INTRODUCTION
On the bleak morning of 7th September, 2024, Kenyans awoke to the devastating news of a tragic fire at Hillside Endarasha Academy which claimed the lives of 21 innocent children.[1] The blaze had engulfed the boys’ dormitory which housed over 156 students. In a press statement, the government’s spokesperson, Hon. Isaac Mwaura confirmed to the disheartened Kenyans that 19 bodies were recovered from the scene while 2 additional deaths were recorded at Kenyatta National Hospital and Mary Immaculate Hospital, Nyeri County.[2] Barely a day later, Kenyans again woke up to the unfortunate news of Isiolo Girls High School fire incident.[3]
Despite the devastating loss of life, one glaring question still linger in the minds of many: why did it take over five hours for the fire brigade to arrive at the scene?[4] In such critical moments, every single second counts. Every second a child is praying to be saved. Every second, a child is trembling in fear. Every second, hope fades a little more and every second, a family is unknowingly losing a loved one. In these long seconds, failure to show up cannot just be excused as a mere delay, it is most certainly a death sentence to the victims!
The Constitution of Kenya places both a moral and legal obligation to the Government of Kenya (the national and county governments) to ensure safety and well-being of its citizens, especially that of its children.[5] Yet, the two levels of government seems woefully unprepared to tackle fire outbreaks. And to just demonstrate this unpreparedness, when the fire responders from Kiawira finally arrived at the scene, they found out that they lacked the requisite equipment and resources to contain the fire, they had to ask for back-up from the Nyeri Fire Brigade, who again took another one hour to arrive.[6] Could we have prevented or minimize the death toll if a prompt and well-coordinated response was in place?
This article therefore seeks to explore the legal accountability placed on both the national and county governments which most Kenyans are not aware of. Safe to say that in our case, ignorance is not bliss. Thus, are the students and/or their families entitled to compensation? – this we shall answer by looking at both the tort law which establishes the duty of care and the constitutional rights as enshrined under the Constitution of Kenya, 2010. Should the national and county governments be held accountable for their failure to respond quickly and prevent further loss of lives? – this we shall examine the provisions of the Occupational Safety and Health Act as well as the Basic Education Act which emphasize the need to keep students in safe environments.
A BURNING QUESTION: WHEN WILL CHANGE COME?
Perhaps the most poignant question that every Kenyan is asking themselves right now is, how many more lives must be lost before we address the fire hazards that plague our schools? Because, this is not the first time that Kenyans have lost their children in school fire, a place which is supposedly the sanctuary for safeguarding the future of their children. According to the research conducted by the University of Nairobi, the history school fires dates back to the 1998 where Bombolulu Girls Secondary School was set ablaze.[7] The following year, four school prefects were set on fire at Nyeri High School.[8] In 2001, a fire tragedy again hit Kyanguli Secondary School – which according to the local newspaper outlet, claimed the lives of 67 boys, making it by far the worst fire tragedy in Kenya.[9] In 2017, 8 students again lost their lives in a fire incident at the prestigious Moi Girls High School.[10]
What causes these fires? - One might ask. Research studies suggest that there are various causes for fire outbreaks in Kenya, including inter alia, arson (perhaps the most common cause), lack of training among teachers, electrical faults, poor electrical installation and appliances.[11] For instance, the Report of a Special Judicial Commission indicated that the fire could have been started by arson as there were no proper security arrangements in the school, no teacher lived in the school and the watchmen was found sleeping in the opposite side of the dormitory and was unaware of the situation.[12] To exacerbate the situation, the Commission established that the dormitory’s door opened inwards, against the flow of outgoing traffic.[13] Additionally, the students were never given instructions on how to use fire extinguishers or how to generally react to such situations.[14]
This systemic negligence stems from the negligence of both schools and the government. A performance audit on fire safety preparedness revealed a damning verdict: that the Ministry of Education had failed to ensure that Secondary Schools in Kenya are well prepared to handle fire incidences. [15] To reach this conclusion, the audit assessed whether secondary schools had suitable infrastructure for fire safety preparedness and the findings were alarming. Out of the 42 schools sampled, none had an evacuation map displayed on buildings. Only 11 schools had basic fire equipment fire blankets and shockingly, 5 schools had dormitory doors opening inwards, a clear violation of fire safety standards that could prevent a quick escape.[16] The audit further revealed that guidance and counselling departments, which are central to regulating the indiscipline cases in school were not well constituted and capacitated to provide any meaningful impact.[17]
BETWEEN THE FLAMES AND THE LAW: ARE OUR CHILDREN PROTECTED OR FORGOTTEN?
