Ngeywa v Teachers Service Commission (Constitutional Petition E001 of 2024) [2026] KEELRC 2434 (KLR) (20 August 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS CONSTITUTIONAL PETITION NO. E001 OF 2024 JUDICIAL REVIEW AND LABOUR RIGHTS IN THE MATTER OF ARTICLES 1, 2, 10, 19, 22, 25, 41, 47, 48, 162(2) (a) and 237 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA 2010 (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 25,47,48 & 50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, N0.4 OF 2015 BETWEEN CLEOPHAS NGEYWA……………………….……………………………………………………………....PETITIONER -VERSUS- TEACHERS SERVICE COMMISSION……….………………………………………………..….…RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. Upon termination of her services by the respondent, the Petitioner commenced this suit by a Petition dated 2nd November 2023, seeking:- 2. An order of certiorari be issued removing into this court for purposes of being quashed the record, decisions and the proceedings conducted on 03/09/2020, 22/10/2020, 04/ 11/2020 and 31/08/2022 by the Teachers Service Commission. 3. An order of mandamus to compel the respondent to reinstate the petitioner back to his position with full benefits and rights prior to his removal via the impugned decision of 4th November 2020. 4. A declaration that the petitioner has a right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 5. A declaration that the respondent is obliged by the law to observe the rules of natural justice in exercising the constitutional and statutory duty under the Teachers Service Commission Act of 2012 and Regulation 153 of the Code of Regulation for Teachers 2015. 6. A declaration that the petitioner's right to a fair hearing was breached. 7. An order for the payment of Kenya Shillings 1,368,536/- in full broken down as follows; i. One month’s salary Kshs. 105,272/- ii. 12 months multiplied by Kshs.105,272/- TOTAL Kshs. 1,368,536/= 1. Any other and further orders that this Honourable Court may deem just and fit to issue. 2. The costs of this Petition be borne by the Respondent. 3. The Petition was filed alongside the Petitioner’s Supporting Affidavit sworn on 2nd November 2023, with the bundle of documents in support of the Petition attached. 4. In response to the Petition, the Respondent filed a Notice of Preliminary Objection dated 13th January 2025; and a Replying Affidavit sworn by DAVID MUKUI sworn on 23rd September 2025. The Petitioner’s case in summary 1. The Petitioner’s case is that he was employed by the Respondent in the year 1995 vide an offer letter dated 5th January 1995, and posted to Masimba Secondary School as a Graduate Teacher under TSC registration number TSC/353150. The Petitioner states that he rose through the ranks and in the year 2009, he was promoted to the position of Senior Graduate/Approved Teacher under Job Group M earning a salary in the scale of Kshs. 295,800/- to Kshs. 396,120/- p.a. Vide a letter dated 31st December 2009, the Petitioner was deployed as a Headteacher and transferred to Kijana Wamalwa Memorial Secondary School from his previous post at Chewoyet Secondary School. He served as a School Principal from the year 2010 up to 2013 still under Job Group M. It is the petitioner's averment that in the year 2014, he was demoted down from Job Group M and subsequently to a classroom teacher, and transferred to Jamhuri High School in Nairobi County vide a letter a dated 6th December 2018 to teach Kiswahili and Christian Religious Education. In November 2019, the Petitioner was appointed as one of the Kenya Certificate of Secondary Education examination supervisors. 2. The genesis of the current dispute was a distress call from one of the Petitioner’s family members received on 27th February 2020 which informed the Petitioner that his father had been taken ill. In response thereto, the Petitioner quickly rushed to Kitale Town where his father was admitted at Kitale County Hospital, in order to undergo an operation for prostate cancer. Due to the serious nature of his father’s illness, the Petitioner indicates that he was forced to remain at the hospital in support of his father. It is averred that whilst he was in the hospital at night, the Petitioner made telephone calls to several Heads of Department and Heads of Languages at Jamhuri High School and arranged to have his classes moderated in his absence. He was assured by the said teachers that his classes would be attended to prevent the candidates who he taught missing their classes. The Petitioner contends that in subsequent days, he further sent a short message service (sms) to the School Principal, informing him of his father’s illness and admission at Kitale County Hospital and the ensuing arrangements with his fellow teachers to hold over his classes. 3. The Petitioner confirms that his colleagues attended his classes on his behalf, and remained in constant communication with him to update him on progress. They also filled out the class attendance forms and books as mandated by the school. On 13th March 2020, the Petitioner’s father was discharged from hospital, prompting him to travel back to Nairobi on the same day. Subsequently, the Petitioner reported back to school on 14th March 2020, and proceeded to mark Continuous Assessment Test (CAT) scripts for his students. He contends that the marked scripts remained in the teachers' staffroom and departmental offices. On 15th March 2020, the Petitioner states that he again reported to school to key in the students’ marks in preparation for issuance of student report forms following closure of schools as a result of the Covid-19 pandemic with effect from 15th March 2020. The said report forms were also later forwarded to the school principal as a matter of protocol. On 16th March 2020, it is averred that the Petitioner again reported to school and attended the school closing assembly alongside all school employees and students. He thereafter issued his students with their report forms. 