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ELRCPartially AllowedEmployment and Labour Relations Appeal (Kisumu)· [2024] KEELRC 2658 (KLR)

Teachers Service Commission v Kobe (Appeal E003 of 2024) [2024] KEELRC 2658 (KLR)

Employment and Labour Relations Court of Kenya at Kisumu
30 October 2024
3,496 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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Kenya's Employment Court confirmed that winning a criminal case does not save your job, and courts cannot order reinstatement more than three years after dismissal.

What this practically means

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Executive summary

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The Teachers Service Commission appealed against a judgment of the Magistrates' Court at Ogembo delivered on 8th February 2024, in which the court found the dismissal of a teacher (Innocent Ogega Kobe) unlawful and ordered his reinstatement, payment of salary from the date of interdiction, reversion of his registration status, and costs. The teacher had been dismissed in February 2021 following allegations of carnal knowledge of a 15-year-old student, after a disciplinary process under the Code of Regulation for Teachers and a criminal trial in which he was acquitted. The Commission advanced 14 grounds, condensed to 7, principally that reinstatement was ordered beyond the three-year limit in section 12(3)(vii) of the Employment and Labour Relations Act, that salary was awarded for work not done contrary to section 49(3)(a), that the disciplinary standard of proof is lower than the criminal standard, and that the Respondent received a fair hearing. The Respondent urged the appellate court to uphold the trial court's discretion, citing procedural gaps including lack of notification of the right to representation. The court, as a first appellate court, reviewed the evidence, including the minor's statement and medical findings, held that a disciplinary process is not a criminal trial and requires proof only on a balance of probability, that acquittal on criminal charges does not absolve an employee from disciplinary consequences, and that reinstatement after three years was contrary to statute. Grounds 1, 3, 6, 7, 10, 11 and 14 were proved. The appeal was allowed, the entire judgment and decree below was set aside, and, because the Respondent lost his livelihood on account of his own wrongdoing, each party was ordered to bear their own costs both below and on appeal.

Key legal issues

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01

Whether reinstatement ordered three years after dismissal was lawful

Holding

The Magistrate fell into error by ordering reinstatement after expiry of the three-year statutory limit under section 12(3)(vii) of the Employment and Labour Relations Act.

Reasoning

The Respondent was dismissed on 1st February 2021 and the judgment ordering reinstatement was delivered on 8th February 2024, beyond three years. Section 12(3)(vii) of the Employment and Labour Relations Act prohibits reinstatement after that period, following the authority relied on in Sotik Highlands Tea Estates Limited v KPAWU. This ground of appeal therefore succeeded.

p. 7
02

Whether the dismissal was procedurally unfair and whether the criminal standard applied

Holding

The Respondent was given a fair hearing under the Code of Regulation for Teachers; the disciplinary standard is lower than the criminal standard and acquittal on criminal charges did not absolve him.

Reasoning

The court reviewed the evidence, including the minor's statement and medical findings, and found the Respondent was taken through a disciplinary process compliant with the CORT, asked to respond to the charges, and dismissed. The court held that disciplinary proceedings are not criminal trials, require proof only on a balance of probability, and that the Respondent misapprehended the effect of his acquittal in the criminal case.

p. 6
03

Whether the order for salary arrears from dismissal to judgment was justified

Holding

The award of salary for the period after dismissal was part of the erroneous judgment which was set aside, the Respondent having lost his livelihood on account of his own wrongdoing.

Reasoning

The court accepted the Appellant's contention, supported by cited authorities, that salary is a reward for work done and that payment for work not done is unjustified. The entire judgment, including the salary award, was set aside, though the court declined to award costs against the Respondent given he lost his livelihood.

p. 7

Legal principles established

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  • A disciplinary hearing is not a criminal trial; the standard of proof is lower, being on a balance of probability, and an acquittal in criminal charges does not absolve an employee from disciplinary charges.
  • A court has no power to order reinstatement after the expiry of three years from the date of dismissal under section 12(3)(vii) of the Employment and Labour Relations Act.
  • An employer may summarily dismiss an employee who commits or on reasonable and sufficient grounds is suspected of having committed a criminal offence against or to the substantial detriment of the employer under section 44(4)(g) of the Employment Act.

Court orders

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  1. 1.Appeal allowed
  2. 2.The entire judgment and decree of the Magistrates' Court in Ogembo ELRC Cause No. 5 of 2022 delivered on 8th February 2024 set aside in its entirety
  3. 3.Each party to bear their own costs for the suit below and on this appeal

Authorities

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Legislation

  • Employment and Labour Relations Act, Cap 8Esection 12(3)(vii)
  • Employment Act, 2007section 49(4)(b), (c), (d), (k)
  • Employment Act, 2007section 49(3)(a)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 41(1)
  • Constitution of Kenya, 2010Article 53(1)(d)
  • Constitution of Kenya, 2010Article 50
  • Code of Conduct and Ethics for Teachers (2015) – CORTsection 22(1)
  • Teachers Service Commission Actsection 7; section 12(2)(d)
  • Code of Regulation for TeachersRegulation 139(1)(d)
  • Civil Procedure Actsection 27

Cases cited (16)

  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
  • Teachers Service Commission v Timothy Onyango Olale
    [2022] eKLR
  • Dalmas B. Ogoye v KNTC Ltd
    [1996] eKLR
  • Okongo v AG & another
    [1988] KLR 748
  • Kenya National Union of Nurses v Permanent Secretary Ministry of Health & 2 others
    [2020] eKLR
  • Kridha Ltd v Peter Salai Kituri
    [2020] eKLR
  • Teachers Service Commission v WJ & 5 others
    [2020] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Lydia Moraa Obara v Tusker Mattresses Ltd
    [2020] eKLR
  • Simon Gakuo v Kenyatta University & 2 others
    Misc. Civil Application No. 34 of 2009 (unreported)
  • Anthony Mkala v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • David Kemei v Energy Regulatory Commission
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Mbogo & anor v Shah
    [1968] EA 93
On appeal from
Senior Resident Magistrates Court at Ogembo (Employment and Labour Relations Cause No. 5 of 2022)
Ogembo Chief Magistrate's Court ELRC Cause No. 5 of 2022 – Innocent Ogega Kobe v Teachers Service Commission
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in employment and labour relations matters under the Employment and Labour Relations Act

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, "Teachers Service Commission v Kobe (Appeal E003 of 2024) [2024] KEELRC 2658 (KLR)", Case Analysis (2024). Employment and Labour Relations Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2658/eng@2024-10-30

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