KUPPET asks court to compel TSC to deduct agency fees from non-member teachers, including JS staff

The Kenya Union of Post-Primary Education Teachers (KUPPET) has asked the Employment and Labour Relations Court to compel the Teachers Service Commission (TSC) to implement an existing order on agency fees, in a dispute that also involves the Kenya National Union of Teachers (KNUT) and could affect Junior School (JS) teachers.

The court in Nairobi is considering competing applications in ELRC Petition No. 17 of 2018, a case involving KNUT, KUPPET, TSC and other parties. The applications were heard before Justice Monica Mbaru. KUPPET filed its application on September 16, 2026, and KNUT filed another on September 25, 2026.

At the centre of the dispute is a question: when a union negotiates a collective bargaining agreement (CBA) that benefits teachers who are not its members, can those teachers be required to contribute financially to the union?

KUPPET sought an interim order directing TSC to implement the existing agency-fee order during the September payroll cycle. It wants deductions made from eligible post-primary teachers and trainees who are not its members, including JS teachers, pending the hearing and determination of its application.

The union also asked the court to summon the TSC chief executive officer to explain why the commission had allegedly failed to implement Legal Notice No. 98 of May 17, 2018. It further sought a possible contempt-of-court finding against the CEO if the commission failed to give a satisfactory explanation, and a civil jail term of at least seven days for alleged wilful disobedience of court orders.

These are requests by the union. The CEO has not been found guilty of contempt, and the allegations must be determined by the court on the applicable legal and evidential standards.

Membership dues are paid by teachers who belong to a union. Agency fees, by contrast, may be imposed on eligible non-members who are covered by a CBA, under the Labour Relations Act. Section 48 of the Act deals with trade union subscriptions, while Section 49 provides for agency fees in qualifying circumstances. An agency fee does not make a teacher a member of the union that receives it.

KUPPET argues that it is a registered trade union recognised by TSC and that it has negotiated CBAs covering post-primary teachers. According to an affidavit by Axello Misori cited in support of the application, the union's CBA arrangements and the relevant ministerial order provide the basis for deducting agency fees from qualifying non-members.

The order prescribes an agency fee equal to 1.8 per cent of basic salary, with TSC directed to remit the deductions within 10 days. Whether it applies to particular teachers depends on the legal order, the scope of the CBA and the relevant employment and payroll records.

The rise of JSS under the Competency-Based Education system has blurred the traditional boundaries between primary and post-primary teaching, and the deployment, representation and terms of service of JS teachers have drawn debate within the profession.

KUPPET maintains that JSS falls within the secondary education level and that its structures provide for the representation of JSS teachers, citing its constitution and branch structures. It identifies more than 9,831 JS teachers whom it says are not subscribed to the union but are subject to verification through TSC payroll and membership records. The figure comes from the union's application and has not been independently verified.

TSC is responsible for implementing lawful payroll deductions and complying with binding court orders. KUPPET's application accuses the commission of failing to implement the existing order. Any finding on contempt would depend on the precise terms of the order, its scope and any later directions by the court.

The pages of the ruling available set out the applications and the arguments supporting them, but they do not show the court's final decision on all the issues. It is therefore not clear whether the court granted or dismissed the applications, issued further directions or made any finding on contempt.