Death of a child in a school to change the teaching profession

A landmark judgement has paved the way for negligent teachers to be held criminally responsible for the death or injury to children in schools.

This is after a teacher was found guilty of manslaughter for the death of a child whose body was found in an underground water tank of a school in Siaya.

The High Court’s criminal division held that Gertrude Oneya failed to ensure the nursery school pupil got to the hostels safely.

Justice Roslyn Aburili found that while teachers are not bound by parental responsibility, they ought to act as a reasonable parent would do in promoting the welfare and safety of children in their care.

Conviction for murder or manslaughter is based on the prosecution presenting irrefutable evidence against the accused.

But in this case, there was no evidence that the teacher acted either alone or in concert with others to eliminate the child. There was no witness to the killing of the minor.

But Oneya was punished for neglect. She failed to take the blind child named as FO to the housemother before going to her house.

The judge ruled Oneya failed to do her duty, hence she was guilty of manslaughter.

“Whereas there is no evidence that the accused person had any malice aforethought to kill the child, and whereas there is no eye witness to the killing of the said child, and whereas there is no direct evidence to prove that the accused person acted either alone or in concert with others to eliminate the child, there is sufficient evidence proved beyond a reasonable doubt that the accused person, Getrude Oneya, owed a duty of care to the child and that she absconded that duty of care and failed to deliver the child to the housemother before leaving,” ruled Justice Aburili.

Owing to the peculiarity of the case, the judge relied on a 1925 England Court case against a British doctor Batman, who was convicted of manslaughter arising out of his treatment of a woman in childbirth.

The judge, Lord Hewitt, found that Batman was liable for gross negligence that led to the death of the child.

Nine decades after Batman’s conviction, here in Kenya, the court ruled that the teacher was to blame for a lost life for her failure to hand over the blind child to the next person who would ensure their safety.

“She left the child who had a special need and whom she had knowledge or reason to believe that he could stray because of his disability, in the company of other children and as a result, the said child did not find his way to the dormitory with others and as a consequence of that omission, the child was found drowned in an underground water tank. In my humble view, therefore, the accused person is guilty of unlawful omission,” the judge ruled.

An unlawful omission is defined in Kenya’s penal code, section 202 (2) as an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health. One can be found guilty of unlawful omission if the court finds there was no intention to cause death or bodily harm.

The judge ordered that her judgement, delivered on May 6, 2020, be supplied to schools in Siaya County. It will, however, have a reverberating effect on all schools in the country.

On June 27, 2017, at 8.30pm, FO was found inside an underground tank. As the dead tell no tale, no one knows how and who might have thrown him inside.

A caretaker of the school told the court that she realised FO had not arrived in the dorm. She proceeded to search for him in vain.

The caretaker, Benta Sewe, said she called Oneya, who was at this time at her house outside the school and informed her that the minor was missing.

The search, which also involved the police, went on into the night. At 10pm, the team decided to suspend the search.

The following morning, on June 28, Jared, who is a security guard found some sandals that FO wore near the water tank. The boy was floating dead inside.

A child named CA also testified for the State. He said on the fateful night, he went to the dispensary with two other pupils to take drugs. CA, who is partially blind, told the court he met with FO and took him where other children were.

CA testified he then took FO back to class after they had taken medicine and left him with teacher Gertrude.

Oneya denied the charges, saying she was in class with all children and had escorted them to the dormitories. According to her testimony, she and the children stayed in class until 8.10pm.

After escorting the minors, Oneya testified she retreated to her house, which was 200 metres from the school.

The accused said she joined the search upon learning that the minor was missing. She stated she did not hand over FO and others to the dorm mothers. Oneya added that she left another child who had a passion for other visually impaired children to guide FO and did not have any ill motive.

She denied that the minor disappeared when he was in her custody.