Thuo v Teachers Service Commission (Civil Appeal E089 of 2022) [2026] KECA 1487 (KLR) (24 July 2026) (Judgment)

Thuo v Teachers Service Commission (Civil Appeal E089 of 2022) [2026] KECA 1487 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1487 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E089 of 2022 AK Murgor, J Mohammed & GW Ngenye-Macharia, JJA July 24, 2026 Between Harun Kibui Thuo Appellant and Teachers Service Commission Respondent (Being an appeal against judgement of the Employment and Labour Relations Court of Kenya at Mombasa (B. Ongaya J.) dated 18th March, 2022 In ELRC Cause No. 39 of 2020) Judgment Introduction 1.Harun Kibui Thuo (the appellant), being dissatisfied with the judgment and decree of the Employment and Labour Relations Court (ELRC) at Mombasa (B. Ongaya J.) dated 18th March, 2022 in ELRC Cause No. 39 of 2020, hereby appeals against the entire decision.Teachers Service Commission is the respondent herein. 2.The appellant instituted proceedings before the ELRC seeking judgment against the respondent together with the following reliefs:a.A declaration that the actions of the claimant leading to his dismissal did not amount to negligence of duty within the meaning of Regulation 3 and 140 of the Code of Regulations as read together with Clause (b)(i) of the Third Schedule of the Teachers Service Commission Act;b.A declaration that the claimant’s dismissal from employment was unfair, unlawful and wrongful;c.An order for reinstatement to service as a headteacher with full salary, benefits, and privileges;d.Payment of all withheld salaries and benefits from 28th June, 2019 until the date of judgment;e.General damages equivalent to twelve (12) months’ gross salary for wrongful dismissal; andf.Costs of the suit together with interest thereon. 3.The claim was premised on the grounds that the appellant was employed by the respondent as a teacher in the year 1991 and was subsequently promoted to the position of headteacher in 1998, which position he held until his dismissal on 28th June, 2019. The appellant averred that he was dismissed from service on allegations of negligence of duty arising from an alleged failure to report an incident of sexual abuse involving a pupil at the school where he served as headteacher. 4.The appellant stated that on 22nd April 2018, during the school holidays, he received a telephone call from a teacher informing him of allegations of sexual misconduct involving a pupil (MM), and a teacher, Mr. Juma, at the school. The appellant stated that he summoned the pupil, her mother, and Mr. Juma to attend a meeting on 25th April, 2018, which meeting was attended in the presence of the Deputy Headteacher, Ms. Sabatia. According to the appellant, the purpose of the meeting was to record the alleged incident by way of a written a report in compliance with Regulation 145(1) and (2) of the respondent’s Code of Regulations. 5.The appellant contended that during the meeting, the pupil (MM) and her mother denied the allegations of sexual abuse and dismissed them as false. Consequently, the appellant directed Ms. Sabatia to record the proceedings and minutes pending further investigations. The appellant further stated that thereafter he attended a training organized by the respondent on 26th April 2018 and subsequently received a transfer letter assigning him to another school with effect from 30th April, 2018. 6.The appellant averred that he later received a letter to show cause accusing him of professional misconduct for allegedly failing to report the case of sexual abuse involving the pupil. It was the appellant’s case that he could not report the matter to higher authorities in the absence of concrete evidence and was reluctant to act on hearsay allegations. He further stated that he was unable to conclude the matter owing to his transfer to another school. 7.The appellant was thereafter interdicted and subsequently subjected to disciplinary proceedings culminating in his dismissal from service. The appellant maintained that he acted diligently and within the limits of his authority and capacity at the material time, and that the respondent’s decision to dismiss him from service was unfair, unlawful, and unjustified. 8.In its Statement of Defence, the respondent denied the appellant’s claim and maintained that the appellant was dismissed from service on account of negligence of duty in his capacity as headteacher, arising from his failure to report to the relevant authorities an incident of alleged sexual abuse involving a pupil at the school. 9.The respondent averred that its County Director for Taita Taveta County, received information through social media regarding alleged sexual abuse perpetrated by a teacher against a pupil at the appellant’s school. Following investigations, it was allegedly established that the incident had been reported to the appellant via a telephone call from one of the teachers at the school. Further, that the accused teacher, Mr. Juma, attended a meeting together with the appellant, as well as with the pupil and her mother, during which the accused teacher allegedly apologized and the matter was thereafter treated as concluded. 