The Teachers Service Commission (TSC) has suffered yet another setback after the Supreme Court declined for the second time to suspend the 50-60 per cent salary increment order.
Supreme Court judge Jackton Ojwang instead ordered the commission to take a hearing date from the court’s registrar and serve the teachers’ unions with the suit papers.
Ojwang in his ruling noted that the orders the commission was seeking before the highest court could as well be settled by the Court of Appeal, which is set to hear the case on September 22. “This application relates to a substantive cause soon to be heard on merits by the Court of Appeal. It is that forthcoming hearing before the Appellate Court that holds the justice of the case in the first place,”Ojwang noted.
The sentiments by the judge on the role of the lower court in the case is an indicator that the commission was being asked to seek relief before a three-judge bench that had initially ordered it should pay teachers as it argues its case before coming to the Supreme Court. However, TSC has not yet honoured the directives of Appeal Court judges Mohamed Warsame, Jamilla Mohamed and Sankale ole Kantai, meaning its application for temporary orders before them stands at risk of being dismissed.
“Guided by that certainty of the dispute settlement process, I hereby order and direct that the application in question shall forthwith be served upon all the parties to the main appeal and a hearing date be taken before the registrar for hearing on September 9,” the judge ruled.
The Supreme Court had ruled that it had no powers to entertain TSC’s pleas when there was no intended appeal that was lying before the judges of the highest court in the land. But TSC referred to its petition before the court, saying its lawyers had indicated about the case when submissions were being made before a five-judge bench.
TSC through lawyer Stella Ruto holds that the alleged error has occasioned a miscarriage of justice.
At the same time, though the unions had not been served, Kenya National Union of Teachers (Knut) had already filed its response to the application, saying the Supreme Court should not review its orders.
Knut in its response stated the finding on the powers of the court could not be revisited through a review application.
“It is manifestly an illegal appeal against the court’s decision,” the union through Oraro and Company advocates held in its papers.
“It is against public policy and the need for certainty and finality in the law for the Apex Court to reopen a concluded (matter) on peripheral issues,” the papers read.
The Wilson Sossion-led union emphasised TSC was in contempt of court orders issued by lower courts, adding its pleas should not be entertained until they are honoured.
“The applicant (TSC) is in contempt of the orders issued by the Labour Court and the orders of the Court of Appeal, therefore demonstrably a State organ acting with impunity and utter disregard of the rule of the law, singularly unsuited to be re-heard by the Apex Court,” the union stated.
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