@Prof. Eric Mwenda E.G.

-0726-560327 Lecture notes year

2021
CHUKA UNIVERSITY
FACULTY OF EDUCATION AND RESOURCES DEVELOPMENT

EAPE 422/PGDE 732: LAW IN EDUCATION/LEGAL AND POLICY ISSUES IN EDUCATION

Introduction
What is Law?
 The term law has no assigned meaning. It is used in a variety of senses. Although different writers
have attempted to explain the term Law, no generally accepted explanation has emerged.
 The study of the nature of law is known as Jurisprudence. Persons who explained the term law from
the same point of view form a school of jurisprudence/thought.
 The word jurisprudence derives from the Latin term jurisprudentia, which means “the study,
knowledge, or science of law.” In the United States jurisprudence commonly means the philosophy of
law. Legal philosophy has many aspects, but four of them are the most common.
i. The first and the most prevalent form of jurisprudence seek to analyze, explain, classify, and
criticize entire bodies of law. Law school textbooks and legal encyclopaedias represent this type
of scholarship.
ii. The second type of jurisprudence compares and contrasts law with other fields of knowledge such
as literature, economics, religion and the social sciences.
iii. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a
particular legal concept.
iv. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as
“What is law?” and “How do judges (properly) decide cases?”
The following are some of the definitions of law:
1. Law may be defined as the body of principles recognised and applied by the state in the
administration of justice(Salmond)
2. A law is a rule of conduct imposed and enforced by the sovereign (Austin). Meaning, a rule
enforced b a court of law in a given territory.
3. It may be defined as a body of rules for the guidance of human conduct which are imposed upon
and enforced among the members of a given state. (Phillip.S.James)
4. Law consists of a body of rules which are seen to operate as binding rules in to that community
by means of which sufficient compliance with the rules may be secured to enable the set of rules
to be seen binding.
5. A collection of rules of human conduct prescribed by human beings for the obedience of human
beings.
A rule may be defined as an authoritative principle set forth to guide behaviour or action.

Law can therefore be Law and morality

 Morality is the sense of judgement between right and wrong by
defined as: An aggregate
reference to certain standards developed by society over time.
or conglomeration of  It consists of standards of behaviour widely used by a society
rules enforced by courts (prescriptions of society) and is binding on the conscience of the
of law at a given time. members of that society. An action that is considered to be
opposed to morality will generally be frowned upon by that
society. However, morality is not enforceable by courts of law.
 This is compared to rules of law, which are binding, enforceable and have sanctions in all cases.
 Wrongs in society are contraventions of law or morality or both. However, the law incorporates a
significant proportion of morality. In such instances, where law and morality overlap, morality is
enforced as a rule of law. Such morality becomes part of the law. E.g. killing a person is immoral as
well as a crime. So is theft. However, certain wrongs in society contravene morality but not the law

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e.g. disrespect, failure to provide for parents, failure to rescue a drowning person e.t.c. What then is
the relation of morality to law?
 The existence of unjust laws (such as those enforcing slavery, or legalizing abortions) proves that
morality and law are not identical and do not coincide.
 The existence of laws that serve to defend basic values such as laws against murder, rape, malicious
defamation of character, fraud, bribery, etc. proves that the two can work together.
 Laws govern conduct at least partly through fear of punishment. When morality, is internalized, when
it has become habit-like or second nature, governs conduct without compulsion.
 The virtuous person does the appropriate thing because it is the fine or noble thing to do, not because
not doing it will result in punishment. As such, when enough people think that something is immoral
they will work to have a law that will forbid it and punish those that do it. . However if there is a law
that says doing X is wrong and illegal and enough people no longer agree with that then those people
will work to change that law.

Functions/ purposes of law

 It promotes peaceful coexistence/ maintenance of law and order/ prevents anarchy
 It is a standard setting and control mechanism. Law sets standards of behaviour and conduct in
various areas such as manufacturing, construction, trade e.g. The law also acts as a control
mechanism of the same behaviour
 It protects rights and enforces duties by providing remedies whenever these rights or duties are not
honoured.
 Facilitating and effectuating private choice. It enables persons to make choices and gives them legal
effect. This is best exemplified by the law of contracts, marriage and succession.
 It resolves social conflicts. Since conflicts are inevitable, the rule of law facilitates their resolution by
recognizing the conflicts and providing the necessary resolution mechanism.
 It controls and structures public power. Rules of law govern various organs of Government and
confer upon them the powers exercisable by them. The law creates a limited Government. This
promotes good governance, accountability and transparency. It facilitates justice in the society

Classification/ Types of law

Law may be classified as:
1. Written and Unwritten.
2. Municipal (National) and International.
3. Public and Private.
4. Substantive and Procedural.
5. Criminal and Civil.

Written law
 This is codified law. These are rules that have been reduced to writing i.e. are contained in a formal
document e.g. the Constitution of Kenya, Acts of Parliament, Delegated Legislation, International
treaties etc.

Unwritten law
 These are rules of law that are not contained in any formal document. The existence of such rules
must be proved. E.g. African Customary law, Islamic law, Common law, Equity, Case law e.t.c.

Municipal/ National law

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 This refers to rules of law that are applicable within a particular country or state. This is state law. It
regulates the relations between citizens inter se (amongst themselves) as well as between the citizens
and the state. It originates from parliament, customary and religious practices.
International law
 This is a body of rules that generally regulates the relations between countries or states and other
international persons e.g. United Nations. It originates from international treaties or conventions,
general principles and customary practices of states.

Public law
 It consists of those fields or branches of law in which the state has a direct interest as the sovereign. It
is concerned with the Constitution and functions of the various organizations of government
including local authorities, their relations with each other and the citizenry. Public law includes:
• Criminal Law
• Constitutional Law
• Administrative Law
Public Law asserts state sovereignty.

Private Law
Consists of those branches of law in which the state has no direct interests as the state / sovereign. It is
concerned with the legal relationships between persons in ordinary transaction e.g.
• Law of contract
• Law of property
• Law of succession
• Law of marriage
• Law of torts
•
Substantive Law
 It consists of the rules themselves as opposed to the procedure on how to apply them. It defines the
rights and duties of the parties and prescribes the remedies applicable.
 Substantive law defines offences and prescribes the punishment, for example:
• The Law of torts,
• The Law of succession,
• The Law of contract,
• The Law of marriage.
• The Penal Code

Procedural Law
 This is adjectival law. It consists of the steps or guiding principles or rules of practice to be complied
with in the administration of justice or in the application of substantive law. For example:
• The Civil Procedure Code
• The Criminal Procedure Code

Criminal law
 This is the law of crimes.
 A crime is an act or mission committed or omitted in violation of public law e.g. murder, treason,
theft, e.t.c. All crimes are created by parliament through statutes.
 A person who is alleged to have committed a crime is referred to as a suspect.
 As a general rule, suspects are arrested by the state through the police at the instigation of the
complainant.
 After the arrest, the suspect is charged in an independent and impartial court of law whereupon he
becomes the accused.

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 Criminal cases are generally prosecuted by the state through the office of the Attorney General (AG)
hence they are framed as R (the State) Vs Accused E.g. R v Kamenchu Under Section 77 (2) (a) of the
Constitution, an accused person is presumed innocent until proven or pleads guilty.
 If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him by
adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.
 The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that the
accused committed the offence as charged. In the event of reasonable doubt, the accused is acquitted.
If the prosecution proves its case i.e. discharges the burden of proof, then the accused is convicted
and sentenced.

 The sentence may take the form of:-

1. Imprisonment
2. Fine
3. Probation
4. Corporal punishment
5. Capital punishment
6. Community service
7. Conditional or unconditional discharge

Civil law
Civil law is concerned with violation of private rights belonging to an individual in his/her capacity as an
individual. E.g. refusal to pay a loan, or defaming .
 Civil law is concerned with the rights and duties of persons i.e. individuals and corporations.
Branches of civil law include:-
• Law of contract
• Law of torts
• Law of property
• Law of marriage
• Law of succession
 When a person’s civil or private rights are violated, he is said to have a cause of action. Examples of
causes of action:
• Breach of contract
• Defamation,
• Assault
• Negligence
• Trespass to goods e.t.c.
 Causes of action are created by parliament through statutes as well as the common law and equity.
 The violation of a person’s civil rights precipitates a civil case or action. The person whose rights are
allegedly violated sues the alleged wrongdoer hence civil cases are framed as Plaintiff v Defendant.
 It is the duty of the plaintiff to prove his allegations against the defendant. This means that the burden
of proof is borne by the plaintiff. The standard of proof in civil cases is on a balance of probabilities
or on a preponderance of probabilities i.e. the court must be satisfied that it is more probable than
improbable than the plaintiff’s allegations are true.
 If the plaintiff proves his allegations by evidence, he wins the case and is awarded judgment which
may take the form of:-
1. Damages (monetary compensation)- common law remedy designed to compensate the
innocent party by award of damages.
2. Injunction- a court order telling a person either to do a thing or refrain from doing a particular
act.
3. Specific performance- this is a court order directing the defaulting party to carry out his
specific obligation, where damages are not an adequate remedy.

