https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2345

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION CONSTITUTIONAL PETITION NO. E246 OF 2023 IN THE MATTER OF ARTICLE 22(1)ANDIN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 1 (1), 2 (1) (2) (3) (4) (5) (6), 3 (1), 10 (1) (a) (b) (c) (2) (a) (b) (c), 19 (1) (2) (3) (a) (b) (c), 20 (1) (2) (3) (a) (b) (4) (a) (b) (5) (a) (b) (c), 21 (1), 22 (2) (a) (b) (c) (d) (3) (a), (b) (c) (d) (e) (4), 23, 24, 25 (1), 26 (1) (3), 28, 29 (d) (f), 32 (1) (2) (4), 36, 37 , 41 (2) (b), 47(1) (2) (3) (a) (b), 162 (2) (a), 237, 238 (1), 249 (1) (a) (b) (c) (2) (a) (b), 258 (1) (2) (a) (b) (c) (d), 259 AND 260 OF THE CONSTITUTION OF KENYA 2010 -AND- IN THE MATTER OF ORDERS OF CERTIORARI, PROHIBITION, AND MANDAMUS -AND- IN THE MATTER OF EMPLOYMENT ACT NO.11 OF 2007 SECTIONS 10, 12 (2) -AND- IN THE MATTER OF TEACHERS SERVICE COMMISSION ACT NO.20 OF 2012 SECTION 33, 34; -AND- IN THE MATTER OF TEACHERS SERVICE COMMISSION (CODE OF CONDUCT AND ETHICS FOR TEACHERS) REGULATIONS SECTION 38, 40 -AND- IN THE MATTER OF TEACHERS SERVICE COMMISSION CODE OF REGULATIONS FOR TEACHERS SECTIONS 91,140, 146, 154 -AND- IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT NO.4 OF 2015 SECTION 3, 4, AND 9 (4) -AND- IN THE MATTER OF INTERDICTION, WARNING AND SUSPENSION OF TEACHERS WORKING IN NORTH-EASTERN REGION -BETWEEN- KENYA TEACHERS IN HARDSHIP AND ARID AREAS WELFARE ASSOCIATION………………………………………………………….…………..…………….PETITIONER -VERSUS- TEACHERS SERVICE COMMISSION (TSC)………………….………………………………...……..…1ST RESPONDENT MINISTRY OF EDUCATION………………………………….…………………………………….….……. 2ND RESPONDENT ATTORNEY GENERAL……………………………….……………………………….………………………….3RD RESPONDENT MINISTRY OF INTERIOR & COORDINATION OF NATIONAL GOVERNMENT……………………………….…….…………….…………………………4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Petitioner seeking intervention of the court following interdiction of its members by the 1st respondent, commenced this suit vide an undated Petition filed on 28th December 2023 seeking the following orders:- *a) A DECLARATION THAT:* 1. *By Re-posting non-local teachers who fled from North-Eastern due to insecurity* *and discrimination, back to North-Eastern the 1st and 2nd Respondents failed to* *uphold the Constitution as required at Articles 10, 26, 27, 47 and 50(1) of the* *Constitution of Kenya.* 1. *That no disciplinary administrative action should be taken against a teacher who* *may fail to attend to his duties due to insecurity.* 1. *That the right to life is an inherent right and supersede the right to teach since* *once life is lost due to insecurity it cannot be recovered.* *b) AN ORDER:* 1. *Quashing the Re-posting of Teachers who fled from North-Eastern by the 1st* *Respondent.* 1. *Order of certiorari, quashing the decision of the 1st Respondent that found a guilty* *verdict in the disciplinary cases for non-local teachers who were working in North-* *Eastern region and reposting them back.* 1. *An order prohibition, retraining the Teachers Service Commission from posting* *these non-local teachers back to the North-Eastern region, which is not safe for* *them, where they are discriminated by the locals and where they the Christian* *teachers are coerced to confess to Muslim faith.* 1. *Directing the 1st Respondent to transfer the teachers, who are members of the* *Applicant to schools outside of North-Eastern where they will enjoy all their Rights and Freedoms as guaranteed under the Constitution of Kenya 2010.* 1. *Annulling the entire decision of the 1st Respondent to repost the non local* *teachers back to North-Eastern despite the existence of threats that caused the* *teachers to flee.* 1. *Applicants members herein, who are teachers employed by the 1st Respondent.* 2. *Of Prohibition Barring the 1st Respondent from with-holding salaries, allowances* *and any other legal benefits entitled to the teachers, who are members of the* *Petitioner who fled from North-Eastern.* 1. *Directing the urgent and interlocutory suspension of any disciplinary hearings and* *punitive measures directed at the members of the Petitioner, who are teachers* *fleeing the insecurity in North-eastern.* 1. *Directing annulment of any Circulars or Decisions made by the 1st or Second* *Respondent against the Petitioners members fleeing insecurity in North-Eastern.* *c) COMPELLING* 1. *Compelling the 1st Respondent to make a decision that adhere to the Rights and* *Fundamental Freedoms as per the Constitution of Kenya 2010 and the Fair* *Administrative Action Act 2015.* 1. *Compelling the Respondents to bear the costs of this petition.* 2. *Any other appropriate relief the court may deem just to grant.* 3. The Petition was filed alongside the Supporting Affidavit of DANIEL NDUNG’U WANGENYE sworn on 28th December 2023, and annexures thereto, and the list of witnesses filed on 28th December 2023. 4. In response to the said Petition, the 1st Respondent filed a Notice of Preliminary Objection dated 27th February 2024, a Replying Affidavit sworn by ANTONINA LENTOIJONI on 26th February 2024, and the Supplementary Affidavit sworn by IBRAHIM H. YAKUB on 28th February 2024; the Respondents filed a Replying Affidavit sworn by one BELIO R. KIPSANG on 20th February 2024. The respondent filed a further affidavit dated 17th March 2025 by ANTONINA LENTOIJONI. 