4. On the same day, after the school closing assembly, the Petitioner avers that he visited the School Principal in his office, and confirmed that he had sent him an SMS while he was away in hospital, and organized with colleagues to cover his classes. He also held extensive discussions with the School Principal during the same meeting about his desire to move to the CRE department and presented his complaint on demotion to a lower class from a candidate class in one of the subjects without explanation. He learned of the demotion through the timetable. He explains that the demotion was demeaning as he was one of the senior most teachers in the school, whose colleagues looked up to him. 5. In June 2020, the Petitioner states that he had further contact with the School Principal, when he applied for a loan facility of Kshs. 2,761,000/- from ABSA Bank Kenya, and the School Principal signed the loan forms on behalf of the employer. 6. The Petitioner complains that during the entire period when he engaged with the School Principal, he was never informed that he was under investigation or that his employer was considering taking disciplinary action against him for desertion of duties. Further, prior to 15th March 2020, the Petitioner indicates that no one reached out to him informing him that they were looking for him and he was unreachable. Additionally, no letter or notice was sent to him touching on the purported desertion of duties. 7. Nonetheless, vide a letter dated 24th August 2020, the Petitioner contends that he was summoned to appear before the full Board of Management of the School, on 3rd September 2020 to show cause why disciplinary action should not be taken against him for desertion of duty from 28th February 2020 to 15th March 2020. After his appearance before the Board on 3rd September 2020, it is averred that by midday of the same day, he had already been served with a letter of interdiction dated the same day. Prior to the hearing before the Board, the Petitioner states that he requested his colleagues to appear as his witnesses, but they refused expressing fears of victimization by the Teacher’s Service Commission if they made representations supporting the Petitioner. 8. It is averred that on 15th October 2020, the Petitioner received a letter dated 28th September 2020 inviting him for the hearing of his disciplinary case scheduled for 22nd October 2020. The Petitioner complains that the period that he was given to prepare for the disciplinary hearing, namely 10 days, was inadequate and flouted Regulation 149 of the Respondent’s Regulations which provides for one month’s notice. The Petitioner nevertheless attended the hearing following which he was informed that the Respondent’s decision would be communicated to him in due course. 9. The Petitioner’s complaints are that the Respondent violated his Constitutional rights to fair hearing and fair administrative action under Articles 50 and 47 respectively, as well as Section 41 of the Employment Act 2007 on fair procedure, by failing to inform him of his right to be and ensure that he was accompanied by a shop floor representative or a fellow employee during the hearing; by denying him the opportunity to cross-examine the witnesses presented before the disciplinary panel; by failing to communicate the decision of the Respondent to terminate his employment until the year 2022, despite the fact that it was made on 4th November 2020; by failing to consider the Petitioner’s representations made during the disciplinary hearing when making their decision; by failing to serve him with notices, letters or documents to the effect that the Respondent was considering taking disciplinary action against him; by commencing disciplinary proceedings more than 6 months after the purported desertion; and by failing to show that there were serious efforts to establish his whereabouts after his alleged desertion of duty. 10. The Petitioner further argues that a legitimate expectation that he would not be subjected to adverse action and that he would resume teaching at the school once schools re-opened had arisen following the representations made by the School Principal after the Petitioner reported back to School from Kitale in March 2020, and the expectation was lawful. It was therefore the responsibility of the School Principal to respect the Petitioner’s legitimate expectation and afford the petitioner due procedure. Respondent’s case in brief 1. The Respondent challenges the Petition for being time barred contrary to Section 89 of the Employment Act and Section 3(2) of the Public Authorities Limitations Act as read together with Section 21(1) of the Teachers Service Commission Act, which stipulate a limitation period of 3 years for employment claims. 2. In response to the substantive issues raised in the Petition, The Respondent avers that it is established under Article 237 of the Constitution and some of its functions are to register trained teachers, to recruit and employ trained teachers, to assign teachers in its service to teach in various public schools; to promote and transfer teachers, to exercise disciplinary control over teachers, and to terminate the employment of teachers. The statutory mandate of the Respondent to discipline any registered teacher who is in violation of the terms and conditions of service is affirmed in the Teachers Service Commission Act No. 20 of 2012 3. It is further averred that the Respondent has enacted under section 47 (2) of the TSC Act and Section 5 (1) of the Public Officers Ethics Act, a Code of Regulations for and a Code of Conduct and Ethics, which outline the general rules of behaviour governing the teaching profession. 