Vicarious liability for acts of sexual and gender-based violence by teachers in Kenya
In Teachers Service Commission v WJ & 5 others  eKLR, the Court of Appeal held that the Teacher’s Service Commission (TSC), a body with the constitutional responsibility to employ and exercise disciplinary control over teachers, and the State, were vicariously liable for the actions of a Deputy Head Teacher for the sexual abuse of two minors. This case demonstrates the Court’s willingness to use civil liability as a vehicle for the protection of human rights. More importantly, it sets a precedent that will aid in the fight against the high level of sexual abuse in Kenyan schools.
The case was an appeal from the High Court decision in WJ & another v Astarikoh Henry Amkoah & 9 others  eKLR. In that case, the petitioners sued the TSC claiming that the acts of sexual and gender-based violence against the minors amounted to violence against their health under Article 43 of the Constitution and inhumane and degrading treatment under Articles 28 and 29 of the Constitution. The High Court found both the State and the TSC liable.
In an appeal against the High Court decision, the TSC argued that its dissemination of a TSC Code of Ethics, coupled with the establishment of an online database of deregistered teachers, fulfilled its duty to protect school children from sexual abuse and absolved it from any liability as alleged by the minors. The TSC and the State further argued that the actions by the Deputy fell outside the scope of his official duties of employment and were committed outside the school premises when the school period was over. Consequently, his actions failed to meet the Salmond test for actions committed within the “course of employment”, namely that an employer is responsible if such an act was (a) a wrongful act authorized by the employer, or (b) a wrongful and unauthorized mode of doing some act authorized by the employer.
Counsel for the minors submitted that the TSC had a mandate to establish policies and guidelines for the conduct of teachers and to take preventive measures to ensure that children’s rights violations do not occur. He further argued that the Deputy’s actions happened within the scope of his position as a deputy headteacher and as a school counsellor.
In a unanimous decision, a three-judge bench of the Court of Appeal found the TSC and the State vicariously liable for the sexual abuse. The Court rejected the Salmond test and held that it had been overthrown by the “close connection test”. The close connection test covered independent and deliberate wrongdoing. Further, the Court noted that while some of the unlawful acts occurred in the Deputy’s house, the opportunity to lure the minors occurred in school – where he exercised dominion over them in his capacity as a teacher and counsellor.
Invoking the theory of negligent retention, which stipulates that employers are liable if they retain an employee who they know or should have known is not fit for the employment position, the Court further held that the TSC had notice of the Deputy’s history of unlawful behaviour and that it was reasonably foreseeable that the TSC’s failure to monitor his actions would result in the injuries suffered by the minors – a test applicable under the common law of negligence.
Turning to the State, the Attorney General had argued that the TSC’s unlawful acts were not linked to the State since it had a duty to implement its own policies and guidelines to curb sexual misconduct by its employees. The Court rejected this argument and held that the State was bound by international law to take appropriate measures to protect children from sexual abuse. According to the Court, the African Charter on the Rights and Welfare of the Child imposed a duty of care, which arose from the relationship between the State and children as its citizens. This duty could not be delegated by agency to the TSC.
It is hoped that this case will go a long way in protecting children from sexual and other forms of violence at school.