Khisa v Teachers Service Commission (Employment and Labour Relations Cause E006 of 2022) [2023] KEELRC 1437 (KLR)
The bottom line
#A Kenyan court ordered the Teachers Service Commission to pay a dismissed teacher over Kshs 850,000 because it never investigated the misconduct allegations behind his sacking.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid and proved
The reason given (sexual intercourse with a student at a named guest house) was not proved by investigation or any evidence; the termination was unlawful.
The dismissal letter gave particulars of immoral behaviour at a specific guest house. The student could not name the lodge at the BOM hearing; the police investigator found no evidence of the claimant at the lodge; TSC investigators admitted they never investigated the hotel, medical treatment or reports to police. The reason was therefore invalid under section 43 of the Employment Act.
Whether the process was procedurally fair
Though the hearing was substantially fair, the failure to investigate the reason rendered the process unfair under section 41.
The court found the hearings before the BOM, county panel and TSC were conducted, but the validity of the reason taints the process: investigations are part of the process, and where the reason relied upon is invalid, the procedure becomes tainted by unfairness under section 41 of the Employment Act.
Whether the claimant was entitled to reinstatement
Reinstatement to employment declined; teacher-student/parent trust had broken down and the best interest of the child applied.
The claimant's own conduct (sending money to the student, visiting her home, joining the mother without the principal's permission) had drawn innuendos that broke down trust. Citing Kenya Airways v Aviation & Allied Workers Union and David Njoroge Kimani v TSC, the court held reinstatement would compromise teacher/student discipline.
What remedies were available
Twelve months' gross salary compensation under section 49(1)(c) plus one month's notice pay under section 49(1)(a), totalling Kshs 851,124/=.
The claimant had no prior disciplinary record and 11 years' service; dismissal extinguished his livelihood as a registered teacher. Section 49 remedies under the Employment Act, as outlined by the Supreme Court in Kenfreight (E.A) Ltd v Benson K. Nguti, applied; the 28-month salary claim and post-dismissal salary were unsupported in law.
Legal principles established
#- An employer must prove the reason or reasons for termination under section 43 of the Employment Act, failing which the termination is deemed unfair.
- Reinstatement is discretionary, not automatic, and courts will not force parties in a personal relationship to continue in such a relationship against the will of one of them.
- Courts must consider the effect of reinstatement of a teacher on pupils and discipline in schools.
Court orders
#- 1.Award of Notice pay in lieu of Kshs 70,927.00
- 2.Compensatory award the equivalent of 12 months last salary, total award sum of Kshs 851,124/=
- 3.Costs of the suit to the claimant
- 4.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Act, section 12 (first-instance employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khisa v Teachers Service Commission (Employment and Labour Relations Cause E006 of 2022) [2023] KEELRC 1437 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1437/eng@2023-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.