G.M.W (A minor suing through his mother and next friend Grace Wachera Githinji) v Murimi & 2 others (Petition E005 of 2022) [2022] KEHC 12871 (KLR) (8 September 2022) (Ruling)
Neutral citation:
[2022] KEHC 12871 (KLR)
Republic of Kenya
Petition E005 of 2022
FN Muchemi, J
September 8, 2022
Between
G.M.W (A minor suing through his mother and next friend Grace Wachera Githinji)
Petitioner
and
Joseph Wanjohi Murimi
1st Respondent
Board of Management, Kagumo High School
2nd Respondent
Dr Cyrus Murigi, Principal Kagumo High School
3rd Respondent
Ruling
1.The petitioner filed a Notice of Motion and Petition dated 19th July 2022. The application moved the court for the following orders:-a.THAT this Honourable Court be pleased to issue a mandatory order/injunction compelling the respondents jointly by themselves and or their officers, agents, servants or anybody acting under them or for them to release and grant clearance, leave or consent to the petitioner to transfer from the 2nd respondent.b.THAT in the alternative to prayer (a) this court be pleased to issue an order dispensing with such clearance, leave or consent to transfer from the 2nd respondent and granting leave to the petitioner to secure admission to any other school without requirement of such clearance.c.THAT this Honourable Court be pleased to issue a mandatory order/injunction prohibiting the 1st respondent whether by himself and or his agents, servants or anybody acting under him from withholding or denying the petitioner leave or consent for admission to an alternative school other than the 2nd respondent.
2.In opposition to the application, the 1st respondent filed a replying affidavit sworn on 12th august 2022 and filed on 16/08/2022. The 2nd & 3rd respondents replying affidavit dated 22nd August 2022 was filed on 26/08/2022.
The Petitioner’s Case
3.The application was supported by the affidavit of Grace Wachera Githinji the mother of the petitioner and has obtained consent to act on his behalf as the next friend in the instant petition. The 1st respondent is the father of the petitioner and has had custody of the minor and his two younger siblings for the last four (4) years.
4.The petitioner contends that his rights and fundamental freedoms have been violated, specifically his right to education, not to be subjected to torture, physical or psychological abuse, to be cared for by both his parents and his right to privacy. In her affidavit, the mother of the petitioner swore that the petitioner was a student at the 2nd respondent after completing his primary school at Mt. Kenya Academy until 18th June 2022. The petitioner contends that he was severely assaulted by 4 senior students and his school items taken from him the very week he joined the school and was threatened with further assault which incidents he reported to all the respondents.
5.Furthermore, due to the turmoil brought on by the custody dispute between his parents, he slid into depression which resulted in an attempt at suicide, a fact that was disclosed by the 1st respondent to the court. Consequently, the court directed therapy for all the children, however the 1st respondent frustrated the process by refusing to avail the minor before the therapist. The petitioner further avers that he is still in a delicate emotional state which manifested at the school after the assault. He avers that instead of the 1st respondent giving him care and protection, he was berated by the 1st respondent and the therapist. Furthermore, his emotional state was made known to the teaching staff and eventually to the student populace which inevitably resulted to severe bullying. The petitioner contends that he could no longer cope with his emotional state and he left school without leave on 18th June 2022 and requested the 1st respondent do transfer him to another school.
6.Consequently, the 1st respondent instead of acting as a parent who has a duty to offer guidance and care for the petitioner, the petitioner contends that he scolded, berated and verbally insulted him. The petitioner contends that he then contacted his mother and he has been in her care and control since then. The mother of the petitioner contends that she immediately made attempts to transfer the petitioner and she secured conditional admission at Kabarak and Mangu High Schools, on condition that the petitioner gets transfer clearance from his pervious school and does an interview on 6th July 2022. She further contends that she visited the school on 21st June 2022 and made a request for the said clearance from the 3rd respondent but the same was declined on the basis that the 1st respondent had communicated to the school stating that no such letter should be issued and that the 1st respondent is the only one with authority over the petitioner. Moreover, the 3rd respondent claims that in their records another woman is indicated as the petitioner’s mother and as such, the petitioner’s mother contends that even after producing the minor’s birth certificate, the 3rd respondent declined to issue the clearance.
