[2022] KEHC 10447 (KLR)

GM (Suing as the father and next friend of (JTM Minor) & another v Board of Management M High School & 3 others; Ministry of Education & 7 others (Interested Parties) (Constitutional Petition E005 of 2022) [2022] KEHC 10447 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10447 (KLR)

Republic of Kenya

In the High Court at Kiambu

Constitutional Petition E005 of 2022

RB Ngetich, J

July 21, 2022

IN THE MATTER OF ARTICLES 3, 10, 20, 21, 22(1), 23, 28, 43, 47, 50 and 53 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 28, 43, 47, 50, AND 53 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTIONS OF THE BASIC EDUCATION ACT (2013) AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE CHILDREN ACT (2001) S. 4, 7 AND 22 AND IN THE MATTER OF THE UN CONVENTION ON THE RIGHT OF THE CHILD ARTICLES 28(2) AND 29 AND IN THE MATTER OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ARTICLE 13

Between

GM (Suing as the father and next friend of (JTM Minor)

1st Petitioner

Kenya National Commission of Human Rights

2nd Petitioner

and

Board of Management M High School

1st Respondent

AMM, Chairman Board of Management M High School

2nd Respondent

Principal M High School

3rd Respondent

Attorney General

4th Respondent

and

Ministry of Education

Interested Party

Principal Secretary State Department for Early Learning and Basic Education

Interested Party

County Education Board Kiambu County

Interested Party

Kiambu County

Interested Party

Regional Director of Education Central Region

Interested Party

Teachers Service Commission

Interested Party

Cradle–the Children Foundation

Interested Party

Millie Odhiambo

Interested Party

Judgment

Introduction 1. The 1st petitioner GM and 2nd petitioner filed this petition on 2nd February 2022 following suspension of 1st petitioner JTM from the school on 10th July 2021 by the 3rd Respondent on allegation of sexual misconduct. The 1st petitioner JTM filed this petition through his father GM. The 2nd petitioner is an independaent National Human Rights Institution and a Constitutional Commission. The petition is supported by the supporting affidavit of GM the 1st petitioner.

2. The Petitioners seek the following orders in the petition:-a.A declaration be and hereby issued that the purported suspension and/or expulsion of the 1st Petitioner by the Respondents is illegal, unfair, unreasonable and amounts to abuse of power and therefore unconstitutional.b.A declaration that the 1st Petitioner’s rights to education and right to fair administrative action were infringed and continue to be infringed by the Respondents and that the suspension and/or expulsion was and continues to be an infringement of his fundamental right to free and compulsory education as guaranteed by the Constitution and the Basic Education Act.c.A declaration be and is hereby issued that the conditional readmission of the 1st Petitioner as a day scholar resolved by the 1st, 2nd and 3rd Respondent on the 21st of September is illegal, insensitive, oppressive and punitive and amounts to a violation of the 1st Petitioner's right to compulsory education in line with the Basic Education Act dignity as guaranteed under Article 28 of the Constitution.d.An order of Mandamus to issue compelling the Respondents herein jointly and severally to immediately and unconditionally readmit the 1st Petitioner to M High School and to facilitate the resumption of his studiese.An order be and is hereby issued directing the Respondents jointly and severally to make the appropriate arrangements with a view to helping the 1st Petitioner to compensate for lost learning time and provide him psychosocial support.f.An order do issue directing the Respondents jointly and severally whether by their employees, servants or agents or any of them or otherwise howsoever from victimizing and/or harassing the 1st Petitioner in any manner whatsoever following his reinstatement and re-admission to school.g.General damages.h.Exemplary damages for callous conduct and gross disregard for the law by the 1st,2nd and 3rd Respondents.i.Cost of this suitj.Any such further and/or other relief as this Honourable Court may deem fit and just to grant in the interest of justice and that may become apparent and necessary in the course of these proceedings.

The 1st Petitioner’s Case 3. The 1st Interested Party by a letter dated 20th August 2021 directed the 3rd Interested party to investigate the matter and file a report within 7 days.

