[2025] KEELRC 1041 (KLR)

Omao v Secretary/Chief Executive Officer, Teachers Service Commission & 2 others (Petition E026 of 2024) [2025] KEELRC 1041 (KLR) (2 April 2025) (Judgment)

Neutral citation: [2025] KEELRC 1041 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Petition E026 of 2024

JK Gakeri, J

April 2, 2025

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 1, 2(1), (2) AND (50, 3(1) AND (2), 10, 19, 20, 21, 22(1) AND (2)(B) AND (C), 23(1), 24(1), 47(1) AND (2), 28, 50, 52, 165(3) (B) AND (D)(ii), 75(1)(C), 258, 259, 260 AND IN THE MATTER OF ARTICLES 1, 2, 3, 47, 50(B) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF ARTICLES 1, 3 AND 25(A) OF THE INTERNATIONAL CONVENTION OF CIVIL AND POLITICAL RIGHTS OF 1966 AND JUDGMENT Kisumu ELRC Petition No. E026 of 2024Page 1 of 35 DRAFT IN THE MATTER OF THE TEACHERS SERVICE COMMISSION ACT, 2015 AND IN THE MATTER OF THE SALARIES AND REMUNERATION COMMISSION ACT NO. 10 OF 2011

Between

Vincent Mariita Omao

Petitioner

and

Secretary/Chief Executive Officer, Teachers Service Commission

1st Respondent

Salaries & Remuneration Commission

2nd Respondent

Principal Secretary, State Department for Basic Education

3rd Respondent

Judgment

1. The Petitioner describes himself as a law abiding and public spirited human rights defender, resident in Kisii County.

2. The 1st and 2nd respondents are commissions established by the Constitution of Kenya, 2010.

3. However, the Petition identifies the Secretary/Chief Executive Officer of the Teachers Service Commission as the 1st Respondent.

4. The Petitioner’s case is that Gazette Notice No.10557 of 26th October, 2007 designated Kisii Municipality and areas under the Municipality and according to the Teachers Service Commission Act, teachers in schools within Municipalities earn enhanced house allowance.

5. The Petitioner avers that with a new house allowance structure, teachers house allowance has increased.

6. The Petitioner alleges that on or about 2017, the Teachers Service Commission (TSC) removed allowances from Nyanchwa Boys and Girls High Schools, Nyanchwa Primary School and Kisii Primary School and the affected teachers have been suffering for the last 7 years and demands for restitution have yield no results.

7. That the schools are within Kisii Municipality as per the 2007 Electoral Commission Gazette Notice.

8. That affected teachers had huge loans.

9. That the respondents failure to convey their administrative action violates Article 47 of the Constitution of Kenya and breaches Section 82 and 91 of the Teachers Service Commission Code of Conduct and Regulations.

10. The Petitioner prays for:1. An Order to compel the 1st respondent to restitute the Enhanced House Allowance for teachers in Nyanchwa Boys and Girls High Schools, Nyanchwa and Kisii Primary Schools as per the Gazette Notice No. 10557 of 2007. 2.Permanent injunction restraining the respondents from Degazetting Gazette Notice No. 10557 of 26th October, 2007 or suspending or withdrawing Enhanced House Allowance for the teachers in the four schools.3. An Order to protect the status of the teachers in the four schools.4. An Order of mandamus to compel the respondent to pay and or remit all outstanding arrears to the affected teachers since 2017 till settlement in full.5. An order of certiorari to be issued to remove to this court and quash resolutions of the 1st respondent any decision of stoppage and/or withdrawal of enhanced house allowance in the four schools.6. A declaration that actions of the 1st respondent violated the provisions of Article 27, 35(1)(b) and (2), 47, 50(1) and (2) of the Constitution of Kenya.7. Costs be borne by the 1st respondent.8. Such other Orders as the court may deem fit to grant.

1st Respondent’s case 11. In a Replying Affidavit sworn by Mr. Kenneth Marangu, the Acting Director Human Resource Management and Development, the affiant deposes that the 1st respondent operated within the confines of a defined legal framework and has a broad constitutional and statutory mandate.

12. That the 1st respondent pay its teachers the entire salary earned and payable for work done under a contract of service and all have been paid including the petitioner.

13. The affiant deposes that the 2nd respondent had four broad classifications, namely; Nairobi, Major Municipalities, Minor Municipalities and Urban town and County Councils.

