Teachers Service Commission (TSC) cannot be held accountable for the actions of teachers in private schools, the High Court has ruled in a case seeking a ban on corporal punishment.
Justice Christine Meoli ruled that although the commission regulates teaching practice in Kenya, parents with children in private institutions cannot attach liability for what happens to their children on TSC.
“In this case, it is doubtful that vicarious liability can be imputed upon the commission for the wrongful acts employed by a private school,” ruled justice Meoli.
The High Court dismissed the case filed three years ago by a parent code-named CAK seeking compensation after two teachers allegedly beat her son.
Aggrieved, the parent has vowed to head to the Court of Appeal. CAK had asked the court to order ban on caning in schools.
The case was filed against three teachers; Emily Kulola, Ann Wanjiru and Peterson Gichuki as well as board of management of ACK Thika Memorial Church School and TSC.
In the case, CAK wants the court to come up with a policy that completely eliminates corporal punishment. She also wants compensation and apology for the caning of her child. The apology is to be published in a newspaper.
Through lawyer John Chigiti, the parent argued that the right of her child to education, good health and protection against harm were infringed on when he was punished, forcing her to transfer him to another school.
“On or about January 2016, the first respondent (Kulola) used excessive force and malice in viciously beating the child with her bare hands and pinched him with her fingers and nails and on the inner arm, breaking his skin and causing the minor a lot of pain, bruises bleeding and harm,” she claimed.
The government banned corporal punishment in schools in 2012 and drew up a law to protect children against abuse. But punishment of students through such measures as kneeling down, forced manual work, caning, slapping, pinching and pulling of ears is still common.
According to CAK, her child had to stay at home for three days nursing the injuries. She alleged that her child had lost the use of his hand. CAK said she was offered Sh8,500 as compensation and an apology letter from the teacher in a bid to settle the issue.
“Instead of taking up the issue seriously, the headmaster, who is the third respondent (Gichuki) mocked the mother that she was leaving the child in school yet the teacher had paid the cost of treatment,” Chigiti said.
According to court papers, the child started wetting his bed, being jumpy and withdrawn and was often sickly. The minor later said he was being beaten daily, at times by several teachers.
CAK claimed she incurred Sh500,000 in hospital bills and taking care of her child after the incident.
“The petitioner prays for an order compelling TSC to draw a policy that eliminates corporal punishment,” she continued.
The commission urged the court to dismiss the case. It stated that there are no laws giving it oversight powers on private schools.
In a reply filed before the High Court, Viola Kihara, TSC’s deputy director in charge of discipline, argues that although the regulator requires that all teachers must be in its register, its role is limited to only de-registering those teachers who have been forwarded by private schools boards over discipline.