7.The petitioner’s mother avers that the respondents insist that the petitioner must go back to school accompanied by the 1st respondent and that they will not issue the clearance despite being aware of the bullying and assault reported by the petitioner. The petitioner avers that he has pleaded with the 1st respondent to direct the school to issue transfer clearance but to no avail. As such, the petitioner has moved the court for redress as no school will grant him admission without the clearance. The petitioner argues that his right to education is being violated by the respondents and urges the court to grant conservatory orders.
8.The petitioner’s mother states that no prejudice will be suffered by any of the respondents if the orders sought are granted but the violations of the petitioner’s rights will continue and the contraventions of the law by the respondents will be encouraged if the orders sought are not granted.
The 1stRespondent’s Case
9.The 1st respondent avers that the petitioner has not raised any violation of any constitutional right as the petitioner is enrolled in a good school, school fees and all the other needs have been fully catered for. The 1st respondent avers that the petitioner’s mother is the one in violation of the petitioner’s right to education as she is keeping him away from school and thus committing an offence under Section 30 of the Basic Education Act. The 1st respondent avers that the petitioner’s mother is keeping the petitioner out of school to settle scores with him. He further contends that she abandoned the petitioner and his two younger siblings in February 2018 and the 1st respondent avers that he single handedly ensured that the petitioner got the best parental care and met all his school needs.
10.The 1st respondent further contends that the petitioner is a brilliant student and he chose the 2nd respondent as an option of the schools he wished to attend after completion of his primary school studies. He thus passed his exams and was admitted to the 2nd respondent as he had wished.
11.The 1st respondent states that on 18th June 2022, he received a phone call from the Deputy Principal Academics of the 2nd respondent informing him that the petitioner had sneaked from school at 6.00am. Furthermore, the 1st respondent states that his wife informed him that she was called by a motor bike rider who informed her that he was with the petitioner and she instructed him to drop the petitioner home.
12.The 1st respondent states that he had a long discussion with the petitioner who insisted that he did not want to complete secondary school but wanted to join a football academy in the United Kingdom Arsenal Club. The 1st respondent states that he encouraged the petitioner to complete his education and outlined the importance of having another profession apart from football. The 1st respondent avers that the petitioner agreed to go back to school on 20th June 2022. However, the following morning, 19th June 2022, the petitioner woke up early in the morning and sneaked out of the house. The 1st respondent states that he reported the matter to Kiamumbi Police Station vide OB Ref: 16 of 20/6/2022.
13.The 1st respondent states that he received a phone call from Juja Police Station informing him that the petitioner, the petitioner’s mother and her counsel (in Kiambu CM Children’s Case No. 21 of 2019) were at the station. The 1st respondent further wrote to the 2nd respondent seeking official communication on the circumstances under which the petitioner left the school. Further, the 1st respondent states that he received a call from Deputy Principal Administration of the 2nd respondent who informed him that the petitioner had gone to school in the company of an unknown person asking for a transfer letter to another school. The Deputy Principal further stated that he could not issue a transfer letter to an unknown person who is not even in their records.
14.The 1st respondent states that he paid the school fees for the 2nd term for the petitioner in anticipation that he would return to school. On 21st July 2022, the 1st respondent states that he received a call from Juja Police Station inquiring on the whereabouts of the petitioner. The police officer informed him that the petitioner had disappeared and left a note to his mother indicating that he did not want to go back to secondary school but wanted to join a football academy of his choice.
15.The 1st respondent contends that he was served with the instant application and petition and the petitioner’s mother filed an application before the Kiambu Magistrate court in Children’s Case No. 21 of 2021 seeking for the orders of the honourable court recusing itself; the petitioner’s mother be granted custody of the petitioner and that parties seek an alternative school for the petitioner with preference to Mangu High School or Kabarak High School. The prayer for recusal was dismissed by the court and the matter was referred to mediation.
