Teachers Service Commission v Kobe (Appeal E003 of 2024) [2024] KEELRC 2658 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether reinstatement ordered three years after dismissal was lawful
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.
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.
Whether the dismissal was procedurally unfair and whether the criminal standard applied
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.
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.
Whether the order for salary arrears from dismissal to judgment was justified
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 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.Each party to bear their own costs for the suit below and on this appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.