The Court of Appeal has dashed hopes of 46,000 intern teachers to be employed on permanent and pensionable terms by the Teachers Service Commission (TSC).
Justices Asike Makhandia, Sankale Ole Kantai and Ngenye Macharia suspended the orders issued by the Employment and Labour Relations Court (ELRC) requiring the commission to convert the internship to permanent and pensionable terms.
The import of the ruling is that TSC now has the last laugh as the aggrieved persons will have to continue working as interns until the case filed by the Dr Nancy Macharia-led commission is heard and determined.
In the application, TSC claimed that the orders by Justice Byrum Ongaya had thrown its operations into a spin as the money required to hire the intern teachers on permanent and pensionable terms was not budgeted for.
"The rights of all learners in public schools underpinned under Articles 43 and 53 of the Constitution are on the verge of being violated as the Commission has no financial resources to on-board the 46,000 on permanent and pensionable terms and conditions," argued TSC lawyer Allan Sitima.
The commission argued that the aggrieved intern teachers were bound to their contracts claiming that they willingly signed the crucial documents even though they were being considered for employment next year.
According to TSC, in the event its intended appeal is successful, then the case will have been rendered an academic exercise since it will have issued new contracts.
Justice Ongaya found that the intern teachers contracts were illegal but he directed that the status of their employment should continue.
The orders freezing employment were to last until the commission either got temporary orders from the Court of Appeal or reached a compromise.
Judge Ongaya had given TSC a grace period of three months, meaning that it had to seek intervention from the higher court or absorb all the affected teachers on permanent and pensionable terms.
A day after the Judge issued the orders, the Kenya Junior Secondary School Teachers Association (KeJUSTA) wrote to its members saying it is waiting for the interpretation of the term ‘status quo.’
They argued that it was unclear what the judge meant.
"I wish to caution teachers against misguided interpretation of the ruling and the misplacement of the term status quo as it appears in the ruling,” wrote KeJUSTA secretary general Daniel Murithi.
In the case, TSC argued that the judgment would jeopardise its plan to hire those employed as interns in 2025.
However, Justice Ongaya said that the application meant that TSC was asking him to sit on his own judgment clarifying that status quo be maintained until August 1, 2024.
"It is in the interest of justice, it appears to the court that it would be appropriate for the status quo prior to the judgment to be maintained with respect to the findings and orders of court in the judgment, pending a compromise or rearrangement of the affairs between parties or applicants filing appropriate application at the Court of Appeal,” he said.
In his judgment, Justice Ongaya argued that TSC had violated the right to fair labour practice by giving those affected internship positions while they were qualified and possess teaching licenses.
TSC hired at least 60,000 teachers as interns to teach Junior Secondary Schools.
But the decision put in limbo the fate of Junior Secondary School days to schools reopening for second term. The intern teachers have been the backbone of implementation of the Competency Based Curriculum at the JSS. They have vowed not to go back to work until the issue is resolved.
In his verdict, Justice Ongaya decreed that the commission cannot hire or engage or hire student-teachers or interns as its mandate is limited to employing only those qualified and registered.
“The respondents have not exhibited statutory regulatory or policy arrangements that would entitle the first respondent (TSC) to employ interns. Ideally, the first respondent should employ registered teachers upon terms that are not discriminatory and to meet the optimal staffing needs in public schools,” he said.
The programme was introduced to plug teacher shortage in schools and doubled as a crash program to provide teachers for JSS.
It was initially set to run for one year before the intern teachers are absorbed on permanent and pensionable basis.
However, in December, President William Ruto announced that the teachers will be required to serve an extension of another one year before they can be considered for permanent and pensionable employment.
In the case, the court heard that TSC gave contracts to the interns to teach two subjects. However, in classes, they taught everything including sciences and mathematics.
Further, the intern teachers were aggrieved that some colleagues were hired on permanent and pensionable terms while they were retained under the terms of teachers in colleges and universities who are placed in schools to learn how to teach.
There were claims that despite the tutors getting an intern stipend, TSC deducted all taxes and contributions required by the government, including the controversial housing levy.
The case was filed by the Forum for Good Governance and Human Rights on behalf of the interns. It indicated that those hired were not supervised but left to grapple with all subjects on their own.
“The second respondent is handling the lives and rights of the children casually as test guinea pigs to confirm whether the CBC, can work. I state this is indeed a worrying state,” the court heard.
One of the affected teachers filed an affidavit in support of the case. Oroso Oganga narrated that he was sent to Eking Narok Primary School in Kajiado county.
Oroso holds a Bachelor of Education (Arts) degree. He argues that according to his contract with TSC he was to teach History or Christian Religious Education (CRE).
However, when he reported to the school on February 7, 2023, he ended up teaching Computer Science, Integrated Science, Social Studies, CRE, Health Education and Life Skills.
Oroso said he was also responsible for administration and management of the class.
He lamented that despite all the work, he went home with Sh20,000 stipend.
