Teachers Service Commission v Joshua Mutuku Makanga

CMELRC NO. E002 of 2023 between the parties filed a Memorandum of Appeal dated the 3rd of February 2026 seeking the following orders: a) This appeal be allowed. b) The Judgment, Orders and Decree and all consequent orders of Hon. P. N, Gesora (C.M) delivered on 22nd January 2026 in the Makueni Chief Magistrate ELRC Cause No. E002 of 2023 JOSHUA MUTUKU MAKANGA vs TSC be set aside. c) The Appellant's Counter-Claim be allowed as prayed. d) That costs of this Appeal and that of the lower Court to be awarded to the Appellant. GROUNDS OF THE APPEAL 2. The Honourable Magistrate erred in law and acted beyond his jurisdiction when he issued orders of reinstatement of the Respondent to employment after lapse of three (3) years from the date of dismissal contrary to the provisions of section 12 (3)(vii) of the Employment and Labour Relations Act, Cap 8E thereby arriving at an erroneous conclusion of law. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 2 | 31

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3. The Honourable Magistrate erred in law when he granted orders of reinstatement of the Respondent to employment without due regard and consideration of the factors set out in Section 49 (4) (b), (c), (d), (k) of the Employment Act, 2007. 4. By holding that the process leading to Respondent's termination was unfair, unprocedural and unlawful, the learned Magistrate failed to consider the Appellant's evidence adduced by its witnesses and presented through documents which raised substantial issues of law. 5. The Honourable Magistrate erred in law by failing to appreciate the applicable principles of employment law and the constitutional mandate of the Appellant under Article 237 of the Constitution to exercise disciplinary control over teachers. 6. The Honourable Magistrate erred in law by failing to appreciate the disciplinary procedures undertaken by the Appellant in accordance with the Code of Regulations for Teachers and in so doing arrived at an erroneous application of procedural fairness that the respondent was subjected to. 7. The Honourable Magistrate acted in excess of his jurisdiction and grossly erred in law relying on grounds not pleaded in the body of the Statement of J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 3 | 31

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Claim nor argued by the Respondent during trial and in so doing condemned the Appellant unheard contrary to Article 50 of the Constitution. 8. The Honourable Magistrate misconstrued the nature of proceedings process undertaken by the Appellant and the standard of proof required to be met under the Code of Regulations for Teachers, 2015 (CORT) and Employment Act while discharging its disciplinary mandate. 9. The Honourable Magistrate erred in law and fact by failing to recognize that the threshold for standard of proof in proceedings before an employer such as the Appellant is not similar and/or comparable to the standard of proof in criminal matters. 10. The Honourable Magistrate erred in law in arriving at a decision which was contrary to the evidence tendered by the Appellant, law, facts, Submissions and Authorities and binding judicial precedents tendered before court. 11. The Honourable Magistrate has not provided legal and/or reasoned justification on the awards made in favour of the Respondent. 12. The Honourable Magistrate erred in law in arriving at a decision which was contrary to the weight of the evidence, material facts, Submissions, J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 4 | 31

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Authorities and binding judicial precedents tendered by the Appellant and in so doing occasioned a miscarriage of justice. 13. The Honourable Magistrate grossly misinterpreted and misapplied the relevant law and in so doing awarded reliefs which are contrary to the provisions of the Employment Act and thus arrived at an erroneous conclusion of law. BACKGROUND TO THE APPEAL 14. The Respondent filed a suit against the Appellant vide statement of claim dated 11th October 2023 seeking the following orders: a. An order of declaration that the Claimant’s termination was unfair, unprocedural and unlawful. b. An order that the Claimant’s name be re-registered in the register for teachers. c. Twelve (12) months compensation for unfair and unlawful termination. d. An order compelling the Respondent to reinstate the Claimant back to his position. e. Costs of this claim. f. Interest on 3 & 5 above. (pages 5-8 of Appellant’s ROA dated 5th March 2026). J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 5 | 31