4. The Respondent admits that the Petitioner was its employee having been employed in the year 1995. As an employee of the Respondent, his employment was regulated by the Employment Act, the Teachers Service Commission Act, the Repealed Code of Regulations for Teachers, 2005, the Code of Conduct and Ethics, and policies put in place by the Respondent. 5. The instant controversy arose when the Petitioner was serving as a teacher at Jamhuri High School, following information that the Petitioner had deserted duty with effect from 28th February 2020 to 15th March 2020. 6. The Respondent contends that the Petitioner’s conduct of deserting duty contravened Section 140(b) (iv) of the Code of Regulations for Teachers 2015 which stipulates that, "The commission may take disciplinary action against a teacher who deserts duty", which prompted the Commission to commence its lawful disciplinary process by inviting the Petitioner to appear before the Board of Management on 3rd September 2020 to show cause why disciplinary action should not be taken against him. In addition to inviting the Petitioner to appear before the Board of Management, the Respondent carried out preliminary investigations to confirm the veracity of the allegations pursuant to Regulation 146(2) (b) of the Code of Regulation for Teachers. Thereafter, a Preliminary Investigation Report was prepared and recommended that the teacher be interdicted. In line with the recommendation, the Petitioner was served with an interdiction letter dated 20th November 2020. The interdiction letter informed the Petitioner that he would be given the opportunity to be heard by the Commission in person; that he had the right to present evidence during the hearing in support of his case; and he was invited to make a defense statement/response to the Commission in writing within 21 days. 7. The Respondent concedes that the Petitioner was invited to a disciplinary hearing scheduled for 22nd October 2020 vide a letter dated 28th September 2020, and states that the Petitioner was given ample time to prepare for the hearing. In the said letter, the Petitioner was informed of his right to present any documents that may be useful in his defense during the hearing. Indeed, the Petitioner attended the hearing of his case in person and was granted an opportunity to present his case before the disciplinary panel, the Respondent's witnesses testified in his presence, and he was granted the opportunity to cross examine the witnesses. 8. Upon considering the Petitioner's case, and the oral and written evidence before the disciplinary panel, the panel made the following findings among others: a) The Petitioner pleaded guilty; b) He attributed the desertion to the sickness of his father; c) He did not seek written permission nor obtain compassionate leave as per the Code of Regulation for Teachers; d) Though he claimed to have written the principal a message the day he left, this was refuted by the principal who appeared as a witness before the panel; e) After he deserted duty, the school administration tried in vain to reach out to the Petitioner using his official mobile number; and f) This was the second time the Petitioner had been interdicted. 9. In light of the above, a verdict was reached that the Petitioner was guilty as charged from the evidence adduced, and hence a resolution was passed that he be dismissed with effect from 22nd October 2020. The verdict was communicated vide a letter which informed the Petitioner of his right of review within 90 days. The Petitioner lodged an appeal against the decision to dismiss him from teaching service, was granted an opportunity to appear before the Review Committee on 31st August 2022 in person, and after deliberating on the matter the Review Committee upheld the Disciplinary Panel's decision to dismiss the Petitioner. This decision was also communicated to the Petitioner. 10. The Respondent denies violating the Petitioner’s rights or acting in an unlawful manner, and emphasizes that it complied with fair procedure under Section 41 of the Employment Act. According to the Respondent, the Petitioner’s dismissal was based on cogent evidence and was pursuant to the law; the Petitioner is culpable of professional misconduct hence the Respondent had a valid reason to dismiss him; and the Petitioner was dismissed following due process. DETERMINATION 1. Following directions by the court that it would determine the Petition through written submissions, both parties filed. Issues for determination 1. The Petitioner submitted generally on the preliminary objection and the petition in their submissions dated 15th June 2026. 2. In their submissions bearing the same date, the Respondent distilled the following issues for determination: * 1. Whether the Court has jurisdiction to hear and determine the matter. 2. Whether the Respondent had a justifiable reason to dismiss the Petitioner. 3. Whether the Petitioner was accorded a fair hearing. 4. Whether or not the Petitioner is entitled to the prayers sought 3. The court found the parties were in agreement on the issues for determination to be- * + - 1. Whether the court has jurisdiction to hear and determine the petition. 2. Whether the respondent in the termination process violated the constitutional rights of the petitioner. 