https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2154

Board of Management, Mama Ngina Primary School v Teachers Service Commission & 3 others (Petition E022 of 2026) [2026] KEELRC 2154 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2154 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E022 of 2026 AN Mwaure, J July 24, 2026 Between Board of Management, Mama Ngina Primary School Petitioner and The Teachers Service Commission 1st Respondent The County Director of Education Nakuru 2nd Respondent The Regional Director Of Education 3rd Respondent The Hon Attorney General 4th Respondent Judgment Introduction 1.The Petitioner instituted the suit vide a Petition dated 11th May 2026 seeking the following reliefs:a.A declaration that the purported transfer of the Head Teacher of Mama Ngina Primary School by the 1st Respondent is procedurally irregular, unlawful, and violates Articles 28, 41, 47 and 237 of the Constitution.b.A declaration that the Respondent’s failure to provide any rationale for the purported transfer violates the TSC Code of Regulations for Teachers, 2015, and the Fair Administrative Action Act.c.A declaration that the predetermined investigations conducted on 27th April 2026 violated the Headteacher’s right to a fair hearing under Article 50 of the Constitution.d.An order to quash any transfer letter, decision, or directive issued or intended to be issued against the Headteacher of Mama Ngina Primary School in furtherance of the irregular process.e.An order prohibiting the Respondents from transferring, deploying, or effecting any handing over of the Headteacher of Mama Ngina Primary School without compliance with fair administrative action and the TSC Code of Regulations.f.A permanent injunction restraining the Respondents, whether by themselves, their agents, officers, servants, or any person acting under their authority, from harassing, intimidating, victimizing or taking any adverse administrative action against the Headteacher of Mama Ngina Primary School arising from the purported transfer.g.An order directing the Respondents to maintain the status quo with respect to the leadership of Mama Ngina Primary School pending compliance with due process.h.Costs of the Petition and interest thereon.i.Any other or further relief that this Honourable Court may deem fit and just to grant. Petitioner’s case 2.The Petitioner avers that the Headteacher, Mr. Francis Macharia, of Mama Ngina Primary School, which has an enrolment of 3,173 learners, 61 teachers, and numerous support staff, has served diligently since 2021 with no disciplinary record. He was allegedly targeted by a draft transfer letter dated 27th April 2026, which the Board discovered on 28th April 2026. 3.The Petitioner avers that investigations into anonymous complaints were conducted on the same date, suggesting a premeditated and unjustified transfer. Despite repeated requests, no formal rationale or transfer letter has been issued, yet a handing‑over session was scheduled for 12th May 2026, causing tension and disruption among staff and learners. 4.The Petitioner contends that the transfer jeopardizes ongoing development projects, amounts to a demotion since no comparable posting has been indicated, and is politically motivated and procedurally irregular. 5.The Petitioner further alleges violations of constitutional and statutory rights, including the right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015, due to lack of notice, reasons, and opportunity to be heard; the right to fair labour practices under Article 41, citing victimisation and punishment without cause; the right to human dignity under Article 28, owing to degrading treatment; and the right to basic education under Article 43(1)(f), as the transfer has disrupted learning and administrative stability. 6.The particulars of violation include absence of administrative justification, non‑compliance with the Teachers Service Commission Code of Regulations (2015), denial of fair hearing, predetermined investigations, improper scheduling of handover, and jeopardy to ongoing development programmes. Respondents’ grounds of opposition 7.The Respondents, through their grounds of opposition dated 21st May 2026, urge dismissal of the Petition and Notice of Motion both dated 11th May 2026. The Respondents argue the matter is frivolous, vexatious, and an abuse of process, further asserting that the Petitioner lacks locus standi since the Headteacher, as an employee of the 1st Respondent, can pursue his or her own remedies. 8.The Respondents emphasize that under Article 237 of the Constitution and the Teachers Service Commission Act, the mandate to recruit, deploy, transfer, and discipline teachers lies exclusively with the Commission. The alleged transfer letter, they note, was only a draft, never issued or implemented, and therefore incapable of violating rights. The Respondents add that the Application fails to specify with precision the rights allegedly infringed, contrary to Anarita Karimi Njeru v Republic [1979] KLR 154 and Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), and no evidence has been shown of violations under Articles 27, 41, 47, or 50 of the Constitution. 9.The Respondents maintain that teacher deployment is a lawful administrative function, and the Court cannot interfere absent of proof of illegality or abuse of power. The Respondents conclude that the Petitioner has not met the threshold for conservatory orders, has shown no prima facie case or irreparable harm, and that the Petition is speculative, premature, and offends the doctrine of ripeness. Accordingly, the Respondents seek dismissal with costs. 10.The parties canvassed the petition by way of submissions. Petitioner’s submissions 11.The Petitioner submitted that the locus standi under section 56 of the Basic Education Act, 2013, arguing that the arbitrary transfer of the Headteacher undermines its statutory mandate to manage and develop the school. The Petitioner relied on the case of Gladys Nduongwa Ngei v TSC [2025] KEELRC 3732, Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), and Law Society of Kenya v Attorney General & 3 others [2020] KEHC 9867 (KLR) to show that public interest litigation permits bodies with legitimate interests to seek constitutional redress, particularly where the rights of over 3,000 learners under Article 43(1)(f) of the Constitution are threatened. The Petition contends that the transfer violated Articles 28, 41, 47, and 50 of the Constitution, as well as the Fair Administrative Action Act, 2015, by being procedurally unfair, punitive, and degrading. Authorities such as Judicial Service Commission v Mutava & Another [2015] KECA 741 (KLR), Gitau Harrison Joshua v Teachers Service Commission & Another [2014] KEELRC 1008 (KLR), Aradi v Teachers Service Commission [2024] KEELRC 1966 (KLR), Hezron Mukoko Silunya v TSC [2017] KEELRC 236, Jane Angila Obando v Teachers Service Commission & 2 Others [2020] KEELRC 795 (KLR), Lewis Moses Odhiambo & Another v Mahanaim International High School & another [2021] KEHC 13581 (KLR), and Ngei v TSC [2025] KEELRC 3732 are cited to demonstrate that transfers must be justified, non‑arbitrary, and not disguised disciplinary measures. 12.The Petitioner emphasizes that while Regulation 67 of the TSC Code grants discretion to transfer teachers “at any time,” this power is not unfettered and must comply with constitutional safeguards under Articles 28, 41, and 47. It dismisses the Respondents’ reliance on the “draft” nature of the transfer letter, noting that the handing‑over ceremony and subsequent service constituted administrative action. 13.Further, invoking Republic v Cabinet Secretary Ministry of Transport and Infrastructure & 3 others ex parte Francis N. Kiboro & 198 Others [2015] KEHC 3534 (KLR), the Petitioner argues that the doctrine of ripeness does not bar intervention where imminent harm is evident. Finally, the Petitioner maintains that the Petition meets the precision threshold under Anarita Karimi Njeru v Republic(supra) and Matemu v Trusted Society of Human Rights Alliance & 5 others(supra), and seeks declarations that the transfer was unlawful, orders of certiorari and mandamus to quash and restore the status quo, and costs. 14.The Respondents did not file their respective written submissions. Analysis and determination 15.The court has considered the petition, grounds of opposition and submissions; the issue for determination is whether the transfer of the ex-parte Applicant is a constitutional violation of his rights. 16.The definition of transfer under the TSC Code of Regulations for Teachers, 2015 provides as follows:“reassigning a teacher or head of institution to perform teaching or administrative duties in a different institution.” 17.Regulation 67 of the TSC Code of Regulations for Teachers, 2015 provides as follows:“Notwithstanding the provisions in regulations 64 and 65, the Commission shall have the discretion to transfer a teacher at any time whether or not the teacher has applied for a transfer or decline to transfer a teacher upon application.” 18.In Hezron Mukoko Silunya v Teachers Service Commission & 9 Others(Supra) the court held as follows:“Because the suspension and transfer of teachers by the 1st Respondent has constitutional, statutory and contractual basis, and because the Petitioner did not demonstrate that the suspension and transfer were outside the mandate of the 1st Respondent or unfair, the Court is of the view that the 1st Respondent did not violate any of the Petitioner’s rights in meting out the sanction of suspension, or in the transfer.” 19.In the present case, the Headteacher, Mr. Francis Macharia Kimani, received a letter dated 27th April 2026 from the 1st Respondent’s Sub‑County Director, Nakuru West, purporting to transfer him from Mama Ngina Primary School to Kaloleni Primary School with effect from 4th May 2026. The Petitioner avers that investigations into anonymous complaints were conducted on the same date, suggesting a premeditated and unjustified transfer. Despite repeated requests, no formal rationale was furnished, yet a handing‑over session was scheduled for 12th May 2026, thereby causing disruption and tension within the institution. The Petitioner contends that the transfer jeopardizes ongoing development projects, amounts to a demotion, and is politically motivated and procedurally irregular. 20.Conversely, the Respondents argue that the Petition is frivolous, vexatious, and an abuse of process, further asserting that the Petitioner lacks locus standi, as the Headteacher, being an employee of the 1st Respondent, is capable of pursuing his own remedies. They emphasize that under Article 237 of the Constitution and the Teachers Service Commission Act, the exclusive mandate to recruit, deploy, transfer, and discipline teachers lies with the Commission. The Respondents maintain that the alleged transfer letter was merely a draft, incapable of violating rights, and that the Application fails to specify with precision the rights allegedly infringed, contrary to the principles in Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. They further submit that no evidence has been shown of violations under Articles 27, 41, 47, or 50 of the Constitution. In their view, teacher deployment is a lawful administrative function, and absent proof of illegality, irrationality, or abuse of power, the Court cannot interfere. They conclude that the Petitioner has failed to establish a prima facie case or irreparable harm, and that the Petition is speculative, premature, and offends the doctrine of ripeness. 21.The record demonstrates that the 1st Respondent was acting squarely within its constitutional and statutory mandate under Article 237 of the Constitution and the Teachers Service Commission Act in effecting the transfer of a teacher from one institution to another. The authority to recruit, deploy, transfer, and discipline teachers is vested exclusively in the Commission, and the exercise of that mandate cannot be impugned absent clear evidence of illegality, irrationality, procedural impropriety, or abuse of power. 22.Article 237 of the Constitution states as follows:-There is established the Teachers Service Commission.The functions of the Commission are—(a)to register trained teachers;(b)to recruit and employ registered teachers(c)to assign teachers employed by the Commission for service in any public school or institution;(d)to promote and transfer teachers;(e)to exercise disciplinary control over teachers; and(f)to terminate the employment of teachers.The Commission shall—(a)review the standards of education and training of persons entering the teaching service;(b)review the demand for and the supply of teachers; and(c)advise the national government on matters relating to the teaching profession.Furthermore, the court notes that the Respondent was guided by its own regulations, and any grievance directed against the Headteacher personally ought properly to have been pursued in the civil courts, not through this constitutional petition. The teacher could also approach the court in his right but the court will not dwell on that. 23.Regulation 67 of the Teachers Service Commission Code of Regulations for teachers provides:-“Notwithstanding the provisions in regulations 64 and 65, the Commission shall have the discretion to transfer a teacher at any time whether or not the teacher has applied for a transfer or decline to transfer a teacher upon application.” 24.There is no evidence adduced by the Petitioner and the Head teacher to demonstrate violation of any of the Head teachers rights under Articles 28, 41, 47, and 237 of the Constitution or at all. 25.Under the circumstances, the court holds that the petition has not been proved as per the legal standards. It is therefore dismissed. 26.The court will exercise its discretion and order each party to meet their respective costs of the Petition.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 24TH DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE