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ELRCStruck OutNot stated in the judgment· [2025] KEELRC 2362 (KLR)

Oluoch v Teachers Service Commission & another (Petition E003 of 2025) [2025] KEELRC 2362 (KLR)

Employment and Labour Relations Court
8 August 2025
MMM. Mbarũ
2,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a teacher's petition over rescinded ASAL promotions because it lacked a properly commissioned affidavit and skipped required steps.

What this practically means

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Executive summary

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The petitioner, a teacher in Tana River County acting in person, filed an application dated 3 June 2025 alongside a petition seeking declarations that the Teachers Service Commission (1st respondent) violated the constitutional rights of 1,864 teachers in nine ASAL counties whose promotions, after shortlisting and interviews, were rescinded by circular of 22 May 2025 allegedly following interference by the National Assembly Committee on Education and Research (2nd respondent). He also sought declarations on acting administrators serving beyond six months, alleged discrimination of classroom teachers in 2018, expunging of job groups C4 and D1, affirmation of the rescinded promotions, and an order barring the 2nd respondent from usurping the 1st respondent's employment and deployment mandate, plus costs. The 1st respondent raised preliminary objections including lack of jurisdiction, exhaustion, constitutional avoidance, pending similar litigation in Nairobi ELRC Petition No. E113 of 2025, and defective pleadings. The 2nd respondent opposed on grounds including an uncommissioned supporting affidavit offending the Oaths and Statutory Declarations Act and failure to meet the standard of proof. The court held the application was fatally defective for want of a properly commissioned supporting affidavit, and that the petition was not properly constituted: employment claims should proceed by Memorandum of Claim under Rule 10(3) of the ELRC (Procedure) Rules, and matters subject to ongoing CBA negotiations should be resolved there first. It noted the substantive concerns over the rescinded ASAL promotions were serious and should be interrogated by the respondents, but dismissed the application, struck out the petition, and ordered each party to bear its own costs.

Key legal issues

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01

Validity of the application dated 3 June 2025 founded on an uncommissioned supporting affidavit

Holding

The application was fatally defective and could not stand because the supporting affidavit was not commissioned as required by sections 4 and 5 of the Oaths and Statutory Declarations Act.

Reasoning

The court applied section 4 of the Oaths and Statutory Declarations Act, described as mandatory, and section 5 requiring the jurat to state place and date, relying on Mwariama and Salesio Njeru Mbogo. The petitioner's later application of 7 July 2025 was never addressed or allowed and contained no annexure curing the defective affidavit. Without a valid supporting affidavit the application lacked foundation.

p. 5
02

Whether this is a proper petition

Holding

It was not a proper petition; employment claims should be brought by way of a Memorandum of Claim under Rule 10(3) of the ELRC (Procedure) Rules absent insufficiency of statutory remedies, and grievances subject to CBA negotiations belong at the negotiating table.

Reasoning

Citing Sumayya Athmani Hassan, the court held that employment and labour rights under Article 41 are addressed by the Employment Act and Labour Relations Act, and Rule 10(3) permits enforcement of constitutional rights within a statement of claim. Further, the petitioner, a KUPPET branch executive secretary, sought to litigate issues that are part of the 2025-2029 CBA negotiations, an abuse of process. He also failed to disclose Nairobi ELRC Petition No. E113 of 2025, though the court found he moved this court first in good faith.

p. 6
03

Merits of the claims over rescinded ASAL promotions

Holding

The court noted the matters were salient and should be interrogated and addressed by the respondents, but did not determine them on the merits.

Reasoning

The court acknowledged the seriousness of promotions granted after interviews then withdrawn, particularly regarding marginalisation of ASAL counties, but since the application was defective and the petition improper, no merits determination was possible; addressing the application would have decided the main petition finally without a fair hearing for the respondents.

p. 5

Legal principles established

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  • An affidavit must be commissioned in accordance with sections 4 and 5 of the Oaths and Statutory Declarations Act; an application founded on an uncommissioned affidavit is fatally defective.
  • A party should not pursue a constitutional petition in employment matters without exhausting statutory remedies, including a Memorandum of Claim under Rule 10(3) of the ELRC (Procedure) Rules.
  • Where matters are subject of ongoing collective bargaining negotiations, moving to court before conclusion of those negotiations is an abuse of process.

Court orders

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  1. 1.The application dated 3 June 2025 is dismissed
  2. 2.The petition is struck out
  3. 3.Each party to bear its own costs
Jurisdiction invoked
Articles 43, 10, 27, 28, 162(2), 165, 237 and 258 of the Constitution (invoked by the petitioner)

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, "Oluoch v Teachers Service Commission & another (Petition E003 of 2025) [2025] KEELRC 2362 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2362/eng@2025-08-08

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