TSC writes to Supreme Court to withdraw case contesting orders to pay teachers

NAIROBI: The Teachers Service Commission (TSC) has written to the Supreme Court in a bid to drop the latest application seeking for a review of its orders.

The commission had moved to the highest court in the land, for a second time, seeking for a review of a ruling that locked it from pursuing for temporary orders barring payment of the 50-60 percent salaries but it now wants the matter dropped.

The Lydia Nzomo led commission in its letter dated September 7, 2015, seen by The Standard, told the Supreme Court that it was unwilling to pursue the matter as the court had already indicated that the motion set before it would eventually not be allowed.

“We write to withdraw the notice of motion dated August 31, 2015. As the motion has not been served, the only logical order is for the motion to be marked as withdrawn with no orders as to costs," the letter written by TSC lawyer Stella Ruto read in part.

Supreme Court judges Jackton Ojwang’ last week declined to suspend payment of the hiked salaries. He instead ordered the commission to take a hearing date from the court's registrar and serve the teachers' unions with the suit papers.

Justice Ojwang’ in his ruling noted that the orders the commission was seeking before the Court of Appeal, which is set to hear the case on September 22, could as well settle the highest court. "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.

At  the same time, a second order was  made  by  Justices Willy Mutunga, Kalpana Rawal Smokin Wanjala, Mohamed  Ibrahim and Ojwang directing that the  parties should  file submission on admissibility of  the  application  within seven days  after  which  they would make orders  on the  case.

Ms Ruto in her letter said that the orders of the court were an indicator that the court was unwilling to listen to her client.

“Since it is the court that has raised the issue and made an order which is irreconcilable with the orders made by Hon Prof Ojwang’, it does appear that the court does not intend to allow a hearing of the motion," she said.

The lawyer on behalf of TSC lamented that the highest court was mooting for a biased direction. “The second order is irreconcilable with the first and clearly intends to rule upon the issue raised by the court to the advantage of some respondents. By issuing the second order, the court has demonstrated to our client its intention to obstruct a hearing of the motion. Given the circumstances, it would be pointless to proceed with the motion," she protested.

TSC holds that the alleged error has occasioned a miscarriage of justice.

Though the commission now wants the matter rested, Kenya National Union of Teachers on the other hand wants the case to proceed.  The union through John Mbaluto also placed its side of argument to the letter saying that it was scurrilous and unwarranted attack on the integrity of the judges of that court.

" Through this protracted litigation in the hierarchy of courts, TSC and the Government of Kenya appear interested only one issue, an order to the teachers to go back to the class rooms.  They have made it clear that they will not obey court orders on payment of the enhanced salaries. KNUT is opposed to the withdrawal as to consent will legitimize the unwarranted attack on the Supreme Court," the letter dated Tuesday and also seen by The Standard read in part.