Kenya Union of Post Primary Education Teachers (KUPPET) v Ministry of Education & 2 others; Teachers Service Commission & another (Interested Parties) [2018] KEELRC 73 (KLR)
The bottom line
#A Kenyan court blocked the government from lowering teacher-training college entry grades because it failed to consult the Teachers Service Commission first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cabinet Secretary usurped the TSC's constitutional and statutory powers by issuing the KNQF Regulations, 2018
No usurpation. The Cabinet Secretary had the constitutional and statutory authority under Article 132(3)(c) and section 29 of the KNQF Act 2014 to issue the regulations, since the TSC's mandate extends to trained teachers only, while entry qualifications for prospective trainees lie with the national government. However, the manner of exercise undermined the TSC's Article 237(3) advisory function.
The Commission's exclusive constitutional mandate under Article 237(2) concerns registration, recruitment and employment of trained teachers, and it may set grades for that purpose. But the phrase 'trained teachers' bounds the mandate; entry qualifications for prospective (untrained) trainees are not constitutionally vested in the Commission, which instead reviews standards and advises the national government under Article 237(3). Parliament may legislate on setting such standards, as done in the KNQF Act, and the Cabinet Secretary acted within that authority.
Whether the TSC's advisory under Article 237(3) was mandatory and binding on the respondents
Yes. It was mandatory for the respondents to seek and obtain the Commission's review and advisory before fixing the entry grades, and such advisory is binding absent a constitutionally justifiable reason shown by the Cabinet Secretary and the Authority.
The Court relied on Article 249(1) (objects of commissions to protect the sovereignty of the people, secure observance of democratic values and promote constitutionalism), Article 129 on executive authority, and Article 259(11) which requires functions exercisable on advice to be performed only on that advice. The Court of Appeal decision in TSC v KNUT was applied by analogy: obtaining the commission's advice was mandatory.
Whether the Court should grant interlocutory/conservatory orders against lowering of entry grades
Yes. A prima facie case was established for preserving the status quo prior to the KNQF Regulations, 2018, and the implementation of the entry grades was stayed, with a directive for stakeholder harmonisation of the two conflicting sets of regulations.
The respondents failed to show they sought the TSC's mandatory review and advisory under Article 237(3). The regulations were shown to be incomplete and deficient, in serious variance with the TSC Code of Regulations for Teachers (Amendment) 2016, risking wastage of public resources as trainees with lower grades may not be registrable as trained teachers. Balancing of affirmative action under Article 56 against the right to basic education was questionable and the policy required revisiting before implementation.
Whether the Cabinet Secretary's directive lacked public participation and consultation
Evidence showed the TSC received the directive to implement the regulations devoid of the necessary consultations and public participation, supporting the need to revisit the policy before implementation.
The TSC complained that it received letters directing implementation of the KNQF Regulations without the stakeholder consultation and public participation envisaged in Articles 232(1)(d) and 10(2)(a) of the Constitution. The regulations were also in serious conflict with the TSC's own 2016 regulations, with a disastrous impact on standards of education and training of persons entering the teaching service, requiring harmonisation by the Cabinet Secretary with all key stakeholders.
Legal principles established
#- Where the Constitution requires a function or power to be exercised on the advice or recommendation, approval or consent of, or after consultation with another person, that function may only be performed on such advice, and the advisory is binding unless a constitutionally justifiable reason to the contrary is shown.
- The Teachers Service Commission holds the exclusive constitutional mandate to register, recruit and employ trained teachers and is entitled to set qualifications for registration, recruitment, appointment and promotion, but its role under Article 237(3) in respect of standards of education and training of persons entering teaching is to review and advise the national government.
Court orders
#- 1.Pending the hearing and determination of the petition or further orders, a conservatory order preserving the status quo obtaining prior to issuance of the Kenya National Qualifications Framework Regulations, 2018, and all processes and decisions flowing from the regulations towards implementation of the entry grades prescribed therein for admission of trainees in the TTCs stayed forthwith
- 2.Pending the hearing and determination of the petition or further orders, the 1st respondent through the Cabinet Secretary to urgently convene the parties and all other key stakeholders towards harmonising the qualifications in the two sets of regulations (KNQF Regulations 2018 and TSC Code of Regulations for Teachers (Amendment) 2016) with a view of paving way for timely admissions to the TTCs
- 3.The matter admitted for listing during the forthcoming Court's Christmas Vacation and mention on 03.01.2019 at 9.00 a.m. before the Recess Duty Judge to record progress and for further directions and orders on the petition
- 4.Costs of the application in the cause
- Jurisdiction invoked
- Labour Relations Act section 21(b); Teachers Service Commission Regulations for Teachers 2015, Regulation 43(1)(a); Order 40 Rule 1 & 2 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Post Primary Education Teachers (KUPPET) v Ministry of Education & 2 others; Teachers Service Commission & another (Interested Parties) [2018] KEELRC 73 (KLR)", Case Analysis (2018). Petition (filed 23.11.2018) with Notice of Motion dated 07.12.2018, amended 10.12.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/73/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.