[2017] KEHC 3083 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

PETITION NO.13 OF 2017

F B O ………………………...............................................…...........................……… PETITIONER

VERSUS

THE BOARD OF GOVERNORS [PARTICULARS WITHHELD] HIGH SCHOOL…RESPONDENT

RULING

INTRODUCTION:

1. The petitioner herein is a form 4 student [particulars withheld] High School who is due to sit for his form 4 exams in about a month’s time from now. On the 5th July 2017, the Principal of the school suspended the petitioner from school on accusations that the petitioner had been disrespectful to a teacher, had pushed a teacher with an intention to harm him, canning a junior student and poor grooming. On the 27th July 2017, the petitioner appeared before the disciplinary Ethics and Integrity committee of the Board of Management where the matter was heard. He was found guilty and the matter was referred to the full Board of Management. Before the matter was heard by the full board the petitioner filed a notice of motion dated 15th August 2017 seeking for orders that:-

1. Spent.

2. That the respondent be restrained from convening, meeting and or deliberating the petitioner/applicant disciplinary hearing, pending the hearing and determination of this application.

3. That a declaration that the respondent’s suspension of the petitioner/applicant conveyed in the letter dated 5th July 2017 and 27th July 2017 is unfair, unprocedural and against the law governing education and breach of the constitutional rights of a fair hearing.

4. That an order of permanent injunction restraining the respondent whether by itself, its servants or agents from continuing with the disciplinary action commenced against the petitioner/applicant and from continuing to threaten the education and rights of the petitioner/applicant without following due process and laid down law.

5. That an order of certiorari to remove into the High Court for the purpose of its being quashed the decision of the respondent to suspend the petitioner on the 5th and 27th of July 2017.

6. That in the alternative a prohibitory order directed at the respondent by itself, their servants, agents or any one acting on its behalf however from suspending and/or expelling the petitioner.

7. That the costs of this petition be borne by the respondent

8. Any other/further relief that this honourable court may deem fit to grant.

2. On the 6th September, 2017, the petitioner while accompanied by his father attended a board of management disciplinary meeting convened by the respondent. He was tried. On the 7th September, 2017, the respondent issued the petitioner’s father with a letter that indicated that the petitioner’s disciplinary matter had been referred to the Ministry of Education for consultation “on how best the petitioner could be integrated in the school given that he is a form four student.” The petitioner then filed an application dated 11th September, 2017 seeking for orders that:-

1. Spent.

2. That the petitioner be allowed to attend school and class pending the outcome of the disciplinary proceedings at the Ministry of Education.

3. That an order for readmission of the petitioner to the respondent school to enable him attend and complete his secondary education pending the hearing and determination of this suit.

4. That a prohibitory order directed at the respondent by itself, their servants, agents or any one acting on its behalf however from suspending and/or expelling the petitioner.

5. Spent.

6. That the costs at this petition be borne by the respondent

7. Any other/further relief that this honolurable court may deem fit to grant.

3. The two applications were argued together. The applications were supported by the affidavits of the petitioner and his father, one J O.

4. The petition was opposed by the respondent through the replying affidavit of its secretary and the principal of the school, Mr Oliver Minishi.

5. The grounds in opposition to the application are that the petitioner is of turpitude character and his presence in school is a threat to the safety of other students, staff and school property. That the right of the applicant cannot be exercised exclusively to the detriment of the rights of other students and Kakamega School community at large. That the respondent has done its best in an attempt to reform the applicant including hiring a professional counselor on drug addiction at its own cost but no positive response has been recorded. That it has become difficult to contain the applicant in school as he requires total confinement and rehabilitation and his case has been referred to the Ministry of Education for further action.

6. The petitioner is in the interim seeking for orders that he be re-admitted back to school pending the outcome of the disciplinary proceedings at the Ministry of Education and pending the hearing and determination of this suit. He is also seeking for a prohibitory order directed at the respondent by itself, their servants, agents or any one acting on its behalf whatsoever from suspending and/or expelling him from school.

Submissions by Advocates for the parties:

Advocates for the petitioner:

7. The advocate for the petitioner Mr Wesonga submitted that the Disciplinary, Ethics and Integrity Committee meeting held on 27th July 2017 dealt with extraneous matters that had occurred in February 2017 when the petitioner was accused of sneaking out of school and being in possession of drugs. That the board meeting of 6th September, 2017 also dealt with the same matter. The advocates submitted that the issues that had occurred in February 2017 had been finalized when the petitioner was ordered to undergo counseling which he did. That in raising the issues again in the meetings of 27th July, 2017 and 6th September, 2017, the petitioner was being tried for an offence that had been finalised.

8. The advocates further submitted there was a long delay before the board meeting was held. That under article 47 for the Constitution an accused person is entitled to an expeditious decision which was not the case for the petitioner.

