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ELRCDismissedCause No E017 of 2022· [2024] KEELRC 2175 (KLR)

Ng’ang’a v Board of Management Nakuru Boys High School & another (Cause E017 of 2022) [2024] KEELRC 2175 (KLR)

Employment and Labour Relations Court
4 July 2024
8,812 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 process and that proven misconduct justified termination.

What this practically means

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Executive summary

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The claimant, a registered teacher employed by the Teachers Service Commission (2nd respondent) since 1st September 1994, was interdicted with effect from 6th December 2019 following an investigatory meeting held by the Board of Management of Nakuru Boys' High School (1st respondent) in his absence. He was subsequently served with an amended interdiction, invited to a virtual disciplinary hearing before the 2nd respondent on 24th June 2021, and dismissed by letter dated 1st July 2021. His appeal/review was heard and dismissed, upholding the dismissal on 9th March 2022. He sued seeking declarations that the interdiction and dismissal were illegal and unlawful, reinstatement with salary arrears, compensation for unfair termination, and costs. The respondents maintained that the disciplinary process complied with Regulations 145, 146, 147 and 149 of the Code of Regulations for Teachers and the rules of natural justice. The court framed three issues: whether the dismissal was wrongful, unfair and unlawful; whether reliefs were due; and costs. Applying the settled test of substantive and procedural fairness, the court found the employer had genuine and reasonable grounds - the claimant admitted failing to repay a Kshs 20,000/= advance, soliciting money from parents for textbooks without authority, and receiving Kshs 30,000/= from a complainant on a false promise of securing employment - and that he was afforded a full hearing, appeal, and prompt communication of decisions. Any defect in the 1st respondent's meeting of 6th December 2019 was held cured by the 2nd respondent's fresh process. The court upheld the dismissal and dismissed the entire cause with no order as to costs.

Key legal issues

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01

Whether the dismissal was wrongful, unfair and unlawful

Holding

Dismissal was substantively and procedurally fair; the employer had genuine and reasonable grounds and the claimant was accorded due process

Reasoning

The court applied the substantive and procedural fairness test. Substantively, the claimant admitted receiving and failing to repay a Kshs 20,000/= advance, soliciting money from parents and receiving Kshs 30,000/= from RW1 on a false promise of securing employment, violating Section 44(4)(g) of the Employment Act. Procedurally, he was shown cause, heard in person, cross-examined witnesses, and exercised an appeal. Any defect in the 1st respondent's meeting was cured by the 2nd respondent's fresh process.

p. 15
02

Whether the claimant was entitled to the reliefs sought

Holding

No reliefs granted since dismissal was upheld as fair and lawful

Reasoning

Because the dismissal was found fair and lawful, the declarations, reinstatement and compensation sought could not issue. The court noted the claimant's disability but found no discrimination, observing that he was the author of his own misfortune. Costs were not awarded against him; each side effectively bore its own.

p. 16
03

Whether allegations of misconduct at Afraha High School could sustain the disciplinary process at Nakuru Boys' High School

Holding

Yes; the claimant was an employee of the TSC regardless of workstation, and the proved misconduct followed him

Reasoning

The claimant argued that allegations relating to his time at Afraha High School were extraneous. The court rejected this as escapist, holding that his employer remained the 2nd respondent throughout and that all charges, wherever committed, were laid out to him with an opportunity to defend himself.

p. 15

Legal principles established

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  • Fair termination requires both substantive and procedural fairness; the two together constitute due process
  • An employer need only genuinely and reasonably believe that the employee's conduct amounted to misconduct (Section 43(2) Employment Act subjective test)
  • A defect in the initial interdiction process was cured by the employer's fresh service of charges and a full hearing
  • The ELRC will not trespass into human resources management at the workplace absent illegality or irregularity
  • Misconduct alleged need not have occurred at the teacher's last station; the employee's employer is the same throughout
  • Time within which to file an employment claim runs from the conclusion of the internal appeal process

Court orders

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  1. 1.The claimant's cause is hereby dismissed in its entirety with no order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43 (and 43(2))
  • Employment ActSection 44(4)(g)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 49
  • Evidence ActSections 107 & 112
  • Teachers Service Commission ActSection 20
  • Teachers Service Commission ActSection 33
  • Teachers Service Commission Code of Regulations for TeachersRegulations 139(5), 144, 145, 146, 147, 148, 149
  • Code of Conduct and Ethics for Teachersclauses (iv), B (vi) and (vii)

Cases cited (15)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Ltd
    (2014) eKLR
  • Walter Anuro Ogaro v Teachers Service Commission
    (2013) eKLR
  • Joseph Mwaniki Ng'ang'a v United Millers
    (2022) eKLR
  • Godfrey Khalitiba Lukorito v Teachers Service Commission
    (2019) eKLR
  • James Peterson Njeru v Teachers Service Commission
    (2017) eKLR
  • Jennifer Osodo v Teachers Service Commission
    (2013) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
  • National Bank of Kenya v Samuel Nguru Mutonya
    (2019) eKLR
  • Leonard Otieno v Airtel Kenya Limited
    (2018) eKLR
  • David Githinji Kibuge v New Kenya Co-operative Creameries Ltd
    (2019) eKLR
  • Reuben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya (BATUK)
    unreported
  • Kenya Power & Lighting Company Limited
    (2017) eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno v Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Teachers Service Commission Act (not expressly article-cited in the judgment)

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, "Ng’ang’a v Board of Management Nakuru Boys High School & another (Cause E017 of 2022) [2024] KEELRC 2175 (KLR)", Case Analysis (2024). Cause No E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2175/eng@2024-07-04

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