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ELRCPartially AllowedNot stated in judgment (Bungoma ELRC Petition dated 9th October 2023)· [2024] KEELRC 1697 (KLR)

Wanyonyi v Teacher Service Commission & another (Employment and Labour Relations Petition E016 of 2023) [2024] KEELRC 1697 (KLR)

Employment and Labour Relations Court
26 June 2024
JKJ.W. Keli
3,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a teacher's dismissal because his disciplinary panel had no Commissioner chairing it, and ordered his full reinstatement.

What this practically means

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Executive summary

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The petitioner, a teacher since 1994 who rose to Principal Teacher of St. Austin High School in Busia, was dismissed following disciplinary proceedings on 12th August 2021 over allegations of altering three school cheques from Kshs. 900 to Kshs. 90,000 each. The panel that heard and dismissed him was chaired by the 2nd respondent, the Acting Director in charge of the Teacher Discipline Management Services Directorate, who was not a Commissioner. The petitioner petitioned the Employment and Labour Relations Court at Bungoma for declarations that the panel lacked lawful authority, certiorari to quash the decision, reinstatement with full emoluments, general damages and costs. The respondents defended the dismissal as lawful, contending that the Commission had validly delegated its disciplinary functions to management under section 20 of the TSC Act through Circular No. 26/2016, board resolutions and a concept paper, and that the petitioner had admitted altering the cheques and received a fair process. The court framed two issues: whether the panel was properly constituted, and whether the petitioner was entitled to the reliefs sought. Relying on section 151(3)(a) of CORT, which requires at least one Commissioner to chair the headquarters panel, and following Justice Byram Ongaya's unappealed decision in Rose Mwende Mutisya v Teachers Service Commission, the court held CORT to be a statutory instrument made under section 47 of the TSC Act, incapable of internal amendment by circulars. The panel was improperly constituted and its decision null and void. The petition was allowed in full: declarations of nullity, certiorari quashing the proceedings, reinstatement with full outstanding emoluments and deployment within 30 days, and costs against the 1st respondent.

Key legal issues

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01

Whether the disciplinary panel was properly constituted

Holding

The panel was improperly constituted and its decision null and void because section 151(3)(a) of CORT requires at least one Commissioner to chair the headquarters disciplinary panel, and the 2nd respondent, who chaired it, was not a Commissioner.

Reasoning

Section 151(3)(a) of CORT requires that the Discipline Panel at headquarters comprise at least one member of the Commission as chair. The court found CORT to be a statutory instrument made under section 47 of the TSC Act, which internal circulars and board resolutions could not amend or override. Delegation under section 20 of the TSC Act could not displace this statutory requirement. The precedent in Rose Mwende Mutisya, unchallenged and unappealed, was upheld for consistency. It was not controverted that the panel had no Commissioner.

p. 7
02

Whether the petitioner was entitled to the reliefs sought

Holding

Yes. The nullification of the proceedings rendered the dismissal a nullity, entitling the petitioner to certiorari, reinstatement with full emoluments and costs.

Reasoning

Anything done in violation of the law has no legal consequence; once the panel's proceedings and decision were nullified, the termination was a nullity. The respondents' reliance on the petitioner's admissions within the void proceedings could not sustain the dismissal. No evidence of difficulty in reinstatement was submitted, and the dismissal related to administrative/leadership duties. The petitioner was therefore entitled to reinstatement with full outstanding emoluments and to costs.

p. 7

Legal principles established

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  • The Teachers Service Commission Code of Regulations for Teachers, 2015 was made under section 47 of the TSC Act and is a statutory instrument that cannot be varied internally by administrative circulars.
  • A disciplinary panel at TSC headquarters must be chaired by at least one member (Commissioner) of the Commission; a panel chaired by a non-Commissioner is improperly constituted and its decisions are null and void.
  • Anything done in violation of the law is of no legal consequence; a termination arising from a void disciplinary process is a nullity.
  • Consistency in decision-making is required so that litigants can predict outcomes on similar issues.

Court orders

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  1. 1.A declaration that the 2nd Respondent lacked any constitutional and lawful authority to chair a disciplinary panel and make a decision on behalf of the 1st Respondent to dismiss the Petitioner, and that the decision contained in the proceedings of 12th August 2021 is null and void for all intents and purposes.
  2. 2.A declaration that any actions taken or decisions made pursuant to the illegal disciplinary proceedings are void ab initio.
  3. 3.An order of Certiorari bringing up and quashing the decision contained in the proceedings of 12th August 2021 and the offending disciplinary proceedings chaired by the 2nd Respondent.
  4. 4.A mandatory order directing the 1st Respondent to reinstate the Petitioner to his position or an equivalent teacher position, to pay in full special damages arising from outstanding emoluments and benefits from the date of illegal dismissal, and to deploy him upon reporting to TSC headquarters not later than 30 days from the judgment.
  5. 5.The 1st Respondent to pay costs of the petition.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(1)
  • Constitution of Kenya, 2010Article 10(2)(a) & (b)
  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 42
  • Teachers Service Commission Act (No. 20 of 2012)Section 47(2)
  • Teachers Service Commission Act (No. 20 of 2012)Section 20
  • Teachers Service Commission Code of Regulations for Teachers, 2015 (CORT)Section 151(1), (2), (3)(a)
  • Employment ActNot specified
  • TSC Code of Conduct and Ethics (COCE)Not specified
  • TSC Circular No. 26/2016Not specified

Cases cited (1)

  • Rose Mwende Mutisya v Teacher Service Commission & another
    Nairobi ELRC Pet No. E159 of 2022
Jurisdiction invoked
Articles 20, 21 and 23 of the Constitution of Kenya, 2010 (jurisdiction to grant appropriate remedies for violations of the Bill of Rights)

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, "Wanyonyi v Teacher Service Commission & another (Employment and Labour Relations Petition E016 of 2023) [2024] KEELRC 1697 (KLR)", Case Analysis (2024). Not stated in judgment (Bungoma ELRC Petition dated 9th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1697/eng@2024-06-26

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