Civil society activist Stephen Chahasi Lumwaji has moved to the High Court to compel the Teachers Service Commission (TSC) to employ Early Childhood Education (ECDE) teachers in a petition that Kenya Union of Pre-Primary Education Teachers (KUNOPPET) has requested to be enjoined as an interested party.
Chahasi, who has sued TSC, Council of Governors, and the Attorney General who are Respondents, observes in the petition that currently ECDE teachers are entirely employed by the County governments within their respective public service establishments, despite a clear prohibition under Article 235(2) of the Constitution.
Article 235(2) (1) of the 2010Constitution refers to an exception in the staffing of county governments. Specifically, it states that the general provisions for county government staffing under Article 235(1) do not apply to any office or position subject to the Teachers Service Commission. This means that county governments are responsible for hiring, disciplining, and removing most of their staff, but teachers fall under the jurisdiction of the Teachers Service Commission (TSC).
ALSO READ;
Article 235(1) of the Constitution of Kenya provides that a county government is responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament, for establishing and abolishing offices in its public service, appoints persons to hold or act in those offices, and confirming appointments; and exercising disciplinary control over and removing persons holding or acting in those offices.
He argues further that currently, ECDE teachers are employed by County governments and it follows that every employer has residual powers to discipline its employees, ECDE teachers being such employees; adding that the same ECDE teachers are registered by TSC and are therefore subjected to two disciplinary processes under TSC code of conduct as well as Public Service Commission (County) Human Resource Manual.
“Article 237(2)(e) of the Constitution provide that; The functions of the Commission is to exercise disciplinary control over teachers. This provision means that TSC possesses disciplinary powers over all teachers registered by it under Article 237(2)(a) of the Constitution,” says Chahasi in the petition.
ALSO READ;
Gachagua: Money meant to confirm JSS teachers rewarded to State House guests
“This is on the understanding that all ECDE teachers are registered by TSC. It is therefore our humble position that ECDE teachers are subject to Teachers Service Commission and therefore the prohibition under Article 235(2) of the Constitution directly relates to the ECDE teachers and effectively prohibits County governments from employing them as they are subject to Teachers Service Commission,” he adds.
Chahasi now wants a court interpretation of whether ECDE teachers are subject to TSC and orders be issued declaring that Section 38 of the Early Childhood Education Act, 2021, Cap211B, Laws of Kenya, is unconstitutional to the extent that it contravenes Article 235(2) as read with Article 237(2)(c) of the Constitution of Kenya.
He also wants the court to further issue an order suspending implementation, enforcement and operationalization of Section 38 of the Early Childhood Education Act in its entirety, a declaration that ECDE teachers are subject to TSC, and the court to order the Attorney General to offer technical support in the implementation of the orders that will be issued by the court.
As Article 237(2)(c) of the Constitution provides the functions of the Commission as to assign teachers employed by TSC for service in any public school or institution; Chahasi notes that the provision grants TSC unfettered mandate to employ registered teachers and deploy them to any public school or institution including ECDE centers which are currently under the county governments owing to Section 38 of the Early Childhood Education Act 2021, adding that Section 38 of the Act contradicts Article 235(2) of the Constitution, hence rendering it as un constitutional.
He observes further in the petition that there is a contradiction in the law since Section 38 of the Early Childhood Education Act, 2021 gives the county governments mandate to employ, remunerate and discipline ECDE teachers under yet the same county governments are clearly prohibited under Article 235(2) of the Constitution from employing persons who are subject to TSC.
ALSO READ;
Eldoret National Polytechnic hosts Signet TVET Festival, showcases global training opportunities
The petition further adds that the ECDE centers currently under the county governments are public schools and therefore ought to be staffed as prescribed under Article 237(2)(c) of the Constitution respecting Article 235(c) of the Constitution, adding that the teachers suffer injury in the sense that they are subjected to disciplinary processes under the County Human Resource and also under the TSC Code of Conduct for teachers.
Justice Chacha Mwita on November 4, 2025 ordered that the responses to the petition be filed and served within 14 days thereafter the Chahasi who is the petitioner in the case will then have 14 days after service to file and serve a supplementary affidavit if need be together with written submissions not exceeding 10 pages
The respondents will thereafter have 14 days after service to file and serve written submissions also not exceeding 10 pages each, before the case is mentioned again on February 10, 2026 for further directions by the court.
By Roy Hezron
You can also follow our social media pages on Twitter: Education News KE and Facebook: Education News Newspaper for timely updates.
>>> Click here to stay up-to-date with trending regional stories
>>> Click here to read more informed opinions on the country’s education landscape