10.The respondent contended that investigations revealed that the appellant was aware of the incident but failed to report it to the relevant authorities thereby occasioning his interdiction. The respondent further stated that the appellant was accorded a disciplinary hearing in accordance with the applicable procedures and was subsequently found guilty of negligence of duty. 11.Upon considering the pleadings, evidence, and submissions placed before it, the trial court framed, inter alia, the issue as to whether there existed valid and fair reasons for the termination of the appellant’s employment within the meaning of Sections 43 and 45 of the Employment Act, 2007. In determining the said issue, the learned judge held in part, as follows:“The Court has revisited the evidence. To confirm the already established negligence of duty by the claimant in failing to report the incident, the claimant for unexplained reasons failed to explain why he had not recorded the incident in the school’s log book for important daily occurrences, he did not record and mention the issue in the handing or taking over notes to the incoming headteacher … the Court finds such to have been serious omissions on the part of the claimant and which demonstrated the alleged negligence of duty leading to his termination.The court returns that the respondent has established that as at termination, the reason for termination was valid and fair as per sections 43 and 45 of the Employment Act, 2007.” 12.Ultimately, the ELRC found that the appellant’s dismissal from employment was neither substantively nor procedurally unfair and held that the appellant was not entitled to any of the remedies sought in the claim. Consequently, the appellant’s claim was dismissed, with each party ordered to bear its own costs. 13.Being dissatisfied with the entirety of the said decision, the appellant preferred the present appeal vide a Memorandum of Appeal dated 17th September, 2022 inter alia on the following grounds that the ELRC erred in law and fact by:i.failing to appreciate that the alleged misconduct attributed to the appellant did not amount to negligence of duty within the meaning of the Teachers Service Commission Code of Regulations;ii.failing to appreciate that, in the absence of a written complaint against Mr. Juma and in light of the express denial of the allegations by the minor and her parent, the actions undertaken by the appellant were reasonable and justifiable in the circumstances;iii.failing to appreciate that there existed a duly constituted and functional Board of Management at Timbila Primary School and consequently the Teachers Service Commission County Director acted ultra vires;iv.failing to hold that the procedure adopted by the respondent in terminating the appellant’s employment was irregular, unlawful and in contravention of the Teachers Service Commission Act and the Code of Regulations, in that:a)the investigation panel was improperly constituted;b)the appellant was denied a fair hearing before the investigation panel;c)the disciplinary panel was improperly constituted; andd)the appellant’s constitutional right to a fair hearing was violated during the disciplinary proceedings.v.misdirecting himself in holding that there existed justifiable grounds for terminating the appellant’s employment;vi.placing reliance on the respondent’s Circulars No. 3 of 2010 and No. 6 of 2017 in disregard of the mandatory procedures prescribed under the Code of Regulations;vii.misdirecting himself in finding that the disciplinary procedure employed by the respondent complied with the law;viii.failing to appreciate that the punishment imposed upon the appellant was excessive and unreasonable in the circumstances;ix.descending into the arena of litigation by sourcing materials to support the unfavorable conclusion reached, thereby demonstrating bias against the appellant;x.rendering a decision contrary to the evidence and facts placed before the court and failing to fully consider the appellant’s submissions;xi.predisposing his mind to a position unfavorable to the appellant, thereby depriving the appellant of a right to a fair and unbiased hearing;xii.rendering a decision that was self-contradictory and plainly erroneous; andxiii.rendering a decision that was wrong in principle and unfair in effect. 14.Based on the above grounds, the appellant sought for orders before this Court that:a)The decision of the ELRC made on 18th March, 2022 be set aside and, in its place, this Court do allow the claim as prayed;b)Costs of the appeal and the proceedings in the ELRC be provided for. Submissions by Counsel 15.The appeal was disposed by way of written submissions, which were subsequently highlighted orally by the parties during hearing. The appellant was represented by learned counsel Mr. Bwire while the respondent was represented by learned counsel Miss Manyasa who was holding brief for Ms. Ngere. 16.Mr. Bwire submitted on the grounds that ELRC misdirected itself in finding that the alleged sexual abuse of a pupil was first reported to Mr. Owala and Mrs. Kiziah who were also employees of the respondent, and that the said two teachers subsequently called the appellant to inform him of the allegations. 17.Counsel further submitted that pursuant to Circular No. 3 of 2010 which the trial court extensively relied upon, the obligation to report the matter to the TSC rested on the said teachers, and that it was discriminatory to terminate the appellant’s employment on account of Mr. Owala’s failure to report the incident. 18.The appellant further submitted that, pursuant to Regulations 144 and 145 of the respondent’s Code of Regulations, the complainants were the pupil and her mother, and that the complaint was first reported to Mr. Owala and Mrs. Kiziah who failed to record the complaint as required. Counsel asserted that, in the absence of a written report or complaint from the said teachers in accordance with aforesaid regulations, the appellant was under no obligation to take any action. 19.It was further submitted that no disciplinary action was taken against the two teachers despite their being the first recipients of the complaint, and that the allegations levelled against the appellant were merely a pretext intended to facilitate his dismissal from service. 20.Counsel contended that the steps undertaken by the appellant, namely summoning the pupil (MM) and her mother for a meeting with Mr. Juma as evidenced by the minutes thereof, were reasonable and could not amount to negligence of duty. Accordingly, counsel submitted that the learned ELRC erred in finding that here existed valid ground for termination of the appellant’s employment. 21.With regard to the ground that the ELRC failed to appreciate that there existed a functional Board of Management, and that the respondent acted ultra vires, counsel submitted that the Board of Management of the school investigated the allegations and dismissed the same, with the respondent being represented in the said process. Counsel further submitted that the respondent thereafter initiated separate investigations which culminated in the dismissal of both Mr. Juma and the appellant. It was contended that in the circumstances, the respondent acted ultra vires by failing to comply with Regulation 146. 22.Regarding the ground that the procedure adopted in terminating the appellant’s employment, counsel submitted that the applicable procedure under the Code of Regulations entailed four (4) stages, namely reporting of the complaint, investigation, disciplinary proceedings, and review of the decision. Counsel argued that all the aforesaid stages were violated, as there was no complaint against the appellant, and the respondent improperly initiated the complaint, investigated the same, and recommended disciplinary action. 23.It was further submitted that investigations against the appellant ought to have been initiated by the County Director pursuant to Regulation 146(3) of the Code of Regulations, whereas in the present case the investigations were conducted directly by the respondent and that the appellant was denied a fair disciplinary hearing as he was not afforded an opportunity to cross-examine witnesses and his witnesses were not permitted to testify. 24.Counsel further submitted that the ELRC failed to appreciate that the punishment imposed was excessive in the circumstances; that the appellant did all that was reasonably possible within his means to address the alleged misconduct; and that the punishment imposed upon him was disproportionate to the alleged offence. 25.Counsel concluded his submissions by asserting that, having demonstrated that the termination was unfair, he was entitled to the remedies sought in his claim, including reinstatement, payment of withheld salary, and damages for wrongful termination. 26.In opposing the appeal, counsel for the respondent submitted that the evidence adduced during trial demonstrated that the appellant, as Headteacher of Timbila Primary School, neglected his duty when he failed to alert the relevant authorities after being notified of a case of sexual abuse case involving a pupil and a teacher under his supervision; that the appellant failed to record the incident in the school logbook; that the appellant further omitted to include the matter in his handover report upon transfer to another school; that the appellant was fully aware of the incident, having been informed thereof by Mr. Owala and Mrs. Kiziah; and that it was incumbent upon him, as head of the institution, to take appropriate action against the perpetrator 27.Counsel submitted that the appellant failed to record the incident in the school logbook and further omitted to include the matter in his handover report upon transfer to another school. Counsel contended that the appellant was fully aware of the incident, having been informed thereof by Mr. Owala and Mrs. Kiziah, and that it was incumbent upon him, as head of the institution, to take appropriate action against the perpetrator. 28.Counsel further submitted that the appellant was guilty of gross misconduct, and had admitted the charges during the disciplinary hearing. In addition, counsel submitted that the procedure leading to termination was fair, as the appellant was issued with a show cause letter and was subsequently accorded a hearing during which he admitted the charge. 