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14. The Respondent filed his list of witnesses dated 11th October 2023, a witness statement of the same date, and a list of documents dated 24th April 2024, together with the attached bundle of documents (pages 11-47 of ROA). The Respondent later filed a supplementary list of witnesses dated 29th February 2024; a witness statement of DENNIS MUNGUTI MUTETI filed on 4th March 2024; a witness statement of ROBERT MUTINDA filed on the same date; and a witness statement of ERICK MWENDWA filed on the same date (pages 48-51 of ROA). 15. The claim was opposed by the Appellant who entered appearance and filed a memorandum of defence and counterclaim dated 6 th November 2023. In the counterclaim, the Appellant sought the following orders: a) Special damages amounting to Kshs. 42,829.75 being public funds unduly paid to the Claimant from 21/04/2022 to 30/04/2022 and 12/09/2022 to 30/09/2022. b) Costs of the suit. (pages 55-62 of ROA). 16. To support their case, the Appellant also filed a list of documents dated 6 th November 2023 with the bundle of documents attached; a witness statement of JONES KIMUE dated 23rd February 2024; a witness statement of DOUGLAS MAINGA MAEKE of even date; and a witness statement of DAVID GUTU also of even date (pages 63-181 and 186-194 of ROA). J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 6 | 31

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17. To counter the Appellant’s case, the Respondent filed a statement of defence to counterclaim as well as a reply to defence, both dated (pages 182-185 of ROA). 18. The Claimant/Respondent’s case was heard on 27 th June 2024 AND 19th September 2024, with the Claimant testifying as PW1; DENNIS MUNGUTI MUTETI testifying as PW2; and ERICK MWENDWA MASIALA as PW3. All the witnesses adopted their filed witness statements as their evidence in chief, and PW1 produced his documents as exhibits. All three witnesses were cross-examined by counsel for the Appellant Mr. Ochieng’ (pages 4-9 of Supplementary ROA dated 13th May 2026). 19. The Appellant/Respondent’s case was heard on 6th November 2024 and 17th July 2025 with the Respondent’s witnesses, JONES KIMEU, DOUGLAS MAINGA, and DAVID GUTU testifying as DW1, DW2 and DW3 respectively. They each adopted their filed witness statements as their evidence in chief, while DW1 produced the Appellant/Respondent’s documents as exhibits. Each witness was cross-examined by counsel for the Claimant/Respondent Mr. Kithuka (pages 9-16 of Supplementary ROA). 20. The Court entered Judgment on 22 nd January 2026 allowing the Respondent’s case, plus costs of the suit and interest at Court rates, and dismissing the counterclaim in its entirety (judgment at pages 220-226 of ROA). J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 7 | 31

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DETERMINATION 21. The appeal was canvassed by way of written submissions. Both parties complied. Issues for determination 22. In their submissions dated 16th July 2026, the Appellant identified the following issues for determination: i. Whether the Appellant had valid reasons to dismiss the Respondent. ii. Whether there was procedural fairness in the initiation, conduct of disciplinary proceedings against the Respondent, and whether Flavian Kitolome conducted the investigations and doubled up and the member of the County Disciplinary Panel. iii. Whether the trial court had jurisdiction to reinstate the Respondent back to employment. 23. On his part, the Respondent identified the following issues in his submissions also dated 1st July 2026: i. Whether the Learned Magistrate acted without jurisdiction in granting the remedies complained of by the Appellant. ii. Whether the Learned Magistrate correctly found that the disciplinary process undertaken by the Appellant was procedurally unfair. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 8 | 31

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iii. Whether the Appellant established a valid and fair reason for dismissing the Respondent. iv. Whether the learned Magistrate properly dismissed the Appellant's counterclaim. v. Whether the remedies granted by the trial court warrant appellate interference. 24. The court, having perused the grounds of appeal, and considered the issues raised by the parties, established the issues for determination in the appeal to be as followsi. Whether the Appellant had valid reasons to dismiss the Respondent. ii. Whether there was procedural fairness in the initiation, conduct of disciplinary proceedings against the Respondent, and whether Flavian Kitolome conducted the investigations and doubled up and the member of the County Disciplinary Panel. iii. Whether the trial court had jurisdiction to reinstate the Respondent back to employment. iv. Whether the remedies granted by the trial court warrant appellate interference. 25. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 9 | 31

