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ELRCPartially AllowedConstitutional Petition No 3 of 2019· [2019] KEELRC 310 (KLR)

Josphene Kathure Muriungi v Teachers Service Commission & 2 others [2019] KEELRC 310 (KLR)

Employment and Labour Relations Court of Kenya
11 November 2019
NMNzioki wa Makau
2,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the Teachers Service Commission must consider a pregnant teacher's medical condition before transferring her, but she still had to report to the new school.

What this practically means

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Executive summary

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A teacher employed by the Teachers Service Commission (TSC) petitioned the Employment and Labour Relations Court at Nyeri, challenging her January 2019 transfer from Kaaga Girls Secondary School to Chugu Boys Secondary School, effected while she was six weeks pregnant, despite a transfer request on medical grounds. She sought declarations that her rights to life, fair labour practices and dignity had been breached, certiorari to quash the transfer decisions of 31st January and 26th February 2019, mandamus compelling the TSC to consider her medical condition, and costs. The Respondents justified the transfer on staff balancing grounds, contending Kaaga Girls was overstaffed, Chugu Boys understaffed, and that the Petitioner's medical report related to 2014. In evidence, the TSC County Director admitted the Petitioner's medical grounds had been considered in an earlier transfer and that the Chugu transfer preceded the court's intervention. The court held that the TSC's power to transfer teachers is subject to fair labour practices, rejected the assertion that new recruits on a five-year bond could not be transferred in her place, and found that the imposition of excess teachers combined with her gravid condition threatened her rights to life and human dignity. However, since the Petitioner had reported to Chugu Boys, the court issued certiorari only against the later Gachanka transfer, mandamus compelling consideration of her medical condition in future transfers if gravid, limited costs of Kshs. 50,000/-, and directed her to resume work at Chugu Boys in January 2020 unless on medical or maternity leave. The Petition was partially allowed. Dated and delivered at Nyeri on 11th November 2019 by Nzioki wa Makau, J.

Key legal issues

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01

Whether the transfer of a gravid teacher without consideration of her medical condition violated her constitutional rights

Holding

The transfer without consideration of her medical condition impacted her rights to fair labour practices, non-discrimination, life and human dignity; Mandamus issued to compel consideration of medical condition in future transfers.

Reasoning

The court accepted the TSC's statutory power to transfer teachers for staff balancing, but held that the Code of Regulations required cognizance of fair labour practices. Imposing excess teachers at her school, combined with her gravid condition and the harrowing transfer, threatened her life and dignity. However, because she had reported to Chugu Boys, the operative quashing order targeted only the Gachanka transfer.

p. 3
02

Whether new recruits committed to a five-year service bond could not be transferred in the Petitioner's place

Holding

The argument was rejected; new recruits had the same terms and were equally subject to transfer despite the five-year commitment.

Reasoning

The Respondents justified the transfer of the Petitioner rather than new recruits on the recruits' five-year service commitment. The court held this reasoning hollow because the recruits had the same terms and conditions, were subject to the Code of Regulations, and their own posting to Kaaga Girls had caused the overstaffing in the first place.

p. 3

Legal principles established

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  • The employer must consider an employee's certified medical condition when effecting transfers, and transferring a gravid teacher without such consideration impacts rights to fair labour practices, life and dignity.

Court orders

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  1. 1.an order of Certiorari quashing the 2nd Respondent's decision to transfer the Petitioner to Gachanka Secondary School
  2. 2.an order of Mandamus directing the 1st Respondent to take into account the Petitioner's medical condition when transferring her in future if she is gravid
  3. 3.costs of the Petition limited to Kshs. 50,000/-
  4. 4.the Petitioner to report to work in January 2020 at Chugu Boys Secondary School and render services as required by the 1st Respondent unless she is on medical or maternity leave

Authorities

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Legislation

  • Constitution of KenyaArticles 26, 27, 28, 29, 41, 47
  • Code of Regulations for TeachersRegulation 64 (incl. 64(e)) and Regulation 67

Cases cited (4)

  • Samuel Kibithu Kahiro v Teachers Service Commission
    [2018] eKLR
  • Daniel Kinondo Muteru v Teachers Service Commission
    [2017] eKLR
  • Hezron Mukoko Silunya v Teachers Service Commission & 9 Others
    [2017] eKLR
  • Severine Luyali v Ministry of Foreign Affairs and International Trade & 3 others
    [2014] eKLR
Jurisdiction invoked
Article 26, 27, 28, 29, 41 and 47 of the Constitution - alleged violation of fundamental rights in a transfer decision of the Teachers Service Commission

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, "Josphene Kathure Muriungi v Teachers Service Commission & 2 others [2019] KEELRC 310 (KLR)", Case Analysis (2019). Constitutional Petition No 3 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/310/eng@2019-11-11

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