3. Whether the petitioner was entitled to the relief sought. Whether the court has jurisdiction to hear and determine the petition 1. The issue arises from the notice of preliminary objection raised by the respondent in the replying affidavit of David Mukui in response to the petition to the effect that the cause of action was time-barred under section 89 of the Employment Act having been filed 4 years post dismissal on 22nd October 2020. A preliminary objection dated 12th January 2025 was also filed to the same effect. The respondent contended the petition was filed to circumvent the limitation of time. The respondent relied on several decisions to effect that a constitutional petition cannot cure the limitation of time and specifically as held in Peter Ndegwa Nderitu v Teachers Service Commission (2019)e KLR where the court held the remedy of reinstatement is under the Employment Act and filing of a petition could not extend time for grant of the remedy. 2. The petitioner conceded that the instant petition was filed outside the statutory limitation period prescribed under the Employment Act. He contended that his petition was not an ordinary claim but raised constitutional questions touching on his fundamental rights and freedoms having been breached. The petitioner contended that a constitutional petition could not be defeated solely on the basis of statutory limitation where the court is called upon to determine whether constitutional rights have been violated, as held in Attorney General and another v Andrew Kiplimo Sand Muge & 2 others (2017)e KLR. Is the claim time-barred? It is undisputed that the dismissal occurred on 22nd October 2020. The petitioner appealed, and there was a sitting for review on 31st August 2022. The respondent, vide the replying affidavit by Mukui paragraph 23, stated that the review decision was communicated vide letter dated 9th September 2022(DM-9 by the respondent).The question then is when did the cause of action arise. The Court of Appeal in (Nairobi Civil Appeal No. 657 of 2019 ) vide decision of 20th February 2026, Francis Kimani Kiige v The National Hospital Insurance Fund (Musinga JA (Judge President of the Court of Appeal), Ngugi JA and Tuiyott JA)held that where there exists a contractual right of appeal in disciplinary process and it is invoked by the employee, time starts running after determination of the appeal by the employer. The court stated as follows- ‘… *Indeed, the letter of termination invited the appellant to utilise the right of appeal. In its preamble (sub-clause 14.1), the Code declares that it "constitutes an integral part of the TCS and must be read alongside them". TCS is an abbreviation of Terms and Conditions of Service'. The Code of Conduct was therefore part of the terms and conditions of service of the appellant and his contract of employment. As a corollary, the right of appeal was a right that was embedded in the contract of employment. Failure to pursue the right and to instead commence court proceedings directly would be failure toexhaust the internal disciplinary process available to the appellant under the contract of employment. This would be even more pronounced here because the employer had expressly invited the employee to exhaust his right of appeal.* *22] To be deduced is that the termination communicated through the letter of 12th September, 2007 was tentative until the right to appeal was either waived or exhausted. Up to that point, there was no real grievance that could found a cause of action. This right of appeal is distinguishable from pursuit of out of court negotiations which are not provided or requiredin a contract of employment or as held by this Court in Rift Valley Railways (Kenya) Ltd that are not "court-based and conducted within the law".* *[23] So too is this matter distinguishable from the decision of this Court in Andrew Maina Githinji. There, the respondent chose to await the outcome of criminal proceedings before mounting a civil claim for unfair or wrongful termination and in the process breached limitation. The majority (Waki and Kiage, JJ.A.) held that the outcome of the criminal proceedings was not a prerequisite for a claim for unlawful or wrongful dismissal as the cause of action did not arise upon the acquittal of the plaintiff in a criminal trial. Here, it is common ground that the decision disallowing the appeal against termination was not communicated until 20th April, 2012. It was only then that the appellant could be said to be truly aggrieved, hence the accrual of a cause of action.* *[24] The cause of action having accrued on 25th April, 2012 and not in 2007, the applicable statute on that date was the Employment Act, 2007 which commenced on 2nd June, 2008. Section 89 on limitation provides:………………………………………………………………………………………* *….cessation thereof."* *[25] The appellant's suit, filed on 13th March, 2015, was on time as it was instituted within three years after the cause of action arose. We must therefore fault the decision of the trial court.’’* The facts in the case are relevant. In the instant case, it was a contractual right of the respondent to file an appeal for review, as informed by the employer in the dismissal letter, and he exercised the right, and the verdict of the appeal was communicated vide letter dated 9th September 2022. That is when the cause of action arose; thus, the dispute was not time-barred. The notice of preliminary objection based on time limitation is disallowed. Whether the respondent in the termination process violated the constitutional rights of the petitioner 1. The petitioner chose to file a petition instead of a claim under the Employment Act. The problem with that route was that he was thus obliged to prove violation of the Constitution, which could not be adjudicated under the Employment Act pursuant to the doctrine of constitutional avoidance. 