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ELRCDismissedMisc Application No 11 of 2019· [2020] KEELRC 644 (KLR)

Jane Wambui Gathuru v Teachers Service Commission & Mutuku Joseph Kyalo [2020] KEELRC 644 (KLR)

Employment and Labour Relations Court of Kenya
17 July 2020
8,192 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a teacher's bid to be confirmed as Principal and to punish TSC officials for contempt, ruling the interim orders were ambiguous.

What this practically means

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Executive summary

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The Applicant, a teacher deployed as Principal of Githurai Mixed Secondary School by a letter dated 4th July 2018 expressed to be temporary 'until further notice', filed a Notice of Motion under Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 seeking a temporary injunction restraining her transfer, an order compelling the Teachers Service Commission to issue her a standard transfer letter as Principal, and costs. Ex-parte orders of 5th February 2019 by Abuodha J. granted prayer 2, maintaining the status quo in the management of the School. The Applicant later filed a contempt application against Dr Nancy Macharia (TSC CEO) and Mutuku Joseph Kyalo (the 2nd Respondent) alleging wilful disobedience of the interim orders, seeking committal and a fine. The Respondents opposed, contending the Applicant was only an acting Principal (she ranked last in the March 2017 interviews, signed BOM minutes as Acting Principal and sought re-designation as Deputy Principal), that the Notice of Motion was not a recognised originating process and the suit was a nullity, and that there was no wilful disobedience as the interim orders were ambiguous and the status quo at service was that the 2nd Respondent had already taken over as Principal. The Court held the suit defective but entertained it under Article 159. It found the Applicant had not been substantively appointed Principal, that compelling a transfer letter as Principal would interfere with the employer's managerial prerogative, and that the interim orders were ambiguous as to duration and the Respondents maintained the actual status quo. Both applications were dismissed with costs.

Key legal issues

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01

Propriety of the suit commenced by Notice of Motion

Holding

The suit was defective because a Notice of Motion is not a recognised originating process in the ELRC, but the Court entertained it on the merits under Article 159 of the Constitution

Reasoning

The Court agreed that under Rule 4 of the ELRC (Procedure) Rules, 2016 suits are commenced by Statement of Claim, and under Rule 7 by petition, and that the Notice of Motion under the Mutunga Rules' Rule 4 was not a proper originating process. However, since parties had argued the matter to near conclusion, the Court invoked Article 159(2)(d) to eschew procedural technicalities and determine the applications on their merits rather than strike out the suit.

p. 10
02

Whether the Applicant was substantively appointed Principal or only deployed in an acting capacity

Holding

The Applicant was deployed temporarily as Principal in an acting capacity pending deployment of a substantive Principal; she was never substantively appointed

Reasoning

The Court relied on the letter of 4th July 2018 which deployed the Applicant as Principal temporarily until further notice, the Board of Management minutes of 13th July 2018 which she authored designating her 'Acting Principal', her request for re-designation as Deputy Principal III, her payslips showing Deputy Principal designation, and the merit list in which she ranked last in the March 2017 interviews. These established that the deployment was temporary and that no substantive appointment as Principal had been made.

p. 10
03

Whether the Respondents were in contempt of the Interim Orders of 5th February 2019

Holding

The Respondents were not in contempt: the Interim Orders were ambiguous as to their duration, and the true status quo when they were served was that the 2nd Respondent had already taken over as Principal

Reasoning

The orders recorded by Abuodha J. that prayer 2 be granted 'to last until then' created an ambiguity whether the orders subsisted until the inter partes hearing on 20th February 2019 or until final determination. Since contempt requires a clear and unambiguous order and wilful disobedience, the ambiguity was fatal. Further, the status quo at the time of service on 6th February 2019 was that the 2nd Respondent had reported to the School as Principal on 30th January 2019 and the Applicant had signed an entry and exit report confirming this.

p. 10
04

Whether the Applicant should be deployed to another school as Principal

Holding

The prayer was refused; the Court cannot compel the employer to designate the Applicant as Principal outside the career progression framework

Reasoning

Appointment as Principal requires a competitive process of advertisement, interview, selection and formal appointment, anchored in Articles 10 and 232 of the Constitution and the TSC's statutory mandate under Article 237. The Applicant ranked last in the March 2017 interviews and had only acted temporarily. Granting the prayer would amount to the Court taking over the employer's managerial prerogative and compelling a promotion outside the applicable framework.

p. 10

Legal principles established

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  • For a party to be cited for contempt, the court order must be clear and unambiguous, duly served, and disobeyed wilfully
  • A Notice of Motion is not recognised as originating process in the Employment and Labour Relations Court unless specifically provided for by statute
  • Courts should not interfere with the employer's managerial prerogative in appointments, promotions and deployments absent constitutional, statutory or contractual breach

Court orders

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  1. 1.The Originating Motion is dismissed
  2. 2.The Contempt Application is dismissed
  3. 3.Costs of both applications awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 48, 159, 232, 237(2)(c) and (d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013Rules 4 and 10
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4 and 7
  • Civil Procedure ActSections 1B, 3A and 63
  • Civil Procedure RulesOrder 21 Rule 1; Order 53
  • Judicature ActSection 5
  • Basic Education ActSections 54(7)(o) and (8)
  • Code of Regulations for TeachersRegulations 69, 70(1) and 73
  • Law Reform ActSections 8 and 9
  • Career Progression Guidelines for Teachers, 2018Clause 2.4.11
  • TSC Policy on Identification, selection, appointment, deployment and training of heads of post-primary institutions (February 2007)Clause 8.1(b)

Cases cited (12)

  • Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others
    [2015] eKLR
  • Wildlife Lodges Ltd v County Council of Narok and Another
    [2005] 2 FA 344 (HCK)
  • Joel Njoroge Wanyoike v Teachers Service Commission (TSC) & 2 others
    [2015] eKLR
  • Samuel Chege Thiari & another v Eddah Wanjiru Wangari & 3 others (Nyahururu Civil Misc. App. No. 31 of 2018)
    [2018] eKLR
  • Fidelity Bank Limited v John Joel Kanyali (Mombasa Misc. Civil Appt. No. 8 of 2014)
    [2014]
  • Raila Odinga & others v IEBC
    (2013)
  • Geoffrey Mworia v Water Resources Management Authority and 2 others
    [2015] eKLR
  • Abdi Satarhaji & another v Omar Ahmed & another
    T20181 eKLR (as printed)
  • Republic v Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & others (citing Ram Kishan v Sir Tarun Bajah & Others, Contempt Petition No. 336 of 2013, Supreme Court of India)
    [2015] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    Industrial Court Cause No 620 of 2013
  • ABDI ABDULLAHI SOMO v BEN CHIKAMAI & 2 others
    [2016] eKLR
Jurisdiction invoked
Article 23 of the Constitution read with Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Jane Wambui Gathuru v Teachers Service Commission & Mutuku Joseph Kyalo [2020] KEELRC 644 (KLR)", Case Analysis (2020). Misc Application No 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/644/eng@2020-07-17

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