The Labour and Industrial Relations Court has ruled that the transfer of teachers from the Teachers Service Commission (TSC) to the Public Service Commission (PSC) is illegal.
The court has ordered the reinstatement of salaries for two tutors, Evans Morara Nyangongo and Charles Moraro Mogunde, who were interdicted for refusing to transfer from TSC.
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Justice Christine Baari of Kisumu stated that the transfer was unconstitutional, echoing a previous court decision that invalidated a government circular authorizing such transfers.
“On whether the rights of the two teachers were violated, it goes without saying that the circular under which the two teachers were transferred having been declared unconstitutional, any action emanating therefrom cannot be said to be lawful, as nothing legal comes out of an illegality,” Justice Baari ruled, referring to the contentious Circular No. 17/2018, initially deemed unconstitutional by the Labour Court in Nairobi through Petition Number 97 of 2018.
Through the circular, TSC directed the transfer of lecturers, teachers, instructors, trainers, and institutional administrators on its payroll as of June 30, 2018, to the Ministry of Education under the PSC, effective August 1, 2018.
Justice Baari has ordered the immediate return to work for the two teachers and has directed the government entities they sued to bear the costs of the case.
However, she has denied the teachers’ request for special damages, as they failed to demonstrate that they were dismissed from their positions.
TSC CEO Nancy Macharia ; Image/File
The teachers argued that they were employees of TSC, having been appointed between 1998 and 2009.
Nyangongo stated that he taught Biology and Agriculture at various secondary schools and served in different capacities, while Mogunde taught Chemistry and Physics before being transferred to Mawe Technical Training Institute.
They sued various government entities, including the Education Cabinet Secretary, Principal Secretary, Attorney General, PSC, and TSC, seeking several reliefs, including declarations that their transfer was illegal and unconstitutional, and damages for breach of their constitutional rights.
They argued that their transfer without their involvement violated their rights under the Constitution and employment laws, changing their job descriptions and denying them entitlements as TSC employees.
The teachers claimed to have suffered mental distress, anguish, and dignity violations due to the forced transfer.
In response, the respondents defended the transfer, arguing its lawfulness and necessity for the efficient operation of vocational and technical training institutions.
They maintained that the two teachers’ employment was properly managed by the Ministry of Education and the PSC, and the cessation of their salaries did not constitute a rights violation.
