Brief Facts
1. The petition dated 11 th September 2021 is supported by the petitioner’s affidavit in support of even date and witness statement dated 4 th February 2022.
2. The petition challenges corporal punishment that was administered to the minor (a student) that allegedly resulted in death.
3. The petitioner thus seeks the following reliefs: -
a) A declaration that the acts of subjecting the petitioner to corporal punishment amounted to violation of his right to life under Article 26, human dignity under Article 28, inhuman and degrading treatment under Article 29, 53(1)(d) and right to health and education under Article 43(1)(a) and (f) of the Constitution of Kenya.
b) A declaration that the respondents failed in their duty to protect the petitioner as required under Article 27 of the Constitution.
c) An order that the 2 nd , 3 rd and 4 th respondents are vicariously liable for the violations of the petitioner’s rights by the 1 st respondent.
d) An order for compensation.
e) An order that this petition is a public interest petition.
f) Costs of the petition.
g) Any other order that the court may deem fit to grant.
4. In opposition to the petition, the 1 st respondent filed a Replying Affidavit dated 12 th November 2021. The 3 rd respondent filed a replying affidavit dated 8 th November 2021 and witness statement dated 13 th October 2022.
5. The matter proceeded viva voce.
The Petitioner’s Case
6. PW1, Irene Ruguru Nyaga, adopted her witness statement dated 4 th February 2022. She testified that she is the minor’s aunt and legal guardian. She told this Court that the minor was born on 21 st March 2001 to one Mary Gichuku Nderi who passed away leaving her to take care of the minor. She further testified that at the time of the minor’s demise, he was 17 years old and a form 3 student at Kangaru Secondary School. According to PW 1, the minor was an orphan and his exemplary performance in school had enabled him to be selected as a beneficiary of Equity Bank’s Wings to Fly scholarship programme.
7. The witness testified that the minor informed her that on 26 th February 2019 he together with one D.M and M.M.M went out of class to wash their faces and when they returned, they found their mathematics teacher, the 1 st respondent herein, had began his class. The teacher angered by their lateness, picked up a hockey stick and clobbered the three students who in self defense ran to their sitting positions. The minor herein being the smallest in size got pushed behind the other two students and therefore received most of the hockey stick beatings. K.N.F was in severe pain and visited the school nurse who prescribed painkillers however his pain did not subside and he still complained of severe pain the following day. This prompted the nurse and the teacher on duty to take him to Tenri Embu Children Hospital where the x-ray report indicated that he suffered a fracture on his left leg. The doctor advised to have K.N.F admitted at the hospital for observation but the school nurse and the teacher on duty refused and took him back to school.
8. The witness further testified that on 28 th February 2019, K.N.F was still experiencing pain and the school directed the 1 st respondent to take the minor to Embu Level 5 Hospital for further treatment. The hospital conducted more tests and further treatment which included prescription of walking crutches which the 1 st respondent paid for and they returned back to school.
9. A week later, his condition worsened and he was admitted in the school clinic which prompted the school to call her. PW1 states that she rushed to the school and was shocked on seeing her nephew whose skin had darkened, could neither talk nor eat and moved with great difficulty. Describing the first encounter when she saw the minor after being called to the school, PW 1 stated in chief as follows:
“My son came in crutches, appearing in pain and having a frowned face. His skin had darkened. That day he did not look happy and could not smile at me. One of his legs was plastered. He was breathing heavily and was folding his arms as if in serious pain…He told me that he had gone out for break with others and on returning, they found mathematics teacher in class. The teacher then picked a hockey stick and started beating them up, the three of them…The hands were also beaten as he tried to shield himself including shoulders…”
10. PW1 stated that K.N.F told her that the teacher had told him not to tell her the truth as to what happened but rather should say that he fell. Further despite the deterioration of the minor’s condition after the incident, PW 1 stated explained as follows:
“They took a whole week without informing me. They would take him to hospital and back. After finding he was getting worse, he was only staying in the dormitory and no one was taking care of him. They wanted me to see and leave the boy. The boy insisted I go home with him.”
11. PW1 states that she took K.N.F home but he could hardly sleep as he was in severe pain and his condition deteriorated into a vegetable state. She took him back to Embu District Hospital where it was recommended that he be admitted in the hospital’s intensive care unit. As she could not afford the expenses, she insisted that the 1 st respondent and the school board of management pay for the expenses and they eventually agreed to pay for the same after being taken round in circles. She further states that after further observation, the hospital resolved that they did not have the capacity to treat K.N.F who was in a vegetable state and thus recommended for his transfer to Nairobi. The 1 st respondent arranged for an ambulance which took him to Nairobi women’s hospital and he was admitted in the ICU on arrival. The witness avers that she returned back to Embu as she had no accommodation in Nairobi and she reported the matter to the police.
12. PW1 states that on 11 th March 2019, she received a call from the doctor who informed her that K.N.F had been placed on life support and his condition had deteriorated. After twenty minutes, she received another call with the unfortunate news that her nephew had passed away. She further states that the police recommended a post mortem autopsy which on being undertaken, an opinion was formed that the cause of death was respiratory failure due to pulmonary tuberculosis. Upon the said findings, the 1 st respondent and the school abandoned K.N.F at the hospital and the police could not make further investigations into the matter as the cause of death was ascertained to be different from the injuries sustained.
13. The witness testified that on 19 th March 2019, she lodged a complaint to the Kenya National Commission on Human Rights requesting them to obtain a medical report or doctor’s opinion on her nephew’s health conditions and on 29 th October 2020, Dr. Oduor Johansen, a pathologist, analysed the post mortem in detail and concluded that whereas the cause of death may have been as concluded by the pathologist, the chain of events leading to his death began following a trauma that he sustained after the beating he received from the 1 st respondent .
14. The said teacher was subjected to disciplinary hearing by the Teachers Service Commission and he was subsequently dismissed and removed from the register of teachers having inflicted corporal punishment contrary to Section 36(1) of the Basic Education Act.
15. On cross-examination by the 3 rd Respondent’s Advocate, Mr. Sitima, PW 1 upon being showed the post mortem report and asked to read confirmed that it indicated that cause of death was ‘respiratory failure due to pulmonary tuberculosis.’ PW1 further admitted that after the incident, the teacher who was implicated in the beating of her son, James Maina Mureithi (1 st respondent) was subjected to administrative hearing and dismissed. Asked thus why she had sued the 3 rd Respondent, Teachers Service Commission, she stated:
“I expected TSC to compensate for that child because is a life gone. It does not tell the teachers to administer corporal punishment.”
16. Cross-examined as to what expectation she had of the school, PW 1 answered thus:
“They should have called me earlier, not after a week. I could have taken him to hospital and taken care of him giving him good care and food.”
The Respondents’ Case.
17. DW1, Dr. Daniel Zuriel testified on 14/10/2024. that he is a pathologist for the last 15 years with specialty on forensic pathology and slan pathology. The witness testified that he conducted the post mortem autopsy on K.N.F on 15 th March 2019 and the post mortem report dated 15 th April 2019 (produced as D. exhibit 1 ).
18. On external examination, he was fairly nourished and externally, the body appeared ok, apart from cyanosis (blueness of the lips, nails and fingers) indicative of lack of oxygen. He had plaster of paris from the knee to the left leg to above ankle joint. He testified thus:
“… when we removed the plaster, we identified left knee was a bit swollen but no evidence of fractures.”
19. They then opened the body for internal examination. On both legs below the skin, they discovered contusion from the ankle joint under the skin coming up which was 20cm long and 5cm wide . DW 1 explained that contusion refers to a a little bleeding under the skin. On the head, there was bleeding in the covering of the brain 3x2 cm in the frontal aspect of the brain which he explained coincided with the point of external injury they had found in the skin. On the hands, DW 1 explained as follows:
“We found what looked like defensive wounds, that is back side of the hand. There was a left limb area and upper shoulder 1 cm’’
20. Further detailed examination was done on the chest cavity of which DW 1 summarised the findings as extensive pus in the chest cavity with tubercles covering the heart and lung services. Such disease inside the lung tissue. Pus in the right thigh. No collaborative evidence of trauma on calf muscle and no fracture of any bone of his body . He further found no clots in any of the blood vessels . DW 1 formed the opinion that the cause of death was respiratory failure due to severe chest infection in keeping pulmonary tuberculosis . He further testified that the post mortem findings are not in keeping with reported circumstances of death and the cause of death in the teenager was best described due to failure to respiratory failure due to tuberculosis in the lungs. Microscope changes supporting of that.
21. Cross-examined by Ms. Mwangi for the 3 rd and 4 th Respondent evidence of external trauma found, DW 1 explained thus:
“External trauma we found were not significant. The one’s on the knee were significant for us to ask, it was like someone tripping and falling on the knee. He had been given walking aids… there was defensive wounds. They were of blunt object, superficial, skin-deep upper part of the hand and lower limb. They were not visible on the eye but inside the skin. They were not significant.”
22. Cross-examined by Ms. Muhanda for the Petitioner, DW 1 was challenged to state whether there was any history of T.B in the diagnosis of the minor to which he replied:
“Only Nairobi Women where they did scan and said they suspected pneumonia or anaemia. A differential analysis of pulmonary embolism and PTB was also made. The hospital did not find TB, they did not look for it…”
23. Further told that T.B could be dormant in the body and can be activated by trauma, DW 1 answered:
“ The pathology is that we all have T.B in lungs but is dormant… it can be brought by low immunity, serious stress. T.B of K was not treated because it was not picked…”
24. Questioned further on the link between the beating the minor is said to have received on 28/2/19 and the possibility of triggering the onset of T.B that led to his death, DW 1 explained thus:
“ …You can’t measure stress that brings diseases. It is a prolonged thing. It could be a beginning. Medical treatment actually alleviates stress. T.B is a process. For you to get T.B that can kill you, it will eat you for a very long time. It is not pneumonia that will kill you now. Two weeks cannot develop T.B that will kill you in two weeks.”
25. On the absence of an earlier diagnosis, DW 1 stated:
“I teach T.B. He had fever, difficult breathing, if right thing had been made, it could have been detected.”
26. DW2, James Mwangi Mwai testified on 14/10/2024. In examination in chief, he informed Court that he was relying wholly on his replying affidavit and annexures thereof. He produced the annexures as D. exhibit 2 i-xiv . He testified that he was the Assistant Boarding Master and taught mathematics at Kangaru School.
27. On 10 th March 2019, he went to school and found Mr. Abuor the Deputy Principal, who briefed him and informed him that the student was reportedly in the ICU. On the same day, one Dennis Nyaga, a cousin to K.N.F went to school to complain on how the school was not giving his cousin the required attention. On 11 th March 2019, Mr. Ng’ang’a informed him of the student’s demise and he was shocked.
28. The witness testified that on 12 th March 2019 news outlets and social media hubs were teeming with the news of ‘student beaten to death’, which story emanated from K.N. F’s relatives including Dennis Nyaga’s facebook and radio and tv sessions which he had on Monday. The school board and the county TSC met and summoned him to question him over the same. The police were also present to conduct the investigations. He states that he responded verbally and in writing and clarified that he had nothing to do with the student’s death.
29. On 13 th March 2019, he went to the police station in the company of the school principal. After recording his statement, he was arrested and held in police custody for murder. He was however released on cash bail and instructed to report back to the station the following Monday.
30. On 14 th March 2019, he received an invitation letter to appear before the county TSC Disciplinary panel to answer to charges of corporal punishment. He deposed meanwhile, the post mortem was conducted on 15 th March 2019 and the findings revealed that the minor had succumbed to severe pulmonary tuberculosis. There was no evidence to sustain claims of beating, neither was there any fracture or tissue injury at the alleged site of canning.