4. On 21st September 2021,the 1st Respondent decided to have the 1st Petitioner re-admitted as a day scholar. The decision to readmit the 1st Petitioner as a day scholar was overturned by the 3rd Interested Party and the 1st Petitioner was re-admitted to the school as a boarder on 1st November, 2021.

5. The Petitioner averred that in a surprising turn of events, on 6th November 2021, the 1st Petitioner was driven out of school by the 2nd Respondent and escorted home by two teachers without notice to the parents.

6. Thereafter the 1st Respondent in a meeting held on 8th November declined to re-admit the 1st Petitioner as a boarder, without any justifiable course.

7. The petitioner averred that the 1st Petitioner's rights have been violated as the conditional readmission of the 1st Petitioner is oppressive, insensitive, impractical and punitive. The actions of the Respondent are unconstitutional, unlawful and prejudicial to the 1st Petitioner.

8. The 1st Petitioner’s contention is that he was not accorded a chance to be heard as enshrined in Article 50(1) and Article 47 (1) (2) on fair administrative action as per the Constitution of Kenya. The Respondents have not supplied the 1st Petitioner with details or reasons for the complaint nor has been accorded an opportunity to be cross-examine on statements and there was no warning issued to the 1st Petitioner and therefore the decision of the Respondents was ultra vires.

1st , 2nd and 3rd Respondent’s Case 9. In response, the 1st,2nd, and 3rd Respondents filed replying Affidavit sworn by JMK the school Principal. He averred that the petition is frivolous, malicious and bad in law for reasons the petitioner has filed a similar matter in Kiambu J.R. No 12 of 2021 and the matter is pending hearing and determination.

10. That the petition is based on malice and spite in violation of Article 236 of the Constitution of Kenya 2010; there is no person in form of the 3rd Respondent and the inclusion of the interested parties is aimed at intimidating the court and the Respondents and further, the petition is anchored on manipulation and concealment of material facts.

11. He further averred that the 1st Petitioner was re-admitted back to school on modalities that the 1st Respondent was to ensure safe and smooth integration of JTM with the entire student population.

12. That on 9th July 2021, a report was made that the 1st Petitioner had attempted to sexually abuse another student while asleep, as investigations continued on the evening of that day, the students were rowdily armed with sticks and ready to deal with JTM; the parents were invited for a disciplinary review of the case on 29th July 2021, when JTM’s mother requested for time to discuss the issue with her spouse and give feedback but never communicated. The school forwarded the matter to the board and the parents of JTM were informed.

13. That upon re-admission of JTM to school, there was unrest by other students prompting the school to deploy extra security to protect the interest of JTM and to ensure his safety in school but JTM was socially isolated and was always alone and discrete name-calling by other students;that he slept late and could not mingle with other students for meals. He averred that JTM safety was not guaranteed in school and the 3rd Respondent sent the student back home after calling JTM’s mother who declined to take the student.

14. He further averred that in the best interest of JTM, the school drove the student home to avoid any harm being visited on him.

15. The respondents filed further affidavit sworn JMK the Principal of the 3rd Respondent on 9th March 2022. In response to the letter dated 20th August 2022 by the 1st respondent, he averred that the school has never at any particular time suspended JTM as a disciplinary sentence. He further averred that the decision following Disciplinary committee held on 29th July 2021 was made with the aim of securing JTM’s best interest and his mother’s request for time to consult her husband befor making decision on way forward.

16. He further stated that Part III of the Basic Education Regulation,2015 does not contemplate and or provide fo a situation such as one arising in this case and actions of the school in response to the situation do not fall under paragraphs 39 and 40 of the said Regulations.

17. A further affidavit sworn by Francis Wachira a security officer at M High School was filed. He averred that on 9th July 2021 at about 7. 15 pm, there were rowdy students who walked out of their classroom armed with stones and sticks in an attempt to attack JTM but the situation was controlled through the intervention of the teachers and other security guards.

