[2022] KEHC 15775 (KLR)

RAO (A minor suing through her father and next of friend) NON v St Charles Lwanga High School Kandara & another (Constitutional Petition 1 A of 2022) [2022] KEHC 15775 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15775 (KLR)

Republic of Kenya

In the High Court at Murang'a

Constitutional Petition 1 A of 2022

J Wakiaga, J

December 1, 2022

Between

RAO (A minor suing through her father and next of friend) NON

Petitioner

and

St Charles Lwanga High School Kandara

1st Respondent

Board of Management, St Charles Lwanga High School Kandara

2nd Respondent

Judgment

1. By a certificate of urgency dated 17th of February 2022, the petitioner filed this petition at the Constitutional and Human Right Division at Nairobi this Petition and sought the following orders:a.That permission be granted to the Petitioner/ applicant to use the initials RAO as the petitioners are parents of the minor children and it is in the best interest of the children in terms of article 53(2) of the constitution that the names of the parents be sealed from the public and as also provided for under section 76(5) of the Children Act.b.That pending the hearing and determination of this application the honourable court be pleased to issue conservatory orders staying the 1st and 2nd respondent’s decision or action to constructively suspending and or dismissing the petitioner from School on the basis of an alleged from of indiscipline that was never provided for by the respondents.c.To order and direct the respondents to forth with immediately and unconditionally re- admit the petitioner back to school as boarding student and continue with her preparation for her examination.

2. The petitioner further sought for the same orders pending the hearing and determination of the petition, whose facts were that the petitioner was then a student in form four ready to sit for her examinations in march 2022.

3. That sometimes on December 12, 2021 there was a game match that was to happen in school for which she was an active participant hence, she changed into her games kits from the girl’s dormitory before joining her teammates in the field. She admitted not to have played in the first half of the match but the second half.

4. After the game had come to an end, together with her teammates, they remained in the field for some more entertainment session when she had an accident and hurt her feet. They then sought help from her teacher who directed her to the staff room to get first aid, but they remained in the field to finish the entertainment.

5. The petitioner contended that she proceeded to the hall for another entertainment after which she proceeded to the staff room as had earlier been directed, where they were joined by other female students who then informed them of an incident of theft that had occurred at the girl’s dormitory.

6. They then proceeded to the dormitory for each of them to check whether they had lost any item, where they confirmed that some had lost items, while she was lucky to had not lost any item and that when the teachers checked and inspected the girls, she was found with bunch of keys that belonged to friend of her who had since transferred from the school, which she was asked to hand over to the teachers.

7. The following day she was asked to offer an explanation on how she got hold of the said keys and to give an account of her movement on the material day which she did, upon which was directed to write a statement thereon.

8. On the 14th she was once again summoned to the Deputy Principals office where she found her parents upon which she was dismissed to go home with them, without being given any reason for the said action and was subsequently handed a letter suspending her for ten days with effect from January 3, 2022, for ten days, after which she was to report back to the school accompanied by her parents, which she complied with.

9. It was contended that the said reporting date was extended vide a sms text without any reason thereon, with the only indication being that the petitioner was required to appear before the Board of Management where the petitioner was bombarded with questions regarding the allegation of theft , without the same being granted an opportunity to defend herself and with threats of expulsion and a bad report on the same being issued noting that it was apparent that a decision had been made to suspend the petitioner.

10. That on the strength of a demand letter from her Advocate, the Petitioner was recalled to the school for review of the decision upon which, she was given the options that she becomes a day scholar despite having paid the full boarding fee and to write a letter of apology to the area Chief, the school Board and to the School, accepting and owning to the allegations, which she had denied.

11. It was the petitioner’s contention that, the actions stated herein, had seriously damaged her self-esteem and self-worth as she had been forced to stay at home and her constitutional rights had been violated for which she was entitled to the reliefs sought.

12. The petition was supported by the annex affidavit sworn by her father in which he deposed that he out rightly turned down he options granted to the petitioner by the respondents as they were unfair, un procedural, arbitrarily and impractical as the same was loving in Embakasi in Nairobi while the school was situated in Kandara approximately 74. 2 km from each other.

13. It was deposed further that the conduct of the respondent seemed determined to expel and or suspend the petitioner notwithstanding the fact that the allegations were inconclusively investigated.

Directions 14. When this petition was first placed before the court and in view of the urgency thereon, the Notice of Motion herein was compromised through a consent entered into wherein the petitioner was to be readmitted to the School as a Boarder subject to the school regulations and rules and that the only issue then left for the courts determination was the issue of damages which was to be heard by way of written submissions.

15. On behalf of the petitioner, it was submitted that despite the consent recorded in the matter, the petitioner was readmitted to sit for her examination but as a day Scholar, commuting from outside the school and therefore had a right to be awarded general and aggravated damages for the contravention of her fundamental rights and freedoms, having been subjected to baseless accusations of theft despite the glaring evidence that contradicted the accusations. In support of this contentions reference was made to the case of Siewhand Ramanoop v The AG of T&T PC appeal no 13 of 2004.

16. It was submitted that damages for constitutional infringement can only be awarded where the petitioner has demonstrated actual violation of rights and that the court should take into account the defendants motives, conduct and manner of committing the tort while assessing damages as was stated in the case of Abdul Hamid Ebrahim Ahmed v Municipal Council of Mombasa[2004] eKLR.

17. It was contended that the respondents conduct was malicious in that even after agreeing to allow the petitioner back to school to undertake her examinations, she was still subjected to torture and humiliation of taking the examinations while commuting from home, and therefore was entitled to aggravated damages as stated in Emmanuel Omeda v Safaricom ltd [2012] e KLR.

18. It was submitted that the principles upon which the court may award exemplary damages were set out in the case of: Godfrey Julius Ndumba Mbogiri &another v Nairobi City Council [2018] e KLR in cases of oppressive, arbitrary or un constitutional action by servants of the Government.

19. On cost =, it was contended that the petitioner was entitled to cost vide the provisions of section 27 of the Civil Procedure Act and as supported by the case of Oryx (k) ltd v Paul Kabue &2 others [2014] e KLR, that cost follow the event and Nedbank Swaziland Ltd v Sandile Dlamini NO144/29010 [2013] SZHC30[2013], to the effect that award of costs is at the discretion of the trial court and should be awarded to the winning party unless there exist good grounds for not doing so.

20. On behalf of the responded , it was submitted that the suit was compromised based on the alternative dispute resolution doctrine and that on the issue of damages the court should be guided by the decision in GN v Chumani Secondary School Board of Management [2014]e KLR where the court stated that the breach of the students constitutional right to basic education is not adequately remedied by san award of damages as the loss occasioned by his expulsion and therefore lack of opportunity to adequately prepare may affect adversely his ability to progress to further studies and consequently, the quality of his future life.

21. It was contended that both parties acted in the best interest of the petitioner by entering into the consent to allow the petitioner back to school to undertake her examination in accordance to article 53 of the constitution and therefore no rights were violated.

22. On the issue of cost, it was contended that a compromise having been reached I the matter, no party succeeded in the suit and therefore each should bear its own cost, as was stated in the case of Rufus Njuguna Miringu V Martha Murithi &2 others [2012] e KLR.

Determination. 23. As stated herein, the notice of motion was compromised by consent of the parties and therefore the only issue for determination is whether the petitioner is entitled to an award of damages in respect of an alleged violation of her constitutional rights and fundamental freedoms.

24. The Supreme Court had this to say on the principles that the court ought to consider in assessing damages in respect to violation of constitutional rights, that the questions and principles which the court has to consider in order to make an award of damages with regard to constitutional violation is manifestly different to what the court has to consider in say tortious or civil liability claim. In the latter, the issues are clear cut and quantification of appropriate award is in most cases straight forward unlike in constitutional petitions where there is no adequate standard developed. See William Musembi &13 others v Moi Educational Centre Co ltd & 3 others [2021] e KLR.

25. In this petition, the fact that the petitioner was suspended from school was not disputed, as confirmed through the consent order filed herein in which she was readmitted back to school, what seem to be disputed is whether the same was re admitted on the said terms of consent.It was upon the petitioner to provide evidence to support her contention, which at the end of the petitioner she did not.

26. It was also upon the petition to prove by way of evidence the net effect of the alleged violation of her rights and fundamental freedoms, upon which the court would award appropriate damages which unfortunately at the close of the petition she did not do, as I take the view that the issue of compensation is a matter of evidence which cannot be determined by way of written submissions and contested affidavit evidence.

27. From the submissions by the petitioner it is clear to me that the best recourse should have been by way of contempt of court proceeding if the respondent did not honour the terms of the consent order recorded in court compromising the petition.

28. It follows that the petitioner failed to prove the extent and effect of the violation of rights pleaded upon which the court would have assessed damages thereon and consequently dismiss the petitioners claim for damages.

29. On the issue of cost as submitted by the respondent, having compromised the petition, each party shall bear its cost and it is ordered.

DATED SIGNED AND DELIVERDED AT MURANGA THIS 1stDAY OF DECEMBER 2022J WAKIAGAJUDGEIn the presence ofCourt Assistant C. MutahiMr. Karanja for Otwal for PetitionerMr. Odhiambo for Mr. Mburu Kamau for Respondent