[2022] KEHC 11700 (KLR)

Were & another v Cabinet Secretary, Ministry of Education & 2 others; Abuto & 5 others (Intended Interested Party) (Constitutional Petition 236 of 2019) [2022] KEHC 11700 (KLR) (Constitutional and Human Rights) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11700 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 236 of 2019

HI Ong'udi, J

May 17, 2022

IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF ARTICLES 2(1), 3(1), 10(1)(2), 19(2), 20(2)(4), 21(2), 24, 27(1), 32, 33(1), 43, 53 AND 55 OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF ALLEGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 27, 43, 53(1), (B) AND 55 OF THE CONSTITUTION, REGARDING THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE, EQUALITY AND RIGHT TO EDUCATION AND IN THE MATTER OF INFRINGEMENT OR THREATENED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS BASED ON THE CONTRAVENTION OF CHILDREN’S RIGHT TO EDUCATION AND PREFERENCE OF CRIMINAL CHARGES ON UNCONSTITUTIONAL PROVISIONS

Between

Silus Shikwekwe Were

1st Petitioner

Onesmus Mboya Orinda

2nd Petitioner

and

Cabinet Secretary, Ministry of Education

1st Respondent

Director of Public Prosecutions

2nd Respondent

Attorney general

3rd Respondent

and

Edgar Abuto

Intended Interested Party

Davis Okoth

Intended Interested Party

Jeff O. Katieno

Intended Interested Party

Jacqueline Adhiambo

Intended Interested Party

Hillary Olola

Intended Interested Party

Louis Shitandi

Intended Interested Party

Ruling

1. The 1st – 6th intended interested parties filed the Notice of motion dated August 7, 2020 accompanied by the affidavit of Edgar Abuto the 1st intended interested party. They seek the following orders:-1. Spent.2. That this Honorable Court be pleased to issue an order joining the 1st – 6th intended interested parties in this Petition.3. That this honourable Court be pleased to grant the 1st – 6th intended interested parties an opportunity to submit oral and written arguments in this petition.4. That leave be granted to allow the 1st – 6th intended interested parties to submit any other information they may deem important and relevant to allow for the just disposition of this matter.5. That this honourable Court be pleased to issue an order restraining the 2nd respondent whether by themselves, servants, agents, contractors and/or otherwise, from preferring and/or proceeding with any arrests and prosecution against the 1st – 6th intended interested parties.6. That this honourable Court be pleased to issue an order allowing the 1st – 6th intended parties continue offering home schooling education to their children.7. That there be no costs in relation to this application.

The Applicant’s case 2. The 1st intended interested party in his affidavit sworn on August 7, 2020 deponed that he had the authority of the 2nd – 6th intended interested parties to swear the said affidavit. Order 1 Rule 13 (1) of the Civil Procedure Rules provides:-“Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.”

3. There was no such authority as alleged filed with the said application. The filing of such authority is a requirement to confirm that the other intended interested parties are aware of the matter filed and have given their consent. That is not the case here and so I find that the 2nd – 6th interested parties are not properly enjoined in the application dated August 7, 2020. Their names are struck out of the application.

4. He has deponed that he is aware of the aim of education as stipulated in various legislation, legal charters to ensure full development of the human personality inter alia. As a parent he has the first right to choose the right forum and manner in which his children will receive education pursuant to Article 32(2), 33(1)(a) & (c) of the Constitution and Article 11 (4) of the African Charter on rights and welfare of the Child.

5. He depones that there have been arrests of parents who chose to educate their children through the homecare program. To do so contravenes Article 33(1)(c) to academic freedom & freedom of scientific research.

6. He avers that a number of countries have adopted the home school education which equally develops the whole being of a child. That his coming on board in this matter will assist the court effectively and completely adjudicate upon the matter and settle all the issues in controversy.

