IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: J. MOHAMMED, TUIYOTT & OCHIENG, JJ.A.)
CIVIL APPEAL NO. E403 OF 2024
BETWEEN
TEACHERS SERVICE COMMISSION ……………………. APPELLANT
AND
THE FORUM FOR GOOD GOVERNANCE & HUMAN RIGHTS ………………………………………..1ST RESPONDENT CABINET SECRETARY, MINISTRY OF EDUCATION ………………………… 2ND RESPONDENT
THE HON. ATTORNEY GENERAL ………………… 3RD RESPONDENT
(Being an appeal against the judgment and decree of the Employment and Labour Relations Court at Nairobi (Byram Ongaya, J.) delivered on 17th April 2024 in ELRC No. E223 of 2023)
JUDGMENT OF THE COURT
[1] This appeal discusses the constitutionality and or legality of an internship programme conceived and implemented by the Teachers Service Commission (TSC or appellant).
[2] In a circular TSC/DS/RECRUIT/ADVERT/18A/VOL.II dated 4th January 2023, TSC invited, trained and registered teachers to apply for 35,550 posts for teachers and teacher interns
distributed as follows:
(i) 9,000 secondary school posts on permanent and pensionable terms to be posted to junior secondary schools.
(ii) 1,000 primary school posts on permanent and pensionable terms.
(iii) 21,550 secondary school posts on internship to be posted to junior secondary schools.
(iv) 4,000 primary school posts on internship.
[3] The constitutionality of this advert and the internship programme was put to test before the Employment and Labour Relations Court (ELRC) at Nairobi in Petition No. E223 of 2023 in a petition brought by The Forum for Good Governance and Human Rights (herein the 1st respondent). After hearing the petition on the basis of affidavit evidence and written submissions, the trial court (Byram Ongaya, J. (as he then was)) returned the following findings, germane to this appeal:
(i) Interns are employees for purposes of the Law of Employment and Labour Relations as section 2 of the Employment Act defines an employee to include an apprentice or indentured learner.
(ii) Trained teachers who are duly registered by TSC could not be employed as interns and the teachers so employed were submitted to unfair treatment and discrimination as they were denied the terms and conditions of service that TSC ordinarily paid teachers it employed at entry grade.
(iii) TSC had not established a constitutional or statutory mandate to employ teachers known as interns and its constitutional and statutory mandate was to employ registered teachers.
(vi) It is not possible to engage teachers in the disguised form of interns with no approved establishment.
(v) The petitioner had established that the disguised employment of qualified teachers as interns amounted to unfair labour practices under Article 41(2)(a) and (b) of the Constitution.
[4] This first appeal, which challenges those findings, rests on the interpretation of the law as the facts are common ground. The appeal was argued by way of written submissions with oral highlights at plenary by Mr. Sitima learned counsel on record for TSC appearing together with Mr. Langat, Ms. Caroline Gichuhi, learned counsel on record for the 1st respondent and Mr. Odukenya learned state counsel appearing for the 2nd and 3rd respondents. The latter simply supporting the appeal without making any arguments.
[5] TSC asserts that it has an inherent constitutional mandate under Article 237 (2) and statutory mandate under section 11 of the Teachers Service Commission Act (TSC Act) to recruit, engage, employ, assign and retain any person registered as a teacher on terms and conditions it deems appropriate. It has the explicit mandate for teacher management in the Country, including reviewing standards of education and training, recruiting and employing registered teachers, assigning teachers, exercising disciplinary control, and terminating employment.
[6] It is submitted for TSC that the Teacher Internship Policy Guidelines, 2019, defines an ‘internship’ as a period of work experience offered by the Commission to give newly qualified teachers an opportunity for guided practice to acquire and demonstrate teaching knowledge, skills, and dispositions required in the teaching service for a period not exceeding 12 months and its aim is to offer the intern practical work experience.
TSC maintains that an internship at the place of work is a common universal practice across various professions, with foundations in law and employment market practices, and is crucial for economic, social, and political development.
The Employment Act 2007 and the Industrial Training Act are cited to support the legal basis for apprenticeship and indentured learners, which, it is argued aligns with the concept of internship. Similarly, TSC cites the Working Paper No. 240 of 2018 from the ILO Employment Policy Department which recommends that compensation for internship varies depending whether the intern is paid or unpaid and such remuneration is determined by the nature of the intern’s responsibilities within the workplace.
7] TSC argues that the advertisement and engagement of teacher interns was designed to benefit unemployed teachers with relevant pre-employment qualifications, and that the nature of this engagement is purely ‘internship’, distinct from a standard contract of service under the Employment Act.
Consequently, it is contended, the terms of engagement for interns cannot be strictly or exclusively directed by the minimum terms of service applicable to an employee drawing a wage or salary.
