https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1087

Irangi v Teachers Service Commission (Civil Appeal E006 of 2021) [2026] KECA 1087 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1087 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E006 of 2021 JM Mativo, PM Gachoka & WK Korir, JJA May 29, 2026 Between Guvaha O. Irangi Appellant and The Teachers Service Commission Respondent (An appeal from the judgment of the Employment and Labour Relations Court at Eldoret (Abuodha, J.) dated 27th February 2020 in ELRC No. 249 of 2017) Judgment 1.This is a first appeal against the judgement of Abuodha, J. of the Employment and Labour Relations Court (ELRC) sitting at Eldoret. At the time material to this appeal, the appellant, Guvaha O. Irangi, was a Deputy Principal at St. Luke's Lumakanda Boys High School. He was an employee of the Teachers Service Commission, the respondent herein, for 22 years. On 31st July 2017, the appellant was dismissed from the respondent’s service and his name removed from the register of teachers on grounds of immoral behaviour, specifically, that he had a sexual relationship with a minor, C.O., a student then schooling at St. Francis Majengo Secondary School. 2.The trial court dismissed the appellant’s claim through which he was seeking a declaration that the termination was unlawful and unfair, reinstatement, payment of full salary from the date of interdiction, and other reliefs, finding that the respondent followed due process and that the allegations of immoral behaviour had been proved on a balance of probabilities. Dissatisfied, the appellant lodged the present appeal. The memorandum of appeal dated 24th November 2020 raised several grounds, which we condense as follows:i.The learned Judge erred in finding the termination lawful when no criminal charge was proved against the appellant;ii.The learned Judge erred in finding the termination procedurally lawful when the appellant was not invited and did not participate in the Board meetings;iii.The learned Judge erred by not referencing any law or case law as the basis for his reasoning, thereby arriving at a wrong decision;iv.The learned Judge erred in finding the process fair when it was based on a criminal offence that had been rejected by a court of law, with no medical determination to prove the alleged act. 3.Before the ELRC, the appellant lodged a Memorandum of Claim dated 12th September 2017. It was his case that he was a professional teacher of 22 years’ standing who was at the material time serving as the Deputy Principal of St. Luke's Lumakanda Boys High School until his interdiction vide the respondent’s letter dated 11th August 2016 on grounds that he had breached Clause 141(a)(i) of the Third Schedule to the Teachers Service Commission Act by engaging in immoral behaviour. The alleged immoral behaviour was on the basis that he had a love affair with one C.O., then a student at St. Francis Majengo Secondary School, and had sexual intercourse with her on diverse dates in his house within the school compound. 4.It was contended that the allegations were unfounded and malicious, driven by a colleague, T.S., the girl's guardian, who was also a teacher and deputy principal where the appellant worked. He stated that the matter was reported to the police, and he was charged in Eldoret Criminal Case No. 167 of 2016 with committing an indecent act with a child, but the matter was withdrawn by the Director of Public Prosecutions under section 87(a) of the Criminal Procedure Code. He further averred that he was never given a fair hearing before the respondent's disciplinary committee and that his efforts to have his case heard expeditiously were frustrated. The appellant deposed that when he attended a disciplinary hearing on 20th June 2017, his request to be represented by an advocate and to call witnesses was denied. He maintained that the respondent's decision to dismiss him was based on no evidence, violated the right to fair hearing protected by Article 50 of the Constitution, and contravened sections 41, 43, and 45 of the Employment Act, 2007. 5.The respondent filed a Memorandum of Defence dated 1st November 2017 admitting that the appellant was its employee but denied that the termination was unlawful. The respondent pleaded that on 5th July 2016, St. Luke's Lumakanda High School received a complaint from an organization known as the Ecumenical Centre for Justice and Peace that the appellant had molested C.O. An investigation was conducted, and the Board of Management of the school convened a meeting on 4th August 2016, which the appellant attended, was informed of the allegations, and put forward his defence. The Board of Management found that he had a case to answer and interdicted him with effect from 11th August 2016. On 23rd March 2017, a joint County Disciplinary Committee meeting was convened at Kakamega, involving both schools. The appellant was invited, but after appearing initially, he disappeared before the hearing commenced, and the meeting proceeded in his absence. 6.Later, on 20th June 2017, the Teachers Service Commission disciplinary panel heard the case, during which the complainant (C.O., RW1), her guardian (T.S., RW2), and the Teachers Service Commission County Director (Lameck Rasugu, RW3) testified. It was averred that the appellant, who was present, was given an opportunity to cross-examine the witnesses and to present his defence. After hearing the matter, the panel found him guilty of immoral behaviour, dismissed him, and ordered his name struck off the register of teachers. The respondent maintained that it acted within the law, accorded the appellant a fair hearing, and that its mandate extends to professional misconduct even where criminal proceedings are withdrawn. 7.When the appeal came up for hearing on 4th March 2026, both Mr. Ogutu, learned counsel for the appellant, and Ms. Ngere, learned counsel for the respondent, opted to entirely rely on their already filed submissions. 