https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2400

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E073 OF 2025** **VERONICA MUTWA MULI PETITIONER** *VERSUS* **TEACHERS SERVICE COMMISSION 1ST RESPONDENT** **NEREA GRACE OTHIENO LIYAYI 2ND RESPONDENT** **MINISTRY OF EDUCATION, SCIENCE AND TECHNOLOGY 3RD RESPONDENT** **AND** **THE BOARD OF MANAGEMENT,** **ST. ANNE’S SECONDARY SCHOOL 1ST INTERESTED PARTY** **GEORGE ALADWA 2ND INTERESTED PARTY** **KENYA UNION OF POST PRIMARY** **EDUCATION TEACHERS 3RD INTERESTED PARTY** **RULING** The ruling herein relates to the Notice of Preliminary Objections dated 24 June 2026 filed by the 1st and 2nd respondents on the grounds: 1. *The petition is an abuse of court process and does not raise any constitutional issues for determination; hence, the court should invoke the principle of constitutional avoidance.* 2. *The facts and circumstances of the instant petition, the reliefs sought, the regulatory regime available to the petitioner, and the nature of the interests involved do ot disclose any exceptional circumstances that would warrant any exception to the doctrine of exhaustion.* 3. *The substratum of the petition relates to an employment dispute, and there exists an elaborate and satisfactory dispute resolution mechanism that is available to the petitioner under the Employment Act.* On the petition and amended petition, the 3rd and 4th respondents filed Grounds of Opposition. The respondents assert that the petitioner raises no reasonable cause of action against them, including the 1st interested party. There is no constitutional, statutory, or administrative act, mission, or decision attributable to these parties giving rise to liability or sustaining the reliefs sought. The dispute arises from a purely alleged employment disciplinary process between the petitioner and the 1st respondent. The issues raised relate to interdiction and disciplinary proceedings. The 3rd and 4th respondents are improperly joined in these proceedings. The 1st interested party is not a proper party herein. The board of management has no statutory or constitutional authority over the employment, interdiction, discipline, or termination of teachers employed by the 1st respondent, which functions as an independent constitutional commission. Further grounds of opposition are that the joinder of the 3rd and 4th respondents and the 1st Interested Party is speculative and an abuse of court process since there exists no employment relationship. Under Article 237 of the Constitution, Sections 11, 34, and 35 of the Teachers Service Commission Act, the 1st Respondent is exclusively mandated to recruit, discipline, transfer, and manage teachers in its employment. The inclusion done herein is prejudicial and unnecessary. The inclusion of the 3rd and 4th respondents, including the 1st Interested Party, should be struck out from the petition. On the objections, the 1st and 2nd respondents submitted that the petitioner, being an employee of the 1st respondent and serving as the principal of St. Anne’s Girls Secondary School, was the subject of an incident reported at her school on 7 January 2025. The 1st respondent initiated disciplinary action against the petitioner following this incident. The disciplinary panel recommended a warning, which was issued to the petitioner. Aggrieved by the disciplinary decision, the petitioner filed this petition challenging various constitutional articles. The 1st respondent has raised objections that this is not a proper petition as the issues addressed by the petitioner can be addressed in an ordinary claim. There are no constitutional issues. The claim is purely a contractual dispute arising from an employment relationship between the petitioner and the 1st respondent. The petitioner is seeking to enforce rights under a contract of service, which can be addressed in an ordinary suit without invoking a constitutional petition. In **Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR**, the court held that rights under Article 41 of the Constitution are entrenched under the Employment Act and the Labour Relations Act. These can be addressed through the mechanisms provided by such statutes rather than filing a constitutional petition. In **KKB v SCM & 5 others [KEHC 289 (KLR)],** the court held that if a case can be heard without invoking the Constitution, it must be heard. The need to invoke the Constitution is unnecessary. The mechanisms provided under the law are sufficient. Thus, the respondents submitted that where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of the complaint include a feature that makes it appropriate to take such a course, as held in **Maggie Mwauki Mtalaki v Housing Finance Corporation of Kenya [2015] eKLR.** In this case, the reliefs sought by the petitioner are well addressed under the Employment Act, and this is not a proper petition which should be struck out. The 3rd and 4th respondents submitted that their objections are purely on the ground of misjoinder. They have no employment relationship with the petitioner, nor do they exercise disciplinary control. The events leading to the petitioner are far removed from their mandate and, hence, not proper parties to this petition. There is no particular relief sought against the 3rd or 4th respondents to justify a joinder herein. The respondents submitted that in **Communications Commission of Kenya & 4 others v Royal Media Services Ltd & 7 others**, the court held that a necessary party is one whose presence is indispensable for the complete and effectual determination of all questions before the court. In this case, there is no direct or indirect relief sought by the petitioner against the 3rd and 4th respondents. The petition against the respondents should be struck out with costs. The petitioner submitted that the objections by the 1st respondent are not based on law but on fact, which requires a call for evidence. The threshold in **Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Ltd [1973] EA** has