https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2314

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI** **ELRC CAUSE NO. E740 OF 2026** **MARY KARIMI MUHARI………………………….……………CLAIMANT** **VERSUS** **TEACHERS SERVICE COMMISSION…………….…..1ST RESPONDENT** **TSC REGIONAL DIRECTOR (NAIROBI COUNTY)..2ND RESPONDENT** **RULING** **Background** 1. The Claimant has instituted these proceedings against the Respondents to challenge their decision to transfer her services from Park Road Primary and Junior School to Luck Summer Primary and Junior School. She contends that she has diligently served the 1st Respondent in different capacities as a result of which, she was appointed as the Head teacher of Park Road Primary and Junior School. She further contends that she has had no disciplinary issues since she assumed the role of Head teacher of the aforesaid school. 2. The Claimant avers that she is a person living with disability. She contends that the 1st Respondent has acknowledged this fact and adjusted her retirement age from 60 years to 65 years. 3. The Claimant avers that whilst she was still serving as Head teacher of Park Road Primary and Junior School, the 2nd Respondent deployed another person to take over her said role. She contends that the 2nd Respondent did this notwithstanding that the 1st Respondent’s records still showed that she was the substantive head of Park Road Primary and Junior School. She further posits that at the time of the impugned decision by the 2nd Respondent, there was no formal indication from the 1st Respondent to suggest that she had either been transferred or retired or interdicted or suspended from duty. 4. The Claimant contends that when the new head of the school reported to the institution, she (the Claimant) allowed her to sign the visitors’ book where-after she sought an explanation from the Respondents about the deployment. She avers that she informed the 2nd Respondent that her retirement had been adjusted to the year 2031 and that she was therefore still in active service. 5. The Claimant contends that despite furnishing the 2nd Respondent with data to demonstrate that she was still in active service of the 1st Respondent, the 2nd Respondent refused to withdraw the deployment of the new head to the school. She avers that as a result of this, she was forced to seek clarification on the matter from the head office of the 1st Respondent. 6. The Claimant avers that instead of the Respondents allowing her to continue in service at Park Road Primary and Junior School, they issued her with a transfer to another school. It is her case that the transfer was arbitrary, unlawful, procedurally unfair, irrational and inconsistent with the Respondents’ own administrative procedures and the law. 7. The Claimant avers that it was improper for the Respondents to deploy another Head teacher to Park Road Primary and Junior School whilst they still acknowledged that she was still in active service until 2031. She contends that by the Respondents deploying another Head teacher to the school, they failed to give meaning to their own administrative decision to extend her retirement age. She further contends that the impugned decision violated the law and the 1st Respondent’s governing statutes and policies. 8. The Claimant avers that the Respondents did not notify her of their intention to deploy a new Head teacher to the school before the decision was made. She further asserts that the Respondents did not notify her of her transfer beforehand. 9. The Claimant further avers that the Respondents did not furnish her with reasons to justify their decision to deploy the new Head teacher to Park Road Primary and Junior School. She contends that the Respondents did not give her an opportunity to make representations on the transfer before it was implemented. 10. The Claimant avers that by the Respondents adjusting her retirement age to 65 years, they raised legitimate expectation in her that she will continue in active service until the age of 65 years. She contends that the Respondents breached this expectation by effecting the impugned transfers. 11. The Claimant avers that despite the Respondents being aware that she was a person living with disability, they failed to take this fact into account whilst issuing her with the transfer letter. She contends that the Respondents failed to consider her mobility challenges whilst asking her to report to the new school. It is thus her case that the decision was discriminatory, irrational and unconstitutional. 12. The Claimant avers that as a result of the Respondents’ actions, she has suffered disruption to her employment. She further avers that she has suffered injury to her professional standing. As such, she prays for the various reliefs as set out in the Statement of Claim. 13. Together with the Statement of Claim, the Claimant filed the application dated 7th July 2026 seeking the following interim reliefs:- 14. Spent. 15. That pending inter-partes hearing and determination of the application, the court be pleased to stay implementation of the decision to transfer her from Park Road Primary and Junior School to Luck Summer Primary School. 16. That pending hearing and determination of the suit, the Respondents and or their officers, agents, servants be restrained from deploying, appointing, recognizing or facilitating any other person to assume the substantive office presently held by her at Park Road Primary and Junior School. 