[2015] KEHC 2174 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HUMAN RIGHTS & CONSTITUTIONAL DIVISION

PETITION. NO. 359 OF 2015

BOARD OF MANAGEMENT OF

UHURU SECONDARY SCHOOL....................................................PETITIONER/APPLICANT

VERSUS

CITY COUNTY DIRECTOR OF EDUCATION...................... 1ST RESPONDENT

DUNCAN JUMA …………………………………………..2ND RESPONDENT

TEACHERS SERVICE COMMISSION…………....………3RD RESPONDENT

RULING

Introduction

One Mr. Andrew Oroo Obaga (hereinafter ‘the principal’) was in April 1983 engaged by the 3rd Respondent herein as a teacher. He then became a member of the public service family. He was then 27 years old having earlier declared his date of birth as September 1955. He rose the ranks and as of 2014 he was the Principal of Uhuru Secondary School (“the school’’). Then on 20th March 2015 the 3rd Respondent reminded the Principal of the inevitable. The 3rd Respondent wrote to the principal and reminded him that his last day of service as a teacher would be 31st August 2015. The Principal would have struck the compulsory retirement age of sixty then.

Following such developments the Petitioner sought to intervene. The Petitioner urged for an extension of the Principals period of service for at least two years. This was to allow the Principal to complete a “project of securing the schools real property’’. The 1st Respondent did not budge. On 28th August 2015, consequently the Petitioners moved the court. The Petitioner filed the present petition basically challenging the Principal’s retirement.

The Petitioner also simultaneously filed an application seeking conservatory orders. The application sought the following orders.

Pending the hearing and determination of the [sic] suit, the honourable court be pleased to issue conservatory orders suspending the oral directive by the County Director of Education purporting to replace the Principal of Uhuru Secondary School, Mr. Andrew Obaga with the 2nd Respondent.

Pending the hearing and determination of the [sic] suit, the court directs that the said Principal continues to serve in the same capacity.

Pending the hearing and determination of this suit, a temporary injunction be issued restraining the 2nd Respondent from assuming the office, duties and functions of the Principal of Uhuru Secondary School.

The 3rd Respondent does ensure compliance of orders 1,2 and 3 since it is the constitutionally mandated body dealing with the appointment, promotion, demotion and transfer of school Principals.

Costs of this application to be awarded to the Petitioner/ Applicant.

The application was premised on various grounds which were outlined on the face of the application.

Relevant Chronology

Following the certification as urgent and issuance of ex parte interim conservatory orders the application was duly served on. The parties thereafter appeared before the court on 3rd September 2015 when the interim orders were extended but with a slight variation. The variation entailed a restriction on the operation of the school’s bank account by the Principal.

In the meantime the Respondents (the 1st and 3rd Respondents) filed their Replying Affidavits. Both opposed the application for conservatory orders.

On 16th September 2015 and 17th September 2015 the Petitioner and the Respondents (1st and 2nd Respondent) respectively filed their skeletal submissions on the application. This was pursuant to my directions of 8th September 2015.

The application was thereafter canvassed before me through the medium of oral submissions on 17th September 2015.

The Petitioner’s case

Ms. Gichane advocated for the Petitioner.

As presented by Ms. Gichane, the Petitioner’s case is that the Principal’s retirement was not effected in a justifiable manner and this has led to chaos in the school. According to the Petitioner the Principal should have been given notice. Further, the 3rd Respondent should have been guided by the principles and provisions of Article 232 of the Constitution and in particular clauses (d), (e) and (f) thereof. These clauses demand the involvement of the people, accountability as well as transparency, so submitted Ms. Gichane. In the instant case, the Petitioner was never consulted by the 3rd Respondent.

The Petitioner also submitted that the Respondents failed to observe the provisions of the Sections 45 (4) (b) and 45 (2) (c) of the Employment Act. In these respects, the Petitioner submitted the Principal was not properly served with the notice of his retirement.

It was also the submission of counsel on behalf of the Petitioner that the Principal was never accorded fair treatment both under the 3rd Respondent’s code of regulations of teachers and under the Employment Act. The Petitioner’s further case is that the Principal was only orally informed of his retirement and replacement. If there were any formal letters then they were irregular for non-compliance with the prescribed formats under the 3rd Respondent’s code of Regulations.

The Petitioner placed reliance on the case of D.K. Njagi Marete –v- Teachers Service CommissionIndustrial Court Cause No. 379 of 2009 for the proposition that administrative decisions against public servants must be fair, legitimate and justifiable.