9. That the petitioner has been out of school for more than 60 days. That he is due to start his final examinations in less than 30 days’ time. That the Ministry may take a long time to decide on the matter which will mean that the petitioner will not take his examinations. That there will be no prejudice if he is allowed back to school. The advocates cited the following authorities where courts allowed such prayers as are being sought in this case. – E.K. & 5 others vs The RegisteredTrustees of S.H.S, Petition No.18 of 2015 (2015) eKL: In the matter of ETN (suing as the next friend of ETK (minor) (2014) eKLR and R.W.T. (suing as the next friend and grandmother of BGNandSNS school, petition vs 290 of 2012 (2012) eKLR).

Advocates for respondent:

10. The advocates for the respondent M/s Rauto submitted that the orders being sought are seeking for conclusive orders that cannot be granted at interlocutory stage. Further that the prayers for certiorari and mandamus that are also being sought can only be sought by way of judicial review. That the petitioner is seeking for orders that he be readmitted back to school without any conditions in disregard of disciplinary proceedings. That the court cannot be used to interfere with a disciplinary process of a school.

11. Further that the board made a decision that the petitioner requires rehabilitation. That though the petitioner has his rights under the Constitution, his rights should be considered vis-avis the rights of the other students as the right of one student cannot be exercised to the detriment of the other students. That the best interests of the children must be considered as provided by article 53 of the Constitution. That section 16 of the Children Act provides that every child should be protected from use of drugs. That section 39(1) provides that every child should be protected from any form of violence. That it has been shown by the affidavits attached that the presence of the petitioner in school puts the welfare of the other students in danger. That it has been shown that he is a violent student who attacked a teacher, assaulted other students and threatened a watchman. That it is evident that the petitioner is still on drugs.

12. That the petitioner has only been out of school for 20 days as there was mid-term and August holidays in the period under consideration. That in those days the respondent has convened the disciplinary process.

13. That there are measures put in place for students facing disciplinary cases to sit for their examinations. That students are only revising and the petitioner will not suffer any loss. That it is the other students who will suffer prejudice if the petitioner is returned back to school.

Further that the principles for granting injunction have not been established.

14. The advocates cited the case of RCK (a child suing through her mother and next friend KRC) and KSI, Petition No.84 of 2014 (2014) eKLR, where Majanja J held that the court cannot substitute itself for the school in a disciplinary process but that the court can only satisfy itself that a fair process was followed.

DETERMINATION:

15. The petitioner alleges violation of his fundamental rights and freedom under articles 2(1), 12(1), 19(2), 20,21,22,23,25, 27(1), 47,48,50,53,159 and 160 of the Constitution of Kenya 2010. Article 22(1) provides that:-

“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”

16. Article 23(3) states that:-

“In any proceedings brought under Article 22, a court may grant appropriate relief, including

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) … ; and

(e) an order of judicial review.”

17. The role of the court when moved under the provisions of Article 22 of the Constitution is to enforce fundamental rights and freedom provided by the Bill of Rights. In appropriate cases, it can issue reliefs granted by Article 23. The petitioner herein is seeking for orders in the interim that he be re-admitted back to school pending the hearing and determination of his disciplinary case that is pending with the Ministry of Education and pending the hearing and determination of this suit. He is also seeking for orders of prohibition. In my view such prayers, in an appropriate case, can be granted at interlocutory stage pending the hearing and determination of the suit. The argument that the prayers sought cannot be issued at interlocutory stage does not stand.

19. The petitioner says in his petition dated 15th August 2017 that he is a “male adult” of sound mind. Article 53 of the Constitution provides for the rights of children including the right to free and compulsory basic education. Article 260 of the Constitution defines the meaning of “adult” and “child” as follows:-

“adult” means an individual who has attained the age of eighteen years.

“child” means an individual who has not attained the age of eighteen years.”

20. Though the petitioner makes reliance of right to education under Article 53 of the Constitution and the principle of the best interests of the child under the same article, the petitioner is an adult and therefore his rights should be considered as those of an adult and not those of a child.

21. The petitioner is seeking for orders of judicial review. The parameters of judicial review were set out by the Court of Appeal in Municipal Council of Mombasa vs Republic & Umoja Consultants and Civil Appeal No. 185 of 2001 in which it was held that:-

“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters … The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself – such as whether there was or there was not sufficient evidence to support the decision.” - (see Justice Odunga in In the matter of E.T.N. (suing as the next friend of E.T.K. (minor)(2014) eKLR.

The concern of the court in this matter is whether the petitioner was accorded a fair hearing process before the decision was made. The court should not involve itself in the merits or otherwise of the decision.

