Rose Lunani Lukorito v Teachers Service Commission

b) Payment of special damages as stated in Paragraph 15 of the claim, c) An order directing the 2nd Respondent to return the Claimants P2 Certificate No.06786, d) An apology by the 2nd Respondent to the Claimant for the shame, humiliation and mental anguish suffered by the Claimant following the 2nd Respondents unlawful, unfair and humiliating unsubstantiated allegations of fraud and impropriety against the Claimant, e) Interest on the special damages at court rates from date of filing suit till payment in full, f) Any other relief and order that this Honourable Court may deem fit to grant. 3.The memorandum of claim was accompanied with a verifying affidavit, a list of witnesses, a written statement by the claimant, a list and copies of the listed documents attached. 4.Upon service, the Respondent through Ms Naeku Patricia Advocate filed a memorandum of defence dated 4th September 2013, denying each and every allegation against it and or putting the Claimant to strict proof thereof. It was prayed that the cause be dismissed with costs. 5.Subsequent to the filing of the response/defence, the Respondent filed a list and a bundle of copies of the listed documents dated 4th ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 2|PAGE

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March 2025, alongside a list of witnesses and written statements by the listed witnesses. 6.Unfortunately, for reasons attributable to the unpreceded movement of the file to three different court stations and several interlocutory applications on record, the matter did not settle for hearing until 3rd April 2025. It is also noted that in a ruling delivered on 1st February 2019 (Nduma J) this matter was struck out for allegedly having been filed out of time but later reinstated by the Court of Appeal in Eldoret Civil Appeal No. E169 of 2019 in a judgment delivered on 11th October 2024. All the foregoing contributed to the lengthy and inordinate delay in having the matter heard and determined. 7.The matter came up in court for virtual hearing on 3rd April 2025 when the Claimant (CW1) testified alongside Charles Lunani Muchembi (CW2). On 13th May 2025 the matter came up for further hearing when Zipporah Nasambu Katasi (CW3) and Juliana Nafula Seme Busulu (CW4) testified and the Claimant’s case was closed. 8. On the same date, 4th April 2025, the defence was partly heard with Lawrence Kigen (RW1) partly testifying. The defence was further heard on 1st October 2025 when RW1 concluded his testimony and the defence closed its case. 9. Thereafter, the court directed counsel for the parties to file written submissions. Mr. Kraido for the Claimant filed written submissions ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 3|PAGE

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dated 17th November 2025 and Mr. Anyur for the Respondent filed written submissions dated 27th January 2026. II. THE CLAIMANT’S CASE 10. In the memorandum of claim, the claimant pleaded that she was employed by the Respondent as a primary school teacher from 1st May 1977, at a starting basic salary of Kshs375/=, and worked until 5th October 2006 when she was unlawfully and unfairly terminated. It was pleaded that the Claimant served for over 29yrs and her last monthly gross salary was Kshs11,892/=. 11. The Claimant pleaded that she was terminated vide a letter dated 5th May 2006 on allegations that she had used another person’s Kenya Junior Secondary Education (KJSE) certificate to gain admission to a teachers’ training college and, thereafter unlawfully earned a salary and allowances using a fraudulently obtained P2 certificate. 12. It was the Claimant’s case that while there was a variation in the names in the KJSE certificate and her other personal documents, the said certificate was genuinely hers and earned on merit and that she offered a valid explanation for the variations in the names. The Claimant pleaded that this explains why no criminal charges for fraud or forgery were preferred against her, notwithstanding the lofty and serious allegations made by the Respondent as the basis for her unlawful termination. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 4|PAGE

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13. It was pleaded that the Claimant had a clean record of service but was terminated aged 50 with more than 10yrs of service before retirement. 14. It was the Claimant’s case that she was denied a fair hearing and the termination was unfair and unlawful. She is thus praying for the orders set out in the introductory part of this judgment. 15. In her testimony in court, the Claimant adopted her filed witness statement dated 11th December 2012. She also produced the documents in her list of even date as exhibits 1 to 34. She reiterated that her certificates are genuine and that the KJSE certificate was issued in the name of her guardian brother Lunani, as her surname. 16. In cross-examination, the Claimant stated that her name is Rose Lunani Lukorito and that she used her Certificate of Primary Education (CPE), in the name of Rose Nasambu, the KJSE certificate in her other name Rose Lunani, to earn an admission to the teachers’ training college and subsequently join the teaching profession as a teacher in employment of the Respondent. She stated that her professional certificate is in her other set of names Lunali Rose, as a result of misspelling of the name Lunani. She clarified that her official name is Rose Lunani Lukorito as per her national identity card. She denied having a relative who goes by any of her sets of names mentioned above. She further stated that ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 5|PAGE

