[2022] KEHC 13607 (KLR)

Republic v Teachers Service Commission & 2 others; Musyoka (Exparte Applicant); Muthainga Academy (Interested Party) (Civil Miscellaneous Application 92 of 2019) [2022] KEHC 13607 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13607 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Miscellaneous Application 92 of 2019

RK Limo, J

October 5, 2022

IN THE MATER OF AN APPLICATION BY TIMOTHY NGUI MUSYOKA FOR AN ORDER OF CERTRIORARI AND PROHIBITION

Between

Republic

Applicant

and

Teachers Service Commission

1st Respondent

Teachers Service Commission County Director, Kajiado

2nd Respondent

Teachers Service Commission County Director, Kitui

3rd Respondent

and

Timothy Ngui Musyoka

Exparte Applicant

and

Muthainga Academy

Interested Party

Judgment

1. Before this court is a Judicial Review matter brought through a notice of motion dated October 14, 2019. in the said motion, the exparte applicant seeks the following Orders namely: -i.That an order of Certiorari does issue to recall to this court and quash the Notice of the Respondents dated 26/8/2019 and any other subsequent notice either formal or verbal calling the ex-parte applicant to appear before the disciplinary tribunal or disciplinary process or the Respondents pursuant to the allegations of sexual harassment contained in Mwingi Senior Resident Magistrate’s Court Criminal Case (S.O) No. 12 of 2019. ii.That an order of prohibition does issue prohibiting the Respondents from subjecting the ex-parte applicant to any disciplinary process pursuant to the allegations of sexual harassment contained in Mwingi Senior Resident Magistrate’s Court Criminal Case (S.O) No 12 of 2019iii.That costs of the application be provided for.

2. The ex parte applicant has listed the following grounds as the basis for the prayers sought.a.The ex parte applicant averred that he was registered and employed as teacher by the 1st Respondent on 2/10/2018. (An employment letter to that effect dated 2/10/2018 is attached and marked TNM-1 in the application for leave dated 19th September 2019)b.That following his employment, he was posted to Kajiado County as a Primary Teacher II where he worked on probationary terms until May of the same year when his employment was confirmed and he was posted to FPFK Lesoit Primary School in Mashuuru Sub-County. (A posting letter to that effect has been exhibited as TNM-2 in the application for leave).c.That before his employment by the 1st respondent, he was working at Muthainga Primary School from the period of January 2015- 26/10/2018. That he was arrested and charged in May of 2019 on several counts of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. (He has exhibited a copy of charge sheet indicative of the same).d.That upon institution of the said charges, the 1st Respondent purported to institute disciplinary proceedings against the ex-parte applicant which he now takes issue with as he alleges that he was not an employee of the 1st Respondent when the alleged offences took place.e.He has taken issue with the charges brought against him alleging that that it was engineered by a parent of one of the children who were pupils in her former school. He avers that the disciplinary proceedings commenced by the 1st Respondent amount to double jeopardy as he is already facing criminal charges over the alleged sexual offences.

3. In his written submissions dated 6th May, 2022 done through learned Counsel J.K. Mwalimu & Co. Advocate, the ex parte applicant contends that the acts he is accused of took place prior to being engaged or employed by the 1st Respondent. He says he was employed on 2nd October 2018 by the Teachers Service Commission (1st Respondent) and posted to a school in Kajiado County on 26th October, 2018.

4. He complaints that sometime in May, 2019, he was arrested over allegations of sexual harassment of 8 pupils and that the period of the alleged harassment was given to be between 2017 and 2019. He further states that, he was charged with a Sexual Offence vide Mwingi Senior Resident Magistrate’s Court Criminal Case (S.O) No. 12 of 2019.

5. At the same time, the exparte applicant states that he was summoned by the 1st Respondent to appear before a disciplinary committee over the same allegations.

6. He faults the Respondents for summoning him over matters alleged to have taken place in a private institution to wit Muthangani Academy. He claims that the summon have not been issued in good faith and amounts to miscarriage of justice.

7. He has relied on a Ugandan case in Pastoli versus Kabale District Local Government Council and Others [2008]2 E.A 30a where the Court laid down instances when it can exercise its judicial review jurisdiction to intervene and listed the instances like when acts complained of are/is tainted with illegality, irrationality and procedural impropriety.

8. The Respondents have opposed this motion vide a replying affidavit sworn by 1st Respondent’s Deputy Director Catherine Morogo Kertich sworn on 12th August, 2021.

9. The 1st Respondent avers that among its responsibilities and mandate is the exercise of disciplinary control over teachers as stipulated under Article 237 of the Constitution of Kenya 2010. She further avers that as a commission they have a code of Regulations stipulating Code of Conduct of all teachers in Kenya.

10. The Respondents aver that the 1st Respondent has a mandate to institute disciplinary processes against any registered teacher under the Teachers Service Commission Act and including the ex-parte applicant because it registered him as a teacher in April of 2016.

11. Further that upon his registration as a teacher, he was employed at Muthainga Academy subsequent to which he was engaged by the 1st Respondent as Primary Teacher II and posted to FPFK Lesiot Primary School in 2018.

12. It avers that in 2019, allegations of sexual misconduct which took place during his time teaching at Muthainga Academy were raised against the ex parte applicant. That the Ministry of Education undertook preliminary investigations into the allegations and obtained statements from the aggrieved learners. The ministry compiled a report and made a recommendation for interdiction of the ex parte applicant (An investigation report by the Ministry of Education is annexed and marked CMK -1 in the Replying Affidavit).

13. It states it acted through the 3rd Respondent to institute further investigations and invited the ex parte applicant to appear before a disciplinary committee on the 4th of September 2019 to answer to the allegations but he failed to appear. That the meeting was therefore adjourned to 17th September 2019 and the ex parte applicant was informed of the adjournment vide a letter dated 12th September 2019 but he did not attend the said meeting. (The said invitation letters are exhibited to the Replying Affidavit and marked as CMK-2 and CMK -3 respectively)

14. It avers that despite his failure to attend, the 3rd Respondent proceeded with the meeting where seven of the pupils concerned testified and the committee concluded that the ex parte applicant had a case to answer and recommended for disciplinary action. (They have annexed minutes of the meeting of 17th September 2019).

15. The Respondents aver the meeting was part of a preliminary process undertaken to determine whether the ex parte applicant had breached his code of ethics following which if found culpable, he was to be appear before an independent and statutorily constituted disciplinary panel to answer to the disciplinary case. They further aver that the jurisdiction of this court has been invoked pre-maturely and that the 1st Respondent ought to be allowed to complete the disciplinary process as provided for under Regulation 150 of the Code of Regulations for Teachers, 2015.

16. The Respondents also avers that although the allegations of sexual misconduct are alleged to have taken place before his employment by the 1st Respondent, he was registered still as a teacher hence the 1st Respondent had the mandate to take disciplinary action against him. Further, that the criminal proceedings instituted against the ax parte applicant are separate from the disciplinary process and do not impact the administrative process undertaken by the Respondents. They have sought dismissal of the application and have accused the ex parte applicant of misapprehension and misinterpretation of material facts.

17. In their written submissions dated 17th May, 2022, the respondents have made the following submissions in summary: -a.That the 1st Respondent has a dual role to regulate teaching services as a profession in both public and private sector. Further that it has a regulatory mandate provided for under Article 237(2) (a) of the Constitution and Section 24 Teacher Service Commission Act (the Act) to register and maintain a register of all trained teachers and further to enforce and promote compliance by all teachers of regulations and canons of the teaching profession.b.That Section 33 of the Act empowers the 1st Respondent to undertake disciplinary action against any person registered as teacher which the applicant was in 2016. Further, that Section 34 of the Code of Regulations for Teachers 2015 provides for constitution of a panel to hear cases of professional misconduct in relation to teachers employed in the public and private sector.c.That the allegations tabled against the ex parte applicant are yet to be determined and by filing this application, he is attempting to evade the process.d.They have cited the case of Geoffrey Kiragu Njogu vs Public Service Commission & 2 others (2015) eKLR where the court held that a criminal process by the state is distinct from a disciplinary process.e.They have also submitted that the applicant is not entitled to the reliefs sought specifically the order of certiorari as there is no decision issued by the 1st Respondent possible of being quashed. Further, that the applicant has failed to demonstrate an illegality, irrationality or procedural impropriety in the actions taken by the Respondents.

18. This Court has considered the motion filed and the grounds raised. I have also considered the response put forward. From the onset, this court finds that the Exparte applicant upon obtaining leave through this miscellaneous cause to challenge the respondents’ disciplinary proceedings ought to have filed a separate Judicial Review proceedings. That way this court would be dealing with a Judicial Review not a miscellaneous application. But that notwithstanding, I am minded to determine this matter on the substance rather than the form it has been presented to this court.

19. The main issue for determination is whether it was irregular or unfair for the 1st Respondent to institute disciplinary proceedings against the ex parte applicant and whether the actions taken by the Respondents amounts to double jeopardy and miscarriage of justice.

20. (1)Whether the 1st Respondent has the mandate/responsibility to carry out disciplinary proceedings on its teacherThe exparte applicant has challenged the Respondents for instituting and taking him through separate disciplinary proceedings over allegations of sexual harassment when there are criminal proceedings leveled against him vide Mwingi Senior Resident Magistrate’s Court Criminal Case (Sexual Offence) No. 2 of 2019. The exparte applicants holds the view that he was not an employee of the 1st Respondent when the said offences are alleged to have occurred and that there was no employer-employee relationship between them and as such he cannot be subjected to disciplinary proceedings.

21. On its part, the 1st Respondent maintains that the ex parte applicant was registered as a teacher with the Commission at the time the offences allegedly took place therefore, it holds the mandate to institute disciplinary proceedings against him. It is the 1st Respondent’s case that the ex parte applicant was registered as a teacher in 2016 while the said offences took place between the period of 2017 and 2019. The 1st Respondent has however not provided any proof or evidence to substantiate that the ex parte applicant was registered as a teacher in 2016.

22. The 1st Respondent in my view had a duty to provide evidence that the ex parte applicant was indeed registered as a teacher with the Commission to justify the disciplinary process, this was a failure on its part. On his part, the applicant ought to have provided the court with his certificate of registration as a teacher to prove his actual date of registration with the Commission, without such evidence from both parties, the court should revert to the meaning of teacher, teaching service, appointment and registration as provided by for by statute to make a determination in this matter.

23. The Teacher Service Commission Act No 20 of 2012 (the Act) defines a teacher as: -‘‘means a person who has been trained as a teacher as provided for in law and registered as a teacher’’It further provides that:-‘‘means the collectivity of all individuals registered by the commission and engaged in the teaching profession whether employed by the Commission or not………………..’’(Emphasis added).

24. The Code of Conduct and Ethics for Teachers 2015 (the Code) gives the same meaning ascribed by Section 2 of the Teachers Service Commission Act 2012.

25. The code further provides under Section 3 that the code it applies to all registered teachers.

26. The Teachers Service Commission Code of Regulations for Teachers, 2015 (regulations) at Section 3 on interpretation describes ‘appointment’ as follows;“appointment” means the power conferred by the Commission on a registered teacher to perform teaching duties in any public educational institution.’’

27. It is the ex parte applicant’s case and it is not disputed that he was engaged as a teacher at Muthainga Academy from January 2015 until January 2017 when he was promoted to the position of head teacher in the said school until 26th October 2018 when he resigned after his appointment by the 1st Respondent to take up a position as a Primary Teacher II.

28. Going by the code of conduct and Ethics for Teachers 2015, my take is that for a person to be appointed or employed to teach either in a private or a public school in Kenya, you have to be registered as a teacher by the Teachers Service Commission. This means that thought the ex parte applicant was employed by the Teachers Service Commission to work in a Public School in 2018, his appointment was only possible because he was already a registered Teacher.

29. The provisions of Section 3 of the Act gives the Commission the mandate to register teachers and states that one cannot teach unless he is registered. It states;‘‘The Commission shall in accordance with Article 237 of the Constitution be responsible for registration of trained teachers in teaching service.(b)A person shall not engage in the teaching service unless such person is registered as a teacher under this Act………………………….’’

30. The above means that unless ex parte applicant is stating that he acted as a teacher in teaching service for almost 4 years without registration and thereby committing an offence, he was for all intents and purposes registered as a teacher and it matters not whether an offence is committed at a private institution or public institutions. The mandate of Teachers Service Commission under Article 237 and Teachers Service Commission Act on discipline covers all teachers whether in private or public schools.Section of the Teachers Service Commission Code of Regulations for Teachers provide;‘‘This Code except as otherwise provided shall apply to all registered teachers and every teacher will be deemed to have read, understood and accepted the provisions of this code.’’

31. The mandate of the 1st Respondent to institute disciplinary proceedings against the ex-party Applicant is provided for under Section 33 of the Teachers Service Commission Act No. 20 of 2012 which provides as follows: -‘‘The Commission may, subject to the regulations made under this Act, take disciplinary action against any person registered as a teacher under this Act.’’a.Subject to Subsection (1), the discipline of teachers not in the employment of the Commission shall be limited to offences leading to removal from the register of teachers.

