CHILDREN INSTITUTIONS IN

KENYA; THE LEGAL

FRAMEWORK
GROUP (FIVE) ASSIGNMENT

3/7/2019
KISII UNIVERSITY SCHOOL OF LAW; YEAR III SEMESTER 2
CLINTON O MARONGA
JAMES O OGUTU

DORIS M GAKII

ENOCK KAMAU

TABITHA NJAMBI
 CHILDREN INSTITUTIONS IN KENYA

The Legal Framework

Introduction
Childhood is entitled to special care and assistance. Children should be afforded necessary
protection and assistance so that they can fully assume their responsibilities within the
community; which is vital in ensuring the full and harmonious development of their personality.1
The provision of special care, assistance and rehabilitation is the main purpose of children
institutions. Just like other (natural and juristic) persons whose actions affect children, children
institutions are bound to put the best interests of the child before any other considerations. 2

Article 3 of the Convention on the Rights of the Child directs States Parties to ensure that the
institutions, services and facilities which are responsible for the care or protection of children
conform with the standards established by competent authorities, particularly in the areas of
safety, health, the number and suitability of their staff, as well as ensuring that there is competent
supervision of the institutions. The Convention also binds States Parties to ensure the
development of institutions, facilities and services established for the care of children as part of
the efforts in guaranteeing and promoting the rights set forth therein.3

In Kenya legal provisions in respect of children institutions are set forth under Part V of the
Children Act, 2001.

Establishment of Rehabilitation Schools4

The Cabinet Secretary concerned is authorized to establish rehabilitation schools for the
accommodation, care and protection of children. Managers of institutions whose facilities are
suitable for the reception, maintenance, training and rehabilitation of children may also apply to
the minister for approval of the schools as rehabilitation institutions for children. The approval is
usually notified by the minister in the Gazette and a certificate of approval issued to the manager.

The condition and management of the approved rehabilitation school must meet the requisite
standards failure to which the minister may;

1
Preamble to the Convention on the Rights of the Child, Adopted and opened for signature, ratification
and accession by General Assembly Resolution 44/25 of 20 November 1989, entry into force 2 September
1990, in accordance with article 49
2
Ibid, at article 3; the Children Act, 2001, at section 4
3
The Convention on the Rights of the Child, article 18(2)
4
Children Act, 2001 at section 47
 Subject the manager to disciplinary proceedings
Request the manager in writing to show cause why the certificate of approval should not
be withdrawn. If no response is given at the expiration of the notice, the certificate of
approval shall be deemed to have been withdrawn and the school shall cease to be a
rehabilitation school.

If the minister finds the continued operation of a rehabilitation school unnecessary, he/she is
required to issue a 6-month notice of the intention to withdrawal of the certificate of approval.
Any withdrawal of a certificate of approval must be notified by the minister in the Gazette.

Separate sections in the rehabilitation schools; a rehabilitation school is required to have

separate sections for children of different sexes, age categories, and separate sections for
children offenders and children in need of care and protection.5

Obligation of managers; the manager of a rehabilitation school is duty-bound to accept any

child committed to his care unless the institution’s children’s sex or religion is not that of such a
child. The manager may also satisfy the minister that it is undesirable that the school receives
any more children.6

Establishment of children’s remand homes; the Cabinet Secretary concerned is empowered

to establish children’s remand homes.7 The manager of a government institution8 may also
enter into an agreement with the minister for the use of that institution as children’s remand
home.

Supervision of children rehabilitation schools and remand homes; this is the responsibility
of the Director of Children Services9 who must cause the periodic visitation of the institutions.

Leave of absence; the manager of a rehabilitation school is allowed, with the Director’s
authority, grant a leave of absence to a child for such period and on such conditions as he
deems fit. He is also allowed to terminate such leave at any time and direct the child to return to
the school.10

Revocation of a child’s committal order; if the Director, at any time during a child’s stay in a
rehabilitation school, is satisfied that the child should not remain subject to the applicable
committal order he may refer the matter to the Children’s Court for revocation of the committal
order.

