Teachers Service Commission v Limo (Employment and Labour Relations Appeal E039 of 2024) [2026] KEELRC 2077 (KLR) (16 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E039 OF 2024** *(Before Hon. Lady Justice Maureen Onyango)* **TEACHERS SERVICE COMMISSION…………..……….APPELLANT** **VERSUS** **DOMINIC MOROGO LIMO……….……………..………RESPONDENT** (*Being an appeal from the judgment and decree of Hon. Kimani Mukabi delivered on 26th November 2024 in Chief Magistrate’s Court of Kenya at Eldoret in Cause No. CMELRC Cause No. E038 OF 2021)* **JUDGMENT** 1. The Appellant herein was the Respondent, while the Respondent herein was the Claimant in Eldoret CMELRC No. E038 of 2021 wherein the Respondent sued the Appellant vide a Memorandum of Claim dated 20th April 2021seeking the following reliefs: - 2. The court declares that the Claimant's termination was unfair, procedural and unlawful. 3. An order that the Claimant's name be re-registered in the register for teachers. 4. One month's salary in lieu of notice Kshs.48,549.00. 5. Twelve (12) months compensation for unfair and unlawful termination (Kshs.48, 549.00x 12 months) Kshs. 631, 137. 6. The Claimant be reinstated back to his position. 7. Costs of this claim. 8. Interest on c, d & f above 9. The Claimant pleaded that he was employed by the Respondent as a Secondary Teacher Grade III at Metkei Girls Secondary School in 2017. At the time of the termination of his employment on 10th December 2020, he was earning a monthly salary of Kshs. 48,549. He contended that his dismissal was unfair, unlawful and procedurally unfair. 10. He averred that he faithfully served the Respondent until he was dismissed from employment on baseless, false and unproved allegations. He further contended that the disciplinary process culminating in his dismissal violated his rights to fair administrative action and a fair hearing under Articles 47 and 50 of the Constitution and failed to meet the requirements of sections 41, 43, 44(4) and 45 of the Employment Act. 11. The Claimant further asserted that despite requesting the Respondent to furnish him with the documentary evidence relied upon in dismissing him, including the statement of the complainant, EJR, and the statements of other witnesses, the Respondent failed to avail the requested documents, thereby prejudicing his ability to prepare an adequate defence. 12. Consequently, the Claimant sought, among other reliefs, one month's salary in lieu of notice, compensation for unfair termination and an order of reinstatement together with costs of the suit. 13. The Respondent filed a Memorandum of Response dated 18th May 2021 denying the allegations made by the Claimant that he was dismissed from employment unlawfully or unfairly. The Respondent contended that in the discharge of its constitutional and statutory mandate under the Teachers Service Commission Act, the Employment Act, the Code of Regulations for Teachers (2015), the Code of Conduct and Ethics and Administrative Circular No. 3 of 2010 on the Protection of Pupils/Students from Sexual Abuse, it lawfully investigated allegations of professional misconduct made against the Claimant. 14. The Respondent averred that it received information from the Principal of Metkei Girls Secondary School alleging that on 15th September 2019 the Claimant had engaged in sexual intercourse with a Form Two student, EJR and on the basis of those allegations, it commenced investigations during which statements were recorded from the complainant and other student witnesses. 15. According to the Respondent, the complainant gave a detailed account of the incident which was corroborated by statements recorded from her fellow students, M and E. 16. The Respondent further averred that the Claimant was afforded an opportunity to respond to the allegations by recording a statement, appearing before the County Disciplinary Committee on 11th March 2020 and later attending a disciplinary hearing before the Commission on 26th November 2020. It maintained that during both proceedings the Claimant was accorded an opportunity to present his defence, cross-examine the witnesses and tender his evidence. 17. The Respondent stated that the investigations established that the Claimant had cultivated a special relationship with the complainant, allowed her to use his personal mobile phone contrary to school rules, engaged in sexual intercourse with her, administered pills to prevent pregnancy and warned her against disclosing the incident. It was maintained that based on those findings, the Respondent interdicted the Claimant on 16th March 2020 pending disciplinary proceedings. 18. The Respondent further averred that following the disciplinary hearing held on 26th November 2020, where the complainant, the school Principal and other witnesses testified, it carefully evaluated the oral testimony, documentary evidence and witness statements before concluding that the allegations had been established. 19. It is the Respondent’s case that it consequently dismissed the Claimant from the teaching service by a letter dated 10th December 2020. It is averred that in that letter, the Claimant was informed of his right to seek a review of the decision within the period prescribed under the Code of Regulations for Teachers. 20. The Respondent maintained that the dismissal was lawful, procedurally fair and substantively justified and urged the Court to dismiss the Claimant's suit with costs. 21. The matter proceeded to hearing, where the Claimant testified and called one witness, while the Respondent called two witnesses in its defence. 22. The Claimant testified as CW1 and adopted his witness statement dated 20th April 2021 as his evidence-in-chief. He testified that, while serving as a teacher at Metkei Girls Secondary School, he was accused of defiling a student. He stated that following those allegations, he appeared before the Board of Management (BOM) on 22nd October 2019, after which disciplinary proceedings were instituted against him and that he was subsequently interdicted and, upon conclusion of the disciplinary process, was dismissed from service. 