Teachers Service Commission v Kenya National Union of Teachers (KNUT);Ministry of Labour & Social Protection (Interested Party) [2019] KEELRC 1230 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Unionisability of institutional administrators (principals and head-teachers)
They are unionisable and entitled to full membership rights including standing for elective union positions
The recognition agreement, CBA and CORT provide for membership of all teachers including heads of institutions, with conflict-of-interest measures built in. The Industrial Relations Charter is not law and cannot limit Article 41 rights. Article 27 guarantees equal enjoyment of rights, and super-scale salaries cannot justify denial of membership or election rights. Boards of Management, not heads of institution, are the managers of schools.
Validity of the Industrial Relations Charter as a limitation on constitutional rights
The Charter is a tripartite agreement, not law, and cannot limit Article 41 rights; it only fills gaps in recognition agreements and CBAs
Article 24(1) permits limitation of rights only by law that is reasonable and justifiable. The Charter predates the 2010 Constitution and is not law in force under section 7 of the Sixth Schedule. The Court urged the tripartite parties to review the Charter to align it with the Constitution.
Validity of the TPD modules
TPD modules cannot be implemented because they were not prescribed by regulation as required by section 35(2)(a) of the TSC Act and the Statutory Instruments Act, 2013
Section 35(2)(a) requires professional development programmes to be prescribed by regulations; none was exhibited. Regulation 48(1) of the CORT cannot dilute this parliamentary safeguard. Consultation under section 8 of the Statutory Instruments Act is mandatory, regulatory impact statements under section 6 may be required, and no enabling provision authorises fees or salary deductions for TPD.
Duty to inform, consult and negotiate on transfer policies
The petitioner is constitutionally and statutorily enjoined to inform, consult, negotiate in good faith and reach agreement on transfer and human resource policies
Articles 10 and 232 and the Labour Relations Act impose duties to consult and confer; the petitioner's independence under Article 249(2) does not exempt it from valid statutory provisions. The Court followed its holding in Okiya Omtatah Okoiti v Attorney General that statutory provisions consistent with the Constitution bind the Commission.
Performance management tools
Valid if finalised through participatory validation meetings; respondent cannot abandon its agreed participation in developing the tools
The respondent participated in meetings and benchmarking studies; clause 11 of the CBA requires tools to be developed with participation of both parties and is binding. The Court ordered validation meetings by 01.12.2019 for a January 2020 roll out, with administrative steps at the petitioner's resources.
Legal principles established
#- A tripartite agreement such as the Industrial Relations Charter is not law and cannot limit constitutional rights under Article 41
- Delegation doctrine and intelligible principle: Parliament has not delegated its legislative power to constitutional commissions; subsidiary legislation must comply with statutory safeguards
- Consultation with affected persons is mandatory before making statutory instruments under the Statutory Instruments Act, 2013
- Constitutional commissions are bound by valid statutory provisions on employment and labour relations despite independence under Article 249(2)
Court orders
#- 1.Transfer of teachers being members but non-officials of the respondent in accordance with the Code of Regulations of Teachers (CORT)
- 2.Teachers being non-institutional administrators and the respondent's officials to be transferred within respective geographical areas they are elected to represent
- 3.Declaration that institutional administrators/heads of institutions are unionisable employees entitled to participate as candidates or voters and be elected as trade union officials per the respondent's constitution and the Labour Relations Act, 2007, and if elected, transferable only within the geographical area elected
- 4.Teacher promotion to be undertaken in accordance with the CORT and schemes of service for all unionisable teachers; the Career Progression Guidelines circular of 02.05.2018 not to apply
- 5.Petitioner to convene validation meetings for finalising performance measurement tools by 01.12.2019 for roll out in January 2020 and to institute administrative steps for availing and returning tools at the petitioner's resources
- 6.TPD modules in dispute shall not be implemented; any prescription of career progression and professional development programmes must be by regulation and comply with the Statutory Instruments Act, 2013
- 7.Declaration that the Notice of Withdrawal of Labour dated 19.12.2018 is set aside or spent
- 8.Each party to bear own costs of the petition
- Jurisdiction invoked
- Original jurisdiction under Article 41 (labour relations) and Article 237/249 of the Constitution of Kenya, 2010; Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amakobe v Majorel Kenya Limited (Employment and Labour Relations Cause E257 of 2022) [2025] KEELRC 3745 (KLR)[2025] KEELRC 3745 (KLR)19 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Teachers Service Commission v Kenya National Union of Teachers (KNUT);Ministry of Labour & Social Protection (Interested Party) [2019] KEELRC 1230 (KLR)", Case Analysis (2019). Petition filed 31.12.2018 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1230/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.