https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2135

Abwao v Teachers Service Commission (Cause E018 of 2024) [2026] KEELRC 2135 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2135 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Cause E018 of 2024 MA Onyango, J June 18, 2026 Between Elisha Kiplagat Abwao Claimant and Teachers Service Commission Respondent Judgment 1.Vide a Memorandum of Claim dated 21st May 2024, the Claimant alleges that the Respondent unlawfully and unfairly dismissed him from employment and subsequently removed his name from the Register of Teachers. 2.The Claimant avers that he is a multi-skilled teacher with over nineteen (19) years of teaching experience, having been registered as a teacher by the Respondent on 20th September 2007 pursuant to section 7(1) of the Teachers Service Commission Act. 3.He avers that he was employed by the Respondent on permanent and pensionable terms and was posted to the then Nandi South District as a P1 teacher vide a letter dated 27th September 2007, the posting taking effect on 1st October 2007. 4.The Claimant avers that he diligently served the Respondent as a teacher at Kapsengere Primary School until 31st August 2016 when he was transferred to Soi Primary School and simultaneously promoted to the position of Deputy Head Teacher. 5.The Claimant further avers that he continued discharging his duties and responsibilities diligently and to the satisfaction of the Respondent and as per the Teachers Service Commission code of conduct in the said capacity until 31st August 2022 when he assumed the position of Head Teacher at Kapko Primary/Junior Secondary School following the retirement of Mr. Francis Kutwa. 6.The Claimant avers that on or about 4th May 2023, while at Kiboswa Market between 10.00 a.m. and 11.00 a.m., he received a telephone call from one Madam Ann Wambulwa alleging that he had sodomised a learner at the school. The Claimant states that despite making inquiries, no further particulars of the allegation were disclosed to him. 7.The Claimant further avers that on or about 10th May 2023, he was summoned by the Officer Commanding Station (OCS), Kapkerer Police Station, where he was informed of the allegation of sodomy and recorded a statement as part of the investigative process. 8.The Claimant avers that on or about 15th May 2023, he was served with a notice to show cause alleging that he had sodomised a Junior Secondary School learner, namely RM. He maintains that the allegations were and remain alien to him. 9.The Claimant further avers that on 11th July 2023, he was served with a letter of interdiction by the Respondent informing him that he had been relieved of his duties and responsibilities pending investigations and further communication. 10.The Claimant states that on 20th July 2023, he received from the Respondent a letter inviting him to attend a disciplinary hearing scheduled for 23rd August 2023, at the Respondent's County Director's Office, Nandi. 11.The Claimant avers that the said invitation failed to explain the nature and particulars of the allegations levelled against him and further failed to inform him of his right to be accompanied by a fellow employee or a shop floor union representative of his choice, contrary to the provisions of section 41 of the Employment Act, 2007. 12.The Claimant further avers that on 31st July 2023, he submitted a detailed response to the show cause letter in which he denied the allegations and attributed the complaint to workplace disagreements and hostility from colleagues who were uncomfortable with his appointment as Head Teacher. 13.The Claimant states that by a letter dated 30th August 2023, the Respondent informed him that following the disciplinary hearing, he had been found guilty of the allegations levelled against him and was consequently dismissed from service with effect from 23rd August 2023. He avers that the Respondent failed to furnish him with the evidence relied upon, including the investigation report and other documentation, thereby denying him an adequate opportunity to defend himself against the allegations. 14.The Claimant further avers that through the same letter dated 30th August 2023, the Respondent informed him that his name had been removed from the Register of Teachers. He contends that this decision was reached without affording him a fair hearing and had the effect of rendering him incapable of securing employment in the teaching profession, which requires registration by the Respondent and possession of a valid TSC registration number. 15.The Claimant avers that the Respondent wrongfully found him guilty of the alleged criminal offence of sodomy notwithstanding that criminal liability can only be determined by a court of competent jurisdiction. According to the Claimant, the Respondent's actions infringed upon his constitutional right to be presumed innocent until proven guilty. 