6th interested party grounds of opposition 18. The 6th interested party opposed the petition and filed grounds of opposition on 23rd February 2022 seeking to have its name struck out of the petition on the following grounds:-a.That the 6th Interested party’s mandate under Article 237(2) of the Constitution is purely teacher regulation and teacher management and the 6th interested Party has no role in admission, discipline, suspension and expulsion of students in learning institutions.b.That the school management functions, admission and discipline of students in learning institutions are a mandate of the Ministry of Education through the Board of Management of the school where the school Principal is seated as the Secretary to the Board.c.And accordingly, the 6th interested party has no identifiable stake or legal interest or duty in the proceedings of the suit herein and will not be affected by the decision of the court when it is made either way.d.That the 6th Interested party has no cause to champion in the proceedings and therefore will not be making any substantive submissions towards assisting the court to adjudicate on the issue before it.

1st Petitioner’s Supplementary Affidavit 19. The 1st Petitioner filed supplementary affidavit dated 18th April 2022 sworn by GM. He averred that JTM was denied an opportunity to be heard in school and was shocked to read the Replying Affidavit by the Principal. That the facts surrounding the suspension raised in the affidavit were never disclosed to the 1st petitioner and the response did not refute the allegation that JTM was denied due process. Further that there is no credible complaint against JTM by the alleged victim of sexual assault; the statement by the victim was done in coercion by the 3rd Respondent as the school had already made up their decision to permanently exclude the JTM from school.

20. He averred that the allegations raised in the Replying Affidavit have never been put across to the 1st petitioner to rebut or defend his case and the annexures produced as JTM’s accuser's statement have no signature calling for the question of the authenticity of the authorship.

21. JTM in statement annexed stated that there was no unrest in school and he did not have any problems when he was re-admitted back to school and allegations that there was a need for protection and allegation that extra security deployed is a blatant lie aimed at frustrating JTM.

22. He averred that it remains that JTM was condemned unheard and his right of best interest of the child has been violated and frustrated and the Respondents should adhere to the decision of the 3rd Interested party and non-admission of the Petitioner is a fabrication and a feeble attempt to keep the 1st petitioner away from school; that the respondents have violated the Petitioner's rights enshrined in the Constitution have been violated.

Statement by JTM 23. In a statement, JTM stated that he has never been involved in homosexual behavior and the claim by the alleged victim is unsubstantiated as the victim stated nothing ever happened to him; and he has been punished for falsehood information and his right to education curtailed.

24. He further stated that he was condemned unheard at the school for the alleged allegations of 8th of July 2021 of inappropriate touching of a friend as no disciplinary hearing was conducted; and he is shocked that most information about the incident was relieved through the Principal’s affidavit.

25. He furher stated that when he was re-admitted on 1st to 6th November 2021, there were no extra guards deployed to the school to guard him neither was he at any time treated with hostility by other students nor called derogatory names.

26. He stated that the school reacted to his quest for justice vindictively and mobilized false witnesses to taint his name and the decision to admit him as a day scholar is not genuine.

27. He stated that he wishes to return to school and continue with his studies and will conduct himself with dignity and decorum.

28. hearing of this petition proceeded by way of written submissiions.

Petitioner’s Submissions 29. Counsel for the petitioners submitted that Kiambu Judicial Review Application No. E012 of 2021 was withdrawn by the Petitioner with no orders as to costs on 2nd February 2022 and the Petitioner filed the current Judicial Review Application on the same day. Counsel submitted that the averments in the petition have not been controverted by the Respondents.

30. Counsel raised 5 issues in submissions as set out hereunder:-a.Whether there was procedural impropriety on suspension, expeditious handling of the matter, lack of opportunity to be heard, re-admission,b.Was JTM safe in schoolc.Whether Petitions pre-matured.What is the best interest of JTMe.Whether JTM is entitled to the prayers sought

31. On the issue of the disciplinary process, counsel submitted that JTM was send home from school on 10th July 2021 for 14 days. By 29th July 2021 there was no communication by the school which was in contravention with Section 35 of the Basic Education Act as the Respondent have no mandate to expel or indefinitely suspend students unless pursuant to regulation 38 of the Basic Education Act 2015 which has not been pleaded by the Respondents. Counsel further submitted that the Respondent ought to have issued several warnings to a student before the decision to expel a student is reached.

