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ELRCPartially AllowedMemorandum of Claim filed 28th August 2019 (ELRCC)· [2023] KEELRC 610 (KLR)

Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 610 (KLR)

Employment and Labour Relations Court
13 March 2023
8,260 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Even when an employer has a valid reason to fire a teacher, skipping fair hearing steps makes the dismissal unlawful — and the employee gets paid.

What this practically means

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Executive summary

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The Claimant, a teacher employed by the Teachers Service Commission in 1994 who rose to School Principal of Syomikuku Secondary School, sued for unlawful and unfair dismissal, alleging fabricated allegations of immorality by a former pupil, Pauline Kamene, and lack of a fair hearing. He sought reinstatement, a declaration of unfair dismissal, damages, unpaid salary during interdiction, 12 months' compensation, notice pay and service pay. The Respondent maintained that the Claimant had an intimate relationship with his pupil and incited a student walkout, and that it accorded him a fair process through the BOM, County Disciplinary Panel, Commission's Disciplinary Committee and an appellate panel. The court found the Respondent had a valid and fair reason for termination: the evidence, including Kamene's statement, an audio recording played to the panel, and an investigatory assessment by education officers, established the relationship on a balance of probabilities, and general evidence suffices in such cases. However, the incitement charge was not established. Procedurally, the termination was unfair because the Claimant was never notified of his right to be accompanied by a colleague or to call witnesses, an omission implicating his right to be heard. Reinstatement was unavailable, being barred by the three-year limitation in Section 12(3)(vii) of the ELRC Act. Judgment was entered for the Claimant with a declaration of unfair dismissal, unpaid salary from interdiction to dismissal, two months' salary compensation, one month's notice pay, costs and interest. Damages for wrongful dismissal and service pay were disallowed for want of evidence.

Key legal issues

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01

Whether the Respondent had a valid and fair reason (substantive justification) to terminate the Claimant's employment

Holding

Termination was substantively justifiable on the ground of an intimate relationship between the Claimant, a Principal, and his pupil Pauline Kamene; the incitement charge was not established.

Reasoning

The court examined the complaint by the Centre for Human Rights and Civic Education, the BOM minutes, the investigatory assessment by education officers, Pauline Kamene's adopted statement and her cross-examination, the audio recording played to the panel, and the Claimant's failure to rebut. On a balance of probabilities the Respondent proved the relationship under Section 43(2) of the Employment Act. The incitement allegation failed for want of cogent evidence of the Claimant's active involvement.

p. 11
02

Whether the termination followed a fair procedure under Section 41 of the Employment Act

Holding

The procedure was unfair because the Claimant was never notified of his right to be accompanied by a colleague or union official, and he had no witness at the County Disciplinary Panel where he could not cross-examine the six witnesses.

Reasoning

Section 41 is mandatory and requires explanation of grounds, entitlement to accompaniment and consideration of representations. None of the invitation letters intimated the right to be accompanied. Given the gravity of the allegations, this omission implicated the Claimant's right to be heard and denied an otherwise proper process the final mark of fairness, following Postal Corporation of Kenya v Andrew K. Tanui.

p. 15
03

Whether the Claimant was entitled to reinstatement

Holding

Reinstatement was unavailable as the court lacks jurisdiction to order it more than three years after dismissal.

Reasoning

Section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011 limits reinstatement orders to within three years of dismissal. The dismissal took effect on 5th February 2018, almost four years before judgment. Reinstatement is also discretionary, not automatic, per Maraga JA in Kenya Airways Ltd v Aviation and Allied Workers Union.

p. 15
04

What terminal dues and compensation the Claimant was entitled to

Holding

Unpaid salary during interdiction, two months' salary as compensation, and one month's pay in lieu of notice were awarded; damages for wrongful dismissal and service pay were disallowed.

Reasoning

Because termination was procedurally unfair, unpaid salary from interdiction (23rd November 2015) to termination (5th February 2018) was payable, though the interdiction was unduly long and part of the delay was caused by the Claimant's own court applications. Compensation was moderated to two months' salary given the valid reason, breach of trust, and the Claimant's long service. Notice pay was awarded as no requisite notice was given. Service pay and damages failed for want of evidence.

p. 16

Legal principles established

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  • For a termination of employment to pass as lawful, it must be both substantively justifiable and procedurally fair
  • An employee facing disciplinary charges must be informed of the entitlement to be accompanied by a colleague or union official and to call witnesses; failure to do so renders the hearing procedurally unfair
  • Keeping an employee on interdiction for an inordinately long and indefinite period is an unfair labour practice
  • In sexual immorality cases involving teachers and pupils, general and circumstantial evidence suffices; proof beyond eye-witness or medical evidence is not required

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Unpaid salary from November 2015 to February 2018
  3. 3.Equivalent of two months' salary as compensation for unfair termination
  4. 4.One month's salary in lieu of notice (Kshs.85,641.00)
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Sections 35, 35(5), 41, 43, 43(2), 45, 47(5), 49, 49(1)(c), 49(3)(a)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Teachers Service Commission ActSections 12(2), 47(2), 47(5), 48
  • Constitution of Kenya, 2010Article 237(2)
  • Code of Regulations for TeachersRegulations 66(7), 139, 146(5)
  • Teachers Service Commission Code of Conduct and Ethics
  • Circular No. 3 of 2010 - Protection of Pupils/Students from Sexual Abuse
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (15)

  • Samuel Kamau Kariuki V Teachers Service Commission
    (2020) eKLR
  • Kennedy Ondigo Dero V Teachers Service Commission
    (2019) eKLR
  • Tom Ochako V Teachers Service Commission
    (2022) eKLR
  • Nampak Corrugated Wadeville V Khoza
    JA 14/98 (1998) ZALAC 24
  • Judicial Service Commission V Gladys Boss Sholei
    (2014) eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    (2013) eKLR
  • Betty Francis Barngetuny & another V Teachers Service Commission & another
    (2015) eKLR
  • Andrew Nthiwa Mutuku V The Court of Appeal & 4 others
  • Sotik Highlands Tea Estates Ltd V Kenya Plantation & Agriculture Workers Union
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
  • Kenya Airways Ltd V Aviation and Allied Workers Union Kenya & 3 others
    (2014) eKLR
  • Teacher Service Commission V Joseph Okoth Opiyo
    Civil Appeal No. 8 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act, 2011 (Section 12(3)(vii) invoked on reinstatement)

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, "Mutiso v Teachers Service Commission (Cause 570 of 2019) [2023] KEELRC 610 (KLR)", Case Analysis (2023). Memorandum of Claim filed 28th August 2019 (ELRCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/610/eng@2023-03-13

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