[2019] KEHC 5816 (KLR)
The court held that the respondents must be given an opportunity to be heard before any adverse orders are issued, in line with the constitutional right to a fair hearing. Since the caretaker committee was constituted before the petition was filed and the administrative decision had already been implemented,...
Source-derived case information.
- Citation
- [2019] KEHC 5816 (KLR)
- Parties
- Applicant: Domnick Obel Obongo; Applicant: The Board of Management Raliew Secondary School; Respondent: County Director of Education, Siaya County; Respondent: County Education Board, Siaya County
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 21 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Conservatory Orders and Directions on Response Timelines
- Outcome
- Application for conservatory orders declined; directions issued for filing of responses and written submissions.
- Judges
- RE Aburili
- Legal Topics
- Right to Be Heard, Conservatory Orders, School Management Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Domnick Obel Obongo
Applicant
The Board of Management Raliew Secondary School
Applicant
County Director of Education, Siaya County
Respondent
County Education Board, Siaya County
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Conservatory Orders and Directions on Response Timelines
Legal Issues
- 1 Whether the respondents should be granted leave to file and serve their response out of time.
- 2 Whether interim or conservatory orders should be granted restraining the respondents from managing the school through a caretaker committee.
- 3 Whether granting conservatory orders would amount to reversing an already implemented administrative decision.
Ratio Decidendi
The court held that the respondents must be given an opportunity to be heard before any adverse orders are issued, in line with the constitutional right to a fair hearing. Since the caretaker committee was constituted before the petition was filed and the administrative decision had already been implemented, granting conservatory orders at this stage would amount to reversing the respondents' decision without hearing them. The court therefore declined to issue the interim orders sought and instead set timelines for the filing of responses and written submissions by both parties.
Court Disposition
Application for conservatory orders declined; directions issued for filing of responses and written submissions.
Orders
- Respondents granted 3 days from the date of the ruling to file and serve their response to the application dated 3/6/2019.
- No conservatory orders granted as sought in prayers 2 and 3 of the Notice of Motion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL PETITION NO. 21 OF 2019
DOMNICK OBEL OBONGO.................................1ST PETITONER/APPLICANT
THE BOARD OF MANAGEMENT
RALIEW SECONDARY SCHOOL......................2ND PETITIONER/APPLICANT
VERSUS
COUNTY DIRECTOR OF EDUCATION, SIAYA COUNTY....1ST RESPONDENT
COUNTY EDUCATION BOARD, SIAYA COUNTY.................2ND RESPONDENT
RULING
1. The Respondents were served with the application as directed by the court on 3/6/2019 and have appeared and seek the leave of court to file and secure their response within 7 days of today. They also seek for directions on how the application should be disposed of.
2. The Applicant/Petitioner’s Counsel has no issue with the time being accorded to the Respondent to file and serve a response but seeks for interim/conservatory orders in terms of prayers Nos 2 and 3 of the Notice of Motion. According to the Respondent’s counsel, the impugned decision made on 21/5/2019 has already been implemented as a Caretaker Committee has been established to manage the school (Raliew Secondary School), in the place of the School’s Board of Management. In her view, the conservatory orders being sought have been overtaken by events especially Prayer 3 which seeks for an injunction to prohibit the Respondents from purporting to conduct the business of the subject school.
3. I have considered the request by the Respondent’s counsel and the request by the Petitioner’s counsel and the rejoinder to the latter. The right to be heard is a constitutional imperative. As such, this court must accord the Respondent an opportunity to be heard. The Respondent is hereby granted 3 days of today to file and serve a response to the application dated 3/6/2019.
4. On whether I should grant any conservatory orders at this stage as prayed for in prayer 2 and 3 of the Notice of Motion, I note that the Caretaker Committee was put in place on 21/5/2019 before initiation of this petition and therefore making conservatory orders amounts to reversing the decision of the Respondents which has been implemented without according them a hearing. Accordingly, I decline to issue any conservatory orders.
5. I further direct that the application dated 3/6/2019 shall be canvassed by way of written submissions. The Petitioner, upon being served with the response by the Respondent shall have corresponding leave to file and serve a further affidavit if need be, within 5 days of service, together with written submissions not exceeding 6 pages font 12 double spaced. The Respondent shall thereafter have 5 days from date of service within which to file and serve a supplementary affidavit if need be together with written submissions limited to 5 pages font 12 double spacing. Highlighting shall be on 24/6/2019.
6. Orders accordingly.
Dated, signed and Delivered at Siaya, this 10th Day of June 2019.
R.E. ABURILI
JUDGE
Ruling delivered in open court in the presence of:
Mr. Arika Advocate for the Applicants/Petitioners
Ms. Langat Counsel for the Respondents
CA: Brenda and Modesatr