not been addressed. The petitioner submitted that this is a proper petition that sets out the petitioner's rights and freedoms that have been breached and violated by the respondents. In **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR,** the court defined the doctrine of constitutional avoidance as the principle that the court should not determine a constitutional issue where a matter may be disposed of on another legally sustainable basis. In **Mungai v Attorney General, Petition E416 of 2025 KEHC**, the court held that the Constitution should not be invoked to resolve ordinary disputes for which remedies are available under common law, statutes, or other applicable legal principles. The petitioner submitted that the dispute herein arose from the employment relationship and the disciplinary process. The petition challenges the constitutional process through which these proceedings were undertaken. The challenge is the constitutional validity of Regulation 147(4) of the Code of Regulations for Teachers. This question cannot be determined solely by reference to the Employment Act. Although the Employment Act provides the mechanism through which the court may determine whether subsidiary legislation is inconsistent with the Constitution, the court should not be confined to addressing claims outside the constitutional boundaries, as held in **Munir Sheikh Ahmed v National Bank of Kenya [2018] KEELRC and Mwangi v Agence Francaise de Developpement [2025] KEELRC**. The petitioner submitted that the constitutional issues addressed herein should be resolved through an interpretation of the law and constitutional rights. The objections sought should be dismissed. The petitioner also submitted that joinder of the 3rd and 4th respondents is necessary given the nature of the orders sought. For the full hearing of the matters set out in the petition, all the respondents are necessary parties. **Determination** The twin issues for determination are whether this is a proper petition and whether the joinder of the 3rd and 4th respondents is necessary. The petitioner has admitted that indeed there is a contractual relationship with the 1st respondent. The petition arises from a disciplinary process. The core challenge herein is the application of Regulation 147(4) of the Code of Regulations for Teachers and whether it is consistent with Articles 35, 47 and 50 of the Constitution. The doctrine of constitutional avoidance as addressed in **KKB v SCM & 5 others [2022] KEHC 289 (KLR)** requires that a court avert the determination of the constitutional issues until it becomes very necessary, to the extent that it is the only course available to assist the litigant's cause. Closely tied to the doctrine of constitutional avoidance and ripeness is the question of whether this Petition raises a constitutional question. The petitioner had tied the issues of the challenge to the application of Regulation 147(4) of the Code of Regulations for Teachers with various constitutional provisions. Although in the case of **Hassan v Simidi & another [2019] KECA 107 (KLR)** the court emphasised that the rights under Article 41 of the Constitution are addressed under the Employment Act and the Labour Relations Act, this extends to the entire domain within the employment relationship and includes the rights under Articles 35, 47 and 50 of the Constitution. The fact that Article 41 of the Constitution is not referenced does not preclude the application of other constitutional provisions that are now covered by different statutes, including the Data Protection Act, the Fair Administrative Actions Act, and the Employment Act. Indeed, in filing a claim, a party such as the petitioner is allowed to apply under Rule 10 of the Employment and Labour Relations Court (Procedure) Rules and urge a claim including any alleged constitutional rights violations: ***(3)*** ***Notwithstanding anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any constitutional provision in a statement of claim or other suit filed before the Court. anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any constitutional provision in a statement of claim or other suit filed before the Court.*** The Court Rules are not meant to stifle the rights of a claimant in terms of an alleged constitutional violation, but to enhance access to justice by ensuring that, in a Memorandum of Claim, a party is at liberty to address any matter, including seeking the enforcement of any constitutional rights and freedoms that have been violated or breached. The challenge to the application of Regulation 147(4) of the Code of Regulations for Teachers, and the matters set out in the petition, can well be addressed in a Memorandum of Claim. This is not a proper petition. With regard to the joinder of the 3rd and 4th respondents, no particular relief is sought against them. The allegations that the disciplinary process was undertaken through the participation of the Ministry of Education are not sufficient cause to join such party as a respondent. The employer being the 1st respondent, an independent constitutional commission, the petitioner is thus secured. Whether other government agencies participated in the challenged disciplinary process or not, the ultimate duty holder for any alleged liability is the employer. Acts of commission or omission within the admitted employment relationship cannot be addressed through other unrelated parties against whom the petitioner is not seeking any relief. The joinder of the 3rd and 4th respondents thus becomes unnecessary. Their attendance will not result in any order(s) being issued against them. The 3rd and 4th respondents are not proper parties herein. Ultimately, this is not a proper petition, and the orders of the 3rd and 4th respondents are unnecessary. The objections and opposition herein by the respondents are with merit. **Accordingly, the petition herein is dismissed. Costs to the respondents and the 1st interested party.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………