1. By a Petition dated 19th April, 2022, the Petitioner alleged inter-alia:
a) THAT the Respondent had unfairly interdicted, dismissed and removed his name from the Register of Teachers.
b) THAT he Petitioner was employed on permanent terms on 25th July 2017 and confirmed into employment on 14th October 2019.
c) On or about 24th October 2020, the Petitioner was accused of defiling a minor and student aged 17 years being a Form One Student at Kasidi Secondary School while himself was a Teacher at Ribe Boys High School.
d) THAT the Petitioner was was interdicted vide a letter dated 23rd March 2021 after the Disciplinary meeting held on 3rd March 2021 and was afterwards not placed on half salary.
e) THAT further, in dismissing the Petitioner, the Respondent ignored the verdict of the Board of Management, Ribe Boys High School that established nothing incriminating against the Petitioner.
f) THAT the Respondent communicated the Decision vide two letters dated 25th August 2021 which the Petitioner applied for review and the Respondent rendered the Decision on Review on 23rd March 2022 upholding the Decision to dismiss him.
g) THAT the Petitioner’s view is that the Respondent violated his right to remain silent until proven guilty and was condemned unheard contrary to the Constitution of Kenya.
2. The Petition was further supported by the Affidavit of the Petitioner in which he repeated the same facts in the Petition.
3. The Respondent filed a Replying Affidavit sworn by Evaleen Mitei in which it stated among others:
i. THAT upon the Accusations of the Petitioner of carnal knowledge of the minor, the Respondent commenced Preliminary Investigations and established after thorough considerations that the Petitioner was culpable of the offence and forwarded the matter to the Board of Management, Kibe Boys High School for disciplinary action.
ii. THAT the Respondent followed the procedure anticipated by Section 41 of the Employment Act and accorded the Petitioner an opportunity to respond to the allegations against him.
iii. THAT, the interdiction letter informed the Petitioner of the right to respond to the accusations and to be heard and the Petitioner was accorded ample time to present and cross examine witnesses.
4. In the submissions in support of the Petition, the Petitioner submitted that he had not defiled the subject minor and so the allegations ought not to have led to his dismissal.
5. According to Counsel, the Respondent ignored the judicial authorities that declared Regulation 148(1) of the Code of Regulations for Teachers, 2015 unconstitutional for discriminating teachers on interdiction not to be paid half salary.
6. Counsel thus submitted that the Petitioner was entitled to half salary on interdiction.
7. Counsel relied on the case of Hellen Khamali Vs Teachers Service Commission (2020) eKLR and Justice Nguma Jitonyo Vs Teachers Service Commission (2020) eKLR to support the Petitioner’s case.
8. Counsel for the Respondent on the other hand submitted that the Petitioner was lawfully terminated from his employment for sexual misconduct.
9. Counsel further submitted that the Petitioner was dismissed in accordance with the Code of Regulations for Teachers, 2015 based on valid grounds.
10. In this respect Counsel relied on Section 43(2) of the Employment Act to assert that the reason for termination was genuinely believed to exist. Counsel also cited and relied on the Court of Appeal case of Kenya Power & Lighting Company vs Agree Lukoroto Wasike Civil Appeal No. 79 of 2016 and further that the grounds for termination were valid and justified relying on the case of Tom Ochako vs Teachers Service Commission ELRC Cause No. 2532 of 2016.
11. It was the Respondent’s further submission that the termination of the Petitioner’s employment was fair and lawful as the Respondent issued an interdiction notice for 21 days and invited the Petitioner to a hearing where he attended with his witnesses and the charges were clear as to enable him respond, which he did.
12. According to Counsel, the Respondent was not bound by the outcome of the Criminal Court on the case against the Petitioner and the Respondent was sitting as an Administrative body.
13. Regarding the question whether the Petitioner was entitled to reinstatement, Counsel submitted that it was untenable and urged the Court not to force it upon the Respondent to reinstate the Petitioner as there was no trust between the parties.
DETERMINATION
14. The Court has reviewed and considered the pleadings, testimonies and submissions by both Counsel in support and opposition to the Petition. The Court has also considered authorities relied on by Counsel.
15. The matter was brought before this Court as a Constitutional Petition but as this Court and Superior Courts have observed, not every issue brought before a Court of law is a Constitutional issue. It is important to figure out the threshold a matter ought to meet before it is considered as a Constitutional question. This is intended to avoid raising statutory questions as Constitutional issues. This was well set out in the now famous case of Anarita Karimi Njeri –vs- Attorney General [1979] eKLR 154 where the court stated that if a person is seeking redress from the Court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains, that provision said to be infringed and the manner in which they are alleged to be infringed. This has been reiterated in the case of Kamlesh Mansukhlal Ramkji Pattni –vs- The Attorney General [2001] eKLR, 264.
