[2021] KEEAT 654 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

E.A.T.A NO. 007/2018

KIEMA DAVIES KITONGA..................................................APPELLANT

VS

TEACHERS SERVICE COMMISSION...........................RESPONDENT

AWARD

Facts of the Case

The brief facts upon which the Appeal vide a letter dated 16th April, 2010 is hinged are that;

1. The Appellant was a teacher at [Particulars Withheld]Primary School from the year 2007 to 2009 when he was dismissed from the employment of the Teachers Service Commission.

2. The Registrar, Education Appeals Tribunal duly sought the response to the said Appeal on 20th April, 2010 requesting for the following documents;

i. Interdiction Letter

ii. Dismissal Letter

iii. Removal from the Teachers Service Commission register letter.

3. The Appellant submitted the said aforementioned documents. As per the submitted dismissal letter dated 4th March, 2010, the Appellant was found to be in breach of the Teachers Service Commission Act Cap 212 Section 7(3) (b) of the Laws of Kenya and Regulation 66(2)(a) of the Code of Regulations for Teachers in that the Appellant is of immoral character in that he had carnal knowledge of;

(a) MM Admission Number[Particulars Withheld] former pupil[Particulars Withheld]Primary School and currently in Youth Polytechnic[Particulars Withheld]on 15th November, 2008 and 15th January, 2009 in the evening in your rented house at[Particulars Withheld]market.

(b) MM admission number[Particulars Withheld] standard 8(2009)[Particulars Withheld]Primary School on 25th February, 2009 at around 8pm in your rented house at[Particulars Withheld]market.

4. Further, as per the Removal letter dated 4th March, 2010 it indicates that as a result of proceedings under Section 9(1) of the Teachers Service Commission Act (212), the Commission determined that your name be removed from the Register of Teachers for the aforesaid reasons.

The Appellant was found to be in breach of the Teachers Service Commission Act Cap 212 Section 7(3) (b) of the Laws of Kenya and Regulation 66(2)(a) of the Code of Regulations for Teachers in that the Appellant is of immoral character because he had carnal knowledge of;

i. MM Admission Number[Particulars Withheld]former pupil[Particulars Withheld]Primary School and currently in Youth Polytechnic[Particulars Withheld]on 15th November, 2008 and 15th January, 2009 in the evening in your rented house at[Particulars Withheld]market.

ii. MM admission number[Particulars Withheld]standard 8(2009)[Particulars Withheld]Primary School on 25th February, 2009 at around 8pm in your rented house at [Particulars Withheld]market.

5. In addition, as per the interdiction Letter dated 21st October, 2009 and signed on the 22nd October, 2009, the Appellant had been accused of being in breach of Teachers Service Commission Act Cap 212 Section 7(3) (b) of the Laws of Kenya and Regulation 66(2)(a) of the Code of Regulations for Teachers in that the Appellant is of immoral because he had carnal knowledge of the two pupils.

The appellant was further invited within 21days to make a statement to the Commission in writing and also indicated that the Appellant would be accorded an opportunity to be heard in person.

6. The Matter came up for hearing on the 11th of February, 2021 when the Appellant restated his Appeal before the Honourable Tribunal.

7. The Appellant informed the Tribunal that he is a teacher by profession but currently engaging in manual jobs.

8. The Appellant indicated that he was teaching at [Particulars Withheld] Primary School in Kitui County from the year 2007 to 2009 when he received an interdiction letter on the 26th October, 2009 in which he was accused of having carnal knowledge of MM and MM who were cousins to his wife.

9. The Appellant further confirmed that one was a pupil in class 8 MM while MM was in a youth polytechnic and that the purported incidences took place on 15th November, 2008 and 15th October, 2009.

10. The Appellant testified that he appeared before the officers from Distinct Education Officers office in Kitui when the DEO was an officer by name Wasikayo.

11. It was further the Appellant’s testimony that he was never heard since he didn’t have his registration certificate by the time he collected it the disciplinary committee had already dispersed.

12. The Appellant confirmed that he was communicated the decision vide letter dated 4th March, 2010 which came late via post office. However, he never appealed to the Teachers Service Commission Tribunal as he was yet to be confirmed a Teacher.

13. It is the Appellants prayer that he be reinstated to the list of teachers and posted to a different area.

14. The Respondents did not file their respective responses nor made any appearance in the matter.

Determination

15. From the foregoing, it is emerging that the Respondent was the employer of the appellant herein teaching at [Particulars Withheld] Primary School.

