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ELRCPartially AllowedELRC Cause (transferred from Bungoma ELRC E005 of 2023 to Kakamega)· [2023] KEELRC 2533 (KLR)

Walemba v Teachers Service Commission (Cause 8 of 2023) [2023] KEELRC 2533 (KLR)

Employment and Labour Relations Court
18 October 2023
JKJemimah Keli
6,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan teacher won unfair dismissal compensation because his employer couldn't prove the caning allegations, but lost reinstatement due to a three-year deadline.

What this practically means

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Executive summary

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The claimant, formerly Deputy Head Teacher of Khwihondwe Primary School, was dismissed by the Teachers Service Commission on 20th June 2019 for allegedly administering corporal punishment to a standard six pupil in term two 2018. He sued seeking a declaration that the dismissal was unlawful, reinstatement with full benefits, general damages, and costs. The court framed two issues: whether the termination was lawful and fair, and whether the claimant was entitled to the reliefs sought. On substantive fairness, the court found the caning allegation unproven: the learner recanted and admitted lying to avoid punishment for losing a school watch, his father confirmed no caning occurred, there was no medical evidence or occurrence report, the respondent's own witnesses contradicted each other on where the incident happened, and the headteacher - who had a poor relationship with the claimant - relied on hearsay. Evidence that the learner had lied was before the respondent at review but was disregarded. On procedural fairness, the claimant was notified, heard, allowed to cross-examine and to seek review; the complaint about the County Panel chair testifying failed, so procedure was fair but tainted by invalid reasons. Reinstatement was refused as more than three years had lapsed, the court lacking jurisdiction. General damages were refused per Court of Appeal authority; notice pay of one month, salary for the interdiction period, and maximum compensation of twelve months' gross salary were awarded, subject to PAYE, with interest, costs to the claimant, and a 30-day stay.

Key legal issues

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01

Whether the reasons for termination (administering corporal punishment) were valid

Holding

The reasons were not valid; the evidence of the alleged caning was inconsistent, hearsay and uncorroborated, and evidence that the learner had lied was before the respondent at review and was disregarded

Reasoning

The learner recanted, his father produced an affidavit confirming no caning, there was no medical proof or P3 form, and the respondent's own witnesses contradicted each other on where the caning occurred. The headteacher only relayed allegations. A reasonable employer would have noticed these glaring inconsistencies; on a balance of probability the reasons for dismissal were not valid.

p. 9
02

Whether the procedure followed was fair

Holding

Procedural fairness was substantially observed - the claimant was notified, heard, allowed to cross-examine and seek review - but the process was tainted by the invalidity of the reasons

Reasoning

The claimant was invited to the disciplinary hearing, allowed to present evidence and cross-examine witnesses, and given a review. The complaint about the County Panel chair testifying failed as she appeared as a witness. The representative complaint was an unpleaded afterthought. Procedural fairness was present but tainted by lack of valid reasons.

p. 10
03

Whether reinstatement could be granted

Holding

No - the three-year jurisdictional window for reinstatement had lapsed

Reasoning

Dismissal took effect on 4th June 2019; by judgment four years, 4 months and 14 days had lapsed. Following Sotik Highlands Tea Estates, the court has no jurisdiction to order reinstatement beyond three years of dismissal.

p. 11
04

Whether general damages for wrongful dismissal are available

Holding

No - only salary in lieu of notice, following Kenya Broadcasting Corporation v Geoffrey Wakio and Alfred Githinji v Mumias Sugar Company

Reasoning

The Court of Appeal has held that general damages are not awardable for wrongful termination; the damages payable are equivalent to salary in lieu of notice. The court therefore awarded one month's notice pay instead.

p. 12

Legal principles established

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  • The employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair
  • The labour court is empowered to order reinstatement only within three years of dismissal
  • The reasonableness test for dismissal is whether a reasonable employer might reasonably have dismissed the employee

Court orders

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  1. 1.Award of Notice pay for one month as per last gross salary
  2. 2.Award of Unpaid Salary for period of interdiction being from 4th October 2018 up to dismissal on 20th June 2019
  3. 3.Award of Compensation pay equivalent of 12 months last gross salary
  4. 4.Awards 1, 2 and 3 subject to statutory deduction of PAYE
  5. 5.Interest at court rate from date of judgment until payment in full
  6. 6.Respondent to pay the claimant costs of the suit
  7. 7.Stay of 30 days granted

Authorities

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Legislation

  • Employment ActSections 41, 42, 43, 45(2), 45(5)(e), 49, 49(4)
  • Constitution of Kenya, 2010Article 50
  • Teachers Service Commission ActNo. 20 of 2012; Third Schedule Clause b(vi)
  • Code of Regulations for Teachers, 2015Regulations 146(1), 153, 156(4)
  • Basic Education ActSections 4(p) and 36
  • Employment and Labour Relations Court ActSection 12

Cases cited (9)

  • Bakery Confectionery Food Manufacturing & Allied Workers Union v Wrigley Company (CA) Limited
    (2022) eKLR, Nairobi ELRC Cause 1519 of 2015
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    Nairobi Civil Appeal 66A of 2017
  • British Leland UK LTD v Swift
    (1981) I.R.L.R 91
  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Alfred Githinji v Mumias Sugar Company Ltd
    Civil Appeal No 194 of 1991
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    (2013) eKLR
  • Bett Francis Berngetuny & another v Teachers Service Commission and another
    (2015) eKLR
  • Lydia Moraa Obara v Tusker Mattress Limited
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (reinstatement power) read with the Employment Act, 2007

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, "Walemba v Teachers Service Commission (Cause 8 of 2023) [2023] KEELRC 2533 (KLR)", Case Analysis (2023). ELRC Cause (transferred from Bungoma ELRC E005 of 2023 to Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2533/eng@2023-10-18

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