Teacher Service Commission v Mwangi (Civil Appeal 27 of 2020) [2023] KEELRC 140 (KLR)
The bottom line
#A Kenyan court cut a sacked teacher's damages from Kshs.800,000 to Kshs.100,000, ruling employers must investigate first but defamation claims need proof of publication.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrate's court over employment disputes
The learned trial Magistrate had jurisdiction; section 12(1) of the Labour Institutions Act, 2007 did not apply because the suit predated that statute, and section 40(1) and 40(2)(b) of the repealed Employment Act, Cap 226 conferred jurisdiction on a Magistrate
The suit was filed on 13 March 2008, before the Labour Institutions Act 2007 came into operation on 2 June 2008, so that statute had no application and no retrospectivity. The applicable statutes were the Trade Disputes Act, the Employment Act Cap 226 and the Regulation of Wages and Conditions of Employment Cap 229. Section 40(1) of the Employment Act allowed an aggrieved party to complain to a Magistrate of the first or second class, and section 40(2)(b) gave the Magistrate jurisdiction notwithstanding any written law to the contrary.
Whether termination of the Respondent's employment was lawful
The termination was unlawful because the Appellant failed to conduct an investigation and confront the Respondent with the findings, even though the evidence suggested culpability on the Respondent's part
The court found from the totality of the evidence that the Respondent and Joyce Waithira began a relationship while she was a pupil. However, neither the Head Master, the Area Education Officer nor the District Education Officer conducted an investigation to establish the true state of affairs and confront the Respondent with findings he could controvert, which was essential as his livelihood was at stake. Culpability having been suggested, the global award for lost earnings was nonetheless reduced from Kshs.200,000/= to Kshs.100,000/=.
Whether the tort of defamation was proved
Defamation was not proved: the alleged defamatory words were not pleaded or particularised and there was no evidence of publication to third parties
The pleadings made no reference to the alleged defamatory words or particulars, and submissions are not pleadings. The letters in question were confidential letters addressed to the Respondent himself. The Respondent led no evidence of how the Appellant published the letters or caused their publication, or to whom the letters were disclosed while unsealed. Without evidential proof of disclosure to third parties, defamation was not actionable.
Whether the award of Kshs.200,000/= for loss of earnings could stand
The basis of the Magistrate's discretion was unclear, so the court interfered and reduced the award to Kshs.100,000/= in light of the Respondent's culpability
The Respondent did not provide a copy of the employment contract or adduce evidence on the notice period or monthly income, leaving nothing to compare with, yet the trial court still awarded Kshs.200,000/=. The basis on which the Magistrate exercised her discretion was unclear from the judgment, entitling the appellate court to interfere despite the sanction of section 40(2)(b)(1) of the repealed Employment Act. Culpability on the Respondent's part justified reduction.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both
- Submissions are not pleadings and parties are bound by their pleadings
- A claimant in a defamation suit must establish a defamatory statement, publication by the defendant, and reference to the claimant
- On a first appeal, the court is duty bound to reconsider and re-evaluate the evidence afresh and arrive at its own decision
Court orders
#- 1.Appeal allowed partially
- 2.Sum of Kshs.600,000/= awarded for defamation set aside in totality
- 3.Sum of Kshs.200,000/= awarded for loss of earnings reduced to Kshs.100,000/=
- 4.Each party to bear their own costs
- On appeal from
- Chief Magistrate's Court
- Suit filed 13th March 2008 (amended plaint dated 16th June, 2014)
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court; jurisdiction of the trial Magistrate founded on section 40(1) and 40(2)(b) of the Employment Act, Cap 226 (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teacher Service Commission v Mwangi (Civil Appeal 27 of 2020) [2023] KEELRC 140 (KLR)", Case Analysis (2023). Memorandum of Appeal dated April 15, 2020 (trial suit filed 13th March 2008, plaint dated 6th March 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/140/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.