Court rejects bid to withdraw petition challenging recruitment of TCS boss

The High Court in Mombasa has declined to allow the withdrawal of a petition challenging the employment of  the Teachers Service Commission (TSC) Chief Executive Officer.

Justice Ocharo Kebira termed the application by Thomas Oyugi as forum shopping and an abuse of the court process.

On February 18, 2026, Oyugi filed an application to withdraw the petition, citing pressing personal circumstances and unforeseen commitments which materially constrained his ability to effectively and consistently participate in and sustain the prosecution of this petition to its logical conclusion.

Oyugi cited TSC, the National Assembly, the Education Cabinet Secretary, Attorney General and CPA Dr Adano Kadubo as interested party.

However, the judge said that the petition was at its tail end awaiting judgement and Oyugi’s active participation was not required.

Justice Kebira noted that Oyugi’s petition was instituted as bona fide public interest litigation aimed at advancing and safeguarding constitutional values and principles, including leadership, integrity, transparency, and accountability in public service.

“In essence, the proceedings in respect of the petition are at their tail end. Technically, what is outstanding is the preparation and delivery of the judgment. To the extent, therefore, that the unexplained personal commitment upon which the petitioner (Oyugi) wants the petition withdrawn is of no relevance. The stage at which the matter is does not require his active participation,” said Justice Kebira.

The judge further said that it was evident that Oyugi was forum shopping and abusing the court process.

He declared that the intended withdrawal of the instant petition is no doubt intended to aid the petition at the High Court in Kiambu from suffering the effect of the doctrine of sub judice and res judicata.

He said that it was not coincidental for Oyugi’s bid to withdraw this petition and the other three petitions before him immediately after obtaining the said Conservatory order in Kiambu.

“I have carefully considered the chronology of events following the dismissal of the conservatory order application herein, as rendered by the Respondent (TSC). This includes the vigorous filing of multiple Petitions on the same subject matter as in the instant petition, the incessant pursuit of a conservatory order in the other petitions after I had declined to grant one in this matter without rest until one was obtained in the Kiambu High Court petition,” said Justice Kebira.

Justice Kebira ruled that the court bears the responsibility to safeguard institutional integrity and by allowing the discontinuation of the petition, it would have failed on its duty to stop misuse of the court’s process.

“By reason of the foregoing premises, and for the interest of public interest, institutional integrity and the finality of public interest adjudication, this Court declines the leave to withdraw the petition,” said Kebira.

in opposing the withdrawal, the TSC said there has been a leadership vacuum in the sensitive office of the Commission’ CEO, who serves as the Accounting Officer and the chief administrator charged with the responsibility of managing day-to-day public teaching sector in general.

TSC Chair Jamleck Muturi said that three related petitions had been filed in Kiambu, Nairobi and Mombasa courts seeking similar conservatory orders stopping the recruitment process and accused Oyugi of forum shopping.

Dr Muturi said that Oyugi enjoyed Conservatory Orders for nearly nine months and is curiously withdrawing the petition upon dismissal of his application by the High Court in Mombasa.

“It is unconscionable for the Petitioner to drag TSC into Court for 12 months, waste scarce public judicial resources, and drain scarce public resources in defending the case, only for him to wake up one day and allege undisclosed personal commitments as a reason for withdrawing a public interest suit,” he said.

The TSC Chair argued that Oyugi chose to withdraw the petition after the High Court in Kiambu issued a conservatory order temporarily halting the recruitment of the TSC boss.

He said the Commission had already received orders from the High Court in Nairobi to proceed with the recruitment process of the CEO thus, Oyugi’s petition and application for temporal orders were in violation of the sub judice rule, and res judicata, respectively. 

However, in his defense, Oyugi said the petition was not actuated by personal gain, malice, or any collateral purpose.

He said the petition remains unheard and undetermined on its merits.

“Accordingly, public interest litigants who approach the court in good faith ought to be encouraged, or at the very least not penalized, where they act responsibly and elect to withdraw proceedings when circumstances render continued litigation impracticable,” said Oyugi.