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ELRCDismissedELRC Petition No. E001 of 2024

Ngeywa v Teachers Service Commission (Constitutional Petition E001 of 2024) [2026] KEELRC 2434 (KLR)

Employment and Labour Relations Court
20 August 2026
8,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a teacher's constitutional challenge to TSC disciplinary proceedings, confirming such disputes belong under the Employment Act, not constitutional petitions.

What this practically means

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Executive summary

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A former teacher dismissed by the Teachers Service Commission for alleged desertion of duty from 28th February to 15th March 2020 (during his father's hospitalisation for prostate cancer) filed a constitutional petition in November 2023 seeking certiorari to quash the disciplinary proceedings of 3rd September 2020, 22nd October 2020, 4th November 2020 and 31st August 2022, mandamus reinstatement with full benefits, declarations that his rights to fair administrative action and fair hearing under Articles 47 and 50 were breached, and Kshs. 1,368,536/- in salary and compensation. The respondent objected on limitation grounds under Section 89 of the Employment Act. On jurisdiction, the court applied the Court of Appeal decision in Francis Kimani Kiige v NHIF, holding that because the petitioner exercised a contractual right of review whose outcome was communicated on 9th September 2022, the petition filed in November 2023 was within time, and the preliminary objection was disallowed. On the merits, the court found the disciplinary process substantially fair: the petitioner had 10 days to prepare, attended and was heard, and did not demonstrate denial of witnesses or cross-examination; he admitted being away without permission and failing to apply for compassionate leave, and produced no evidence of the alleged SMS to the principal. Applying constitutional avoidance, guided by Wajir Wasco and S v Mhlungu, the court held the grievances belonged under the Employment Act, not a constitutional petition, and found no proof of violation of Articles 41, 47 or 50. The petition was dismissed with no order as to costs, the parties being at par since the preliminary objection also failed.

Questions the Court framed

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

  1. 1.Whether the court has jurisdiction to hear and determine the petition (time limitation).
  2. 2.Whether the respondent in the termination process violated the constitutional rights of the petitioner.
  3. 3.Whether the petitioner was entitled to the relief sought.

Key legal issues

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01

Time limitation / jurisdiction

Holding

The petition was not time-barred because the cause of action accrued when the review decision was communicated on 9th September 2022, the petitioner having exercised a contractual right of review.

Reasoning

Relying on the Court of Appeal decision in Francis Kimani Kiige v NHIF, the court held that where an employee invokes a contractual right of appeal after dismissal, the termination remains tentative until the appeal is exhausted. The review verdict communicated on 9th September 2022 was therefore the accrual date, bringing the petition filed in November 2023 within the three-year limitation period. The preliminary objection was disallowed.

p. 17
02

Violation of constitutional rights (Articles 41, 47, 50)

Holding

No violation proved. The disciplinary process satisfied the fair-hearing threshold: the petitioner was given time to prepare, was heard, and did not show he was denied witnesses or cross-examination.

Reasoning

The court found the petitioner admitted being away without permission and failing to apply for compassionate leave, and produced no evidence of the alleged SMS to the principal. Ten days' notice was sufficient. The grievances were matters for the Employment Act, not a constitutional petition; the doctrine of constitutional avoidance applied since the dispute could be resolved without reaching a constitutional issue.

p. 32
03

Entitlement to reliefs sought

Holding

The petitioner was not entitled to certiorari, reinstatement, declarations or damages; the petition was dismissed.

Reasoning

Because no constitutional violation was established and the disciplinary process followed the statutory framework, the reliefs - quashing of proceedings, reinstatement with benefits, declarations and payment of Kshs. 1,368,536/- - all fell away. The court also noted the wrongness of invoking statutes within a constitutional petition.

p. 34

Legal principles established

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  • Where a contractual right of appeal/review in a disciplinary process is invoked, limitation time starts running after determination of the appeal, not upon the initial dismissal.
  • Not every employment dispute should be brought as a constitutional question; where a dispute can be resolved by statute without reaching a constitutional issue, constitutional avoidance applies.
  • Desertion of duty implies abandonment of employment with no intention of returning; a temporary explained absence with resumption of duty is not desertion.

Court orders

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  1. 1.The petition is dismissed for lack of merit.
  2. 2.No order as to costs - each party to bear their own costs, the respondent's notice of preliminary objection also having been dismissed.
  3. 3.The case is marked as closed.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 41, 47 and 50 (employment and labour relations jurisdiction of the ELRC)

Relief refused

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Certiorari to quash the disciplinary proceedings and decisions of 3/9/2020, 22/10/2020, 4/11/2020 and 31/8/2022

No proof of violation of constitutional rights; the disciplinary process met the threshold of a fair hearing; the petition was a case for constitutional avoidance.

p. 33

Mandamus compelling reinstatement with full benefits

Termination was substantively and procedurally fair; the petition was the wrong vehicle, the claim lying under the Employment Act.

p. 31

Declarations of breach of fair hearing and fair administrative action

The petitioner was granted adequate time to prepare and was heard; substantial fairness was found.

p. 32

Payment of Kshs. 1,368,536/- (one month's salary plus 12 months' compensation)

Dismissal was for a proved reason following a fair process; no constitutional violation established.

p. 34

Costs

No order as to costs; each party to bear their own costs as the respondent's notice of preliminary objection was also dismissed.

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.

The petition is held to be without merit and is dismissed. I make no order as to costs, as the respondent's notice of preliminary objection was also dismissed. The parties are at par. The case is marked as closed.
p. 34Disposition and costs
That is when the cause of action arose; thus, the dispute was not time-barred. The notice of preliminary objection based on time limitation is disallowed.
p. 17Limitation - accrual after internal review
The court found there was substantial fairness, as the reason for termination was proved to be true and there was proof of a fair hearing before the termination.
p. 32Fair hearing / substantial fairness
The court cannot be called to interpret and apply statutes in a constitutional petition. The right forum to do so would be under normal claims under the Employment Act.
p. 33Constitutional avoidance
It is so Ordered.
p. 34Final orders

Issues in the judgment

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minor

Internal contradictions in dates of the interdiction and dismissal letters: the Replying Affidavit refers to an interdiction letter dated 20th November 2020 while the decision to dismiss is elsewhere stated as 4th November 2020 and communicated from 22nd October 2020.

minor

The judgment inconsistently identifies the petitioner's gender, describing the petitioner as 'her' in the opening line and 'he/his' throughout the rest.

minor

Conflicting dates for the show-cause letter and hearing: the petition alleges a letter dated 24th August 2020 for a hearing on 3rd September 2020, while submissions state a formal letter dated 28/02/2020 and a hearing scheduled on 20/09/2020.

minor

The petition relief and mandamus prayer describe the petitioner as 'his position' while the petitioner elsewhere is 'she'; also the respondent's submissions refer to 'engaging in immoral behaviour' as the alleged breach although the disciplinary charge was desertion of duty.

minor

Preliminary objection date inconsistency: Notice of Preliminary Objection dated 13th January 2025 in the judgment but 'A preliminary objection dated 12th January 2025 was also filed' in the jurisdiction discussion.

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, "Ngeywa v Teachers Service Commission (Constitutional Petition E001 of 2024) [2026] KEELRC 2434 (KLR)", Case Analysis (2026). ELRC Petition No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2434/eng@2026-08-20

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