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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Appeal No. E012 of 2026

Teachers Service Commission v Joshua Mutuku Makanga

Employment & Labour Relations Court of Kenya
18 September 2026
7,674 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Teachers Service Commission appealed against a judgment of the Chief Magistrate's Court at Makueni (P.N. Gesora, CM) which found that the dismissal of teacher Joshua Mutuku Makanga over an alleged 2022 KCSE examination irregularity at Ngungi Mixed Secondary School was unfair, and granted declaration, re-registration, reinstatement, 12 months' compensation, costs and interest, while dismissing TSC's counterclaim for Kshs. 42,829.75 in allegedly unduly paid public funds. Jemimah Keli (J), sitting as a first appellate court, framed four issues: valid reasons for dismissal, procedural fairness, jurisdiction to reinstate after three years, and appellate interference with remedies. On the evidence, the court found the Principal - the alleged crucial actor - was never dismissed, KNEC never cancelled the results, and the investigator Flavian Kitolome also sat on the disciplinary panel contrary to the mandatory section 146(14) of the TSC code, tainting the process. The findings of unfair dismissal and procedural unfairness were upheld. On jurisdiction, applying Kiige v NHIF, the court held the three-year reinstatement window runs from the conclusion of the internal appeal (the decision upholding dismissal), so the January 2026 judgment was within time. However, the court held that compensation cannot be granted alongside reinstatement, which deems the employee never to have left employment, and set aside the 12 months' compensation award. The appeal was allowed partially; reinstatement, declaration and re-registration orders were substituted, with costs of the claim to the claimant and each party bearing 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 Appellant had valid reasons to dismiss the Respondent
  2. 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. 3.Whether the trial court had jurisdiction to reinstate the Respondent back to employment
  4. 4.Whether the remedies granted by the trial court warrant appellate interference

Key legal issues

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01

Valid reasons for dismissal

Holding

No valid reason established; the Principal, the crucial actor, was not dismissed and KNEC never cancelled results

Reasoning

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.

p. 20
02

Procedural fairness of the disciplinary process

Holding

Process fatally flawed: the investigator Flavian Kitolome also sat on the County Disciplinary Panel, contrary to section 146(14) of the TSC code

Reasoning

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.

p. 17
03

Jurisdiction to order reinstatement after three years

Holding

Reinstatement order was within jurisdiction because the three-year period runs from the final internal appeal decision upholding dismissal

Reasoning

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.

p. 27
04

Remedies - compensation alongside reinstatement

Holding

Compensation award set aside as unjustified once reinstatement was granted

Reasoning

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.

p. 29

Legal principles established

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  • 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

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  1. 1.Appeal allowed partially by setting aside the award of compensation only
  2. 2.Judgment entered for the claimant against the respondent: a declaration that the claimant's termination was unlawful and unfair
  3. 3.An order that the claimant's name be re-registered in the register of teachers
  4. 4.An order compelling the respondent to reinstate the claimant back to his position with no loss of benefits
  5. 5.Costs of the claim with interest
  6. 6.Each party to bear own costs in the appeal

The bench

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

majority

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

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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

p. 29

Respondent's 12 months' compensation for unfair termination

Compensation unjustified once reinstatement granted; set aside

p. 29

Costs

Costs of the claim to the claimant with interest; each party to bear own costs in 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.

The appeal is allowed partially by setting aside the award of compensation only .
p. 30disposition
An Order compelling the respondent to reinstate the claimant back to his position with no loss of benefits
p. 30final orders - reinstatement
The appellant was partially successful. Each party to bear own costs in the appeal.
p. 30costs
Having granted reinstatement, the further order of compensation was unjustified.
p. 29remedies - no double recovery
It acted discriminatorily by selecting one of the actors(the respondent ) in the process without a solid basis.
p. 21selective discipline

Issues in the judgment

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material

Conflicting dates for the final internal appeal decision

material

Disposition contradicts itself on scope of setting aside

minor

Duplicate paragraph numbering (two paragraphs numbered 14 and 41)

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, "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.