[2018] KEEAT 1 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

EAT A 005/018

GARANG AWER NATHAN.........................APPELLANT

VS

BARINGO HIGH SCHOOL BOARD......RESPONDENT

RULING

Facts of the Case

Appellant’s case

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

1. The appellant herein (a student) was admitted at Baringo High School in February 2014 and assigned an admission Number 6746. He remained a student at the school up until sometime on or about the month of August 2016 when it is alleged that he was engaged in activities that caused unrest at the school subsequent to which he was expelled from the institution.

2. The records show that the appellant vide a letter dated 19th September 2016 addressed to The Baringo County Education Board sought it’s intervention on his expulsion/

3. Aggrieved by the decision of the respondent, vide a letter dated the 12th day of October 2016, he lodged this appeal seeking this tribunal’s intervention in the matter.

4. The major grounds upon which he lodges this appeal is that;

a. his dismissal was unlawful on account of unsubstantiated allegations of smoking bhang and that his attempts to appeal to the school & The County Education Board against the decision have been unsuccessful.

b. He has never been involved in consumption of drugs and has never smoked and as such the decision to suspend him was unlawful and discriminative since he holds a different nationality.

Respondent’s case.

5. Vide an email dated 26th March 2019, The tribunal received a response from the respondent which is essentially an extract of the minutes of a meeting by the Board of Management of baringo High School a report on the appellant’s admission background, disciplinary incidences, his involvement in activities leading to unrest at the school and the involvement of the Baringo County Director of education. The report reveals the following;

a. The appellant herein (a student) was admitted at Baringo High School in February 2014 and assigned an admission Number 6746.

b. The appellant’s records at the school show a history of indiscipline. The minutes of The Board of Management of Baringo High School reveal that the appellant has had a history of indiscipline in Form 1,2 & 3.

c. Sometime on or about 2016, Baringo High School experienced a serious unrest that culminated into the burning down of a dormitory at the institution. The appellant herein was adversely mentioned following interrogation of students after the unrest and during which he was mentioned to be a bhang smoker.

d. At the end of the interrogation, the respondent’s board of management recommended that the appellants parent finds him another school where he can be closely monitored against further usage of bhang.

e. The County Director of Education- Baringo County verbally requested the school to allow back students who were willing to reform and continue learning at the School. The appellant was among these students but has never reported back to the school neither has his parent ever followed up on the matter. Other students on the list recommended for exclusion were readmitted and have since completed their studies.

6. The appeal was set down for hearing on 30th July 2019 when none of the parties appeared before the tribunal despite being served.

Determination

9) From the foregoing, having gone through the representations by both parties, it is emerging that the appellant was a student who was subsequently excluded from the respondent institution following his continuous record of indiscipline. Despite being offered a chance to complete his studies, the appellant never took up the chance.

10) Having analysed the above facts, it is important to appreciate the law that governs disciplinary matters at learning institutions as well as the law establishing this tribunal.

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 “

Sec 93. The Education Appeals Tribunal

(1) There is established an Education Appeals Tribunal.

(2) Any person aggrieved by the decisions of the County Education Board may appal to the Education Appeals Tribunal.

(3) The Cabinet Secretary in consultation with the National Education Board and relevant stakeholders shall prescribe regulations on the operation and structure of the Education Appeals Tribunal.

(4) The Education Appeals Tribunal shall comprise of—

(a)the chairperson of the National Education Board;

(b)the Director-General;

(c) the Secretary to the Teachers Service Commission;

(d) a representative of the Education Standards and Quality Assurance Council;

(e) a representative of the Kenya Private Sector Alliance;

(f) a representative of the Attorney-General; and

(g) the Chief Executive Officer of the National Council for Nomadic Education in Kenya.

TheBasic Education Regulations, 2015atPART III provides for school rules, discipline procedures for students and exclusion as follows;

32. Individual liability for indiscipline

A learner shall be deemed to be individually indisciplined if involved in —

(a) physical fights;

(b) bullying of other learners;

(c) stealing;

(d) playing truancy;

(e) cheating in examinations;

(f) abusing teachers or other persons in authority;

(g) defiance of lawful instructions;

(h) drug trafficking or substance abuse; or

(i) any other conduct categorized as indiscipline by the Board of Management.

33. Mass indiscipline

Learners shall be deemed to have participated in mass indiscipline in the institution if they jointly take part in—

(a) unlawful demonstration;

(b) boycott of classes or meals;

(c) the destruction of school property; or

(d) invasion of other institutions, shopping centres or homesteads.

37. Register to be kept

Every institution shall establish and keep a register of indisciplined learners indicating the name, class, category of indiscipline, date and warning or any other corrective measures taken by the institution.

39. Procedure for handling disciplinary cases

(1) The particulars of the complaint preferred against the learner shall be read out to the parent or guardian and the learner at the meeting with the Board of Management under regulation 38, and the learner shall be asked to defend himself or herself.

(2) Where the parent or guardian fails to appear, the business of the Board shall be adjourned, and the matter shall be deferred and a new date set and communicated for the parties to appear.

(3) Where the parent or guardian fails to attend on the rescheduled date, the case shall be heard and determined such absence notwithstanding.

(4) In all disciplinary proceedings affecting a learner the attendance of the Sub-County Education Officer shall be mandatory.

(5)The recommendations of the Board of Management shall within two days be communicated to the County Director or Education.

40. Exclusion of learner from the institution in case of indiscipline

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; or

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

41. Appeals to the Tribunal

Any Person aggrieved by a decision under regulation 40 may appeal to the Education Appeals Tribunal.

7. From the foregoing, having analysed the facts of the case and the law, there is only one preliminary issue that arises for determination;

(i)Whether there is an appeal capable of being determined by the Tribunal.

12. The jurisdiction conferred on this tribunal is an appellate jurisdiction. That jurisdiction is strictly limited by section 93(2) of The Basic Education Act to matters arising from the decisions of The County Education boards. With utmost respect, the appellants case does not arise from a decision of the County Education Board.

8. In any event, it would appear that the decision to exclude the appellant from school was waived pursuant to the provisions of regulation 40(a) of The Basic Education Regulations 2015 upon the verbal intervention of The Baringo County Director of Education but he never took up the opportunity. It is now Two years since he lodged this appeal. There is therefore no decision by the County Education Board or The County Director of Education. There is therefore no appeal under the provisions of regulation 41 of The Basic Education Regulations 2015. In the absence of any reasonable explanation or appearance by appellant, this appeal therefore seems to have been rendered nugatory

Conclusion

The upshot of the foregoing is that this tribunal makes a finding that the grounds of appeal had already been waived upon the intervention of the County Director of Education but the appellant did not take up the opportunity. Consequently, we find that there is no appeal for determination before this tribunal under regulation 41.

Following the facts outlined above, this tribunal is not inclined to grant the appellant the relief sought save to declare the appeal nugatory and dismiss it.

That shall be the order of the tribunal

DATED and DELIVERED at NAIROBI this 12th day of November 2019.

WAIGI KAMAU - CHAIRMAN………….....................................