Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition (filed 7th February 2019, amended 3rd May 2019)· [2019] KEELRC 317 (KLR)

Suyianka Lempaa v Teachers Service Commission & another [2019] KEELRC 317 (KLR)

Employment and Labour Relations Court
29 October 2019
2,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck down the Teachers Service Commission's rule barring teacher applicants over 45, because TSC offered no real justification for the age limit.

What this practically means

#

Executive summary

#
The Petitioner, who was above 45 years, challenged the constitutionality of the Teachers Service Commission's nationwide recruitment of 29th January 2019, which was restricted to applicants aged 45 and below pursuant to Regulation 57 of the Code of Regulations for Teachers. He sought declarations that the age condition was discriminatory and violated Articles 27(4), 10 and 232 of the Constitution, Section 16 of the TSC Act and Section 5 of the Employment Act 2007, that the unjustified limitation of rights under Article 24 was null and void, and an order for a fresh recruitment process. The 1st Respondent defended the cap as necessary for efficiency, succession planning, agility and the 100% transition policy, contending that CORT is lawful subsidiary legislation and that any discrimination amounted to permissible positive discrimination. The petition was disposed of by written submissions. The court held that age does not feature among the values in Articles 10(2) and 232, that the Respondent had produced no empirical evidence that persons above 45 cannot effectively serve as teachers, and had not explained why the cap was set at 45. Given Kenya's high unemployment, the capping was found discriminatory on account of age and unjustifiable under Article 24. The Petition was partially allowed: the court declared the age-45 condition arbitrary, unconstitutional and void ab initio, declared the unjustified limitation null and void, and directed that future recruitment not discriminate on age or any other forbidden ground. The specific declarations on Sections 57(1)(a) and 57(1)(c) and the request for a fresh recruitment process were not granted in terms. Each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the 45-year age cap on teacher recruitment is discriminatory under Article 27(4)

Holding

The cap is discriminatory on account of age and serves no justifiable purpose

Reasoning

The court noted that age does not feature in the values in Articles 232 and 10(2). It took judicial notice of high unemployment in Kenya and that people may qualify late in life. The Respondent did not show that persons above 45 cannot effectively serve as teachers, nor explain why the cap was set at 45 rather than another age. Without justification, the capping locks out eligible teachers and is discriminatory.

p. 4
02

Whether the Respondent justified the limitation under Article 24

Holding

The limitation was improper, unreasonable and null and void for want of justification in law or fact

Reasoning

The Respondent relied on efficiency, succession planning and agility, but produced no empirical evidence that persons above 45 lack agility. The court held that a limitation without justification in law or fact as contemplated under Article 24 is improper and void. The contention that the CORT is lawful subsidiary legislation under the Statutory Instruments Act did not save the impugned condition.

p. 4
03

Respondent's defence of positive discrimination / permissible classification

Holding

Rejected; the justifications were unsubstantiated

Reasoning

The 1st Respondent argued the restriction promoted efficiency, succession planning and early retirement, and that any discrimination was positive discrimination under Article 24(1). The court found the Respondent had not explained why the cap was set at 45 and not 40, and had not shown that those about 45 years of age cannot effectively serve, so the defence failed.

p. 3

Legal principles established

#
  • Capping teacher recruitment entry age at 45 years without justification is discriminatory and unconstitutional
  • An organ limiting a fundamental right bears the burden of justifying the limitation in law or fact under Article 24
  • A lower age cap of 18 years would be reasonable as it is the age of majority, but 45 is not justifiable

Court orders

#
  1. 1.A declaration that including a must age meet condition of age 45 and below to be recruited by the 1st Respondent as a teacher in Secondary School is arbitrary, unconstitutional and thus void ab initio and violates the law and the Constitution
  2. 2.A declaration that to the extent the 1st Respondent sought to limit a fundamental right without justification in law or fact as contemplated under Article 24 is improper and unreasonable thus null and void
  3. 3.That future recruitment processes by the 1st Respondent should proceed without discriminating on age or any other forbidden grounds
  4. 4.Costs of the Petition to be borne by each Party

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 10(2)
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Article 249
  • Employment Act, 2007Section 5
  • Teachers Service Commission ActSection 16
  • Code of Regulation for Teachers, 2015 (CORT)Section 57(1)(a); Section 57(1)(c); Regulation 57
  • Statutory Instruments ActNot specified

Cases cited (9)

  • Jared Juma vs. Kenya Broadcasting Corporation & 3 Others
    [2014] eKLR
  • Harksen vs. Lane NO and Others
    [1997] ZACC 12; 1998 (1) SA 300 CA (CC); 1997 (11) BCLR 1489 (CC)
  • Sali vs. National Commissioner of the South African Police Service and Others
    [2014] ZACC 19
  • Muslims for Human Rights (MUHURI) & Another vs. Inspector General of Police & 5 Others
    [2015] eKLR
  • South African Airways (Pty) Limited vs. G.J.J.V.V.
    Case No. C420/2006
  • Brioche vs. Attorney General
    [2013] SLR 425
  • Fredrick Gitau Kimani vs. Attorney General & 2 Others
    [2012] eKLR
  • Jack Mukhongo Munialo & 12 Others vs. Attorney General & 2 Others
    [2017] eKLR
  • Nelson Andayi Havi vs. Law Society of Kenya & 3 Others
    [2018] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction under the Constitution (Article 23) enforcing Articles 10, 27, 232 and 24

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Suyianka Lempaa v Teachers Service Commission & another [2019] KEELRC 317 (KLR)", Case Analysis (2019). Petition (filed 7th February 2019, amended 3rd May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/317/eng@2019-10-29

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