29.On the issue of severity of the punishment, counsel submitted that the same was proportionate to the offence committed, given that the matter involved serious sexual misconduct concerning a teacher under the appellant’s supervision and a pupil under his protection; and that the appellant effectively covered up the incident of sexual abuse and, therefore, deserved the sanction imposed. 30.Regarding the remedies sought, counsel submitted that the circumstances of the case did not warrant reinstatement, as the respondent had lost trust and confidence in the appellant. 31.In conclusion, counsel urged this Court to uphold the findings of the ELRC and dismiss the appeal. Determination 32.This Court is called upon to exercise its mandate as a first appellate court by reassessing the evidence adduced before the ELRC, evaluating the same and arriving at its own independent conclusions, bearing in mind that it neither heard nor saw the witnesses testify. See Rule 31 (1) of the Court of Appeal Rules, 2022 and this Court’s decision in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. See also Selle & another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123. 33.Further, in the exercise of its appellate jurisdiction, this Court is guided by the decision of its predecessor, the Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424, wherein it was stated:“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 originally 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.” 34.We have considered the record of appeal, the submissions of the parties, the authorities cited and the applicable law. In our view, the issues that fall for determination are :a.whether there existed valid reasons for terminating the appellant’s employment; andb.whether the procedure leading to termination was fair. 35.On the first issue, namely whether there existed valid reasons for terminating the appellant’s employment, the record shows that the reason advanced for termination was professional misconduct arising from failure to report a case of sexual abuse involving a pupil to the relevant authorities. 36.The appellant submitted that he was informed through a telephone call by Mr. Owala that a teacher, (Mr. Juma) at his school had allegedly sexually abused a pupil. The appellant’s position was that he convened a meeting involving the teacher, the pupil, and the pupil’s mother, during which the allegations were denied. Consequently, the appellant contended that he could not report the matter as it amounted to hearsay and required further investigation. It was his further submission that he was immediately thereafter transferred to another school. 37.The appellant additionally contended that the duty to report the incident rested upon Mr. Owala, who had first received the complaint. Conversely, the respondent submitted that, upon being informed of the incident through a telephone call, the appellant was under a duty to report the matter to the relevant authorities but failed to do so, thereby effectively covering up a serious allegation of sexual abuse involving a pupil. 38.In a letter dated 1st November 2013, responding to the respondent’s show cause letter, the appellant stated, inter alia:“I could not have moved a step further in preparation of any official communications to any office without tangible evidence. This being a case of child abuse and sexual harassment of a learner, as a professional teacher, I was expected to report it with evidence from a reliable source and not relying on hearsay. Could I have tried to make any attempt to report the rumour the way it was maybe at this moment I could now be answering charges of character assassination since both parties denied it vehemently or knowingly refused to furnish me with that information at the initial stage.” 39.Regulation 140(b)(i) of the respondent’s Code of Regulations provides that negligence of duty constitutes one of the offences that may attract disciplinary action against a teacher. 40.Further, Circular No. 3/2020 dated 29th April 2010 Ref. No. TSC/ADM/192A/VOL.VII/151 concerning the protection of pupils/students from sexual abuse provides that:“2.Any teacher who at any given time has reasonable grounds to believe that sexual abuse has been committed against a pupil/student in their school, in any other school or outside the school, must report such a case or suspicion to the headteacher, education officials, … within 24 hours.4.Any teacher, TSC employees or TSC agent who fails to report a case of sexual abuse, actual or alleged, shall face disciplinary action.5.Any teacher, other TSC employee or agent who facilitate and/or arranges the cover-up of sexual abuse against a pupil/student shall be considered an accomplice and shall face disciplinary action.” 41.The appellant confirmed that the two teachers, Mr. Owala and Mrs. Kiziah reported the incident to him via telephone call. In our considered view, the said teachers acted diligently by reporting the matter to the Headteacher in accordance with the respondent’s Circular No. 3/2020. The circular did not require the teachers to report directly to the respondent, as argued by the appellant; rather, the initial report was to be made to the Headteacher. 