[2023] KEHC 22313 (KLR)
The court found that the issue of interim relief had not yet been determined and that the petitioner, a minor, had already missed a significant period of schooling. Considering the best interest of the child and the circumstances, the court held that it was appropriate to grant interim orders for the petitioner’s...
Source-derived case information.
- Citation
- [2023] KEHC 22313 (KLR)
- Parties
- Applicant: KWG (A Child Suing Through her Father and Next Friend); Respondent: Aga Khan Academy, Mombasa; Respondent: The Principal, Senior School Aga Khan Academy, Mombasa; Respondent: Aga Khan Education Service, Kenya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E044 of 2023
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Interim Relief Pending Ruling
- Outcome
- Interim orders granted in favour of the petitioner.
- Judges
- OA Sewe
- Legal Topics
- Right to Education, Interim Injunctions, Best Interest of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KWG (A Child Suing Through her Father and Next Friend)
Applicant
Aga Khan Academy, Mombasa
Respondent
The Principal, Senior School Aga Khan Academy, Mombasa
Respondent
Aga Khan Education Service, Kenya
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Interim Relief Pending Ruling
Legal Issues
- 1 Whether the petitioner is entitled to interim orders for re-admission to school pending the determination of the petition.
- 2 Whether the respondents should be restrained from enforcing the letter discontinuing the petitioner from school.
Ratio Decidendi
The court found that the issue of interim relief had not yet been determined and that the petitioner, a minor, had already missed a significant period of schooling. Considering the best interest of the child and the circumstances, the court held that it was appropriate to grant interim orders for the petitioner’s immediate re-admission to school, pending the final determination of the petition. The court also restrained the respondents from enforcing the discontinuation letter until further orders, ensuring the minor's right to education was protected in the interim.
Court Disposition
Interim orders granted in favour of the petitioner.
Orders
- The respondents are ordered to re-admit the petitioner forthwith to continue with her education at the 1st respondent pending the court’s ruling on 2/10/2023.
- An interim order of temporary injunction is granted restraining the respondents from enforcing the contents of the letter dated July 5, 2023 pending further orders of the court on 2/10/2023.
Full Case Text
Judgment text and source record
26 paragraphs
KWG (A Child Suing Through her Father and Next Friend) v Aga Khan Academy, Mombasa & 2 others (Constitutional Petition E044 of 2023) [2023] KEHC 22313 (KLR) (20 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22313 (KLR)
Republic of Kenya
In the High Court at Mombasa
Constitutional Petition E044 of 2023
OA Sewe, J
September 20, 2023
IN THE MATTER OF: THE CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS AS ENSHIRINED UNDER ARTICLES 3, 10, 19, 20, 21, 22, 23, 27, 28, 29, 43, 47, 53, 258 & 259 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
Between
KWG
Petitioner
A Child Suing Through her Father and Next Friend
and
Aga Khan Academy, Mombasa
1st Respondent
The Principal, Senior School Aga Khan Academy, Mombasa
2nd Respondent
Aga Khan Education Service, Kenya
3rd Respondent
Ruling
1. The petitioner’s notice of motion dated 24/8/2023 has been argued and is fixed for ruling on 2/10/2023. Counsel for the petitioner prayed that, in the meantime, the minor be re-admitted to school to continue with her studies, seeing as she has already missed out on 1 ½ months of classwork. Counsel posited that no prejudice will be suffered by the respondent if such an order is given.
2. The respondent was opposed to the interim orders being granted. According to Mr. Weru, the decision to discontinue has already been made and that the issue of interim relief has already been considered and declined. He further submitted that the petitioner came to court after the semester had began and therefore it would be in the best interest of the minor to await the court’s ruling on the matter for a once and for all determination.
3. I have had the benefit of perusing the documents filed herein as annexures to the petitioner’s Supporting Affidavit. I have likewise perused the record of the proceedings held herein todate. It is plain therefrom that the issue of interim relief is yet to be determined. It is also plain that the petitioner approached the court a week after the commencement of the current semester and therefore has lost about 1 ½ months of class work.
4. It is averred in the supporting affidavit that the petitioner was enrolled at the 1st respondent alongside her twin brother and three other siblings to undertake her studies under the International Baccalaureate (IB) curriculum, and that she has been forced to remain at home as her other siblings continue with their studies.
5. Thus, taking into account all the circumstances of this matter, including the best interest of the minor, I am convinced that the orders prayed for are warranted. Accordingly, it is hereby ordered that:(1)The respondents be and are hereby ordered to re-admit the petitioner forthwith to continue with her education at the 1st respondent pending the court’s ruling on 2/10/2023. (2)An interim order of temporary injunction be and is hereby granted restraining the respondents from enforcing the contents of the letter dated July 5, 2023 pending further orders of the court on 2/10/2023. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 20TH DAY OF SEPTEMBER, 2023OLGA SEWEJUDGE