Mutonyi v Teachers Service Commission (Employment and Labour Relations Petition E210 of 2025) [2026] KEELRC 1802 (KLR) (25 June 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E210 OF 2025 CALEB BIKETI MUTONYI………………..………………………………………...…PETITIONER -VERSUS- TEACHERS SERVICE COMMISSION………………………………………..….…RESPONDENT CORAM Before Lady Justice Jemimah Keli C/ A Otieno RULING 1. The Petitioner filed an Amended Petition dated 19th February 2026 seeking the following Orders:- 2. *A declaration that by failing to accord the Petitioner adequate time and/or opportunity to prepare and present his defence statement to the disciplinary panel, the Respondent violated the Petitioner's right to fair hearing as provided under Article 50 (c) of the Constitution.* 3. *A declaration that by dismissing the Petitioner from employment, the Respondent subjected the Petitioner to the harshest punishment whereas the Teachers service commission code of regulations for teachers provides for other less severe punishments and therefore the Respondent violated the provisions of Article 50 (2) (p) of the Constitution.* 4. *A declaration that the Respondent terminated the Petitioner's employment unfairly.* 5. *A declaration that the Teacher Service Commission's decision to deregister the Petitioner did not comply with procedural fairness and due process and therefore the Respondent violated the provisions of Article 47 and 50 of the Constitution.* 6. *An order be and is hereby issued directing the Respondent to pay in full all the outstanding emoluments and benefits the Petitioner would have otherwise earned from the time he was dismissed from employment on the 14th day of October, 2022.* 7. *Any other relief that the Court deems fit and just to grant.* 8. *Costs of this petition to be borne by the Respondent.* 9. Alongside the Amended Petition, the Petitioner filed an Amended Supporting Affidavit sworn on 19th February 2026, and the attachments thereto. 10. In response to the Amended Petition, the Respondent filed a Notice of Preliminary Objection dated 3rd March 2026 invoking the doctrine of Constitutional avoidance, and opposing the petition on the premise that it does meet the threshold for constitutional petitions as set out in the cases of Anarita Kirimi vs Republic; and Mumo Matemu vs Trusted Society of Human Rights Alliance. Decision 1. The notice of preliminary objection was canvassed by way of written submissions which the court perused. 2. The court, on perusal of the prayer in the petition, found that this was a claim of unfair termination. There was no disclosure of pleading of violation of rights outside the fair termination requirements under section 45 of the Employment Act. In Josephat Ndirangu v Henken Chemicals (EA) Limited 2013 e KLR the court held:- ‘In my view a litigant should not avoid the provisions of the [*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11) regarding unfair termination or wrongful dismissal by going behind the statute and seeking to rely directly on Article 41 of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) on the right to fair labour practices. The purpose of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) is that the right to fair labour practices is given effect in various statutes of which the [*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11) and the *[Labour Relations Act](https://new.kenyalaw.org/akn/ke/act/2007/14%22%20%5Ct%20%22_blank)* are primary. The primary legislation should not be circumvented by seeking to rely directly on a constitutional provision. Both the [*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11) and the *[Labour Relations Act](https://new.kenyalaw.org/akn/ke/act/2007/14%22%20%5Ct%20%22_blank)* give effect to constitutional rights.’’(emphasis mine) 3. Contrary to the submission by the petitioner, the primary legislation in the determination of the dispute is not the Teachers Service Commission Act but the Employment Act, which provides for procedural fairness in termination of employment and the available remedies. This was a case falling under the doctrine of constitutional avoidance. The court is minded to pursue substantive justice as guided by the Court of Appeal in Gabriel Mutava & 2 Others v Managing Director Ports Authority & another (2016 Eklr) where having found a case of constitutional avoidance stated:- ‘Lastly, to do justice to the parties, could the trial court having found that the appellants’ termination of employment ran foul of the regulations, have converted the Petitions into a plaint and or statement of claim? Of course, such approach was available to the trial court. However, the prayers sought in the Petitions militated against such a move.’ I upheld the decision and found it was in the interest of justice not to strike out the petition, as that would place the petitioner outside the 3 years under section 89 of the Employment Act for filing suit challenging the termination. The court upheld the position of the Court of Appeal(above) and, in the interest of justice, converted the amended petition to a claim as the prayers sought were available under a claim. 4. In the upshot, the Notice of Preliminary Objection had merit and is allowed to effect that the amended petition is converted to a claim under the Employment Act. Costs of the Notice of the Preliminary Objection to the respondent in the cause. Mention on the 20th July 2026 for further directions. 5. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner – Absent Respondent – Chepkoit h/b Ochieng