https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1391

Gongong v Teachers Service Commission (Employment and Labour Relations Petition E155 of 2025) [2026] KEELRC 1391 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1391 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E155 of 2025 JW Keli, J May 15, 2026 Between Hosea Lorot Gongong Petitioner and Teachers Service Commission Respondent Ruling 1.The petitioner is a teacher under employment of the respondent and being dissatisfied with the administrative decision of the employer, filed a petition dated 8th August 2025 seeking for the following prayers:-a)A declaration that the respondent has violated the petitioner's rights under articles 27, 28, 41 and 47 of the Constitution of Kenya, 2010.b)A declaration that the respondent's failure and/or refusal to confirm the petitioner as a substantive Headteacher, despite having served in that capacity for a period exceeding six (6) years, is unlawful, unreasonable, discriminatory, and in contravention of the principles of fair labour practices and administrative justice.c)An order of mandamus compelling the respondent to forthwith confirm the petitioner as a substantive Headteacher and to effect his promotion from Job Group C2 to Job Group C5 or such other commensurate grade with all attendant benefits.d)An order of mandamus compelling the respondent to compute and pay to the petitioner all salary arrears, allowances and entitlements accruing to the position of Headteacher from the date the petitioner first undertook acting responsibilities to the date of compliance with this order.e)An order directing the respondent to consider the petitioner for further promotion in line with his academic qualifications, length of service, performance record, and administrative experience.f)General damages for the psychological suffering, reputational harm and professional frustration suffered by the Petitioner as a result of the Respondent's inaction.g)Interest on (d) and (f) above at court rates from the date of accrual until payment in full.h)Costs of this petition;i)Any other relief the court deems fit to grant. 2.The petitioner filed his affidavit of even dates in support of the petition and exhibited correspondence and documents as his evidence. 3.The respondent entered an appearance and filed a replying affidavit sworn by Antonina Lentoijoni dated 4th February 2026, where they opposed the claim and exhibited their evidence. In addition the respondent filed notice of preliminary objection dated 4th February 2026 as follows:-a)The petition lacks specificity and particularity hence does not meet the test of constitutional pleadings espoused in the Anarita Karimi v Republic (No. 1) (1979) 1 KLR 15 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 (2013) eKLR cases.b)The petition has not raised any cause of action anchored in the Constitution. The subject matter pertains to contractual grievances within the ambits of statutory law (Employment Act) disguised as a constitutional petition. The court to exercise the doctrine of constitutional avoidance and dismiss the petition.c)The petition herein being premised on an alleged cause of action accruing in the year 2017, the court lacks jurisdiction to entertain such cause of action for being time barred and contrary to the provisions of section 89 of the Employment Act. Decision 4.The notice of preliminary objection was canvassed by way of written submissions. 5.The court finds that the question of whether or not the instant petition met the threshold of constitutional petitions pronounced Anarita Karimi v Republic (No. 1) (1979) 1 KLR, that can only be decided on merit and not in limine under a preliminary objection, and that also applies for the doctrine of constitutional avoidance as the facts are not settled and the petitioner has pleaded constitutional violations. On whether the cause of action had expired, I also found this was not apparent on the face of the petition and needed to be decided on merit, taking into account the petitioner was still in employment, and the injury would as well be held to be a continuing injury upon evaluation of facts. In Mukisa it was held Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors Ltd. [1969] EA Lord Charles Newbold P held that a proper preliminary objection constitutes a pure point of law. The Learned Judge then held that:-"The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop."I find the notice of preliminary objections does not raise pure points of law but facts which need to be established on merit. 6.I find the preliminary objection is premature. The same is dismissed. Costs in cause. 7.Mention on 25th May 2026 for hearing directions. 8.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELIJUDGEIn the presence of;C/A Otieno.Petitioner - Nyakoe.Respondent/ Applicant - Mulaku.