Teachers Service Commission (TSC) & 2 others v Kenya Unionof Teachers (KNUT) & 8 others (Civil Appeal 196, 195 & 203, 195 & 203 of 2015 (Consolidated)) [2015] KECA 239 (KLR)
The bottom line
#Kenya's Court of Appeal threw out the 50-60% teachers' pay award, ruling that no court can set public salaries without the Salaries and Remuneration Commission's binding advice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the parties consent and agree to have the dispute between TSC and the two unions adjudicated by the court as an economic dispute?
- 2.Did the Employment and Labour Relations Court have jurisdiction - both procedural and substantive - to adjudicate the economic dispute and to conduct conciliation under section 15 of the Industrial Court Act?
- 3.What is the role of SRC vis-a-vis TSC in setting salaries and remuneration of teachers, and is SRC's advice binding?
- 4.Was the award of basic salary increment of between 50% - 60% justified?
- 5.Should TSC's appeal be struck out or TSC denied audience on the ground of contempt/non-compliance with the judgment and the conditional stay order?
Key legal issues
#Whether SRC's advice under Article 230(4)(b) of the Constitution is binding on TSC
It is binding. Article 259(11) makes a constitutionally required advice a mandatory condition precedent; construing the advice as non-binding would defeat the purposes and values of the Constitution and return the country to the pre-2010 era of uncoordinated, unsustainable wage awards.
Article 259(11) provides that a function exercisable only on advice may be performed only on that advice. SRC was deliberately institutionalised to ensure fiscal sustainability, equity and harmony of the public wage bill; if its advice were optional, public-sector employers would defy it causing financial crisis. The phrase 'only on that advice' makes the advice a mandatory condition precedent for a valid exercise of power. TSC's independence under Article 249 does not exempt it; the two commissions' roles are complementary.
Whether the Employment and Labour Relations Court had substantive jurisdiction to award the teachers a basic salary increment and allowances
It had none. No statutory or constitutional provision confers jurisdiction on the labour court, in the absence of a collective agreement, to set public officers' pay; section 61 of the Labour Relations Act expressly takes such jurisdiction away, and the award usurped the roles of SRC, the National Treasury, Parliament and the Controller of Budget.
An effective resolution of the teachers' claim involves at least five constitutional institutions: TSC (decision and budget), SRC (advice on fiscal sustainability), National Treasury (budget preparation), Parliament (appropriation) and the Controller of Budget (authorising withdrawals). The dispute was a complex public-law dispute, not a simple private employer-union dispute. The labour court lacked institutional competence; its award was made without jurisdiction and was a nullity.
Whether the trial judge could lawfully conduct conciliation under section 15 of the Industrial Court Act and thereafter adjudicate the same dispute
No. A judge of the Employment and Labour Relations Court has no jurisdiction to conduct conciliation or mediation under section 15; the judge must remain an adjudicator, and the proceedings and order of 14th January 2015 were a nullity that infected all subsequent proceedings.
Section 15 refers ADR to appropriate means outside adjudication; under section 66 of the Labour Relations Act a judge is not among persons who may be appointed conciliator; the repealed section 20(1)(b) of the Labour Institutions Act which had permitted the court to sit as conciliator was not reproduced in the 2011 Act. Parties were also agreed on the general principle that a judge cannot conduct conciliation or mediation under section 15.
Whether the order of 14th January 2015 was a valid consent order converting TSC's petition into an 'economic dispute'
The order was not a consent order capable of conferring jurisdiction; even if it were, consent cannot clothe a court with jurisdiction it does not have, and the petition could not lawfully be converted or compromised suo motu by the judge.
The record shows no convergence of positions on the terms; the compromise of the petition appears for the first time in the judgment; and the trial court erred in making determinations on unpleaded issues. Although one judge would have been slow to declare the proceedings a nullity for want of prejudice, the unanimous holding was that the order of 14th January 2015 conferred no jurisdiction on the trial court.
Whether TSC should be denied audience or its appeal struck out for failure to pay the awarded increment
No. No court had found TSC in contempt; the conditional stay order lapsed by its own default clause; contempt for a money decree lies through execution, not denial of audience; and denial of audience would contravene the right of access to the Court.
The exceptions in Hadkinson applied because the appeal challenged the jurisdiction of the order on which the alleged contempt was founded; contempt proceedings were pending in the trial court and could not be pre-empted; TSC's inability to pay flowed from the constitutional budgeting and appropriation process requiring Treasury, Parliament and the Controller of Budget; and striking out would intrude on the rights of many people to have access to the Court.
Whether the 50%-60% award was justified and constitutionally valid
It was not. The award rested on a 'working document' offer tabled before SRC's mandatory advice was sought and later withdrawn and countered; it ignored the expert evidence of Dr Mwau on fiscal sustainability, applied pre-2010 'Cockar criteria' instead of constitutional criteria, discriminated against the rest of the public service, and backdated the award in breach of the budgetary process.
Under Articles 230(4)(b) and 230(5) and section 37(3) of the TSC Act, advice must be sought before an offer is made; an offer made without it was ultra vires and a nullity. A counter-offer of 100%-150% destroyed the original offer in contract law. The trial judge gave no cogent reasons for departing from the uncontradicted expert evidence on fiscal unsustainability, and the backdating impaired existing contractual obligations and created a retroactive debt contrary to constitutional procedures for expenditure of public funds.
Legal principles established
#- The advice of the Salaries and Remuneration Commission under Article 230(4)(b) of the Constitution on the remuneration and benefits of all public officers is binding on national and county governments, and any power or function exercised without that advice is invalid.
- A judge of the Employment and Labour Relations Court has no jurisdiction to conduct conciliation, mediation or other alternative dispute resolution proceedings under section 15 of the Industrial Court Act read with Article 159(2)(c) of the Constitution; a judge cannot be both judge and conciliator in the same dispute.
- A consent order cannot confer jurisdiction on a court or tribunal which it does not have; jurisdiction is conferred only by the Constitution or statute and cannot be expanded by consent, judicial craft or innovation.
- In the absence of a collective agreement, the labour court has no statutory or constitutional jurisdiction to fix the basic salary and allowances of public officers; section 61 of the Labour Relations Act reserves such terms to ministerial machinery, and determination of public officers' remuneration is vested in SRC and other constitutional institutions.
- A judgment for payment of money is not to be enforced by denial of audience or contempt proceedings but by execution; a party appealing against the order on which an alleged contempt is founded cannot be denied audience on that account.
Court orders
#- 1.The application by the unions to strike out TSC's appeal and deny the appellants audience is dismissed
- 2.The three consolidated appeals are allowed
- 3.The judgment of the Employment and Labour Relations Court dated 30th June 2015, the decree thereof, and all consequential orders are set aside in their entirety
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Agreed the appeals should be allowed and that SRC's advice is binding; proposed additional orders (SRC to table job evaluation report and advice within 90 days and parties to resume negotiations), but acknowledged no consensus on those orders and deferred to the orders in Githinji JA's judgment.
As there is no consensus on the above orders, save for the order allowing the appeals and the order on costs, the majority decision and orders of the court are as enumerated in the judgment by Githinji, JA.p. 65
Wrote the judgment
Found that prior advice of SRC had to be sought before TSC could make an offer on basic salary and that such advice binds TSC; held the trial judge could not be both judge and conciliator; agreed the appeals be allowed and each party bear own costs.
In conclusion therefore I find and hold that the prior advice of SRC had to be sought before TSC could make an ofier on basic salary to the Unions. That advice from SRC binds TSC.p. 86
Wrote the judgment
Found there was no consent order on 14th January 2015 and that the trial judge had no jurisdiction to sit as conciliator and adjudicator in the same dispute; held SRC's advice binding; found the award of 50-60% had no basis; dismissed the unions' motion and allowed the appeal.
In the end and for all the reasons discussed above, I hold that the advice of SRC on the remuneration and benefits for teachers is binding on TSC.p. 129
Wrote the judgment
Found the 14th January 2015 conciliation proceedings a nullity for want of jurisdiction; held the TSC offer was made without prior SRC advice and was ultra vires; held SRC's advice binding and its job-evaluation mandate exclusive; found the backdated award unconstitutional as impairing contractual rights; set aside the judgment in its entirety.