42.As the Headteacher of the school, the appellant was seized of the matter at the earliest opportunity and cannot shift responsibility to Mr. Owala or Mrs. Kiziah. In his response to the show cause letter, the appellant expressly stated that he was awaiting tangible evidence before making an official report to higher authorities for fear of accusations of character assassination. 43.The appellant made this decision notwithstanding his awareness of the obligation to report incidents of sexual abuse involving a pupil, whether actual or merely suspected, within twenty-four (24) hours. Instead of reporting the matter, the appellant elected to proceed on his transfer from the school. 44.The appellant’s contention that there was no complaint as required under Regulations 144 and 145 of the Code of Regulations is misconceived. The appellant admitted having received the complaint through a telephone call from Mr. Owala and Mrs. Kiziah, and it was incumbent upon him to reduce the information he had received into writing and escalate it to the relevant authorities, which he failed to do. 45.The minutes of the disciplinary proceedings dated 28th June 2019 indicate that the appellant pleaded guilty to the charges and admitted that he failed to report the incident to the relevant authorities. 46.In the premises, we are satisfied that there existed valid reasons warranting disciplinary action against the appellant, ultimately leading to the termination of his employment. 47.On the second issue, namely whether the procedure leading to the appellant’s dismissal was lawful and fair, the appellant submitted that the applicable disciplinary procedure comprised four stages: reporting of a complaint, investigation, disciplinary hearing and review, all of which were allegedly violated by the respondent. In particular, the appellant contended that there was no complaint against him capable of triggering investigations and the ensuing disciplinary proceedings. 48.The law is settled that, for a termination of employment to be fair, an employer must demonstrate not only the existence of a valid and fair reason for termination but also compliance with the procedural safeguards prescribed by law. Sections 41,43 and 45 of the Employment Act impose upon an employer the obligation to notify the employee of the allegations against him, afford him an opportunity to respond, consider his representations before making a decision, and establish that the reason for termination was valid and fair. 49.In Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the Employment and Labour Relations Court aptly stated that “for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness”. Similarly, in Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, this Court held that section 41 of the Employment Act prescribes the minimum standards of procedural fairness and that an employer must notify the employee of the allegations, explain the grounds for the contemplated disciplinary action, accord the employee an opportunity to be heard in the presence of a fellow employee or union representative where applicable, and consider the employee’s defence before reaching a decision. This Court reiterated in CMC Aviation Limited v Mohammed Noor [2015] eKLR that even where an employer has a valid reason for termination, failure to comply with the mandatory procedural requirements renders the termination unfair. 50.Applying those principles to the present appeal, we are unable to agree with the appellant’s contention that there was no complaint capable of triggering investigations. Regulation 146(11) of the Code of Regulations expressly empowers the respondent, either directly or through its agents to undertake investigations into allegations of professional misconduct and to recommend interdiction where appropriate. The record further demonstrates that the appellant was issued with a show cause letter, submitted a written response, and was subsequently accorded a disciplinary hearing during which he was afforded an opportunity to respond to the allegations. The minutes of the disciplinary proceedings further show that he admitted the charge of failing to report the incident to the relevant authorities. In the circumstances, we are satisfied that the respondent substantially complied with the procedural requirements prescribed under section 41 of the Employment Act as well as the applicable Code of Regulations. We therefore find no illegality or procedural impropriety in the disciplinary process that culminated in the appellant’s dismissal. 51.In light of the foregoing, we find no basis upon which to interfere with the findings of the ELRC. Accordingly, we find that the appeal lacks merit and is hereby dismissed with costs to the respondent. 52.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A. K. MURGOR...................................JUDGE OF APPEALJAMILA MOHAMMED...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...................................JUDGE OF APPEALI certify that this is a true Copy of the originalSignedDEPUTY REGISTRAR