16.The 1st respondent states that the children’s case in Kiambu has had a psychological toll on the petitioner which led to a suicide attempt in 2021. The 1st respondent avers that he hired the services of a clinical psychologist at Outspan Hospital Nyeri who counselled the petitioner until he was much better, leading to his good performance. As such, the 1st respondent denies allegations by the petitioner’s mother that he frustrated the court appointed therapist. He further denies that he berated, scolded or verbally abused the petitioner but encouraged him and took on board his vision to join a football academy after form 4.
17.The 1st respondent argues that the petitioner’s mother removed the minors from school in March 2015 from Green Cottage Academy and took them to her rural home and locked them in the house for almost two weeks causing them to miss out on valuable school time.
18.The 1st respondent contends that the 2nd respondent is one of the best schools in the country, performs very well and is known for maintaining the highest level of discipline. The petitioner’s mother has not shown how the school is unfit for the petitioner’s educational needs. Furthermore, she has not shown what peculiar attributes or qualities Mang’u or Kabarak High Schools have that would make them more suitable than the current school. In any event, the 1st respondent avers that in light of the petitioner’s wish that he wants to join a football academy, he is most apprehensive that nothing will stop the petitioner from rejecting Mang’u, Kabarak or any other school for that matter. The 1st respondent avers that the petitioner needs to settle down emotionally in the school that he is currently enrolled instead of being used as an unwitting pawn in the dispute between him and the petitioner’s mother.
19.The 1st respondent argues that the petitioner’s mother is not properly before this court as the matter is sub judice being under active judicial consideration before Kiambu CM Children’s Case No. 21 of 2021 wherein she has filed an application seeking custody, care and control of the petitioner. As such, the 1st respondent contends that any further inquiry into the matter by the instant court may lead to a finding that may embarrass the proceedings before the lower court. In any event, the issue is already spent as the petitioner himself has elected to live with his mother for the last month.
20.The 1st respondent states that no basis has been laid to warrant the issuance of conservatory orders against him as he has not insulted, intimidated, harassed or abuse the petitioner. He argues that the allegations are an overreach by the petitioner’s mother who wishes to settle personal scores against him.
21.The 1st respondent avers that he wishes to give the petitioner the best opportunities and he believes that the 2nd respondent is an apt institution to do so. He avers that should the court decide to compel the transfer of the petitioner, he wishes that the petitioner’s mother take full responsibility including payment of school fees as he wishes not to blamed in the future for not giving proper guidance to the petitioner. As such he prays that the application be dismissed.
The 2nd & 3rdRespondent’s Case
22.The 2nd & 3rd respondents state that the petitioner was enrolled at their school on 10/5/2022 after completion of the admission process as set out by the school. On 18/6/2022, the 2nd & 3rd respondents aver that the petitioner sneaked out of school at 6.00am without any authority and in violation of the rules and regulations of the school.
23.The 2nd & 3rd respondents state that the Deputy Principal Academics, informed the 1st respondent via mobile communication that the petitioner had sneaked out of school and to expect him at home. The 1st respondent informed the respondents that the petitioner would report back to school accompanied by him on 20/6/2022. However, the 2nd & 3rd respondents depone that the 1st respondent communicate to them that on 19/7/2022, the petitioner had run away from home to his biological mother’s residence and thus could not facilitate him to report back to school as expected.
24.On 21/6/2022, the 2nd & 3rd respondents aver that the petitioner accompanied by his mother went to the school premises seeking a letter of transfer on the reasons that the petitioner was being bullied. The 2nd & 3rd respondents aver that they had never received any complaint from the petitioner regarding the alleged bullying and in any event the school shuns such behaviour and deals with any such case seriously and promptly.
25.The 2nd & 3rd respondents state that they informed the 1st respondent and declined to issue the letter of transfer because in their admission records, the petitioner’s mother was not listed as a parent or guardian.