The laws in Kenya are coined and framed to protect the rights of every person in Kenya, especially the vulnerable groups such as children. There have been several policies and measures protecting people from calamities like fire in Kenya. However, the rampancy of the recent fire outbreaks only points to one thing: the huge disparity between the de jure and the de facto state of affairs.
The Constitution of Kenya, 2010
The Constitution of Kenya is at the core of Kenya’s legal protections and it enshrines several rights which should serve as a bulwark against disasters like school fires. Article 53 provides that every child has, inter alia, the right to education and protection from abuse, neglect, harmful cultural practices and all forms of violence.[18]
Article 43 of the Constitution additionally guarantees everyone the right to highest standard of health.[19] In that same breadth, the state has been given a further duty to ensure that it takes legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the right to the highest standard of health.[20] This means that the government is constitutionally bound to ensure that school environments are safe and conducive to learning.
The Basic Education Act, 2013
This Act stipulates the roles of both the national and county governments in providing the safe learning environment. The Act tasks the Cabinet Secretary with making regulations with respect to the conduct and management of schools and such regulations that may prescribe minimum standards for the health and safety of pupils and for a satisfactory environment for education.[21] This means that the Cabinet Secretary is obligated to make regulations to ensure that the learning environment are safe for the children, especially against disasters like fire.
The leading cause of fire occurrence in public secondary schools in Kenya is arson (a deliberate or intentional setting of fire by students).[22] Thus, guidance and counselling is an essential part of the school environment. To this regard, Section 59 requires the board of management of a basic education institution to facilitate and ensure the provision of guidance and counselling to all learners.[23] However, the audit indicated that the ministry of education had established a guidance and counselling department at the headquarters although the department only had two staff only.[24] This makes it difficult for them to ensure that guidance and counselling is carried out effectively in all schools across the country.
Factories and other places of work (Fire Risk Reduction) Rules 2007
These Rules were enacted with a focus on ensuring fire safety in work environments by mandating strict safety standards. One of the key provisions under these Rules is that any doors leading to areas where flammable materials are stored must open outwards to facilitate quick and safe evacuation during an emergency.[25] This principle is not only applicable to industrial and commercial spaces but also forms part of broader fire safety protocols that should apply to public institutions, including schools.
Shockingly, the findings of the audit on fire safety preparedness in schools revealed that many secondary schools in Kenya fail to meet even this basic standard.[26] The report noted that only 5 schools out of the 40 that were sampled were designed to open inwards, explicitly contravening the safety regulations established under the Fire Risk Reduction Rules. In moments of panic during a fire, inward-opening doors can trap students inside, making evacuation efforts slow and very catastrophic.
Rule 30 places a clear and unequivocal duty on every occupier to ensure that all fire extinguishing equipment is properly maintained and fully functional.[27] Under this rule, occupiers—whether of schools, factories, or other institutions—are mandated to conduct regular inspections and testing of all fire-fighting appliances to prevent malfunction during emergencies.[28]
Further, Rule 24(1) mandates every occupier to identify and designate a safe assembly point where all occupants can gather in the event of a fire emergency.[29] This critical safety measure ensures that, during a fire outbreak, there is a clear and accessible location where individuals can account for themselves, reducing confusion and facilitating an organized evacuation.[30]
A physical verification of 42 sampled schools revealed that 25 schools had designated fire assembly points large enough to accommodate their student populations.[31] However, three of these assembly points were found to be inaccessible, enclosed by barriers such as barbed wire or fencing, which would obstruct swift access during an emergency, as shown in accompanying image evidence.
In the eventuality, most of the schools in Kenya do not comply to these rules. So, does this answer the question I posited before, the question of whether schools are indeed the sanctuary for our kids? Numbers don’t lie, and the numbers suggest something different.
Safety Standards Manual for Schools in Kenya, 2008
This manual came about in the year 2008 when Kenya experienced an unprecedented displacement of school children. Just like the Factories and other places of work (Fire Risk Reduction) Rules 2007, this manual also obligates schools to ensure that dormitory doors open outwards to ensure adequate exit strategy.[32] Additionally, the manual requires that schools must undergo safety assessment which includes fire safety preparedness and to be monitored by the quality assurance and standards officer (QASO). QASO are supposed to assess the schools at least every two years.