16. Having analyzed the Appeal as stated it is important to appreciate the law establishing this tribunal. This tribunal is established under the provisions of section 93 of the Basic Education Act No.14 of 2013.

The Basic Education Act is

“An Act of Parliament to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes “

Sec 93. The Education Appeals Tribunal

(1) There is established an Education Appeals Tribunal.

(2) Any person aggrieved by the decisions of the County Education Board may appeal to the Education Appeals Tribunal.

(3) The Cabinet Secretary in consultation with the National Education Board and relevant stakeholders shall prescribe regulations on the operation and structure of the Education Appeals Tribunal.

(4) The Education Appeals Tribunal shall comprise of—

(a) The chairperson of the National Education Board;

(b) The Director-General;

(c) The Secretary to the Teachers Service Commission;

(d) A representative of the Education Standards and Quality Assurance Council;

(e) A representative of the Kenya Private Sector Alliance;

(f) A representative of the Attorney-General; and

(g) The Chief Executive Officer of the National Council for Nomadic Education in Kenya.

17. The Respondent is an Independent constitutional Commission established under the Constitution of Kenya 2010, to manage human resources within the education sector. It is based in the capital city, Nairobi county with offices in the counties.

18. From the foregoing and having analyzed the facts of the case and the law, there is only one preliminary issue that arises for determination;

i. Whether this tribunal has jurisdiction to preside over the appellant’s case.

(i) On Jurisdiction

19. From the Appellant’s case, he is aggrieved by the fact that he was unfairly terminated from his employment and further his name removed from the Register of Teachers.

In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the Supreme Court pronounced itself on jurisdiction thus [paragraph 68]:

“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in,In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” (Emphasis provided).

20. The supreme Court in an extensive analysis of the issue of its own jurisdiction quoted with approval the oft cited case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 in the first advisory opinion rendered by the Court in In Re The Matter of the Interim Independent Electoral Commissionwhere the Court stated: -

“[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”(underlining supplied)

[30] The Lillian ‘S’case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

21. The jurisdiction conferred on this tribunal is an appellate jurisdiction. That jurisdiction is strictly limited by section 93(2) of The Basic Education Act to matters arising from the decisions of The County Education Boards. With utmost respect, the Appellant’s case does not arise from a decision of the County Education Board. On that account alone this tribunal holds and finds that it does not have jurisdiction to preside over the appeal in the nature presented.

22. From the foregoing, this tribunal having considered the facts of the appellant’s case and taking into consideration the above provisions of the law, it makes the following observations;

a) This tribunal exercises an appellate jurisdiction by dint of section 93(1) of The Basic Education Act This appellate jurisdiction is further limited by dint of section 93(2) of The Basic Education Act to appeals by any person aggrieved by the decisions of the County Education Board.

b) The appeal before this tribunal does not arise from a decision of The County Education Board but rather a decision of the respondent institution. There is nothing on record that shows that the County Education Board was or has been involved in the impugned decision herein.

c) The nature of the dispute by the appellant and lodged before this tribunal is that arising from an employer employee relationship The proper forum would be the Court established by Article 162(2)(a) and article 162(3) of the Constitution.

Conclusion

23. Taking into account the decisions in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited[1989] & Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, and which are binding on this tribunal, this tribunal must only exercise jurisdiction as conferred by statute which is The Basic Education Act. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Put differently, it cannot usurp the jurisdiction conferred by the constitution at article 162(2)(a) and The Employment & Labour Relations Act to The Employment and Labour relations Court.

24. Therefore, without jurisdiction, this tribunal cannot entertain these proceedings.

The upshot of the foregoing is that this tribunal makes a finding that it does not have jurisdiction to entertain this appeal and cannot therefore grant the appellant’s prayer seeking to challenge his removal from the register of teachers.

25. Following the facts outlined above, this tribunal is not inclined to grant the appellant the relief sought save to dismiss the appeal.

26. That shall be the order of the tribunal

DATED AND DELIVERED AT NAIROBI ON 18TH DAY OF MARCH, 2021

1. HON. WAIGI KAMAU CHAIRPERSON

2. HON. CATHERINE NAMADA MEMBER

3. HON. DR. PIUS MUTISYA MEMBER