While stating that such orders would worsen the situation, Justice Nduma Nderi instead directed the officials from the Kenya National Union of Teachers (KNUT), the Kenya Union of Post Primary Education Teachers (KUPPET) and the Teachers Service Commission (TSC) appear before him for an inter-partes hearing to resolve the impasse through negotiations.
He also gave the unions seven days within which to file replying affidavits to the TSC petition and a further seven days for the commission to respond.
"The Interim orders are declined at this stage because it will not help. The court notes the willingness of the parties to engage in constructive engagement and the court directs that officials of the two unions and the officers of TSC in court today appear before me in chambers at 10.30am on January 14, 2015," he directed.
While disputing press reports that he had declared the strike illegal, the judge indicated that that the intention of the court was to come up with a solution which would be acceptable to all parties involved.
"I appreciate that your affidavit (TSC's) is misleading because you persisted in that lie which is in the press because probably they also did not take time to examine the parties in the suit. The intention today first of all was a mention for directions and further orders. My intention was to intervene in this matter in terms of Section 15 of the Industrial Court Act," he explained.
He further emphasised the importance of all parties in a dispute to exhaust all avenues of dispute resolution before resorting to court action.
"Neither the unions nor the employer referred this matter to conciliation and you cannot approach this court before you follow the laid down procedure and that is why other employees are not on strike every day because they follow the procedure which is a very good guideline to resolving disputes."
He says once negations come to a halt, parties need to follow all the laid down procedures so as to unlock the deadlock.
"I know once the strike commences, you get a right but that does not absolve you from the omission. As an employer, as soon as there is an indication that things are getting out of hand, you resort to the mechanism under section 62 which allow the matter to be resolved and you have not done that for the past many years when a strike has always been called for," he said.
"All the issues in the CBA were resolved but when you have one thing that is sticking out, you have two options. You agree that you cannot agree on this issue and decide to refer it to a conciliator or to court and that is what we do every day here. Whenever CBAs get into a stalemate, the parties say okay, we have agreed on all these issues, let us register them so that meanwhile we may refer this one issue to the Industrial Court. I am yet to see any of you - the two unions -and the employer do that. Instead you go on strike," he said.
On Thursday, the government and teachers dug in with the Teachers Service Commission warning of individual disciplinary action against the striking teachers.
TSC chairperson Lydia Nzomo instructed County Education Directors to undertake a daily headcount of teachers to ascertain those who boycott work.
But in a swift rejoinder, the Kenya National Union of Teachers insisted that the teachers strike is still on and that tutors will not be intimidated.
KNUT Secretary General Wilson Sossion described the TSC statement as misguided and vowed that they would not be cowed.
http://allafrica.com/stories/201501091464.html
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