23. The Claimant stated that prior to the disciplinary proceedings, he requested the Respondent to furnish him with relevant documents but was not supplied with all the documents he had sought. He testified that although the Board of Management found there was no evidence warranting disciplinary action against him and merely recommended his transfer, that report was never availed to him. He further stated that the Respondent disregarded the findings of the investigations conducted by the Directorate of Criminal Investigations. 24. It was the Claimant's testimony that although he was afforded an opportunity to cross-examine the complainant during the disciplinary proceedings conducted on 26th November 2020, he was repeatedly interrupted and only permitted to ask two questions before the witness was stopped from giving further explanations. According to him, the complainant denied the allegations against him and explained why she had implicated him, but her testimony was disregarded before she could fully explain herself. 25. The Claimant further testified that several crucial documents were withheld from him, including the medical report, the report of the disciplinary proceedings held on 26th November 2020 and the CCTV footage from the school. He maintained that these documents would have assisted in establishing his innocence. He stated that although the allegations concerned the offence of defilement, the matter was never prosecuted and he was never charged before any criminal court. 26. The Claimant testified that he was interdicted on 16th March 2020 while earning a monthly salary of Kshs. 48,549. He stated that he had not received any salary since the interdiction. It was his evidence that his dismissal was unfair, unlawful and procedurally flawed. He therefore prayed for the reliefs sought in the Memorandum of Claim, including reinstatement to the register of teachers and costs of the suit. 27. During cross-examination, the Claimant confirmed that he appeared before the County disciplinary committee, which found that he had a case to answer before referring the matter to the Teachers Service Commission disciplinary panel. He stated that he was allowed to cross-examine the complainant but maintained that her responses were disregarded. He testified that although he requested additional documents from the Commission after receiving some documents via email, his request was not honoured. He reiterated that neither the medical report nor the CCTV footage was availed to him. 28. He maintained that the allegations against him were never proved as the complainant denied the allegations during the disciplinary proceedings and that he was only allowed to ask her two questions. He further testified that although investigations were conducted by three different bodies and he lodged an appeal which was heard, the Commission upheld his dismissal. 29. Upon re-examination, the Claimant stated that the disciplinary minutes were only supplied after these proceedings had already commenced. He reiterated that he was dissatisfied with the disciplinary process and maintained that the CCTV footage would have been material in establishing the truth. He prayed to be compensated for unfair termination 30. The Claimant called ECR who testified as CW2. She testified that on 16th September 2019 she went to the staff room to deliver an assignment to another teacher but, finding him absent, left it with the Claimant. She averred that she subsequently travelled home following the death of her father and upon returning to school, she was summoned by the Principal and informed that allegations had been made that she had been defiled by the Claimant. 31. She testified that she denied the allegations but was instructed to record a witness statement containing the allegations. She maintained that she informed both the Principal and the officers from the Directorate of Criminal Investigations (DCI) that no such incident had occurred. 32. According to CW2, she was later summoned by another school official who threatened her and compelled her to write another statement in accordance with what she was instructed to record. She testified that the DCI later visited her home, where she denied being defiled by the Claimant. She further stated that she was taken for medical examination but was never informed of the results. 33. CW2 testified that she subsequently appeared before the County Director of Education and later before the Board of Management and the Teachers Service Commission disciplinary panel. She asserted that throughout those proceedings she consistently stated that the allegations against the Claimant were false. She testified that she was intimidated and threatened to cooperate. CW2 stated that the letter she later wrote retracting the allegations was rejected and that, despite informing the disciplinary panel that she had not been defiled, the Claimant was nevertheless dismissed. 34. During cross-examination, CW2 testified that although she initially recorded a seven-page witness statement, she did so under pressure after being instructed on how to write it. She maintained that she had not seen the statements recorded by other students. She confirmed that she had gone to the staff room only to collect salt and later to deliver an assignment, and that nothing improper occurred during either encounter with the Claimant. She further testified that she admitted the allegations before the disciplinary panel because she had been intimidated by the County Director and other officials. 35. Upon re-examination, CW2 reiterated that she recorded the witness statement under pressure and that during the meeting before the County Director she maintained that the allegations against the Claimant were false. 36. The Respondent called Caroline Chepkemoi Maritim, who testified as RW1. She adopted her witness statement dated 8th March 2023 as her evidence in chief. She testified that she was a teacher at Metkei Girls Secondary School. 