@Dr. 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

defined as: An aggregate  Morality is the sense of judgement between right and wrong
or conglomeration of by reference to certain standards developed by society over
rules enforced by courts time.
of law at a given time.  It consists of standards of behaviour widely used by a society
(prescriptions of society) and is binding on the conscience of

1|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

the 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 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.

2|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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

 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

3|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
 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

4|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.
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.

5|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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:
 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.

6|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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

 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.

7|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.

8|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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
 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

9|Page
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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:
 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.

10 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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:
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

11 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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
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

12 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.
 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

13 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
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.

14 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.

15 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.’
 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.

16 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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 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;

17 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

(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.

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.

18 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

(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

(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;

19 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

(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

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.
20 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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

21 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.

22 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.

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

23 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.

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:

24 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.

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

25 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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
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.

26 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
 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.

27 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

(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;
(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;

28 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

(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:
 Employment act
 Trade unions Act

29 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.

30 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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:
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

31 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
 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

32 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
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.

33 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.
 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

34 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

 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.
 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.

35 | P a g e
@Dr. Eric Mwenda E.G.-0726-560327 Lecture notes year 2021

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.

36 | P a g e