26.The 2nd & 3rd respondents acknowledge that the right to education is guaranteed under Article 43(1)(f) and Article 53(1)(b) of the Constitution, Section 7 of the Children’s Act and Section 28, 30, 31, 34 and 36 of the Basic Education Act and state that they have not in any way violated, threatened, interfered, breached this right as guaranteed by the Constitution. Moreover, the 2nd & 3rd respondents aver that they have been dragged along in a dispute that is clearly between the petitioner’s mother and the 1st respondent.
27.The 2nd & 3rd respondents state that the school has not refused or unreasonably withheld or failed to issue the letter of transfer as the law requires that the petitioner’s mother first obtains clearance from the ministry of education and also provide a note from the school the student is to be posited before they issue clearance to the parent noted in their records and not anybody else. The 2nd & 3rd respondents’ further state that should the parties resolve their uses and arrive at a decision that the school is no longer suitable to the petitioner, a letter of transfer will be issued to allow the petitioner move to a more suitable learning institution but after adhering to the ministry of education guidelines.
28.The 2nd & 3rd respondents state that the 1st respondent has already paid school fees for the current term and thus he is not in breach of any obligation to the petitioner in so far as school is concerned.
29.Parties agreed to dispose of the application by way of written submissions.
The Petitioner’s Submissions
30.The petitioner reiterates what was deponed in the affidavit of Grace Wachera and contends that what is for consideration is whether there is an infringement of his rights as guaranteed under Articles 31(c) & (d), 43(1)(f), 47(2) and 53(1)(b), (d) & (e) of the Constitution. The petitioner contends that the 1st respondent wishes to convert the instant case as one of a custody dispute between him and the petitioner’s next friend. The petitioner further argues that the custody dispute is merely incidental to the other pertinent constitutional questions raised by the petitioner. The substratum of his claim is the infringement of his rights with particular emphasis on his right to education, due to denial of consent to transfer by the respondents.
31.The petitioner argues that consent to transfer was denied with no written reasons being given to him. It is not denied by any of the parties that as a result, the petitioner is not in school. Neither is it denied that the petitioner needs leave or consent to transfer from the school to enable him join another school. The petitioner further contends that evidently, the respondents are not clear why they have demonstrated that he must access his education at the 2nd respondent and no other school. The 2nd & 3rd respondent aver that the petitioner needs a directive from the Ministry of Education to enable him transfer, yet to date no such communication has been made to the petitioner thus fortifying the petitioner’s claim that his right to fair administrative action was violated when no written reasons for refusal of consent was given. The petitioner submits that if it is the mandate of the Ministry to direct transfer the court still has power and authority to interfere in the exercise of that mandate in the face of a demonstration of abuse or violation thereof, as in the instant case.
32.Further, the petitioner submits that he has missed a term of schooling and no school will admit him unless he gets leave from the respondents. If the orders are not granted pending the hearing of this petition, the petition states that he risks missing another term of schooling. The alternative as the respondents insist, is not tenable for him as he avers that he was bullied, assaulted and has been traumatized by other students and staff. He relies on the case of Centre for Rights Education and Awareness (CREAW) & Another vs Speaker of the National Assembly & 2 Others (2017) eKLR to support his contentions. He further adds that he cannot go back to the 2nd respondent and he has been denied consent to transfer which prevents him from securing admission at another school. As such, the petitioner submits that his right to education is being violated and unless conservatory orders are given, and the respondents are directed to grant him the consent he seeks, that right is likely to continue being violated. He further contends that forcing him to go back to the school will place him under the threat of further violation of his right not to be subjected to torture and violence.
33.The petitioner relies on the cases of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Board of Management of Uhuru Secondary School vs City County Director of Education & 2 Others [2015] eKLR and submits that he has an arguable case with high chances of success. The petitioner further submits that he falls under Article 52(1) of the Constitution which guarantees the special protection of children. He further relies on Article 53(2) of the Constitution and the case of M.A.A vs A.B.S [2018] eKLR and submits that it is not in his best interest to stay out of school nor is it in his best interest to be forced to stay in a school that is causing him emotional distress.
