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ELRCDismissedPetition (with Motion) filed 2023, Kakamega/ELRC Kisumu — not stated in full· [2023] KEELRC 2593 (KLR)

Joseph v Teachers Service Commission & another (Petition E020 of 2023) [2023] KEELRC 2593 (KLR)

Employment and Labour Relations Court
25 October 2023
RSRadido Stephen, MCIARB
1,520 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, a teacher, was notified by the Teachers Service Commission on 27 June 2023 of the termination of his employment effective 1 August 2023, on the ground that Masinde Muliro University of Science and Technology had cancelled his degree certificate (allegedly obtained by financial fraud). He petitioned the ELRC, contending that the termination violated an order in Kakamega High Court Petition No 12 of 2019 and his right to fair labour practices. In the Kakamega petition, the High Court had declared that the University's newspaper publication announcing the revocation violated his right to dignity under Article 28, but refused the certiorari sought to quash the revocation. The Commission argued that the Petitioner did not hold a valid certificate as required by Regulation 20 of the Code of Regulations for Teachers, that the University's revocation was never quashed, and that it was not party to the Kakamega proceedings. The University did not respond. The Court, applying Katiba Institute on the nature of declaratory judgments, held that the declaration had no coercive force and did not invalidate the revocation; only certiorari would have done so and it was not granted. The Petitioner lacked the qualification to remain a registered teacher, and his proper course was to enforce the declaration against the University. The Petition was dismissed, and as the Petitioner remained employed, each party was ordered to bear its own costs. Judgment delivered virtually in Kisumu on 25 October 2023 by Radido Stephen, J.

Key legal issues

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01

Effect of the High Court's declaratory judgment on the University's revocation of the degree certificate

Holding

The declaration on the right to dignity did not invalidate the revocation; only certiorari would have quashed it and that was not granted

Reasoning

The High Court in Kakamega found only a violation of the Petitioner's right to dignity under Article 28. The Petitioner had sought certiorari to quash the cancellation and the communication, but the Court declined that relief. Without the quashing order, the revocation stood. The Petitioner placed weight on a ratio that never culminated in the certiorari order; hence the revocation remained valid when the Commission acted.

p. 3
02

Whether the Petitioner remained qualified as a registered teacher

Holding

He did not, since the degree certificate stood revoked and Regulation 20 of the Code of Regulations for Teachers requires prescribed academic qualifications

Reasoning

Registration and employment as a teacher depend on holding prescribed academic qualifications, here a degree certificate from the University. Since that certificate was revoked and never restored by any court order, the Petitioner does not possess the qualification required by Regulation 20. The proper course was for him to resolve the matter with the University, which the Commission had indulged him to do.

p. 4
03

Whether the Commission's termination notice violated the High Court order

Holding

No; the Commission could rely on the revoked status of the certificate, and the Petitioner should have enforced the declaratory order against the University instead

Reasoning

The Commission, not having been party to the Kakamega proceedings, was entitled to act on the fact that no valid certificate existed. The declaratory judgment did not bind the University to restore anything and had no coercive force; the Petitioner ought to have moved to enforce it against the University. Consequently, the notice of termination did not contravene the order nor Article 2(4) of the Constitution.

p. 4

Legal principles established

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  • A declaratory judgment declares rights but has no coercive force and does not require anyone to do anything; a party wishing to enforce it must move to enforce it against the party bound
  • Where a certiorari order is refused, the impugned administrative decision remains valid notwithstanding a declaration of rights

Court orders

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  1. 1.The Court declines to issue the orders sought by the Petitioner
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Articles 23(1), 41 and 47 of the Constitution (fair labour practices and fair administrative action) — Petition alleging violation of rights; court's jurisdiction invoked by way of constitutional petition (not expressly quoted in the judgment)

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, "Joseph v Teachers Service Commission & another (Petition E020 of 2023) [2023] KEELRC 2593 (KLR)", Case Analysis (2023). Petition (with Motion) filed 2023, Kakamega/ELRC Kisumu — not stated in full. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2593/eng@2023-10-25

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