32. Section 34 of the Act on Disciplinary Action provides as follows;‘‘A registered teacher shall be deemed to be a teacher in the teaching service, save as otherwise provided in this Act or any other law, and shall be subject to the law and regulations from time to time in force in respect of the service.’’

33. The code also provides for situations where the commission may take disciplinary action. Regulation 140 stipulates the nature of offences that may lead to disciplinary action. It states;‘‘The Commission may take disciplinary action against a teacher who commits any of the following offences;i.Immoral behavior, including but not restricted to;a.sexual intercourseb.sodomyc.lesbianism; andd.sexual intercourse or flirtation’’

34. The Code under Regulations 144, 146 provides for the processes to be undertaken by the Commission in disciplining teachers. The ex parte applicant has not challenged the respondent on account of those processes rather his complaint is based on the act that he was not in Public Service which ground is clearly untenable in view of the above position of the law and secondly, that he is facing a criminal case over the same allegations of sexual harassments on pupils. This brings out the question on whether an internal disciplinary process should be halted on account of existence of a criminal case and whether a person is exposed to a double jeopardy if he is subjected to 2 parallel processes.

35. In my considered view, where the processes are being undertaken by different bodies exercising their legal or statutory mandates, there is no double jeopardy unless it can be shown that the end result in one of them would be the same and prejudice the processes in the other. In such an event, a party can ask for an intervention of this court vide a Judicial Review. That is not the situation obtaining in this case.

36. The High Court in Republic vs Communications Authority of Kenya Ex parte Information Communication Technology Association of Kenya (ICTAK) [2021] eKLR spelt out considerations to be taken into account by the court when dealing with judicial review proceedings as follows;‘‘The purpose of judicial review is to ensure that public bodies execute their mandates within their statutory remit while at the same time ensuring fairness by complying with the rules of natural justice. There is also the need to ensure that those decisions are rational………………….’’

37. The exparte applicant has cited the decision in Pastoli versus Kabale District Local Government Council & Others [2008] 2 EA 300 where the court clearly spelt out instances when a court can intervene and it’s only on illegality, irrationality and procedural impropriety of an impugned decision. It stated: -‘‘……Kasule J. of Uganda explained the meaning of illegality, irrationality and procedural impropriety in the case of Pastoli versus Kabale District Local Government Council & Others [2008] 2 EA 300 when he stated that: -“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety:Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards’’

38. In Clement Karuri versus Kenya Port Authority [2018] eKLR, the court of Appeal when faced with a similar scenario as in the present case rendered itself thus;‘‘…………There is a clear distinction between internal disciplinary proceedings of an employer and criminal proceedings. Internal disciplinary proceedings are anchored on the contract of employment and the burden of proof therein is on a balance of probability, while in criminal proceedings, proof beyond reasonable doubt is required.It is also settled that the institution of criminal proceedings is not a bar to civil proceedings or disciplinary hearings on similar facts… With the foregoing in mind, we find that the respondent was not barred from commencing the disciplinary hearing in the manner it did.’’

39. In Republic v Advocates Disciplinary Tribunal & another Ex Parte Joseph Karanja Kanyi [2019] eKLR, the court referenced the cases of; Republic vs. Disciplinary committee Ex parte Wambugu [2008] and T. O. Kopero vs. The Disciplinary Committee of the Law Society of Kenya & Another HCCCA No. 461 of 2011 the court held that:“No one, not even the Applicant, in my view has a right to anticipate what the sentence of the Disciplinary Committee will be, until it’s legally pronounced. Indeed, to try to stop the Disciplinary Committee from completing carrying out its legal mandate under the relevant law appears to me to be an illegal exercise which this court in its unfettered discretion, will not be willing to assist the Applicant to achieve. The stay sought if granted, will without doubt assist the Applicant in preventing a lawfully constituted Tribunal from carrying out its legal mandate.” (Emphasis added)

40. The ex parte applicant had the burden to demonstrate that the action taken by the respondent is bad in law, unfair or tainted with illegality, irrationality and/or procedural impropriety. He has not discharged that burden given the evidence presented before this Court. He had not shown good reasons why this court should intervene and stop a statutory and a Constitutional body from carrying out its mandate.

41In the premises the motion dated 14th October, 2019 is devoid of merits and is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF OCTOBER, 2022. HON. JUSTICE R.K. LIMOJUDGE