34.The petitioner further relies on Section 4(4) of the Children Act and submits that he is not a child of tender years and he certainly knows how to complain when he has been assaulted and mistreated. The petitioner further contends that he has demonstrated that his case is not only arguable but has high chances of success, thus deserving grant of the conservatory orders.
35.The petitioner submits that he is likely to suffer prejudice if the orders sought are not granted as his right to education is threatened and if the conservatory orders are not granted, he will remain out of school, awaiting the court’s pronouncements on the questions of infringements of his rights. If after the hearing, the infringements and violations are found, the petitioner contends that he will have suffered prejudice. The petitioner submits that the alternative of resuming school at the 2n respondent will put him at risk of harm, physically, psychologically and emotionally. On the other hand, he contends that no prejudice will be suffered by any other party if the orders sought are granted.
36.The petitioner further argues that the entire substratum of the petition will be rendered nugatory if the prayers are declined. The violations and infringements complained of will continue unrestrained and the petitioner contends that his rights will be violated, even if he succeeds at the conclusion of the case as he will have had his education compromised not to mention his wellbeing. As such, the petitioner contends that that prejudice cannot be reversed by any finding, not even compensation will restore loss to education.
37.The petitioner further submits that the respondents ought to be condemned to pay costs as the respondents failed to safe guard his welfare and by denial of the consent to transfer, they are wilful in their violations of his rights and his moving the court was an act of last resort.
The 1st Respondent’s Submissions
38.The 1st respondent reiterates that the matter is sub judice as the petitioner’s mother has filed an application seeking similar prayers in Kiambu CM Children’s Court Case No. 21 of 2021. The application is still pending before the children’s court and the 1st respondent submits that the instant application ought to be thrown out or stayed as the parties can canvass it before the Kiambu children’s court to support his contention, the 1st respondent relies on the case of Kinatwa Co-operative Savings & Credit Society Limited vs Kinatwa Prestige Ltd [2021] eKLR to support his contentions.
39.The 1st respondent relies on what his averments in his replying affidavit and states that he has spared no effort in giving the petitioner the best education and support within the meaning of Article 53 of the Constitution and Section 13 of the Children’s Act, 2022. He submits that by correcting the petitioner, he was not abusing the petitioner’s rights not he was acting in the best interests of the child pursuant to Section 8(2)(c) of the Children’s Act 2022. He further submits that the petitioner is a minor and a teenager who is on a self-discovery stage and he therefore needs guidance. The 1st respondent further contends that if the petitioner is uncomfortable in a school of the stature of the 2nd respondent, he is unlikely to fit in any other school in the Republic and it may well be that with some positive intervention from parents and the counsellor at school, a more helpful approach, the matter would have been sorted out amicably. The 1st respondent further submits that the petitioner’s mother is using the petitioner to settle scores with him and it only messes the petitioner’s future which is not right and especially since the 1st respondent has already indicated that he does not wish to contest the continued and actual custody care and control of the petitioner by the mother.
40.The 1st respondent submits that the only problem is that the petitioner and his mother decided without any consultation from the 1st respondent that the petitioner needed to change schools from the 2nd respondent to either Mang’u or Kabarak high School. The 1st respondent urges the court to note that in the events leading to the filing of the instant petition, no effort was made to discuss the matter with the 1st respondent as he got to learn of the whereabouts of the petitioner from Juja Police Station. The 1st respondent further submits that the petitioner and his mother ought to have reported the allegations of physical and emotional abuse at Juja Police Station on 19th June 2022 when the petitioner’s mother went to report that she had the petitioner as physical abuse of a child is an offence under Section 22 of the Children’s Act 2022. Moreover, the 1st respondent contends that the petitioner’s mother did not make any effort to try and find out from the administration of the 2nd respondent the basis of the allegations by the petitioner, especially because no particulars thereof were provided and none have been provided before the court apart from general averments.
