The Milimani Law Courts in Nairobi /FILEThe Employment and Labour Relations Court has awarded 122 teachers Sh100,000 each after finding that their reposting to Mandera County was unfair and violated their right to fair administrative action.
Justice Jemimah Keli issued the ruling on Wednesday in a case filed by the Kenya Teachers in Hardship and Arid Areas Welfare Association (KETHAWA) against the Teachers Service Commission (TSC).
The teachers had challenged disciplinary action taken against them after they left their stations in Mandera, citing insecurity, and were subsequently ordered to return to the same region.
KETHAWA moved to court seeking orders stopping TSC from reposting the affected teachers to the North Eastern region pending the hearing and determination of the case.
In her ruling, Justice Keli found that the disciplinary process against the teachers had been unfair and that they could not consequently be treated as having deserted duty.
“The court noticed the petitioner's (KETHAWA) allegations of insecurity in Mandera were valid, and it was unfair to repost them to the same schools in Mandera,” the judge observed
The judge said the issue of desertion could not arise after the court found flaws in the disciplinary process and the teachers had already been directed to resume duty.
The court, however, recognised TSC’s authority to manage and deploy teachers across the country.
Justice Keli said the commission retained its management prerogative to transfer the affected teachers from Mandera to Garissa County, provided the deployment did not return them to the area from which they had raised security concerns.
The court also cautioned against condemning North Eastern as an entirely insecure region, noting that such a position would have implications for the right of children in the region to access education.
“The court further upholds the right of the children in the Northeastern region to education, which is effected through teachers. It is unproportional to condemn the entire Northeastern as insecure,” the judge stated.
The court consequently ordered TSC to implement its decision to deploy the teachers to Garissa County, excluding the Hulugho area, and comply with the government policy on retention of public servants.
The judge also quashed the decision that had found the teachers guilty of absconding duty and the subsequent decision to repost them to their previous stations in Mandera.
The compensation was awarded after the court found that the teachers’ right to fair administrative action had been violated.
Justice Keli noted that the decision to repost them to Mandera had been made despite concerns over their safety, with the circumstances posing a threat to their right to life.
The teachers were awarded collectively amounts to Sh12.2 million.
“The teachers are each awarded Sh100,000 for vindication of their right to fair administrative actions for being reposted to Mandera when their safety as non-local teachers had not been guaranteed, posing a threat to their right to life,” Justice Keli ordered.
The court also awarded the petitioners costs of the case.
However, the teachers will not receive salaries for the period they were away from their stations.
Justice Keli declined to issue an order for payment of salaries for the period in which the teachers did not work.
The court further granted TSC a 30-day stay on the payment of the compensation after the commission’s lawyer asked for more time to comply with the award.
The stay, however, does not affect the order requiring TSC to deploy the teachers to Garissa County.
The commission was directed to implement the deployment order within 30 days.
The ruling therefore gives TSC room to deploy the teachers within its mandate, but prevents the commission from returning the affected teachers to the same Mandera stations that the court found had raised legitimate safety concerns.
