The High Court has shut down a fresh attempt to transfer recruitment and management of early childhood education teachers from county governments to the Teachers Service Commission (TSC), saying the dispute was already settled.
Justice Roseline Aburili struck out a petition by civil society activist Stephen Chahasi Lumwaji after TSC, the Council of Governors and Attorney General argued that the dispute had already been conclusively determined by the court in an earlier case.
She found that the petitioner was seeking substantially the same declarations made by the High Court in 2016 in a case filed by the Kenya National Union of Teachers (KNUT).
The legal dispute centres on who should recruit, employ, discipline and pay ECDE teachers under devolved education system. County governments handle pre-primary education, while the TSC has powers over the teacher registration, recruitment, deployment, promotion, transfer, discipline and termination.
Mr Lumwaji filed his petition in October 2025, challenging Section 38 of the Early Childhood Education Act, 2021. The section makes counties responsible for recruiting and professionally developing ECDE teachers in public education centres and paying their remuneration after consulting the Salaries and Remuneration Commission.
He asked the court to declare Section 38 unconstitutional, suspend its implementation and declare that ECDE teachers are subject to TSC recruitment rather than county governments.
Teachers Service Commission (TSC) headquarters in Upper Hill, Nairobi.
Photo credit: File | Nation Media Group
He argued that county government employment exposed the teachers to overlapping disciplinary processes under county rules and the TSC Code of Conduct.
The petitioner also argued that the education system had changed significantly since the 2016 judgment, with the government moving from the 8-4-4 system to the Competency-Based Curriculum.
He said the earlier case was decided under a different education and legal framework and concerned different provisions, while Section 38 of the Early Childhood Education Act was enacted in 2021, five years after that judgment.
He therefore maintained that the 2016 decision could not conclusively determine the constitutionality of the new legal provision. The 2021 Act expressly assigns county governments responsibility for recruiting and professionally developing ECDE teachers and paying their remuneration, while requiring teachers to be registered by TSC.
However, lawyers representing TSC and Attorney General told the court that the recruitment question had already been settled. They argued that changing the petitioner or statutory framework could not reopen the same dispute over ECDE recruitment.
The court agreed, noting that though the parties were different both petitions sought the same outcome -exclusive TSC control over ECDE teachers.
ECDE learners and their teachers in Mandera.
Photo credit: File I Nation Media Group
The court relied on the 2016 judgment, which arose from KNUT's challenge to direct county recruitment of ECDE teachers.
In the 2016 case the court found that pre-primary education was a county function under the Fourth Schedule of the Constitution and the constitutional division of education functions in practice.
It also found that TSC was responsible for registering trained teachers. The court therefore held that counties could recruit ECDE teachers, but only from teachers registered by TSC.
The earlier judgment affirmed that counties had “the power to recruit ECE teachers”, provided they used teachers registered by TSC.
It also directed TSC and counties to regularise teachers already recruited. The court found that counties were responsible for ECDE infrastructure, while national institutions retained responsibilities for policy, standards and curriculum.
That judgment also relied on the Basic Education Act. It noted that County Education Boards oversee pre-primary education and collaborate with TSC on teacher management. It found that counties had no power to register teachers, leaving that function with TSC.
Justice Aburili said Section 38 of the 2021 Act gave effect to the earlier decision rather than contradicting it. Although the provision did not exist in 2016, she said the earlier case had resolved the constitutional question.
She rejected Mr Lumwaji's argument that his different identity and new constitutional provisions allowed the case to proceed.
“Allowing the present petition to proceed on merit would undermine finality and open the door to “duplicative litigation”,” the court said, striking out the petition.