32. Counsel submitted that there was no letter issued to JTM requiring him to attend the board for a disciplinary together with her parents as provided for under Section 59 (f) of the Basic Education Act,2013 and cited the case of Republic vs Board of Management St. Joseph’s School Rapogi (2019) eKLR where the court addressed the issue of the letter as per Regulation 38 which must contain the following,a.addressed to the parent or guardianb.state the nature of indiscipline, andc.Specify/state the date the student accompanied by parent or guardian is required to appear before the board for a disciplinary.

33. Counsel argued that the institution usurped powers of the Board of Management and the County Education Board by suspending JTM and further the institution acted ultra-vires by suspending JTM for more than 14 days.

34. The court was urged to find the Principal has no mandate to expel JTM from school without referring to the Board of Management.

35. On the issue of expeditious handling of the matter, counsel submitted that the Respondents took two (2) months to communicate their decision to re-admit the 1st Petioner as a day scholar after their decision was overturned by the County Education Board. That the applicant is still out of school to date since he was expelled on 10th July 2021 and his right to education is under threat as he is forced to stay out indefinitely.

36. Counsel further submitted that JTM was not accorded an opportunity to make any representation in his defence; the action is unlawful and against the tenets of the Constitution and the principles of Natural Justice.

37. On the issue of re-admission, counsel submitted that the respondents if not satisfied with the decision of the County Education Board to have the student re-admitted would have filed an appeal and failure to appeal, they are estopped from failing to comply with the directions of the Education Board.

38. On the issue of security, counsel submitted the Parent of JTM could not have filed the current petition before the court if JTM stands to suffer great risk while in school and added that the Principal ought to have controlled the students who are said to be rioting and or demonstrating.

39. Counsel further submitted that Article 22(1) of the Constitution allows any party whose rights have been infringed a right to institute court proceedings and it is in the best interest of JTM that he be re-admitted to M High School as his right has been grossly violated by his continued stay out of school indefinitely yet allegations of sexual assault against him have not been corroborated.

40. In conclusion, counsel submitted that the procedure laid down for dealing with cases of indiscipline by students under the Basic Education Regulations 2015 was not complied with, that the entire disciplinary process is unfair, irrational, unreasonable and unlawful and it violates the best interest of the child. The court was urged to grant the reliefs sought.

6th Interested Party’s Submissions 41. Counsel for the 6th interested party filed submissions dated 22nd April 2022 and submitted that the mandate of the 6th Respondent is limited to teacher management function and regulation of the teaching profession as provided under the Constitution and the Teachers Service Act. The management and disciplines of the students is a function reserved by the 1st Interested Party through the Board of Management.

42. The 6th Interested party submitted that it has no identifiable legal interest in the present case, the issues in the petition and the prayers sought therein do not demonstrate any iota of the duties of the 6th Interested party and no prejudice will be suffered by the 6th Interested party; will not be affected by the outcome of the suit and has no case to make before this court

43. The 6th interested party urged court to find that it was wrongly enjoined in the suit and therefore unnecessary party to this suit.

1st ,2nd and 3rd Respondent Written Submissions 44. Counsel submitted that the petition is bad in law, premature, frivolous and bad for want of jurisdiction. That there has never been a disciplinary process in respect of the allegations of JTM as on 29th July 2021 mother to JTM requested time to consult the spouse as well as come up with a possible solution. That the petitioner is still forum shopping as the Judicial Review Application No. 12 of 2021 is still pending in court and there is no evidence of any such withdrawal.

45. That the petitioner has not presented evidence as to why only certain persons of the Board of Management have been enjoined as respondents while others are enjoined as interested parties; and further as per Article 236 of the Constitution, a public officer shall not be victimized or discriminated against for having performed the functions of their office and urged court to strick out the 2nd and 3rd Respondents from the Petition.

