Kenya National Examinations Council Act

This Act may be cited as the Kenya National Examinations Council Act.

Defines the term “Section” as an examination paper.

Section 10 lists the Council's functions (setting and conducting examinations, awarding and replacing certificates, confirming authenticity, research, advice, promoting recognition, and incidental actions) and its rule-making and administrative powers including withholding results and appointing officers.

Requires the Kenya National Examination Council and County Directors of Education to submit academic and co-curricular performance data of primary and secondary institutions; requires the Cabinet Secretary to publish ranks and results and empowers the Cabinet Secretary to make rules for ranking.

The Council has the power to enter into association with other bodies or organizations within or outside Kenya to further its purposes.

Section 12(1) states that the conduct and regulation of the Council's business shall be as provided in the Schedule. Section 12(2) states that, except as provided in the Schedule, the Council may regulate its own procedure.

The Council may establish committees it deems necessary for performing its functions, and may delegate powers or functions to committees or to members, officers, employees or agents.

The Council must appoint a Chief Executive Officer via competitive recruitment; the CEO serves five years, may be re-appointed once, is an ex officio (non‑voting) member, and has specified management responsibilities and is Secretary of the Council.

The Chief Executive Officer must have at least a Masters' Degree from a recognised university, in education or another field relevant to the mandate of the Council.

The Council may suspend the Chief Executive Officer; the section lists grounds for removal and procedural protections including being informed in writing and given an opportunity to defend.

The Council may appoint officers, agents and other staff as needed for discharging its functions and on terms and conditions it determines.

The common seal must be kept in the custody of the Chief Executive Officer; the seal must be authenticated by signature of the Chairperson and the Chief Executive Officer, and the Council must nominate a member to authenticate the seal if either office-holder is absent. Documents with the affixed seal are to be judicially and officially noticed, and the seal is not to be used except on the order of the Council.

Members, officers, agents and staff of the Council are not personally liable for acts or omissions done in good faith while performing Council functions under this Act.

The Council remains liable to pay compensation or damages to any person for injury caused by the exercise of any power conferred by this Act.

Establishes the Kenya National Examinations Council and lists powers including suing and being sued; acquiring and disposing of property; borrowing and investing; entering into contracts; and performing other acts for its functions. It also states the Council is the successor to the prior Council.

The Council includes a Chairperson appointed by the President under section 5.

The President must appoint the Chairperson.

Members must possess at least a first degree from a recognised university.

The Chairperson and the appointed members of the Council must serve for a four-year term; they are entitled to be re-appointed for one further term.

The Council may co-opt up to two members for special skills; co-opted members have no right to vote and serve for a period the Council determines.

Members of the Council (except ex officio members) may resign from office at any time; the Chairperson must give written notice to the President, other members to the Cabinet Secretary.

The Council must retain all its funds and year-end balances for its established purposes and must establish a reserve account.

The Council's financial year is the twelve‑month period starting 1 July and ending 30 June each year.

The Chief Executive Officer must prepare annual revenue and expenditure estimates at least three months before each financial year; the Council must approve the estimates before the financial year starts.

The Council must keep proper books and records of its income, expenditure, liabilities and assets.

The Council may invest its funds in approved securities or banks and may place moneys not immediately required on deposit with a bank it determines.

The Council may require officers, agents or staff involved in Council work or examinations to take an oath of secrecy; those who breach the oath commit an offence punishable by up to five years' imprisonment or a fine not exceeding one million shillings, or both.

It is an offence for a person to have or control examination papers, material or information relating to an examination without lawful excuse; on conviction the person may be imprisoned for up to ten years, fined up to two million shillings, or both.

Prohibits giving an examination paper or material to a candidate or another person without lawful authority before or during an examination.

A person who negligently or wilfully loses or uses examination papers, materials or related information in a way that prejudices an examination commits an offence and on conviction faces imprisonment up to five years, a fine up to one million shillings, or both.

A person who wilfully and maliciously damages examination materials, facilities, or related evidence commits an offence and may be punished on conviction by up to five years' imprisonment, a fine of up to five million shillings, or both.

Making, aiding, or allowing impersonation in connection with an examination is an offence; penalties include up to two years' imprisonment or a fine up to two million shillings and possible prohibition from taking an examination for up to three years.

Copying from another candidate's script at an examination.

Possessing or using offensive weapons or inciting disorder is prohibited; if the offender is a candidate the Council must cancel their results and bar them from examinations for up to three years.

Section 34. Presentation of forged certificate, etc

Anyone who counterfeits a Council-issued certificate or diploma for commercial purposes is guilty of an offence and may be punished by up to ten years' imprisonment, a fine of up to ten million shillings, or both.

People involved in conducting examinations or related work must disclose any private interest in the examination (including if a close relative is a candidate) to the Council or its nominee before starting duties, and must stop performing those duties unless the Council directs otherwise; staff may face disciplinary action and contractors may have contracts vitiated.

The Chief Executive Officer (or an officer deputed by the CEO) may, in writing, request any person to provide information or produce documents relevant to the Council's functions; any person who refuses without reasonable cause to comply or who knowingly gives false information is addressed by subsection (2).

