[2017] KEELRC 1269 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 950 OF 2016

VICTOR SAMMY MUTISO ……………………….……... CLAIMANT

VERSUS

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

RULING

1. The ruling herein relates to two applications dated 21st May, 2016 and 29th August, 2016.

In the application dated 21st may, 2016 the Claimant is seeking for orders that;

1. …

2. The Respondent be ordered to withdraw in writing the interdiction letter dated 23rd November 2015.

3. Spent.

4. An injunction be and is hereby issued restraining the Respondent from terminating the applicant’s employment pending the hearing and determination of this suit.

5. The Claimant be reinstated back to work without loss of seniority, with full pay and benefits forthwith

6. …

2. The application is supported by the affidavit of the Claimant and on the grounds that he was unfairly and without due process interdicted from his employment with the Respondent and the Respondent then proceeded to withhold his monthly salaries subjecting the Claimant to hardship. That unless the orders sought are allowed the Claimant shall suffer great loss and damage and prejudice his career of 22 years as he has no opportunity to pursue another career opportunity.

3. In his Supporting Affidavit and Further Affidavit, the Claimant avers that upon employment by the Respondent 19th febraury, 1994 as a teacher he raised through the ranks to Head Teacher until his interdiction while at Syomukuu Secondary School. The TSC County Director by letter of 23rd November, 2015 interdicted the Claimant unprocedurally on allegations of immoral behaviour and incitement.

4. The Claimant made statement to the Respondent on 24th December, 2014 where the Claimant did set out that the allegations against him were false and malicious as peddled by a student Ms Pauline Kamene (the student) who had been suspended and had faced disciplinary action by the board of management. The student had been a school dropout and admitted to the claimant’s school aged 26 years and was in constant conflicts with teachers and fellow students;

On 6th March, 2015 the student fought with a fellow student and was suspended;

The student reported to a human rights organisation, Centre for Human Rights and Civic Education that she had not been registered for Kenya Secondary School Education;

The student was a registered candidate for Kenya Secondary School Education for 2015 in accordance with rules and regulations; and

The student had been suspended from several schools due to indiscipline – Kyambo Secondary School, Illako Mututa Secondary Schools and Kyulungwa Secondary School.

5. The Respondent without undertaking investigations used the unsubstantiated allegations and proceeded to interdict the Claimant which was unlawful and lacked justification. The orders sought should issue.

6. In reply the Respondent filed Replying Affidavit sworn by Mary Rotich, Ag Director Teacher Management at the Respondent and avers that the Respondent has a constitutional mandate which is further outlined in statute and particularly the procedure to be followed where allegations of professional misconduct have been made against a teacher. Due to widespread incidents of sexual harassment against learners by their won teachers, with a view to prevent and deter this vice and protect the rights of learners , on 29th apirl, 2010 the Respondent issued Administrative Circular No.3 of 2010 – Protection of Pupils/Students from Sexual Abuse.The objective of the circular is to issue guidelines on the relationship between teachers and learners with a view to compliment the Teachers Code of Conduct and Ethics (the Code).

7. The Respondent through its County Director, Kitui County received complaint from Centre for Human Rights and Civic Education on 9th March, 2015 with allegations that the student Pauline Kamene, a student at Syomikuku Secondary Schools where the Claimant was the \head teacher had been sexually molested on several occasions affective her right to a conducive learning environment. That the Claimant was of immoral behaviour in that he had sexual intercourse with the student on various dates in 2014 and 2015. That the Claimant incited students on 27th March, 2015 after being interviewed by the Respondent and he ministry of Education officials on his relations with the student by assembling them and bidding them farewell hence leading to a demonstration to the Deputy County Commissioner’s office n Mwingi on 30th March, 2015.