17. That pending hearing and determination of the suit, the Respondents be ordered to maintain the status quo obtaining immediately before the impugned deployment and transfer. 18. That the Respondents to preserve and upon directions by the court to produce all documents, correspondence, minutes, recommendations, deployment records and electronic communications relating to the impugned deployment, the Claimant’s transfer, the recognition of the Claimant’s disability status and extension of her retirement age. 19. That the court gives directions on costs of the application. 20. That the court grants such further or other orders as it may deem just, equitable and expedient in the circumstances. 21. The application is premised on the grounds on the face thereof. It is also supported by the Claimant’s affidavit, further affidavit and supplementary affidavit which essentially reiterate the Claimant’s averments in the Statement of Claim as set out earlier in this ruling. 22. In addition, the Claimant contends that prior to the impugned decision, she had learned through social media that the 1st Respondent had accused teachers with disability of abusing their status to seek extension of their retirement age. She avers that the fact that her transfer coincided with the alleged publication raises legitimate concerns regarding the Respondents’ motive to transfer her. 23. The Claimant avers that despite the Respondents being aware of the pendency of this case, they installed her replacement at Park Road Primary and Junior School on 10th July 2026. She avers that the Respondents informed the teachers at the school that the incoming teacher had taken over management of the school in the capacity of Head teacher. 24. The Claimant states that the Respondents used the local police to implement the takeover of the school. She avers that this caused apprehension and anxiety within the school and disrupted the normal running of the institution. 25. The Claimant contends that the school to which she has been posted is built on quarry land. She avers that there is ongoing construction of a wall around the school in order to separate it from the quarry area and that this and the general topography of the school makes it inaccessible to her. 26. The Claimant avers that the facts she has presented to court establish a *prima facie* case to warrant issuance of the orders sought. She contends that if the orders do not issue, she will suffer continuing prejudice which cannot be redressed by an award of damages. As such, she avers that the balance of convenience tilts in favour of granting the orders. 27. The Respondents have opposed the application. They have filed a replying affidavit dated 20th July 2026 sworn by one Antonina Lentoijoni to anchor their response. 28. The Respondents aver that the application lacks merit. It is their case that the motion is premised on a misinterpretation of the law. 29. The Respondents contend that article 237 of *the Constitution* entrusts the 1st Respondent with the power to:- 30. Register trained teachers. 31. Recruit and employ trained teachers. 32. Assign teachers in service to teach in various public schools. 33. Promote and transfer teachers. 34. Exercise disciplinary control over teachers. 35. Terminate the employment of teachers. 36. The Respondents further contend that *the Teachers Service Commission Act,* 2012 mandates the 1st Respondent to transfer and or deploy any teacher in its service to any educational institution where it deems the teacher is qualified to teach and where his/her services are required. Further, they aver that the law entitles the 1st Respondent to review the demand and supply of teachers across the country in order to guarantee appropriate balance in teacher staffing levels in public schools. 37. The Respondents contend that the 1st Respondent exercises the aforesaid mandate independently. It is their case that by virtue of article 249 of *the Constitution*, the 1st Respondent is not supposed to act under the directions of third parties. 38. The Respondents contend that the 1st Respondent has published a Code of Regulations for Teachers (the Code) pursuant to the powers donated to it under section 47(2) of *the Teachers Service Commission Act.* They aver that regulations 62 and 67 thereof empower the 1st Respondent to transfer and assign teachers to serve in any public school. They further contend that the power to transfer a teacher is exercisable even when he (the teacher) has not applied for the transfer. 39. The Respondents aver that the Claimant is an employee of the 1st Respondent having been engaged as such on 9th May 1989. They contend that clause 6 of the Claimant’s letter of appointment specifically states that her employment is subject to the 1st Respondent’s Code. They further aver that clause 5 of the letter requires the Claimant to serve anywhere in Kenya as a condition for her engagement. 40. The Respondents aver that the Claimant has served in various schools since her appointment. They aver that on 4th July 2018, she was transferred from River Bank Primary School to Dr. Livingstone Primary School. They further aver that she was subsequently transferred from Dr. Livingstone Primary School to Park Road Primary and Junior School. 41. The Respondents aver that on 2nd July 2026, the Claimant was transferred from Park Road Primary and Junior School to Lucky Summer Primary School. They contend that she was to report to the new posting in seven days. 42. The Respondents aver that the Claimant was replaced by one Priscilla Mweu. They contend that Priscilla Mweu has since taken over management of Park Road Primary and Junior School. 43. The Respondents aver that section 46 of *the Teachers Service Commission Act* entitles the Claimant to challenge the impugned transfer through an appeal to the 1st Respondent. However, they aver that she did not file the appeal until after she had filed this suit. As such, they aver that the suit is bad in law for offending the principle on exhaustion of alternative remedies and that the court is bereft of jurisdiction to entertain the matter for this reason. 44. The Respondents aver that in the Claimant’s appeal, she confirms that she had already handed over Park Road Primary and Junior School to her replacement. They further aver that although the Claimant alleges that the infrastructure at Lucky Summer Primary School is inaccessible, she has not provided evidence to back this claim. It is their case that Lucky Summer Primary School has infrastructure which is accessible to the Claimant. 45. The Respondents further acknowledge that the Claimant’s term of service was extended on 2nd July 2026 on account of disability. However, they contend that extension of the term was not conditional on the Claimant remaining at Park Road Primary and Junior School. They aver that the 1st Respondent is under no legal obligation to retain her at Park Road Primary and Junior School on permanent basis. 46. The Respondents aver that the Claimant has not presented evidence to demonstrate that the impugned transfer was actuated by malice or discrimination. They aver that her transfer has not resulted in reduction of her rank, salary or other benefits. 47. The Respondents aver that the Claimant’s transfer was guided by the principles set out in regulation 64 of the 1st Respondent’s Code. They further contend that the 1st Respondent has a constitutional duty to ensure that learners access basic education as guaranteed by article 43 of *the Constitution*. 48. The Respondents express their surprise at the Claimant’s decision to resist the decision to transfer her. They aver that her actions are contrary to public policy, are unreasonable and unfounded. 49. The Respondents contend that the court should not intervene in the dispute at this stage. They aver that any intervention will be tantamount to usurping the 1st Respondent’s constitutional and statutory mandate to transfer teachers. **Analysis** 1. The principles that guide the grant of orders of interim injunction are now well settled. In the celebrated case of ***Giella v. Cassman Brown & Co. Ltd. [1973] EA 358***, the court stated that before an order for interim injunction can issue, the applicant ought to demonstrate that he has a *prima facie* case with a probability of success and that if the order does not issue, he is likely to suffer injury which may not be redressed by an award of damages. Further, the court stated that where a court is in doubt regarding whether the above conditions have been met, it should decide the request for injunction on a balance of convenience. I will be guided by these principles in determining the instant application. 2. The court notes that article 237 of *the Constitution* empowers the 1st Respondent to, inter alia, assign and transfer teachers across the Republic. In addition, regulation 64 of the 1st Respondent’s Code entitles it (the 1st Respondent) to transfer a teacher from one school to another having regard to: the need for equitable distribution and optimal utilization of teachers; availability of vacancy in the proposed station; the need for replacement; existing staffing norms which may be reviewed from time to time; medical grounds, as certified by a registered medical practitioner; or such other grounds as the 1st Respondent may consider necessary. 3. Regulations 65 and 66 of the Code provide for transfer of teachers upon their application. That notwithstanding, regulation 67 thereof gives the 1st Respondent the power to transfer teachers at its own discretion. 4. The Respondents have produced a copy of the Claimant’s contract of service variously dated 1st November 1989 and 8th January 1990. Clause 6 of the contract shows that the Claimant covenanted that the 1st Respondent’s Code was to apply to the contract. As such and in effect, she agreed to be bound by the aforesaid transfer provisions in the Code. 5. The contract further indicates that the Claimant agreed to serve in any part of the Republic. This further affirms the Respondents’ assertion that she acknowledged the 1st Respondent’s right to transfer her to any part of the Republic. 6. The Respondents have further deponed on oath that since the Claimant’s appointment, she has been transferred to various schools. There is no evidence that she resisted these transfers. 7. The court is further alive to the employer’s managerial prerogative to manage the workplace in the manner that he deems fit. Case-law discourages courts from undue interference with the exercise of this prerogative unless there is cogent evidence to demonstrate that it (the prerogative) is being exercised in breach of the law, the internal rules agreed on by the parties or the contract of service. 