REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E256 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
NEHEMIAH KIPKORIR……….………….……………….... PETITIONER
VERSUS
TEACHERS SERVICE COMMISSION…..………………. RESPONDENT
JUDGMENT
The petitioner, an intern teacher instituted the instant petition dated 4th December 2025 alleging that he was engaged on 18th November 2024 under a fixed term contract for 12 months to teach Chemistry and Mathematics but when he reported to Chikomani Junior secondary school, he was to teach mathematics. Integrated Science, Social Studies, CRE and Cretive Arts and Sports. That the Respondent vide advertisement dated 20th August 2025 imposed internship on teachers for 2 years and extended the petitioners term by another 12 months effective 1st January 2026 at Kshs.20,000.00 per month.
The petitioner characterises the 2 years internship as an unfair labour practice as intern teachers performed full teaching duties similar to teachers employed on permanent and pensionable terms.
The petitioner cited Articles 1, 2(1), 3(1), 4(2), 10, 12(1)(a), 19, 20(3), 21(1), 24(1), 27(1), 28, 29, 35(b), 41, 47, 162(2), 230, 237, 249, 258 and 259 of the Constitution as the foundation of petition.
According to the petitioner, the Respondent violated the national values and principles of governance right to fair labour practices and right to equality.
The petitioner prays for:
(a) Declaration that the Respondents decision to extend the internship to 24 months is unlawful unconstitutional, ultra vires and void.
(b) Declaration that that the unilateral extension violated Articles 27, 41, 47, 10 and 232 of the constitution.
(c) A Prohibitory order stopping the Respondent from recruiting and employing student-teachers as teachers and recruiting and employing interns as its constitutional and statutory mandate spreads only to duly qualified and registered teachers.
(d) That the extension of internship from 12 to 24 months without consulting major stakeholders is a violation of Article 10 to the Constitution.
(e) A Declaration that the extension of internship from 12 to 24 months was done following a presidential decree is a violation of Article 249 (1) (a), 249 (2) (b) of the Constitution of Kenya.
(f) An order of certiorari quashing the Respondent’s decision imposing a two-year internship requirement.
(g) An order of prohibition restraining the Respondent from enforcing or implementing the two-year internship requirement.
(h) A mandatory order compelling the Respondent to honour the original 12 months internship contracts.
(i) An order directing the Respondent to consider interns who have satisfactorily completed 12 months for immediate absorption or transition to permanent and pensionable terms as per policy and law.
(j) General damages for violation of constitutional rights.
(k) Any other order that this Honourable court deems fit in the interests of justice.
(l) Costs of and incidental to this petition.
Respondent’s case
By a Replying Affidavit in opposition to the petition sworn on 19th December 2025, Dr. Lilian Wachira deponed that the Respondent conceptualized and implemented programme though internship programmes are used elsewhere and in this case it was intended to offer newly qualified teachers practical experience and had a constitutional and statutory basis.
That the programme was designed to improve teacher competences and competitiveness not guarantee employment and there was no expectation of employment and the interns were considered as “gratis personnel” as they were not employees of the respondent, cannot be recruited or accepted as substitutes for regular teachers, it is voluntary and are paid a stipend as opposed to salary.
The affiant deponed that the relationship between the interns and the Respondent was contractual not servitude and the interns were not discriminated.
That when the contractual relationship lapses the interns will go back home.
That the Respondent had already renewed the contracts of those willing and the Petition was related to NAIROBI CA.CA NO. E403 of 2024, and NAIROBI ELRC JR NO. E030 of 2024. The affiant further deponed that the petitioner had misrepresented genuine intentions.
Petitioner’s submissions
On extension of internship, counsel relied on the decisions in Kenya County Government Workers Union v County Government of Nyeri (2015) eKLR, for the proposition that an employer cannot vary the terms of a contract of employment unilaterally. The decision in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (K) (2017) eKLR was also relied upon.
On fixed term contracts reliance was placed on the Court of Appeal decision in Registered Trustees of the Presbyterian church of East Africa & another v Ruth Gathoni Ngotho-Kariuki.
As to whether the internship scheme violated the right to fair labour practices, counsel submitted that the scheme was intended to avoid constitutional and statutory provisions owed to qualified teachers on account that they teach the full load, multiple subjects and received a stipend of Kshs.20,000.00.
Reliance was placed on Kenya Plantation & Agricultural Workers Union v James Finlay (K) Ltd (2019) eKLR for the proposition that fair labour practices included protection from exploitative remuneration structures as was the Court of Appeal decision in Kenfreight (EA) Ltd v Benson K. Nguti (2016) eKLR on fairness and equity in employment relationships and D K Njagi Marete v Teachers Service Commission (2013) eKLR among others including the ILO Convention on equal remuneration and non-discrimination.
