Former Kenya National Union of Teachers (KNUT) Secretary General Wilson Sossion has scored a significant legal victory after the Court of Appeal ruled on Friday that the Teachers Service Commission (TSC) unlawfully terminated his employment by flouting mandatory disciplinary procedures enshrined in law.
A three-judge bench comprising Justices W. Karanja, F. Tuiyott, and P. Nyamweya delivered the landmark ruling in Civil Appeal No. 476 of 2019, overturning in part a 2019 Employment and Labour Relations Court decision that had dismissed Sossion’s petition in its entirety.
The Court of Appeal found that regardless of the reason for dismissal, TSC had no right to bypass the procedural safeguards that the law expressly provides for every teacher.
In a well detailed judgment, the bench declared that TSC had sidestepped the detailed disciplinary process set out under regulations 144 to 156 of the Code of Regulations for Teachers (CORT), a procedure requiring formal complaint, investigation, interdiction, and a disciplinary hearing — and instead applied a shortcut show-cause process that did not meet the legal threshold.
“The provisions on summary dismissal under section 44 of the Employment Act cannot be used to exclude compliance with an express procedure for termination which is either provided under statute or by contract,” The judges said.
The Court went further, laying down a principle that binds all employers.
“Whatever the reasons that arise to cause an employer to terminate the services of an employee, that employee must be taken through the mandatory procedure provided by the law,” they held
Sossion had been a TSC-employed teacher since 1993 before being released on leave of absence to serve KNUT.
Following the August 2017 general elections, he was nominated by the Orange Democratic Movement (ODM) to the National Assembly under Article 97(1)(c) of the Constitution to represent workers.
TSC issued a show-cause notice in December 2017 and, without subjecting him to the full disciplinary process, terminated his services on January 17, 2018.
Sossion argued before the courts that the termination denied him his constitutional right to fair administrative action and fair labour practices, and that he was never given an oral hearing or taken before a disciplinary committee.
While the bench upheld TSC’s position that there were valid substantive reasons for the termination, finding that Sossion’s acceptance of parliamentary nomination by a political party breached the constitutional and regulatory requirement for teachers and public officers to maintain political neutrality, the judges drew a sharp distinction between having a valid reason and following a lawful process.
The Court’s conclusion on the matter was clear.
“While the respondent demonstrated good and valid reasons for the appellant’s termination of employment, gave notice of the said reasons to the appellant, granted him adequate opportunity to respond before the termination of his employment, and the termination was to this extent not unlawful; the procedural infractions rendered the termination unfair.”
The Court granted Sossion a formal declaration that the process of his termination was not in accordance with regulations 144 to 156 of CORT.
However, the bench noted that Sossion never sought any damages or compensation in his petition in the ELRC, and no basis was laid for any such relief,meaning he walks away without monetary compensation or reinstatement.
Each party was ordered to bear its own legal costs.
The ruling is nonetheless seen as a significant precedent, affirming that in Kenya’s employment law, an employer, including a powerful State commission, cannot take shortcuts when dismissing an employee, no matter how compelling the reason.
For workers and unions across the country, the message from the Court of Appeal is unambiguous: the law’s procedure is not a formality. It is a right.
