TSC in surprise withdrawal of teachers’ pay appeal

The Teachers Service Commission (TSC) has moved to withdraw an appeal filed at the Supreme Court in the ongoing pay dispute, drawing the ire of the tutors’ union.

TSC has written to the Supreme Court seeking to terminate the appeal filed last week after the highest court in the land ruled that the government should raise teachers’ pay by between 50 to 60 per cent pending determination of yet another ongoing case at the court of appeal.

TSC claims in the letter that the Supreme Court does not intend to hear its application and is bent on ruling in favour of teachers, a position that the Kenya National Union of Teachers (Knut) has objected to.

The teachers’ employer holds that the Supreme Court back-tracked on its own directions to set the application for hearing and instead wants the parties to argue on whether the request for review is admissible in court.

The Supreme Court on August 24 ruled that it had no authority to entertain TSC’s appeal against the pay increment. TSC filed for a review of the decision one week later.

The teachers’ employer argued in its application for review that the Supreme Court had erroneously struck out its appeal.

“On September 2, Justice Jacktone Ojwang directed that the parties appear before the registrar to take a hearing date. Strangely, by an order on the same date, the court directed parties to file written arguments on issues of admissibility within the next seven days.

“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,” says TSC.

The parties were to appear before the Supreme Court registrar Wednesday to set a hearing date.

The teachers’ employer reckons that the Supreme Court’s directions were contradictory, and that they have shown a hint of bias against it.

But the Kenya National Union of Teachers (Knut), which was copied in the letter, has protested at TSC’s move, and now wants the application heard.

READ: TSC challenges Supreme Court ruling on teachers’ salaries

The teachers’ lobby has written to TSC in protest, and has faulted its lawyer, Stella Rutto, for authoring the withdrawal request.

Knut says the reasons for withdrawal are a direct attack on the Supreme Court, and that agreeing to strike out the case will be supporting TSC’s assault on the judges.

The lobby insists that TSC’s letter to the Supreme Court is an informal attempt to strike out the application, which should not be allowed.

“Given your reasons for withdrawal of your motion, our client Knut is opposed to the withdrawal as consent will be to legitimise the unwarranted attack on the Supreme Court. Proceedings in court cannot just be withdrawn informally through a letter by one of the parties,” Knut’s lawyer John Mbaluto says.

TSC has in its letter to the Supreme Court said that it is yet to furnish other parties in the suit with the papers hence it should not be slapped with the legal costs of other parties.

The new row comes as the teachers’ strike enters its fourth day, a move that has paralysed learning across the country.

TSC on Friday returned to the Employment and Labour Relations Court seeking to have teachers ordered back to work.

Justice Monicah Mbaru declined to order the tutors back to classrooms, but ruled that the strike is not protected by law, leaving the door open for TSC to take disciplinary action against employees.

Knut, in its letter to TSC, says the government is only intent on getting the teachers ordered back to work, and has no regard for the rule of law as it is yet to comply with the court’s order to hike tutors’ pay.

“Through this protracted litigation in the hierarchy of the courts, TSC and the government of Kenya appear interested in only one issue-an order to the teachers to go back to the classrooms.

TSC and the government have made it clear that they will not obey court orders on payment of the enhanced salaries,” Knut adds. In most parts of the country, parents have kept their children at home, fearing for their safety.

The Treasury has said that it has three “unpalatable” options to raise the extra cash for the 288,060 teachers including increasing taxes, borrowing from the domestic market or cutting budgeted expenditure.

But Treasury Secretary Henry Rotich thinks all would have negative effects to the economy. 

Public school children have often been disadvantaged by the teachers’ strikes since learning in private schools has not been interrupted.

The TSC has threatened to withhold payment of September Salaries for teachers if the strike is not called off, but the tutors’ lobby insists they will not return to class until the pay rise has been effected.