5. To counter the Respondents’ responses, the Petitioner filed a Reply dated 11th March 2024. The Petitioner’s case in summary 1. The Petition has been brought on behalf of the Petitioner’s members who are teachers. The Petitioner complains of discrimination against non-local Christian teachers, and insecurity, including acts of terrorism, the said teachers fled from North-Eastern Kenya, but have been subjected to unfair decisions by the 1st Respondent, which they object to. Specifically, the Petitioner complains that the teachers tragically lost their colleagues who were targeted, wounded, harassed and killed while undertaking their duties as teachers. 2. The Petitioner takes issue with the failure of the Respondents to carry out investigations to ascertain the insecurity, discrimination from the local community and coercion to convert to the Muslim faith which the Christian non-local teachers experience, which caused the teachers to flee the North-Eastern region around the months of August and September 2023. Instead of doing so, the 1st Respondent immediately interdicted the teachers, withholding their salaries and benefits from the end of September 2023 without according to them a fair hearing. 3. Following their interdiction, the 1st Respondent undertook hearings of the affected teachers’ disciplinary cases between 4th to 7th December 2023 where the affected teachers explained themselves with supporting documentary evidence. Further, the Cabinet Secretary for Interior Coordination of National Government, on 2nd August 2023 when he appeared before the National Assembly committee on education, declared the North-Eastern region unsafe for non-local teachers and made a recommendation to the 1st Respondent to transfer the Petitioner’s non-local members to safe regions outside North-Eastern and/or shorten their period of service in that region. Nonetheless, 1st Respondent resolved to repost the non-local teachers back to the North-Eastern region from which they fled, and has since failed to remit their salaries and benefits for September, October, November and December 2023. 4. The Petitioner argues that the actions of the Respondents are in contravention of the affected teachers’ Article 26 right to life; their Article 27 freedom from discrimination; their Article 28 right to human dignity; their Article 29 right to freedom and security of the person, which includes the right not to be subjected to torture, whether physical or psychological, and treated or punished in a cruel, inhuman or degrading manner; their Article 32 freedom of religion and belief; their Article 41 right to fair labour practices; and their Article 47 right to fair hearing. Further, their actions of reposting the affected teachers to an insecure region and denying them their salaries are unfair, unreasonable, and have caused the teachers to lose their assets and investments, as the teachers did not flee the North-Eastern region in defiance or insubordination to the 1st Respondent, but due to insecurity. 5. It is the Petitioner’s case that it has locus standi to institute the present suit on behalf of the affected teachers who are their members under Article 22(2) of the Constitution, and in the public interest pursuant to Article 258(2) of the Constitution, to compel the Respondents to meet their Article 3(1) obligation to respect, uphold and defend the Constitution. 6. On the argument that the Respondents are upholding the right to education of the children in the North Eastern region, the Petitioner states that the right to life of its members supersedes the right to education. Respondents’ case in brief 1. The 1st Respondent challenges the jurisdiction of the Court to entertain the present suit on the premise that the Petitioner has failed to exhaust all the internal dispute resolution mechanisms and administrative remedies available to it contrary to Section 46 of the Teachers Service Commission Act and Regulation 156 of the Code of Regulations for Teachers, and is therefore in breach of the doctrine of exhaustion. Further, they aver that the Petition does not meet the threshold of the constitutional pleadings test, as espoused in the cases of Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012, and categorize the present dispute as a contractual dispute which offends the principle of Constitutional Avoidance. 2. It is averred that in line with Article 53 (1) (b) on the right of every child to free and compulsory basic education, and the Basic Education Act, the government has put in place a robust legal and institutional infrastructure to ensure all schools in the Country have sufficient teachers to instruct the learners, by investigating in employing and training teachers. Specifically, the 1st Respondent has the mandate to employ, assign, promote, transfer and exercise disciplinary control over teachers in Kenya under Article 237 of the Constitution and Section 11 of the Teachers Service Commission Act No. 20 of 2012. Part of its mandate includes carrying out a review of the demand and supply of teachers in all public schools across the country to ensure an appropriate balance in staffing levels is maintained and there is equitable distribution of teachers without regional discrimination. The Respondents emphasize that in exercising this mandate, the 1st Respondent is not subject to control and/or direction by any person. 