[2020] KEEAT 149 (KLR)

REPUBLIC OF KENYA

AT THE EDUCATION APPEALS TRIBUNAL NAIROBI

EAT A 001/019

PL.......................................................................................................APPELLANT

VS

THE CHAIRPERSON BOARD OF MANAGEMENT

NAKEEL BOYS HIGH SCHOOL........................................1ST RESPONDENT

MUCHIRI KIBUKU...............................................................2ND RESPONDENT

CHAIRPERSON

KAJIADO COUNTY EDUCATION BOARD.....................3RD RESPONDENT

CDE/SECRETARY COUNTY EDUCATION BOARD......4TH RESPONDENT

JUDGEMENT

FACTS OF THE CASE

Appellant’s case

The brief facts upon which the appellant hinged his appeal are that;

1. The appellant herein is the parent of BKL, a former student of Nakeel Boys High School.

2. Vide a letter dated 5/06/18 and following the recommendations of the 1st Respondents Board’s Discipline, Ethics & Integrity Committee the student was suspended for one day for having tested positive for consumption of Cannabis.

3. Vide a letter dated 14/06/18 The Board of Management of Nakeel Boys High School convened a sitting of all the members in which the student appeared before it following a referral by the Board’s Discipline, Ethics & Integrity, Committee. He was required to answer to a charge of testing positive for cannabis. The Board of Management upheld the decision of the Committee to exclude the boy from the school and made the recommendation to the County Education Board. Effectively the boy remained suspended until a communication was received from the County Education Board.

4. Vide a letter dated 8th/08/2018. The County Education Board in response to a letter by The Commission on Administrative Justice disclosed that it had directed the Board of Management Nakeel Boys High School to recall all the suspended students including BL with effect from 1st August, 2018 and take them into a Correctional Programme for the affected students together with their parents.

5. Vide a letter dated 3/09/2018 Nakeel Boys High school wrote to the appellant informing him that it had received a letter from the County Education Board in relation to the suspension of his son and that the board of management will meet on Thursday 6th September 2018 to deliberate on the matter subsequent to which they will communicate to him.

6. Vide a letter dated 7th September 2018, Nakeel Boys High school wrote to the appellant informing him that the Board of management had decided to appeal against the recommendations of the County Education Board on 31st October 2018 and that pending the appeal, the student remained suspended.

7. Vide a letter dated 13/05/2019,the appellant formally wrote to this tribunal seeking its intervention on the question as to;

(a) Whether,his son’s suspension was lawful, legal & procedural.

(b) Whether the Board of Management members committed an offence for non-compliance with County Education Board directive for re-admission of suspended students.

(c) Whether B constitutional rights were violated.

The Respondent’s case

8. The 1st respondent submitted it is response to the appeal and stated that from it is records the appellant’s son enrolled at the school on or about 11th January, 2017 and at the time of admission undertook to comply with all school rules and regulations.

9. On the 20th May, 2018, a fellow student was caught in an act of indiscipline out of which he was interrogated. The student mentioned that he was in a group of 13 students who included BKL who were in the habit of sneaking from school to look for bhang.

10. An impromptu search was then conducted upon which B was found in possession of clothes which he could not account for.

11. The respondent stated that B was asked to make a written statement on the allegation of being linked to taking of drugs and on the question of being found with property that he could not account for.

12. The respondent also submitted that B was summoned to appear before the school disciplinary committee on 30th May, 2018 and which was chaired by the Deputy Principal of the School. B was to answer to the charges levelled against him. The respondent stated that B denied the charges and the Committee decided that the students be subjected to a drug test and that the parents be informed about the disciplinary issues facing their sons and they be summoned to come to school the next day.

13. The respondent stated that the petitioner came to the school on 31st May, 2018 and upon receiving an explanation of the issues facing the son, he paid a sum of Kshs.2,000/= for the drug test

14. The respondent stated that B was subjected to an impromptu drug test on the 5th June 2018 which turned out positive for cannabis.

15. On the 6th June, 2018, B appeared before the School’s Board of Management Discipline Committee together with his father where he denied the charges levelled against him and the matter was then referred to the full Board of Management. The respondent stated that the Petitioner herein also threatened to teach the Committee a lesson. The Committee recommended that the student and his parent appear before the full Board of Management on 14th June, 2018.

16. The Board of Management recommended exclusion of B from the School and forwarded the recommendation to The County Education Board.

17. The respondent submitted that on the 27th June 2018, the petitioner together with the student stormed the School and indicated that he had found a better School-Empakasi Secondary School for his son and demanded clearance from the School.

18. The respondent stated that on 8th August, 2018, it received a directive from The County Education Board instructing it to re-admit all the students who had been recommended for exclusion.

