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ELRCDismissedJudicial Review Application (Notice of Motion dated 2nd March 2020)· [2023] KEELRC 2873 (KLR)

Barasa v Teachers Service Commission (Judicial Review Miscellaneous Application 5 of 2020) [2023] KEELRC 2873 (KLR)

Employment and Labour Relations Court
2 November 2023
MOM. Onyango
4,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a teacher's attempt to overturn his TSC dismissal, confirming judicial review only examines process, not whether the decision was right.

What this practically means

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Executive summary

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The Ex-parte Applicant, a principal of St Augustine Maziwa Secondary School, was interdicted on 23rd March 2019 on allegations of an immoral love relationship with a student and sexual intercourse with her on 9th December 2018. After a disciplinary hearing on 28th May 2019, the Teachers Service Commission dismissed him and removed his name from the register of teachers by letters dated 20th June 2019. By Notice of Motion dated 2nd March 2020, he sought certiorari, prohibition and mandamus, contending that the disciplinary proceedings breached the rules of natural justice, that the Committee acted ultra vires in proceeding on allegations recanted by the complainant and her parents, and that the proceedings were unfair. The Respondent maintained that due process under the Code of Regulations for Teachers was followed and that the complainant never recanted before the Committee. At the hearing the Applicant, the complainant, her mother and father testified that the original allegations were fabricated and coerced by two teachers, while the Respondent's witnesses insisted the process was fair. The court held that, the suit having been brought under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, it was confined to a review of the decision-making process, not the merits. On the record, the Applicant had an opportunity to be heard, did not cross-examine the complainant or her mother, and never mentioned any recantation or complain about the two disallowed witnesses during or after the hearing until filing suit. Finding no illegality, irrationality or procedural impropriety, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the disciplinary proceedings before the Teachers Service Commission were tainted with illegality, irrationality and procedural impropriety

Holding

The court found no proof of impropriety, irrationality or denial of the right to be heard; the dismissal process was fair and lawful.

Reasoning

The court confined itself to a process review under Order 53. The Applicant was invited to the disciplinary hearing, given an opportunity to present his case, and did not cross-examine the complainant or her mother, nor mention any withdrawal of the complaint during the hearing. Only one of his three witnesses was disallowed and he never complained about the other two until filing suit. The process followed CORT.

p. 10

Legal principles established

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  • Where a suit is brought under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules without a claim of rights violation, the court is limited to reviewing the process and manner in which the decision was reached, not the merits of the decision.

Court orders

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  1. 1.The ex parte applicant's application dated 2nd March 2020 is dismissed
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Law Reform ActSections 8 and 9
  • Civil Procedure RulesOrder 53
  • Code of Regulations for Teachers (CORT)Third Schedule, Clause (a)(i)

Cases cited (10)

  • Jane Nyandiko v Kenya Commercial Bank Limited
    (2017) eKLR
  • National Bank of Kenya v Anthony Njue
    (2019) eKLR
  • Zachariah Wagunza & Another v Office of the Registrar, Academic Kenyatta University & 2 others
    (2013) eKLR
  • Pastoli v Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    (2018) eKLR
  • Chief Constable of the North Wales Police v Evans
    (1982) 1 WLR 1155
  • Commissioner of Lands v Kunste Hotel Limited
    (1997) eKLR
  • Edwin Harold Dande & 3 Others v DPP & 2 Others
    SC. Pet. no. 4 of 2022 as Consolidated with Pet. no. 6 and 8 of 2022
  • Republic v Public Procurement Administrative Review Board ex parte Trippex Construction Company Limited & Another
  • Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules

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, "Barasa v Teachers Service Commission (Judicial Review Miscellaneous Application 5 of 2020) [2023] KEELRC 2873 (KLR)", Case Analysis (2023). Judicial Review Application (Notice of Motion dated 2nd March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2873/eng@2023-11-02

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