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ELRCPartially AllowedPetition dated 16th December 2020 (Eldoret)· [2023] KEELRC 972 (KLR)

Namuye v Teachers Service Commission & another (Petition E103 of 2020) [2023] KEELRC 972 (KLR)

Employment and Labour Relations Court
25 April 2023
6,862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court found TSC unfairly dismissed a teacher on weak evidence and without offering union accompaniment, ordering his re-engagement and reinstatement to the Register.

What this practically means

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Executive summary

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The Petitioner, a teacher previously employed by the Teachers Service Commission and deployed at Shivagala Secondary School, petitioned challenging his interdiction, disciplinary hearing, dismissal from service (letter dated 9th May 2019), removal from the Register of Teachers and the dismissal of his review, alleging violation of his constitutional rights, unfair administrative action under Article 47 and the Fair Administrative Action Act, and breaches of the TSC Act and Code of Regulations for Teachers. He sought declarations, certiorari, prohibition and compensation. The Attorney General was released from the proceedings at directions, leaving TSC as the sole Respondent. TSC maintained that it acted within its constitutional and statutory mandate and accorded the Petitioner due process. The court framed three issues: violation of fundamental rights, compliance with the TSC Act and Employment Act, and entitlement to remedies. It found no procedural violation of natural justice, Article 47 or the TSC procedure: the Petitioner knew the charges, had notice of and attended hearings, and no bias was established since no witness acted as prosecutor or adjudicator at any level. However, the court found the key witnesses unreliable and inconsistent, the second charge vague and unproved, and the decision to dismiss unsupported by evidence. It further found a breach of section 41 of the Employment Act because the Petitioner was not given the opportunity to attend the hearing accompanied by a union official or colleague. The proven wrong was unfair termination under sections 41 and 43 of the Employment Act, not a constitutional violation. Certiorari, prohibition and constitutional compensation were refused. The court declared the dismissal and removal from the Register of Teachers unfair, ordered reinstatement to the Register forthwith, directed re-engagement on similar terms, and awarded costs to the Petitioner.

Key legal issues

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01

Whether the disciplinary process violated Article 47, the rules of natural justice and the TSC procedure

Holding

No procedural violation was established; the Petitioner knew the charges, had notice of hearings and attended, and no bias was proved

Reasoning

The court found the Petitioner was informed of all charges and hearing dates and attended the hearings. Investigations by the school and Ministry were preliminary inquiries not requiring notice. The panels at each level had different prosecutors and adjudicators, so no person acted as judge in his own cause. Claims of withheld evidence, witness exclusion and restricted cross-examination were unsupported by evidence.

p. 11
02

Whether there was sufficient evidence to support the finding of guilt and dismissal

Holding

The decision to dismiss and remove the Petitioner from the Register of Teachers was not supported by the evidence before the Respondent

Reasoning

The key witnesses (T1 and her grandfather) gave contradictory evidence at each stage and were held unreliable. The Petitioner consistently denied the charges and raised an alibi. The second charge (sexual advances to CM and LP) was vague and unproved. Leading questions were put to witnesses and outcomes were unsupported by the evidence adduced.

p. 14
03

Whether the failure to allow the Petitioner to be accompanied by a union official breached section 41 of the Employment Act

Holding

The letters of interdiction and invitation to hearing did not afford the Petitioner the opportunity to attend with a union official or colleague as required under section 41, rendering the termination unfair

Reasoning

The invitation letter only permitted the Petitioner to attend in person with his witnesses, without notice of the right to accompaniment by a union official or fellow employee despite his KUPPET membership being on record. Together with the insufficiency of evidence, this amounted to unfair termination under sections 41 and 43 of the Employment Act rather than a constitutional violation.

p. 14
04

Whether the Petitioner was entitled to certiorari, prohibition and constitutional compensation

Holding

No; the constitutional petition was not the proper vehicle, and the appropriate remedies were those under section 49 of the Employment Act

Reasoning

The court held that the constitutional violation pleaded was not proved; the proven wrong was unfair termination under the Employment Act. Certiorari and prohibition were therefore unavailable. The remedies appropriate were those under section 49 of the Employment Act: compensation, reinstatement or re-engagement. Reinstatement to service being unavailable after 3 years, re-engagement and restoration to the Register of Teachers were ordered.

p. 14

Legal principles established

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  • A person who is an adjudicator at a lower level tribunal or panel can be a witness at a higher level without violating natural justice or Regulation 146(12) of the Code of Regulations for Teachers
  • Preliminary investigations by a school or the Ministry of Education are not disciplinary hearings requiring prior notice under the Code of Regulations for Teachers
  • An employer must afford an employee the opportunity to attend a disciplinary hearing in the company of a union official or colleague of their choice under section 41 of the Employment Act

Court orders

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  1. 1.Declared the dismissal of the petitioner and his removal from the Register of Teachers by the Respondent to be unfair
  2. 2.Ordered that the petitioner be re-instated to the Register of Teachers forthwith
  3. 3.Ordered that the respondent do re-engage the Petitioner on similar terms as he was at the time of dismissal
  4. 4.The Respondent shall bear the Petitioner's costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 23(3), 237(1), 237(2), 24, 25, 27(1) & (2), 28, 29, 41(1) & (2), 47(1) & (2), 48, 50(4), 233
  • Teachers Service Commission ActThird Schedule; Section 9(2)(a)
  • Code of Regulations for Teachers (2015)Rules 146(6), 146(6)(b), 146(12), 155, 156; Clause (1)(i), (a)(iv), (c)(iii)
  • Fair Administrative Action ActSection 4(3)(a) and (b)
  • Employment ActSections 41, 43, 49
  • Office of the Attorney General Actnot specified
  • Government Proceedings Actprocess for joinder

Cases cited (11)

  • Judicial Service Commission v Mbalu Mutava & another
    [2015] eKLR
  • Imaran Limited & 5 others v Central Bank of Kenya & 5 others
    [2016] eKLR
  • Waweru Edwin Thini v University of Nairobi
    [2020] eKLR
  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA 300
  • Geothermal Development Company Limited v Attorney General & 3 others
    [2013] eKLR
  • Staff, Disciplinary Committee of Maseno University & 2 others v Ochonga Okello
    [2012] eKLR
  • Republic v Permanent Secretary, Ministry Of Housing & another Ex-Parte Eustacia Wachira Macharia (Suing As The Legal Representative of the Estate of Florence Warundu Wachira (Deceased)
    [2014] eKLR
  • Captain Geoffrey Kujoga Murungi v Attorney General
    Misc Civil Application No 293 of 1993
  • Republic v Tanathi Water Services Board & 2 others Ex parte Senator Johnstone Muthama
    [2014] eKLR
  • Republic v Teachers Service Commission & 3 others Ex-Parte Titus Mutua Mulinge
    [2013] eKLR
  • Municipal Council of Mombasa v Republic and Umoja Consultants Limited
    Civil Appeal No 185 of 2001
Jurisdiction invoked
Article 47 of the Constitution; Fair Administrative Action Act; Employment Act (constitutional petition on fair administrative action and employment rights)

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, "Namuye v Teachers Service Commission & another (Petition E103 of 2020) [2023] KEELRC 972 (KLR)", Case Analysis (2023). Petition dated 16th December 2020 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/972/eng@2023-04-25

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