Court lifts freeze on recruitment of new TSC CEO

The Employment and Labour Relations Court in Mombasa has cleared the Teachers Service Commission (TSC) to proceed with the recruitment of its Secretary and Chief Executive Officer, dismissing a petition that sought to halt the process on constitutional grounds.

In a ruling delivered by Justice Ocharo Kebira, the court rejected an application filed by Thomas Mosomi Oyugi, who had challenged the legality of the recruitment exercise advertised on May 6, 2025. Oyugi argued that the process violated constitutional principles of equality, non-discrimination and fair access to public office.

Justice Kebira ruled that the petitioner had failed to establish a prima facie case warranting the issuance of conservatory orders. The court further found that Oyugi had not demonstrated any prejudice that he or the public would suffer if the recruitment was allowed to continue.

“Having found that there has not been a demonstration of a prima facie case and no prejudice shown, I come to the inescapable conclusion that the application must be rejected,” the judge ruled, adding that the TSC was at liberty to resume the recruitment process, which had been temporarily halted by court orders.

Oyugi had challenged Section 16(2) of the TSC Act, which outlines the qualifications for the Secretary/CEO position. The provision requires candidates to be Kenyan citizens, hold a degree in education from a recognised university, possess at least ten years’ experience in education, administration or public service, and meet the ethical standards set out in Chapter Six of the Constitution.

He argued that limiting eligibility to candidates with education degrees was unconstitutional, discriminatory and designed to favour teachers and insiders within the TSC, thereby excluding other professionals with relevant expertise in areas such as human resource management and finance. Oyugi further claimed the requirements undermined the independence and constitutional mandate of the Commission.

The petitioner also faulted the recruitment process itself, arguing that the TSC had not formally declared a vacancy before advertising the position. He described the 21-day application window — running from May 6 to May 27, 2025 — as unreasonably short for a nationally competitive position, and criticised the requirement for online submission, arguing applications should also have been accepted at regional offices or via registered mail.

The court, however, held that Section 16(2) of the TSC Act had been in operation for 13 years and is presumed constitutional unless proven otherwise. Justice Kebira noted that the constitutional and statutory issues raised were substantive and would require full interrogation during the hearing of the main petition, but did not justify interim relief.

The ruling also upheld TSC’s position that the job advertisement itself constituted a valid declaration of vacancy, especially given the need to ensure continuity following the exit of outgoing Secretary/CEO Nancy Macharia, whose term ended on June 30, 2025.

Justice Kebira further found the 21-day application period and online submission process to be reasonable and consistent with best practices, noting that hand-delivery at TSC headquarters remained an alternative option.