Anyuna v Board of Management, Maasai Girls Secondary School & another (Employment and Labour Relations Cause E015 of 2022) [2024] KEELRC 135 (KLR)
The bottom line
#Kenya's Employment Court reinstated a teacher the TSC had fired, ruling that verbal interdiction and unproven allegations make a dismissal unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were valid reasons to terminate the services of the claimant.
- 2.Whether the respondents followed due process in terminating the claimant's services.
- 3.What remedies to grant in the circumstances.
Key legal issues
#Whether there were valid reasons to terminate the claimant's services
The respondents failed to establish valid reasons, since the alleged victim denied having sexual intercourse with the claimant before the disciplinary panel and before the court, and the claimant's criminal acquittal was on record.
The reason given for dismissal was alleged sexual intercourse with a learner. The alleged victim retracted her police statement and denied the act before the disciplinary panel and before the court. Without her evidence, the court found it unclear on what evidence the respondents determined guilt. Under section 43 of the Employment Act the employer bears the burden of proving reasons, and that burden was not discharged.
Whether due process was followed in interdicting and terminating the claimant
Due process was not followed: the claimant was verbally interdicted contrary to section 147 of the CORT, was not served with the interdiction letter until the day of the disciplinary hearing, and was not given the opportunity to cross-examine his accusers before the BOM.
Section 147 of the TSC Code of Regulations (2015) requires the interdiction to be communicated in writing specifying the allegations. The claimant was verbally interdicted on 29 November 2019 and only received the interdiction letter on 15 July 2021. The victim was not invited to the BOM hearing, denying the claimant the chance to cross-examine his accusers, offending section 41 of the Employment Act and Article 47 of the Constitution.
What remedies should be granted
The termination was unfair and unjustified under section 45(2) of the Employment Act; reinstatement was ordered rather than compensation, considering the claimant's age and practicability of alternative employment.
Having found no valid reasons and procedural unfairness, the termination was unfair under section 45(2). Under section 49(3) and (4) of the Employment Act the court considered the claimant's wishes, his youth, and the practicability of reinstatement, and ordered reinstatement without loss of benefits and promotion from the date of judgment.
Legal principles established
#- An employer must prove valid reasons for termination, failing which the termination is deemed unfair under section 43 and 45 of the Employment Act.
- Interdiction under the TSC Code of Regulations must be in writing and served on the teacher specifying the actual allegations; verbal interdiction is contrary to the mandatory terms of the Code.
- An employee must be accorded a fair disciplinary process, including the opportunity to cross-examine accusers, as guaranteed by Article 47 of the Constitution and section 41 of the Employment Act.
Court orders
#- 1.Reinstatement of the claimant in employment without loss of benefits and promotion with effect from the date of the judgment
- 2.The respondents shall pay costs of the claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)
Relief refused
#Twelve months' compensation for unfair termination (Kshs 900,000)
The court instead ordered reinstatement with full benefits, making monetary compensation unnecessary
General damages of Kshs 2,000,000 for violation of Articles 47 and 50 of the Constitution
No award made; the court granted reinstatement as the remedy
Interest on the compensation and damages claims
No monetary award was made, so no interest was granted
Costs
The respondents shall pay costs of this claim.
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 considering these parameters and in particular the special circumstance of the age of claimant and the practicability of finding alternative employment, I order reinstatement in employment without loss of benefits and promotion with efiect from the date of this judgment.
The respondents shall pay costs of this claim.
Without the evidence of the victim, it is not clear upon what evidence the respondents made a determination that the claimant was guilty of the accusation levelled against him.
it is my finding that the respondent failed to follow due process as per their own code of practice and the law and so the claimant was terminated without following due process.
Indeed this section is couched in mandatory terms. There is no indication that the claimant was indeed served with the interdiction letter upon his interdiction until he asked for it after being invited for a disciplinary hearing.
Issues in the judgment
#The judgment states the termination letter is dated 1/1/21 while the claimant's evidence and submissions consistently place the dismissal letter at 1st November, 2021, a likely typographical inconsistency.
The name of the alleged victim student appears variously as 'VP Koipa' and 'VP Korpa' in the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anyuna v Board of Management, Maasai Girls Secondary School & another (Employment and Labour Relations Cause E015 of 2022) [2024] KEELRC 135 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/135/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.