[2020] KEEAT 140 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

EAT A 007/017

JANE WANGITHI…………..............….……………………………APPELLANT

VERSUS

KENYA INSTITUTE FOR SPECIAL EDUCATION….............RESPONDENT

AWARD

FACTS OF THE CASE

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

1. The appellant herein made an application at the respondent institution to pursue a diploma in special needs education through distance learning mode for the 2014 academic year at the respondent institution.

2. Vide a letter dated 20th May 2014, the appellant was informed that her application was successful and she was thus required to report at the institution for the first session of the studies on Sunday the 10th August 2014 and finish on 28th August 2014. The studies were to run for a total of 6 sessions up to sometime on March 2016. Students were required to pay for accommodation at a cost of Kshs.500/=per day.

3. Vide a letter dated 27th April 2017 addressed to The Cabinet secretary Ministry of Education, the appellant sought intervention for a refund of accommodation fee of Kshs.38,900/=.She stated that she had been denied an opportunity of collecting teaching practice materials on grounds that she had not cleared a balance of kshs.17,700/= as accommodation fees. Subsequently she alleges that through intimidation & harassment she was coerced into paying the amount or face the risk of deferring her studies yet she did not take up accommodation services.

4. Vide a letter dated 16th May 2017 the appellant avers that she raised a complaint to the director of the respondent institution seeking his intervention as she was denied an opportunity to be taken through teaching practice assessment on 15th May 2017 on grounds that she had not paid a balance of a sum of kshs.16,100/= which was part of accommodation fees. She stated that she did not get any accommodation services at the institution as it was optional. She thus paid the monies demanded following intimidation & harassment by the team leaders and on this account she sought a refund of the sum of Kshs.38,900/=.

5. In response to the letter dated 27th April 2017, the Principal secretary Ministry of education vide a letter dated 21st August 2017 addressed the complaint. He asserted that following investigations into the matter, it was a requirement that all students pay for accommodation and those who wished to attend as day scholars were to make a formal request in writing to the director of the respondent institution for approval. He maintained that the appellant did not apply for exemption in writing as required and was thus required to clear the balance of Kshs.16,100/= which she paid on 23rd May 2017. He also asserted that the appellant finished her teaching practice on 14th July 2017.

6. Vide a letter dated 3rd October 2017, the appellant wrote to this tribunal seeking it’s intervention in the dispute over the refund of a sum of kshs.45,000/= being accommodation fee. In the letter the appellant avers that she never took up accommodation facilities at the school but paid the consolidated fee including the accommodation fee to avoid intimidation & harassment by team leaders at the school. The matter was then fixed for hearing and disposal on 12th September 2019 and 14th January 2020.

7. On the appointed dates, the appellant herein appeared before this tribunal and reiterated her complaint against the respondent and sought to be refunded the Kshs.45,000/=.

8. The respondent did not appear at the proceedings.

OBSERVATION

9. From the foregoing, it is emerging that this tribunal has not received any response from the respondent on the matter despite being served severally including by the appellant.

10. From the foregoing, this tribunal having considered the facts of the appellant’s case and taking into consideration the above provisions of the law, it makes the following observations;

11. This tribunal exercises an appellate jurisdiction by dint of section 93(1) of The Basic Education Act. This appellate jurisdiction is further limited by dint of section 93(2) of The Basic Education Act to appeals by any person aggrieved by the decisions of the County Education Board.

12. The appeal before this tribunal does not arise from a decision of The County Education Board but rather an action of the respondent institution. There is nothing on record that shows that the County Education Board was or has been involved in the impugned decision herein.

13. Having analysed the appeal herein and in the absence of an input from the respondent, it is important to appreciate the law establishing this tribunal as well as the law that establishes the respondent institution and that which governs admissions and payment of fees.

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 “

14. The respondent is a basic education institution established pursuant to the provisions of Basic Education Act & The Education (Kenya Instituteof Special Education)order, 1986. It has the mandate to perform the functions as set out at regulation 3 of the order which is reproduced hereunder;

3. Establishment and functions of the Institute

(1) There shall be established an Institute to be known as the Kenya Institute of Special Education which shall be charged with the responsibility of carrying out the functions specified in paragraph (2).

