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.”
[19] The petition posited that in the teaching career, teaching practice is one of the academic requirements which a studentteacher must attain before he/she is pronounced to qualify. The 1st respondent’s position is that teaching practice is equivalent to internship in the discipline of medicine and law. Teaching practice undertaken during the training of a teacher is no doubt outside the mandate of TSC which excludes any pre-registration teacher training.
[20] TSC retorted that the purpose of internship was to complement newly qualified teachers with practical experience, distinguishing it from “attachment” or teaching practice as internship “presupposes possession of necessary theoretical competencies of a trade save, the practical and on job skills, which are the primary concern of the teacher
internship training”. It also asserted that that key objective is to improve teacher competencies and competitiveness.
[21] The Constitution creates various Commissions and reposes in them different mandates. It behooves on everyone, not in the least the Courts, a duty to interpret the law in a manner that supports, protects and facilities the Commissions in carrying out those mandates. An interpretation that undercuts or unreasonably constricts a mandate is itself unconstitutional. Yet it is not to say that any overreach of mandate or authority is to be tolerated or countenanced.
This was explained by this Court in Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR and cited to us by TSC. There, the Court was of the opinion that; “Where the Constitution had reposed specific functions in an institution or organs of State, the courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes, because those organs have expertise in their area of mandate, which the courts do not normally have. We must accordingly shun invitation to dabble in matters of national economic policy, when what is placed before us are the views of only two players in one industry.”
[22] It is on this footing that the rival positions must resolved.
[23] If indeed the objective and design of the internship programme was as explained by TSC, then we think that this would fall squarely within its mandate and aligns to its functions. In section 11 (c), TSC is enjoined to ensure that teachers comply with the teaching standards prescribed by it. For purposes of carrying out that specific mandate section 35(1) and (2)(a) provides;
- Compliance with teaching standards
(1) The Commission shall take all necessary steps to ensure that persons in the teaching service comply with the teaching standards prescribed by the Commission under this Act.
(2) For purposes of subsection (1), the
Commission shall—
(a) require every registered teacher to undertake career progression and professional development programmes as may be prescribed by regulations
made under this Act;
[24] Professional development programmes could include post registration internship. That said, any internship policy conceived and implemented by TSC must not be an instrument of oppression or discrimination and must conform with constitutional imperatives not in the least be a product of public participation. It must not be a devise to postpone the recruitment of teachers because of resource constraints. It must set out the criteria for those who are eligible for internship different and distinct from those eligible for recruitment on a permanent and pensionable basis. The criteria must be transparent and not be discriminatory. It must align to best labour practices in the area of internship. It must be able to withstand the cynicism that it is merely a scheme by TSC to avoid contracting registered teachers on permanent and pensionable basis.
[25] Having found answers to the substantial questions, the narrow one is easier to deal with. Reference was made by counsel for TSC both before the ELRC and us to Teacher Internship Policy Guidelines 2019 said to have been formulated by TSC regarding the teacher internship. This document was not produced and is not part of the evidence before the two courts. Although TSC attempted to rely on the supposed 2019 Guidelines to justify invitation for the impugned internship, those Guidelines could obviously not be subjected to a test through the constitutional or statutory lenses as they were not before the ELRC and so there is no knowing whether it complies with the law.
[26] Fundamentally still, the circular inviting the two sets of applications; permanent and pensionable, and interns did not differentiate qualifications to be met by those for either category. While TSC defended the internship programme, it did not set out the criteria that differentiated those teachers who were to be recruited as interns as against the lucky lot on permanent basis. As there is no debate that the latter enjoyed better terms and conditions of service, than their counterparts, who would be equally qualified and just as deserving would fall afoul to discrimination.
Discussing discrimination, this Court in Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] KECA 718 (KLR) cited the case of Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] KECA 329 (KLR) which held as follows: “Arbitrary discrimination in the workplace is outlawed at the highest level of the Constitution and has always been. The appellants had denied in their pleadings that there was any and the burden was shifted to the respondents to establish it. In the case of Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR this Court examined at some length the issue of discrimination and stated in part as follows:-
“Now, although the allegations levelled against the appellant happened before the promulgation of the current Constitution, arbitrary discrimination was still prohibited during the material times by section 82 of the former Constitution. Moreover, Kenya had also ratified a plethora of international instruments that prohibit racial discrimination among them the United Nations Convention on the Elimination of all forms of Racial Discrimination.
Further, section 5 of the Employment Act, 2007 provides inter alia:
“(1) (a) ….
(b) ….
(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
(3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee –
(a) On grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy,
marital status or HIV status;
(b) In respect of recruitment, training, promotion, terms and conditions of employment, termination of employment and other matters arising out of employment.
(4) It is not discrimination to –
(a) take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;
(b) distinguish, exclude or prefer any person on the
basis of an inherent requirement of a job;
(c) employ a citizen in accordance with the national employment policy; or
(d) restrict access to limited categories of employment where it is necessary in the interest of State security.
(5) An employer shall pay his employees equal remuneration for work for equal value.