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4. Account-
5. Tracing
6. Winding up a company
7. Appointment of receiver

The rule of law

 The concept of the Rule of Law is a framework developed by Dicey on the basis of the English Legal
system. It is also described as the due process.
 According to Dicey, rule of law comprises three distinct conceptions namely:
i. Absolute supremacy or predominance of regular law: this means that all acts of the State are
governed by law. It means that a person can only be punished for disobedience of the law and
nothing else.
ii. Equality before the law: this means equal subjection of all persons before the law. It means that
no person is exempted from obeying the law. All classes of persons are subjected to the same
judicial process regardless of their age, sex, creed, gender or race.
iii. The law (Constitution) is a consequence and not the source of rights: means that the law is a
manifestation of the will of the people.

FACTORS UNDERMINING RULE OF LAW

i. Excessive power of the Executive
ii. Non - independent Judiciary
iii. Corruption
iv. Selective prosecution
v. Civil unrest
vi. Ignorance of the law

CHAPTER TWO
SOURCES OF LAW
 The phrase sources of law literally means where rules of law are found.
 This chapter describes the origins of the rules and principles which constitute the law applicable in a
country at a given time.
 In other words the materials from which rules of law are developed.

KEY DEFINITIONS
 Bill: a draft law or legislation
 Delegated legislation: law made by parliament indirectly
 Ultra vires: Latin term which means “beyond the powers”
 Common law: a branch of the law of England which was developed from customs, usages and
practices of the English people
 Stare decisis; Latin term which means “the decision stands”
 Precedent: An earlier decision of a court

 Phrase sources of law literally means where rules of law are found. However, the phrase has been
used in a variety of senses. It has been used to describe:

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 The origins of the rules and principles which constitute the law applicable in a country at a given
time.
 The source of force or validity of the various rules or principles applicable as law in a country.
 The materials from which rules of law developed.
 Hence the phrase sources of law has been used to describe the legal, formal, historical and material
sources of law.

The various sources of law of Kenya are identified by:

 Judicature Act
 Constitution
 Hindu Marriage and Divorce Act
 Hindu Succession Act
 Kadhis Court Act.

Sources identified by the Judicature Act

 The Constitution
 Legislation (Act of Parliament) (Statutes)
 Delegated legislation
 Statutes of General Application
 Common law
 Equity
 Case law or (judge–made law)
 Africa Customary law

Sources of law of Kenya may be classified as:

 Written and unwritten sources
 Principal and subsidiary sources

Principal sources
 These are sources of law applicable throughout Kenya, they regulate all persons in Kenya.

Subsidiary sources
 These are sources of law which regulate certain categories of people in Kenya in relation to certain
matters e.g.
 Islamic law
 Hindu Law
 African customary law

The Constitution
 This is a body of the basic rules and principles by which a society has resolved to govern itself or
regulate its affairs.
 It contains the agreed contents of the political system.
 It sets out the basic structure of government. A Constitution may be written or unwritten.

Constitutions may be classified in various ways:

1. Written and Unwritten
2. Republican and Monarchical
3. Presidential and Parliamentary
4. Rigid and Flexible

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 The Kenyan Constitution is written. It was enacted by the English parliament in 1963 for purposes of
granting Kenya independence. It has been amended many times.
 Section 3 (1) (a) of the Judicature Act recognizes the Constitution as a source of law of Kenya. It is
the fundamental law of the land and prevails over all other laws. It is the supreme law.

SUPREMACY OF THE CONSTITUTION

The supremacy of the Constitution as source of law is manifested in various ways:
 All other laws derive their validity from the Constitution
 It proclaims its supremacy. Section 3 of the Constitution provides inter alia (among other things)
“The Constitution is the Constitution of the Republic of Kenya and shall take the force of law
throughout Kenya, if any other law is inconsistent with this Constitution, this Constitution will
prevail and the other law shall to the extent of its inconsistency be void”
 Organs of government: The Constitution creates the principal and other organs of government.
The Legislature, Executive and the Judiciary owe their existence to the Constitution. Additionally
the Constitution creates other bodies and offices
 Amendment procedures: The Constitution has a special amendment procedure. Under Section
47 (1) of the Constitution, parliament is empowered to alter the Constitution.
 However a Bill seeking to alter the Constitution must be supported by not less than 65% of all the
members of parliament excluding the ex-officio members during the 2nd and 3 rd readings3.
 Fundamental rights and freedoms: The Constitution of Kenya guarantees the fundamental
rights and freedoms of an individual.

All other written laws (statutes/ legislation/ acts of parliament)

 This is law made by parliament directly in exercise of the legislative power conferred upon it by the
Constitution. The product of parliament’s legislative process is an Act of Parliament e.g. The Mining
Act4.
 Sec 3(1) (b) of the Judicature Act recognizes legislation or statues law as a source of law of Kenya by
the words “All other written laws”. These words encompass:

1. Certain Acts of the UK Parliament applicable in Kenya.

2. Certain Acts of the Indian Parliament applicable in Kenya
3. Acts of the legislative council
4. Acts of the Parliament of Kenya.
 Statute law legislation is a principal source of law applicable throughout Kenya. It must be consistent
with the Constitution. It is the most important source of law.

THE LAW MAKING PROCESS

 The legislative power of the republic is vested in the parliament of Kenya which consists of the
president and the National Assembly.
Under Sec 31 of the Constitution, the National Assembly consists of:
a) Elected members
b) Nominated members
c) Ex-officio members
Under Sec 46 (1) of the Constitution, the legislative power of parliament is exercisable by passing Bills in
the National Assembly.

A bill is draft law. It is a statute in draft. Bills may be classified as:

a) Government and Private members bills
b) Public and Private bills.

a) Government Bill

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 This is a Bill mooted by the government which it introduces to the National Assembly National
Assembly for debate and possible enactment to law. All government bills are drafted by the office of
the Attorney General. Most bills are government bills.
b) Private Members Bill
 This is a Bill mooted by a member of parliament in his capacity as such which he introduces to the
National Assembly for debate and passage to law e.g. The Hire Purchase Bill, 1968.
c) Public Bill
 This is a bill that seeks to introduce or amend law applicable throughout Kenya. It may be
government or private members
d) Private Bill
 This is a Bill that seeks to introduce or amend law applicable in some parts of Kenya or it regulates a
specific group of persons. The bill may be government or private members.

LAW MAKING PROCEDURE

 The procedure of law-making in Kenya is contained in the Constitution and the National Assembly
Standing Orders. A bill passes through various stages before enactment to law.

1. Publication of Bill in the Kenya Gazette

 All bills must be published in the Kenya Gazette to inform the public and M.P’s of the intended law.
As a general rule, a Bill must be published at least 14 days before introduction to the National
Assembly. However, the National Assembly is empowered to reduce the number of days 5.
2. Readings
a) 1st Reading
 The Bill is read out to members for the 1st time. No debate takes place. This reading is a mere
formality.
b) 2nd Reading
 The Bill is read out to members for the 2nd time. This is the debating stage. All members are given
the opportunity to make contributions. Amendments or alterations may be proposed. After exhaustive
debate, the Bill proceeds to the committee stage.
c) Committee/Commital Stage
 The bill is committed either to a select committee of members or to the entire National Assembly as a
committee for a critical analysis. At this stage, the bill is analysed word for word. In the case of a
select committee, it makes a report for submission in the National Assembly
d) Report/Reporting Stage
 The chairman of the Select Committee tenders its report before the National Assembly. If the report is
adopted, the bill proceeds to the third reading.
e) 3rd Reading
 The bill is read out to members for the third time. Generally no debate takes place. The Bill is voted
on by members of the National Assembly and if supported by the required majority, it proceeds to for
presidential assent

3. President’s Assent
 Under Section 46 (2) of the Constitution, all Bills passed by the National Assembly must be presented
to the president for his assent. Under Section 46 (3), the president must within 21 days of presentation
of the bill signify to the speaker of the National Assembly his assent or refusal.
 Under Section 46 (4), if the president refused to give his assent, he must within 14 days thereof
deliver to the speaker, a memorandum on the specific provisions which in his opinion should be
reconsidered including his recommendations for amendment.
 Under Section 46 (5), the National Assembly must reconsider the bill taking into account the
president’s recommendations and must either:

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 Approve the recommendations with or without any amendments and re-submit the bill to the
president for assent OR
 Ignore the president’s recommendations and repass the Bill in its original state. If the resolution to
repass the Bill as such supported by not less than 65% of all the members of the National Assembly
excluding the ex-officio members, the president must signify his assent within 14 days of the
resolution.

4) Publication of Law in the Kenya Gazette

 Under Section 46 (6) of the Constitution, a law passed by the National Assembly must be published
in the Kenya Gazette before coming into operation. A statute or Act of parliament comes into
operation either on the date of publication in the Kenya Gazette or on such other dates as may be
signified by the minister by a notice in the Kenya Gazette.
 However, under Section 46 (6), Parliament is empowered to make law with retrospective effects.
 Under Section 46 (7); all statutes enacted by the parliament of Kenya must contain the words
“Enacted by the parliament of Kenya.”

Advantages of Statutes Law

 Democratic: Parliamentary law making is the most democratic legislative process. This is because
parliaments the world over consist of representatives of the people they consult regularly. Statute
Law, therefore, is a manifestation of the will of the people.
 Resolution of legal problems: Statute Law enables society to resolve legal problems as and when
they arise by enacting new statutes or effecting amendments to existing Law.
 Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political, social
or economic. Parliament enacts statutes to create the necessary policies and the regulatory framework.
 Durability: Statute Law consists of general principles applicable at different times in different
circumstances. It has capacity to accommodate changes without requiring amendments.
 Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of all in
the same manner and any exceptions affect all.
 Adequate publication: Compared to other sources of Law, statute Law is the most widely published
in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally, it attracts media
attention.
 It is a superior source of law in that only the Constitution prevails over it.

Disadvantages of Statute Law

 Imposition of Law: Statute Law may be imposed on the people by the dominant classes in society. In
such a case, the Law does not reflect the wishes of the citizens nor does it cater for their interests.
 Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as opposed to
those of the citizenry.
 Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly
standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
 Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and technical
Bills rarely receive sufficient treatment in the national assembly, their full implications are not
appreciated at the debating stage.

STATUTES OF GENERAL APPLICATION

Statutes of general application
 Kenyan Law does not define the phrase “Statutes of General Application”.
 However, the phrase is used to describe certain Statutes enacted by the UK parliament to regulate the
inhabitants of UK generally.
 These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature. Act.
However, there application is restricted in that they can only be relied upon:

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i. In the absence of an Act of parliament of Kenya.
ii. If consistent with the provisions of the Constitution.
iii. If the Statute was applicable in England on or before the 12/8/1897
iv. If the circumstances of Kenya and its inhabitants permit.
Examples include:
1. Infants Relief Act, 1874
2. Married Women Property Act 1882
3. Factors Act, 1889
 Statutes of general application that have been repealed in the UK are still applicable in Kenya unless
repealed by the Kenyan parliament.

DELEGATED LEGISLATION
 Although Section 30 of the Constitution rests the legislative power of the republic in parliament,
parliament delegates its legislative power to other persons and bodies.
 Delegated legislation is also referred to as subsidiary (subordinate legislation). It is Law made by
parliament indirectly.
 Delegated legislation consists of rules, orders, regulations, notices, proclamations e.t.c. made by
subordinate but competent bodies e.g.
1. Local Authorities
2. Professional bodies such as ICPA(K)
3. Statutory boards
4. Government ministers
 These bodies make the laws in exercise of delegated legislative power conferred upon them by
parliament through an Enabling or Parent Act.

Delegated legislation takes various forms e.g.

1. County assemblies make by-laws applicable within their administrative area
2. Government ministries, professional bodies and others make rules, orders, regulations, notices e.t.c.

CHARACTERISTICS OF DELEGATED LEGISLATION

 All delegated legislation is made under the express authority of an Act of Parliament.
 Unless otherwise provided, delegated legislation must be published in the Kenya Gazette before
coming into force.
 Unless otherwise provided, delegated legislation must be laid before parliament for approval and
parliament is empowered to declare the delegated legislation null and void by a resolution to that
effect whereupon it becomes inoperative to that effect

WHY DELEGATED LEGISLATION?

 Delegated legislation is described as a “necessary evil” or a Constitutional impropriety”. This is
because it interferes with the doctrine of separation of powers which provides that the Law-making is
a function of the legislature.

Parliament delegates Law-making powers to other persons and bodies for various reasons:
 Parliament is not always in session
 Parliament is not composed of experts in all fields
 Inadequate parliamentary time
 Parliamentary Law-making is slow and unresponsive to urgent needs. Additionally it lacks the
requisite flexibility
 Increase in social legislation
SOURCES OF LAW
3 0 INTRODUCTION TO LAWS T U D Y T E X T

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ADVANTAGES OF DELEGATED LEGISLATION
 Compensation of last parliamentary time: Since members of parliament are not always in the
National Assembly making Laws, the Law-making time lost is made good by the delegates to whom
legislative power has been given hence no Law-making time is lost.
 Speed: Law-making by government Ministers, Professional bodies and other organs is faster and
therefore responsible to urgent needs.
 Flexibility: The procedure of Law-making by delegates e.g. Government Ministers is not tied to rigid
provisions of the Constitution or other law. The Minister enjoys the requisite flexibility in the Law-
making process. He is free to consult other persons.
 Technicality of subject matter: Since parliament is not composed of experts in all fields that
demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts in the
respective fields e.g. Government Ministries and local authorities.

DISADVANTAGES OF DELEGATED LEGISLATION

o Less Democratic: Compared to statute law, delegated legislation is less democratic in that it is not
always made by representatives of the people affected by the law. E.g. rules drafted by technical staff
in a government ministry.
o Difficult to control: In the words of Professor William Wade in his book “Administrative Law” the
greatest challenges posited by delegated legislation is not that it exists but that it’s enormous growth
has made it impossible for parliament to watch over it. Neither parliament nor courts of law can
effectively control delegated legislation by reason of their inherent and operational weakness.
o Inadequate publicity: Compared to statute law, delegated legislation attracts minimal publicity if
any. This law is to a large extent unknown.
o Sub-delegation and abuse of power: Delegates upon whom law making has been delegated by
parliament often sub-delegate to other persons who make the law. Sub delegation compounds the
problem of control and many lead to abuse of power.
o Detailed and technical: It is contended that in certain circumstances, delegated legislation made by
experts is too technical and detailed for the ordinary person.
UNWRITTEN SOURCES OF LAW
 Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten
sources in the event of any conflicts. This is primarily because unwritten law is generally made by a
supreme law-making body. These sources include:
1. Common law
2. Equity
3. Case law
4. Islamic law
5. Hindu law
6. African Customary law.

COMMON LAW
 It may be described as a branch of the law of England which was developed by the ancient common
Law Courts from customs, usages and practice of the English people.
 These courts relied on customs to decide cases before them thereby giving such customs the force of
law.
 The court of Kings Bench, Court Exchequer and the court of common pleas are credited for having
developed common law.
 These courts standardized and universalized customs and applied them in dispute resolution. At first,
common law was a complete system of rules both criminal and civil.

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 The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula.
The Romans are credited for having laid the foundation for the development of the common law.
33
STUDYTEXT
CHARACTERISTICS OF COMMON LAW
1. Writ System.
2. Doctrine of stare decisis
1. THE WRIT SYSTEM
 At common law, actions or cases were commenced by a writ. There were separate writs for separate
complaints. Writs were obtained at the Royal office.
 A Writ stated the nature of the compliant and commanded the police officer of the country in which
the defendant resided to ensure that the he appeared in court on the mentioned date.
 Often, police officers demanded bribes to compel the defendant to appear in court and would not
compel an influential defendant.
 The writ system did not recognize all possible complains and many would be plaintiffs could not
access the courts.
 It also lengthened the judicial process.
2. DOCTRINE OF STARE DECISIS
 Stare Decisis literally means “decision stands” or “stand by the decision.”
 This is a system of administration of justice whereby previous decisions are applied in subsequent
similar cases.
 At common Law, a judge having once decided a case in a particular manner had to decide all
subsequent similar cases similarly.
 This made the common Law system rigid.
 Common Law consists of decisions handed down by courts of law on the basis of customs and usages
and may be described as the English Customary Law.

