1. The Claimant filed this claim seeking judgment against the Respondent for:
(i) A declaration that the termination process as carried out by the respondent was unlawful, and that during his employment with the respondent, he was not remunerated as required by law.
(ii) Payment of his terminal dues as set out in paragraph 12 of the statement of claim.
(iii) General damages for the psychological pain suffered, due to the wrongful termination of employment.
(iv) An order that the respondent do reinstate the claimant and in default, the claimant be paid extra general damages in as the court may deem fit.
(v) Costs and interest.
(vi) Any other or further relief this court may deem fit to grant.
2. The Claimant averred that the Respondent employed him in 1998 as a Teacher under TSC No. 258932 and served the Respondent with diligence, dedication and loyalty until he was purportedly interdicted in October 2014 for false allegations of immoral behaviour. That at the time of his unfair termination from employment, he was earning a gross salary of Kshs. 78,520/=. It was the Claimant’s case that his interdiction was to remain in force pending further investigation and or appearance before the Commission and that he appealed against the same.
3. The Claimant further averred that through a letter dated 24th September 2015, he was illegally and unprocedurally terminated from employment for allegations of immoral behaviour. That the Respondent relying on section 44(4) (g) of the Employment Act to dismiss him was condemning him over criminal proceedings over which a court of law had acquitted him. That the termination was also unfair and wrongful as the whole process infringed on his employment and Constitutional rights. According to him, the termination was unlawful because he was wrongly suspended for something he did not do and his services terminated for wrong reasons and without conducting investigations.
4. The Claimant hence claimed against the Respondent: 3 months’ salary in lieu of notice, 12 months’ salary as compensation for wrongful termination of employment; service for years worked; and salary arrears from October 2014 to August 2015. He contended that as he had since been jobless, he would also be claiming general damages as the court may deem fit.
5. In his witness statement dated 14th March 2018, the Claimant stated that on or about 18th September 2014, he was accused of defiling a girl who was staying in his house. That he was thereafter arrested and arraigned in court but later acquitted by court due to lack of evidence by the prosecution. That however, the Respondent went on to interdict him and later dismiss him from employment and that his appeal against the decision was rendered futile. The Claimant asserted that he thus wishes for this Court to assist him be reinstated and paid damages since he was a permanent and pensionable employee.
6. In its Memorandum of Response, the Respondent averred that on 11th September 2014, it received information that the Claimant had engaged in acts that amounted to fundamental breach of the provisions of the Code of Regulations for Teachers (CORT), the Code of Conduct and Ethics (COCE) and Circular No. 3 of 2010 titled “Protection of Pupils/ Students from Sexual Abuse”. At that time the Claimant was still a Teacher at Moi Girls’ Nangili High School. The specific allegation levelled against the Claimant was that on 23rd August 2014 in a maize plantation, he had carnal knowledge of a then standard seven pupil at Kisigame Primary School, Kakamega County.
7. It was the Respondent’s case that it convened a Panel of officers to visit the victim’s school and conduct preliminary investigations on the matter. That the Panel obtained the victim’s statement from the Head Teacher, interviewed several witnesses and compiled their Report. That the Board of Management of Moi Girls’ Nangili High School (hereinafter “the Board”) then invited him to appear before it for the Preliminary Investigatory Hearing and they sat on two occasions. In their meeting of 26th September 2014, the Board resolved to conduct further investigations on the matter and that the teacher be transferred. The second meeting held on 10th October 2014 resolved that the Claimant had a case to answer and the Claimant was thus issued with an Interdiction Letter that was amended twice, the last being on 21st April 2015. That in response to the Interdiction Letter, the Claimant presented a statement of defence denying the aforementioned allegations.
8. The Respondent averred that it further convened its Disciplinary Committee that heard the Claimant’s case at the County Director’s Office, Uasin Gishu on 18th August 2015. During the Committee’s proceedings, the Claimant was accorded an opportunity to tender evidence, cross-examine witnesses and produce any document in his defence. That his oral and written statement were considered before the Committee then determined that he was guilty and recommended his dismissal from service and removal from the Register of Teachers. The Claimant was then informed of the decision vide a letter dated 24th September 2015.
9. In addition, the Respondent’s account was that the Claimant’s appeal was considered on merit and dismissed on 23rd October 2017.
10. It was the Respondent’s averment that the criminal charges against the Claimant were different from the charge of professional misconduct it preferred against him and neither can be used to influence the other. Further, that the substance of the criminal charges centred on “defilement”, which was neither canvassed nor in issue in the Claimant’s disciplinary case. In the circumstances, the findings of the criminal court could not salvage an employment contract that had inevitably broken down. It prayed that the Claimant’s suit be dismissed with costs.
11. In his testimony before Court, the Claimant (CW1) stated that he found a girl and a boy in the maize plantation on 23rd August 2014 and he punished the girl, who later claimed he had defiled her. He confirmed having tendered a defence to the allegations through a letter dated 16th October 2014. According to the Claimant, his problems started when he refused to mobilise people to join the ODM party for a politician who was a former student of his and who was then involved in the matter herein.
12. CW1 stated in cross-examination that he was related to the girl in question through his wife. He further stated in re-examination that he was not represented by the Union or any colleague and that his efforts to ask the girl questions were thwarted as some point because the chairman was so harsh that he made him fear.
13. Lawrence Kigen (RW1), testified that the Claimant never objected to the disciplinary proceedings. In cross-examination, he stated that the Claimant was invited to the disciplinary hearing by a letter dated 21st July 2015 and confirmed that the Claimant did not sign the minutes of the proceedings. RW1 stated in re-examination that the teacher and the victim were present at the hearing of 26th September and gave evidence and that the Panel was not aware of the criminal case.
Claimant’s Submissions
14. The Claimant submitted that a termination is unfair if there was no notice and hearing as provided for in section 41 of the Employment Act 2007, or that the reason for termination is not valid as envisaged in section 43 of the Act, or do not constitute fair reasons for termination as enumerated in section 46 of the Act. In addition, that the burden of proof for reasons for termination of employment is on the employer as under section 43 of the Act and as explained by the Court in the case of Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR.
15. It was the Claimant’s submission that he was an outstanding teacher who won many accolades and was severally promoted due to his outstanding performance. That in the absence of evidence of his purported immoral behaviour, this Court should find that there was no valid reason(s) and/or no basis for terminating his employment whatsoever ab initio. He also urged the Court to find that the Respondent failed to sufficiently discharge the burden of proof placed upon it under section 43 of the Employment Act.
16. On procedural fairness, the Claimant submitted that the disciplinary process against him was flawed because no evidence was provided to show that he was advised of his right to be accompanied to the Board hearing and no significant hearing took place. Furthermore, that P3 forms should have been supplied to him before the hearing date and should have been a prominent feature at the hearing. Secondly, that there was no notice to show cause and warning letter produced by the Respondent and it is evident from the Respondent’s Bundle that he never signed anywhere to prove that he was in attendance in the meetings.
17. The Claimant submitted that if an employee’s alleged misconduct amounts to a criminal offence in the opinion of an employer and the employer opts to make a complaint to criminal justice agencies, the employer should not proceed with the administrative disciplinary procedure until conclusion of the criminal proceedings. That however in the instant case, the criminal proceedings ran concurrently with his dismissal proceedings. He relied on the case of Patrick Njuguna Kariuki v Del Monte (K) Limited, Cause No. 9523 of 2011 wherein the Court affirmed the position that where an employer elects to report to relevant criminal justice agency, the agency’s findings become binding upon the employer in that matter. Further, that if the employer initiated and concluded disciplinary proceedings on account of a misconduct which also has substantially been subject of a criminal process for which the employee is found innocent, the employee is thereby entitled to setting aside of the employer’s administrative punitive decision and to relevant legal remedies as may apply. He submitted that in his case, the charges against him were withdrawn but that the Respondent refused to set aside its administrative punitive decision and has made it difficult for him to get another job.
18. The Claimant submitted that considering his long service and experience, having not secured alternative employment, and the Respondent’s conduct during the termination, this Court should grant him all the prayers sought in the Statement of Claim. He further submitted that he is entitled to costs since he served the Respondent with a demand letter dated 23rd December 2017 first and no action was taken. In support of his submissions, he further relied on the cases of Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR and Joseph Omwenga v Kenya Revenue Authority [2102] eKLR.
Respondent’s Submissions
19. The Respondent submitted that following the report of the Claimant’s immoral behaviour, it commenced disciplinary proceedings against him pursuant to its mandate under Article 237(2) (e) of the Constitution of Kenya. That their relationship was governed by the Claimant’s letter of appointment, CORT, COCE, and Circulars issued by TSC from time to time. Further, their relationship was based on mutual trust with an aim to uphold the best interest of learners and the Claimant was considered as loco parentis to the learners.
20. It cited clause 22(1) of the COCE which provides that a teacher shall not:
a) engage in any sexual activity whatsoever with a learner regardless of whether the learner consents;
b) make a request to, or exert pressure on a learner for sexual activity or favour; or
c) flirt with a learner.
Further, that Regulation 140 of the CORT empowers the Respondent to take disciplinary action against a teacher who commits immoral behaviour including having sexual intercourse with a learner. It was the Respondent’s submission that it interdicted the Claimant in accordance with Regulation 146(10) of the CORT and the Disciplinary Panel convened thereafter reached a decision to dismiss him pursuant to Regulation 140 of the CORT.
21. The Respondent submitted that from the overwhelming evidence before it, it genuinely believed that the Claimant was guilty and thus the dismissal. It was the Respondent’s submission that pursuant to the provisions of section 43(2) of the Employment Act, this Court is called upon to determine whether it can be inferred that the Respondent had reasons to genuinely believe that the Claimant is guilty of allegations against him rather than if the Claimant is guilty of the allegations. It relied upon Nairobi Civil Appeal 66A of 2017 - Kenya Revenue Authority Reuwel Waithaka Gitahi & 2 others in which the Court stated that the standard of proof is on a balance of probability, not beyond reasonable doubt and that all an employer is required to prove are the reasons that it “genuinely believed to exist” that caused it to terminate the employee’s services. According to the Respondent, it was reasonable for it to dismiss the Claimant more so because he, as all teachers, was considered loco parentis to learners and where such trust is threatened/ breached, it had to take stern disciplinary measures to protect innocent and naïve learners in school.
22. Further, the Claimant confirmed in his cross-examination that Sellah Keya (the political leader involved), testified during the Claimant’s disciplinary hearing and in his presence. That during examination of the political leader at the said proceedings, she let it be known that she got involved in the matter when a community leader informed her of the incident. That the Claimant failed and/or refused to cross-examine the political leader during the disciplinary proceedings even though he was given an opportunity to do so.
23. On procedural fairness, it submitted that it convened the Board in accordance with Regulation 146(2) of the CORT and considered the report generated by the inquiry and the evidence before it. That the Claimant was informed of the allegations against him and given a chance to respond before the Board who interrogated him, his wife, the victim and the victim’s teachers. That the Claimant was also invited to the disciplinary hearing and attended the same wherein, in accordance with Regulation 153 of the CORT, he was informed of the charge against him; he pleaded to the charge; he presented his case before the Panel; had witnesses give testimony in his presence; and was given an opportunity to cross-examine the witnesses to his satisfaction. In all this, the Claimant did not raise an objection to the fairness or manner in which the proceedings were conducted. Further, that the dismissal decision was expressly communicated to the Claimant and his appeal considered and dismissed.
24. It was the Respondent’s submission that the Claimant was thus subjected to a fair, procedural and lawful disciplinary process from the time the allegations were received up to the time of dismissal and that the dismissal was justifiable and fair. On this submission it relied on the cases of Mombasa Cause No. 64 of 2012 – Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd; Eldoret Appeal 26 & 27 of 2012 – Bett Berngetuny & another v Teachers Service Commission and another; and Nairobi ELRC 1391 of 2016 – Lydia Moraa Obara v Tusker Mattresses Limited.
25. The Respondent submitted that in carrying out its role as a quasi-judicial body, its decisions are purely administrative and thus distinctive from proceedings in a court of law (see CACA Civil Appeal 22 of 2017 – Clement Karuri v Kenya Ports Authority). Additionally, that its disciplinary proceedings against its employees arise out of a contractual relationship that is governed by the Act and regulations under the employment contract, and not by the criminal regime under which the Claimant was charged and prosecuted. It further submitted that while criminal proceedings aim to deter and punish for offences committed under the Penal Code, disciplinary proceedings seek to guard the professional and ethical conduct of employees. That while the Claimant was charged with the offence of “defilement” in the criminal trial, he was charged with “immoral behaviour” contrary to CORT in the disciplinary proceedings. That the successful outcome of the criminal proceedings has little or no barring at all on the Respondent’s mandate to discharge the Claimant from its employment.
26. It referred to Petition E006 of 2020 – Gladys J Cherono v Board of Trustees NSSF & another in which the Court observed that the court has previously ruled that internal disciplinary processes and criminal processes are two independent processes and can therefore proceed side by side without any barring the other from proceeding. It also cited Petition 14 of 2012 – Peter Kabunyi Gathinji v Teachers Service Commission in which the Court’s position was that the Commission was not bound by the decision of the court to reverse their own decision.
27. The Respondent submitted that the Claimant is not entitled to salary in lieu of notice because he was taken through a procedural disciplinary process and further issued with a notice of removal from the register of teachers. That having found that the Claimant was fairly dismissed from employment, he is not entitled to compensation for wrongful termination of employment. It further submitted that the Claimant is not entitled to service pay pursuant to section 35(6) of the Employment Act as he was a member of the free pension scheme under the Pensions Act. That the prayer for an order for unconditional reinstatement is untenable for being time barred pursuant to section 12(3) (vii) of the Employment and Labour Relations Court Act that stipulated for reinstatement within three years of dismissal.
28. Further, that it is clear from section 49(b) of the Act that an employee is only entitled to wages which are due or which they have worked for and nothing else. That therefore one cannot be entitled to salary payment for a period they were not an employee and/ or has not rendered service. That since the Claimant stopped teaching from 10th October 2014 when he was interdicted and subsequently dismissed with effect from 24th September 2015, the relationship was severed and no salary could have accrued to him between October 2014 and August 2015.
29. The Respondent urged this Court to recognise the prerogative of the Respondent to discipline its errant employees and make a finding upholding the dismissal decision in the interest of innocent learners in school. It further urged the Court to thus find that the dismissal was lawful and to accordingly dismiss the Claim with costs.
30. Under section 47(5) of the Employment Act, in a claim for unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer. Further section 43(2) of the Act provides that the reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.
31. The claimant has alleged that his dismissal was unfair for the reason that the grounds upon which the dismissal was based upon were similar to a criminal charge that was levelled against him and which charges were dismissed for lack of evidence. The claimant further claimed the termination was unfair because he was never accorded a fair chance to be heard prior to the dismissal. The claimant contended that his dismissal was instigated and orchestrated by a politician who was once his student when he declined to assist the politician in recruiting members of the ODM party. According to the claimant, he found a girl and a boy in the maize plantation on 23rd August 2014 and he punished the girl, who later claimed he had defiled her. This girl was said to be related to the claimant through his wife and the claimant further stated in his witness statement that the said girl stayed with him in his house.
32. The evidence tendered by the respondent on the hand was that on 11th September 2014, it received information that the Claimant had engaged in acts that amounted to fundamental breach of the provisions of the Code of Regulations for Teachers (CORT), the Code of Conduct and Ethics (COCE) and Circular No. 3 of 2010 titled “Protection of Pupils/ Students from Sexual Abuse”. At that time the Claimant was still a Teacher at Moi Girls’ Nangili High School. The specific allegation levelled against the Claimant was that on 23rd August 2014 in a maize plantation, he had carnal knowledge of a then standard seven pupil at Kisigame Primary School, Kakamega County. It was the Respondent’s case that it convened a Panel of officers to visit the victim’s school and conduct preliminary investigations on the matter. That the Panel obtained the victim’s statement from the Head Teacher, interviewed several witnesses and compiled their Report.
33. The burden of proof cast upon protagonists in a claim for wrongful dismissal and or unfair termination of employment under section 47(5) the Act is mutually exclusive in that failure by one does not fill up for the gaps in the other’s legal and evidentiary burden. The claimant has alleged that he found the girl and a boy whose identity he never sufficiently disclosed, in a maize plantation and punished the girl. The claimant never said whether he also managed to punish the boy. The girl, according to the claimant therefore, decided to accuse him of the immoral conduct with her. It did not come out clear from the claimant’s evidence why a girl related to him through his wife and with whom he lived could decide to make such serious allegation against him including criminal prosecution. One would have naturally expected allegations of broken relationship in the family but no such evidence emerged. The claimant instead blamed his woes on a politician who was once his student over his refusal to assist her in recruiting members of the ODM party which the politician was alleged to be associated with. To this extent the Court is not satisfied that the claimant discharged the legal and evidentiary burden cast upon him by section 47(5) of the Act.
34. The respondent on the other hand stated that it received information that the Claimant had engaged in acts that amounted to fundamental breach of the provisions of the Code of Regulations for Teachers (CORT), the Code of Conduct and Ethics (COCE) and Circular No. 3 of 2010 titled “Protection of Pupils/ Students from Sexual Abuse”. The specific allegation levelled against the Claimant was that on 23rd August 2014 in a maize plantation, he had carnal knowledge of a then standard seven pupil at Kisigame Primary School, Kakamega County. The respondent convened a Panel of officers to visit the victim’s school and conduct preliminary investigations on the matter. That the Panel obtained the victim’s statement from the Head Teacher, interviewed several witnesses and compiled their Report. The respondent consequently convened a disciplinary hearing to which the claimant was invited and attended. The alleged politician, Sellah Keya testified during the hearing and the claimnat’s presence. The claimant however failed and/or refused to cross-examine the political leader during the disciplinary proceedings even though he was given an opportunity to do so. The respondent’s disciplinary panel upon conclusion of the hearing process recommended for the dismissal of the claimant from employment and removal of the claimant’s name from the register of teachers.
35. The respondent has the onerous task of ensuring the highest of standards and discipline in the education sector considering the great public interest in the same. Any suspicion of deviant or improper conduct by a teacher therefore becomes a matter of grave concern to the respondent. A teacher faced with an allegation touching on their integrity and professionalism as such ought to cooperate and provide evidence necessary to exonerate them from the allegation. As stated hereinbefore, section 47(5) of the Employment is mutually exclusive in the apportioning the burden of proof in a claim for wrongful dismissal and unfair termination. It is therefore not enough for a teacher faced with an allegation of breach of Code of Regulation for Teachers (CORT) to take “the let them prove it attitude”. This is not the same as shifting the burden of proof to such a teacher or placing more burden than required by law on such a teacher. It rather reflects the seriousness and public interest bestowed upon a teacher by the society. In the same vein the Commission must also ensure that any allegation of breach of CORT must be well grounded and devoid of any malice because the consequence of such an allegation could lead dismissal and removal of a teacher from service.
36. The claimant complained that the Respondent in relying on section 44(4) (g) of the Employment Act to dismiss him was condemning him over criminal proceedings over which a court of law had acquitted him. In the Court of Appeal case of Clement Karuri v Kenya Ports Authority ( 2018) eKLR it was held that there was a clear distinction between internal disciplinary proceedings of an employer and criminal proceedings. Internal disciplinary proceedings were anchored on the contract of employment and the burden of proof therein was on a balance of probability, while in criminal proceedings, proof beyond reasonable doubt was required. The claimant cannot therefore contend that simply because he was acquitted or the criminal prosecution against him did not succeed for one reason or another the respondent could not take disciplinary action against based on similar facts.
37. This far the respondent has reasonably demonstrated that it had reasonable cause to dismiss the claimant and the process followed was fair within the meaning of section 45(2) as read together with section 43(2) of the Employment Act. The claim for unfair termination of Employment is therefore found to lack merit and is hereby dismissed with costs.
38. It is so ordered.
39. It is so ordered.
Dated and delivered at Eldoret this …….. day of ……….., 2023
Abuodha Nelson Jorum
Judge ELRC