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ELRCDismissed

Kihuha v Teachers Service Commission & another (Employment and Labour Relations Cause E032 of 2023) [2025] KEELRC 1370 (KLR)

Employment and Labour Relations Court
9 May 2025
4,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed the Teachers Service Commission fairly dismissed a teacher who had a sexual relationship with his student.

What this practically means

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Executive summary

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This ELRC judgment at Nyeri, delivered on 9th May 2025 by Onemus N Makau J, concerned a teacher dismissed by the Teachers Service Commission on 19th May 2022 for gross misconduct, namely immoral behavior involving a Form 2 student. The claimant sought a declaration of unfair dismissal, compensation of twelve months' salary, unpaid salary for the interdiction period, a certificate of service, costs and interest. The respondent maintained the dismissal was substantively justified and procedurally fair under the Code of Regulations for Teachers. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the reliefs were merited. On the evidence, including the complainant's detailed account corroborated by a prefect, another student and the complainant's brother, the court found a just cause for dismissal under Regulation 141(a)(1) of the CORT, stressing the employer's legal duty to protect students from sexual abuse. On procedure, the court was satisfied the claimant was informed of the allegations, responded in writing, appeared before the Board and the TSC panel, and cross-examined witnesses; the date discrepancies in the interdiction letters were corrected before the hearing and did not vitiate the process. His appeal and review applications failed for his own non-compliance with fee requirements. The court applied section 45 of the Employment Act and adopted the two-limb fairness test from Walter Ogal Anuro v Teachers Service Commission. Only the certificate of service was granted; the suit was otherwise dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the dismissal was unfair and unlawful.
  2. 2.Whether the reliefs sought are merited.

Key legal issues

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01

Whether there was a valid reason (substantive justification) for the dismissal

Holding

Yes - the claimant was guilty of immoral behavior, having sexual intercourse with his student contrary to Regulation 141(a)(1) of the CORT

Reasoning

The complainant revealed the relationship to her aunt during counselling and repeated it before the principal, giving a detailed written statement. Her account was corroborated by the Form 2 prefect who was sent to call her, a Form 3 student contacted by phone, and the complainant's brother. The court found the employer had a just cause for dismissal, namely immoral behavior contrary to Regulation 141(a)(1) of the CORT.

p. 8
02

Whether a fair procedure was followed under section 41 of the Employment Act

Holding

Yes - the claimant was afforded a fair opportunity to defend himself through investigation, Board hearing, interdiction and TSC disciplinary hearing

Reasoning

The claimant was informed of the allegations, responded in writing, appeared before the Board and before the TSC panel where he made representations and cross-examined witnesses. The inconsistency in the dates of the offence in the interdiction letters was corrected before the disciplinary hearing, and in any event the offence was a repeated one. Failure to determine his review application was his own fault for non-compliance with fee regulations.

p. 8
03

Entitlement to reliefs

Holding

Only the certificate of service was granted; declaration, compensation and unpaid salary were denied

Reasoning

Having found the dismissal fair and lawful, the claimant was not entitled to a declaration of unfair dismissal or compensation under section 49. The claim for salary during interdiction failed because Regulation 148(1) of the CORT excludes teachers interdicted for immoral behavior from half salary, and the claimant rendered no services from July 2021 to 19th May 2022.

p. 9

Legal principles established

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  • Once an employee alleges unfair termination, the employer must prove a valid reason and that a fair procedure was followed.
  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
  • A teacher interdicted for immoral behavior is not entitled to salary during interdiction under Regulation 148(1) of the CORT.
  • An employer has a legal duty to protect students from sexual abuse by teachers, and such conduct is a fundamental breach of the employment contract.

Court orders

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  1. 1.Order that the respondent issues the claimant with a certificate of service
  2. 2.Dismissal of the claimant's suit with costs, save for the order for issuance of a certificate of service

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Article 162(2) of the Constitution implied; not expressly cited in judgment)

Relief refused

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Declaration that the dismissal was unfair

The dismissal was fair and lawful; there was a valid reason and fair procedure

p. 9

Compensation for unfair termination (Kshs.1,056,372)

Not entitled to compensation under section 49 of the Employment Act since dismissal was fair

p. 9

Unpaid salary during interdiction (Kshs.880,310)

Regulation 148(1) of the CORT excludes payment of salary during interdiction for immoral behavior; claimant rendered no services

p. 9

Costs and interest

Suit dismissed with costs to the respondent

p. 9

Costs

The claimant's suit is dismissed with costs, save for the order for issuance of a certificate of service (costs to the respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, save for the order for issuance of certificate of service, the claimant’s suit is dismissed with costs.
p. 9Final orders - dismissal of the suit with costs
once an employee alleges that termination of employment by the employer was unfair, the employer must prove that the termination was justified by a valid reason and that a fair procedure was followed.
p. 7Burden of proof in unfair termination
the employer herein had a just cause for dismissing the claimant from service, namely immoral behavior by severally having sexual intercourse with his student contrary to Regulation 141(a)(1) of the CORT.
p. 8Substantive justification for dismissal
the claimant is not entitled for payment for doing nothing.
p. 9Refusal of salary for interdiction period
The employer had a legal duty to protect students from sexual abuse by their teachers which also amounts to a fundamental breach of the teachers’ essential condition of the employment contract.
p. 8Teacher's duty of care and loco-parentis

Issues in the judgment

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minor

The judgment refers to the complainant variously as 'Cecilia Wambui Wagechi' and 'Cecilia Wambui Wangechi' and to the witness as 'Stanley Wachira Wangechi', an internal inconsistency in the spelling of names.

minor

Paragraph 5 of the judgment states the claimant responded in writing but paragraph 46 records the respondent saying the claimant's letter of defence was dated 25th January 2022 while the claimant's own evidence refers to defences of 22nd July 2021 and 8th December 2021; the judgment does not reconcile this discrepancy.

material

The judgment does not state the case number or citation of the suit anywhere in the text provided.

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, "Kihuha v Teachers Service Commission & another (Employment and Labour Relations Cause E032 of 2023) [2025] KEELRC 1370 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1370/eng@2025-05-09

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