[2023] KEELRC 893 (KLR)

Cheboi & another v Board of Management Kamoi Secondary School (Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)) [2023] KEELRC 893 (KLR) (14 April 2023) (Ruling)

Neutral citation: [2023] KEELRC 893 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)

JW Keli, J

April 14, 2023

Between

Eliza Jemutai Cheboi

1st Claimant

Sammy Kiptoo Kipkore

2nd Claimant

and

The Board Of Management Kamoi Secondary School

Respondent

Ruling

1. The Honourable Attorney General following judgment and commencement of execution proceedings in the suit brought a notice of motion application dated 8th February 2023 seeking the following reliefs:-i.this application be certified urgent and service hereof be dispensed with in the first instanceii.Leave be granted to the office of the Attorney and department of Justice, civil Litigation department to come on record on behalf of the applicants after judgmentiii.There be a temporary stay of execution and enforcement of the decree dated 26th January 2023 and judgment delivered hereon on the 14/04/2021 pending the hearing and determination of this application interpartes.iv.The court be pleased to set aside and quash the notice of attachment dated 01/02/2023 in execution of money and subsequent proclamation by lister Auctioneers attaching property belonging to the applicant herein.v.The execution proceedings to enforce the judgment and decree by the claimants herein be declared a nullity and the court to cancel and set aside by lifting the warrants for attachment and sale as same is irregular.vi.The claimant to bear the costs of the auctioners and costs of the application.

2. The application was premised on primary grounds of the applicant’s school being government institution in the department of basic education dependent on national government funding. That the applicant’s funds require parliamentary approval each year and it is the cabinet secretary for the Ministry of Education responsible for the management and governance of basic education though empowered to delegate the same to the Boards which Boards operate in accordance with the instructions and powers conferred by the cabinet secretary. That the Board is an agent of the National Government entrusted with the management of the public school and the respondent’s property is not amenable to execution proceedings and that the execution would paralyze the school prejudicing the rights of the children to education and public interest. The applicant vide supporting affidavit of James Sambasi annexed the proclamation and auctioneer’s invoice dated 01/02/2023 (JS-1).

3. The application was opposed vide affidavit of Eliza Jemutai Cheboi which annexed the notice of appointment of advocate (EJC1)arguing there was no need for the Hon. Attorney General to come on record post the judgment (EJC2 copy the judgment) admitting she had instructed auctioneers in execution of the money decree(EJC3 being copies of warrants of judgment and proclamation) and in strange twist in the affidavit argued the law and even produced supporting authorities. The court found that the deponent’s affidavit was improper with respect to averment on the law as affidavits ought to be limited to facts and should not be argumentative. The Court applying article 159(2)(d) allowed the affidavit with respect to the facts only.

Preliminary 4. On the 8th February 2023 the court exparte in chambers granted orders 1 to 3 being certification of the application as urgent, granted leave to the Hon. Attorney General to come on record for the claimant post the delivery of the judgment and temporally stay of execution of decree dated 26th January 2023 and judgment dated and delivered on the 14th April 2021 pending the hearing and determination of the application.

Written submissions 5. The application with regard to the substantive orders 4 , 5 and 6 was canvassed by way of written submissions. The applicant’s written submissions drawn by Juma Collins Senior State Counsel for Attorney General were dated 21st February 2023 and received in court on the 22nd February 2023. The respondent’s written submissions drawn by G. Kosgey & Co. Advocates were dated 7th March 2023 and received in court on 9th March 2023.

Decision Issues for determination. 6. The applicant in their submissions addressed the following issues:-a.whether the Attorney General is properly on record.b.Whether the applicant is a government entity or bodyc.Whether the applicant’s property is protected from attachment in execution of the decree herein

7. The respondent identified the following issues for determination :-a.whether the applicant/ respondent is a public entity subject to the Government Proceedings Actb.whether the notice of attachment and subsequent execution proceedings were properly issuedc.who is entitled to costs

8. The court taking into account that leave had already been granted to the Attorney General to come on record for the claimant post judgment finds the issues for determination to be:-a.Whether the Applicant/ Respondent is a Public Entity Subject to the Government Proceedings Actb.Whether the Applicant is entitled to reliefs soughtWhether the Applicant/ Respondent Is A Public Entity Subject To The Government Proceedings Act