(2) The functions of the Institute shall be—

(a) to conduct teacher training courses for teachers in various fields of the education of children with special educational needs;

(b) to conduct in-service courses for personnel working in all fields of special education;

(c) to prepare and conduct correspondence courses for personnel in the field of special education;

(d) to run an educational and psychological assessment centre for the training of teachers of children with special education needs;

(e) to run an orientation and mobility centre for training and demonstration purposes;

(f) to run a model training unit for the integration of handicapped children into regular schools;

(g) to run a pre-school department where training and the stimulation of young handicapped children can be carried out for the purpose of teacher training;

(h) to function as a resource centre for the production and dissemination of information to the general public on disabilities;

(i) to run a documentation and resource centre on handicaps;

(j) to conduct research in special education;

(k) to maintain, repair, design, produce and assemble special materials and equipment.

15. Additionally, the Basic Education regulations 2015 at regulation 2 defines "institution” tomean an institution of basic education and training; "institution of basic education and training" includes a pre-primary school, primary or a secondary school, an adult education institution and a middle-level college; while a "middle level college" means an institution offering pre-service and in-service teacher training courses that support basic education;

The respondent is therefore bound by the provisions of The Basic Education Act and the Basic Education regulations 2015 as well as theThe Education (Kenya Instituteof Special Education)order, 1986

16. The decision to levy accommodation fees is solely within the mandate of the respondent institution. It alleges that it made it mandatory for those seeking to be day-scholars to seek an exemption in writing.

In the absence of it’s participation in these proceedings, It is not clear whether this is a matter of policy or rules within the institution. There is no official correspondence indicating this directive. The admission letter of 20th May 2014 sent to the appellant does not indicate that there is an option of choosing or opting out of the school accommodation. In its letter dated 21st August 2017 addressed to the appellant, the respondent alleges that

“Accommodation fees-all students were expected to pay accommodation fees charged at kshs.500 per day payable every session, Students who wished to attend as day scholars were expected to request in writing to the director KISE for approval. However since you did not apply for exemption in writing you were required to clear the balance of kshs.16,100 which you cleared on 23rd May 2017……”

17. On the other hand the appellant alleges that she was a day-scholar but only paid the accommodation fees to avoid harassment. She has not furnished this tribunal with any proof that she communicated with the respondent institution that she was not going to take up accommodation facilities at the time of registration.

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 it is reasonable for the respondent institution to retain money for services which were not rendred.

18. From the appellant’s case, she is aggrieved by the conduct of the respondent to charge her accommodation fees yet she never took up the boarding facilities at the institution. The appellant is aggrieved by that decision hence this appeal through which she seeks a refund of the fees.

19. This tribunal appreciates that the decision to levy accommodation fees is solely within the mandate of the respondent institution. The respondent in it’s letter of admission seems to suggest that payment of accommodation fees is compulsory for all students. The appellant made her own accommodation arrangements and therefore saw no need to pay for the same. The respondent institution alleges that such an arrangement to be exempted from its accommodation facility ought to be made in writing.

20. The appellant alleges that she only paid the accommodation fees to avoid intimidation and harassment despite not taking up the accommodation facilities. The respondent does not deny receiving the money. This tribunal finds that it would be unreasonable for the respondent to hold on to monies for services that were not taken up nor used by the appellant,

CONCLUSION

To the foregoing, this tribunal orders as follows:

1. The respondent shall within 14 days upon being served by a copy of this ruling, refund a sum of kshs. 45,000/= to the appellant herein being the monies paid towards accommodation to it.

That shall be the order of the tribunal

DATED and DELIVERED at NAIROBI this 18th day of February 2020.

Hon. Waigi Kamau - Chair..................................

Hon. Elyas Abdi - Member………….……………

Hon. Dr. Pius Mutisya - Member…………….…………

Hon. Catherine Namanda- Member……………….………