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Court of AppealDismissedCivil Appeal (High Court Constitutional Petition No. 3 of 2021 appeal)· [2025] KECA 936 (KLR)

Athman Ade Maro v The Teachers Service Commission & 2 others

Court of Appeal
23 May 2025
4,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a teacher acquitted in a criminal court can still be fired by the TSC through its own disciplinary process.

What this practically means

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Executive summary

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This Court of Appeal at Mombasa (Tuiyott, Laibuta and Ngenye-Macharia, JJA) dismissed an appeal against Githinji, J.'s dismissal of a constitutional petition challenging Regulation 139(3) and (4) of the Teachers Service Commission Code of Regulations for Teachers, 2015. The appellant, a school principal, was interdicted and dismissed by the TSC following allegations of sexual misconduct with a student, notwithstanding his acquittal of defilement in Criminal Case No. 25 of 2017 before the Malindi Chief Magistrate's Court. He argued that the Regulation, which permits the Commission to discipline a teacher facing or acquitted of criminal charges and declares that the Commission is not bound by the criminal case outcome, offended Articles 50 and 159 of the Constitution. The court held that Regulation 139(4) had been deleted by Legal Notice No. 50/2015 and could not be challenged as a non-existent provision. On Regulation 139(3), it found the appellant had been given notice and an opportunity to be heard before the disciplinary committee, and that no breach of judicial authority was particularised. Applying settled authority, the court affirmed that criminal and disciplinary processes are distinct, with different procedures and standards of proof, that acquittal does not immunise an employee from employer discipline, and that the double jeopardy doctrine does not extend to civil disciplinary proceedings. The High Court judgment was upheld and the appellant ordered to bear the respondents' costs of the appeal.

Key legal issues

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01

Whether a repealed provision can be challenged as unconstitutional

Holding

No. Regulation 139(4) had been deleted by Legal Notice No. 50/2015, Regulation 6, and a petition founded on it was premised on a non-existent provision.

Reasoning

The court traced the amendment history and found Regulation 139(4) had been deleted before the 2021 petition. A litigant cannot ask a court to pronounce on the constitutionality of a provision that no longer exists in law, so the claim against Regulation 139(4) collapsed entirely.

p. 6
02

Whether Regulation 139(3) offends Articles 50 (fair hearing) and 159 (judicial authority) of the Constitution

Holding

It does not. The disciplinary process is an administrative, quasi-judicial process distinct from court proceedings, and the appellant was given an opportunity to be heard.

Reasoning

The interdiction letter invited the appellant to respond to the charges; he was given one month's notice of the hearing and appeared before the committee to make his presentation. The TSC, as a quasi-judicial body determining professional misconduct, was not required to conduct its process as a criminal trial, and no usurpation of judicial authority under Article 159 was particularised.

p. 6
03

Whether an acquittal in a criminal case bars parallel or subsequent disciplinary action by an employer

Holding

No. Criminal and disciplinary proceedings are distinct processes with different procedures and standards of proof; acquittal does not confer immunity from discipline.

Reasoning

Relying on Teachers Service Commission vs. Joseph Wambugu Nderitu and Kibe vs. Attorney General, the court held that disciplinary proceedings are civil, quasi-judicial processes whose purpose is to maintain professional standards, not to punish criminally. The double jeopardy doctrine does not apply, and an employer may discipline an employee notwithstanding a criminal acquittal.

p. 8

Legal principles established

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  • A petitioner seeking constitutional redress must plead with specificity the rights alleged to be violated and the manner of the infringement
  • A court cannot declare a repealed provision unconstitutional; a challenge premised on a non-existent provision fails
  • An acquittal in criminal proceedings does not bar or render unfair an employer's disciplinary process; criminal and disciplinary proceedings are distinct processes with different standards of proof
  • An employer's disciplinary process is a quasi-judicial administrative process distinct from court proceedings and is not bound by the outcome of the criminal justice process

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Judgment of the High Court at Malindi (Githinji, J.) dated 23rd June 2021 is upheld
  3. 3.The appellant shall bear the respondents' costs of the appeal
On appeal from
High Court of Kenya at Malindi
Constitutional Petition No. 3 of 2021
Jurisdiction invoked
First appellate jurisdiction over the High Court decision (Rule 31(1) of the Court of Appeal Rules, 2022 invoked for re-examination of evidence)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Athman Ade Maro v The Teachers Service Commission & 2 others", Case Analysis (2025). Civil Appeal (High Court Constitutional Petition No. 3 of 2021 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/936/eng@2025-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.