46. Counsel further submitted that the parents of JTM contributed to the delay in handling the matter as when a decision was arrived to re-admit JTM, it was conditional and in case of any eventuality, the parents would be called to pick him up from school;that when he was re-admitted, there were chaos and name calling and when the parents were called to pick him, they failed to do so and the school intervened by having two police officers escort JTM home.

47. Counsel further submitted that the petitioner has failed to follow the laid down mechanism as he could have preferred an appeal to the County Education Board instead of filing the current petition. That the County Education Board is yet to give and clarify the mode of re-calling JTM.

48. Counsel submitted that there was a threat to JTM’s life and it was in his best interest that his life be protected as per Article 53(1) (d) of the Constitution which provides as follows:-“every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and hazardous or exploitative labour.”

49. And submitted that the best interest of the minor is to be outside the school compound as he will be subjected to physiological hurt and torment if allowed to be re-admitted.

50. Counsel further submitted that there is no disciplinary process facing JTM and as such rely on the directives by the Chief Justice on 24th May 2022 that all disciplinary cases filed in court against schools should be dismissed.

Analysis and Determination 51. I have perused and considered grounds of the petition herein, averments in affidavits filed and the submissions by counsels of parties herein and find the following as issues for determination:-a.Whether due process was followed in suspending/excluding the petitioner JTM from school.b.Whether the petitioner entitled to reliefs sought?

(i) Whether due process was followed in excluding the petitioner JTM from school. 52. From the evidence adduced, JTM was a student in M High school in form 3 scheduled to sit KCSE examinations in December 2022. From the averments and documents filed, he was sent home on 10th July 2021 on allegation that he had inappropriately touched a fellow student. By letter dated 20th August 2021 the 1st interested party directed the 3rd interested party to investigate and give report in 7 days. The letter indicate that under Section 39 and 40 of Basic Education Act exclusion of a learner from school is a preserve of County Director of Education following direction from County Education Board. On 21st September 2021, the 1st respondent met and resolved to readmit JTM as a dayscholar.

53. On 19th October 2021, the 3rd interested party County Education Board Kiambu met and made a resolution to direct the 1st respondent to readmit JTM as a boarder. He was re-admitted to school on 1st November 2021 where he stayed up to 6th November 2021 before he was escorted home. On 8th November 2021 1st respondent met and rejected the decision of 3rd interested party to re-admit JTM as a boarder.

54. The 1st Petitioner contends he was not given a chance to respond to the allegations facing him prior to decision to exclude him from the school as a boarder Contrary to Section 35 (2) and (3) of the Basic Education Act. It provides as follows:-(2)no pupil admitted in a school, subject to subsection (3) shall be held back or expelled from school.(3)subject to subsection (1)the Cabinet Secretary may make regulations to prescribe the expulsion or the discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity to be heard:Provided that such a child shall be admitted to an institution that focuses on correction in the context of education.

55. From wording of Section 35 of the Basic Education Act, expulsion should be resorted to after all other corrective measures have been exhausted and after the parent and student has been given an opportunity to be heard.

56. The Respondent’s argument is that no disciplinary process has been conducted and blamed the mother of JTM who was to communicate her option but failed to do so within the requisite time.

57. There is no dispute that the minor was out of school for more that 14 days from 10th July 2021. At the expiry of the required 14 days,there was no communication to the student nor the parent prompting intervention by the Ministry of Education, the 1st interested party herein. Even though in averments and submisssions the 1st,2nd and 3rd respondents argue JTM has not been expelled, it is not disputed that the student has been at home to date a period of almost one year. In my view that is constructive expulsion.

58. From the letter dated 20th August 2021 by the 1st interested party as per Section 39 and 40 of Basic Education Act, it is the County Director of Education who is madatated to exclude a leraner from school following resolution of County Education Board, the 3rd interested party herein.

59. From the letter dated 22nd October 2022 addressed to 1st and 3rd respondent by the 3rd interested party, the 3rd interested party confirm that investigations were done by two teams on 13 th October 2021 which interacted with school management, some student and visted [Particulars Withheld] Dormintory where the incident is alleged to have occurred and reports were presented to the 3rd interested party on 19th October 2021.

