[2020] KEEAT 155 (KLR)

Mativa v The Makueni County Education Board; Machakos (Interested Party) (Tribunal Appeal 001 of 2020) [2020] KEEAT 155 (KLR) (25 August 2020) (Award)

Neutral citation: [2020] KEEAT 155 (KLR)

Republic of Kenya

In the Education Appeals Tribunal

Tribunal Appeal 001 of 2020

W Kamau, Chair & E Abdi, Member

August 25, 2020

Between

Boniface M. Mativa

Appellant

and

The Makueni County Education Board

Respondent

and

Catholic Diocese Of Machakos

Interested Party

Award

Facts of the Case 1. Vide a certificate of urgency, Notice of Motion application accompanied by the Supporting Affidavit all dated 30th January, 2020, the Appellant herein lodged this appeal. The brief facts upon which the appellant pend this appeal are that;

Appellant’s Case 2. The appellant contends that St. Marys' Itaava Secondary School is registered as a public mixed day school and indeed constructed on public land and prima facie its Certificate of Registration demonstrates that it is a public school.

3. Further the Appellant contends that the Catholic Diocese of Machakos, the Interested Party herein, purports to be the Sponsor of St. Mary's Itaava Secondary School but does not make any significant contribution to the Schools (other than occasional spiritual activities) and fails the test of sponsorship as provided for in S.27 of the Basic Education Act and purports to nominate a Chairperson for appointment to the Board of Management.

4. It is further the Appellants case that the Board of Management held a full Board meeting on the 10th of August, 2019 and elected the Chairperson, Vice Chairperson and members of Committee but the Respondent reversed the appointments as on the 5th of October, 2019 the Respondent presided over a meeting with no requisite quorum and appointed Mr. Alexander Mutuku a nominee from the Catholic Diocese of Machakos as the Chairperson to the Board of Management.

5. That the said nominees appointed being Mr. Alexander Mutuku Kinyili, Ms. Monica Mbinda and Mr. Joseph Mutua Kivindyo do not qualify for appointment to the board for the reason that each of them has served for more than six consecutive years prior to their unlawful re-appointment to the current Board of Management.

6. The appellant via letter dated 8th October 2019 made a Complaint to the Makueni County Education Board raising concerns about the following issues pertaining to St Mary’s Itaava Secondary School;* Ownership and the registration status of the school.* The unresolved question of sponsorship.* Role of sponsor in appointment of Board chair.* Improper constitution of the current Board of Management of St. Mary's Itaava Secondary School.

7. On the 5th of October, 2019 the County Education Board (CEB) reached adecision that the school is Catholic sponsored and that the Catholic Church could therefore appoint a chairperson of the Board of Management. Aggrieved by the decision, the Appellant therefore lodged this appeal and sought the following reliefs;a.The Honourable Tribunal be pleased to quash the extract of the minutes of the purported Board of Management held on 5th October, 2019. b.The Honourable Tribunal be pleased to find that Catholic Diocese of Machakos does not make a significant contribution and impact on the academic, fiancial, infarastructural and spiritual development of St. Mary's Itaava Secondary School to qualify as a sponsor under Section 27 of the Basic Education Act, 2013. c.The Honourable Tribunal be pleased to suspend any revision, alteration or issuance of new school registartion Certificate and make finding that St. Mary's Itaava Secondary School is a Public School.d.That this Honourable Tribunal be pleased to make an order that the Board of Management meeting of 10th August, 2019 was properly constituted and do reinstate the duly elected members and committee members to their positions.e.That the Honourable Tribunal be pleased to revoke the appointment Mr. Alexander Mutuku Kinyili, Mrs. Monica Mbinda and Mr. Joseph Mutua Kivindyo who have served on the Board of Management of the School for two (2) consecutive three year terms.f.That the Honourable Tribunal be pleased to issue permanent injunction restraining the Catholic Diocese of Machakos from interfering with the process of Appointment of the Chairperson and members of the Board of Management of St. Mary's Itaava Secondary School.g.The costs of this application be provided for.h.Any other relief that the Honourable Tribunal deems fit and just to grant.

8. The appeal was fixed for hearing on 12th March, 2020 when both parties appeared. The appellant was represented by Mr. Bernard Chenge. whereas Mr. Muriithi Gachungi represented the County Director of Education Makueni and Secretary to the County Education Board and the Chairperson of County Education Board, Mr. Bernard Kivunje. Father Francis Kioko appeared on behalf of the Catholic Diocese of Machakos.

