Teachers Service Commission v Makokha (Employment and Labour Relations Appeal E004 of 2023) [2023] KEELRC 2518 (KLR)
The bottom line
#Kenya's Employment Court ruled that a criminal acquittal doesn't stop a fair dismissal, and reinstatement orders made more than three years after dismissal are invalid.
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 learned Magistrate arrived at the wrong conclusion on substantive and procedural fairness
- 2.Whether the judgment was ambiguous and imprecise
- 3.Whether the appellant was entitled to reliefs sought
Key legal issues
#Standard of proof in disciplinary/employment dismissal for misconduct
Disciplinary proceedings require proof on a balance of probabilities, not beyond reasonable doubt; the trial magistrate erred by resting the finding of unfair termination on the criminal acquittal
Employment claims are civil and governed by sections 43, 45 and 47(5) of the Employment Act. The magistrate based her finding of unlawful termination solely on the criminal acquittal, applying a criminal standard. The court held a reasonable-employer test (British Leyland v Swift) applies, and on the evidence the employer genuinely and reasonably believed the teacher engaged in immoral conduct with a pupil, justifying dismissal.
Procedural fairness of the TSC disciplinary process
The procedural fairness complaint was an afterthought not pleaded in the statement of claim and could not be raised for the first time on appeal
The court perused the statement of claim and found no allegation that the disciplinary process was flawed. Since the issue was not pleaded or litigated at trial, the trial court never heard submissions on it, and the appellate court could not entertain it. The documented process (show cause, county and national hearings, appeal before a different panel) was on the record.
Validity of the reinstatement order
The reinstatement order was illegal as it was made outside the statutory three-year window under section 12(3)(vii) of the ELRC Act, and the trial court had no discretion to extend it
Dismissal took effect on 10th July 2018 and judgment was delivered on 23rd January 2023, far beyond three years. Following Sotik Highlands Tea Estates Ltd v KPAWU, ordering reinstatement after three years is acting without jurisdiction. The delay was not attributable to the employer, and COVID-19 did not extend the statutory limit.
Ambiguity of the trial judgment
Granting both main and alternative reliefs in blanket form rendered the judgment ambiguous and erroneous
The trial court entered judgment 'as prayed and or alternative prayers', failing to choose between reinstatement and alternative compensation as required by Alex Wainaina v Janson Mwangi Wanjihia. Such a judgment is imprecise and incapable of execution, a further ground of appeal upheld.
Legal principles established
#- An acquittal in a criminal case does not automatically render an employee immune to disciplinary action; criminal trial and disciplinary proceedings are distinct processes with different standards of proof
- Reinstatement may only be ordered within three years of dismissal; an order outside that period is made without jurisdiction
- Where relief is prayed in the alternative, a court must choose between the main and alternative relief with reasons; both cannot be granted in blanket form
- An appellate court cannot consider issues not pleaded or contested at the trial court
Court orders
#- 1.The appeal is upheld
- 2.The judgment of Hon. D. Alego in Kakamega CMELRC No. 2 of 2020 delivered on 23rd January 2023 and all consequential orders set aside
- 3.Substituted with judgment that the Claim dated 9th January 2020 is dismissed
- 4.No order as to costs in the trial suit
- 5.No costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kakamega
- CMELRC No. 2 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appeal from magistrates' court)
Relief refused
#Respondent's reinstatement (as ordered by trial court)
Reinstatement was ordered more than three years after dismissal, beyond the mandatory limitation in section 12(3)(vii) of the Employment and Labour Relations Act
Respondent's claim for unfair termination
Dismissal was substantively and procedurally fair on a balance of probabilities; criminal acquittal does not bar disciplinary action
Costs
No order as to costs - the claim dismissed with no order as to costs, and 'To temper justice with mercy I order no costs in the appeal too.'
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.
The entire decision of the Learned Magistrate is set aside for application of wrong standard of proof and the court proceeds to evaluate the evidence on merit to reach its own conclusion.
The two processes are distinct from each other.
I do find on balance of probability that the respondent had immoral conduct with the minor who was a student.
The court finds that reinstatement was ordered outside the 3 years hence an illegal order. The court has no discretion to extent the said period.
The appeal is upheld. The judgment of Hon. D. Alego in Kakamega CMELRC No. 2 of 2020 Julius Mutinye Makhokha v Teachers Service Commission delivered on 23rd January 2023 and all consequential orders is hereby set aside and substituted with judgment that the Claim dated 9th January 2020 is dismissed with no order as to costs.
To temper justice with mercy I order no costs in the appeal too.
Issues in the judgment
#Dismissal effective date appears inconsistently as 10th July 2018 (same date as disciplinary hearing minutes) and the disciplinary hearing is elsewhere dated 10th July 2017
Witness name appears as both 'Daniel Kioko' and 'David Kioko'
Date of the alleged incident appears variously as 30th August 2017, 30th July 2017 and 30/08/2018 in different passages
Grounds of appeal attribute the reliance on the criminal-court finding to the magistrate, but the judgment also states the interdiction letter named the student 'Nichole Awino' while particulars were elsewhere withheld
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Makokha (Employment and Labour Relations Appeal E004 of 2023) [2023] KEELRC 2518 (KLR)", Case Analysis (2023). Kakamega ELRC Appeal (from Kakamega CMELRC No. 2 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2518/eng@2023-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.