The Disaster Manual (Basic Guidelines), 2014
This manual starts off by obligating the state to take measures to protect and preserve the lives and property of its citizens, whether from external threats or internal hazards. Therefore, it focuses mostly on preparedness and mitigation of disasters. The manual provides for preparedness activities such as training, sensitization exercises, simulations, drills, emergency response plans, warning systems, evacuation plans and emergency communications.
The Ministry of Education Strategic Plan 2023-2027
This Plan outlines a comprehensive vision for Kenya's education sector. It emphasizing the on the role that education plays when it comes to economic development, personal growth, and lifelong opportunities. Recognizing that schools serve as sanctuaries for learners' intellectual and social development, the plan underscores the need to make educational institutions as safe as possible.
Among the challenges identified in the strategic plan are the recurring fire incidents that have plagued schools in recent years.[33] In response, the Ministry highlights the importance of managing emergencies within educational environments as a key priority. The plan sets out clear objectives, including the creation of a safer, learner-friendly environment with minimal hazards to ensure the uninterrupted continuation of education.
To achieve these goals, the strategy focuses on building a resilient education system by implementing measures aimed at prevention, mitigation, response, and effective crisis management. Activities include reinforcing fire safety protocols, conducting regular risk assessments, and ensuring that both teachers and students are trained to handle emergencies. This strategic focus aims to reduce vulnerability, safeguard learners' well-being, and guarantee that education can continue even in the face of unforeseen disasters.
SEEKING JUSTICE FROM THE EMBERS: ARE FAMILIES ENTITLED TO COMPENSATION?
As aptly articulated by Justice Kimondo, “I have previously stated that damages are clearly payable to the parents of a deceased child irrespective of whether there is or there is no evidence of pecuniary contribution”.[34] Justice Kimondo’s statement recognizes the fact that grieving families have undeniable right to compensation for the loss of their beloved children.
Perhaps the locus classicus case on compensation in Kenya is the Kyanguli Mixed Secondary School case (Daniel Kiamba Kimithi & 62 others v David Mutioso Kiilu & 4 others [2016] eKLR). This case arose from one of the most horrific fire incidents in Kenya’s history, claiming the lives of 63 students. The Plaintiffs sought justice and compensation from the Defendants for the fatal incident, which they attributed to negligence in the management and supervision of the school.
The court case revolved around the tragic night of March 26th, 2001, when an arson attack razed the dormitory of Kyanguli Mixed Secondary School, leading to the deaths of the students. The Plaintiffs argued that the Defendants’ failure to adequately manage, supervise, and maintain the school’s safety was a direct cause of the fire. They sought compensation for the loss of life under the Law Reform Act and the Fatal Accidents Act, along with damages for the destroyed property and the costs of the suit.
In their defence, the Defendants contended that the fire was the result of an unknown arsonist and not due to any negligence on their part. However, the court found compelling evidence that the school administration had prior knowledge of previous attempts to set the school on fire, yet took no serious action to address the threat or ensure the safety of the students. Furthermore, the school dormitory, designed for a capacity of 60 students, was housing 134 at the time of the incident—an overcrowding issue that contributed to the tragedy. Even worse, the dormitory had only one functional exit, as the second door had been permanently sealed after the key was lost, transforming the building into a death trap for the students inside.
The court held that the negligence of the school administration in failing to investigate the prior unrest, coupled with the dangerous overcrowding, poor dormitory design, and lack of proper fire safety equipment, created an environment ripe for disaster. The 1st, 2nd, and 4th Defendants were found liable for their failure to manage and oversee the safety of the school and its students, while the 3rd Defendant was held vicariously liable for these omissions.
In delivering justice, the court awarded the following damages against the Defendants:
1. Pain and suffering: Ksh.150,000 x 63 = Ksh. 9,450,000
2. Loss of expectation of life: Ksh. 200,000 x 63 = Ksh. 12,600,000
3. Loss of dependency: Ksh. 300,000 x 63 = Ksh. 18,900,000
Total: Ksh. 40,950,000
Additionally, the court awarded costs of the suit and interest on the damages from the date of judgment until full payment, holding the Defendants jointly and severally liable. This case serves as a stark reminder that negligence in ensuring the safety of children in educational institutions can have catastrophic consequences, and the law stands firmly on the side of justice for the bereaved families.
CONCLUSION AND RECOMMENDATIONS
Kenya’s recurrent school fire tragedies reveal a glaring gap between the protective legal frameworks in place and their actual implementation. The fires that claimed lives, such as the one at Hillside Endarasha Academy, reveals the failure of both national and county governments to enforce safety measures, despite the clear legal obligations enshrined in the Constitution, the Basic Education Act, and fire safety regulations. While laws like the Factories and Other Places of Work (Fire Risk Reduction) Rules 2007 and the Basic Education Act are designed to safeguard children’s lives, they are frequently disregarded, leaving schools dangerously unprepared for emergencies.
The lack of preparedness, insufficient fire-fighting equipment, poorly maintained dormitories, and slow response times by emergency services all amount to systemic negligence that jeopardizes the well-being of children, who have a constitutional right to a safe learning environment. Despite the painful lessons from past tragedies, there is little evidence to suggest that concrete steps have been taken to prevent future disasters, leaving parents, students, and Kenyans at large to ask: when will things change?
As Kenya grapples with the aftermath of these tragedies, justice for the families of the victims becomes paramount. As highlighted by cases like Daniel Kiamba Kimithi & 62 others v David Mutioso Kiilu & 4 others, families are entitled to compensation for the loss of their children due to negligence. However, compensation alone is not enough. There is an urgent need to translate legal protections into actionable and enforceable safety standards.
RECOMMENDATIONS
- Strengthen Enforcement of
Fire Safety Standards:
Both national and county governments must ensure strict compliance with existing fire safety regulations. School inspections should be regular, comprehensive, and conducted by qualified personnel. Schools that fail to meet the safety requirements, including fire extinguishers, outward-opening dormitory doors, and accessible fire assembly points, should face immediate penalties and closures until compliance is achieved. - Create and Implement a
School Safety Audit System:
The Ministry of Education should establish a national school safety audit system that assesses every school’s readiness to handle emergencies. This system should be linked to funding and licensing, with non-compliant schools denied access to government funding until they meet the safety standards. Transparency and accountability should be ensured by making audit results public. - Enhance Training for
Teachers and Students:
Fire preparedness is not just about infrastructure but also training. Schools should implement mandatory fire drills and emergency response training for both students and staff. Proper use of fire extinguishers and evacuation procedures should be ingrained in the school culture to ensure readiness in case of a disaster. - Allocate Adequate Resources
for Firefighting:
Governments must invest in equipping fire brigades with the necessary resources and infrastructure to respond promptly to emergencies. This includes ensuring every county has a fully operational fire department with enough personnel, equipment, and training to manage large-scale disasters. - Prioritize Mental Health
and Guidance Programs:
Arson, one of the leading causes of school fires, is often tied to underlying behavioral or mental health issues. Schools must strengthen their guidance and counseling departments to address student behavior and foster a supportive environment. This will reduce the likelihood of destructive actions like arson and help address the root causes of such behavior.
Thus, addressing school safety is not just about a matter of merely responding to emergencies, but rather a call for a systemic change. Kenya must deal with the root causes (lying in infrastructure, management or policy gaps), it can create a safe environment for students and the staff. In a nutshell, Narendra Modi, the 14th Prime Minister of India once said, “Good governance is not fire-fighting or crisis-management. Instead of opting for ad-hoc solutions, the need of the hour is to tackle the root cause of the problems.”[35]
REFERENCES
[1] Richard Kagoe, ‘Girls Boarding School Engulfed by Fire in Kenya’ (BBC News, 8 September 2024) <https://www.bbc.com/news/articles/cx2lzvkggero> accessed 23 September 2024
[2] Office of the Government Spokesperson, ‘Press Statement by the Government Spokesperson Hon. Sen. (Dr) Isaac Mwaura, CBS on the Fire Incident at Hillside Endarasha Academy Nyeri on Saturday, 7th September 2024 at 3:00PM’ (National Government Communication Centre, 7th September, 2024) <https://x.com/SpokespersonGoK/status/1832448014537126272> accessed 23 September 2024
[3] Richard Kagoe, ‘Girls Boarding School Engulfed by Fire in Kenya’ (BBC News, 8 September 2024) <https://www.bbc.com/news/articles/cx2lzvkggero> accessed 23 September 2024
[4] Citizen Reporter, ‘Ill-Fated Hillside Endarasha Academy Dormitory Housed 156 Students’ (Citizen Digital News, 6 September 2024) <https://www.citizen.digital/news/ill-fated-hillside-endarasha-academy-dormitory-housed-156-students-n349064> accessed 23 September 2024
[5] The Constitution of Kenya 2010, art 53
[6] Citizen Reporter, ‘Ill-Fated Hillside Endarasha Academy Dormitory Housed 156 Students’ (Citizen Digital News, 6 September 2024) <https://www.citizen.digital/news/ill-fated-hillside-endarasha-academy-dormitory-housed-156-students-n349064> accessed 23 September 2024
[7] Isaac Muasya, ‘Policy Brief: The Burning Question of School Fires in Kenya: The Unexplored Story’ (University of Nairobi Dean’s Research Committee) <https://edufoundations.uonbi.ac.ke/sites/edufoundations.uonbi.ac.ke/files/202104/Policy%20Brief%20edufoundations%20Dept.pdf> accessed 23 September 2024
[8] James Mbaka, ‘How Past School Fires Claimed Lives of Young Souls’ (The Star Kenya, 6 September 2024) <https://www.the-star.co.ke/news/realtime/2024-09-06-how-past-school-fires-claimed-lives-of-young-souls/> accessed 23 September 2024
[9] Dominic Wabala, ‘Kyanguli School Fire Tragedy that Claimed 67 Lives’ (The Standard Media, 2017) <https://www.standardmedia.co.ke/kenya/article/2001253987/kyanguli-school-fire-tragedy-that-claimed-67-lives> accessed 23 September 2024
[10] Ashley Lime, ‘Kenyan Schoolgirl Jailed Over Moi Girls Schools Fire Deaths’ (BBC News, 25 February 2022) <https://www.bbc.com/news/world-africa-60521995> accessed 23 September 2024
[11] Esther Nyambati and others, ‘Preparedness for Fire Outbreak in Boarding Secondary Schools in Nyamira County, Kenya’ (2020) 10 International Journal of Development Research
[12] The Judicial Commission Appointed to Inquire into Bombolulu Girls High School Fire Tragedy http://libraryir.parliament.go.ke/handle/123456789/12079 accessed 23 September 2024
[13] The Judicial Commission Appointed to Inquire into Bombolulu Girls High School Fire Tragedy http://libraryir.parliament.go.ke/handle/123456789/12079 accessed 23 September 2024
[14] The Judicial Commission Appointed to Inquire into Bombolulu Girls High School Fire Tragedy http://libraryir.parliament.go.ke/handle/123456789/12079 accessed 23 September 2024
[15] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[16] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[17] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[18] The Constitution of Kenya 2010, art 53
[19] The Constitution of Kenya 2010, art 43
[20] The Constitution of Kenya 2010, art 21(2)
[21] The Basic Education Act 2013, s 95(3)(c)
[22] Isaac Muasya, ‘Policy Brief: The Burning Question of School Fires in Kenya: The Unexplored Story’ (University of Nairobi Dean’s Research Committee) <https://edufoundations.uonbi.ac.ke/sites/edufoundations.uonbi.ac.ke/files/202104/Policy%20Brief%20edufoundations%20Dept.pdf> accessed 23 September 2024
[23] The Basic Education Act 2013, s 59
[24] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[25] UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, (UNDOC: A/RES/70/1, 21 October 2015) <https://www.refworld.org/legal/resolution/unga/2015/en/111816> accessed 29 September 2024
[26] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[27] Factories and other places of work (Fire Risk Reduction) Rules 2007, rule 30(1)
[28] Factories and other places of work (Fire Risk Reduction) Rules 2007, rule 30(2)(a)
[29] Factories and other places of work (Fire Risk Reduction) Rules 2007, rule 24(1)
[30] Sophia Dauda, Graham Billa and Anthony Sobie, ‘Assessing the Adequacy of the Emergency Assembly Points in Fuel Filling Stations in Ghana: The Perspective of the Public’, (2022) 10 The International Journal of Humanities & Social Studies
[31] Ministry of Education, Performance Audit Report on Fire Safety in Secondary Schools (Office of the Auditor General, 22 September 2020) <http://parliament.go.ke/sites/default/files/2020-10/Performance%20Audit%20Report%20on%20Fire%20Safety%20Preparedness%20in%20Secondary%20Schools%20by%20the%20Ministry%20of%20Education%20from%20the%20Auditor-%20General.pdf> accessed 23 September 2024
[32] Safety Standards Manual for Schools in Kenya, s 6.2
[33] The Ministry of Education Strategic Plan 2023-2027, p 79
[34] P.I (Suing as a next of kin of C.M (deceased) v Zena Roses Ltd & another (2015) eKLR.
[35] Segun Dipe, ‘Ekiti: From Paradise Lost to Paradise Regained’, (20 October 2019, Vanguard Nigeria) https://www.vanguardngr.com/2019/10/ekiti-from-paradise-lost-to-paradise-regained/ accessed 1 October 2024