As to whether there was a breach of legitimate expectation, reliance was placed on the decision in Communications Commission of Kenya & 5 others V Royal Media Services & 5 others (2014) eKLR on the circumstances in which legitimate expectation arises and Keroche Industries Ltd v Kenya Revenue Authority to urge that extension of the internship defeated the expectation that it would be for 12 months.
As to whether the provisions of Article 47 of the Constitution were violated, counsel submitted that it was as the decision to extend the internship was made without consultation, notice or hearing.
Reliance was further placed on the decisions in Judicial Service Commission v Mbalu Mutava & another (2015) eKLR on procedural fairness and Suchan Investment Ltd v Ministry of National Heritage (2016) eKLR for the proposition that an administrative decision must meet the tests of legality, reasonableness and procedural propriety, to urge that the decision fell short of the test.
Counsel submitted that the Respondent had acted ultra vires citing the decision in Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd (2008) eKLR to urge that the respondent had no power to convert registered teachers to interns or extend the term of engagement.
Reliance was placed on Macfoy v United Africa Co Ltd (1961) 3ALLER 1169 on void acts and Republic v Public Procurement Administration Review Board & 2 others ex parte Pelt Security Services Ltd (2018) eKLR on external directives counsel submitted that the Respondent violated Article 10 and 232 of the Constitution on public participation.
Similarly, counsel submitted that the Respondent discriminated the interns as they were qualified teachers citing the decisions in Equal Rights v Attorney General (2012) eKLR and Forum for Good Governance and Human Rights v Teachers Service Commission & 2 others (2024) KEELRC 798.
Finally, counsel urged that the petitioner was entitled to the reliefs sought.
Respondent’s Submissions
As to whether the internship program violated the constitution and employment law, counsel urged that the program was intended to provide practical skills to those qualifying in the profession and was grounded in law and practice as it was anchored on the National Internship Policy and Guidelines for the Public Sector, the Teacher Internship Policy Guidelines 2019 and Section 2 of the Employment Act on the definition of an employee, to urge that the program is legitimate and beneficial.
Reliance was placed on the sentiments of the court in Teachers Service Commission v Thomas Onyango, Pevans East Africa Ltd v Chairman Betting Control & Licensing Board & 7 others (2018) eKLR to urge that the program was exclusively internship distinct from normal contract of service citing the decision in IK v D limited & KM.
As to whether the internship program treated the interns unfairly and discriminatory reliance was placed on the sentiment of the court in Peter K. Waweru v Republic on the concept of discrimination as were the decisions on Charles Omanga & another v Independent Electoral & Boundaries Commission & another and R. M Gao v Attorney General to submit that the existence of contrasting treatment of people does not amount to discrimination and the petitioner had not demonstrated that the program was unlawful.
As to whether the program should be elevated to a permanent relationship between the parties, counsel submitted that the duties of an intern were different from those of teachers and the petitioners had misunderstood the concept of internship.
Counsel, further submitted that the teacher internship program was voluntary and the terms were explicit and the court had no reason to interfere with the contractual relationship.
Reliance was placed on the decision in National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza on fixed term contracts and the decision in Vincent K. H. Ogada v AAR Health Care Holdings Ltd (2020) eKLR, for the proposition that it was not the business of courts to rewrite contracts mutually agreed by the parties and the court ought not to intervene.
Finally, counsel submitted that the petitioner was not entitled to the reliefs sought citing the decision in Teachers Service Commission v Kenya National Union of Teachers & 3 others on the Respondent’s source of funds.
Before delving into the issues for determination, it is essential to determine whether the Respondents Notice of Preliminary Objection dated 20th May 2026 is merited.
The Respondent contends that:
1. Petition is an abuse of court process bad in law devoid of merit and misconceived.
2. The court lacks jurisdiction to determine the petition as the facts and circumstances in the subject matter was fully heard and determined by a court of competent jurisdiction and the same is Res judicata thus denying the court jurisdiction to interrogate and determine the Petition.
3. The Petition is predicated on similar and related facts in NAIROBI ELRC NO. E223 OF 2023 The Forum for Good Governance and Human Rights v Teachers Service Commission and others (Supra) and NAIROBI C A NO. E403 of 2024 Teacher Service Commission v The Forum for Good Governance & Human Rights & others.
4. In the alternative, the Petition is sub judice S C Petition of Appeal NO. E006 of 2026 Teachers Service Commission v The Forum for Good Governance and Human Rights and others.
5. The Respondent relied on NAIROBI ELRC NO. E223 of 2023, NAIROBI CA CA NO. E403 of 2024 and Petition of Appeal No. E006 of 2026.