The Council must keep information acquired under section 37 confidential and may disclose it only as necessary for performing its functions.

Improper disclosure contrary to subsection (1) is an offence punishable by a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years, or both.

A person who aids, abets, induces, incites or otherwise facilitates the commission of an offence under this Act commits an offence and, if convicted, is liable to the penalty prescribed in the relevant section.

Members, officers, agents or staff of the Council who, by omission or commission, cause an examination irregularity commit an offence and on conviction may face up to five years imprisonment or a fine not exceeding five million shillings, or both.

Establishes the National Examinations Appeals Tribunal and sets out its composition, nomination and appointment process, eligibility restrictions, and some member qualifications.

The Chairperson serves for four years (eligible for one further term); Members serve for three years (eligible for one further three-year term).

Members of the Tribunal must be paid allowances as determined by the Cabinet Secretary in consultation with the Salaries and Remuneration Commission.

Member resigns by notice in writing addressed to the Cabinet Secretary.

The Tribunal must be ad hoc and must sit at such times and in such places as it appoints.

The Tribunal is properly constituted when at least three members are present; the Chairperson shall preside at meetings, and if absent the members elect one of themselves to chair.

The Tribunal must consider all appeals against Council decisions to withhold, nullify or cancel examinations prepared and administered by the Council.

The Cabinet Secretary must appoint a public officer in the Ministry responsible for education as secretary to the Tribunal; the Cabinet Secretary may, in consultation with that secretary, appoint other public officers as necessary to assist the Tribunal.

Persons or institutions aggrieved by the Council's decision to withhold or cancel results may appeal to the National Examinations Appeals Tribunal; appeals can be made via the County Director; the County Director must forward appeals within five days; parents/guardians must apply for minors; parties may appear or be represented.

The Tribunal must transmit applications to the Council within seven days, act without undue regard to technicalities, is not strictly bound by rules of evidence, and must determine primary-school appeals within 30 days and secondary-school appeals within 60 days of receipt.

The Tribunal has the power to summon witnesses, take evidence on oath or affirmation, and order production of documents.

The Tribunal may confirm, set aside or vary a Council decision or make any other appropriate order, and must communicate its decision in writing to the parties within seven days from the date of the decision.

The Tribunal must issue, on application by the person in whose favour damages or costs are awarded, a certificate stating the amount; that certificate may be filed in the High Court and, when filed, is deemed a High Court decree and may be executed.

Appeals to the High Court are available where the decision of the Tribunal was contrary to law or to some usage having the force of law.

The Tribunal must make rules within ninety days of the Act coming into effect to regulate its practice and procedure; those Rules must not require payment of fees by parties to an appeal and must prescribe required forms and anything else required under this Part.

The constitutional right to strike is limited to the nature and extent set out in subsection (2).

The right of access to information under Article 35 is limited under Article 24 to the nature and extent set out in subsection (2).

The Council may require a State organ or public entity to provide facilities and the services of its employees to assist the Council, and the State organ or public entity must provide them.

The Council may require the Teachers Service Commission to provide teachers' services temporarily to assist in administering examinations; the Council and the Commission must develop a common code of conduct; infringements by those employed under the assistance provision are punishable by the Commission.

The Council may suspend or nullify examinations or results and conduct investigations, and must withhold results pending investigation; it may call for information and documents.

If more than two‑thirds of an institution's candidates are found to have acted contrary to the Act, the Council must prohibit that institution from organizing, supervising or acting as the Council's agent in examinations for a period determined by the Council.

The Council must, within three months after the end of each financial year, prepare and submit to the Cabinet Secretary a report on its operations and activities for the immediately preceding financial year.

The Council may make rules to carry into effect the Act, including rules on listed matters such as conduct of examinations, staff terms and discipline, financial procedures, and examination fees.

The former Council must remain in office for no more than two months from the effective date while appointments are made, and while serving under that continuation it must not make appointments to Council offices.

On the effective date, all funds, assets and other property formerly vested in the former Council vest in the Council; and all rights, powers and liabilities formerly vested in, imposed on or enforceable against the former Council vest in, are imposed on, or are enforceable against the Council.

Any reference in any written law or in any document or instrument to the former Council shall, on and after the effective date, be construed to be a reference to the Council.

Proceedings that involved the former Council and were pending immediately before the effective date must continue with the Council in place of the former Council.

Subsection (1) deems the former Council's annual estimates to be the Council's estimates for the remainder of that financial year; subsection (2) allows the Council to vary those estimates in a manner approved by the Cabinet Secretary.

Agreements, deeds, bonds or other instruments involving the former Council are to have effect as if the Council were the party or affected instead of the former Council for anything to be done on or after the effective date.

Administrative decisions made by the former Council or by the Minister that were in force immediately before the effective date continue to have force after that date as if they were directions made by the Council or the Cabinet Secretary under this Act.

Staff and officers of the former Council who were in office immediately before the effective date become staff or officers of the new Council (or Chief Executive Officer) on that date for any unexpired term; those who have served that term are eligible for re-appointment under this Act.