https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1863

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC PETITION NO. E003 OF 2026 (Before Hon. Lady Justice Anna Ngibuini Mwaure) RAEL JEBICHII KULEI ………..........................….. …..PETITIONER VERSUS TEACHERS SERVICE COMMISSION……….….... 1ST RESPONDENT TSC RIFT VALLEY REGIONAL OFFICE………… 2ND RESPONDENT ATTORNEY GENERAL………………………...… 3RD RESPONDENT JUDGMENT Introduction 1. The Petitioner commenced this suit vide a Petition dated 21st January 2026, seeking the following orders: a.A declaration to issue that the decision by the Respondents to transfer the Petitioner from Maji Mazuri Boys Secondary School to Nyakio Mixed Day Secondary is procedurally unfair and unlawful ab initio; ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 1 OF 21 b.A declaration to issue that the decision by the Respondents to transfer the Petitioner from ‘Maji Mazuri Boys Secondary School’ to Nyakio Mixed Day Secondary School infringes upon the Petitioner’s constitutional including Articles 27, 28, 41, 47 and 50. rights, c. Orders of certiorari removing into this Honourable Court and quashing the Respondent's decision dated 2nd October, 2025, to transfer the Petitioner from ‘Maji Mazuri Boys Secondary School’ to Nyakio Mixed Day Secondary School. d.Orders of prohibition restraining the Respondents from any disciplinary measures in connection with the Petitioner’s refusal to transfer to Nyakio Mixed Day Secondary School. e.Any other orders that this court deems fit to grant. f. Costs of the Petition 2. The Petition is accompanied by a Notice of Motion dated the same date seeking the following orders that: 1. Spent ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 2 OF 21 2. Pending the hearing and determination of this application inter partes, conservatory orders do issue staying the decision of the 1st- 2nd Respondents dated 2nd October, the 2025, Petitioner/Applicant ‘Maji Mazuri Boys Secondary School’ to Nyakio Mixed Day Secondary School. transfer from to 3.Pending the hearing and determination of the Petition, conservatory order do issue staying the decision of the 1st-2nd Respondent dated 2nd October, 2025, to transfer the Petitioner/Applicant from ‘Maji Mazuri Boys Secondary School’ to Nyakio Mixed Day Secondary School. 4. Costs of and incidental to this Petition. 3. Subsequently, the Petitioner filed another application dated 18th March 2026 seeking the following orders that: 1.Spent 2.The TSC Sub County Director, Jared N. Wepukhulu, Sub County Director of Education, Koibatek ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 3 OF 21 Sub County Walter Sang, and TSC Regional Director Adow Bardad be summoned to court to explain the basis of their ultra vires actions in proceedings with a finalized transfer decision while the matter is before this court. 3.The TSC Sub County Director be cited and be held in contempt of court for violating the court process within their knowledge and information. 4.The of removal the Petitioner/Applicant’s name and details from the online TSC TMIS systems be quashed until this Petition is determined in finality. 5.Any other orders this court deems fit to grant. Petitioner’s case 4. The Petitioner avers that she was duly serving as a teacher in the capacity of Principal at Maji Mazuri Mixed Secondary School, Eldama Ravine, following her promotion by the 2nd Respondent on 22nd February 2024. ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 4 OF 21 5. The Petitioner contends that on 16th October 2025, she received a letter from the 2nd Respondent communicating her transfer to Nyakio Mixed Day Secondary School, effective within fourteen days from 2nd October 2025. The said letter required that any appeal be lodged within fourteen days, but subject to mandatory reporting to the new station. 6. The Petitioner avers that she lodged an appeal through the Sub-County Director, citing health concerns aggravated by the cold climatic conditions of the proposed station, and requested redeployment to a warmer area within Baringo County. Her appeal elicited no response or action from the Respondents. 7. Subsequently, the Petitioner avers that she received a Show Cause letter dated 18th November 2025, reproaching her for failure to hand over and report to the new station. The said letter referred to a different institution, “Maji Mazuri Mixed,” and was notably unstamped, unlike prior official communications. 8. The Petitioner avers that upon making several inquiries, it was disclosed that the reason for her transfer was the impending closure of Maji Mazuri Mixed Secondary School due to low student enrolment, ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 5 OF 21 notwithstanding that the institution had approximately 32 students at the time of filing this Petition. 9. The Petitioner further avers that at the close of the school term, certain individuals purporting to be officials from the TSC County offices entered the premises and demanded that she surrender the school keys to the watchman. 10.Subsequently, the Petitioner avers that she received a letter from the TSC County Director dated 16th December 2025, requiring her attendance before the said office on 8th January 2025, followed by another letter dated 14th January 2026 reiterating the same directive for appearance on 22nd January 2026. 