Referencing court decisions: Nakuru Civil Appeal No. 122 of 2015: Teachers Service Commission v Thomas Joseph O. Onyango [2019] eKLR, the TSC reiterates its constitutional mandate to assign teachers or services to any public school or institution; Nairobi High Court Petition 2 of 2012: Charles Omanga & another v Independent Electoral & Boundaries Commission & another & another [2012] KEHC 5457 (KLR) to support its position that equality means parity of treatment under parity of conditions and does not connote absolute equality; and Civil Case No.1351 of 2002: RM Suing Thro Next Friend JK & 2 others v Attorney General (Civil Case 1351 of 2002) [2006] KEHC 3485 (KLR) quoted in Petition 102 of 2011: Federation Of Women Lawyers Kenya (Fida-K) & 5 Others v Attorney General & another [2011] eKLR for the proposition that equal provisions do not require things which are different in fact or in law to be treated as though they are the same and that there is nothing wrong in providing differently in situations that are factually different.
TSC seeks to differentiate an intern, who is an ‘inexperienced’ teacher with no actual and practical work from teachers under the employment of TSC on permanent and pensionable terms who have attained work experience and possess extensive and practical post-training knowledge on curriculum delivery methodology and thus the engagement as interns cannot amount to an act of discrimination.
It follows that the terms of service cannot be altered to permanent and pensionable as the parties are bound by the terms of an engagement contract, and courts should not intervene to rewrite the terms in the absence of coercion, fraud, or undue influence.
In concluding, TSC maintains that according to known best practices and the right to recruit and employ registered teachers, neither the Constitution nor Statute law has barred it from engaging persons of whatever status from carrying out the functions and roles provided by the law and hence the Court should not impose or dictate the nature of engagement it should have with other parties especially when it accords to best labour practice and well established legal framework and policies.
[8] A preliminary issue had been taken up by the 1st respondent regarding the inclusion of a letter dated 2nd May 2018 in the Record of Appeal (pages 167-172). Although this was admittedly introduction of new evidence without leave, counsel for the 1st respondent abandoned the objection at plenary hearing. As will be apparent shortly nothing turns out on the contents of this letter and has no bearing on the outcome of this appeal.
[9] On the substantive issues, the 1st respondent affirms that a teacher as defined by section 2 of the TSC and Article 237(2)(a) of the Constitution, is a person trained and registered by TSC. The impugned circular purported to engage 21,550 registered teachers as ‘interns’ who were, in fact, qualified and licensed to practice as teachers.
While acknowledging the TSC’s mandate, the 1st respondent stresses that such mandate must be exercised within the confines of the Constitution and the law. ELRC’s finding that TSC has no constitutional mandate to employ and deploy a teacher except as provided by Article 237(2) of the Constitution is supported as a correct interpretation of the law.
[10] It is emphasised that TSC engaged two sets of teachers for JSS – 9,000 on permanent and pensionable terms and 21,550 as interns yet both groups possessed similar qualifications. Further, that TSC did not deny that the 9,000 teachers did not undergo the internship program. Thus, TSC failed to provide any policy document to show how it shifted the training programs of teachers which are usually undertaken by chartered
Universities with the approval of the Commission of Higher Education to include a further requirement to be undertaken by graduates from those higher learning institutions. Furthermore, that there was no evidence that there were deficiencies from those training programs which required the bridging by way of internship.
There was also no evidence of communication to the affected teachers about the scope of this new training. The 1st respondent views this as a fundamental shift in teacher training without proper justification or communication. The 1st respondent asserts that the TSC’s action of engaging 21,550 teachers as interns while 9,000 with similar qualifications were made permanent and pensionable amounted to discrimination and unfair labour practices.
[11] Regarding grounds of appeal which the 1st respondent contends introduces new facts and matters not pleaded before the superior court below is the information by counsel for TSC that 46,000 interns have been absorbed as teachers. The 1st respondent submits that the learned trial Judge did not order TSC to employ the teachers disguised as interns; instead, he declined to issue orders for mandamus, recognizing that such an order would usurp the appellant’s powers.
TSC failed to tender material information such as internship programs, plans, policies, or financial implications before the superior court below. The 1st respondent asserts that since TSC did not discharge its burden, it should not be allowed to convert this forum into one to prosecute its case afresh.
The learned Judge only issued prohibition orders against engaging teachers (as defined by the TSC Act and Constitution) as interns, and mandated TSC to recruit, employ and deploy only teachers meeting the constitutional criteria. The 1st respondent submits that TSC’s allegations that the judgment usurped its constitutional mandate or independence are unsupported and are contemptuous. As these issues were not before the trial Judge, he cannot be legitimately accused of error.
[12] Further, in scrutinizing the replying affidavit dated 6th March 2024 filed by TSC, the 1st respondent argues that TSC failed to understand its constitutional mandate under Articles 237 and 249, surrendering its independent stature to the national Executive instead of providing checks and balances. TSC is accused of descending into policy development without the necessary capacity.
The 1st respondent emphasizes that TSC has not challenged the unconstitutionality of engaging qualified and registered teachers as interns. TSC has also not specified which provisions of the Constitution or law the learned Judge misinterpreted or misapplied, rendering its claims as mere generalities. The 1st respondent supports the learned Judge’s determination that the teachers were substantive employees disguised as interns to allow TSC to escape its employer duties.
We are asked to note that TSC did not attack this finding in its Memorandum of Appeal. The 1st respondent warns that if the internship contract is allowed and or given a different meaning, it could amount to engaging these teachers in an undignified trade and puts them to serve in servitude or slavery, contrary to Articles 28 and 30 of the Constitution.
Finally, the 1st respondent asserts that TSC did not provide material to controvert the evidence tendered by the 1st respondent. In its view what TSC now alleges to be evidence were merely pleadings. The 1st respondent concludes by asserting that the trial judge’s decision was purely grounded on law and material facts tendered before the court and that the decision was proper and should not be interfered with.
[13] Before we isolate the issues that we are called upon to determine, we commence on the premise that as found by the ELRC and not contested in this appeal is that, generally, interns are employees for the purpose of the Law of Employment and Labour Relations. Indeed, there have been a string of decisions restating that position. See for example Ndwiga v Principal Secretary, Ministry of Health & another (Constitutional Petition 137 of 2021) [2024] KEELRC 2703 (KLR) where the ELRC (Ocharo Kebira J.) noted that: “The term “Intern’’ and “Internship” have been defined in various ways, often depending on the field in which they are used. An Intern is usually understood to be “a person who is employed in an organization in a structured and managed programme that provides work experience for an agreed period….… Further, section 2 of the Act, defines an employee as; ‘Employee means a person employed for wages or a salary and includes an apprentice and indentured learner.”
No doubt, for purposes of Employment and Labour law, interns are employees. In the ruling hereinabove mentioned Mbaru J, had the opportunity to state aptly that; “The petitioners are therefore stricto sensu not students. They have completed their college and council exams and been posted by the 1st respondent for placement as Clinical Officers for internship and awaiting the Council confirmation. The drafters of the Employment Act addressed such a scenario under section 2 of the Employment Act and indeed parliament passed it with approval when an employee was defined to include such an Intern, Learner, bonded of salaried person……”
[14] Similarly, in James Onduko v Computer For School Kenya [2014] KEELRC 800 (KLR) the ELRC (Maureen Onyango J.) was of the view that ‘Internship is by law regarded as employment’ and that ‘an intern, being either an apprentice or indentured learner, is by definition an employee’.
[15] The substantial issue that requires our determination is whether the law permits a trained and qualified teacher who is duly registered by TSC to be an intern and if so, under what circumstances. Further, depending on the answer we reach on those two related issues, whether the impugned circular was in conformity with the Constitution and statute.
[16] Under Article 237(2)(b) one of the functions of TSC is to recruit and employ registered teachers. Under section 2 of the TSC Act ‘teacher’ means a person who has been trained as a teacher as provided for in law and registered as a teacher. While section 26 of the Teachers Service Commission Act (TSC Act) is on qualification for registration as a teacher and reads: “26. Qualifications for registration as a teacher
A person shall be eligible to be registered as a teacher if such person—
(a) is of good moral character; and
(b) holds a relevant certificate issued to him or her under any law relating to education and training or regulations made under this Act.”
[17] Clearly, for a teacher to be registered then he or she must have trained and qualified as a teacher. As a corollary, the mandate of TSC to recruit and employ registered teachers under section 237(2)(b) is a mandate to recruit and employ teachers who are not just trained and qualified as teachers, but also duly registered by it as a teacher.
[18] Paragraph 19 of the petition is, in our view, a central plank to the case of the 1st respondent. It is pleaded: “Teaching is a career, just like any other careers; therefore it is anchored on known and tested principles and concepts. For a teacher to qualify as such, he undertakes practical methodological teaching skills both inside and from without so as to attain competency. Teaching practice as one such requirement, which is posted as an academic credit before a student-teacher is pronounced to qualify. This is also what is referred to the disciplines like medical and law as internship. I further state that the 1st respondent is not a trainer of teachers and cannot purport to change the training discourse of teachers in this country unilaterally.”
Dated and delivered at Nairobi this 27th day of February 2026.
JAMILA MOHAMMED
……………………………… JUDGE OF APPEAL
F. TUIYOTT
……………………………… JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR.