1. The claimant in this suit averred that among others that;-
i) The claimant is an employee of the Teachers Service Commission currently posted at Meso Secondary School within Trans-nzoia County to teach Biology and Chemistry as a classroom teacher. (See appendix 1, 2 and 3 being letters of employment and posting letters,)
ii) The claimant states that he was employed by the respondent on 15/1/1998 as a classroom teacher.
iii) The claimant was in 2012 promoted to the position of the Deputy Principal and posted to Keese Secondary School as a Deputy Principal and later transferred to Mutua Secondary School in the same capacity. (See appendix 4 for the deployment letter.)
iv) On 23/1/2015 the claimant was transferred from Mutua Secondary School to Chepchoina Secondary School on promotion as a principal. (See appendix 5 being a transfer letter.)
v) The claimant served as a principal at Chepchoina Secondary School from January 2015 and up to date no handing over ceremony has taken place.
vi) On 8/5/2015 the claimant was served with a letter by the respondent which demoted the claimant from a principal to a deputy principal of a school and transferred to Osorongai Secondary School of which the claimant lodged a protest. See appendix 6 and 7 the letter of transfer and the protest letter.
vii) That instead of the Respondent addressing the protest lodged by the claimant they proceeded to interdict the claimant alleging he had deserted duty at Osorongai Secondary School as from 19/5/2015 to 12/1/2016, See appendix 8 being the interdiction letter.
viii) The allegations of desertion were not investigated before the interdiction letter was issued against the claimant as provided for in the Code of Regulation for teachers 2015.
ix) The letter of transfer in itself was irregular and misleading much as it required the claimant to hand over Chepchoina Secondary School before moving to Osorongai Secondary School a condition that the respondent was not keen to ensure it takes place as the claimant was not notified of who to hand over to neither has the respondent ever arranged for the handing over occasion up to date.
x) That even after interdiction the Respondent and its agents never bothered with the issue of organising for the handing over occasion despite the fact that the claimant had reminded the respondent over the same since he was serving an interdiction. (See appendix 9 for the letter reminding the County Director of T.S.C of the handing over.
xi) That during the hearing of the disciplinary case against the claimant the respondent conducted the hearing in an irregular manner.
xii) The claimant was not served with copies of statements of witnesses relied upon by the respondent. (See appendix 10 for letter requesting for documents and witnesses statements).
xiii) The claimant was not served with documents relied upon by the respondent.
xiv) The clamant was denied an opportunity to present his defence and to call his witnesses.
xv) The disciplinary panel was hostile to the claimant and did not provide a condusive atmosphere for the claimant to present his defence.
xvi) The respondent proceeded with faulty disciplinary process with the consequence that the claimant was served with a warning letter which relinquished his responsibility as a principal and posted to teach as a classroom teacher without any legal basis. (See appendix 12 being a copy of the warning letter).
xvii) The claimant states that the respondent did fail to investigate the allegations against the claimant before commencing the disciplinary proceedings and that the respondent was not transparent in handling the complaint against the claimant.
xviii) The Claimant avers that the proceedings of the meeting held on the 23.1.2017 were irregular as they contravened various provisions of law and the Code of Regulations for teachers,
xix) The claimant has been unlawfully denied salary for the month of January 2016 up to February 2017 when he was under interdiction.
2. The claimant therefore sought orders among others that the
warning dated 9th February, 2017, interdiction letter dated 8th May, 2015 and pooling letter dated 24th February, 2017 are null and void. The claimant further sought to be reinstated to the position of Principal of a Secondary School and payment of full salary for the period of December, 2015 to February, 2017
3. The Respondent on its part pleaded that;
a) The Respondent admits the contents of paragraph 8 of the Statement of claim to the extent that indeed the Claimant herein was deployed to perform Principal functions at Chepchoina Secondary School as per appointment letter dated 23rd January, 2015.
b) Claimant after the posting then asked the County Director that he be transferred to another school as the school he had been posted to, Chepchoina Secondary School, was a brand new school and the Claimant felt it was not taking off.
c) The Respondent avers that the Claimant was redeployed to Osorongai Secondary School as a Deputy Principal since there was no vacancy for Principal at the time.