11. The Petitioner avers that on 17th October 2026, she was removed from the Teachers Management Information System (TMIS), effectively terminating her salary without due process at the instance and communication of the TSC Sub-County Director, thereby ceasing her employment and pay while this matter remains pending before this Honourable Court. Respondents’ replying affidavit. ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 6 OF 21 12. In opposition to the Petition, the Respondents filed a replying affidavit sworn on 27th February 2026 by Antonina Lentoijoni, the 1st Respondent Director in charge of Staffing of Public School. 13.The Respondents depone that the Commission is constitutionally and statutorily mandated under Article 237 of the Constitution and the Teachers Service Commission Act, 2012, to recruit, transfer, and exercise disciplinary control over teachers. 14. The Respondents aver that pursuant to a report dated 9th September, 2025, from the Koibatek Sub-County Director indicating that Maji Mazuri Boys High School had no learners since the beginning of the year, the Petitioner was transferred to Nyakio Mixed Day Secondary School within Baringo County by letter dated 2nd October, 2025. The Petitioner was required to report within fourteen days and was accorded equal time to appeal. 15. The Respondents aver that despite being advised to report to the new station pending determination of her appeal, the Petitioner refused to comply, failed to hand ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 7 OF 21 over the school, and ignored official directives. Consequently, she was served with a show-cause letter dated 18th November, 2025, and later invited to appear before the County Director on 8th January and again on 22nd January, 2026, but failed to attend. 16.The Respondents contend that the Petitioner misled the Court by inflating student numbers and concealing material facts, and that the orders sought offend Articles 10 and 249(2) of the Constitution by undermining institutional independence and good governance. 17.The Respondents further depone that granting the orders would disrupt school administration, set a dangerous precedent, and contravene public policy and the Commission’s mandate to ensure equitable teacher distribution and access to education under Article 43. 18.The Respondents maintain that the transfer was lawful, reasonable, and guided by staffing policy, and that the Petition is baseless, frivolous, and amounts to an attempt to usurp the Commission’s constitutional and administrative authority. ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 8 OF 21 19.Parties canvassed the Petition by way of written submissions. Petitioner’s submissions. 20.The Petitioner submitted that the threshold for constitutional petitions has been met, citing the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), which states as follows: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 21.On whether the transfer decision was procedurally fair, the Petitioner relied on John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), the Supreme Court clarified judicial review as constitutional supervision of public authorities. She contends that the Respondents failed ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 9 OF 21 to observe fairness, transparency, and accountability under Articles 10 and 47, and section 6 of the Fair Administrative Action Act (FAAA), which requires reasons to be given for adverse decisions. The Petitioner emphasized that she was only given 14 days to comply, contrary to the TSC HR Manual’s minimum of 30 days, and that her health concerns were disregarded. The Petitioner submitted that the claim of school closure was false, as the school had over 30 students, some sponsored by bursaries tied to the institution, making the decision disproportionate and prejudicial to learners’ rights. 22.On remedies, the Petitioner invoked section 11 of the FAAA and Rule 27 of the FAA Rules, which empower the court to issue declarations, prohibitions, and certiorari. She argued that certiorari is appropriate to quash the transfer decision and remit it for reconsideration, while prohibition is necessary to restrain the anticipated disciplinary action evidenced by the show-cause letter. The Petitioner relied on the matter of an application for Judicial Review and for the Orders of Certiorari, Prohibition, and Mandamus & Others V the County Council of ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 10 OF 21 Narok & 9 others [2009] KEHC 2108 (KLR) to support the preventive nature of prohibition. The Petitioner also relied on Catherine Wanjiru Watoro v Teachers Service Commission & 2 Others [2014] KEELRC 1130 (KLR), where the court held that hasty transfers and interdictions infringed Article 47 rights, urging similar reliefs in her case. 23. The Petitioner maintains that the transfer was procedurally unfair, unreasonable, and unconstitutional, warranting the declarations, certiorari, prohibition, and costs sought. Respondents’ submissions. 