REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E027 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
TITUS KYALO KILONZO………………………………...1ST PETITIONER
JOHNSON NGUMBAU MUNYOKI………………….…..2ND PETITIONER
LAWRENCE KIRIMI GEORGE………………………….3RD PETITIONER
VERSUS
TEACHERS SERVICE COMMISSION ….…………….…. RESPONDENT
JUDGEMENT
The instant Petition dated 23rd January, 2026 was filed on 26rd January, 2026. Also filed simultaneously under Certificate of Urgency was a Notice Motion of event date and when the matter came up on 28th January, 2026, the trial court granted conservatory orders staying the recruitment of teachers to fill 2,082 vacancies occasioned by attrition in Senior Schools November-2025 for the counties of Garissa, Wajir, Mandera and Lamu. The conservatory order was vacated vide Ruling delivered on 11th February, 2026.
The Petitioner’s case is that they were employed by the Respondent in June 2023 under a three (3) year contract to serve North Eastern Kenya, served diligently and the contracts had renewal clauses up to the age of 65 years.
That in November 2025, the Respondent invited applications from qualified teachers to fill 2,082 attrition vacancies in Senior Schools’ and according to the Petitioners, the specific vacancies listed in the four (4) counties were the position held by the Petitioners and thus fictitious and fraudulent as there were no attrition vacancies as the positions were occupied and the recruitment was intended to replace them. That in Modogashe Secondary School in Garissa County where the 1st Petitioner was teaching English/Literature, the Respondent had advertised 2 vacancies at the school for English/Literature and the same was repeated at Furaha and Takaba Secondary Schools in Wajir County and Mandera County respectively where two other Petitioners were based.
According to the Petitioners the Respondent was constructively dismissing them and thus it violated the provisions of Article 27, 47, 201 and 232 of the Constitution of Kenya.
The provisions, of Article 10, 19(1) 20(1), 21, 22, 24, 27,41,47,232, 258 and 259 of the Constitution of Kenya there cited as the legal foundation of the Petition.
The Petitioners pray for:
a) A Declaration that the vacancies listed for Garissa, Wajir, Mandera and Lamu Counties in the recruitment of teachers –November 2025 advertisement are occupied positions held by the Petitioners and their advertisement constitutes constructive dismissal
b) A Declaration that the clause in the advertisement giving “Preference to applicants not previously employed’ is discriminatory and unconstitutional as it punishes the Petitioners for their service to the Respondent.
c) An order of Certiorari calling up and quashing the Respondents decision to advertise the specific positions held by the Petitioners as listed in the Schedules for Garissa, Wajir, Mandera and Lamu.
d) An order of prohibition restraining in Respondent from recruiting, interviewing or posting new teachers to the Petitioners current work stations to replace them.
e) An order of mandamus compelling the Respondent to automatically absorb the Petitioners into the permanent and pensionable terms utilizing the 2,082 declared vacancies in parity with the policy applied to Junior Secondary School interns
f) Costing this Petition.
Respondent’s Case
In opposition to the Petition, the Respondent filed Replying Affidavit sworn by Antonina Lentoijoni on 13th April, 2026 who deponed that the Respondent had constitutional mandate to inter alia recruit and employ trained teachers and assign them to teaching in public schools and carrying out its functions guided by the principles and values under Article 10 of the Constitution of Kenya, 232 and the Code of Regulation for Teachers (CORT).
That 281 teachers employed on contract terms were serving in Garissa, Wajir, Mandera and Lamu counties and the recruitment was intended to reduce teacher’s shortages in the four counties and the Petitioners were serving on contract terms with the Respodent. The affiant admitted that the Respondent advertised 2,082 teacher vacancies to replace those who had excited service through natural attrition and the process adhered to Articles 10 and 232 of the Constitution and it published recruitment guidelines.
The affiant further deponed that the advertisement in November 2025 was not a termination notice of the Petitioner’s contracts which were governed by their terms and any registered teacher not employed by the Respondent on permanent and pensionable terms could apply for the positions as the advertisement was made to all a qualified teachers and 115 teachers serving under fixed term contracts applied and 23 were recruited on permanent and pensionable terms.
That the contracts of employment of the Petitioners remained valid and enforceable.
That the Respondent was at liberty to recruit teachers in schools where teachers on fixed term contracts had been deployed and the Petitioners had no automatic legitimate expectation to be recruited pensionable terms and it was not available to the Petitioners as no representation had been made to them. That the recruitment was open, competitive and transparent thus nondiscriminatory and no intern teacher had been automatically recruited into permanent and pensionable terms.
