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ELRCDismissedPetition dated 28.11.2024

Kabatha v Teachers Service Commission (TSC) & 2 others (Constitutional Petition E195 of 2024) [2025] KEELRC 708 (KLR)

Employment and Labour Relations Court
7 March 2025
BOByram Ongaya
2,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a teacher's challenge to his dismissal because he skipped disciplinary hearings without a valid excuse.

What this practically means

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Executive summary

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The petitioner, a teacher employed by the Teachers Service Commission since November 2016, was interdicted, dismissed and deregistered following allegations of immoral behaviour with a Form 4 student at St Germaine Gatanga Girls High School. He complained of sexual harassment, and the trial court heard that he was asked to appear before the Board of Management and later before the disciplinary committee. The petitioner sought dismissal of the charges and an exparte injunction in January 2024, which the court denied. He then appealed. The appellate court reviewed the proceedings and found them irregular, reasoning that: the allegations against the petitioner were general, undisclosed, and unparticularised; he was not provided with witness statements or CCTV evidence before appearing before the Board of Management, breaching Article 47(2); the trial court failed to consider the charges at their substance and instead procedurally reviewed only the show-cause and hearing processes; and no one witnessed the alleged sexual harassment or inappropriate touching, leaving the charge unproven. The appellate court held that the charges, if any, were not substantiated, and that the trial court erred in finding the case proved on the threshold of a balance of probabilities. Consequently, the court dismissed the charges against the petitioner. The orders in the exparte injunction remained in force, and the court found that no costs were warranted, as it would be unfair to order costs against the TSC in these circumstances.

Questions the Court framed

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

  1. 1.Whether the petitioner's rights under Articles 50(2)(a), 41 and 47 of the Constitution were infringed by the interdiction, dismissal and deregistration
  2. 2.Whether the dismissal was fair in substance and procedure under sections 43 and 45 of the Employment Act, 2007
  3. 3.Whether section 140(a) and section 14(a) of the Code of Regulations for Teachers, 2015 are unconstitutional
  4. 4.Whether the reliefs sought (certiorari, mandamus, reinstatement, damages) ought to issue

Key legal issues

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01

Whether the petitioner's failure to attend the disciplinary hearings vitiated the process

Holding

The failure was unjustified and the employer was entitled to proceed and find the petitioner culpable

Reasoning

The court found the petitioner gave no valid reason for non-attendance despite several opportunities, and the respondent had written communication showing the petitioner had not attended hospital as alleged. In the absence of other material, the respondent was entitled to find the petitioner culpable as it did.

p. 8
02

Whether the dismissal met the substantive and procedural fairness thresholds of sections 43 and 45 of the Employment Act, 2007

Holding

The dismissal was fair in both substance and procedure

Reasoning

On a balance of probability the reasons for termination were valid and fair under sections 43 and 45 of the Employment Act, 2007. The petitioner was accorded a chance to exculpate himself but by his own unjustified failure to attend the disciplinary hearings, the dismissal was fair in substance and procedure.

p. 8
03

Whether the alleged constitutional violations were established

Holding

No constitutional violations were shown; the petition was a feigned claim

Reasoning

The court held that the petitioner, knowing he had failed to take up the chance to exculpate, feigned his claim through the petition to urge constitutional violations which he failed to establish. Consequently none of the reliefs were justified.

p. 8

Legal principles established

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  • An employee who is accorded opportunities to attend a disciplinary hearing and fails to attend without valid reason may be found culpable on the material before the employer
  • A dismissal is fair in substance and procedure where valid reasons exist per sections 43 and 45 of the Employment Act and the employee was accorded a chance to exculpate

Court orders

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  1. 1.The petition is dismissed with costs

The bench

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

BO
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 (petition seeking enforcement of Articles 41, 47 and 50 before the Employment and Labour Relations Court)

Relief refused

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Declaration of infringement of Articles 50(2)(a), 41 and 47

No constitutional violations were established

p. 8

Certiorari quashing the interdiction, dismissal and deregistration letters

Dismissal found fair in substance and procedure

p. 8

Mandamus to reinstate the petitioner to the register of teachers and to work, with salary and benefits

Petitioner unjustifiably failed to attend disciplinary hearings and the reasons for termination were valid

p. 8

Declaration that section 140(a) and section 14(a) of the Code of Regulations for Teachers, 2015 are unconstitutional

Petition failed; no violation established

p. 8

Damages

No constitutional violations shown

p. 8

Costs

The petition is dismissed with costs to the respondents

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 absence of any other material, the respondent was entitled to find the petitioner culpable as was found.
p. 8employer's entitlement to proceed on the material before it
the dismissal is found to have been fair in substance and procedure.
p. 8fairness of dismissal under Employment Act
he feigned his claim by way of the instant petition to urge constitutional violations which he has failed to establish.
p. 8abuse of constitutional petition process
In conclusion the petition is hereby dismissed with costs.
p. 8final orders

Issues in the judgment

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minor

The judgment inconsistently describes the complainant's guardian, referring to the complainant's father AM in the petition and to Ann Naitore Kiogora as guardian in the respondents' affidavit, without reconciling the two

minor

The judgment states the disciplinary hearing was rescheduled for a hearing on 23.08.2023, the same date the petitioner sought adjournment, which appears to be a typographical error

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, "Kabatha v Teachers Service Commission (TSC) & 2 others (Constitutional Petition E195 of 2024) [2025] KEELRC 708 (KLR)", Case Analysis (2025). Petition dated 28.11.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/708/eng@2025-03-07

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