[2021] KEEAT 655 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

E.A.T.A NO. 002 OF 2016

PHILIP ACHAYO MUNYUWINYI..............................................APPELLANT

VERSUS

COUNTY DIRECTOR OF EDUCATION NAIROBI................RESPONDENT

AWARD

Facts of the Case

The brief facts upon which the Appeal is hinged are that;

1. The Appellant requested the County Director of Education Nairobi vide letters dated 19th October, 2015 and also in the year 2006 to be appointed/ nominated to the Board of Governors (BOG) of the new Public Secondary Schools that had been established within the Nairobi county, the development of which the appellant had assisted in their establishment when he worked in the now defunct Nairobi city council.

2. The Appellant further states that between 2001 and 2008, he voluntarily initiated and pushed for the inclusion and development of secondary Schools within the existing Public Primary Schools in Nairobi and that the initiative realized increase in number of Public Secondary Schools (PSS) from 47 in 2001 to 80 in 2015 and increased the number of Girls Secondary Schools (GSS) in the same period from 11 to 22.

3. The Appellant claimed in his letter that he sensitized parents, head teachers, School committee and Kenya National Union of Teachers Nairobi Branch through its then chairman Mr. Robert Karume on the need for more Secondary School through a series of meetings covering the whole city to identify schools which had underutilized facilities.

4. The Appellant states that he managed to convince the Director of the City Education to prevail upon the Nairobi City Council (NCC) to allow the Inclusion of Secondary School Facilities in Public Primary School. The Nairobi City Council (NCC) approved as per min 3 of the Education Committee meeting of 11/7/2002.

5. Subsequently, the Appellant states that he managed to convince the Head teachers and School Committees of the identified schools to register the Secondary Schools. Further, that the Provincial Director of Education, a Mr. Twahir, obtained the mandate of provincial Education Board PEB in 2007 vide Min PED/9/5/2007 of 29/5/2007 to register such schools.

6. The appellant further states that he raised a concern in relation to unused class rooms when there was a gap of 47 public secondary schools against 200 primary schools with no proper laws, rules and regulations governing the education sector. Additionally, with his initiative and protracted campaign the NCC was able to bend the laws in order to allow the Inclusion of Secondary School Facilities in public Primary Schools Project (ISSFPPS) to be implemented.

7. It is for the above reasons that the Appellant believes that he qualifies to be nominated for a presidential Commendation Award and also appointed as a board member in all the secondary schools he helped establish.

8. The Matter came up for hearing on the 11th of February, 2021 when the Appellant restated his Appeal before the Honourable Tribunal.

9. The Appellant informed the Tribunal that he is a teacher by profession but currently is retired and is engaged in manual jobs.

10. The appellant informed the Tribunal that currently he is a peasant and moves in between Nairobi and Siaya and that he prays to be appointed as a member of Board of Management of those schools he helped in establishing.

11. The Appellant further testified that in between 2001 and 2008, Nairobi City County had over 300 Primary Schools against 47 Secondary Schools, a period of say yes to children which was a project of UNICEF.

12. The Appellant testified that they had Millennium Education goals which were talking about education for all. He further testified that primary schools were run by Nairobi City Council while Secondary schools were run by the Ministry of Education.

13. The Appellant indicated that he retired from Nairobi City Council in 1999 a time when there was a very low enrolment in primary schools.

14. It was the Appellants testimony that by the year 2010, Secondary Schools were added from 49 in number to 90. It is his prayer that this tribunal finds for the Appellant and rules that the appellant and his friends be appointed to the Boards of management of various county schools and to the Kenya Primary Schools Parents Association.

15. The Respondent did not file their respective responses nor made any appearance in the matter.

Determination

16. From the foregoing, it is emerging that the Respondent declined to consider the Appellant’s request for appointment to the Board of Governors of the new Public Secondary Schools, the development of which he purports to have initiated.

17. Having analyzed the Appeal as stated, it is important to appreciate the law establishing this tribunal. This tribunal is established under the provisions of section 93 of the Basic Education Act No.14 of 2013.

The Basic Education Act is

“An Act of Parliament to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes “

Sec 93. The Education Appeals Tribunal

(1) There is established an Education Appeals Tribunal.

(2) Any person aggrieved by the decisions of the County Education Board may appeal to the Education Appeals Tribunal.

(3) The Cabinet Secretary in consultation with the National Education Board and relevant stakeholders shall prescribe regulations on the operation and structure of the Education Appeals Tribunal.

