[2023] KEHC 27401 (KLR)

MWK (Minor suing through her guardian and next friend ENK) v Ndungu & 5 others (Petition E024 of 2021) [2023] KEHC 27401 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27401 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition E024 of 2021

DO Chepkwony, J

November 21, 2023

Between

MWK (Minor suing through her guardian and next friend ENK)

Petitioner

and

Felistus Wangeci Ndungu

1st Respondent

Paul Mbugua

2nd Respondent

Daniel Kinyua

3rd Respondent

David Makimei

4th Respondent

Limuru Town Primary School

5th Respondent

Teachers Service Commission

6th Respondent

Judgment

1. The Petitioner herein moved the court by way of Petition dated 18th June, 2021. The minor at the time of filing the case was a minor aged 14 years and she filed the case through the next friend ENK

2. The Petitioner seeks the following prayers:a.A Declaration be and is hereby issued that the actions and omissions of the Respondents herein violated the Petitioner's rights and fundamental freedoms as enshrined in Articles 27, 28, 29, 43 and 47 of the Constitution.b.A Declaration be and is hereby issued that the actions and omissions of the Respondents violated Articles 10,53(1),(d) and 53 (2) of the Constitution.c.A Declaration be and is hereby issued that the actions and omissions of the Respondents breached sections 4(2), 5, 7, 12 and 13 of the Children Act, 2001 and Section 6 of the Basic Education Act, 2013. d.A Declaration be and is hereby issued that the Actions and Omissions of the Respondents violated Article 10 of the African Charter of the Rights of the Child, 1989. e.A Declaration be and is hereby issued that the suspension of the Petitioner was in breach of Regulation 39 of the Basic Education Regulations, 2015 and Article 47 of the Constitution and is null and void.f.A Declaration be that the petitioner is entitled to compensation for defamation, social low esteem and damage to her reputation.g.An Order that the respondents be compelled to compensate the Petitioner for damage for Loss arising from the actions and omissions of the Respondents.h.An Order be for payment special damages.i.An Order that the Respondents offer that the Respondents offer and tender an unconditional apology regarding spurious allegations made against the Petitioner.j.That Declaration be that the 1st to 5th Respondents owed a duty to the petitioner that their actions and omissions negligently harmed.k.An Order be for cost of petition.l.Any other relief that this Honorable Court may deem fit and just to grant in the interest of justice.

3. The facts as raised in the Petition are that on 2nd May, 2018, the 1st, 2nd and 3rd Respondents without any reasonable cause suspended the Petitioner from the 5th Respondent for the reason that the Petitioner had been spotted to have been walking naked within the 5th Respondent’s vicinity on 5th April, 2018. It is the Petitioner’s averment that on the said day of 2nd May, 2018, her guardian took her back to the 5th Respondent and demanded to be provided with evidence of eye witness as who saw her naked. The guardian informed the 5th Respondent that on the date of the alleged incident, the Petitioner had been taken to Tigoni District Hospital with the permission of her class teacher for an ENT ailment since she has a hearing disability.

4. The Petitioners then states that since the 1st, 2nd and 3rd Respondent failed to provide the said evidence, she was reluctantly allowed back to class with the 1st Respondent promising to investigate the issue further. According to the Petitioner, it was on this day that the psychological and mental torture began until she was forced to transfer from the school.

5. The Petitioner holds that the 2nd and 3rd Respondents together with other teachers who taught the class orchestrated the psychological and physical torture and incited the pupils to bully and physically attack her as they failed to protect her.

6. The Petitioner also that the 1st and 4th Respondent being the head of the 5th Respondent for two terms and despite being aware of the misbehaviour of some of the teachers and pupils, allowed the same to go on which forced her to transfer to Bright Way Acadamy in Gatundu barely three months before her KCPE exams.

7. The Petitioner goes on to state that the actions of the Respondents worsened her hearing disability which she had been diagnosed of in 2014, a fact that was well known. She states that she visited the Limuru Children Offices to report the mistreatment and discrimination but the said office delayed to assist the Petitioner.

8. It is the Petitioner averment that the actions of the Respondents which forced her to change schools and this adversely affected her KCPE results in which she attained 274 marks out of 500, way below her aimed score of 380 marks.

9. The Petitioner contends that her rights and fundamental freedoms were infringed under the Constitution, more particularly her right to human dignity under Article 28 due to the malicious rumours which were intended to harm her character that she had walked naked in the school; her right against discrimination due to the hearing disability under Article 27, physically attack which is against her freedom to security and not to be subjected to torture and through her illegal suspension for three months before the KCPE which is contrary to the right to education.

