[2022] KEHC 10286 (KLR)

Ang'awa v Cabinet Secretary responsible for matters relating to Basic Educatio & 7 others; Kenya Private Schools Association & 4 others (Interested Parties) (Petition E371 of 2021) [2022] KEHC 10286 (KLR) (Constitutional and Human Rights) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10286 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E371 of 2021

HI Ong'udi, AC Mrima & AK Ndung'u, JJ

June 9, 2022

Between

Esther Awour Adero Ang'awa

Petitioner

and

Cabinet Secretary responsible for matters relating to Basic Education

1st Respondent

Kenya Institute of Curriculum Development

2nd Respondent

Kenya National Examinations Council

3rd Respondent

Teachers Service Commission

4th Respondent

Kenya National Union of Teachers

5th Respondent

National Assembly

6th Respondent

Fred Okengo Matiang'I

7th Respondent

George Albert Omore Magoha

8th Respondent

and

Kenya Private Schools Association

Interested Party

Kenya Primary Schools Head Teachers

Interested Party

Kenya Union of Post Primary Education Teachers

Interested Party

National Parents Association

Interested Party

Katiba Institute

Interested Party

Ruling

1. This ruling is in respect of the Notice of Motion dated April 19, 2022 filed by Havi & Company advocates for the Petitioner under Articles 22, 23 and 165 (4) of the Constitution and Rules 5 and 27 ofthe Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013.

2. The application seeks the following orders:i.Spent:ii.Esther Awour Adero Ang'awa be substituted with Nelson Andayi Havi as the petitioner in the petition herein:iii.The pleadings, proceedings and all documents filed herein be amended to indicate Nelson Andayi Havi as the petitioner: andiv.The costs of this application be provided for.

3. The application is founded on the grounds that:i.The petition was filed in the name of Esther Awour Adero Ang'awa, a person acting in public interest.ii.The petitioner is no longer interested in pursuing the petition.iii.It is just and proper that the petitioner be substituted so that the public interest sought in the petition be pursued to completion.

The Applicant's Case 4. The application is premised on Mr Havi's sworn affidavit of even date in which he avers that the Petition was filed in the name of the Petitioner acting in the public interest upon request by members of the public to him (applicant) to pursue the matter on their behalf.

5. He deposes that the petitioner informed him that she was no longer interested in pursuing the petition because she has been negatively profiled by State and Governmental Agencies. In view of this she is apprehensive that continuation of the petition in her name has and will continue prejudicing her and the education of her child.

6. Owing to this, the applicant deposes that it is just and proper that the petitioner be substituted with him so that he may prosecute the petition in his name on behalf of the public.

The Response The 4th respondent's response 7. In opposition to the application, the 4th respondent filed its grounds of opposition dated April 22, 2022 as follows:i.The application has no merit, is bad in law, is misconceived, fatally defective and ought to be struck out.ii.The application is an afterthought, non-starter, an Utter abuse of the court process and a deliberate attempt by the applicant to delay the matter after failing to comply with the orders and directions of the Court hence offending the requirement of timely disposal of proceedings.iii.The applicant has failed to adduce any sufficient, compelling and reasonable grounds to support his application and the petitioner has not brought any evidence to support her unsubstantiated allegations.iv.The petition being time conscious, the applicant herein is guilty of unreasonable delay and is not entitled to prayers sought.v.That it is likely to suffer irreparable loss, damage and injustice should the application be granted.

The 3 Interested party's response 8. Similarly, the 3rd interested party in response filed the following grounds of opposition dated April 25, 2022:i.The application is totally misconceived, fatally defective, bad in law, in substance, and aimed at wasting the Court's precious time.ii.The applicant has not met the threshold for substitution of a party in a suit as laid out in Rule 5(c) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. iii.The application does not disclose any proof of the grounds relied upon that the petitioner has been negatively profiled by the Government. In view of this there is nothing to satisfy the Court that the application is merited yet full disclosure must be linked to fair presentation.iv.The application is brought under Rule 27 of the Mutunga Rules which provides for withdrawal of a petition. Considering this, it is not clear whether the petitioner in addition to substitution also wants to withdraw the petition or not.v.It seems apparent that the petitioner and/or her advocate are wasting the Court's time with this run-around because they had failed to meet the timelines directed by Court on the submissions.vi.The application is therefore incurably defective for want of merit and ultimately amounts to abuse of the Court process and resources.

Other parties’ responses 9. The other parties made their reply through oral submissions in open Court on April 25, 2022 which was the scheduled hearing date for the petition.

10. To begin with, Mr Bita for the 1st, 2nd and 3rd respondents argued that in view of the petitioner's averment, the Petition ought to be dismissed for want of prosecution.

11. The 4th respondent maintained its position as spelt out in its grounds of opposition. M/S Musundi for the 4th respondent noted that the petition had not been filed by mistake as provided for in Rule 5 of the Mutunga Rules. For this reason, the sought substitution did not fall under this category. As a consequence, Counsel argued that the petition ought to be withdrawn under Rule 27 of the Mutunga Rules.

12. Mr Mbaluto for the 5th respondent observed that the petition did not reveal in its content that it had been brought in public interest. Counsel argued that Rule 5 of the Mutunga Rules was clear on the rule of substitution and that Rule 27 of the Mutunga Rules as invoked by the applicant does not involve substitution.

13. M/s Otieno for the 6th respondent concurred with the views of her fellow Counsel.

14. Mr Anyuol who held brief for Mr Ngatia SC for the 7th respondent likewise emphasized that the petition had been filed in the petitioner's personal capacity on facts known to her. In view of this Counsel contended that the petition ought to be dismissed and the applicant files a new petition in his own name.

15. Mr Murgor for the 8th respondent submitted that the application sought to introduce a new dimension as the issue of public interest had never been raised in the petition. Additionally, he noted that the application did not contain the petitioner's affidavit and neither did the applicant disclose his relationship with the child to justify his taking over the petition. He concluded that the application ought to be dismissed with costs to the respondents.

16. The 1st interested party was not represented on the material day.

17. Mr Wamweya for the 2nd interested party in agreement with the respondents submitted that the applicant had not disclosed who the public were in this matter as alleged. Additionally, that the petitioner had not filed any affidavit in the application.

18. M/s Okello for the 3rd interested party maintained its position in its grounds of opposition stating that the petitioner had not proven that she had been profiled. Counsel argued that the application was a waste of the Court's time and resources and so ought to be dismissed.

19. The 4th and 5th interested parties were not opposed to the application. It is submitted by M/S Ochieng & M/s Muthemu, counsel for the 4th and 5th Interested parties respectively that the petition was in public interest. Furthermore, that the dictates of Article 50 and 159 of the Constitution allowed the substitution of the petitioner.

Analysis and Determination. 20. We have carefully considered the application, the responses thereto and the rival submissions on record. We have applied our minds to the applicable law. Gleaned therefrom, the issue for determination is whether the applicant has met the legal threshold for substitution as the Petitioner in place of Esther Awour Adero Ang’awa in this matter.

21. The procedural law on constitutional petitions is established under the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013 also known as the Mutunga Rules. The law of substitution of a party under Rule 5(c) provides as follows:“Addition, joinder, substitution and striking out of parties. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties - (c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.”

22. The respondents and the 1st, 2nd and 3rd interested parties in their arguments correctly inferred that the Mutunga Rules only speak to substitution of a party where the petition was instituted in the name of the wrong petitioner, or a mistake made in good faith. The Rules are however silent on other circumstances under which the petitioner can be substituted such as that raised by the applicant.

23. It is worthy to note that where the Mutunga Rules are silent on a matter the Courts have on numerous occasions pronounced that the Civil Procedure Rules can be appropriately invoked since the proceedings also bear a civil nature. The Court of Appeal observed this in the case of Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR where the court cited the case of Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others [2011] eKLR with approval as follows:“.....ln as much as the Constitutional Petition is a special jurisdiction, it is in the nature of civil proceedings. In the absence of rules made thereunder, the procedure for handling such a petition must be akin to civil proceedings..."

24. Likewise, the Court in the case of Vallerie Namtilu Wafula & Another v Kenya National Union of Teachers (Knut) & 2 Others [20121 eKLR held as follows:“… Even prior to the promulgation of the current Constitution the relevance of the Civil Procedure Rules was considered in Meme v Republic [2004] EA 124: [2004] KLR 637, in which Rawal, J (as she then was), Njagi, J & Ojwang' AJ (as he then was) held that at a very basic level the Court is empowered to draw from the Civil Procedure Rules in its exercise of powers under the Constitution of Kenya (Protection of Fundamental Right and Freedoms of the Individual) Practise and Procedure Rules and by virtue of Order 1 Rule 10(2). This decision should put the second respondent's position on the applicability of Civil Procedure Rules to Constitutional Petitions to rest."

25. It is accordingly prudent to examine the Civil Procedure Rules to establish the other circumstances under which a petitioner can be substituted. In this regard, Order 1 Rule 1O of the Civil Procedure Rules, 2010 provides as follows:“Substitution and addition of parties(1)Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.(3)No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent in writing thereto.(4)Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendants. "

26. Our understanding of the law on substitution of a Petitioner or Plaintiff as stipulated in the Mutunga Rules and Civil Procedure Rules is that, the decision is made in the Court's discretion as it deems fitting in the circumstances of the case.

