[2022] KEHC 11312 (KLR)

Republic v Board of Management Othaya Boys High School & 2 others; Ian Macharia Mathenge & Others (Exparte) (Judicial Review Application E001 of 2021) [2022] KEHC 11312 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11312 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Application E001 of 2021

FN Muchemi, J

June 2, 2022

IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF CERTIORARI AND MANDAMUS BY WAY OF JUDICIAL REVIEW

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT 2015

AND

IN THE MATTER OF: THE BASIC EDUCATION ACT 2013

Between

Republic

Applicant

and

Board of Management Othaya Boys High School

1st Respondent

Edward Muhuni Waititu Chief Principal/Bom Secretary Othaya Boys High School

2nd Respondent

Honourable Attorney General

3rd Respondent

and

Ian Macharia Mathenge & Others

Exparte

Ruling

1. This application dated March 3, 2022 brought under section 5 of the Judicature Act seeks for orders for summoning the 2nd respondent in his capacity as the Chief Principal of the school and as Secretary of the 1st respondent to find him guilty of contempt of court and to issue an order for committal to prison for a period of six months for contempt.

2. In opposition to the application, the respondents filed a replying affidavit dated March 23, 2022.

Ex parte Applicants’ Case 3. Theex parteapplicants state that on February 21, 2021 this court issued orders directed at the respondents staying the decision to suspend the ex parte applicants and compelling the respondents to admit them. The ex parte applicants further contend that they served the respondents through their advocate with the court order and leave to institute judicial proceedings which the 1st & 2nd respondents received.

4. The ex parteapplicants further contend that they went to school with a view of being re-admitted as per the court order but in blatant disobedience of the court order, the 2nd respondent refused to admit them and issued them with a letter which contained instructions to candidates doing exams as day scholars. As such, theex parte applicants state that they are beneficiaries of a court order which they cannot enjoy owing to the disobedience of the 1st respondent. They pray that the orders sought be granted.

The Respondents’ Case 5. The respondents filed a replying affidavit sworn by the 2nd respondent who is the Principal and Secretary to the Board of Management of Othaya Boys High School. He stated that he is not in contempt of the court orders issued to him.

6. The 2nd respondent contends that on October 23, 2021, at around 9. 30pm, he was informed by one of his deputies, Mr Alexander Nduhiu that there was a group of students at the drawing and design toilets. He states that he rushed to the scene because there had been earlier incidents of students misbehaving and burning of schools. Upon reaching there, the 2nd respondent found a group of about 15-20 students surrounding one student, Malcom Ndegwa questioning him and others assaulting him. The 2nd respondent states that he pulled the student from the group and tried to take him to his office but the other students who were assaulting him followed them at the number was increasing. The 2nd respondent further states that the student ran past him to the gate where the watchman secured him. As the 2nd respondent was taking the student to the gate, another student by the name Kelvin Kimani ran past him and the 2nd respondent states that he later came to learn that he had also been assaulted by the other students.

7. The 2nd respondent further contends that when he brought the situation under control, he was informed that another student by the name of Samuel had been assaulted but they could not find him. They looked for him and found him in the chaplain room and he was bleeding. The 2nd respondent then arranged for them to be taken to the hospital by the school nurse and Anthony Mwangi who was one of the school workers. The 2nd respondent avers that he reported the incident at Othaya Police Station who took over and charged the ex parte applicants in two separate criminal cases CR Case No E1206 and CR CaseNo E1207 OF 2021. The said matters are still ongoing at the Othaya Law Courts whereas in CR CaseNo E1207 the ex parte applicants have been put on their defence and the case is coming up for defence hearing on April 14, 2022.

8. The 2nd respondents contends that when the students were charged in court, the board of management sat and decided to suspend the students who were suspected to be beating and assaulting the others. The 2nd respondent further contends that since all of the students were in Form Four, he invited them with their parents to go to school on February 25, 2022 to organize on the best modalities and/or formula the students could sit for their national examinations. The 2nd respondent states that because of the security of theex parte applicants and that of other students the respondents organized accommodation outside the school in a school called Garden Preparatory School which was to provide them with food. The parents refused the arrangement stating that they could organize accommodation for their children. As such, the 2nd respondent depones that he did not disobey the court order as he had invited the ex parte applicants with their parents to school before he was served with the said court orders.

