A lobby group for senior teachers has suffered a major legal blow after the Employment and Labour Relations Court dismissed their petition against the Teachers Service Commission (TSC), ruling that it was filed out of time.
The Retired & About to Retire Members Welfare led by Kepha Mwambala, had sued the TSC over its failure to promote them from Primary Teacher 1 (P1) to Secondary Teacher Grade (S1) — a promotion they argue was unfairly granted to untrained A-Level teachers in 1996, while they were left behind despite having undergone formal training.
In their petition filed on March 5, 2025, the over 6,000 teachers sought salary arrears stretching from 1996 to 2010 amounting to over Sh3.45 billion, claiming the Commission had violated their constitutional rights and breached the Employment Act.
But in a ruling delivered by Principal Judge Byram Ongaya, the Court found that the claim was time-barred, effectively shutting the door on the long-standing grievance.
Judge Ongaya upheld a preliminary objection raised by the TSC on May 25 2025, which argued that the petition was disguised as a constitutional matter but was, in substance, a contractual employment dispute.
“The petitioners’ cause of action accrued sometime in 2010 and for unexplained reasons, they did not move to court until the filing of the instant petition,” Justice Ongaya said.
He cited Section 89 of the Employment Act, which stipulates a three-year limitation for claims arising from employment contracts; or 12 months in cases involving continuing injuries.
The judge noted that the salary arrears sought were due on a monthly basis and that the teachers had failed to take legal action within the prescribed timelines.
TSC’s legal counsel Cavin Anyuor maintained that the matter, though framed as a constitutional petition, was “a contractual dispute in disguise” and accused the teachers of attempting to bypass the strict timelines set out in both the Employment Act and the Limitation of Actions Act.
Teachers Service Commission (TSC) Headquarters in Upper Hill, Nairobi on June 21, 2025.
Photo credit: Wilfred Nyangaresi | Nation Media Group
“It is disguised as a Constitutional matter and filed 29 years after the cause of action accrued purposely to evade the rigors of the substantive law,” he submitted.
In his ruling, Justice Ongaya agreed that while alleging discrimination, the primary claim is for arrears accruing in the contract of service.
“No legitimate bar to file proceedings within the prescribed time of limitation has been pleaded,” he said, highlighting that the petition was an attempt to circumvent legal deadlines and that the Court lacked jurisdiction to entertain.
“Accordingly, the preliminary objection is upheld,” the judge ruled.
The Court’s decision leaves the petitioners — some of whom are still in service while others have since retired — without legal recourse in what they had hoped would be a landmark ruling correcting what they saw as historical injustice.
The teachers –some of who have retired— have long been agitating for equal treatment claiming the TSC has denied payment of their rightful end of lump sum and monthly pension.
The teachers are also demanding that the TSC provide evidence showing they were remunerated equally with their counterparts — the untrained S1 teachers who underwent a brief two-week training at Kagumo and Bondo Teachers Training Colleges in 1996.
In 1997, the Kenya National Union of Teachers and the government reached an agreement to enhance the remuneration of public school teachers. The salary increment was to be implemented in five phases over a five-year period starting July 1, 1997.
The agreement explicitly stated that the pay rise would apply to all teachers in active service, those on leave pending retirement, and those in the process of being retired but still in service as of July 1, 1997.
However, due to economic constraints, the government only implemented phase one in October 1997 but defaulted on the subsequent phases from July 1998.
