Mwito v Teachers Service Commission & another (Petition E098 of 2022) [2023] KEELRC 3086 (KLR)
The bottom line
#A Kenyan court ruled the TSC fired a teacher unfairly over a flawed disciplinary panel, but only awarded partial compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the constitutional petition threshold
The petition failed the Anarita Karimi Njeru threshold; the reliefs sought were statutory under the Employment Act and the Fair Administrative Action Act, and no distinct constitutional violations were pleaded with precision
The court found the Petitioner cited Articles 2, 10, 22, 23(3), 41, 47, 50(1) and 162(2) without setting out particulars of violations. Since the relationship was employer/employee regulated by the Employment Act, direct reliance on the Constitution was impermissible absent a challenge to the legislation. Counsel had himself anchored the case on Sections 41 and 4 of FACA.
Whether the Investigation Committee was properly constituted
Properly constituted — Evaleen Mitei was a Senior Deputy Director, one rank above the Petitioner, satisfying paragraph 115(1) of the TSC HR Manual
Documentary evidence including M/s Mitei's contract of 27th August 2018 and deployment letter of 3rd September 2018 established she was a Senior Deputy Director in Job Group S while the Petitioner was in Job Group R. The committee comprised two Directors and one Senior Deputy Director, exceeding the minimum of three members.
Whether the reason for termination was valid and fair
The Respondent had valid and fair reasons, proved on a balance of probabilities — irregular transfers without approval, failure to submit transfer letters, failure to supervise TPAD, harassment of teachers and receipt of funds
The Petitioner appeared before three differently constituted panels which all found her culpable. Applying the range of reasonable responses test, the employer genuinely believed the reasons existed. The Petitioner admitted unapproved transfers, receiving money from a teacher, and sending a threatening sms to a Head Teacher.
Whether the termination procedure was fair
Termination was procedurally unfair because the Disciplinary Panel was improperly constituted — it had no member of the Commission as Chair and only four members, contrary to paragraph 119(2) of the TSC HR Manual, rendering its proceedings a nullity
Paragraph 119(2) of the TSC HR Manual is mandatory: the Disciplinary Panel must have at least one member of the Commission as Chair and at least five members excluding technical staff. The panel had four members and no evidence of delegation under Section 20 of the TSC Act was adduced. Consequently the termination was unfair for want of procedural propriety.
Whether the 2nd Respondent was a necessary party
She was improperly enjoined; no cause of action was demonstrated against her personally and Section 22 of the TSC Act protects officers from personal liability for acts done in good faith
No specific allegations or relief were sought against the CEO personally. Applying the Werrot test, no relief could be granted against her, and the Commission is a body corporate distinct from its officers under the Salomon principle.
Legal principles established
#- A constitutional petition must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement
- Where legislation directly regulates the right in issue, a litigant cannot bypass the legislation and rely directly on the Constitution
- Termination must be both substantively justified and procedurally fair
- The employer's standard of proof of reasons for termination is on a balance of probability, a partly subjective test
- Reinstatement is discretionary, not an automatic right
Court orders
#- 1.Half salary for the interdiction period
- 2.Equivalent of 3 months' gross salary as compensation for unfair termination
- 3.Costs of the suit to the Petitioner
- 4.Interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Articles 22, 23, 41, 47, 50, 162(2) and 258 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwito v Teachers Service Commission & another (Petition E098 of 2022) [2023] KEELRC 3086 (KLR)", Case Analysis (2023). Petition (ELRC, Nairobi) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3086/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.