8.The appellant’s submissions were dated 21st February 2025 and filed by the law firm of Akenga Kimutai & Associates. Through the submissions, it was contended that the trial court erred in finding the termination lawful, as the charge of immoral behavior was never proved. Relying on the Supreme Court decision in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others [2014] eKLR to highlight the legal principle that he who alleges must prove, counsel argued that the respondent did not discharge its burden of proof. Additionally, counsel relied on section 19(1) of the Oaths and Statutory Declarations Act and the holding in Pius Arap Maina vs. Republic [2013] eKLR to urge that where the case rests entirely on the evidence of a minor, as was the position herein, such a case has no legal weight. Further, citing Kassim Ali vs. Republic [2006] eKLR, counsel urged that sexual offences require corroboration, which was absent as no medical evidence was tendered, and that the evidence of RW2 was mere hearsay. Stressing that the Director of Public Prosecutions had withdrawn the criminal case for being unsubstantiated, counsel submitted that there was therefore no valid reason for the termination of the appellant, hence the dismissal was unfair for not complying with section 43 of the Employment Act, which requires the employer to prove the reason or reasons for the termination. 9.Turning to the question of procedural fairness, counsel maintained that the appellant was denied a hearing in violation of Article 50 of the Constitution. He asserted that the appellant was not invited to the Board meetings and was denied the right to be represented by an advocate or to call witnesses. Consequently, counsel urged the Court to declare the termination unfair and to grant the remedies sought. In support of his prayer for reinstatement, counsel relied on Kenya University Staff Union & Another vs. Masinde Muliro University of Science and Technology [2018] eKLR, in which the Employment and Labour Relations Court ordered the re-engagement of an employee who was unlawfully retired before attaining the retirement age. He further relied on the decision of the Employment and Labour Relations Court in Republic vs. Kenya Airports Authority & another Ex parte Moses Echwa [2015] eKLR for the proposition that an employee whose contract is breached acquires a right to compensation and reinstatement. He therefore prayed that the appeal be allowed, the trial court’s judgment set aside, and the appellant reinstated to his employment with full salary from the date of interdiction. 10.For the respondent, learned counsel Ms. Ngere filed submissions dated 3rd March 2026. In answer to the appellant’s contention that the respondent erred in dismissing the appellant absent criminal proceedings, learned counsel argued that criminal proceedings are distinguishable from professional misconduct charges preferred by an employer. She asserted that the threshold in proceedings and decisions in a criminal court cannot be equated to that in a professional setup, as the misconduct charges against the appellant were anchored on the Teachers Service Commission Act and the Code of Regulations for Teachers, and not the Penal Code. Further, that the proceedings that led to the appellant’s dismissal were quasi- judicial in nature, limited to his professional culpability as an employee. In that regard, Judicial Service Commission vs. Gladys Boss Shollei & Another [2014] eKLR was cited for the holding that proceedings before professional bodies are designed to establish whether or not professional men and women have fallen below the standards expected of their professions. Counsel also referred to Teachers Service Commission vs. Joseph Wambugu Nderitu [2016] KECA 678 (KLR) for the principle that professional disciplinary proceedings are distinct from criminal proceedings even if they emanate from the same set of circumstances. 11.Concerning the appellant’s claim that the learned Judge erred in finding that the procedure was valid and lawful, counsel submitted that in determining the issue, the applicable principle is as was enunciated by the Court in CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona [2015] eKLR that in considering whether termination was fair or not, the court ought to examine whether the reasons for termination were valid and whether the procedure for dismissal was fair. Quoting Halsbury’s Laws of England, 4th Edition, Vol. 16 (1B) para. 642, counsel warned that in adjudicating the reasonableness of the employer’s conduct, an employment tribunal must not simply substitute its own views for those of the employer. Counsel then reiterated the disciplinary process to which the appellant was subjected and asserted that his dismissal was justified. 12.Finally, on the appellant’s contention that it was erroneous of the learned Judge to dismiss his claim without citing any case law, counsel submitted that it was sufficient for the Judge to give reasons for arriving at his decision, which he did. Further, that upon reassessing the evidence and facts, this Court will arrive at the inevitable conclusion that the learned Judge arrived at the correct decision. We were therefore urged to dismiss the appeal. 13.After careful consideration of the pleadings, the record of appeal, the submissions, and the relevant authorities, we flag the key issue for determination to be whether the appellant’s termination was substantially and procedurally fair as held by the trial Judge. 14.This being a first appeal, our duty as enshrined under Rule 31(1)(a) of the Court of Appeal Rules, 2022 was explained in the case of Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 15.One of the appellant’s contentions is that he was denied the right to a fair trial at the disciplinary proceedings. The right to fair administrative action and fair hearing is guaranteed under Articles 47 and 50 of the Constitution. In the employment context, section 41 of the Employment Act provides:“(1)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.