Teachers Service Commission v Kenya National Union of Teachers & another; Attorney General (Interested Party) (Petition 72 of 2015) [2015] KEELRC 529 (KLR)

Relying on the USIU decision as adopted by the Court of Appeal in Prof. Mugendi, the court held that the ELRC has jurisdiction to enforce labour rights under article 41 and interpret the Constitution where breaches arise substantially in employment and labour relations. The 1st respondent's objection was treated as abandoned for want of supporting submissions. The High Court's jurisdiction is excluded by article 165(5)(b).

Allegations that the strike violates children's rights to education and the petitioner's fair hearing rights in the pending appeal are not ordinary questions of law. The Constitution being supreme, any allegation of violation of a recognized right must be entertained and determined on merit by a competent court; a court cannot refuse ex facie to hear such an allegation.

The strike of 1 September 2015 post-dated the June judgment of Nderi J and could not have been within his contemplation. The question of how the petitioner would source funds to honour the award was a new dimension never decided, since no court concerns itself with how a judgment debtor will honour a decree. That issue is being addressed in enforcement proceedings before Nderi J.

Article 41(2)(d) is silent on procedure, which is left to section 76 of the Labour Relations Act. Yet applying article 20 and 24(1) (interpretation favouring enforcement and non-derogation of the core content of rights), and given the petitioner's public 'can't pay, won't pay' posture after the Court of Appeal and Supreme Court declined interim relief, a strike notice would have served no purpose and was rendered superfluous.

Industrial action is not among the orders a court can make; the court's role is limited to declaring the legality of an ongoing or threatened strike. Neither Nderi J nor the Court of Appeal prohibited a strike over the pay dispute as at 1 September 2015, and the parties had not agreed to refer the implementation dispute to the court under section 78(1) of the LRA, so the strike did not breach the Act.

The petitioner is a constitutional commission mandated to recruit teachers and promote constitutionalism; it delivers the article 53(1) right to education through teachers. Article 22 permits proceedings in the public interest and article 260 defines 'person' to include bodies corporate. The contention that a state organ cannot litigate the Bill of Rights was held novel and grey.