41.The 1st respondents submits that the 2nd & 3rd respondents averred in their replying affidavit that it had never received any complaints from the petitioner regarding bullying and in any case, the school shuns such behaviour dealing with any such case seriously and promptly. The 1st respondent further submits that the 2nd respondent is a school of no mean repute. It is a national school that performs well and he submits that it is difficult for a reasonable person to view the 2nd respondent through the prism of the petitioner and the petitioner’s mother would like to project.
42.The 1st respondent submits that the issues raised by the petitioner do not meet the threshold of a constitutional petition. He further contends that the issues have been raised in the children’s court and as such, the application is an abuse of the court process and ought to be dismissed. To support his contentions the 1st respondent relies on the case of Beatrice Namikoyi Liru Chereti t/a Tana Progressive School vs Ministry of Education & 7 Others; Jessica Mwende Morows & Another (Interested Parties) [2021] eKLR and submits that the matter falls squarely under the jurisdiction of the children’s court and prays that the court remits the dispute there, as provided for under Section 91 of the Children’s Act 2022.
43.The 1st respondent further contends that no particulars of breach of the petitioner’s constitutional rights has been shown. No meaningful engagements have been shown to have been initiated by the petitioner’s mother with any of the respondents save for the confrontational approach. The 1st respondent states that a party should not be heard to block all avenue of resolution of a fairly mundane issue and then rush to the court to plead a constitutional issue. The 1st respondent further argues that the petitioner’s mother has not demonstrated that she has discharged her duty to show that the petitioner’s rights to education have been infringed such as to warrant the intervention of the court has been discharged. He relies on the case of M.M.M vs Permanent Secretary, Ministry of Education & 2 Others [2013] eKLR to support his contentions. As such, the 1st respondent prays that the application be dismissed with costs.
The 2nd & 3rd Respondents’ Submissions
44.The 2nd & 3rd respondents submits that the orders sought in the application and the petition are sub judice as the issues have been raised in the children’s court in Kiambu. As such, the respondents contends that the application and petition are an abuse of the court process and is completely insensitive to the right of the minor. The respondents further contend that the findings of the instant court may embarrass the proceedings of the lower court.
45.The 2nd & 3rd respondents further submit that the ministry of education protocols demand that before a school allows a student to leave; on any other matter other than disciplinary expulsion, to seek approval from the new admitting school and the ministry of education due to the government’s ration subsidy that is pegged on students population and positing. Thus, the petitioner has not exhibited compliance with the said protocols to enable the 2nd & 3rd respondents act on such a request. The 2nd & 3rd respondents thus contend that without observance of the rules of engagement, they cannot be compelled to act in a manner inimical to the set guidelines.
46.The 2nd & 3rd respondents further submit that the parents and guardians of the petitioner were noted in the school records and the petitioner’s mother was not listed as one of them. As such, the 2nd & 3rd respondents were right to deny the petitioner’s mother the letter. Based on the foregoing reasons, the 2nd & 3rd respondents pray that the application be dismissed with costs.
Issues for determination
47.The main issues for determination are:-a.Whether this petition is sub-judice before this court.b.Whether the conservatory orders should issue pending the determination of the main petition.
The Law
Whether the court has jurisdiction to determine the matter
48.Section 6 of the Civil procedure Act provides:-No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.
49.The rationale for this principle was restated in Republic vs Registrar of Societies Kenya & 2 Others ex parte Moses Kirima & 2 Others [2017] eKLR where the court held that:Therefore for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and such suit or proceeding must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
50.Similarly in Kampala High Court Civil Suit No. 450 of 1993 Nyanza Garage vs Attorney General where the court held that:-In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.
