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Court of AppealPartially AllowedCivil Appeal E109 & E168 of 2023 (Consolidated)

Chief Executive Officer - Teachers Service Commission & 2 others v Mulunda & 2 others

Court of Appeal
25 September 2026
5,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal at Nairobi (Karanja, Muchelule and Korir, JJA) determined Civil Appeal E109 of 2023 alone, Civil Appeal E168 of 2023 (against a stay ruling) having been withdrawn by consent with no order as to costs. The appeal challenged the ELRC (Mbaru, J.) judgment finding that the Teachers Service Commission unfairly terminated the respondent, a Deputy Commission Secretary, and ordering his reinstatement. On the first appeal, the Court re-evaluated the evidence and upheld the finding of procedural unfairness: the Commission's HR Manual prescribes distinct investigatory and disciplinary processes, and the Investigation Committee was expressly not a disciplinary one; terminating the respondent on the committee's report without a Discipline Panel hearing short-circuited the process and denied him the full section 41 Employment Act protections. However, the Court set aside the reinstatement order. Reinstatement is an exceptional, discretionary remedy; the trial Judge focused on procedural flaws without adequately weighing the section 49(4) factors, notably the impracticability of restoring a senior position of trust where integrity-related allegations had eroded confidence. The Court distinguished the Supreme Court's Muya decision, where reinstatement of a Judge was a constitutional command. The Government Proceedings Act argument failed: the ELRC Act's specific jurisdiction to order reinstatement prevails over that general statute. The respondent was awarded Kshs. 2,500,000 (equivalent to eight months' salary) with interest as compensation for the violation of his right to fair process, and each party was directed to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial Judge was correct in finding that the respondent's termination was procedurally and substantively unfair
  2. 2.Whether the remedy of reinstatement was appropriate in the circumstances of the case
  3. 3.Whether the reinstatement order contravened the Government Proceedings Act
  4. 4.Whether the respondent should leave the Court empty-handed after reinstatement is set aside

Key legal issues

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01

Whether the termination was procedurally unfair despite a show-cause notice and investigation committee hearing

Holding

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.

Reasoning

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.

p. 7
02

Whether reinstatement was an appropriate remedy

Holding

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.

Reasoning

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.

p. 10
03

Whether the reinstatement order violated the Government Proceedings Act

Holding

No. Section 12 of the ELRC Act expressly confers jurisdiction on the ELRC to grant reinstatement; the Government Proceedings Act does not oust it.

Reasoning

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.

p. 10
04

Whether the respondent should leave empty-handed once reinstatement is set aside

Holding

No. Having proved the termination unprocedural, he was awarded compensation equivalent to eight months' salary, fixed at Kshs. 2,500,000 with interest.

Reasoning

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

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  • 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

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  1. 1.Civil Appeal E168 of 2023 withdrawn by consent with no order as to costs
  2. 2.The remedy of reinstatement set aside; the trial court's order of reinstatement cannot stand
  3. 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. 4.Each party to meet own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

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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.
p. 7Procedural fidelity in discipline
Termination of employment is not only about the substance but also the process.
p. 7Substance and process in termination
Reinstatement is an exceptional remedy which should not be granted routinely.
p. 9Reinstatement as exceptional remedy
For senior officers entrusted with public resources and responsibility, the threshold for reinstatement is higher.
Senior public officers and reinstatement
In the end, the appeal partially succeeds to the extent that the remedy of reinstatement is set aside.
p. 11Disposition
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.
p. 11Costs order
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.
Compensation award

Issues in the judgment

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minor

Grounds of appeal numbered i, ii, iii, ii, iii, iv - duplicated roman numerals in the memorandum of appeal as reproduced.

minor

Award described as eight months' salary but fixed at Kshs. 2,500,000, slightly above eight months of Kshs. 308,423.

minor

Petition prayers list prayer (f) twice - 'General Damages' and 'Any other relief' both lettered (f).

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, "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.