3. The Respondents state that in order to achieve its mandate and manage teachers in Kenya, the 1st Respondent has enacted various Regulations, including the Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations, 2015 and the Teachers Service Commission Code of Regulations for Teachers, 2015, which bind the teachers. The teachers are also bound by their contracts of employment which are negotiated with the various relevant and applicable unions, and which govern recruitment, posting, transfer and discipline. 4. In relation to the present case, the 1st Respondent states that it has a duty to consider, protect and uphold the Constitutional right to education and welfare of learners in the North Eastern Region. Failure to do so would violate Articles 19 (1) and (2); Article 20 (2); Article 21 (1) and (2); and Article 27 (4) of the Constitution. 5. In order to discharge its mandate, it published advertisements for vacancies in specific institutions and counties where there was a shortage of teachers in the years 2020-2020. The Respondents state that in the particular counties to which the advertisements related, there was a total collapse of teaching and learning due to a shortage of teachers, and these areas are historically marginalised. The advertisements were clear that the teaching vacancies were only in the specific counties targeted, hence applicants would only work in those counties if successful. The Respondents emphasise that the Petitioner’s members voluntarily applied for the vacancies advertised in the North Eastern Region, specifically in Wajir and Mandera counties. 6. It is averred that as at 1st July 2023, the number of non-local teachers posted in the North-Eastern Region by the 1st Respondent was 3,246, a significant number whose mass transfer will adversely affect the education sector in the region. 7. On the issue of insecurity in the North-Eastern region, the 1st Respondent admits that there have been isolated cases incidences of insecurity in the region, such as an attack by militia on Wargadud police station on 14th July 2023 causing a loss of life by police officers and one teacher. Following the incident, 223 teachers representing 6.9°/o of non-local teachers (3,246 non-locals) in the region visited the 1st Respondent’s headquarters on 28th August 2023, requesting for transfer out of the region on allegations of insecurity. It is averred that the 1st Respondent's management held a meeting with the teachers on 31st August 2023 and heard their grievances with a view to ascertain the veracity of the complaints. Upon consultation with the County security agencies, the County Directors, and upon assessing the facts on the ground, the 1st Respondent's Commissioners held a second meeting with the teachers and requested them to report to their work stations by the 7th September 2023. The 1st Respondent also directed its three (3) County Directors in North Eastern and the Regional Director to work closely with the office of County Commissioners and other security agencies to ensure that the teachers are accorded the necessary facilitation to work at their stations. 8. The Commission also directed that the teachers be transferred to more secure areas within the County as advised by the County Security agencies. To this end, all the teachers who reported were rerouted to the most secure areas within the Counties based on intelligence reports from the County Security Team. 9. As a result of the meeting, 101 teachers resumed their duties while 122 teachers declined to report for work. The 1st Respondent's decision was informed by: the consultations between the 1st Respondent and the County Security team in Mandera, Wajir and Garissa; the consultations between the Commission and its field staff specifically, the County Directors Wajir, Mandera and Garissa to ascertain the situation on the ground; the fact that a majority of teachers had reported for duty and were undertaking their assignments, and so transferring the 122 teachers would trigger a mass exodus of teachers that would bring education in the region to a standstill; the fact that the unfortunate attack was an isolated case that targeted security agencies and only affected Wargadud town in Elwak zone; and the fact that after the incident the commission transferred all teachers stationed in Wargadud town to other safe parts of the County. 10. The 1st Respondent states that it is at a loss as there are multiple lawsuits against it in respect to posting of teachers in North Eastern Region. While the instant Petition is seeking orders to compel the Commission to transfer teachers out of North Eastern region, there are two other Constitutional Petitions against the 1st Respondent seeking orders to compel the Commission to post adequate teachers to North Eastern, namely: Nairobi ELRC Petition No. 25 of 2020 Hussein Kussow Yarrow vs. Teachers Service Commission; and Nairobi High Court Petition No.358 of 2015 Haki Na Sheria Initiative & 6 Others vs The Cabinet Secretary for Education and 3 others. In this predicament, the 1st Respondent has a duty to exercise a careful balance which shall enhance the best interest of the learners in the region in line with Article 53 (2) of the Constitution. 