Mem5206 Legal Foundations in Educational Planning

Mt Kenya University
P.O. Box 342-01000 Thika

Email: Info@mku.ac.ke
Web: www.mku.ac.ke
DEPARTMENT OF EDUCATION INSTRUCTION
COURSE CODE: MEM5206
COURSE TITLE: LEGAL FOUNDATIONS IN

EDUCATIONAL PLANNING
Instructional Material for MEPL – distance learning
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MEM5206: LEGAL FOUNDATIONS IN EDUCATIONAL PLANNING
Credit Hours; 3 hours
Course Purpose
This unit is to equip the learner with knowledge, skills and attitude that will enable him to
understand the legal framework and implications of education in Kenya.
Expected Learning Outcome

By the end of this unit the learner should be able to;
(i) The various legal frameworks in education
(ii) The Kenya and judicial system and its relations with the legal frameworks in education
(iii)The laws governing education
(iv) To evaluate and understand the provision of legal frameworks in education.
Course Content
The Kenya Judicial system: sources of law: constitution, statutes, laws governing education
management, provision and planning; Educational act, legal notice: law of tort and the teachers;
classification of tort and the teachers: classification of tort-intentional negligence, absolute
liability: TSC act, children’s act, Educations act, sexual offences act; implications of frameworks
in educational planning, legal
Teaching and Learning Methodologies

Lectures; tutorials; Class discussion: assignment and Term paper
Course assessment
Examination- 60%
Continuous Assessment- 40%
Total 100%
Recommended Readings
(i) Legal framework in education, government printer, 2005, Kenya government.
(ii) The laws of Kenya, government printer 2004
(iii)The new constitution of Kenya, government printer , 2011
(iv) Brinkerhoff Derrick W, and Rudi Klauss, “Managerial Roles for social Development
management’ public administration and development, 1985
(v) Burke w.w.Organization development: principles and practices, Boston: Little, Brown,
1982
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TABLE OF CONTENT
CHAPTER ONE ........................................................................................................................................... 1
1.0 THE KENYA JUDICIAL SYSTEM ......................................................................................... 1
1.2 Courts System in Kenya...................................................................................................................... 2
1.3 The Structure/hierarchy of courts in Kenya ........................................................................................ 2
1.3.1 Superior courts ................................................................................................................................. 4
The supreme court......................................................................................................................................... 4
The court of appeal .................................................................................................................................... 4
The High Court ....................................................................................................................................... 5
1.3.2 High Court Special Powers .............................................................................................................. 7
CHAPTER TWO ........................................................................................................................................ 10
2.0 SOURCES OF LAW..................................................................................................................... 10
2.2 Constitution ............................................................................................................................... 10
2.3 Statutes ....................................................................................................................................... 13
2.3.1 Acts of Parliament.......................................................................................................................... 13
2.3.2 Judicial precedents. ........................................................................................................................ 13
CHAPTER THREE .................................................................................................................................... 15
3.0 LAWS GOVERNING EDUCATION MANAGEMENT PROVISION AND PLANNING ... 15
3.1EDUCATION ACT .......................................................................................................................... 15
3.2 The Kenya national Examination Council (KNEC) .................................................................... 15
3.2.1 The structure and organization of KNEC .................................................................................... 15
3.2.2 Functions of KNEC................................................................................................................ 17
3.3 The Kenya Institute of Education (KIE)....................................................................................... 17
CHAPTER FOUR..................................................................................................................................... 23
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4.0 LAW OF TORTAND THE TEACHERS ................................................................................... 23
4.1Introduction .......................................................................................................................................... 23
4.2 Elements of tort ............................................................................................................................... 23
4.2 General functions of the law of tort ............................................................................................... 24
4.3 The Law of tort and teachers ......................................................................................................... 24
4.4 Classification of torts ...................................................................................................................... 25
4.4.1 Intentional torts ...................................................................................................................... 25
4.4.2Negligence Torts ............................................................................................................................ 28
4.4.3Absolute Liability Tort ................................................................................................................... 32
CHAPTER FIVE ........................................................................................................................................ 35
5.0 TSC ACT, CHILDREN’S ACT............................................................................................................ 35
5.1 TSC ACT ......................................................................................................................................... 35
5.2 CHILDREN’S ACT .......................................................................................................................... 37
5.2.1 Kenyan laws providing for the children rights and child protection .............................................. 37
CHAPTER SIX ......................................................................................................................................... 54
6.0EDUCATIONS ACT AND SEXUAL OFFENCES ACT ................................................................. 54
6.1 Education Act ............................................................................................................................ 54
6.2 Sexual Offences Act ........................................................................................................................ 54
6.2.1Sexual Offences and Their Minimum Sentences ......................................................................... 55
6.2.2Offences Committed Against A child ............................................................................................. 56
6.2.3Abuse of Position of Authority ....................................................................................................... 57
6.4 Critique of The Sexual Offences Act ............................................................................................... 59
CHAPTER SEVEN .................................................................................................................................... 61
7.0 IMPLICATIONS OF FRAMEWORKSIN EDUCATIONAL PLANNING, LEGAL ........................ 61
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CHAPTER ONE
1.0 THE KENYA JUDICIAL SYSTEM
Learning objectives
By the end of this chapter the learner should be able to;
(i) Define the term law
(ii) Explain the judicial system in Kenya
1.1 Introduction
The legal system is based on the 1963 constitution, the Judicature Act of 1967, and common law
court precedent. Kenya accepts compulsory ICJ jurisdiction with reservations. Customary law, to
the extent it does not conflict with statutory law, is used as a guide in civil matters concerning
persons of the same ethnic group.
The judicial system consists of the Court of Appeal, which has final appellate jurisdiction, and
subordinate courts. The High Court, sitting continuously at Nairobi, Mombasa, Nakuru, and
Kisumu, and periodically at Eldoret, Kakamega, Nyeri, Kitale, Kisii, and Meru, consists of a
chief justice and 24 associate judges, who are appointed by the president of the republic. The
High Court has both civil and criminal jurisdiction, serving as an appellate tribunal in some cases
and as a court of first instance in others. Lower courts are presided over by resident magistrates
and district magistrates. Questions of Islamic law are determined by qadis' courts. Military courts
handle court-martials of military personnel.
Although the constitution provides for an independent judiciary, the president has considerable
influence over the judiciary. The president appoints the High Court Judges with the advice of the
Judicial Service Commission. The president also has authority to dismiss judges, the attorney
general, and other officials upon recommendation of a tribunal appointed by the president
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1.2 Courts System in Kenya
In pre colonial era different communities had different methods of restoring justice. Major
reforms are culminations of the Kenya legal system as we have it today. The most noteworthy of
these, are the judicial reforms implemented in 1967, which brought into effect three statutes,
namely;
i. Judicature Act (Cap. 8)
ii. Magistrates Act (Cap. 10); and
iii. Kadhis‟ Court Act (Cap. 11)
These three statutes repealed all other legislations other than the provisions of the Constitution,
by directing the law that was to be applied by the Courts. Kenyan law system today is therefore
based on the Constitution and other Acts of Parliament.
1.3 The Structure/hierarchy of courts in Kenya

The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects
in the Structure of Courts are:
i The structure – The hierarchy or levels of Courts.
ii Establishment – The composition or who presides in that Court.
iii Jurisdiction – The powers of different Courts to hear and determine disputes.
Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to
hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or
criminal justice) or Pecuniary ( the range of monetary or financial value of subject matter).
The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.
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The Figure: The Court Structure in Kenya
The arrow on the figure shows the hierarchy of courts in Kenya. There are two levels of courts
Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate
Courts ( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate
Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next.
The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals
from District Magistrate class III which go to Resident Magistrates courts. District Magistrate
courts are situated in all the districts except of District Magistrate Class III which in some
sparsely populated Districts especially North Eastern Province Kenya where their powers have
been delegated by the Chief Justice to the District Officers through notices in the Kenya Gazette.
This structure of the courts is based on the provisions of the Constitution, the Magistrates Court
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Act (Cap. 10), the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of
Kenya.
1.3.1 Superior courts

The supreme court
The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It
comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court, the Deputy
Chief Justice, who is the deputy to the Chief Justice and the vice-president of the court and five
other judges.
The Supreme Court is properly constituted for purposes of its proceedings when it has a
composition of five judges and has exclusive original jurisdiction to hear and determine disputes
relating to the elections to the office of President arising under Article 140 and subject to clause
(4) and (5) of Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals
from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case
involving the interpretation or application of this Constitution and in any other case in which the
Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is
involved, subject to clause (5).
The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or
overturn it.
The Supreme Court may give an advisory opinion at the request of the national government, any
State organ, or any county government with respect to any matter concerning county
government.
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
The court of appeal
Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya
2010.
Composition: The Court of Appeal consists of a number of judges, being not fewer than 12
(twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and
administered in the manner prescribed by an Act of Parliament. The Court comprises of a
President of the Court of Appeal who is elected by the judges of the Court of Appeal from
among themselves. The Court of Appeal Judges retire at the age of 74 years.
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Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has
limited original jurisdiction. It was created to hear appeals from the High court.
The only moment the Court Appeal can have original jurisdiction is in punishment for contempt
of court, and when stating execution of orders of the High Court. Procedure: The practice and
procedure of the court of appeal are regulated by the rules of court made by the Rules Committee
constituted under the Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven
number of at least three judges shall sit for the determination of any matter by the court. The
decision of the court shall be according to the opinion of a majority of the judges who sat for the
purposes of determining that matter.
The court has powers to:
i Determine a case finally.
ii Order for a trial.
iii Order for a re-trial.
iv Frame issues for the determination of the High Court.
v Receive additional evidence or order that it be taken by another court.
The High Court

Establishment: The High Court is established under Article 165 and it consists of a number of
judges to be prescribed by an Act of Parliament. The Court is organized and administered in the
manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by
the judges of the High Court from among themselves.
Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However
there are instances where two or more High Court Judges may be required to determine certain
kinds of cases.
Appointment of Judges: Are appointed by the President in accordance with the advice of
Judicial Service Commission. They are laid down special qualifications required of a person to
be eligible for appointment as a Judge, namely:
He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal
matters in some part of the Commonwealth or in the Republic of Ireland or a court having
jurisdiction in appeals from such a Court or;
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He /she is an Advocate of the High Court of not less than seven years standing or;
He /she holds and has held for a period of or periods amounting in aggregate to not less than
seven years, one or other of the qualifications specified in Section 12 of the Advocates Act.
Jurisdiction:
i The High Court has unlimited original jurisdiction in criminal and civil matters.
ii The High Court has jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or threatened.
iii The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed
under the Constitution or national legislation to consider the removal of a person from office,
other than a tribunal appointed under Article 144.
iv The High Court has jurisdiction to hear any question respecting the interpretation of this
Constitution including the determination of: the question whether any law is inconsistent with or
in contravention of the Constitution, the question whether anything said to be done under the
authority of the Constitution or of any law is inconsistent with, or in contravention of the
Constitution, any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the levels of
government, and a question relating to conflict of laws under Article 191;any other jurisdiction,
original or appellate, conferred on it by legislation.
v The High Court does not have jurisdiction in respect of matters reserved for the exclusive
jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the
courts contemplated in Article 162 (2).
vi The High Court has supervisory jurisdiction over the subordinate courts and over any
person, body or authority exercising a judicial or quasi-judicial function, but not over a superior
court. Also being a Superior court of record means that the decisions of the High Court as
precedents, are binding on the subordinate courts by the doctrine of stare decisis.
vii Although High Court has unlimited original jurisdiction in civil and criminal cases in
actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts
i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject
matter, in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence
authorized by law.
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viii In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other
matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers
and jurisdiction in the following matters as conferred to it by the constitution and other
legislations some of which are given hereinafter:-
1.3.2 High Court Special Powers