8. The allegations made against the Claimant are contrary to the Code regulations 66(2) and subject to interdiction. To the allegations made against the Claimant, he was allowed to give a response noting that the student had dropped out of his school upon early marriage and was readmitted in the company of her husband who was working at the school as a teacher and who in 2013 had opted to resign due to disagreement with the claimant. The student was readmitted din January, 2014 in form 3 and was allowed to be in school late mornings and in 2015 she was registered for KCSE but had since her readmission refused to take punishment from the teachers. The student and her husband had received counselling from the school but on 6th March, 2015 the student fought with another student and she was suspended. The student proceeded to threaten the Claimant that she would ensure that he had been sacked.

9. Ms Rotich also avers that the matter was addressed by the Board of Management which established that the student had defied punishment directions by the teachers. She then reported the matter to Centre for Human Rights and Civic Education. That the Board called the student for a hearing over the allegations made and she emphasised that she had a relationship with the Claimant but ended it upon learning that he had other girlfriends in the same school. More details of the relations were given in confidence and the Claimant asked for further investigations of the allegations against him.

10. That the Board also met on 29th april, 2015 over the student demonstration on 30th March, 2015 and 5 students re interrogated over the same. The students responsible were made to write an apology and resumed studies.

11. With regard to the allegations made by the student, 6 other female students were interrogated by the Board and it emerged that when the student was readmitted at the school, her husband was the then Deputy Head teacher appointed by the Board. He resigned in January, 2014 by which time he had married the student and who by this time was supplying the school with ripe bananas to third term when her tender was cancelled. It also emerged from the Board hearings that the student had been to 3 other schools and had left due to indiscipline before readmission to the claimant’s school, Syomikuku Secondary School and where she had several cases of indiscipline forcing the Board to meet on several occasions. Upon the student readmission and with the threat of cancellation of her banana supply tender and also that the Claimant threatened to cancel bond he had secured for her husband in a case in court, he engaged in sexual relations in lodges in Mwingi town and gave the student money of Kshs.500. 00 and Kshs.1000. 00. the student later found out the Claimant was sending romantic messages to a fellow student and decided to go and do a HIV test. when she reported to school late the Claimant wanted to punish her forcing her to leave school and failed to seat for her midterm exams. Upon resuming school the student got into a fight with a fellow student named Rhoda Queen who had allegedly spread rumours that the student was pregnant and had given birth over the midterm break. Both students were suspended. The student reported the matter to Centre for Human Rights and Civic Education on allegations of harassment.

12. That the student attempted to commit suicide citing harsh conditions in life. She was taken to Mwingi District Hospital.

13. The school Board in a meeting of 27th March, 2015 upon hearing the matter directed the student to report back to school.

14. After this Board direction, the Claimant convened the students in an assembly to bid them farewell and to inform them that he would not be offering them remedial lessons on Saturdays. When the student reported back to schools, fellow students walked out in a demonstration protesting that she should look for another school and that the Claimant should come back. The student threatened to burn the school. The board was called to address the unrest and the student decided not to resume studies in the school and study at home and only attend exams.

15. The Claimant called the student’s father to find another school for her and seeking to have the sexual harassment case terminated and that it should be settled amicably.

16. Ms Rotich also avers that further investigations revealed that the Claimant had sexual and romantic relations with a student named Christine Kalungu. That the strike and demonstrations held at the school were started by this student under the claimant’s instructions to make it appear that he was liked by the students. It was also revealed that another teacher Mr Musyoki had incited students against the Claimant and advised the student to report him to Centre for Human Rights and Civic Education. The same teacher had made insulting comments of the Claimant in front of students. Another teacher, Ms Lillian Kimanzi had asked for leave due to trauma caused by obscene insults against her by the Claimant who alleged had incriminating evidence.

17. The investigatory assessment recommended the Respondent to take disciplinary action against the claimant. A disciplinary meeting was held on 4th November, 2015 at Mwingi where the Claimant was to be heard on the cases of having sexual intercourse with the student and Christine Kalungu and on the case of inciting students. Upon hearing it was recommended that the Claimant be interdicted on the sexual harassment case and that on the incitement case he be transferred with a warning.

