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ELRCPartially AllowedELRC Cause (Kisumu) – formerly Keroka Cause No. E001 of 2022· [2024] KEELRC 1765 (KLR)

Abel v Teachers Service Commission (Cause E003 of 2023) [2024] KEELRC 1765 (KLR)

Employment and Labour Relations Court
4 July 2024
CBC. N. Baari
2,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a teacher employed by the Teachers Service Commission in 2015, was interdicted and dismissed following allegations of sexual relations with a form four student. He challenged his dismissal as unlawful and sought reinstatement, salary arrears from interdiction, expungement of his name from the deregistered teachers' list, and damages. The court framed two issues: whether the dismissal was lawful and whether the Claimant was entitled to the remedies sought. On procedural fairness, the court found the process convoluted: the Claimant was heard by the Board of Management on 17th December 2020, which resolved to issue a warning letter and transfer him. Dissenting Board members then pushed for a fresh hearing over the same facts, resulting in interdiction and dismissal. The court held the BOM was functus officio after its 17th December 2020 decision and could not vary it on its own motion; the second hearing amounted to double jeopardy and the dismissal failed the procedural fairness test. On substantive fairness, however, the court found the reason for dismissal – sexual impropriety with a student, prohibited by the Code of Conduct and the TSC Act – valid, fair and justified on a balance of probability, noting the Claimant's unproven alibi and uncontroverted evidence of text communications with the student. Reinstatement was deemed impractical and salary arrears lacked evidentiary basis. The claim partially succeeded: the Claimant was awarded compensation of five months' pay under Sections 49 and 50 of the Employment Act for procedural unfairness, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant's dismissal was procedurally fair

Holding

Dismissal was procedurally unfair – the employee was subjected to a second hearing over the same facts after a warning and transfer resolution had concluded the process

Reasoning

The Claimant was heard by the BOM on 17th December 2020, which resolved to issue a warning and transfer. A later meeting, driven by dissenting Board members, reviewed the same facts, interdicted and dismissed him. Disciplinary measures such as warnings mark the conclusion of a disciplinary process; the BOM, sitting as a quasi-judicial tribunal, became functus officio and could not revisit its decision, rendering the second hearing improper.

p. 5
02

Whether the dismissal met the substantive fairness test

Holding

The reason for dismissal – sexual relations with a student – was valid, fair and justified

Reasoning

Section 43 places the burden on the employer to justify the termination. The alleged conduct breached the Code of Conduct and the TSC Act. The Claimant's alibi (being in Kisii town) was unproven, and the uncontroverted evidence of text communications with the student and her visit to his house pointed to impropriety. The employer genuinely believed the reasons existed.

p. 6
03

Whether the Claimant was entitled to reinstatement and salary arrears

Holding

Reinstatement was not practical and salary arrears lacked evidentiary basis; only compensation of five months' pay was awarded

Reasoning

Reinstatement is guided by section 49(4)(a)-(m) of the Employment Act; given the justified reason for dismissal, reinstatement was impractical. No evidentiary basis was laid for salary arrears. Procedural unfairness, however, entitled the Claimant to compensation under Sections 49 and 50, assessed at five months' pay.

p. 6

Legal principles established

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  • An employer cannot discipline an employee afresh for offences already concluded where a disciplinary penalty was meted out; doing so amounts to double jeopardy
  • A disciplinary body that renders a decision becomes functus officio and cannot vary it on its own motion

Court orders

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  1. 1.Declaration that the Claimant's termination was procedurally unfair
  2. 2.Compensation of five (5) months' pay for the unfair dismissal under Sections 49 and 50 of the Employment Act
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 43 and 45(2)
  • Employment ActSection 43(2)
  • Employment ActSection 49(4)(a)-(m)
  • Employment ActSections 49 and 50
  • Code of Conduct (TSC)Clause 22(1)
  • Code of Conduct (TSC)Regulation 140
  • TSC Act

Cases cited (7)

  • Geoffrey Nyandusi Oeri v. Security Guards Services Limited & Another
    (2015) eKLR
  • Raila Odinga & 5 Others v IEBC & 3 Others
    [2013] eKLR
  • Bakery Confectionary Food Manufacturing & Allied Workers Union v Wrigley Company (Ea) Limited
    Nairobi ELRC Cause 1519 of 2015
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    Malindi ELRC 13 of 2019
  • Tom Ochako v TSC
    Nairobi ELRC Cause No. 2532 of 2016
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    Nairobi Civil Appeal 66A
  • Lydia Moraa Obara v Tusker Mattresses Limited
    Nairobi ELRC 1391 of 2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Abel v Teachers Service Commission (Cause E003 of 2023) [2024] KEELRC 1765 (KLR)", Case Analysis (2024). ELRC Cause (Kisumu) – formerly Keroka Cause No. E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1765/eng@2024-07-04

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