d) On or about December, 2015 the Respondent through its agent, the County Director, Trans-Nzoia County, received information that the Claimant had deserted duties which breached the provisions of the CORT. The allegations leveled against the Claimant was that, on diverse dates in May 2015, the Claimant had been absent from duty without permission and that the Claimant had deserted duty with effect from 18th May, 2015 to the date of his interdiction and his whereabouts were not known.
e) The Claimant’s act of desertion was in blatant breach of Regulation 65(1) (c) of the CORT (Revised 2005) read together with inter alia the Teachers Service Commission Act, No. 20 of 2012, Laws of Kenya.
f) The Respondent in compliance with the provisions of the CORT through its agent, the TSC County Director, Trans-Nzoia County conducted preliminary investigations and reached a decision to interdict the Claimant for living breached 65(1) (c) of the CORT (Revised 2005). Annexed hereto and marked Appendix2 is a copy of the interdiction letter dated 12& January, 2016.
g) Claimant was accordingly served with the interdiction notice through his last known address of Osorongai Secondary School, Kitale and given adequate'21 days' opportunity to write his defence.
h) The Respondent further invited the Claimant to the hearing of his Disciplinary Case in compliance with the provisions of the CORT and the principles of natural justice. Attached hereto and marked as Appendix 3 is a copy of the
respondents letter dated 20th July, 2016.
i) The Respondent convened a Disciplinary Panel on the 23rd January, 2017 which was attended by the Claimant and all the witnesses. All the witnesses were interrogated by the Panel; and the Claimant given ample opportunity to cross examine all the witnesses. At the close of the proceedings, the Respondent’s Disciplinary Panel duly considered both the oral and written statements of the Claimant; and submissions and issues of facts adduced during the hearing; and arrived at a conclusion that the Claimant was guilty of the breach of Code in respect of the allegations which were leveled against him. It was the Panel’s decision to warn the Claimant in view of the aforesaid. Annexed hereto and marked as Appendix 4 is a bundle of a copy of the Respondents disciplinary proceedings and the Warning Letter dated 9th February, 2017.
j) The Respondent reiterates that in handling the Claimant’s disciplinary case, it acted within the confines of Law and public interest and its decision to warn against future breach of the CORT was fair, procedural and lawful.
k) In response to paragraph 25 & 28 of the Statement of Claim, the Respondent wishes to state that the Claimant was not entitled to pay as he rendered no services. Further as per the CORT he was not entitled to pay during the interdiction period based on the charges he was facing.
l) The Respondent further reiterates in response to paragraph 26 that in handling the Claimant’s case, it acted within the confines of the Law and public interest and that its decision to recover the money overpaid to the Claimant was fair, procedural and lawful and in tandem with public policy and interest.
4. At the hearing the claimant stated that he recorded a statement on 6th May, 2017 which he adopted as his evidence in chief. It was his evidence that he was issued with an interdiction letter on 12th January, 2016. The letter was not signed and not stamped. He was further informed that his salary had been stopped and that he should got and defend himself at Teacher Service Commission headquarters.
5. According to the claimant, there was no notice, investigation report or hearing before interdiction. He denied deserting work. It was his evidence that when he reported to the school, the principal and the sponsor church rejected him. He further stated that he never handed over Chepchoina Secondary School and blamed the County Director. No one was sent to take over the school. It was his evidence that he was the one who started Chepchoina Secondary School and that there was a lot of violence at the school and he informed the director that his life was in danger. On transfer to Osorongai Secondary School, he could not be received there because he had not handed over Chepchoina Secondary School.
6. Concerning disciplinary hearing it was his evidence that he was informed of the hearing date on 24th January, 2017. A friend informed him about it. He attended the hearing but complained he was shut down and that he was told that the hearing was a question and answer only. He was not furnished with the particulars of the charges and was not given any documents. He further stated that his transfer was not notified to the headquarters.
7. The claimant further stated that as at the time of the hearing of his case, he was a classroom teacher at Meso Secondary school and that his credentials as principal teacher were withdrawn due to the allegations against him.
8. In cross-examination he stated that he was transferred to Chepchoina as a Principal teacher. He was given the schools registration certificate and fifteen acres of land. There were no structures and students and further that he was the only teacher. He briefed the County Director about the situation and was told to go back and start the school.
9. Around March, there was violence at the school, people invaded the scheme. He asked for a transfer but this did not come immediately. He received a response in May when he was transferred to Osorongai Secondary School but he was not allowed to report to the school by the principal and the sponsor church.
10. The claimant denied writing the letter at page C of the respondent’s bundle of documents and stated that the signature on the letter was not his. It is further his evidence that he was told by the County Director to go back to Chepchoina until further notice.
11. Regarding interdiction he stated that he was given the letter by the County Director and further that he attended the disciplinary hearing at the Teacher Service Commission headquarters and that he never complained about the invitation.
12. At the disciplinary hearing he stated that there were two witnesses and he asked them questions. It was further his evidence that he never received a letter transferring him back to Chepchoina and further that he never received a release letter from Chepchoina. It was his testimony that his transfer to Osorongai was temporary. This was because of insecurity at Chepchoina.
13. In re-examination he stated that he never appealed the verdict at Kapenguria and that he submitted that casually at Osorongai and that his copy did not have to be stamped by the County Officer and headquarters.
14. The respondent’s witness Mr. Samuel Marigat informed the court that he was the respondent’s County Director at Kirinyaga and that he used to be at Trans-Nzoia in the same capacity. He filed a statement on 25th November, 2018 which he relied on as his evidence in chief. He also relied on the documents filed in response to the claim.
15. It was his evidence that the claimant asked for a transfer and it was approved. The claimant was released by the District Staffing Officer. The claimant on receipt of the transfer letter, raised several issues about the school he was transferred to. He however reported to the school. He reported twice and, on both occasions, never met the principal but that the Acting Deputy Principal made a report about the claimant. The Principal equally submitted a report. The respondent thereafter sent an investigation team to investigate the issue. He conducted the investigations and generated a report in which they recommended disciplinary action against the claimant for desertion. He issued a letter of interdiction on 12th January, 2016. The claimant was subsequently invited for disciplinary hearing at the headquarters which he attended and gave evidence.
16. It was his evidence that the claimant was appointed Deputy Principal at Chepchoina and was transferred to Osorongai at the same level. There was however no vacancy at the time and the claimant was told.
17. In the cross-examination he stated that he was aware of the circumstances surrounding the claimant’s transfer. New schools were registered and the claimant was transferred to one of them. That was Chepchoina. According to him Teachers Service Commission does not visit schools. That was the role of Ministry of Education. It was his evidence that the claimant wrote a letter saying starting Chepchoina was proving difficult and did not take off so there was nothing to hand over except the legal instruments for the school. These were handed over to the County Office. The claimant however refused to hand over. When the claimant reported to Osorongai he met a Deputy Principal who was on transit to another school. He stated that he was not aware that the claimant and the principal Osorongai came to his office or other Teacher Service Commission office to explain why the claimant could not be absorbed.
18. Mr. Marigat further stated that he was aware of a disciplinary hearing in West Pokot but could not remember if it took place and whether the claimant asked for statements before attending the meeting at West Pokot. He stated that the claimant was interdicted by the County Office and that the Nairobi office gets involved after interdiction. He further stated that he did not receive any communication that the claimant could not be absorbed at Osorongai. According to him, if a school has a reservation about a teacher they ought to communicate in writing. It was further his evidence that the claimant was still in possession of the legal instruments for Chepchoina. He has never handed over.
19. In re-examination he stated that the claimant was supposed to handover the legal instruments to the District Staffing Officer
20. The Respondent’s second witness Mr. Peter Njeru stated that he worked for the respondent as a staffing director and that he recorded a statement on 25th January, 2023 which he relied on as his evidence in chief. It was his evidence that the claimant was regularly transferred. The transfer letter was found at page 4 of the respondent’s bundle of documents. The letter effectively transferred the claimant. According to him the claimant was a Deputy Principal and was deployed to Chepchoina to perform the duties of a principal. The claimant was never appointed substantively as principal of Chepchoina. It was assignment of duties of a principal and that appointment was a grate and deployment one retains his grade but performs the duties assigned.
21. The cross-examination he stated that he had been in respondent’s employment since 2016 and that he never got directly involved with the claimant’s case and that he only reviewed the record of what happened.
