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ELRCDismissedPetition filed October 2018 (Application dated 18th February 2019)· [2019] KEELRC 1704 (KLR)

Kenya Human Rights Commission (KHRC) &179; others v Teachers Service Commission & another; Kenya National Union of Teachers (Interested Party) [2019] KEELRC 1704 (KLR)

High Court of Kenya
30 April 2019
2,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to expand the judges hearing a teachers' rights case, saying the issues were straightforward and needed a quick decision, not delay.

What this practically means

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Executive summary

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This is a ruling on a notice of application dated 18th February 2019 brought by the Attorney-General, as Applicant, under Articles 156(5) & (6) and 163(3)(d) of the Constitution, Section 6(2)(a) of the Office of the Attorney-General Act and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2010. The Applicant sought certification of an existing Petition - brought by the Petitioners/Respondents alleging violation of teachers' rights, including unfair labour practice, unsafe working environments and failure to transfer teachers from non-conducive work environments - as raising substantial questions of law under Article 165(4) of the Constitution, so that the Chief Justice could empanel an uneven number of judges. The Applicant relied on authorities including Eric Gitari, Okiya Omtatah Okoiti and Philomena Mbete Mwilu, arguing the Petition involved interpretation of Article 237, the independence of the Teachers Service Commission, and implications for deployment of public officers countrywide. The Petitioners opposed, contending the application was made in bad faith to delay the hearing, that novel factual questions and public interest alone do not warrant an expanded bench, and that judicial resources should be reserved for exceptional cases. The 1st Respondent left the matter to the court's discretion. Justice Hellen Wasilwa accepted that constitutional questions are of great importance, but found the issues were essentially about employee rights and employer duties and were not complex. Weighing the need for timely disposal, given the delay already suffered by teachers and students in Northern Kenya, the court found the application had no merit, dismissed it, and ordered costs in the cause.

Key legal issues

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01

Whether the Petition raises a substantial question of law under Article 165(4) of the Constitution

Holding

The Petition does not warrant certification for empanelment of an uneven number of judges

Reasoning

The court accepted that questions of constitutional interpretation are of great importance, but held that the issues in this Petition concern employee rights and employer duties and are not complex. The court also weighed the delay already suffered: the Petition was filed in October 2018 and the application in February 2019, and further empanelment would delay resolution of the teachers' plight. The certification power is discretionary and must be exercised judiciously in the interest of substantive justice and timely, cost-affordable disposal under the Constitutional Rules.

p. 5
02

Whether the application should be refused in light of delay and the need for timely justice

Holding

The application was refused, partly because allowing it would further delay the Petition

Reasoning

The court noted the Petition was filed under certificate of urgency in October 2018 and over six months had lapsed without a comprehensive solution to the plight of teachers and students in Northern Kenya. Rule 3(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 requires petitions to be determined in a timely and cost-affordable manner, and Rule 15 sets strict timelines for responses. Time is therefore of the essence, and empanelment would take the parties further behind while the situation of children and teachers remained unresolved.

p. 4

Legal principles established

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  • Not every question concerning interpretation of the Constitution or constitutional rights automatically warrants certification and empanelment under Article 165(4); the issues must be complex and the discretionary power is exercised judiciously against the need for timely disposal
  • Certification under Article 165(4) requires that the matter be of general public importance, directly and substantially affect the rights of the parties, not be finally settled by the Supreme Court, not be free from difficulty, or call for discussion of alternative views

Court orders

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  1. 1.The application dated 18th February 2019 seeking certification under Article 165(4) of the Constitution is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 156(5) & (6), 163(3)(d), 165(4), 159(2)(d), 237, 5, 6(3), 10, 20, 27, 28, 29, 30, 32, 33, 39, 40, 41, 43, 47, 48, 50, 53, 56(b)
  • Office of the Attorney-General ActSection 6(2)(a)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2010-
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(3), 15
  • Teachers Service Commission Act-
  • Labour Act 2007Section 5

Cases cited (6)

  • Eric Gitari vs. Attorney General & Another
    [2016] eKLR
  • Chunilal V. Mehta & Sons Limited vs. Century Spinning and Manufacturing Company Limited
  • Okiya Omtatah Okoiti & Another vs. Attorney-General & 3 Others
    [2016] eKLR
  • Community Advocacy Awareness Trust & Others vs. The Attorney General
    High Court Petition No. 243 of 2011
  • Hon. Philomena Mbete Mwilu vs. The Director of Public Prosecution & 4 Others
    [2018] eKLR
  • Haki Na Sheria Initiative & 6 Others vs. Teachers Service Commission & 2 Others
    Nairobi High Court Constitutional Petition No. 358 of 2015
Jurisdiction invoked
Articles 156(5) & (6), 163(3)(d) of the Constitution; Section 6(2)(a) of the Office of the Attorney-General Act; Article 165(4) of the Constitution (certification sought)

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, "Kenya Human Rights Commission (KHRC) &179; others v Teachers Service Commission & another; Kenya National Union of Teachers (Interested Party) [2019] KEELRC 1704 (KLR)", Case Analysis (2019). Petition filed October 2018 (Application dated 18th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1704/eng@2019-04-30

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