The Teachers Service Commission (TSC) in a counter-attack launched a strong legal defence before the Employment and Labour Relations Court (ELRC) in Mombasa, aiming to uphold the integrity of its recruitment process for a new Chief Executive Officer (CEO) following a petition that has stalled the appointment for months.
The case — Thomas Mosomi Oyugi v. Teachers Service Commission & Others (Petition No. E015 of 2025) — was filed in May 2025 and has remained one of the most closely watched legal battles in Kenya’s education sector. It challenges the constitutionality of the TSC’s decision to limit the recruitment of its next CEO to registered teachers.
Petitioner Thomas Mosomi Oyugi points out that Section 16(2) of the TSC Act unfairly excludes other qualified professionals from competing for the position, describing the requirement as exclusionary, “discriminatory, and contrary to the principles of equality and fairness.”
However, the Commission — through its chairperson, Dr Jamleck Muturi John — has dismissed the petition, calling it an attempt to interfere with the independence of a constitutional commission.
“The Teachers Service Commission is a constitutional body under Article 237. Its recruitment process is guided by law and anchored in transparency, fairness, and accountability,” Dr Muturi said in an affidavit filed on June 3, 2025.
He confirmed that the Commission had lawfully advertised the CEO position on May 6, 2025, 55 days before the retirement of Dr Nancy Njeri Macharia, whose term officially ended on June 30, 2025, after serving a decade in office.
“The advertisement was made in full compliance with Section 16 of the TSC Act, allowing a reasonable 21-day window for applicants. The process was above board and in the best interest of the teaching profession,” Dr Muturi asserted.
On May 26, 2025, the court issued ex parte conservatory orders stopping the recruitment pending further hearing, effectively freezing the process for the past five months.
“Requiring that the CEO must be a registered teacher violates the principle of equality and fairness,” Mosomi’s petition states. “Leadership in public commissions should be open to all qualified Kenyans regardless of professional background.”
TSC’s lead counsel, Mr Cavin Anyuor, countered this position during the July 8, 2025, inter partes hearing, insisting that the ELRC had no jurisdiction to interfere with a constitutional commission’s internal recruitment.
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“This court lacks jurisdiction under Section 12(1) of the Employment and Labour Relations Court Act, as the issues raised concern pre-employment procedures rather than an existing employer–employee relationship,” Anyuor argued.
He added that stopping the process risked paralysing the management of over 450,000 teachers countrywide.
“The conservatory orders impede the Commission’s statutory mandate and risk creating a leadership vacuum that directly affects the administration of the teaching service,” he warned.
In a memo dated June 1, 2025, outgoing CEO Dr Nancy Macharia formally bid farewell to staff, expressing confidence that the Commission would overcome the turbulence of the transition.
“I urge you to accord my successor and the management team your full support as the Commission moves to even greater heights,” she wrote.
For now, Ms Evaleen Mitei continues to serve as Acting Secretary/CEO, steering day-to-day operations as the court process unfolds.
Legal analysts say the case has broad implications for how independent commissions interpret professional requirements when filling senior public roles.
“This case will test whether professional specialisation can be a legitimate qualification criterion in public appointments, or whether it amounts to unconstitutional discrimination,” said a Nairobi-based constitutional lawyer following the proceedings.
The TSC maintains that its position is both constitutional and logical, arguing that only an educator can effectively lead an institution tasked with regulating and managing the teaching profession.
“The role of Secretary/CEO is not administrative alone — it demands a deep understanding of teacher management, discipline, and development,” Dr Muturi said.
After various submissions concluded in late October, the Employment and Labour Relations Court has reserved its final ruling for December 2025.
The decision is expected not only to determine the fate of the current recruitment but also to set a precedent for future appointments across Kenya’s independent commissions.
“We have presented a strong defence based on the Constitution and the rule of law. Whatever the outcome, the Commission remains committed to transparency and service to the teaching fraternity,” Dr Muturi said after the last hearing.
By Joseph Mambili
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