Sum, Deputy Principal of Moi Girls School Nairobi v Njaggah, Principal of Moi Girls School Nairobi & 2 others; Attorney General (Interested Party) (Petition E130 of 2023) [2024] KEELRC 324 (KLR) (23 February 2024) (Judgment)

Key Facts

Issues

• Whether the petition was premature due to the petitioner's failure to exhaust internal dispute resolution mechanisms before seeking judicial intervention.
• Whether transfer is recognized as a disciplinary punishment under the TSC Code of Regulations or relevant laws.
• Whether Regulation 156 of the TSC Code of Regulations for Teachers is unconstitutional for granting voting rights to non-Commission members and making committee decisions final without Commission review.
• Whether the respondents breached procedural requirements in the interdiction and eviction process of the petitioner, including failure to constitute an investigation panel and adherence to due process.

Holdings

• The court ruled that transfer is not a disciplinary punishment under TSC regulations or any other relevant law. This declaration aligns with the petitioner's prayer and challenges the respondents' use of transfer as a punitive measure.
• The court upheld the respondents' interdiction of the petitioner, finding that the disciplinary process followed due procedure. The petitioner's allegations of procedural impropriety were dismissed as unfounded, given that the Commission's decision was based on genuine and fair reasons under sections 43 and 45 of the Employment Act. The petitioner was transferred to another school, and the court ruled that the interdiction and eviction were valid.
• The court ordered that each party bear their own costs of the petition, as the petitioner's success was marginal and the disciplinary process had already concluded with a valid warning imposed.
• The court declared Regulation 156 of the TSC Code of Regulations unconstitutional. It found the regulation inconsistent with the Constitution (Articles 2(4), 250(1), 249(2)) and the TSC Act, as it granted voting rights to non-commission members (secretary and discipline officer) and made the Review Committee's decisions final, violating the Commission's independence.

Remedies

• The court declared Regulation 156 of the TSC Code of Regulations for Teachers unconstitutional to the extent that decisions by the Teachers Service Review Committee are subject to variation or reversal without reference to the full Commission. It was found that the Committee's final decisions elevate non-Commission members to voting rights and conflict with constitutional provisions on Commission independence.
• The court declared that transfer is not recognized as a disciplinary punishment in the TSC Code of Regulations or any other relevant law, distinguishing it from listed penalties such as warnings, suspension, or dismissal.
• The court ordered that each party shall bear their own costs of the petition, with no financial liability imposed on the respondents or petitioner for legal expenses.

Legal Principles

• The court declared Regulation 156 of the TSC Code of Regulations for Teachers unconstitutional to the extent that it permits a subordinate committee (Teachers Service Review Committee) to vary or reverse Commission decisions without reference to the full Commission. The regulation was found ultra vires Sections 5 and 46 of the TSC Act 2012 and inconsistent with Articles 2(4), 249(2), and 250(1) of the Constitution, which mandate the Commission's independence and require final decisions to be made by the Commission itself.
• The court addressed procedural fairness in disciplinary actions, noting the petitioner was afforded opportunities to respond, present evidence, and cross-examine witnesses. While the respondents argued due process was followed, the judgment implicitly recognized principles of natural justice as a framework for evaluating the fairness of administrative procedures. This included the right to be heard and the obligation to follow prescribed disciplinary protocols.
• The judgment emphasized that the Teachers Service Commission's power to review disciplinary decisions cannot be delegated to subordinate committees like the Teachers Service Review Committee. This upholds the constitutional principle of separation of powers under Article 249(2), which states the Commission is independent and not subject to control by any person or authority. The Review Committee's final decision-making power was deemed incompatible with the Commission's statutory structure.

Precedent Name

• Mumo Matemu vs. Trusted Society of Human Right Alliance
• Anarita Karimi Njeru Vs. Republic

Cited Statute

• Teachers Service Commission Code of Regulations for Teachers, 2015
• Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
• Constitution of Kenya
• Employment Act
• Interpretation and General Provisions Act
• Statutory Instruments Act
• Teachers Service Commission Act, 2012

Judge Name

Passage Text

• The declaration that transfer is not one of the disciplinary punishments in the TSC Code of Regulations or any other relevant law. The Court rules this aligns with the petitioner's argument but notes the 3rd respondent's counterclaim that Article 237(d) of the Constitution allows transfers.
• The Court finds that the petitioner has failed to establish her allegation and claims about the impugned interdiction. The evidence shows the disciplinary process continued and the Commission arrived at an informed decision, closing the matter. The Court upholds the respondents' case that due procedure was followed, and the petitioner's allegations of breach are unfounded.
• The Court finds that Regulation 156 of the TSC Code of Regulations is unconstitutional. It is ultra vires sections 5 and 46 of the Teachers Service Commission Act, 2012, and inconsistent with Articles 2(4), 250(1), and 249(2) of the Constitution of Kenya. The Teachers Service Review Committee's final decision-making authority and inclusion of non-voting members as commissioners are invalid.