18. The Claimant was given time to reply to allegations against him which he did on 24th December, 2015. Under the Code the respondent’s mandate is investigatory and ensure due process and an interdiction is not a verdict of guilt it was to enable the Claimant respond to allegations against him. Upon preliminary investigations the Respondent found substantial grounds to believe the Claimant was involved in acts amounting to professional misconduct that called to a preliminary action of interdiction before final determination. These were procedures well set out in the Code. The Claimant has been given a fair hearing.

19. There is evidence that the Claimant has made several attempts to compromise the family members of the students especially her father after he failed to compromise the student and her husband. The orders sought are against public policy and interest in that the Claimant cannot be immune to a disciplinary action when serious allegations touching in his integrity and professional standing have been raised. Orders sought should be declined.

20. The second application filed by the Claimant and dated 29th August, 2016 and seeking for orders that;

1. …

2. Spent.

3. Pending the determination of the claimant’s application dated 21st May 2016 there be a stay of hearing of the claimants disciplinary cause by the Respondent which hearing is scheduled on 31st August 2016

21. This application is based on the claimant’s affidavit and his Further Affidavit and on the grounds that the Claimant has challenged the lawfulness and fairness of his interdiction in this suit and filed application which is pending hearing and while he awaits the outcome the Respondent has invited him for a disciplinary hearing on 31st August, 2016. That where the hearing proceeds without the determination of the question of interdiction the Claimant will suffer irreparable loss and damage and ill not get a chance to clear his name in a fair and judicial process.

22. In reply, the Respondent filed Replying Affidavit sworn by Viola J Kihara the Ag. Senior Deputy Director Discipline at the Respondent and avers that the Claimant was interdicted on 23rd November, 2015 to enable for investigations and determination of his case reported to the respondent. The Claimant made a response on 24th dcember, 2015 and requested to be given a fair hearing. The Claimant has now been invited for hearing but has sought to stop this process on the grounds that he has challenged his interdiction. The Respondent has commenced a valid hearing process and should not be stopped. The hearing shall not prejudice the Claimant as he will be given a fair hearing. Application should be dismissed to allow hearing to proceed.

Submissions

23. Both parties filed extensive submissions.

24. The Claimant submits that the allegations against him raise serious issues which ought to be substantiated with evidence and not mere statement as held in J.W.N versus Teachers Service Commission [2014] eKLR.The allegations of sexual intercourse by the student have not been supported by independent evidence and should not form basis for the interdiction of the claimant. The quality of evidence to prove the allegations must be above average. In Fredrick Saundu Amolo versus Principal Namanga Mixed Day Secondary School and 2 others [2014] the court held that interdictions should be done in rare cases and upon the employer making preliminary enquiries by call of evidence. That in this case there are no proper investigations to warrant the interdiction. There must be substantive and procedural fairness. In this case the Claimant was not given a fair hearing in terms of section 41 of the Employment Act.

25. The Claimant also submits that during the pendency of his case the Respondent has called him for disciplinary hearing before the court can determine the legality of the interdiction. For the disciplinary hearing to be allowed to proceed, the Claimant will be prejudiced as held in J.W.N. case,cited above.

26. The Respondent submits that there was a reasonable cause to interdict the Claimant following serious allegations made against him by the student and touching n his conduct. Pursuant to regulation 66 of the Code and letter from Centre for Human Rights and Civic Education dated 9th September, 2015 and the Board convening to interrogate the allegations, it was decided that the Claimant should be interdicted to allow for hearing of the matter.

27. The Respondent followed due process upon receipt of the letter by Centre for Human Rights and Civic Education and the Claimant was given a chance to be heard through his response into the matter. The board held several meetings where the Claimant was present and denied the allegations made against him. In a meeting held on 27th March, 2015 when the board discussed the claimant’s case he was asked to leave but he remained in the meeting taking minutes. The Respondent followed up on the allegations against the Claimant with interview of different persons including students. The Respondent observed due diligence as held in the case of Fredrick Saundu Amolo,cited above. Unlike in the case of J.W.N,cited above the Claimant has not been terminated for him to move to stop the process as held in Peter Gaitho Ng’ang’a versus Board of Management Banita School and another [2015] eKLR.The interdiction of the Claimant is regulated under the Code and thus to his knowledge and procedural.

