Simiyu v Teachers Service Commission (Petition 2 of 2023) [2024] KEELRC 53 (KLR)
The bottom line
#Kenya's Employment Court dismissed a teacher's petition, ruling unfair dismissal claims must go through the Employment Act, not constitutional petitions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the doctrine of constitutional avoidance is applicable in this case
- 2.Whether the dismissal of the Petitioner by the Respondent was lawful and fair (procedural and substantive fairness)
- 3.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Constitutional avoidance
The petition was in substance an unfair termination claim under the Employment Act and could not be maintained as a constitutional petition
The court found the real question was whether there was unfair dismissal, a matter for ss. 43, 41, 45 and 49 of the Employment Act, with damages under s.12 of the ELRC Act. Relying on Josephat Ndirangu and Gabriel Mutava, it held primary legislation giving effect to constitutional labour rights should not be circumvented, and the alternative prayer for damages confirmed the claim's true character.
Procedural fairness
Lack of 7 days' notice at the investigation stage was an infraction but caused no significant injustice; the disciplinary hearing complied with s.41 of the Employment Act
The process had three stages: Board assessment, investigation panel, and disciplinary hearing. Although Regulation 146(6) notice was not given at investigation, the Petitioner was heard, gave a statement, cross-examined witnesses, was informed of charges via the interdiction letter, given notice of hearing, and even apologised. Substantial compliance sufficed.
Substantive fairness
The Respondent proved valid reasons under ss.43 and 45(2): immoral behaviour (sex with a Form 3 learner) and infamous conduct (the nude photo)
The Petitioner admitted the sexual encounter and being in the photo. The learner prohibition under CORT covers all learners regardless of age or misrepresentation by the girl. The court viewed the photo as a 'selfie' taken by the Petitioner himself, making its circulation infamous conduct contrary to the Code of Regulations for Teachers. The reasonableness test from British Leyland was satisfied.
Sufficiency of pleading of constitutional violations
Counsel's reliance on Anarita Karimi and Mumo Matemu standards noted; the petition proceeded as an employment claim
The Respondent argued the petition did not meet the Anarita Karimi threshold of pleading violations with reasonable precision. The court, adopting constitutional avoidance, treated the matter as an ordinary employment claim rather than determining violations on constitutional pleadings, relying on Kenya Ports Authority v Joseph Makau Munyao on pleading and proving Article 41 damages.
Legal principles established
#- A litigant cannot circumvent the Employment Act's regime on unfair termination by framing the claim directly as a constitutional petition - the doctrine of constitutional avoidance applies
- Infractions at the investigation stage that cause no significant injustice do not vitiate a dismissal where the subsequent disciplinary hearing met the s.41 requirements of procedural fairness
- The prohibition on teachers having sexual relations with learners applies to all learners, including those of the age of majority
Court orders
#- 1.Petition dismissed as a case of constitutional avoidance and without merit
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 21, 23, 43, 47, 50 and 41 of the Constitution invoked; court determined the claim was governed by the Employment Act (ss. 41, 43, 45, 49) and Section 12 of the ELRC Act
Relief refused
#Declarations of violation of Articles 43, 47 and 50, reinstatement and/or damages for unlawful dismissal with accrued benefits
The petition was characterised as a mislabelled unfair dismissal claim barred by constitutional avoidance; procedural fairness was substantially met and the reasons for dismissal were proved
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In Conclusion, the Petition is found to have been a case of constitutional avoidance and without merit.
I do hold there was substantial procedural fairness which meets the requirements of Article 50 of the Constitution and Section 41 of the Employment Act
In the upshot, the Court finds that the Respondent discharged his burden of proof of the validity of reasons for the dismissal as required under section 43 and 45(2) of the Employment Act
It is not open to the court to decide on the reasonableness of the provision which covers all learners even those of the age of majority.
The primary legislation should not be circumvented by seeking to rely directly on a constitutional provision.
Issues in the judgment
#The narrative paragraphs contain substantial OCR-style corruption with repeated and scrambled passages (e.g. paragraph 16 and 17), obscuring some factual chronology
The closing/final orders passage at the end of the judgment is garbled, making the exact disposition wording and date partially unclear
Article 51 is referenced in the framed issue but the violations pleaded relate to Articles 43, 47 and 50
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiyu v Teachers Service Commission (Petition 2 of 2023) [2024] KEELRC 53 (KLR)", Case Analysis (2024). Petition dated 16th January 2023 (ELRC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/53/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.