11. The 1st Respondent refutes that the North-Eastern region is entirely insecure. They state that an isolated incident of insecurity, as unfortunate as it may be, should not be visited upon the minors by denying them their right to access basic education by not posting teachers to the North-Eastern region. 12. The Respondents state that none of the Petitioners have filed complaints to them on harassment by the host community and to this end the allegations over the same have no basis as the same are yet to be reported or investigated by any agency. Nonetheless, together with members of the County security team, the Respondents state that they have engaged stakeholders in the County to offer support to all teachers in the County to professionally discharge their duties, and the County Security team have put in place all administrative mechanisms to ensure that teachers are facilitated, protected and assisted to render their services without discrimination. 13. It is averred that 52 of the teachers the subject of this Petition were initially serving under the employment of the Boards of Management in Mandera County but did not seek for transfer. However, upon being absorbed by the Government, the clamour for transfer kicked in pointing to a strategy of using the County as an employment bureau. 14. They further argue that it is against public policy and interest for the 1st Respondent to discriminate against the North-Eastern region in terms of allocation of teaching resources by transferring teachers away from the County as the same will amount to wilful neglect of its Constitutional obligation. Mass transfer outside the region will not only endanger its efforts to achieve optimum staffing levels in the Northern Frontier but will also amount to outright discrimination. 15. On the terms of the Petitioner’s employment, in order to maintain the harmonious employment relationship existing between the members of the Petitioner and the 1st Respondent and to enhance the constitutional values of good governance, transparency and accountability, it is prudent that members of the Petitioner comply with their respective terms and conditions of service and other legal instruments governing their employment, particularly the mandatory policies governing transfer of teachers. Failure to comply with the terms of employment will attract disciplinary measures from the 1st Respondent. Specifically, the Petitioner’s members who are the subject of the petition deserted duty at their current stations, defined in Regulation 3 in the CORT as being absent from duty for a continuous period of 14 days without written authority. None of the teachers has produced any letter of authority to be absent from duty. Desertion of duty is an actionable offence under clause (b) (iv) of the Third Schedule to the TSC Act, and the Petitioner’s members were accorded a fair hearing, hence the ensuing disciplinary action through interdiction was justified. 16. The Respondents aver that the Petitioner’s members were granted a fair hearing by being served with show cause letters; being granted an opportunity to respond to the allegations in the show cause letters, and the responses were duly considered; being invited to appear before the BOM during the investigations which they ignored; being served with the interdiction notices setting out the allegations; and being informed of their right to present a defence statement to their employer. Indeed, the Petitioner’s members duly responded to the allegations against them through elaborate defence statements. They were then invited to disciplinary hearings as required by law, attended the same and were granted an opportunity to verbally rebut the allegations against them during the hearings. They were also granted an opportunity to cross examine witnesses. Following the hearings, the Petitioner’s members representations were considered by an independent Disciplinary Committee. As such, the Respondents are emphatic that they complied with the requirements of fair hearing. 17. The Respondents argue that in the public sector, there are procedures and processes involved in applying and approving transfers, and specific remedies available to those who are not satisfied with the Commission's decision. Members of the Petitioner have yet to exhaust all remedies available to them as envisaged in their employment contracts and the laws governing them including Section 46 of the TSC Act. 18. In any event, it is averred that the petition has been overtaken by events as a majority of the Petitioner's members have reported for duty at their respective stations and are currently discharging their duties. DETERMINATION 1. The petition was canvassed by way of written submissions. Issues for determination 1. In their submissions dated 5th February 2024, the Petitioner identified the following issues for determination: * 1. Whether reposting the teachers back to North Eastern county of Mandera is a violation or a threat to the Right to life of the teachers, the petitioner’s members? 2. Whether the interdiction and reposting of the Teacher’s on account of desertion was Unfair and Unreasonable therefore null and void. 3. Whether the Respondents actions are discriminative against the Petitioner and the Petitioner’s members. 