Shianzwi v Teachers Service Commission (Cause E018 of 2023) [2024] KEELRC 1695 (KLR)
The bottom line
#Kenya's Employment Court upheld a teacher's dismissal, ruling the TSC followed fair procedure and had valid reasons, and refused reinstatement because the teacher never used the statutory process.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process and dismissal
Procedural fairness was satisfied; the claimant was heard, made representations, cross-examined witnesses at the TSC hearing, and statements were supplied on request
The court applied section 41 of the Employment Act and Articles 47 and 50. It found the claimant was heard at county and TSC levels, answered questions, made representations, and cross-examined pupil EM. The claimant produced no evidence he had requested witness statements before the hearing, so the court could not find they were denied. Relying on Bett Francis Berngetuny, the court held that being allowed to answer the accusation satisfies fair hearing.
Substantive fairness - whether there were valid reasons for dismissal
Substantive fairness was established; the respondent reasonably found the claimant was flirting with a pupil contrary to the Code of Regulations for Teachers
The court applied the British Leyland v Swift 'band of reasonable responses' test. It found the claimant did not prove he was a relative of pupil EM, noting the grandmother did not know of any blood relation. The pupil's statements and BOM proceedings evidenced flirting and a visit to the pupil's home, which the court accepted was to influence her testimony. Dismissal fell within the band of reasonable responses.
Entitlement to reinstatement to the register of teachers
Prayer disallowed; the claimant never invoked the statutory reinstatement procedure under section 31 of the TSC Act nor appealed to the Teachers Service Appeals Tribunal
Section 31 of the TSC Act No. 20 of 2012 provides for reinstatement upon expiry of 18 months from removal. The claimant confirmed he never applied. Following Speaker of the National Assembly v James Njenga Karume, the court held the clear statutory procedure must be strictly followed; the claimant could still apply late and raise his alleged psychological trauma, and could appeal to the Tribunal if dissatisfied.
Pleading of violations - issues raised at trial but not pleaded
Issues raised at trial, such as the BOM proceedings and conflict over Dorcas's loan grievance, were not pleaded and parties are bound by their pleadings
The claimant's pleadings only challenged failure to be supplied with review proceedings. The BOM-related complaints and the alleged malicious fixing by Dorcas arose only at trial. The court noted parties are bound by their pleadings but observed the respondent did not object and clarified through DW that the BOM meeting was a preliminary investigation, not the final disciplinary meeting.
Legal principles established
#- Fairness of a termination is tested on both substantive fairness (valid reasons) and procedural fairness
- Where there is a clear procedure for redress prescribed by statute, that procedure should be strictly followed
- The reasonable employer test - dismissal within the band of reasonable responses is fair
- Burden of proving unfair termination rests on the employee; justifying the grounds rests on the employer
Court orders
#- 1.The claim fails in totality and is dismissed
- 2.No order as to costs
- 3.Right of appeal
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Articles 47 and 50 of the Constitution invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndung’u v African Mission Health Care (K) (Cause E859 of 2021) [2025] KEELRC 432 (KLR)[2025] KEELRC 432 (KLR)18 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Shianzwi v Teachers Service Commission (Cause E018 of 2023) [2024] KEELRC 1695 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 24/10/2023) - Kakamega. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1695/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.