1. Supervisory Jurisdiction
The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction
in any civil and criminal proceedings before subordinate courts and may make such orders, issue
such writs and give such directions as may consider appropriate for the purpose of ensuring that
justice is duly administered by such courts. This includes the power of the High Court to transfer
proceedings from one court to the other.
To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other
available remedies and right of appeal. In exercise of its supervisory powers under judicial
review, the high court may issue any of the prerogative orders of:
 Mandamus – The literal meaning of mandamus is “we command”. This is an Order

issued by the High Court to any person or body commanding him or them to perform a
public duty imposed by law or state. The order is available to compel administrative
tribunals to do their duty e.g. to compel a licensing board to issue a license on application
of him who has met the prescribed criteria.
 Certiorari – The term means to “be informed”. This is an Order issued by the High Court
directed at an inferior court body exercising judicial or quasi-judicial functions to have the
records of the proceedings presented to the High Court for the purposes: To Secure an
impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To
correct errors of law on the face of the record. To quash a judicial decision made against
the rules of natural justice. An order of certiorari will be wherever anybody of persons
having legal authority to determine questions affecting the rights and having a duty to act
judicially, acts in excess of their legal authority. It therefore serves to quash what has been
done irregularly.
 Prohibition – This is an order issued by the High Court to prevent an inferior court or
tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in
violation of the rules of natural justice.
 Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive. This
order is issued where the personal liberty of a person is curtailed by arrest and confinement
without legal justification. By issuing this order, the High Court calls upon the person
holding the body to answer by what authority are they continuing to withhold the
individual and with the aims at securing release of such persons held apparently without
legal justification.
2. Interpretation of the constitution
The Constitution provides that where any question as to the interpretation of the constitution
arises in any proceedings in any subordinate court, and the court is of the opinion that the
question involves a substantial question of law, the court may, and shall if any party to the
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proceedings so requests, refer the question to the High Court. The High Court shall be composed
of an uneven number of judges, not being less than three when it determines the constitutional
question referred to it. The decision of the High Court is binding on the Court that referred the
question to the High Court and it must dispose of the case in accordance with the High Court’s
decision.
3. Admiralty Jurisdiction
Section 4 of the Judicature Act Chapter 8 (1967) provide that the High Court will act as a court
of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any
lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the
conformity with international law and the comity of nations”.
4. Election jurisdiction
Under the National Assembly and Presidential Election Act, the High court has special powers to
hear and determine disputes arising from the national electoral process. The High Court may
make an order as it deems fit, including the nullification of the election results upon hearing of a
petition presented to it by a voter or loser in the election.
For the High Court to nullify the election of a Member of Parliament, the petitioner must prove
that an election offence has been committed. The composition of the High court is that one (1)
Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is
presidential election. Any appeal on the High Court decision on Presidential election goes to the
Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the
election of councilors go to subordinate courts.
5. Succession/Probate Jurisdiction
The Probate Division of the High court has jurisdiction to hear any application and determine
any dispute and pronounce such decree and issue such orders as my be expedient in inheritance
matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will
to administer the property of the deceased.
6. Matrimonial Cases
The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the
High Court may issue orders for:
 Dissolution of marriage.
 Nullity of marriage.
 Separation and maintenance (alimony).
 Custody, adoption and guardianship of infants
 Spousal Property and financial adjustments etc.
7. Other powers
 To protect and enforce Fundamental rights and Freedoms of individuals which are set out
in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
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 To hear and determine Bankruptcy proceedings.
 To supervise winding up of dissolved companies.
The current Courts system is a post 1977 Court structure.
The Courts operate two levels, i.e. Superior Courts and Subordinate Courts. Superior thereby
being The Court of Appeal and The High Court. All other Courts are Subordinate.
The most important aspects are;-
1. The structure i.e. the hierarchy or levels of Courts.
2. Establishment,
3. The composition i.e. who presides in that Court.
4. Jurisdiction i.e. powers of different Courts to hear and determine disputes.
Jurisdiction can be either;-
i. Geographical i.e the territorial limits of their powers.
ii. Functional i.e. powers to hear Original appellate matters or both.
iii. Subject matter i.e. whether it is civil or criminal justice.
iv. Pecuniary i.e. range of monetary or financial value of subject matter
Revision Questions
1. Briefly explain the structure of courts in Kenya
2. Explain the functions of supreme courts in Kenya
3. What are the special powers held by High Court in Kenya
1982
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CHAPTER TWO
2.0 SOURCES OF LAW
Learning Objectives
By the end of this chapter the learner should be able to;
(i) Explain various sources of law in Kenya
(ii) Explain briefly how constitution if a source of law
2.1 Introduction
The sources of the Laws of Kenya are contained in section 3 of the Judicature Act (Chapter 8
Laws of Kenya) and include the constitution which is written, legislation, which includes Acts of
the Parliament of Kenya; specific Acts of the parliament of the United Kingdom and the Law of
Contract Act (Chapter 23 Laws of Kenya); subsidiary legislation, the substance of the common
law, the doctrines of equity and the statutes of general application in force in the United
Kingdom on August 12, 1897 and the procedure and practice observed in courts of Justice in the
UK at that date.
The common law, the doctrines of equity and the statutes of general application in the UK as
indicated above only apply so far as the circumstances of Kenya and its inhabitants permit. The
constitution is the supreme law and takes precedence over all other forms of law, written or
unwritten
2.2 Constitution
Any modern state or institution is expected to deal with various types of social, political and
economic problems. To carry out these functions smoothly it needs a comprehensive framework
through which it operates. These responsibilities would accordingly be integrated into the
Legislative, Executive and Judicial operations. The constitution is therefore the single formal
document, which defines the composition and powers of different organs of the state or the
institution and their relationship with each other and to private citizens.
Lord James Bryce defines the constitution as consisting of „those rules of laws which
determines the form of its government and the respective roles of its organs and the respective
rights and duties of it towards a citizen and of a citizen towards the Government‟.
A constitution may be written or unwritten. A written constitution is one which most of the
important constitutional provisions are enacted in a formal document or series of documents.
A written constitution is generally considered to be rigid i.e. can only be changed in some
manner e.g. by requiring a specified majority. Kenya‟s current constitution promulgated on the
27th of August, 2010 is a written constitution just like the previous one. It provides for a rigorous
approach to amendment at Chapter 16 to guard against arbitrary and uncalled for amendments.
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It has a total of 18 Chapters,264 Articles and 6 schedules. Article 2(4) of the constitution
establishes its unchallengeable position over any other written or unwritten law i.e. the
supremacy of the constitution. The constitution of Kenya establishes the legislature (Chapter 8),
the executive(Chapter 9), the judiciary (Chapter 10) as well as the fundamental rights and
freedoms of individuals (Chapter 4). A study of constitution entails consideration of the

following:
a. Historical circumstances in which constitution came to be adopted.
b. Political and philosophical values underlined in the constitution i.e. Liberal democracy, the
preamble etc.
c. The position of authority enjoyed b y constitution within the legal order i.e. supremacy of the
constitution.
d. Individual provisions of the constitution and their implications.
e. Amendments and interpretation for practical operations of the constitution.
Supremacy of the constitution.
In countries where there exists a written constitution, the constitution invariably enjoys a pre-
eminent position within the legal order. The constitution is regarded as the law within which the
framework or detailed rules and practice are to be laid out. The constitution takes precedence
and supremacy over all other laws. The theory behind supremacy of the constitution is that it
embodies a contract between the government and the governed. The constitution must therefore
not be altered in the same manner as ordinary legislation. The constitution is or is supposed to be
the product of the exercise of the constituent power inherent in the people and it is from it that all
legislative Acts derive their authority.
In the context of Kenya, the concept of the supremacy of the constitution is captured in Article 2
of the constitution. It provides that;
- The constitution is the supreme law
- The validity or legality of the constitution is not challengeable
- Any act or omission in contravention of the constitution is invalid
- It is binding upon all persons and state organs at all levels
- State authority must be exercised as authorized by the constitution

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- Every person is obligated to respect, uphold and defend the constitution
- Any attempt to establish a government without complying with the constitutions requirement in
doing so is unlawful
This provision further subject other laws to the constitution and in particular, it
provides that:-
- Any law including customary law that is inconsistent with the constitution is void to the extent
of inconsistency
- Any treaty or convention ratified by Kenya forms part of the constitution
Amendment of the Kenyan Constitution (Chapter 16, Articles 255, Article 256, Article 257)
Article 255 requires that a referendum be held in case a proposed amendment touches on the
named areas which include:
(a) the supremacy of the constitution
(b) the territory of Kenya
(c) the sovereignty of the people
(d) the Bill of Rights
(e) the term of office of the President
(f) the independence of the Judiciary
(g) the functions of Parliament
(h) the objects, principles and structure of devolved government
A proposed amendment shall be approved by a referendum if at least 25% of the registered

voters in each of at least half of the counties vote in the referendum and is also supported by a
simple majority of the citizens voting in the referendum. An amendment not relating to matters
aforementioned shall be enacted either by Parliament (Art. 256); or by the People and Parliament
(Art. 257).
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2.3 Statutes
All other written laws refer to the legislations or statutes. Legislation in the \context of Kenya
specifically include:
- Acts of parliament.
- Certain specific Acts of U.K. Parliament.
- Statute of General application.
- One Indian Act – Transfer of Property Act.
- Delegated legislation.
2.3.1 Acts of Parliament.

During the colonial period in Kenya, three institutions exercised legislative power.
i. The British Parliament which had powers to legislate for colonies.
ii. The British Crown – It had powers to legislate for the colonies by virtue of:
iii. The local legislature.
In Kenya today the power to legislate is vested in the Kenyan Parliament which consists of the
National Assembly and the Senate established under Chapter 8 of the Constitution.
2.3.2 Judicial precedents.

Judicial precedent means decisions of judge‟s laying down legal principles for cases coming
before it. They are also referred to as case law. They are found in judicial decisions or
judgments. They provide common reference to judge made law. They are found in law reports.
Both common law and equity have developed through the doctrine of judicial precedents and
stare decisis, which means that in trying and deciding cases as a judge, he must look back to see
how the previous judges have dealt with the case involving similar facts.
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Revision Questions
1. Explain the primary sources of law in Kenya
2. Discuss how the new constitution of Kenya is different from the old constitution
(v) Burke w.w. Organization development: principles and practices, Boston: Little, Brown,
1982
14
CHAPTER THREE
3.0 LAWS GOVERNING EDUCATION MANAGEMENT PROVISION AND
PLANNING
Learning Objectives
By the end of this chapter the learner should be able to:
(i) Explain the laws governing education in Kenya
(ii) Discuss the education Act
(iii)Discuss the legal notice of Kenya
3.1EDUCATION ACT
3.2 The Kenya national Examination Council (KNEC)
KNEC was established by an Act of parliament (1980 Act) Chapter 225(A) (Revised in 1981). It
was established as a corporate body or parastatal organization by section 3(2) of the Council Act
(Shiundu and Omulando,1992).The KNEC Act forms the legal basis for the conduct and
administration of public examination in Kenya. The Act replaced the East African Examination
Act of 1967 and the powers conferred on the Minister for Education by Section 20,21 and22 of
the 1968 Act by which the minister may provide for the conduct of public examinations, issues
of certificates and diplomas and formulate regulations for conduct of exams and issues of
certificate.
3.2.1 The structure and organization of KNEC
This is composed of:
1. The Governing Council
This is made up of the representatives from the government, other parastatals, religious
bodies and Non-governmental organizations. This is the highest decision making organ in
KNEC and it is chaired by the chairperson of the council. It deals with matters such as:
(a) General policy
(b) Receiving progress reports on council activities
(c) Making decisions on national issues that have a bearing on council policy.
2. The finance and General Purpose Committee

This is also chaired by the chairperson of the council. It is considered as the executive
committee of the council and it deals with matters of
 Finance
 personnel
 Terms and conditions of service
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 Staff development
 Preparation of estimates of expenditure and revenue
 Preparation of statements of assets and liability
 Reports upon the progress and work of the council(Upon the presentation of the
reports,, the council forwards the same to the minister for Education who after
receiving the Audit report from the Auditor General lays all of them before the
National Assembly for deliberation and consideration
3. The Examination Security Committee
This organ deals with:
 Matters of professional security pertaining to the conduct of examinations
 It is responsible for entry regulations for award of certificates that are awarded y
the council
 It deals with the approval of subjects to be examined and syllabus is prepared by
professional committees and examination panels and approval of examination
centres
 It also deals with the general administration of all the council examinations
4. Professional Committees
There are professional committees for each broad area of examinations..These
professional committees include
 The primary examinations committee
 The secondary school examination committee
 The business examination committee
 The technical examination committees
 The regulation and equation committee
These committees’ reports to the security committee on matters as entry regulations for
the award of certificates and subjects examined at various levels.
5. The Examination Panels

These are for each subjects or group of subjects that are examined at the primary
secondary and post-secondary institutions. These panels:
 Cater for the requirements of the subjects such as development of examination
papers, criteria and methods of award, changes in syllabuses research and texts for
the course
 Are responsible to the relevant professional committees.
6. The council Secretariat
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According to Shuindu and Omulando (1992) the day to day functions of the council are
executed by the secretariat. The organization of the secretarial therefore reflects these
functions and operations involved in carrying them out
2.2.2 Functions of KNEC

