Implications of ruling on hiring teacher interns after court nullification

The court said the TSC contravened the provisions of the Constitution when it recruited and employed duly trained, qualified teachers as interns.

The Teachers Service Commission has twice lost a court battle seeking to justify the hiring of trained and registered teachers as interns under similar key performance expectations as permanent and pensionable tutors, but with inferior pay.

The first blow was delivered on April 17, 2024, by Justice Byram Ongaya, who ruled that the rights to fair labour practices and remuneration of the teachers recruited and employed as interns were violated.

The TSC had, in January 2023, recruited 35,550 teachers and teacher interns, including 9,000 on permanent and pensionable terms and 21,550 on internships to be posted to junior secondary schools.

Another 1,000 were hired on permanent and pensionable terms, and 4,000 on internship and deployed to primary schools. The internship posts were on one-year contracts with a Sh20,000 stipend.

More intern teachers were hired during the pendency of an appeal filed by TSC, bringing the total to over 44,000 intern teachers.

The court said the TSC contravened the provisions of the Constitution when it recruited and employed duly trained, qualified teachers as interns.

The verdict followed a petition filed by the Forum for Good Governance and Human Rights at the Employment and Labour Court in Nairobi.

TSC was listed as the first respondent, the Education Cabinet Secretary as the second respondent, and the Attorney General as the third respondent.

In his sworn affidavit, the Forum for Good Governance and Human Rights secretary general Samson Ongera said the hiring process was discriminatory.

"Teachers are employees in the public service, and the TSC Act must adhere to the values and principles of appointment of public servants in the public service as provided for in the Constitution," he told the court.

The second affidavit in support of the petition was sworn by Edwin Oganga, a Bachelor of Education degree holder who was employed at the time as an intern teacher at Enkong Narok Primary School within Kajiado County.

He told the court that he was deployed to teach Computer Science, Integrated Science, Social Studies, CRE, Health Education and Life Skills, whereas in the contract his subjects were identified as History or Christian Religious Education.

In its replying affidavit, TSC argued that the internship programme was not a job per se but was meant to complement newly qualifying teachers with practical experience and, as such, teacher interns are not employees but "purely a voluntary relationship that attracts an ‘allowance’ and not a ‘salary’."

"The petition herein is misleading by creating perceptions of discrimination, and the same should be struck out since it does not meet the thresholds set under the Constitution and the rules of the court," TSC said in an affidavit sworn by Antonina Lentoijoni, acting director in charge of teacher staffing.

Justice Ongaya said the rights to fair labour practices and remuneration of the teachers recruited and employed as interns were violated.

"The order of prohibition hereby issued stops the 1st respondent, henceforth, from recruiting and employing student-teachers as teachers and recruiting and employing interns, as its constitutional and statutory mandate extends only to the employment of duly qualified and registered teachers," Justice Ongaya ruled.

TSC appealed the ruling, but a three-judge bench of the Court of Appeal, in its verdict on February 27, 2026, agreed with the High Court ruling and dismissed the application.

The bench said TSC, in its own affidavits, confirmed that the teachers were not learners on teaching practice, as is the well-established tradition in teaching, where trainee teachers are deployed to schools for experiential in-class exposure.

"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," the court ruled.

"Thus, the court finds that the teachers...were unfairly treated and discriminated against as they were denied the terms and conditions of service the 1st respondent ordinarily paid to teachers it employs at entry grades."

On March 11, Education CS Julius Ogamba told the Senate the ministry and TSC are studying the ruling to come up with the next steps to ensure alignment with the ruling.

Among the implications of the ruling, Ogamba said, are costs arising from compensating the teachers for the period worked under unfair pay.

"The evidence is that they were employed to teach as duly qualified teachers. The court finds that they were not “indentured servants” or “apprentices”," the court said.

Ogamba said all junior school teachers are graduate-trained and are treated as secondary school teachers under Career Progression Guidelines 2018, meaning any compensation will be at the level of permanent and pensionable terms.

"Once we determine the extent of the legal and financial implication, we will then move as required to ensure we obey that court ruling."

But he warned: "Some interns will be discriminated against because some have served for two years."

Another implication of the ruling is that the government's strategy to plug the teacher shortage, which stands at about 100,000, has suffered a big blow, sending officials back to the drawing board amid rising demand for more teachers, particularly driven by the need for 58,590 new teachers for the senior school transition.

While over 76,000 teachers had been hired by December 2025, acute deficits remain, especially in STEM subjects where 35,111 teachers are needed in senior school.

At 1:26, Kenya was one step away from attaining the UNESCO-recommended teacher-student ratio of 1:25 to ensure quality education, but this gain now hangs in the balance unless the intern teachers are absorbed on permanent and pensionable terms.

The ruling also means that the employment contracts of the teachers stand cancelled, throwing thousands of trained graduates back into a state of sudden unemployment.

Still, TSC has room to appeal the decision at the Supreme Court, and during the pendency, the teacher intern contracts will remain effective pending the apex court's determination of the matter.