4. Whether the 1st Respondent’s action of reposting the teachers to Mandera County is torturous, cruel, inhuman and degrading treatment amounting to Constructive Dismissal. 5. Whether the Petitioner is entitled to the prayers sought for in the Petition herein. 2. In their further submissions dated 6th June 2026, the Petitioner identified the following further issues for determination: * 1. Whether this honourable court has jurisdiction to intervene in respect of the teachers’ service commission 2. Whether the respondents violated the petitioners’ constitutional rights 3. Whether the respondents failed to comply with this honourable court’s directions for individualised resolution of pending cases 4. Whether the respondents acted in contempt of court 5. Whether the petitioner is entitled to the reliefs sought 3. Confusingly, the Petitioners later filed skeleton submissions dated 6th June 2026, where they identified the following issues for determination: * 1. Whether this Honourable Court has jurisdiction to intervene. 2. Whether the Petitioners have established a real and justifiable fear for their safety. 3. Whether the Respondents violated the Petitioners' constitutional rights. 4. Whether the disciplinary actions and withholding of salaries were lawful. 5. Whether the Respondents failed to comply with this Court's directions and are in contempt. 6. Whether the Petitioner is entitled to the reliefs sought. 4. On their part, the 1st Respondent identified the following issues for determination in their submissions dated 15th June 2026: * 1. Whether the disciplinary process against the Petitioner’s members was valid and fair. 2. Whether the Court should interfere with the Commission’s administrative mandate. 3. Whether the Petitioner is entitled to the prayers sought. 5. The court discerned the following to be issues for determination in the petition. * 1. Whether this Honourable Court has jurisdiction to intervene. 2. Whether the disciplinary actions and withholding of salaries were lawful. 3. Whether the Respondents violated the Petitioners' constitutional rights. 4. Whether the respondents acted in contempt of court 5. Whether the Petitioner is entitled to the prayers sought. Whether this Honourable Court has jurisdiction to intervene. 1. It was the 1st respondent’s position that the court lacked jurisdiction to interfere with the TSC's internal operations, like transfer, posting of teachers enmass as doing so would encroach on its constitutional mandate. Conversely, the petitioner submitted as follows- The Petitioner submits that this Court has clear, unassailable jurisdiction. The TSC is bound by the Bill of Rights (Article 20(1)). This Court has exclusive jurisdiction over employment disputes under Article 162(2)(a). As held in TSC v KNUT [2015] eKLR and JSC v Gladys Boss Shollei [2014] eKLR, the TSC's independence does not oust judicial review where constitutional rights are violated. This Honourable Court has jurisdiction to hear and determine the Petition and to interrogate the constitutionality of the 1st Respondent's actions notwithstanding its status as a constitutional commission. 2. I agreed with the petitioner that the TSC independence cannot oust the jurisdiction of the court to interrogate the constitutionality of the 1st Respondent's actions alleged to violate rights of the members of the petitioner. The court upheld the management prerogative of the TSC on staffing of schools. The court finds that it has pronounced itself that it can only interfere with the prerogative of amendment where there is apparent unfairness, and even then, the interference must uphold the doctrine of proportionality. Whether the respondent violated the petitioner’s rights 1. The petitioner submitted as follows:- The evidence establishes genuine, reasonable, and objectively verifiable fears by the members of the petitioner. The teachers did not abandon duty out of insubordination, but fled life-threatening insecurity. The individual experiences of the affected teachers demonstrate that the security concerns were not general complaints but personal experiences of danger and trauma: Mr. Ibrahim Ondieki Begi alleged to have suffered a landmine incident at Kiharey Primary School. His position that he would rather leave service than return to North Eastern is not defiance but evidence of the severity of the threat he experienced. Mr. Julius Karatu Mbiti alleged to have experienced militia attacks at Shangalla Primary School, formally recorded at Rhamu Police Station through Occurrence Book entries. The existence of official police records defeats any suggestion that the teachers' fears were exaggerated or speculative. Mr. Peter Ng'ang'a Njuguna alleged to have witnessed repeated Al-Shabaab activities and attacks in Elwak, Mandera County. Mr. Collins Kipchirchir Kiptoo alleged to have experienced insecurity compounded by illness and discrimination at Wajir Basir Primary School. Mr. Joaz Rogony faced prolonged insecurity and family separation at Shimbir Fatuma Primary School. Mr. James Syengo Mukurimba faced lack of safe transport and responsibility for an aged parent while serving at Rhamu Day Secondary