(i) It conduct such academic, technical and professional examinations within
Kenya as it may consider desirable in the public interest.
(ii) To award diplomas and certificates in the examinations administered by
the council
(iii)To invite anybody or bodies outside Kenya as it may think fit to conduct
academic, technical and professional examinations within Kenya or to
conduct these examinations jointly with them.
(iv) To advice anybody or bodies invited form outside Kenya to conduct
examinations or on how to adapt their examinations to fit the
requirements of Kenya and to assist any such bodies to conduct such
examination
(v) To make rules regulating the conduct of examinations, structure and
organization
(vi) It is also empowered to do all that pertains to corporate body
3.3 The Kenya Institute of Education (KIE)
KIE was established in 1968 by Education Act, Cap 211, of the laws of Kenya, and its legal
status defined in the 1976 KIE Order, issued through Legal Notice No. 105 of 1976, as provided
for by the Act. Amendments to this Order are made by Legal Notice No. 144 of 1980, and Legal
Notice No. 126 of 1984.
But the origin of the KIE dates as far back as 1957 when an English Special Centre (ESC) was
set up in Nairobi for the purpose of coordinating and advising the Ministry of Education on the
teaching of English. This was followed in, 1961, by a Science Center with an aim of promoting
the standards of science teaching in the country. In 1965, a Mathematics Center was also set up
to develop and implement the then new mathematics curriculum for schools. These three centers
were amalgamated in January 1966 to form a Curriculum Development and Research Centre
(CDRC). CDRC was also to incorporate all the other subjects.
Also evolving at that period was a center for teacher education programmes, known as the Kenya
Institute of Education (KIE). KIE was established in April 1964 as a direct result of the
Conference of Institutes of Education, which was held in Mombasa, Kenya, in January 1964. The
then University of East Africa, in conjunction with the ministries of education of Kenya, Uganda
and Tanzania, and other interested bodies, sponsored the conference. The then KIE was based at
Kenyatta College (now university), and had the following functions:
17
 Administer scheme of college examinations;
 Recommend to the Ministry of Education on the award of certificates;
 Serve as a center for professional activity for teachers, officers of the government and
others involved in educational work;
 Promote and cooperate in the provision of conference and in-service courses for teachers
and others engaged in, or intending to engage in educational work.
 Arrange for lectures and overseas courses of lecturers;
 Promote educational research and secure due publication of the results;
 Foster improvements in educational practice;
 Provide advisory services to the Government and other organizations.
CDRC served in the membership of KIE panels. In 1966 the CDRC and the Kenya Institute of
Education were merged to form the current Kenya Institute of Education with its location at the
then Central Teachers College, Nairobi. The Central Teachers College was relocated to the
Kenya Science Teachers College, Nairobi.
Another addition KIE was the education media service, which had started in 1963 as a School
Broadcasting unit of the Ministry of Information and Broadcasting, and based at Mombasa
House, Nairobi. In 1965, the unit was taken over by the Ministry of Education, and in July 1976
it was moved to KIE, and became the Educational Media Service (EMS) with expanded
responsibilities of the production of multimedia learning resources Over the years, the role of the
Institute has expanded to respond to emerging needs including:
 Development and strengthening District Centers for Early Childhood (DICECEs).

 Development (DICECES) through NACECE.
 Projections to develop and establish a modern NACECE Resource Centre to respond to
the increasing National and International training needs.
 Development and implementation of Non formal Education curriculum.
 Dissemination of Education Programmes through a third channel.
 Upgrading of skills for personnel in the education and other sectors of our economy.
 Printing and publishing of educational and other materials.
 Offering consultancy services in Education and Training.
 Development and implementation of specialized professional training programmes.
 Networking of Information Systems.
The Government of Kenya established the e-Government Programme in June 2004. It has since
then committed itself towards achieving an effective and operational e-Government to facilitate
better and efficient delivery of information and services to the citizens, promote productivity
among public servants, encourage participation of citizens in Government and empower all
Kenyans.
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(1) There is hereby established the Kenya Institute of Education with responsibility for the co-
ordination of Institute of institutions devoted to the training of teachers, the conduct of
examinations to enable persons to become qualified teachers, the conduct and promotion of
educational research, the preparation of educational mate- and other with the training of
teachers and the development of education and training.
(2) The Minister may by order, prescribe- the duties, powers and functions of the Institute the
manner in which the Institute shall be managed and controlled by a council including persons
representing the Minister, the University of Nairobi and the maintained training colleges of
Kenya; the constitution, duties, powers and functions of an academic board responsible to the
council for the academic management of the Institute: that the movable and immovable property
of theInstitute may be vested in the Public Trustee and manner in which they shall be 10 and
Many other matters with respect to the conduct and management of the Institute which the
Minister considers it necessary or able to provide for
(1) The Minister may provide for the conduct of public 'examinations, and may issue certificates
or diploma, to pupils who have been successful in a public examination for the conduct of which
he has provided.
(2) The Minister may issue certificates and diplomas to pupils who have successfully completed
an approved education or training.
(b) a person who has received the consent of the given by notice in the Gazette,
Operation structure of KIE

KIE is largely a self governing unit under the Ministry of Education. The governing functions of
the institute are performed by the following:
The Governing Council
This is the senior-most organ with members appointed by the Minister for Education. It is
composed of prominent educators, administrators and prominent representatives of various
religious organizations. The director if KIE acts as the secretary to the governing council.
Members hold office for three years and are subject to reappointment. The governing Council
performs the following functions:
 To guide policy matters of the institute
 To guide the activities of the institute on behalf of the ministry
According to the KIE Strategic Plan 2006-2010,the Governing council has a number of
committees that include the Academic Board, Finance and General Purposes Committees, The
Procurement Committee, Human Resource Committee and the National Centre for childhood
Education Committee. The most important committees among these are the academic board and
finance and general purposes committee.
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1. The Academic Board
It is chaired by the Education Secretary and the Director of KIE acts as its secretary. The
Academic Board performs the following
 It guides the professional activities of the institute such as research and evaluation
of instructions programmes
 Actual curriculum development
 It guides the work of course and subject panels
2. Finance and General Purposes Committee

 Guides the executive and administrative functions of the institute
 Controls the appointment of the tender committee
 Provides support services to the main activities of the institute which fall under
the academic board
3. Course Panels
 They keep under constant review the existing curriculum of a relevant phase of
education or training and make recommendation to the academic board
 They guide and coordinate the activities of the subject panels in their areas of
juridisction.
 They co-operate where applicable with the other institutions and agencies
engaged in the training of industrial and commercial manpower outside the
Ministry of Education
4. Subject Panels
 They initiate and guide appropriate KIE curriculum development activities in
relevant subjects
 They keep under constant review all examinations conducted in the country in the
relevant subject or curriculum area and make recommendations to the course
panels
 They review and recommend books for use in the schools and teacher colleagues
in the relevant subject or curriculum area.
Functions ofKIE
 It conducts research and prepares syllabuses for pre-primary education, primary,
secondary, teacher education, specual needs education, post-school technical and
business education and aduld and continuing education.
 To conduct research and prepare teaching and learning materials to support any
syllabuses including the prepararion of books, teaching guides, mass media
programmes and other materials.
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 To conduct in-service courses and workshops for teachers and teacher trainers
who are involved in carrying out experiments and trials of any syllabuses and
teaching materials.
 To conduct orientation programmes for field education officers and to keep them
informed of the developments that are taking place in the school and teachers
colleges curriculum.
 To develop and transmit programmes through mass media to support the
development that are taking place in education
 To conduct educational research and develop an appropriate curriculum.
3.4 Commission for Higher Education

3.4.1 Establishment of Commission of Higher Education
Following the recommendation by the President working party on the second university Mackay
Report, 1981)that a body be established to look into quality and expansion of higher education,
the commission for Higher Education was established through the enactment of the Universities
Act in July 1985.Itwas inaugurated on 16th October1985
3.4.2 Composition of Commission for Higher Education

It consists of a chairman and vice chairman who are appointed by the president. It has more than
fifteen members appointed by the president by virtue of their experience in university education
and research. The permanent Secretary to the Minister who is responsible for University
education, a chief secretary, director of personnel Management and others not more than three
co-opted by the commission. In total the commission should have between 11 and 16 members
3.4.2 Functions of the Commission
The functions of the commission, which are legally defined in section 6 of the Universities Act,
are grouped into six categories namely:
 Planning, programming and financing of the public universities
 Co-ordination of admission processes
 Accreditation of post-secondary training institutions
 Co-ordination of post-secondary training institutions
 Standardization, equation and recognition of qualifications
 Documentation information service and public relations
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3.5 Summary of Acts of Parliament and Legal Notice that Regard to the Provision of
Education in Kenya
Those involved in the provision of education in Kenya need to be aware of the following Acts of
Parliament and Legal Notices including many others that are not mentioned here
 The Education Act cap 211 of the laws of Kenya which provides for the regulation and
progressive development of education in Kenya.
 The Teachers Service Commission Act, 1967 Cap 212 on the functions and powers of the
Teachers Service Commission.
 The Legal Notice No. 106 of 1968 on regulations of education standards in Kenya and
the Establishment of KIE(KIE operations were further regulated through the Legal
Notices No. 105 of 1976, Legal Notice No. 144 of 1980, Legal Notice No.126 of 1984
and Legal Notice No. 125 of 2004.
 Legal Notice 190/1978on the establishment of school committees.
 The KNEC Act, 1980 Cap 225 (Revised in 1981)
 The Kenya Literature Bureau Act of July 1980.
 The Universities Act of July 1985 which established the Commission for Higher
Education.
 The July 1995 Act of Parliament establishing Higher Education Loans Board.
 The health Act Cap 242 (Revised in 1972)which empowers themedical officer of health
or sanitary inspector to inspect the premises (including schools to determine whether or
not they conform to required standards of health according to the Act)
 The children’s Act 2001 which among other issues deals with educational rights of a
child.
Revision Questions
1. Explain the functions of KIE
2. Briefly describe the various education Acts in Kenya
3.
1982
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CHAPTER FOUR
4.0 LAW OF TORTAND THE TEACHERS
Learning Objectives
(i) Define law of tort
(ii) Explain element of tort
(iii)Explain the law of tort and teachers
4.1Introduction
Tort refers to the breach of a legal duty which affects the interests of individuals to a degree
which the law regards sufficient to allow that individual to complain his/her own account rather
than representative of society as a whole.
According to Saleemi (2008) the word tort is derived from the Latin term “tortum” which means
to twist or crooked and implies a conduct which is not justified by the law f the land. It is an act
that injures someone in some way and which injured person may sue the wrong doer for. In the
context of law a tort is a civil wrong or even criminal.
No legal system with an element of fundamental unfairness will service long unless some relief
for the unfairness is available. The relief for the unfairness of legal procedure in common law
courts was the development of ‘equity’. Equity is just another word for fairness.
4.2 Elements of tort

There are three fundamental tenets for an act to constitute a tort:
 Some wrongful act or omission by the defendant i.e the person who is being sued for his
alleged wrongful act.
 Legal damage to the plaintiff i.e the person who brings the action in the court, some his
legal rights is violated e.g refusing him to vote without justifiable reasons.
 The wrongful act must be of such a nature as to give rise to a legal remedy in the form of
an action for damages. The act of omission may or may not cause actual damage
plaintiff. Certain civil wrongs are actionable even though no damage is suffered by the
plaintiff e.g trespass of land.
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4.2 General functions of the law of tort
Saleemi92008) outlines the functions of the law of torts as follows:
(i) The primary function of the law of torts is to compensate persons injured by the wrongs
of others by compelling the tort feasor to pay for the damage occasioned by his tort.
(ii) To determine rights between parties to a disputes. A party to a dispute may bring an
action for a declaration of his right and once the court makes the declaration the rights
of the parties are determined.
(iii)To prevents a continuance or repetition of harm. Where the injury complained of is of
continuous nature or likely to be repeated by the tort feasor.
(iv) To protect certain rights recognized by the law e.g. a person’s reputation or right to good
name, these are the rights which every individual is entitled to and protected by the
law of tort.
(v) To restore property to its rightful owner where property is wrongfully taken away form
its rightful owner.
4.3 The Law of tort and teachers

Tort applies to the teaching profession too. The code of regulation for teachers compiled
pursuant to section 6(1) of the teachers service Commission act cap 212of the law of Kenya
(legal notice no.2 of 1967) provides terms and conditions of service for the teaching service. A
teacher is a person who helps others to learn by providing instructions in the area of expertise. In
education a teacher is a person who provides schooling for others or a person whose occupation
is teaching. The TSC code of regulations provides the basis of reference to the contract between
teachers and their employer as well as teachers and the society they are serving (parents,
students, education officials and the communities at large)
The TSC code of regulation for teachers chapter x outlines the commissions expectations on
teachers performance of duties and the offences for which they may be disciplined and regulation
65 outlines performance for duties. The code of further in sections 66-68;lays down the grounds
for interdiction, process of interdiction, disciplinary proceeding by the commission,
determination of disciplinary cases by the commission, appeals against a decision of the
commission, termination and the role of the teachers service appeals tribunal. The regulations
stem from section9(1) and (2) legal notice No. 137/1967 section 10 and 11 (i) of TSC Act Cap
212 laws of Kenya
Further the TSC code of regulations chapter xi provides the legal proceeding by and against
teachers arising out of discharge of their duties. Regulations 69,70 and 71 outlines the defense of
teachers in criminal proceedings, in civil suits and instituting civil proceedings respectively.
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4.4 Classification of torts
Torts are classified into three categories;