5
Ibid, at section 48
6
Ibid. at section 49
7
Ibid, at section 50
8
Other than prisons
9
Appointed under section 37 of the Children Act, 2001
10
Children’s Act, 2001 at section 52
 The Children’s Court may at any time, on its own motion or on application, revoke an order
committing a child to a rehabilitation school. However, before such revocation is done, the
Court must call for all relevant records of any court which previously handled the application
including the one which made the order.11 However, first, a committal order must not remain in
force beyond the 18th birthday of a child and secondly not more than 3-years at a time unless
the Children’s Court so orders.12

Transfer and supervision after release; the Director has power to order that a child be
transferred from one rehabilitative school to another. However the rehabilitative period of the
child must remain unaffected by the transfer.13 Upon the expiration of a child’s rehabilitation
period the Director may place the child under the supervision of a specified person for a period
of less than 2-years or until the child attains the age of 21-years; whichever is shorter.14

Treatment of absconders and children of difficult character; where the Director is of the
opinion that a child committed to a rehabilitation school is; of difficult character, a persistent
absconder or exercising inappropriate influence on other children in the school; he may apply to
the Children’s Court (with jurisdiction over the school where the child is committed) for any
the following;15

i) An extension of the child’s committal period by not more than 6-months if the
child is less than 16-years of age.
ii) To have the child sent to a borstal institution if that child is above the age of 16-
years. Borstal institutions are established and governed by the provisions of the
Borstal Institutions Act.16
iii) To have child accorded appropriate medical treatment and professional
counseling if his/her conduct is attributable to drug abuse or mental illness

Parents or other persons with parental responsibility over such a child must be notified of the
proceedings and be given an opportunity to be heard unless the court is satisfied that such
persons cannot be found or reasonably expected to attend the proceedings.17 After the
proceedings, any expenses incurred in the committal of a child are borne by the State and any
child who is thereafter committed to a borstal institution is entitled to mandatory appropriate
professional guidance.18

11
Ibid, at section 53(2)
12
Ibid, at section 53(3)
13
Ibid, at section 54(1)
14
Ibid, at section 54(2)
15
Ibid, at section 55
16
Cap 92 of the laws of Kenya
17
Children Act, at section 55(2)
18
Ibid, at section 55(3)
Removal to a health institution;19 in situations of serious illness of a child staying in a remand
home or rehabilitation a school the manager (on advice of a medical practitioner) may order the
removal of such a child to a health institution. The medical officer in charge of the health
institution is duty bound to take all reasonable precautions to prevent the escape of the child.

The order committing a child to a remand home or rehabilitation school is sufficient authority to
confine the child in such institutions and the child is for all purposes deemed to be in lawful
custody.20

Charitable Children’s Institutions

There are more than 830 charitable institutions in Kenya (Information Cradle, 2019). The
Children Act, 2001 defines a charitable children’s institution to be a home or institution which
has been established by a person, corporate or unincorporated body, a religious organisation or a
non-governmental organisation and has been granted approval by the Council21 to manage a
programme for the care, protection, rehabilitation or control of children.22

The following institutions must not be regarded as charitable institutions;23

1) a rehabilitation school established by the Minister under section 47

2) a school within the meaning of the Education Act (Cap. 211)
3) a borstal institution
4) any health institution
5) a children’s day care centre, nursery or other similar establishment

Proof of registration; a nongovernmental or religious organisation seeking to establish a

charitable children’s institution must prove its registration under the requisite system of
registration of private institutions before applying for approval to implement a child welfare
programme.24

Any person (natural or juristic) or unincorporated body which establishes a charitable children’s
institution must furnish the Director with the list of the institution’s trustees before seeking
approval to implement a child welfare programme.25

19
Ibid, at section 55
20
Ibid, at section 57
21
The National Council for Children Services; established as a body corporate under the Children Act,
2001, at section 30
22
Children Act, 2001, at section 58
23
Ibid, at section 59
24
Ibid, at section 60
25
Ibid, at section 61
The criteria for approval of charitable children institutions to run the child welfare programme is
provided by the Council.26

Reception of children; the charitable institutions are required to receive a child in the following
circumstances;

a) If during an emergency the child is taken to the institution by an authorized officer or

other person who has reasonable cause to believe that the child is in need of care and
protection. In this case the child must be brought to Court without undue delay unless the
child’s parent or guardian applies to the Director for the child’s release or it is not in the
best interests of the child to do so or the child is so held by the institution under section
120(2)27
b) If the child is referred to the institution by way a care order or interim care order.