51.From the above cited cases, it is clear that the doctrine of sub judice entails the same parties involved in a similar subject matter in various suits in different courts. It is not disputed that there is a Children’s case in Kiambu Chief Magistrates Court being Children’s Case No. 21 of 2021 Joseph Wanjohi Murimi vs Grace Wachera Githinji, involving similar parties. However, the 1st respondent has stated that the petitioner’s mother filed an application in the Children’s court seeking custody care and control of the petitioner and that the parties also seek an alternative school for the petitioner with preference to Mangu High School or Kabarak High School.
52.The main parties herein have confirmed that the suit before the children’s court is in regard to custody of their three children including the petitioner. It is not in dispute that the 1st respondent was granted custody of the children on interlocutory basis pending the hearing and determination of the case. for now, the petitioner has run away from school and is currently residing with the mother in Nairobi while the 1st respondent is living in Nyeri. This court in deciding the issue of res judicator must interrogate the circumstances surrounding this case.
53.The Petitioner herein alleges violation of his rights mostly under Article 53 of the Constitution by the 1st, 2nd and 3rd respondent. It is imperative to note that the 2nd and 3rd respondents are not parties in the Kiambu Children’s case and that this case is about violation of the petitioner’s rights by the three respondents in the manner described in the petition. The children’s case concerns custody and other issues for all the children of the 1st respondent and the mother of the petitioner.For these reasons, I am of the considered view that this matter is not sub-judice as described under Section 7 of the Civil Procedure Act. The court will therefore proceed to determine its merit.Whether the conservatory orders should issue pending the determination of the main petition
54.Pursuant to Article 23 of the Constitution, a court may grant conservatory orders to uphold and enforce the bill of rights. In considering an application for conservatory orders, the court is not called upon and not required to make any definitive finding either of fact or law.
55.The jurisdiction of the court at this point is limited to examining and evaluating the material placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of conservatory orders. The court is further required to determine whether the denial of conservatory orders will prejudice the applicant. This principle was enunciated in Centre for Rights Education and Awareness (CREAW) & 7 Others vs Attorney General [2021] eKLR where the court held that:-At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the constitution.
56.Similarly the court in Kenya Association of Manufacturers & 2 Others vs Cabinet Secretary- Ministry of Environment and Natural Resources & 3 Others [2017] eKLR stated:-In an application for a conservatory order, the court is not invited to make any definite or conclusive findings of fact or law on the dispute before it because that duty falls within the jurisdiction of the court which will ultimately hear the substantive dispute. The jurisdiction of the court at this point is limited to examining and evaluating the materials placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of a conservatory order. The court is also required to evaluate the materials and determine whether, if the conservatory order is not granted, the applicant will suffer prejudice. Thirdly, it is to be borne in mind that conservatory orders in public law litigation are meant to facilitate orderly functioning within the public sector and to uphold the adjudicatory authority of the court in the public interest.
57.The principles for consideration on whether to grant conservatory orders as outlined in the cases of Wilson Kaberia Nkunja vs The Magistrate and Judges Vetting Board and Others (2016) eKLR and Board of Management of Uhuru Secondary School vs City County Director of Education & 2 Others [2015] eKLR as follows:-a.The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory order, he is likely to suffer prejudice;b.Whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights;c.The court should consider whether, if an interim conservatory order is not granted, the petitioner or its substratum will be rendered nugatory;d.Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.i.Prima Facie Case
58.Thus the issue in contention is whether the petitioner has established a prima facie case that warrants the grant of conservatory orders. A prima facie case may be described as not a case which must succeed at the hearing of the main case but it is not a case that is frivolous. In Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125 a prima facie case was defined as:-In a civil application includes but is not confined to a ‘genuine and arguable case.’ It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.
59.In the instant case the petitioner ought to show that he has a case which discloses serious and arguable constitutional issues alleging violation of rights. This principle was enunciated in Barton vs Reid Canada Ltd & Alfresh Beverages Canada Corp [2001] OJNO4116:-A strong prima facie case requirement has been interpreted to mean that the plaintiff must not only satisfy the court there is a serious issue but also it is clearly right and utmost certain to be successful at trial.