24. The Respondents submitted that the transfer of the Petitioner was lawful, being firmly anchored in Article 237(c) and (d) of the Constitution of Kenya, which mandates the Teachers Service Commission to assign teachers to public institutions and to promote and transfer them. This mandate is further buttressed by Regulation 64 of the Code of Regulations for Teachers (CORT), which empowers the Commission to transfer teachers based on equitable distribution, staffing norms, and availability of vacancies. It is averred that upon ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 11 OF 21 receipt of information on 9th September 2025, Maji Mazuri Mixed Secondary School had no learners, and that all other teachers had been transferred, the Petitioner was accordingly redeployed to Nyakio Mixed Secondary School within Baringo County. 25. The Respondents argued that the Petitioner was required to report within fourteen days and was accorded equal time to lodge an appeal. Instead, she declined to report, refused to hand over the school to the Board of Management, and ignored the statutory process despite being advised to comply. She was served with a show-cause letter dated 18th November 2025 and was invited on 16th December 2025 and 14th January 2026, but failed to attend. The Respondents submitted that the Petitioner misled this Honourable court by inflating student numbers, claiming thirty-two learners when in fact there were none. 26. On the question of judicial intervention, the Respondents rely on Thomas Joseph O. Onyango & Another v Teachers Service Commission [2016] KECA 651 (KLR), where the Court of Appeal held as follows: ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 12 OF 21 “The order by the learned Judge that the Respondent be stationed at Mama Ngina Kenyatta Secondary School for at least three years unless deployed to a school in Nairobi has caused us considerable concern. As we pointed out at the beginning of this judgment, the Appellant is a constitutional commission with the express mandate of assigning teachers or service in any public school or institution, promoting and exercising transferring teachers, disciplinary control over them and terminating their employment. But the Court cannot usurp the mandate of the Appellant to determine to which school the Appellant should be transferred to and for how long. There is a legitimate reason why the Constitution has specifically vested this mandate in the Appellant rather than the court. The court has not information about the transfer policy or the peculiar needs of each school in the country. It has no broad picture of the distribution of teachers who teach which subject in the entire country. With respect, the learned judge was ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 13 OF 21 entitled to focus narrowly on what he called the best interest of the Applicant to the exclusion of those of the students, the schools, the parents and the public at large.” 27.The Respondents further relied on Pevans East Africa Ltd & Another v Chairman, Betting Control & Licensing Board & 7 Others [2018] KECA 332 (KLR), where the Court of Appeal emphasized that institutions vested with constitutional functions must be given leeway to discharge their mandates, and courts should only intervene where there is demonstrable contravention of the Constitution or manifest irrationality. 28.Finally, the Respondents submitted that the Petitioner is undeserving of equitable relief, invoking the maxim that “he who comes to equity must come with clean hands,” as affirmed in Rural Electrification Authority v Muriithi [2025] KEHC 2452 (KLR), which reiterated the principle that a party who misleads the court cannot benefit from equitable remedies. 29.Accordingly, the Respondents urge that the Petition be dismissed with costs as devoid of merit, and that ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 14 OF 21 this Honourable court refrain from interfering with the internal managerial and administrative functions of the Commission. Analysis and Determination. 30.The court has considered the pleadings together with the submissions; the issue for determination is whether the Petition is merited. 31.In Nyaoga v Chairman Kisii County Assembly & 3 others [2023] KECA 1540 (KLR), the Court of Appeal stated as follows: local “The doctrine of exhaustion of remedies was created by courts in order to promote an efficient justice system and an autonomous administrative state. It is a principle that requires parties to exhaust all available administrative remedies before seeking redress in a court of law on a constitutional issue. An aggrieved party must first pursue all avenues of relief found within the administrative agency responsible for the issue at hand. The reason for this is to allow administrative agencies to address, and to potentially resolve ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 15 OF 21 the issue before escalating the same to the courts.” 