The court considered the submissions on record.
Since the Respondent’s Notice of Preliminary Objection is challenging the jurisdiction of the court to hear and determine the instant petition on the principle of res judicata, which is a statutorily ordained principle of law, and the petitioner did not contest the propriety of the Notice of Preliminary Objection, the court is satisfied that the Respondents Notice of Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 enunciated by Sir Charles Newbold P and Law JA.
In Attorney General & another v Githinji & another (2016) DECA 817 (KLR) the Court of Appeal held:
“The test to be applied in determining whether the appellant’s Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (Supra). That is first, that the Preliminary Objection raises a pure point of law, second that there is demonstration that all the facts pleaded by the other side are correct and third, that there is no fact that needs to be ascertained.”
The Respondent’s Preliminary Objection as adverted to earlier is that the instant petition is res judicata NAIROBI ELRC NO. E223 of 2023 The Forum for Good Governance and Human Rights v Teachers Service Commission & others.
Section 7 of the Civil Procedure Act provides:
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
See Karia & another v Attorney General (2005) IEA 83 Henderson v Henderson (1843) 67 ER 313 and Kamunye & others v Pioneer General Assurance Society Ltd (1971) EA 263.
In John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport & Infrastructure & 3 others (2015) KECA 472 (KLR) the Court of Appeal stated:
“Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives…
In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principal of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim… We accordingly do not accept the proposition that constitutional based litigation cannot be subjected to the doctrine of res judicata… The doctrine of res judicata has two main dimensions cause of action res judicata and issue res judicata.
Re judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings in such a case the bar is absolute unless fraud or collusion is alleged. Issues res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and…”
In Forum for Good Governance and Human Rights v Teachers Service Commission & others (2024) KEELRC 795 (KLR), the petitioner was challenging the employment of qualified teachers as interns on different terms in public schools for different pay, urging that the Respondent could only recruit teachers from the pool of registered teachers as by law required.
The petitioner sought declarations that the recruitment of intern teachers infringed the Constitution of Kenya, Respondent had no mandate to recruit, engage, employ or retain persons other than registered teachers, the Respondent violated the interns right to fair labour practices and violated rights of children.
It also sought the quashing of the appointment letters issued to intern teachers mandamus to issue letters appointing the interns as teachers on substantive terms, compensation and prohibition from recruitment of interns-teachers.
The court found that;-
The intern teachers were neither apprentices nor indentured teachers and the program was disguised employment of teacher and they were unfairly treated and discriminated for denial of terms and conditions of service.
That the doctrine of freedom of contract could not apply in the face of Article 41 of the Constitution of Kenya on right to fair labour practices.
The teachers in issue were indeed employed by the Respondent despite disguising them as interns.
The Respondent did not establish that the constitutional, statutory or policy mandated it to employ teachers known as interns.
It was not possible to engage the teachers in the disguised form of interns with no approved establishment. There ought to have been vacancies. The disguised employment of teacher as interns amounted to unfair labour practices under Article 41 (2) (a) of the Constitution of Kenya. The practice of employing discriminately of qualified teacher as interns violated Article 27 of the Constitution or freedom from discrimination and equality before the law and breached Section 5 of the Employment Act and ILO Convention 100 the Equal Remuneration Convention (No.100 of the ILO 1951 on the principle of equality of pay for work of equal value.
The court declared that:
(a) The Teachers Service Commissions circulars on employment of interns teachers and the subsequent contracts contravened the Constitution,
(b) Teachers Service Commission had no mandate to employ, engage, recruit, retain any person who has not been trained and registered as a teacher.
(c) Teachers Service Commission violated the right to fair labour practices and remuneration of the teachers recruited and employed as interns.
(d) Teachers Service Commission was henceforward prohibited from recruiting and employing student teachers as teachers and recruiting and employing interns as its constitutional and statutory mandate spread only to employment of duly qualified and registered teachers.
The trial court’s declaration that circular TSC/DS/RECRUIT/ADVERT/18A/VOL.II dated 4th January 2023 and subsequent internship contracts contravened provisions of the constitution was upheld by the Court of Appeal, which also held that the Teachers Service Commission could employ trained and qualified teachers as interns provided the Internship Policy passed constitutional muster.
Other grounds of appeal were dismissed; -
Juxtaposing the Petitioner’s case and the reliefs sought against NAIROBI ELRC PET No. E223 OF 2023, the Court is satisfied that the instant petition is res Judicata Forum for Good Governance and Human Rights v Teachers Service Commission & 2 others.
The upshot is that the Respondent’s Preliminary Objection has merit and the Petitioner’s petition dated 4th December 2025 is struct out for want of jurisdiction.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI – PET E256 OF 20252 OF 15 |