CASE SUMMARY-VICARIOUS LIABILITY OF TEACHERS SERVICE COMMISSION

TEACHERS SERVICE COMMISSION v WJ AND 5 OTHERS [2020] eKLR (NAIROBI COURT OF APPEAL – CIVIL APPEAL NO. 309 OF 2015)

BRIEF FACTS

This was an appeal from the High Court of Kenya where the appellant, The Teachers Service Commission (TSC), was challenging the decision of the High Court to hold it vicariously liable for the acts of the third respondent (Astorikoh Henry Amkoah), who committed acts of sexual abuse against two minors while employed as a teacher. Amkoah was charged with defilement and arraigned in the Chief Magistrate’s Court but was later acquitted of the charges. This then led to the filing of a constitutional petition at the High Court of Kenya where the minors’ guardians sought relief for the alleged acts, claiming that all teachers and schools were under an obligation to protect all students from sexual violence due to their capacity as the students’ guardians, a concept known as loco parentis i.e. “in place of the parent”. The High Court upheld the petition, declaring that the State and TSC were vicariously liable for the acts of Amkoah, and that in general, there were insufficient mechanisms to protect students from sexual abuse by teachers.

The main argument by TSC in this appeal was that Amkoah had been punished after the sexual abuse allegations had surfaced, by conducting investigations, dismissing Amkoah and deregistering him from the Commission. TSC argued that it had fully discharged its mandate by disseminating a circular condemning increasing acts of sexual violence by teachers and by publishing an online database of deregistered teachers, and as such, could not be held liable for the acts committed by Amkoah. The Attorney General (AG), appearing for the State, was of the opinion that Amkoah committed the acts on his own and that as such, the State was not liable to compensate the victims of his abuse. The AG was also in support of the measures taken by TSC, which were “geared towards the protection of children”.

FINDINGS OF THE COURT

In dismissing the appeal, the appellate judges observed that the measures taken by TSC were insufficient. The court stated that while the circular was disseminated among teachers, it was not cascaded and taught to the students, to arm them with information that would be crucial towards helping them protect themselves. The court was also critical of the fact that the reporting mechanisms were insufficient to enable students to come forward and report instances of abuse. In this case, Amkoah, the alleged abuser, was the same person to whom students were meant to report and from whom they were to receive counselling.

Lastly, the court was especially concerned with the fact that TSC was fully aware that Amkoah had a history of sexual misconduct, yet transferred him to the school where the alleged acts of sexual abuse took place without properly investigating such allegations before transferring him. The court applied the theory of negligent retention, whereby an employer is held liable for retaining an employee who it knows or should have known is not fit for the employment position. The court also applied the test of reasonable foresight, where TSC should have reasonably foreseen that Amkoah was likely to commit such acts and did not take enough measures to prevent them altogether. The court also held the State liable for breach of its duty to “promote, protect and uphold the rule of law and public interest” because international law clearly obligates States to take all measures to ensure the protection of children. The appeal was dismissed and the decision of the High Court was upheld.

BY WTT LICHUMA ADVOCATES LLP