Nairobi — The Employment and Labour Relations Court sitting in Kisumu has cleared the Commission on Administrative Justice (CAJ) of wrongdoing in a wide-ranging employment dispute, while faulting aspects of the disciplinary process undertaken by the Teachers Service Commission (TSC).
In the case of Fred Apima Obita v Teachers Service Commission and seven others, the claimant sued multiple state agencies, alleging workplace insecurity, wrongful interdiction, discrimination, defamation, conspiracy, and administrative inaction.
Among the respondents was the CAJ, also known as the Office of the Ombudsman, which he accused of failing to properly investigate his complaints against his employer and other public bodies.
However, the court found no evidence to support claims of neglect by the Ombudsman.
Follow us on WhatsApp | LinkedIn for the latest headlines
“Hon. Justice Dr. Jacob Gakeri observed that the Commission had written to the Teachers Service Commission (TSC) no fewer than seven times during the course of its inquiry, seeking clarification, facts, and corrective measures,” the office of the Ombudsman said.
The court noted that this correspondence demonstrated diligence rather than inaction.
During cross-examination, the claimant admitted that the Commission’s intervention had partially resolved his concerns by enabling him to access documents and facilitating the eventual disciplinary hearing.
The court held that his dissatisfaction stemmed from an expectation that the CAJ should independently investigate and take over the matter, even though other institutions, including his employer and the police, were already handling the issues.
The judge clarified that the Ombudsman’s constitutional and statutory role is to investigate maladministration, make recommendations, and promote administrative justice, but not to usurp the investigative or disciplinary powers of other state organs.
Consequently, the declaration sought against the CAJ for alleged failure to investigate was declined as unmerited, effectively vindicating the Commission.
Procedural flaws
While the CAJ was exonerated, the court reached a different conclusion regarding parts of the case against the TSC.
Although the court affirmed that the employer had the authority to discipline the claimant for alleged desertion of duty and found that many of his claims lacked proof, it identified procedural defects in the disciplinary process.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Success!
Almost finished…
We need to confirm your email address.
To complete the process, please follow the instructions in the email we just sent you.
Error!
There was a problem processing your submission. Please try again later.
Specifically, the court held that the disciplinary panel convened by the TSC was improperly constituted.
It lacked a member of the Commission serving as chairperson, as required under Regulation 151 of the Code of Regulations for Teachers.
This omission rendered the disciplinary proceedings — and the resulting suspension — a nullity in law.
The court further ruled that the deregistration of the claimant from the AON Minet Medical Scheme during the disciplinary period was irregular, unfair, and unlawful.
Despite the ongoing employment relationship, the withdrawal of medical benefits denied him access to healthcare and infringed on his right to human dignity.
As a result, the court awarded the claimant general damages of Sh200,000 against the TSC and declared that the failure to remit NHIF deductions was illegal.
However, the bulk of the claimant’s expansive claims did not succeed.
Allegations of defamation arising from an alleged arrest at his home were dismissed due to a lack of credible evidence.
Claims of discrimination were found to have been neither properly pleaded nor sufficiently particularized.
Assertions of conspiracy to hack his email account and collusion among respondents were similarly rejected for want of verifiable proof.
The court emphasized that serious constitutional and tort claims must be strictly proved and cannot rest on speculation or inference.
On the issue of salary, the judge held that wages were not payable for the period during which the claimant did not perform work while under interdiction, in line with established employment law principles.
Salary would only become due after the interdiction period ended, unless already settled.