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the name in her marriage certificate is Rose Nasambu, her maiden name. 17. In re-examination the Claimant insisted that all the above sets of names refer to one and the same person, herself, and that none of the certificates or testimonials that she relied on was either forged or fraudulent. She insisted that the termination was based on malice as she had earned the certificates on merits and was lawfully employed. 18. CW2, a retired civil servant and a brother of the Claimant, adopted his filed statement dated 13th July 2018. He stated that he was the guardian to the Claimant and paid her school fees until she sat for KJSE in 1973 at Lirhada Girls High School and thereafter joined Kamwenja Teachers Training College in the now Nyeri County. He stated that as the guardian, the Claimant adopted his name Lunani. He stated that he explained all this in detail during the disciplinary hearing of the Claimant’s dispute with the Respondent. He stated that his full name is Charles Muchembi Lunani. 19. In cross-examination, he stated that Rose Nasambu is a sister in law to the Claimant - a sister to the Claimant’s husband Peter Lukorito. He stated that the maiden name of the Claimant is also Rose Nasambu as per her certificate of marriage. He stated that the teacher education certificate issued to the Claimant in the name Lunali Rose is misleading as her correct name is Rose Lunani. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 6|PAGE

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20. CW3, a retired nurse, adopted her filed written statement as her evidence-in-chief. She stated that she is a sister in-law to the Claimant who is married to her brother Peter Lukorito. She denied ever allowing the Claimant to use her certificates whatsoever. She stated that she sat for KAPE in 1957 at Bunyore Girls School and that she did not sit for KJSE. She stated that she trained as a nurse and the Claimant trained as a teacher. She stated that she came to know that CW2 was the Claimant’s guardian in her schooling years. She stated that she did not know the Claimant before she was married to her brother. 21. CW4, a retired teacher, adopted her filed written statement as her evidence-in-chief. She stated that she joined Form I with the Claimant at Lirhada Girls High School in 1972 and they both sat for KJSE in 1973. She stated that the Claimant left school after sitting for KJSE in Form II. CW4 stated that she proceeded on with school and completed Form IV and later on trained as a teacher at Mosoriot Teachers Training College. She lost touch with the Claimant until 2013. 22. In cross-examination, CW4 stated that she knew the Claimant as Rose Lunani Lukorito and earlier on in life used the name Rose Lunani. She said that she parted ways with the Claimant at Form II and did not know where the Claimant proceeded to thereafter. She stated that while in school with the Claimant, she knew that the Claimant had a brother by the name of Charles Lunani. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 7|PAGE

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THE RESPONDENTS’ CASE 23. In the filed response to the memorandum of claim, the Respondent pleaded that the Claimant was engaged on permanent and pensionable terms on or about 17th May 1977 as a trained P2 teacher and allocated TSC No. 112248 and posted to Bungoma County. 24. It was pleaded that in or about May 2004, following a routine perusal and verification of records, it was established that there were discrepancies in the names on the academic certificates submitted as juxtaposed against the Claimant’s name in the national identity card. It was further pleaded that upon preliminary investigation, it was established that – the Claimant applied for the job in the name Lukorito Lunani Rose; her marriage certificate was in the name of Nasambu Rose Lukorito; her Certificate of Teacher Education (P2) was in the name Lunani Rose; her certificate of teacher registration was in the name Lukorito Lunani Rose; her KJSE certificate was in the name Lunani Rose; her CPE certificate was in the name Rose Nasambu; and, her national identity card was in the name Rose Nasambu Lukorito. 25. It was pleaded that in a letter dated 8th July 2004, the Claimant was invited to the headquarters of the Respondent to explain the above discrepancies in her name. The Respondent pleaded that the Claimant failed to give a satisfactory answer to the discrepancies ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 8|PAGE

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and was thus interdicted vide a letter of 17th May 2005, and given an opportunity to respond to the discrepancies in writing. 26. It was further pleaded that in furtherance of the investigation, the Respondent received a letter from the area chief confirming that indeed the Claimant had a sister-in-law by the name of Rose Nasambu Lukorito. The Respondent concluded that the Claimant had used a certificate belonging to her sister-in-law to obtain admission to Kamwenja Teachers Training College and gain the subsequent employment. 27. It was pleaded that the Claimant was subsequently invited for a disciplinary hearing on 21st July 2005 and given an opportunity to defend herself. However, upon evaluating the evidence available and lack of satisfactory explanation of the discrepancies from the Claimant, the Respondent arrived at the decision to dismiss the Claimant as communicated to her in a letter dated 5th October 2006. 28. The Respondent pleaded that the Claimant was dismissed on sound grounds and prior thereto she was given a fair hearing. It was pleaded that the dismissal was fair, just, and lawful in the circumstances. 29. During the hearing in court, RW1, an assistant director with the Respondent, adopted his filed written statement dated 4th March 2025 as his evidence-in-chief. He also produced copies of the documents in the list dated 1st March 2025 as exhibits 1 to 9. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 9|PAGE

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30. In cross-examination, RW1 stated that the Claimant faced specific charges as per the letter of interdiction and was given time and opportunity to defend herself. He stated that the Claimant was charged with using someone else’s certificate, Rose Lunali, to obtain admission to the teachers training college. He stated that the Respondent was not able to reach this person and that it did not contact Lirhada Girls High School for confirmation. 31. He stated that the Respondent contacted the area-chief of the locality where the Claimant resided and the chief wrote a letter dated 11th May 2011 allegedly confirming that the Claimant had used documents belonging to her sister-in-law. He stated that the KJSE certificate and the teacher registration certificate bore different names. He stated that the KJSE certificate did not belong to the Claimant. 32. He further stated that the Claimant’s suit was time-barred, filed outside the three-year limitation period. III. SUBMISSIONS 33. In summary, Mr. Kraido for the Claimant identified the only issue for determination as – Whether the dismissal of the Claimant was fair and lawful. It was submitted that the Respondent’s defence was hinged on the allegation that the KJSE certificate that the Claimant used to apply for admission to the teacher training college belonged to another person. It was submitted that the ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 10 | P A G E

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Respondent failed to adduce evidence in support of that allegation. It was submitted that instead of the Respondent engaging the relevant institutional bodies to confirm the validity of the said certificate, the Respondent obtained a belated letter from the areachief alleging that the certificate belonged to a sister-in-law of the Claimant without any verification or further investigation into the matter. 34. It was submitted that the Respondent failed to prove misconduct on the part of the Claimant capable of attracting the sanction visited upon her. It was submitted that the Respondent failed to prove the burden placed on it as the employer under Section 43 of the Employment Act. It was further submitted that the Respondent failed to prove a fair reason for the dismissal as required under Section 45(2) of the Act. It was submitted that a dismissal under Section 44(4)(g) of the Act further demands that the reason(s) therefor be supported with reasonable and sufficient grounds. Counsel submitted the foregoing position with the decisions in Thomas Sila Nzivo V Bamburi Cement Ltd (2014) eKLR and Kenya Revenue Authority V Reuwel Waithaka Gitahi (2019) eKLR to the effect that the grounds for dismissal or termination not only need to be reasonable and sufficient but ought to be founded on genuine belief. 35. It was submitted that the Respondent Violated Sections 41, 43, 44, & 45 of the Employment Act and meted out a disproportionate ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 11 | P A G E

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punishment upon the Claimant. It was submitted that the dismissal was wrongful, unfair, and unlawful both in substance and procedure. The court was urged to allow the claim as pleaded and grant the orders as prayed. 36. Mr. Anyur for the Respondent identified the issues for determination as – a) Whether the Respondent had valid reasons to dismiss the Claimant, b) Whether there was procedural fairness in the initiation and conduct of disciplinary proceedings c) Whether or not the Claimant is entitled to the prayers sought. 37. On the first issue, Counsel submitted that the Claimant could not satisfactorily explain the name different sets of names appearing in her certificates and testimonials as pleaded in the response to the claim. It was submitted that upon discovery of the discrepancies in the names variously used by the Claimant in her certificates and testimonials, the Respondent investigated the matter leading to her interdiction on 17th May 2005 for professional misconduct based on Section 7(3)(b) of the Teachers Service Commission Act and Regulation 70(c) of the Code of Regulation for Teachers. 38. It was submitted that based on the evidence gathered and the failure on the part of the Claimant to offer satisfactory explanation for the said discrepancies, the Respondent had reasonable and ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 12 | P A G E

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sufficient grounds to take the disciplinary action based on honest and genuine believe that the Claimant was guilty of gross misconduct. It was further submitted that the Respondent genuinely believed on the grounds relied upon in the disciplinary process and hence satisfied Section 43 of the Employment Act. 39. It was submitted that in arriving at the ultimate decision to dismiss the Claimant, the Respondent rigorously adhered to the procedural safeguards in the Employment Act and the Code of Regulations for Teachers (CORT). It was further submitted that the decision was arrived at upon detailed and fair consideration of the evidence gathered and the law applicable. 40. It was further submitted that the Respondent’s action was justified under Section 47(5) of the Employment Act. It was submitted that the Claimant was given a fair hearing and had adequate time and opportunity in responding to the charges/allegations against her. It was emphasized that the Claimant used the KJSE certificate of a person in the name of Rose Lunani to gain admission to Kamwenja Teachers Training College, subsequently gained employment with the Respondent, in a process that was null and void ab initio. It was submitted that the name LUNANI in the Claimant’s purported KJSE certificate was missing in her CPE certificate and her national identity card and hence it follows logically and legally that the KJSE certificate did not belong to her. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 13 | P A G E

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41. On the second issue, it was submitted that the Claimant was subjected to procedural fairness leading up to her dismissal. It was submitted that upon interdiction, the Claimant was summoned to defend herself in writing and later on appeared for a disciplinary hearing on 5th October 2006 having been informed of her rights, including the right to bring along her witnesses. It was submitted that thereafter the Respondent arrived at the decision to dismiss the Claimant based on the law, natural justice, and public interest. 42. It was submitted that the procedure adopted was fair and afforded the Claimant a full and fair chance to defend herself and present her evidence as demanded under Article 47 of the Constitution. Counsel cited Anthony Mkala Chitavi V Malindi Water & Sewerage Company Ltd (2013) eKLR and Postal Corporation of Kenya V Andrew K. Tanui (2019) eKLR in submitting that the procedural steps as taken by the Respondent were above board. 43. It was submitted that the Respondent had the authority to exercise disciplinary control over the Claimant under Article 237(1) of the Constitution, the various provisions of the Teachers Service Commission Act, and the CORT. It was further submitted that the Respondent was justified in dismissing the Claimant having complied with Section 42(2) of eh Employment Act in that - the reason for dismissal was valid, the same was based on misconduct by the Claimant and, that the Claimant was accorded a fair hearing. It was submitted that the burden of proving unfair ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 14 | P A G E

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dismissal rested with the Claimant and the Respondent only needed to justify the dismissal. It was submitted that the Respondent ably and readily demonstrated that the dismissal was justified in the entire circumstances of the case. 44. On the reliefs sought, it was submitted that the dismissal was fair, justified, and lawful and hence no compensation is payable to the Claimant. It was further submitted that the Claimant is not entitled to any of the reliefs sought or any of them or at all. The court was urged to dismiss the cause with costs. V.ISSUES FOR DETERMINATION 45. The court has carefully and dutifully gone through the pleadings filed, the oral and documentary evidence tendered from both parties, and the written submissions by their respective Counsel. The following issues commend themselves to the court for determination a) Whether the Claim was filed out of time. b) If (a) above is in the negative, whether the claimant was wrongfully, unfairly, and unlawfully dismissed. c) Whether the Claimant is entitled to the reliefs sought; and, d) Who should bear the costs of the cause? IV.LIMITATION ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 15 | P A G E

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46. Although the parties and their respective Counsel did not raise the issue of limitation before me, in a ruling dated 30th September 2014 the Court (Wasilwa J) delivered as follows – “Is the matter then time barred? By virtue of S. 26 of Limitation of Actions Act, there are instances where court can extend the period of limitation. This is in the case of fraud and mistake.” Her Ladyship went on “The whole claim therefore seems to be based on a mistake which parties should be given an opportunity to unravel so that the ends of justice are met. I therefore find the preliminary objection has no merit. I dismiss it and order the substantive case to proceed.” 47. The above ruling was in regard to a preliminary objection raised by the Respondent to the effect that the cause had been filed out of the three years limitation provided for under Section 89 (formerly Section 90) of the Employment Act. 48. Unfortunately, the matter on limitation did not end there. In an apparently mistaken belief that the issue of limitation had not been addressed, purportedly on the ground that there was no copy of the ruling by Wasilwa J in the file, Nduma J delivered a ruling on the same issue on 1st February 2019, striking out the cause as filed out of time. 49. However, the Court of Appeal came to the rescue of the Claimant and reinstated the cause in a judgment delivered on 11th October 2024 in Eldoret Civil Appeal No. E169 of 2019. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 16 | P A G E

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50. In view of the above, this court finds and holds that the issue of limitation, though now moved by this court suo motto, was dealt with and determined as above and the cause has to be decided on merits. Simply put, the alleged misconduct by the Claimant was based on alleged fraud in the manner she enrolled into a teachers’ training college and her subsequent employment with the Respondent and as such the subject matter was not limited to the three-year period. V. MERITS OF THE CAUSE 51. The dispute between the parties is rather straightforward as summarized in the foregoing paragraphs. The Court finds no value in restating the same. At the centre of controversy is whether the Claimant was duly qualified to join the teachers’ training college and subsequently land a job as a teacher with the Respondent. More specifically, the question is whether the KJSE certificate that the Claimant used to achieve the above belonged to her or whether the same belonged to someone else. 52. The court has gone through the entire pleadings, the oral and documentary evidence adduced, and the written submissions by Counsel on both sides as summarized in the foregoing parts of this judgment. The jurisprudence on what constitutes or does not constitute a fair, just, and lawful dismissal or termination is now fairly settled. The test thereof comprises of two components – ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 17 | P A G E

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there has to be a reason and the procedure adopted must also be lawful – substantive and procedural fairness. 53. This court (ELRC) has delivered numerous decisions in that regard, and Counsel for the parties herein have cited some of those decisions. Kindly also see – Walter Ogal Anuro V Teachers Service Commission (2013) eKLR, Pamela Nelima Lutta V Mumias Sugar Co. Ltd (2017) eKLR, and Beatrice Nyambune Mosiria V Judicial Service Commission (2019) eKLR. 54. Applying the principles in the above decisions to the facts and evidence in the instant case, the Respondent’s case is that sometimes in May 2005, while undertaking a routine record keeping, it was discovered that there was a variety of discrepancies in the names in the certificates and testimonials used and submitted by the Claimant in gaining admission to a teachers’ training college and her subsequent employment as a P2 teacher. At the centre of the inquiry was a KJSE certificate submitted by the Claimant in the name of ROSE LUNANI. 55. The Respondent then addressed a letter of interdiction to the Claimant dated 17th May 2005 in the following terms – TEACHERS SERVICE COMMISSION Telephone: Nairobi 331144/5/6/7/8/9 & 331150 Telegrams: “MWALIMU”, Nairobi When replying please quote ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 18 | P A G E THE BAZAAR MOI AVENUE/BIASHARA STREET PRIVATE BAG NAIROBI, KENYA

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Ref. No. and date SCHEDULE XXIX TSC/DISC/1 TSC/ACT-L.N. 137/1967 – FIRST SCHEDULE NOTICE OF INTERDICTION REF NO: TSS/112248 MR/MRS/MISS: DATE: 17TH MAY, 2005 LUKORITO LUNANI ROSE TSC/NO: 112248 GRADE: P1 STATUS: ASST. TEACHER ADDRESS: THRO’ THE HEADTEACHER, NAMBANI PRIMARY SCHOOL NAME AND ADDRESS OF INSTITUTION NAMBAMI PRIMARY SCHOOL P.O. BOS 95, MISIKHU DISTRICT/MUNICIPALITY: BUNGOMA PROVINCE: WESTERN I am directed by the Teachers Service Commission to say that it is alleged that you should have your name removed from the register of teachers. The allegation(s) made against you are as follows: You breached the Teachers Service Commission Act Cap 212 Section 7 3(b) of the Laws of Kenya Regulation 70 (c) of the Code of Regulations for Teachers in that, a) You produced and used M/S Rose Lunani’s KJSE 1973 Certificate Index No.6327033 to gain admission in Kamwenja Teachers Training College. b) You used M/S Rose Lunani’s KJSE 1973 Certificate Index No.6327033 to gain employment with the Teachers Service Commission. c) You, therefore, earned salary and other allowances fraudulently by pretending to possess a P2 Certificate. Before the Commission proceeds to investigate, consider and determine you case, you are invited to make a statement to the Commission in writing, which should be received by the Commission within 21 days on the date of this letter. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 19 | P A G E

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Before your case is determined, you will be given an opportunity of being heard by the Commission in person. Signed: M. N. MBAE (MRS) FOR: SECRETARY TEACHERS SERVICE COMMISSION Copy to: THE DISTRICT EDUCATION OFFICER BUNGOMA DISTRICT 56. The Claimant responded to the above letter on 31st May 2005 explaining that the certificate in contest was genuine and that the Claimant had used the name Rose Lunani while schooling at Lirhada Girls High School, adopting the last name from her brother who was her guardian at the time. 57. In a letter dated 17th June 2005, the Respondent invited the Claimant to a disciplinary hearing. This letter of invitation stated as follows – TEACHERS SERVICE COMMISSION Telephone: Nairobi 312067/8/78/89/91/312123 Telegrams: “MWALIMU”, Nairobi When replying please quote Ref. No. and date THE BAZAAR MOI AVENUE/BIASHARA STREET PRIVATE BAG NAIROBI, KENYA TSC/DISC/NO. 691/05/05/5 TSC: 112248 TSC/DISC/NO: 691/05/05 ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 20 | P A G E DATE: 17/6/2005

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MR/MRS/MISS: Rose Lukorito Lunani Nambemi Primary School P.O. Box 34 MISIKHU RE: HEARING OF DISCIPLINE CASES I am directed to inform you that, your case will be heard at the Teachers Service Commission’s Office on 1st Floor at the Bazaar, Moi Avenue/Biashara Street, Nairobi on 21/7/2005 at 8.30 a.m. You are invited to attend. Please bring the original copies of your academic and professional certificates, your last payslip as well as your identity card and certificate of Registration as a teacher. Which the Commission may wish to examine during the interview. You are also advised to bring with you any documents that may be useful in your defence. You are advised to contact the Teachers Service Commission if the decision on the above hearing is not communicated to you within 28 days from the date of the hearing. B.O. OPONDO FOR: SECRETARY TEACHERS SERVICE COMISSION 58. The disciplinary hearing was deferred but ultimately took place on 21st July 2005. In a letter dated 21st July 2005, the Respondent ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 21 | P A G E

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informed the Claimant that it was withholding her P2 college certificate for the purposes of further investigations. 59. After what the Claimant considered to be an inordinate delay, she wrote to the Respondent on 5th April 2006 inquiring on the status of the matter. It seems the disciplinary hearing was not concluded on 21st July 2005 because in a letter dated 22nd September 2006 the Respondent invited the Claimant for a hearing on 5th October 2006. 60. In a letter dated 5th October 2006 the Respondent addressed the Claimant as follows – TEACHERS SERVICE COMMISSION Telephone: Nairobi 331144/5/6/7/8/9 & 331150 Telegrams: “MWALIMU”, Nairobi When replying please quote Ref. No. and date THE BAZAAR MOI AVENUE/BIASHARA STREET PRIVATE BAG NAIROBI, KENYA DATE: 5.10.2006 RE: DISC. CASE NO. 691/05/05/25 TSC: 112248 MR./MRS/MISS ROSE LUKORITO P.O. BOX 34 MISIKHU CODE OF REGULATIONS FOR TEACHERS – REGULATION 66 (6) (b) (iii) – DISMISSAL I am directed by the Teachers Service Commission to say that the Commission has carefully considered your case and has determined you should be dismissed ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 22 | P A G E

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from the teaching service with effect from the date of this letter for the following reasons: You breached the TSC Act Cap. 212 Section 7 3(b) of the Laws of Kenya regulation 70 (c) of the Code of regulations for teachers in that: a) You produced and used M/S Rose Lunani’s KJSE 1973 certificate index No.6327033 to gain admission in Kamwenja Teachers Training College. b) You used M/S Rose Lunani’s KJSE 1973 certificate index No.6327033 to gain employment with the TSC. c) You, therefore, earned salary and other allowances fraudulently by pretending to possess a P2 certificate. C. G. KARIUKI FOR: SECRETARY TEACHERS SERVICE COMMISSION CC: THE PDE WESTERN. THE DEO BUNGOMA. THE HEADTEACHER, ____________________ ________________________________________ 61. In a letter dated 8th November 2006, the Claimant appealed the dismissal. She insisted that she had lawfully earned the contested KJSE certificate and challenged the Respondent to produce the alleged complainant or owner of the said certificate. 62. However, according to the Claimant, the Respondent did not respond to the appeal to this day. 63. The court has seen a letter dated 21st November 2006 from the Principal Lirhada Girls High School, produced by the Claimant as ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 23 | P A G E

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an exhibit during the hearing of this case in court, confirming that indeed one Lunani Rose Index No. 6327033 sat for her KJSE in the School in 1973 and hence earned the certificate. 64. In their rather dubious and uninspiring response and defence, the Respondent failed to avail any evidence that the above certificate did not actually belong to the Claimant and that the same was not lawfully earned by her. It is indeed the Respondent who alleged and claimed, and actually used that allegation in dismissing the Claimant, that the impugned KJSE certificate did not belong to the Claimant and as such her subsequent admission to the teachers’ training college and ultimate employment was a fraudulent process. It was therefore upon the Respondent to actually prove, on a balance of probabilities, that the said certificate did not belong to the Claimant. It is a cardinal principle of the law of evidence that a party that alleges must prove the allegation as a matter of fact – see Sections 107, 108, & 109 of the Evidence Act. 65. Instead of executing due diligence with the established institutions, such as the Kenya National Examinations Council or the succeeding body, the Respondent obtained a letter from the area-chief where the Claimant resides who wrote as follows in a letter dated 11th May 2011 (long after the dismissal of the Claimant) – ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 24 | P A G E

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REPUBLIC OF KENYA OFFICE OF THE PRESIDENT PROVINCIAL ADMINISTRATION AND INTERNAL SECURITY TELEGRAMS – ADISCOM WEBUYE TELEPHONE – 055-41141 MISIKHU SUB-LOCATION WEBUYE DIVISION When replying please quote BUNGOMA EAST DISTRICT REF: _______________ P.O. BOX 70, WEBUYE Date: 11/05/2011 TO WHOM IT MAY CONCERN RE: ROSE LUKORITO The above named, is a resident in my area of jurisdiction, she taught for a long time at Nambani Primary School, before she was transferred to St. John Savannah Primary School, Bungoma East. She apparently uses names similar to those of her sister in-laws, a one ROSE NASAMBU LUKORITO, who resides in Chwele, BUNGOMA CENTRAL; The information available, is that she is currently under investigation on matters known to her employers – TSC. That’s all I know about the subject in regard to her professional line. With kind regards, ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 25 | P A G E

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YOURS FAITHFULLY, ASSISTANT CHIEF – MISIKHU SUB-LOCATION HUSSEIN M. SIMIYU – MOBILE 0728413455 66. The letter above only alleges a similarity of names between that of the Claimant and that of her alleged sister-in-law. It is not a claim that the Claimant had fraudulently used the name of her sister-inlaw or that the contested KJSE certificate did not belong to the Claimant or that indeed the same belonged to the alleged sister-inlaw. It is indeed amazing that the Respondent, a public constitutional commission, could descend and stoop that low in investigating a serious matter, yet it had at its disposal all the necessary resources to investigate the same in a sober, mature, transparent, and honest manner to get to the bottom and come up with a considered opinion and decision. 67. The Court need not emphasize that the investigation concerned the employment of one of Respondent’s dedicated employees who had served with a clean record for over 29yrs. To say the least, in relying on the letter from the area-chief, the Respondent behaved like a wealthy person who falls sick but, instead of seeing a professional medical doctor for necessary medical assistance, decides to visit a witchdoctor. This analogy is drawn with tremendous respect to the chief who gave an honest view on the ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 26 | P A G E

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similarity of the names but kept away from the controversy about the alleged fraudulent certificate. 68. Further, there is no evidence availed by the Respondent that a report was made to the Directorate of Criminal Investigation (DCI) or indeed any other investigative body for thorough investigations with the aim of having the Claimant held to account for her alleged fraudulent and presumably criminal behaviour. No evidence was availed from an academic certification body confirming that the impugned certificate was indeed not lawfully earned by the Claimant. 69. In my considered view, and I so find and hold, while the Respondent may have had some reservations about the authenticity of the certificates and testimonials submitted by the Claimant, following what was called a routine check, the alleged investigations that followed were bogus, shambolic, pedestrian, malicious, and incredible for the reasons alluded to above. Before calling upon the Claimant to defend herself over the contested KJSE certificate, the Respondent ought to have carried out thorough investigation with all the relevant bodies prior to arriving at the conclusion that it was necessary to call upon the Claimant to defend herself. 70. In my considered view, and again I so find and hold, it is only upon gathering credible evidence that the Respondent ought to have called upon the Claimant to defend herself. The hasty, ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 27 | P A G E

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dishonourable, and hurried disciplinary process against the Claimant was unfair, unjust, unfounded, malicious, and completely uncalled for. Further, the Court finds and holds that the response offered by the Claimant in reply to the letter of interdiction was detailed enough and ought to have displaced any suspicion by the Respondent that the impugned certificate was hard-earned by the Claimant on merits. 71. It is now clear to the Court that the Claimant suffered from what many Kenyans assume at some point in their lives – crisis of identity that manifests itself sometimes in the names adopted and or used. The Claimant explained in detail in her response to the letter of interdiction, which served as a show-cause as well, that her senior brother, Charles Lunani (CW2), paid for her school fees at Lirhada Girls High School. She also explained that the said brother was her guardian and she adopted his name for that reason and in those circumstances. In my considered opinion, that is neither a strange occurrence nor was it illegal or unlawful. 72. What the Respondent needed to demonstrate and prove is that the Claimant did not attend school as claimed and that she did not earn the said certificate. The Respondent ought to have demonstrated and proved that the said certificate was either a forgery or that it belonged to another person. The Respondent failed spectacularly in that regard. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 28 | P A G E

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73. The letter dated 21st November 2006 from the principal of the school, produced by the Claimant as an exhibit, confirmed that indeed the Claimant attended the school and sat for her KJSE and was thus subsequently issued with the certificate by the Kenya National Examinations Council. 74. In conclusion, the Court finds and holds that the entire disciplinary process as undertaking by the Respondent, after the Claimant responded to the letter of interdiction explaining in details the circumstances that rendered her into using her various names in the various certificates and testimonials, was unnecessary, uncalled for, shambolic, wasteful, misguided, unreasonable, illogical, and hence unfair and unlawful. There was no substance in the allegations against the Claimant and in that regard the dismissal was wrongful, unfair, and unlawful. 75. In terms of the procedure adopted in the disciplinary process, the same was to a large extent fair and consistent with the principles of natural justice. However, the Respondent ruined it all when it failed to consider and determine the appeal by the Claimant as alluded to in an earlier part of this judgment. It is a cardinal principle of the Rules of natural justice that a subject should always be allowed to seek for a review or appeal against an administrative action. The Respondent deliberately avoided commenting on the status of the appeal filed by the Claimant ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 29 | P A G E

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against the dismissal way back in 2006. That was a grave and fatal omission on the part of the Respondent. 76. In terms of the procedure adopted, just like the substance of the allegations/charges, the Court finds and holds that the same was not fair. 77. Cumulatively, the court finds and holds that the dismissal of the Claimant by the Respondent was wrongful, unfair, unjust, and unlawful, both in substance and form (procedure). XI. RELIEFS 78. Prayer (a) is for a declaration that the termination of the Claimant was unlawful. The court has found and held above that the dismissal was wrongful, unfair, and unlawful and it is hereby so declared. 79. Prayer (b) has various components as follows. The first item is for one month’s salary in lieu of notice in the sum of Kshs11,892/=. This figure was pleaded in paragraph 6 of the memorandum of claim as the Claimant’s last gross monthly salary. That assertion was neither disputed nor denied by the Respondent. The court finds and holds that since the dismissal was wrongful, unfair, and hence unlawful, the Claimant was either way entitled to notice before termination and thus the sum of Kshs11,892/= is awarded in lieu of notice. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 30 | P A G E

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80. In the second limb of this prayer, the Claimant is seeking for one month’s salary for each of the 29yrs served totalling Kshs344,868/=. The court understands this to mean that the Claimant is seeking for service pay. The Claimant was dismissed at 50yrs of age and hence denied an opportunity to work to until retirement at 60yrs and earn a pension. As noted above, the Respondent was grossly unfair to an employee who had served with a clean record for 29yrs, from 1st May 1977 to 5th May 2006. Surely, all those years served cannot count for nothing. In any event, no evidence was availed by the Respondent demonstrating and proving that the Claimant was a member of a pension scheme from which she could be pensioned. In the circumstances, the court finds no difficulties in awarding the Claimant a service-pay of Kshs344,868/= as claimed based on her last known monthly gross salary of Kshs11,892/=. 81. The next item claimed is loss of ten years salary amounting to Kshs1,427,040/=. I find this request displaced and presumptuous. Life is full of uncertainties. There was no guarantee at all that the Claimant was to serve the balance of time to retirement age. Further, an employer is obligated to only pay salaries and wages in arrears for services rendered. It is not reasonable or logical for the court to reasonably ascertain whether the Claimant would have served to retirement bar the wrongful and unlawful dismissal. ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 31 | P A G E

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82. The Court finds and holds that it would be wrong and illogical to allow this prayer ignoring all the vagaries and uncertainties of life. It is also my view that this prayer is not based on any law that the Court may invoke to exercise its discretion in favour of the Claimant. In any event, the Claimant shall be commensurately compensated under the other prayers in consideration. This request is thus denied. 83. The next item is a claim for damages for unlawful termination (dismissal) in the sum of Kshs142,704/=. Although this global claim was not itemized, in the Court’s opinion this is a claim based on Section 49(1)(c) of the Employment Act. The maximum awardable under this provision is equivalent to 12 months gross salary. Simple math confirms that the sum of Kshs142,704/= is equivalent to 12 months gross salary of the Claimant calculated at Kshs11,892/= per month. 84. The court has found and held that the dismissal of the Claimant was overwhelmingly wrongful, unfair, and unlawful. The Respondent was brutal and unkind to the Claimant who had served for a considerably lengthy time with a clean record. The Respondent denied the Claimant the opportunity to serve to her retirement. She was ready and willing to continue serving. However, that service was brutally, unapologetically, and mercilessly ruined by the Respondent. Time has lapsed and the Claimant should have retired in May 2016, had she served the full ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 32 | P A G E

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time. There is no chance of reinstatement for the foregoing reasons and there is no evidence that the Claimant was able to obtain other employment. As if to add an insult to injury, the Respondent failed, refused, and or neglected to determine the appeal filed by the Claimant to this day. 85. The court has fully considered the factors listed in Section 49(4) of the Employment Act and come to the considered view that this is an appropriate cause for award of the maximum compensation equivalent to 12 months’ salary of the Claimant’s last known gross salary of Kshs11,892/=, amounting to Kshs142,704/=. 86. Prayer (c) is for an order directing the Respondent to return to the Claimant her P2 certificate No. 06786. The Respondent admitted withholding this certificate in a letter dated 21st July 2005. This letter was produced as an exhibit by the Claimant without any objection from the Respondent and hence the prayer shall be allowed as per the orders at the end of this judgment. 87. In prayer (d) the Claimant prayed for an apology for the shame, humiliation, and mental anguish occasioned by the unsubstantiated allegations/charges and the ultimate dismissal that was wrongful, unfair, and unlawful. The Claimant did not plead defamation and, in any event, no defamation was proved. However, the court is certain that the Claimant must have suffered humiliation, shame, mental anguish, and trauma from the wild allegations and the unfounded disciplinary proceedings. However, a court of law does ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 33 | P A G E

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not issue an order in vain. The court shall leave it to the good conscience of the (current) concerned departments, officials, and officers of the Respondents to offer an appropriate and unqualified apology to the Claimant for the reasons stated above. 88. The Claimant prayed for interest on any award made at court rates. In view of the lengthy period that this matter has dragged in court, the monetary awards above shall attract interest at court rates from the date of the dismissal on 5th May 2006 till payment in full. 89. Although not pleaded, the court finds it appropriate that the Claimant be awarded costs of the cause as the successful party. 90. Further, the Court orders that the Claimant be issued with a certificate of service to be delivered to her or her Counsel within 30 days of this judgment. XII. ORDERS 25. The court issues orders that a) A declaratory order be and hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful. b) The Respondent is hereby ordered to within 30 days of this judgment return and deliver to the Claimant her P2 Certificate No. 06786. c) The Claimant is awarded the following – i. One month’s salary in lieu of notice …… Kshs11,892/= ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 34 | P A G E

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ii. Service pay ……………………………… Kshs344,868/= iii. Compensation for unlawful dismissal … Kshs142,704/= Total …………………………………… Kshs499,464/= d) The award above is subject to statutory deductions but shall attract interest at court rates from the date of dismissal on 5th May 2006 till payment in full. e) The Respondent is hereby ordered to issue and deliver a certificate of service to the Claimant within 30 days of this judgment. f) Costs of the cause to the Claimant. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. …………………….. DAVID NDERITU JUDGE ELRC BUNGOMA CAUSE NO. 55 OF 2018 JUDGMENT 35 | P A G E

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