(4) The Education Appeals Tribunal shall comprise of—

(a) The chairperson of the National Education Board;

(b) The Director-General;

(c) The Secretary to the Teachers Service Commission;

(d) A representative of the Education Standards and Quality Assurance Council;

(e) A representative of the Kenya Private Sector Alliance;

(f) A representative of the Attorney-General; and

(g) The Chief Executive Officer of the National Council for Nomadic Education in Kenya.

18. From the foregoing, having analyzed the facts of the case and the law, the Honourable tribunal finds as follows;

19. The Respondent is a creation of the Teachers Service Commission (TSC which is one of the constitutional Commissions created under the Constitution of Kenya, 2010. Under this constitutional framework, the Commission is expected to decentralize its functions and services from its headquarters to counties with a view to enhancing access to services by citizens.

20. One of the decentralized units which is instrumental in day to day activities of the Commission is the position of County Directors.

21. As such, the TSC County Directors and other officers are appointed to handle all administrative as well as technical issues related to teacher management at the county level.

22. This tribunal is established under the provisions of section 93 of the Basic Education Act No.14 of 2013 as alluded to above.

23. From the foregoing and having analyzed the facts of the case and the law, there is only one preliminary issue that arises for determination;

i. Whether this tribunal has jurisdiction to preside over the appellant’s case.

(i) On Jurisdiction

24. From the Appellant’s case, he is aggrieved by the fact that the Respondent has failed to have him nominated as one of the Board Members in schools he purportedly assisted to establish.

In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the Supreme Court pronounced itself on jurisdiction thus [paragraph 68]:

“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in,In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” (Emphasis provided).

25. The supreme Court in an extensive analysis of the issue of its own jurisdiction quoted with approval the oft cited case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 in the first advisory opinion rendered by the Court in in Re The Matter of the Interim Independent Electoral Commissionwhere the Court stated: -

“[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.” (underlining supplied)

[30] The Lillian ‘S’case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

26. The jurisdiction conferred on this tribunal is an appellate jurisdiction. That jurisdiction is strictly limited by section 93(2) of The Basic Education Act to matters arising from the decisions of The County Education Boards. With utmost respect, the Appellant’s case does not arise from a decision of the County Education Board. On that account alone this tribunal holds and finds that it does not have jurisdiction to preside over the appeal in the nature presented.

27. From the foregoing, this tribunal having considered the facts of the appellant’s case and taking into consideration the above provisions of the law, it makes the following observations;

a) This tribunal exercises an appellate jurisdiction by dint of section 93(1) of The Basic Education Act. This appellate jurisdiction is further limited by dint of section 93(2) of The Basic Education Act to appeals by any person aggrieved by the decisions of the County Education Board.

b) The appeal before this tribunal does not arise from a decision of The County Education Board but rather a decision of the respondent institution. There is nothing on record that shows that the County Education Board was or has been involved in the impugned decision herein.

c) The nature of the dispute by the appellant and lodged before this tribunal is that arising from an employer employee relationship. In case the Appellant intends to challenge the appointment of Board of Management members appointed in April, 2016 as per his letter dated 23rd May, 2016, the proper forum would be the Employment and Labour Relations Court established by Article 162(2) (a) and article 162(3) of the Constitution.

Conclusion

28. Taking into account the decisions in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] & Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, and which are binding on this tribunal, this tribunal must only exercise jurisdiction as conferred by statute which is The Basic Education Act. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Put differently, it cannot usurp the jurisdiction conferred by the constitution at article 162(2)(a) and article 162(3) and The Employment & Labour Relations Act to The Employment and Labour relations Court.

29. Therefore, without jurisdiction, this tribunal cannot entertain these proceedings.

30. The upshot of the foregoing is that this tribunal makes a finding that it does not have jurisdiction to entertain this appeal and cannot therefore grant the appellant’s prayer seeking to challenge the appointment of members of various boards of management of schools within Nairobi.

31. Following the facts outlined above, this tribunal is not inclined to grant the appellant the relief sought save to dismiss the appeal.

32. That shall be the order of the tribunal.

DATED AND DELIVERED AT NAIROBI ON 22ND DAY OF MARCH 2021

1. HON. WAIGI KAMAU - CHAIRPERSON…..………………

2. HON. CATHERINE NAMANDA - MEMBER………………………….

3. HON. DR. PIUS MUTISYA -MEMBER…………… …………….