16. The Petitioner herein alleged that the Respondent condemned him contrary to the Constitutional right to fair labour practices and right to be presumed innocent until proven guilty. The Respondent refuted this allegation and stated that the Petitioner’s services were terminated on account of allegations of sexual misconduct with a minor; student of a different school from the school he taught and that the Petitioner underwent a prior disciplinary process in accordance with the law and was established to have immoral behaviour.
17. Whereas it is conceded that the right to fair labour practices is a right under Article 41 of the Constitution, the same can be squarely determined in accordance with the provisions of the Employment Act. The Petitioner cannot generally allege breach of a Constitutional right without particularizing the manner in which the Respondent abrogated the right. In this particular case the Petitioner did not provide sufficient evidence or material to persuade the court that the right to fair labour practices was particularly infringed and that the infringement could not be adequately addressed by the provisions of the Employment Act. The Court will therefore proceed to regard the Claim as an ordinary Claim and not Constitutional Petition.
18. The issue for determination in this case is whether the termination of the Petitioner’s employment was procedural and fair.
19. This Court has stated previously that it is not within its realm to over-analyze the reason for which employment has been terminated. The test usually is the reasonable test. That is to say, would a reasonable employer put in the circumstances dismiss”? If the answer be in the affirmative, the court will not interfere.
20. In this case, the Respondent interdicted the Petitioner from duty on 23rd March 2021 and proceeded to terminate his services on 12th August 2021. The Petitioner applied and was heard on Review of the Decision terminating his services. However the Respondent upheld its Decision terminating the services of the Petitioner on 25th March 2022.
21. Whereas the Petitioner’s case is that the allegations of sexual misconduct against him were untrue, the Respondent maintained that the allegations were confirmed as true after hearing the Petitioner.
22. The Petitioner further pleaded unfair and unprocedural conduct in the process of his termination from employment and blamed the Respondent for not according him fair procedure and that any trials conducted by the Respondent were flawed and biased.
23. On its part, the Respondent case is that the process of termination of the Petitioner’s employment was fair and procedural through the internal disciplinary process.
24. Regarding procedural fairness, it was held in the case of Walter Ogal Anuro -vs- Teachers Service Commission (2013) eKLR that for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness.
25. The Court of Appeal further in the case of Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR observed thus;
“there is ample authority that decision making bodies other than courts and bodies whose procedure are laid down by statute are masters of their own procedures. Provided they achieve the degree of fairness appropriate to their task. It is for them to decide how they will proceed.”
26. This Court fully adopts the above position as the correct position in law to be invoked by the employer when contemplating termination of the employee’s employment.
27. The Respondent outlined the above procedures as having been undertaken by the Respondent before terminating the Petitioner’s employment and which I find was done in accordance with Section 43 of the Employment Act and which justified the reason for termination.
28. The letter inviting the Petitioner to the Trial Board dated 2nd December 2020 and produced by the Petitioner precisely set out the charge of the alleged immoral behaviour of sexual misconduct and was issued 14 days to the intended hearing. The Petitioner was also notified therein of his right of defence and right to a witness of his choice. The Petitioner did not dispute timely service of this letter. Similarly, the minutes of the disciplinary sessions are well documented in evidence and point to this Court’s conclusion that the Petitioner was accorded both procedural and substantive fairness.
29. Therefore, there is no basis for the allegation that the procedure employed by the Respondent to terminate the Petitioner’s employment was unprocedural. As was held in the case of Rose W. Kirazu -vs- Teachers Service Commission [2016] eKLR, Courts should not interfere with the employer's right to internally discipline an employee unless the process is unlawful and outright flawed and this interference will be in this case limited to correcting wrong Procedural Internal Mechanisms.
30. This Court notes that under Regulation 146 of the Respondent’s Code of Regulations for Teachers, 2015; an investigation may be carried out by the Board of Management, County Director or Head of Institution. In the present case, all the three bodies, that is, the County Director, Board of Management and Head Teachers were at the meeting of 3rd March 2021 at which the Petitioner was heard and the letters of interdiction, dismissal and removal of the Petitioner from the Register of Teachers were signed by the Chief Executive Officer of the Respondent and copied to the Respondent’s County Director, Kilifi County.
31. This Court is satisfied that the Respondent accorded the Petitioner a hearing where the Petitioner explained his case and the Respondent arrived at a verdict. To this extent the Respondent met the procedural fairness test hence the termination is deemed fair.
32. From the foregoing the Court is persuaded that the Respondent followed the law in dismissing the Petitioner.
33. In conclusion the court finds and holds that the Petition is without merit and the same is hereby dismissed with 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 Petitioner
…………………………………………………….. for the Respondent