10. The Petitioner further contends that the Respondents’ actions also contravened the Children Act since the actions were not in the child’s best interests under Section 4 (2), she was discriminated against due to her hearing disability contrary to Section 5, she was denied the right to education through the suspension contrary to Section 7, she was mistreated contrary to Section 12 and was subjected to psychological harm and torture contrary to Section 13 of the Act.

11. In essence, it is the Petitoners case that the actions of the Respondents contravened the Constitution, the Childrens Act, the African Charter on Rights of the Child, Basic Education Act.

12. The Petitioner also holds that her guardian was forced to transfer her to Bright Way Academy and incurred expenses that she would not have incurred due to negligence and actions of the Respondents.

13. Therefore, the Petitioners claim against the Respondent is for special damages for the sum of Kshs. 252,700/= as tabulated in the Petition together with general damages.

14. The 1st, 2nd, 3rd, 4th and 6th Respondents filed a Replying Affidavit which was sworn by Catherine M. Kertich (MRS) a Deputy Director Field Services Directorate at TSC, the 6th Respondent.

15. It is the 6th Respondent’s case that the Petitioner was accused of indecency by violating the school rules by dressing inappropriately near or within the school compound which caused disruption of the school program and drawing attention of members of public.

16. According to the 6th Respondent in line with the obligation by teachers to guide and counsel pupils, the Petitioner and other students screamed on seeing the Petitioner semi-naked were asked to report to school while accompanied by their parent(s) when schools resumed for the 2nd term. She stated that when schools resumed, the other students brought their parents but the Petitioner ignored, as a result of which she was sent home to bring the parent and was not suspended as alleged.

17. The 6th Respondent stated that the Petitioner reported back to school accompanied by her mother and the incident was explained to her mother who denied the claim if her daughter being indecently dressed despite the Petitioner’s own admission that she had changed into inappropriate entire attire without her mother’s knowledge. She added that on that day the Petitioner’s mother was advised to closely monitor the conduct of her daughter to forestall further acts of indiscipline.

18. It is the 6th Respondent’s contention that when the matter was resolved, the girl was allowed to continue with her studies in school but after few months the Petitioner without any notice, stopped coming to school, despite having registered for KCPE at the school. She added that the school management inquired and established she had transferred to another school without their knowledge. That upon consulting with Sub County Director Education, it was disclosed that the Petitioner’s mother had requested to be allowed to voluntary transfer the Petitioner to another school.

19. The 6th Respondent holds that the Petitioner did not bring the actions of the 1st-4th Respondents to its attention before her mother transferred her from the school. His mother was never compelled to transfer the Petitioner from the school. She did it on her own volition.

20. The 6th Respondent disputes the claim that the Petitioner was discriminated due to her hearing disability or for any other reason and that despite the whole issue, the Petitioner was still allowed to sit for her KCPE exams in the 5th Respondent school and the headteacher signed her admission forms to Gathirimu High School in good faith.

21. The 6th Respondent holds that the Petition is fatally defective as it does not meet the threshold of filing Constitutional Petitions and it should therefore be struck out and dismissed with costs to the 6th Respondent.

22. In the Replying Affidavit sworn by DM as the Headteacher to the 5th Respondent on 30th November, 2022, the 5th Respondent reiterated the averments of the 6th Respondent.

23. The 5th Respondent denied that the Petitioner was not expelled from the school but instead contends that the Petitioner was asked to go back to class after the disciplinary case. He stated that the Petitioner was only asked to go and call her parent so that the matter could be discussed. It goes on to state that when the Petitioner’s mother came to school, a meeting was held with two deputy headteachers the 1st and 3rd Respondents who tasked with dealing with disciplinary cases.

24. The 5th Respondent holds that the meeting concluded but the Petitioner’s mother was not satisfied and left agitated despite being advised not to put a lot of friction and tension on the Petitioner during her final year of examination. The 5th Respondent also holds that Board of Management held a meeting on 14th June, 2018 which discussed the issue of the Petitioner which advised the school to handle the Petitioner with maximum peace and harmony especially since she was a candidate.

25. The 5th Respondent holds that the Petitioner was transferred from the school without its knowledge but still came back to the school, sat for her KCPE exams and he later signed her admission forms to Gathirimu Girls High School.

26. According to the 5th Respondent the alleged bullying or actions of the 1st to 4th Respondents were not reported to him as the Headteacher of the 5th Respondent and there is no evidence tendered on the same.

27. The 5th Respondent denies the claim that the Petitioner was discriminated upon based on her hearing disability which claim is unsubstantiated. He holds that the expenses incurred by the Petitioner’s mother were made on her own volition as she was not compelled to transfer the Petitioner from the 5th Respondent.

28. It is the 5th Respondent’s contention that the Petition is an abuse of the court process as the same does not meet the test of a Constitutional Petition and should therefore be dismissed.

29. The court directed the parties to dispose of the Petition by way of written submissions whereby the Petitioner filed hers dated 19th October, 2022 and the Respondents filed theirs dated 9th December, 2022.