School. Mr. Peter Kangethe Muchiri lived under constant fear, spent nights outside police camps, and witnessed the killing of fellow teacher Mr. Philemon Ngeno. Being the last child responsible for his diabetic and elderly father, his circumstances required humanitarian intervention. Mr. Langat Mathew slept in bushes and fled after his roommate was killed. The Court observed that no documentation was produced of the teachers having complained to the TSC before. The TSC ought to have investigated theses individual experiences which reveal a consistent pattern: the affected teachers were not escaping work; they were escaping circumstances where continuing to work exposed them to unacceptable risks to life, dignity and personal security. The petitioner submitted that in the absence of any contrary official assessment, and given the alignment of the teachers' accounts with media reports of persistent insecurity, this Court must accept the teachers' evidence as accurate. This Court's interim orders, including the Order of 4th December 2025 transferring Mr. Geoffrey Lelon, affirm the existence of credible threats. The petitioner submitted that the affected teachers have established a real, justifiable, and objectively verifiable fear for their safety, and that their departure from North Eastern Kenya was a reasonable act of self-preservation, not abandonment of duty or insubordination. 2. In the instant case, it was not in dispute that vacancies were advertised for teachers in the North Eastern region and the members of the petitioners applied specifically for those vacancies. The 1st respondent produced letters of application as Appendix 4 under the replying affidavit of Antonina Lentoijoni dated 26th February 2024. All the teachers applied for vacancies in primary schools in Mandera county, and they indicated to be Christians and were from outside the region. The respondent produced evidence that the teachers had been employed by the local school boards before they were employed by TSC. The Court established that the teachers were thus familiar with the territory, including the lived reality of the region. The petitioner contended that their contracts did not specify that they could only work in the north eastern region. That reposting them to the region when they had alleged violation and threats to life was discriminatory. The genesis of the case is as summarised in the petitioner’s case in brief above. The TSC admitted there was an incident in Mandera on 14th July 2023, where a militia attacked Wargadud police station, where a number of police officers lost their lives, and unfortunately, one of their teachers lost their lives in the incident. The petitioner stated that the insecurity issues against non-locals in Mandera pose a threat to their lives. In the instant case, vide further relying affidavit dated 15th June 2016, the TSC offered to post the teachers in the nearest county of Garissa, which the petitioner rejected. The TSC contended that the children in North Eastern right to basic education was under threat and the en masse movement of non-local teachers would pose a threat to the children's rights. The petitioner contended that the right to life was greater. It was demonstrated that the initial protest after the Wargadud incident was by 223 non-local teachers, and following negotiations, it was agreed that the teachers would be rerouted to urban and safer areas in the north-eastern region. That out of the mediation process, all other teachers had resumed duty, save for 25 whose case is now before the court for determination. That on 15th May 2025, the TSC met the 25 teachers' representatives and offered to transfer them to Garissa, which is geographically nearer. That the only insecure area in Garissa is Hulugho subcounty, and it was agreed that none of the teachers would be posted to that area. The TSC for the foregoing reasons states that it has properly exercised its mandate under Article 237, and the court had no jurisdiction to direct it on its work. The TSC asserted that the teachers deserted work and were heard and directed to resume work. They declined to do so. The petitioners contended it was unfair to be reposted in the north eastern taking into account the threat to their lives. 3. The court noted that the TSC relied on the decision of the Court of Appeal in Teachers' Service Commission v Kahiro, where its management prerogative was upheld. The court of appeal stated as follows- The appellant is a constitutional commission established under Article 237(1) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya. Its mandate is expounded under the [*Teachers Service Commission Act*](https://new.kenyalaw.org/akn/ke/act/2012/20) and the Code of Regulations for Teachers (2015). Its primary functions are set out under Article 237(2) as follows: 1.There is established the Teachers Service Commission 2.