Kenya National Examinations Council Act

Section 1. Short title Section This Act may be cited as the Kenya National Examinations Council Act.

Section 2. Interpretation Section an examination paper;

Section 3. Establishment of the Council Section 3(1) There is established a council to be known as the Kenya National Examinations Council. Section 3(2)(a) suing and being sued; Section 3(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 3(2)(c) borrowing money or making investments; Section 3(2)(d) entering into contracts; and Section 3(2)(e) performing all other acts or things for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate. Section 3(3) The Council shall be the successor to the Council known as the Kenya National Examinations Council existing immediately before the commencement of this Act.

Section 4. Composition of the Council Section a Chairperson appointed by the President under section 5 ;

Section 5. Appointment and qualifications of Chairperson Section 5(1) The Chairperson shall be appointed by the President. Section 5(2)(a) holds at least a masters degree from a recognised university; Section 5(2)(b) has at least fifteen years experience in a senior position in the public service or as a practitioner in a relevant profession or industry; and Section 5(2)(c) satisfies the requirements of Chapter Six of the Constitution.

Section 6. Qualifications of members Section possess at least a first degree from a recognised university;

Section 7. Term of Office of Chairperson and members Section The Chairperson and the appointed members of the Council shall serve for a term of four years, and shall be eligible for re-appointment for one further term.

Section 8. Council may co-opt members Section 8(1) The Council may co-opt not more than two members in order to benefit from any special skills as may be necessary for the better carrying out of the functions of the Council. Section 8(2)(a) have no right to vote on any matter before the Council; Section 8(2)(b) serve for such period as the Council may determine.

Section 9. Vacation of office Section 9(1) A member of the Council, other than an ex officio member, may at any time resign from office, in the case of the Chairperson by notice in writing to the President, and in any other case to the Cabinet Secretary. Section 9(2)(a) has been absent from three consecutive meetings of the Council; Section 9(2)(b) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings; Section 9(2)(c) is convicted of an offence involving dishonesty or fraud; Section 9(2)(d) is adjudged bankrupt or enters into a composition scheme or arrangement with his or her creditors; Section 9(2)(e) is incapacitated by physical or mental illness or is deemed otherwise unfit to discharge his or her duties as a member of the Council; or Section 9(2)(f) fails to comply with the provisions of this Act relating to disclosure.

Section 10. Functions of the Council Section 10(1)(a) set and maintain examination standards, conduct public academic, technical and other national examinations within Kenya at basic and tertiary levels; Section 10(1)(b) award certificates or diplomas to candidates in such examinations; such certificates or diplomas, shall not be withheld from the candidate by any person or institution; Section 10(1)(c) confirm authenticity of certificates or diplomas issued by the Council upon request by the government, public institutions, learning institutions, employers and other interested parties; Section 10(1)(d) issue replacement certificates or diplomas to candidates or diplomas to candidates in such examinations upon acceptable proof of loss of the original; Section 10(1)(e) undertake research on educational assessment; Section 10(1)(f) advise 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; Section 10(1)(g) promote the international recognition of qualifications conferred by the Council; Section 10(1)(h) advise...

Section 11. Powers of the Council Section enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Council is established;

Section 12. Conduct of business and affairs of the Council Section 12(1) The conduct and regulation of the business and affairs of the Council shall be as provided in the Schedule. Section 12(2) Except as provided in the Schedule, the Council may regulate its own procedure.

Section 13. Committees of the Council and delegation Section 13(1) The Council may establish such committees as it may deem necessary for the performance of its functions. Section 13(2) The Council may either generally or in any particular case, delegate to any committee or to any member, officer, employee or agent of the Council, the exercise of any of the powers or the performance of any of the functions of the Council under this Act.

Section 14. Chief Executive Officer Section 14(1) There shall be a Chief Executive Officer of the Council who shall be appointed by the Council through a competitive recruitment process. Section 14(2) The Chief Executive Officer shall hold office for a period of five years on such terms and conditions of employment as the Council, in consultation with the Salaries and Remuneration Commission may determine, and shall be eligible for re-appointment for one further term. Section 14(3) The Chief Executive Officer shall be an ex officio member of the Council and shall have no right to vote at any meeting of the Council. Section 14(4)(a) responsible for the day to day management of the Council; Section 14(4)(b) responsible for the affairs and transactions of the Council, the exercise, discharge and performance of its objectives and functions, and the general administration of the Council; Section 14(4)(c) the Secretary of the Council.

