The Employment and Labour Relations Court in Mombasa has halted the recruitment of a new Teachers Service Commission (TSC) Chief Executive Officer following a petition challenging the legality and constitutionality of the ongoing process.
Justice Ocharo Kebira issued the interim orders on Monday evening after a Mombasa resident, Thomas Mosomi Oyugi, filed application under certificate of urgency contesting the recruitment, which he argues is marred by constitutional violations and discriminatory criteria.
“The status quo that shall obtain on May 27, 2025, at 5:10 PM, as regards the impugned process, shall be maintained till further orders of this court,” stated Justice Kebira.
The judge directed that the court documents be served to TSC, the National Assembly, the Education Cabinet Secretary and the Attorney-General, who are all named as respondents in the suit.
This coourt order comes just weeks after the Commission advertised for the position. On May 6, 2025, TSC advertised for a new CEO to replace Nancy Macharia, whose term ends in June 30, 2025.
According to the advert, the deadline for applications was May 27, 2025.
Ms Macharia, who served for a decade, is currently on terminal leave.
The respondents have seven days to file their responses to both the petition and the application, with the matter scheduled for inter partes hearing on June 9.
“It is inconceivable that an independent constitutional commission mandated to promote constitutionalism and protect the sovereignty of the people can engage in a partisan and discriminatory recruitment process,” states Mr Oyugi in his affidavit.
The petitioner contends that by proceeding with the advertisement without a formal vacancy declaration, the Commission was effectively recruiting for a non-existent position, contrary to the principles of transparency and accountability enshrined in the Constitution.
'Excludes other professionals from CEO job'
The petition challenges Section 16(2) of the Teachers Service Commission Act, which outlines the academic and professional qualifications for the CEO position.
According to the advertisement placed on May 6, applicants must possess a degree in education from a recognised Kenyan university, at least 10 years’ experience in education or public administration, and meet Chapter Six requirements of the Constitution on integrity.
Mr Oyugi argues that these requirements are deliberately restrictive, excluding qualified professionals from other sectors such as Finance and Human Resource Management, which are equally relevant to the CEO role.
“The criteria set out in the advert is illogical and designed to favour one class of Kenyans — particularly teachers and insiders at the Commission — to the exclusion of others,” he claims, adding that it is only at TSC where a teacher may exercise, “albeit illegally,” human resource functions.
He argues that the commission cannot purport to demand experience in public administration, human resource, or financial management and at the same time limit the required degree to only education, a field that does not cover those areas.
The petitioner further faulted the 21-day application window as grossly inadequate and discriminatory, especially considering the geographical diversity of the country.
He also criticised the limitation of application modes to online submission or hand-delivery in Nairobi, despite the TSC having regional offices across the country.
Mr Oyugi also cited the June 2023 report by the Presidential Working Party on Education Reform, which identified governance failures at the TSC, questioning why the recruitment process is proceeding before those issues are addressed.
The petitioner says that commencing the recruitment in light of these findings, without implementing governance reforms, was mischievous and calculated to entrench the very ills that the working party identified.
The petitioner warns that unless the court intervenes, the recruitment process will be concluded, and the outcome may entrench practices that are contrary to the Constitution.
“The public interest demands that the Constitution be upheld, the Bill of Rights protected, and values and principles of governance realised,” the petition reads.