8. Even then, when the court intervenes in the exercise of the prerogative, this should be limited to correcting the anomaly that has been identified in the exercise of the power. Once this is done, the court should allow the process to go on. 9. Speaking to the issue in the case of ***Ndalut & another v Nairobi City Water & Sewerage Company [2023] KEELRC 2754 (KLR)***, the court stated as follows:- *‘’This Court has held time and time again that as a general principle, it will not interfere with an employer’s right to perform internal human resources functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy or any other human resource function unless it can be shown that the functions are done with disregard to the Constitution or other legislation, the agreement between parties, or fair labour practices. This position has been upheld in several cases including Kenya Plantation and Agricultural Workers Union vs James Finlay (K) Limited [2013] eklr and Geoffrey Mworia vs Water Resources Management Authority & 2 Others [2015].’’* 1. Speaking to the exercise of the prerogative in the context of disciplinary control, the court in the case of ***Wycliffe Gisebe Nyakina v Council of the Institute of Human Resource Management & 3 others [2018] KEELRC 1289 (KLR,*** stated as follows:- *‘’The Applicant rushed to Court seeking injunctive reliefs to prevent disciplinary action. Whereas this could be warranted, this Court has over and over again indicated that it will not normally interfere with internal disciplinary processes between an employer and an employee unless the process is manifestly flawed and the interference will be limited to putting the right process on course.’’* 1. In the case of ***Ondieki v Nyamosongo Cooperative Society Ltd [2025] KEELRC 3132 (KLR),*** the court spoke to the issue of whether there was a requirement in law for an employer to consult an employee regarding a transfer before the transfer can be implemented. It expressed itself on the subject as follows:- *‘’The Appellant had asserted that the transfer was null and void as the Respondent did not consult him, in line with section 10(5) of the Employment Act. The Appellant is wrong on this score. No employer is required to consult an employee before undertaking a managerial prerogative such as a transfer. If employers were required to consult employees in terms of section 10(5) of the Employment Act which the Appellant has misread, there would be no staff changes nor would there be any disciplinary aspect since by parity of reasoning any action which would impact the employment status of the employee would be up for deliberation and consultation at all times. This cannot be the intention of legislation on matters employment.’’* 1. Having regard to the provisions of *the Constitution*, the 1st Respondent’s Code, the terms of engagement between the Claimant and the 1st Respondent as set out in the letter of appointment which was issued to the Claimant and the case-law referred to above, it is doubtful that the Claimant has presented cogent material to demonstrate that she has a *prima facie* case. As is apparent from the aforesaid provisions of the law, the 1st Respondent’s Code and the contract between the parties, the 1st Respondent enjoys the prerogative to transfer the Claimant to any school that she may serve in within the Republic of Kenya. 2. The Claimant contends that Lucky Summer Primary School has accessibility challenges. However, the Respondents dispute this contention. On their part, they posit that the school has no accessibility challenges. 3. Although the Claimant avers that the new school has accessibility challenges, she has not presented cogent preliminary evidence to identify the specific infrastructural deficiencies at the school which render it inaccessible to her. The fact that the school is built on what was initially a quarry is not, of itself, evidence of its inaccessibility. Absent evidence of the specific inaccessibility issues at the school, the court has no plausible grounds upon which it can conclude that the Claimant will have challenges serving in the school because of her disability. 4. The court is alive to the fact that the law obligates the 1st Respondent to address any specific accessibility challenges within the school in order to make it (the school) accessible not just to the Claimant but to every other person living with disabilities. As such and in the court’s view, if indeed the school has specific accessibility challenges, the Claimant should point them out to the Respondents so that they can either be addressed or to enable the Respondents to consider transferring her to another school which is accessible to her instead of seeking to scuttle the transfer altogether. 5. From the preliminary material placed before the court, the Claimant’s transfer took effect on 2nd July 2026. This reality is self-evident from the letter of transfer dated 2nd July 2026. The fact that the Claimant was to finalize her transition to the new school within seven days of 2nd July 2026 does not mean that the transfer was to crystalize after she reported to the new school. The letter of transfer is emphatic that it (the transfer) took effect from 2nd July 2026. Thus, it crystalized on 2nd July 2026. 6. It is also apparent that the transfer of the Claimant’s replacement took effect from 1st July 2026. This is evident from her letter of transfer dated 30th June 2026 which, in part, stated as follows:- *‘’It has been decided that you be transferred from Imara Primary School in Embakasi Central to Park Road Primary School in Starehe with effect from 1st July 2016.’’