For the homeschooling system’s potential to be adopted, its foundations must be anchored on minimum educational standards set by the National Government
Headnote: The petition sought among other orders; a declaration that homeschooling did not contravene or infringe the right to education and the right to free and compulsory basic education. The court held that for the homeschooling system’s potential to be adopted in Kenya’s domestic law, its foundations must be anchored on the set minimum educational standards as set by the National Government. The court further held that the parents’ right to select a child’s education was not absolute. It was capable of limitation as provided under the article 24 of the Constitution.

Were & another v Cabinet Secretary, Ministry of Education & 2 others; Abuto (Interested Party) (Petition 236 of 2019) [2023] KEHC 21854 (KLR) (Constitutional and Human Rights) (15 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21854 (KLR)

High Court at Nairobi
HI Ong'udi, J
August 15, 2023
Reported by Kakai Toili
Download the Decision


Constitutional Law – fundamental rights and freedoms – right to education – use of homeschooling as a system of education - what was required for the homeschooling system’s potential to be adopted in Kenya’s domestic law - Constitution of Kenya, 2010, articles 2(5) and (6), 53 and Fourth Schedule, paragraph 15.
Jurisdiction – jurisdiction of the High Court – geographical jurisdiction - whether the High Court at Nairobi had the geographical jurisdiction to determine a petition whose cause of action arose in a different county but which widely challenged the provisions of an Act of Parliament - Constitution of Kenya, 2010, article 165.
Constitutional Law – constitutionality of statutes - principles in determining the constitutionality of statutes - what were the principles that guided courts in determining the constitutionality Acts of Parliament.
Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – limitation of parents’ right to select a child’s education - whether parents’ right to select a child’s education was absolute - Constitution of Kenya, 2010, article 24.
Words and Phrases - homeschooling – definition of homeschooling – to teach school subjects to one's children at home - Merriam – Webster Dictionary.
Words and Phrases - homeschooling – definition of homeschooling – the practice of educating your child at home rather than in a school - Collins Dictionary.

Brief facts
The petition sought among other orders ; a declaration that homeschooling did not contravene or infringe the right to education and the right to free and compulsory basic education; a declaration that section 43(2) of the Basic Education Act was unconstitutional to the extent that it did not recognize or include “home” as a basic educational institution; and a declaration that section 30(2) and 31(2) of the Basic Education Act were unconstitutional to the extent that it criminalized the act of parents who failed to take and/or admit their children to “school” as defined under the Basic Education Act.
The premise of the petitioners’ case revolved around the homeschooling system. The crux of the petition challenged the provisions of the Basic Education Act which were stated to be in violation of the petitioners’ fundamental rights and freedoms to subscribe to the homeschooling system as a means of education for their children. The petitioner claimed that he was arrested and charged for the offense of infringing on a child’s right to education. The petitioner further claimed that every parent had a right to choose the kind of education that shall be given to their children. The petitioner deposed that the requirement that a parent must admit a child at a school and the classification of a school as either being a private or public education institution as registered under the Basic Education Act, discriminated against parents and children who opted to pursue homeschooling education.

Issues
  1. What was required for the homeschooling system’s potential to be adopted in Kenya’s domestic law ?
  2. Whether the High Court at Nairobi had the geographical jurisdiction to determine a petition whose cause of action arose in a different county but which widely challenged the provisions of an Act of Parliament.
  3. What were the principles that guided courts in determining the constitutionality Acts of Parliament?
  4. Whether the parents’ right to select a child’s education was absolute.

Relevant provisions of the law
Basic Education Act, No 14 of 2013
Section 30 - Compulsory primary and secondary education
(2) A parent who fails to take his or her child to school as required under sub-section (1) commits an offence.
Section 31 - Duty of parents and guardian
1. It shall be the responsibility of every parent or guardian to present for admission or cause to be admitted his or her child, as the case may be, to a basic education institution.
2. Where a parent or guardian defaults in the discharge of his or her responsibility under sub-section (1), such a parent or guardian shall be deemed to have committed an offence and is liable to fine not exceeding one hundred thousand or to a period not exceeding two years or to both.
3. A parent or guardian shall have the right to participate in the character development of his or her child.