PROBLEMS/SHORTCOMINGS OF COMMON LAW

1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There
were separate writs for different complaints. However:
a. This system did not recognize all possible complaints and many would be plaintiffs had no
access to the courts
b. The writ system encouraged corruption
c. It lengthened the course of justice

2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This practice
rendered the legal system rigid and hence unresponsive to changes.
3. Procedural technicalities: The Common Law procedure of administration of justice was highly
technical. Common Law courts paid undue attention to minor points of procedure and many cases were
often lost on procedural matters.D Y T E X T
4. Delays: The administration of justice at common Law was characterized by delays. Defendants often
relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and
included; being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case
could be adjourned for 1 year and 1 day.
5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable
relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property
on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant
trustees and trustees had no enforceable rights against beneficiaries.
6. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary
compensation or damages. They could not compel performance or restrain the same.

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7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his
contractual obligations within the contractual period of repayment would lose not only his security but the
total amount paid.
2.5 EQUITY
Doctrines of Equity
 It may be described as that branch of the law of England which was developed by the various Lord
Chancellor’s courts to supplement the common Law.
 It was developed to mitigate the harshness of the common Law.
 The development of equity is traceable to the early petitions to the king by persons dissatisfied with
the common Law.
 At first, the king heard the petitions and decided the dispute between the parties on the basis of what
he thought was fair.
 He was overwhelmed by the petitions whereupon he established the office of the Lord Chancellor
who would now hear the petitions.
 More offices of the Lord Chancellor were established due to the number of petitions.
 The Lord Chancellor decided all petitions on the basis of the principle of fairness. Administration of
justice was fast and the writ system was not applicable. However, the decisions handed down by the
Lord Chancellor were not legally binding as the Lord Chancellor was not legally trained.
 It was not until the beginning of the 16th century that the Lord Chancellors offices were held by
legally trained persons and the decisions they made had the force of Law.
 These decisions are what are referred to as the Doctrines of Equity.
 The Lord Chancellors offices had now become courts. The administration of justice by Equity courts
was flexible and not tied to the doctrine of stare desicis.
 The courts had move remedies to offer and had no technicalities of procedure.
 The Lord Chancellor Courts were guided by the principle of fairness.
 There were no other guiding principles and as a consequence many inconsistent decisions were made
hence “Equity varied with the length of the foot of the chancellor”.

To enhance consistency in decision-making, the Lord Chancellors courts:

a) Developed a set of guiding principles. These were the so-called Maxims of Equity.
b) Adopted the doctrine of stare decisis.
 Equity consists of rules developed by the Lord Chancellor Courts based on the principle of fairness.

CONTRIBUTION OF EQUITY
 It granted injunction and would order specific performance where common law could award only
damages.
 It recognised trusts and a beneficiary could compel a trustee to administer the trust property in
accordance with the terms of the trust.
 It recognised equitable doctrine of part performance and mortgagor’s right of redemption of
mortgaged property

CASE LAW/ JUDGE MADE LAW (JUDICIAL PRECEDENT)

 This is law made by judges. Judges make law when they formulate (enunciate) principles or
propositions where none existed or in doubtful situations, which are relied upon as law in subsequent
similar cases.
 Case law therefore consists of principles or propositions of law formulated by judges when deciding
cases before them.
 An earlier decision of a court is referred to as a precedent if it contains a principle of law.
 The principle or proposition formulated by the judge is referred to as ratio decidendi which literally
means ‘reason for decision.’

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 It is a principle or proposition of law based on the material facts of the case.
 It disposes off the case before the court. It is the binding part in a precedent or earlier decision. It
covers a group of factual situations with those of the instant case as the minimum. Obiter dicta: These
are by the way statements of law or facts made by a judge in the course of judgment.
 They do not dispose off the case before the court. They have no binding force; however they may be
relied upon by advocates in subsequent cases as persuasive authority in subsequent cases. These
statements of obiter dicta strengthen or reinforce the decision of the court. E.g. the “Neighbour
Principle”in Donoghue v. Stevenson (1932)

SUBSIDIARY SOURCES OF LAW

STUDYTEXT
1. ISLAMIC LAW
 It is based on the Muslim Holy Book, the Quran and the teaching of Prophet Mohammed contained in
his sayings known as Hadith.
 It is a subsidiary source of law of Kenya.
 It is recognized as a source of law by Section 66(5) of the Constitution and Section 5 of the Kadhi’s
Court Act.
 It only applies in the determination of civil cases relating to marriage, divorce, succession or personal
status in preceding in which all parties profess Muslim faith.
 In Bakshuwen V Bakshuwen (1949) the supreme court of appeal observed that: “the law applicable
in the determination of questions of personal law between Muslims was Mohammedan Law as
interpreted by judicial decisions.” In Kristina d/o Hamisi-v- Omari Ntalala and another, the
parties were married under Christian law. Subsequently the husband changed his faith and married
another woman under Islamic law.
 In a divorce petition, the 1st respondent argued that the second respondent was his wife under Islamic
law. Question was whether Islamic Law was applicable in the divorce. It was spelt that since the
parties were married under Christian Law, Islamic law was not applicable and the divorce petition
was granted.

2. HINDU LAW
 It is based on the Hindu faith and philosophy. It is a subsidiary source of law of Kenya. It is
recognized as a source of law by the Hindu Marriage and Divorce Act and the Hindu Succession Act.
 It only applies in the determination of civil cases relating to marriage, divorce, succession or personal
status in proceedings in which all parties profess Hindu faith.

3. AFRICAN CUSTOMARY LAW

 It is based on the customs usages and practices of the various ethnic groups in Kenya.
 A custom embodies a principle of utility or justice. Customs are by their nature local. Not every rule
of local customs is relied upon by a court of law in the settlement of a dispute.

For a custom to be relied upon as law, it must have certain characteristics:

1. Reasonableness; A good local custom must be reasonable i.e it must be consistent with the principle of
justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts.
2. Conformity with statute law: A local custom must be consistent with parliament made law. This is
because parliament is the principle law-making body and has Constitutional power to disqualify the
application of any rule of custom.
3. Observation as of right: A good local custom is that which a society has observed openly and as of
right i.e. not by force or by stealth nor at will.
4. Immemorial antiquity: A custom must have been observed since time immemorial. Time immemorial
means that no living person can attest as to when the custom did not exist. Kenyan law recognizes African
customary law as a source of law. Section 3(2) of the Judicature Act, is the basic statutory provision

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regarding the application of African Customary Law in civil cases in which one or more of the parties is
subject to it or affected by it, so far it is applicable and is not repugnant to justice and morality or
inconsistent with any written law.

EDUCATION RIGHTS OF A CHILD IN KENYA

Right of child to free and compulsory education.
(1) The Cabinet Secretary shall implement the right of every child to free and compulsory basic
education.
(2) The Cabinet Secretary shall in consultation with the National Education Board and the relevant
County Education Board provide for the establishment of—
(a) Pre-primary, primary and secondary schools, mobile schools, and adult and continuing education
centers, within a reasonably accessible distance within a county;
(b) Appropriate boarding primary schools in arid and semi-arid areas, hard-to-reach and vulnerable
groups as appropriate; and
(c) Academic centres, or relevant educational institutions to cater for gifted and talented learners;
(d) Special and integrated schools for learners with disability.

29. Free tuition

(1) No public school shall charge or cause any parent or, guardian to pay tuition fees for or on behalf of
any pupil in the school.
(2) Notwithstanding subsection (1)—
(a) Tuition fees may be payable by persons who are not Kenyan citizens;
(b) Other charges may be imposed at a public school with the approval of the Cabinet Secretary in
consultation with the county education Board provided that no child shall be refused to attend school
because of failure to pay such charges;
(c) No person shall collect levies without issuing an official receipt.

30. Compulsory primary and secondary education

(1) Every parent whose child is—
(a) Kenyan; or
(b) Resides in Kenya shall ensure that the child attends regularly as a pupil at a school or such other
institution as may be authorized and prescribed by the Cabinet Secretary for purposes of physical, mental,
intellectual or social development of the child.
(2) A parent who fails to take his or her child to school as required under subsection (1) commits an
offence.
(3) A person who contravenes this section shall be liable on conviction to a fine not exceeding one
hundred thousand shillings or to imprisonment for a term not exceeding one year, or both.
(4) Subsection (2) shall not apply to a parent or guardian who presents within a reasonable time a reason
to the satisfaction of the County Director of Education for the absence of his or her child at a school or
institutions of basic education.

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31. Duty of parents and guardian
(1) It shall be the responsibility of every parent or guardian to present for admission or cause to be
admitted his or her child, as the case may be, to a basic education institution.
(2) Where a parent or guardian defaults in the discharge of his or her responsibility under subsection (1),
such a parent or guardian shall be deemed to have committed an offence and is liable to fine not
exceeding one hundred thousand or to a period not exceeding two years or to both.
(3) A parent or guardian shall have the right to participate in the character development of his or her
child.