The Respondents’ case 7. The 1st & 3rd respondents filed grounds of opposition through the Attorney General dated March 3, 2022. They are as follows:-1. That the intended interested parties have failed to meet the threshold set out in law for interested parties as elucidated in various case law.2. That the intended interested parties are seeking to introduce new issues regarding their alleged prosecution which issues and circumstances are not the subject of the petition herein.3. That the violations which the intended interested parties are seeking to expound on are not the subject of this petition.4. That the intended interested parties are seeking to outline issues arising out of their own incidences of alleged violations and are not part of this petition nor the sequence of facts outlined by the Petitioners in their case.5. That without prejudice, the intended interested parties have a completely different claim arising out of completely different set of circumstances and have failed to demonstrate that their contribution will in any way assist this court determine issues arising out of the petitioners unique circumstances.6. That the intended interested parties have failed to lay before the court sufficient grounds for the exercise of the Courts’ discretion in its favour.7. That without prejudice, the intended interested parties have not set out its (sic) personal interest or stake in the matter that is distinct from the other parties already in the matte, nor the prejudice that they will suffer if not joined in the matter.8. That the intended interested parties have failed to demonstrate a clear, identifiable stake and unique contribution to the matter which has not been outlined by the Petitioner.9. That the intended interested parties have failed to outline the prejudice which it (sic) will suffer in case of non-joinder.10. That without prejudice, the intended interested parties have not clearly set out their case and/or submission which it (sic) intends to make before the Court, and to demonstrate the relevance of its submissions.11. That the intended interested parties have not demonstrated that their alleged interest in the matter before the Court will not be well articulated by the Petitioner without the grant of orders for its (sic) joinder.12. That without prejudice, the submissions which are likely to be outlined by the intended interested parties will be a mere replication of what the Petitioners will be outlining and producing before the court or in complete divergence from the facts of the petitioners circumstances as outlined in the Petition.13. That the joinder of the intended interested party will serve to further elongate and complicate the proceedings whereas his alleged interest have already been outlined in the Petition.14. That there is no basis for the grant of the orders sought in the application specifically order 5 which seeks to interfere with the mandate of the 2nd Respondent without any justifiable factual basis.15. That the application seeks to further an illegality by having the honourable court interfere with the legal mandate of the Respondents in complete violation of the provisions of the Basic Education Act which provisions enjoy a presumption of constitutionality until determination otherwise.16. That the intended interested parties have completely misapprehended the role of interested parties in court proceedings.17. That the application is an abuse of the court process and ought to be dismissed with costs to the Respondents.

8. The Petitioner did not file any response nor submissions to the application.

Parties Submissions 9. Begis Law offices & Chambers filed submissions dated March 16, 2022on behalf of the intended interested party. Counsel has in his submissions referred to the Constitution of Kenya (Protection of Rights & Fundamental Freedoms Practice and Procedure Rules 2013 (“Mutunga Rules”) Order 1, Rules 8, 9 & 10 Civil Procedure Rules as the baseline for enjoinment of interested parties. Further that the respondents have a duty to uphold and protect the rights under the Bill of Rights. He has referred to the meaning given to the word an “interested party” under Rule 2 of the Mutunga Rules. He also referred to the definition in the cases of:-i)Francis Karioki Muruatetu & another v. Republic & 5 others [2016] eKLR where the Court referred to the case of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others [2014] eKLRii)Meme v. Republic[2004] IEA 124.

10. Relying on the principles set out by Mativo J in the case of Kenya Medical Laboratory Technician & Technologists Board & 6 others [2017 eKLR), Counsel submitted that the outcome of this Petition will have an impact on the applicant’s rights and those of his children. That he is a parent with home schooling children in different parts of the country since 2013. On the issue of expertise raised by the respondents he submits that the same is erroneous, since such expertise “is required by one applying to the enjoined as an amicus curiae. Moreso as a home – schooling giver he feared being arrested as the 1st Petitioner had been arrested, before.

11. He submits that the applicant has experiences of the home schooling which he will bring on board in addition to what the petitioners would present. He argues that the stay orders in criminal case no. 133 of 2019 Republic v. Silas Shikwekwe only apply to the 1st petitioner. This means he faces a risk of being arrested.

