Nairobi-based lawyer and teacher Moses N’thurima has filed a constitutional petition against the Teachers Service Commission (TSC), accusing it of discriminatory and unconstitutional payment practices that deny thousands of teachers their rightful allowances.
In Constitutional Petition No. E232 of 2025, Mr N’thurima describes himself as an advocate of the High Court and a teacher employed by TSC [he is also the deputy secretary-general of the Kenya Union of Post-Primary Education Teachers] argues that teachers deployed in work stations outside the TSC headquarters (secretariat staff) are routinely tasked with duties such as supervising national examinations, coordinating co-curricular activities, mentoring, and training. However, they are not paid daily subsistence allowance (DSA) as prescribed by the Salaries and Remuneration Commission (SRC) guidelines.
“The 1st Respondent’s failure to pay daily subsistence allowances to teachers working outside its secretariat constitutes discrimination and a blatant violation of constitutional rights,” reads the petition.
According court documents, the TSC maintains a two-tier allowance system in which secretariat staff – some of whom are also trained teachers – receive allowances in full for official duties outside their workstations. In contrast, classroom teachers deployed for similar assignments are either underpaid by external agencies such as the Ministry of Education and the Kenya National Examinations Council (Knec), or not paid at all, violating the principle of equal pay for equal work.
“The teachers outside the secretariat are paid per diems at the whims of these other entities and at a much lower rate than what is set out in the SRC circulars, or as and when funds are available,” reads part of the suit.
N’thurima argues that this discrepancy violates teachers’ constitutional rights, including equality and freedom from discrimination, fair labour practices, and human dignity. He contends that the teachers’ employer – TSC – has abdicated its legal responsibility, forcing classroom teachers to rely on entities like the Ministry of Education and Knec, which have no statutory obligation to pay per diems.
The petition outlines several unpaid or underpaid responsibilities handled by teachers, such as supervising and invigilating the Kenya Certificate of Secondary Education (KCSE) examinations and the Kenya Primary School Education Assessment (KPSEA), and participating in drama, music, sports, science fairs, and other co-curricular programmes. These activities, Mr N’thurima says, are often financed irregularly by the Ministry of Education and Knec, leading to inconsistent and inadequate compensation.
“As a result of the discrimination and unfair treatment, the affected teachers end up sleeping in sub-standard accommodation, sharing spaces, and being undernourished – which undermines their ability to deliver quality education,” Mr N’thurima states in the petition.
“There is no logical or conceptual reason why the 1st Respondent would pay its employees working in the secretariat their per diems and not pay their employees working outside the secretariat, especially when they are performing work of equal value,” reads the petition.
He further asks the court to stop any ongoing programmes that require teacher deployment – including the national co-curricular activities calendar – until the allowance issue is resolved.
“The 1st Respondent (TSC) has openly encouraged and promoted unequal treatment among people having the same grade,” the petition says,
Mr N’thurima is asking the High Court to declare that the failure by the TSC to pay DSA to non-secretariat teachers unconstitutional and discriminatory treatment. He further seeks a declaration that all teachers, regardless of whether they work at the headquarters or in the field, are entitled to equal treatment and remuneration by their employer.
Additionally, the petition calls for the court to find that the TSC and SRC, and the Attorney-General have jointly violated the Constitution by failing to uphold the rights and protections guaranteed to teachers under the law.
“That the Respondent has absconded its responsibility of paying per diems to its employees who do not work in the secretariat and instead has left it to the Ministry of Education to do that,” reads the petition.
However, in its submission, the TSC argues that the petition lacks merit and ground in contractual issues.
In a replying affidavit sworn by Peter Kega, the deputy director of teacher professional development at TSC, the commission insists the petition is “an abuse of court process,” arguing that it fails the threshold of constitutional pleading and instead arises from contractual grievances that should be handled under employment law.
“The petition is vague, ambiguous, and lacks specificity and particulars,” Mr Kega said.
TSC further contends that the matter should have been addressed through ongoing collective bargaining negotiations between the commission and teachers’ unions, accusing Mr N’thurima – a key union official – of bypassing established dispute resolution mechanisms.
According to the affidavit, the TSC only pays allowances for assignments it directly authorises, such as official seminars or workshops. Assignments under other government agencies – including the Ministry of Education, Knec, and school boards of management – fall outside its purview.
“TSC cannot be held responsible for payments when teachers are engaged by other government bodies under separate arrangements,” said Mr Kega.
“The commission only pays DSA where it directly assigns duties to teachers. It cannot be held responsible for tasks assigned by other bodies.”
But a circular dated August 7 2023, issued by then SRC chairperson Lyn Mengich and copied to the Attorney-General, principal secretaries, and county secretaries among other government offices – clearly outlines that DSA is payable to all public officers (including teachers) when deployed for official assignments away from their duty stations, both locally and abroad.
“The payment of daily subsistence allowance is meant to facilitate public officers to attend to official assignments away from their duty stations ... DSA rates are standardised across the country,” the circular states.
