Omao v Secretary/Chief Executive Officer, Teachers Service Commission & 2 others (Petition E026 of 2024) [2025] KEELRC 1041 (KLR)
The bottom line
#A Kenyan court confirmed the Teachers Service Commission acted unlawfully by cutting teachers' house allowance without notice, but refused money damages because the amounts were never proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant petition meets the threshold of a Constitutional Petition
- 2.Whether the 1st respondent is properly joined in this suit
- 3.Whether the Petitioner has a cause of action against the 2nd respondent
- 4.Whether the Petitioner is entitled to the Orders sought
Key legal issues
#Whether the Petition meets the constitutional threshold
The Petition does not meet the Anarita Karimi Njeru threshold; it raises typical employment matters and should have been filed as a cause
The Petitioner cited Articles 47, 50(2)(c), 10 and 196(1)(b) without particulars of the alleged violations. The Petition was not even expressed under particular constitutional articles and omitted Article 41 on fair labour practices. The court held that the issues were typical employment and labour relations disputes requiring oral evidence by affected persons.
Whether the 1st respondent (Secretary/CEO of TSC) is properly joined
The Secretary was improperly sued instead of the TSC; the suit against her was struck out
The TSC is a constitutional commission under Article 237 with perpetual succession under Article 253 and may be sued in its own name. The Secretary, though head of the Secretariat and accounting officer, is not the Commission's alter ego, and Section 22 of the TSC Act protects officers acting in good faith. The Petitioner did not show she acted in bad faith or in a personal capacity.
Whether there is a cause of action against the 2nd respondent
No allegations or relief were made against the 2nd respondent; the suit against it was dismissed
Other than describing the 2nd respondent, the Petition made no reference to it and the Supporting Affidavit did not mention it. Its uncontroverted Grounds of Opposition showed no causal link to any alleged violation. The court questioned why it was joined at all, causing it to incur costs.
Whether the Petitioner is entitled to the orders sought
Only a declaration was merited; all other reliefs were declined for lack of particulars, and damages were not proved
The payslips and letters on record showed 11 teachers' house allowance was reduced effective July 2019 without consultation or written notice, violating Article 47 and 50(1), Section 4 of the Fair Administrative Action Act and Section 10(3) of the Employment Act. However, arrears were never computed or quantified, no loss was proved, and statutory limitation under Section 89 of the Employment Act would restrict recovery to arrears from July 2022.
Legal principles established
#- A constitutional petitioner must set out with reasonable precision the provisions allegedly infringed and the manner of infringement
- A constitutional commission is a body corporate that must be sued in its own name; its Secretary is not its alter ego
- Reducing an employee's allowance without consultation or written notification is not a fair labour practice
- The ELRC's jurisdiction is limited to employment and labour relations disputes under Article 162(2)(a) and Section 12 of the ELRC Act
Court orders
#- 1.The suit against the 1st respondent is struck out
- 2.The suit against the 2nd respondent is dismissed
- 3.The suit against the 3rd respondent is dismissed
- 4.Since the suit was filed in the public interest, parties bear their own costs
- 5.A declaration that the house allowance of 11 teachers in Kisii-Central was reduced effective July 2019 without consultation and written notification, violating Article 47 and 50(1) of the Constitution, Section 4 of the Fair Administrative Action Act and Section 10(3) of the Employment Act
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act
Relief refused
#Restitution of Enhanced House Allowance
Coding of schools in Kisii is an on-going exercise, so restitution would not be an appropriate relief at this stage
Permanent injunction restraining degazettement of Gazette Notice No. 10557 of 2007
Petitioner did not show the Notice was published by any respondent or that any has power to degazette it
Order protecting the status of teachers in the four schools
No jurisdiction to decree undefined protection orders with no justification, scope or impact
Mandamus on outstanding arrears
No figures or beneficiaries cited; mandamus requires specificity and clarity; the 1st respondent is not the employer
Certiorari to quash the withdrawal of enhanced house allowance
No specific letter, record or decision identified for the court to quash
Award of damages
No loss or damage proved
Costs
Since the suit was filed in the public interest, it is only fair that parties bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
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.
The outstanding amount if any, remains unproven and thus not awardable by the court.
Since the suit was filed in the public interest, it is only fair that parties bear their own costs.
The suit against the 1st respondent is struck out.
Issues in the judgment
#The prayer refers to Gazette Notice No. 10557 of 26th October, 2007 but the relief heading refers to a 2008 notice
The petition identifies the Secretary/CEO of the TSC as 1st respondent but paragraph 2 describes the 1st and 2nd respondents as constitutional commissions
The orders refer to a 3rd respondent whose role is not described in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyangongo v CEO and Seceretary Teachers Service Commission & another (Cause E077 of 2024) [2025] KEELRC 1271 (KLR)[2025] KEELRC 1271 (KLR)6 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Omao v Secretary/Chief Executive Officer, Teachers Service Commission & 2 others (Petition E026 of 2024) [2025] KEELRC 1041 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1041/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.