Automated Summary
Key Facts
Moses Nyakundi Okari was dismissed from the Teachers Service Commission on 13th October 2011 for gross immoral behavior, specifically allegations of sexual relations with school girls. The disciplinary process included a hearing on 26th February 2009 where the applicant claimed he was not given a fair opportunity to defend himself, including cross-examining witnesses or calling his own evidence. The respondent argued the dismissal followed due process under the Teachers Service Commission Act and Code of Regulations for Teachers. The applicant also claimed the Teachers Service Appeals Tribunal was not properly utilized, as the respondent allegedly usurped its authority. The court determined this was a private law matter (employment contract) rather than a public law issue, concluding judicial review remedies were inapplicable.
Issues
- The court examined whether the applicant's dismissal for alleged sexual relations with school girls was lawful under the Teachers Service Commission Act and the Code of Regulations for Teachers. The respondent argued that the dismissal was justified under the law, while the applicant claimed procedural violations.
- The court determined if the judicial review application was appropriate for a private law employment issue. It concluded that judicial review, which focuses on the decision-making process rather than the merits, was not the correct remedy here, as the dispute was contractual and fell under private law.
- The applicant alleged that the disciplinary committee failed to adhere to natural justice principles, including not being given a fair hearing, the right to cross-examine witnesses, and the opportunity to present his defense. The respondent contended that the process was fair and followed due procedure.
- The court considered whether the applicant's employment with the Teachers Service Commission had statutory underpinning, which would make judicial review applicable. The respondent argued it was a standard employment contract without such statutory backing, while the applicant claimed the process was unfair.
Holdings
The court determined that the applicant's dismissal by the Teachers Service Commission was lawful and in accordance with the law, including the Teachers Service Commission Act and the Code of Regulations for Teachers. It ruled that judicial review is not an appeal but a review of the decision-making process, and the applicant's claims regarding fairness of the decision itself fall outside its scope. The court also held that the applicant's employment relationship with the Commission was a private contract without statutory underpinning, making judicial review remedies inapplicable. Consequently, the application for judicial review was dismissed with costs to the respondent.
Legal Principles
- The court determined that the applicant's request for reinstatement via judicial review was inequitable, as the respondent had no obligation to resume the employment relationship. The remedy for wrongful dismissal was framed as a common law claim for damages rather than equitable relief.
- The court held that the principles of natural justice, specifically audi alteram partem (hearing both sides), were relevant to the case. It stated that unless a contract of employment is statutorily underpinned, the rules of natural justice do not apply to private law disputes. The applicant's claim of being denied a fair hearing was addressed, with the court noting that procedural fairness must be balanced against administrative efficiency.
- The court clarified that judicial review is a tool for supervising public bodies and does not extend to the merits of a decision. The application was dismissed because the dispute was purely private, lacking statutory underpinning. The court cited cases like Eric Makokha v. University of Nairobi to reinforce that judicial review cannot override the common law remedy of damages for wrongful dismissal.
Precedent Name
- Eric Makokha vs. University of Nairobi & Another
- Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji
- Chief Constable of North Wales Police vs. Evans
- Consolata Kihara & 241 Others Vs. Director Kenya Trypanosomiasis Research Institute
- Peter Okech Kadamas vs. Municipal Council of Kisumu
- Rift Valley Textiles Ltd Vs. Edward Onyango Oganda
- Mohamedi & Others vs. The Manager, Kunduchi Sisal Estate
- Maseno University & 2 Others vs. Prof. Ochong' Okello
- Kenya Revenue Authority vs. Menginya Salim Murgani
Cited Statute
- Law Reform Act, Sections 8 and 9 on judicial review remedies
- Code of Regulations for Teachers (2005) under the Teachers Service Commission Act
- Constitution of Kenya, Articles 23, 25(c), 27(1), (2), 47, 50, 236, and 237
- Civil Procedure Rules, Order 53 governing judicial review applications
- Section 12 of the Teachers Service Commission Act (Old Act)
- Teachers Service Commission Act (Chapter 212) as cited in sections 3, 9, 10
- University of Nairobi Act, Section 23(3) on auditor protections
- Constitution of Kenya, Article 61 on removal of constitutional office holders
Judge Name
G V Odunga
Passage Text
- In Eric V J Makokha & 4 Others vs. Lawrence Sagini & 2 Others Civil Application No. Nai. 20 of 1994, the Court of Appeal stated that 'the only remedy that they can obtain at law, is the one that ordinarily awardable for breach of contract of employment.'
- The Court of Appeal in Maseno University & 2 Others vs. Prof. Ochong' Okello [2012] eKLR held that 'the breach or threatened breach of the appellants' contract of employment was not a public act or matter of public law but was a matter of contractual relationship between the respondent and the appellants, governed by private law.'
- The court in Mohamedi & Others vs. The Manager, Kunduchi Sisal Estate Dar-Es-Salaam HCCA No. 25 of 1971 held that 'in ordinary contracts of employment, an employee may be dismissed by his employer without any prior observance of natural justice; and if the dismissal was contrary to the terms of the contract, the appropriate remedy is a suit in damages.'