The charitable institution has the obligation of providing adequate care and protection to every
child under its accommodation in accordance with the criteria outlined by the Council.28

Director to monitor progress of children; the director is duty-bound to monitor the progress of
children accommodated in a charitable children’s institution until a child is discharged from the
institution for instance upon the expiry of the period of care order placed in respect of the child.
The Director must also ensure that a child is periodically visited and interviewed by an
authorized officer.29

Institutions’ approved officers; a charitable children’s institution is allowed, with the approval
of the Director,30 to appoint its officers whose role is to facilitate the furtherance of the
institution’s purpose of the care, protection and control of children.31

Inspection of charitable children’s institutions;32 this is done by an officer who is authorised

by the Director. The inspection extends to any premises which the Director has cause to believe
is used to accommodate children in need of care and protection. The authorised officer may at all
reasonable times enter the premises of an institution do the following in particular;33

a) Interview any child in the institution

b) Demand the production of an annual report and any other records required to be kept in
accordance with the regulations made under section 72 of the Act

26
Ibid, at section 62
27
Which provides that any child in need of care and protection may take refuge in a place of safety
28
Children Act, 2001, at section 64
29
Ibid, at section 65
30
Which approval must be notified in the Gazette
31
Ibid, at section 66
32
Ibid, at section 67
33
Ibid, at section 67(2)
 c) Inspect the conditions and facilities of the institution
d) Prepare and submit a report on the findings and recommendations to the Director

Any unlawful obstruction of the above authorised officer above is deemed to be reasonable cause
to believe that a child in the institution is being neglected or abused and therefore is in need of
care and protection.34 Persons liable for such obstruction are also subject, on conviction, to
imprisonment for a term not exceeding 12-months or to a fine not exceeding 50,000/= or both.

Upon receipt of the report, the Director may direct the institution to appoint a new management
and adopt other remedial measures in addition to any remedies that may be prescribed by the
minister. The Director is also empowered to, in consultation with the Area Advisory Council;
appoint a manager of the impugned institution for a period of not more than 2-months in order to
institute remedial measures.

Inspection committees;35 the minister is empowered to constitute an inspection committee of

not more than 5-persons to inspect any children institution. The powers and functions of the
committee are as specified in the eighth schedule of the Act. The Committees’ recommendations
must be reported to the minister and be implemented by the Director. The latter must, within 6-
months of the report’s submission to the minister, report to the Council on the actions taken to
implement the recommendations of the report.

Duty to notify the Area Advisory Council;36 any charitable children’s institution intending to
run a child welfare programme must notify the Area Advisory Council of the same and provide
full information on the mode of operation and specific objects of the programme. The Area
Advisory Council is then required to the Director the particulars and recommendations of the
proposed programme. The Director must then place the proposed programme together with all
the details before the Council which may disapprove, approve all or part of it taking into account
the best interests of the child. Any person who continues to carry out a disapproved programme
is liable to fine not exceeding Ksh. 20,000 for each day that the programme remains in operation.

Review of programme; the Director is required to carry out an annual review of a child welfare
programme in order to advise the Council whether the programme should be continued or
cancelled.37 The Council may cancel a programme on any of the following grounds; that

a) the institution is unfit for the care, protection and control of children
b) the children admitted into the institution are suffering or are likely to suffer harm
c) the manager of the institution has contravened any of the regulations made under this Act

34
Ibid, at section 67(3)
35
Ibid, at section 68
36
Ibid, at section 69
37
Ibid, at section 70
The Council must give 15-days’ notice of the proposed cancellation. Any person aggrieved by
the Council’s decision has a right of appeal to the minister whose decision is final.38 During the
cancellation the Director must take such remedial measures as are necessary for the protection of
children under the care and protection of the Charitable Institution. Such measures may
include;39

a) removing children from the institution

b) procuring the institution’s closure
c) initiating disciplinary measures against the manager of the institution

The Cabinet Secretary is empowered under section 72 to (in consultation with the Council) make
Regulations making provision for;

a) the requirements and procedure for approval of children’s welfare programmes

b) the management of remand homes, rehabilitation schools and charitable children’s
institutions
c) the qualifications of managers
d) the training and remuneration of persons employed in the children institutions
e) the criterion to be used in determining the number of children that a charitable children’s
institutions can accommodate
f) the training and education of children in charitable children’s institutions
g) the religious instruction of children accommodated in charitable children’s institution
according to their respective religious persuasion
h) requirements for arrangements on medical care (including psychiatric and dental health)
and the prevention of infectious and contagious diseases in charitable children’s
institutions
i) special care for children with disabilities and those with chronic ailments
j) requirements for the keeping of records and giving of notice to relevant bodies upon
receipt of children by charitable children’s institutions
k) the conduct review of the children welfare programme of an institution under section 70
l) the conduct of inspections of charitable children’s institutions
m) corrective measures that should be imposed by the Director upon inspection of a
charitable children’s institution and penalties that should be imposed for non-compliance
of the same
n) appeals on decisions made in respect of children’s institutions

38
Ibid, at section 70(2)
39
Ibid, at section 71(4)
 Borstal Institutions

The Merriam Webster dictionary defines a borstal institution to be a penal institution to which
especially young or first offenders are committed for training and reformation. In Kenya these
institutions are established and governed by the Borstal institutions Act, Cap 92 of the Laws of
Kenya.

Establishment

The Cabinet Secretary responsible for correctional services is authorised to order the
establishment or closure of a borstal institution.40

Requirements of a Borstal Institution

Section 4 of the Act requires Borstal Institutions to provide the following;

a) proper sanitary arrangements, water supply, food, clothing and bedding for the inmates
b) the means of giving such inmates educational, industrial or agricultural training
c) an infirmary or proper place for the reception of inmates who are ill

Committal to Borstal Institutions41

Before sentencing a youthful offender42 the court is required by the Act under section 5 to
consider the following;

a) evidence available as to his character

b) previous conduct
c) circumstances of the offence
d) whether it is expedient for his reformation that he should undergo a period of training in a
borstal institution

The High Court, Juvenile Court or Subordinate Court of the first class have the jurisdiction under
section 6 of the Act to commit a youthful offender to a Borstal Institution for a period of 3-years.

Youthful offenders serving imprisonment terms in the ordinary prisons may also be committed to
a borstal institution.43 In such a case, the person in charge of the prison is required to arraign the
offender before the High Court or other Subordinate Court with jurisdiction to try the offence for
which such an offender was originally convicted.

40
The Borstal Institutions Act, at Section 3
41
Ibid, at Part III
42
The Act defines a youthful offender at section 2 to be a person who is convicted of an offence
punishable by imprisonment but who, at the time of conviction, is above 15 years but below 18 years
43
Cap 92, at Section 7
The court must however ascertain whether there is accommodation in a Borstal Institution before
committing a youthful offender to the same.44 The Commissioner of Prisons has power to direct
the Borstal Institution to which a youth offender is to be committed.45

Administration of Borstal Institutions

The Act makes provision for this under Part IV. The Superintendent of a Borstal Institution is
responsible for the control and supervision of all matters of the institution.46 Every borstal
institution must also have a medical officer is responsible the health of all inmates.47 A prison
officer working in a Borstal Institution has the same powers, duties and is subject to the same
prohibitions under the Prisons Act, Cap 90 in respect of his duties in such institutions.48

Persons may be transferred from one borstal institution to another through a removal order
issued by the Commissioner of Prisons.49 Inmates whose illnesses cannot be adequately handled
in the institution’s infirmary may be transferred to hospital through an order given by the
Superintendent on advice of a medical practitioner.50 Inmates of unsound mind may also be
transferred to a mental institution through an order issued by a medical officer in the prescribed
form.51

Inmates who contract leprosy may also be transferred to leper settlement through an order of the
commissioner acting on the advice of a medical officer.52