37. During cross-examination, RW1 stated that she was CW2’s class teacher at the material time and participated in the virtual disciplinary meeting held on 11th March 2020, where she attended as a witness. She testified that CW2 went to her office on an unrelated matter after the death of her father and during the course of their conversation, she voluntarily disclosed that she had been defiled by the Claimant. RW1 denied initiating any discussion regarding sexual assault and stated that she had merely been handling another disciplinary issue at the time. 38. The Respondent also called Jane Ruguru Irambu, its Deputy Director in charge of Teacher Discipline Management, who testified as RW2. RW2 adopted her witness statement dated 7th June 2021 together with the Respondent's documentary evidence. 39. It was RW2’s evidence that the complainant testified before the disciplinary panel and that the Claimant was allowed to question her and the other witnesses. According to RW2, neither the complainant nor the other student witnesses retracted their statements during the disciplinary proceedings. 40. During cross-examination, RW2 testified that she attended the disciplinary meeting held on 26th November 2020. She confirmed that the school Principal informed the panel that no criminal case had been instituted against the Claimant and that there was no medical report produced during the disciplinary proceedings. She further stated that the Board of Management minutes formed part of the documents considered by the Commission in reaching its decision. RW2 maintained that the disciplinary proceedings related to professional misconduct and that all documents placed before the panel were considered. 41. On re-examination, RW2 reiterated that the proceedings before the Commission related to professional misconduct rather than criminal liability. She testified that the Board of Management proceedings were considered together with the regional investigation report. CW2 explained that the Commission does not ordinarily rely on medical reports in disciplinary proceedings relating to professional misconduct and stated that investigations had been conducted both at the county and regional levels to ensure fairness and clarity before the disciplinary hearing. 42. Upon the close of the Respondent's case, the parties were directed to file written submissions. Thereafter, in its judgment delivered on 26th November 2024, the trial court found that the Claimant's termination was unfair and entered judgment in his favour in the following terms: - 43. A declaration is issued that the Claimant’s termination was unfair 44. A sum of 1 month’ salary of Kshs 48,549 in lieu of notice 45. Award of 6 months’ salary as compensation for unfair termination 46. Translating to total award of Kshs 339,843 47. The Claimant is to be reinstated back to his position 48. Costs of the suit 49. Interests **The Appeal** 1. The Respondent (now the Appellant) being dissatisfied with the said Judgement instituted the instant appeal vide the Memorandum of Appeal dated 4th December 2024 on grounds that: - 2. The learned Magistrate acted in excess of his jurisdiction and grossly erred in law by ordering that the Claimant be reinstated back to employment 4 years after dismissal contrary to section 12(3)(Vii) of the Employment and Labour Relations Court Act, which provides that an order for reinstatement of an employee shall be done within three years of dismissal. 3. By determining that the Claimant was interdicted without due process taking place and that he was never asked to formally respond to the alleged charges, neither was he invited to a hearing prior to the interdiction, the Learned Magistrate grossly misinterpreted the provisions of Regulations 139-156 of the Code of Regulations for Teachers which prescribes the disciplinary process for teachers and prescribed an unknown procedure on the Appellant. 4. The learned Magistrate erred in law and fact by determining that the Respondent's disciplinary hearing held on 26th November, 2020 was conducted irregularly as al was in form of a question and answer format and that the Claimant was never informed of his right to have Counsel to represent him contrary to the provisions of Section 48 of the Employment Act thereby misconstruing the nature of proceedings before the Respondent which were distinct from those in a Court of law. 5. The Learned Magistrate failed to appreciate the nature of offence the Respondent was accused of which by its very nature was distinct from that in a Criminal Court and depended on circumstantial evidence as opposed to direct evidence to proof on a balance of probability. 6. The Learned Magistrate erred in law and fact by failing to recognize that the threshold for standard of proof in proceedings before an employer such as the Appellant is not similar and/or comparable to the standard of proof in criminal matters. 7. The Learned Magistrate ignored the evidence tendered by the Appellant's witnesses and instead believed in the recanted statement by (EJR) the victim of the teacher's act of misconduct to the exclusion of the evidence by others. The Court appears to have believed that renouncing of evidence on the part of a victim and or complainant constitutes or should establish innocence on the part of the Respondent accused of immoral misconduct. 8. By holding that the Appellant denied the Claimant his right to Review, the Leaned Magistrate failed to consider the Appellant's evidence that the alleged application for Review was incomplete pursuant to Regulation 156(5) of the Code of Regulations for Teachers. 9. The Learned Magistrate erred in law and fact when he failed to appreciate the Appellant's role in the protection of children as provided for Under Article 53 1(d) of the Constitution which proves that every child has a right to be protected from abuse. 10. The learned Magistrate failed to appreciate the Constitutional, statutory and contractual mandate of the Appellant to exercise disciplinary Control over its employees. 