The Employment and Labour Relations Court (ELRC) in Mombasa dismissed an application seeking to halt the recruitment of the Secretary/Chief Executive Officer of the Teachers Service Commission (TSC), paving the way for the process to proceed.
In a ruling delivered on Thursday, January 29, 2026 Justice Ocharo Kebira held that while the court has jurisdiction to hear the constitutional challenge raised against the Teachers Service Commission Act, the applicant failed to meet the legal threshold required for the grant of interim conservatory orders.
The decision lifted earlier court orders issued in May 2025 that had temporarily stalled the recruitment process.
“Having found that there has not been a demonstration of a prima facie case and that the petitioner has not shown the prejudice that he or the public would suffer if the conservatory orders are not granted, I come to the inescapable conclusion that the application must fail,” Justice Kebira ruled.
The court therefore rejected the application and allowed the TSC to proceed with the recruitment exercise. The main petition will proceed to a full hearing.
The case was filed by Thomas Mosomi Oyugi, who challenged the constitutionality of Section 16(2) of the Teachers Service Commission Act. He argued that the provision unfairly restricts eligibility for the TSC Secretary/CEO position to individuals holding degrees in education.
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Oyugi also sought to invalidate an advertisement published on May 6, 2025, inviting applications for the post. He claimed the recruitment process was discriminatory, partisan, and unconstitutional, citing a 21-day application window, reliance on online and Nairobi-based submission channels, and the absence of a formal declaration of vacancy. He further argued that the criteria favoured insiders within the Commission.
The respondents including the Teachers Service Commission, the National Assembly, the Cabinet Secretary for Education, the Attorney General, and CPA Dr. Adano Salad Kadubo raised preliminary objections, arguing that the ELRC lacked jurisdiction and that the matter fell within the exclusive mandate of the High Court.
Justice Kebira, however, rejected those objections, holding that the ELRC has jurisdiction to determine constitutional questions arising from employment and labour relations, including challenges to the constitutionality of statutes central to such disputes.
“The Employment and Labour Relations Court possesses jurisdiction over all employment and labour relations matters unless explicitly excluded by statute or the Constitution,” the judge stated, relying on recent Supreme Court jurisprudence.
Despite affirming jurisdiction, the court declined to suspend the recruitment process. Justice Kebira found that the petitioner had failed to establish a prima facie case with a likelihood of success or demonstrate that he or the public would suffer prejudice if the recruitment continued.
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The court further noted that Section 16 of the Teachers Service Commission Act has been in force for about 13 years and enjoys a presumption of constitutionality. Suspending the operation of a statute at an interlocutory stage, the judge observed, is a grave step that should only be taken in the clearest of cases.
Justice Kebira also held that the alleged flaws in the recruitment process including the notice period and mode of advertisement were not supported by sufficient evidence at this stage.
“The material before the court does not establish a prima facie case,” the ruling stated, adding that the substantive constitutional issues raised can only be fully determined during the hearing of the main petition.
As a result, the application dated May 25, 2025, was dismissed and the interim orders halting the recruitment were lifted. The court declined to rule on a separate application by the TSC seeking to set aside the interim orders, noting that it had been overtaken by events.
The Teachers Service Commission is now free to proceed with the recruitment of its next Secretary/Chief Executive Officer following the retirement of former CEO Dr. Nancy Njeri Macharia, whose second and final term ended on June 30, 2025.
The Commission is currently under the leadership of Acting CEO Eveleen Mitei.
By Obegi Malack
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