16.The Claimant further avers that at all material times, the Respondent acted ultra vires its statutory mandate by purporting to make findings on his criminal liability. He contends that the power to determine criminal culpability is reserved exclusively for courts exercising criminal jurisdiction under the Penal Code and the Criminal Procedure Code. 17.Aggrieved by the decision to terminate his employment, the Claimant lodged an appeal in September 2023. He avers that in his appeal, he pointed out that investigations had absolved him of wrongdoing and that the Office of the Director of Public Prosecutions (ODPP), vide a letter dated 2nd June 2023, had declined to institute criminal charges due to lack of sufficient evidence. In particular, the Claimant states that the allegations made by the complainant had not been corroborated by the findings contained in the P3 Form generated following medical examination. 18.The Claimant further avers that vide a letter dated 18th January 2024, the Respondent invited him to attend a review disciplinary hearing. He contends that the invitation similarly failed to explain the nature of the allegations against him and failed to notify him of his right to be accompanied by a fellow employee or union representative of his choice, contrary to section 41 of the Employment Act and the principles of fair hearing. 19.The Claimant states that on 28th February 2024, the Respondent communicated its final decision dismissing his appeal and upholding the dismissal. He avers that the Respondent failed to accord him a fair hearing during the review process and did not provide reasoned findings addressing the evidence presented in support of his appeal. 20.The Claimant further avers that as a result of the Respondent's decision to dismiss him from employment and remove his name from the Register of Teachers, his prospects of securing alternative employment have been severely diminished, particularly because registration by the Respondent is a mandatory requirement for employment within the teaching profession. 21.The Claimant contends that the Respondent's decision to dismiss him was founded solely upon allegations of criminal conduct in respect of which he was neither prosecuted nor convicted. He avers that the Respondent's actions violated his constitutional right to a fair hearing and his right to be presumed innocent until proven guilty. 22.The Claimant further maintains that the Respondent acted unlawfully and beyond its mandate by purporting to find him guilty of the offence of sodomy, despite the fact that such determination falls within the exclusive jurisdiction of a court of competent jurisdiction in criminal proceedings. 23.The Claimant states that the Respondent failed to consider the findings of the investigative agencies and the decision of the ODPP declining to prosecute him for lack of sufficient evidence before arriving at its decision. 24.The Claimant further avers that the Respondent infringed section 41 of the Employment Act by failing to adequately explain the allegations against him and by failing to inform him of his right to be accompanied by a fellow employee or union representative during the disciplinary proceedings. 25.The Claimant contends that the Respondent violated his constitutional rights to fair labour practices, fair administrative action and a fair hearing by failing to provide him with adequate information and documentation necessary to enable him prepare a proper defence and by making findings that effectively amounted to a determination of criminal guilt. 26.The Claimant therefore sought the following reliefs:a.A declaration that the claimant’s interdiction, disciplinary proceedings and ultimate dismissal from employment and the subsequent removal of his name from the register of teachers was unprocedural, unfair and wrongful.b.A declaration that the claimant be forthwith reinstated as an employee of the Respondent and his name be reinstated in the register of teachers.c.In the alternative and without prejudice to the foregoing:i.An order be and is hereby issued for compensatory damages for breach of the Claimant's constitutional rights and freedoms specifically the right to fair labour practices under Article 41 of the Constitution of Kenya, 2010.ii.A declaration that the Claimant is entitled to full salary and benefits from the time of dismissal from service by the Respondent up to and including the time he would have retired from service as if the dismissal had not occurred.iii.An order that the Respondent prepare and present to the court for verification and adoption the total sum of salary and benefit due to the Claimant including as prayed in (ii) aboveiv.General damages for unfair termination of service at Kshs.77,347.00/- x 12 months = 928,164/-d.Costs of this suit hereine.Any other or further relief that this Honourable Court may deem fit and expedient to grant. 27.The Respondent filed its Memorandum of Response dated 31st January 2025 and averred that, in exercise of its mandate under section 47(2) of the Teachers Service Commission Act and section 5(1) of the Public Officer Ethics Act, it had promulgated the Code of Regulations for Teachers (CORT) and the Code of Conduct and Ethics (COCE). 28.The Respondent averred that the said Codes set out the standards of conduct governing the teaching profession and prescribe the procedures and sanctions applicable in cases of professional misconduct. In particular, it is contended that Part XI of the CORT outlines the procedure to be followed where allegations of professional misconduct are made against a teacher in public service. 