(6) An employer who contravenes the provision of the section commits an offence.
(7) In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specified in this section.
(8) For the purposes of this section –
(a) “employee” includes an applicant for
employment;
(b) “employer” includes an employment agency;
(c) an “employment policy or practice” includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, termination of
employment and disciplinary measures.”
Further, fairness requires that people doing similar work should receive equal pay. The principle has however extended to an analogous situation requiring that work of equal value should also receive equal pay as is claimed in the present appeal. …..In claims of this nature, where the claimant invokes the principle of equal pay for equal work the claimant must establish that the unequal pay is caused by the employer discriminating on unlawful grounds. It was observed in Louw vs Golden Arrow Bus Services (Pty) Ltd [1999] ZALC166 that discrimination on a particular ‘ground’ means that the ground is the reason for the unequal treatment complained of by the claimant. As discussed by the writer, Adolph A.
Landman in his article The Anatomy of Disputes about Equal Pay for Equal Work,
“The mere existence of disparate treatment of people of, for example, different races is not discrimination on the ground of race, unless the difference in race is the reason for the disparate treatment. Put differently, it must be shown that the difference in salaries is because of sex, gender, race, and so on.”
………The respondent had to establish that the unequal pay was caused by the employer
discriminating on impermissible grounds.”
[27] Similarly, the Apex Court in Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) had a lengthy discussion on the definition of discrimination and cited with approval the case of Peter K Waweru v Republic
[2006] eKLR and held as follows;
“48. Black’s Law Dictionary, 10th Edition defines discrimination as “failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” However, it must be appreciated that not all cases of distinction amount to discrimination. Learned author Robert K Fullinwider; in The Reverse Discrimination Controversy 11-12 (1980) states;
“The dictionary sense of discrimination is neutral while the current political use of the term is frequently non-neutral, pejorative. With both a neutral and a non-neutral use of the word having currently, the opportunity for confusion in arguments about racial discrimination is enormously multiplied. For some, it may be enough that a practice is called discriminatory for them to judge it wrong. others may be mystified that the first group condemns the practice without further argument or inquiry. Many may be led to the false sense that they have actually made a moral argument by showing that the practice discriminates (distinguishes in favor of or against). The temptation is to move from X distinguishes in favor of or against to X discriminates to X is wrong without being aware of the equivocation involved.”
- Discrimination is also defined in the International Labour Organisation
Discrimination (Employment and Occupation)
Convention, 1958 (No 111) as follows: –
“For the purpose of this convention the term
discrimination includes – any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; such other distinction exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the member concerned after consultation with representative employers’ and workers’ organizations where such exist, and with other appropriate bodies –
Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”
- In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows: “Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex …. a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”
- From the above definitions, it is clear that discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex disability etc or due to unfair practice and without any objective and reasonable justification.”
[28] In the end we endorse the holding of the trial court that:
“To answer the 2nd issue, the Court returns that while the teachers employed by the 1st respondent were styled as interns, they were actually trained teachers and duly qualified as registered by the 1st respondent as such. The evidence is that they were employed to teach as duly qualified teachers. The Court finds that they were not “indentured servant” or “apprentice”. The Court finds that designating the teachers as interns was obviously designed to escape the inescapable effect of the employment relationship and legal safeguards.
Thus, the Court finds that the teachers subject of the instant petition and as urged and submitted for the petitioner were unfairly treated and discriminated as they were denied the terms and conditions of service the 1st respondent ordinarily paid to teachers it employs at entry grades. While the 1st respondent is entitled to the prerogative to define the models of the terms and conditions of teachers it employs registered teachers, it is not open for the 1st respondent to disguise employment of some of the teachers with the adverse impact of emplacing them to disadvantageous position or terms of service.
There is the freedom to contract but the chains of the right to fair labour practices envisaged in Article 41 immediately come to play. The respondents cannot be heard to validly advance that the affected teachers agreed to the advantageous terms. The respondents by their own affidavits have confirmed that the teachers in issue were not learners as it happens say in the well-established teaching practice where trainee teachers are deployed to schools for an experiential exposure to teaching.
The Court holds that employment is a fact established by evidence and disguising employment to escape the effect of employment laws and the constitutional or statutory safeguards of employers and employees cannot pass the chains of social justice in employment or work relationships. Thus, the teachers in issue were indeed employed by the 1st respondent despite disguising them as interns.”
[29] In the upshot, we hold that while TSC can employ trained, qualified and registered teachers as interns, TSC can only do so in accordance with an internship policy that passes constitutional muster. Only to that extent does the appeal succeed. We uphold the declaration by the ELRC that circular TSC/DS/RECRUIT/ADVERT/18A/VOL.II dated 4th January 2023 and subsequent internship contracts contravened the provisions of the Constitution.
[30] There shall be no order as to costs.
[31] The judgment is delivered under Rule 34(4) of the Court of Appeal Rules as Hon. Mr Fred Ochieng, JA passed on before delivery of the judgment.
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.