14. That payment of house allowance for teachers is further based on administrative regions mapped against the schools as determined by geographical boundaries by the Independent Electoral and Boundaries Commission (I.E.B.C). That the placement of teachers in appropriate house allowance bands the 1st respondent was aligning its system with the Public Payroll Management System (IPPD) administered and managed by the State Department of Public Service.

15. That coding of schools is dependent on certain documents such as Certificate of Registration of the School or valid provisional Certificate, Quality Assurance and Standards Report from the Ministry of Education, Certified Public Health Report for the school and letter from the 1st respondent’s County Director authorizing the changes sought.

16. The affiant deposes that administrative boundaries and regions used to map schools on the IPPD are under the Ministry of Interior and Co-ordination of National Government and the updating by the Department of Public Service.

17. That the previous 88 Districts in the IPPD system up to 2015 have now been collapsed to 47 counties as per the Constitution of Kenya, 2010.

18. The affiant deposes that the Petitioner was relying on documents that quote the 88 Districts in lieu of counties and under the new coding, the schools named by the petitioner are not designated as Municipality in the Gazette Notice.

19. That the 1st respondent had no control over creation of administrative regions but owing to complaints from Kisii, the 1st respondent wrote to the Principal Secretary, Ministry of Public Service, Youth and Gender to review the geographical mapping in the system and the schools were coded as falling under a Municipality in the system.

20. That the claimant had been paid what is duly owed as at the date of the change of the administrative boundary and was not entitled to arrears before the boundaries was amended as the schools were not covered under Municipalities and coding of individual teachers was on-going as the system does not do so automatically to enable them earn enhanced house allowance as at 12th August, 2024.

21. That the petitioner should be dismissed.

2nd Respondent’s case 22. In its Grounds of Opposition, the 2nd respondent states that the instant Petition was not compliant with the decision Anarita Karimi Njeru V Republic (1976-80) KLR 1272 as it does not state the constitutional provisions allegedly violated, by the 2nd respondent and the acts or omissions complained of.

23. The 2nd respondent argues that no evidence had been provided to show its acts or omissions, and the Petitioner had to establish any causal link between the 2nd respondent and the alleged constitutional violations.

24. That the Petition discloses no reasonable cause of action against the 2nd respondent, none of the allegations made implicate its functions and no specific relief has been sought against it and the Petition should be dismissed.

Petitioner’s submissions 25. As to whether withdrawal of house allowance for teaching staff at the listed schools was Constitutional, legal and lawful, the Petitioner of cites the provisions of Article 237 of the Constitution of Kenya 2010 and Section 31 of the Employment Act to submit that the withdrawal of enhanced house allowance for teachers in the four schools without notice was unlawful as they were supposed to earn the same by virtue of Gazette Notice No. 10557 of 26th October, 2007 and the reduction of house allowance affected the teachers adversely.

26. The Petitioner submitted that the withdrawal of housing allowance violated the terms and conditions of service and was arbitrary and discriminatory.

27. On costs, the Petitioner submitted that the same was discretionary by virtue of Section 27 of the Civil Procedure Act and as held in Party of Independent Candidate of Kenya and Another V Mutula Kilonzo [2013] eKLR and the principles stated in Jasbir Singh Rai & 3 Others V Tarcholan Singh Rai & 4 Others [2014] eKLR.

1st Respondents submissions 28. As to whether the 1st respondent is properly enjoined in this suit counsel submitted that the Petition had not raised any specific cause of action against the Secretary of the Commission as the 1st respondent is a Constitutional body established by the Constitution with clearly defined functions.

29. Reliance was made on the decision in Teachers Service Commission V Kenya National Union of Teachers & 3 Others [2015] eKLR and TSC V Wanjiru Kinyua & Another 2020 eKLR to urge that the 1st respondent should not be sued in matters involving the Commission and the wrong party was sued in this case.

30. As to whether the principle of non-necessity applies to the determination of house allowance, counsel submitted that the operations of the Teachers Service Commission are governed by the Constitution, Teachers Service Commission Act, Teachers Service Commission Code of Conduct and Ethics and Code of Regulations for Teachers, 2015.

31. That the TSC’s Code of Regulations for teachers identifies the various allowances payable to teachers. Counsel submitted that house allowance is based on administrative regions mapped against schools as determined by geographical boundaries designated by the Independent Electoral and Boundaries Commission (I.E.B.C).

32. That the schools highlighted by the Petitioner were coded in areas not designated as Municipality but had now been coded as falling under Municipality.

33. Counsel urges that the dispute ought to have been resolved through the employers established grievance mechanisms.

34. On exhaustion, counsel submitted that commission had adhered to perform its administrative obligations on house allowance.

35. Reliance was placed on the decisions in Republic V National Environment Management Authority (NEMA) ex parte Sound Equipment Ltd [2011] eKLR, Geoffrey Muthinja Kibiru & 2 Others V Samuel Munga Henry & 1756 Others [2015] eKLR and Speaker of the National Assembly V Karume [1992] eKLR, to urge that the instant Petition is premature as other administrative mechanisms are in place.

36. That all teachers have been paid what is duly owed and the Petition should be dismissed with costs to the respondent.

2nd Respondent’s submissions 37. As to whether the Petition dated 25th July, 2025 meets the test in Anarita Karimi Njeru V The Republic [1976-1980] IKLR 1272 counsel for the 2nd respondent submitted that the instant Petition does not meet the Constitutional threshold as it is bereft of any specific allegations against the 2nd respondent.

38. Reliance was placed on the Court of Appeal decision in Mumo Matemu V Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and the Supreme Court decision in Communications Commission of Kenya & 5 Others V Royal Media Services Ltd & 5 Others [2014] eKLR, to underscore the importance of precision in the litigation and access to substantial justice, to submit that the instant Petition lacked the constitutional provisions allegedly violated by the 2nd respondent or the manner of the violations and the deficiency was fatal and it is for dismissal.

Analysis and determination 39. The instant Petition is not expressed under any particular Articles of the Constitution of Kenya 2010, which is unusual being a Petition as opposed to a cause.

40. The 1st respondent is accused of having breached Articles 47, 50(2)(c), 10 and 196(1)(b) of the Constitution of Kenya.

41. Other provisions cited are Regulation 82, 89(1) and 91 of the Teachers Service Commission Code of Conduct and Regulations.

42. Simply put, the Petitioner’s case is that the 1st respondent withdrew enhanced housing allowance of teaching staff in four (4) schools within the Kisii Municipality unprocedurally and unlawfully in 2017 and wants the decision quashed.

43. However, no letter or other document, or communication was availed to show when the allowance was withdrawn.

44. The 1st respondent acknowledges having received complaints from persons on the status of regions in Kisii Municipality and raised the issue with the Ministry of Public Service for rectification and the process of coding of schools was on-going.

45. The issues that commend themselves for determination are:i.Whether the instant petition meets the threshold of a Constitutional Petition.ii.Whether the 1st respondent is properly joined in this suit.iii.Whether the Petitioner has a cause of action against the 2nd respondent.iv.Whether the Petitioner is entitled to the Orders sought.

46. As this is a Constitutional Petition premised on violations of the supreme law of the land, it is incumbent upon the Petitioner to demonstrate with sufficient clarity and detail the specific provisions of the Constitution allegedly violated, the manner or nature of the alleged violation and extent of the violation as postulated in Anarita Karimi Njeru V Republic [1979] eKLR as well as Trusted Society of Human Rights Alliance V Attorney General & 2 Others [2012] eKLR.

47. In the Anarita Karimi Njeru Case (supra) Trevelyan and Hancox JJ stated 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”.

48. The High Court expressed similar sentiments in Kiambu County Tenants Welfare Association V Attorney General & Another [2017] eKLR. See also Mumo Matemu V Trusted Society of Human Rights Alliance & 5 Others (Supra).

49. The Petitioner mentions Articles 47, 50(2)(c) 10, and 196(1)(b) of the Constitution of Kenya without setting out the particulars of how the provisions were allegedly violated by the 1st respondent.

50. Strangely, the Petitioner did not cite the provisions of Article 41 of the Constitution of Kenya on fair labour practices which are critical in employment and labour relations.

51. In particulars, the right to fair remuneration, granted that the Petition is grounded on housing allowance.

52. From the foregoing, it is discernible that the court is not persuaded that the instant Petition meets the threshold in Anarita Karimi Njeru V Republic (Supra).

53. Indeed, the Petition ought to have been filed as a cause to enable affected persons adduce oral evidence as to when, how and impact of the alleged withdrawal of enhanced house allowance.

54. The court is guided by the sentiments of Muriiithi J in Josphat Koli Nanok & another V Ethics and Anti-Corruption Commission [2018] eKLR as follows:…I think it trivializes the Constitution, its values and principles when empty allegations of infringement are made. A petitioner who cites a violation of the Constitution must by congent evidence relate alleged breaches with real, concrete and direct loss, damage or injury arising out of the violation. It does not help to allege violation, drop conceptual abstracts and interpolations to fit some artificial textbook arguments of the nature and extent of constitutional principles…”

55. The instant suit does not raise any constitutional issue to qualify as a constitutional Petition and the issues being litigated about are typical in employment and labour relations matters.

56. The issue as to whether the 1st respondent is properly enjoined in this suit is critical.

57. As correctly submitted by the 1st respondent’s counsel, the Teachers Service Commission is a Constitutional Commission established by Article 237(1) of the Constitution of Kenya, 2010 and its functions are outlined under Sub-article (2).

58. Similarly, under Article 253 of the Constitution of Kenya all commissions established by the Constitution are incorporated associations with perpetual succession and a common seal. They are clothed with capacity to sue and be sued in their corporate name.

59. In addition, the Commission has power to acquire, hold, charge and dispose of movable and immovable property.

60. Undoubtedly, the Teachers Service Commission (herein after “the TSC”) established by Article 237 of the Constitution is a body corporate with powers and subject to obligations.

61. The functions outlined under Article 237(2) of the Constitution of Kenya, as well as Section 11 of the Teachers Service Commission Act are functions of the Commission not the Chief Executive Officer and the same logic applies to the powers vested on the Commission by law.

62. Section 5 of the Teachers Service Commission Act provides for the membership of Commission, a Chairperson and eight other members. Under Article 250(12) of the Constitution of Kenya, the Secretary to the Commission is appointed by the Commission and becomes the Chief Executive Officer of the Commission and is a State Officer and holds officer for a term of 5 years and eligible for re-appointment for a further term of 5 years and is responsible to the Commission.

63. Notwithstanding the fact that the Secretary of the TSC is-a.the head of the Secretariat;b.the Accounting Officer of the Commission; andc.the custodian of all records of the Commission, the holder of the office is not the Commission or its alter ego.

64. In a similar vein, Section 22 of the Teachers Service Commission Act providesNo matter or thing done by a member of the commission or any officer, staff or agent of the Commission shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the commission render the member, officer, staff or agent personally liable to any action, claim or demand whatsoever”.

65. Puzzlingly, the Petitioner has not demonstrated why he sued the 1st respondent personally as opposed to the Teachers Service Commission.

66. He has neither alleged nor proved that the 1st respondent did or failed to do any particular thing in a capacity other than that of the Secretary of the Commission or was not acting in good faith.

67. It is not the duty of the 1st respondent to fix or determine remuneration of teachers or their allowances, nor is it her obligation to Degazette Gazette Notices issued by the I.E.B.C or pay teachers for that matter.

68. The Petitioner has not demonstrated that the 1st respondent withdrew the Enhanced House Allowance for teachers in the four (4) schools named on the Petition or if the 1st respondent did so was acting in a capacity other than that of the Secretary to the TSC or was acting in bad faith or for personal gain.

69. It has not been shown how the 1st respondent violated the Constitutional rights of any teacher in the four (4) schools named by the Petitioner.

70. Finally, none of the reliefs sought ought to be prayed for against the 1st respondent.

71. Order 1 Rule 9 of the Civil Procedure Rules states: -No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

72. In William Kiprono Towett & 1597 Others V Farmland Aviaton Ltd & 2 Others [2016] eKLR, the Court of Appeal stated:…Most critically Order 1 Rule 9 of the Civil Procedure Rules 2010 makes it abundantly clear that misjoinder of a parties cannot be a ground to defeat a suit we reproduce the same hereunder…”

73. This provision is further fortified by Article 159(2)(d) of the Constitution of Kenya that:In exercising judicial authority, the courts and tribunals should be guided by the following principles… justice shall be administered without undue regard to procedural technicalities”.

74. However, in the instant petition, the Petitioner sued the Secretary of the TSC as opposed to the Teachers Service Commission.

75. In the court’s view the Secretary to the TSC ought not to have joined in the suit and cannot be held liable on behalf of the Commission.

76. More significantly, none of the reliefs sought relate to the Secretary or Chief Executive Officer of the TSC in her personal capacity.

77. On the third issue, the 2nd respondent’s Grounds of opposition dated 15th February, 2025 remain uncontroverted by the Petitioner.

78. Evidently, other than describing the 2nd respondent under paragraph 3 of the Petition, the entire Petition makes no reference to any allegation against the 2nd respondent and no relief is sought against it.

79. In addition, the Supporting Affidavit sworn on 25th July, 2024 makes no allegation against the 2nd respondent. Indeed, the Affidavit does not mention the 2nd respondent.

80. It is unclear to the court why the Petitioner looped in the 2nd respondent yet he had no allegation against it, causing it to incur costs in defending the Petition and would ordinarily be entitled to recoup its costs from the Petitioner.

81. On reliefs, the court proceeds as followsDocuments on record, which the 1st respondent did not contest reveal that the housing allowance of some members of teaching staff at the four (4) schools named by the Petitioner was reduced in July 2019, which is the beginning of the Government Financial year.

82. Although the Petitioner posits that the withdrawal of enhanced house allowance took place in 2017, and no date is cited, letters he has filed show that it took place effective July 2019 which is also evidenced by copies of payslips on record.

83. For instance, the letter from the Head teacher of Nyanchwa Boys High School to the Executive Secretary TSC dated 23rd July, 2024, letter from the Kenya Secondary Schools Heads Association Kisii Central Sub-County dated 8th July, 2021, letter from the office of the Deputy County Commissioner to the Executive Secretary TSC dated 26th July, 2022 confirming that the four (4) schools were within the old Kisii Municipality, letter from the Kisii County Government dated 11th November, 2019 confirming the same and letter from KUPPET dated 11th January, 2022.

84. Strangely, there appears to have been no complaint over the allowances from July, 2019 to January 2022. Name School

June 2019

July 2019

Makori Daniel Atei Nyanchwa Boys

22,000. 00 April 2022 13,000. 00

Keraso Justus Nyaribo Kisii-Central March 2018 22,000. 00 June 2024 14,055. 00

Beatrice Moraa Nyanchwa Boys

22,000. 00

15,400. 00

Mogire Kepher Kisii-Central March 2018 22,000. 00 June 2024 14,055. 00

Omwamba Dennis Kisii-Central April 2018 12,800. 00

7,500. 00

Matundura Martin Kisii-Central

22,000. 00

13,000. 00

Nyangoka Shadrack Kisii-Central

22,000. 00

13,000. 00

Aburi Janes Kemunto Nyanchwa Boys

22,000. 00

13,000. 00

Mangera Edward Kisii-Central

12,800. 00

7,500. 00

Teya Kefa Kisii-Central

28,000. 00

16,800. 00

Ongubo Beatrice Sebe Nyanchwa Boys

28,000. 00

16,800. 00

85. These documents, which the 1st respondent did not contest reveal that the housing allowance of the teachers named fell in July 2019.

86. Regrettably, the 1st respondent’s Replying Affidavit is silent on the why the teachers in question received less housing allowance effective July, 2019.

87. The contention that the 1st respondent pays the entire wages earned and payable in accordance with the provisions of the Employment Act cannot avail the 1st respondent.

88. Similarly, the contention that there are four broad classification on which house allowance depends and administrate regions as well, fails to explain why the teachers had their house allowance reduced in July 2019 without notice.

89. Equally, the migration to the IPPD in 2015 and the transition from 88 Districts to 47 Counties in 2019 fails to capture the justification of the reduced housing allowance.

90. Creditably, the 1st respondent admitted that she received numerous complaints on the status of Kisii and Kisii had been acknowledged as a Municipality.

91. The Constitution of Kenya 2010 heralded a new era in the protection and enforcement of fair labour practices.

92. One of the basic right of every worker, not necessarily an employee, is fair remuneration which encompasses the entire compensation payable for services rendered, inclusive of allowances.

93. Part IV of the Employment Act, Sections 17 to 25, address the protection of wages exclusively to underscore the centrality of salary or wages in an employment relationship.

94. Section 17 of the Employment Act provides:(1)Subject to this Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly, in the currency of Kenya―(a)in cash;(b)into an account at a bank, or building society, designated by the employee; by cheque, postal order or money order in favour of the employee; or(c)in the absence of an employee, to a person other than the employee, if the person is duly authorised by the employee in writing to receive the wages on the employees behalf.

95. It is trite law that when the remuneration of an employee changes, the employer must in consultation with the employee revise the contract of employment to reflect the change and notify the employee of the change in writing.

96. The 1st respondent tendered no evidence of having complied with the requirements of Section 10(5) of the Employment Act.

97. In the court’s view, it cannot pass as a fair labour practice for an employer to reduce an employees allowance without consultation or explaining the reasons therefor as was the case here.

98. Intriguingly, while the Petitioner is praying for arrears outstanding to affected teachers since 2017, the 1st respondent posits that amounts owed had been paid and there were no outstanding arrears.