29.The Respondent averred that during the period relevant to this suit, he was serving as the Acting Head Teacher and the terms and conditions governing the Claimant's employment were regulated by, inter alia, the Basic Education Act, No. 14 of 2013, the Teachers Service Commission Act, No. 20 of 2012, the CORT as promulgated by the Respondent, and various circulars issued by the Respondent from time to time. 30.The Respondent averred that it was therefore incumbent upon the Claimant to uphold and maintain the highest standards of professional conduct and ethics befitting his position as a teacher and, more particularly, as the head of an institution. 31.The Respondent averred that it received reports through its field officers and agents alleging that the Claimant had engaged in conduct amounting to professional misconduct, namely, that he had sodomised a pupil under his care. 32.It is the Respondent’s assertion that following receipt of the allegations, in accordance with its disciplinary mandate, it issued the Claimant with a Notice to Show Cause dated 15th May 2023. 33.The Respondent further averred that it undertook a comprehensive investigation into the allegations, which yielded disturbing findings. 34.The Respondent stated that, according to the statement recorded by the complainant, RM, the Claimant had sodomised him on two separate occasions in the month of March 2023. The complainant alleged that the Claimant would routinely summon him to his office under the pretext of arranging books, only to take him into an inner room where the alleged acts occurred. 35.The Respondent further averred that during the second incident, one Anne Ayieko Wambulwa, a teacher employed by the Respondent at the same institution, entered the office and became suspicious of the circumstances she encountered. According to the Respondent, Ms. Wambulwa later approached the complainant discreetly, whereupon he disclosed through a written note the acts allegedly committed by the Claimant. 36.The Respondent averred that in her statement, Ms. Wambulwa stated that upon entering the office she could not immediately locate the Claimant and called out for him. She alleged that the Claimant emerged approximately three minutes later from an inner room that had been closed. According to her statement, he appeared confused and sweaty, while the complainant exited shortly thereafter looking distressed and visibly unsettled. 37.The Respondent further averred that upon learning of the allegations from the complainant, Ms. Wambulwa promptly reported the matter to the complainant's parents on 3rd May 2023. The Respondent stated that she later confronted the Claimant with the contents of the note, to which he allegedly responded that he had people who could handle the matter. 38.The Respondent averred that during the preliminary investigations, statements were recorded from various witnesses, including the complainant and the Claimant and upon conclusion of the investigations, the investigation panel unanimously recommended the Claimant's interdiction in light of the findings made. 39.The Respondent stated that the Claimant was thereafter interdicted pursuant to Regulation 146(2)(b) of the Code of Regulations for Teachers. According to the Respondent, the interdiction letter informed the Claimant of the allegations against him, his right to be heard in person by the Commission, his right to present evidence in his defence and his right to submit a written response within (21) days. 40.The Respondent averred that in response thereto, the Claimant submitted a defence statement dated 31st July 2023 in which he generally denied the allegations levelled against him. 41.It is the Respondent’s case that following the interdiction, the Respondent issued a Notice of Hearing dated 20th July 2023 requiring the Claimant to appear before a disciplinary panel on 23rd August 2023 at the Respondent's County Offices in Nandi pursuant to Regulation 153(d) of the CORT. 42.The Respondent further averred that, in addition to summoning the Claimant, it also summoned five witnesses to testify at the disciplinary hearing. 43.According to the Respondent, the Claimant was duly notified of his right to present a comprehensive defence, adduce evidence, call witnesses and submit written representations in accordance with Article 50 of the Constitution. 44.The Respondent denied the Claimant's assertions that the disciplinary process was unfair and averred that he was subjected to a comprehensive disciplinary hearing during which all procedural safeguards were observed. 45.The Respondent further averred that the Claimant was afforded adequate opportunity to cross-examine all witnesses who testified against him, including the complainant, the complainant's parents, the teacher who reported the matter and the Respondent's investigation officers. 46.Consequently, the Respondent maintained that any allegation that the process was unfair or procedurally flawed is unfounded and intended only to cast the disciplinary proceedings in a negative light. 47.The Respondent further averred that at no point during the disciplinary proceedings did the Claimant object to the process or challenge the manner in which the hearing was conducted. 