9. At the hearing, Advocate for the Appellant informed the Tribunal that St Mary’s Itaava Secondary School is a public school. He made reference to the Certificate of Registration at page 1 indicating it as a public school.

10. It's because of this Certificate that the Appellant deems it fit that the Board of Management has to be constituted on the basis that this is a public school and not a sponsored school. As such, the Appellant is opposed to having St Mary’s itaava secondary school branded as being sponsored by the Interested Party.

11. The Appellant further contended that the Interested Party does not meet qualifications of a Sponsor as set out under Section 27 of the Basic Education Act,2013 and that no significant contribution to the school has been proved by the Interested Party.

12. In addition, the Appellant submitted that Section 5 of the Act provides the guidelines on reaching both a democratic and inclusive decision by the respondent.

13. Secondly, it is the Appellants case that there is no properly constituted Board of Management as on the 5th October, 2019. It was the Appellants case that a properly constituted Board was put in place on the 10th August, 2019 before being overturned and thus the decision to overturn was done in bad faith.

14. It was the Appellant's prayer that the appeal be allowed in particular that the Board meeting held on the 5th of October be quashed by the Tribunal.

Respondent’s Case 15. Mr. Gachungi submitted that it is true the school is a public school build on public land. He further stated that the Board ought to be constituted on the basis that it is a public school. According to him, the Board was not appointed on the basis of Sponsorship while making reference to Appendix one.

16. Mr. Gichungi further submitted that all procedures necessary were followed. He added that the sponsor only has a say in appointment of the chair. He affirmed the position that the school is sponsored by the Catholic Church stating that the registration certificate bares the initials ''CCM'' citing them to mean, Consolata Catholic Mission which is an order of the Catholic church missionaries.

17. The respondent submitted that the school is sponsored by the interested Party since the initial Board was appointed on 6th June 2009 evidenced at Appendix 11 and the Appendix 12. He further stated that the Church has and continues to play a key role in running of the School for example Workshops for Teachers as evidenced under appendix 14 and 15.

18. In addition it was the Respondents submission that the Church has used its resources to sponsor workshops, put up a borehole and continues to sponsor needy students.

19. Mr. Gachungi further submitted that the members who were elected on 10th October 2019 were serving their first term under the new Act. He indicated that the Appellant is always absent with apology.

19. The respondent also presented minutes of the Board’s deliberations on the complaint by the appellant. It is the respondents case that;a.The school in question is a public school sponsored by the interested party and built on public land.b.The school is sponsored by the Catholic Church and that the church continues to play a significant role in the school.c.The constitution of the Board of management as well the appointment of Mr Alexander Mutuku as board chairperson was properly done.

Interested Party’s Case 20. On behalf of the Interested Party, Father Francis Kioko submitted that; Custom is the best interpretation of law backed up by History. History affirms that there has been a relationship between the School and the Church as per the letter dated 9th January, 2009 as shown in appendix 2 and 3.

21. In addition, he stated that the Interested Party has made significant contribution and that it may be difficult to define especially in matters of spiritual and academic. He further pointed out that the church celebrates mass in the school during opening, half term and closing days.

22. Furthermore, Father Kioko submitted that the school has had three previous Chairpersons all proposed by The Catholic Church. He affirmed that the borehole was sunk by the Ministry but it was intiated by the Father in charge of the local parish.

23. It was the Interested's Party position that the Registration Certificate bares the initials ''CCM'' for Consolata Catholic Mission in full. He concluded that the tradition of the church is to name schools after saints.

Analysis & Determination 26. From the foregoing, having analysed the facts of the case and the law, the following issues arise for determination;(i)The question as to whether The Catholic Diocese of Machakos sponsors the school.(ii)The question as to whether the current Board of Management is properly constituted.(i)The question as to whether The Catholic Diocese of Machakos sponsors the school.It is important to state from the begining that a finding on this question will determine whether it will be necessary to delve into other issues.

27. The Learned Justice K. Bor in Albert Ekirapa & 9 others Suing on behalf of themselves and the Parents Association (School Committee) of Aga Khan Primary School, Nairobi v Aga Khan Foundation & another [2019] eKLR was pursuaded by the following holdings when faced with a simillar situation' The Court of Appeal in Shree Visa Oshwal Community and Another v Attorney General and 3 Others [2019] eKLR in which the court had occasion to consider similar provisions in the grant. The court observed that under the grant, a school was to be constructed on the suit land without specifying the category of school on whether it was private or public, day or boarding, IGCSE or 8-4-4. The court stated that the conditions in the grant were aimed at discouraging lessees from using the land for other purposes...