9. The 2nd respondent further argues that if the prayers sought are granted, he will be highly prejudiced as a teacher as he cannot guarantee the ex parte applicants’ safety inside and outside the school. He further states that at the moment, all the candidates are sitting for their national examinations without any hindrance from him. He further states that it is in the interests of justice and safety of all the students that he made the environment friendly for the ex parte applicants to sit for their national examinations without any disruption. As such, the respondent states that the application lacks merit and the same ought to be dismissed.

10. The ex parte applicants filed a supplementary affidavit dated April 4, 2022 and they state that the respondents do not dispute that they were served with the court order and application for leave to file judicial review substantive application at 1430 hours on February 23, 2022. Theex parte applicants contend that after being served, the ex parte applicants received a text message from the 2nd respondent inviting them to school on February 24, 2022 to discussKCSE Examinations and expectations. Subsequently after the ex parte applicants received another message from the 2nd respondent postponing the meeting to February 25, 2022. On February 25, 2022, the ex parte applicants went to school and were ushered into the meeting with the following people in attendance:-a)Edward Muhuni Waititu, the Principal Othaya Boys High School the 2nd respondentb)Deputy County Commissionerc)Deputy OCPD Othayad)Sub County Director of Education Mr Mauae)Advocate Mr Siro from the Attorney General Chambers

11. The ex parte applicants contend that the meeting was not cordial as they were harshly castigated for having proceeded to sue the school and obtain the said orders and the meeting ended with the 1st respondent stating that 2nd respondent would not act as per the court order. Theex parte applicants further state that they pleaded their case and explained that they moved the court because since their suspension on October 27, 2021 the school had not made any communications with regard to their fate and their status in school despite the national examinations commencing on March 4, 2022. Theex parteapplicants informed their advocate on record who called counsel from the Attorney General Chambers to know why they were not willing to abide by the court order but no positive response was given. Counsel only intimated that the respondents were making arrangements for accommodation outside the school. Theex parte applicants then through their advocate filed the present application.

12. Theex parte applicants further contend that they sought assistance from the office of the County Director of Education to which they got a response telling the ex parteapplicants that they would be accommodated in school upon replying to the text message and to report on March 12, 2022 in full school uniform, Kshs 3,500/- and personal effects. Upon reporting to school on the said date, the 2nd respondent reneged on the content of the text message and he informed them that they would be accommodated in the preparatory school stated by the respondents. The ex parte applicants found that arrangement wanting as the court had issued an order that the order of 27th October 201 had been stayed and the 2nd respondent was to re admit the ex parte applicants; the Kshs 3,500/- was to pay an external cook who would be cooking for the ex parte applicants at the preparatory school and they would be guarded by an armed officer while within the preparatory school. As such, the ex parte applicants sought an alternative accommodation arrangement where they would have been put up at homes of the other applicants whose parents lived around Othaya from where they would have been doing their national examinations as day scholars.

13. Based on the above chronology of events, the respondents cannot claim that they have not disobeyed the court orders issued by the court. Further the disobedience by the 2nd respondent is demonstrated by the 2nd respondent’s letter dated February 25, 2022 titled instructions to candidates doing examinations as day scholars. The ex parteapplicants further contend that the said order required the respondents to readmit the ex parte applicants to resume their normal learning and studying and sit their examinations while at school but the respondents deliberately and wilfully declined to do so by resolving that theex parte applicants sit their examinations as day scholars from Garden Preparatory School. The ex parteapplicants state that there was nothing stopping the respondents from moving the court immediately to present those issues of security as alluded by the 2nd respondent.

14. Parties hereby disposed of the application by way of written submissions.

The Ex parte Applicants’ Submissions 15. Theex parteapplicants reiterate what they deponed in their affidavits and rely on section 5 of the Judicature Act and the decision inChristine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR to lay out the legal basis on which the application for contempt is anchored. The ex parte applicants further rely on the cases ofOGM (Suing a the father of KGW v FG & Another [2020] eKLR and Samuel M N Mweru & Another v National Land Commission & 2 Others [2020]eKLR and submits that they have satisfied the conditions set out to show that the 2nd respondent was in contempt of court.

16. Theex parte applicants submit that the orders issued on February 23, 2022 were very plain and clear with no ambiguity at all. Further, the 2nd respondent in his affidavit does not depone anywhere that the respondents had a problem understanding the terms of the order. Moreover, the ex parte applicants state that upon being served with the court order and application for leave on February 23, 2022, the 1st & 2nd respondents on February 24, 2022 appointed counsel on record which would mean that with counsel on record as at February 24, 2022, prior to the meeting of February 25, 2022when the respondents declined to obey the court order, they had the benefit of a legal mind to explain to them the contents of the order. It is also worth noting that counsel for the respondents was present in the meeting held on February 25, 2022.

17. The ex parte applicants further submit that they attempted to resolve the impasse and sought out the office of the County Director of Education from whose intervention the 1st & 2nd respondent appeared to appreciate the import of the order through the text message sent to the ex parte applicants’ parents only for the respondents to renege on the same shortly thereafter.

18. The ex parteapplicants submit that the decision to suspend the student of October 27, 2021 had been stayed such that the position with regard to the students status upon issuance of the order was such that it should have reverted to their status before October 27, 2021 when they were suspended meaning that suspension was no longer in force. Similarly, order No 3 which compelled the 1st & 2nd respondents to re admit theex parte applicants is plain and clear but the said respondents declined to obey the same by organizing accommodation outside the school in Garden Preparatory School.

19. The ex parte applicants submit that the fact that they moved the court is no reason for the 2nd respondent to disobey the court order. In their application for leave to institute judicial review proceedings, the ex parte applicants moved the court upon realizing that the 1st & 2nd respondents despite having suspended them in October 2021 by the time they had moved the court on February 21, 2022, 3 ½ months later, the 1st & 2nd respondents had not invited the ex parte applicants to grant them a fair hearing on administrative action on October 27, 2021 suspending them and the fact that their national examinations were fast approaching. Theex parte applicants rely on article 48 of the Constitution and submit that they had every right in moving the court.

20. Theex parte applicant further submit that the facts as per the supporting affidavit and the respondents replying affidavit it is manifestly clear that the 1st & 2nd respondents acted in breach of the court order. The breach is manifested where the 2nd respondent invited the ex parte applicants and their parents to organize the best modulations and formula for the ex parte applicants to sit for their national examinations. Further, the breach is further manifested by respondents arranging for alternative accommodation in Garden Preparatory School and the text messages sent by the 2nd respondent to the ex parte applicants’ parents inviting them to a meeting in school on February 25, 2022 and upon intervention by the County Director of Education, the respondents reneging on their statements. From the foregoing, it is manifestly clear that the respondents intentionally failed to do the act that the order compelled them to do. The respondents conduct cannot be explained otherwise then it was deliberate and wilful.

21. The ex parte applicants rely on the cases of Gathani K Mutitika v Baharam Farm Ltd 1985 KLR 227 and Kasturi Limited v Kapurchand Depar Shah [2016] eKLR and submit that they have discharged their burden of proof in showing that the respondents are in contempt of court. Further, theex parte applicants rely on the case of OGM (Suing as the father of KWG vs FG & Another) [2020] eKLR and submit that the respondents wilfully and deliberately disregarded the court orders. There was no mistake as to what was to be done to stay the decision of suspension of theex parte applicants and subsequently readmit them. As such, the issue of the respondents organizing accommodation at Garden Preparatory School should never have arisen.

22. Theex parte applicants further submit that courts punish for contempt to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of the due process of the law, preserve an effective and impartial system of justice and maintain public confidence in the administration of justice by the court. Theex parte applicants rely on the cases of Econet Wireless Kenya Limited v Minister for Information and Communication & Another [2005] eKLR and Hon Basil Critics v AG & Others [2012] eKLRto support their contention. The ex parte applicants further submit that if the respondents had any difficulty with security as they allege, they ought to have moved the court immediately to explain their predicament and not simply wish away the court order as they did. The wilful disobedience of the 1st & 2nd respondents of the court order was not only an affront to the ex parte applicants’ rights but also a clear manifestation by the respondents in impairing the fair and efficient administration of justice. As such, the ex parte applicants urges the court to find that their application has merit and allow it as prayed.

Issue for determination 23. The main issue for determination is whether the ex parte applicants have established the act of contempt on part of the 2nd respondent in respect of the orders issued on March 23, 2022.

The LawWhether the ex parte applicants have established any basis for the orders sought to be granted. 24. Section 5 of the Judicature Act provides:-The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.

25. This was observed by the Court of Appeal in the case of Christine Wangari Chege v Elizabeth Wanjiru Evans & Others [2014] eKLR:-“Though the Court of Appeal of England and Wales was established in 1875, some 92 years before the commencement of theJudicature Act, the Act in the cited section 5 simply directs that this court like the High Court must make reference to the powers exercised by the High Court of Justice in England and not those exercised by its counterpart, the Court of Appeal of England and Wales.The High Court of Justice in England is that level of the court system in England, comprising three divisions, the Queen’s Bench, the Chancery and Family Divisions. That court draws its jurisdiction to punish for contempt of court from both the statute, namely the Contempt of Court Act, 1981 and the Common Law. But the procedure to be followed in commencing, prosecuting and punishing contempt of court cases, was until 2012, as will shortly be explained, provided for by Order 52 rules 1 to 4 of theRules of the Supreme Court (RSC), made under the Supreme Court ofJudicature Act, 1873 (or simply theJudicature Act, 1873 . TheJudicature Act, 1873 abolished a cluster of courts in England and Wales dating back to medieval periods, some with overlapping judicial powers, and their place Supreme Court of Judicature, which must not be confused with the Supreme Court of the United Kingdom which was established only on October 1, 2009 assuming the judicial features of the House of Lords.”

26. It is trite law that the unlawful and intentional disobedience to a court order is a crime. It is therefore the court’s duty not to condone deliberate disobedience of its orders as the court does not make orders in vain. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant must prove the terms of the order; knowledge of these terms by the respondent; failure by the respondent to comply with the terms of the order. Upon proof of these requirements, the presence of willfulness and bad faith on the part of the respondent would normally be inferred, but the respondent could rebut this inference by contrary proof on a balance of probabilities. This was enunciated by Mativo J in Samuel M N Mweru & Others v National Land Commission & 2 Others [2020] eKLR. Notably, as it was held in Mwangi H C Wangondu v Nairobi City CommissionNairobi Civil Appeal No 95 of 1998 the threshold of proof required in contempt of Court is higher than that in normal civil cases, and one can only be committed to civil jail or otherwise penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability.

27. The ex parte applicants served the 1st & 2nd respondents with the application for leave to file the judicial review and the court order dated February 23, 2022 on February 23, 2022. The 1st respondent acknowledged receipt by placing the official stamp on the documents and an affidavit of service was filed by counsel to show proof of service. The 2nd respondent in his affidavit stated that he was served with the documents after inviting the ex parte applicants together with their parents for a meeting on February 25, 2022. Notably, the 2nd respondent does not indicate exactly when he was served. He only states that he was served after the meeting albeit in vague terms. It is not in dispute that theex parte applicants were suspended on October 27, 2021 and it is not until 24th and February 25, 2022 that the respondents called the ex parte applicants to school to discuss their upcoming national examinations.

28. The affidavit of service sworn on the March 3, 2022 by the counsel for the respondents indicate that the respondents were served. The 1st respondent was served on March 23, 2022 at his office through his secretary at Othaya Boys High School. The secretary acknowledged receipt by stamping on the copy. The 2nd respondent was served on the same day. He acknowledged receipt by signing on the back of the copy. One day after being served with the order, the application and the hearing notice, the respondents entered appearance. The act of entering appearance by the respondents on March 24, 2022 was prompted by the service of the order. The respondents were represented by a counsel as they stepped in these proceedings.

29. The respondents’ counsel said he attended a meeting on February 25, 2022 with the 1st and 2nd respondents among others at the school. It cannot be said therefore that the respondents did not know what to do in the circumstances since legal advice was at their disposal. The order expressly stated that the 1st respondent shall re-admit the applicants to school pending the hearing and determination of the application. It is not in doubt that the court order was not complied with. The students were not re-admitted to the school. It was after being served with the order that the 1st respondent called the students to school and made arrangements to hire for them some place away from the school where they were kept contrary to the order of the court.

30. The applicants contacted the County Director of Education who directed them to go to school on March 12, 2022 and have accommodation secured for them. The 1st respondent did not comply with the instructions of his senior and the students remained at the hired place as they attended school.

31. Assuming that the 1st respondent had a problem with obeying the order of the court, he would have instructed his counsel to challenge the order in court. Nothing of that kind was done and the 1st respondent remained adamant in shutting out the students from school. This act of disobedience is admitted in the 2nd respondent’s affidavit.

32. It is imperative to note that the service of the orders on the respondents has not been denied in this application. However, the 1st respondent is trying to justify his failure to obey the said order.

33. It is evident that the court order issued on March 23, 2022 was duly served on the respondents. The respondents were therefore aware of the said order as shown even by their conduct after service was effected on them. The order was directed to the 2nd respondent in his capacity as the Principal of the school to act on it.

34. It is my considered view that the 2nd respondent willfully and deliberately disobeyed the court order and that this act of bad faith has continued even as the hearing of this application was going on. I find the 1st respondent guilty of contempt of court and convict him accordingly.

35. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF JUNE, 2022. F. MUCHEMIJUDGERuling delivered through video link this 2nd day of June, 2022.