REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

PETITION NUMBER EO68 OF 2021

BETWEEN

GEORGE SAMSON MARANGO................................................................................PETITIONER

VERSUS

1. TEACHERS SREVICE COMMISSION                                                                                           

2. THE CABINET SECRETARY, MINISTRY OF EDUCATION SCIENCE & TECHNOLOGY

3. PUBLIC SERVICE COMMISSION                                                                                                  

4. JOHN OGAMBA MATIANG’I............................................................................RESPONDENTS 

RULING

1. In his Application dated 3^rd May 2021, the Petitioner seeks the following main orders: -

§ Pending hearing and determination of the Application, the Honourable Court do issue interim orders, restraining the 3^rd Respondent, either by themselves [sic], their servants, agents or other person acting on its behalf, from transferring the services of the 4^th Respondent from the Teachers Service Commission to the Public Service, and further restrained from appointing the said Respondent [4^th], to the position of Deputy Director of Education Job Group ‘’R’’/ CSG. 6 in the Ministry of Education.

§ Pending hearing and determination of this Application, this Honourable Court do issue orders, restraining the 4^th Respondent from assuming and/ or taking over the office as to perform the duties of the Deputy Director of Education, Job Group ‘’R’’ / CSG. 6 at the Ministry of Education.

§ The 2^nd Respondent is restrained from allowing the 4^th Respondent to assume and/or take over office, so as to perform the duties of the Deputy Director of Education, Job Group ‘’ R’’ / CSG.6 at the Ministry of Education, pending hearing and determination of the Petition.

2. The Application is supported by the Affidavit of the Petitioner, sworn on 3^rd May 2021.

3. He states that the 4^th Respondent is a Teacher. He was employed by the 1^st Respondent [TSC] way back in 1990. He was elected the National Treasurer of the Kenya National Union of Teachers [KNUT] in 2012. He resigned from KNUT on 29^th April 2021.

4. He, on 5^th April 2021, requested for transfer of service from TSC to the 3^rd Respondent [PSC], in anticipation of taking up employment at the Ministry of Education.

5. The 1^st Respondent issued a no-objection letter to the 4^th Respondent, but requested the 4^th Respondent to furnish a copy of the contract letter, to enable the 1^st Respondent finalize the process.

6. The 2^nd Respondent wrote to the 3^rd Respondent, indicating that there was a vacant position of Deputy Director of Education, within the Ministry of Education. The 2^nd Respondent requested transfer of service of the 4^th Respondent and his appointment to the vacancy.

7. The 2^nd Respondent appointed the 4^th Respondent as Deputy Director of Education. The position was not advertised. There was no interview. The 4^th Respondent accepted the offer of employment, on 6^th May 2021.

8. The 1^st Respondent filed a Replying Affidavit, sworn by Dr. Julius Alayo, on 16^th June 2021. He repeats the employment history of the 4^th Respondent by the 1^st Respondent; the 4^th Respondent’s early history with KNUT and subsequent ascension to the national leadership of KNUT; and his appointment as Deputy Director of Education. Dr. Alayo states the 4^th Respondent’s qualifications for the position are unquestionable, and the process of transfer of service and appointment, beyond reproach.

9. Dr. Julius O. Jwan, Principal Secretary at the State Department for Early Learning and Basic Education in the Ministry of Education, swore a Replying Affidavit on behalf of the 2^nd Respondent, on 16^th June 2021.

10. He states that the 3^rd Respondent may, where appropriate and in writing, delegate any power or assign any duty conferred on it under the Constitution or the Act, to its members, an officer, body or authority in the public service, under Section 31 of the Public Service Commission Act, No. 10 of 2017.

11. Regulation 14[1] [a] of the Public Service Commission Regulations 2020, allows the 3^rd Respondent to delegate its power to appoint, to an authorised officer, in terms of Section 31 above. Cabinet Secretaries are designated as authorised officers.

12. The 2^nd Respondent, in exercise of delegated powers, forwarded his recommendations to the 3^rd Respondent, with respect to the transfer of the 4^th Respondent. The 2^nd Respondent acted at all times within the confines of his statutory and constitutional powers. The Petitioner’s application is misplaced.

