[2018] KEHC 7073 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

JUDICIAL REVIEW APPLICATION NUMBER 2 OF 2018

IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW

AND

IN THE MATTER OF ARTICLES 43(1)(F) & 53(1)(B) OF THE CONSTITUTION

AND

IN THE MATTER OF THE RIGHT TO BASIC EDUCATION UNDER ARTICLE 43(1)(F) & 53(1)(B) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE BASIC EDUCATION ACT SECTION 28(1), 35(2) AND REGULATION 40, OF THE BASIC EDUCATION ACT REGULATIONS

BETWEEN

1. E M N (MINOR)

2. B M M (MINOR)

3. J M M (MINOR)

suing throughBENJAMIN NDAKA MUNYITHYA........APPLICANTS

VERSUS

1. THE BOARD OF MANAGEMENT KISASIBOYS

SECONDARY SCHOOL..........................................1ST RESPONDENT

2. CABINET SECRETARY, MINISTRY OFEDUCATIONSCIENCE

AND TECHNOLOGY..............................................2ND RESPONDENT

3. THE ATTORNEY GENERAL............................3RD RESPONDENT

RULING

1. By a Chamber Summons dated 18th April, 2018 and filed on the 19th April, 2018 the Applicants herein sought the following reliefs:-

1. That leave be and is herby granted to the Applicant to institute proceedings for the following orders of Judicial Review:

a. An order pursuant to Section 11(1)(e) of the fair Administrative Action Act directing the first Respondent to unconditionally re-admit and permit the minors to undertake and continue with the normal education programmes at Kisasi Boys Secondary School.

b. An order pursuant to Section 11(1)(i) stopping the exclusion/expulsion of the minors until the hearing and determination of this Application.

c. An order of certiorari to bring into this Honourable court and quash the decision of the first and second Respondent passed on 19th March 2018 excluding or expelling the minors from Kisasi boys Secondary.

d. An order of mandamus compelling the first Respondent to unconditionally re-admit, maintain in school and permit the minors to undertake and continue with the normal education programmes at Kisasi Boys Secondary School.

2. That the grant of leave herein operates as a stay of the decision to exclude or expel the minors from Kisasi Boys Secondary school.

3. That the costs of the Application be provided for.

2. The Application is supported by the statutory statement filed together with the chamber summons and the Applicants verifying affidavit sworn on 18th April, 2018.

3. The Application is based on the grounds that the 1st Respondent and its Board of Management had purported to expel the Applicants from the School on the grounds that they had engaged in some form of indiscipline while they were at home during a school half term break.

4. The Applicant’s contend that the actions of the 1st Respondent have prejudiced the Applicant’s constitutional rights to basic education as well as their rights and welfare as children and that their preparation for the K.C.S.E exams due in the third term have been severely affected.

5. The 1st Respondent strenuously opposed the Application. The 1st Respondent’s outgoing Principal Charles Muema Kyambi filed a replying affidavit dated 27th April, 2018 in which he deponed inter alia that the Applicants had been involved in several previous disciplinary cases with the school administration in which they were punished, that the Applicants had been arrested and placed in police custody for being drunk and disorderly, that after the Applicants had been subjected to disciplinary proceedings were subsequently expelled, that it was not safe to have the Applicants back in school since they are a danger to the welfare of other students as they are likely to cause incitement and influence other students into chaos, that the Applicants will not suffer any prejudice since they in collaboration with their parents had already cleared out of the school at their own volition, that the 1st Respondent is opposed to grant of leave operating as a stay of the decision to exclude the applicants from the 1st Respondent’s school.

6. It is the action on the part of the 1st Respondent to exclude or expel the Applicants from its school which has led to the present proceedings whereby the Applicants are seeking for leave for judicial Review orders of certiorari and mandamus and that the applicants are now seeking for an order that the leave should operate as a stay of the decision of the 1st Respondent and that they be allowed back into school to continue with their studies like their fellow colleagues currently in school.

7. On the 19th April, 2018 the Application for leave to commence Judicial Review proceedings was first placed before Hon. Lady Justice Mutende at Kithi High court who upon considering the Application granted leave as sought by the Applicants but deferred the hearing on the question whether the leave so granted shall operate as a stay to be canvassed before me at Machakos High Court. Hence it is the prayer for stay that the Applicants are now seeking before this court pending the determination of the substantive Application for the judicial review orders of certiorari and mandamus.

8. Mr. Kimuli learned Counsel for the Applicants submitted that the Applicants are students at the 1st Respondent’s school who are registered to sit this year’s KCSE examinations and who were first kicked out of school on 5/3/2018 and later subjected to a flawed disciplinary proceedings. The Counsel submitted that the Basic Education Act 2013 does not permit students to be out of school yet the Applicants have remained at home for two months now. It was also submitted that the County Director of Education was alerted of the expulsion one month thereafter instead of the two days as per the Regulations. Learned Counsel contends that the Applicants future now is bleak and ought to be permitted back to school as they had been above average academically. Finally it was submitted that the Applicants had been condemned unheard and will suffer greatly if they remain out of school and hence the need for stay to be granted.

9. Mr. Mwalimu learned counsel for the Respondent submitted that the 1st Respondent’s Board of Management was compelled to institute disciplinary proceedings against the Applicants who had flouted the school Rules and Regulations by engaging in drunkenness and disorderly conduct while they were on half term break. It was further submitted that the Applicant’s were highly undisciplined and uncontrollable and are likely to influence the rest of the students into bad behaviour as it is common knowledge that several schools have had students engaging in mayhem. It was finally submitted that the parents of the Applicants have since had the Applicants cleared from school and organized alternative schools and the Applicants to only come back to do exams.

10. I have considered the Application and the rival affidavits as well as the oral submissions of the learned counsels for the parties. My task in this matter is to determine whether or not to grant an order that the leave do operate as stay of the proceedings in question. The guiding principle has always been that where the decisions ought to be quashed has been implemented then leave should not be allowed to operate as a stay. In the present circumstances it is noted that the expulsion of the Applicants has already taken place as we speak and they are out of school. The 1st Respondent has presented some clearance forms indicating that the Applicants have since cleared from the school. Indeed the Judicial review orders are prerogative in nature and often have to do with the decision making process which is being challenged and therefore if the decision has been implemented it becomes rather difficult and unhelpful to allow the leave to operate as a stay. The only avenue is to proceed and delve into the main prayers sought in the substantive Application.

11. Learned counsels for the parties herein in their submissions seemed to urge this court to see which of the parties is likely to benefit when the scales of justice is tilted. The Applicant’s counsel maintains that the scales of justice tilt in favour of the Applicants to continue with their education while in school. On the other hand the Respondent’s counsel is of the view that the discipline at the Kisasi boys Secondary school cannot be guaranteed if the Applicants are re-admitted since they are likely to incite the other students thereby disrupting the peace and tranquility at the school. This court must then balance the competing interests and the scales. It is noted that the Applicants already are no longer in school having been expelled and cleared from school. If they are to be re-admitted back then the question would be “what will happen if the Applicants do not succeed in the end when the substantive Application will have been determined?” If that happens then the 1st Respondent would have been prejudiced as it will have been forced to re-admit the Applicants before the substantive Application is determined. I note that the Applicants have already been cleared from school but have been given the opportunity to come back for their exams and hence I find an order of stay if declined would not seriously prejudice them in the meantime as the main Application is being canvassed. In the premises I find the scales of justice and convenience tilts in favour of the 1st Respondent to the effect that an order of stay is not efficacious. The substantive Application if expedited will eventually suit the parties in this matter.

12. In the result it is the finding of this court that the request by the Applicants that the leave do operate as a stay is declined. The parties are directed to expedite the hearing and determination of the substantive Application for judicial review orders of certiorari and mandamus. The costs of the Application shall be in the cause.

Orders accordingly.

Dated and delivered at Machakos this 7th day of May, 2018.

D. K. KEMEI

JUDGE

In the presence of:-

Kimuli/Mati for the Applicants

Nthiwa for Mwalimu - for the 1st Respondent

Kituva - Court Assistant