32. No payment of fee for admission

No person shall while admitting a child to a public school or a basic education institution collect any
admission fee.
33. Proof of age for admission
(1) For the purpose of admission to a basic education institution, the age of a child shall be determined on
the basis of the birth certificate issued in accordance with the provisions of the Births, Deaths Registration
Act (Cap. 149) or at the attainment of the school going age of four years on the basis of such other
document, as may be prescribed under regulations.
(2) No child shall be denied admission in a school or basic education institution for lack of proof of age.
34. No denial of admission
(1) A child shall be admitted in a school at the commencement of the academic year or within such
extended period as may be prescribed.
(2) A school or person responsible for admission shall not discriminate against any child seeking
admission on any ground, including ethnicity, gender, sex, religion, race, colour or social origin, age,
disability, language or culture.
(3) The provisions of subsection (2) shall not apply in matters relating to gender in cases where a school
is registered for a particular gender.
(4) No public school shall administer any test related to admission of a child to a public school or cause a
person to administer such test unless such a test is for purposes of placing the child at an appropriate level
of education.
(5) No child shall be denied admission to a public school.
(6) A parent of a child who has been denied admission to a public school may notify the County
Education Board of the decision.
(7) The County Education Board shall review the decision of a school that denies a child admission.
(8) The Cabinet Secretary may by regulation prescribe criteria for the admission to a public school.
35. Incentives and prohibition of holding back and expulsion
(1) Pupils shall be given appropriate incentives to learn and complete basic education.
(2) No pupil admitted in a school, subject to subsection (3) shall be held back in any class or expelled
from school.
(3) Subject to subsection (1) the Cabinet Secretary may make regulations to prescribe expulsion or the
discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only
after such child and parent or guardian have been afforded an opportunity of being heard: Provided that
such a pupil shall be admitted to an institution that focuses on correction in the context of education.

36. Prohibition against physical punishment and mental harassment to the child
(1) No pupil shall be subjected to torture and cruel, inhuman or degrading treatment or punishment, in any
manner, whether physical or psychological.
(2) A person who contravenes the provisions of subsection (1) commits an offence and shall be liable on
conviction to a fine not exceeding one hundred thousand shillings or to imprisonment not exceeding six
months or both.

37. Holiday tuition

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(1) No pupil shall be subjected to holiday tuition.
(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not
exceeding one hundred thousand shillings or to imprisonment for a period not exceeding one year or to
both.

38. Prohibition against employment of a child of compulsory school age

(1) No person shall employ a child of compulsory school age in any labour or occupation that prevents
such child from attending school.
(2) Any person who employs or prevents a child who is subject to compulsory attendance from attending
school is guilty of an offence and is liable to fine not exceeding five million or to a period not exceeding
five years or to both.

39. Responsibility of the Government

It shall be the duty of the Cabinet Secretary to—
(a) Provide free and compulsory basic education to every child;
(b) Ensure compulsory admission and attendance of children of compulsory school age at school or an
institution offering basic education;
(c) Ensure that children belonging to marginalized, vulnerable or disadvantaged groups are not
discriminated against and prevented from pursuing and completing basic education;
(d) Provide human resource including adequate teaching and nonteaching staff according to the
prescribed staffing norms;
(e) Provide infrastructure including schools, learning and teaching equipment and appropriate financial
resources;
(f) Ensure quality basic education conforming to the set standards and norms;
(g) Provide special education and training facilities for talented and gifted pupils and pupils with
disabilities;
(h) Ensure compulsory admission, attendance and completion of basic education by every pupil;
(i) monitor functioning of schools;
(j) Advise the national government on financing of infrastructure development for basic education;
(k) Provide free, sufficient and quality sanitary towels to every girl child registered and enrolled in a
public basic education institution who has reached puberty and provide a safe and environmentally sound
mechanism for disposal of the sanitary towels.

40. Duty of a principal or head teacher

(1) Where a pupil fails to attend school, the Head Teacher shall cause investigation of the circumstances
of the child’s absence from school.
(2) Where the Head teacher finds there are no reasonable grounds for the child’s failure to attend school,
the head teacher shall—
(a) Issue a written notice to the parent of the child requiring that parent to comply with the provisions of
this Act.
(b) Submit a report on the child to the County Education Board.
(d) Submit a report on the child to the County Education Board.
(4) Any parent who without a reasonable cause and after a written notice from the head teacher, fails to
comply with section 38 of this Act, commits an offence and is liable on conviction to a fine not exceeding
five hundred thousand shillings or to imprisonment for a period not exceeding two years or to both.
CHUKA UNIVERSITY
FACULTY OF EDUCATION AND RESOURCE DEVELOPMENT
DEPARTMENT OF EDUCATIONAL MANAGEMENT

Legal framework in education in Kenya

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Task:
Discuss the role of the teachers’ service commission in the provision of basic education in Kenya (20
mks)
THE TEACHER SERVICE COMMISSION (TSC)

 Although the Teachers Service Commission was established in 1967, its history dates back to the
1950s when teachers led by retired President Daniel T Moi vigorously fought for the formation of one
teacher body.
 Following the formation of the first teachers union in Kenya – the Kenya National Union of Teachers
(KNUT) in 1957 there was sustained agitation for the creation of an umbrella body to manage the
affairs of all teachers.
 At the time, teachers were employed by either; missionaries, local authorities or the Central
Government which led to a great disparity in remuneration and other terms and conditions of service.
 In 1964, The Kenya Education Commission Report (The Ominde Report) strongly supported the need
for a competent, respected and contented teaching force.
 As a result of these factors, the Teachers Service Commission was formed in July 1967 through an
Act of Parliament to give teachers one employer and uniform terms and conditions of service. It was
charged with the mandate of registering, employing, promoting, disciplining and paying teachers.
 Currently the TSC is established under article 237 (1) of the constitution of Kenya (2010) as a
constitutional commission.

TSC Act (2012): AN ACT of Parliament to make further provision for the Teachers Service Commission
established under Article 237 of the Constitution, its composition; functions and powers; the
qualifications and procedure for appointment of members; and for connected purposes

COMPOSITION AND ADMINISTRATION

 The Commission shall consist of a chairperson and eight other members appointed in accordance with
the Constitution and the provisions of section 8.
 The chairperson and members of the Commission shall serve on a full - time basis for a non-
renewable term of six years.
 The TSC has a large secretariat in Nairobi. The secretariat is headed by the commission secretary
assisted by her deputy and several departmental heads.

Functions of the TSC

Under Article 237(2) of the Constitution, the Commission is mandated to perform the following
functions:
 Register trained teachers
 Recruit and employ registered teachers ;
 Assign teachers employed by the commission for service in any public school or institution;
 Promote and transfer teachers;
 Exercise disciplinary control over teachers;
 Terminate the employment of teachers;
 Review the standards of education and training of persons entering the teaching service;
 Review the demand for and supply of teachers;
 Advise the national government on matters relating to the teaching profession.

TSC STRUCTURE

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Kenya Institute of Curriculum Development (KICD)

Task:
Discuss the legal mandates of the national educational institutions.

 The Kenya Institute of Curriculum Development (KICD) was established by the Government of
Kenya on the 14th of January 2013 under an Act of Parliament-Act No.4 of 2013.
 KICD is the Successor of the Kenya Institute of Education (KIE) which was established in 1968 by
Education Act.
 But the origin of the KIE dates as far back as 1957 .

MANAGEMENT
 The management body is the governing council, chaired by a nominee of the cabinet secretary for
education.
 The secretary to this council is the Director KICD.
 Members of the council are in office for at least 3 years renewable for another term of 3 years.
 This council is the main policy making body of the institution and it therefore reviews and guides all
the activities. It is the final decision making body.
 The day today running of the institute is under the director assisted by four deputy directors.

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Professional Division
 This has five main divisions headed by program coordinators
a) National centre for early childhood education (NACECE)
b) Primary Education
c) Secondary Education
d) Technical and business education Division
e) Education media services

 There is also the Administrative division headed by the chief administrative officer.
 Its main functions relates to :
 Finance
 Personnel
 Catering
 Security
 Printing and Other general administrative responsibilities.

NB: there are course panels and subject panels for each of the professional divisions.

Kenya Institute of Curriculum Development is mandated to perform the following functions:

1. Advise the Government on matters pertaining to curriculum development

2. Evaluate, vet and approve, for application in Kenya, any local and foreign curricula and
curriculum support materials in relation to the levels of education and training" referred to in
bullet (4)
3. Implement the policies relating to curriculum development in basic and tertiary education and
training;
4. Develop, review and approve programmes, curricula and curriculum support materials that meet
international standards for— (i) early childhood care, development and education; (ii) pre-
primary education; (iii) primary education; (iv) secondary education; (v) adult, continuing and
non-formal education; (vi) teacher education and training; (vii) special needs education; and (viii)
technical and vocational education and training.
5. Initiate and conduct research to inform curriculum policies, review and development.
6. Collect document and catalogue information on curricula, curriculum support materials and
innovations to create a data bank and disseminate the information to educational institutions,
learners and other relevant organisations
7. Print, publish and disseminate information relating to curricula for basic and tertiary education
and training
8. Collaborate with other individuals and institutions in organizing and conducting professional
development programmes for teachers, teacher trainers, quality assurance and standards officers
and other officers involved in education and training on curriculum programmes and materials
9. Develop disseminate and transmit programmes and curriculum support materials through mass
media, electronic learning, distance learning and any other mode of delivering education and
training programmes and materials
10. Promote equity and access to quality curricula and curriculum support materials
11. Promote appropriate utilisation of technology to enhance innovations and achievement of a
knowledge based economy
12. Offer consultancy services in basic and tertiary education and training
13. Incorporate national values, talent development and leadership values in curriculum development
14. Receive, consider, develop and review curriculum proposals
15. Perform such other function as may be assigned to it under the KICD Act No.4 of 2013 or any
other written law.

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Further Developments
Over the years, the role of the Institute has expanded to respond to emerging needs including:
 Development and strengthening District Centres for Early Childhood (DICECEs).
 Development (DICECES) through NACECE.
 Projections to develop and establish a modern NACECE Resource Centre to respond to the
increasing National and International training needs.
 Development and implementation of Non formal Education curriculum.
 Dissemination of Education Programmes through a third channel.
 Upgrading of skills for personnel in the education and other sectors of our economy.
 Printing and publishing of educational and other materials.
 Offering consultancy services in Education and Training.
 Development and implementation of specialized professional training programmes.
 Networking of Information Systems.

KENYA NATIONAL EXAMINATIONS COUNCIL (KNEC)

 The Kenya National Examinations Council (also referred to as KNEC or the Council) was
established in 1980 under the Kenya National Examinations Council Act Cap 225A of the Laws of
Kenya. This Act (Cap 225A of 1980) was repealed in 2012 and replaced with KNEC Act No. 29 of
2012.
 KNEC was established to take over the functions previously undertaken by the defunct East African
Examinations Council and the Ministry of Education to conduct school, post school and other
examinations.
 The establishment of the Council followed the breakup of the East African Community and the need
for an institution to take over control of such examinations to ensure their validity and reliability;
and to ensure conformity to Kenya’s goals and changes in Government policy relating to the
curriculum and examinations.

The KNEC Mandate

According to section 10 of the Kenya National Examinations Council Act No. 29 of 2012; KNEC is
mandated to:

 Set and maintain examination standards;

 Conduct public academic, technical and other national examinations within Kenya at basic and
tertiary levels;

 Award certificates or diplomas to candidates in such examinations;

 Confirm authenticity of certificates or diplomas issued by the Council upon request by the
government, public institutions, learning institutions, employers and other interested parties;
 Issue replacement certificates or diplomas to candidates in such examinations upon acceptable proof
of loss or damage of the original;
 Undertake research on educational assessment;
 Advice any public institution on the development and use of any system of assessment when
requested to do so, and in accordance with such terms and conditions as shall be mutually agreed
between the Council and the public institution;
 Promote the international recognition of qualifications conferred by the Council;
 Advice the Government on any policy decision that is relevant to, or has implications on, the
functions of the Council or the administration of examinations in Kenya;
 Do anything incidental or conducive to the performance of any of the preceding functions.

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KNEC Core Functions

The core functions of the Council are to:

 develop national examination tests;

 register candidates for the KNEC examinations;
 conduct examinations and process the results;
 award certificates and diplomas to successful candidates;
 issue replacement certificates and diplomas;
 conduct educational assessment research;
 carry out equation of certificates and diplomas issued by other credible examining boards;
 conduct examinations on behalf of foreign examination boards.

OTHER NATIONAL EDUCATION INSTITUTIONS

Higher Education Loans Board (HELB)
 Established by The Higher Education Loans Board Act, of 1995.
 It came into existence on the 21st day of July 1995 through the Kenya gazette supplement (CAP
213A).
The functions of the board are:
a) To formulate sound policies for regulating the management of the fund
b) To solicit for funds and other assistance to promote the functions of the board
c) To set the criteria and conditions governing the granting of loans including the rate of interest and
recovery of loans
d) To receive any gifts ,donations , grants or endowments made to the board and to make legitimate
disbursement thereafter
e) To establish and maintain links with other persons, bodies or organizations within or outside
Kenya as the board may consider appropriate for the furtherance of the purpose of which the
board is established.
f) To enter into contract with financial institutions for the purpose of loan disbursement and
recovery.

Commission for University Education (CUE)

 Established by the act of parliament, Universities Act, No, 42 of 2012 as the successor to the
commission for higher education which was established under the universities Act Cap 210B of 1985.
 CUE is legally mandated to promote the objectives of university education, by regulating and
accrediting universities and programs.
The functions of CUE include among others:
 To promote objectives of university education
 Advise the cabinet secretary on policy relating to university education
 Promote, set standards and assure relevance in the quality of university education
 Monitor and evaluate the state of university education sytems in relation to the national development
goals
 Licence any student recruitment agencies operating in Kenya and any activities by foreign institutions
 Develop policy for criteria and requirements for admission to universities.
 Accredit universities in Kenya
 Regulate university education in Kenya
 Accredit and inspect university programs in Kenya
 Promote quality research and innovation

Task

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1. On what legal basis were the following institutions formed?
a) Kenya Institute of Management (KEMI)
b) Kenya Institutte os Special Education (KISE)
c) Centre for mathematics , Science , Technology in Africa (CEMASTEA)
d) Jomo Kenyatta Foundation (JKF)
e) Kenya Literature Bureau (KLB)

2. Discuss the significance of the education stakeholders in promoting education access, equity and
quality.Hint:
Legal mandate of education stakeholders (KESSHA, KEPSHA, KNUT and KUPPET)
KENYA NATIONAL UNION OF TEACHERS
 The teachers of this country were subjected to different terms and conditions of service by the many
employers they belonged to.
 The employers who included missionaries and local councils never allowed them to meet and
exchange views.
 This kept them totally ignorant as regards to their rights and therefore were seriously exploited by
their masters.
 Despite the fact that they were kept in the dark, they slowly learned the need to form organizations
still based on religious sect organized to the highest at provincial level.
 However by 1934 Messrs. James Gichuru and Eluid Mathu formed a teacher's organization known as
Kenya African Teachers Union (KATU).
 This Union eventually fizzled away under the pressure of powers of the time.
 This was because it was very difficult to organize an effective national organization of workers at
that time because of communication problems.
 It was not until the early fifties, when Makerere and Kagumo Colleges produced a higher caliber of
teachers, which teachers' organizations began coming up because these teachers communicated after
training and hence learnt of the diversity of their terms and conditions of service.
 They began by forming sectional or regional Teachers Organizations based on denominations
orProvinces.E.g:
(i) Nyanza African Teachers Union (NATU);
(ii) Catholic African Teachers Association (CATA) both in Nyanza Province;
(iii) Rift Valley African Teachers Association (RATA);
(iv) Coast African Teachers Union (CATU);
(v) Central Province African Teachers Union called Kikuyu Teachers Union (KTU)

 Still, there was no way teachers could correspond with their counterparts in other Provinces.
 In 1955, one of the teacher's leaders from Rift Valley Hon. Daniel T. Moi now the retired President of
the Republic of Kenya was elected to the Legislative Council (Leg.co.) now called National
Assembly.
 He later successfully moved a freelance motion in the house in 1957 that the Government should
help the teachers of this country to form one national body.
 The Government accepted the motion.
 This made the Minister for Education Mr. W.F. Coutts invite all leaders to a meeting in December
1957 at Pumwani D.E.B. School.
 At this meeting, one teacher’s organization called Kenya National Union of Teachers (KNUT) was
born.
 An Interim Central Executive Committee was set up with Mr. Ignatius Mkok as interim President and
Mr. Stephen J. Kioni as interim Secretary General.
 On 10th December 1958, the Central Executive Committee (C.E.C) convened the first Annual
Conference at the Pumwani D.E.B. School.

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 At this Conference, the KNUT Conference was ratified. The 1st National elections were held and Mr.
Samwel Ayany was elected the 1st President and Mr. Stephen J. Kioni the 1st Secretary General.
 On 14th May 1959 KNUT was officially registered as A Trade Union.

Policy Demands:
Soon after setting up offices, the Central Executive Committee, which later became the National
Executive Council, met and issued the first policy demands, which included:-
(a) A single Employer for all teachers.
(b) Unified Terms and Conditions of Service.
(c) Free Pension for all teachers.
(d) Provision for negotiating machinery.
(e) Pay rise for all teachers in all grades.
(f) Responsibility allowance for all posts of responsibility.
(g) Abolition of the Colonial Code of Discipline.
The government responded by appointing the Lawrence Sagini Commission to look into the demands of
KNUT.

Core Functions

 To bring together and unite teachers of all grades and qualifications in Kenya and providing a forum
for co-operation.
 To fight for improved terms and conditions of service for teachers and protecting teachers interests.
 Promoting programmes aimed at improving teachers' welfare or socio-economic status.
 To offer assistance to individual members in professional as well as legal matters.
 To settle disputes between members of the union or between its members and their employers
through collective and constitutional means.
 To co-operate with other societies, bodies, unions or organisations within or outside Kenya with
similar objectives.
 To promote matters leading to the improvement of education and the establishment of a common
system of education.
 To secure effective representation of the teaching profession on the government, public and private
bodies or organisations where such representation may be necessary.

Legal Procedures for the Establishment of Educational Institutions

Basic Education Act Part X – Licensing, Registration and Accreditation Procedures in Basic
Education
A person shall not offer basic education in Kenya unless the person is accredited and registered as
provided for under Basic Education Act.
A person or organization intending to establish an institution offering basic education shall make an
application in the prescribed manner to the relevant County Education Board.
Upon receipt of an application, the County Education Board shall—
(a) Record the application; and
(b) If satisfied that the establishment of the institution conforms to the prescribed requirements, notify the
applicant within thirty days.
Where an application is approved the County Education Board shall inform the office representing the
Education, Standards and Quality Assurance Council at the county in the case of a pre-primary, primary
or secondary school.
Application to County Education Board for establishment of a basic education institution
An application for the establishment of a basic education institution shall contain—
(a) Name, physical, postal and electronic addresses of the proposed institution;

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(b) In the case of a mobile school, the name of a general area and the name of the family in which the
school is situated;
(c) The governance and management structures of the institution, membership of the proposed institution,
academic qualifications and experience of the promoters and managers of the intended institution;
(d) The aims and objects for which the institution is to be established and the programmes of instructions
and the courses of study that will be offered;
(e) The number, qualifications and competence of the teachers and nonteaching staff;
(f) Available suitable infrastructure, and appropriate equipment;
(g) A statement of financial ability.

Rejection of application by the County Education Board

(1) Where the County Education Board is not satisfied that the institution has complied with the
requirements set out under this Act the Board may reject the application and notify the applicant of the
decision within thirty days.
(2) Any person aggrieved by the decision of the County Education Board may appeal to the Education
Appeals Tribunal within a period of thirty days of the decision.

Licensing of an institution of basic education and training

(1) The Education, Standards and Quality Assurance Council shall assess the application to ensure due
compliance with the standards formulated and developed under the Basic Education Act and submit its
report to the County Education Board.
(2) Without prejudice to the foregoing, the County Education Board shall license and register a basic
education and training institution only if—
(a) the institution has sufficient number of registered teachers and non-teaching staff under the staffing
norms prescribed by the Education Standards and Quality Assurance office for the county have been
complied with;
(b) The institution has appropriate teaching and learning facilities;
(c) The available premises and accommodation are suitable with regard to the number, age, gender, and
security of the learners who are to attend the institution;
(d) The premises and accommodation conform to the prescribed requirements of the occupational health
and safety regulations;
(e) The necessary and suitable infrastructure as well appropriate and adequate equipment to carry out the
programmes applied for as may be prescribed by regulations.

CHUKA UNIVERSITY
FACULTY OF EDUCATION AND RESOURCE DEVELOPMENT
EAPE 422: LAW IN EDUCATION
Labour laws are meant to guide trade unions, employees and employers to line in harmony for the sake of
industrial relations.
 Basic labour laws and regulations
 Some of the important legal instruments that regulate the conduct and practice of industrial relations
in Kenya are:

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 Employment act
 Trade unions Act
 Pensions Act
 Trade DisputesAct
 Workmens compensation Act
 The regulation of wages and conditions of employment
 The ILO conventions on
 Freedom of association
 Right to organise
 Public employees
 National social and security fund act
 The arbitration Act

Trade Disputes
 According to the trade disputes act of Kenya Chapter 234 of the laws of Kenya.
 A trade dispute means a dispute or difference between employers and employees or between
employers and trade unions or between trade unions and trade unions or between employers and
employees.
Reporting a Trade Dispute
i. Any trade dispute may be reported to the minister for labour by or on behalf of any part to the
dispute
ii. Every report of a trade dispute shall be made in writing and shall sufficiently specify:
a. The employers and employees who are party to the dispute
b. The party or parties by whom or on whose behalf the report is made
c. The nature of the authorization given by the part or partis desiring the dispute to be reported
on their behalf
d. Each and every matter over which the dispute has arisen or is apprehended.
iii. Every person reporting a trade dispute shall without delay furnish by hand or by registered post a
copy of the report thereof to each party to the dispute.
iv. Any trade dispute involving the dismissal of an employee or the termination of any contract of
employment shall be reported to the cabinet secretary for labour within 28days of the dismissal or
termination of employment
The Industrial Court
 The industrial court was established by the president for the purpode of settling trade dispute
Consists of the following members:
i. Not less than two judges appointed by the president
ii. Eight other members appointed by the cabinet secretary for labour in consultation with the central
organisation for trade unions (COTU) and federation of Kenya Employers (FKE)
 Appointment is for the period of not less than Three years
 All judges of the industrial court are appointed for a period of five years and are eligible for
reappointment
 At the time of appointment, the judges of the industrial court must be advocates of the high court of
Kenya for a period of not less than seven years.
 Once the judges of the industrial court receives an application in writing jointly by the parties to a
trade dispute or upon a dispute being referred to it by the cabinet secretary for labour, it will
recognize the dispute and proceed to inquire into the dispute and make an award.
 The industrial court shall then notify both the parties to the dispute and the cabinet secretary of the
award so made.
i. Awards of the industrial Court
ii. The award of the industrial court shall be dealt with as follows:

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iii. An award shall be published in the Kenya gazette and shall take effect from the date of its
publication
iv. An award must not be inconsistent with any written law.
v. An award shall with effect from its gazettement be an implied term of every contract of
employment between the employers and employee unless varied by a subsequent award
vi. An award of the industrial court shall be final

Collective agreements and the industrial court

 The duties of the industrial court with respect to the collective agreements are as follows:
i. The industrial court shall maintain a register of collective agreements that have been accepted by
the court for registration.
ii. A collective agreement shall not take effect unless it has been accepted for registration by the
court
iii. The cabinet secretary for labour shall furnish the court with a copy of every collective agreement
that has been lodged with him/her.

Strikes and Lock Outs

A strike (action by employee) or lock out (action by employers is considered lawful if :
i. A report of a trade dispute has been made in writing to the cabinet secretary for labour and twenty
one (21) days have elapsed since the trade dispute was reported.
ii. The cabinet secretary for labour has not refused to accept the report of the trade dispute, due to a
collective agreement still in force with a period of 21 days (21).
iii. If a strike or a lock out does not meet the above procedures it’s unlawful and is called a wild cat.
iv. The cabinet secretary shall declare an actual or threatened strike or illegal if:
v. The matter leading to the actual or threatened strike has been settled already by collective
agreement still in force.
vi. He/ she has referred the matter to an appropriate negotiating machinery.
vii. There is already a machinery for negotiating or arbitration for the voluntary settlement of the
dispute.
viii.The threatened or actual strike has serious implication on other industries and the larger society.

Conflict resolution in the teaching profession

 Like all the trade unions, there exist an agreement between the TSC and KNUT of 1968.
 The signed agreement recognizes KNUT as the union representing both professional and trade unions
interests of teachers in Kenya.
 The agreement details the negotiation procedures to be followed in dealing with claims and
grievances between TSC and KNUT.

Negotiation and remuneration for Teachers

 The TSC Act details the procedure to be followed on remuneration of teachers
 The teachers service remuneration committee (TSRC) established in accordance with the TSC Act to
review the remuneration of all teachers in the public service consists of the chairman appointed by the
cabinet secretary for education, three persons nominated by the cabinet secretary , two persons
nominated by the TSC and five persons nominated by Teachers Unions
 The committee on their own volition or whenever asked by the cabinet secretary reviews the
remuneration of teachers
 The recommendations of the committee are submitted to the cabinet secretary who after consulting
with the committee publishes the recommendations in the gazette detailing the new remuneration of
teachers.