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.” In exercising this constitutional mandate, the commission is pursuant to Article 249 of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) not subject to direction and/or control by any person or authority. Administratively, and in compliance with Article 6 of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution), the Commission may either act directly or effect such transfer and/or deployment at the instance of or through its officers at the County levels. In addition to the above constitutional provisions, the Commission has statutory mandate under the [*Teachers Service Commission Act*](https://new.kenyalaw.org/akn/ke/act/2012/20) to transfer and/or deploy any teacher in its service to any educational institution where it deems the teacher qualified to teach and where his/her services are required. It was pursuant to this mandate that the respondent was transferred. The question that begs an answer is whether the courts can lawfully interfere with the above mandate, particularly where the transfer process was within the provisions we have cited above. As has been stated often times, employers enjoy managerial prerogative to manage human resource issues within their organizations in the manner that they deem fit. They are at liberty to make decisions that they deem necessary for the general wellbeing of the enterprise as held in the persuasive ELRC case of Anne Wairimu Kimani -vs- Kenya Agricultural Livestock Research Organisation (KALRO) [2017]eKLR. This power entitles the employer to hire, transfer, re-designate, deploy and discipline staff as appropriate. The general position in law is that courts should exercise utmost restraint in interfering with the exercise of this power. To do otherwise is tantamount to the court taking over the position of the employer at the workplace as held in the persuasive ELRC case of Rebecca Ann Maina & 2 others -vs- Jomo Kenyatta University of Agriculture and Technology [2014] eKLR. This Court in Teachers Service Commission -vs- Thomas Joseph O. Onyango [2019] eKLR when dealing with a matter concerning the transfer of a teacher, expressed itself as follows:“ The court cannot usurp the appellant’s mandate to determine the school the appellant should be transferred to and for how long.’’ 1. Further the respondent relied on the decision in Pevans East Africa Limited & Another - vs- Chairman Betting Control & Licencing Board & 7 Others [2018] eKLR this Court held that:-“Where [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) had reposed specific functions in an institution or organs of State, the Courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution).” 21.From the above we hold that the appellant in transferring the respondent was exercising its prerogative/discretion as an employer in the management of its employees. Prior to effecting the transfer, the appellant must have considered numerous factors including the staffing situation in various stations, the constitutional imperative to equitably distribute teachers in public schools across the country, the best interest of learners and their right to access quality education through provision of quality teaching and the claimant’s teaching subjects, competencies and length of stay at their previous stations.’ 1. The court notes that the facts in the cited authorities were very different from those in the instant case, where there was evidence that Mandera county, where the members of the petitioners had been posted, had significant security threats. I was not persuaded on the generalized issues of religion threats by locals as no evidence was laid before the court and it was evident some of the members of the petitioner had been employed by the school boards in the area before employment by TSC. The court noted that majority of the teachers had been re-posted in urban arears in the region and had resumed duty. The court is called upon to exercise its powers with proportionality and to apply the constitution holistically. Whereas it is true there were security issues in Mandera County, it is far-fetched to generalise security threats in the entire North Eastern region. The respondent has offered to move the members of the petitioner who have not resumed work to the nearest county of Garissa and committed not to deploy them in the Hulugho area, which is stated to have security issues. The court finds that it is a fair proposal and proportional in balancing the right of the petitioners to life and safety, with the rights of the children in North Eastern to access basic education and taking into account that the petitioners applied for the jobs while working in the region. 2. The court upholds the management prerogative of the TSC to staff teachers in public schools in the entire country. The court noted the government special measures on public servants in the north eastern region, including, among others, deploying non-locals to urban areas to ensure safety and security, reducing the retention period to 3 years, and once a teacher has served for 3 years, they become eligible for transfer based on the internal transfer policy of the commission. The TSC ought to observe these policies. 