31. DW2 stated that he reported back to the OCS on 21 st March 2019 where he was informed that the reports and statements had been forwarded to the office of the DCI and DPP for close scrutiny and investigation. Further on the same day, he stated that he was summoned at the County TSC office together with the principal, the boarding teacher, the other two students that he was accused of caning together with the deceased and four other students from the class to answer the charges of corporal punishment. The students were presented with two statements which they had previously written dated 11 th March 2019. When they read the statements, they stated that they had not witnessed what they had been told to write and they were told to write what they had witnessed. He was further asked to write a fresh statement concerning 26 th February and so were the students. Mr Munene Ephantus gave them Kshs. 1,000/- as they left ostensibly for their lunch.
32. DW2 testified that on 28 th March 2019 he received an interdiction letter and was instructed to respond to the commission within seven days which he posted his response on 4 th April 2019. On 13 th May 2019, the OCS instructed him that a public inquest was to be conducted as the investigations and statements recorded did not sustain the accusations as levelled.
33. On 13 th August 2019, DW 2 received an amended interdiction letter citing a different clause he had allegedly breached which was different from the initial one. He further testified that on 18 th September 2019 his case was heard and all the witnesses who had attended at the county level were summoned and the students quizzed over their statements. He received a letter on 8 th November 2019 informing him that the commission had decided to dismiss him on the grounds of corporal punishment and he had 90 days to appeal if he wished to do so. DW2 testified that he submitted his appeal and on 19 th February 2020 and after the hearing he was informed that he would receive a letter informing him of their decision within a month. He did not get a response until 10 th June 2021 after following up vide letters dated 19 th November 2020 and 22 nd May 2021.
34. The letter forwarded the decision of the commission which upheld the dismissal and stated that the decision was final and directed that he had to personally apply for the proceedings to the appeal. He noted that the director representative and the presenting officers did not sign the proceedings, there were no technical officers present and the panel did not consider the issues he raised in his appeal.
35. DW2 further testified that a panel of five officers of the respondent did an investigative report dated 12 th March 2019 where they recommended a government pathologist to immediately conduct a post mortem on the body of the deceased student to establish the cause of death. The post mortem report eventually excluded corporal punishment as the cause of death. The said committee heard the dispute and made its determination on 21 st March 2019 concluding that he contravened Section 36(1) of the Basic Education Act by administering corporal punishment to two form 3R students, K.N.F and M.M.M on 26 th February 2019. Being aggrieved and dissatisfied with his dismissal from employment, he filed Milimani ELRC Petition No. E179/2021 challenging his dismissal.
36. On cross-examination by Mr. Situma for the 3 rd Respondent, DW 2 confirmed he underwent disciplinary hearing by Teachers Service Commission in which the substantive accusation against him as per the letter of 13/8/2019 was that he had administered corporal punishment on 3 students, one whom was the deceased. He was subsequently dismissed after the disciplinary hearing was concluded.
37. DW3, Lawrence Kigen relied on his witness statement dated 13 th October 2020 and testified that he is the Deputy Director in charge of the discipline function at the Teachers Service Commission. He testified that sometime in February 2019, the commission received allegations that the 1 st respondent had administered corporal punishment to three form 3R students of Kangaru School Embu contravening Section 36(1) of the Basic Education Act. Upon receiving the said allegations, the commission investigated the said allegations against the 1 st respondent and a preliminary finding pointing to the commission of the offence under the code was made; following the findings of the investigating panel, the 1 st respondent was served with interdiction letter specifying the grounds and reasons for his interdiction and the charges against him; via the interdiction letter the 1 st respondent was informed of his right to defend himself and write or make his representation and he wrote his defence statement dated 4 th April 2019; the 1 st respondent was invited together with other witnesses to appear before the disciplinary committee in accordance with Article 47 and Section 41 of the Employment Act; at the panel hearing, the charges were read to him and he was given an opportunity to take plea; the 1 st respondent was granted an opportunity to present his case before an impartial discipline committee in person and he was allowed to cross examine witnesses to his satisfaction; the disciplinary committee considered all the evidence adduced before it and found the 1 st respondent culpable and dismissed him following the seriousness of the offence; the decision of the disciplinary committee was communicated to the 1 st respondent and he was given reasons for his dismissal and he applied for review of the decision where the review panel upheld the decision to dismiss on the ground that no new evidence was submitted.
38. The witness testified that the commission took all the required, necessary and reasonable steps to stop corporal punishment. The actions of the 1 st respondent were outside his scope of duty and against the policies of the commission. Further the measures and procedures employed by the commission were geared towards protecting learners and therefore met the reasonableness test. Additionally, he stated that the actions of the 1 st respondent were independent and outside the terms and regulations of employment and therefore the commission cannot be held vicariously liable for an act committed contrary to its policies and regulations. That notwithstanding, the witness deposed that the post mortem findings showed that the deceased’s lungs were inflamed with mycobacterial infection that resulted to pulmonary tuberculosis which finally caused his death as such, corporal punishment was not the cause of death.
39. DW 3 produced a bundle of documents he relied on as D. exhibit 3 .
40. On cross-examination by Njeri Magee for the 1 st Respondent, DW 3 confirmed that TSC only confined its investigation to administration of corporal punishment and did not investigate the matter of whether the subject was ailing while in school. Put to him that it would be Commission (TSC) which is responsible for failing to take care of the student if the student fell ill in school and the school failed to ensure the student received medical attention, DW 3 answered:
“That would be the responsibility of the Ministry”
41. Ms. Were who appearing for the 2 nd and 4 th Respondents informed this Court on 31/10/2025 that the 2 nd and 4 th Respondents were adopting the position taken by the 3 rd Respondent stating thus:
“ Evidence of the 3 rd Respondent is the evidence the state intends to rely on. I did not cross-examine because he is a state witness, and therefore my client.”
42. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
43. The petitioner identified six issues for determination as follows:
• whether the court has jurisdiction to determine the matter;
• whether the petitioner has established a violation of the deceased’s constitutional rights by the respondents;
• whether the 3 rd respondent is vicariously liable for the actions of the 1 st respondent;
• whether the 1 st respondent is liable for the death of the deceased;
• whether the respondents have violated the deceased’s rights, and
• whether the petitioner is entitled to the remedies sought.
44. On the first issue, the petitioner cited Articles 23(1) and 165(3) of the Constitution and submitted that the court is properly clothed with jurisdiction to determine the issues raised in the petition and grant reliefs sought in view of Article 23(3) of the Constitution.
45. On the second issue, the petitioner submitted that the 1 st respondent through his own evidence admitted that he administered corporal punishment to the deceased on 26 th February 2019 after which the deceased suffered several medical misfortunes and eventually died. The 1 st respondent was taken through the 3 rd respondent’s disciplinary process where he was found guilty of administering corporal punishment and an appeal was heard on 19 th February 2020. The 1 st respondent further appealed the decision of the 3 rd respondent to the Employment Court vide ELRC Petition No. E179 of 2021 where Nzioka J. held: -
The evidence presented before the committee and the testimony adduced before this court warranted the petitioner’s employment being terminated on disciplinary ground for the use of corporal punishment against learners. As such the petition was not well grounded and is accordingly dismissed.
46. The petitioner asserted that the issue as to whether the 1 st respondent subjected the deceased to corporal punishment was dealt and determined by the respective bodies and courts. She further submitted that the medical evidence from Embu Children Hospital, Nairobi Women Hospital and the post mortem report connected the death of the deceased to the corporal punishment administered. The medical report from Embu Children Hospital dated 23 rd March 2021 noted the history of the deceased which created a causation of events which was also noted by the report dated 31 st May 2019 from Nairobi Women Hospital which connected the deceased’s medical challenges to have commenced from the administered corporal punishment. As such, the 1 st respondent violated the constitutional rights of the deceased under Articles 26, 28, 29 and 53. The petitioner further argued that although the 3 rd respondent has put in place circular number 6/2017 being appropriate measures put in place to its employees to deter administration of corporal punishment, no adequate measures were put in place to ensure that the said circular deterred corporal punishment or that learners were protected. Particularly, the 3 rd respondent failed to demonstrate that the 1 st respondent and other teachers were clear on what amounted to corporal punishment as was demonstrated at the disciplinary hearing where the 1 st respondent stated that he thought manilla paper could not inflict injury and the response given by principal Kiminda Wambugu who when informed that corporal punishment had been administered to the deceased did not see any danger of using manilla paper. Further, as admitted by the 2 nd , 3 rd and 4 th respondent’s witness, learners were unaware of the illegality corporal punishment carried when administered towards them. The witness informed the court in admission that whereas learners including the deceased were the ultimate victims of corporal punishment, the 2 nd , 3 rd and 4 th respondent had not relayed that information to them. Learners are therefore subjected to corporal punishment not knowing that it is wrong and has legal repercussions. As a result of that failure, the deceased was violently hit on his knee with a hockey stick to the extent that he suffered a fracture however he was not aware that a violation had been occasioned to him and had no way of defending himself. Further, the 2 nd , 3 rd and 4 th respondent failed to create a hierarchy or safe space for the learners including the deceased to report incidences of corporal punishment. The deceased was subjected to corporal punishment on 26 th February 2019 and no one within the learning institution was informed of the incidence by any of the learners present during the incidence. The petitioner argued that it is only when she went to school that the deceased had his first opportunity to tell an adult what exactly happened and it is through her that the school management was informed through the principal. The said principal admitted that he received the report of the same on 2 nd March 2019 when she informed him.
47. The petitioner argued that the deceased was the most disadvantaged by the fact that the 1 st respondent was equally the assistant boarding master who would have been an available avenue for the deceased or any of the learners to report the issue but due to the 3 rd respondent’s involvement, that avenue was closed to learners. As a result of that failure, the deceased was subjected to inhuman treatment in an institution that had the power to save his life but failed to do so due to the 3 rd respondent’s omission and commission in recognizing that learners needed an avenue to report corporal punishment without judgment or fear.
48. On the third issue, the petitioner argued that the 1 st respondent was an employee of the 3 rd respondent holding TSC registration number TSC/503060/57 and the corporal punishment administered happened in the course of the 1 st respondent’s employment which was a mathematics lesson at Kangaru High School classroom 3R where the deceased was a student. Pursuant to Section 33 of the Teachers Service Commission Act , the 3 rd respondent summoned the 1 st respondent for a disciplinary hearing after which he was dismissed on being found guilty of administering corporal punishment. The 1 st respondent appealed the decision but the appeal was equally dismissed. Thus in view of where the incident occurred and the obvious action taken by the 3 rd respondent as against the 1 st respondent as his employer, the 3 rd and 4 th respondents are vicariously liable for the actions of the 1 st respondent.
49. On the fourth issue, the petitioner submitted that the chronology of events began on 26 th February 2019 when the 1 st respondent entered class to begin his mathematics class and in the process the deceased and two other boys went to class late resulting to the 1 st respondent clobbering the three boys with a hockey stick as they ran to their desks. The said events were confirmed by the 1 st respondent and one of the boys, M.M.M. During the hearing, the petitioner submitted that she testified that the deceased had informed her that the 1 st respondent had hit him with a hockey stick on the knee, hurting him and told him not to tell anyone. The same was captured in the medical reports by Embu Children Hospital dated 23 rd March 2019, Nairobi Women Hospital dated 11 th March 2019 and post mortem report dated 15 th March 2019. Upon the deceased being beaten by the hockey stick, he began to experience health complications which span for two weeks noting that in the first week the 2 nd respondent denied him proper medication by managing him on painkillers at the school dispensary which worsened his condition. Further the deceased was exposed to other medical risks including bacterial infections like tuberculosis which eventually killed him. Further, the petitioner argued that the nature of injuries recorded by Tenri Hospital, being the injuries the deceased had b
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1. The petition dated 11 th September 2021 is supported by the petitioner’s affidavit in support of even date and witness statement dated 4 th February 2022.
2. The petition challenges corporal punishment that was administered to the minor (a student) that allegedly resulted in death.
3. The petitioner thus seeks the following reliefs: -
a) A declaration that the acts of subjecting the petitioner to corporal punishment amounted to violation of his right to life under Article 26, human dignity under Article 28, inhuman and degrading treatment under Article 29, 53(1)(d) and right to health and education under Article 43(1)(a) and (f) of the Constitution of Kenya.
b) A declaration that the respondents failed in their duty to protect the petitioner as required under Article 27 of the Constitution.
c) An order that the 2 nd , 3 rd and 4 th respondents are vicariously liable for the violations of the petitioner’s rights by the 1 st respondent.
d) An order for compensation.
e) An order that this petition is a public interest petition.
f) Costs of the petition.
g) Any other order that the court may deem fit to grant.
4. In opposition to the petition, the 1 st respondent filed a Replying Affidavit dated 12 th November 2021. The 3 rd respondent filed a replying affidavit dated 8 th November 2021 and witness statement dated 13 th October 2022.
5. The matter proceeded viva voce.
The Petitioner’s Case
6. PW1, Irene Ruguru Nyaga, adopted her witness statement dated 4 th February 2022. She testified that she is the minor’s aunt and legal guardian. She told this Court that the minor was born on 21 st March 2001 to one Mary Gichuku Nderi who passed away leaving her to take care of the minor. She further testified that at the time of the minor’s demise, he was 17 years old and a form 3 student at Kangaru Secondary School. According to PW 1, the minor was an orphan and his exemplary performance in school had enabled him to be selected as a beneficiary of Equity Bank’s Wings to Fly scholarship programme.
7. The witness testified that the minor informed her that on 26 th February 2019 he together with one D.M and M.M.M went out of class to wash their faces and when they returned, they found their mathematics teacher, the 1 st respondent herein, had began his class. The teacher angered by their lateness, picked up a hockey stick and clobbered the three students who in self defense ran to their sitting positions. The minor herein being the smallest in size got pushed behind the other two students and therefore received most of the hockey stick beatings. K.N.F was in severe pain and visited the school nurse who prescribed painkillers however his pain did not subside and he still complained of severe pain the following day. This prompted the nurse and the teacher on duty to take him to Tenri Embu Children Hospital where the x-ray report indicated that he suffered a fracture on his left leg. The doctor advised to have K.N.F admitted at the hospital for observation but the school nurse and the teacher on duty refused and took him back to school.
8. The witness further testified that on 28 th February 2019, K.N.F was still experiencing pain and the school directed the 1 st respondent to take the minor to Embu Level 5 Hospital for further treatment. The hospital conducted more tests and further treatment which included prescription of walking crutches which the 1 st respondent paid for and they returned back to school.
9. A week later, his condition worsened and he was admitted in the school clinic which prompted the school to call her. PW1 states that she rushed to the school and was shocked on seeing her nephew whose skin had darkened, could neither talk nor eat and moved with great difficulty. Describing the first encounter when she saw the minor after being called to the school, PW 1 stated in chief as follows:
“My son came in crutches, appearing in pain and having a frowned face. His skin had darkened. That day he did not look happy and could not smile at me. One of his legs was plastered. He was breathing heavily and was folding his arms as if in serious pain…He told me that he had gone out for break with others and on returning, they found mathematics teacher in class. The teacher then picked a hockey stick and started beating them up, the three of them…The hands were also beaten as he tried to shield himself including shoulders…”
10. PW1 stated that K.N.F told her that the teacher had told him not to tell her the truth as to what happened but rather should say that he fell. Further despite the deterioration of the minor’s condition after the incident, PW 1 stated explained as follows:
“They took a whole week without informing me. They would take him to hospital and back. After finding he was getting worse, he was only staying in the dormitory and no one was taking care of him. They wanted me to see and leave the boy. The boy insisted I go home with him.”
11. PW1 states that she took K.N.F home but he could hardly sleep as he was in severe pain and his condition deteriorated into a vegetable state. She took him back to Embu District Hospital where it was recommended that he be admitted in the hospital’s intensive care unit. As she could not afford the expenses, she insisted that the 1 st respondent and the school board of management pay for the expenses and they eventually agreed to pay for the same after being taken round in circles. She further states that after further observation, the hospital resolved that they did not have the capacity to treat K.N.F who was in a vegetable state and thus recommended for his transfer to Nairobi. The 1 st respondent arranged for an ambulance which took him to Nairobi women’s hospital and he was admitted in the ICU on arrival. The witness avers that she returned back to Embu as she had no accommodation in Nairobi and she reported the matter to the police.
12. PW1 states that on 11 th March 2019, she received a call from the doctor who informed her that K.N.F had been placed on life support and his condition had deteriorated. After twenty minutes, she received another call with the unfortunate news that her nephew had passed away. She further states that the police recommended a post mortem autopsy which on being undertaken, an opinion was formed that the cause of death was respiratory failure due to pulmonary tuberculosis. Upon the said findings, the 1 st respondent and the school abandoned K.N.F at the hospital and the police could not make further investigations into the matter as the cause of death was ascertained to be different from the injuries sustained.
13. The witness testified that on 19 th March 2019, she lodged a complaint to the Kenya National Commission on Human Rights requesting them to obtain a medical report or doctor’s opinion on her nephew’s health conditions and on 29 th October 2020, Dr. Oduor Johansen, a pathologist, analysed the post mortem in detail and concluded that whereas the cause of death may have been as concluded by the pathologist, the chain of events leading to his death began following a trauma that he sustained after the beating he received from the 1 st respondent .
14. The said teacher was subjected to disciplinary hearing by the Teachers Service Commission and he was subsequently dismissed and removed from the register of teachers having inflicted corporal punishment contrary to Section 36(1) of the Basic Education Act.
15. On cross-examination by the 3 rd Respondent’s Advocate, Mr. Sitima, PW 1 upon being showed the post mortem report and asked to read confirmed that it indicated that cause of death was ‘respiratory failure due to pulmonary tuberculosis.’ PW1 further admitted that after the incident, the teacher who was implicated in the beating of her son, James Maina Mureithi (1 st respondent) was subjected to administrative hearing and dismissed. Asked thus why she had sued the 3 rd Respondent, Teachers Service Commission, she stated:
“I expected TSC to compensate for that child because is a life gone. It does not tell the teachers to administer corporal punishment.”
16. Cross-examined as to what expectation she had of the school, PW 1 answered thus:
“They should have called me earlier, not after a week. I could have taken him to hospital and taken care of him giving him good care and food.”
The Respondents’ Case.
17. DW1, Dr. Daniel Zuriel testified on 14/10/2024. that he is a pathologist for the last 15 years with specialty on forensic pathology and slan pathology. The witness testified that he conducted the post mortem autopsy on K.N.F on 15 th March 2019 and the post mortem report dated 15 th April 2019 (produced as D. exhibit 1 ).
18. On external examination, he was fairly nourished and externally, the body appeared ok, apart from cyanosis (blueness of the lips, nails and fingers) indicative of lack of oxygen. He had plaster of paris from the knee to the left leg to above ankle joint. He testified thus:
“… when we removed the plaster, we identified left knee was a bit swollen but no evidence of fractures.”
19. They then opened the body for internal examination. On both legs below the skin, they discovered contusion from the ankle joint under the skin coming up which was 20cm long and 5cm wide . DW 1 explained that contusion refers to a a little bleeding under the skin. On the head, there was bleeding in the covering of the brain 3x2 cm in the frontal aspect of the brain which he explained coincided with the point of external injury they had found in the skin. On the hands, DW 1 explained as follows:
“We found what looked like defensive wounds, that is back side of the hand. There was a left limb area and upper shoulder 1 cm’’
20. Further detailed examination was done on the chest cavity of which DW 1 summarised the findings as extensive pus in the chest cavity with tubercles covering the heart and lung services. Such disease inside the lung tissue. Pus in the right thigh. No collaborative evidence of trauma on calf muscle and no fracture of any bone of his body . He further found no clots in any of the blood vessels . DW 1 formed the opinion that the cause of death was respiratory failure due to severe chest infection in keeping pulmonary tuberculosis . He further testified that the post mortem findings are not in keeping with reported circumstances of death and the cause of death in the teenager was best described due to failure to respiratory failure due to tuberculosis in the lungs. Microscope changes supporting of that.
21. Cross-examined by Ms. Mwangi for the 3 rd and 4 th Respondent evidence of external trauma found, DW 1 explained thus:
“External trauma we found were not significant. The one’s on the knee were significant for us to ask, it was like someone tripping and falling on the knee. He had been given walking aids… there was defensive wounds. They were of blunt object, superficial, skin-deep upper part of the hand and lower limb. They were not visible on the eye but inside the skin. They were not significant.”
22. Cross-examined by Ms. Muhanda for the Petitioner, DW 1 was challenged to state whether there was any history of T.B in the diagnosis of the minor to which he replied:
“Only Nairobi Women where they did scan and said they suspected pneumonia or anaemia. A differential analysis of pulmonary embolism and PTB was also made. The hospital did not find TB, they did not look for it…”
23. Further told that T.B could be dormant in the body and can be activated by trauma, DW 1 answered:
“ The pathology is that we all have T.B in lungs but is dormant… it can be brought by low immunity, serious stress. T.B of K was not treated because it was not picked…”
24. Questioned further on the link between the beating the minor is said to have received on 28/2/19 and the possibility of triggering the onset of T.B that led to his death, DW 1 explained thus:
“ …You can’t measure stress that brings diseases. It is a prolonged thing. It could be a beginning. Medical treatment actually alleviates stress. T.B is a process. For you to get T.B that can kill you, it will eat you for a very long time. It is not pneumonia that will kill you now. Two weeks cannot develop T.B that will kill you in two weeks.”
25. On the absence of an earlier diagnosis, DW 1 stated:
“I teach T.B. He had fever, difficult breathing, if right thing had been made, it could have been detected.”
26. DW2, James Mwangi Mwai testified on 14/10/2024. In examination in chief, he informed Court that he was relying wholly on his replying affidavit and annexures thereof. He produced the annexures as D. exhibit 2 i-xiv . He testified that he was the Assistant Boarding Master and taught mathematics at Kangaru School.
27. On 10 th March 2019, he went to school and found Mr. Abuor the Deputy Principal, who briefed him and informed him that the student was reportedly in the ICU. On the same day, one Dennis Nyaga, a cousin to K.N.F went to school to complain on how the school was not giving his cousin the required attention. On 11 th March 2019, Mr. Ng’ang’a informed him of the student’s demise and he was shocked.
28. The witness testified that on 12 th March 2019 news outlets and social media hubs were teeming with the news of ‘student beaten to death’, which story emanated from K.N. F’s relatives including Dennis Nyaga’s facebook and radio and tv sessions which he had on Monday. The school board and the county TSC met and summoned him to question him over the same. The police were also present to conduct the investigations. He states that he responded verbally and in writing and clarified that he had nothing to do with the student’s death.
29. On 13 th March 2019, he went to the police station in the company of the school principal. After recording his statement, he was arrested and held in police custody for murder. He was however released on cash bail and instructed to report back to the station the following Monday.
30. On 14 th March 2019, he received an invitation letter to appear before the county TSC Disciplinary panel to answer to charges of corporal punishment. He deposed meanwhile, the post mortem was conducted on 15 th March 2019 and the findings revealed that the minor had succumbed to severe pulmonary tuberculosis. There was no evidence to sustain claims of beating, neither was there any fracture or tissue injury at the alleged site of canning.
31. DW2 stated that he reported back to the OCS on 21 st March 2019 where he was informed that the reports and statements had been forwarded to the office of the DCI and DPP for close scrutiny and investigation. Further on the same day, he stated that he was summoned at the County TSC office together with the principal, the boarding teacher, the other two students that he was accused of caning together with the deceased and four other students from the class to answer the charges of corporal punishment. The students were presented with two statements which they had previously written dated 11 th March 2019. When they read the statements, they stated that they had not witnessed what they had been told to write and they were told to write what they had witnessed. He was further asked to write a fresh statement concerning 26 th February and so were the students. Mr Munene Ephantus gave them Kshs. 1,000/- as they left ostensibly for their lunch.
32. DW2 testified that on 28 th March 2019 he received an interdiction letter and was instructed to respond to the commission within seven days which he posted his response on 4 th April 2019. On 13 th May 2019, the OCS instructed him that a public inquest was to be conducted as the investigations and statements recorded did not sustain the accusations as levelled.
33. On 13 th August 2019, DW 2 received an amended interdiction letter citing a different clause he had allegedly breached which was different from the initial one. He further testified that on 18 th September 2019 his case was heard and all the witnesses who had attended at the county level were summoned and the students quizzed over their statements. He received a letter on 8 th November 2019 informing him that the commission had decided to dismiss him on the grounds of corporal punishment and he had 90 days to appeal if he wished to do so. DW2 testified that he submitted his appeal and on 19 th February 2020 and after the hearing he was informed that he would receive a letter informing him of their decision within a month. He did not get a response until 10 th June 2021 after following up vide letters dated 19 th November 2020 and 22 nd May 2021.
34. The letter forwarded the decision of the commission which upheld the dismissal and stated that the decision was final and directed that he had to personally apply for the proceedings to the appeal. He noted that the director representative and the presenting officers did not sign the proceedings, there were no technical officers present and the panel did not consider the issues he raised in his appeal.
35. DW2 further testified that a panel of five officers of the respondent did an investigative report dated 12 th March 2019 where they recommended a government pathologist to immediately conduct a post mortem on the body of the deceased student to establish the cause of death. The post mortem report eventually excluded corporal punishment as the cause of death. The said committee heard the dispute and made its determination on 21 st March 2019 concluding that he contravened Section 36(1) of the Basic Education Act by administering corporal punishment to two form 3R students, K.N.F and M.M.M on 26 th February 2019. Being aggrieved and dissatisfied with his dismissal from employment, he filed Milimani ELRC Petition No. E179/2021 challenging his dismissal.
36. On cross-examination by Mr. Situma for the 3 rd Respondent, DW 2 confirmed he underwent disciplinary hearing by Teachers Service Commission in which the substantive accusation against him as per the letter of 13/8/2019 was that he had administered corporal punishment on 3 students, one whom was the deceased. He was subsequently dismissed after the disciplinary hearing was concluded.
37. DW3, Lawrence Kigen relied on his witness statement dated 13 th October 2020 and testified that he is the Deputy Director in charge of the discipline function at the Teachers Service Commission. He testified that sometime in February 2019, the commission received allegations that the 1 st respondent had administered corporal punishment to three form 3R students of Kangaru School Embu contravening Section 36(1) of the Basic Education Act. Upon receiving the said allegations, the commission investigated the said allegations against the 1 st respondent and a preliminary finding pointing to the commission of the offence under the code was made; following the findings of the investigating panel, the 1 st respondent was served with interdiction letter specifying the grounds and reasons for his interdiction and the charges against him; via the interdiction letter the 1 st respondent was informed of his right to defend himself and write or make his representation and he wrote his defence statement dated 4 th April 2019; the 1 st respondent was invited together with other witnesses to appear before the disciplinary committee in accordance with Article 47 and Section 41 of the Employment Act; at the panel hearing, the charges were read to him and he was given an opportunity to take plea; the 1 st respondent was granted an opportunity to present his case before an impartial discipline committee in person and he was allowed to cross examine witnesses to his satisfaction; the disciplinary committee considered all the evidence adduced before it and found the 1 st respondent culpable and dismissed him following the seriousness of the offence; the decision of the disciplinary committee was communicated to the 1 st respondent and he was given reasons for his dismissal and he applied for review of the decision where the review panel upheld the decision to dismiss on the ground that no new evidence was submitted.
38. The witness testified that the commission took all the required, necessary and reasonable steps to stop corporal punishment. The actions of the 1 st respondent were outside his scope of duty and against the policies of the commission. Further the measures and procedures employed by the commission were geared towards protecting learners and therefore met the reasonableness test. Additionally, he stated that the actions of the 1 st respondent were independent and outside the terms and regulations of employment and therefore the commission cannot be held vicariously liable for an act committed contrary to its policies and regulations. That notwithstanding, the witness deposed that the post mortem findings showed that the deceased’s lungs were inflamed with mycobacterial infection that resulted to pulmonary tuberculosis which finally caused his death as such, corporal punishment was not the cause of death.
39. DW 3 produced a bundle of documents he relied on as D. exhibit 3 .
40. On cross-examination by Njeri Magee for the 1 st Respondent, DW 3 confirmed that TSC only confined its investigation to administration of corporal punishment and did not investigate the matter of whether the subject was ailing while in school. Put to him that it would be Commission (TSC) which is responsible for failing to take care of the student if the student fell ill in school and the school failed to ensure the student received medical attention, DW 3 answered:
“That would be the responsibility of the Ministry”
41. Ms. Were who appearing for the 2 nd and 4 th Respondents informed this Court on 31/10/2025 that the 2 nd and 4 th Respondents were adopting the position taken by the 3 rd Respondent stating thus:
“ Evidence of the 3 rd Respondent is the evidence the state intends to rely on. I did not cross-examine because he is a state witness, and therefore my client.”
42. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
43. The petitioner identified six issues for determination as follows:
• whether the court has jurisdiction to determine the matter;
• whether the petitioner has established a violation of the deceased’s constitutional rights by the respondents;
• whether the 3 rd respondent is vicariously liable for the actions of the 1 st respondent;
• whether the 1 st respondent is liable for the death of the deceased;
• whether the respondents have violated the deceased’s rights, and
• whether the petitioner is entitled to the remedies sought.
44. On the first issue, the petitioner cited Articles 23(1) and 165(3) of the Constitution and submitted that the court is properly clothed with jurisdiction to determine the issues raised in the petition and grant reliefs sought in view of Article 23(3) of the Constitution.
45. On the second issue, the petitioner submitted that the 1 st respondent through his own evidence admitted that he administered corporal punishment to the deceased on 26 th February 2019 after which the deceased suffered several medical misfortunes and eventually died. The 1 st respondent was taken through the 3 rd respondent’s disciplinary process where he was found guilty of administering corporal punishment and an appeal was heard on 19 th February 2020. The 1 st respondent further appealed the decision of the 3 rd respondent to the Employment Court vide ELRC Petition No. E179 of 2021 where Nzioka J. held: -
The evidence presented before the committee and the testimony adduced before this court warranted the petitioner’s employment being terminated on disciplinary ground for the use of corporal punishment against learners. As such the petition was not well grounded and is accordingly dismissed.
46. The petitioner asserted that the issue as to whether the 1 st respondent subjected the deceased to corporal punishment was dealt and determined by the respective bodies and courts. She further submitted that the medical evidence from Embu Children Hospital, Nairobi Women Hospital and the post mortem report connected the death of the deceased to the corporal punishment administered. The medical report from Embu Children Hospital dated 23 rd March 2021 noted the history of the deceased which created a causation of events which was also noted by the report dated 31 st May 2019 from Nairobi Women Hospital which connected the deceased’s medical challenges to have commenced from the administered corporal punishment. As such, the 1 st respondent violated the constitutional rights of the deceased under Articles 26, 28, 29 and 53. The petitioner further argued that although the 3 rd respondent has put in place circular number 6/2017 being appropriate measures put in place to its employees to deter administration of corporal punishment, no adequate measures were put in place to ensure that the said circular deterred corporal punishment or that learners were protected. Particularly, the 3 rd respondent failed to demonstrate that the 1 st respondent and other teachers were clear on what amounted to corporal punishment as was demonstrated at the disciplinary hearing where the 1 st respondent stated that he thought manilla paper could not inflict injury and the response given by principal Kiminda Wambugu who when informed that corporal punishment had been administered to the deceased did not see any danger of using manilla paper. Further, as admitted by the 2 nd , 3 rd and 4 th respondent’s witness, learners were unaware of the illegality corporal punishment carried when administered towards them. The witness informed the court in admission that whereas learners including the deceased were the ultimate victims of corporal punishment, the 2 nd , 3 rd and 4 th respondent had not relayed that information to them. Learners are therefore subjected to corporal punishment not knowing that it is wrong and has legal repercussions. As a result of that failure, the deceased was violently hit on his knee with a hockey stick to the extent that he suffered a fracture however he was not aware that a violation had been occasioned to him and had no way of defending himself. Further, the 2 nd , 3 rd and 4 th respondent failed to create a hierarchy or safe space for the learners including the deceased to report incidences of corporal punishment. The deceased was subjected to corporal punishment on 26 th February 2019 and no one within the learning institution was informed of the incidence by any of the learners present during the incidence. The petitioner argued that it is only when she went to school that the deceased had his first opportunity to tell an adult what exactly happened and it is through her that the school management was informed through the principal. The said principal admitted that he received the report of the same on 2 nd March 2019 when she informed him.
47. The petitioner argued that the deceased was the most disadvantaged by the fact that the 1 st respondent was equally the assistant boarding master who would have been an available avenue for the deceased or any of the learners to report the issue but due to the 3 rd respondent’s involvement, that avenue was closed to learners. As a result of that failure, the deceased was subjected to inhuman treatment in an institution that had the power to save his life but failed to do so due to the 3 rd respondent’s omission and commission in recognizing that learners needed an avenue to report corporal punishment without judgment or fear.
48. On the third issue, the petitioner argued that the 1 st respondent was an employee of the 3 rd respondent holding TSC registration number TSC/503060/57 and the corporal punishment administered happened in the course of the 1 st respondent’s employment which was a mathematics lesson at Kangaru High School classroom 3R where the deceased was a student. Pursuant to Section 33 of the Teachers Service Commission Act , the 3 rd respondent summoned the 1 st respondent for a disciplinary hearing after which he was dismissed on being found guilty of administering corporal punishment. The 1 st respondent appealed the decision but the appeal was equally dismissed. Thus in view of where the incident occurred and the obvious action taken by the 3 rd respondent as against the 1 st respondent as his employer, the 3 rd and 4 th respondents are vicariously liable for the actions of the 1 st respondent.
49. On the fourth issue, the petitioner submitted that the chronology of events began on 26 th February 2019 when the 1 st respondent entered class to begin his mathematics class and in the process the deceased and two other boys went to class late resulting to the 1 st respondent clobbering the three boys with a hockey stick as they ran to their desks. The said events were confirmed by the 1 st respondent and one of the boys, M.M.M. During the hearing, the petitioner submitted that she testified that the deceased had informed her that the 1 st respondent had hit him with a hockey stick on the knee, hurting him and told him not to tell anyone. The same was captured in the medical reports by Embu Children Hospital dated 23 rd March 2019, Nairobi Women Hospital dated 11 th March 2019 and post mortem report dated 15 th March 2019. Upon the deceased being beaten by the hockey stick, he began to experience health complications which span for two weeks noting that in the first week the 2 nd respondent denied him proper medication by managing him on painkillers at the school dispensary which worsened his condition. Further the deceased was exposed to other medical risks including bacterial infections like tuberculosis which eventually killed him. Further, the petitioner argued that the nature of injuries recorded by Tenri Hospital, being the injuries the deceased had b
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