(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” 16.The foregoing provisions have been illuminated in many decisions of the Court. For instance, in Isindu vs. Lavington Security Guards Ltd [2017] KECA 225 (KLR) it was held that:“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/ dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and hearing before termination. The Act also provides for most of the procedures to be followed, thus obviating reliance on the Evidence Act and the Civil Procedure Act/Rules.” 17.The respondent produced the proceedings of the Disciplinary Committee for 20th June 2017. Therein, it is clear that the appellant was present throughout the hearing, starting with the testimony of RW1 (C.O.), whose evidence though unsworn, was subjected to cross-examination. The appellant also had an opportunity to cross- examine RW2 and RW3, who gave sworn evidence. The appellant himself made a statement in his defence. He admitted that he knew the girl, that she used to weed his garden, and that she had visited his house. The appellant was thus allowed to present his case fully. 18.The Court in Patrick Opati vs. Kenya Revenue Authority, Kisumu CA No. 88 of 2010 (unreported) (as cited in Teachers Service Commission vs. Joseph Okoth Opiyo [2014] KECA 180 (KLR)), quoted with approval the English case of R v. Immigration Appeal Tribunal (Ex parte Jones) [1988] 1WLR 477 at p. 481, thus:“…the decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task, it is for them to decide how they will proceed, and there is no rule that fairness always requires an oral hearing.” 19.In Teachers Service Commission vs. Joseph Okoth Opiyo (supra), the Court went at length to appreciate the nature of proceedings before boards of management and the respondent’s quality assurance standards officers. The appellant therein had contended that he was denied an opportunity to call witnesses. The Court identified the procedure to be followed as the one laid down in the Teachers Service Commission Code of Regulations for Teachers. 20.In this case, the record shows that the appellant also appeared before the Board of Management on 4th August 2016, where he was given an opportunity to defend himself. The minutes of that meeting show that the appellant was present, that the allegations were put to him, and that he responded. The Board found that he had a case to answer and recommended interdiction. The appellant claimed that he did not attend the joint meeting of 23rd March 2017. However, the minutes of the said meeting and the evidence of RW3 show that the appellant did appear at the venue but disappeared just before the hearing commenced. An employee who declines to attend a disciplinary meeting after formal invitation, or conveniently disappears from the venue of the meeting, as the appellant did, cannot be allowed to later turn around and allege violation of the right to a fair hearing. The right to a fair hearing is not breached where a person has been given adequate notice and opportunity to present his side of the story. 21.On the whole, we are satisfied that the appellant was accorded procedural fairness. He was informed of the allegations, invited to meetings, heard in person, allowed to cross-examine witnesses, and given an opportunity to present his defence. The fact that he was not represented by an advocate does not, in these circumstances, render the process unfair, given the nature of the proceedings. 22.We now turn to the question of whether the termination was substantively fair. Sections 43 and 45 of the Employment Act require an employer to prove valid reason(s) for termination. The issue is whether the allegation of immoral behaviour, hinged on sexual intercourse, was proved against the appellant. We start by aligning ourselves with the pronunciation by the Court in Teachers Service Commission vs. Joseph Okoth Opiyo (supra) that, in matters of sexual immorality, it is not easy to get eyewitness evidence, as such acts are committed behind closed doors. Such cases are, in most cases, proved by circumstantial evidence demonstrating that there was an opportunity to engage in the conduct. 23.The testimony of RW1 (C.O.) was central to the allegation against the appellant. She testified that she started a relationship with the appellant in 2015 when she was in Form 2. She also testified that, in addition to sending her love messages, the appellant gave her gifts, including a mobile phone, textbooks, money, and food. Her testimony was that on several occasions, she visited the appellant’s house and they had sexual intercourse. She described one instance when the appellant came out of his bedroom with a towel around his waist, and they had sex. According to RW1, it was not until 1st July 2016, when she went to the appellant’s house to pick text books, that her cousin, RW2, found her leaving the appellant's house, and the matter exploded. 24.In his defence, the appellant did not deny that the girl visited his house. He admitted that she assisted in weeding his garden, claiming that their relationship was innocent and that the allegations were fabricated because of school succession politics. Notwithstanding the fact that the girl lived next door, the appellant offered no credible explanation as to why a 14-year-old girl from a neighbouring school would be weeding the Deputy Principal's garden, visiting his house repeatedly, and receiving gifts. 25.In the circumstances, we find no reason for departing from the finding of Aboudha, J. that:“… The girl was a 14-year-old form one student. What sort of friendship would exist between a whole Deputy Principal of a boy’s school and a neighbour’s female cousin in a different school? These oddities matched with RW1’s confession that she had a relationship of sexual nature with the claimant.” 