That the clause on those previously employed by the Respondent related to those who had been dismissed from service and names removed from the Register of Teachers.
The affiant deponed that the prayers sought, would, if granted adversely impact on learners’ right to education, impede the Respondents constitutional mandate and would be against public policy and in any other petition was speculative and hypothetical and the prayers had been overtaken by events and Petition was for dismissal with costs.
Petitioners Submissions
On legitimate expectations reliance was placed on the Court of Appeal decision in Transparency International Kenya v Teresa Carlo Omondi (20230 KCEA 174 (KLR) to urge that although a fixed term contract carried no right of renewal it did were a representation of renewal or promise was made as per the letters of appointment. That the Respondent treated the respondents as casuals.
On violation of Article 27 and 232 of the Constitution, counsel submitted that interns and serving teachers were awarded 50% while a teacher on contract was awarded Zero (0) marks.
Counsel urged that the Respondent practiced unfair labour practices, illegality and bad faith.
That the Respondent scoring between interns and contract teachers was irrational and arbitrarily yet it ought to have been rational and proportional.
Counsel urged that the Respondent approbated and reprobated on employment on contract, misled the court at the interlocutory stages and the petitioners were entitled to the reliefs sought.
Respondent’s submissions
The issue as to whether the Respondent acted within its constitutional and statutory mandate was not contested by the petitioners.
As to whether the Petitioners had a legitimate expectation of automatic absorption into permanent and pensionable terms, counsel submitted that the petitioners contention was untenable citing Communications Commission of Kenya & 5 others v Royal Media Services And 5 Others (2014) EKLR on the basis of legitimate expectation, contending that the Respondent denied having made any promise and the issue was not pleaded in the Petition and parties are bound by their pleadings.
Reliance was placed on the sentiments of the Nigerian Supreme Court in Adetoum Oladije (NIG) Ltd v Nigeria Breweries PLC SC 91/2002 cited in I.E.B.C & another v Stephen Mutinda Mule & 3 others (2014) EKLR,
Other directions cited for the same proposition were Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbuluto & others Ex Parte Tom Mbuluto as well as Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another 20051 EA 334 on the burden of proof to urge that no evidence of the alleged representation by the Respodent had been availed and the alleged letters of probationary appointment were not annexed to the Petition. That the Respondent had availed the contracts executed by the Petitioners and there was no promise of permanent appointment. Counsel further submitted that under Regulation 55 (2) of CORT and Article 232 of the Constitution of Kenya, recruitment of teachers in the Public Service was conducted competitively and fixed term contracts was a legally recognized method of the employment and courts cannot rewrite a contract between parties as held in National Bank of Kenya Ltd v Pipe Plastic Samkollt (K) & another (2001) eKLR.
Court urged that the Petitioners willingly entered into fixed term contracts to which they were bound and the comparison with interns had no basis.
As to whether the recruitment violated Articles 27 and 41 of the Constitution, counsel submitted that the vacancies were publicly advertised for all qualified teachers including those serving on contract and 23 of such teachers secured employment on permanent and pensionable terms competitively, the Respondent treated all applicants equally and no evidence of discrimination or unfair labour practice had been adduced.
As to whether the court should interfere with the Respondents administrative mandate, reliance was placed on Speaker of National Assembly & another v Attorney General & 4 others (2013) eKLR, on the doctrine of separation of powers, Teachers Service Commission Vs Thomas Joseph Onyango Civil Appeal No. 122 of 2015 on power of transfer of teachers by the Respondent not the Court and Pevans East Africa Ltd & another v Chairman Betting Control & Licensing Board and 7 others, Civil Appeal No. 11 of 2018 on the need for courts not to unduly interfere with the exercise functions by an institution or organ.
Counsel submitted that public interest considerations dictated that the impugned recruitment was intended to address the acute teacher’s shortage in Garissa, Wajir, Mandera and Lamu counties to guarantee the right to education and cancelling or restraining the same would disrupt teaching and learning and worsen teacher shortage and public interest was in favour of upholding the process.
Counsel responded to allegations raised in the submissions, namely interns were allocated 50 marks in the recruitment guidelines to urge that even if that was the case, it applied to all interns, the Petitioners were not affected and 23 of their cohort were employed, the allocation of marks notwithstanding.
On the alleged report to Parliament by the Secretary/CEO of the Respondent, counsel submitted that no such report was availed by the Petitioners.
