Whenever a judgment announces that it is dealing with ‘novel questions of law’, readers need to pay close attention. This is just such a case. It concerns Kenya’s Teachers Service Commission, a body that had employed a teacher who sexually abused some students. Was the TSC vicariously liable for those acts? Had the TSC failed in its constitutional and statutory duty to protect the two children named in the case as WJ and LN, as well as other children, from the teacher’s depredations? – Unusually, these questions were considered by four women judges. One, Judge Mumbi Ngugi, heard the original case in the high court. Then three more women presided when the case was considered on appeal.

Judge Roselyn Nambuye

Read appeal judgment

Appeal court judges Roselyn Nambuye, Martha Koome and Fatuma Sichale, explained that the two children at the centre of the case were in Class Six during 2010 and aged 12 and 13 when the teacher concerned joined the school as its new deputy head teacher. Among his duties he taught Kiswahili to Class Six. According to the evidence of the children, the teacher invited them to his house saying he needed some housework done: cleaning his house, ironing shirts, and cooking. While they were at his home, the teacher raped (officially described as ‘defiling’) one of them.

He also tried to rape the other child in a school classroom, but the assault was thwarted when other children saw him through a window.

The parents of the two children spoke of the ‘drastic change’ in their behaviour. Questioned, the whole story came out. The teacher tried to have the issue ‘resolved informally’, but without success and the matter ended in court where the teacher was officially charged with defilement. The appeal court judges note that he was acquitted of the charges.

‘Rogue teachers’

The guardians of the two children wanted various declaratory orders from the court, to the effect that such acts against children violated their constitutional rights; that all schools and teachers, acting in the role of guardians of students, had a duty to protect them from violence by ‘rogue teachers’. Further, they asked for compensation for the children whose rights were infringed. The Teachers Service Commission (TSC) however said it had done all that was necessary.

The dispute was first heard in the high court by Judge Mumbi Ngugi who found that the TSC had not properly enforced its code of ethics and related documents in schools and did not monitor whether schools adhered to the code. Similarly, the state failed to provide legal remedies and other support for children who were sexually assaulted by teachers. The judge’s final conclusion was to hold the TSC, the state and the school vicariously liable for the teacher’s wrongful acts.

She found that though the teacher was acquitted by the magistrate’s court, the statements of the children and their guardians were consistent enough ‘to draw a conclusion of culpability based on the test of balance of probabilities.’ In addition, the TSC itself appeared to have been convinced because it dismissed him from his post and deregistered him as a teacher – neither of which was challenged by the teacher himself. All of these conclusions and inferences by Judge Ngugi found approval with the appeal court.

Duty met

What about the role of the TSC in relation to the matter? The TSC said it had policies and regulations that barred sexual relations between teachers and students. Its circular on the subject plus a database of de-registered teachers was enough to meet its duty to protect school children from sexual abuse, and it thus had no liability from such claims.

However, remarked the appeal judges, there was no evidence from the TSC that it actually ensured the content of its code of ethics reached the students. As potential victims they needed this information more than the teachers. Providing a safe environment was not just about infrastructure but also ensuring that children were not violated by caregivers.

The policy and code ought to be put up in every classroom and teachers and students should have the contents explained to them, the judges said. There should also be a reporting procedure so that if sexual abuse happens, the child can report in privacy to an impartial office. That didn’t happen here. In fact, the teacher concerned was in charge of the school’s discipline and counselling ‘and one wonders where the minors were to report,’ the judges added.

Lured

Did the teacher’s unlawful acts fall within the scope of his employment? Even though one assault happened at his house, he lured the children there while they were at school ‘where he exercised power and authority over them’. The children were students ‘who were supposed to obey their teacher’.

There were other instances of sexual abuse that actually happened at school. Between them these incidents passed the test of being committed ‘during the course of employment’ because there was a ‘close connection’ between his behaviour and his employment.

The risk faced by the children was already high because of the ‘prevalence of sexual abuse in Kenyan schools’ – a matter of public notoriety. This was no mere isolated incidence and TSC was well aware of the real and present danger faced by school children from their teachers. The situation was worsened by the fact that the teacher had a history of sexual misconduct that led to his transfer to the school where he abused the children in this case. TSC had a duty to supervise a teacher to make sure that children were protected.

Mocked

The appeal judges also noted that the children were mocked by some teachers who defended their colleague. This suggested a culture tolerant of sexual abuse of students thrived at the school. The record also showed that the TSC’s code was ‘not in use’ at the school, that the teachers were not instructed on their duty not to abuse the children and the children in turn were not empowered so that they could report teachers where necessary.

By risking the appointment of the teacher against this background, the TSC was vicariously liable for what happened and had to provide compensation.

The children had to be compensated for their humiliation, shame and pain that may have a lifelong effect, and there was no reason to interfere with Judge Ngugi’s award of Ksh 2million and 3million respectively.

Clarity

In argument at the high court, the lawyer for the girls, John Chigiti told Judge Ngugi that since the assaults on the two girls, the number of such cases had continued to rise. In 2010 alone, 600 teachers were accused of defiling school-going children.

The judgments are important for a number of reasons, not least because they have the potential to hold the organised teaching profession to account. With the high number of child rapes by teachers, it is past time that bodies such as the TSC are forced to take action. It’s a decision well worth reading, not just because of the outcome: it is rare to hear judges speak with such clarity about the horror of child rape and its long-term impact. Parents of school-going children all over the region will surely hope that other judges follow the example of those who dealt with this matter.

  • Newsletter, Judicial Institute for Africa, 7 May 2020