11. The learned Magistrate erred in law in arriving at a decision which was contrary to the evidence tendered by the Appellant, law, facts, submissions, authorities and binding judicial precedents tendered before court. 12. In holding that the Appellant handled the matter casually by not reporting the matter to the authorities for criminal investigations, the learned Magistrate irregularly and unfairly imposed an unknown procedure on the Appellant and failed to take into consideration the Appellant's evidence on the issue. 13. The learned Magistrate has not provided legal and/or reasoned justification on the awards made in favour of the Respondent. 14. The learned Magistrate grossly misinterpreted and misapplied the relevant law and arrived at an erroneous conclusion of law. 15. Consequently, the Appellant seeks the following orders: 16. The appeal be allowed with costs. 17. The judgement of Hon. Kimani Mukabi in Eldoret CMEL No. EO38 of 2021 dated 26th November, 2024 and all consequent Orders be set aside. 18. Pursuant to the directions of the court, the appeal was disposed of by way of written submission. The Appellant’s submissions are dated 22nd June 2026 while the Respondent’s submissions are dated 8th June 2026. **The Appellant’s submissions** 1. As can be deduced from the Appellant’s submissions, the grounds of appeal have been crystallized into the following issues: - 2. Whether the learned trial magistrate erred in law by ordering the Respondent's reinstatement more than three years after his dismissal 3. Whether the learned trial magistrate erred in finding that the Respondent's dismissal was procedurally unfair 4. Whether the learned trial magistrate erred in finding that the Respondent's dismissal lacked substantive justification. 5. With regard to the order of reinstatement, the Appellant submits that the learned trial magistrate acted in excess of jurisdiction by ordering the Respondent's reinstatement approximately four years after his dismissal. It is submitted that the jurisdiction to order reinstatement is conferred by section 49(3)(a) of the Employment Act and section 12(3)(vii) of the Employment and Labour Relations Court Act, both of which limit the grant of the remedy to cases brought within three years of dismissal. 6. The Appellant further submits that reinstatement is not an automatic remedy but one that is available only in exceptional circumstances. In support of this proposition, reliance is placed on ***Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR.*** 7. It is further submitted that by the time the trial court made the order of reinstatement, the Respondent had been out of employment for approximately four years and had not rendered any service to the Appellant during that period. According to the Appellant, the lapse of time rendered reinstatement impracticable. 8. The Appellant also contends that it had lost trust and confidence in the Respondent following the findings of professional misconduct relating to allegations of sexual abuse of a learner entrusted to his care. The Appellant submits that, in those circumstances, it would be inappropriate to compel it to re-engage the Respondent, particularly given its obligation to safeguard learners. In support of this argument, the Appellant relies on the decision of ***Dalmas B. Ogoye v K.N.T.C. Ltd [1996] eKLR***. 9. Based on the foregoing, the Appellant urged the Court to find that the learned trial magistrate erred in law in granting the remedy of reinstatement and to set aside that order. 10. On the second issue, the Appellant submits that the learned trial magistrate misinterpreted Regulations 139 to 156 of the Code of Regulations for Teachers by finding that the Respondent was interdicted without due process, was not called upon to formally respond to the allegations before interdiction, was not invited to a hearing prior to interdiction, that the disciplinary hearing was irregularly conducted in a question-and-answer format, and that he was not informed of his right to legal representation. It contends that, in so finding, the trial court prescribed a procedure not contemplated under the Code of Regulations for Teachers. 11. The Appellant submits that the Code of Regulations for Teachers sets out the procedure governing disciplinary proceedings against teachers, with Regulations 146 to 156 prescribing the steps to be followed. It maintains that it complied with those provisions and adhered to the rules of natural justice throughout the disciplinary process. 12. According to the Appellant, upon receiving information from the Principal of Metkei Girls Secondary School that the Respondent had allegedly engaged in sexual intercourse with a Form Two student, it initiated investigations in accordance with Regulation 146 of the Code. To that end, the County Director, Elgeyo Marakwet, constituted an investigation panel before which witnesses testified. The Appellant submits that during those proceedings, the Respondent was accorded an opportunity to respond to the allegations, cross-examine the complainant and present exculpatory evidence. 13. The Appellant further submits that following the investigations, the Respondent was interdicted with effect from 16th March 2020 to pave the way for disciplinary proceedings. It states that the interdiction letter required the Respondent to submit a written statement of defence within twenty-one days in preparation for the disciplinary hearing. 14. It is further submitted that the County Disciplinary Panel subsequently convened on 26th November 2020, at which the Respondent appeared and was once again afforded an opportunity to answer the allegations levelled against him. Upon evaluating the statements and evidence presented, the panel recommended his dismissal from service and removal from the Register of Teachers. 15. The Appellant therefore maintains that the disciplinary proceedings were conducted fairly, impartially and in accordance with the Teachers Service Commission Act and the Code of Regulations for Teachers and that the decision to dismiss the Respondent was arrived at after due consideration of the evidence presented. 