48.The Respondent stated that upon a thorough evaluation of the evidence presented before the disciplinary panel, including witness statements, the testimony of the complainant and the medical evidence tendered, the panel made, inter alia, the following findings: -a.The complainant affirmed and adopted his statement as a true and accurate account of the events complained of.b.The Claimant confirmed the existence of an office under his use which contained an inner room designated for storage of books and other school materials, the said room being fitted with a separate door capable of being secured.c.The Claimant failed to substantiate his assertion that the allegations against him had been fabricated by Ms. Anne Ayieko Wambulwa, whom he alleged was interested in taking over his position.d.The panel found that Ms. Wambulwa neither possessed the requisite grade nor authority to assume the position allegedly coveted, noting that transfers and promotions are exclusively within the mandate of the Respondent.e.The Claimant confirmed that he had been summoned by the Officer Commanding Station (OCS), Kapkerer Police Station, to record a statement regarding allegations that he had sodomised the complainant.f.The Claimant admitted having appeared before an investigative panel on 13th June 2023 where he was afforded an opportunity to present his defence.g.The panel was unable to identify any credible motive that would have prompted Ms. Wambulwa, the complainant or the complainant's mother to fabricate allegations against the Claimant.h.The complainant stated that the Claimant would regularly summon him to his office and initially referred to him as "son" before subsequently referring to him as "my lover" prior to the alleged incidents.i.The complainant further alleged that the Claimant provided him with foodstuffs, paid examination levies on his behalf, purchased a school tie for him and occasionally gave him money, which acts were allegedly intended to conceal the misconduct. According to the panel, this evidence was not effectively rebutted by the Claimant.j.The complainant maintained that his disclosure was made voluntarily and without coercion from any person. He initially communicated the allegations through a written note to Ms. Wambulwa before subsequently informing his parents.k.Ms. Wambulwa denied fabricating the allegations against the Claimant and stated that she had no personal differences or animosity towards him.l.The complainant's parents testified that upon learning of the allegations, they questioned their son, who confirmed that the Claimant had sodomised him on two separate occasions.m.The panel further noted evidence that the Claimant had appointed the complainant as a timekeeper and regularly provided him with money. It was also alleged that the complainant's academic performance declined during the relevant period, a matter which the panel observed was not disputed by the Claimant.n.The panel found that the testimonies of the witnesses were consistent and mutually corroborative and that the Claimant had failed to adequately rebut the evidence adduced against him. 49.In light of the foregoing findings, the Respondent averred that it was satisfied that the allegations against the Claimant had been established. According to the Respondent, the evidence demonstrated that the Claimant maintained an unusually close relationship with the complainant, thereby providing both the opportunity and circumstances under which the alleged acts could have occurred. 50.Consequently, the disciplinary panel found the Claimant culpable of the allegations levelled against him and resolved that he be dismissed from service. The Respondent averred that the decision was communicated to the Claimant vide a dismissal letter dated 30th August 2023, which set out the reasons for the dismissal and informed him of his right of appeal. 51.The Respondent further averred that the Claimant subsequently exercised his right of appeal pursuant to Regulation 156(4) of the Code of Regulations for Teachers. 52.The Respondent stated that the Claimant was invited to attend the hearing of his review case vide a letter dated 18th January 2024 and a review hearing was thereafter convened on 23rd February 2024. 53.According to the Respondent, upon reconsideration of the matter, the Review Committee upheld the decision of the disciplinary panel, thereby affirming both the dismissal of the Claimant from service and the removal of his name from the Register of Teachers. 54.The Respondent therefore maintained that by subjecting the Claimant to the foregoing disciplinary and review processes, it fully complied with the requirements of Article 50 of the Constitution and accorded the Claimant a fair hearing. It consequently denied the Claimant's allegations of procedural impropriety and unfairness. 55.The Respondent further averred that the decision to dismiss the Claimant was founded on both substantive and procedural grounds and was arrived at in accordance with the applicable statutory and regulatory framework governing the teaching profession. 56.In the end, the Respondent prayed for the dismissal of the Claimant's suit with costs, contending that the same is devoid of merit. The evidence 57.At the hearing of the claim, the Claimant testified on his own behalf and called one Emily Chepsoo Maina, who testified as CW2. The Respondent, in support of its case, called Anne Ayieko Wambulwa, Wilfred Musigisi and Catherine Morogo as witnesses. 