[2020] KEEAT 154 (KLR)

Kipkeino School v County Education Board Uasin Gishu (Appeal 002 of 2020) [2020] KEEAT 154 (KLR) (5 November 2020) (Award)

Neutral citation: [2020] KEEAT 154 (KLR)

Republic of Kenya

In the Education Appeals Tribunal

Appeal 002 of 2020

W Kamau, Chair, E Abdi, P Mutisya & C Namanda, Members

November 5, 2020

Between

Kipkeino School

Appellant

and

County Education Board Uasin Gishu

Respondent

Award

Facts of the case 1The brief facts of these Appeal are that vide a letter dated 25th July 2019 addressed to the County Director of Education Uasin Gishu county, the appellant sought to re-register Kipkeino Public Primary school as a private school to attract donor funding to enable expansion of the school as well as facilitate addition of a secondary school.

2The respondent vide a letter dated 4th September 2019 addressed to the appellant advised it to follow the procedures laid down as per section 42(2) of The basic education Act as read with regulation 3,4 & 5 of the basic education regulations. The appellant was advised to set the process in motion and in line with the existing guidelines. Aggrieved by that directive, the appellant lodged these appeal vide it’s Memorandum of Appeal dated 20th June, 2020 challenging the directive of the County Education Board dated 4th of September, 2019. The Appellant sought the following orders;a.That the decision by the Uasin Gishu County Education Board be set aside.b.That the decision by the National Education Board be affirmed unconditionallyc.An order directing the Uasin Gishu County Education Board to register Kipkeino School as a private school.d.The Respondent to bear the costs of the Appeal.

Respondents Submissions 3The respondent vide a letter dated 29th July 2020 addressed to the tribunal set out the following facts. THAT;The appellant school was registered as a public school as demonstrated in several correspondences between them and that the basic education Act had laid down procedures to be followed and in consultation with The National Education Board and approval by the cabinet secretary in charge of Education. The respondent further set out that they had deliberated on the matter earlier and resolved that the status of the school remains as it is in a letter dated 1-12-2014 addressed to the school. The respondent also submitted that nothing stops the donors from supporting the school in it’s current status. The respondent emphasized that the government had invested heavily in the school by deploying teachers and providing free primary education funds since 2003. The respondent also expressed concern that parents have always considered the school to be a public school and may find it difficult to afford fees once the school becomes private.

Submissions 4The matter was heard on 25th day of August 2020 when Mr Odhiambo appeared for the appellant while Mr Mbaka appeared for the respondent before the tribunal.

5Mr. Odhiambo counsel for the Appellant submitted as follows; 1. That the Respondent overstepped its mandate as it is not a legislative function of the Respondent to refuse to accede to the request of the Appellant on the grounds that it is an agent of the National Education Board.

2. In addition, counsel of the Appellant submitted that the Respondent went ahead to list a number of conditions not founded on any law. He made reference to Section 2 of the repealed Education Act, on the definition of a public school to mean a school assisted using public funds. He asserted that an assisted school is also defined as a school that receives funding from the Ministry of education.

3. Mr. Odhiambo further submitted that the appellant school is a private institution as per the Certificate of Registration dated 25th January, 1999 Exhibit No. 1 and Letter dated 3rd November,1998 marked as Exhibit No. 2 which affirms that the school was established as a Private School.

4. It was his submission that the National Education Board appreciated the fact that the school was established as a Private school but run as a public school. He made further reference to Section 2 and 43(1) (b) of the Basic Education Act, which defines a private school as;‘means a school established, owned or operated by private individuals, entrepreneurs and institutions.’

5. Counsel for the Appellant made reference to the letter dated 19th July, 2017 at page 13 of their Bundle of Documents from the National Land Commission which confirms ownership of the school as a private institution on private land.

6. He further responded to the assertions by the respondent at paragraph 5 of its Response that Dr. Kipchoge Keino Schools and Kipkeino School as one and the same entity.

