[2023] KEHC 26325 (KLR)

Oduodi & another v Busia County Education Board & another; Director of Education for Busia County & another (Interested Parties) (Civil Appeal E421 of 2021) [2023] KEHC 26325 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26325 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E421 of 2021

DAS Majanja, J

December 8, 2023

Between

Brig.(Rtd) Foustine Sirera Oduodi

1st Appellant

St. Austin’S Kingandole BOM

2nd Appellant

and

Busia County Education Board

1st Respondent

Secretary/Board of Management and Principal, St. Austin’S Kingandole High School

2nd Respondent

and

Director of Education for Busia County

Interested Party

Cabinet Secretary for Education

Interested Party

(Being an appeal against the Award of the Education Appeals Tribunal at Nairobi dated 25th June 2021 in Tribunal Case No. 1 of 2021)

Judgment

Introduction and Background 1. At the material time, the 1st Appellant was the Chairman of the 2nd Appellant (“the School Board”). By a letter dated 04. 12. 2019, the 1st Appellant requested the 1st Respondent (“the County Board”) to transfer the 2nd Respondent (“the Principal”) stating that the Principal was not the right principal for the School. The 1st Appellant claimed that the Principal lacked managerial skills, that he was absent in teaching and set a bad precedent to other teachers in the School, that the School had a poor learning environment and lack of basic sanitary facilities due to the Principal’s don’t-care attitude, that the School’s finances were operated in darkness and secrecy, that the Principal had vested interests in the School’s procurement of goods and services, that the Principal had disrespect and contempt in his dealings with the School Board and that he had a,“baggage of personality issues which the board believes are cumulatively detrimental to the efficient learning of the school”.

2. Following the complaint, the County Board conducted investigations and engaged in arbitration and mediation efforts through the Sub-County Director of the 1st Interested Party. In his letter of 03. 03. 2020, the 1st Interested Party recommended to the County Board inter alia that the School Board be dissolved and a new one appointed. A special meeting of the School Board held on 11. 03. 2020 to deliberate the findings of the County Board and find a way forward for the 1st Appellant and the Principal to work together did not yield positive results. Consequently, the County Board, in a meeting held on 27. 11. 2020 resolved to dissolve the School Board in accordance with section 5(1)(f) of the Fourth Schedule of the Basic Education Act, 2013. The resolution was communicated to the School Board through the Principal in a letter dated 02. 12. 2020.

3. Aggrieved by the decisions, the Appellants appealed to the Education Appeals Tribunal (“the Tribunal”) to reverse the County Board’s decision and stay the nomination of new persons to constitute the School Board. After considering the parties’ pleadings and submissions, the Tribunal rendered an award on 25. 06. 2021 (“the Award”). The Tribunal found that there was a strained relation between the Appellants and the Principal and that the differences were irreconcilable. That this state of affairs had affected the management and governance of the School thus affecting its operations as well as its relation with its sponsor, the Catholic Church. It noted that various attempts by stakeholders to reconcile the parties had failed.

4. The Tribunal framed one issue for its determination; whether the County Board erred in law and fact in arriving at its decision. The Tribunal stated that it is mandated to give effect to the provisions of Article 53 of the Constitution which upholds the best interests of the child. That having appreciated the challenges the School had as a result of the differences between the Principal and the Appellants, the Tribunal observed that this situation could not be countenanced at it was against the best interest of the learners. It further noted that it was important that the operations, management and governance of the School be safeguarded at all costs in the best interests of the children in line with the statutory provisions and that any wrangles between the Appellants and the Principal, if left unchecked, would negatively impact the School.

5. The Tribunal accepted that the County Board convened various meetings and engaged the quality assurance team from the Ministry to make certain enquiries and upon the conclusion of the exercise, it recommended that the School Board be disbanded as it was unable to reconcile the contesting factions. In view of the meetings and correspondence presented before it, the Tribunal found that all parties in this matter were involved by the County Board in the entire exercise hence it could not be said that the exercise culminating into the decision was carried in disregard of fair administrative action. Further, that despite invitations, several parties chose not to cooperate while others took hard-line stances thereby causing stalemates in meetings. For these reasons, the Tribunal concluded that the decision of the County Board was reasonable in the circumstances, was procedural and was supported by evidence. The Tribunal also held that the decision of the County Board was made within the confines of the functions of the County Board under the Basic Education Act, 2013 and in the spirit of promoting the best interests of the children at the School.

6. Tribunal dismissed the appeal but in the interests of good governance, continued smooth running of the School and in the spirit of promoting the best interests of the child, it varied the decision of the County Board by making the following orders:a.The chairperson of the school who is the 1st appellant herein shall no longer be a member nor act as chair of the learning institution herein and is barred from in any way whatsoever from interfering with the affairs of the schoolb.The sponsor of the school in collaboration with Busia County Education Board shall immediately appoint a new chairperson to the Board of Management of the 2nd Respondent school.c.The members of the board of management are hereby reinstated and shall continue to serve the remainder period of their term.d.The board of management of the school herein are ordered to quickly restore order to the school with close supervision of the Busia County Education Boarde.Any party aggrieved by the decision of this Tribunal has 30 days to appeal to the High Court

7. The Appellants are aggrieved by the Award and have appealed to this court through their Memorandum of Appeal dated 14. 07. 2021. The appeal has been canvased by way of written submissions. I do not propose to rehash the submissions but make relevant references in my analysis and determination below.