For the various reasons stated in this judgment, I hereby find that the judgment of the trial court dated 30th June 2015 awarding a 50% to 60% basic salary increment is unconstitutional for want of jurisdiction to conduct conciliation proceedings held on 14th January 2014p. 191
- On appeal from
- Employment and Labour Relations Court
- Petition No. 3 of 2015
- Jurisdiction invoked
- Section 17(1) of the Industrial Court Act as read with Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act - appeals from the Employment and Labour Relations Court to the Court of Appeal on matters of fact and law
- Consolidated with
- Civil Appeal No. 195 of 2015, Civil Appeal No. 203 of 2015
Relief refused
#Strike-out of TSC's appeal and denial of audience to TSC, SRC and the Attorney General for alleged contempt
No finding of contempt existed against TSC; the conditional stay order had lapsed by its own terms; the contempt question was pending in the trial court; a party with a competent appeal cannot be denied audience merely for lack of a stay order
The unions' cross-appeal seeking costs of the proceedings before the Employment and Labour Relations Court
The appeals succeeded and the trial judgment was set aside in its entirety, so the cross-appeal fell away; and in any event the Court ordered each party to bear its own costs as a public-interest matter
KUPPET/KNUT submission that the 50%-60% award be sustained because the offer originated from TSC
The offer was tabled before SRC advice was sought and was withdrawn; a counter-offer of 100%-150% destroyed the original offer; and the court could not assume jurisdiction to fix public-sector pay
Costs
Each party to bear its own costs both in this Court and in the court below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For those reasons, the unanimous judgment of the Court is that the three appeals have merit and are hereby allowed. The judgment of the trial court dated 30th June, 2015 and the decree thereof, and all consequential orders be and are hereby set aside in their entirety.
Each party to bear its own costs.
I hold that the advice of SRC under Article 230(4)(b) on remuneration and benefits of all public oficers is binding on national and county governments and any power or function exercised without that advise is invalid.
The labour court in awarding teachers a basic salary increase of 50% - 60% and allowances, a task for which it had no institutional competence to handle, made a fundamental jurisdictional error by usurping the role of SRC and other actors, and the award having been made without jurisdiction, is a nullity and liable to be set aside on that ground alone.
As a general principle, a judge of the Employment and Labour Relations court has no jurisdiction to conduct conciliation under section 15 of the Industrial Court Act as read with Article 159(2) (c) of the Constitution.
It is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction or can estop the consenting party from subsequently maintaining that such court or tribunal had acted without jurisdiction.
save for very limited exceptions such as a maintenance order against a party legally liable to maintain another, a judgment for payment of money is not to be enforced by contempt proceedings but by execution and a party appealing against an order upon which the contempt allegation is founded cannot be in contempt of that order as to hold otherwise would ofiend the provisions of Articles 48 and 50(1) of the Constitution.
The Constitution has conferred the necessary power and discretion to the relevant institutions to perform their constitutional functions.
Issues in the judgment
#Inconsistent dates for the same events across the judgments: the conditional stay order is dated 23rd July 2015 in most passages but referred to as 25th July 2015 in the lead judgment's discussion of contempt
The effective date of the trial court's award is stated as 1st July 2014 in the summary of the trial judgment but as 1st July 2013 elsewhere in the judgment and in the reproduced trial orders
Typographical year errors within the judgment: the TSC-KNUT 'Return to Work Formula' agreement is dated 18th July 2012 although it followed the Industrial Court order of 1st July 2013, and SRC's response to the unions' claim is dated 9th February 2013 in one passage and 9th February 2015 in another
The summary of the judgment refers to the order of 14th January '2014' where the proceedings were on 14th January 2015
Koome JA's judgment describes the TSC application to set aside the consent order as filed on 22nd/24th January 2015 while Githinji JA and Mwilu JA state it was lodged on 23rd January 2015
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya County Government Workers Union v County Government of Kitui & another (Constitutional Petition E003 of 2024) [2025] KEELRC 3735 (KLR)[2025] KEELRC 3735 (KLR)17 Dec 2025
- Galot Estate Kiambu & another v Kenya Union of Commercial Food & Allied Workers & another (Civil Appeal 362 of 2019) [2025] KECA 690 (KLR)[2025] KECA 690 (KLR)11 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission (TSC) & 2 others v Kenya Unionof Teachers (KNUT) & 8 others (Civil Appeal 196, 195 & 203, 195 & 203 of 2015 (Consolidated)) [2015] KECA 239 (KLR)", Case Analysis (2015). Civil Appeal No. 196 of 2015 (with Civil Appeals Nos. 195 of 2015 and 203 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/239/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.