12. In reference to the Muruatetu case (supra) counsel has submitted that if not enjoined the applicant is likely to experience arbitrary arrests and his children’s wellbeing would be affected. He submits that the applicant is not introducing anything new, in the matter.

13. He further submits that the applicant wants to bring to court more facts in relation to the narrow meaning of basic education as defined in the Basic Education Act 2013 and how it infringes on Article 53 of the Constitution 2010. Some of the key issues not taken into account among others as outlined by counsel are:-i)Historical & contextual basis of current architecture of educationii)Home-based schooling being less susceptible to external whims and interruptions.iii)Most parents living in very remove areas of Kenya may not be in a position to access institutions of learning offering quality basic education.iv)A difference between the uniform and standardized method of learning and the one offering pre-determined skills.

14. Counsel contends that the applicant’s participation in the proceedings will assist in determining the matters herein to avoid future litigation. He refers to the case ofYusuf Abdi Adan & another v. Hussein Ahmed Farah & 3 others, civil Case No. 100 of 2016 (Nairobi).

15. He finally submits that the applicant has an interest in the outcome of the Petition. To support this he relies on the case of Aharub Ebrahim Khatiri v. Nelson Marwa [2017] eKLR where the High Court held:-“As interested parties, the applicants need only demonstrate interest in the subject of the suit or in other relevant matter affecting the suit… I think an issue may properly be taken to be a “question involved in the suit” …. I find therefore that the applicants are “necessary parties” within the meaning of order 1 rule 10 of the Civil Procedure Rules.”

16. Senior State Counsel Mitchelle Omuom filed written submissions dated 7th March on behalf of the 1st & 2nd Respondents. The said respondents have opposed the application for enjoinment. She submits that enjoinment is provided for under the “Mutunga Rules” as well as Order 1 Rule 8, 9, & 10 of the Civil Procedure Rules. She too referred to the Francis Karioki Muruatetu (supra) case and the principles enunciated therein.

17. Counsel has referred to the case of Mai Mahiu Kijabe / Longonot Co. ltd v. Ayub Mugo Njoroge & 5 others Civil Suit No. 1672 of 2001 eKLR, where the court laid down the following principle as regards joinder under Order 1 Rule 8 Civil Procedure Rules:-“it is a cardinal rule of procedure that any party who stands to be directly affected by any orders that may be in any such and whose participation is necessary in a suit for effective adjudication of the matters in issue ought to be made a party in the suit or at least be notified about the existence of the suit.”

18. It’s counsel’s submission that the applicant has failed to demonstrate that his participation in these proceedings is necessary in order to ensure the effective settlement of the issues raised in the Petition. She argues that the applicant is aware of arrests of parents of school going children but has no expertise on the issues raised in the Petition. Counsel contends that the issue of arrest for commission of an offence is not ground for joinder in a petition as an interested party. Further that the applicant seeks to introduce new issues of arrests not related to the Petition.

19. She again referred to the Muruatetu case where the Supreme Court stated as follows:-“(42)Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submission of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether a new issue to be introduced before the Court.”

20. Counsel further argues that the issues being raised by the applicant are similar to those raised in the Petition. That he has failed to demonstrate that this submission will be distinct from those presented by the petitioner. She also referred to the Mumo Matemo Case (supra). Counsel contends that the Petitioners claim is so clear and there is no prejudice to be suffered by the applicant if not enjoined. Further that he will not introduce anything new. She has referred to the case of Pravin Bowry v. John Ward & another [2015] eKLR as cited in the Uganda case of Deported Asians Property Custodian Board v. Saffer Brothers Ltd (1999) IEA 55 (SCU).

21. Counsel further refers to the case of Attorney General vs. Kenya Bureau of Standards & another 2018 eKLR and Muruatetu (supra) and submits that the applicant not being a party to the Petition cannot seek for orders restraining the 2nd Respondent from arresting him. She set out the provisions of Section 31 of the Basic Education Act, plus the definition of the words “school” & “a basic education institution”. She thus submits that the applicant through the prayers wishes to circumvent the law by asking the Court to issue orders with no factual basis. Further that the applicant wants to enjoy benefits yet he has not demonstrated that his children are registered in school or an institution of learning as provided by the law.

22. The 1st petitioner, and 2nd respondent indicated that they were not opposed to the application.

Analysis and determination 23. Having considered the application, affidavit, grounds of opposition, plus the rival submissions and cited authorities I find one issue falling for determination. This is whether the applicant has met the threshold for enjoinment as an interested party in this petition.

24. The petitioners are challenging several provisions of the Basic Education Act (BEA) which touch on the words “school, & basic education.” They base their argument on the ground that they as parents have been engaged in the “home – schooling, programme” yet under the “BEA” those engaged in such a programme risk arrest & prosecution.

25. The applicant has sought to be enjoined in the petition as an interested party by virtue of being one such parent who is engaged in the home schooling programme. He believes that he has the right as a parent to choose the manner and form in which his children will be educated. This he reckons is in line with Article 32(2), 33(1)(a) & (c) of the Constitution.

26. Both counsel herein in their rival submissions have rightly referred to the cases of Francis K. Muruatetu & another v. Republic & 5 others (supra) & Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others (supra) as some of the cases giving guidance on when a party can be enjoined in a matter. Also referred to are Rule 2 of the Mutunga Rules & Order 1 Rules 8, 9, & 10 of the Civil Procedure Rules.

27. What comes out clearly from all this is that for one to be enjoined in a suit the following must be shown:-i)He/She has the same interest or a recognizable interest in the matter.ii)He/She stands to be directly affected by any orders that may be issued in the said case.iii.His/her participation in the suit is necessary for effective adjudication of the matters in issue.

28. The applicant has averred that he is one of the parents who practices “home schooling” and the outcome of this case will affect him in one way or another. Secondly that the experience he has acquired in the process of doing home schooling would be an asset he would wish to share with the court. He reckons that he can’t do that unless he is enjoined as a party, in the petition.

29. Besides the grounds of opposition the respondent did not file any replying affidavit to rebut the applicants averments in particular the one stating that he is one of the parents who practices home based schooling for his children. This to me is the key interest, he has. Since it has not been rebutted then it is taken to be the truth.

30. Being such a parent as claimed then he has an interest in the issue before this court. The outcome of the petition will obviously have an impact on him, whichever way it goes. His enjoinment will not prejudice the parties herein.

31. As a point of caution as held in the case of Francis Muruatetu (supra), the issues to be determined are those presented in the petition only. The applicant will not frame his own fresh issues or introduce new issues for determination by the Court.

32. In prayer No.4 of the Notice of Motion the applicant seeks to be allowed to submit any other information that he deems important and relevant for purposes of disposition of the matter. When he filed the application the same was accompanied by an affidavit explaining his position. He should know that his scope of participation is limited to what the Petitioners have pleaded. I therefore find his request to be too wide which will not be of any assistance to the Court.

33. In prayer 5 the applicant is asking the Court to restrain the 2nd Respondent or his representatives from preferring charges and/or proceeding with any arrests and prosecution against him & others. The mandate of the 2nd respondent’s is clearly outlined in the Constitution under Article 157. Again this prayer is too broad and has no basis. There is no special ground raised to make this court interfere with the 2nd respondent’s constitutional mandate.

34. In prayer 6 the applicant seeks to have this Court issue an order allowing him and others to continue offering home schooling education to their children. This indeed is the crux of the matter herein. This court is not aware of what the applicant is doing to the children or with the children. The facts are not clear before this Court. It would be an illegality for this Court to issue such an order with no factual basis.

35. The above being the position I make the following orders:-i.Prayer no.2 for enjoinment partially succeeds. The 1st applicant Edgar Abuto is enjoined as the 1st Interested Partyii.The request for enjoinment by the 2nd – 6th applicants is disallowed.iii.Prayers No. 4-6 in the application dated August 7, 2020 are disallowed.iv.The 1st Interested Party to file his response to the Petition within 7 days.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 17TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT