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ELRCAllowed· [2020] KEELRC 1391 (KLR)

Jane Angila Obando v Teachers Service Commission & 2 others [2020] KEELRC 1391 (KLR)

Employment and Labour Relations Court
13 March 2020
1,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court temporarily stopped the Teachers Service Commission from transferring a 56-year-old teacher because it ignored its own transfer-exemption policy.

What this practically means

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Executive summary

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This was an interlocutory ruling in a petition filed on 10 January 2020 by Jane Angila Obando, a teacher notified on 18 December 2019 of transfer from Moi Girls School, Nairobi to Dagoretti High School by the Teachers Service Commission's County Director for Nairobi. She sought, among other prayers, conservatory orders temporarily staying the transfer decisions pending hearing of the Petition, relying chiefly on the Commission's alleged policy exempting teachers aged 56 years and above from unilateral transfer, her imminent retirement, and a mandatory retirement notice issued on 4 November 2019. The Respondents opposed, relying on Regulations 62 and 67 of the Code of Regulations for Teachers, which empower the Commission to assign teachers to any public school in Kenya, and explained the transfer as a response to a staffing evaluation. Applying the Supreme Court's principles on conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court held that because the applicant's cause of action was contractual she had to demonstrate a prima facie case. The Commission did not meaningfully deny the existence of the transfer policy it alone could have produced, and appeared to have acted contrary to its own exemption policy after issuing a mandatory retirement notification. The Court found a prima facie case and issued a conservatory order staying the transfer decisions pending determination of the Petition, directed priority hearing, set a filing timetable, and ordered costs in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case for conservatory orders

Holding

Yes. The Commission appeared to have acted contrary to its own policy exempting teachers aged 56 years and above from unilateral transfer, and after issuing a mandatory retirement notification, establishing a prima facie case warranting the order sought.

Reasoning

The applicant's cause of action was contractual, so she had to show a contractual or legal right and its breach. She relied on an extract of a transfer policy exempting teachers over 56 from unilateral transfer, plus a mandatory retirement notice. The Respondents did not meaningfully deny the policy's existence, merely asserting from the bar that the extract was 'from the streets', yet the Commission as custodian of instruments governing its teachers could easily have filed the policy. The Court was not required at the interlocutory stage to determine the extract's genuineness.

p. 3
02

Whether the Court could interfere with the Commission's mandate to transfer teachers

Holding

The Commission holds the constitutional mandate to transfer teachers and the Court will not intervene unless the Commission exceeded its powers or acted illegally; acting contrary to its own policy raised that question on the facts.

Reasoning

The Respondents invoked Regulations 62 and 67 of the Code of Regulations for Teachers authorising the Commission to assign a teacher to any public school in Kenya, and the transfer followed a staffing evaluation. The Court accepted the mandate and the need to consider pupils' best interests in balancing staffing needs, but noted the unresolved policy exemption relied on by the applicant.

p. 2

Legal principles established

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  • Conservatory orders are public-law oriented and are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • A party seeking a conservatory order must still demonstrate a prima facie case where the foundation of the cause of action is contractual
  • The Court will not intervene in the Commission's exercise of its mandate to transfer teachers unless it exceeded its powers or acted illegally
  • Where a party relies on a policy said to be in the custodian's possession, failure to produce or meaningfully deny it supports a prima facie finding

Court orders

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  1. 1.A conservatory order issued staying the operation or application of the 2nd and 3rd Respondents' decisions conveyed vide letters Ref. No. TSC/NRB/365515 dated 18th December 2019 (Ref No. TSC/NRB/236515 dated 2nd January 2020) and Ref. No. MGCN/01/12TSC365515 dated 30th December 2019 (Ref. No. MGCN/01/12/TSC 236515 dated 30th December 2019) pending the hearing and determination of the Petition
  2. 2.The Petition to be heard on a priority basis
  3. 3.Respondents to file/serve Responses, affidavits and documents on or before 31 March 2020
  4. 4.Claimant to file any further affidavit and submissions on or before 17 April 2020
  5. 5.Respondents to file submissions on or before 30 April 2020
  6. 6.A date for highlighting of submissions to be scheduled thereafter
  7. 7.Costs in the cause

Authorities

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Legislation

  • Code of Regulations for TeachersRegulation 66(5)
  • Code of Regulations for TeachersRegulations 62 and 67

Cases cited (2)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Ors
    (2014) eKLR
  • Teachers Service Commission v Thomas Joseph O. Onyango
    (2019) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction of the Employment and Labour Relations Court (petition invoking conservatory orders); employment relationship under the Teachers Service Commission

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 Angila Obando v Teachers Service Commission & 2 others [2020] KEELRC 1391 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1391/eng@2020-03-13

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