[2023] KEHC 25112 (KLR)

Board of Management, St. Catherine Nangina Primary School & another v PNE & another (Suing as Administrators & Next Friends of PAO) (Civil Appeal E027 of 2022) [2023] KEHC 25112 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25112 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E027 of 2022

WM Musyoka, J

November 10, 2023

Between

Board of Management, St. Catherine Nangina Primary School

1st Appellant

Ann Onyancha, Head Teacher, St. Catherine Nangina Primary School

2nd Appellant

and

PNE

1st Respondent

VOO (Suing as Administrators and Next Friends of PAO)

2nd Respondent

Suing as Administrators & Next Friends of PAO

(An appeal arising from the ruling and orders of Hon. P Olengo, Principal Magistrate, PM, delivered on 20th July 2022, in Busia CMCCC No. 52 of 2019)

Ruling

1. I am called upon to determine an application, dated 1st August 2023. The same was filed herein by the appellant on 2nd August 2023. It seeks stay of execution of a decree dated 28th January 2023, extracted from a judgment delivered on 20th July 2022, in Busia CMCCC No. 52 of 2019, pending the hearing and determination of the appeal, among other orders. The said decree is the subject-matter of the appeal herein. The grounds are that the appellants have filed an appeal; there are execution proceedings that are ongoing against St. Catherine Nangina Primary School, which is a public or government institution; the said execution is unlawful as it does not accord with the procedures for execution of decrees against government entities; the decretal amount was colossal and execution for it would cause the school to suffer great prejudice; and execution would be against the best interests of the school.

2. The affidavit sworn in support, by Sister Philomena Momanyi, on 1st August 2023, largely regurgitates the grounds set out on the face of the application. It attaches copies of the memorandum of appeal filed herein on 15th August 2022; a proclamation by Da Semy Auctioneers, dated 25th July 2023; and of the decree extracted from the impugned judgment, dated 20th July 2022 and issued on 20th July 2023.

3. The reaction to the application is in the form of an affidavit by one of the respondents, Peris Narotso Egesa, sworn on 19th September 2023. She avers that the appeal raises no arguable or triable issues, and it is frivolous and vexatious. She further avers that there was filed herein an application for stay, dated 29th May 2023, which was dismissed, on 26th May 2023, hence the current application is res judicata, as no appeal was lodged against that dismissal. She states that there is no evidence that the school is a government institution, saying that the same is owned by the Catholic Church Diocese of Bungoma, and, therefore, due process and law was followed in the execution process. She further states that there is no proof that the sale of the attached or proclaimed items would paralyze the operations of the school, leading to its closure. She asserts that the fees, paid to the school by pupils, should be inclusive of funds for taking out insurance policies, to cover the school, in the event of accidents at its premises. She has attached a document to her affidavit, however, the same is so faint that I cannot make out what it is all about.

4. The reply by the respondents attracted a response from the appellants, in the form of a further affidavit by Sister Philomena Momanyi, essentially to attach evidence that the school was registered as a public, rather than a private school, and so it was a government institution. She asserts that the assets attached were government property of a government sponsored school. She further avers that the assets of the school were not insured, as the school lacked funds to cover that, and the school could not provide security for costs. The supplementary affidavit in the court file is not complete, as it does not have the jurat page. It has annexures that are largely too dark that I cannot make out their contents.

5. The application was canvassed by way of written submissions. I have perused the written submissions filed herein by both sides, and I have noted the arguments made.

6. According to the copy of the decree on record, the impugned judgment was delivered on 20th July 2022, and the memorandum of appeal was filed herein on 15th August 2022. I believe the appeal herein is valid, as the memorandum of appeal was filed within the 30 days prescribed in law.

7. Is the said decree capable of being executed? Yes, it is. It is a money decree. There is evidence that preliminary steps have been taken to levy execution, by way of proclamation, attachment and sale. Is the appeal arguable? This is not a consideration at this stage, as it is not among the issues contemplated in Order 42 of the Civil Procedure Rules. The appellants have raised it; however, they have not attached a copy of the impugned judgment. I have no material, upon which I can gauge whether the grounds raised in the memorandum against that judgment are reasonable and arguable.

8. Should I stay execution of the decree? It is argued that the attached assets belong to government, and the process to levy such assets was not followed. I was not told what that process is, but I presume the appellants are talking about the Government Proceedings Act, Cap 40, Laws of Kenya. The appellants have submitted around the provisions of the Basic Education Act, No. 14 of 2014, Laws of Kenya, but they have not pointed me to any which governs execution of decrees obtained against government schools. They have cited a number of judicial decisions, none of which dwell on the issue. It could be a grey area. I shall give the appellants benefit of the doubt, and I trust the issue shall be thrashed out at the hearing of the appeal.

9. There was submission that the said assets are for benefit of schoolchildren, and attachment and sale may affect provision of education to the children. I am alive to the paramountcy of the welfare of children, and the fact that anything which would affect that should be approached with some amount of caution. I am also alive to the fact that where a person suffers loss on account of the actions of an entity, such as a school, the welfare of children argument should not be used to shield the managers of the institution from scrutiny, and responsibility. It does not absolve them of liability, responsibility and accountability.

10. It will be only on account of the welfare of children aspect that I will stay execution of the decree herein, in the manner that the respondents have embarked on. The respondents will have to adopt another mode of execution, which would not be disruptive to the children. I, accordingly, allow the application herein, dated 1st August 2023, in terms of prayer 3 thereof. To move the matter forward, I direct the appellants to file and serve the record of appeal in the next 30 days. The Deputy Registrar shall call for the trial court records forthwith. The matter shall be mentioned after 30 days for compliance. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 10TH DAY OF NOVEMBER 2023WM MUSYOKAJUDGEAdvocatesMr. Tarus, instructed by Attorney-General, for the appellants.Mr. Luchivya, instructed by Marisio Luchivya & Company, Advocates for the respondents.