Section 15. Qualifications of Chief Executive Officer Section at least a Masters' Degree from a recognised university, in education or other field relevant to the mandate of the Council;

Section 16. Removal of Chief Executive Officer Section 16(1)(a) inability to perform functions of the office arising out of physical or mental incapacity; Section 16(1)(b) gross misconduct; Section 16(1)(c) bankruptcy; or Section 16(1)(d) incompetence. Section 16(2)(a) may be suspended from office by the Council; Section 16(2)(b) shall be informed in writing of the reasons for the intended removal; and Section 16(2)(c) shall be given an opportunity to put in a defence against any such allegations.

Section 17. Staff of the Council Section The Council may appoint such officers, agents and other staff as are necessary for the proper and efficient discharge of its functions under this Act, and upon such terms and conditions of service as the Council may determine.

Section 18. The common seal of the Council Section 18(1) The common seal of the Council shall be kept in the custody of the Chief Executive Officer, and shall not be used except upon the order of the Council. Section 18(2) The common seal of the Council, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless the contrary is proved, any necessary order or authorisation by the Council under this section shall be presumed to have been duly given. Section 18(3) The common seal of the Council shall be authenticated by the signature of the Chairperson of the Council and the Chief Executive Officer: Provided that the Council shall, in the absence of either the Chairperson or the Chief Executive Officer, nominate one member of the Council to authenticate the seal of the Council, in any particular matter, on behalf of either the Chairperson or the Chief Executive Officer, as the case may be.

Section 19. Protection from personal liability Section No member, officer, agent or staff of the Council shall be personally liable for any act or omission done or omitted in good faith in carrying out any of the functions of the Council under this Act.

Section 20. Liability for damages Section The provisions of section 19 shall not relieve the Council of the liability to pay compensation or damages to any person for any injury caused by the exercise of any power conferred by this Act.

Section 10A. Ranking of institutions of basic education Section 10A(1)(a) academic performance in national examinations; and Section 10A(1)(b) performance in co-curricular activities. Section 10A(2)(a) the Kenya National Examination Council shall submit to the Cabinet Secretary, data regarding the academic performance, in national examinations, of institutions of basic education that offer primary or secondary education; and Section 10A(2)(b) every County Director of Education shall submit the data regarding the performance, in co-curricular activities, of institutions of basic Education that offer primary or secondary education to the Director-General for transmission to the Cabinet Secretary. Section 10A(3) The Cabinet Secretary shall, as soon as practicable after receipt of the data referred under subsection (2), announce and publish the results and ranks of institutions as prescribed in subsection (1). Section 10A(4) The Cabinet Secretary may make rules for the purpose of ranking of institutions of basic education that offer primary or secondary education. Section 10A(5)(a) the form and method of categorization of institutions of basic education that offer primary or secondary...

Section 21. Funds of the Council Section 21(1)(a) such moneys or assets as may accrue to or vest in the Council in the course of the exercise of its powers or the performance of its functions under this Act; Section 21(1)(b) such moneys as may be payable to the Council pursuant to this Act or any other written law; Section 21(1)(c) such gifts as may be given to the Council; Section 21(1)(d) such moneys as may be appropriated by Parliament for the purposes of the Council; and Section 21(1)(e) all moneys from any other source provided or donated to the Council. Section 21(2) All the funds of the Council and the balance at the end of each financial year shall be retained by the Council for the purposes for which the Council is established and shall, for that purpose, establish a reserve account.

Section 22. Financial year Section The financial year of the Council shall be the period of twelve months commencing on the first day of July and ending on the thirtieth day of June in each year.

Section 23. Annual estimates Section 23(1) At least three months before the commencement of each financial year, the Chief Executive Officer shall prepare estimates of the revenue and expenditure of the Council for that year. Section 23(2)(a) payment of the salaries, allowances and other charges in respect of members and staff of the Council; Section 23(2)(b) payment of pensions, gratuities and other charges in respect of members and staff of the Council; Section 23(2)(c) procurement of goods and services by the Council; Section 23(2)(d) proper maintenance of the buildings and grounds of the Council; Section 23(2)(e) maintenance, repair and replacement of the equipment and other property of the Council; and Section 23(2)(f) creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Council may deem appropriate. Section 23(3) The annual estimates shall be approved by the Council before the commencement of the financial year to which they relate and, once approved, the sum provided in the estimates shall be submitted to the Cabinet Secretary fo...