* 1. The Claimant lodged the instant suit on 8th July 2026, approximately six days after her transfer had taken effect on 2nd July 2026 and approximately seven days after the deployment of her replacement had taken effect on 1st July 2026.From the foregoing, it is evident that the Claimant’s request to stop the impugned transfers has been overtaken by events. She seeks to stop that which has already happened. 2. In the application before court, the Claimant does seek a mandatory injunction to undo the transfers. Rather, she seeks orders to restrain the Respondents from giving effect to the impugned transfers. 3. The court cannot issue an order of mandatory injunction to reverse the impugned transfers in the absence of an express prayer in the application to that effect. Similarly, it cannot issue an order to stay or stop an event which has already taken place. Such order for stay will be in vain (see ***Ojwang v Ghelani & 5 others [2026] KEELC 3187 (KLR)***). 4. Even then, the position in law is that an order of mandatory injunction seldom issues at interlocutory stage of a case. Such order may only issue at that stage of a trial in exceptional circumstances (see ***Zacharia Somi Ng’ang’a v another & Margaret Wangechi Njuguna [2020] KECA 709 (KLR)***). 5. In this case, the Claimant has not presented any exceptional circumstances to warrant issuance of an interim mandatory injunction to reverse the transfers which, as mentioned earlier, have already crystalized. The fact that the 1st Respondent extended her term of service to 65 years on account of disability did not, with respect, imply that the Respondents warranted that she will serve the balance of the term at Park Road Primary and Junior School. As such, the fact of her disability, per se, does not provide an exceptional reason for the transfers to be reversed. 6. The Claimant’s lawyers have relied on the decision in the case of ***Jane Angila Obando v Teachers Service Commission & 2 others [2020] KEELRC 795 (KLR)*** to urge the court to find that the Claimant had legitimate expectation that she will continue in service at Park Road Primary and Junior School. The court has carefully considered that decision and notes that the trial court arrived at its conclusion based on an alleged transfer policy of the 1st Respondent not to transfer teachers who have attained the age of 56 years. The Petitioner in that case, who was above 58 years at the time, relied on the alleged policy to contend that the Respondent had raised legitimate expectation in her that she will not be transferred one year to her retirement age. The court agreed with her. 7. It is apparent from that decision that the Petitioner was destined to retire at the age of 60 years, the mandatory retirement age for persons not living with disability. As such, the alleged transfer policy forbidding transfer of teachers aged 56 years must be understood in the context of the mandatory retirement age of 60 years for persons not living with disability. There is no indication in the said decision that the alleged policy directive was to also affect teachers whose retirement age was adjusted to 65 years on account of disability. 8. Importantly, the Claimant has not tabled evidence to demonstrate that the alleged policy, which was not produced in the aforesaid decision or in this case, is still in force as of today. Absent this, the court cannot rely on the aforesaid decision which was rendered in 2020, over five years ago, to make an assumption that the policy remains in place. 9. In any event, the Claimant’s case is not founded on the alleged policy which was the subject of discussion in the aforesaid decision. As such, the court is not entitled to stray into considerations regarding whether the policy still exists or not and whether or not, if it exists, it applies to the Claimant’s case. 10. The Claimant’s case appears to be that the Respondents were not entitled to transfer her after her retirement age was adjusted to 65 years on account of disability. She implies that to transfer her after the extension is tantamount to interfering with the extended term of service. 11. With respect, this is a misconception. The Claimant’s transfer after extension of her retirement age does not result in revocation of the extension. She remains in the 1st Respondent’s employment without loss of rank or benefits for the extended period as confirmed by the Respondents. 12. Nevertheless, during her time of service after the extension, the 1st Respondent retains the right to exercise managerial prerogative (which includes the power to transfer staff) over her. As such and unless there is cogent evidence to demonstrate abuse of this power, the court cannot intervene in its exercise. 13. Besides the requirement of demonstrating the presence of a *prima facie* case, the law also requires an applicant for interim injunctive orders to demonstrate that he/she will suffer irreparable harm should the orders sought not issue. In the court’s view, the Claimant has not surmounted this requirement. Other than making a plain assertion that failure to issue the injunctive orders will occasion her irreparable injury, she does not present cogent material to back this claim. There are no details provided to demonstrate how she will suffer irreparable harm if the orders sought are not granted. 14. Having regard to the legal position that the 1st Respondent enjoys the powers to transfer teachers under its service and the fact that the impugned transfers have already taken effect, the court arrives at the conclusion that balance of convenience tilts against issuing the injunctive orders which the Claimant seeks. As such, the request for injunctive orders to put on hold the impugned transfers pending trial of the suit is declined. 