[2015] KEHC 514 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

PETITION NO. 13 OF 2015.

I K (SUING THROUGH HIS GUARDIAN & NEXT FRIENDE K W )

M K (SUING THRO’ HER GUARDIAN & NEXT FRIEND E K W)::::::::::::::::::::::::::::::::::::APPLICANTS.

VERSUS

PRINCIPAL M ACADEMY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST RESPONDENT.

M ACADEMY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT.

R U L I N G.

The 1st and 2nd petitioners have through their guardian and next friend, E K W (Mr. W) petitioned this court under the Constitution of Kenya and the Children’s Act for the orders prayed in the petition dated 7th September, 2015.

The parties were heard interpartes on 11/9/2015 after this court certified the Notice of Motion dated 4th September, 2015 and the petition dated 7th September, 2015 as urgent.

Mr. Situma learned counsel for the petitioners submitted that the prayers the petitioners are seeking are for:-

A declaration that pegging of non payment of fees balance of B K and S to the petitioners being in school is unconstitutional and violates the petitioners’ right to education.

An order of permanent injunction directed against the respondents banning them from sending the petitioners away as long as fees is paid in full and they abide by the school rules and regulations.

Mr. Situma submitted that the 1st petitioner is a fourth form student and the 2nd petitioner a form two student at M Academy, the 2nd respondent. He submitted that as of 11/9/2015, school fees had been paid in full for the 1st and 2nd petitioners. The said petitioners were sent away from school on 2/9/2015. He submitted that two other biological children of Mr. E W K are in fees arrears, i.e. B in Standard 7 and S in Standard 4. Mr. Situma submitted that their fees arrears cannot be pegged to that of the 1st and 2nd petitioners herein.

It was Mr. Situma’s submission that failure to have them in class after paying fees goes against the school’s regulations and the Children’s Act on the right to education. He also submitted that at this stage the children should be allowed to go back to class since as per the petitioners’ parents records, there is no fees balance.

Mr. Musieka, learned counsel for the respondents relied on the replying affidavit of Mr. George Mudanyi, a Director of the 2nd respondent, M Academy. The averments in the said affidavit show that the petitioners’ guardian, Mr. W has 4 children in M Academy. They all owe school fees. With regard to the 1st petitioner, he owes Ksh. 5,300/= and the 2nd petitioner owes Ksh. 1,500/= as at 1/9/2015. Some school fees was paid on 3/9/2015 after the children were sent home.

Mr. Musieka submitted that Mr. W did not have consent to be enjoined as a next friend. He further submitted that the petitioners have not met the requirements for a grant of injunction, a prima facie case has not been established and the balance of convenience does not tilt in their favour.

In reply to Mr. Musieka’s submissions, Mr. Situma urged this court to invoke the provisions of article 258 of the Constitution which cures the mischief of who can represent a party in court. He also cited the provisions of the rules made under the provisions of article 22 (3), 23 and 165 (3) (b) of the Constitution, and in particular clause 6 of the rules made on 28th June, 2013, by the Chief Justice. He submitted that the petitioners’ father is a proper person to institute the suit. He cited the provisions of article 159 (2) (d) of the Constitution which provides that Justice shall be administered without undue regard to procedural technicalities.

This court has considered the petitioners’ Notice of Motion dated 4th September, 2015 and the averments in the supporting affidavit of Mr. W whereby he states in paragraph 6 thereof that he has fully paid fees for the petitioners herein for the year 2015 and that the school fees was cleared on 3/9/2015.

Mr. W further avers that any fees balance by B K and S K cannot be used to send way (sic) petitioners in their respective capacity as pupils. He further states that sending away the petitioners on the 2nd September, 2015 violated the petitioners’ rights to education and is unconstitutional.

In his replying affidavit dated 10th September, 2015, Mr. George Mukiza Mudanyi, a Director of M Academy the 2nd respondent admits that Mr. W’s four children are pupils in his school. He indicates that for purposes of fees payment, the account for all the children has been one.

Mr. Mukiza further avers that M Academy is a private institution maintained financially from fees paid by the parents and/or guardian (sic) upon agreed terms that are approved and legally binding.

Mr. Mukiza refers to Mr. W as a fees defaulter whose aim is to invoke judicial authority to evade civil liability by using his innocent children as pawns.

This court has carefully scrutinized the documents submitted by the petitioners and respondents and is satisfied that on 3/9/2015, the fees arrears of Ksh. 1,500/= for M K was cleared by payment of a cash deposit of Ksh. 1,500/= through Equity Bank of Kenya, Bungoma branch. The documents submitted by the respondents indicate M K owed Ksh. 1,500/= as on 1st September, 2015. The said amount having been paid on 3rd September, 2015, her school fees payment is upto date.

With regard to the documentation availed by Mr. W, in respect to Isaac, Ksh. 1,500/= was paid on 3rd September, 2015 by way of a cash deposit made to Equity bank Bungoma branch. The records availed by the respondents however show that I K school fees was in arrears of Ksh. 5,300/= on 1st September, 2015. This being the case, I still owes M Academy fees balance of Ksh. 3,800/=.

The arguments by the respondents were indicative of the fact that that the fees account for all the children was one. This court does not agree with that argument as the petitioners herein were admitted to M Academy in their individual capacities, the only thing that they share in common is their next friend, their father, Mr. W. Even a look at the reconciliation reports availed by the respondents, clearly shows that I K’s school admission No. is [particulars withheld] whereas that of his sister M K is school admission No. [particulars withheld]. Even for accounting purposes, it would be unrealistic to have one account for all the children. The bank deposit slips relied upon by the petitioners show that at the time of paying the school fees, the name of the child whose school fees was being paid had to he endorsed on the bank deposit slips. This is therefore indicative of the fact that each child had a separate school fees account.

Mr. Musieka, learned counsel for the respondents submitted that Mr. E K did not have consent to be enjoined as a guardian and next friend. Mr. Situma’s response to that legal issue was that this court has powers to invoke the provisions of article 258 of the Constitution which cures the mischief on who can represent a party in court.

Article 258 (1) provides that “every person has the right to institute court proceedings claiming that the constitution has been contravened, or is threatened with contravention.” Sub article 2 thereof provides that “In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by:

A person acting on behalf of another person who cannot act on their own name.

The petitioners’ brought their petition under the provisions of articles 2, 21, 22, 23 and 27 of the Constitution of Kenya and the Children’s Act. Mr. Situma’s submission therefore holds true in that under article 258 (2) (a), Mr. W is empowered to file a Constitutional Petition on behalf of his children. Secondly, article 159 (2) (d) of the Constitution states that in exercising judicial authority, the courts and tribunals shall be guided by the following principles ............

Justice shall be administered without undue regard to procedural technicalities.

This court finds that the petition is properly before the court as article 20 (1) of the Constitution states that “the Bill of rights applies to all law and binds all state organs and all persons”

In his submissions, Mr. Situma cited rule 6 of the Constitution of Kenya (protection of rights and fundamental freedoms) practice and procedure rules, 2013, to show that the petitioners’ father could legally file the petition the subject of this matter without filing a consent with Advocate to appear as the guardian and next friend to the petitioners. The said clause is however inapplicable as it addresses the issue of a “friend of the court” and not the issue of “next friend.”

Rule 4 (2) of the said rules is however relevant and is drafted in similar terms to articles 258 (2) and 22 (2) (a) of the Constitution which empowers a third party to institute court proceedings on behalf of another person who cannot act in their own name.

This court has considered the provisions of article 43 (1) (f) of the Constitution which provides the right to education and finds that this right is not absolute when a parent takes his child to learn in a private school which is managed through the school fees paid for the students. Such an institution cannot run effectively and efficiently if parents do not meet their parental obligations of paying school fees for their children. On the other hand, the respondents herein do not have legal authority to chase away students whose fees has been paid in full on the basis that school fees for other children in the same family have not been paid in full.

After analyzing the documents on record, it is my finding that school fees for the 2nd petitioner M K was paid in full on 3rd September, 2015. As for the 1st petitioner, I K, this court finds that there is an outstanding fees balance of Ksh. 3,800/=.

It is the finding of this court therefore that the petitioners have shown that they stand to suffer irreparable injury which cannot be compensated by award of damages unless the orders sought for an injunction are granted. The 2nd principle set out in the case of Giella vs. Cassman Brown (1973) EA 358 has been satisfied.

This being the case, the court makes the following orders:-

Mr. E W, the petitioners’, guardian and next friend, should as a matter of urgency pay the fees balance of Ksh. 3,800/= for his son I K so that he can be re-admitted in school to enable him sit for his fourth form examinations;

A declaration that pegging of non-payment of fees balance by B K and S K to the petitioners herein being is school is unconstitutional and violates the petitioners’ right to education;

A permanent injunction is hereby issued directed against the respondents, the principal M Academy and M Academy barring them from sending the petitioners I K and M K away from school as long as their school fees is paid in full and they abide by the school rules and regulations.

Each party to bear its own costs.

DELIVERED, DATED and SIGNED at Kakamega on this 18th day of September, 2015

in the presence of

Mr. Situma for the petitioners and Mr. Musieka for the respondent.

NJOKI MWANGI.

JUDGE.