[2022] KEELRC 420 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 100 OF 2018

JOHNSTONE INAWETICLAIMANT

v

TEACHERS SERVICE COMMISSIONRESPONDENT

JUDGMENT

1. The Cause was heard on 16 May 2019, 15 June 2021, and 20 January 2022. Johnstone Inaweti (the Claimant), a Deputy Director and a Sub-County Director with the Teachers Service Commission (the Commission), testified.

2. The Claimant filed his submissions on 18 February 2022, while the Commission filed its submissions on 22 March 2022.

3. The Court has considered the pleadings, evidence and submissions and will adopt the Issues as set out in the parties’ submissions.

Unfair termination of employment Procedural fairness

4. The primary ingredients of procedural fairness are set out in sections 35(1) and 41 of the Employment Act, 2007.

5. The Claimant challenged the procedural fairness of the disciplinary process on the grounds that he was not allowed to thoroughly cross-examine the complainant and the officer who conducted investigations over the allegations he was facing (some of his questions were overruled).

6. The Claimant also asserted that the Deputy Head Teacher who came in as his witness turned hostile, but he was not allowed to cross-examine him.

7. To support his case, the Claimant cited a paragraph in Zahira Habibullah Sheikh & Ar v State of Gujarat & Ors AIR (2006) SC 1367 wherein it was stated:

It has to be unmistakably understood that a trialwhich is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive, or exhaustivedefinition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to the degree where a miscarriage of justice has resulted…. Failure to accord a fairhearing either to the accused or the prosecution violates even minimum standards of due process of law, the condemnation should be rendered only after trial in which the hearing is a real one, not a sham or mere farce and pretence.

8. The questions that the Commission’s panel overruled concerned the date on which the Claimant allegedly had sexual relations with the pupil in May and October 2015, why the investigation’s report was not dated, and how the investigator came to the view that the pupil had been made pregnant by the Claimant.

9. The record also shows that the Claimant was not allowed to question his witness after the witness (theDeputy Head Teacher) disowned his previous recorded statement.

10. The Claimant’s questions to the three witnesses were relevant and material to the fair determination of the allegations against the Claimant.

11. The Commission did not explain to him or the Court why the questions were overruled or why a chance to cross-examine the hostile witness was not given.

12. The Court finds that the Commission did not adhere to the basic tenets of procedural fairness.

Substantive fairness

13. Under sections 43 and 45 of the Employment Act, 2007, the Commission had the burden of not only proving but proving as valid and fair the reasons for dismissing the Claimant.

14. To discharge the burden, the Commission called two witnesses, a Deputy Director who testified on the process leading to the Claimant’s dismissal and the sub-county Director, Vihiga. The sub-county Director conducted investigations into the allegations that theClaimant had sexual relations with a pupil in May and October 2015.

15. The sub-county Director produced a copy of the investigation’s report and statements recorded from witnesses, including the pupil.

16. The Court has keenly perused the investigations report and the statements.

17. The primary allegation against the Claimant was that he had sexual relations with a pupil in May and October 2015.

18. The only direct evidence linking the Claimant and the allegations came from the pupil. The investigations report by the Commission found glaring inconsistencies in the narration by the pupil. She had confessed to two pastors (sponsors of the school she attended) that she did not know the person responsible for her pregnancy and, at the same time, accused the Deputy Head Teacher. She also accused the Claimant.

19. She also gave conflicting versions of where she procured an abortion.

20. The Commission urged the Court to only concern itself with whether it had proved that the Claimant was guilty of immoral behaviour/professional behaviour and not the pregnancy.

21. The Commission’s investigations report cast doubts on the truthfulness of the evidence against the Claimant and called for further interrogation.

22. The Court, therefore, finds that the Commission did not discharge the burden of demonstrating that the Claimant had sexual relations with the pupil or was of immoral behaviour.

23. Despite that conclusion, the Court is of the view that the question of the pupil’s pregnancy was closely interlinked to the allegations of sexual relations or immoral behaviour and warrants an examination as to their credibility.

24. During investigations, the pupil’s mother stated that she took the daughter to Serem hospital on 18 February 2016 and that after tests, she was found to be pregnant.

25. She also stated that her daughter disappeared fromhome around 27 February 2016.

26. The pupil, on her part, stated in her statement that the Claimant had sexual relations with her in May 2015 and then in October 2015.

27. She also stated that at some point, her mother requested to take her to Serem hospital for a check-up and that she was found to be 5-months pregnant.

28. Given the statement by the mother that she took the daughter to the hospital on 18 February 2016, the pregnancy could have been an outcome of sexual relations in October 2015.

29. The pupil also stated that after that, the Claimant took her to Eldoret to procure an abortion. Assuming that the narration by the mother was truthful, then the Claimant and the pupil went to Eldoret on or around 27 February 2016.

30. The pupil and the mother categorically stated that the pupil was found to be pregnant at Serem hospital.

31. The Claimant called a senior Nursing officer from Serem hospital as a witness. The witness testified without his testimony being controverted that the pupil was neverseen at the facility on 18 February 2016 and that themedical note she produced was a forgery that did not emanate from the hospital.

32. Considering the testimony by the senior Nursing Officer, the testimony led on behalf of the Commission that the pupil was found pregnant is doubtful.

33. The Court finds that due to the inconsistencies in the statements by the witnesses presented in Court by the parties, the Commission did not prove valid and fair reasons to dismiss the Claimant.

Counterclaim

34. The Commission counterclaimed against the Claimant for Kshs 4,665/- allegedly paid unlawfully during interdiction from 26 July 2016 to 31 July 2016, contrary to the Code of Regulation for Teachers.

35. The Claimant was interdicted through a letter dated 26 July 2016. He was dismissed and removed from the register of teachers through letters dated 15 June 2017 (Court accepts the explanation that the year 2016 was a typing error).

36. Chapter X of the Code of Regulation for Teachers, 3 (c) provides that a teacher on interdiction would be entitled to half salary.

37. The Court has found that the Claimant’s dismissal was unfair hence the Kshs 4,665/- is not recoverable.

Appropriate remedies

38. The Claimant sought reinstatement. 3-years have elapsed since the dismissal.

39. The Claimant had served for 27-years.

40. In lieu of reinstatement, the Court will convert the Claimant's dismissal into normal retirement with full benefits and award maximum compensation equivalentto 12-months’ gross salary.

Conclusion and Orders

41. The Court finds and declares that

(i) The dismissal of the Claimant was procedurally and substantively unfair.

(ii) The removal of the Claimant’s name from the register of teachers was procedurally and substantively unfair.

42. The Court orders the Respondent:

(i) To restore the Claimant to the register of teachers.

(ii) To compute and pay the Claimant the equivalent of 12-months gross salary as compensation based on the gross wage for June 2015 being the last month served fully.

(iii) To pay the Claimant all terminal dues, he would have been entitled to upon normal retirement.

43. The Claimant to have costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 30TH DAY OF MARCH 2022.

RADIDO STEPHEN, MCIArb

JUDGE

Appearances

For Claimant A.B.L. Musiega & Co.Advocates

For Respondent Faith Kaluai, Advocate

Court Assistant Chrispo Aura