22. I employ the words of Majanja J inRCK (a child suing through her mother and next friend KRC) vs KSI (2014) eKLR where he said:-

“What constitutes a fair process is dependent on the facts and circumstances of each case. Implicit in the concept of fairness is flexibility. A school panel dealing with children matters must have the necessary flexibility having regard to the school environment and the child’s rights, to deal with student discipline provided that the process is fair; that the child who is subject to the proceedings is given a hearing and opportunity to defend himself or herself …”

23. The petitioner accused the board of not having taken a decision on the matter in its meeting of 6th September 2017. The letter dated 7th September, 2017 recommended:-

“urgent consultation with the Ministry of Education on how best F O could be integrated in the school … given that he is a form four student.”

24. The procedure for handling discipline in schools is spent out in Regulation 37 to 42 of The Basic Education Regulations of 2015. Regulation 39(5) of the Basic Education Regulations, 2015 requires that:-

“the recommendations of the Board of management shall within two days be communicated to the County Director of Education.”

25. Regulation 40 provides that:-

“where the County Director of Education receives the recommendation of the board of management then he or she shall seek the advice of the County Education Board as to whether to –

(a) order for conditional or unconditional re-admission of the learner.

(b) transfer the learner to an alternative institution.

(c) transfer the learner to a corrective center in the context of education.”

26. The board recommended integration of the petitioner with the school community. In effect, the board was recommending re-admission with conditions. It did not recommend extreme measures such as excluding the petitioner from school except him going there to do his examinations as alluded to by the principal of the school. If the board wanted to make such a recommendation it should have stated so in uncertain terms. The board seemed to consider that there are ways that the petitioner can still be retained in school despite the seriousness of the charges that he was facing. The principal of the school cannot now turn against the decision of the board towards integration and call for complete exclusion from the school.

27. It was argued that the presence of the petitioner in the school is a threat to safety of the other students of the school. That the rights of the appellant cannot be exercised exclusively to the detriment of the rights of the other students of [particulars withheld] High School.

28. In RCK vs KSI (supra) Majanja J observed that:-

“… in a school environment, it is the welfare of all the children that must be taken into account rather than one deviant child who has a disciplinary problem. But there is also a responsibility to be borne in respect of that one child, one that flows from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution …”

29. The petitioner has in fact less than two months in school. His examinations are due to start in a month’s time. The court takes judicial notice that at the onset of examinations the rest of the school except the form four candidates are going to close school. Only a few students will be in school most of the remaining period of the term. It is not impossible to contain the petitioner in school with such a small number of students. It is important that the petitioner prepares for his examinations and should be given an opportunity to do so. His right to education cannot be subordinated to the rights of other students unless there are cogent reasons to do so. The board did not think that the petitioner should be completely excluded from school and I should therefore give him that benefit of doubt.

30. The petitioner was suspended from school on the 5th July 2017. The board of management did not sit to consider the matter until the 6th September, 2017. This was two months after the suspension. Article 47(1) of the Constitution provides that every person has the right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Though the Basic Education Act and the Regulations made there-under do not provide the time in which the board ought to meet to consider a disciplinary matter against a student, it is expected that the matter is to be delt with expeditiously and within reasonable time. For the board to have sat on the matter for two months before meeting to consider it cannot be described as handling the matter expeditiously nor can the delay be said to be reasonable. The fact that the petitioner was a form 4 candidate should have made the board to move with speed and as soon as was possible so that the petitioner could know his fate. Even after the board referred the matter to the county Director of Education, (if it did so), the director had not made a decision in the matter by the time that this application was heard inter-partes on 19th September, 2017 which was two weeks after the board made its decision. The petitioner should not be made to wait longer than is necessary. In my view he has waited enough and the court’s intervention is necessary.

31. The petitioner was also seeking for a prohibitory order to stop the respondent or their agents from suspending and/or expelling him from school. The prayer is not clear as to whether it is on interim or permanent basis. I am however persuaded that such an order is necessary on an interim basis so as to enable the petitioner to prepare and do his final form 4 examinations pending the hearing and determination of the main suit.

32. In the foregoing I make the following orders that:-

(1) The respondent is hereby ordered either by itself, agent and/or servant to re-admit the petitioner back to school with immediate effect and to allow him to attend class pending the outcome of the disciplinary proceedings at the Ministry of Education and pending the hearing and determination of this suit.

(2) A prohibitory order is to issue and is hereby issued to the respondent and the County Director of Education Kakamega either by themselves, their servants, agents or anyone acting on their behalf from suspending the petitioner from school over matters concerning this case pending the hearing and determination of the suit herein.

Orders accordingly.

Costs in the cause.

Delivered, dated and sighed at Kakamega this 4th day of October, 2017.

J. NJAGI

JUDGE

In the presence of:

Abok holding brief Wesonga ……………......for petitioner

Akinyi holding brief for Rauto .………….…... for respondent

George ………………………………………... court assistant

Petitioner ……………………………..………..absent

Respondent …………………………………...absent