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ELRCPartially AllowedKakamega ELRC Appeal (from Kakamega CMELRC No. 2 of 2020)· [2023] KEELRC 2518 (KLR)

Teachers Service Commission v Makokha (Employment and Labour Relations Appeal E004 of 2023) [2023] KEELRC 2518 (KLR)

Employment and Labour Relations Court
18 October 2023
JKJemimah Keli
7,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a criminal acquittal doesn't stop a fair dismissal, and reinstatement orders made more than three years after dismissal are invalid.

What this practically means

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Executive summary

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The Teachers Service Commission appealed against the judgment of Hon. D. Alego (SPM) in Kakamega CMELRC No. 2 of 2020, in which a teacher (Julius Mutinye Makokha) dismissed for alleged immoral conduct with a minor pupil was found to have been wrongfully terminated and ordered reinstated. The appeal was canvassed by written submissions. Justice Jemimah Keli framed three issues: substantive and procedural fairness, ambiguity of the judgment, and the reliefs. The court first addressed burden and standard of proof, holding that employment claims are civil and dismissal for misconduct must be justified on a balance of probabilities; the trial magistrate erred by resting her finding of unfair termination on the teacher's acquittal in Criminal Case No. 15 of 2018, since a criminal trial and disciplinary proceedings are distinct processes with different standards of proof. On the merits, the court found the teacher's immoral conduct with a student proved on a balance of probabilities and applied the reasonable-employer test from British Leyland v Swift. The procedural fairness complaint was rejected as an afterthought not pleaded at trial. The court further held that the reinstatement order was illegal, having been made more than three years after the effective date of dismissal, contrary to the mandatory limit in section 12(3)(vii) of the Employment and Labour Relations Act, and that granting both main and alternative reliefs rendered the judgment ambiguous. The appeal was allowed; the trial judgment and all consequential orders were set aside and the claim dated 9th January 2020 dismissed, with no order as to costs in either the suit or the appeal.

Key legal issues

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01

Standard of proof in disciplinary/employment dismissal for misconduct

Holding

Disciplinary proceedings require proof on a balance of probabilities, not beyond reasonable doubt; the trial magistrate erred by resting the finding of unfair termination on the criminal acquittal

Reasoning

Employment claims are civil and governed by sections 43, 45 and 47(5) of the Employment Act. The magistrate based her finding of unlawful termination solely on the criminal acquittal, applying a criminal standard. The court held a reasonable-employer test (British Leyland v Swift) applies, and on the evidence the employer genuinely and reasonably believed the teacher engaged in immoral conduct with a pupil, justifying dismissal.

p. 10
02

Procedural fairness of the TSC disciplinary process

Holding

The procedural fairness complaint was an afterthought not pleaded in the statement of claim and could not be raised for the first time on appeal

Reasoning

The court perused the statement of claim and found no allegation that the disciplinary process was flawed. Since the issue was not pleaded or litigated at trial, the trial court never heard submissions on it, and the appellate court could not entertain it. The documented process (show cause, county and national hearings, appeal before a different panel) was on the record.

p. 12
03

Validity of the reinstatement order

Holding

The reinstatement order was illegal as it was made outside the statutory three-year window under section 12(3)(vii) of the ELRC Act, and the trial court had no discretion to extend it

Reasoning

Dismissal took effect on 10th July 2018 and judgment was delivered on 23rd January 2023, far beyond three years. Following Sotik Highlands Tea Estates Ltd v KPAWU, ordering reinstatement after three years is acting without jurisdiction. The delay was not attributable to the employer, and COVID-19 did not extend the statutory limit.

p. 14
04

Ambiguity of the trial judgment

Holding

Granting both main and alternative reliefs in blanket form rendered the judgment ambiguous and erroneous

Reasoning

The trial court entered judgment 'as prayed and or alternative prayers', failing to choose between reinstatement and alternative compensation as required by Alex Wainaina v Janson Mwangi Wanjihia. Such a judgment is imprecise and incapable of execution, a further ground of appeal upheld.

p. 14

Legal principles established

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  • An acquittal in a criminal case does not automatically render an employee immune to disciplinary action; criminal trial and disciplinary proceedings are distinct processes with different standards of proof
  • Reinstatement may only be ordered within three years of dismissal; an order outside that period is made without jurisdiction
  • Where relief is prayed in the alternative, a court must choose between the main and alternative relief with reasons; both cannot be granted in blanket form
  • An appellate court cannot consider issues not pleaded or contested at the trial court

Court orders

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  1. 1.The appeal is upheld
  2. 2.The judgment of Hon. D. Alego in Kakamega CMELRC No. 2 of 2020 delivered on 23rd January 2023 and all consequential orders set aside
  3. 3.Substituted with judgment that the Claim dated 9th January 2020 is dismissed
  4. 4.No order as to costs in the trial suit
  5. 5.No costs in the appeal
On appeal from
Senior Principal Magistrate's Court, Kakamega
CMELRC No. 2 of 2020
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appeal from magistrates' court)

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, "Teachers Service Commission v Makokha (Employment and Labour Relations Appeal E004 of 2023) [2023] KEELRC 2518 (KLR)", Case Analysis (2023). Kakamega ELRC Appeal (from Kakamega CMELRC No. 2 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2518/eng@2023-10-18

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