Held
  1. The jurisdiction of the High Court flowed from the under article 165 of the Constitution, which did not categorize it geographically. The argument that the instant court lacked geographical jurisdiction as the cause of action occurred in Butali in Western Kenya, and ought to have been filed at the High Court at Kakamega would only have been sustained if the issue was in relation to the petitioners claim against the 2nd respondent only.
  2. The petitioners’ grievances against the 1st and 3rd respondents arose from the 2nd respondent’s action and were widely against provisions in the Basic Education Act which they claimed were in violation of the Constitution and other universal declarations. The issue of geographical jurisdiction did not therefore apply.
  3. The 2nd respondent, the Director of Public Prosecutions (DPP) derived his powers from article 157 of the Constitution which was operationalized by the Office of the Director of Public Prosecutions Act, 2013(ODPP Act). For the Office of the Director of Public Prosecutions to be able to perform its functions enjoyed independence as provided under section 6 of the ODPP Act. Once the police established that a crime had been committed by any person through their investigations the DPP was required to make the decision whether or not to institute criminal proceedings based on the material before him as guided by the law and principles set out under article 157(11) of the Constitution.
  4. The courts would not be quick to interfere with the mandate of the DPP which had been carried out within the confines of the law. The DPP’s action was stated to be in line with the dictates of the law that was section 31 of the Basic Education Act. As provided under section 6(c) of the ODPP Act, the DPP was subject to the law. Section 31(2) of the Basic Education Act having not been declared unconstitutional was lawful and the DPP was bound to act as directed by the law, upon receiving sufficient evidence of disobedience. The 1st petitioner other than stating that they were arrested under section 31(2) did not demonstrate other factors that were present to indicate neglect of the respondents to uphold their duty or violation of their constitutional rights during the process.
  5. The 1st petitioner did not discharge the burden to prove that the DPP’s exercise of power as prescribed by law was unlawful and unconstitutional and as a result violated their constitutional rights. The arrest, detention, investigations and institution of criminal proceedings in the matter could not be condemned as it was both procedural and lawful.
  6. It was imperative that the spirit of the Constitution presided and permeated the process of judicial interpretation and judicial discretion. The court was alive to the dictates under article 259 of Constitution, which charged it with the duty to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the bill of rights in a manner that contributed to good governance.
  7. In the interpretation of an Act of Parliament a number of principles had been established that guided courts in making the declaration of constitutionality or lack thereof of a statute as follows:
    1. The general presumption that Acts of Parliament were enacted in conformity with the Constitution.
    2. A statute should be construed according to the intention expressed in the statute itself.
    3. The Constitution should be given a purposive and liberal interpretation as provided in on article 259(1) of Constitution.
    4. In order to examine constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration was the object and reasons as well as legislative history of the statute. That would help the court in arriving at a more objective and justifiable approach.
  8. The Constitution recognized the right to education under article 43(1)(f). One of the children’s rights under article 53(1)(b) of the Constitution made known that a child had a right to free and compulsory basic education. Under article 53(1)(e) the responsibility of a parent was to care, protect and provide for the child. Parents under the Constitution were not recognized as education providers in the setting of basic education and neither were they mandated to do so. The Constitution made known that that was a function and responsibility of the National Government as provided under paragraph 15 of the Fourth Schedule to Constitution.
  9. In essence the making of education guidelines was a preserve of the National Government being one of its mandates. The court by virtue of the doctrine of separation of powers could not make a determination on the appropriate education policies as that was within the Government’s arm.
  10. The court’s duty in the framework under article 20(3) of the Constitution was that in applying a provision of the Bill of Rights, a court shall develop the law to the extent that it did not give effect to a right or fundamental freedom; and adopt the interpretation that most favoured the enforcement of a right or fundamental freedom.
  11. An overview of the Constitution showed that it did not provide for education of a child through their parents or prescribe its alternative forms such as homeschooling. Even in the enactment of the Basic Education Act that tenet was not considered as a form of education. The Constitution under article 2(5) and (6) provided that as the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.
  12. The provisions of international law with reference to education of a child and its various aspects were applicable in Kenya as part of its law. Article 21(1) of Constitution placed an obligation on the Government to ensure persons enjoyed the full extent of their rights as envisaged under the and international law.
  13. Under international law alternative forms of education other than what was prescribed in the Basic Education Act were provided for such as the homeschooling system. By and of itself, homeschooling was a plausible education system. However, from reading the various international provisions, any system that purported to offer education to a child must conform to the minimum educational standards as may be laid down or approved by the State. That requirement was in harmony with paragraph 15 of the Fourth Schedule to the Constitution in relation to the National Government’s obligation. An education system must be in line with the rules and guidelines set and approved by the State. That was the legal position both domestically and internationally.
  14. For the homeschooling system’s potential to be adopted in Kenya’s domestic law , its foundations must be anchored on the set minimum educational standards as set by the National Government. To prove that the impugned provisions were unconstitutional the petitioners bore the onus to show that the homeschooling system met that threshold.
  15. The parents’ right to select a child’s education was not absolute. It was capable of limitation as provided under the article 24 of the Constitution. The limitation in that instance was that a parent under international law which applied also in Kenya could provide homeschooling as long as the same was in line with the Government’s educational standards for that system. Manifestly the homeschooling system just like the other formal systems must be regulated by the Government.
  16. A perusal of the material placed before the court revealed that while the petitioners put up a spirited fight for the homeschooling system a number of things were a miss:
    1. There was no evidence of what system and standard they subscribed to teach their children, the academic curriculum and grading system for each stage was not made known, documentation of the various stages of the children’s grades and progress were not shared. Further the petitioners did not disclose how such parents and guardians were qualified to teach their children in those systems and whether they held such necessary qualifications to do so. The guidelines and regulation procedures they complied with were also not stated.
    2. The petitioners despite having used the system for a while did not show their attempt to engage the various Government agencies such as the Ministry of Education to get approval and guidance of a standard they could apply or proposal to the National Government to amend the laws in favour of the homeschooling system. That was not a matter that the court would come up with to issue the orders and declarations the petitioners sought as it would result in an overhaul of the education system without public participation.
  17. The petitioners did not bother to present or lay any factual basis of how they educated their children. It was a fundamental principle of law that a litigant bore the burden (or onus) of proof in respect of the propositions he asserted to prove his claim. Court decisions could not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion.
  18. As per the principles of interpretation, every Act of Parliament and law must pass through the test of constitutionality which was a formal test of rationality and harmony with the principles. The impugned provisions of the Basic Education Act were in line with the principle that the State must prescribe minimum educational standards for Kenya. That mandate was not a preserve of parents. The impugned provisions were constitutional and consistent with Constitution, unless amended through a legal process.
Petition dismissed with costs.