60. From the said letter,the County Education Board passed a resolution to have the student JTM readmitted immediately upon receipt of the communication and directed that the student be given psychosocial support and support to recover lost learning.

61. The 1st respondent passed a resolution on 8th July 2021 to reject the 3rd respondents resolution which was reached after investigation by two teams mandated by the 3rd interested party.

62. I note that the 1st,2nd and 3rd respondents acknowledge existence of appeallate system by submitting that the 1st petitioner did not exhaust available mechanism by failing to appeal yet they went ahead to reject 3rd interested paty’s resolution to have JTM readmitted instead of appealing against the decion in the appeals tribunal as required under Section 93(3) of the Basic Education Act No. 14 of 2013 Laws of Kenya.

63. JTM in his statement said full disclosure of allegations against him were in replying affidavit by the school Principal. He argued that he was not given a chance to know the allegations and respond to them. He further stated that the alleged victim denied being touched inapproprietly. I note that the letter dated 24th August 2021 inviting the petitioner’s parent to appear before disciplinary hearing on 9th September does not disclose particulars of the allegations against the petitioner.

64. From the forgoing,I find that the 1st petitioner was not served with particulars of allegations to enable him participate in the proceedings thus contravening his right to natural justice.

65. Article 47 of the Constitution provides as follows:-“47. (1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

66. I note that JTM has been out of school since 10th July 2021 a period of about one year now despite him being a form three (3) student who is scheduled to sit for Kenya Certificate of Secondary Education(KCSE ).

67. Further to the above as per Section 35 of Basic Education Act, the school is required to exhaust other corrective measures before the school resorted to send him home.

68. From the foregoing, there is no doubt that no due process was conducted to establish the truth before suspension/exclusion of JTM from school.

69. The 1st,2nd and 3rd Respondents argue that JTM was kept away based on insecurity JTM went through after he was re-admitted from the 1st – 6th November 2021. I however note that upon investigations by the County Education Board, there was no indication of any threat to JTM’s security. If there was any likelihood of insecurity, they would not have made resolution to direct his immediate readmittion to school.

70. I also note that the 1st,2nd and 3rd respondents are of the view that JTM be readmitted as dayscholar. As a dayscholar,he will still be in class and school compound with the students who are alleged to be a threat to his life. Further, from averments JTM’s home is Kajiado and learning as a dayscholar is unlikely to be in his best interest. In my view the decision to admit JTM as a dayscholar in the school is irrational and unreasonable in the circumstances.

71. From the foregoing I find that the 1st respondent acted irrational and unreasonable by suspending/excluding JTM from school; that there was no fair administrative action and he deserves to be re-admitted to school to complete his studies.

(ii)Whether the petitioner are entitled to relieves sought 72. From my findings above,there is no doubt that rights of JTM to basic education were violated Contrary to Article 53 of the Constitution. He has been at home since 10th July 2021 a period of about one year. There is no doubt that he has missed so much in terms of learning and has also been subjected to mental torture in view of the allegation and uncertainity of his academic progress. Having found that due process was not followed in excluding JTM from school,I find that he is entitled to reliefs hereunder.

73. Final Orders:-1)I hereby declare that suspension and/exclusion of JTM by the 1st respondent infringed his rights to education and fair administrative action.2)An order of mandamus do hereby issue compelling the respondents to readmit the 1st petitioner/JTM.3)The respondents are hereby directed to compensate the 1st petitioner for lost learning.4)In view of order 3 above, I will not grant general damages.5)Each party to bear own costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 21ST DAY OF JULY, 2022. ............................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court AssistantMr. Kirui and Mr. Victor Kamau for PetitionersMs. Agoti holding brief for Mr. Situma for 1st, 2nd and 3rd RespondentsMs. Wamuyu for 4th Respondent and 1st to 5th Interested PartiesMr. Kamau for 8th Interested Party