IN THE COURT OF APPEAL

AT NAIROBI

CORAM: NAMBUYE, KOOME & SICHALE, JJ.A) CIVIL APPEAL NO. 309 OF 2015 BETWEEN

TEACHERS SERVICE COMMISSION………………….………APPELLANT

AND

W.J………………………………..………………………..….1^ST RESPONDENT

L.N. ……………………………………………………..…..2^ND RESPONDENT

ASTORIKOH HENRY AMKOAH…………….….………3^RD RESPONDENT

JAMUHURI PRIMARY SCHOOL………..……..……….4^TH RESPONDENT

THE ATTORNEY GENERAL …………….………….…..5^TH RESPONDENT

CENTER FOR REPRODUCTIVE RIGHTS……..………6^TH RESPONDENT

(An appeal from the judgment and decree of the High Court of Kenya at Nairobi (Mumbi Ngugi, J) dated 19th May 2015

in H.C Pet. No. 331 of 2011)

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JUDGMENT OF THE COURT

• This appeal raises novel questions of law on whether vicarious liability can be attributed to the appellant, the Teachers Service Commission (TSC) who at the material time had employed Astorikoh Henry Amkoah, (3^rd respondent hereinafter referred to as “teacher”) for alleged acts of sexual abuse against the students hereinafter referred to as “WJ” and “LN”). It also raises constitutional matters of whether failures or lapses in regard to implementation of child safety policy that resulted in child abuse by a teacher who was charged with the responsibility of 1 protecting the children can be visited upon TSC on account of failure of duty of care to promote the best interest of the child and whether TSC failed in its constitutional and statutory duty to protect WJ and LN as well as other school children from sexual abuse (a violation of rights) by a teacher employed by TSC.

• A brief outline of the matter is that a claim was filed against TSC by WJ and LN both minors aged 12 and 13 years old respectively as at the material time. This was by way of a petition filed before the High Court through the minors’ guardians

J.K.M and S.C.M. Several declaratory orders were sought among them being that:

• acts of sexual and gender based violence against the minors and all other students amounted to; violence against their health as provided for under Article 43 (1) of the Constitution and Section 7 of the Children Act; inhuman and degrading treatment as guaranteed under Article 28 and 29 (c) of the Constitution; that all schools and teachers are under a legal capacity as guardians (loca parentis) to protect all students from sexual and gender based violence by rogue teachers; and compensation for the aforesaid violations.

• The petition was supported by the affidavits of JKM, a guardian, as well as the two minors who gave a blow by blow account of how they were violated by the 3^rd respondent. That the minors were class six pupils at Jamhuri Primary School at the material time and that the 3^rd respondent joined the school in July 2010 as the new Deputy Head Teacher and was a Kiswahili teacher of class 6 in addition to other responsibilities the teacher held in the school. The minors stated that in the same 2 month, the teacher invited them to his house under the guise that he wanted them to do some housework for him, including cleaning his house, ironing his shirts and cooking. That is when the teacher took the opportunity to defile the 2^nd respondent.

• Once again on 30^th July 2010, the teacher attempted to defile WJ, while in a classroom at the school, by forcing her to lie on a desk inside a classroom but the attempt was thwarted by curiosity of other children who peeped through a window. The guardian and parent stated that they noticed a drastic change in behavior of two minors and after questioning them, the girls revealed the details of the sexual abuse by their teacher. The guardian and parent confronted, the teacher who tried to have the matter resolved informally but this failed when it was escalated to the area Chief in August, 2010. The parent and guardian also recorded statements at the Solai Police Station in September 2010, following which the teacher was arraigned before the Chief Magistrate’s Court in Nakuru where he was charged with the offences of defilement in Criminal Case No 224 of 2010, although he was acquitted of the charges.
• The suit was opposed by the TSC vide a replying affidavit sworn by Simon Musyimi Kavisi. It was generally denied that the TSC had failed to discharge its constitutional and statutory mandate which includes the exercise of disciplinary power over teachers who breach, inter alia, the provisions of the Code of Regulations for teachers. The appellant stated that on or about 1^st November, 2010,  it received information through its agents that the 3^rd respondent, while teaching at 3 Jamhuri Primary School, had breached the provisions of the Code of Regulations for Teachers by sexually abusing the minors on various occasions; that it carried out disciplinary proceedings against the 3^rd respondent, and as a result of the proceedings, it dismissed the teacher and struck him off the register of teachers.

• Not to be the one taking matters lying down, the Teacher also filed a replying affidavit where he denied all the allegations of sexual abuse and termed the criminal charges leveled against him as malicious, merely meant to besmirch his reputation. He challenged the medical evidence that was attached in support of the petition to show that LN had been defiled by stating that the information contained in the P3 form was inconsistent with the minors’ statements and swore that his transfer was not precipitated by disciplinary action but rather a normal one under TSC Regulations. Although he conceded that he was aware of the TSC Circular prohibiting sexual contact between teachers and student, he nonetheless argued that it was not sent to him in relation to the instant matter but as a matter of general information. He contended that the petition had violated his right to dignity and right to fair trial under various provisions of the Constitution and the Universal Declaration of Human rights and urged the trial court to dismiss the petition with costs and order the petitioners to compensate him for irreparable damage that has been caused to his person, dignity, reputation and self-esteem.

• The petition was also opposed by the Attorney General (AG) (5^th respondent) whose position was that the TSC  had discharged its duty to  investigate and 4 discipline the Teacher for the alleged misconduct; that the government had put in place mechanisms to ensure all children have access to education and various policies to ensure their protection while in school. The petition was faulted for failing to demonstrate the connection of the alleged acts by the Teacher and how they denied the minors their constitutional right to education. Finally it was claimed by the AG that the petition was a claim for negligence and not violations of constitutional rights and therefore, the petitioners should have sought redress under private law.

• The matter fell for hearing before Mumbi Ngugi, J. who fastidiously went through the evidence and isolated the following issues for determination being; 

• Whether the court had jurisdiction to entertain the petition and grant reliefs sought; 

• Whether the petitioners had established a violation of their constitutional rights by the respondents; 

• Whether the appellant, 4^th and 5^th respondents were vicariously liable for the violation of the petitioner’s rights by the 3^rd respondent; 

• Whether the petitioners had violated the 3^rd respondent’s rights; and

• What remedies (if any) were to be granted to the petitioners and/or the 3^rd respondent? 

• The learned trial Judge made findings, inter alia, that the petition was properly before the court as Articles 23(1) and 165(3) of the Constitution granted the High Court jurisdiction to hear and determine applications for redress of violations of 5 

constitutional rights; that the allegations of sexual abuse contained in the petition had been proved on a balance of probabilities; that the minors had suffered a violation of their rights to dignity, health and education; that there is insufficient enforcement of the TSC circular and the Code of Ethics and the policies were not properly disseminated in schools; that there was no evidence of monitoring their adherence by the schools; that there was failure by the state to provide legal remedies and support for children who are victims of sexual abuse by teachers; and that the TSC, the State and 4^th respondents were vicariously liable for the wrongful acts of the 3^rd respondent.

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