16. Lastly, on whether the learned trial magistrate erred in finding that the Respondent's dismissal lacked substantive justification, the Appellant submits that the learned trial magistrate failed to appreciate the nature of disciplinary proceedings before the Teachers Service Commission, which are distinct from criminal proceedings. 17. The Appellant submits that the disciplinary committee is a quasi-judicial body and, by virtue of section 12 of the Teachers Service Commission Act and Regulation 139(1)(d) of the Code of Regulations for Teachers, is not bound by the strict rules of evidence applicable in courts of law. According to the Appellant, the applicable standard of proof in disciplinary proceedings is on a balance of probabilities and not beyond reasonable doubt. In support of this submission, the Appellant cites the case of Mobile ***Link (K) Limited v Tabitha Masege [2017] eKLR***. 18. It is the Appellant's submission that the disciplinary panel considered all the evidence presented before it before arriving at its decision. The Appellant submits that during the disciplinary hearing, the Respondent initially denied knowing the complainant but later admitted that she had borrowed his phone to call her mother, which, according to the Appellant, demonstrated inconsistency in his account. The Appellant submits that the complainant appeared before the disciplinary panel, adopted her statement alleging that the Respondent had sexually abused her and maintained that position during the disciplinary proceedings. The Appellant therefore contends that it genuinely believed, on the basis of the evidence before it, that the Respondent had committed professional misconduct warranting dismissal. In support of this position, the case of ***Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR*** was cited. 19. The Appellant accordingly urged the Court to allow the appeal, set aside the judgment of the trial court and dismiss the Respondent's claim with costs. **The Respondent’s submissions** 1. In its submissions, the Respondent crystallized the grounds of appeal into the following two issues: - 2. Whether the learned magistrate erred in law and fact when he held that the Appellant herein was in contravention of law when it interdicted the Respondent and subsequently went ahead and dismissed him from employment on 10th December 2020 3. Whether the learned magistrate erred in law and fact when he awarded the Respondent the prayers as prayed in his Memorandum of claim dated 20th April 2021 4. On whether the trial court erred in finding that the dismissal was unfair, the Respondent submitted that the trial court correctly found that his dismissal was substantively and procedurally unfair. He contended that the evidence adduced at the trial established, on a balance of probabilities that the disciplinary process was fundamentally flawed and that the Appellant failed to establish the allegations levelled against him. 5. The Respondent submitted that during the disciplinary hearing held on 26th November 2020, he denied the allegations and was denied a meaningful opportunity to cross-examine the complainant as he was interrupted and prevented from questioning her at length. He contended that the complainant informed the disciplinary panel that she had been coerced into implicating him, but her explanation was ignored. 6. He further submitted that the evidence of the former Principal, Edith Koech, as reflected in the disciplinary minutes, demonstrated that the Board of Management considered the allegations criminal in nature and found there was no tangible evidence upon which disciplinary action could properly be founded. Further, he submitted that although the matter had been reported to the Directorate of Criminal Investigations and the complainant had undergone medical examination, no investigation report, medical report or other corroborative evidence was produced before either the disciplinary committee or the trial court. He also submitted that no criminal charges were ever preferred against him 7. The Respondent relied on ***Sammy Gatimu Karanja v Teachers Service Commission [2020] KEELRC 1126 (KLR*)** and submitted no credible or tangible evidence was presented to warrant his dismissal. 8. The Respondent further submitted that although he requested additional documents from the Appellant to facilitate the preparation of his defence, those requests were ignored, thereby compromising his right to adequately defend himself. 9. The Respondent submitted that CW2 consistently maintained before the trial court that he had not defiled her, and that she stated that she had been directed by school officials to align her statement with those of other students. 10. The Respondent submitted that the trial court properly relied on CW2's oral testimony notwithstanding her earlier statements, as she explained that those statements had been procured through coercion and intimidation while she was still a minor and therefore vulnerable to undue influence. In support of that submission, reliance was placed on ***Teachers Service Commission v Ndung'u, Civil Appeal No. E191 of 2022****.* 11. The Respondent further submitted that the Appellant relied primarily on rumours and statements obtained under duress without any independent evidence establishing the alleged misconduct. 12. It is the Respondent’s further submission that the evidence of the Appellant's own witnesses undermined its case. According to the Respondent, RW1 confirmed that the complainant did not initially report any allegation of sexual assault and that the issue only arose after questioning by school officials. It is averred that similarly, RW2 conceded that no criminal proceedings had been instituted and that no medical report was produced in support of the allegation against the Respondent. It is the Respondent’s submission that the disciplinary panel relied substantially on the Board of Management proceedings despite those proceedings indicating insufficient evidence against him. 13. The Respondent submitted that the disciplinary proceedings were characterized by leading questions directed at witnesses, thereby demonstrating that the disciplinary panel had predetermined the outcome rather than conducting an impartial inquiry. To buttress this position, the decision in ***Namuye v Teachers Service Commission & another (Petition No. E103 of 2020) [2023] KEELRC*** was cited. 14. The Respondent further submitted that RW2 gave contradictory evidence regarding the documents relied upon by the disciplinary panel, particularly as to whether the minutes of 11th March 2020 formed the basis of the decision. He maintained that no investigation report or independent evidence was produced linking him to the alleged misconduct. In support of that argument, reliance was placed on ***Shikonde v Teachers Service Commission & 2 others (Cause No. 35 of 2021) [2023] KEELRC****.* 15. The Respondent therefore submitted that the trial court correctly found that the Appellant had failed to establish a valid and fair reason for dismissal and that the termination was substantively and procedurally unfair. 16. On the remedies awarded by the trial court, the Respondent submitted that, having properly found the dismissal unfair, the trial court was justified in granting the reliefs sought, including the order for reinstatement. 17. In response to the Appellant's challenge to the order of reinstatement on the ground that it was made outside the three-year period prescribed under section 12(3)(vii) of the Employment and Labour Relations Court Act, the Respondent submitted that the delay was attributable to factors beyond his control, including adjournments occasioned by network challenges, the illness of the trial magistrate and the transfer of the judicial officer who had initially heard the matter. He relied on the case of ***Teachers Service Commission v Mwita (Appeal No. E049 of 2023) [2023] KEELRC***in support of his argument. 18. The Respondent consequently urged the Court to find that the trial magistrate properly evaluated the evidence, correctly applied the law and rightly concluded that the dismissal was unfair. 19. He therefore prayed that the appeal be dismissed with costs. **Determination** 1. I have considered the Appellant’s Record of Appeal and the submissions on record. The grounds of appeal may be summarized into the following issues for determination: - 2. Whether the learned trial magistrate erred in finding that the Respondent's dismissal was procedurally and substantively unfair. 3. Whether the trial court erred in granting the remedies awarded 4. Who should bear the costs of the appeal 5. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence that was adduced before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. See **Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424** *Whether the learned trial magistrate erred in finding that the Respondent's dismissal was procedurally and substantively unfair* 1. The law is settled that for a termination of employment to be fair, an employer must establish both substantive justification and procedural fairness. Sections 43 and 45 of the Employment Act require an employer to prove the reasons for termination and demonstrate that those reasons were valid and fair. In addition, section 41 of the Act obligates the employer to accord the employee a fair hearing before terminating employment. 2. The Appellant contends that the learned trial magistrate erred by applying a criminal standard of proof to disciplinary proceedings, failing to appreciate the distinct nature of disciplinary proceedings under the Code of Regulations for Teachers, disregarding the evidence adduced before the disciplinary panel and placing undue reliance on the complainant's recanted testimony. 3. The Appellant further submitted that the Respondent was accorded a fair hearing and that the disciplinary process complied with the applicable legal framework. 4. On the other hand, the Respondent maintains that the Appellant failed to establish a valid and fair reason for his dismissal. He contends that the disciplinary proceedings were marred by procedural irregularities as he was not supplied with documents necessary for the preparation of his defence and that he was denied any meaningful opportunity to cross-examine the complainant. He further submits that the allegations against him were unsupported by any medical evidence, investigation report or criminal proceedings and that the complainant expressly disowned the allegations during the disciplinary proceedings and before the trial court. 5. The issues that therefore arise are whether the Appellant established a valid and fair reason for dismissing the Respondent as required under sections 43 and 45 of the Employment Act and whether, in arriving at that decision, it complied with the procedural requirements prescribed under section 41 of the Act and the applicable Code of Regulations for Teachers. 6. Sections 43 and 45 of the Employment Act impose upon an employer the burden of proving the reasons for terminating an employee's employment and demonstrating that those reasons were valid and fair. Failure to discharge that burden renders the termination unfair within the meaning of the Act. It is equally settled that an employer is not required to prove misconduct beyond reasonable doubt, as in criminal proceedings. Rather, the test is whether, on the material available at the time, the employer had reasonable and sufficient grounds to genuinely believe that the employee had committed the misconduct alleged. 7. The Respondent was dismissed on allegations that he had engaged in sexual intercourse with a Form Two student at Metkei Girls Secondary School, conduct which, if proved, undoubtedly amounted to gross misconduct warranting dismissal under the Code of Regulations for Teachers and the Employment Act. The seriousness of the allegations, however, did not lessen the Appellant's obligation to establish a valid and fair basis for the disciplinary action taken. 8. Having re-evaluated the record, it is evident that the Appellant's case rested principally on witness statements recorded during its investigations and the disciplinary proceedings conducted before its various committees. Although the Appellant submitted that those statements established the Respondent's culpability, the record also reveals that the complainant testified before the disciplinary panel and the trial court that the allegations against the Respondent were false and that the statements implicating him had been recorded under pressure and intimidation. She consistently maintained that no sexual relationship had occurred between herself and the Respondent. 9. The Appellant urged this Court to disregard the complainant's recantation and instead rely on her earlier statements together with those of the other student witnesses. 10. While this Court appreciates that disciplinary proceedings are distinct from criminal trials and that the standard of proof is not one of proof beyond reasonable doubt, the disciplinary authority must nevertheless act on credible, reliable and sufficient evidence. As was observed in ***Sammy Gatimu Karanja v Teachers Service Commission* [2020] KEELRC 1126 (KLR)**, where the evidence relied upon is of the kind that could equally found criminal proceedings, the court must carefully scrutinise its reliability before upholding disciplinary action founded upon it. 11. The record further shows that no medical report, forensic evidence or investigation report from the Directorate of Criminal Investigations was produced before the disciplinary panel, yet there is evidence that the complainant was subjected to a medical examination as part of the investigations. While the absence of criminal proceedings or medical evidence does not, of itself, invalidate disciplinary proceedings, it deprived the allegations of any independent corroboration, leaving the Appellant's case substantially dependent on witness statements whose reliability was vigorously challenged during both the disciplinary proceedings and the trial. 12. Significantly, the evidence of the Appellant's own witnesses disclosed certain inconsistencies regarding the material relied upon by the disciplinary panel. RW2 acknowledged that no medical report was produced and gave inconsistent evidence regarding the minutes that informed the panel's decision. Additionally, her evidence suggested that the Board of Management had expressed reservations regarding the sufficiency of the evidence against the Respondent. These were matters the disciplinary panel was required to carefully evaluate before arriving at its decision. 13. Having independently reviewed the evidence on record, I am not persuaded that the learned trial magistrate misdirected himself in concluding that the Appellant failed to establish a valid and fair reason for the Respondent's dismissal. The learned magistrate did not impose a criminal standard of proof upon the Appellant. Rather, he evaluated whether the evidence presented before the disciplinary process was sufficiently credible and reliable to justify the Respondent's dismissal. That approach was consistent with sections 43 and 45 of the Employment Act. 14. The Appellant further contends that the learned trial magistrate erred in finding that the disciplinary process was procedurally unfair. It submits that the Respondent was accorded every opportunity to defend himself, including responding to the allegations, cross-examining the witnesses and presenting his defence in accordance with the Code of Regulations for Teachers. It further submits that the trial court improperly imported procedural requirements applicable to judicial proceedings into what was essentially an administrative disciplinary process. 15. Section 41 of the Employment Act requires an employer, before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity, to explain the reason for the contemplated termination in a language the employee understands and to afford the employee an opportunity to respond in the presence of another employee or shop floor union representative of his choice. The essence of the provision is to ensure that the disciplinary process is fair and that the employee is afforded a genuine opportunity to know the case against him and to answer it. 16. It is not disputed that the Respondent was interdicted, invited to disciplinary proceedings and afforded an opportunity to participate in the hearings before the County Disciplinary Committee and subsequently, before the Commission's disciplinary panel. It is also not disputed that he cross-examined the complainant and the other witnesses. The issue, however, is whether that opportunity was real and effective. 17. The Respondent consistently maintained that he was denied access to documents necessary for the preparation of his defence, including the complainant's statement, witness statements, the medical report, CCTV footage and other documents relied upon by the Appellant. Although the Appellant contended that the relevant documents were supplied, the evidence before the trial court showed that some of the requested documents, particularly the disciplinary proceedings and other materials sought by the Respondent, were only supplied after the commencement of these proceedings. 18. The Respondent further testified that he was only permitted to ask the complainant two questions before being interrupted and prevented from pursuing further cross-examination. This evidence was corroborated, to some extent, by the complainant herself, who testified that she was not afforded an adequate opportunity to explain that the allegations against the Respondent were false and that she had been coerced into recording the earlier statements. Although the Appellant disputes that account, the trial court accepted that evidence after observing the witnesses testify. 