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reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” O‘My understanding of the law, is that an appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. In the cited case of Peters v Sunday Post [1958] EA 424 this court accepted the principle laid down by the House of Lords in Watt v Thomas [1947] 1 All ER 582. Sir O’Connor who spoke for the court on this aspect of the case said:“It is a strong thing for an appellate court to differ from the finding, on a question of fact of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 10 | 31

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26. n factual findings, it was held in Mbogua Kiruga v Mugecha Kiruga & another [1988] KECA 122 (KLR) Apaloo JA. Whether the Appellant had valid reasons to dismiss the Respondent. 27. The grounds of appeal under the issue were as followsa. The Honourable Magistrate misconstrued the nature of proceedings process undertaken by the Appellant and the standard of proof required to be met under the Code of Regulations for Teachers, 2015 (CORT) and Employment Act while discharging its disciplinary mandate. b. The Honourable Magistrate erred in law and fact by failing to recognize that the threshold for standard of proof in proceedings before an employer such as the Appellant is not similar and/or comparable to the standard of proof in criminal matters. 28. The court perused the cross-examination evidence of both parties. 29. The respondent at the trial testified and called 2 witnesses who were cross-examined by counsel for the appellant. 30. The claimant/respondent at cross-examination told the trial court as follows- J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 11 | 31

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‘I was the invigilator; the question papers were on the table. I was trained by KNEC; in case of any problem, I was to inform the supervisor. I was accused of -Exposing exam material before time -Failing to drop(sic) a supervision from giving a candidate a question paper. I was in charge of the question paper. The investigations were carried out by the County Education Officer, Chief Examiner. I was issued with a NTSC and I appeared. I responded to the interdiction letter and I reported to it. The interdiction letter is before court. The envelope was not opened before time. I have witnesses. I attended the hearing in person. I did not call witnesses. The respondent called witnesses. I did cross - examine them. I was given a chance to file my case. I was shaken and gave two various. There are students who resigned against.’ 31. PW2 Dennis Munguti Muteti at cross-examination, told the trial court that -– ‘The Kiswahili paper 2 was opened before paper 1 was over. The Claimant was the invigilator. The investigator came and questioned some students. They recorded statements. I was never called to testify. I got my results and I did not cheat. The claimant did not do anything.’ 32. PW3: I ERICK MWENDWA MASIALA testified as follows- J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 12 | 31

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‘I am a casual labourer. I did a statement. Adopted. I was a student at Ngungi Mixed Secondary School. My index no was 004. On 17/3/2022 we were doing Kiswahili paper 1, the principal entered the class and forced me to sign the folder. I know the claimant. He was an invigilator at the time. He was outside the class when I was forced to sign the paper. I did receive my results. Claimant did not participate in any irregularity.’ The court gathered he was the student alleged to have been given the paper by the principal but not called as a disciplinary process.’ On cross-examination, the witness testified as follows‘I cannot recall the number of candidates by then. The claimant was the invigilator. The photocopying machine was kept in the office. The principal was one Akanyumu. My index was number 004. There were 3 exam rooms. I was sitting at the corner. There were 3 invigilators and the claimant was in charge of us. Government officials came to the school. They recorded statements. I was never called to the commission to testify. Paper 2 was opened before time. Claimant did not do anything.’PW3 told the trial court that the claimant could not prevent the opening of the envelope, given where he was. 33. Conversely, the appellant called 3 witnesses who testified and were crossexamined by counsel for the respondent - The following was the evidence of DW1 (Jones Kimeu) at cross-examination – J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 13 | 31

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‘There was an image of a question paper that was circulated in WhatsApp platform. The initial investigation was carried out by our team. The image was detected by KNEC and the security team. We didn't get to know the exact phone number. There was no forensic analysis. The exam paper is placed in the exam room in the presence of students, principal, supervisor and invigilators. The supervisor opened the envelope and it was signed by the supervisor, principal, and one student. Many students were interviewed, and four recorded statements. It was necessary to record of the student who signed the envelope. He was better placed to do so. The initial I.O was David Gutu. He issued the interdiction letter to the claimant. An amended interdiction letter was issued. The principal had committed some irregularities going by the initial report. The paper has been exposed to the students. There were students who were found with mobile phones and the Principal is to blame. KNEC exams (sic)can Cancel the exams. The school received all the results and none was cancelled. The image was taken in the staff toilet. Mobile phones were confiscated from the (sic) by one of staff including the claimant.’ 34. DW2(Douglas Mainga) at cross-examination stated‘I was not involved in the initial investigation. We got statements had two students. We had two students at the (sic)who were candidates. I don't know which signed the envelope. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 14 | 31