58.The Claimant adopted his witness statement dated 21st May 2024 as his evidence in chief and relied on the documents he filed in court in support of his case. He testified that he was dismissed from employment by the Respondent on allegation that he sodomised a student by the name RM who was 16 years at the time. The Claimant termed the allegations as false and averred that the matter was reported to the police but charges were not preferred against him.He maintained during the disciplinary hearing, the Respondent did not allow him to call witnesses. It was his testimony that the Director of public prosecution found that the medical examination did not show any sign that the minor was molested. He therefore urged the court to reinstate him. 59.On cross-examination, the Claimant testified that he received the interdiction letter on 11th July 2023 and was required to submit his defence within fourteen (14) days. He further stated that he was subsequently invited to attend a disciplinary hearing scheduled for 23rd August 2023 vide a letter dated 20th July 2023.The Claimant confirmed that he attended the disciplinary hearing and that the complainant was present during the proceedings. He testified that he was only permitted to ask the complainant one question. He further stated that although he had several witnesses, only one of them appeared at the hearing. He testified that following the hearing, he was notified of the Respondent's decision and that since his interdiction, he has not rendered any services to the Respondent. 60.Upon re-examination, the Claimant testified that although he had initially been informed that he would only be allowed to ask one question, he was permitted to ask additional questions during the disciplinary proceedings. He further stated that, apart from questioning the complainant, he also put questions to the other witnesses who testified. The Claimant maintained that the evidence given by the complainant was untruthful. 61.Emily Chepsoo Maina testified as CW2. She introduced herself as a teacher who had worked with the Claimant at Kapko Primary School. She adopted her witness statement dated 7th October 2025 as her evidence in chief. 62.CW2 testified that on the material dates, she was present at the school and did not hear of any incident involving the abuse of the student. She stated that the allegations relating to the period between 23rd March 2023 and 25th April 2023 were untrue and would have been brought to the attention of other teachers had they occurred. She further testified that the Claimant had substantial administrative responsibilities and was also actively engaged in teaching duties during the said period. 63.CW2 further testified that she had known the Claimant for a long time and considered him to be a person of good moral character and a family man. 64.On cross-examination, CW2 testified that at the material time she was serving as the Acting Senior teacher sitting at the administration block and that there were two offices, one being adjacent to the Head Teacher's office and the other being the Deputy Head Teacher's office. She testified that although the Claimant was the Deputy Head Teacher, he was using the Head Teacher's office at the time. She further stated that the office was located within the same block as the classrooms. 65.CW2 further testified that the office comprised two rooms, the second room having a separate door. She stated that there were occasions when the Claimant would be alone in the office. 66.She also testified that she attended the disciplinary hearing as a witness for the Claimant. 67.Upon re-examination, CW2 testified that she was present at the school between 23rd March 2023 and April 2023 and did not observe any unusual or inappropriate conduct involving the Claimant. 68.For the Respondent, Anne Ayieko Wambulwa testified as RW1 and adopted her witness statement recorded on 9th September 2025 as her evidence in chief. She also relied on the documents filed by the Respondent in the list of Documents dated 31st January 2025. 69.On cross-examination, RW1 testified that she received a letter from RM. She stated that on 25th April 2023, she was in the staff room together with three other teachers and a cook when the student approached her and handed her the letter. According to RW1, she subsequently shared the contents of the letter with her sister, who was at her workplace, her uncle and one Madam Dorcus. She further stated that she notified the student's parents of the contents of the letter, following which the parents reported the matter to the police. 70.RW1 testified that the letter contained allegations that the Claimant had sodomised the student. She stated that she was in charge of Year 7, although she was not the class teacher. She also testified that she was responsible for collecting money from parents for meals and that the Claimant had stopped her from collecting welfare contributions from parents. RW1 further testified that she received the letter during holiday tuition and subsequently handed it over to the Head Teacher when schools reopened. She asserted that she did not personally witness any act of sodomy involving the Claimant and the student. 71.RW2 was Wilfred Mosigisi, the Respondent’s sub-county director. He adopted his witness statement recorded on 9th September 2025 as his evidence in chief. 72.On cross-examination, RW2 testified that he received instructions to conduct investigations into the allegations sometime in March or April 2023. He stated that the investigations were carried out and culminated in an investigation report dated 13th June 2023. He further testified that the Claimant was notified of the intended investigations and that an investigation report was subsequently prepared. 