The Teachers Service Commission's (TSC) spirited effort to sack a teacher for defiling a student inside a car has paid off after the Labour Court ruled that the employer's decision was above board.
This comes hot on the heels of another decision by the Kakamega Senior Principal Magistrate's Court (delivered on January 23, 2023), that termed the tutor's dismissal unfair and ordered among other things, his reinstatement.
The lower court's decision hinged on the fact that the criminal case the teacher, Julius Mutinye Makokha, faced about defiling the student of St Mary's Girls' Mumias, who became pregnant, had collapsed.
But the Labour Court noted that it was not enough to state the minor's pregnancy was not caused by Makokha but that he had occasionally had immoral encounters with the minor.
Presiding Judge of the Employment and Labour Relations Court in Kakamega Lady Justice Jemimah Keli set aside the lower court's judgment by Senior Principal Magistrate Dolphina Alego as it based its findings of the labour dispute on an outcome of a criminal case rather than looking at it holistically.
"The lower court found the termination was unlawful since Makokha was acquitted in the criminal proceedings. This reasoning by the learned magistrate did not consider what a reasonable employer would have done in the circumstances," the judge said.
"I do find on a balance of probability that Makokha had immoral conduct with the minor who was a student. The wife (Makokha's) stayed in Busia. There was an opportunity, and he exploited the same to have an affair with the minor, as demonstrated by giving her a phone, and lift in his car several times, which the lower court did not find basis to fault. The teacher holds a position of trust, and the same was broken down."
In the judgment delivered last Friday, the judge said such betrayal of trust would have naturally led any reasonable employer to dismiss a teacher of the ilk of Makokha who also confessed to being an enemy of the father of the student whom he allegedly defiled.
The judge, who was responding to TSC's case against the reinstatement of the tutor to his regular duties filed on February 6, 2023, said the reinstatement orders were statute-barred and, therefore, null.
"The reinstatement was ordered outside the three years, hence an illegal order. The court has no discretion to extend the said period," she said, citing 'See section 12(3) (vii) of the Employment and Labour Relations Act'.
Makokha was sacked on July 10, 2018. His sacking letter partly reads: "You are of immoral behaviour in that you had sexual intercourse with a student of St Mary's Girls Secondary School Mumias Adm. No.*** Form IV 2018 on 30/07/2017 at around 3.00pm in the back seat of your car reg. No. KBA 0**E beside River Lusumu while you were a teacher at Ebumamu Primary School."
The court heard that Makokha attended the disciplinary proceedings where the minor confirmed she had had sexual relations with him several times.
Makokha argued that it was odd to have TSC discipline him when a lower court had absolved him of the blame for fathering a minor.
