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ELRCPartially AllowedJudicial Review Application (Chamber Summons dated 3rd March 2015)· [2015] KEELRC 1009 (KLR)

Jagongo Dominique Ochieng v Teachers Service Commission [2015] KEELRC 1009 (KLR)

Employment and Labour Relations Court
29 May 2015
ANAbuodha J. N.
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that teacher transfer disputes are workplace contract matters, not public law issues, so judicial review relief was limited.

What this practically means

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Executive summary

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By chamber summons dated 3rd March 2015, Jagongo Dominique Ochieng, a TSC employee at Kabete Technical Training Institute, sought leave to apply for certiorari to quash his transfer from Nairobi to Kisumu Polytechnic, and that such leave operate as a stay. He alleged the transfer was arbitrary, done in malice without consultation, breached Article 41 and natural justice, and would reduce his income making him unable to service loans. Leave for certiorari was granted on 3rd March 2015 but the question of leave operating as a stay was set down inter partes. Counsel for the applicant argued the applicant needed only an arguable case and that alternative remedies were no bar; counsel for the TSC argued the transfer fell within the TSC's statutory mandate, that the applicant failed to appeal within 14 days, and that the employer-employee relationship is contractual/private law outside judicial review. The Court, applying the interlocutory injunction analogy, held the applicant's complaints revolved purely around his contract of employment and the TSC's code of regulations - private law matters not within judicial review. There was no public interest in the considerations behind a good-faith, non-discriminatory transfer. The Court granted leave to file the substantive motion within 21 days but declined to order that leave operate as a stay. The ruling was delivered at Nairobi on 29th May 2015 by Abuodha J. N.

Key legal issues

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01

Whether the transfer dispute is amenable to judicial review

Holding

The Court held the applicant's complaints are contractual, private law matters outside judicial review; the relationship is employer-employee and the transfer issues are underpinned by the contract of employment and the code of regulations.

Reasoning

The Court analysed the complaints (family relocation, loan servicing, alleged arbitrariness and natural justice breaches) and found they revolve around the claimant's contract of employment with the TSC. Interrogating the transfer policy and code of regulations would be contractual in nature. The applicant failed to show any breach of natural justice or Article 41.

p. 4
02

Whether leave should operate as a stay

Holding

Leave was granted to file the substantive motion but refused as a stay; the applicant did not demonstrate an issue extending beyond his contractual relationship warranting a stay.

Reasoning

Applying the interlocutory injunction analogy, the Court held an arguable case is an intellectual exercise, not a coin toss. On considering the grounds and possible administrative law principles, the Court concluded the grounds did not warrant leave operating as a stay.

p. 4

Legal principles established

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  • An applicant for interlocutory stay pending a judicial review motion must show an arguable case, akin to a prima facie case for interlocutory injunction
  • Transfer/reassignment decisions of the TSC made in good faith and non-discriminately are private law matters not amenable to judicial review

Court orders

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  1. 1.Leave to file the substantive motion granted, to be filed within 21 days of the ruling
  2. 2.Leave granted shall NOT operate as a stay of the transfer decision pending the hearing and determination of the substantive motion
  3. 3.It is so ordered

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 237(2)(c) & (d)
  • Teachers Service Commission Act No. 20 of 2012Section 46
  • Code of Regulations for TeachersRegulation 27(3)
  • Code of Regulations for TeachersRegulation 28(4)(b)

Cases cited (5)

  • Aga Khan Education Service Kenya v. R. and Others
  • Mbuthia v Jimba Credit Corporation
  • Republic v. City Council of Nairobi ex parte Inderpal Singh & 2 Others
  • Staff Disciplinary Committee of Maseno University & 2 others v. Prof. Ocheing Okello
  • Re Birac International SA
Jurisdiction invoked
Judicial review jurisdiction over the Teachers Service Commission under the Teachers Service Commission Act No. 20 of 2012 and Article 237 of the Constitution (invoked by the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jagongo Dominique Ochieng v Teachers Service Commission [2015] KEELRC 1009 (KLR)", Case Analysis (2015). Judicial Review Application (Chamber Summons dated 3rd March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1009/eng@2015-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.