27. Ordinarily the most common substitutions witnessed in our jurisdiction are those occasioned by death. In such circumstances the legal representative is the one deemed in law to have the locus standi to substitute the deceased in the action as affirmed by the Court of Appeal in the case of Joseph Njogu Njoya v Lucy Njeri Nioqu [2016] eKLR.

28. We readily acknowledge that despite the application being premised on rule 5 of the Constitution of Kenya (protection of rights and fundamental freedom) Practice and procedure rules, 2013, there is no plea before the court that the Petition herein was filed in the name of the wrong person or that it is doubtful that it was filed in the name of the right petitioner. It is not claimed that the petition was instituted through a mistake. The application therefore does not find express support from that provision. Does this necessarily render the application fatal? We think not.

29. Rule 3 of theMutunga Rules sets out the overriding objective of the Rules to be ‘to facilitate access to justice for all persons as required under Article 48 of the Constitution’. Rule (3) provides that the rules shall be interpreted in accordance with Article 259 (1) of the constitution and shall be applied with a view to advancing and realizing-(a) rights and fundamental freedoms enshrined in the Bill of Rights; and (b) values and principles in the constitution. Likewise, Rule 3(8) affirms that 'Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

30. The essence of Rules of procedure such as substitution is to facilitate access to justice without undue regard for procedural technicalities. The dictates of Article 159 (d) of the constitution allow the court a wide wriggle room to administer justice without the unnecessary shackles of procedural technicalities. This facilitates the fundamental duty of the court which is to do justice between the parties.

31. The Legal Information Institution on its Wex dictionary defines substitution of parties as the replacement of one of the parties in a lawsuit because of events that prevent the party from continuing with the trial. The Court in the persuasive authority of JM Miller v Bank of America National Trust And Savings Association 52 Cal App 2d 512 [1942] California Court of Appeals observed as follows:“The purpose of a substitution of parties to an action, in the event of death or the transfer of an interest, is that there may be some individual or entity to represent the transferred interest during the continuation of the litigation... "

32. The mainstay of the opposition to the application for substitution in our instant Petition is that the Petitioner herein is seeking to enforce personal rights of her child and that there was no public interest element in the petition. We have considered this argument. Firstly, it is our view that the nature of a petition and whether it has elements of public interest can be discerned from the pleadings and reliefs sought without necessarily having a statement that the petition is brought in public interest.