99. Uncharacteristically, the Petitioner, for unexplained reason did not attach any affidavit of any of the affected teachers to demonstrate the impact the reduction has had, if any on the teachers, and how it had been mitigated.

100. The allegation that the teachers had loans remains unsubstantiated.

101. Relatedly, what makes the instant Petition one of its kind is that, no figures are cited, the alleged arrears are unknown as are the alleged recipients.

102. Having deponed that the commission had paid what was owed up to the date of change of the administrative boundary, it was incumbent upon the Petitioner to compute, file and serve the alleged arrears, if any.

103. Without statistical data on how much was owed, the Petition lacks essential particulars to actualize recovery of any outstanding arrears. The outstanding amount if any, remains unproven and thus not awardable by the court.

104. Before concluding this Judgment, it is important to indicate that, contrary to the Petitioners argument, on the jurisdiction of the Employment and Labour Relations Court and as held by the Supreme Court in Kenya Tea Growers Association & 2 Others V National Social Security Fund and 13 Others, the court cannot sit as if it were the High Court under Article 165 of the Constitution of Kenya.

105. The Employment and Labour Relations Court has no jurisdiction outside the provisions of Article 162(2)(a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act.

106. The court has jurisdiction to hear and determine all questions arising in disputes germane to employment and labour relations. See United States International University (VSIU) V Attorney General [2012] eKLR and Daniel N. Mugendi V Kenyatta University and 3 Others [2013] eKLR among others.

107. Appropriate Reliefsi.Restitution of Enhanced House AllowanceHaving found that the coding of schools in Kisii is an on-going exercise, the court is not persuaded that restituting the Enhanced House Allowance at this stage would be an appropriate relief.The prayer is declined.ii.Permanent Injunction on Degazattement of Gazette Notice No. 10557 0f 2008The Petitioner has not shown that the Notice was published by any of the respondents or that any of them has power to degazette it.The prayer is declined.iii.Protection of Teachers in the four (4) schoolsThis court has no jurisdiction to decree undefined protection Orders for which no justification, scope or impact has been provided.The prayer is declined.iv.Mandamus on outstanding arrearsAs adverted to elsewhere in this judgment, the Petition lacks essential particulars on the alleged arrears. Figures speak and are responded to. The respondents had nothing to respond to as no figures were provided.The court has nothing to decree and there are no specific beneficiaries.An Order of mandamus does not commend itself where the amount sought is uncertain. The command is specific as to what must be done.To compel the respondents to pay “arrears outstanding” from an unknown date in 2017 to an unknown date and the amount is uncertain as are the recipients would not be fair to any of the respondents.Specificity and clarity is key for mandamus to issue.More importantly, the 1st respondent is not the employer of the teachers in question.v.CertiorariThe Petitioner did not cite any letter record or communication on the basis of which the Enhanced Housing Allowance was withdrawn and when.Without a specific decision of a person or body to quash, certiorari would not be an appropriate relief.There is no specific decision for the court to quash.The prayer is declined.vi.DeclarationHaving found that the copies of payslips on record show that the house allowance of 11 teachers was reduced effective July 2019 and no explanation or justification was provided by their employer, the declaration sought is merited.

108. Finally, even assuming that the employer owed the unknown number of teachers house allowance arrears, effective July 2019, as the instant suit was filed on 25th July, 2024, only arrears effective July 2022 would be recoverable by virtue of the provisions of Section 89 of the Employment Act that:Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.

109. The fact that the suit was filed as a Petition as opposed to a cause does not change the subject matter of the suit.

110. The upshot of the foregoing is that the Petitioner has demonstrated that the house allowance of 11 teachers working in Kisii-Central was reduced effective July 2019 without consultation and written notification by their employer as by law required, thereby violating the provisions of Article 47 and 50(1) of the Constitution of Kenya as well as the provisions of Section 4 of the Fair Administrative Action Act and 10(3) of the Employment Act.

111. However, no loss or damage has been proved to justify an award in damages.

112. Having found that none of the reliefs prayed for is available against any of the respondents, the Orders that commend themselves are:-a.The suit against the 1st respondent is struck out.b.The suit against the 2nd respondent is dismissed.c.The suit against the 3rd respondent is dismissed.d.Since the suit was filed in the public interest, it is only fair that parties bear their own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 2ND DAY OF APRIL, 2025. DR. JACOB GAKERIJUDGEOrderIn 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 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.DR. JACOB GAKERIJUDGE