22. The respondent’s third witness Mr. Francis Kanyari Kanyor stated that he worked for the respondent as a discipline officer. He recorded a witness statement on 24th January, 2023 which he adopted as his evidence in chief. According to him the claimant went through a disciplinary process. It was his evidence that desertion was an offence under the respondent’s code of regulations for Teachers. The respondent conducted investigations over allegations desertion against the claimant. He was found guilty and a report prepared. The report was before the court. The claimant was consequently issued with an interdiction letter. He was granted an opportunity to respond to the allegations against him. He appeared before a disciplinary panel and defended himself. A conclusion was reached to warn the claimant.
23. In cross-examination he stated that he relied on the investigations report and that the issues around the claimant took place around 2015. It was his evidence that the claimant raised concerns and they were addressed to the best of his knowledge. It was his evidence that there were no discrepancies in the report and that they would only to the ground if there was discrepancy.
24. Having summarized the facts and evidence in the case as above, the issues that require determination by the court seem to be whether the claimant was transferred to chepchoina Secondary School as a substantive principal or in acting capacity. Second, whether the claimant upon being transferred to Osorongai Secondary School refused to report and consequently deserted duty. Finally, whether the court should order the payment of full salary for the period between December, 2015 and February, 2017 when the claimant was interdicted.
25. On the first issue, by a letter dated 23rd January, 2015 the claimant was informed that he had been deployed to perform the duties of a principal at Chepchoina Secondary School, Kwanza Sub-County and tech biology and or chemistry.
26. Counsel for the claimant submitted that the claimant being a principal teacher handling administrative position could not be redeployed to a lesser position of a deputy principal without compliance with Regulation 70(3) and 70(4) of Code Regulation for Teachers (CORT) Regulation 70(3) provides
(3) The Commission may redeploy a teacher who has been deployed to any administrative position, within an educational institution to perform normal teaching duties where the teacher—
(a) is unable to perform the functions of the office so held;
(b) is incompetent or neglects administrative duties;
(c) continuously posts declining examination results;
(d) has poor financial management skills;
(e) neglects or fails to maintain proper records;
(f) is the subject of investigations for an offence under these Regulations; or
(g) performs any other act that in the opinion of the Commission justifies re-deployment.
Regulation 70(4) further provides that the commission shall before redeploying a teacher from an administrative position observe the rules of natural justice and accord the teacher an opportunity to respond to any adverse reports.
27. Counsel for the respondent however, contended that it was from the wording of the letter that the claimant was not being appointed as a Principal of Chepchoina Secondary School but he was basically being deployed to perform functions of a principal of the school. Counsel further submitted that the claimant upon receiving hostilities from the communities surrounding the school requested for a transfer where there was a vacancy. The commission acceded to his request and transferred him as well as substantively appointing him as Deputy Principal Osorongai Secondary School.
Regulation 68 Code of Regulations Teachers provides;
68(1) The Commission may, for purposes of providing competent administrators for all educational institutions, deploy a teacher to any administrative position or in any other capacity through a transparent process.
(2) The Commission may deploy a teacher by—
a) appointment to an administrative position;
b) appointment to a higher administrative position;
c) appointment to the Commission’s secretariat;
d) appointment to perform administrative duties;
e) posting from a primary to a post primary institution; or
f) withdrawal of administrative duties.
Regulation 69 further provides;
69. The Commission may for purposes of administration of
educational institutions deploy a teacher as a—
(a) Head of institution;
(b) Deputy head of institution;
(c) Registrar;
(d) Dean of Curriculum;
(e) Dean of Students;
(f) Head of Department;
(g) Senior Teacher;
(h) Head of Subject; or
(i) Any other post as may be established by the Commission
from time to time.
28. Concerning promotion, part VI of the Code of Regulations Teachers makes provisions concerning promotion of teachers. This part sets elaborately guidelines for promotion of teachers. Regulation 73(3) under this part provides that promotion shall be done after the commission conducts competitive interviews and the teacher professional development programmes. Regulation 75 further provides that a teacher may be promoted under competitive terms by making an application and after successfully completing the Teachers Proficiency Course or promotional interviews administered by the commission for that purpose.
