[2019] KEHC 2437 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI (NAIROBI)

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO.95 OF 2019

IN THE MATTER OF ALLEGED INFRINGEMENT AND VIOLATION OF ARTICLES 27, 28, 45 AND 55

IN THE MATTER OF ARTICLES 3, 22 AND 258 OF THE CONSTITUTION

AND

IN THE MATTER OF DISCRIMINATION, UNFAIR ADMINISTRATION ACTION AND VIOLATION OF THE BILL OF RIGHTS AND PROVISION OF THE CONSTITUTION AS THE SAME RELATE AND CONCERN THE APPLICANT

BEWEEN

LEWIS MOSES ODHIAMBO...................................................1ST PETITIONER

MARY AKINYI ONYANGO.....................................................2ND PETITIONER

AND

MAHANAIM INTERNATIONAL HIGH SCHOOL.............1ST RESPONDENT

THE CABINET SECRETARY, MINISTRY OF

EDUCATION, SCIENCE ANDTECHNOLOGY..................2ND RESPONDENT

RULING

Applicant’s Application

1. The Petitioners/Applicants through a Notice of Motion dated 12th March 2019 seek the following orders:-

a) THAT the present Application be certified urgent and orders be granted ex-parte in the first instance;

b) THAT pending the hearing and determination of this Application and Petition, an interim orders be hereby issued against the 1st Respondent to issue the 1st Applicant with his provisional results, result slip, transcript and/or academic certificate to enable him apply for a Diploma and/or Foundation Course;

c) THAT pending the hearing and determination of this present Application and Petition, conservatory orders be issued preventing and/or restraining the 1st Respondent from further withholding the provisional results, result slip, transcript and/or academic certificates for the 1st Applicant for year 12;

2. The Application is premised on grounds (a) – (f) on the face of the application and supported by supporting affidavit of Mary Akinyi Onyango sworn on 12th March 2019 and annexed documents thereto LMO 1-10. The same is further supported by a further affidavit of Mary Akinyi Onyango sworn on 16th April 2019.

Respondent’s Response

3. The Respondents are opposed to the Applicant’s application and rely on the Replying affidavit by Richard Ombwari sworn on 26th March 2019 and annextures thereto. The Respondents further rely on the supplementary affidavit sworn on 14th May 2019 by Richard Ombwori.

Analysis and Determination

4. I have very carefully perused the Notice of Motion, affidavit in support, the Replying affidavit and supplementary affidavit, the counsel rival submissions dated 25th April 2019 for the Applicants and 29th May 2019 for the Respondents. The issue arising for consideration are as follows:-

a) Whether the Applicant has established sufficient grounds to warrant granting the prayers sought?

5. In the instant suit, it is not in dispute, that the 1st Respondent is a private school offering the Cambridge system of education and it runs on school fees paid by the students. It is further not in disputed, that the 1st Applicant enrolled for only year twelve (12) in 2016/2017 academic year. The Applicant contention is, that the 1st Applicant sat for the year 12 examinations in the period of October/November 2017 and had before sitting for the examination, paid fully and cleared the school fees and fee balance of 12 academic years 2016/2017. The 1st Applicant attached exhibit to demonstrate, that he did not have any outstanding fee balance in the year 12 being the academic year 2016/2017 and, that he never joined year 13 in the academic year 2017/2018.

6. The 1st Respondent aver, that the 1st Applicant enrolled for year 12 only and had an option of sitting his exams in May/June session but he informed the school, that he was not prepared and would sit his exams at October/November session. That the 1st Applicant and his brother had fees balances with the 1st Respondent school and were sent home to collect fees. That when it became apparent, that the parent of the 1st Applicant could not pay the fees for tuition; the school on humanitarian grounds registered the 1st Applicant for his year twelve (12) exams. The parent paid for his examination fees which is a separate fee from the tuition fees; which amount the 1st Respondent contend it did not transfer it to itself. The 1st Respondent urges it is therefore not true that the 2nd Applicant had paid fully all fees for the 1st Applicant before he could sit for his year twelve (12) examinations. It is urged further the results for the October/November 2017 exams were released on 11th January 2018 but the 1st Respondent did not release the 1st Applicant’s results because the student owed the school fees amounting to Kshs one hundred and fifty thousand (150,000/-).

7. The main issue of contention in the notice of motion relates as to whether the Applicants have fully paid fees towards the tuition. This is an issue related to debt whether owed or not. The 1st Respondent insist there is an outstanding debt of Kshs.150, 000/- whereas the Applicants states otherwise. The issue as raised cannot be fully determined by way of the two conflicting affidavits. Secondly the Applicants have demonstrated in the application the constitutional right which has been violated and how. The orders sought are in the nature of mandamus to compel the 1st Respondent to release results whether there is an outstanding unpaid school fees or not, which issue I find, that it cannot be determined through the Notice of Motion at this stage. However by granting the orders in interim, the Respondents would not be prejudiced as the issue between the two would be determined in the petition. Having considered the application and the responses, I find that the Applicants have established sufficient grounds to warrant granting the prayers sought in the Notice of Motion.

8. The upshot is that the Notice of Motion dated 12th March 2019 is granted in terms of prayers 2 and 3 of the application dated 12th March 2019.

9. Costs be in the cause.

Dated, signedand delivered at Nairobi this 31stday of October, 2019.

........................

J .A. MAKAU

JUDGE