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I was in the hearing at TSC hearing we did not involve a forensic expert. Index 004 signed the envelope. He was not invited to testify. He would have helped us in our decision. The claimant is to be blamed. The interdicting officer was part of the investigations which is an anomaly. There were irregularities but the students received their results.’ 35. DW3 (David Gutu) during cross-examination stated as follows‘We had a team that investigated the matter. I was the team leader. We are guided by the code of conduct. We interviewed the witnesses. There was an attempt of Malpractice. There was disclosure of the exam paper to the learners. The Principal takes the exam from the container and gave it to the supervisor. He had to show the learners before it is opened. The principal, supervisor and students sign the package. I did not see the folder was signed. We relied on statements. The sub-County Director was in charge of the container. We took random signatures. I am not aware that the student who resigned the package testified herein. We took statements for those who were in room. We issued interdiction letters. There was a gap (violation) where the investigating officer also signed the interdiction. The interviews were conducted in Mbooni East. The claimant was invited. The principal was examined and the decision was made that he be interdicted and suspended but was not dismissed. He participated in the mal practice. The School received the J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 15 | 31

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results for that paper. KNEC would make decision they can cancel the exam. I cannot talk about the payment made.’ 36. DW3 at re-examination stated‘The exam was opened before time. After the exam the scripts are corrected and the exam manager signs the envelope. We relied on statements when we investigated the Principal. The level of mal practice is different. We have a(sic-no) say on how KNEC deals. TSC does not interfere.’(entire proceedings were filed under supplementary record of appeal dated 13th May 2026. ) 37. The trial court’s decision was as follows‘I have carefully read the pleadings filed herein, evaluated the evidence adduced. The claim herein hinged on the events that occurred on 17th March 2022 at Ngungi Secondary School. What started as a normal exam day ended up in disarray? Kenya National Examination Council officials and multi-agency officials stormed the school over what they termed as leakage of an exam questionnaire, Kiswahili paper 102/2, which was uploaded on the WhatsApp platform. It is interesting that the particulars of the WhatsApp platform were not revealed or traceable. On the other hand, the claimant made serious allegation that the school's Principal appeared in J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 16 | 31

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the classroom where the envelope containing the questionnaire was and forced one of the candidate index number 4. Eric Mwendwa Musila to sign the envelope and took away one question paper. This evidence was not controverted. The Principal of the school presents as a crucial actor in the incident. He completely missing from the process undertaken by the investigation. One wonders whether this was by design or in advertence. It is also worth noting that he was not called as a witness to shade light on what transpired; was somebody shielding him? My answer is in the positive. The conduct of investigations is in sharp scrutiny herein. Statements were recorded from witnesses and eventually a disciplinary hearing was conducted. The averment that on Flavian Kitolome who conducted investigation was also a member of the County Disciplinary Panel. This was a clean violation of section 146(14) of the respondent which states; "An officer who undertakes or participates in an investigation of an offence shall neither preside nor sit as a member of the disciplinary panel determining the same" This provision is couched in mandatory terms by use of the word "Shall" and render the whole process fatally objective It would appear that the investigation had a premeditated mind and the claimant herein was used as a scape goal. My holding is fortified by the fact that the Principal of the School was left off the hook. Another interesting scenario is how the whole process was eventually concluded The examining body released the exam results for the school as if nothing even happened. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 17 | 31

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It is not explained how this decision was reached and what informed the same. To me the net effect of the name is that no offence was committed by the claimant. PW3 David Gutu was categorical in his testimony that it was an attempt of exam irregularities. This averment was repeated both in his examination in- Chief and cross examination. In the end I find and hold that the claimant was unfairly dismissed. In the case of Waltz Ogal Anino of Teachers Service Commission 2013 eKLR the court held. "For a termination of employment to pass the fairness test there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the determination while procedural fairness addresses the procedure adopted by the employee to effect the termination." Clearly the respondent did not comply with section 43 and 45 of the employment Act and failed the fairness test as set out in the above holding. On the end of find and hold that the claimant has proved his case as required by Law and the entered judgement in his favour and against the respondent in terms of prayers (1), (2), (3), (4), (5) and (6) as set out in the beginning of the judgment herein. The counter claim has not been proved and is dismissed with costs.’’ J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 18 | 31

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38. The court sitting on appeal on a factual decision is cautioned, having not heard or seen the witnesses. (Selle v Associated Motor Boat Co. supra). Further in Mbogua Kiruga v Mugecha Kiruga & another [1988] KECA 122 (KLR) Apaloo JA. ‘My understanding of the law, is that an appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. In the cited case of Peters v Sunday Post [1958] EA 424 this court accepted the principle laid down by the House of Lords in Watt v Thomas [1947] 1 All ER 582. Sir O’Connor who spoke for the court on this aspect of the case said:“It is a strong thing for an appellate court to differ from the finding, on a question of fact of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 39. The appellant relied on decision of Court of Appeal decision in Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR where the Court opined; J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 19 | 31

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"Under Section 43 of the Act, the onus is on the employer to prove the reason or reasons for the termination, failing which the termination shall be deemed to be unfair. The test is, however, a partly subjective one in that all an employer is required to prove are the reasons that he "genuinely believed to exist" causing him to terminate the employee's services," 40. In the instant case, the court, on perusal of the evidence of both parties before the trial court, found no basis to interfere with the decision of the trial court. The appellant was one of the parties in the examination process. It was evident and admitted by the respondent that it was the Principal of the school who took the paper and gave a student, as alleged. I say alleged as the student was not called at the investigation. The Principal was not dismissed. The investigating officer signed the interdiction letter contrary to the appellant’s own code as admitted by the appellant’s witnesses. The exam results were never cancelled by KNEC, which was also part of the team that came to investigate. I warn myself that the appellate jurisdiction should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. (Watt v Thomas [1947] 1 All ER 582. Sir Conner, supra). The decision of the trial court is supported by evidence of the parties. 41. The appellant, if it genuinely believed an offence had been committed would have dismissed the Principal from service. (Kenya Power & Lighting Company J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 20 | 31

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Limited v Aggrey Lukorito Wasike [2017] eKLR ) It acted discriminatorily by selecting one of the actors(the respondent ) in the process without a solid basis. The practice of the employer and how it treats other employees facing similar issues is a factor in the determination of unfair termination. I find no basis to interfere with the decision of the trial court. 42. On procedural process, the court upheld the finding of the trial court that-‘ The conduct of investigations is in sharp scrutiny herein. Statements were recorded from conducted. The witnesses and averment that eventually on a disciplinary Flavian Kitolome hearing who was conducted investigation was also a member of the County Disciplinary Panel. This was a clean violation of section 146(14) of the respondent which states; "An officer who undertakes or participates in an investigation of an offence shall neither preside nor sit as a member of the disciplinary panel determining the same" This provision is couched in mandatory terms by use of the word "Shall" and render the whole process fatally objective.’’ The violation of its own regulations was admitted by witnesses of the appellant before the trial court. This tainted the entire procedural process. Remedies 41. The appellant challenged the reinstatement order on the following grounds- J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 21 | 31

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i) The Honourable Magistrate erred in law and acted beyond his jurisdiction when he issued orders of reinstatement of the Respondent to employment after lapse of three (3) years from the date of dismissal contrary to the provisions of section 12 (3)(vii) of the Employment and Labour Relations Act, Cap 8E thereby arriving at an erroneous conclusion of law. ii) The Honourable Magistrate erred in law when he granted orders of reinstatement of the Respondent to employment without due regard and consideration of the factors set out in Section 49 (4) (b), (c), (d), (k) of the Employment Act, 2007. Appellant’s submissions 43. The appellant submitted that the Learned Magistrate erred in law and acted beyond his jurisdiction when he Issued orders of reinstatement of the Respondent to employment after lapse of three (3) years from the date of dismissal contrary to the provisions of section 12 (3)(vii) of the Employment and Labour Relations Act, Cap 8E thereby arriving at an erroneous conclusion of law. Additionally, the Learned Magistrate erred in Law when he granted orders of reinstatement of the Respondent to employment without due regard and consideration of the factors set out in Section 49 (4) (b), (c), (d), (k) of the Employment Act, 2007. That in determining the Respondent's case, the Appellant considered the Respondent's position as a teacher which position assumes the legal doctrine of Loco Parentis The Claimant owed the J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 22 | 31

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students a duty of care and ought to have lead as a good example, instead he decided to assist in exam malpractice. The Appellant submits that it has lost trust and confidence in the Respondent as an employee and has exercised its freedom to invoke the terms and conditions of the Respondent's service relating to termination. The Respondent's contract was procedurally terminated and he is therefore not entitled to reinstatement. The appellant urged this Honourable Court to rely on the provisions of Civil Suit No. 156 Of 1997 Joseph Mujibi Ouma V. National Cereals and Produce Board and two others where the High Court applied the decision of the Court of Appeal in Dalmas B. Ogoye V. KNTC in Civil Appeal No. 125 Of 1995 wherein the court held that: "It is a well-established fact that Courts have been reluctant to make orders for reinstatement because such relationships are purely contractual hence if an order is made in that direction, it would be like imposing a contract on another which is not the function of the Court.’ 44. The appellant further relied on the decision of the Court of Appeal in Dalmas B. Ogoye v K.N.T.C. Ltd [1996] eKLR where it held as follows: "Courts do not order reinstatement in such cases because such an order would be difficult to enforce. Beside, it would be plainly wrong to impose an employee who has fallen out of favour on a reluctant employer.’ J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 23 | 31

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45. The appellant further submitted that, In addition to the above, section 12(3) (vii) of the Employment and Labour Relations Court Act read together with Section 49 of the Employment Act, the Court has no jurisdiction to order reinstatement of an employee who has been dismissed for over three (3) years. At the time of delivery of the impugned judgment, the Respondent had been dismissed for over three (3) years and four months. The Court of Appeal in Civil Appeal No. 23 of 2017: Sotik Highlands Tea Estates Limited vs Kenya Plantation & Agricultural Workers Union (2017) EKLR. Stated that: The ordinary meaning of the language of section 12 of the Employment and Labour Relations Act is that the Labour Court is empowered to order reinstatement of a dismissed employee within three years of dismissal. Parliament, in its wisdom capped that period at three years and there is no provision or proviso qualifying that provision to say that time stops running or is interrupted by an action filed in court. The Respondent’s submissions 46. The Appellant challenges both the compensation awarded and the order of reinstatement. The Respondent submits that the remedies granted by the trial court flowed directly from the court's findings that the dismissal was procedurally unfair, substantively unjustified and unlawful. The award of compensation under section 49 of the Employment Act is a discretionary remedy. The learned Magistrate considered the circumstances of the case, the manner in which the disciplinary process was conducted and the J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 24 | 31

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consequences of the unlawful dismissal upon the Respondent before arriving at the award made. 47. The Appellant has not demonstrated that the learned Magistrate acted on wrong principles, considered irrelevant factors or failed to consider relevant factors in exercising that discretion. There is therefore no basis for appellate interference. As regards reinstatement, the Respondent maintains that the remedy was justified in the circumstances of this case. The trial court considered the nature of the Respondent's employment, the circumstances of the dismissal and the interests of justice before granting that remedy. 48. However, and without prejudice to the foregoing position, the Respondent submits that the issue of reinstatement is severable from the findings on liability. Consequently, even if this Honourable Court were persuaded that reinstatement was unavailable in the circumstances of this case, the findings on liability, unfair termination and compensation are independent and severable findings supported by the evidence on record and ought to be upheld. 4The challenge to reinstatement therefore cannot justify overturning the entire judgment of the trial court. The trial court granted all the orders sought, being compensation for unfair dismissal and compensation. The appellant challenged the reinstatement to be in violation of section 12(3) (vii) of the Employment and Labour Relations Court Act read together with Section 49 of the Employment Act; the Court has no jurisdiction to order reinstatement of an employee who has been dismissed for over three (3) J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 25 | 31

