Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others
The bottom line
#Kenya's Court of Appeal confirmed a teacher's dismissal was procedurally unfair but cancelled his reinstatement, awarding him Kshs. 2.5 million instead.
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 Judge was correct in finding that the respondent's termination was procedurally and substantively unfair
- 2.Whether the remedy of reinstatement was appropriate in the circumstances of the case
- 3.Whether the reinstatement order contravened the Government Proceedings Act
- 4.Whether the respondent should leave the Court empty-handed after reinstatement is set aside
Key legal issues
#Whether the termination was procedurally unfair despite a show-cause notice and investigation committee hearing
Yes. The HR Manual prescribes distinct investigatory and disciplinary processes; the Committee was only investigative, and termination before a Discipline Panel hearing short-circuited the process, denying the respondent the section 41 protections.
The HR Manual at paragraphs 116 and 118 provides distinct investigatory and disciplinary processes. The Committee itself clarified it was investigative, not disciplinary. Only before the Discipline Panel could the respondent secure full section 41 Employment Act protections, including the presence of another employee or union representative. Terminating on the investigation report alone deprived him of that opportunity, rendering the termination procedurally unfair.
Whether reinstatement was an appropriate remedy
No. The trial Judge focused on procedural flaws without adequately considering the section 49(4) factors, particularly practicability, the seniority of the position, and the breakdown of trust.
Reinstatement is discretionary and exceptional. The respondent held a senior position (Deputy Commission Secretary) requiring high trust; the allegations touched on Chapters 6 and 13 of the Constitution involving abuse of office and procurement interference. The investigation report contained findings that, if true, would undermine trust. The trial Judge failed to weigh these factors, so her discretion was erroneously exercised and the reinstatement order could not stand.
Whether the reinstatement order violated the Government Proceedings Act
No. Section 12 of the ELRC Act expressly confers jurisdiction on the ELRC to grant reinstatement; the Government Proceedings Act does not oust it.
The court held the two statutes must be read harmoniously, with the specific provisions of the Employment Act prevailing over the general provisions of the Government Proceedings Act. The ground was therefore without merit.
Whether the respondent should leave empty-handed once reinstatement is set aside
No. Having proved the termination unprocedural, he was awarded compensation equivalent to eight months' salary, fixed at Kshs. 2,500,000 with interest.
Although the Committee found the respondent culpable of serious allegations, he remained entitled to compensation for the unprocedural termination. Balancing these, the court found eight months' salary adequate, computed from his monthly salary of Kshs. 308,423 and rounded to Kshs. 2,500,000, attracting interest from the date of judgment.
Legal principles established
#- Employers undertaking disciplinary proceedings must adhere strictly to the procedures in statute and their human resource manuals; an investigatory committee cannot substitute for the disciplinary process required before termination.
- Termination of employment requires both valid substance and fair process; an employer with good reasons may still terminate unfairly if procedure is not followed.
- Reinstatement is an exceptional remedy, not to be granted routinely; the court must be satisfied the employment relationship can be restored without undue strain.
- The Government Proceedings Act does not oust the ELRC's statutory jurisdiction to order reinstatement; the specific Employment Act provisions prevail over the general Government Proceedings Act.
- For senior public officers entrusted with public resources, the threshold for reinstatement is higher where allegations of integrity-related misconduct arise.
Court orders
#- 1.Civil Appeal E168 of 2023 withdrawn by consent with no order as to costs
- 2.The remedy of reinstatement set aside; the trial court's order of reinstatement cannot stand
- 3.Award to the respondent of Kshs. 2,500,000 as compensation for violation of his right to fair process, with interest at court rates from the date of judgment until payment in full
- 4.Each party to meet own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Petition No. E132 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC under the Employment and Labour Relations Court Act; appeal against judgment and orders of Mbaru, J.
- Consolidated with
- Civil Appeal E168 of 2023
Relief refused
#Reinstatement to the position of Deputy Commission Secretary
Senior position of trust; allegations caused breakdown of trust; reinstatement impracticable and an exceptional remedy
Aggravated damages
Court instead awarded compensation equivalent to eight months' salary for the unprocedural termination
Costs
Each party to meet own costs of the appeal
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 undertaking disciplinary proceedings, employers must patiently stick to the procedures provided in statute and their human resource manuals.
Termination of employment is not only about the substance but also the process.
Reinstatement is an exceptional remedy which should not be granted routinely.
For senior officers entrusted with public resources and responsibility, the threshold for reinstatement is higher.
In the end, the appeal partially succeeds to the extent that the remedy of reinstatement is set aside.
Considering the outcome of the appeal, the just order on costs is to direct each party to meet own costs of the appeal, which we hereby do.
A round figure of Kshs. 2, 500,000 would therefore be ideal and that is the amount we award the respondent as compensation for the violation of his right to fair process.
Issues in the judgment
#Grounds of appeal numbered i, ii, iii, ii, iii, iv - duplicated roman numerals in the memorandum of appeal as reproduced.
Award described as eight months' salary but fixed at Kshs. 2,500,000, slightly above eight months of Kshs. 308,423.
Petition prayers list prayer (f) twice - 'General Damages' and 'Any other relief' both lettered (f).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others", Case Analysis (2026). Civil Appeal E109 & E168 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1790/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.