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ELRCDismissedPetition dated 24th July 2020, High Court at Murang'a (ELRC)· [2024] KEELRC 1981 (KLR)

Gitau v Teachers Service Commission (Employment and Labour Relations Petition 1 of 2022) [2024] KEELRC 1981 (KLR)

Employment and Labour Relations Court (High Court)
31 July 2024
OMOnesmus N Makau
2,430 words in judgment
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The bottom line

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A teacher who missed out on promotions for decades lost his discrimination case because he couldn't show he was treated differently from similarly qualified colleagues.

What this practically means

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Executive summary

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The petitioner, a teacher employed by the Teachers Service Commission from 8th November 1977 as a P2 teacher, petitioned the ELRC seeking declarations that the respondent's refusal to promote him violated his rights to equality (Article 27) and dignity (Article 28), plus damages and costs. He served at three primary schools, obtained a P2 certificate in 1981 and KCSE Division Two in 1980, was shortlisted but not promoted in 1981 and 1985, and was promoted to P1 in the 1995 mass promotions of long-serving P2 teachers. He was promoted to ATS IV with effect from 1st January 2015 after undertaking a Teachers Proficiency Course in 2014. The respondent, through the replying affidavit of its Human Resource Director Dr. Julius O. Olayo, maintained that promotions are governed by the TSC Act, the Code of Regulation for Teachers and its regulations; promotion is on merit and dependent on qualifications, and the petitioner failed to meet the academic criteria for upgrading (lacking required principle and subsidiary passes), declined to take the Teachers Promotion Course, and did not serve the Commission as at 1st July 2010. Neither party filed submissions as directed. The court framed two issues: whether the failure to promote amounted to discrimination under Article 27, and whether the petitioner was entitled to the reliefs sought. Relying on the definition of discrimination in ILO Convention No. 111, section 5 of the Employment Act and the Supreme Court's decision in Gichuru v Package Insurance Brokers Ltd, the court found the petitioner had not proved discrimination on a balance of probability, as he was not treated differently from other teachers and failed the qualification criteria. The petition was dismissed with costs on 31st July 2024.

Key legal issues

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01

Whether failure to promote the petitioner amounted to discrimination contrary to Article 27 of the Constitution

Holding

No discrimination was established; the respondent applied its regulations uniformly and the petitioner did not meet the qualification thresholds for the promotions he sought

Reasoning

The court reviewed the petitioner's employment history, the Code of Regulation for Teachers (1986) Regulations 40 and 42, and the respondent's correspondence. Promotion was on merit and conditional on academic and professional qualifications. The petitioner lacked the required principle and subsidiary passes for A-Level upgrading, declined the Teachers Promotion Course, and was promoted once he obtained the Teachers Proficiency Certificate. He was not treated differently from other teachers.

p. 5
02

Whether the petitioner is entitled to the reliefs sought (declarations, damages, costs)

Holding

Not entitled; the petition was dismissed with costs

Reasoning

Since the foundational claim of discrimination failed on a balance of probability, the consequential declarations, damages and other reliefs could not issue. The respondent had acted within its regulations and the delay in promotion, where the petitioner met criteria, affected many other teachers similarly placed, as shown by the 1995 mass promotions.

p. 6

Legal principles established

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  • Discrimination entails treating a person differently from others in similar positions on a prohibited ground or due to unfair practice without objective and reasonable justification
  • An employee who fails to meet the prescribed merit and qualification criteria for promotion cannot establish discrimination merely because promotion was denied

Court orders

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  1. 1.The petition is declined and dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(1), 27, 28
  • Teachers Service Commission Act (Cap 212 of 1967)general
  • Code of Regulation for Teachers (CORT) 1986Regulations 40, 42, 42(2)
  • TSC (Qualification for Registration) Regulations 1967Regulation 5
  • Employment ActSection 5
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment)
    [2021] KESC 12 (KLR)
Jurisdiction invoked
Article 23(1) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)

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, "Gitau v Teachers Service Commission (Employment and Labour Relations Petition 1 of 2022) [2024] KEELRC 1981 (KLR)", Case Analysis (2024). Petition dated 24th July 2020, High Court at Murang'a (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1981/eng@2024-07-31

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