2. The petitioner submitted as follows- The Petition is premised on the Constitutional articles appearing under the sub-topic "Legal foundation of the petition" at pages 1 to 3 of our Petition. The Petitioner wishes to specifically highlight the following key articles:- Article 41 on Labour relations (1) Every person has the right to fair labour practices. (2) Every worker has the right- (a) to fair remuneration; (b) to reasonable working conditions; (c) to form, join or participate in the activities and programmes of a trade union; and(d) to go on strike. Article 47 on Fair Administrative Action. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall (a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration. Article 50 on Fair hearing. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 1. The crux of the instant Petition is the unfair and unprocedural termination of the Petitioner's employment from the Teachers Service Commission where he had served from the year 1995 vide an employment letter dated 5 January. He served in various capacities including holding the headteacher's position before being demoted to serve as the senior most teacher at The Jamhuri High School which was his final posting. The Petitioner avers that on 27/02/2020 at 7pm or thereabouts, he received a distress call from one of his family members that their father had been taken ill. The Petitioner avers that he heeded to the call and quickly rushed to Kitale Town where his father had been hospitalized where he found his health had deteriorated and was set to undergo an urgent medical operation. This prompted him to reach out to his colleagues for assistance with his classes including Joy Kanyl and Everlyn Mburugu from the Kiswahili and Christian Religions Education departments respectively. Further, he also wrote an SMS addressed to the principal, Mr Awuor J. O. Fred, informing him of the dire situation and the subsequent steps he had taken to ensure there was no vacuum. That vide a formal letter dated 28/02/2020, he sought compassionate leave from the employer seeking 14 days up to 14/03/2020 to attend to his ailing father. This was in line with Regulation 131 of the Code of Regulations of Teachers, 2015 which states as hereinunder- 131. Compassionate leave (1)A teacher may be granted leave, of up to fifteen calendar days on compassionate grounds at the discretion of the sub-county director or head of institution, (2) An application for compassionate leave shall be in writing by the teacher to the head of institution for approval (3) An application for compassionate leave shall be made in writing by the head of institution to the sub-county director for approval 1. It is the Petitioner's averment that upon resuming his duties on 15/03/2020, he attended to his classes, filed in the student results; and attended the closing ceremony on 20/03/2020 due to the outbreak of the COVID-19 pandemic. There was a lapse of 12 months up to 24/08/2020, when the Petitioner was served with a show cause letter on the ground of desertion of duty from 28/02/2000 to 15/03/2020, with a disciplinary hearing scheduled on the 20/09/202021. In the show cause letter produced as Annexure CN-10 titled "SUMMON TO APPEAR BEFORE THE FULL BOARD OF MANAGEMENT" we take note of several discrepancies that impugned the procedure used by Jamhuri High School to wit:- a. Failing to advise the Petitioner of his right to have a colleague/ shop floor union representative present during the hearing b. Failing to request for a formal response within a stipulated time frame to be used during the disciplinary hearing. 1. The Petitioner submits that the disciplinary process undertaken against him was fundamentally flawed and in violation of the rules of natural justice, Article N, Article 47 and Article 50 of the Constitution of Kenya, 2010. The Respondent failed to ford him a fair, transparent and procedurally compliant hearing before arriving at the drastic decision of dismissing him from service. The Respondent failed to properly consider the Petitioner's application for compassionate leave and instead elected to treat the absence albeit without permission as desertion of duty. Desertion of duty implies abandonment of employment with no intention of returning to work. The Petitioner resumed duty on 15th March 2020 and continued carrying out his responsibilities including attending classes, preparing students' results and participating in school activities before schools were closed due to the outbreak of the COVID-19 pandemic. Further during the six months period, the Principal approved the Petitioners leave by virtue of his employment status with the Respondent. The petitioner in the authority in James Okevo v Maskant Flower Limited [2015) KEELRC 1121 (KLR) by Justice Stephen Radido as follows: - The question of what constitutes desertion in employment law is not a straight forward one. Desertion is not the same as being absent from the place appointed frow work without permission or lawful cause as envisaged under section 44(4)Na) of the Employment Act. 2007.It needs no debating that absence without permission or lawful cause attracts summary dismissal. But the employee who is absent has no intention of not resuming work. Desertion on the other hand in employment law is a repudiation of the contract of employment. The employee who deserts is in breach of contract and an employer is entitled to dismiss him on the ground of repudiation of contract. This is because he has no intention of turning up for work 1. The Petitioner contended that he resumed duty immediately after the compassionate leave period demonstrates beyond doubt that he had no intention whatsoever of abandoning his employment. The Respondent therefore mischaracterized a temporary and explained absence as desertion of duty. Notably, the Respondent took approximately six months before issuing the Petitioner with a show cause letter. Such delay is inconsistent with the allegation that the Petitioner had deserted duty. Had the Respondent genuinely believed that the Petitioner had abandoned employment, disciplinary action would have been initiated immediately. Article 41 of the Constitution guarantees every worker the right to fair labour practices. Fair labour practices require both substantive and procedural fairness before disciplinary action can be taken against an employee. The Respondent failed to satisfy either requirement. That Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The disciplinary proceedings conducted against the Petitioner failed this constitutional test and thereby violated his constitutional rights. The Petitioner has demonstrated that the Respondent violated his constitutional rights and acted contrary to the Constitution, the Teachers Service Commission Act and the Code of Regulations for Teachers.30. Consequently, the decisions and proceedings conducted on 3rd September 2020, 22nd October 2020, 4th November 2020 and 31st August 2022 are unconstitutional, unlawful, unreasonable and procedurally unfair and ought to be quashed. The Petitioner has further demonstrated that he suffered loss and prejudice as a result of the unlawful dismissal and is entitled to reinstatement together with all attendant benefits, salaries, allowances and privileges that would have accrued had the unlawful dismissal not occurred. We therefore urge this Honourable Court to find that the Petitioner's rights under Articles 41, 47 and 50 of the Constitution were violated and to grant the reliefs sought in the Petition. The respondent’s submissions 1. Whether the respondent had a justifiable reason to dismiss the petitioner-16) The Respondent is established under Article 237(1) of the Constitution with the mandate to among other functions, exercise disciplinary control over teachers and terminate the employment of teachers. Regulation 140(b) iv of Code of Regulations for Teachers, 2015 stipulates that, "The commission may take disciplinary action against a teacher who deserts duty "Before his dismissal, the Petitioner was serving as a teacher at Jamhuri High School, the Respondent received information that he had deserted duty with effect from 28/2/2020 to 15/3/2020. The Petitioner was subsequently served with a letter inviting him to appear before the BOM on 3/9/2020.The Preliminary Investigation Report recommended that the teacher be interdicted. The Respondent was served with an interdiction letter following investigations conducted pursuant to Regulation 146(2) (b) of the Code of Regulation for Teachers where he was granted the opportunity to present his case. In the said interdiction letter, he was duly informed that he would be given the opportunity to be heard by the Commission in person, he had the right to present evidence during the hearing in support of his case and he was invited to make a defense statement/Response to the Commission in writing within 21 days. The Petitioner attended the hearing of his case in person and was granted an opportunity to present his case before the disciplinary panel, the Respondent's witnesses testified in his presence, and he was granted the opportunity to cross examine the witnesses. During the disciplinary hearing, the Petitioner pleaded guilty attributing desertion of duty to the Illness of his father. The Respondent reiterated that desertion constitutes an offence under Clause (b) (lv) in the third schedule to the Teachers Service Commission Act and Regulation 140(b) (iv) of the Code of Regulations for Teachers. It is thus the Respondent's submission that it had a valid reason to dismiss the Petitioner and that the said reasons were proved during the disciplinary hearing conducted on the 22/10/2020. We further submit that the Respondent discharged its obligation under Section 43(1) of the Employment Act as at the time the Petitioner was dismissed it was genuinely convinced that he had breached the terms of employment on account of him deserting duty. We rely on the Court of Appeal decision in Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR where the Court pronounced itself as follows: Onus is on an employer to prove the "Under Section 43 of the Act reason or reasons for the termination, falling which the termination shall be deemed to be unfair. The test is, however, a partly subjective one in that all an employer is required to prove are the reasons that he "genuinely believed to exist," causing him to terminate the employee's services." 2. Whether the petitioner was accorded a fair hearing- The Code of Regulations for Teachers broadly outlines the procedures to be followed in exercising disciplinary powers under the Act. Specifically, Regulations 146 to 156 outline the specific steps to be followed. The Respondent submits that it meticulously followed the procedures and adhered to the principle of natural justice. 3. a) investigations- Upon receiving information that the Petitioner herein had breached the provisions of the Code of Regulations for Teachers by engaging in immoral behaviour the Respondent commenced investigations into the matter to verify the allegations in accordance to Regulation 146 of the CORT. On 3/9/2020 the Petitioner was invited to appear before the Jamhuri High School BOM for investigations as provided under Regulation 146 of the CORT. During the investigations, the petitioner was unable to satisfactorily account for his absence from duty from 28/2/2020 to 15/2/2020 and resolved that he be interdicted to pave way for further disciplinary process. He was consequently interdicted with effect from 3/9/2020. 4. b) Interdiction-Pursuant to Regulation 147 of the CORT, the Petitioner was duly served with a letter of interdiction specifying the actual allegations made against him. In the said letter of interdiction, the Petitioner was further advised to prepare a defense statement in writing to the Respondent within 21 days whereafter, he would be accorded the opportunity to be heard in person. He subsequently prepared a statement of defence which he presented on the day of the hearing. 5. c) disciplinary hearing- Subsequently, pursuant to Regulation 149 of the CORT, the Petitioner was invited to a disciplinary hearing on 22/10/2020 through a letter. In the said letter, the Petitioner was duly informed that he could present any documents that may be useful in his defence. These documents could include witness statements, medical reports etc. On the material day of the disciplinary hearing, the Petitioner presented himself before the Respondent's disciplinary Committee. He however did not present any documents nor witnesses in his defence. My Lady, during the disciplinary proceedings, the Respondent claimed to have sought permission from the principal to be away, however he did not present to the panel the alleged message sent if at all. At page 3 of the disciplinary proceedings, the Petitioner admitted that he did not apply for compassionate leave. The Respondent called the school principal who confirmed that the petitioner deserted duty without giving any explanation despite his attempts to reach out to him. During the hearing, the panel noted that this was the Petitioner's second interdiction. Upon careful consideration and evaluation of the Petitioner's defence statements and oral evidence and all statements made by all witnesses present both written and oral, and given the grievous nature of the Petitioner's professional misconduct, the disciplinary panel arrived at a considered decision to dismiss the Petitioner. Subsequently, the Petitioner was duly informed of the decision to dismiss him from the Respondent's employment. The Petitioner was duly informed that he had the right to apply for Review within 90 days pursuant to Regulation 156(4) of the CORT. He subsequently applied for review through his letter dated 19/4/2022 was heard and the Review Committee resolved to uphold the decision of the disciplinary Committee. Contrary to the Petitioner's averments that he was unfairly dismissed, from employment, the Respondent maintains that it duly followed the stipulated disciplinary procedure. It is our humble submission that the Petitioner was accorded a fair hearing as demonstrated above having been taken through the stipulated disciplinary process under the CORT. Consequently, the Petitioner was dismissed for proper and established reasons pursuant to section 43(1) of the Employment Act. Justice Rika in Tom Ochako v Teachers [2022] eKLR held as follows: "Section 43 of the Employment Act, only requires the Employer to have reasonable ground, a genuine belief, that the Employee was engaged in the conduct alleged against him, which belief leads the Employer to terminate the contract of employment" 6. On the manner in which Boards and committees should conduct investigations to satisfy the requirement of fairness, reliance is placed on Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR where Klage) was persuaded by the English Court of Appeal in Selvara Jan -Vs- Race Relations Board [1976] 1 ALL ER 12 where the Court held as follows: "What the duty to act fairly requires depends on the nature of the investigation and the consequence which it may have on the person affected by it. The fundamental rule is that, if a person may be adversely affected by the investigation and report, he should be informed of the substance of the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. 7. Whether or not the petitioner is entitled to the prayers sought- 8. An order of certiorari be issued removing into this Court for purposes of being quashed the record, decisions and the proceedings conducted on 3/9/2020, 22/10/2020, 4/11/2020 and 31/8/2022 by the Respondent. We submit that the Petitioner was taken through the disciplinary process based on established grounds therefore this prayer lacks merit. Further, the Petitioner was taken the entire disciplinary process as laid out under Section 41 of the Employment Act his termination was therefore fair. 9. Reinstatement- The Respondent submits that the Petitioner is not entitled to this prayer as it has been six years since he was dismissed from employment which is far beyond the statutory period for reinstatement. Further, the Petitioner's contract was procedurally terminated as has been demonstrated above and he is therefore not entitled to reinstatement. We urge this Honourable Court to rely on the provisions of Civil Suit No. 156 Of 1997 Joseph Mujibi Ouma V. National Cereals and Produce Board and two others where the High Court applied the decision of the Court of Appeal in Dalmas B. Ogoye V. KNTC In Civil Appeal No. 125 of 1995 wherein the court held that: It is a well-established fact that Courts have been reluctant to make orders for reinstatement because such relationships are purely contractual hence if an order is made in that direction, it would be Ake imposing a contract on another which is not the function of the Court Further, the Court of Appeal in Dalmas B. Ogoye v K.N.T.C. Ltd [1996] eKLR in held as follows: "Courts do not order reinstatement in such cases because such an order would be difficult to enforce. Besides, it would be plainly wrong to impose an employee who has fallen out of favour on a reluctant employer. 