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ELRCPartially AllowedPetition dated 4th February 2025

Obita v Teacher Service Commission & another (Petition E004 of 2025) [2025] KEELRC 1784 (KLR)

Employment and Labour Relations Court
17 June 2025
2,967 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 ruled TSC unfairly blocked a teacher's promotion interview and awarded him Kshs. 500,000, but refused to force his promotion.

What this practically means

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Executive summary

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The Petitioner, a teacher, applied for promotion to Senior Master IV, T-Scale 9 under Advert No. 19/2024 (C3-C4) issued by the Teachers Service Commission and was not shortlisted, although he had been shortlisted for the same position under the earlier Advert No. 54/2023 (C3-C4). He petitioned for declarations that the non-shortlisting was discriminatory and affronted his dignity (Articles 27 and 28), breached fair labour practices (Article 41), and violated his rights to information (Article 35) and fair administrative action (Article 47), plus mandamus, an injunction, damages of Kshs. 5,000,000/- and costs. The Respondents maintained the Petitioner was ineligible for promotion because of a prior interdiction and suspension for desertion of duty, invoking section 77 of the Code of Regulations for Teachers, which bars teachers with disciplinary issues in the preceding two years, and contended that reasons were duly communicated by letter dated 30th January 2025. The Court found that no disciplinary event occurred between the two advertisements, so the ground relied upon could equally have barred the Petitioner in the earlier advert in which he was shortlisted. The Court held the failure and/or refusal to shortlist and interview the Petitioner was discriminatory and an affront to his dignity contrary to Articles 27 and 28. Declining to interfere with managerial prerogatives, it did not grant mandamus or an injunction, but awarded Kshs. 500,000/- as compensation against the 1st Respondent and made no order on costs because the Petitioner appeared in person. Judgment was delivered at Kisii on 17th June 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent had valid reasons/grounds to disqualify the Petitioner from the teacher promotional interview process
  2. 2.Whether the 1st Respondent's decision followed a fair procedure
  3. 3.Whether the Petitioner is entitled to the reliefs sought

Key legal issues

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01

Whether the Respondents had valid grounds to disqualify the Petitioner from the promotional interview process

Holding

The disqualification was not justified. The disciplinary issue cited predated the earlier Advert No. 54/2023 under which the Petitioner had been shortlisted, so it could not have operated as a bar only in Advert No. 19/2024.

Reasoning

The Respondents relied on section 77 of the Code of Regulations for Teachers barring promotion for teachers with disciplinary issues within two preceding years. The Court found no interdiction or discipline case occurred between the two advertisements; the alleged desertion was two years prior and would have barred the Petitioner in the earlier advertisement as well, in which he was duly shortlisted. The inconsistency rendered the disqualification capricious and discriminatory.

p. 6
02

Whether the failure to shortlist and invite the Petitioner for interview was discriminatory and a violation of Articles 27 and 28

Holding

Yes, the failure was discriminatory and an affront to the Petitioner's dignity contrary to Articles 27 and 28.

Reasoning

The Court found the Petitioner applied for consideration for promotion and was not shortlisted despite having been shortlisted for the identical position earlier. The shortlisting stage is critical, and candidates can be capriciously locked out. The Respondents offered no satisfactory justification for the differential treatment between the two adverts.

p. 6
03

What remedies flow from the violation

Holding

A declaration of discrimination and compensation of Kshs. 500,000/- against the 1st Respondent; no mandamus, injunction, or higher damages; no costs.

Reasoning

The Court held it cannot direct the Respondents on managerial prerogatives, so it declined to order shortlisting and interview. Because the Petitioner continues to serve the 1st Respondent as a teacher, it awarded only Kshs. 500,000/- to mollify him. Having represented himself without legal expense, he received no costs.

p. 7

Legal principles established

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  • Shortlisting of candidates is a critical phase of the recruitment process, and capricious exclusion at that stage denies deserving candidates an opportunity to attain the advertised position
  • Failure to shortlist a candidate without justification, where the candidate was previously shortlisted for the same position on identical criteria, is discriminatory and an affront to dignity under Articles 27 and 28

Court orders

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  1. 1.A declaration that the Respondent's failure and/or refusal to shortlist the Petitioner under Advert No. 19/2024(C3-C4) and to invite him for the interview was discriminatory and an affront to his dignity, contrary to Articles 27 and 28 of the Constitution
  2. 2.Compensation of Kshs. 500,000/- as against the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over constitutional and employment disputes; Petition under Articles 27, 28, 35, 41 and 47 of the Constitution

Relief refused

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Mandamus compelling the 1st Respondent to include the Petitioner in the shortlist and conduct his interview

The Court declined to direct managerial prerogatives of the Respondents

p. 6

General damages of Kshs. 5,000,000/- for discrimination

The Court awarded only Kshs. 500,000/- as compensation, taking into account that the Petitioner continues to serve the 1st Respondent as a teacher

p. 6

Costs of the Petition

The Petitioner represented himself and did not expend much by way of legal research or expense

p. 6

Declarations regarding unfair labour practices under Article 41, access to information under Article 35, fair administrative action under Article 47, and injunction against victimisation

Only the declaration on discrimination under Articles 27 and 28 was issued; the remaining declarations and orders were not granted

p. 6

Costs

No costs awarded; the Court does not see grounds for grant of costs as the Petitioner represented himself and did not expend much by way of legal research or expense in articulating his claim before the Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court is persuaded that the Respondents' failure and/or refusal to shortlist the Petitioner under Advert No. 19/2024(C3-C4) and to invite him for the interview was discriminatory and an afiront to his dignity, contrary to Articles 27 and 28 of the Constitution.
p. 6Discrimination in shortlisting - Articles 27 and 28
The Court notes the shortlisting of candidates is a critical phase of the recruitment process and deserving candidates can at times be locked out capriciously at this stage efiectively denying them an opportunity to attain the position subject of the advertisement.
p. 6Criticality of the shortlisting stage
In the final analysis a declaration be and is hereby issued that the Respondent’s failure and/or refusal to shortlist the Petitioner under Advert No.19/2024(C3-C4) and to invite him for the interview was discriminatory and an afiront to his dignity, contrary to Articles 27 and 28 of the Constitution. Compensation of Kshs. 500,000/- is ordered as against the 1st Respondent. Orders accordingly.
p. 6Final orders and disposition

Issues in the judgment

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minor

The judgment is inconsistently worded as to which Respondents are responsible: the declarations issued refer to 'the Respondent's failure and/or refusal' and compensation is ordered 'as against the 1st Respondent', while the Court's reasoning refers to 'the Respondents'

minor

The Petition number/case file number is not stated in the judgment; only the date of the Petition (4th February 2025) is given

minor

The disposition refers to 'the Respondent's failure and/or refusal to shortlist the Petitioner under Advert No.19/2024(C3-C4)' without the space used elsewhere ('Advert No. 19/2024'), a typographical inconsistency

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, "Obita v Teacher Service Commission & another (Petition E004 of 2025) [2025] KEELRC 1784 (KLR)", Case Analysis (2025). Petition dated 4th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1784/eng@2025-06-17

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