Teachers Service Commission v Joshua Mutuku Makanga
The bottom line
#Kenya's Employment Court upheld a teacher's reinstatement after an unfair TSC dismissal, but removed the extra compensation award because reinstatement already restores his pay.
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 Appellant had valid reasons to dismiss the Respondent
- 2.Whether there was procedural fairness in the initiation and conduct of disciplinary proceedings against the Respondent, and whether Flavian Kitolome conducted the investigations and doubled up as a member of the County Disciplinary Panel
- 3.Whether the trial court had jurisdiction to reinstate the Respondent back to employment
- 4.Whether the remedies granted by the trial court warrant appellate interference
Key legal issues
#Valid reasons for dismissal
No valid reason established; the Principal, the crucial actor, was not dismissed and KNEC never cancelled results
The court found the Principal took the paper and gave it to a student, yet was not dismissed, while the claimant was. The investigating officer signed the interdiction contrary to TSC's own code, admitted by the appellant's witnesses. KNEC released all results without cancellation, undermining the allegation of malpractice.
Procedural fairness of the disciplinary process
Process fatally flawed: the investigator Flavian Kitolome also sat on the County Disciplinary Panel, contrary to section 146(14) of the TSC code
The appellant's own witnesses admitted the investigator doubled as a panel member, an anomaly. The provision is mandatory ('shall'), tainting the entire process. The Principal was shielded and the student who signed the envelope was never called, supporting a premeditated process.
Jurisdiction to order reinstatement after three years
Reinstatement order was within jurisdiction because the three-year period runs from the final internal appeal decision upholding dismissal
Relying on Kiige v NHIF, the court held the cause of action arises on conclusion of internal mechanisms. The dismissal letter of 22 September 2022 was tentative; the appeal decision of 10 May 2023 concluded the process, so the judgment of 22 January 2026 fell within three years.
Remedies - compensation alongside reinstatement
Compensation award set aside as unjustified once reinstatement was granted
Reinstatement deems the employee never left employment, entitling him to accrued salary and benefits; granting 12 months' compensation on top would be onerous double recovery. The court found the compensation award to be an error of law and set it aside while upholding reinstatement.
Legal principles established
#- An officer who investigates an offence may not sit on the disciplinary panel determining it; breach of this rule in mandatory terms vitiates the process
- Where an internal appeal against dismissal is provided, the cause of action arises only when the internal mechanism concludes; the three-year reinstatement window runs from the final decision
- An appellate court should not substitute its view on facts where the trial court's decision is supported by evidence
- Selective disciplinary treatment of one actor among several, without solid basis, is a factor in determining unfair termination
Court orders
#- 1.Appeal allowed partially by setting aside the award of compensation only
- 2.Judgment entered for the claimant against the respondent: a declaration that the claimant's termination was unlawful and unfair
- 3.An order that the claimant's name be re-registered in the register of teachers
- 4.An order compelling the respondent to reinstate the claimant back to his position with no loss of benefits
- 5.Costs of the claim with interest
- 6.Each party to bear own costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Makueni (ELRC)
- Makueni CMELRC No. E002 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate ELRC (Employment and Labour Relations Court Act; appeal from CMELRC)
Relief refused
#Appellant's prayer to set aside the entire judgment including reinstatement
Reinstatement order upheld; the court found no basis to set it aside having upheld the unfairness of the termination
Respondent's 12 months' compensation for unfair termination
Compensation unjustified once reinstatement granted; set aside
Costs
Costs of the claim to the claimant with interest; each party to bear own costs in 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.
The appeal is allowed partially by setting aside the award of compensation only .
An Order compelling the respondent to reinstate the claimant back to his position with no loss of benefits
The appellant was partially successful. Each party to bear own costs in the appeal.
Having granted reinstatement, the further order of compensation was unjustified.
It acted discriminatorily by selecting one of the actors(the respondent ) in the process without a solid basis.
Issues in the judgment
#Conflicting dates for the final internal appeal decision
Disposition contradicts itself on scope of setting aside
Duplicate paragraph numbering (two paragraphs numbered 14 and 41)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Joshua Mutuku Makanga", Case Analysis (2026). ELRC Appeal No. E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2477/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.