32.Still in Nyaoga v Chairman Kisii County Assembly & 3 Others(supra), the Court of Appeal relied on the case of Mutanga Tea & Coffee Company Ltd vs. Shikara Limited & Another [2015] eKLR, cited with approval the case of Speaker of the National Assembly vs. Karume [2008] 1 KLR 425, where the court stated: “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 33. This court reiterates, as stated in Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 Others(Supra), that institutions vested with constitutional functions must be afforded latitude to discharge their mandates, and judicial intervention is only warranted where there is a demonstrable contravention of the Constitution or manifest irrationality. ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 16 OF 21 34. The Teachers Service Commission is established under Article 237(c) and (d) of the Constitution of Kenya, which mandates the Teachers Service Commission to assign teachers to public institutions and to promote and transfer them. Regulation 64 of the Code of Regulations for Teachers (CORT), which empowers the Commission to transfer teachers based on equitable distribution, staffing norms, and availability of vacancies, medical grounds and other grounds as the Commission may consider necessary. 35. In the instant case, the Petitioner was promoted to serve as Principal of Maji Mazuri Mixed Secondary School, Eldama Ravine, by the 2nd Respondent on 22nd February 2024. On 16th October 2025, she was issued with a transfer letter requiring her to report to Nyakio Mixed Day Secondary School within fourteen days from 2nd October 2025, with any appeal to be lodged within the same period but subject to mandatory reporting. She lodged an appeal through the Sub-County Director, citing health concerns due to the cold climatic conditions at the new station and requested redeployment to a warmer area within Baringo County, but the Respondents failed to act on ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 17 OF 21 her appeal. Subsequently, on 18th November 2025, she was served with a Show Cause Letter reproaching her for failure to hand over and report, which erroneously referred to “Maji Mazuri Mixed” and was unstamped, unlike prior official communications. The Respondents, on their part, contend that upon receipt of information on 9th September 2025 confirming that Maji Mazuri Mixed Secondary School had no learners and all teachers had been transferred, the Petitioner was redeployed to Nyakio Mixed Secondary School within Baringo County. The Respondents argued that she was required to report within fourteen days and was afforded equal time to lodge an appeal, but instead declined to report, refused to hand over the school to the Board of Management, and disregarded the statutory process despite being advised to comply. Consequently, she was served with a show cause letter dated 18th November 2025 and invited to appear on 16th December 2025 and 14th January 2026 for disciplinary hearing but failed to attend on both occasions. 36. The court is persuaded that the Petition was instituted prematurely, the Petitioner having failed to ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 18 OF 21 exhaust the internal mechanisms provided by the Respondents. The record discloses that the Respondents had received information confirming that Maji Mazuri Mixed Secondary School, Eldama Ravine, had no students. The Petitioner has not tendered evidence to substantiate her assertions that the school had students, and it is trite law that he who alleges must prove in accordance with sections 107, 108, 109 and 112 of the Evidence Act. Further, the letter dated 2nd October 2025 expressly stipulated that any appeal against the transfer was to be lodged within fourteen days of its issuance, and that, notwithstanding such appeal, the Petitioner was required to report to her new station pending the Commission’s determination. In the Court’s view, the Petitioner’s failure to comply with these clear directives renders the Petition untenable. Even the honourable court in the cause of the proceedings ordered her to report to her new station on 18th February, 2026 as there were no orders against her transfer she disregarded all those directives. 37.The 1st Respondent has mandate according to Article 237 of the constitution to assign teachers employed ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 19 OF 21 by the commission for service in any public school or institutions and to promote and transfer teachers. The 1st Respondents has a constitutional mandate to transfer teachers inter alia. The court in interfering with the role of the commission in dealing with the teachers would be tantamount to usurping the constitutional prerogative of a constitutional body. 38. In light of the foregoing, the Court finds that the Petition lacks merit and is therefore dismissed. The court only exercises its discretion and order each party to meet their costs of this Petition. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 26th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In 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 ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 20 OF 21 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 MWAURE JUDGE ----------------------------------------------------------------------------------------------------------------------------------------- NAKURU ELRC PETITION NO. E003 OF 2026 JUDGMENT PAGE 21 OF 21