Teachers Service Commission v Mwita (Appeal E049 of 2023) [2023] KEELRC 3287 (KLR)

In ordinary disciplinary proceedings, the employer presents its case first so the employee knows and fully understands the case to confront before being called to rebut it. The Commission reversed this order by putting the Respondent to task before leading evidence against him. The Appellant offered no explanation for the reversal, so the Magistrate was entitled to fault the fairness of the process.

Sections 43, 45 and 47(5) of the Employment Act set the burden and standard of proof: the employee bears a low threshold, then the employer bears the onerous burden of justifying termination. Relevant witnesses were neither interviewed nor called; inconsistencies in the pupil's testimony were not clarified on re-examination. Nothing on record shows the Magistrate raised the standard of proof; DNA and criminal standards featured only in argument.

Reinstatement is discretionary and must consider section 49(4) factors. The dispute was not concluded within 3 years, but the record shows the Respondent was not responsible; the hearing had to start afresh before a new Magistrate. The Commission is the sole body that registers teachers, and the Respondent, a teacher all his adult life, had remote prospects of alternative livelihood. The order met the exceptional circumstances threshold.

Section 49(3)(a) contemplates reinstatement on terms as if the contract had not been interrupted where unfair termination is found. The Court of Appeal in National Bank of Kenya v Samuel Nguru Mutonya affirmed salary arrears from termination to reinstatement as attendant reliefs. The finding of unfair termination stood, so the arrears award was appropriate and in tandem with the statute.