29. From the foregoing it is therefore clear that there is a distinctive difference between deployment and promotion. That is to say a teacher may be deployed to perform administrative duties even of higher cadre then held by such teachers and that would not amount to a promotion. This is what seemed to have happened in the claimant’s case. His claim therefore that his deployment to Chepchoina to perform the duties of a principal at the school amounted to promotion as such is without merit and is hereby rejected.
30. The second issue is whether the claimant upon being transferred from Chepchoina to Osorongai refused to report and consequently absconded duty hence deserved to be interdicted and eventually sanctioned through warning.
31. It was not in dispute that the claimant was transferred to Osorongai upon his request when he faced hostilities from the communities surrounding Chepchoina Secondary School. It was further common ground that the claimant attempted to report to Osorongai but was unabl to because the school’s sponsors rejected him. The letter from Mr. Benjamin Koech, the Principal of Osorongai Secondary School produced as appendix to the respondent’s bundle of documents states no material part as follows;-
“So 1 told him to sort the issue within two days then report. 1 confirmed from his Idler that he was actually coming to Osorongai as a deputy. I3y this time I had not receiver! my copy of the letter, we then parted. Immediately 1 left him, as I crossed the road towards KCB roundabout I met ACK kiducalion secretary, Rev. Chege. I explained to him the issues al hand. However, he objected the incoming deputy because he was somebody who had already tested Headship and his unwillingness Io come to Osorongai”.
32. Further, the claimant in letter dated 2nd December, 2015 to the County Director Trans Nzoia attached to the respondent’s bundle of documents as appendix 4 states as follows;
“On 29th May, 2015, the Principal Osorongai Secondary School accompanied by Reverend Chege of ACK (sponsor church) did actually meet the County Director. I waited at the main gate. After the meeting we met at the main gate. They introduced me to Reverend Chege before informing me that the Director had granted them their wish and there was no need for me to report to Osorongai. He added that the Director will recall me and appoint another person to replace Mr. Katunga”.
33. The claimant further stated that from that day he directed his energies to coordinating various groups within Chepchoina settlement scheme to put pressure on the member of the national assembly Dr. Pokose to avail funds for construction of classrooms at Chepchoina Secondary School.
34. From the evidence, the claimant had not handed over the instruments for Chepchoina Secondary School because according to him, no one was sent by the respondent to whom he could hand over. However, according to the respondent he was supposed to hand over to the County Director.
35. Whereas one may argue that the claimant could have forwarded his predicament to the respondent for consideration, on the same breath it was the responsibility of the respondent to investigate objectively the claimant’s issue and find out why he had not reported to Osorongai. The respondent’s own bundle of documents contain facts and information that reasonably explained why the claimant did not report to Osorongai. The claimant in the court’s view was struck between the proverbial rock and a hard place. He was unable to hand over Chepchoina on one hand and was facing rejection at Osorongai on the other. The claimant therefore became innovative enough and embarked on engaging local community in Chepchoina to lobby the area member of parliament to build classrooms at Chepchoina now that he still retained the instruments for Chechoina. To interdict the claimant in view of his predicament, accusing him of desertion and sanctioning for that purpose was unreasonable and disproportionate in the circumstances. To that extent the curt hereby declares the warning letters dated 9th February, 2017 and interdiction letter dated 12th January, 2016 as null and void. For avoidance of doubt, the letter of transfer to Meso Secondary is not affected by the declaration of the court.
36. The court having declared the interdiction null and void, the court will on the same breath order that the respondent do pay the claimant the balance of his salary during the period he was under interdiction.
37. In conclusion the court orders as follows;
a) The claimant’s deployment to Chepchoina Secondary School to discharge the duties of a Principal did not amount to promotion as such.
b) The letter of interdiction dated 12th January, 2016 and warning letter dated 9th February, 2017 are hereby declared null and void and be expunged from the claimant’s personal file.
c) The claimant be paid his full salary during the period he was interdicted less any amount paid.
d) The claimant being partially successful there will be no order as to costs.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day of…………………2023
Abuodha J. N.
Judge
In the presence of:-
…………………………………………………… for the Claimant
……………………………………………………. for the Respondent