The Responses

1st Respondent’s Submissions

Ms. Esther Muchuri for the 1st Respondent opposed the application she stated that the Petitioner had no locus to commence and proceed with the petition as the Principal had not authorized the filing of the Petition. The 1st Respondent also contended that the Petitioners had not proved any of the allegations. Ms. Muchiri then submitted that the allegations of oral notification were completely misfounded and further that as the Petitioner was contesting the procedure of removal of an employee, the right forum to contest the same was the Employment and Labour Relations Court. She then urged for the dismissal of the application for conservatory orders whilst relying on the case of Centre for Rights Education and Awareness –vs- AG & 7 Others HCCP No. 16 of 2011.

The 2nd and 3rd Respondents’ Submissions

Through Mr. Allan Sitima, the 2nd and 3rd Respondents urged for the dismissal of the application for conservatory orders. Mr. Sitima submitted that the dispute before the court was not a Constitutional issue but rather a dispute over a contract of service. In the result, the Petitioner had no locus to file the Petition on behalf of the Principal as the latter was perfectly capable to sue on his contract of service.

Mr. Sitima further submitted that Article 22 of the Constitution envisaged only a situation where a person’s fundamental rights have been violated and the victim himself then moves the court. He also reiterated the fact that the Petition ought to have been filed before the Employment and Labour Relations Court pursuant to the provisions of Section 80 (7) of the Employment Act as read together with Section 12 of the Employment and Labour Relations Court Act. He urged the court to direct the Petitioner to that court.

According to Mr. Sitima, the Petitioner does not have an arguable case or even a prima facie case as it is not disputed that the Principal has hit the mandatory retirement age. He denied that there has been any infringement or violation of the Constitution.

Rejoinder

In a brief rejoinder, Ms. Gichane submitted that the Constitution vide Article 22 gave the Petitioner the necessary locus. Further, the Petitioner also had pursuant to the provisions of Section 54 (7) of the Basic Education Act a role to play in the process of appointment of any principal to the school. Whilst admitting that the Petition raised employment issues, Ms. Gichane submitted that the main question was whether the Respondents had adhered to Constitutional guidelines.

Determination

I have carefully considered the final submissions as well as the affidavits filed herein besides the Petition itself.

The Petitioner filed this Petition on the basis of Article 22 of the Constitution. The Petitioner alleged violation of Constitutional and Human Rights. As to the particulars of gross violation the Petitioner stated thus:

“13. Mr. Obaga [the Principal] was just stripped of his position as the Principal of the School with no substantive justification or procedural fairness for the termination.

14. The students have equally been denied the proper, condusive and peaceful atmosphere to carry out their education in a manner profitable for their excellence and graduation.”

On the basis of these two particulars the Petitioner alleges violation of Articles 41 (1), 53 (b) and 237 of the Constitution.

Pursuant to Article 23 of the Constitution the Petitioner seeks orders of temporary reprieve to ensure a maintenance of the state of affairs ante 1st day of September 2015. The state of affairs was that the Principal was the head teacher of and in charge of Uhuru Secondary School, Nairobi.

The Issue

At the core for determination at this stage is whether the court should grant the interim and conservatory orders sought by the Petitioner pending the determination of this Petition.

Governing Principles of Article 23 (3)

Article 23 (3) of the Constitution basically affords a party to proceedings brought pursuant to Article 22, asserting violation or threat of violation of any Constitutional right or fundamental freedom, to prompt the court for any relief, including temporary reliefs. The said Article 23 provides as follows:

“ 23 (1) …

23 (2) …

23 (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including-

a declaration of rights;

an injunction;

a conservatory order;

a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

an order for compensation; and

an order of judicial review.” (emphasis)

I state without vacillation that the path to be followed by a court seized with an application under Article 23 (3) (d) is now relatively clear.

Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General[HCCP No. 16 of 2011]:

“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.

It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & OthersCP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-

“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).

Recently the same pertinent observations were made by Ngugi J and Muriithi J sitting separately in Jimaldin Adan Ahmed & 10 Others –v- Ali Ibrahim Roba and 2 Others [2015] eKLRand Micro Small Enterprises Association of Kenya (Mombasa Branch) –v- Mombasa County Government [2014] eKLRrespectively.

Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights: see Patrick Musimba –v- The National Land Commission & 4 OthersHCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.

Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.

The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLRis that the court must consider conservatory orders also in the face of the public interest dogma.

Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless: see Centre for Human Rights and Democracy & 2 Others –v- Judges and Magistrates Vetting Board & 2 Others CP No. 11 of 2012 as well as Suleiman –v- Amboseli Resort Ltd [2004] 2 KLR 589.

Invoking the principles laid out in the various decisions above the question then is whether the Petitioner herein has met the set criterion. Is there a prima facie case with a likelihood of success?