19. The Respondent also challenged the manner in which the disciplinary proceedings were conducted, contending that the witnesses were subjected to leading questions which suggested predetermined answers. Upon perusal of the disciplinary proceedings forming part of the record, it is evident that several of the questions posed to the witnesses were framed in a manner intended to elicit specific responses rather than permitting the witnesses to give their accounts freely. While disciplinary proceedings need not adhere to the strict rules of evidence applicable in courts of law, they must nevertheless be conducted fairly and impartially so as to inspire confidence in the outcome. 20. The Court is mindful that disciplinary proceedings conducted by the Appellant are administrative in nature and need not replicate criminal or even civil judicial trials. However, the leeway accorded to such proceedings does not relieve the Appellant of its obligation to comply with the principles of natural justice and the constitutional requirements of fair administrative action under Article 47 of the Constitution. A disciplinary hearing must be more than a ritual intended to validate a predetermined decision. It must constitute a genuine inquiry into the allegations levelled against the employee. 21. Having re-evaluated the entire record, I am satisfied that the learned trial magistrate cannot be faulted for finding that the disciplinary process fell short of the standards of procedural fairness required under section 41 of the Employment Act. From the minutes of the disciplinary proceedings, the manner in which the hearings were conducted justified the trial court's conclusion that the Respondent was not accorded a fair disciplinary process. 22. I therefore find no basis for interfering with the learned trial magistrate's finding that the Respondent's dismissal was both substantively and procedurally unfair. Accordingly, the first ground of appeal fails. *Whether the trial court erred in granting the remedies awarded* 1. The award of remedies under section 49 of the Employment Act is discretionary and must be exercised judiciously, taking into account the circumstances of each case and the factors enumerated under section 49(4) of the Act. An appellate court will therefore not interfere with the exercise of that discretion unless it is shown that the trial court misdirected itself in law, took into account irrelevant considerations, failed to consider relevant matters or arrived at a plainly erroneous decision. 2. The Appellant principally challenges the order of reinstatement on the ground that it was made outside the period prescribed under section 12(3)(vii) of the Employment and Labour Relations Court Act. That provision provides that an order for reinstatement shall not be made after the expiry of three years from the date of dismissal. 3. The record shows that the Respondent was dismissed from employment on 10th December 2020. The judgment of the trial court was delivered on 26th November 2024, nearly four years after the dismissal. By that time, the statutory period within which an order of reinstatement could lawfully be made had lapsed. 4. The Respondent submitted that the delay in the conclusion of the proceedings was occasioned by factors beyond his control, including adjournments arising from network challenges, the illness of the trial magistrate and the transfer of the judicial officer who had initially handled the matter. While this Court appreciates those circumstances, the statutory limitation imposed by section 12(3)(vii) of the Employment and Labour Relations Court Act is couched in mandatory terms and leaves no discretion to the Court once the prescribed period haslapsed. 5. The Court of Appeal has consistently held that the jurisdiction to order reinstatement is expressly limited by statute and cannot be exercised outside the three-year period stipulated under section 12(3)(vii) of the Employment and Labour Relations Court Act. Accordingly, the learned trial magistrate fell into error by granting the order of reinstatement after the expiry of the statutory period. 6. I therefore find merit in the Appellant's ground of appeal challenging the order of reinstatement. The order directing that the Respondent be reinstated to the teaching service is hereby set aside. 7. With regard to the award of one month's salary in lieu of notice and six months' salary as compensation for unfair termination, I have found no basis upon which to interfere with the learned trial magistrate's exercise of discretion. Having found that the dismissal was unfair, the award of those remedies was properly grounded in sections 35, 49 and 50 of the Employment Act. The award of six months' salary as compensation cannot be said to have been inordinately high or founded on wrong principles so as to warrant interference by this Court 8. Costs ordinarily follow the event unless, for good reason, the Court orders otherwise. In the present appeal, the Appellant has succeeded only to the limited extent that the order of reinstatement is set aside, while the Respondent has successfully defended the trial court's finding that his dismissal was substantively and procedurally unfair and the attendant awards of notice pay and compensation. 9. In the result, the appeal partially succeeds and is disposed of in the following terms: - 10. The appeal against the order of reinstatement succeeds. Consequently, the order directing the reinstatement of the Respondent to the teaching service is hereby set aside. 11. Save for the setting aside of the order of reinstatement, the judgment of the trial court delivered on 26th November 2024 is hereby affirmed. 12. The Respondent had in his claim prayed for an order that his name be re-registered in the register for teachers and an order for reinstatement to his employment. In view of the fact that the trial court did not distinguish whether the order of reinstatement was for both work and the register for teachers, the court orders that the Respondent’s name be reinstated to the register for teachers. 13. Each party shall bear its costs of the appeal while the orders for costs in the trial court remain undisturbed. **DATED, DELIVERED AND SIGNED** **ON THIS 16TH DAY OF JULY 2026.** **M. ONYANGO** **JUDGE**