73.RW2 stated that RW1 was one of the key witnesses during the investigations and that all relevant witnesses were interviewed. He testified that the Respondent relied on the evidence provided by RW1 as well as that of the complainant.RW2 stated that the complainant was also interviewed and his account was captured in the investigation report. 74.He further testified that the complainant stated that on 25th April 2023 he had been in the Claimant's office and that this account was corroborated by RW1. RW2 contended that the Respondent relied on the information gathered during the investigations. He further testified that RW1 reported having witnessed circumstances she considered compromising and stated that the Claimant emerged from the office while zipping up his trousers. According to RW2, the Respondent relied on the evidence of both RW1 and the complainant in arriving at its conclusions. 75.RW2 further testified that the other teachers and members of staff were not interviewed as there was no evidence linking them to the allegations under investigation. He also stated that one student reported that he had been sent by the Claimant to call the complainant to the office. 76.It was RW2's evidence that, based on the investigation report and the statements recorded, the Respondent believed that an inappropriate act had occurred. He further stated that the Teachers Service Commission does not require a medical report for purposes of its disciplinary proceedings, such reports being primarily within the purview of the police investigations. He testified that based on the material available to the Respondent, the Claimant was subsequently interdicted for immoral behaviour. 77.Catherine Morogo the Respondent's Deputy Director in charge of Discipline testified as RW3.She adopted her witness statement dated 9th September 2025 as her evidence-in-chief. 78.On cross-examination, RW3 testified that she sat at the apex level of the appeal process in the matter. She stated that the Respondent received the investigation report from the Sub-County Director. She further testified that during the disciplinary proceedings, she did not see any medical report relating to the complainant. According to RW3, although the matter had been reported to the police, the Respondent did not pursue the criminal aspect of the case as it was concerned with the professional misconduct allegations against the Claimant. 79.RW3 testified that the Respondent's decision was confined to the professional conduct of the Claimant and that the legal department was responsible for following up on the criminal proceedings. She further stated that the Respondent treats allegations of misconduct seriously and bases its decisions on the facts established through investigations. According to her, the Respondent first seeks to ascertain whether the alleged conduct occurred and does not act on mere allegations. She maintained that disciplinary action is only taken after comprehensive investigations have been conducted. 80.When referred to the interdiction letter and the subsequent dismissal letter, RW3 testified that the same were issued during the disciplinary process. She further stated that the dismissal letter informed the Claimant of his right of appeal to the Appeal Tribunal. RW3 confirmed that although she sat during the disciplinary hearing, she did not participate in the determination of the Claimant's appeal. 81.Upon re-examination, RW3 maintained that the disciplinary panel did not consider the medical report as its mandate was confined to the professional aspects of the matter, while the criminal investigations were left to the relevant investigative agencies and the legal department. She testified that the panel relied on circumstantial evidence in arriving at its decision. According to RW3, the investigators initially considered the possibility that the allegations had been fabricated, but upon further investigations concluded that an incident had occurred in the Head Teacher's office. She further testified that the issue before the disciplinary committee concerned professional misconduct, namely allegations that the Claimant had engaged in immoral conduct involving a pupil. 82.At the close of the Respondent's case, the parties were directed to file and exchange written submissions. The Claimant's submissions are dated 30th April 2026, while the Respondent's submissions are dated 11th May 2026.I have carefully considered the rival submissions together with the authorities cited. In essence, the submissions largely reiterate the parties' respective pleadings and evidence on record and as such, I need not reproduce them in detail. Analysis and Determination 83.From the pleadings on record, the evidence of the parties and the submissions filed, the issues that arise for determination in this case are as follows: -i.Whether the termination of the Claimant’s employment was justifiedii.Whether the procedure followed was in accordance with the Employment Actiii.Whether the reliefs sought are merited Whether the termination of the Claimant’s employment was justified 84.Section 43 of the Employment Act provides that in a claim arising out of termination of contract of employment the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so the termination shall be deemed to be unfair within the meaning of section 45(2) of the Act. Subsection 43(2) further provides that the reasons must be those that the employer genuinely believes to exist at the time of termination. 