If no order is granted in the interim as sought will the Petitioner be prejudiced and its petition rendered nugatory? Would public interest be served by the grant of the orders sought ? A preliminary issue as to the locus of the Petitioner however needs to be dispensed with first.

The Issue of Standing

The Petitioner claims to have filed the Petition on behalf of the Principal and or the students of the school whose rights the Petitioner alleges have been violated or are on the fringe of being violated. Article 22 of the Constitution grants ‘any person’ the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Clause (2) of the said Article expands the sphere of locus. Under the Constitution the grievant need not personally file a claim. A person acting on his behalf may. Likewise, a person acting on behalf of or a member of a group or class of persons may also file a claim. So too may a person acting in the public interest.

Article 22 like all other articles of the Constitution is not to be read in isolation and simply textualized. It ought and must be read alongside Articles 258 and 259. As was conceded by Mr. Sitima, the avenues were opened wider by the Constitution. A party need not necessarily have been personally affected by the alleged violation of any Constitutional provision or right. My reading of the three Articles would also lead to that wide berth. The purposes, values and principles of the Constitution would be better served if the doors were not shut to any litigant so long as the litigant is not simply a busy body but person with a genuine grievance and concern. The rights and fundamental freedoms can be better advanced if a wider and more liberal as opposed to a limited reading of Articles 22 and 258 is effected.

I do not believe that the Applicant herein is a busy body. The Applicant has an apparent genuine grievance and concern as far as the students of the school are concerned. The Principal could certainly act in his own name but all the students of the school cannot. The Petition alleges interference and or infringement with the rights under Articles 41, 47 and 53 of the Constitution. It will be for the trial court to interrogate whether such infringement or violation has chanced. I also do not view it that the Petitioner filed the instant Petition for any personal gain or ill-motives and would discount the Respondents joint submissions to like effect.

As the standard guide to locus standi still remains the more universal Article 258 of the Constitution: see Mumo Matemu –v- Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR,I find and hold that the Petitioner had and still has the legal standing to commence and prosecute the Petition.

Forum

Another preliminary issue worth immediately being disposed of is the issue of forum.

On this issue, the Respondents were in unison that the Petition herein ought to have been filed and indeed heard before the Employment and Labour Relations Court. The Petitioner’s counsel on the other hand was of the view that the issue of the Principal’s employment was merely incidental to the other pertinent Constitutional issues.

The substratum of the Petitioners claim is the removal of the Principal by the Respondents. There is a contest on the procedure adopted. The Respondents see perfection while the Petitioner sees abandonment of process. The Petitioner also has brought forth an issue of protection of the students rights to education under Article 53 of the Constitution. Certainly, at the core of the Petition is all to do with the Principal’s employment. This would fall within the territory of Section 12 of the Employment and Labour Relations Court Act. In my view issues as to fair administrative procedure as well as basic rights to education are incidental to the claim. The correct forum would be the Employment and Labour Relations Court as was stated by Majanja J in the case of United States International University –v- Attorney General [2012] eKLR.The learned Judge was clear that the then Industrial Court has the jurisdiction and can hear constitutional issues where the same emerge from matters which are within that courts exclusive jurisdiction. I need not discolour that holding or approach. I agree.

It is clear though from the statement that the learned Judge did not however address the question as to what happens where some of the issues raised do not fall within the specialized courts exclusive jurisdiction. That issue was addressed by the court in the case of Patrick Musimba –v- National Land Commission & 4 Others [2015] eKLRwith the holding that where there is concurrent and coordinate jurisdiction in both the specialized court and the High Court either court may determine the Petition or case before it. In Patrick Musimba (Supra) the court concluded after analyzing the United States International University –v- Attorney General (Supra)case as well as the case of Daniel Mugendi –v- Kenyatta University [2013] eKLRand the two foreign decisions of SIM –v- Robinson [1892] 12 LR 665and The Spiliada [1987] AC 460,that where two courts have jurisdiction over a matter jurisdiction is deemed concurrent and coordinate. In such a case either court may exercise jurisdiction but a determination as to the more appropriate forum ought to be made by considering which of the two is more suitable in the interest of the parties and for the ends of justice.

In the instant case, both this court pursuant to Article 165 (3) and the Employment and Labour Relations Court pursuant to Article 162 (2) as read together with Section 12 of the Employment Labour Relations Court Act have jurisdiction. The urgency of the Petition dictated that any prayers conservatory orders to dealt with immediately. I have seen no prejudice to be occasioned in dealing with the application for conservatory orders taking into account the fact that the issue as to forum non conveniens was only raised in the course of the reply to the Petitioner’s submissions and not as a preliminary point of law.