15. Apart from seeking the aforesaid orders, the Claimant has also lodged a request for recovery of documents. She prays that the Respondents be ordered to produce several documents to wit: correspondence, minutes, recommendations, deployment records and electronic communications relating to the impugned deployment, the Claimant’s transfer, the recognition of the Claimant’s disability status and extension of her retirement age. 16. However, this request was not spoken to either in the affidavits in support of the Claimant’s application or in the submissions by the parties. That being the case, the court will not deliberate on it. That notwithstanding, the Claimant reserves the right, at the appropriate time, to seek discovery of documents should the need arise. 17. Finally, the Respondents also resist the application under consideration on the ground that the court lacks jurisdiction to entertain the dispute between the parties by reason of the exhaustion principle. It is their case that section 46 of *the Teachers Service Commission Act* requires a teacher who is aggrieved by the 1st Respondent’s decision to appeal the decision to the 1st Respondent. Consequently, they aver that it is not open to the court to entertain the case before the Claimant has exhausted this alternative dispute resolution process. 18. Section 46 of *the Teachers Service Commission Act* provides as follows:- *‘’A person who is aggrieved by a decision of the Commission under this Act may apply to the Commission for review of that decision.’’* 1. There is no doubt that the effect of this provision is to establish a mechanism for resolving any grievance which emanates from the 1st Respondent’s decisions. Such grievances should be directed to the 1st Respondent by way of an application for review. 2. However, the court notes that the provision is not couched in mandatory terms. It leaves it to the discretion of the aggrieved party to elect whether to approach the 1st Respondent by way of review. 3. In any event, although the law encourages exhaustion of the available alternative dispute mechanisms, this does not constitute an absolute bar to a party who is subject to such mechanism from approaching the court in exceptional circumstances. This includes situations where the alternative dispute resolution forum does not have powers to grant certain remedies such as interlocutory injunctions. 4. This reality has been affirmed through case law. For instance, in the case of ***Biwott & another v County Government of Uasin Gishu [2022] KEELRC 13415 (KLR),*** the learned Judge spoke to the matter as follows:- *‘’As observed earlier, this court has the constitutional and statutory jurisdiction over employment and labour relation matters however such jurisdiction where a statute, letter of contract, collective bargaining agreement requires initial resort to internal dispute resolution process, the crystallization of the court’s jurisdiction will only occur after the exhaustion of such internal dispute resolution process unless it can be demonstrated that the issue over which the courts’ jurisdiction is being invoked is exceptional such as the need to preserve the subject matter in dispute through an interlocutory injunction or conservatory orders. The court in such a case would be seized of jurisdiction but reserves the discretion in each case to either entertain the matter to conclusion or preserve the subject matter in dispute through an interlocutory order but stay the claim pending the outcome of the internal appeal process…… From the foregoing the court finds and holds that the omission on the part of the applicants to exhaust the internal appeal process before invoking the jurisdiction of the court is not fatal to the claim.’’* 1. Rule 56(5) of *the Employment and Labour Relations Court (Procedure) Rules* 2024 (ELRC Rules) also recognizes this reality by providing as follows:- *‘’Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms:-* 1. *a person being party to a dispute may file a suit and seek appropriate interlocutory relief pending exhaustion of such alternative dispute resolution mechanisms or pending determination of the suit;* 2. *want of exhaustion of such alternative dispute resolution mechanisms shall not operate as a bar to a suit for application for interim orders or alleging unconstitutionality or unlawfulness of the action, omission, decision or other matter in dispute pending such exhaustion; and* 3. *a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.’’* 4. In the instant case, the Claimant approached the court for interim injunctive reliefs which the 1st Respondent is not expressly empowered to grant. As such and in terms of the aforesaid case-law and ELRC rules, the court has jurisdiction to consider whether or not to grant the request notwithstanding the provisions of section 46 of *the Teachers Service Commission Act*. **Determination** 1. The upshot is that the court finds that the Claimant has not demonstrated that she is entitled to the interim reliefs sought in the application dated 7th July 2026. 2. As such, the application is declined. 3. Costs of the application shall abide the outcome of the cause. **Dated, signed and delivered on the 31st day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**