Analysis and Determination 8. This is a second appeal and as such, I am guided by the Court of Appeal’s decision in Njoroge v Republic [1982] KLR 388 which held that on a second appeal, the court is only concerned with points of law since fact finding body and the Tribunal have exhaustively dealt with the factual issue. On such an appeal, the court is bound by the concurrent findings of fact made by the, unless those findings were shown not to be based on evidence.

9. The Appellants have condensed the 6 grounds in their memorandum of appeal to two issues in their submissions. They aver that the Award is legally and factually self-contradictory, convoluted, against itself and difficult to enforce and that the Tribunal arrived at a decision that is against the law and evidence presented. The Appellants submit that it was an error for the Tribunal to conclude that the School Board was heard in a meeting between the School Board and the County Board representatives. They submit that on the contrary, the County Board filed a case for the dissolution of the School Board based on their own investigations and meetings and that they made recommendations for the School Board’s dissolution without hearing the School Board.

10. The Appellants therefore submit that the action by the County Board was against the spirit of Article 47 of the Constitution and sections 4 and 6 of the Fair Administrative Action Act, 2015. They pose the question that if the County Board were to sit, receive reports from one side and disband the School Board without hearing the School Board on why they have taken certain stands, why will any Kenyan worth his reputation be willing to sit on such a school board?

11. The Appellants therefore submits that the ratification of the decision of the County Board by the Tribunal was setting a very dangerous precedent and that the right to be heard before being condemned is a fundamental human rights principle that cannot be washed way. The Appellants further submit that it was a contradiction for the Tribunal to endorse the decision of the County Board and then make an about turn and reinstate the whole School Board except the 1st Appellant as the chair, allegedly in the best interest of the children. The Appellants submit that the Tribunal had no legal basis to dismember the School Board and separate the 1st Appellant from the School Board and that there was no evidence that the 1st Appellant as the Chair had become inimical to the best interests of the children of the School. The Appellants thus urge the court to overturn the Award and reinstate the entire School Board including the 1st Appellant.

12. While I agree with the Appellants that everyone has a right to be heard and to be subjected to an administrative action that is fair and rational, I do not agree with their submissions that their rights were denied. The record indicates that prior to making its decisions, the County Board held a number of meetings with School Board on 11. 03. 2020, 16. 10. 2020 and 27. 11. 2020 in a bid resolve the stalemate about running the School and also determine the allegations levelled by the Appellants against the Principal. The 1st Appellant, other members of the School Board and representatives of the County Board attended those meetings. The allegations by the 1st Appellant against the Principal and the 1st Appellant’s reservations about the investigations done by the County Board were tabled and presented at those meetings. The 1st Appellant was also given an opportunity to present his case against the Principal and make his remarks but he declined to have a reconciliation ‘handshake’ with the Principal. The School Auditor together with the County Schools Auditor also conducted investigations on 21. 01. 2020 centred around the allegations of financial malpractice raised by the 1st Appellant. The 1st Appellant was also one of the people interviewed by the auditors before preparing their report which found no malpractice as alleged. The above points to the fact that the 1st Appellant and the School Board at large were heard by the County Board before it rendered its decision on 02. 12. 2020.

13. The record also shows that the Appellants were represented by counsel who made oral and written submissions before the Tribunal, which stated that it had considered the same, together with the submissions of the Respondents and the parties’ pleadings in arriving at the Award. For these reasons, I find and hold that the Appellants’ contention that they were not heard or granted a fair opportunity to present their case either before the County Board or the Tribunal is without basis and fails.

14. On the ground that the Award was contradictory, without basis and unenforceable for reinstating the School Board to the exclusion of the 1st Appellant and was a variation of the decision of the County Board, I note that it was made,“In the interest of good governance, a continued smooth running of the institution, and in the spirit of promoting the best interests of the child.”The Tribunal had jurisdiction to make any order after hearing the appeal that would remedy the situation in light with conclusion it reached and the ultimate decision. I find that the reasons for variation of the County Board’s were reasonable in the circumstances and any other tribunal seating in the Tribunal’s place would have arrived at the same decision given the 1st Appellant’s conduct in the matter.

15. The Tribunal’s orders were in line with the evidence presented in the meetings that the School Board and the Principal were not working in harmony. The sponsor of the 1st Appellant to the Board, that is the Catholic Church, itself impliedly and expressly evinced its intention to withdraw its nomination of the 1st Appellant to the School Board through its letter of 06. 05. 2021 and cited the 1st Appellant for causing disunity within the School Board. All these informed the County Board to disband the School Board and the Tribunal to affirm that decision but vary the same in the interest of the children in the School and its smooth running. I find and hold that the Tribunal’s decision was not perverse and there is no legal basis for this court to intervene.

Disposition 16. This appeal lacks merit. It is dismissed. There shall be no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D.S. MAJANJAJUDGEMs Omamo instructed by Namada and Company Advocates for the Appellants.No appearance for the Respondents.