My view though is that the main Petition itself ought to be dealt with by the Employment Labour Relations Court which appears to be a more appropriate forum. Indeed the Petition ought to have been filed before the said court and the right approach would be to order and direct a transfer of the Petition to that court. I state so bearing in mind that at this stage of the proceedings the court is not obligated and must not attempt to make any conclusive findings of law or fact.

Assuming I am wrong on the issue of forum, I now turn to consider

the merits, if any in the application for conservatory orders.

The Petitioners case is that in absolute breach and contravention of the Constitution, the Respondents failed to consult the Petitioner in the course of appointments of the new Principal, being the 2nd Respondent. The Petitioner in this respect pegs its case on the provisions of the Basic Education Act as well as Article 10 and Article 232 of the Constitution. The Petitioner claims there was no transparency, integrity and accountability in the process. The Respondents reply in these respects was brief and to the point. To the Respondents, in retiring the Principal and appointing a new Principal was merely exercising a constitutional function.

The allegations by the Petitioner are wide. They also involve lack of fair administrative action being accorded to the Principal pursuant to Article 47 of the Constitution. That aside the Petitioner however made no other attempt to demonstrate how the 3rd Respondent’s decisions to appoint the 2nd Respondent as the new Principal of the school affected or violated the Petitioners rights. There was no attempt to relate any specific provisions of the Basic Education Act whereunder the Petitioner is created to any of the Constitutional provisions.

I am conscious of the fact that as I determine whether or not I should grant any conservatory orders on this matter, I must not venture into scrutiny of the facts and evidence. That will be for the trial court. However the Petitioner ought to demonstrate how the rights and freedoms of the Principal and the students as well as the Petitioners rights have been impeded or put at risk.

Where two facts or evidence are however not in dispute then I must take the same into consideration. In these respects three facts stand out. Firstly, the Principal has reached the mandatory retirement age of 60 years. Secondly, it is a government policy that one be retired on hitting the stated age. Thirdly, both the Petitioner as well as the Principal were aware of this position and indeed the Petitioner on 17th July 2015 sought a waiver of the policy as to the retirement of the Principal. Finally, the 3rd Respondent on 25th August 2015 declined the request for a waiver of policy. This set of undisputed facts would point to one zone. A zone of knowledge of both the Principal and the Petitioner that the 3rd Respondent would be having a replacement to take over from the Principal. In the circumstances, I am satisfied that there is no violation of the Petitioner’s rights demonstrated that would justify the grant of any conservatory orders in the Petitioner’s favour.

In concluding as above, I have also considered three other factors.

Government policy as to retirement at a mandatory age of 60 is and was formulated in the public interest. It would be inappropriate and disproportionate to at this very interim stage interfere. Secondly, it is not possible to state that the Petitioner or any other party for that matter may suffer any prejudice if the conservatory orders are not granted. Finally, the role the Petitioner is bound to play in superintending the 2nd Respondent or any other staffer of the school cannot be gainsaid or refuted. The Petitioner still has the opportunity to engage the 3rd Respondent even in the absence of a conservatory order. It certainly would not be in order to interfere in the 3rd Respondents exercise of its mandate absent a demonstration of abuse or violation thereof.

In the circumstances, I decline to grant the orders sought. The application dated 27th August 2015 is therefore dismissed. The costs thereof shall await the outcome of the Petition.

While so concluding and dismissing the application, I have mulled on the issue of forum too. The substratum of the Petition as I had indicated earlier is the process that led to the Principal’s retirement. Reference was made by the Petitioner to the case of D.K. Njagi Marete –v- Teachers Service Commission IC No. 379 of 2009. The case dealt with retirement in public interest as opposed to retirement on attaining a set retirement age. The case was dealt with by the Industrial Court now christened the Employment and Labour Relations Court. My research has not revealed any previous case having dealt with the question as to when a civil servant may refuse to retire on attaining a retirement age, whether by self or through a proxy as in this case. In my mind that must be in the core of this Petition. Coupled with the questions as to process leading to such retirement and having found that the appropriate forum is the Employment and Labour Relations Court, I view it and so order that this matter be transferred to the Employment and Labour Relations Court for final trial and determination. In line with the decision of the Court of Appeal in Daniel Mugendi –v- Kenyatta University University [2013] eKLR,the Employment and Labour Relations Court may also investigate any other questions and issues or claims of breaches of fundamental rights that may be associated with the subject.

Orders accordingly.

Dated, Signed and Delivered at Nairobi this 22nd day of September 2015.

J. L. ONGUTO

JUDGE