The High Court on Thursday cleared the Teachers Service Commission (TSC) to proceed with the appointment of its Chief Executive Officer after dismissing a petition challenging the hiring process.
The court ruled that the petitioner failed to provide sufficient evidence to justify halting the process and did not demonstrate how the recruitment would adversely affect public interest.
As a result, the court lifted restrictions that had been sought against the appointment, allowing TSC to continue with recruitment for the office that fell vacant on June 30 2025 upon expiry of the term of former CEO Nancy Macharia. Since then Evaleen Mitei has been the acting CEO.
The petition was filed by Thomas Mosomi Oyugi, who challenged the constitutionality of Section 16(2) of the Teachers Service Commission Act and the recruitment process for the TSC CEO that was advertised on May 6 2025. The commission had set a May 27 deadline for applications but the court halted the process before the expiry.
He argued that the law unfairly restricts the position to holders of a degree in education and that the recruitment process was discriminatory, exclusionary and unconstitutional. He also faulted the 21-day application window, online-only submissions, and the failure by TSC to formally declare a vacancy before advertising the position.
Former Teachers Service Commission CEO Nancy Macharia.
Photo credit: Dennis Onsongo| Nation Media Group
The advertisement required applicants to be holders of a degree in education from a university recognised in Kenya, have at least ten years' experience in education, administration and management, public administration, human resource or financial management. It also listed meeting the requirements of Chapter Six of the Constitution as a condition for consideration.
“However, having found as I have hereinabove, that there hasn’t been a demonstration of a prima facie case in respect of the specific matters mentioned and that the Petitioner has not demonstrated the prejudice that he or the public would suffer if the conservatory order is not granted, I come to the inescapable conclusion that the instant application is for rejection. It is hereby rejected. The 1st Respondent is at liberty to proceed with the recruitment process, which was temporarily halted by order of this Court,” reads the judgment.
At the heart of the objections was whether the Employment and Labour Relations Court could interrogate a recruitment process at the advertisement stage and whether it had the power to determine the constitutionality of a statute.
“It is a longstanding principle of law that the issue of jurisdiction is fundamental, constituting the very core and foundation of a case, and must be addressed as a priority. Jurisdiction grants a court authority to hear and determine a suit and, conversely, denies it. Whenever jurisdiction is contested at any stage of the trial, the Court is obligated to determine whether the subject matter falls within its adjudicatory competence,” the court said.
“In our view, there is nothing in the Constitution, the ELRC Act, to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute,” the court quoted the Supreme Court as stating.
“For the avoidance of doubt, and so as to stop the pendulum of jurisdictional rejigging that has characterised this case from the beginning, we hereby restate that the ELRC has jurisdiction to determine the constitutional validity of a statute in matters employment and labour.”
The judge rejected the argument that the absence of an employer-employee relationship at the recruitment stage stripped the court of jurisdiction.
“The respondents’ assertion that this court lacks jurisdiction to adjudicate pre-appointment employment matters, due to the absence of an employment relationship at that stage, is challenging to comprehend,” the court said.
“If such reasoning were to be deemed appropriate, then, by analogy, this court would also lack jurisdiction to hear cases where an employment contract has already been terminated in some manner.”
The Teachers Service Commission Acting CEO Eveleen Mitei.
Photo credit: Dennis Onsongo | Nation Media Groip
“In my view, ILO conventions generally treat employees to include prospective employees in matters relating to recruitment, access to employment, equality and non-discrimination, job placement services, and protection against discriminatory practices and hiring practices,” the judge stated.
Citing the Discrimination (Employment and Occupation) Convention, 1958, the court quoted: “For the purpose of this Convention, the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions.’”
The judge concluded that employment and labour relations cannot be narrowly confined to existing contracts.
“It is essential to emphasise that the issue in question relates to employment and labour relations. The Teachers Service Commission Act, particularly Section 16, is central to the dispute. In the upshot, I come to the inescapable conclusion that this Court has the requisite jurisdiction to entertain the instant petition and application,” the court ruled.