The allegation that internship had been declared illegal was irrelevant and in any case the Respondent appealed the decision and obtained a stay of implementation of the Judgement and programme was lawful.
Analysis and determination
The facts of the case are largely undisputed, that the Petitioners were employed by the Respodent under fixed term contracts in June 2023. Strangely, neither party availed the three contracts of employment. While the 1st and 3rd Petitioners provided copies of offers of employment; the 2nd petitioner did not avail anything and neither Petitioner availed the employment contract document which enumerated the terms and conditions of service. For sample purposes, the Respondent availed a copy of the “Letter of Employment on contract terms” issued to and accepted by the 2nd Petitioner dated and executed on 30th June, 2023.
It is unclear to the court why the Petitioners opted to avail copies of the offer of employment on contact terms as opposed to the actual employment contract. More intriguing, the Petitioners attached a copy on a probationary contract of one Mr. Musungu Brian Mutambo of Furaha Mixed Day Secondary School dated 8th November, 2023, perhaps to hoodwink the court that they were also serving under probationary appointment for six (6) months whose Clause 3 (b) provided for confirmation and admission to the permanent and pensionable establishment.
The Letter of Employment on contract terms accepted by Johnson Ngumbao Munyoki TSC/875168 reveals that the Salary Scale was Kshs, 36,621 per month payable from 28th July, 2023 and the incremental date was July and the employment would run from 17th July, 2023 to 16the July, 2026.
The employees was entitled to a housing allowance in accord with the regulations or institutional house if available on rental basis, medical cover, transport allowance and termination by one (1) months’ notice.
Significantly, Clause 9 provided for the circumstances in which further employment could be entered into as follows;
“At some time, not more than six months and not less than four months before the date on which his/her service under this agreement terminates, the teacher shall give notice in writing to the commission whether he/she so desires to remain its employment and if he/she so desires, the Commission shall thereupon decide whether it will offer him /her further employment, in which case reengagement shall be on such terms as may be agreed.”
Leaving the contract of employment, it is not in dispute that the Respondent declared 9,159 vacancies to replace teachers who had exited service through natural attrition, namely: 7,065 posts in primary schools, 12 posts for Junior schools and 2,082 post for Secondary Schools to serve in permanent and pensionable terms and an eligibility criterion was provided. Interested and qualified candidates were required to submit their applications on time through the Respondent’s website www.tsc.go.ke under careers or teachersonline.tsc.go.ke by 8th December, 2025. The advertisement precipitated the instant suit. The Petitioners characterize it as a constructive dismissal, discriminatory and a violation of the constitution.
It is common ground that the provision of article 237 (2) (b) of the Constitution of Kenya confer upon the Teachers Service Commission (TSC) the mandate to recruit and employ registered teachers and it is the primary duty of the TSC to register teachers and assign employed teachers for service in any public school or Institution.
It is furtherance of the foregoing constitutionally mandated function that TSC declared the 9,159 vacancies in public schools and all eligible individuals were invited to apply. The Petitioners who were serving under three (3) year fixed term contract did not apply. The Respondent averred that a total of 115 teachers serving under fixed term contracts akin to those of the Petitioners submitted applications and 23 were successful and transitioned to permanent and pensionable.
The Petitioners argue that their contracts of employment contained a clause stating that the contracts were renewable up to the age of 65 which crated a legitimate expectation of permanent employment.
For unexplained reasons, the Petitioners did not identify the clause in question. Clause 3 of the Letter of Employment on contract term, executed by the Commission (TSC) on the one hand and Johnson Ngumbao Munyoki on the other on 30/6/2025 in the presence of John Kimanzi Muimi as a witness as stated:
‘The agreement is subject to the conditions set forth in the schedule Hereto annexed which, shall be read and constructed as part of this agreement.”
The schedule to the agreement contained the paragraphs on the terms and conditions of service such as salary, terms, engagement, further employment, salary, allowance, leave, termination, discipline, medical attention, gratuity and termination among others.
The schedule had no renewal clause other than clause 9 which accorded the TSC discretion to decide whether or not there shall be further employment on terms agreed upon by the parties. This clause meant that the parties would agree in the terms of engagement as opposed to a renewal.
The only complete letter of employment had no renewal clause or a promise of further engagement and without a promise or representation, the doctrine of legitimate expectation would have no foundation.
In Transparency International- Kenya Vs Omondi (2023) KECA 174 (KLR) the Court of Appeal after citing the decisions in Communications Commissions of Kenya and 5 Others, Vs Royal Media Services and 5 Others (Supra) and the South African Case of South African Veterinary Counsel Vs Szymanski (2003) (4) SA 42 SCA, Paragraph 28 on legitimate expectation and is requirements held;
‘The emerging rinciples may be succinctly set out as follows.
a) there must be an express clear and unambiguous promise given by a public authority
b) The expectation itself must be reasonable
c) The representation must be one which it was competent and lawful for decisions -maker to make and;
d) There cannot be a legitimate expectation against clear provisions of the law to the constitution.
De Smith Woolf & Jowell, in Judicial Review of Administrative Action cited in Republic Vs Kenya Revenue Authority Ex parte M-Kopa Kenya Ltd thus;
“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate ought not to be thwarted. The protection of legitimate expectation is at the root of the constitutional principle of the rule of law which requires predictability and certainty in government’s dealings with the public.”
In the instant case, none of the Petitioners availed a copy of the contract containing the alleged promise by the Respondent.
In the court’s view nothing turns on this issue.
Another issue raised by the Petitioners is that the advertisement was discriminatory and violated to provisions of Article 27, 232, 41 and 47 of the Constitution of Kenya in that it provided that;
“Preference will be given to applicants who have not previously been employed by the Teacher Service Commission.”
That it disqualified the Petitioners from applying for the positions.
The Respondent was also accused of favouring interns by implementing a policy of automatic confirmation or contract renewal for interns serving in Junior Secondary Schools.
As regard the interns, the Petitioners attached no evidence in support of the claim. A copy of the alleged policy or pronouncement was not annexed to the Supporting Affidavit. Similarly, interns were not employees and were being paid a stipend of Kshs.20,000.00 all inclusive and thus not nothing turns on this aspect of the issue under consideration.
As regards paragraph 5 (vi) of the Advertisement by the Respondent under the sub-title General Information the statement on preference covers persons who have served a particular institution and left for one reason or another. The petitioners characterize statement as discriminatory against them.
Both Articles 27 of the Constitution of Kenya and Section 5(3) of the Employment Act prohibit discrimination on the grounds of race, sex, religion, culture, age, health status, colour and HIV status among others.
Blacks law Dictionary 10th Editions defines Discrimination as
“Differential treatment; especially, a failure to treat all persons equally when no reasonable distinction can be made between those favoured and those not favoured.”
Similarly, in Peter K. Waweru v Republic (2006) eKLR, the court stated;
“…Discrimination means affording different treatment to different persons attributable wholly or mainly to their description whereby persons of one such description are subject to…restrictions to which persons of another description are not made subject…”
Significantly, the law does not prohibit discrimination in totality. It prohibits unfair discrimination where the differential treatment of similarly circumstanced persons has no justification.
See Nyarangi & 3 others v Attorney General (2208) KLR 688.
The Respondent on the other hand maintained that the advertisement was made to all persons and any eligible person could apply for the positions.
The court notes that the advertisement did not expressly exclude those serving the Respondent on terms other than permanent and pensionable and the petitioners ought to have applied for the positions if they desired to be employed on permanent and pensionable terms and as deponed by the Respondent, some of their colleagues applied for the positions.
The petitioner’s case, in the courts view would have been more forceful if they had availed evidence of having applied for the positions irrespective of the outcome.
In the courts view, the statement being challenged by the petitioners is generic, typically intended to ensure equity in circumstances in which supply outstrips demand and is often resorted to ensure that no individual has a second bite at the cherry owing to competition for the available slots.
It requires no belaboring that equity is constitutional imperative.
In sum, the court is not persuaded that the petitioners have demonstrated that the statement that ‘preference would be given to those who had not previously been employed’ by the Respondent was discriminatory against them. In the court’s view, the petitioners were eligible to apply for the positions but did not do so.
This position is fortified by the ruling delivered on 11th February, 2026 where the court held inter alia;
“The applicants have equal opportunity with all other applicants to be interviewed for a change of their employment arrangement from fixed term contract to permanent. There is thus no legal basis to sustain the interim orders staying the recruitment process…” Having found no discrimination in the process or breach of contract…”
For the foregoing reasons the court is satisfied that nothing turns on this issue.
The upshot of the foregoing is that petitioner’s petition dated 23rd January 2026 lacks merit and it is accordingly dismissed.
Parties shall bear their won costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST 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 – PE E027 OF 2026 - RUL2 OF 18 |