33. Perceptibly, we find it judicious to outline the reliefs sought by the petitioner in the petition dated September 16, 2021 as a useful guide on the nature of the Petition. The petition seeks the following orders:(a)A declaration be and is hereby made that the 1st, 2nd, 3rd and 4th Respondents acted in contravention of Section 41 of the Basic Education Act No 4 of 2013 in purporting to overhaul and replace the system and structure of basic education from: early childhood education: primary education: secondary education: and middle level institutions of basic education commonly known as 8-4-4 and substitute it with: early years education; middle school and senior school through The Basic Education Curriculum Framework, 2017 and Sessional Paper No 1 of 2019 on Policy Framework for Reforming Education and Training for Sustainable Development in Kenya and thereby violated Articles 1(3)(a), 2(1) and (2), (3)(1), 10, 21(1), (2) and (3), 24, 27(1), (2), (4) and (5), 33(1), 43(1)(f), 47(1) and (2), 53(b) and (d) and (2), 55(c), 56, 73 and 232 of the Constitution of Kenya.(b)A declaration be and is hereby made that the holders of the State Office of the 1st Respondent responsible for the contravention of Section 41 of the Basic Education Act No 4 of 2013 and violation of Articles 1(3)(a), 2(1) and (2), 3(1), 10, 21(1), (2) and (3), 24, 27(1), (2), (4) and (5), 33(1), 43(1)(f), 47(1) and (2), 53(b) and (d) and (2), 55(c), 56, 73 and 232 of the Constitution of Kenya namely Dr Fred Okengo Matiang'i and Prof George Albert Omore Magoha being the 7th and 8th Respondents herein respectively are unsuitable to hold public office.(c)A declaration be and is hereby made that the 1st ,2nd, 3rd and 4th Respondents cannot overhaul the existing system and structure of basic education (8-4-4) and curriculum thereto and replace it in the absence of a curriculum developed within the framework of Regulations made by the 1st and 2nd Respondents in consultation with stakeholders in terms of Section 73(4) of the Basic Education Act No 14 of 2013 and Regulations made by the 2nd Respondent in terms of Section 4 of the Kenya Institute of Curriculum Development Act No 4 of 2013 and any curriculum developed, rolled out and implemented by the 1st and 2nd Respondents in the absence of Regulations is unlawful, null and void.(d)A declaration be and is hereby made that the introduction of the Kenya Competence(y) Based Curriculum through the Basic Education Curriculum Framework, 2017 and Sessional Paper No 1 of 2019 on Policy Framework for Reforming Education and Training for Sustainable Development in Kenya by the 1st and 2nd Respondents to replace the existing system and structure of basic education (8-4-4) and curriculum thereto without a curriculum developed in accordance with Sections 73 and 74 of the Basic Education Act No 14 of 2013 and Section 4 of the Kenya Institute of Curriculum Development Act No 4 of 2013 violates Articles 2(1) and (2), 10, 47, 232 of The Constitution of Kenya.(e)A declaration be and is hereby made that Kenya Competence(y) Based Curriculum is based upon vocational education and training approaches conceptualized for specific use in training adults in vocational skills, is inapplicable for basic education of children in Kenya, is discriminatory and the introduction thereof by the 1st, 2nd, 3rd and 4th Respondents through the Basic Education Curriculum Framework, 2017 and Sessional Paper No of 2019 on Policy Framework for Reforming Education and Training for Sustainable Development in Kenya violates Articles 21 and 27 of the Constitution of Kenya on equality and freedom from discrimination, violates the right to education under Article 43(1)(f) of the Constitution of Kenya, violates every child's right to free and compulsory education under Article 53(1)(b) of the Constitution of Kenya, violates the right to freedom of expression under Article 33(1)(a), (b) and (c) and amounts to torture contrary to Article 29(d) and Article 53(1)(d) and (2) of the Constitution of Kenya.(f)An order of injunction be and is hereby made restraining the 1st, 2nd, 3rd and 4th Respondents from further implementing the Kenya Competence(y) Based Curriculum introduced through the Basic Education Curriculum Framework, 2017 and Sessional Paper No 1 of 2019 on Policy Framework for Reforming Education and Training for Sustainable Development in Kenya in place of the existing system and structure of basic education (8-4-4) codified under Section 41 of the Basic Education Act No 14 of 2013 and the existing curriculum in respect thereto.(g)An order be and is hereby made directed to the 1st and 2nd Respondents to draw Regulations in respect to policy and guidelines on curricula in accordance with Sections 73 and 74 of the Basic Education Act No 14 of 2013 and Section 4 of the Kenya Institute of Curriculum Development Act No 4 of 2013 respectively and table the same before the 6th Respondent for approval within 90 days of the making of the order in that regard.(h)A conservatory order be and is hereby issued directed at the and 4th Respondents staying further implementation of the Kenya Competence(y) Based Curriculum for basic education introduced through the Basic Education Curriculum Framework, 2017 and Sessional Paper No 1 of 2019 on Policy Framework for Reforming Education and Training for Sustainable Development in Kenya.(i)Any other relief as the Court may deem fit to grant.

34. From the foregoing, we perceive that the petitioner is not championing the personal rights of her child only. The prayers sought evidently involve great public interest and in making a determination in the present application, this fact is a key consideration. Indeed, Mrima J (sitting as a single judge when certifying the matter as one raising a substantial question of law) in his ruling dated November 25, 2021 acknowledged the ‘the public importance and immense public interest’ generated in this matter.

35. We are alive to the circumspection with which public interest litigation ought to be viewed to avoid abuse and on this we are guided by the Supreme Court of India which in the case of Ashok Kumar Pandey v State of West Bengal AIR 2004 SC 280 in relation to public interest litigation, stated as follows:“Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking… As indicated above, [the] Court must be careful to see that a body of persons or [a] member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations…The Petitioners of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.”

36. In the circumstances of this case, we find that the substitution of the petitioner with the applicant in this matter would serve the interest of justice in line with the constitutional principles and objectives as set out in this analysis. Furthermore, the applicant's interest is in line with Article 3(1) of the Constitution which obliges every person to defend this Constitution and Article 22(2) (c) which grants the applicant locus standi in the matter. The impact of the petition goes beyond the current petitioner. It is only fair and just that the substitution sought be allowed to pave way for a determination of the weighty issues raised in the petition and which are of great public interest.

37. With the result that we allow the Notice of Motion dated 19th April, 2022 and make the following orders;1. Esther Ang’awa be and is hereby substituted with Nelson Andayi Havi as the Petitioner.2. The pleadings, proceedings and all documents filed herein be and are hereby amended to indicate Nelson Andayi Havi as the Petitioner.3. Each Party to bear its own costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE 2022. ............................................H. ONGUDIJUDGE.............................................A. MRIMAJUDGE.............................................A. NDUNGUJUDGE