Teachers suspended by the Teachers Service Commission (TSC), were offered a reprieve on Thursday, March 16, after a court ruled on the nature of the disciplinary cases.
Principal Judge of the Employment and Labour Relations Court (ELRC), Justice Byram Ongaya, declared that disciplinary cases, should, by law, have one TSC commissioner acting as the chairperson.
According to the judge, the authority of TSC commissioners could not be delegated, as witnessed in past disciplinary cases.
Any decision the disciplinary panel makes without a commission member will henceforth be treated as inconsequential.
“Thus (the TSC HR Manual) being an instrument made under the statutory provisions, the court finds that indeed its provisions could not be changed internally by the TSC without involving the Parliament as envisaged in the Statutory Instruments Act, 2013 –and which has not been shown to have been done,” the judge ruled.
As a landmark ruling, the case offers a leeway for all TSC disciplinary rulings to be reviewed, with some teachers having accused their employers of unfair hearings.
The judge issued the ruling in a petition filed in August 2022 by the Teachers Service Commission (TSC) secretariat officer Rose Mwende Mutisya against her employer.
Mwende lamented that on December 16, 2021, she was among five employees laid off and punished by the TSC after an internal audit by the commission.
At the time, TSC was investigating the irregular promotion of 22 teachers. Its internal audit ascertained that some staff members took advantage of the many promotions to add names of unqualified people.
Mwende was found guilty of irregular salary adjustments and was dismissed from work alongside being fined Ksh 410,183 for her role in the overpayment on the payroll.
Through lawyer Njeri Ngunjiri, Mwende sued TSC stating that the panel was illegal as it went against clause 119(2) of the TSC Human Resource (HR) Manual.
Justice Ongaya found that Mwende was discriminated against and dismissed unfairly. He noted that other employees in similar circumstances were either suspended or warned.
The dismissal was found to be excessive, and the court ordered her reinstatement.
On May 14, 2020, TSC passed a resolution that stated that the management should hold disciplinary cases. Only review cases could be held by someone who is not in management.
However, teachers unions, the Kenya Union of Post-Primary Education Teachers(KUPPET) and the Kenya National Union of Teachers (KNUT), want an independent body to handle teachers' disciplinary cases.
"Teachers are on their own when they are being disciplined and even dismissed,” KNUT Secretary General Collins Oyuu stated, on Tuesday, February 21, while addressing the National Assembly's Education Committee.
