[2022] KEHC 18081 (KLR)

Misiani v Board of Management – Eberege Primary School & another (Petition 11 of 2021) [2022] KEHC 18081 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 18081 (KLR)

Republic of Kenya

In the High Court at Kisii

Petition 11 of 2021

REA Ougo, J

November 11, 2022

IN THE MATTER OF APPLICATION UNDER ARTICLE 10, 19, 20, 22, 23, 25, 27, 28, 29, 35, 47, 50 AND 53 OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF THE CHILDREN’S ACT SECTION 3, 4, 5, 6, 7, 8 AND 9 AND IN THE MATTER OF BASIC EDUCATION ACT SECTION 4, 36, 55, 56, 58, 59 AND 61 AND IN THE MATTER OF THE BOARD OF MANAGEMENT OF EBEREGE PRIMARY SCHOOL AND IN THE MATTER OF THE CHILDREN OF EBEREGE PRIMARY SCHOOL AND IN THE MATTER OF CONSTRUCTION OF A MODEL CENTRE OF EXCELLENCE AT EBEREGE PRIMARY SCHOOL BETWEEN

Between

Nehemiah Stone Bic Misiani

Petitioner

and

Board of Management – Eberege Primary School

1st Respondent

Kisii County Education Director

2nd Respondent

Judgment

1. The petitioner is an adult of sound mind and a director of Stonebic Systems, Schools and Colleges. The 1st respondent, Eberege Primary School Board of Management (‘BOM’) is a body corporate created under the Basic Education Act. Members of the Board of Management are appointed by the County Education Board. The 2nd respondent is a civil servant.

2. The petitioner filed a petition before this court which was later amended on July 8, 2021. According to the petitioner the 1st Respondent failed to perform its functions outlined in the Basic Education Act No 14 of 2013. The functions include:a.To promote the best interest of the school and ensure its development.b.To ensure and assure the provisions of proper and adequate physical facilities for the school.c.To encourage a culture of dialogue and participatory democratic governance at the school.d.To administer and manage the resources of the school.e.To account for the funds accruing to the school by presenting:i.A statement of the income and expenditure of the school during the year.ii.A balance sheet of the school on the last day of the year.iii.To establish the following committees for proper running of the school:1. Finance, procurement and general purpose committee2. Academic standards, quality and environment committee3. Discipline, ethics and integrity committee4. Audit committee5. Human rights and student welfare committeef.To cause to be kept all proper books and records of accounts of the income, expenditure and assets of the school.

3. The petitioner contends that the 1st respondent ran the school like a private entity in total disregard to the provisions of the Basic Education Act and the Constitution of Kenya 2010. It is alleged that the 1st respondent colluded with the contractor to defraud the school. The 1st respondent upon receiving National Government Constituency Development Fund (NG-CDF) and released it to the contractor knowing that the contractor had no intention of completing the project, ‘Model Centre of Excellence’, that was under construction. The 1st respondent therefore violated the pupils’ rights to quality education and good health. The ‘Model Centre of Excellence’ is now ridicule in the community and referred to as ‘Monument of Shame’ by members of the community.

4. He also alleged that the 2nd respondent has also failed to perform its function with respect to Eberege Primary School. The petitioner therefore seeks the following reliefs:1. A declaration that the 1st Respondent has failed to manage Eberege Primary School according to the Basic Education Act No 14 of 2013. 2.A declaration that the rights of the pupils schooling at Eberege Primary School to quality education and good health have been violated.3. A Declaration that the Board of Management at Eberege Primary School has not been constituted in accordance with the Basic Education Act No 14 of 2013. 4.An Order compelling the 2nd Respondent to re-constitute the BOM of Eberege Primary School in accordance with the Basic Education Act No 14 of 2013. 5.An order compelling the 2nd respondent to constitute Parents Association for Eberege Primary School in accordance with the Basic Education Act No 14 of 2013. 6.An Order compelling the 2nd respondent to ensure that the Model Centre of Excellence project at Eberege Primary School is completed within a period of one year.7. An order compelling the 2nd respondent to ensure that a title deed for Eberege Primary School is obtained within a period of one year.8. An Order compelling the Respondents to restore the Nursery School to its original compound.9. This Honourable Court be pleased to issue such further or other orders as it may deem just and expedient for the ends of justice.10. Costs of the suit.

5. The petitioner in the supporting affidavit dated May 28, 2021 depones that the chairman of the BOM was not nominated and elected in accordance to section 56 (4) of the Basic Education Act No 14 of 2013, instead he was handpicked by the school head teacher. The other members were equally selected by the head teacher and the deputy head teacher in consultation with the contractor. The construction of the Model Centre of Excellence started in 2015/2016 but is only 20% complete despite the NG-CDF office releasing 65% of the funds to the school. On May 2, 2021, the 1st respondent colluded with the contractor to vandalise the school by carrying away building materials from the school. In light of these developments, some parents transferred their children to other schools leaving behind the children from poor families in the school.

6. It is also averred that the 1st respondent is also not willing to allow the community’s well wishers to build the school. The 1st respondent declined the construction of a toilet facility and gate in the school and refused to account for monies received from ‘Omogachieri Diaspora’ thus discouraging flow of funds to motivate pupils at the school. The petitioner is also apprehensive that the 1st respondent may sell part or the whole of the land which the school occupies.

7. The petitioner contends that the 1st respondent has locked out key important players with key oversight roles. The operations of the school are therefore shrouded in secrecy and there is lack of transparency and accountability.

8. The Honourable Attorney General, entered appearance for the respondent and filed a replying affidavit sworn by Gideon Omweri, the Secretary to the 1st respondent. He averred that the respondents have facilitated several projects and are currently working on the construction of a 3-storey classroom. That the project was and is still being funded by the National Government Constituency Development Fund (NG-CDF) and that they never paid the contractor without the authorisation from NG-CDF. It was explained that the 1st respondent received Kshs 12,000,000/- which was properly utilized and the project ought to be in the final stages, however, the contractor failed to fulfil his part of the contract. Following an evaluation by the Sub-county Works Officer, his recommendation was that the contractor refunds the school with Kshs 3,500,000/- for the work not done.

9. The respondents denied the allegations that members of the Board were handpicked and averred that they were duly nominated and elected according to section 56 (4) of the Basic Education Act. They also explained that the nursery school is part and parcel of the primary school. The respondents claim that the petitioner is using the suit to intimidate the 1st respondent after it failed to award him a tender. The respondents also claim that the petitioner is neither a parent nor a stakeholder of the school.

10. In response, the petitioner filed a further affidavit dated July 6, 2021. He contends that the 1st respondent is absolving itself by passing the blame to the contractor. The nursery school is not part of the primary school as it has its own separate facilities and headed by a teacher with Early Childhood Development qualifications. The nursery school is funded by the county government as opposed to the primary school that is funded by the national government. The rights of the nursery school children were thus violated when they were moved to the primary school section. CDF gave Kshs 400,000/- to construct the office of the assistant chief and social hall yet the structure that was constructed is residential like.

11. The respondents filed a further replying affidavit dated July 21, 2021 on grounds that the petition was frivolous and offends the provisions of section 106 of the Evidence Act and section 49 of the Constituency Development Fund. It was advanced that the school followed the procurement procedures for its projects. It was further deposed that the nursery school has never been displaced or replaced.

12. In a further rejoinder, the petitioner filed a further affidavit stating that the petition does not offend provisions of section 106 of the Evidence Act. He maintained that the nursery school was displaced following the construction of the assistant chief’s office. He also averred that the Seventh Day Adventist Church having sponsored the school, then it ought to nominate 3 members to the BOM.

Analysis and determination 13. I have considered the written submissions filed by the parties and the reliefs sought in the amended petition.

14. Before delving into the merits of the petition, this court must first consider whether the petitioner has the locus to institute the suit; and secondly, whether the petition as drafted discloses constitutional violations.

15. The respondent argued that the petitioner was neither a parent at the school and thus challenged its locus standi to institute the petition. However, the scope of locus standi has been broadened by the Constitution under Article 22 and 258. This was observed by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR:27. …this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process.…… We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the Petition. Apart from this, we argue with the Superior Court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution....28. It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some specific interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22(3) aforesaid, the Chief Justice has made rules contained in Legal Notice No 117 of June 28, 2013. ... “the Mutunga Rules” to inter alia, facilitate the application of the right of standing...... The rules reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated in infringed or threatened has a right of standing and can institute proceedings as envisaged under Article 22(2) and 258 of the Constitution.29. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reasons of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.

16. The petitioner therefore can file a petition even though he is not a parent at the school, claiming that the constitutional rights of the children have been infringed. Having carefully considered the petition, the crux of the petitioner’s case is that the respondent mismanaged funds received from NG-CDF for the construction of classrooms. He is also aggrieved with the respondent’s decision to move the nursery school and its failure to obtain the title deed for the school. According to the petitioner, the respondent’s failure to comply with the provisions of the Basic Education Act has watered downquality education offered to the pupils and their health.

17. The petition is centred on the respondents’ non compliance with the Basic Education Act which the petitioner claims was grossly violated. Curiously, the suit was filed as a constitutional matter but fails to explained the manner in which the constitution was violated. The Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others[2014] eKLR as follows: -“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

18. The petitioner failed to clearly state how the provisions of the Constitution were violated. In my view, the petition as drafted does not disclose any violation of the petitioner’s rights and neither does it raise a constitutional issue. The court in Fresh Produce Exporters Association of Kenya (FPEAK) & 3 others v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries through Attorney General & 3 others; Kenya Flowers Council (Interested Party) (Constitutional Petition E236 of 2021) [2022] KEHC 13591 (KLR) (Constitutional and Human Rights) (30 September 2022) (Judgment) cited with approval the South African case of Fredricks & Other vs MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC). In the Fredricks & Others case (supra) the court observed that:“The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…”

19. The petitioner took issue with the management of Eberege Pre-School claiming it had been moved to accommodate the assistant chief’s office. Section 18 (1) (e) of the Basic Education Act bestows on the County Education Board the duty to oversee the operation and management of youth polytechnics, pre-primary education including early childhood care and education programmes in the county. Therefore, any issues touching on Eberege Pre-School ought to have been raised before the County Education Board as it has specialized committees responsible for resolving such disputes (see section 25 of the Basic Education Act). If the petitioner is dissatisfied with the decision of the County Education Board, then they have recourse to appeal the decision before the Education Appeals Tribunal – see section 93 of the Basic Education Act.

20. It is clear that there were alternative avenues which the petitioner could have pursued to have his complaints addressed. Had the petitioner been diligent he would have followed the laid down procedure under the Basic Education Act to resolve the issues he has now raised in the petition. In the case of John Harun Mwau vs Peter Gastrow & 3 Others [2014] eKLR the court expressed itself in the following terms:“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights…It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the Constitution”

21. In the end, I find that the petition as drafted does not disclose any violation of the Constitution. This court having found that the petition does not meet the threshold of a constitutional petition, any further discussion will not add any value to the Petitioners’ case. The petition is dismissed. Each party to bear its own costs.

DATED, SIGNED, AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT BUNGOMA THIS 11TH DAY OF NOVEMBER, 2022. R E OUGOJUDGEIn the presence:Nehemiah Stone Bic Misiani Petitioner in personMiss Osebe For the 1st & 2nd RespondentsMs. Wilkister/ Aphline Court Assistants