- The High Court has struck out a petition seeking to place ECDE teacher recruitment exclusively under the TSC.
- Justice Roseline Aburili has upheld Section 38 of the Early Childhood Education Act, 2021, confirming counties retain authority to recruit and pay ECDE teachers sourced from TSC-registered pools.
- The judge has warned that allowing the petition to proceed would undermine the finality of litigation, dismissing the case and directing that the file be closed.
Justice Roseline Aburili has struck out a petition seeking to place Early Childhood Development Education (ECDE) teachers under the exclusive control of the Teachers Service Commission (TSC), ruling that the matter had already been conclusively settled by an earlier court decision.
The petition, filed by civil society activist Stephen Chahasi Lumwaji, sought to have Section 38 of the Early Childhood Education Act, 2021 declared unconstitutional and to stop county governments from recruiting, employing and remunerating ECDE teachers. Lumwaji had argued that teachers registered by the TSC should fall under its exclusive mandate, and that county employment exposed ECDE teachers to overlapping disciplinary processes under both county human resource rules and the TSC Code of Conduct.
In dismissing the petition, Justice Aburili found the case to be res judicata, meaning the dispute had already been conclusively determined by a competent court, pointing to a 2016 decision involving the Kenya National Union of Teachers and the Attorney General that had addressed the same constitutional question of whether county governments had the power to recruit ECDE teachers without infringing on the TSC’s constitutional mandate.
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“The constitutional question whether County Governments have the mandate to recruit Early Childhood Education (ECE) teachers was conclusively determined,” the judge said.
The judge noted that although the two cases involved different petitioners and Section 38 of the 2021 Act had not yet been in force when the earlier case was decided, the substance of the dispute remained the same, with the new petition seeking essentially the same declarations sought in the 2014 case, including a finding that only the TSC could recruit and employ ECDE teachers.
“Although section 38 of the Early Childhood Education Act was not in place when the aforesaid decision was rendered, I find and hold that section 38 does give full effect to the decision rendered by Lenaola J,” Justice Aburili ruled.
The court further observed that Section 38 expressly gives county governments responsibility for recruiting and professionally developing ECDE teachers and paying their remuneration, consistent with the earlier judgment, which had established that counties could recruit ECDE teachers provided they sourced them from the pool of trained teachers registered by the TSC.
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Justice Aburili warned that allowing the fresh petition to proceed would undermine the principle of finality of litigation and encourage duplicative cases. “Allowing the present Petition to proceed on merit would be to undermine the principle of finality of litigation and to open the door to duplicative litigation,” she said, upholding the preliminary objection filed by the respondents, striking out Lumwaji’s petition and directing that the file be closed.
By Masaki Enock
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