Apex court dismisses appeal by sacked teacher, says it lacks jurisdiction

The Supreme Court dismissed an appeal by a former teacher, Simon Kamau Johana, who sought to challenge his interdiction from service nearly two decades ago.

In a ruling delivered on Friday, the apex court held that it lacked jurisdiction to hear the matter, as it did not involve constitutional interpretation or application as required under Article 163(4)(a) of the Constitution.

Johana, a teacher employed by the Teachers Service Commission (TSC), was first interdicted in 1998 and later faced a second interdiction in July 2006 while serving at Maiuni Secondary School.

He was accused of inciting students, insubordination, and neglect of duty.

Although he obtained leave from the High Court in October 2006 to file a judicial review application challenging the interdiction, his then-advocates failed to file the substantive motion within the required 21 days.

He reappeared in court 17 years later, in October 2023, seeking an extension of time to file the motion, blaming his previous lawyers for the delay and citing financial constraints.

Both the High Court and the Court of Appeal rejected his application.

The High Court, presided over by Justice Francis Rayola Olel, ruled that the delay was inordinate and unjustified, and that the Law Reform Act did not permit extension of time after leave had lapsed.

The Court of Appeal, while acknowledging that the High Court had discretion to extend time, found that Johana had not provided sufficient explanation for the 17-year delay and had not diligently pursued his case.

In its judgment, the Supreme Court bench led by Chief Justice Martha Koome found that the appeal did not raise any issue of constitutional interpretation or application that had been previously determined by the lower courts.

The bench ruled that Johana’s allegations of violations of his rights under Articles 22, 27, 28, 35, 43, 47, 50, and 159 of the Constitution were raised for the first time at the Supreme Court and were not part of the original case before the High Court or the Court of Appeal.

“The only issue determined by the superior courts was the appellant’s request for extension of time to file judicial review proceedings. This issue does not fall within the scope of Article 163(4)(a) and does not warrant the intervention of this Court,” the ruling stated.

While the High Court and Court of Appeal had awarded costs to the TSC and the Attorney General, the Supreme Court ordered that each party bears its own costs in the appeal.

The court also directed that the Sh6,000 deposited as security for costs be refunded to Johana.

The full bench includes Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Njoki Ndungu, Isaac Lenaola, and William Ouko.