19. The 1st respondent stated that on the 6th September, 2018, the Board of Management convened a Special Board Meeting to deliberate on the recommendation by the County Education Board. Essentially the Board of Management was aggrieved by the recommendation and appealed to the County Education Board to reconsider it’s decision

20. The respondent stated that the student’s suspension was Lawful, Legal & procedurally fair.

21. The appeal was set down for hearing on 30th July, 2019 when both parties appeared before the tribunal.

Determination

22. From the foregoing, having gone through the representations by both parties, it is emerging that the appellant was a student who was subsequently excluded from the respondent institution following his record of indiscipline. It appears that upon his exclusion, he successfully sought admission at another school while The County Education Board made recommendations that the student should be recalled back to the school. The 1st respondent’s board of management appealed against this recommendation.

23. From the foregoing, having analysed the facts of the case and the law, the following issues arise for determination;

(i) Whether there is an appeal capable of being determined by the Tribunal.

(ii) Whether the student’s suspension was lawful, legal & procedural.

(iii) Whether The Board of Management members committed an offence for non-compliance with County Education Board directive for re-admission of suspended students.

(iv) Whether B constitutional rights were violated.

(i) Whether there is an appeal capable of being determined by the Tribunal.

It is important to state from the onset that a finding on this question will determine whether it will be necessary to delve into the other issues.

Having analysed the above facts, it is important to appreciate the law that governs disciplinary matters at learning institutions as well as 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.

TheBasic Education Regulations, 2015atPART III provides for school rules, discipline procedures for students and exclusion as follows;

32. Individual liability for indiscipline

A learner shall be deemed to be individually indisciplined if involved in —

(a) physical fights;

(b) bullying of other learners;

(c) stealing;

(d) playing truancy;

(e) cheating in examinations;

(f) abusing teachers or other persons in authority;

(g) defiance of lawful instructions;

(h) drug trafficking or substance abuse; or

(i) any other conduct categorized as indiscipline by the Board of Management.

33. Mass indiscipline

Learners shall be deemed to have participated in mass indiscipline in the institution if they jointly take part in—

(a) unlawful demonstration;

(b) boycott of classes or meals;

(c) the destruction of school property; or

(d) invasion of other institutions, shopping centers or homesteads.

37. Register to be kept

Every institution shall establish and keep a register of indisciplined learners indicating the name, class, category of indiscipline, date and warning or any other corrective measures taken by the institution.

39. Procedure for handling disciplinary cases

(1) The particulars of the complaint preferred against the learner shall be read out to the parent or guardian and the learner at the meeting with the Board of Management under regulation 38, and the learner shall be asked to defend himself or herself.

(2) Where the parent or guardian fails to appear, the business of the Board shall be adjourned, and the matter shall be deferred and a new date set and communicated for the parties to appear.

(3) Where the parent or guardian fails to attend on the rescheduled date, the case shall be heard and determined such absence notwithstanding.

(4) In all disciplinary proceedings affecting a learner the attendance of the Sub-county Education Officer shall be mandatory.

(5) The recommendations of the Board of Management shall within two days be communicated to the County Director or Education.

40. Exclusion of learner from the institution in case of indiscipline

Where the County Director of Education receives the recommendation of the Board of Management then he or she shall seek the advice of the County Education Board as to whether to—

(a) order for conditional or unconditional re-admission of the learner;

(b) transfer the learner to an alternative institution; or

(c) transfer the learner to a corrective center in the context of education.

41. Appeals to the Tribunal

Any Person aggrieved by a decision under regulation 40 may appeal to the Education Appeals Tribunal.

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.

The appellant herein has lodged this appeal. From the presentations by both parties, they concede that the County Education Board made a recommendation to re-admit the student back to the school. The School appealed against the recommendation to the County Education Board.

From the context of Section 93(2) of The Basic Education Act, the appellant is not aggrieved by a decision of the County Education Board. As at 27th June 2018 the student remained suspended. On the same date the petitioner indicated to the School that he was transferring his son to Empakasy Secondary School.

On the other hand as at the time when The County Education Board was making a recommendation on 8th August 2018 the student had already settled at Empakasy Secondary School while the 1st respondent institution had lodged an appeal to the County Education Board. It is not clear as to why the 1st respondent did not channel its appeal to this tribunal. An appeal from the decision of The County Education Board lies to this tribunal and not back to the County Education Board.

With utmost respect, the appellant’s case does not arise from a decision of the County Education Board. In any event, it would appear that the decision to exclude the appellant from school was waived pursuant to the provisions of regulation 40(a) of The Basic Education Regulations 2015 upon the recommendation of The County Education Board on 8th August, 2019 during which time the student never took up the opportunity as he was already in another learning institution.

There is therefore no decision by the County Education Board or The County Director of Education. There is therefore no appeal under the provisions of regulation 41 of The Basic Education Regulations 2015. This appeal therefore seems to have been rendered nugatory on account of the decision by the appellant to transfer his son to another institution.

Conclusion

The upshot of the foregoing is that there being no appeal, it would not be necessary to delve into the other issues which rest on the aforementioned issue.

This tribunal makes a finding that the grounds of appeal had already been waived upon the intervention of the County Education Board but the appellant did not take up the opportunity. Consequently we find that there is no appeal for determination before this tribunal under regulation 41.

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

That shall be the order of the tribunal

DATED and DELIVERED at NAIROBI this 14th day of January 2020.

Waigi Kamau Chairman Signature………………………..