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ELRCDismissedPetition (ELRC, Nyeri) - Petitioner v Respondent· [2024] KEELRC 130 (KLR)

Kanene v Teachers Service Commission (Employment and Labour Relations Petition E010 of 2023) [2024] KEELRC 130 (KLR)

Employment and Labour Relations Court
30 January 2024
6,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's employment court upheld a teacher's dismissal, ruling the TSC followed fair procedure and had valid reasons for the termination.

What this practically means

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Executive summary

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The petitioner, a secondary school teacher, was interdicted on 20th August 2019 without pay following allegations of an illicit relationship with a student at Mioro Secondary School, and was summarily dismissed and removed from the Register of Teachers on 2nd February 2021 for immoral behavior and infamous conduct, including allegedly stealing the student's love letter from a staffroom. His review was unsuccessful. He petitioned the ELRC at Nyeri seeking declarations of violation of Articles 27 and 50, invalidation of Regulation 148(1) of the TSC Code of Regulations for Teachers for lack of public participation, certiorari to quash the dismissal and review decisions, payment of Kshs.636,300 withheld half salary for 18 months of interdiction, reinstatement and general damages. The respondent defended the dismissal as based on valid reasons and fair procedure under Article 237(2)(f) of the Constitution and the CORT. The court framed four issues: validity and fairness of reasons, procedural fairness, constitutionality of Regulation 148(1), and entitlement to reliefs. Applying sections 43 and 41 of the Employment Act, the court found the employer genuinely believed the relationship existed and any reasonable employer would have dismissed; it also found fair procedure was followed at investigation, hearing and review. On the constitutionality challenge, the court declined to invalidate Regulation 148(1), noting the petitioner had not proved the differential treatment fell within Article 27's forbidden grounds and deferring the terms-of-service issue to collective bargaining since the applicable CBA was not in evidence. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether the dismissal was grounded on valid and fair reasons

Holding

The court held the reason for dismissal (immoral behavior and infamous conduct) was valid; the employer genuinely believed an illicit relationship existed based on the love letter, investigation report and witness testimony.

Reasoning

Applying section 43 of the Employment Act, the court held the employer must prove matters it genuinely believed at termination. Although the love letter was not produced as an exhibit, several teachers saw it; its contents, the surrounding anxiety, the theft of the letter and the taking away of the student's statement indicated an illicit relationship. The court found any reasonable employer would have dismissed the petitioner.

p. 11
02

Whether fair procedure was followed

Holding

Fair procedure was followed: the petitioner was invited to investigatory hearing, allowed to cross-examine witnesses, heard by the disciplinary committee and by a different review panel.

Reasoning

The court applied section 41 of the Employment Act and Regulations 146 and 149 of CORT. The petitioner attended the county investigatory hearing, cross-examined witnesses, gave his statement, was heard by the disciplinary committee on 2nd February 2021 and his appeal/review was heard by a different panel. No objection was raised at the proceedings.

p. 12
03

Whether Regulation 148(1) of CORT (denial of half salary for interdicted teachers accused of immoral behavior) is unconstitutional under Article 27

Holding

The court declined to invalidate the regulation; the petitioner failed to prove the differential treatment fell within Article 27's forbidden grounds, and the issue was left to collective bargaining.

Reasoning

The court acknowledged the regulation exposes teachers interdicted for some offences to different treatment regarding half salary, but held it was part of the petitioner's terms of service which he never challenged earlier. Without the applicable CBA in evidence, adjudicating would risk rewriting the parties' contract; the matter was left to trade union negotiations.

p. 13

Legal principles established

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  • An employer need only prove the reasons it genuinely believed to exist at the time of termination under section 43 of the Employment Act
  • The court will not rewrite contractual terms and conditions of service where the applicable CBA is not produced in court

Court orders

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  1. 1.The suit (petition) is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1) and (2)
  • Constitution of KenyaArticle 50(2)(a) and 50(5)(b)
  • Constitution of KenyaArticle 10(2)(a)
  • Constitution of KenyaArticle 237(2)(f)
  • Employment ActSection 43
  • Employment ActSection 41
  • Teachers Service Commission Act, No. 20 of 2012Section 33; Sections 23(2), 30(5), 31(2)
  • TSC Code of Regulations for Teachers (CORT), 2015Regulations 146 (including 146(4), 146(6), 146(12)), 148(1)(h), 149, 155, Schedule 5
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Patrick Wanyonyi Khaemba v Secretary Teachers Service Commission & another
    (2014) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya, Articles 27, 50, 10 and 237; TSC Act No. 20 of 2012 (petitions jurisdiction of ELRC over employment and constitutional violations)

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, "Kanene v Teachers Service Commission (Employment and Labour Relations Petition E010 of 2023) [2024] KEELRC 130 (KLR)", Case Analysis (2024). Petition (ELRC, Nyeri) - Petitioner v Respondent. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/130/eng@2024-01-30

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