The Teachers Service Commission (TSC) is now free to continue its recruitment for a new chief executive officer following a court decision that dismissed a petition challenging the process.
The Employment and Labour Relations Court in Mombasa ruled on Thursday, January 29, that the claims presented did not provide enough evidence to justify halting the selection, allowing the Commission to move forward with hiring a permanent CEO.
The legal challenge was filed in May 2025 by Nyali resident Thomas Mosomi Oyugi, who questioned the constitutionality of Section 16(2) of the Teachers Service Commission Act.
The provision mandates that candidates for the CEO position must hold a degree in education. Oyugi argued that this requirement unfairly excluded professionals from other fields such as finance, human resources, public administration, and other relevant areas.
He described the qualifications as “illogical and mischievously designed to favour one class of Kenyans,” particularly teachers and those within the Commission, and claimed they violated constitutional principles on equality, fair competition, non-discrimination, and merit-based hiring.
The petitioner also raised concerns that TSC advertised the post before outgoing CEO Nancy Macharia’s second five-year term ended on June 30, 2025, and criticised the short timeframe given for applications.
Justice Ochara Kebira dismissed the claims, ruling that there was no evidence showing that public interest would be harmed by the recruitment proceeding.
“Having found as I have herein above, that there hasn’t been a demonstration of a prima facie case in respect of the specific matters mentioned and that the Petitioner has not demonstrated the prejudice that he or the public would suffer if the conservatory order is not granted, I come to the inescapable conclusion that the instant application is for rejection. It is hereby rejected. The 1st Respondent is at liberty to proceed with the recruitment process, which was temporarily halted by order of this Court,” the judgment states.
Since June 2025, Eveleen Mitei has been acting as CEO following the expiration of Macharia’s term. The CEO position requires candidates to have a degree in education from a recognised Kenyan university, at least ten years of experience in education, administration, human resources, financial management, or public administration, and to meet Chapter Six requirements of the Constitution.
A major point of debate in the petition was whether the court had jurisdiction to evaluate the recruitment at the advertisement stage and determine if the law was constitutional.
The court referred to Supreme Court guidance, noting that the ELRC has authority to assess the constitutional validity of statutes while handling employment disputes: “In our view, there is nothing in the Constitution, the ELRC Act, to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC court is precluded from determining the constitutional validity of a statute.”
Justice Kebira also rejected the argument that the absence of an employer-employee relationship at the recruitment stage removed the court’s authority. “If such reasoning were to be deemed appropriate, then, by analogy, this court would also lack jurisdiction to hear cases where an employment contract has already been terminated in some manner,” the judge explained.
The ruling further highlighted Kenya’s ratification of international labour standards protecting potential employees from discrimination during hiring. “For the purpose of this Convention, the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions,” the judgment reads, reinforcing that employment protections extend beyond existing contracts.
With the court’s decision, the Teachers Service Commission can now complete the process to appoint a permanent CEO, ending the interim leadership period under Eveleen Mitei that began after Macharia’s term ended in June 2025.