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years. At the time of delivery of the impugned judgment, the Respondent had been dismissed for over three (3) years and four months.’’ Decision 49. I find it difficult in accepting the position of the law as expounded by the appellant on remedy of reinstatement. termination take effect? The question is when did the The appellant communicated its decision of dismissal to the respondent vide letter dated 22nd September 2022. (page 162 of ROA). That is the document the appellant relied on. The respondent exercised his right of appeal, and the decision of the appellant was communicated to the respondent vide letter dated 10th May 2023, upholding the dismissal (page 177 of ROA). The Court of Appeal has held that the cause of action for termination only arises on conclusion, of the internal mechanism. The Court of Appeal in Kiige v National Hospital Insurance Fund [2026] KECA 309 (KLR) pronounced itself on the issue as follows‘We accept that as defined in Drummond Jackson, a cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint. 20.It is of course true that the letter communicating the decision to terminate the contract was dated 17 th September, 2007. While it may not be clear when it was received by the appellant, he responded to it on 27th September, 2007. Ordinarily, therefore, the cause of action would have arisen at least by 27 th September, 2007 when it was obvious that he was aware of the termination. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 26 | 31

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21.It may not be so here as the Code of Conduct under which the employee operated gave him a right of appeal against a decision of termination. Indeed, the letter of termination invited the appellant to utilise the right of appeal. In its preamble (sub-clause 14.1), the Code declares that it “constitutes an integral part of the TCS and must be read alongside them”. TCS is an abbreviation of ‘Terms and Conditions of Service’. The Code of Conduct was therefore part of the terms and conditions of service of the appellant and his contract of employment. As a corollary, the right of appeal was a right that was embedded in the contract of employment. Failure to pursue the right and to instead commence court proceedings directly would be failure to exhaust the internal disciplinary process available to the appellant under the contract of employment. This would be even more pronounced here because the employer had expressly invited the employee to exhaust his right of appeal. 22.To be deduced is that the termination communicated through the letter of 12th September, 2007 was tentative until the right to appeal was either waived or exhausted. Up to that point, there was no real grievance that could found a cause of action.’ 50. Applying the foregoing authority, I find the decision delivered 22nd January 2026 was within the three years of the final decision of the dismissal dated 10th July 2023. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 27 | 31

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51. On the remedies the applicable law is section 49 of the Employment Act to wit‘49. Remedies for wrongful dismissal and unfair termination (1)Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following— (a)the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service; (b)where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or (c)the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 28 | 31

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(2)Any payments made by the employer under this section shall be subject to statutory deductions. (3)Where in the opinion of a labour officer an employee's summary dismissal or termination of employment was unfair, the labour officer may recommend to the employer to— (a)reinstate the employee and treat the employee in all respects as if the employees employment had not been terminated; or (b)re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage.’’ 52. The trial court granted all the remedies above, as sought in the claim. The court finds the award was excessive. The court did not find any basis to set aside the order of reinstatement, having upheld the unfairness of the termination. The respondent was not accused of any conduct to betray the trust of the loco parentis principle. Having granted reinstatement, the further order of compensation was unjustified. On reinstatement, it is deemed that it was as if the employee never left the shop floor and ought to be paid all his accrued salary and benefits. It is onerous to then grant the said employee compensation. I find the compensation was in error of the law and unjustified and is set aside. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 29 | 31

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Disposition 53. The appeal is allowed partially by setting aside the award of compensation only . The jJudgment and Decree of the P.N. Gesora (CM) delivered on 22 nd January 2026 in Makueni CMELRC NO. E002 of 2023 is set aside and substituted as follows‘Judgment is entered for the claimant against the respondent as followsa. An Order is issued of declaration of that the claimant/s termination was unlawful and unfair. b. An Order is issued that the claimant name be re-registered in the register of teachers. c. An Order compelling the respondent to reinstate the claimant back to his position with no loss of benefits d. Costs of the claim with interest.’ 54. The appellant was partially successful. Each party to bear own costs in the appeal. 55. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 TH DAY OF SEPTEMBER 2026. J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 30 | 31

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Jemimah Keli, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Jusa/b Ochieng Respondent – Ms Kyalo h/b Ms Musau J U D G M E N T I N M A C H A K O S E L R C A N O . E 0 1 2 O F 2 0 2 6 P a g e 31 | 31

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