[2020] KEEAT 143 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

EAT A 008/018

DUNCAN OMORO………...………….……….……………APPELLANT

VERSUS

HEADTEACHER

ATHI RIVER G.K PRIMARY SCHOOL..…….…...……RESPONDENT

RULING

FACTS OF THE CASE

The brief facts upon which the appellant hinged this appeal are that;

1) Sometime on or about January 2018, The appellant herein accompanied 4 pupils to Athi River G.K Prisons Primary School with a view to enrolling them in class 4 & 6 from their former school Kyangosi Primary School.

2) He alleges that at the school he observed the following;

(a)The pupils were subjected to paying a fee of Kshs.300/= christened as “enrolment interviews.” for which no receipts were issued.

(b) An admission fee of Kshs.2,000 was levied for each new pupil.

(c) A fee of Kshs.2,000 was levied for every new parent.

(d) At the interview he made payments amounting to a total of kshs.5,000/= being interview & admission fees.

3) They are aggrieved by the decision to levy the fees as they believe it is contrary to the meaning of free & compulsory primary education.

4) The appellant avers that the action of charging fees is contrary to the provisions of sections 29(c ), 32, 34(1) & (5) of The Basic Education Act.

5) They allegedly referred the matter to The County Director of Education & The County Education Board who have not responded to date. However there is no evidence that the appellant indeed served the County Director of Education or The County Education Board.

6) Aggrieved by the aforementioned conduct of the respondent, the appellants seek the intervention of this tribunal on the decision by the respondent to levy pre-entry interview fees, admission fees, Justification of the fees and the school levying a fee of kshs.30 for meals.

7) The matter was then fixed for hearing and disposal on 17th September 2019 and 14th January 2020. On the appointed date, the appellants herein appeared before this tribunal and reiterated their complaints against the respondent.

8) The respondent did not appear at the proceedings.

DETERMINATION

9) From the foregoing, it is emerging that this tribunal has not received any response from the respondent on the matter despite being served severally including by the appellant.

10) The respondent is a basic education institution established and governed pursuant to the provisions of Basic Education Act & The Basic EducationRegulations 2015.

11) From the foregoing, this tribunal having considered the facts of the appellant’s case and taking into consideration the above provisions of the law, it makes the following observations;

12) This tribunal exercises an appellate jurisdiction by dint of section 93(1) of The Basic Education Act. This appellate jurisdiction is further limited by dint of section 93(2) of The Basic Education Act to appeals by any person aggrieved by the decisions of the County Education Board.

13) The appeal before this tribunal does not arise from a decision of The County Education Board but rather an action of the respondent institution. There is nothing on record that shows that the County Education Board was or has been involved in the impugned decision herein in accordance with section 34(6) & (7) of The Basic Education Act.

14) The request to address issues of pre-interview, payment of fees and justification of fees as well as the question on levying fees for meal are matters that are well set out in the Basic Education Act.

15) Having analysed the appeal herein and in the absence of an input from the respondent, it is important to appreciate the law establishing this tribunal as well as the law that governs admissions and payment of fees.

This tribunal is established under the provisions of section 93 of the Basic Education Act No.14 of 2013.

The Basic Education Act is

“An Act of Parliament to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes “

16) From the foregoing, having analysed the facts of the case, the issue that arises for determination is;

(i)Whether the respondent complied with the provisions of The Basic Education Act in levying the fees

17) In addressing this issue, it is important to set out the law that governs the question on tuition fees and such related matters.

The Basic Education Act provides as follows;-

Sec 29. Free tuition

(1)No public school shall charge or cause any parent or, guardian to pay tuition fees for or on behalf of any pupil in the school.

(2)Notwithstanding subsection (1)—

(a)tuition fees may be payable by persons who are not Kenyan citizens;

(b)other charges may be imposed at a public school with the approval of the Cabinet Secretary in consultation with the county education Board provided that no child shall be refused to attend school because of failure to pay such charges;

(c)no person shall collect levies without issuing an official receipt.

32. No payment of fee for admission

No person shall while admitting a child to a public school or basic education institutions collect any admission fee.

34. No denial of admission

(1) A child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed.

(2) A school or person responsible for admission shall not discriminate against any child seeking admission on any ground, including ethnicity, gender, sex, religion, race, colour or social origin, age, disability, language or culture.

(3) The provisions of subsection (2) shall not apply in matters relating to gender in cases where a school is registered for a particular gender.

(4) No public school shall administer any test related to admission of a child to a public school or cause a person to administer such test unless such a test is for purposes of placing the child at an appropriate level of education.

(5) No child shall be denied admission to a public school.

(6) A parent of a child who has been denied admission to a public school may notify the County Education Board of the decision.

(7) The County Education Board shall review the decision of a school that denies a child admission.

The Basic Education Regulations 2015 provide as follows;

44. Fees

No public school or institution shall issue alternative fees structures other than those approved by the Cabinet Secretary.

45. No fees increment without the authority of the Cabinet Secretary

No person or Board of Management in a public institution of basic education and training shall alter or increase fees without written authority from the Cabinet Secretary.

46. Offence

The members of the Board of Management of an institution which contravenes regulation 44 or 45 shall jointly and severally be guilty of an offence under the Act.

18)From the foregoing, the actions complained of by the appellant ought to be weighed against the relevant provisions of the law.

19) Section 29(2)(c) of The Basic Education Act outlaws collection of levies without issuing official receipts. The appellant complained that the respondent collected a sum of kshs.5,000/= without issuing any receipt. Despite complaints and requests for clarification, the respondent never addressed the complaints. The school did not even bother to respond to this appeal. In the absence of any response, this tribunal finds and holds that there is an irrefutable presumption that the action of the respondent of collecting fees without issuing an official receipt was contrary to the provisions of the Basic Education Act.

20) Section 32 of The Basic Education Act outlaws levying of admission fees by any person or an institution of basic education admitting a child to school.

The appellant alleged that the respondent levied an admission fee of Kshs.2,000/= at the admission of the pupils. Again it is regrettable that the school did not even bother to respond to this appeal. In the absence of any response, this tribunal finds and holds that there is an irrefutable presumption that the action of the respondent of levying fees was contrary to the provisions of the Basic Education Act.

21) Section 34(5) of The Basic Education Act provides that no student shall be denied admission into any public school. There is no doubt that the respondent institution is a public school. The appellant alleges that Two out of the Four pupils were initially denied admission for allegedly having failed the interviews that were conducted. They were later on admitted upon complaints by the appellant. The action by the respondent of denying the pupils admission was contrary to the provisions of the Basic Education Act.

In the absence of the input by the respondent on the allegations by the appellant, it is not clear whether the fees levied by the respondent was in accordance with regulation 44 & 45 of The Basic Education Regulations 2015. The action of the respondent was contrary to the provisions of section 34(5) of The Basic Education Act.

CONCLUSION

The upshot of the foregoing is that this tribunal directs as follows;

1) The Machakos County Education Board should take up this complaint by the appellant and lodge it’s findings before this tribunal within 21 days upon being served with a copy of this ruling.

2) That shall be the order of the tribunal.

DATED and DELIVERED at NAIROBI this 18th day of February 2020.

Hon. Waigi Kamau - Chair..............................

Hon. Elyas Abdi - Member………………..………

Hon. Dr. Pius Mutisya - Member…………………………

Hon. Catherine Namanda - Member………………………..