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 In situation where the cabinet secretary for education is not in agreement with the recommendation of
the committee, cabinet secretary for labour appoints a board of inquiry under the trade disputes Act to
inquire band report its findings on the dispute.

Trade unionism in Kenya

Objectives of trade unions
i. Secured improved terms and conditions of employment and maximum job security for the
enjoyment of their members.
ii. Ascertain an improved status of the workers in the work environment
iii. Ensure that employees have bargaining power against their employer through collective action as
opposed to unilateral action.
iv. Ensure democratic control over decisions which is enhanced through power sharing between the
management and the employees.

Types of trade unions

There are six types of trade unions:
i. Craft union
 The oldest union
 Membership in this type of union is by apprenticeship
 It is horizontal type of union because it cuts across many companies and industries according to
craft.

ii. Industrial union

 Recruitment and representation are confined to one industry regardless of occupation. It is a
vertical union in the sense that it includes employees from many industry. Lack of homogeneity,
registration brings about across the board increases thus bringing conflict between semi-skilled,
unskilled and professional workers.

iii. Sectional unions

 Caters for sectors of employment only

iv. Manual union

 Recruits only manual workers.

v. General union
 Draws the widest membership. It recruits memebers regardless of their level of skill, occupation
or industry.

vi. White collar union

 Is a new but growing type of union which recruits employees who are removed by one or more
degrees from direct production or direct service such as clerks, supervisors, technicians, scientists
and managers.

Conflict
 Conflict is the process in which individuals or groups feel that other individuals or groups have
frustrated or are about to frustrate their plans, goals , beliefs or actions

Types of Conflict
i. Goal conflict: occurs when a person or a group desires a different outcome.
ii. Cognitive conflict: when one person or group holds ideas or opinions that are inconsistent with those
of others.

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iii. Affective conflict: occurs when one group’s emotions, feelings or attitude are incompatible with
those of others.
iv. Behavioural conflict: when one group or person does something which is unacceptable to others.

Causes of conflict in Organizations

i. Task interdependence
ii. Status inconsistence: when the top management is given an inequitably higher privilege than the
managerial staff, there is bound to be conflict.
iii. Jurisdiction ambiguity
iv. When it is unclear where responsibilities for something exactly lies, then two or more employees will
experience conflict.
v. Communication problems
vi. Dependence on common resource pool.

Collective bargaining
 Collective bargaining is the process in which representatives of two groups, usually the
management and labour union meet and negotiate an agreement which specifies the nature of
future relationship between them.
 The aim of collective bargain is to establish through negotiation and discussion, the rules,
decisions and the methods regulating the terms and conditions of employment.
 Skills in communication, decision making , problem solving ,power and politics utilization are
important for negotiation to be effective

Forms of collective bargaining

i. The traditional, conjunctive or distributive bargaining which are concerned with the distribution
of benefits such as wages, working conditions , promotion ,layoffs and management rights. This
strategy applies the “win-lose” approach whereby each party looks at goals of the other as
irreconcilable.
ii. The integrative or cooperative bargaining which recognizes that each party is dependent on the
other and therefore power sharing is important for the benefit of both the management and the
labour union. In this approach, the “win-win” strategy is applied so that both parties achieve their
objective.
Process of collective bargaining
i. Stating their bargaining position to their opponents
ii. The bargainers probe the weaknesses in their opponents bargaining position and try to
convince their opponents to bring their position closer to what the bargainers want.
iii. Bargainers adjust their original position in light of the opponents reaction so that a favorable
position can be reached with the opponent.

The process of collective bargaining can be broken down into five main stages, these are:
i. The pre-negotiation phase
ii. The selection of the negotiators
iii. The strategy of bargaining
iv. The tactics of bargaining
v. The contract

Bargaining impasses
i. Strikes
There are four types
 Unfair labour practices strike: as a result of prolonged unfair labour practices of the employer.
 Economic strikes: as a result of the union’s demands for bargaining recognition or organization.

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 Unprotected strikes: includes sit-downs, slowdowns, wild cats and parial walk outs.
 Sympathy strikes: when employees of one bargaining unit refuse to cross the picket line of a
different bargaining unit.

ii. Picketing
 This is the patrolling of strikers in front of organizational premises.
 Picketing is peaceful if the management accepts the shutdown and makes no attempt to reopen
the institution, otherwise it turns violent.

iii. Lockouts
 When a collective bargaining agreement has expired and an employer’s purpose is to put
economic pressure on the unions to settle a contract on terms favorable to the employer. It is legal
for the employer to lock out its employees.

iv. Third part resolutions

 A bargaining impasse occurs when the parties are unable to move further towards settlement.
 In this case, third party involvement may be sought in the form of mediation, fact finding or
interest arbitration.

Development of trade unionism in the teaching profession in Kenya

 The development of unionism in the teaching profession in Kenya is synonymous with the
development of the Kenya National Union Of teachers.
 Before the formation of KNUT teachers were employed by diverse employers
 Each employer had its own terms and conditions of service for its teachers
 Teachers were taught to accept rendering services without much pay because they would be
adequately remunerated in heaven.
 In early 1950s Makerere University College and Kagumo College began to provide a high
callibre of teachers thus the urge for teachers to come together started to flow. Teachers had met
with others from other parts of the country and the rest of East Africa and learnt of the diversity
of their terms and conditions of services.
 The teachers guilds and teachers associations based on religious denominations were formed by
the missionaries who knew that the African teachers had become aware of their rights.
 These guilds and associations were formed to debar the African teachers from forming their own
unions which could work against their colonial employers.
 Examples of the teachers guilds was the catholic African teachers association (CATA)
 However teachers under the leadership of graduate teachers from Makerere and Kagumo began to
disregard the religious barriers and embarked on regional organizations. However the farthest that
these regional organizations could go was the provincial level.
 E.g:
(i) Nyanza African Teachers Union (NATU);
(ii) Catholic African Teachers Association (CATA) both in Nyanza Province;
(iii) Rift Valley African Teachers Association (RATA);
(iv) Coast African Teachers Union (CATU);
(v) Central Province African Teachers Union called Kikuyu Teachers Union (KTU)

 Still, there was no way teachers could correspond with their counterparts in other Provinces.
 In 1955, one of the teacher's leaders from Rift Valley Hon. Daniel T. Moi now the retired President of
the Republic of Kenya was elected to the Legislative Council (Leg.co.) now called National
Assembly.
 He later successfully moved a freelance motion in the house in 1957 that the Government should
help the teachers of this country to form one national body.

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 The Government accepted the motion.
 This made the Minister for Education Mr. W.F. Coutts invite all leaders to a meeting in December
1957 at Pumwani D.E.B. School.
 At this meeting, one teacher’s organization called Kenya National Union of Teachers (KNUT) was
born.
 An Interim Central Executive Committee was set up with Mr. Ignatius Mkok as interim President and
Mr. Stephen J. Kioni as interim Secretary General.
 On 10th December 1958, the Central Executive Committee (C.E.C) convened the first Annual
Conference at the Pumwani D.E.B. School.
 At this Conference, the KNUT Conference was ratified. The 1st National elections were held and Mr.
Samwel Ayany was elected the 1st President and Mr. Stephen J. Kioni the 1st Secretary General.
 On 14th May 1959 KNUT was officially registered as A Trade Union.

Policy Demands:
Soon after setting up offices, the Central Executive Committee, which later became the National
Executive Council, met and issued the first policy demands, which included:-
(a) A single Employer for all teachers.
(b) Unified Terms and Conditions of Service.
(c) Free Pension for all teachers.
(d) Provision for negotiating machinery.
(e) Pay rise for all teachers in all grades.
(f) Responsibility allowance for all posts of responsibility.
(g) Abolition of the Colonial Code of Discipline.
The government responded by appointing the Lawrence Sagini Commission to look into the demands of
KNUT.

Core Functions
 To bring together and unite teachers of all grades and qualifications in Kenya and providing a forum
for co-operation.
 To fight for improved terms and conditions of service for teachers and protecting teachers interests.
 Promoting programmes aimed at improving teachers' welfare or socio-economic status.
 To offer assistance to individual members in professional as well as legal matters.
 To settle disputes between members of the union or between its members and their employers
through collective and constitutional means.
 To co-operate with other societies, bodies, unions or organisations within or outside Kenya with
similar objectives.
 To promote matters leading to the improvement of education and the establishment of a common
system of education.
 To secure effective representation of the teaching profession on the government, public and private
bodies or organisations where such representation may be necessary.

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