The observation was made by Lady Justice Monica Mbaru in a case filed by the Teachers Service Commission (TSC) which is accusing the Kenya National Union of Teachers of violating the law in the ongoing strike.
TSC insisted that KNUT did not serve it with a notice as required by law before urging teachers to strike, paralysing learning in all public schools.
On Thursday, KNUT and TSC filed counter accusations on the legality of the industrial action after failure to effect a pay rise.
Through Oraro and Company Advocates, the union which filed contempt of court proceedings against the commission on Thursday morning sought orders compelling the government to pay teachers, failure to which the TSC Chairperson and Chief Executive Officer should be committed to jail.
In the suit set to be heard on September 21, KNUT also wants both the Education and Treasury Cabinet Secretaries arrested should the payments not be made.
While the union is accusing TSC of failing to honour court orders to increase the teachers pay, TSC argues that the strike is illegal because no notice has been served to them to date.
According to the union, the strike could have been avoided had TSC complied with the court order and paid teachers.