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ELRCPartially AllowedPetition (as per amended petition dated 12/3/2024) - Employment and Labour Relations Court· [2024] KEELRC 2629 (KLR)

Mohammed v Teachers Service Commission & another (Employment and Labour Relations Petition E070 of 2023) [2024] KEELRC 2629 (KLR)

Employment and Labour Relations Court
24 October 2024
3,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court voided a TSC dismissal because the disciplinary panel was chaired by the wrong person, and ordered the employee reinstated with full back pay.

What this practically means

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Executive summary

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The petitioner, a long-serving Teachers Service Commission employee who rose from clerical officer to Chief Human Resource Officer, challenged her dismissal following an internal audit that revealed irregular promotion of teachers causing a salary overpayment of Kshs. 482,356/=. She was interdicted in December 2021, appeared before a disciplinary panel chaired by an officer (Mr. Kenneth Marangu) who was not a commissioner, was dismissed effective 18/5/2022, and lost an internal review. She sought declarations that the panel was improperly constituted, that the 14/5/2021 delegation resolution was void for want of public participation and parliamentary approval, certiorari, reinstatement with emoluments, and damages. The court held that the HR Policy and Procedures Manual, being a statutory instrument and impliedly part of the employment contract, could not be altered internally without employee involvement, parliamentary approval or proper quorum; that clause 119(2) required a commissioner to chair the panel and its breach rendered the dismissal null and void; that the petitioner's lapsed caution could not justify dismissal; and that she was discriminated against compared to similarly culpable colleagues. However, the court declined to find constitutional breaches under Articles 41 and 47, holding the grievances were covered by the Employment Act. It found reinstatement a sufficient remedy and refused damages. Judgment entered for the petitioner with reinstatement within 14 days, payment of outstanding emoluments from 16th December 2021, and costs against the respondent.

Key legal issues

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01

Validity of the disciplinary panel chaired by a non-commissioner

Holding

The panel was improperly constituted; the chair was not a commissioner as required by clause 119(2) of the HR Manual, so the dismissal decision was null and void.

Reasoning

The HR Manual was a statutory instrument published under section 47(2) of the TSC Act and was impliedly incorporated into employees' contracts. It could not be altered internally without employee involvement, parliamentary approval under section 11(4) of the Statutory Instruments Act, or quorum under the Second Schedule to the TSC Act. Clause 119(2) required at least one commissioner to chair the disciplinary panel; Mr. Marangu was not a commissioner, so the proceedings fell foul of the clause.

02

Reliance on a previous caution

Holding

The caution ceased to be effective after 12 months under clause 123(6) and could not support the dismissal.

Reasoning

The Manual provides that cautions lapse after 12 months without a further breach. The respondent did not address the petitioner's contention that the caution had lapsed, so the court held it could not be used in support of the termination, undermining the decision to dismiss.

p. 7
03

Discrimination in disciplinary treatment

Holding

The petitioner established discrimination: colleagues equally or more culpable received lighter sanctions.

Reasoning

The petitioner gave specific details of officers who were equally or more culpable but received warnings or short suspensions. The respondent, which bears responsibility under section 74 of the Employment Act to keep employment records, failed to produce disciplinary records to dispute the claim, so the discrimination claim succeeded.

p. 7
04

Constitutional violations under Articles 41 and 47

Holding

No finding of constitutional breach; the violations are employment issues covered by the Employment Act.

Reasoning

Relying on the Njenga Karume and Isaac Ngugi authorities, the court held that where specific legislation governs a grievance, that procedure should be followed and the Constitution applied directly only reluctantly. The alleged violations were ordinary employment issues sufficiently covered under the Employment Act, so no finding of breach of Articles 41 and 47 was made.

p. 7
05

Appropriate remedy

Holding

Reinstatement with full emoluments was granted; damages refused as insufficient remedy.

Reasoning

Following Mutisya v TSC, the court found the panel proceedings null and void, the dismissal discriminatory, and reinstatement a sufficient remedy under section 49 of the Employment Act. The petitioner's 38 years of service, advanced age, difficulty obtaining alternative employment, and discrimination all favoured reinstatement over damages.

p. 8

Legal principles established

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  • Where a human resource manual is incorporated into the contract of employment, it forms part of the contract and cannot be unilaterally changed or displaced by general statutory powers of the employer.
  • A disciplinary panel constituted in breach of the employer's own HR manual is improperly constituted and its decision is null and void.
  • An expired caution under the employer's manual cannot be relied upon in meting out disciplinary action.
  • Reinstatement is a sufficient remedy under section 49 of the Employment Act where dismissal was wrongful and discriminatory, particularly for a long-serving employee of advanced age.

Court orders

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  1. 1.A declaration that Mr. Kenneth Marangu lacked lawful authority to chair the disciplinary panel of 18/5/2022 as he was not a commissioner as required under Clause 119(2) of the TSC Human Resource Policy and Procedures Manual, and that his decision and proceedings are null and void for all intents and purposes
  2. 2.An order directing the Respondent to reinstate the Petitioner to her position of Chief Human Resource Officer at the Headquarters within 14 days from the date of the Order and to pay her in full all outstanding emoluments and benefits from the date of her unlawful interdiction on 16th December 2021 up to the time of the Order
  3. 3.The respondent to bear the costs of the suit
Jurisdiction invoked
Original petition under Articles 41 and 47 of the Constitution of Kenya (Employment and Labour Relations Court)

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, "Mohammed v Teachers Service Commission & another (Employment and Labour Relations Petition E070 of 2023) [2024] KEELRC 2629 (KLR)", Case Analysis (2024). Petition (as per amended petition dated 12/3/2024) - Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2629/eng@2024-10-24

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