85.The Claimant was dismissed and subsequently deregistered from the register of teachers on allegations that he had sodomised a learner, RM a 16 year old student. The Respondent maintained that the dismissal was founded on credible evidence gathered during its investigations and disciplinary proceedings. It contends that the decision was not based on the outcome of any criminal process but on its independent findings regarding the Claimant's professional conduct as a teacher and school administrator. The Respondent further asserts that the evidence presented before the disciplinary panel established, on a balance of probabilities, that the Claimant had engaged in conduct amounting to gross professional misconduct. 86.The Claimant on his part, contends that his dismissal was unjustified as the allegations of sodomy levelled against him were false, unsubstantiated and were never subjected to criminal prosecution. He maintains that the Office of the Director of Public Prosecutions declined to institute criminal proceedings owing to insufficient evidence and that the medical examination conducted on the complainant did not reveal any evidence of sexual assault. According to the Claimant, the Respondent therefore lacked a valid basis upon which to conclude that he had engaged in the alleged misconduct. 87.It is trite that an employer is not required to prove misconduct beyond reasonable doubt as would be required in criminal proceedings. Under sections 43 and 45 of the Employment Act, the employer is only required to demonstrate that it genuinely believed, on reasonable grounds and following proper investigations, that the employee had committed the misconduct complained of. The test is therefore whether there existed a valid and fair reason which the employer honestly believed to exist at the time the decision to terminate employment was made. 88.I have considered the material that was placed before the Respondent during the disciplinary process. The record shows that the allegations against the Claimant originated from the complainant, RM, who alleged that the Claimant had sexually abused him on two separate occasions. The complainant's account was subsequently reported to RW1, Anne Ayieko Wambulwa, through a written note. RW1 testified that she became suspicious after encountering circumstances she considered unusual within the Claimant's office and thereafter received the written disclosure from the complainant. The matter was subsequently reported to the complainant's parents and investigations commenced. 89.The evidence further demonstrates that the Respondent conducted investigations as evidenced by the investigation report where statements were recorded from RW1, the complainant and the complainant’s mother. At the disciplinary committee hearing held on 23rd August 2023, the complainant, his parents, RW1 and other witnesses testified. The disciplinary panel found the witnesses to be credible and their accounts mutually corroborative. The panel further found that the Claimant had failed to establish any plausible motive on the part of the complainant, his parents or RW1 to falsely implicate him. 90.I am mindful of the Claimant's contention that no criminal charges were preferred against him and that the medical evidence did not support the allegations. However, the absence of criminal charges or a criminal conviction does not, of itself, preclude an employer from taking disciplinary action where the facts disclosed before it establish misconduct on the applicable civil standard of proof. Disciplinary proceedings and criminal proceedings serve different purposes, are governed by different standards of proof and may proceed independently of one another. 91.In the case of British Leyland UK Ltd v Swift (1981) IRLR 91 cited with approval in the case of Joseph Mwaniki Nganga v United Millers Limited [2022] eKLR Lord Denning described the test of reasonableness in the following words: -“The correct test is; was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered in all these cases that there is a band of reasonableness, within which an employer might reasonably take one view; another quite reasonably takes a different view. One would quite reasonably dismiss the man. The other quite reasonably keeps him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him.” 92.In the instant case, the Respondent's decision was not founded solely on the existence of a criminal complaint but on the evidence presented during its internal investigations and disciplinary proceedings. Although the medical evidence did not reveal signs of sexual assault and the ODPP declined to prosecute, the Respondent was entitled to evaluate the evidence before it and reach its own conclusion regarding the Claimant's suitability to continue serving as a teacher entrusted with the care of learners. 93.Accordingly, the Court is satisfied that the Respondent had material before it which established misconduct on the part of the Claimant and forming a reasonable basis for disciplinary action. The court further finds that the Respondent proved on a balance of probabilities that the Respondent was guilty of the misconduct that he was charged with, based on the evidence before its disciplinary panel. The Court therefore finds that the Respondent had a valid and fair reason, within the meaning of sections 43 and 45 of the Employment Act, to commence and sustain disciplinary proceedings against the Claimant. Whether the procedure followed was in accordance with the Employment Act 94.On the second issue regarding procedural fairness, Section 41 of the Employment Act provides: -“Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.” 95.The Claimant averred in his claim that due process was not followed in the termination of his employment. In particular, he asserts that the notices inviting him to the disciplinary and review hearings did not adequately inform him of his right to be accompanied by a fellow employee or union representative and that he was denied a fair opportunity to present his defence. The Respondent, on the other hand, maintains that the Claimant was accorded a fair hearing and that the disciplinary process was conducted in accordance with the applicable statutory and regulatory framework. 96.There is no dispute that the Claimant was issued with a Notice to Show Cause dated 15th May 2023 setting out the allegations against him and requiring him to respond thereto. The Claimant duly responded vide his letter dated 31st July 2023 in which he denied the allegations. Thereafter, he was served with an interdiction letter and subsequently invited to attend a disciplinary hearing scheduled for 23rd August 2023. 97.The Claimant admitted during cross-examination that he attended the disciplinary hearing and participated in the proceedings. He further confirmed that the complainant and other witnesses testified in his presence and that he was afforded an opportunity to question them. Although he initially stated that he had only been permitted to ask one question, he clarified during re-examination that he was in fact allowed to ask additional questions and to question other witnesses who testified before the panel. 98.The Claimant further acknowledged that one of his witnesses, a colleague, attended the disciplinary hearing and testified on his behalf. Indeed, CW2 confirmed that she appeared before the disciplinary panel as the Claimant's witness and was given an opportunity to testify. The record therefore demonstrates that the Claimant was afforded an opportunity to present his defence, challenge the evidence presented against him and call witnesses in support of his case. 99.From the record, it is also clear that following the decision to dismiss him, the Claimant exercised his right of appeal which appeal was heard and determined before the dismissal decision was upheld. 100.In the circumstances, I am satisfied that the Claimant was notified of the allegations against him, afforded an opportunity to respond thereto, permitted to participate in the disciplinary proceedings, allowed to question witnesses and call evidence in his defence, and granted an opportunity to appeal against the decision. The Court therefore finds that the Respondent substantially complied with the requirements of section 41 of the Employment Act and the rules of natural justice. Whether the reliefs sought are merited? 101.Having found that the Respondent had a valid and fair reason to terminate the Claimant's employment and that the disciplinary process substantially complied with the requirements of procedural fairness, it follows that the Claimant's dismissal was neither unfair nor unlawful within the meaning of sections 43 and 45 of the Employment Act. 102.Consequently, the Claimant is not entitled to the declarations sought that his interdiction, disciplinary proceedings, dismissal from service and removal from the Register of Teachers were unprocedural, unfair or wrongful. 103.Similarly, the prayer for reinstatement cannot issue. Reinstatement is a discretionary remedy available only where the Court finds that a termination was unlawful or unfair and where the circumstances of the case justify the employee's return to employment. Having found that the Respondent acted within its mandate and in accordance with the law, there is no basis upon which the Court can order the Claimant's reinstatement or the restoration of his name to the Register of Teachers. 104.The alternative claims for compensation for unfair termination, payment of salary and benefits from the date of dismissal to the date of retirement, general damages and damages for alleged violation of constitutional rights are equally untenable. The Court has not found any violation of the Claimant's constitutional or statutory rights that would warrant the award of damages. Moreover, the claims for salary and benefits up to the age of retirement amount to a claim for anticipatory earnings, which is not ordinarily recoverable in employment disputes. 105.In the circumstances, I find that the Claimant has failed to establish entitlement to any of the reliefs sought in the Memorandum of Claim. 106.Accordingly, the claim is hereby dismissed. Given the nature of the dispute and the employment relationship that existed between the parties, each party shall bear its own costs. DATED, SIGNED AND DELIVERED ON THIS 18TH DAY OF JUNE, 2026MAUREEN ONYANGOJUDGE