The Kiambu Court has dismissed an application by the Teachers Service Commission (TSC) seeking to lift conservatory orders suspending the implementation of a circular regulating teachers’ conduct on social media.
In its ruling, the court found that the petitioner had established a prima facie case that the circular was vague, restrictive and posed a risk of violating teachers’ constitutional right to freedom of expression.
The court held that the circular did not sufficiently define the online conduct that could expose teachers to disciplinary action, leaving room for uncertainty and potentially excessive discretion by the commission. “What is clear from the circular is that the same does not sufficiently define or particularise the conduct which may expose teachers to disciplinary action,” the court observed.
The judge said TSC should instead develop specific guidelines governing teachers’ online conduct rather than impose blanket restrictions through an administrative circular. The court noted that an existing legal framework already provides for disciplinary action against teachers who engage in misconduct, whether online or offline, and advised the commission to address cases individually.
The judge further ruled that any limitation on freedom of expression must be grounded in law and meet constitutional requirements of reasonableness and proportionality under Article 24 of the Constitution.
The petitioner had also challenged the circular on grounds that it was issued without public participation or consultation with teachers and other affected stakeholders.
The court observed that TSC had not disputed the absence of stakeholder consultation before the circular was formulated and issued, raising concerns about compliance with Article 47 of the Constitution and the Fair Administrative Action Act.
In seeking to have the orders lifted, TSC argued that the circular was issued in exercise of its constitutional and statutory mandate to regulate the teaching profession and discipline teachers for misconduct. However, the court found that lifting the conservatory orders would undermine the petition, which raises questions about constitutional rights, public participation and the exercise of administrative authority.
The judge consequently dismissed TSC’s application, leaving the orders suspending implementation of the circular in force pending further proceedings. The matter will be mentioned on February 3, 2027, for further directions on the hearing of the petition. The court directed parties that had not filed their responses to the petition to do so before the next appearance.
Abdihakim Guyyo, Brance Odhiambo, Rajab Shaaban and Abdul Nassir appeared for the petitioner.