Further, in Registered Trustees of Arya Pratinidhi Sabha, Eastern Africa v National land Commission and Another [2016] eKLR in which the court referred to the decision of Musinga J. (as he then was) held in Petition No. 225 of 2008 that the distinction between private and public school could not be used to expropriate the petitioner’s property. The court found that previously it was the Education Act and now the Basic Education Act which made that distinction and it could not be used to divest the Petitioner of the suit land. While agreeing with Musinga J that deprivation of property cannot be dependent upon the distinction of the user of the property, Onguto J. declined to make a determination as to whether the school in the dispute was private or public. The court notes that what was in issue in that case was that the National Land Commission had at the behest of the Ministry of Education directed the petitioner which was the registered proprietor of the land on which Parklands Arya School stood to surrender the land for public purpose.

28. The role of a sponsor is set out in Section 27 of the Basic Education Act of 2013 which states that a sponsor such as the Interested Party must have a representation in the school management; participate and make recommendations for the review of syllabus, curriculum, books and other teaching aids; provide supervisory and advisory services in matters regarding spiritual development in schools including the appointment of chaplains at their own expense; maintenance of spiritual development while safeguarding the denomination or religious adherence of others; and offer financial and infrastructural support.

29. Worthnoting is that both the Appellant and the Respondent submitted that the School that is St. Mary's Itaava Secondary School is constructed on Public land as evidenced by the Official Search which indicates that the parcel of land on which the school stands belongs to Makueni County council reserved for Itaava County School. The Tribunal appreciates the fact that the land on which the school is established or built does not determine whether it is private or public institution.

30. The Tribunal also notes that all parties admit the church has played key roles such as provide supervisory and advisory services in matters regarding spiritual development in the school, appointment of former principals and construction of a borehole in the school.(ii)The question as to whether the current Board of Management is properly constituted.In determining this question, the tribunal takes note of the guidelines for nomination of boards of management in basic learning institutions issued by The Ministry of Education.The tribunal has taken note of the submissions by both parties on the question of constitution of the board of management. Whereas the appellant contends that it is improperly constituted, the respondent contends that the current board members had served for a term of 6 years under the repealed Education Act and that the effective date of application of the term of three years is from the time when The Basic Education Act became operational. The respondent submitted that the number of years served by a member of the board under the defunct education act is inconsequential so long as they were vetted and found to be suitable to serve.Further the Tribunal noted that the school has not been performing well and would probably need new leadership to steer the school to prosperity noting that the cardinal objective of the Basic Education Act is to guarantee all children domiciled in the Republic of the best basic education.

Conclusion 34. Having considered the facts of this Appeal, Pleadings and Submissions by the Parties and attached documents, the Tribunal finds and directs as follows;1. The appellant succeeds in his ground A of the Notice of Appeal.2. Ground B of the Notice of Appeal fails and the Tribunal finds and holds that St Mary Itaava School is a Catholic Sponsored School.3. Ground C of the Notice of Appeal fails as the Tribunal finds that the School is a Catholic Sponsored School.4. Ground No. D party succeeds and the Tribunal orders the Makueni County Education Board to commence the process of reconstituting the Board of management afresh in strict adherence to the guidelines for nomination of Boards of Management in basic learning institutions issued by the Ministry of Education.5. Ground No. E succeeds and the Tribunal orders that in the re-constitution of the Board the three members who have served two consecutive terms namely Mrs Monica Mbinda, Mrs Alexander Mutuku Kinyili and Mr Joseph Kividyo Mutua should not be considered.6. Ground No. F fails due to the finding of the Tribunal in its order No.2 and 3 above.That shall be the order of the tribunal

35. Finally, these Tribunal takes this opportunity to apologise to the parties for taking long to deliver this award which was for reason that the tribunal intended to visit the school but could not be able to do because of the restrictions that were imposed by the Government in an effort to contain the prevailing Covid 19 pandemic.

Dated and delivered at Nairobi this 25th day of August 2020Hon. Waigi Kamau - Chair..........................Hon. Elyas Abdi - Member………….………Hon. Catherine Namada - Member………….………5