60.Notably, the petitioner needs to show that the respondents violated his constitutional rights under the Articles cited in the petition. The petitioner states that his right to education has been violated because the 2nd & 3rd respondents refused to give him a letter of transfer and as such he cannot secure admission to any other school. Further, the petitioner argues that his right not to be subjected to torture or violence will be further infringed because he cannot go back to the 2nd respondent’s as he was being bullied and assaulted by other students. It is my considered view that the petitioner has not established a prima facie case with the probability of success. The petitioner is yet to demonstrate in this application how the respondents have infringed the Constitution and his rights to education. The 2nd & 3rd respondents have averred in their affidavit that they have no qualms if the petitioner decided to transfer and they shall issue a letter of transfer pursuant to the petitioner following the Ministry of Education Guidelines and the letter been addressed to the parent or guardian of the petitioner. The 2nd & 3rd respondents submitted that they were not in a position to give the petitioner’s mother the letter of transfer as she was not indicated as a parent/guardian in the school records. It is my considered view that the petitioner has not established a prima facie case.(ii)Irreparable Damage
61.An applicant must demonstrate that if the application is not allowed, the substratum of the petition will be lost and as such the main claim will be rendered nugatory. In other words, the applicant will suffer prejudice.
62.According to the petitioner, the entire substratum of the petition will be rendered nugatory if the prayers are declined as the violations and infringements complained of will continue unrestrained. The petitioner will have his rights violated and even if he succeeds at the conclusion of the case, he will have had his education compromised not to mention his wellbeing.
63.The petitioner states that his right of education will continue to be infringed as he will be away from school and going back to the 2nd respondent is not an option for him as the bullying shall continue thus infringing his right not to be subjected to torture. The petitioner has not demonstrated that he stands to suffer prejudice as he has not pursued transfer by following the guidelines laid out by the 2nd & 3rd respondents. The respondents have averred that if the petitioner’s parents resolve the issue and they decide that the petitioner ought to transfer, they shall issue the transfer letter pursuant to the guidelines given by the ministry of education. As such, I find that the petitioner has not demonstrated that he stands to suffer prejudice if the orders are not granted.
Public Interest
64.Public interest has been defined in the Black’s Law Dictionary 10th Edition at page 1425 as:-The general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation.
65.The Supreme Court in Gitaru Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR expressed itself as follows:Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions linked to such private party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes…
66.In my considered view, the petitioner has not demonstrated what public interest will be served by granting the conservatory orders. In fact the case as outlined involves the petitioner’s mother and the 1st respondent which are not considered as warranting the grant of conservatory orders. The issues raised are mostly personal issues between the petitioner’s mother and the 1st respondent which could be better resolved in another forum. This does not pre-empt the hearing and determination of this petition but is in regard to issue of conservatory orders.
Mandatory Injunction
67.The petitioner also seeks grant of a mandatory injunction compelling the respondents to release the clearance to transfer from the 2nd respondent. The principles for the grant of a mandatory injunction are well settled by the Court of Appeal in Kenya Breweries Ltd and Another vs Washington Okeyo (2002) 1 EA, 109 where the court stated:-A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant has attempted to steal a march on the plaintiff.
68.It is important to note that the orders the petitioner seeks, if granted at this stage will substantively determine the petition. Furthermore, the petitioner has not demonstrated any special circumstances that would warrant the grant of a mandatory injunction without hearing the parties in the petition. In this regard, it is my considered view that granting the mandatory injunction at this juncture will not serve the interest of justice and will determine the petition prematurely. As such, I decline to grant the order of a mandatory injunction.
69.Based on the foregoing reasons, I find that the application dated 19th July 2022 lacks merit and it is hereby dismissed.
70.Costs to abide in the Petition.
71.It is hereby so ordered.
DATED AND SIGNED AT NYERI THIS 8TH DAY OF SEPTEMBER, 2022.F. MUCHEMIJUDGERuling delivered through video link this 8th day of September 2022