13. The 4^th Respondent filed his Replying Affidavit, sworn on 17^th June 2021.

14. He states in detail that he holds: P1 Certificate in teaching from Kamagambo Teachers College, 1990; Bachelor of Education Arts Degree from the University of Nairobi, 2004-2008; Master’s Degree in Education Administration from University of Eastern Africa Baraton, 2010-2013; and was PhD candidate, University of Nairobi, at the time of swearing the Affidavit.

15. Professional courses / meetings attended, include: sub-saharan conference on education post-2015 agenda on SDGs, Kigali Rwanda, 2015; commonwealth conference for Ministers of Education, Fiji, 2017; international education conference, Istanbul Turkey, 2018 [presented a paper on ICT and Education in 21^st century]; ILO conference on gender violence, Geneva, 2019; annual international conference on research and innovation, University of Nairobi, 10^th September 2019; and attended and presented a paper to post-graduate students, at University of Nairobi @50 celebrations, on the topic of Collective Bargaining Process in Education.

16. The 4^th Respondent states, he has over 30 years’ experience in education sector. He was a teacher in various primary schools including Sosera, Riang’ombe, and Nyansakia;  Deputy head-teacher at Sosera, Ensoko, and Riang’ombe; Head-teacher at Nyansakia primary school; Branch Executive Secretary Borabu KNUT Branch; Assistant- National Treasure of KNUT; National Treasurer KNUT; Member TSC remuneration committee; committee member NACADA 2010-2012; was nominated, but declined appointment, as a commissioner SRC; and, served as Trustee Public Service Superannuation Scheme for 3 years, until 2020.

17. The 4^th Respondent served in a position equivalent of job group ‘R’ following his academic achievements. He was not lastly in job group ‘K’, as alleged by the Petitioner. He applied for transfer of service, against the background of his academic and professional achievements.

18. He exhibits his application letter and the no-objection letter from the TSC. He was appointed as Deputy Director, and accepted appointment. It was a merit appointment. It is not true that the 4^th Respondent was unqualified, and that qualified persons were overlooked. No law was breached. The 4^th Respondent restates the position adopted by Dr. Jwan on the law.   

19. There is no arguable, prima facie case, to warrant grant of the Application.

20. Parties were directed to file Submissions, which with the exception of the 3^rd Respondent’s, are traceable in the record.

The Court Finds: -

21. The orders sought by the Petitioner seem to have been overtaken by the events. `

22. It is common ground that transfer of service from the 1^st Respondent to the 3^rd Respondent, took place. The 4^th Respondent was appointed Deputy Director of Education. He accepted appointment, on 6^th May 2021.

23. On what ground would the Court restrain transferring of service; restrain the appointment of 4^th Respondent as Deputy Director of Education; restrain the 4^th Respondent from assuming office; and restrain the 2^nd Respondent from allowing the 4^th Respondent to assume office?

24. The 4^th Respondent’s transfer of service and appointment, were consummated on 6^th May 2021, when he accepted the offer of appointment.

25. The Court does not act in vain, and issue orders which cannot be implemented.

26. That aside, the Petitioner appears not to have a prima facie case, with probability of success. The 1^st, 2^nd and 3^rd Respondents appear from the material availed to the Court, to have acted within the law, in transfer and appointment of the 4^th Respondent.

27. The 4^th Respondent is pre-eminently qualified for the position of Deputy Director of Education. No Court should stand in the way of meritocracy. He has the academic and professional credentials. He has a rich experience in the education sector. There is nothing to suggest that his appointment, does not meet the values and principles of public service, under Article 232 of the Constitution. There is no compelling reason shown, by way of prima facie evidence, to warrant placing of barriers in the 4^th Respondent’s desire to serve the public, and in his career advancement.

28. Let the Petitioner pursue his main Petition, if he is minded to do so. Interim orders sought, have been overtaken by the events, and have no merit.

IT IS ORDERED: -

a. The Application by the Petitioner dated 3^rd May 2021 is declined.

b. Costs to be paid by the Petitioner to the 1^st, 2^nd and 4^th Respondents.

Dated, signed and released to the Parties electronically, at Nairobi, under the Ministry of Health and Judiciary Covid-19 Guidelines, this 25^th day of January 2022.

James Rika

Judge