26.We therefore agree with the conclusion by the trial court that the appellant had a relationship with the minor, a student at the time. That relationship is expressly forbidden by the Teachers Service Commission Code of Regulations for Teachers. 27.The appellant placed heavy reliance on the fact that the criminal case was withdrawn. However, it is well-established that the standard of proof in disciplinary proceedings is the balance of probabilities, not beyond reasonable doubt. The Teachers Service Commission was not bound by the outcome of the criminal proceedings. The withdrawal of the criminal trial did not result in the termination of the disciplinary proceedings. This distinction was aptly captured by the Court in Judicial Service Commission vs. Shollei & Another [2014] KECA 334 (KLR), thus:“The disciplinary process undertaken by the appellant was a quasi- judicial process as it involved the appellant in an adjudicatory function that required the appellant to ascertain facts and make a decision determining the respondent’s legal rights in accordance with the Constitution and the Judicial Service Act, both of which provided for fair hearing. The disciplinary proceedings were anchored on a contractual relationship, and the appellant was not empowered to provide penal sanctions…” 28.Therefore, the failure to adduce medical evidence, while it may be relevant in criminal proceedings, is not fatal in employment disputes where the complainant's direct testimony is credible and corroborated by circumstantial evidence. The appellant himself admitted the proximity and nature of the friendship, which the trial court rightly found suspicious and inconsistent with the conduct expected of a teacher and, more so, a deputy principal. In considering the evidence in totality, we are satisfied that the respondent proved, on a balance of probabilities, that the appellant engaged in immoral behaviour with a minor student. The appellant in this instance violated regulation 140(a) and 141(a)(i) of the Teachers Service Commission Code of Regulations for Teachers (immoral behavior). The reason for the termination was therefore valid and fair. 29.Another limb of the appeal relates to procedural fairness. The appellant contends that he was not given a fair hearing. The Constitution in Article 47 guarantees the right to fair administrative action. Section 41 of the Employment Act requires that, before termination on grounds of misconduct, the employer must explain the reasons to the employee, in a language the employee understands, and allow a representative to be present. 30.In this case, the evidence is clear that on 4th August 2016, there was a Board of Management meeting at school, which the appellant attended and was informed of the allegations, and presented his defence, and the Board resolved to interdict him. Then, on 23rd March 2017, there was a joint disciplinary meeting in Kakamega, where the record shows that the appellant appeared but “disappeared” before the hearing. Then, on 20th June 2017 at the Teachers Service Commission Disciplinary Committee hearing, the record indicates that the appellant was present, the charge was read to him, and he was given an opportunity to cross-examine the witnesses. 31.In Teachers Service Commission vs. Joseph Okoth Opiyo (supra), the Court outlined the disciplinary procedure as follows:“… As we have stated, other than not being interviewed by any school committee, and we have stated why that did not happen, we find that fair procedure according to the TSC Code of Conduct was followed. Before he was dismissed, the respondent was accorded a fair hearing before the Committee of the Quality Assurance & Standards Assessment Office and before the TSC Disciplinary Panel. In the circumstances, we find that there was no evidence to support the learned Judge’s conclusion that there was procedural impropriety in the disciplinary proceedings against the respondent. Consequently, we have no option but to interfere with the learned Judge’s decision.” 32.We find that the respondent complied with the requirements of procedural fairness. The appellant was notified, invited, and participated in all three tiers of the respondent’s committees. The trial court, therefore, properly found that the procedure was fair. 33.Finally, there was the appellant’s argument that the judgment of the trial court should be overturned because the learned Judge did not cite any decided case. On this, we only need to state that excellent judgments have been written, and will continue being written, without decided cases being cited. Whenever a dispute is placed before the court, the judge is expected to determine the facts of the case and apply the law to those facts before making the decision. If he gets the law right, and a Judge is expected to be a walking compendium of the law, then it cannot be said that the judgment should be overturned because no authority has been cited in support of the decision. Consequently, this particular ground of appeal must fail like the rest. 34.In summation, we find that the appellant was given a fair hearing by the respondent. The evidence of immoral conduct was proved on a balance of probabilities, and there is no basis upon which this Court can interfere with the trial court's findings. Consequently, this appeal lacks merit and is hereby dismissed in its entirety. 35.On the issue of costs, we find no reason for departing from the principle that costs follow the event, and as such, the respondent shall have the costs of the appeal from the respondent. 36.It is so ordered. DATED AND DELIVERED AT NAKURU THIS 29TH DAY OF MAY, 2026.J. MATIVO....................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar