Namuye v Teachers Service Commission & another (Petition E103 of 2020) [2023] KEELRC 972 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the disciplinary process violated Article 47, the rules of natural justice and the TSC procedure
No procedural violation was established; the Petitioner knew the charges, had notice of hearings and attended, and no bias was proved
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.
Whether there was sufficient evidence to support the finding of guilt and dismissal
The decision to dismiss and remove the Petitioner from the Register of Teachers was not supported by the evidence before the Respondent
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.
Whether the failure to allow the Petitioner to be accompanied by a union official breached section 41 of the Employment Act
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
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.
Whether the Petitioner was entitled to certiorari, prohibition and constitutional compensation
No; the constitutional petition was not the proper vehicle, and the appropriate remedies were those under section 49 of the Employment Act
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.
Legal principles established
#- 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
#- 1.Declared the dismissal of the petitioner and his removal from the Register of Teachers by the Respondent to be unfair
- 2.Ordered that the petitioner be re-instated to the Register of Teachers forthwith
- 3.Ordered that the respondent do re-engage the Petitioner on similar terms as he was at the time of dismissal
- 4.The Respondent shall bear the Petitioner's costs
- Jurisdiction invoked
- Article 47 of the Constitution; Fair Administrative Action Act; Employment Act (constitutional petition on fair administrative action and employment rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.