3. On the disciplinary process, it is the finding of the court that the teachers, having expressed fear for their lives in Mandera county, it was unfair to repost them to the same area without assurance of their safety. Perhaps that is why Justice Manani issued a temporary order to injunct the reposting pending the determination of the suit. The court, taking the foregoing into account, finds that the disciplinary decision was unfair, though it complied with the employment procedural fairness. The right to life is sacred. The petitioners’ allegations were not wild or far-fetched. One of the teachers died from military attack in a police station at Mandera. The court did not doubt that there was acute insecurity for non-local teachers in Mandera county, having perused the pleadings by both parties. Whether the petitioner is entitled to the orders sought 1. The petitioner sought for the following orders - *a) A DECLARATION THAT:* 1. *By Re-posting non-local teachers who fled from North-Eastern due to insecurity* *and discrimination, back to North-Eastern the 1st and 2nd Respondents failed to* *uphold the Constitution as required at Articles 10, 26, 27, 47 and 50(1) of the* *Constitution of Kenya.* 1. *That no disciplinary administrative action should be taken against a teacher who* *may fail to attend to his duties due to insecurity.* 1. *That the right to life is an inherent right and supersede the right to teach since* *once life is lost due to insecurity it cannot be recovered.* *b) AN ORDER:* 1. *Quashing the Re-posting of Teachers who fled from North-Eastern by the 1st* *Respondent.* 1. *Order of certiorari, quashing the decision of the 1st Respondent that found a guilty* *verdict in the disciplinary cases for non-local teachers who were working in North-* *Eastern region and reposting them back.* 1. *An order prohibition, retraining the Teachers Service Commission from posting* *these non-local teachers back to the North-Eastern region, which is not safe for* *them, where they are discriminated by the locals and where they the Christian* *teachers are coerced to confess to Muslim faith.* 1. *Directing the 1st Respondent to transfer the teachers, who are members of the* *Applicant to schools outside of North-Eastern where they will enjoy all their Rights and Freedoms as guaranteed under the Constitution of Kenya 2010.* 1. *Annulling the entire decision of the 1st Respondent to repost the non local* *teachers back to North-Eastern despite the existence of threats that caused the* *teachers to flee.* 1. *Applicants members herein, who are teachers employed by the 1st Respondent.* 2. *Of Prohibition Barring the 1st Respondent from with-holding salaries, allowances* *and any other legal benefits entitled to the teachers, who are members of the* *Petitioner who fled from North-Eastern.* 1. *Directing the urgent and interlocutory suspension of any disciplinary hearings and* *punitive measures directed at the members of the Petitioner, who are teachers* *fleeing the insecurity in North-eastern.* 1. *Directing annulment of any Circulars or Decisions made by the 1st or Second* *Respondent against the Petitioners members fleeing insecurity in North-Eastern.* *c) COMPELLING* 1. *Compelling the 1st Respondent to make a decision that adhere to the Rights and* *Fundamental Freedoms as per the Constitution of Kenya 2010 and the Fair* *Administrative Action Act 2015.* 1. *Compelling the Respondents to bear the costs of this petition.* 2. *Any other appropriate relief the court may deem just to grant.* 3. The court held that the disciplinary process was unfair as the members of the petitioner raised legitimate complaints of insecurity, including threats to life, specifically in Mandera County and in return, the employer caused disciplinary action on the grounds of desertion without assurance of security. The disciplinary verdicts were already issued being to resume duties. The court upheld the management prerogative of the 1st respondent to post teachers. The court noted that the petitioner’s allegations of insecurity at Mandera were valid and it was unfair to repost them to the same schools in Mandera. The court further upheld the right of the children in the North East region to education, which is effected through teachers. It is unfair to condemn the entire north eastern region as insecure. The court thus issued an order of certiorari, quashing the decision of the 1st Respondent that found a guilty verdict in the disciplinary cases for non-local teachers who were working in Mandera county and reposting them back. 4. The court upholds the management prerogative of the TSC to transfer the members of the petitioner from Mandera County to Garissa County, save for the Hulugho area. The TSC is ordered to implement the decision and deploy the 22 Outstanding teachers in Garissa county, excluding the Hulugho area and comply with government policy on retention of public servants accordingly, within 30 days. 5. The court declines to issue an order for salary in arrears as the teachers did not work. The teachers had an order of the court dated 29th December 2023 not to be reposted in the north-eastern region, where they had fled for security. The teachers who had been reposted 122 and are each awarded Kshs. 100,000 (One Hundred thousand) for vindication of their right to fair administrative action and to life for being reposted to Mandera when their safety as non-local teachers had not been guaranteed, posing a threat to their right to life. 6. The petitioners are awarded costs in the petition. 7. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026. JEMIMAH KELI JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Theodus Okundi Respondents: Langat h/b Anyul