REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NUMBER 72 OF 2015
TEACHERS SERVICE COMMISSION………..............………PETITIONER
VERSUS
KENYA NATIONAL UNION OF TEACHERS….............1ST RESPONDENT
KENYA UNION OF POST PRIMARY
EDUCATION TEACHERS…………………..….......….2ND RESPONDENT
AND
HON. ATTORNEY GENERAL………....……..……INTERESTED PARTY
RULING
1. I have listened to submissions by Counsel’s for the petitioner and the respondents on the current status of the dispute that informs the appeal presently being argued in the Court of Appeal.
2. Mr. Muchoki and Mr. Ndumbi for the respondents have asked me to stay the implementation of my judgment in view of the current Court of Appeal proceedings because according to him those proceedings make it difficult to implement the orders of this Court.
3. Counsel therefore wanted my stayed orders to await the outcome of the Court of Appeal proceedings. These sentiments were shared by Mr. Ndumbi who added that the matter be mentioned later on after the outcome of the Court of Appeal proceedings.
4. Mr. Obura on the other hand opposed the request stating that the Court made a judgment on 25th September, 2015 and the judgment has been reduced to an order of the Court. The Court in the circumstances became functus officio. According to Mr. Obura, order A of the Court was that teachers resume work immediately. However, the respondent’s officials have directed their members not to resume duties. This according to Counsel is contemptuous of the Court order. Counsel therefore urged me not to entertain any application from the respondent’s until they purge the contempt.
5. Mr. Bitta in support of Mr. Obura’s submission said that the Court gave a judgment not directions and no Appeal or review has been filed by the respondents hence an oral application for stay has no legal foundation. According to Mr. Bitta the applicants are in defiance of a Court order.
6. Mr. Ndumbi in reply stated that the circumstances of this case are peculiar due to the nature of the controversy he therefore urged me to exercise my discretion accordingly. He submitted that if the Court so directs they have no problem filing a formal application for stay.
7. Mr. Muchoki further added that considering the nature of the dispute, parties should avoid taking antagonistic positions.
8. Taking cue from the last submissions by Mr. Muchoki the Court fully agrees with him that considering the nature of the dispute, parties should be calm, be considerate and no side should feel more wronged or justified than the other.
9. In my judgment of 25th September, 2015, in which I said the dispute presents me anxiety and moments of self-reflection when I consider the history of the dispute and positions taken by protagonists over time and the impact it had and continues to have on children in public schools and their parents who include most of the very teachers on strike, I chose to ride the path of the Constitution because in there, I saw a ray of hope for reconciliation.
10. It is for this reason that I ordered among others that in the interest of the children, the respondents suspend the strike for 90 days while at the same time sanctioning the legitimacy of the strike. This therefore means as things stand now, the strike is protected but remains suspended. In other words there is no strike until after 90 days from now. Any person talking about a strike that is still going on is therefore defying the orders of this Court.
11. If my advice be sought, let me say that the proceedings in the Court of Appeal deal with only an aspect of my order but not all of it. I therefore plead with the respondent’s officials to advice their members to respect the orders of this Court as they will need its protection tomorrow as they always have. They would stand tall and respected if they asked their members to resume duties while they, as elected officials, pursue their legitimate rights as ordered by my judgment on 25th September, 2015.
12. In conclusion I decline to stay or make any comment on my orders issued on 25th September, 2015 until all parties comply in those aspects not subject of the proceedings in the Court of Appeal and more importantly that the respondent’s members resume duty as ordered by the Court among others.
13. It is so ordered.
Dated at Nairobi this 1st day of October 2015
Abuodha Jorum Nelson.
Judge
Delivered this 1st day of October 2015
In the presence of:-
……………………………….for the Petitioner and
………………….................…….for the Respondent.
Abuodha Jorum Nelson.
Judge