Adipo v Teachers Service Commission (Civil Appeal 143 of 2019) [2024] KECA 1591 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a teacher cannot block an interdiction early in the disciplinary process where the employer followed the required show-cause and investigation steps.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the respondent had commenced and followed the disciplinary process provided by law, including regulation 146(6) of the TSC Code of Regulations for Teachers, before issuing the letter of interdiction
- 2.Whether the letter of interdiction dated 6th October 2016 infringed the appellant's right to fair administrative action under Article 47 of the Constitution
- 3.Whether the prayer in the statement of claim (a permanent injunction suspending the letter of interdiction) was capable of being granted
Key legal issues
#Whether the respondent complied with regulation 146(6) of the TSC Code of Regulations for Teachers before interdicting the appellant
The Court found the respondent had a basis for its actions: a show-cause letter was sent, the appellant responded, an investigation was carried out, and only then was the interdiction letter issued; at that early stage no infringement of the regulation 146(6) safeguards was shown
The respondent's uncontroverted averments in the replying affidavit of Mary Rotich showed it received information of misconduct, issued a show-cause letter dated 10th February 2016, received the appellant's reply, investigated, and then interdicted. Although the annexures to the affidavit were omitted from the record, the averments stood uncontroverted. The disciplinary process had only commenced, so the safeguards in regulation 146(6) had not yet been, and were not in danger of being, infringed.
Whether the prayer sought in the memorandum of claim was capable of being granted
The Court agreed with the trial court that a permanent injunction suspending the interdiction letter could not be granted upon final determination of the suit, notwithstanding the appellant's 'copy paste error' explanation
The trial court had found the prayer misconceived and incapable of grant at final determination because interdiction is an intermediate step in the disciplinary process. The Court of Appeal agreed that there was a sound basis for the interdiction letter and that a permanent injunction against the intended disciplinary process could not issue at that stage.
Duty of a first appellate court
The Court affirmed its duty to reappraise the evidence and reach its own conclusions
As a first appellate court, the Court is obliged to re-evaluate the material before the trial court and draw its own conclusions, which it did by examining the pleadings, the replying affidavit and the regulatory framework governing interdiction before affirming the trial court's dismissal of the claim.
Legal principles established
#- A first appellate court is under a duty to reappraise the evidence before the trial court and reach its own conclusions
- At the early interdiction stage of a disciplinary process, an employee cannot obtain a permanent injunction against the interdiction where the employer has shown cause, conducted an investigation and issued the interdiction letter on a lawful basis
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (not expressly stated; appeal per memorandum dated 17th July 2019)
Relief refused
#Permanent injunction suspending the contents of the letter of interdiction dated 6th October 2016
The prayer was not capable of being granted at that early stage of the disciplinary process, and the respondent had shown a lawful basis for the interdiction
Declaration that regulation 146(6) procedural safeguards had been violated
At the interdiction stage the disciplinary process had only just started; no evidence that the safeguards under regulation 146(6) had been or were in danger of being infringed
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above matters, I find no merit in this appeal. I would dismiss it with costs to the respondent.
The disciplinary process had just started, and at this early stage, there was no evidence or a basis to argue that the procedural safeguards that the appellant was entitled to in the disciplinary process as provided under regulation 146(6) had been infringed or in danger of being infringed.
The appellant had been sent a letter requiring her to show cause. She had responded. An investigation had been carried out, then the letter of interdiction had been sent.
the prayer before the court was not one that could be granted 'upon final determination of the suit on the merits'
As a first appellate court, we are under a duty to reappraise the evidence before the trial court and reach our own conclusions.
A memorandum of appeal shall concisely set forth under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against
Issues in the judgment
#Inconsistency in dates of the appellant's reply to the show-cause letter: the judgment records the respondent averring a reply dated 15th July 2016, and later the same reply as dated 17th July 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adipo v Teachers Service Commission (Civil Appeal 143 of 2019) [2024] KECA 1591 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal from ELRC, filed by memorandum of appeal dated 17th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1591/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.