10. Payment of salary and damages-The Petitioner herein having not rendered any services to the Respondent since interdiction is not entitled to any salary arrears. He is further not entitled to any damages having been fairly terminated. Given that the Petitioner was dismissed fairly as demonstrated we urge that this Honourable Court be persuaded by Wasilwa J in Rose W. Kiragu v Teachers Service Commission [2016] e KLR where it was held that: "Courts should not interfere with the employer's right to internally discipline an employee unless the process is lawfully and out rightly flawed and this interference will be in this case limited to correcting wrong Procedural Internal Mechanisms." Decision 1. The court, upon perusal of the pleadings by the petitioner, found the cause of action was based on alleged unfairness related to the procedure. The Petitioner complains that the period that he was given to prepare for the disciplinary hearing, namely 10 days, was inadequate and flouted Regulation 149 of the Respondent’s Regulations which provides for one month’s notice. The Petitioner nevertheless attended the hearing following which he was informed that the Respondent’s decision would be communicated to him in due course. 2. The facts in support of claims of lack of fair procedure, he alleged the process was unfair on account of respondent- by failing to inform him of his right to be and ensure that he was accompanied by a shop floor representative or a fellow employee during the hearing; by denying him the opportunity to cross-examine the witnesses presented before the disciplinary panel; by failing to communicate the decision of the Respondent to terminate his employment until the year 2022, despite the fact that it was made on 4th November 2020; by failing to consider the Petitioner’s representations made during the disciplinary hearing when making their decision; by failing to serve him with notices, letters or documents to the effect that the Respondent was considering taking disciplinary action against him; by commencing disciplinary proceedings more than 6 months after the purported desertion; and by failing to show that there were serious efforts to establish his whereabouts after his alleged desertion of duty. 3. The court finds all the grievances were within the legal framework of the Employment Act. This was a constitutional petition. The court, on perusal of the pleadings, finds that the process met the threshold of fair hearing under the cited provision of Article 50 in that the petitioner was granted time to prepare for hearing. 10 days is sufficient time. If the petitioner wanted to hinge his case on statute, he should have filed a claim. The petitioner was heard and minutes produced. The petitioner did not state he was denied the opportunity to call witnesses or cross-examine witnesses. Section 41 of the Employment Act states-‘ (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.’ 1. The court found that the petitioner admitted having been away without permission and having failed to apply for compassionate leave. The petitioner did not challenge the minutes produced to effect that he admitted he had not sought permission to be away. The petitioner did not produce evidence of alleged communication with the School Principal. The court found there was substantial fairness, as the reason for termination was proved to be true and there was proof of a fair hearing before the termination. 2. The court is guided by the Court of Appeal decision in Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), In Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), the Court of Appeal held as follows:-‘ There is no dispute that the germane dispute is the stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes.’ The instant cause of action of disciplinary process invokes various statutes including the Employment Act. The court cannot be called to interpret and apply statutes in a constitutional petition. The right forum to do so would be under normal claims under the Employment Act. This was a case of constitutional avoidance as pronounced in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms:“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.” 3. The court found no proof of violation of the petitioner's constitutional rights. The instant cause of action of disciplinary process invoked various provisions of the Employment Act. The court cannot be called to interpret and apply statutes in a constitutional petition. The court in the instant case only applied the Constitution and found no proof of violation of the right to be heard and fair administrative action as the process was as per the enabling statute, the Employment Act. This was a case of constitutional avoidance on the mistaken position that the cause of action was time-barred. 4. The petition is held to be without merit and is dismissed. I make no order as to costs, as the respondent's notice of preliminary objection was also dismissed. The parties are at par. The case is marked as closed. 5. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner:- Muthui h/b Juma Respondent: Ms Njau