30. The Petitioner’s Submissions raised three issues for determination being:-a.Whether the Petitioner’s Rights under Articles 27, 28, 29, 43, 47 and 53 of the Constitution, 2010 were violated by the Respondents, and if so,b.Whether the Petitioner is entitled to any relief under Article 23 of the Constitution.c.In the circumstances, who should bear the costs of this Petition.

31. On the other hand, the Respondents’ submissions have raised the following issues for determination:-a.Whether the Petitioner was suspended from school.b.Whether the Petitioner’s Constitutional rights were violated.c.Whether the Petitioner is entitled to prayers sought.

Determination 32. In determining the Petition, I have carefully read through and considered the respective affidavits and submissions filed by the parties alongside the cited statute and case law. I find that from the set of issues singled out above, the main issue for determination is whether the Petition has merits to warrant the orders sought therein.

33. The court has analysed the whole set of facts raised by the Petitioner and the respective responses thus and find it is clear that the Petitioner has filed this Constitutional Petition on the basis that her rights and fundamental freedom were infringed upon by the actions of the Respondent.

34. It is trite law that for a Constitutional Petitions to be meritable, it must pass the test that was set out in the case of Anarita Karimi Njeru v Republic (No.1) (1979) 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012 (2013) eKLR.. In the case of David Mathu Kimingi v SMEC International PTY Limited (2021)eKLR on Constitutional Petitions held, the court held that;“The main issue for determination in the application before me is whether the petition raises any issues on violation of the Constitution to meet the threshold of a constitutional petition. In the Petition while the Petitioner has cited Article 41 (1) of the Constitution as having been allegedly contravened, he has failed to specify the said provision and further give particulars of the said contravention within the body of the Petition. The petitioner further alleges violation of his constitutional right under Article 23(3) in the Orders he seeks in the Petition yet the same is not averred with specificity and particulars given on how the Respondent violated the said right. It is my considered opinion that the Petitioner has failed to satisfy the threshold of specificity as espoused in the celebrated cases of Anarita Karimi Njeru v Republic (No.1) (1979) 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012 (2013) eKLR.”

35. In the instant Petition, it is the Petitioners case that the Respondents violated her rights by expelling her from 5th Respondent school. The court has considered the chain of events as they occurred on 2nd May, 2018 and finds that the Petitioner has not proved that she was not dressed indecently as alleged. Infact, in a twist of events, she actually admitted having changed the clothes that she had been wearing on that day after going for her ENT checkup and going to the school vicinity on the same day.

36. There is no doubt that this is a case instituted by a Petitioner who had a disciplinary case that which compelled the 5th Respondent school to take action and affected the parents of the involved children. There is evidence that the case of the Petitioner was not an isolated one since other parents too attended the disciplinary meeting in the school. It is an undisputed fact that the Petitioner failed to bring her parent and was forced to go back and bring him/her. When the Petitioner’s parent came to the school, a meeting was held and the Petitioner was allowed to go back to class.

37. The Petitioner has also pleaded that she suffered psychological harm and bullying from the other pupils of the class and the teachers. However, she has not provided any evidence in form of any statement from a classmate or any other evidence to confirm the same. The Petitioner has not even provided prove of the alleged torture or cyberbullying that was directly or indirectly linked to her hearing disability to show the discrimination, if at all.

38. Further the court notes that the Petitioner has not provided any letter from the 5th Respondent school to confirm she was either expelled or suspended and neither has she produced a letter of transfer. This has therefore only gone on to confirm the Respondents contention that the Petitioner’s guardian transferred the Petitioner on her own volition. As stated by the Respondents, and not denied by the Petitioner, she was allowed to sit for her national exams in the 5th Respondent and the 4th Respondent school confirmed that he executed her high school admission forms.

39. In the resultant, the court finds that this was case is founded on an issue of a disciplinary case in the 5th Respondent school against the Petitioner and other children which was dealt with by the schools administration in the same manner as it did with the other pupils who were found screaming on that day in question. In view of this, this court finds that the Petitioner has not presented any proof of violation of her rights and fundamental freedom to warrant this court grant the orders sought.

40. With regard to the Special Damages sought by the Petitioner, the court finds that there being no evidence to confirm that she was compelled to transfer the Petitioner from the 5th Respondent school, the court finds that the same were incurred voluntarily by her Petitioner and therefore the court shall not award the same.

41. In the end, the court finds that the Petition herein lacks merits and the same is dismissed with costs to the Respondents.

42It is so ordered.

JUDGMENT DELIVERED, DATED AND SIGNED AT KIAMBU THIS 21ST DAY OF NOVEMBER , 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Njau counsel for all RespondentsNo appearance for and by PetitionersCourt Assistant - Martin