28. The Claimant is not deserving of conservatory orders sought as held in Gitari Peter versus Dickson Mwenda Kithinji and 2 others [2014] eKLRas such orders ear a more public law connotation which facilitate ordered functioning of public agencies. In this case, the Respondent should be allowed to undertake its constitutional duty and address the case of the claimant.

Determination

29. In looking at both applications, in the main the Claimant is seeking for orders that;

The Respondent be ordered to withdraw in writing the interdiction letter dated 23rd November 2015;

An injunction be and is hereby issued restraining the Respondent from terminating the applicant’s employment pending the hearing and determination of this suit;

The Claimant be reinstated back to work without loss of seniority, with full pay and benefits forthwith; and

Pending the determination of the claimant’s application dated 21st May 2016 there be a stay of hearing of the claimants disciplinary cause by the Respondent which hearing is scheduled on 31st August 2016

30. The grounds for seeking the orders as above are that the interdiction letter was issued without substantiated grounds against the Claimant and that such should not form the basis of terminating the claimant’s employment and thus he should be reinstated. The second application is also premised on the reasons that the disciplinary hearing where the Claimant has been invited will be negating the substance of his application where he is challenging his interdiction.

Questions that emerge are;

Whether the conservatory orders sought should issue;

Whether the interdiction of the Claimant should be lifted; and

Whether the disciplinary hearing of the Claimant should proceed.

31. In granting a conservatory order, the High Court in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLRand held that;

32. What then are the circumstances under which the Court grants conservatory orders? It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law.

33. It is common cause that the Claimant was issued with an interdiction letter dated 23rd November, 2015 setting out that;

LETTER OF INTERDICTION

I am directed by the Teachers’ Service Commission to say that, it is alleged that you should have your name removed from the Register of Teachers.

The allegation(s) made against you are as follows:-

(1) Immoral behaviour …

(2) Incitement …

Before the commission proceeds to investigate, consider and determine your case, you are invited to make a statement to the commission in writing which should be received by the commission within 21 days from the date of this letter. Before your case is determined, you will be given an opportunity of being heard by the commission in persons.

34. The Claimant was therefore given notice of the serious allegations against him and adviced to give his statement and he was to be invited to a hearing. The Claimant gave his response and statement vide letter dated 24th December, 2015. On 24th May, 2016 the Claimant moved the court with his application seeking to have the interdiction lifted. Subsequently he was invited to a disciplinary hearing which he has challenged.

35. As set out in the case of Frederick Saundu Amolo versus Principal Namanga Mixed Day Secondary School & 2 Others an employer is allowed a preventive or punitive interdiction of an employee based on the circumstances of each case. Where there is a punitive interdict, there is a hearing of the case whereas a preventive interdict can issue pending further investigations and hearing. Once investigations are conducted the employee is invited for a hearing within the set policy/code or applicable law.

36. As noted above, the letter of interdiction issued to the Claimant and dated 23rd November, 2015 is clear in its import and implications. The Claimant was interdicted to allow for the Respondent to investigate, consider and determinehis case on allegations of immoral conduct and incitement. The Claimant was also directed to give his statement and that he would be called for hearing in person.

37. Indeed as held in peter Gaitho Ng’ang’acase that;

Interdiction is a preliminary step in the disciplinary process. The petitioner may as well be vindicated by the investigations and that could be the end of the matter. Any pecuniary loss he may have suffered during the interdiction can be restored as provided for in the regulations.