7. Counsel for the Appellant made reference to Paragraph 6 citing Section 43(2) of the Basic Education Act, 2013 where the Respondent say their hands were tied. He asserted that this is a contradiction of their own letter because at Paragraph 7, a meeting was held where it was decided that the status quo of the school should be maintained. Counsel for the appellant submitted that authority can only be exercised by the National Education Board. He pointed out that this wasn’t the first school to be converted as the Act provides for Assisted Schools. Counsel further stated that the respondent blatantly ignored the procedure for conversion.

8. Counsel cited Article 226, Constitution of Kenya, 2010 stating that a Public Officer would be surcharged for loss of Public funds and no property will be lost.

9. Counsel for the Appellant appreciated the fact that the ministry of Education had not provided any binding guidelines on the conversion of a Public School to a Private School. He further stated that as much as there maybe draft regulations they are not binding on any party as a matter of law and are inferior to the parent Act.

10. Counsel for the appellant cited previous decisions of the Courts on the issues arising.a.Francis Njomo versus the Attorney General, Ministry of Education & Municipal counsel of Mombasa (2017) Eklrb.Registered Trustee of Arya Pratiniathi Sabha, Eastern Africa vs National Land commission &v another(2016) eKLRc.In Re Sele, Benson Wairagu &Joseph Ng’ethe Gitu (2008) eKLR

11. In conclusion, counsel for the Appellant made reference to the letter dated 19th May, 1999 indicating that the school is indeed a private school funded by the donors without the Government’s input. The school is erected on a 500 acres parcel of land apportioned differently consisting of the school and Lewa Children’s Home. He made a prayer that the decision of the County Education Board be set aside and the decision by the National Education Board be upheld.

12. Mr. Mbaka appeared for the Respondent and submitted that the school is a Public school as per the Certificate of Registration.

13. He further indicated that the National Education Board has never addressed any letter on the issue of Kipkeino School to the Respondent.

14. He further stated that the Respondent has not usurped the powers of the National Education Board and that it had only imposed some conditions.

15. He further stated that the school is a public school managed by a Board of Governors. He added that Public funds have been expended in running the school from the year 2003.

16. He further indicated that the Board has only requested for what has been expended in running the school. He also appreciated the fact that the Conversion guidelines are not yet published by the Ministry.

Analysis and Determination 17. Having analyzed the above facts, it is important to appreciate the law establishing this Tribunal.

18This tribunal is established under the provisions of section 93 of the Basic Education Act No.14 of 2013.

19The 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 appeal 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.

20. From the foregoing, having analyzed the facts of the case and the law, there is only one preliminary issue that arises for determination;(i)The question as to whether this tribunal has jurisdiction to preside over the appellant’s case.ii.On Jurisdiction

21In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the Supreme Court pronounced itself on jurisdiction thus [paragraph 68]:“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Wherethe Constitutionexhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” (Emphasis provided).ii.The supreme Court in an extensive analysis of the issue of its own jurisdiction quoted with approval the often cited case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited[1989] KLR 1 in the first advisory opinion rendered by the Court in In Re The Matter of the Interim Independent Electoral Commission where the Court stated:-(29)Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on thematerial before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”(underlining supplied)[30]The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”iv.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 Boardv.By dint of the provisions of section 43(2) and regulation (3), (4) and (5) of the Basic Education Regulations above, a formal application ought to be made to the Cabinet Secretary.

Conclusionvi.Taking into account the decisions in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] & Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, and which are binding on this tribunal, this tribunal must only exercise jurisdiction as conferred by statute which is The Basic Education Act. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Therefore, without jurisdiction, this tribunal cannot entertain these proceedings.

22The upshot of the foregoing is that this tribunal makes a finding that it does not have jurisdiction to entertain this appeal and cannot therefore grant the appellant’s prayer as enumerated in the Memorandum of Appeal dated 25th May, 2020. 23The appellant is advised to consider making an application in the manner set out under the Basic Education Act as set out above.

24That shall be the order of the Tribunal

DATED AND DELIVERED AT NAIROBI THIS 5TH.DAY OF NOVEMBER 2020WAIGI KAMAU - CHAIRMANELYAS ABDI - MEMBERPIUS MUTISYA - MEMBERCHRISTINE NAMANDA - MEMBER