exceed Ksh. 80,000, this is not to be understood as removing the ELRC's jurisdiction. The ELRC's jurisdiction under Article 162 of the Constitution and section 12 of the ELRC Act still extends to causes contemplated under the legal notice. This was an ancillary issue and did not dispose of the matter, which turned on prematurity.

p. 4

Legal principles established

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  • Courts should not interfere with internal disciplinary processes unless the process is marred by irregularities, is stage-managed, breaches the constitution, legislation, contract or HR policies, or is manifestly unfair.
  • Where a procedure is provided by law to address a grievance, a party must exhaust that procedure before resorting to litigation, and may only overlook the internal process where there is evidence of procedural violation.
  • The legal notice donating jurisdiction to the Magistrate's Court over employment disputes with a salary cap of Ksh. 80,000 does not divest the ELRC of its jurisdiction under Article 162 of the Constitution and section 12 of the ELRC Act.

Court orders

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  1. 1.Preliminary Objection upheld on the ground of prematurity/non-exhaustion
  2. 2.Claim struck out with costs to the Respondents
  3. 3.Liberty left to the Claimant to invoke the court's jurisdiction after the disciplinary process if he concludes it was procedurally or substantively unfair

Authorities

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Legislation

  • Teachers Service Commission Act, 2012Section 34
  • Teachers Service Commission Act, 2012Section 11
  • Teachers Service Commission Act, 2012Sections 47 and 47(2)(a)
  • Teachers Service Commission Act, 2012Section 48
  • Teachers Service Commission Act, 20123rd Schedule
  • Code of Ethics for Teachers, 2015 (Legal Notice No. 162 of 2015)Regulations 22, 23 and 38
  • Teachers Service Commission Code of Regulations for Teachers, 2015Part XI, regulations 139 to 156
  • Civil Procedure ActSections 3 and 3(a)
  • Civil Procedure RulesOrder 40
  • Legal Notice number 6024 of 2018
  • Constitution of Kenya, 2010Article 162
  • Employment and Labour Relations Court ActSection 12
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Ann Wambui Kamuiru v Kenya Airways Limited
    [2016] eKLR
  • Republic v County Secretary and Head of Public Service, Bomet County & another Ex parte Bernard Sowek
    [2017] eKLR
  • Robert Khamala Situma & 8 others v Acting Clerk of the Nairobi City County Assembly
    [2022] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary Schoo and 2 others
    (2014) eKLR
  • Samuel Maina Njoroge v Teachers Service Commission and others
    (2019) eKLR
Jurisdiction invoked
Article 162 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act

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, "David & another v PO (Principal K Girls Sec.) & 2 others (Cause E001 of 2022) [2022] KEELRC 1511 (KLR)", Case Analysis (2022). Cause No E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1511/eng@2022-06-16

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