[2022] KEHC 3250 (KLR)

St. Patrick Senior School v Pearson Edexcel & another (Constitutional Petition E003 of 2022) [2022] KEHC 3250 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3250 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition E003 of 2022

SN Mutuku, J

May 10, 2022

Between

St Patrick Senior School

Petitioner

and

Pearson Edexcel

1st Respondent

Marvin Owiti

2nd Respondent

Ruling

Introduction 1. On 19th April 2022, the Petitioner herein filed a Constitutional Petition (undated) seeking declaratory orders that its constitutional rights have been violated by the Respondents’ unlawful actions or omissions as more specifically pleaded in that Petition. Contemporaneously with that Petition, the petitioner filed a Notice of Motion. Both pleadings are filed under certificate of urgency. The Notice of Motion, brought under various provisions of the law under the Constitution and Children’s Act, seeks the following orders:(i)That this application be certified as urgent and that this Honourable Court do dispense with service in the first instance.(ii)That pending the hearing and determination of this application, this Honourable court do issue an order of injunction restraining the Respondents, their officers, agents, servants or employees, from failing to register the petitioner’s candidates to perform and/or seat their May/June 2022 examinations or any other future examinations at their school.(iii)That pending the hearing and determination of this petition/suit, this Honourable court do issue an order of injunction restraining the Respondents, their officers, agents, servants or employees, from failing to register the petitioner’s candidates to perform and/or seat their May/June 2022 examinations or any other future examinations at their school.(iv)That pending the hearing and determination of this suit, this Honourable Court does issue an injunction restraining the Respondents, their officers, agents, servants or employees from interfering with the affairs and or operating of the Petitioner.(v)That this Honourable Court do grant any other or further relief that it may deem fit to grant.(vi)That the costs of this application be borne by the Respondents.

2. The matter was placed before me on 20th April 2022 whereupon I directed that the Petition and the Notice of Motion be served on the Respondents and that the matter be mentioned on 27th April for directions.

Submissions 3. On 27th April 2022, Mr. Rigoro learned counsel appeared on behalf of Mr. Kang’ethe for the Petitioner while Mr. Imende, learned counsel, appeared for the Respondents. Both counsel made brief submissions on the Notice of Motion.

4. Mr. Rigoro submitted that the Petitioner is seeking conservatory orders pending the hearing and determination of the Application and a near date when the Application can be canvassed due to its urgency. He submitted that the Petitioner is a centre for IGSCE Examinations and that their certificate has been cancelled without notice or grounds for any wrongdoing; that this action is callous, cruel, inhuman and arbitrary; that the Petitioner is an educational institution with students; that an educational body is required to protect the Petitioner and the interest of the children.

5. He further submitted that the students have no school and cannot learn or sit their examinations; that their future looks bleak and their parents have nothing to tell them about what is happening and that they do not have time to get the students another school, this being the only school they know; that the teachers and working staff have been left without jobs and that all stakeholders are devastated.

6. Mr. Rigoro urged that conservatory orders be granted due to the urgency of the matter and the Notice of Motion be heard urgently given that the examinations are due in May and June 2022. Counsel referred the court to Petition No. 2 of 2016 at Nyeri - Stephen Ndung’u Gachau T/A Ark Road Academy v Kenya National Examination Council and Petition No. 404 of 2017 at Nairobi – Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board and Law Society of Kenya (Interested Party) [2018] eKLR.

7. In his submissions in reply, Mr. Imende opposed the prayer for conservatory orders. He submitted that the 1st Respondent is a global educational, examination and testing institution; that in October 2021, there were malpractices observed by Head of the School and were reported to the 1st Respondent; that to ensure the integrity of the results investigations were carried out; that by a letter dated 3rd November 2021 the Petitioner was informed of the malpractices and a response was made on 5th November 2021 and that correspondence continued until a decision was reached on 15th February 2022 suspending the centre for malpractices and withdrawing the licence of the Petitioner as a testing centre.

8. Mr. Imende submitted further that the Petitioner was informed of the decision and the right of appeal; that there is a pending appeal filed by the Petitioner. He submitted that the question of urgency of this matter is in dispute; that from 15th February 2022 when the decision was reached this court was not moved until 2 months later and that the Petitioner cannot prosecute the appeal and this Petition and Notice of Motion at the same time.

9. On the issue of interim orders, it was submitted that, the Petitioner admitted that the last date for registration for examinations was 11th April 2022 which is passed; that they are asking for mandatory orders in the interlocutory stage; that the threshold has not been met and that it is a conclusive order determining the matter with finality.

10. Mr. Imende submitted that the 1st Respondent has not closed St. Patricks Senior School; that the school is open and the students who are to sit for the examination in May and June 2022 have been allowed to sit for the examinations through Kenya National Examinations Council (KNEC) and are therefore not prejudiced given that they can register and sit the examinations. He submitted that it is the 1st Respondent and the students of the Petitioner that is likely to suffer prejudice if the centre is allowed to administer examinations tainted with malpractices as there is a risk of reputation being ruined.

11. Mr. Imende further submitted that there has been material non-disclosure by the Petitioner; that all allegations were placed before the Petitioner but they have failed to disclose this to the court; that there is a pending appeal which the Petitioner has failed to disclose. He submitted that parties agreed to have choice of English Law and English Courts to govern any disputes that may arise and that this is not a proper application for conservatory orders.

12. In a rejoinder, Mr. Rigoro submitted that the examinations are imminent and that as a centre, the Petitioner ought to have been given an opportunity to administer them but this was not done. He submitted that the children are protected by the law.

Determination 13. I have considered the submissions made in this matter. I have had time to study the documents annexed to the Replying Affidavit of the 1st Respondent. It is clear to me from the correspondences exchanged between the 1st Respondent and Mr. Patrick Ray Njuguna Kang’ethe, the Director of the Petitioner that indeed a lot has happened between the two parties. The dispute between them following allegations of malpractices have been subjected to arbitration and a decision reached which decision has been communicated to the Petitioner. There is also a pending appeal arising from that decision. All this was not disclosed by the Petitioner.

14. I have read the two authorities cited by Mr. Rigoro and I appreciate them. However, given the fact that St. Patrick Senior School has not been closed it is misleading to submit that the entire school and all stakeholders are affected by the actions of the 1st Respondent. I have read the decision of the 1st Respondent that:(i)“The Head of Centre is suspended from all involvement in the delivery or administration of its examinations and assignments. The sanction is applicable for a period of two years as from the date of issue of the suspension.(ii)Pearson centre approval is withdrawn from St. Patrick’s Senior School.”

15. The 1st Respondent further stated as follows: “Please provide us with details of all live registrations for learners and their programmes in order that we can assist them in completing their studies.”

16. The Petitioner did not disclose this decision, or that the matter has been arbitrated and a decision arrived at and that there is a pending appeal. Of importance is that there is promise that the students who are to sit for the examinations are not left without recourse as the 1st Respondent has indicated that it is in a position to assist them complete their studies.

17. The matter before me is distinguishable with the petitions cited by counsel. In Petition No. 404 of 2017, the court was making final determination after hearing the parties in the main petition. In Petition No. 2 of 2015 at Nyeri, the Petitioner had not been heard in any forum before the action of cancelling the school as an examination centre was taken.

18. My considered view in this matter, given that the 1st Respondent had shown willingness to assist the learners in completing their studies and given that this court was told that some students have already registered for exams through KNEC and given that the Petitioner was not forthright in disclosing that he was heard and there is a pending appeal, is that the issues raised in the Petition and the Notice of Motion are best addressed after hearing fully both parties. For this reason, I hereby decline to grant conservatory orders sought at this interim stage. Costs of this application shall be in the cause.

19. I direct parties to agree on the issues for determination in this matter and if they are not able to agree, each party to file their own set of issues for determination by this court. The Notice of Motion shall be canvassed by way of oral submissions and any cited authorities shall be presented to the court by hard copies for ease of reference. A date for the hearing of the Notice of Motion shall be decided at the time of delivering this ruling.

20. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 10THDAY OF MAY 2022. S. N. MUTUKUJUDGE