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ELRCPartially AllowedPetition (judgment delivered 12.07.2019); Notice of Motion dated 16.07.2019, filed 17.07.2019· [2019] KEELRC 926 (KLR)

Teachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party) (Petition 151 of 2018) (Employment and Labour) [2019] KEELRC 926 (KLR)

Employment and Labour Relations Court
26 July 2019
2,504 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to halt the TSC-KNUT judgment because both sides had already agreed to it in court, allowing only faster rollout of teacher performance tools.

What this practically means

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Executive summary

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Following the Employment and Labour Relations Court judgment of 12 July 2019 in a petition by the Teachers Service Commission (petitioner) against the Kenya National Union of Teachers (respondent), the petitioner moved the court by notice of motion dated 16 July 2019 under section 12(3) of the Employment and Labour Relations Court Act and Rule 17 of the 2016 Procedure Rules, seeking a blanket stay of execution of the judgment and its consequential orders pending an intended appeal to the Court of Appeal. The application was supported by the affidavit of Dr Nancy Njeri Macharia, the petitioner's Secretary and Chief Executive Officer, who argued that absence of stay would cause irreparable loss, paralyse the petitioner's constitutional mandate under Article 237, disrupt CBA implementation, and jeopardise learners' education. The respondent, through the affidavit of Henry Collins Oyuu, opposed the application, contending the orders were not amenable to execution, that no loss was demonstrated, and that a stay would revive industrial unrest. The interested party did not oppose. The court, per Byram Ongaya J, declined a blanket stay: orders (a) and (b) and part of order (d) rested on the parties' recorded consent; the applicant's grounds disclosed mere dissatisfaction with the findings, which the court would not review itself; discharge of the petitioner's constitutional mandate is a continuous undertaking not subject to stay; and order (g) setting aside the strike notice was declaratory and not subject to execution. Alleged CBA implementation difficulties could found a new cause of action but not a stay. The court granted a narrow stay of only the timelines in order (e), permitting earlier validation and roll-out of the teacher performance measurement tools, and ordered each party to bear its own costs.

Key legal issues

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01

Stay of execution of judgment orders founded partly on parties' consent

Holding

A blanket stay was refused; only the timelines in order (e) were stayed to permit earlier validation and roll-out

Reasoning

The parties had voluntarily agreed and consented to orders (a) and (b) and partially to order (d) as recorded in court. Granting a blanket stay would reopen disputes and be inconsistent with the parties' own agreement on record and the court's findings. The applicant's grounds disclosed mere dissatisfaction with the findings, which cannot found a stay; the proper avenue was the Court of Appeal.

p. 4
02

Whether the applicant's constitutional and statutory mandate under Article 237 can be suspended by stay

Holding

No - discharge of the mandate in accordance with the law is a continuous undertaking not subject to stay

Reasoning

The court found the judgment directed the applicant to discharge its constitutional and statutory powers and functions but in accordance with the law. Such discharge is continuous and should not be suspended by stay. The applicant's remedy against the findings lies in appeal, not in suspension of its mandate.

p. 4
03

Whether the declaratory order (g) on the strike notice could be stayed or executed

Holding

No - the declaration was necessary to bring industrial unrest to rest and is not amenable to execution

Reasoning

The declaration that the notice of withdrawal of labour dated 19.12.2018 was set aside or spent flowed from the finding that the underlying disputes had been conclusively resolved. In the interest of continued industrial peace and teaching service delivery, no reason to stay was established, and being declaratory the order is not subject to execution in the strict sense.

p. 4
04

Alleged difficulty in implementing the CBA arising from the judgment

Holding

Refused as a ground for stay; such difficulty was not disclosed and may constitute a new cause of action outside the petition

Reasoning

The court found that the alleged difficulty in implementing the CBA was not disclosed, and if it existed, it would not be addressed in a stay application. Since the judgment partly flowed from the parties' consent, and the alleged difficulty was not a matter agreed for determination, it could amount to a new cause of action outside the present petition.

p. 4

Legal principles established

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  • A court will not grant a blanket stay of its judgment where the orders flow substantially from the parties' own agreement and recorded consent
  • The Court will not sit on appeal against its own findings; the legitimate remedy is to move the Court of Appeal
  • A declaratory order is not subject to execution in the strict sense

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal, a stay of order (e) of the judgment of 12.07.2019, but only to the extent that the applicant is entitled to undertake validation of the teacher performance measurement tools sooner than ordered and to roll out implementation of the tools sooner than ordered
  2. 2.Each party to bear own costs of the application
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act, 2011 and Rule 17 of the Employment and Labour Relations (Procedure) Rules, 2016; Article 163(4) of the Constitution cited for intended appeal

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, "Teachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party) (Petition 151 of 2018)  (Employment and Labour) [2019] KEELRC 926 (KLR)", Case Analysis (2019). Petition (judgment delivered 12.07.2019); Notice of Motion dated 16.07.2019, filed 17.07.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/926/eng@2019-07-26

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