Applicant’s submissions 9. The applicant submits that the it is an agency of the state or public body as it performs functions of a public nature and the state had deep and pervasive control in the management of the applicant and relied on the decision by Mativo J (as he then was ) in Association of Retirement Benefits Schemes v Attorney General &3 others (2017)e KLR where the Judge cited with authority Indian Supreme Court in the case of International Airport Authority(R.D Shetty) vs The International Airport Authority of Indian & Ors,[41] where the Court set the test for determining whether an entity is a Government body or not and as follows"- (a) consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government; (b) where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character; (c) it may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State (d) whether the body has deep and pervasive State control, (e) whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and (f)if a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government. The Court went on to state that if after the consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would be an 'authority' and therefore, part of the definition of 'State' within the meaning of the expression used in the Constitution. I adopt the above reasoning and would add that based on criteria numbers (c), (d) and (e), the interested party fits the bill as an agency of the State or public body as it perfroms functions of a public nature and enjoy monopoly with regard to the services they provide.’’

10. That section 43(1) of the Basic Education Act provides for Categories of schools as follows:-‘(1) Basic educational institutions shall be categorised as— (a) public schools which are schools established, owned or operated by the Government and includes sponsored schools; (b) private schools as those established, owned or operated by private individuals, entrepreneurs and institutions.’’ The applicant submits that it is state controlled and financially assisted by government hence a state department of Basic education dependent on national government funding. The applicant submits that its funds require parliamentary approval for each financial year and it is the Cabinet Secretary for the Ministry of Education who is responsible for the management and governance of basic education though empowered to delegate the same to Boards which boards operate under the Cabinet Secretary powers and instructions.

11. The applicant further relied on the provisions of section 86 of the Basic Education Act to wit:- ‘Financing of basic education (1) The funds of the Department of Education shall consist of— (a) monies provided by Parliament for the purposes of the Department; (b) any funds provided by bilateral or multilateral donors, for the purpose of the basic education; (c) monies that may accrue to or vest in the in the course of the exercise of its functions under this Act;’’

12. The applicant submits that the Board of Management (applicant) is just an agent entrusted with the management of the institution which is a public school owned, operated, governed and managed by the national government and also financed by the government.

13. On the aspect of state control the applicant relied on the provisions of section 53 of the Basic Education Act to wit:- ‘’53. Governance and management of education and training (1) The Cabinet Secretary shall be responsible for the overall governance and management of basic education. (2) Subject to the provisions of this Act, the Cabinet Secretary shall by regulation entrust the governance or management of any aspect of basic education and training to any agency, body, organ or institution as may be appropriate for the purposes of this Act.’’

14. The applicant submits that a public body is defined under provisions of section 3(1) of the Interpretation and General Provisions Act as follows:- ‘’ any authority , commission, committee or other body whether paid or unpaid which is invested with or is performing whether permanently or temporary functions of public nature.’’

15. Further the applicant in submitting it was a public entity relied on the case Association of Retirement Benefits Schemes case (supra) where the court defined a public entity as follows:- ‘I also find myself in agreement with Onguto J in earlier cited case where he stated that the phrase "public entity" under article 227 should include statutory bodies, parastatals, bodies established by statute but managed and maintained privately such as universities and professional societies…and also any private bodies fulfilling key functions under state supervision."

Respondent’s submissions 16. The respondent submits that parliament in creating the applicant gave them legal capacity to institute, prosecute and defend suits without involvement of government as per fourth schedule paragraph 1 of the Basic Education Act to wit: ‘’1. Incorporation of Board of Management. The Board of Management shall be a body corporate with perpetual succession and a common seal, and shall in their corporate names, be capable of— (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; (c) borrowing, lending and granting money; (d) entering into contracts; and (e) doing or perfroming all other acts or things for the proper perfromance of its functions under this Act which may lawfully be done or perfromed by a body corporate.’’

17. The applicant relied on the authority in Kimoi Ruto & another v Samuel Kipkosgei Keitany & another 2014 where the court held:-“..It will be seen from the above that State Corporations may be established by the President (Under S.3) or through an Act of Parliament. They are ordinarily body corporate with capacity to sue and to be sued and with capacity to hold property. I find it difficult to hold that they should be considered as “government” because if they were, then litigation would be governed by the Government Proceedings Act (CAP 40) and I am more prepared to hold that they are not strictly “Government”, unless the context otherwise prescribes, but rather, that they are independent agents of Government, fromed by government in order to undertake and perfrom certain functions on behalf of government, which functions cannot adequately or efficiently be perfromed within the structure of Government Ministries.” The court did not find the said authority online but found the passage cited by Justice Ogola in Ngayau Mutia & another v Kenya Petroleum Refineries Limited [2020] eKLR. The authority had not been supplied hence the search online.

18. The Respondent further relied on the decision in Attorney General v Kenya Commercial Bank HCCC No. 329 of 2001 where justice Ringera held that it was a legal misadventure for the Attorney General to institute a suit against the National irrigation board which was a body corporate with power to sue and be sued.

19. The Respondent further relied on the subsidiary legislation to the Basic Education Act paragraph 5 which provides:-‘5 Head of Institution1. the day to day management of a public institution of basic education and training shall be the responsibility of the head of the institution who shall be appointed by the commission2. the head of institution –a.shall be the accounting officer of the institution , an authority delegated by the cabinet secretaryb.shall be the team leader for the implementation of the ministry’s policies and programs in the institutionc.may initiate policy proposals for consideration by the county education board and the cabinet secretary’’.The applicant submits the foregoing remove the applicant from presumption that it is an institution subject of Government Proceedings Act and to buttress the submissions relied on decisions where the courts have held school and other parastatals were not subject of the Government Proceedings Act being :-In Abinja Kina Ireri v Board of Management S.A. Kyeni Girls Secondary School(2019)e KLR where the court held:- ‘ The Section categories the schools in the 2 broad categories as per Section 43(1)(a) and (b). That categorization into public school versus private school does not in my view alter the corporate character of the Respondent/Applicant. Indeed it may be funded by public funds or even rely on the exchequer for part of its operations but it is not a Government institution under which the rubric of the Government Proceedings Act applies. The Government Proceedings Act in its preamble is an Act of Parliament to state the law relating to the civil liabilities and rights of the Government and to civil proceedings by and against the Government; to state the law relating to the civil liabilities of persons other than the Government in certain cases involving the affairs or property of the Government; and for purposes incidental to and connected with those matters. It does not cover the Respondent/Applicant..’’ That further the same holding was in Board Management Pumwani Girls Secondary school v Joseph Mbumulula t/a Lathematics Engineering works 2109 e KLR

20. The respondent further submits that decision in Greenstar Systems Limited v Kenyatta International Convention Centre (KICC ) & 2 OTHERS (2018 )e KLR created a clear line between institutions subject to the Government Proceedings Act and those not and stated;- Justice Maureen Odero held :- ‘Sections 2 of the State Corporations Act, Cap 446 defines a state corporation in the following terms:-

“State corporation” means-(a)a State Corporation established under Section 3. (b)a body corporate established before or after the commencement of this Act by or under an Act of Parliament of other written law”.The Applicant was established under Section 40 of the Tourism Act 2011 as a body corporate with perpetual succession, capable of suing and being sued in its corporate name.The Applicant invoked Section 21(4) of the Government Proceedings Act which provides“(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no persons shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such of any money or costs.” [emphasis supplied]Section 21(4) makes reference to “the Government”, any Government department” or “any officer of the Government”. No specific reference is made at all to State Corporations. Blacks Law Dictionary, 8th Edition defines the term “government” as being“(1)The structure of principles and rules determining how a state or organization is regulated.(2)The sovereign power in a Nation or State(3)an organization through which a body of people exercises political authority; the machinery by which sovereign power is expressed.”The Applicant does not fit within the confines of this definition. The Applicant is a tourism agency established under the Tourism Act. It is not a Government department. The fact that the Applicant is a State Corporation cannot lead to the inference that it is a government department as envisaged by the Government Proceedings Act.The High Court in the case of Association Of Retirement Benefits Scheme –vs – Attorney General & 3 Others [2017] Eklr Cited With Approval The Indian Supreme Court Case Of International Airport Authority Of India & Others (1979) SC.R 1042 in which the test for determining whether an entity was a Government body or not, was stated as follows:-“(a)Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government.(b)Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;(c)It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State.(d)Whether the body has deep and pervasive State control,(e)Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and(f)If a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government.” 21. Further the court stated: ‘’ Having considered the above test as set out by the court I do not find that the Applicant is a government agency. ‘’The applicant submits that the applicant acted within its corporate powers In entering into contract with the claimants which resulted to the suit and even engaged advocate that was not paid by monies appropriated though budget and in doing so acted as body corporate, that it was laughable that at time of paying judgment sums it became subject of Government Proceedings Act and further relied on decision by Onguto J in Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 Others (2015)e KLR where it was stated:- ‘’Foremost though, it is important to point out that it would not be tenable to invoke the Government Proceedings Act (Cap 40) as a bar to any execution herein. The 1st Respondent is a body corporate with perpetual succession and a common seal. It is a corporate entity capable of subsisting independently. It is dependant on Government funding but it is not government or servant of or agent of Government for the purposes of the Government Proceeding Act. The 1st Respondent is an independent judicial person capable of being sued and suing. Its litigation does not involve the Government. Any judgments decreed against the 1st Respondent are not judgments against the government but against an independent juridical body.’’

Decision 22. The applicant is a board established under the Basic Education as per fourth schedule paragraph 1 of the Basic Education Act to wit: ‘’1. Incorporation of Board of Management. The Board of Management shall be a body corporate with perpetual succession and a common seal, and shall in their corporate names, be capable of— (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; (c) borrowing, lending and granting money; (d) entering into contracts; and (e) doing or perfroming all other acts or things for the proper perfromance of its functions under this Act which may lawfully be done or perfromed by a body corporate.’’

23. It was not dispute the applicant manages a public school. Section 43(1) of the Basic Education Act provides for Categories of schools as follows:-‘(1) Basic educational institutions shall be categorised as— (a) public schools which are schools established, owned or operated by the Government and includes sponsored schools; (b) private schools as those established, owned or operated by private individuals, entrepreneurs and institutions.’’

24. The applicant submitted that the Board of Management (applicant) is just an agent entrusted with the management of the institution which is a public school owned, operated, governed and managed by the national government and also financed by the government. On the aspect of state control the applicant relied on the provisions of section 53 of the Basic Education Act to wit:- ‘’53. Governance and management of education and training (1) The Cabinet Secretary shall be responsible for the overall governance and management of basic education. (2) Subject to the provisions of this Act, the Cabinet Secretary shall by regulation entrust the governance or management of any aspect of basic education and training to any agency, body, organ or institution as may be appropriate for the purposes of this Act.’’

25. The subsidiary legislation to the Basic Education Act paragraph 5 which provides:-‘5 Head of Institution1. the day to day management of a public institution of basic education and training shall be the responsibility of the head of the institution who shall be appointed by the commission2. the head of institution –a.shall be the accounting officer of the institution , an authority delegated by the cabinet secretaryb.shall be the team leader for the implementation of the ministry’s policies and programs in the institutionc.may initiate policy proposals for consideration by the county education board and the cabinet secretary’’.

26. A public body is defined under provisions of section 3(1) of the Interpretation and General Provisions Act as follows:- ‘’ any authority , commission, committee or other body whether paid or unpaid which is invested with or is performing whether permanently r temporary functions of public nature.’’

27. The respondent cited authorities in Abinja Kina Ireri v Board of Management S.A. Kyeni Girls Secondary School(2019)e KLR where the court held:- ‘ The Section categories the schools in the 2 broad categories as per Section 43(1)(a) and (b). That categorization into public school versus private school does not in my view alter the corporate character of the Respondent/Applicant. Indeed it may be funded by public funds or even rely on the exchequer for part of its operations but it is not a Government institution under which the rubric of the Government Proceedings Act applies. The Government Proceedings Act in its preamble is an Act of Parliament to state the law relating to the civil liabilities and rights of the Government and to civil proceedings by and against the Government; to state the law relating to the civil liabilities of persons other than the Government in certain cases involving the affairs or property of the Government; and for purposes incidental to and connected with those matters. It does not cover the Respondent/Applicant..’’ That further the same holding was in Board Management Pumwani Girls Secondary school v Joseph Mbumulula t/a Lathematics Engineering works 2109 e KLR. The court finds that in the two authorities the learned judges premised their holding to the corporate body nature of the applicant on face value.

28. The applicant cited decision in Association of Retirement Benefits Schemes v Attorney General &3 others (2017)e KLR where the Judge cited with authority Indian Supreme Court in the case of International Airport Authority(R.D Shetty) vs The International Airport Authority of Indian & Ors,[41] where the Court set the test for determining whether an entity is a Government body or not and as follows"- (a) consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government; (b) where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character; (c) it may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State (d) whether the body has deep and pervasive State control, (e) whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and (f)if a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government. The Court went on to state that if after the consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would be an 'authority' and therefore, part of the definition of 'State' within the meaning of the expression used in the Constitution. I adopt the above reasoning and would add that based on criteria numbers (c), (d) and (e), the interested party fits the bill as an agency of the State or public body as it performs functions of a public nature and enjoy monopoly with regard to the services they provide.’’ The applicant relying on the said decision submitted that though the applicant is body corporate it is an agency of government under control of the Cabinet Secretary who has delegated his management powers under section 53 of the Basic Education Act to the Boards. That the schools were funded by the national government as stated under section 83 Basic Education Act(supra).

29. Whether the applicant was a government body under the Government Proceedings Act was a highly contested issue by the parties each citing decisions and the law to support their position. The court found light in decision of Justice Maureen Odero in Greenstar Systems Limited v Kenyatta International Convention Centre (KICC ) & 2 OTHERS (2018 )eKLR (CITED BY THE response undertaken and capital ) respondents where the Judge upheld the criteria by the Indian Supreme Court upheld by Justice Mativo in Association of Retirement Benefits Schemes v Attorney General &3 others (2017)e KLR (supra). Justice Maureen Odero in Greenstar Systems Limited v Kenyatta International Convention Centre (KICC ) & 2 OTHERS (2018 )e KLR further held :- ‘These functions cannot strictly be said to be of public importance or as being closely related to Government functions. Similarly the Applicant does not derive its funding exclusively from the Government. ‘’ The court finds this holding as relevant criteria for the court to apply in the instant case and finds that the functions of the applicant are delegated functions of the Cabinet Secretary under section 53 of the Basic Education Act and further the applicant gets funding from government as stated under section 83 of the Basic Education Act to wit:-‘’ Financing of basic education (1) The funds of the Department of Education shall consist of— (a) monies provided by Parliament for the purposes of the Department; (b) any funds provided by bilateral or multilateral donors, for the purpose of the basic education; (c) monies that may accrue to or vest in the in the course of the exercise of its functions under this Act;’’ There was no evidence that the applicant has a financier outside government or generates income which can satisfy the money decree. Under the proclamation notice all items are furniture and computers property of the applicant.

30. The preamble to the Government Proceedings Education Act reads:- ‘An Act of Parliament to state the law relating to the civil liabilities and rights of the Government and to civil proceedings by and against the Government; to state the law relating to the civil liabilities of persons other than the Government in certain cases involving the affairs or property of the Government; and for purposes incidental to and connected with those matters.’ The Claimant commenced execution proceedings against property of a public school which the court has found is managed by the applicant on delegated powers of the Cabinet Secretary Ministry of Education hence government property. The court finds that the applicant is an agency exercising delegated powers of the Cabinet Secretary and totally under control of the said Cabinet Secretary with the secretary of the Applicant being the head teacher a public officer employed by the Teachers Service Commission as the accounting officer as stated in the subsidiary legislation to the Basic Education Act paragraph 5 which provides:-‘5 Head of Institution 1. The day to day management of a public institution of basic education and training shall be the responsibility of the head of the institution who shall be appointed by the commission

2. The head of institution –A.Shall be the accounting officer of the institution , an authority delegated by the cabinet secretaryB.Shall be the team leader for the implementation of the ministry’s policies and programs in the institutionC.May initiate policy proposals for consideration by the county education board and the cabinet secretary’’. The court finds and determines that the applicant is under total control of the Government vide the Cabinet Secretary and hence holding government property.

31. In the upshot the court finds and determines that the applicant is a agent of the Cabinet Secretary of the Ministry of Education hence a government institution for which the Government Proceedings Act properly applies.

Whether the applicant is entitled to reliefs sought. 32. The Government Proceedings Act provides:- ‘Section 21(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed from containing particulars of the order.’’

33. It is the law execution proceedings are not available against the government. The process for enforcement of money decree is as stated under section 21 of the Government Proceedings Act (supra).Consequently the execution proceedings commenced by the claimants in enforcement of the money decree in the suit by proclamation against the applicant’s property is improper. Government property cannot be attached in enforcement of money decree.

34. In the upshot the application dated 8th February 2023 is held as merited and allowed as follows:- .i.The court hereby sets aside and quashes the notice of attachment dated 01/02/2023 in execution of money decree and the proclamation by Lister Auctioneers attaching property belonging to the applicant herein. The execution proceedings are declared a nullity and the warrants of attachment and sale are hereby lifted.ii.The execution proceedings having been held a nullity it follows the that the auctioneer costs are to be born by their client.iii.On costs of the application, the court holds that the claimants are entitled to fruits of their judgment which is yet to be settled by the government. In interest of justice the court orders each party to bear own costs in the application.

35. It is so ordered

DATED , SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF APRIL 2023 .Jemimah KeliJUDGEIn the presence ofCourt Assistant: LucyApplicant: Juma Collins – Senior State CounselRespondents: – Absent