Section 24. Accounts and audit Section 24(1) The Council shall cause to be kept proper books and records of accounts of the income, expenditure, liabilities and assets of the Council. Section 24(2)(a) a statement of the comprehensive income and expenditure of the Council during that year; and Section 24(2)(b) the financial position of the Council on the last day of that year. Section 24(3) The accounts of the Council shall be audited and reported upon in accordance with the provisions of the Public Audit Act (Cap. 412B).

Section 25. Investment of funds Section 25(1) The Council may invest any of its funds in securities in which for the time being trustees may by law invest trust funds, or in any other securities or banks which the National Treasury may, from time to time, approve for that purpose. Section 25(2) The Council may place on deposit, with such bank as it may determine, any moneys not immediately required for the purpose of the Council.

Section 26. Oath of secrecy Section 26(1) The Council may require an officer, agent or staff performing the work of the Council or being engaged in the conduct of any examination or the handling of any examination paper or material, to take and subscribe such oath of secrecy as the Council may prescribe. Section 26(2) An officer, agent or staff who, having complied with the provisions of subsection (1), does or omits to do any act in contravention of the oath of secrecy, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years or a fine not exceeding one million shillings, or to both.

Section 27. Unauthorised possession of examination paper, material or information Section 27(1) A person who, before or during an examination, has in his or her possession or under his or her control any examination paper or any part thereof, or any material or information purporting to relate to the contents of any paper or material for that examination, without lawful excuse, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding ten years, or a fine not exceeding two million shillings, or to both. Section 27(2) For purposes of proving an offence under subsection (1), it shall not be necessary for the prosecution to prove that the paper, material or information for the examination is real or false. Section 27(3) A person who, negligently or wilfully, assists or causes any examination candidate to obtain or gain unauthorised possession of any examination paper, material or information or any part thereof, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding ten years, or a fine not exceeding two million shillings, or to both.

Section 28. Examination malpractices Section before or during an examination, gives an examination paper or material to a candidate or another person without lawful authority;

Section 29. Loss or misuse of examination paper or material Section A person who, having in his or her possession or under his or her control any examination paper, material or any information relating thereto, negligently or wilfully loses such examination paper, material or such information, or uses such examination paper, material or such information in a manner prejudicial to the proper and fair conduct of any examination, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years, or a fine not exceeding one million shillings, or to both.

Section 30. Damage or destruction to examination material or facilities Section A person, who wilfully and maliciously damages examination material or facilities, or any evidence that could have led to a conviction under this Act, commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding five years, or a fine not exceeding five million shillings, or to both.

Section 31. Impersonation Section 31(1)(a) is not registered to take a particular examination but, with intent to impersonate, presents or attempts to present himself or herself to take the part of a candidate; Section 31(1)(b) registers for an examination using a false name or identity; or Section 31(1)(c) falsely uses a certificate, testimonial, signature, photograph or a document of some other person to represent that other person, Section 31(2) A person who is registered to take a particular examination but knowingly allows another person to take that examination on his or her behalf commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding two million shillings and may in addition to this penalty, be prohibited from taking an examination for a period not exceeding three years immediately after the commission of the offence.

Section 32. Copying at an examination Section copies from the script of another candidate;

Section 33. Possession of offensive material and disturbances at examinations Section 33(1)(a) has in his or her possession any offensive weapon or other material or uses any offensive weapon or other material on any other person; or Section 33(1)(b) acts or incites any other person to act in a disorderly manner, Section 33(2) If the offender under this section is a candidate, the Council shall, in addition to the penalty prescribed in subsection (1), cancel the entire results of the candidate and prohibit the candidate from taking an examination for a period of not exceeding three years immediately after the commission of the offence.

Section 34. Presentation of forged certificate, etc Section a forged certificate or diploma, result slips or statement of results; or

Section 35. Counterfeiting of certificates and diplomas Section A person who counterfeits, for commercial purposes, a certificate or diploma issued by the Council commits an offence and is liable, upon conviction, to imprisonment for a term not exceeding ten years, or a fine not exceeding ten million shillings, or to both.

Section 36. Disclosure of interest in examination or examination paper Section 36(1) If a person engaged in the conduct of examinations or performing work connected with examinations is directly or indirectly interested in a private capacity in an examination or in any examination paper or information relating thereto or if the spouse, a child or parent of such person is a candidate in such examination, that person shall, as soon as practicable before the commencement of his or her duties in respect of such examination, disclose such interest to the Council or its nominee and he or she shall, unless the Council otherwise directs, cease to perform such duties. Section 36(2)(a) if the person is a staff of the Council, be subject to the Council’s disciplinary process; or Section 36(2)(b) if the person is an independent contractor, be liable to have the contract with the Council vitiated.

Section 37. Request for information Section 37(1) The Chief Executive Officer, or an officer deputed in that behalf by the Chief Executive Officer, may, in writing, request any person to furnish the Council with such information or to produce such documents or records as he or she deems necessary and relevant for the performance of the functions of the Council. Section 37(2)(a) refuses or fails without reasonable cause, to comply with a request under subsection (1); or Section 37(2)(b) in furnishing such information, makes a statement which he or she knows to be false,

Section 38. Council to keep information confidential Section The Council shall keep information acquired under section 37 for its purposes confidential, and shall disclose such information only to the extent it considers necessary for the proper performance of its functions.

Section 39. Improper disclosure of information Section 39(1)(a) in the course of his or her duties under this Act; or Section 39(1)(b) with the written consent of the Council. Section 39(2) A person who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

Section 40. Aiding and abetment of offence Section A person who aids, abets, induces, incites or does an act in a manner that facilitates the commission of an offence under this Act, commits an offence and is liable, upon conviction, to the penalty prescribed under the respective section in relation to that offence.

Section 40A. Offences by examination officers Section A member, officer, agent or staff of the Council whose omission or commission leads to an examination irregularity commits an offence and is liable upon conviction, to imprisonment for a term not exceeding five years or a fine not exceeding five million shillings, or both. [Act No. 27 of 2017 , s. 3.]

Section 40B. National Examinations Appeals Tribunal Section 40B(1) There is established a Tribunal to be known as the National Examinations Appeals Tribunal. Section 40B(2)(a) a Chairperson, nominated by the Judicial Service Commission, who shall be an advocate of the High Court of Kenya of at least fifteen years standing; Section 40B(2)(b) two persons nominated jointly by the associations for the time being representing headteachers and principals in the country; Section 40B(2)(c) one person having at least ten years' experience in marking examinations; and Section 40B(2)(d) one person nominated by the Technical and Vocational Education and Training Authority. Section 40B(3) The nominating bodies under subsection (2) shall nominate and submit the names of at least two nominees, being one man and one woman, to the Cabinet Secretary for appointment. Section 40B(4) The Cabinet Secretary shall appoint the members of the tribunal by notice in the Gazette . Section 40B(5) A person shall not be eligible for appointment under subsection (4) if at the time of appointment the person is an employee of the Council or was an employee of the Council five years before the date of appointment. Se...

Section 40C. Tenure Section 40C(1) The Chairperson of the Tribunal shall serve for a term of four years and shall be eligible for reappointment for one further term. Section 40C(2) A Member of the Tribunal shall serve for a term of three years and shall be eligible for reappointment for one further term of three years. [Act No. 27 of 2017 , s. 4.]

Section 40D. Remuneration Section The members of the Tribunal shall be paid such allowances as the Cabinet Secretary may, in consultation with the Salaries and Remuneration Commission, determine. [Act No. 27 of 2017 , s. 4.]

Section 40E. Vacancy in office of member Section resigns by notice in writing addressed to the Cabinet Secretary;

Section 40F. Sittings of the Tribunal Section The Tribunal shall be ad hoc and shall sit at such times and in such places as the Tribunal may appoint. [Act No. 27 of 2017 , s. 4.]

Section 40G. Quorum Section 40G(1) The Tribunal shall be properly constituted if at least three of the members of the Tribunal are present. Section 40G(2) The Chairperson shall preside over all the meetings of the Tribunal and in the absence of the Chairperson the members shall elect one member from amongst themselves to chair the Tribunal. [Act No. 27 of 2017 , s. 4.]

Section 40H. Jurisdiction to hear appeals Section The Tribunal shall consider all appeals made against a decision of the Council to withhold, nullify or cancel examinations prepared and administered by the Council. [Act No. 27 of 2017 , s. 4.]

Section 40I. Secretariat of the Tribunal Section 40I(1) The Cabinet Secretary shall designate a public officer serving in the Ministry responsible for matters relating to education to be the secretary to the Tribunal. Section 40I(2) The Cabinet Secretary may, in consultation with the secretary, designate such other public officers as may be necessary to assist the Tribunal in the discharge its functions under this Act. [Act No. 27 of 2017 , s. 4.]