38. The Claimant has not been terminated from his employment. Without going into the merits of the claim, from the facts I find there are serious allegations made against the Claimant touching on his conduct as head teacher of Syomikuku Secondary School and which relate to sexual harassment of a learner and further that he incited students and which requires interrogation. These remain allegations against the Claimant, where proved they carry a heavy sanction as they relate to matters prohibited in law and where the allegations are found without merit, the interdiction will be lifted and the Claimant restored back into service. Such interrogations and hearing should be undertaken at the shop floor where the best primary is available and allowed by the Code of the Respondent. At the hearing, the Claimant’s rights to a fair hearing are secured.

39. As these allegations have been addressed by the school board, the agents of the Respondent in the county and found to warrant a hearing of the Claimant in person, I find no prejudice that the Claimant shall suffer where his hearing proceeds and the same allegations are given a determination. The Claimant has already submitted himself to the process undertaken by the Respondent and given his statement in response to initial investigations and a call to a full hearing is a matter regulated in section 41 of the Employment Act and the Respondent has thus complied as required. This will ensure the Claimant is accorded his rights to be heard in terms of the principles and natural justice.

40. From the pleadings, it is apparent that there was an intricate web of allegations and counter allegations with regard to the claimant. These arose from the student, Christine Kalungu, Rhoda Queen, all students of the Claimant, Mr Musyoki; Ms Lillian Kimanzi and Mr Mutunga and husband to the student. The entity that was catalysts to all these allegations is the letter and complaint by Centre for Human Rights and Civic Education. The involvement of the Respondent and action taken to interdict the Claimant and based on the Code was thus to investigate into the veracity of the allegations. Such I find to be within the Code and the and procedural.

41. To stop the same at this point would be to render the Respondent as the employer powerless in the exercise of their mandate in addressing alleged misconduct of its employees using internal and acceptable mechanisms set out in the Code. The Claimant has not cited that he is not aware of the existence of such Code or that the Respondent has applied his case outside of their laid out norms and regulations. The Claimant subjecting himself to the process, he will either be vilified or his case addressed within the laid down procedures.

42. It is commendable that the Respondent has responded to address widespread incidents of sexual harassment against learners by teachers in their employment and in this regard issued a circular. Such circular is a best practice that should be embraced and given support by all stakeholders. However, sexual harassment being a vice that is predatory and detrimental to all members of society and particularly in the sector operated by the respondent, schools where young leaners are to be found, the procedures applicable in a reported case of sexual harassment should be addressed instantly and without undue delay. Such does not mean instant justice of interdiction or suspension but addressed diligently and within the confines of the law to ensure the learner with complaint is given assistance and protection without undue delay and the officer against whom allegations are made is given a hearing without undue delay so as to have the matter addressed and resolved at the earliest to avoid the prejudice and stigma that go with allegations of sexual harassment if indeed the same are not true. Equally, where the allegations are found to be true, justice is met and give society confidence to challenge such a vice when it occurs. Going back to normalcy cannot be achieved where the Respondent takes a long period of time to address allegations of sexual harassment to over a year as with such passage of time, irreparable damage to both the learner and the teacher is likely to occur.

43. In an ideal situation and noting the pervasive offence of sexual harassment, at most such should be dealt with in a period not going over three months, a term calendar for regular schools. To have such time go over and above is to simply subject and expose the learner to grave danger over the unresolved matter and cause the subject teacher to anxiety and ridicule if the allegations are not true.

44. In this case, I find the fears held by the Claimant have no basis and that by subjecting himself to the disciplinary hearing, he will allow the Respondent to address all issues with regard to investigations finding and that he will get a fair chance to be heard within the confines of the Code and the law.

Accordingly, the applications dated 21st May, 2016 and 29th August, 2016 are hereby declined; the Claimant shall subject himself to the disciplinary hearing to be re-scheduled by the Respondent and the same shall be conducted in accordance with the Code and the law. As the initial disciplinary hearing was stopped by the court, the Claimant shall be heard without undue delay. Costs in the cause.

Dated, delivered in open court at Nairobi this 16th day of March, 2017.

M. MBARU

JUDGE

In the presence of:

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