The High Court has ruled on a petition seeking to place Early Childhood Development Education (ECDE) teachers under the exclusive mandate of the Teachers Service Commission (TSC).
Justice R.E. Aburili dismissed the petition filed by Stephen Chahasi Lumwaji, finding that the issues raised had already been determined in an earlier case involving the Kenya National Union of Teachers (KNUT), the Attorney General, and other parties.
The judge consequently upheld the preliminary objection dated April 14, 2026.
“The instant Petition also seeks similar declarations and reliefs, amounting to a re-litigation of matters already adjudicated upon and is therefore res judicata within the meaning of Section 7 of the Civil Procedure Act,” Justice Aburili ruled on August 19.
Petition on ECDE Teachers Recruitment
A civil society activist, Stephen Chahasi Lumwaji, filed a petition challenging Section 38 of the Early Childhood Education Act, 2021.
In his petition, Stephen requested the court to declare the section unconstitutional and suspend its implementation.
In addition, the petitioner wanted the court to declare that ECDE teachers are subject to the TSC.
During his petition, he argued that counties should not be responsible for recruiting, registering, and remunerating ECDE teachers because the TSC registers teachers.
The petitioner further emphasized that ECDE teachers could face dual disciplinary processes, citing that despite the counties employing the teachers, the TSC regulates them.
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2016 KNUT Court Ruling
The respondents opposed the petition by way of a preliminary objection dated April 14, 2026. They argued that the case was res judicata because the same substantive question had been addressed in Kenya National Union of Teachers v Attorney General & 4 others [2016] KEHC 8205 (KLR).
In the earlier case, the High Court found that pre-primary education was a county government function.
The court also held that the TSC was responsible for registering teachers, while county governments were responsible for recruiting ECDE teachers from among teachers registered by the Commission.
Justice Aburili found that although the petitioner and parties in the earlier case were not identical, the substance of the dispute and the remedies sought were substantially similar.
“The present Petitioner is asking this Court to affirm that ECE teachers fall under TSC’s exclusive mandate and to strike down Section 38 of the ECE Act 2021 that currently allows counties to recruit the said teacher,” part of the ruling read.
In addition, Justice Aburili rejected the argument that Section 38 violated the constitutional division of functions between the TSC and county governments.
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Section 38 of ECDE Act
Section 38 of the Early Childhood Education Act places responsibility for ECDE teachers on county governments.
The provision states that county governments are responsible for the recruitment and professional development of ECDE teachers in public education centers within their counties and maintain a register of ECDE teachers recruited.
The law further provides that counties pay ECDE teachers remuneration determined in consultation with the Salaries and Remuneration Commission.
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