All teachers suspended by the Teachers Service Commission (TSC) have hope of their cases being reviewed and may be reinstated following a landmark ruling by a Kenyan court that will now give thousands of suspended teachers hope of a comeback.
The ruling puts TSC in a tight spot and might be overwhelmed by applications from teachers who were suspended but feel it was unfair and want their cases and hearings reviewed. In most cases, suspensions by TSC are often permanent and final.
Principal Judge of the Employment and Labour Relations Court (ELRC), Justice Byram Ongaya, declared that disciplinary cases, should, by law, have one TSC commissioner acting as the chairperson.
According to the ruling, the authority of TSC commissioners could not be delegated, as witnessed in past disciplinary cases. Any decision the disciplinary panel makes without a commission member will henceforth be treated as inconsequential.
“Thus (the TSC HR Manual) being an instrument made under the statutory provisions, the court finds that indeed its provisions could not be changed internally by the TSC without involving the Parliament as envisaged in the Statutory Instruments Act, 2013 –and which has not been shown to have been done,” the judge ruled.
The case offers a leeway for all TSC disciplinary rulings to be reviewed, with some teachers having accused their employers of unfair hearings.
The judge issued the ruling in a petition filed in August 2022 by the Teachers Service Commission (TSC) secretariat officer Rose Mwende Mutisya against her employer.
Mwende lamented that on December 16, 2021, she was among five employees laid off and punished by the TSC after an internal audit by the commission.
At the time, TSC was investigating the irregular promotion of 22 teachers. Its internal audit ascertained that some staff members took advantage of the many promotions to add names of unqualified people.