(a) Intentional torts
(b) Negligence torts
(c) Absolute liability torts
4.4.1 Intentional torts

These are usually offences committed by a person who attempts or intends to do hard. For
intentional torts to exist the individual must be aware that injury will be the result of the act. A
common type of intentional tort is Assault. Assault refers to an overt attempt to physically inure
a person or create a feeling of fear and apprehension of injury. An assult strictly speaking is
conduct or threat to do violence to another person in circumstances giving rise to the
apprehension that the plaintiff is in real danger. No actual physical contact is to take place for an
assault to occur. But not every threat amount to assault, there must be in all cases the means of
carrying out the threat into effect. For instance, holding a fist or shaking of a stick, when near
enough to be able to his another is assult, while floulishing a sword at such a distance that it
would be impossible to hurt anyone is not an assault.
Battery is another example of intentional tort that results from physical contact. Battery is the
actual unwarrantable striking another person or mere touching in a rude manner, pouring water
or spiting in another’s face. It is immaterial whether the force is applied directly or indirectly to
the person. But it must be taken into account e.g travelling in a crowded bus in peak hours will
create inevitably the situation in which the people will come into bodily contact with each other
this not a battery. Another example, is a person picks a chair and threatens to hit another person,
assault has occurred. If a person then actually hits the second person, battery has occurred. The
education act(1969:73) has spelt out the procedure for corporal punishment. Both assault and
battery can occur if a person threatens another, causing apprehensive and fear and then actually
strike the other resulting in actual injury.
Teachers are accused of assault and battery. This is because assault and battery often result from
attempt to discipline a student or stop a student from injuring someone. Courts are generally
reluctant to interfere with teachers’ authority tom discipline students. Courts have found teachers
guilty of assaults and battery, however, only when a teacher’s discipline has been, cruel, brutal,
exercised or administered with malice, anger or intent to injure. Teachers’ intention is to correct
and instill discipline to students.
In determining if a teacher’s discipline constitute, excessive and in reasonable punishment,

courts will often examine; the age of the student, the instruments used to administer the
25
discipline, the extent of the discipline,, the nature of the gravity of the student offence, the
history of the student, previous conduct and the temper and the conduct of the teacher. On the
other hand assault and battery may be justified in what is called legitimate disciplinary action. In
such cases people such as parents can inflict reasonable punishment for correction and benefit of
the children, but the punishment must be reasonable and not inhuman.
Critique
 Initially, according to education act of 1968, corporal punishment was allowed but
currently with the advent of the children act and children rights, the government banned
the corporal punishment in schools in April 2001 as a matter of policy under legal notice
No. 56/2001(The Education School Discipline Amendments Regulation, 2001).
 Students question the continued use of the cane or corporal punishment by the teachers
because they are aware of its ban. Sometimes this makes the student indiscipline.
 Despite the ban of the cane, some parents still insist that the students be caned as a form
of punishment instead of using other strategies of manning indiscipline. They claim other
strategies of managing indiscipline cases are not effective.
Other examples of intentional torts mostly committed by teachers include;

 Immoral conduct
Tort in this category include:
(i) Carnal knowledge
Sexual relations with students, this could be under influence of alcohol or drugs.
The TSC code of conduct and ethics, article 9:1 states that:
(a) A public officer shall not engage in any sexual activity with a student
regardless of whether the student consents or not.
(b) A public officer shall not make a request or exert pressure on a student for
sexual activity or favours
(c) A public office shall not flirt with a student
The TSC code of regulation (2005) prohibits this whether with consent of the student or not. the
penalty to the teacher who engages in carnal knowledge with a student is interdiction without
any salary, pending investigation. The teacher may also be dismissed and his/her name removed
from the register if found guilty of the allegations made against him.
(ii) Sexual harassment.

Some immoral actions of the teacher may result to sexual harassments.
According to TSC code of conduct, sexual harassment includes doing any of the
following;
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(a) Making requests or exerting pressure for sexual activity or favours.
(b) Making intentional or careless physical contact that is sexual in nature.
(c) Making gestures, noises, jokes or comments including innuendoes, regarding
another person’s sexuality.
(iii) Sodomy: sexual act involving a male teacher and a male student
(iv) Penile knowledge
(v) Dating of learners.
 Insubordination. This is failure to obey instruction from the supervisor.

The teacher is required to obey the directions given by the commission, its agents, the
head teacher, BOG, school Quality assurance Officers e.tc(GOK,2005: GOK,
1968,section 18). The penalty to the teacher who is guilty of insubordination is
interdiction, without any salary, pending investigation. The teacher may also be
dismissed and his/her name removed from the teachers register if found guilty of the
allegations made against him. 9GOK2005)
Critique
Some head teachers/ supervisors act out of malice and accuse the teachers even when they
are not in the wrong. Some based ib higher grades. E.g those who don’t have higher grades
are in management leading to false accusation against those teachers who hace i.e Masters
and PhD degrees.
 Incitement, this may take the form of:

(a) Inciting learners against school administration.
(b) Inciting teachers against school administration
(c) Inciting learners in one class against another class
(d) Inciting learners to reject a certain teacher.
The penalty for the teacher who is guilty of engaging in any activities which in the
opinion of the commission are prejudicial to peace, good order or good governance in
Kenya(inciting is interdiction and removal from the teachers register.
Critique
 Inciting is used as revenge for other things
 Some of the incitement indicates malfunctioning which needs solutions. Lack of facilities
that are necessary for proper learning in school.
 Mismanagement/ Misappropriation of public funds

Code of conduct and ethics article15:1 states that a public officer shall take all reasonable
steps to ensure that property that is entrusted to his/her care adequately protected and not
misused or misappropriated.
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According to the code of regulation(2008), a teacher who has mismanaged or
misappropriated public funds can be served with a notice of interdiction and half salary
pending investigations which may lead to warning, suspension, dismissal, retirement in
the public interest or removal from the register if found guilty.
 Fraudulent claims and receipts of funds

The code of ‘conduct and ethics for teachers articles 15:1 states that “a public officer
shall not knowingly give false or misleading information to members of the public or to
any other public officer”. The penalty to the teacher who is guilty can be served with a
notice of interdiction and half salary pending investigations which may lead to removal
from the register if found guilty.
 Use of false certificates

The penalty to the teacher who is guilty can be served with a notice of interdiction and no
half salary pending investigations which may lead to removal from the register if found
guilty.
 Forgery, impersonation and collusion

The penalty to the teacher who is guilty cab be served with a notice of interdiction and no
half of the salary pending investigations which may lead to removal from the register if
found guilty
4.4.2Negligence Torts
Negligence is one of the most importance torts in the law. Judge Aderson defined it as ”being in
the omission to do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs would not do” (Sallemi ,2008) Negligence
signifies full advertence to one’s conduct and its consequences.
The law of tort in relation to negligence concerns itself with carelessness only where there is a
duty to take care and where failure in that duty has caused damage. In such circumstances,
carelessness assumes legal quality of negligence and entails the consequences in the law of
negligence. The cardinal principle of liability is that “the party complained of should owe to the
party complaining a duty to take care and that the party complaining should be able to prove that
he has suffered damage in consequence of a breach of that duty”
According to Saleemi (2008), as a tort, negligence consists of three elements

(i) A legal duty on the party of the defendant towards a plaintiff to exercise care in such
condition the dependent as falls within the scope of the duty. Lord Atkin further
asserts that a duty of care is a duty to take reasonable care to avoid acts or omissions
28
reasonably for seeable as likely to cause injury (saleemi 2008) . In tort therefore the
duty is fixed by law and it is owed to persons generally.
(ii) Breach of that duty
The duty of care is said to be breached where the defendant fails to exhibit the standard of care
required of him. The breach will occur if the defendant caused injuries or losses which he could
have avoided by using reasonable care.
(iii)Injury to the plaintiff
The plaintiff must prove that he has suffered damage or injury as a result of the defendant’s
breach of his duty of care. In court, all the three elements must be proved before damage is
awarded for negligence torturous liabilities arise from the breach of a duty primaliry fixed by
law. There are different ways in which liability in tort may arise;
 Liability may be imposed a legal consequence of a person’s act or his omission if he is
under legal duty to act e.g the case of a bursar messing school funds-m the head teacher is
answerable because he is the financial officer/ accounting officer in the school.
 Liability may be imposed upon one person as a legal consequence of the actor omission
of another person with whom he stands in some special relationship e.g master and
servant or teacher and students.
 In some cases liability is based upon fault, sometimes in intention to injuries required but
more often negligence is sufficient. Most torts damage resulting to the plaintiff as a
consequence of the defendant’s conduct.
In school teachers’ have a duty of care to students in their custody from unreasonable risk . The
teacher must be proved to have failed in that duty by not exercising a reasonable standard of care
and there must be a casual connection between the breach of the duty to care and the resulting
injury. The element of duty of care is clearly part of the teacher’s responsibility. However,
accidents that could not have been prevented by reasonable care do not constitute negligence e.g
students playing and accidentary get hurt or hurt each other e.g hockey, football, rugby etc. a
student collapses and dies in school. Teachers have a duty to anticipate forseeable danger and
take necessary precautions to protect students in their care. Students who bring negligence
claims must prove that the school personnel should have forseen and prevented the injury by
exercising proper care.
Apart from imparing knowledge to learner, teachers’ duties may also include:
(a) Adequate supervision both within the school and outside.
(b) Maintenance of equipment and facilities such as;
(i) Playground general cleanliness of the compound.
(ii) Laboratories
(iii) Electronic gardgers, computers
(iv) Generators
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(v) Hostels, kitchens, toilets
(vi) Swimming pools
(vii) Power control areas/stores
(viii) Road crossing areas for those schools near major high ways e.g head teachers
should liase with the ministry of works to provide a pedestrian crossing and
bumps bear the school.
(c) Supervision of high risk activities e.g swimming lessons, gymnastics practical laboratory
lessons, field trips in parks, use of hurricane lamps in the dormitories at night- students
may forget to put them off then they burst. Practical agriculture lessons e.t.c. there should
be a teacher or a qualified technician on duty during such lessons and activities as a
matter of precautionary measures. Teachers also suffer vicarious liability for torts
committed by other persons. Saleemi (2008) says that vicarious liability refers to
“indirect liability on one for a tort committed by another or liability on one person on the
behalf of the other,” In the school the head teacher is held responsible for all the torts
committed by both teaching and non-teaching staff. Because when they do wrong it is
assumed that it is his duty to manage them. Similarity there is an experience of
contributory negligence in schools. According to Muya (1988), contributory negligence
is the case where the plaintiff is injured partly due to his fault and partly due to the
defendant’s fault.
Examples of contributory negligence in schools

 Sneaking out of school at night, a student get injured incase of female students, they are
raped or become pregnant or get arrested by the police. Parents give a student money to
drink during school hours or allows daughter to spend a night at the boyfriend’s place and
when asked he says he is aware.
 A sick student is given drugs while at school and refuses to take them.
 A student practices truancy and is attached or injured outside school. The school rules
and regulations are very clear on students conduct while in school but the students
disregard them. However if the teacher fails to exercise care to protect students from
injury then the teacher is negligent.
Courts in negligence will gauge a teacher’s conduct and how a reasonable teacher in a similar
situation would have acted. The degree of care exercised by a”reasonable” teacher is determined
by factors such as:
(i) Training and experience of the teacher in charge.
(ii) Age of the student
(iii)Environment in which the injury occurred
(iv) Type of activity engaged in
(v) Presence/absence of the teacher.
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(vi) Category and ability of the student e.g mentally handicapped will require closer
supervision
Teachers may also be held liable for damage claims resulting from failure to supervise a student
with disabilities, when such a student injures others in school. If the injury could have been
foreseen and prevented by the teacher or if a reasonable standard of care had not been exercised,
then negligence may exist. The court will attempt to a certain whether the injury could have
been exercised, then negligence may exist. The court will attempt to a certain whether the injury
was natural or had probable cause. The teacher handling students with disabilities should
identify them and advise parents/ guardians to take them to special school/units.
There are other examples of negligence that are committed by teachers such as:
(a) Chronic absenteeism
(b) Desertion of duty
(c) Dressing untidily or obscene thus being poor role models.
The TSC code of regulations (2005) chapter10gives guidelines on the performance of duties by
teachers, clause 12 (a & b )…. If the person engaged shall absent himself/herself from duty
through illness he/she shall produce a medical certificate to that effect and if his/her sickness
should in the opinion of a government medical officer caused through the engaged persons-own
impropriety of conduct he/she shall forfeit his/her salary for the period of such absence. If
he/she shall absent himself/herself from duty for any cause whatsoever without leave, he/she
shall forfeit salary for the period of such absence, and it shall be lawful for the commission to
guilt of the offences above he/she will be punished as stipulated in this code i.e interdiction
without half salary during the interdiction period. The TSC code of conduct and ethics (2003)
part 7 (1). Further elaborates on the conduct of teachers: It says “a public officer shall be
efficient and punctual and shall meet his dendlines.”
A public officer shall ensure that his official duty takes precedence over his other activities.
Similarly, the TSC code of regulations article 28(6), states that “while on duty, teachers are
required to dress in a manner that reflects credit to the teaching profession and sets a good
example to the pupils. They will therefore ensure that their clothes present a respectable, neat
and clean appearance”
The issue of teachers” dressing code is still being addressed to date. Teachers with chronic
absenteeism and dissertation of duty should be counseled to establish the cause before being
punished as some may be due to sickness.
(d) Failure to do ones duties such as:

(i) Failure to set and mark examinations
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(ii) Failure to teach with no good reasons
(iii) Failure to prepare schemes of work
(iv) Failure to take students for field work/trip
(v) Failure to supervise student’s examinations.
The TSC code of Conduct & Ethics (2003) part 7-8 clearly spells out how a teacher should
conduct his duties including examinations. It states, “a public officer who evaluates students
shall do so honestly and only on the basis of their performance.”
“ A public officer shall use his best efforts to ensure that examinations are conducted fairly and
without cheating.”
The penalty for the above offences is interdiction if in the opinion of the Commission the teacher
is found guilty.
Some teachers commit these torts because of ignorance about what the code of regulations says
through ignorance is no defense in law. Teachers should therefore read and understand both the
code of regulations and code of conduct and ethics. Some teachers commit the above torts due to
too much workload resulting from understaffing and role conflicts. Similarly, some teachers
have too many activities outside school e.g part-time teaching due to poor pay they receive. Such
teachers should be reminded that a” public officer shall ensure that his official duties take
precedence over his other activities (TSC, Code of Ethics, 2003).
4.4.3Absolute Liability Tort
Absolute liability tort is a strict liability or liability without regard to fault. In absolute liability
the defendant is liable even if he or she acted reasonable. Absolute liability has been applied to
certain activities in tort, such as holding a teacher absolutely liable for the tort of his or her
student. For example, a teacher in charge of games or physical education may take students out
for games, drama, or agricultural show and the students sneak out or disappear and are arrested
or raped. e.t.c
Absolute torts affecting teachers may also be found in what is referred to as infamous conduct or
professional misconduct such as;
(i) A teacher quarrelling, insulting or fighting with fellow teachers
(ii) A teacher getting involved in sexual relationship with fellow teachers.
(iii)A teacher getting involved in asexual relationship with students.
(iv) Pecuniary embarrassment such asateacher borrowing money from student or fellow
teachers which is against public officers code of conduct and ethics that states that a
public officer shall not lobby either directly or indirectly for any favors in the
teaching service.
(v) A teacher fighting with members of the public or poor public relationship.
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(vi) A teacher accepting or charging any fee for tuition of a student or establish or retain any
interest in a private school. In the TSC code of conduct and ethics, a public officer
shall both charge or acceptance fee or tuition of students even if it is done outside
working hours. A teacher shall not establish or retain any interests in a private school
or work at such a school. The code also states that a public officer shall not engage in
any sexual activity with a student regardless of whether the student consents or not.
Section 21of the code, clearly states that a public officers shall not sexually harass a
member of the public or fellow public officer.
Procedure in Handling Torts Committed by teachers

Once a tort has been established in a school set up, it is reported to the respective authority,
in a primary school setup, it is reported to the head teacher if it is committed by a teacher or
to the school management committee, if committed by the head teacher. For secondary
school set it is reported to the Board of Governors/head teacher if committed by a teaching
staff.
Once a tort has been reported, investigations are done by the relevant authority and the
concerned teacher is informed and asked to respond in writing. Once he/she has responded,
Up response and may act as follows;
(a) Warn the defendant.
(b) Depending on the weight of the tort, the investigating authority may take the following
action-invite the defendant before the authority e.g Board of Governors or school
management committee who in turn may
(i) Warn the teacher
(ii) Interdict the teacher
In case the teacher is interdicted, the interdiction report is sent to the TSC. The TSC responds to
the teacher by giving him/her the
(i) A prosecutor
(ii) A representative of the commissions secretary
After hearing the case, the following decisions can be made depending on the weight of the tort.
(a) Revocating of the case if the defendant is found not guilty.
(b) Warning of the defendant
(c) Suspension of the defendant which is between one to six months
(d) Dismissal and removal of the teacher from the register
(e) Retire under public interest
In case a teacher is aggrieved by any of the above decisions, he or she can appeal to the Teachers
Service Appeal Tribunal. The tribunal can only make the following two decisions:
(i) Reinstate the teacher into the teacher’s register
(ii) Uphold the Teachers Service Commission decision.
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Critique
Schools investigating authorities such as the Board of Governors and the school Management
committees are not professionals in education and not conversant with the school’s code of
regulations and ethics hence they are not best suited to make professional decisions.
(i) The punishments given to teachers such as dismissal and interdiction or deregistration are
an end by themselves and the only option left for the plaintiff is to sue the defendant
after the Teachers Service Commission panel concludes the case.
(ii) There is no proper redress given to the plaintiff or the defendant since the panel heading
is not done through a court of law.
(iii)Procedures taken in handling tort in schools is too bureaucratic and may take too long to
conclude the case because of partisan interests from the investigating authorities.
Revision Questions
1. Explain the functions of tort
2. Explain the procedure of handling tort committed by teachers.
3. Identify various torts that teachers in your school are likely to commit
(v) Burke w.w. Organization development: principles and practices, Boston: Little, Brown,
1982
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CHAPTER FIVE
5.0 TSC ACT, CHILDREN’S ACT

Learning Objectives
(i) Describe the TSC act
(ii) Explain what children’s Act states.
5.1 TSC ACT
5.1.1 Functions of The Commission
The Act mandated the Commission to carry out the following functions:
 Register Teachers.
 Recruit and Employ Teachers.
 Assign Teachers
 Remunerate Teachers
 Promote Teachers
 Transfer Teachers
 Discipline Teachers
 Delegation of Functions.
 To Compile, Publish, Amend the Code of Regulations for Teachers
 To keep under review standards of education, training, fitness toteach appropriate to persons
entering the service.
Registration of Teachers
Its required that the Commission registers all teachers, as provided in the Act stating
that: "Any person who, not being a registered teacher, or a person exempted under
section 22 of the Act, teaches or assists in teaching in any school" or "any person who suffers or permits
or employs to teach in any school a person not being a Registered teacher or a person exempted by the
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Minister shall be guilty of an offence ......" All qualified teachers must be registered by TSC. It is an
offence for any teacher to teach without being registered.
Recruitment and Employment of Teachers
The mandate provides for the Commission to recruit and employ teachers which has been the case where
TSC posted registered teachers from Public Primary School Teacher Training Colleges to Public Primary
Schools through the District Education Officers and registered teachers from Diploma Colleges and State
Universities to public secondary schools and technical institutions, until 1997. Since then the recruitment
and employment of teachers is demand driven.
However, to ensure that schools have the required teachers the Commission has decentralized the
recruitment of teachers. The posts are advertised by TSC in specific schools for secondary teachers and
specific districts for primary school teachers. The recruitment process has changed over time and varies
depending on whether one is applying to a primary institution or post primary institution.
Assign and Transfer Teachers
The Commission is mandated to assign and transfer teachers. The teachers are posted after study leave or
after determination of disciplinary cases to the primary schools, Secondary and Tertiary institutions. In
addition the Commission is mandated to transfers teachers from one station to the other, subject to
availability of vacancies and replacements.
Renumerate Teachers
The Act mandates Teachers Service Commission to pay teachers salaries and all the related
remunerations, subsequently the Commission prepares all the teachersemoluments which currently stands
at a wage bill of 44.4 billion per annum.
Promotions of Teachers.
The Act mandates Teachers Service Commission to promote teachers, the Commission carries out
promotions for all categories of teachers except for grades between P4 and ATS IV whose promotions on
merit are carried out by the Director of Education.
Discipline
Termination of employment is one of the functions that encompasses discipline of the teacher. The Code
of Regulation for teachers requires that: " Where it comes to the knowledge of an Agent of the
Commission and is alleged that a registered teacher should be removed from the register because he/she is
an unsuitable person to be a teacher on the grounds that the Agent shall ..."
The Commission agents investigates cases of teachers disciplinary cases especially before interdiction
provide the Commission with all information and documentspertaining to the case which leads to
interdiction. Disciplinary cases are heard at the TSC headquarters except those that require witnesses who
cannot travel to Nairobi. In cases of major offences tabulated in the Code, the Commission may, as a
result of the proceedings determine that the teacher's name is removed from the Register, warned,
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suspended or demoted and if the teacher is found not guilty of the allegations madeagainst him/her the
interdiction is revoked.
5.2 CHILDREN’S ACT
This is an Act of parliament established in April 2001. That provides for the rights of children
and seeks to enhance the welfare of children in Kenya. Children Act is enacted to put the
provision of the various laws that affect children which are as follows:
5.2.1 Kenyan laws providing for the children rights and child protection
1. The constitution of Kenya (old constitution)
It is the supreme law of Kenya.
Any law inconsistent with it is null and void
Chapter V contains the bills of rights which offers protection for the safeguarding of the
individual rights and freedoms of every Kenyan e.g right to association, movement secure
protection of the law: religion and conscience and the right of life.
Note: the constitution however doesn’t have the rights of children expressly spelt out or
guaranteed.
2.Penal code (cap63 laws of Kenya)
Defines the penal system in Kenya.
Outlines criminal offences and prescribes penalties to them. Protects children by classifying acts
and commissions which amount to child abuse as punishable offences e.g.
(i) Sexual abuse, Rape, defilement indecent assault, incest (by male/female) and unnatural
offences.
(ii) Physical abuse: common assault occasioning bodily harm grievous bodily harm.
(iii)Other offences that protect lives of children: concealment of birth, killing of the unborn
or procuring of an abortion.
Setting the age of criminal responsibility i.e age below which a child cannot be held to be
criminally responsible even when they commit a crime. 8 years for all children. If a child
performs an actor omission deemed a crime, he/she: can’t be held responsible and can’t be
charged in a court of law for prosecution. If a child is between 8-12 years old and commit
criminal offence, court must establish whether he or she understood the consequences of his/her
actions. If she/he didn’t, he/she isn’t prosecuted but if he/she understood, he/she is prosecuted.
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Male below 12 years old are incapable of committing offences associated with carnal
knowledge/sexual intercourse even is they rape or defile the law sees them incapable.
3. Evidence Act (Cap 80,Law of Kenya)
Section 124callsfor corroboration (independent evidence which implicates a person accused of a

crime by connecting him with it evidence that confirms that the charged person. Committed the
offence) of children of tender years (children under 10 years old as defined in children’s Act.
4. Matrimonial Act(cap 152, laws of Kenya)
 Consolidate all the laws relating to matrimonial cases.

 Protects children in case of dissolution of marriage by providing for their maintenance
and custody.
 However only those born within wedlock are catered for.
5. Subordinate courts (separation and maintenance Act)
 Provides for children in case of judicial separation of their parents.

 A married woman can apply for maintenance and custody orders where the husband has
willfully neglected the children.
6. Employment Act (cap 226,Law of Kenya)
 Outlines laws governing employment and protecting employees in Kenya

 Protects all children under 16 years from employment in industrial undertakings except
for internship or training.
 Outline children’s employment roles which provide for protection of children at work.
Realization of the rights of the child.
The Government shall take steps to the maximum of its available resources with a view to
achieving progressively the full realization of the rights of the child set out in this Part.
Survival and best interests of the child.
(1) Every child shall have an inherent right to life and it shall be the responsibility of the
Government and the family to ensure the survival and development of the child.
(2) In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
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child shall be a primary consideration.
(3) All judicial and administrative institutions, and all persons acting in the name of these
institutions, where they are exercising any powers conferred by this Act shall treat the interests
of the child as the first and paramount consideration to the extent that this is consistent with
adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child;
(c) secure for the child such guidance and correction as is necessary for the welfare of the child
and in the public interest.
(4) In any matters of procedure affecting a child, the child shall be accorded an opportunity to
express his opinion, and that opinion shall be taken into account as may be appropriate taking
into account the child's age and the degree of maturity.
Right to parental care.
(1) A child shall have a right to live with and to be cared for by his parents.
(2) Subject to subsection (1), where the court or the Director determines in accordance with the
law that it is in the best interests of the child to separate him from his parent, the best alternative
care available shall be provided for the child.
(3) Where a child is separated from his family without the leave of the court, the Government
shall provide assistance for reunification of the child with his family.
Protection from abuse, etc.
(1) A child shall be entitled to protection from physical and psychological abuse, neglect and any
other form of exploitation including sale, trafficking or abduction by any person.
(2) Any child who becomes the victim of abuse, in the terms of subsection (1), shall be accorded
appropriate treatment and rehabilitation in accordance with such regulations as the Minister may
make.
Duties and responsibilities of a child.
In the application of the provisions of this Act, and in any matter before a court of law
concerning any child, due regard shall be had to the duties and responsibilities of a child to—
(a) work for the cohesion of the family;
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(b) respect his parents, superiors and elders at all times and assist them in case of need;
(c) serve his national community by placing his physical and intellectual abilities at its service;
(d) preserve and strengthen social and national solidarity; and
(e) preserve and strengthen the positive cultural values of his community in his relations with
other members of that community:
Provided that in reckoning the requisite duty and responsibility of any individual child, due
regard shall also be had to the age and ability of such child and to such limitations as are
contained in this Act.
Enforcement of Rights.
(1) Subject to subsection (2), if any person alleges that any of the provisions of sections 4 to19
(inclusive) has been, is being or is likely to be contravened in relation to a child, then without
prejudice to any other action with respect to the same matter which is lawfully available, that
person may apply to the High Court for redress on behalf of the child.
(2) The High Court shall hear and determine an application made by a person in pursuance of
subsection (1) and may make such orders, issue such writs and give such directions as it may
consider appropriate for the purpose of enforcing or securing the enforcement of any of the
provisions of sections 4 to19 (inclusive).
(3) The Chief Justice may make rules with respect to the practice and procedure of the High
Court in relation to the jurisdiction and powers conferred on it or under this section including
rules with respect to the time within which applications may be brought and references shall be
made to the High Court.
Definition of Parental Responsibility
(1) In this Act, "parental responsibility" means all the duties, rights, powers, responsibilities and
authority which by law a parent of a child has in relation to the child and the child's property in a
manner consistent with the evolving capacities of the child.
(2) The duties referred to in subsection (1) include in particular—
(a) the duty to maintain the child and in particular to provide him with—
(i) adequate diet;
(ii) shelter;
(iii) clothing;
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(iv) medical care including immunization; and
(v) education and guidance; ,
(b) the duty to protect the child from neglect, discrimination and abuse;
(c) the right to—
(i) give parental guidance in religious, moral, social, cultural and other values;
(ii) determine the name of the child;
(iii) appoint a guardian in respect of the child;
(iv) receive, recover, administer and otherwise deal with the property of the child for the benefit
and in the best interests of the child;
(v) arrange or restrict the emigration of the child from Kenya;
(vi) upon the death of the child, to arrange for the burial or cremation of the child.
(3) The Minister may make regulations for the better discharge of parental responsibility by
parents whose work conditions result in the separation from their children for prolonged periods.
(4) The fact that a person has or does not have parental responsibility shall not affect—
(a) any obligation which such person may have in relation to the child (such as a statutory duty
to maintain the child); or
(b) any rights which in the event of the child's death, such person (or any other person) may have
in relation to the child's property.
(5) A person who does not have parental responsibility for a particular child, but has care and
control of the child may subject to the provisions of this Act, do what is reasonable in all the
circumstances of the case for the purpose of safeguarding or promoting the child's welfare.
Who has parental responsibility.
(1) Where a child's father and mother were married to each other at the time of his birth, they
shall have parental responsibility for the child and neither the father nor the mother of the child
shall have a superior right or claim against the other in exercise of such parental responsibility.
(2) Where a child's father and mother were not married to each other at the time of the child's
birth and have subsequently married each other, they shall have parental responsibility for the
41
child and neither the father nor the mother of the child shall have a superior right or claim against
the other in the exercise of such parental responsibility.
(3) Where a child's father and mother were not married to each other at the time of the child's
birth and have not subsequently married each other—
(a) the mother shall have parental responsibility at the first instance;
(b) the father shall subsequently acquire parental responsibility for the child in accordance with
the provisions of section 25.
(4) More than one person may have parental responsibility for the same child at the same time.
(5) A person who has parental responsibility for a child at any time shall not cease to have that
responsibility for the child.
(6) Where more than one person have parental responsibility for a child, each of them may act
alone and without the other (or others) in that responsibility; but nothing in this Part shall be
taken to affect the operation of any enactment which requires the consent of more than one
person in a matter affecting the child.
(7) The fact that a person has parental responsibility for a child may not entitle that person to act
in any way which would be incompatible with any order made with respect to the child under
this Act.
(8) (a) A person who has parental responsibility for a child may not surrender or transfer any part
of that responsibility to another but may arrange for some or all of it to be met by one or more
persons acting on his behalf.
(b) The person with whom such arrangement is made may himself be a person who already has
parental responsibility for the child concerned.
(c) The making of any such arrangement shall not affect any liability of the person making it
which may arise from any failure to meet any part of such person's parental responsibility for the
child concerned.
Sittings of Children’s Courts.
A Children's Court shall sit in a different building or room, or at different times, from those in
which sittings of courts other than Children's Courts are held, and no person shall be present at
any sitting of a Children's Court except—
(a) members and officers of the court;
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(b) parties to the case before the court, their advocates and witnesses and other persons directly
concerned in the case;
(c) parents or guardians of any child brought before the court;
(d)bona fideregistered representatives of newspapers or news agencies;
(e) such other persons as the court may specially authorise to be present.
Power to clear court.
Where in any proceedings in relation to an offence against or by a child, or any conduct contrary
to decency or morality, a person who, in the opinion of the court, is under eighteen years of age
is called as a witness, the court may direct that all or any persons, not being members or officers
of the court, or parties to the case or their advocates, shall be excluded from the court.
General principles with regard to proceedings in Children‘s Court.
(1) Subject to section 4 where a court is considering whether or not to make one or more orders
under this Act with respect to a child it shall not make the order or any other orders unless it
considers that doing so would be more beneficial to the welfare of the child than making no
order at all.
(2) In any proceedings in which an issue on the upbringing of a child arises, the court shall have
regard to the general principle that any delay in determining the question is likely to be
prejudicial to the welfare of the child.
(3) Where the court is considering whether or not to make an order with regard to a child, it shall
have particular regard to the following matters—
(a) the ascertainable feelings and wishes of the child concerned with reference to the child's age
and understanding;
(b) the child's physical, emotional and educational needs and in particular, where the child has a
disability, the ability of any person or institution to provide any special care or medical attention
that may be required for the child;
(c) the likely effect on the child of any change in circumstances;
(d) the child's age, sex, religious persuasion and cultural background;
(e) any harm the child may have suffered, or is at risk of suffering;
(f) the ability of the parent, or any other person in relation to whom the court considers the
question to be relevant, to provide for and care for the child;
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(g) the customs and practices of the community to which the child belongs;
(h) the child's exposure to, or use of drugs or other psychotropic substances and, in particular,
whether the child is addicted to the same, and the ability of any person or institution to provide
any special care or medical attention that may be required for the child;
(i) the range of powers available to the court under this Act.
(4) The court may, if it considers it imperative for the proper determination of any matter in issue
before it, of its own motion or upon application, call any expert witness it shall deem appropriate
to provide assistance to the court, and the expenses of any such witness shall be determined by
the court and shall be defrayed out of moneys provided by Parliament.
(5) In any proceedings concerning a child, whether instituted under this Act or under any written
law, a child's name, identity, home or last place of residence, school shall not, nor shall the
particulars of the child's parents or relatives, any photograph or any depiction or caricature of the
child, be published or revealed, whether in any publication or report (including any law report)
or otherwise.
(6) Any person who contravenes the provisions of subsection (5) commits an offence and shall
on conviction be liable to a fine not exceeding one hundred thousand shillings or to
imprisonment for a term not exceeding three months, or to both.
Appointment of guardian.
A court before which a child is brought, and especially where that child is not represented by an
advocate, may appoint a guardianad litemfor the purposes of the proceedings in question and to
safeguard the interests of the child.
Meaning of custody, care and control.
(1) In this Part unless the context otherwise requires—
(a) "custody" with respect to a child, means so much of the parental rights and duties as relate to
the possession of the child;
(b) "care and control" means actual possession of a child, whether or not that possession is
shared with one or more persons.
(c) "legal custody" means so much of the parental rights and duties in relation to possession of a
child as are conferred upon a person by a custody order;
(d) "actual custody" means the actual possession of a child, whether or not
that possession is shared with one or more persons.
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(2) Where a person, not having legal custody of a child, has care and control of the child, he shall
be under a duty to safeguard the interests and welfare of that child.
(3) Where a person, not having legal custody of a child, has actual custody he shall be deemed to
have care and charge of the child and shall be under a duty to take all reasonable steps to
safeguard the interests and welfare of that child.
(4) In this Act, unless the context otherwise requires, reference to the person under whom a child
has his home refers to the person who, disregarding absence of the child at a hospital or boarding
school and any other temporary absence, has care and control of that child.
When a child is in need of care and protection.
(1) For the purposes of this Act, a child is in need of care and protection—
(a) who has no parent or guardian, or has been abandoned by his parent or guardian, or is
destitute; or
(b) who is found begging or receiving alms; or
(c) who has no parent or the parent has been imprisoned; or
(d) whose parents or guardian find difficulty in parenting; or
(e) whose parent or guardian does not, or is unable or unfit to exercise proper care and
guardianship; or
(f) who is truant or is falling into bad associations; or
(g) who is prevented from receiving education; or
(h) who, being a female, is subjected or is likely to be subjected to female circumcision or early
marriage or to customs and practices prejudicial to the child's life, education and health; or
(i) who is being kept in any premises which, in the opinion of a medical officer, are
overcrowded, unsanitary or dangerous; or
(j) who is exposed to domestic violence; or
(k) who is pregnant; or
(l) who is terminally ill, or whose parent is terminally ill; or
(m) who is disabled and is being unlawfully confined or ill treated; or
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(n) who has been sexually abused or is likely to be exposed to sexual abuse and exploitation
including prostitution and pornography; or
(o) who is engaged in any work likely to harm his health, education, mental or moral
development; or
(p) who is displaced as a consequence of war, civil disturbances or natural disasters; or
(q) who is exposed to any circumstances likely to interfere with his physical, mental and social
development; or
(r) if any of the offences mentioned in the Third Schedule to this Act has been committed against
him or if he is a member of the same household as a child against whom any such offence has
been committed, or is a member of the same household as a person who has been convicted of
such an offence against a child; or
(s) who is engaged in the use of, or trafficking of drugs or any other substance that may be
declared harmful by the Minister responsible for health.
(2) A child apprehended under this section shall be placed in separate facilities from a child
offenders' facilities.
(3) The provisions of this section shall be in addition to, and not in derogation of, those of the
Penal Code in relation to offences involving children, or the Employment Act in relation to
safeguards for working children.
Proceedings in respect of children in need of care and protection.
(1) Any person who has reasonable cause to believe that a child is in need of care and protection
may report the matter to the nearest authorised officer.
(2) Any child in need of care and protection may take refuge in a place of safety.
(3) Any authorised officer may take to a place of safety any child who is about to be brought
before a court as being in need of care and protection, and a child so taken to a place of safety, or
who has taken refuge in a place of safety, may be accommodated there until he can be brought
before a court.
(4) Any authorised officer having reasonable grounds for believing that a child is in need of care
and protection may apprehend him without warrant and in such a case shall without delay bring
him before a Children's Court; and a children's officer shall bring before a court any child who
appears to such officer to be in need of care and protection unless proceedings are about to be
taken by any other person.
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(5) Where an application is to be made to a court for an order under section 125 of this Act and
the child is not in a place of safety, the court may issue a summons requiring him to be brought
before the court, and thereupon the provisions of subsection (3) of that section shall apply for
enabling the court to make an interim order for the temporary accommodation of the child in a
place of safety or for his temporary committal to the care of a fit person.
(6) Where a court makes an order under subsection (5) it may make such other orders as it deems
necessary for the establishment of contact between the child and his parent, or between the child
and any person who has parental responsibility for him and for the enforcement of the order.
(7) Where a child is taken to a place of safety by an authorized officer without reference to the
court, the parent or guardian or any person who has parental responsibility in respect of the child
may apply to the Director for the release of the child from the place of safety into his care:
Provided that if the Director refuses an application under this subsection he shall notify the
applicant in writing of the decision and the reasons therefor.
(8) Any applicant who is aggrieved by the decision of the Director under subsection (6) may
apply to the court for the discharge of the child from the place of safety concerned into the care
of such applicant.
(9) Where under the provisions of this section a child is taken to or ordered to be taken to a place
of safety, the person who so takes him or as the case may be, the person bringing him before the
court, shall forthwith send a notice to the court specifying the grounds on which the child is to be
brought before the court and shall send particulars to his parent or guardian or such other person
who has parental responsibility over the child requiring such person to attend at the court before
which the child will appear.
(10) Where any application is to be made to a court for an order under section 125, the person
intending to make the application shall forthwith notify the Director or his representative, of the
name and address of the child and the day and hour when, and the nature of the grounds on
which, he is to be brought before the court.
(11) The Director having received a notice under subsection (9), shall make such investigations
and render available to the court such information as to the home, circumstances, age, health,
character and general antecedents of the child or as may be necessary to assist the court.
(12) When it appears to an appointed local authority or a charitable children's institution that a
child in its area is in need of care and protection and that its intervention is necessary the local
authority, or charitable children's institution shall receive such child into its care and need not
bring him before a court immediately:
Provided that—
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(a) the local authority or charitable children's institution shall notify the Director within seven
days of receiving the child into its care;
(b) the child shall be brought before a court within three months;
(c) a monthly report is rendered to the Director of all children received and held;
(d) all cases are investigated by the local authority, or charitable children's institution;
(e) the local authority, or charitable children's institution shall not retain the child in its care if his
parent or guardian seeks to assume the care of the child;
(f) the local authority, or charitable children's institution shall, when it appears to be in the
interests of the child, endeavour to secure that the care of the child is assumed by a parent or
guardian or a person who has parental responsibility for the child by a relative or friend who
should, if possible, be of the same religion, race, tribe or clan as the child.
(13) A local authority or charitable children's institution which receives a child into its care under
the provisions of this section shall be entitled to recover the cost of maintenance of such child
from his parent, guardian or the person who has responsibility for the child.
Medical care.
(1) If it appears to an authorized officer exercising powers under section 120 that a child is in
need of medical care, he shall forthwith take the child to a registered health institution, and such
health institution shall provide the appropriate treatment, care and necessary hospital
accommodation for the child.
(2) Where a child is accommodated in any health institution for in-patient care the authorized
officer who took the child shall forthwith notify the child's parent, or guardian, or any person
who has parental responsibility for the child concerned, or the Director or his representative.
(3) Where it appears to any health institution or medical practitioner that any of the offences
mentioned in the Third Schedule to this Act have been committed against a child, the health
institution or medical practitioner shall forthwith take such measures as shall be necessary to
record and preserve any information with regard to the condition of the child in the manner that
may be prescribed by the Minister in regulations made under this Part.
(4) Any expenses incurred in connection with the medical treatment or hospital accommodation
of a child under this section shall be defrayed out of public funds.
Determination as to child’s home etc.
48
Whenever a child is brought before a court as being in need of care and protection and the court
determines that he has his home or, as the case may be, has been found within the area of
jurisdiction of a particular local authority, such determination shall for the purposes of this Act,
be final and conclusive:
Provided that a court may, whenever it thinks it convenient so to do, remit any such case to
another Children's Court to be dealt with by that court, without prejudice, however, to the
provisions of section 43.
Parent or guardian to be heard in any application.
(1) Where a child is brought before a court as being in need of care and protection, the court shall
allow his parent or guardian or the person who has parental responsibility for such child to be
heard on any application made in relation to the child.
(2) Where the parent or guardian cannot be found or cannot, in the opinion of the court, be
reasonably required to attend, the court may allow any relative or any other responsible person
who knows or is known to the parents or any relative of the child to take the place of the parent
or guardian for the purposes of this section.
Power of Director to take over application.
The Attorney-General may authorise the Director at any stage in the proceedings under this Part,
whether before, during or after the making of any application to take over and assume the
conduct of any application or proceedings in respect of a child:
Provided that the Attorney-General shall not be entitled to terminate any proceedings over which
he has authorised the Director to assume control under this section without the leave of the court.
Powers of court in respect of children in need of care and protection.
(1) A court before which any child in need of care and protection is brought may require an
authorised officer or any other person to give a report or advise on any aspect of the proceedings.
(2) If a court is satisfied that a child brought before it is in need of care and protection it may—
(a) order that such child be returned to his parent or guardian or the person who has parental
responsibility for him;
(b) order such child's parent or guardian, or person who has parental responsibility for him to
execute a bond with or without sureties to exercise proper care and guardianship;
49
(c) where it is satisfied that it is in the best interests of the child, commit such child to a
rehabilitation school suitable to his needs and attainments after the court has ascertained that
there is a vacancy at the school; or
(d) without making any other order, or in addition to making an order under this section make an
order under Part IX; or
(e) if the child is a victim of armed conflict, civil disturbance or natural disaster make an order
requiring the Director to take the
necessary steps to ensure that the child is provided with care, and where possible, is reunited
with his family; or
(f) if the child is disabled, make an order which requires the Director to take the necessary steps
to ensure that the child is provided with care commensurate with his special needs; or
(g) if the child is subjected to early marriage, make an order rendering such marriage null and
voidab initioand requiring the child to be placed under the care of a fit person and to return to
school; or
(h) where it is satisfied that the child has been engaged in drug abuse and that it is in the child's
best interest to do so, by order commit him to a drug rehabilitation centre for treatment, or order
that the child be accorded professional counselling.
(3) A parent who is ordered to exercise proper care and guardianship under subsection 2 (b) shall
also be required to seek the assistance of a professional counsellor.
(4) The court may from time to time, of its own motion or on the application of any person,
review, vary or revoke any order made under this section;
(5) The court may order that a child shall remain in the custody of an appointed local authority, a
charitable children's institution or a fit person until the age of eighteen years or such lesser age as
the court may decide.
(6) If a court before which a child is brought is unable to decide whether any order, or what order
ought to be made in respect of the child, it may make such interim order as it thinks fit for the
child's accommodation in a place of safety not being a police station, or for his committal to the
care of a fit person whether a relative or not who is willing to undertake the care of the child;
(7) An interim order under subsection (1) shall not remain in force for more than fourteen days,
but if at the expiration of that period the court deems it expedient so to do, it may continue to
make further interim orders.
50
Penalty for cruelty to or neglect of children.
(1) Any person who having parental responsibility, custody, charge or care of any child and
who—
(a) wilfully assaults, ill-treats, abandons, or exposes, in any manner likely to cause him
unnecessary suffering or injury to health (including injury or loss of sight, hearing, limb or organ
of the body, and any mental derangement); or
(b) by any act or omission, knowingly or wilfully causes that child to become, or contributes to
his becoming, in need of care and protection,
commits an offence and is liable on conviction to a fine not exceeding two hundred thousand
shillings, or to imprisonment for a term not exceeding five years, or to both.
Provided that the court at any time in the course of proceedings for an offence under this
subsection, may direct that the person charged shall be charged with and tried for an offence
under the Penal Code, if the court is of the opinion that the acts or omissions of the person
charged are of a serious or aggravated nature.
(2) For the purposes of this section, a person having parental responsibility, custody, charge or
care of a child shall be deemed to have neglected such child in a manner likely to cause injury to
his health if the person concerned has failed to provide adequate food, clothing, education,
immunization, shelter and medical care.
(3) Any person charged under this section may be charged before the same Court as that before
which is brought as being in need of protection or discipline and at the same time and both issues
shall be tried simultaneously and the same court shall sentence the person charged, if convicted,
and make an order under section 125 if the child is found to be in need of care and protection.
(4) A person may be convicted of an offence under this section notwithstanding that actual
suffering or injury to health, or the likelihood of actual suffering or injury to health, of the child
was obviated by the action of another person, or the child in question has died.
(5) Nothing in this section shall affect the right of any parent or other person having the lawful
control or charge of a child to administer reasonable punishment on him.
Supervision order.
The court may make an order (in this Act referred to as a "supervision order") placing the child
under the supervision of a children's officer or an authorised officer whilst allowing the child to
remain in the care and possession of his parent, guardian, custodian or any other person with
whom the child is residing.
51
Arrangements for access to children in care.
(1) Prior to making a care order, the court shall consider the arrangements the Director has made
or proposes to make for affording any individual contact with the child during the term of a care
order, and shall invite the parties to the proceedings to comment on the said arrangements and or
to make such applications for contact in the manner prescribed in subsection (4).
(2) Unless a court otherwise directs or it is determined that such contact would be detrimental to
the best interests of the child, there shall be a rebuttable presumption of reasonable contact
between the child and—
(a) the child's parent or guardian;
(b) any person who has parental responsibility in respect of the child;
(c) the relatives of the child;
(d) such other person as the court shall direct.
(3) Where the court makes an access order under this section it shall determine the frequency and
duration of access to the child subject to such conditions as the court may consider appropriate.
(4) The Director or the child, with the leave of the court, may apply to the court for refusal of
access to any individual and upon such application the court, if satisfied that such contact
between the child and any individual should be refused shall make an order authorising the
Director to refuse to allow contact between the child and the person named in the order.
(5) A court making a contact order under this section shall have power to vary, suspend or
discharge the order or revive the order after it has been discharged on such terms as it shall deem
fit; but no contact order shall remain in force beyond the child's eighteenth birthday or after the
date of a discharge of a care order.
Contents of care order.
Where a care order to a rehabilitation school has been made by a court against a child, on a
finding of guilt of an offence, the committal order shall specify the grounds of the order and—
(a) contain a declaration as to the age and religion of the child;
(b) specify the rehabilitation school to which he is to be sent;
(c) specify the person or authority that is to convey the child to the school;
52
(d) contain directions as to any special care or treatment required for the child;
(e) contain directions as to access arrangements for the child by his parent, guardian or relative;
and
(f) specify details of any contribution order made against the parents or the guardian of the child
and the dates upon which accounts shall be supplied to them
Revision Questions
1.Explain the rights of a child to education as stated in the Children’s Act
2.Explain the role of parents to ensuring the above rights are fulfilled
1982
53
CHAPTER SIX
6.0EDUCATIONS ACT AND SEXUAL OFFENCES ACT
Learning Objectives
By the end of this chapter the Learner should be able to
(i) Explain various education Acts in Kenya
(ii) Explain the sexual offence Act
6.1 Education Act
6.2 Sexual Offences Act
It is an Act of Parliament to make provision about sexual offences, their definition, prevention
and the protection of all persons from harm, unlawful sexual acts and for connected purposes.
According to Ndung’u (2008) the Act was necessary for:
1. The law on sexual violence was spread through four different pieces of legislation which
complicated matters for victims, the police and judiciary.
2. The definition of the offence of rape was also very limited and the law categorized rape
as an issue of morality: it was therefore prejudicial to women who form the majority of
sexual violence.
3. Sentencing was entirely at the discretion of magistrates and in many cases, the
punishment for offences did not fit the crime.
4. The new social realities in Kenya, which the law did not take account of because they did
not exist when the old laws were enacted such as HIV/Aids, trafficking for sexual
exploitation and child pornography.
Some of the features of the new law include:

1. There are 14 new offences including gang rape, deliberate infections with HIV/AIDS and
child pornography.
2. The introduction of minimum sentences
3. The setting of DNA data bank and apaedophine register.
4. The criminalization of sexual harassment.
The Act starts by defining certain terms as used in the Act. For instance:
54
Genital organ- The whole or part of male or female genital organs and for purpose
of this Act includes anus.
Panetration Defined as the partial or complete insertion of the genital organs of

a person into genital organ of another person.
Indecent Act This is intentional actwhich causes (i) Any contact between the
genital organs and buttocks with that of another person. (ii)
Exposure or display of any pornographic material to any person
against his or her will but does not include an act which causes
penetration.
6.2.1Sexual Offences and Their Minimum Sentences
(i) Rape
A person commitsrape if he or she intentionally and unlawfully commits an act which causes
penetration with his or her genital organs and if the other person does not consent to the penetration
or the consentis obtained by force or by means of threats or intimidation of any kind. A person
convicted for rape is liable for a term of not less than ten yearswhich may be enhanced to life
imprisonment.
(ii) Attempted Rape
Any person who attemptsto unlawfully and intentionally commit an act which causes penetration with
his/hergenital organs isguilty of the offences of attempted rape. The sentence foor attempted rape is a
term not less than five years but which may be enhanced to imprisonment for life.
(iii)Sexual Assault
A person commits sexual assault if he or she unlawfully penetrated the organs of another with any
part of the body of another or that person or an object manipulated by another or that person. Sexual
assault is given a sentence term of not less than ten years but which may be enhanced to
imprisonment for life.
(iv)Compelled or Induced Indecent Acts
A person commits the offence if he or she intentionally and unlawfully compels, induces or causes
another person to engage in an indecent act with the person, a third person or an object including any
part of the body of an animal in circumstances where that other person would otherwise not have
committed or allowed the indecent act. A person who is convicted of such an offence is liable to a
term not less than five years.
(v)Defilement
55
A person commits defilement if he or she causes penetration with a child. Sentencing for defilement
is varied depending on the age of the child who is defiled:
 Defilement of a child aged 11 years or, less shall upon conviction be sentenced to life
imprisonment.
 Defilement for a child between the age of 12-15 years is liable upon conviction to
imprisonment for a term of not less than twenty years.
 A person who defiles a child of between 16—18 years is liable for a term of not less than
fifteen years
It should however be noted that the accused can defend himself/herself, if it is proved that such a
child deceived the accused person into believing that he or she was over the age of eighteen years
at the time of the alleged offence.
(vi) Attempted Defilement
A person commits the offence if he/she acts in a way to cause penetration with a child. A
person convicted of attempted defilement is liable to imprisonment for a term of not less than
10 years.
6.2.2Offences Committed Against A child

(i) Promotion of sexual offences with a child
It is an offence for a person to manufacture or distribute any article that promotes or is intended to
promote a sexual offence with a child.
(ii) Child trafficking
It is an offence for any person to knowingly or intentionally make or organize any travel
arrangements for or on behalf of a child within or outside the borders of Kenya, with the intention of
facilitating the commission of any sexual offence against that child, irrespective of whether the
offence is committed.
(iii) Child sex tourism
It is an offence for any person to make or organize any travel arrangements for or on behalf of any
other person, whether that other person is resident within or outside the borders of Kenya, with the
intention of facilitating the commission of any sexual offence against a child, irrespective of whether
that offence is committed.
(iv) Child prostitution
56
It is an offence for any person to knowingly permit any child to remain in any premises. For the
purpose f causing such child to be sexually abuses or to participate in any form of sexual activity or in
any obscene or indecent exhibition or show.
(v) Child pornography
It is an offence for any person to sell, let or hire, distribute publicly exhibit or in any manner put into
circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, make, produce
or has in his or her possession any obscene book pamphlet, paper, drawing, painting art representation
or figure or any other obscene object whatsoever.
(vi) Incest
It is an offence for any person to commit an indecent act which causes penetration with a female or
make person who is to his knowledge his/her daughter/son, granddaughter/grandson, sister/brother,
mother/father, niece/nephew, aunt/uncle or grandmother/grandfather.
6.2.3Abuse of Position of Authority

Sexual Harassment
It is an offence of sexual harassment for any person in a position of authority or holding a public office,
who persistently makes any sexual advances or requests which he or she knows, or has reasonable
grounds to know, are unwelcomed.
This sometimes affects the working environment and may lead to poor working relation. In a school
situation if the victim is a student, he/she may be affected in his/her academic performance and in a public
office a member may be denied services because of refusing to give in to sexual advances.
Vulnerable Witnesses
A court, in criminal proceedings involving the alleged commission of a sexual offence, declare a witness,
other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness
is:
 The alleged victim in the proceedings pending before the court
 A child
 A person with mental disabilities
57
Once a court declares any person a vulnerable witness, the court shall direct an intermediary be appointed
in respect of such witnesses.
Intentional and Unlawful Acts
An act is intentional and unlawful if it is committed:
(i)In any coercive circumstance
(ii)Under false pretence or by fraudulent means
(iii)In respect of a person who is incapable of appreciating the nature of an act which causes theoffence.
National Policy Framework
The National Policy Framework will guide the implementation and administration of this Act in order to
secure acceptable and uniform treatment of all sexual related offfences includeing treatment and care of
victims of sexual offences. Its review once after every five years will update the document.
6.3Sexual Offences Act and its Implication to Education System
The Teachers Service Commission Code of Regulation(2005) prohibits any form of sexual misconduct on
a student. The teacher is supposed to be interdicted. In the TSC Code Sexual Harassment include:
(i)Making requests or exerting pressure for sexual activity or favours.
(ii) Making intentional or careless physical contact that is sexual in nature
(iii)Making gestures, noises, jokes or comments regarding another persons sexuality
In that respect, the TSC recently dismissed six hundred(600) teachers overallegations of sexual abuse
(Daily Nation, 20thJune 2010) . The DEO interdicts teachers who are associated with sexual harassement
and forward their cases to TSC for action to be taken.
According to a circular from the TSC all boy students or girl students going out of school for an
overnight stay should be accompanied by a teacher of similar sex.
The same circular had instructions that students not leave school after midday, due to insecurity risk
which includes sexual harassment.
Cases of sexual harassment at educational institutions are in many forms which include:
(i)Rape in schools
(ii)Teacher and pupil relationships
58
(iii)Employees being promotes through sexual favours
(iv)Framing of others of sexual harassment especially when there is a conflict
(v)Sex for marks especially at the university level
(vi)Dressing- boys unbuttoning their shirts while girls wear short skirts and “sit badly” with their legs
open when male teachers are in class. The issue of dressing is also addressed in Article 27((4) of the TSC
Code.
6.4 Critique of The Sexual Offences Act

It should be remembered that this was a private members bill tabled in parliament by Njoki Ndung’u.
The first drawback/challenge was from the male MPs who felt that it would encourage women to make
false rape allegations in order to punish men. It was touted as women’s rights issue and for good reasons
since they are the victims of the majority of sexual violation. Due to that fact some amendment such as
the removal of the clause making rape within marriage an offence were removed.
The other issue is that in many instances causes of sexual offences are never reported due to fear that the
victim will be stigmatized. There are also cases of cover-ups especially where close relatives or
influential people are involved.
The process of reporting sexual offences to the relevant authority is tedious and takes long. Moreover to
prove that actually penetration occurred in a sexual offence or attempted penetration has been made is
more often than not difficult. At other times when witnesses are required in sexual offence, they may not
be available or ready to give evidence against the accused and more so bearing in mind that sexual
offences are not committed in the open.
Other cases of sexual offences then reported, those concerned are compromised and the cases do not go
any far. Sometimes those who are involved especially in child trafficking and child prostitution are
people who are rich and bribe their way out. Child trafficking is as the same time common due to poverty
Many other cases go unreported because majority of the people are ignorant of the law. So there is need
for training especially especially on the part of the public to encourage then to report the incidences.
Evidences for sexual harassment is immediate but at times the cases take too long to be reported hence
interfering with the evidence. The other challenge has been culture or traditions of some communities are
allowed by culture to marry their daughters off at any time or after undergoing some kind of initiation.
Lastly there has been a challenge at boarding school of dealing with students who are
homosexuals/sodomy/lesbianism.
Although the sexual offences act is in force and the minimum sentence stipulated for each offence getting
redress from the court is so hard and takes a long time. As a work of caution, there is a clause that
provides that a person who makes false allegation of a sexual offence will receive the sentence that the
person against who the false allegation was made would have received.
59
Revision Question
1. Explain various rights of a child to education
2. What are the various sexual offences on can commit
(vi) Legal framework in education, government printer, 2005, Kenya government.
(vii) The laws of Kenya, government printer 2004
(viii) The new constitution of Kenya, government printer , 2011
(ix) Brinkerhoff Derrick W, and Rudi Klauss, “Managerial Roles for social Development
(x) Burke w.w.Organization development: principles and practices, Boston: Little, Brown,
1982
60
CHAPTER SEVEN
7.0 IMPLICATIONS OF FRAMEWORKS IN EDUCATIONAL PLANNING,

LEGAL
Learning Objectives
(i) Explain the implications of frameworks in education planning
7.1 Implications
Education in Kenya is provided within the confined of a legal framework that has been established
through various Acts of Parliament and Legal notices. This gives various statutory bodies and
commissions a legal mandate to perform their functions. In the performance of their roles, these statutory
bodies and institutions have made tremendous success in facilitating the provision of education in Kenya.
However, it is also worth mentioning that they have experienced a number of challenges that have been
focused on. Yet in 2003, it was felt that the provision of education was not harmonized and that various
government ministries and statutory bodies were involved in the provision of education in Kenya . But
now a new challenge has arisen after the country formally adopted a new constitution on 27th August
2010.This calls for another forum to readdress the key issues in the Harmonized Draft to ensure that their
implementation would not be in conflict with the new constitution which is the supreme laws of the land
However Although the government implemented the Free Primary education, delays of the funds but the
exchequer contributes to detoriating standards of education. Corruption in the line ministries for example
recently the case of millions meant for training having been embezzled and very little done to bring the
real victims to books is another implication.
Management of school funds remains a thorn in the flesh for most Boards of Governors with the PTA
putting their foot forward that BOG have no right of managing funds they font provide.
Revision Questions
1. Discuss the implications of legal framework in education planning in Kenya, Cite examples
61
1982
62
SAMPLE OF CONTINUOUS ASSESSMENT TEST
1. Explain the any FIVE functions of KIE (10 marks)
2. Explain any FIVE sexual offences and their sentences (10 Marks)
3. What is meant by the following torts
(i) Absolute liability tort
(ii) Negligence tort
(iii) Intentional tort (6Marks)
4. Briefly describe the legal system of Kenya (10Marks)
5. Highlight Four sources of Laws in Kenya (4marks)
63

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Mt Kenya University

P.O. Box 342-01000 Thika

DEPARTMENT OF EDUCATION INSTRUCTION

COURSE CODE: MEM5206

COURSE TITLE: LEGAL FOUNDATIONS IN

Instructional Material for MEPL – distance learning

Expected Learning Outcome

Teaching and Learning Methodologies

CHAPTER ONE ........................................................................................................................................... 1

1.0 THE KENYA JUDICIAL SYSTEM ......................................................................................... 1

1.2 Courts System in Kenya...................................................................................................................... 2

1.3 The Structure/hierarchy of courts in Kenya ........................................................................................ 2

1.3.1 Superior courts ................................................................................................................................. 4

The supreme court......................................................................................................................................... 4

The court of appeal .................................................................................................................................... 4

The High Court ....................................................................................................................................... 5

1.3.2 High Court Special Powers .............................................................................................................. 7

CHAPTER TWO ........................................................................................................................................ 10

2.0 SOURCES OF LAW..................................................................................................................... 10

2.2 Constitution ............................................................................................................................... 10

2.3 Statutes ....................................................................................................................................... 13

2.3.1 Acts of Parliament.......................................................................................................................... 13

2.3.2 Judicial precedents. ........................................................................................................................ 13

CHAPTER THREE .................................................................................................................................... 15

3.0 LAWS GOVERNING EDUCATION MANAGEMENT PROVISION AND PLANNING ... 15

3.1EDUCATION ACT .......................................................................................................................... 15

3.2 The Kenya national Examination Council (KNEC) .................................................................... 15

3.2.1 The structure and organization of KNEC .................................................................................... 15

3.2.2 Functions of KNEC................................................................................................................ 17

3.3 The Kenya Institute of Education (KIE)....................................................................................... 17

4.2 Elements of tort ............................................................................................................................... 23

4.2 General functions of the law of tort ............................................................................................... 24

4.3 The Law of tort and teachers ......................................................................................................... 24

4.4 Classification of torts ...................................................................................................................... 25

4.4.1 Intentional torts ...................................................................................................................... 25

4.4.2Negligence Torts ............................................................................................................................ 28

4.4.3Absolute Liability Tort ................................................................................................................... 32

CHAPTER FIVE ........................................................................................................................................ 35

5.0 TSC ACT, CHILDREN’S ACT............................................................................................................ 35

5.1 TSC ACT ......................................................................................................................................... 35

5.2 CHILDREN’S ACT .......................................................................................................................... 37

CHAPTER SIX ......................................................................................................................................... 54

6.0EDUCATIONS ACT AND SEXUAL OFFENCES ACT ................................................................. 54

6.1 Education Act ............................................................................................................................ 54

6.2 Sexual Offences Act ........................................................................................................................ 54

6.2.1Sexual Offences and Their Minimum Sentences ......................................................................... 55

6.2.2Offences Committed Against A child ............................................................................................. 56

6.2.3Abuse of Position of Authority ....................................................................................................... 57

6.4 Critique of The Sexual Offences Act ............................................................................................... 59

CHAPTER SEVEN .................................................................................................................................... 61

7.0 IMPLICATIONS OF FRAMEWORKSIN EDUCATIONAL PLANNING, LEGAL ........................ 61

By the end of this chapter the learner should be able to;

(i) Define the term law

(ii) Explain the judicial system in Kenya

i. Judicature Act (Cap. 8)

ii. Magistrates Act (Cap. 10); and

iii. Kadhis‟ Court Act (Cap. 11)

1.3 The Structure/hierarchy of courts in Kenya

i The structure – The hierarchy or levels of Courts.

ii Establishment – The composition or who presides in that Court.

1.3.1 Superior courts

The court of appeal

The court has powers to: