The High Court has declined to lift orders suspending the implementation of a Teachers Service Commission (TSC) circular regulating teachers’ conduct on social media, allowing the suspension to remain in force as a legal challenge proceeds.
In a ruling delivered on Thursday, October 29, 2026, the court dismissed an application by TSC seeking to overturn the conservatory orders that had temporarily stopped the commission from implementing Circular No. 14/2026.
The decision means teachers remain protected from enforcement of the disputed circular while the substantive petition is pending before the court.
The case centres on concerns that the directive, which was issued in August 2026, did not clearly define the online behaviour that could expose teachers to disciplinary action.
The petitioner, Fredrick Ochieng Oduory, challenged the circular, arguing that it could interfere with teachers’ constitutional right to freedom of expression and give the commission excessive powers to regulate their online activities.
Why the High Court Maintained the Suspension
In its ruling, the court found that the petitioner had established a prima facie case raising substantial constitutional questions about the clarity and implementation of the TSC directive.
The judge observed that the circular did not sufficiently identify or explain the specific conduct that could result in disciplinary action against teachers.
The court stated that the lack of clear definitions could create uncertainty and leave teachers unsure about which social media activities might attract punishment.
It warned that broad and unclear restrictions could give the commission excessive discretion when determining what amounts to unprofessional online behaviour.
The judge consequently declined to lift the existing conservatory orders, finding that doing so at this stage could undermine the issues raised in the substantive petition.
What the Disputed TSC Social Media Circular Sought to Regulate
TSC issued Circular No. 14/2026 on August 13, 2026, under the title Prohibition of Unprofessional Conduct on Social Media Platforms and Cyberbullying.
The directive sought to address concerns about teachers’ online behaviour, including cyberbullying, harassment, intimidation and the sharing of offensive material.
The commission’s position was that teachers should maintain professional standards not only in classrooms and school environments but also when using digital platforms.
Social media platforms such as Facebook, TikTok, YouTube and other online communication channels have become important spaces for public discussion, entertainment, education and professional engagement.
However, the commission’s attempt to regulate teachers’ conduct online raised questions about where professional discipline ends and constitutional freedom of expression begins.
The court’s latest decision keeps the implementation of the disputed circular suspended as those questions are considered.
Court Raises Concerns Over Teachers’ Freedom of Expression
A central issue in the petition is Article 33 of the Constitution of Kenya, which protects freedom of expression.
The petitioner argued that the circular could restrict teachers’ ability to express themselves on social media, particularly because it allegedly failed to provide sufficiently precise definitions of prohibited conduct.
The court observed that any restrictions on constitutional rights must meet the requirements set out under Article 24 of the Constitution.
Article 24 provides that a right or fundamental freedom may only be limited by law, and that the limitation must be reasonable and justifiable in an open and democratic society.
This means that restrictions must have a proper legal foundation and must satisfy constitutional standards.
The court’s observations do not mean teachers are exempt from professional responsibilities when using social media. Rather, the case concerns whether the disputed circular provides a sufficiently clear and lawful basis for the restrictions it seeks to introduce.
Public Participation Also Emerges in TSC Case
The petition also questions the process through which TSC introduced the circular.
The petitioner argued that the commission issued the directive without conducting adequate public participation or consulting teachers and other affected stakeholders.
The court noted that TSC had not disputed the absence of stakeholder consultation, raising questions about compliance with Article 47 of the Constitution and the Fair Administrative Action Act.
Article 47 guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair.
The Fair Administrative Action Act provides further requirements governing decisions made by public authorities.
The question of whether TSC followed the required procedures when issuing the circular is therefore among the issues awaiting determination in the case.
What TSC Told the Court
TSC opposed the application challenging its circular and maintained that it had acted within its constitutional and statutory mandate to regulate the teaching profession.
The commission argued that it had a responsibility to maintain professional standards and address misconduct involving teachers, including behaviour that takes place online.
Its position was that the circular was intended to reinforce existing professional obligations rather than create an entirely new system of disciplinary offences.
However, the court declined to lift the suspension, allowing the constitutional questions raised by the petitioner to proceed to the next stage.
The dispute therefore places two important considerations before the court: the commission’s responsibility to regulate the teaching profession and teachers’ constitutional rights when participating in online discussions.
What the Court’s Decision Means for Teachers
The latest ruling has an immediate implication for teachers across Kenya because the suspension of the disputed circular remains in force.
Teachers should understand that the decision is not a blanket permission to engage in cyberbullying, harassment, intimidation, unlawful online conduct or other forms of professional misconduct.
Existing laws and professional regulations continue to apply.
The court also observed that the existing legal framework provides mechanisms for dealing with professional misconduct, whether it occurs online or offline.
For teachers, the important distinction is that the disputed Circular No. 14/2026 remains suspended, but other lawful professional and legal obligations have not automatically disappeared.
Teachers should therefore continue exercising caution when sharing information online, particularly content involving learners, colleagues, schools and confidential institutional matters.
When Will the TSC Social Media Case Be Mentioned Again?
The matter is scheduled for mention on February 3, 2027, when the court is expected to give further directions on the proceedings.
The court also directed parties that had not filed their responses to the petition to submit them before the next appearance.
The substantive petition will determine the broader constitutional questions surrounding the circular, including its legality, clarity, impact on freedom of expression and compliance with public participation requirements.
Until that process is concluded, the suspension orders remain in force.
Final Decision on TSC Circular Yet to Be Made
The High Court’s October 29 decision does not amount to a final declaration that TSC’s social media circular is unconstitutional.
Instead, it preserves the existing suspension while the court considers the petition challenging the directive.
The case is expected to remain important to teachers, education stakeholders and public institutions because it touches on the regulation of professional conduct in an increasingly digital society.
For now, teachers should take note that the disputed circular remains suspended, while existing laws and professional standards governing misconduct continue to apply.
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