Women and Justice: Court: High Court of Kenya at Nairobi (Constitutional and Human Rights Division)

Domestic Case Law

W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)

International law, Sexual violence and rape, Statutory rape or defilement

In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.