Inmates are subject to their institution’s discipline, the Act and rules or orders made under it
whether or not within the precincts of the institution.53 Section 18 also requires male and female
inmates not to be held in the same institution. Every inmate must perform such work as directed
by the superintendent unless otherwise prescribed by the medical officer.54

Visitation

Provisions on visitation are enunciated under Part V of the Act. The Cabinet Secretary is
empowered under section 20 to appoint or revoke the appointment of a Board of Visitors for

44
Cap 92, at section 8
45
Cap 92, at section 9
46
Cap 92, at section10
47
Cap 92, at section 11
48
Cap 92, section 12
49
Cap 92, section 13
50
Cap 92, section 14
51
Cap 92, section 15
52
Cap 92, section 16
53
Cap 92, section 17
54
Cap 92, section 19
every borstal institution.55 The Board must be comprised of more than 10-persons and is required
to meet at least 4-times annually.

The Board is directed to constitute an After-care-Committee out its members which is required
to make arrangement for one of its members to visit the institution at least once a month for the
purpose of doing the following;56

1) hearing complaints by the inmates of the borstal institution

2) ensuring that the requirements of section 4 of the Act have been complied with and that
the management of the borstal institution is proper in all respects
3) examining the punishment book57
4) ensuring that no person is illegally detained in the borstal institution
5) bringing any special case and matter affecting the welfare of inmates or staff to the
attention of the superintendent (who shall inform the Commissioner), and reporting
thereon to the Board of Visitors

The Minister, a judge or a magistrate is authorised to visit any borstal Institution, at any time and
exercise all or any of the powers of the Board of Visitors, and enter any observations he thinks fit
in relation to the condition of the borstal institution and its inmates in a visitors’ book to be kept
for that purpose by the superintendent. The superintendent is required to inform the
Commissioner of any observations so entered in the visitors’ book.58

Leave of Absence

The Commissioner is authorised, under section 25, to issue a leave of absence to an inmate on
such conditions and duration of time as he may deem fit. He is also empowered to revoke the
same at any time on breach of the specified conditions and direct the concerned inmate to return
to the borstal institution.

Some of the borstal institutions established in Kenya include;

1) Kamiti Youth Corrective Training Centre

It was established through legal notice no. 736 of 1963. Its holding capacity is 300 inmates.
However the highest number of inmates accommodated therein is 270. It has clean dorms, 3
class rooms, sanitized bathrooms and a farm. The main programmes offered in the institution
include counseling, computer training, farming and irrigation (Otukho, 2017, p. 5).

55
Appointment is by notice in the Gazette
56
Cap 92, section 21
57
Punishment book is the one in which the adjudication of disciplinary offences committed by inmates is
recorded
58
Cao 92, section 24
 2) Shikusa

It is Kenya’s first borstal institutions established pursuant to legal notice no. 617 of 1963. Its
model is heavily borrowed from England’s Kent District at a village called Borstal. Its
construction was commenced in 1952 by the colonial government. The institution received
its first inmate on September 20, 1963; SHB/01/1963 Peter Kabuga from Murang’a
(Information Cradle, 2019)

3) Shimo la Tewa

The institution was established in September 1965 pursuant to legal notice no. 320 of 1965. It
was mainly to serve an overflow from Shikusa. It has a holding capacity of about 320 and
receives inmates from the Coast, Garissa, Lower Eastern and parts of Central (Information
Cradle, 2019)

References
1. Information Cradle. (2019). Borstal Institutions in Kenya. Retrieved March 6, 2019, from
Information Cradle:
https://googleweblight.com/i?u=https://informationcradle.com/kenya/borstal-institutions-
inkenya/&

2. Information Cradle. (2019). Children's charitable institutions in Kenya - Children's

Home. Retrieved March 6, 2019, from Information Cradle:
https://googleweblight.com/i?u=https://informationcradle.com/kenya/childrens-
charitableinstitutions-

3. Otukho, A. A. (2017). A Situational Analysis of Youth Correction and Training Centers

in Kenya; A Case Study of the Kamiti Youth Correction and Training Center. Nairobi:
University of Nairobi Faculty of Arts; Department of Sociology and Social Work.