Maro v Teachers Service Commission (Civil Appeal E040 of 2022) [2025] KECA 2076 (KLR)
The bottom line
#The Court of Appeal reinstated a dismissed teacher's unfair termination case, ruling that filing a constitutional petition later does not kill an earlier employment claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the doctrine of res sub judice applied in relation to the appellant’s petition in the High Court and suit in the ELRC
- 2.whether the learned Judge erred in allowing the respondent’s preliminary objection, and in concluding that the claim was an abuse of the court process
Key legal issues
#Whether the sub judice rule under section 6 of the Civil Procedure Act barred the ELRC claim
No. The claim was filed on 12th February 2021, before the Petition filed on 17th March 2021; as the previously instituted suit, the claim could not be sub judice a later-filed petition. The preliminary objection on sub judice was correctly found to have been overtaken by events once the Petition was determined.
Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Chronology is decisive: the claim preceded the Petition. If section 6 applied, it would have been the Petition that was potentially barred. By the time the preliminary objection was ruled on, the Petition had been determined, so sub judice was no longer relevant; the only live question was abuse of process.
Whether the claim was res judicata or an abuse of the court process following the High Court’s determination of the Petition
No. The parties and the matters in issue in the claim and the Petition were not identical, and the High Court lacked competence to try the employment claim; the High Court had confined itself to the constitutionality of the impugned regulations and never pronounced on the fairness of the disciplinary committee’s conduct. The claim was neither res judicata nor an abuse of process.
The Court distinguished the nature of the constitutional petition challenging regulation 139(3) and (4) from the ELRC claim for unfair termination compensation. The two-pronged pursuit of administrative law and private law remedies does not render the first-in-time claim an abuse. The learned Judge’s finding that the High Court had pronounced on the fair-hearing question was inaccurate; the High Court only held the appellant failed to show the regulations offended Articles 50 and 159. Striking out the claim was therefore erroneous.
The scope of judicial review versus private law remedies after the Supreme Court’s decision in Dande
Judicial review is now entrenched as a substantive justiciable right, and limited merit review of administrative action is permissible; however, limited merit review does not open the door to private law remedies through judicial review. Administrative and private law remedies may be pursued in different appropriate courts.
Drawing on Suchan Investment, SGS Kenya and the Supreme Court’s Dande decision, the Court summarised the prevailing position: courts must strike a reasonable balance between judicial review of administrative action and ordinary suits for private law remedies, each calling for varying degrees of merit review matched to the remedies sought. Employment claims for unfair termination fall within the ELRC’s exclusive jurisdiction.
The delineation of jurisdiction between the High Court and the ELRC
The High Court, ELC and ELRC are different and autonomous courts exercising distinct jurisdictions; Article 165(5) precludes the High Court from matters reserved to the ELC and ELRC, and vice versa. An employment dispute cannot be competently tried by the High Court.
Applying the Supreme Court’s decision in Republic v Chengo, the Court held that the High Court was not competent to try the claim, which was essentially an employment dispute within the ELRC’s exclusive jurisdiction. Consequently, the Petition’s determination could not extinguish the claim, and the learned Judge was correct in concluding the claim was not res judicata the Petition.
Legal principles established
#- A claim that was first in time cannot be barred as sub judice by a suit instituted later; since the claim preceded the Petition, the preliminary objection based on the sub judice rule could not be sustained.
- A two-pronged approach seeking administrative law remedies in one forum and private law remedies in the appropriate specialised court is not, of itself, an abuse of process or res judicata; both strands of remedies may be sought in different albeit appropriate courts.
- The ELRC has exclusive jurisdiction over claims for unfair termination and compensation; the High Court cannot entertain such employment disputes, and neither court can hear matters reserved to the other.
Court orders
#- 1.the Ruling and Orders of the ELRC at Malindi (B. O. Manani, J.) dated 28th July 2022 be and are hereby set aside
- 2.the appellant’s claim in ELRC Case No. E001 of 2021 be and is hereby reinstated and remitted to the ELC for hearing and determination by any Judge other than Manani, J.
- 3.the costs of the appeal be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court of Kenya at Malindi
- ELRC Case No. E001 of 2021
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (first-instance ruling); no specific constitutional provision invoked in the judgment
Relief refused
#None refused; all relief sought in the appeal (setting aside the ruling and reinstating the claim before a different judge) was granted
Costs
the costs of the appeal be borne by the respondent
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.
a. the Ruling and Orders of the ELRC at Malindi (B. O. Manani, J.) dated 28th July 2022 be and are hereby set aside;
b. the appellant’s claim in ELRC Case No. E001 of 2021 be and is hereby reinstated and remitted to the ELC for hearing and determination by any Judge other than Manani, J.; and
Since the claim was the previously instituted suit, the preliminary objection that the claim was sub judice the Petition could not be sustained.
both strands of administrative and private law remedies may be sought in different albeit appropriate courts without branding either proceedings an abuse of the court process.
the appellant’s claims for unfair termination and compensation fell within the exclusive jurisdiction of the ELRC while the administrative law remedies sought in the petition were available both in the High Court and in the ELRC.
The three are different and autonomous Courts and exercise different and distinct jurisdictions.
Issues in the judgment
#The final order directs reinstatement and remittal of the ELRC claim 'to the ELC', which appears to be an error for the ELRC, the court whose claim is being reinstated
The judgment contains garbled textual artifacts, including duplicated numbering and apparent OCR-type errors within quoted material (e.g. 'ofience' for 'offence', 'afiair' for 'fair', and an interrupted duplication of paragraph numbers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maro v Teachers Service Commission (Civil Appeal E040 of 2022) [2025] KECA 2076 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (as arising from ELRC Case No. E001 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2076/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.