Kenya Law
Case Updates Issue 017/23-24
Case Summaries

CIVIL PRACTICE AND PROCEDURE

It is presumptive and inappropriate to file a document out of time and then seek the court to extend the time.

Headnote: The application sought among other orders; the enlargement of time to file a reference against the decision of the Registrar on taxation of costs; that the reference filed therein be deemed as properly filed; and a stay of execution of the ruling and order of the Registrar. The court highlighted the guiding principles in considering an application for extension of time and the principles for grant of stay of execution. The court noted that the jurisdiction to determine a reference on taxation was donated to a single judge as opposed to the full bench. The court held that once time was enlarged, the applicant must properly and formally lodge the document, serve it and pay fees for it. The court further held that it could not sanitize by “deeming” documents irregularly lodged before granting leave.

Non- Governmental Organizations Coordination Board v EG & 5 others (Petition (Application) 16 of 2019) [2023] KESC 78 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KESC 78 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ
September 22, 2023
Reported by Kakai Toili


Download the Decision

Civil Practice and Procedure – timelines for filing references against a decision on taxing of costs – extension of time for filing such applications - what were the guiding principles in considering an application for extension of time - Supreme Court Rules, 2020, rule 15(5).
Civil Practice and Procedure – taxation of costs – taxation of costs at the Supreme Court - what was the procedure to be followed by a person who was dissatisfied with a decision of the Registrar of the Supreme Court in the taxing of costs - Supreme Court Rules, 2020, rule 62(1).
Civil Practice and Procedure – execution – stay of execution - what were the principles for grant of stay of execution - Supreme Court Act, 2011, section 23A.

Brief facts
The instant application sought among other orders; grant leave to the applicant and enlargement of time to file a reference against the decision of the registrar on taxation of costs dated June 9, 2023; that the reference filed therein be deemed as properly filed; and a stay of execution of the ruling and order of the Registrar of the court dated June 9, 2023 pending re-taxation of the bill of costs.
The applicant contended that although the decision under challenge was delivered on June 9, 2023, the applicant only became aware of it on June 20, 2023 when it was served with the proclamation notice; that the applicant was unable to issue instructions to counsel on the filing of the reference application as its legal manager was indisposed and out of the office for the whole week and that upon the legal manager resuming work, the instant application was brought without undue delay.

Issues:

  1. What were the guiding principles in considering an application for extension of time?
  2. What was the procedure to be followed by a person who was dissatisfied with a decision of the Registrar of the Supreme Court in the taxing of costs?
  3. What were the principles for grant of stay of execution?Read More..

Held:

  1. The court, by the provisions of rule 15(5) of the Supreme Court Rules, 2020, had jurisdiction to extend the time limited by the rules. The guiding principles in considering an application for extension of time were:
    1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
    2. A party who sought for extension of time had the burden of laying a basis to the satisfaction of the court.
    3. Whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis.
    4. Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.
    5. Whether there would be any prejudice suffered by the respondents if the extension was granted.
    6. Whether the application had been brought without undue delay; and
    7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
  2. The taxation ruling in question was delivered by email to the parties on June 9, 2023. Under rule 62(1) of the Supreme Court Rules, 2020, a person who was dissatisfied with a decision of the Registrar in the taxing of costs may refer the matter, within seven days to a single judge for determination. Consequently, the applicant was required to have lodged its reference by June 16, 2023. That was not done and the reason advanced by the applicant was that the applicant’s legal affairs manager was indisposed as a result of which he was unable to review the ruling and give instructions to counsel on record for the applicant. Based on the evidence, the reason for the delay was plausible and satisfactory, in addition to the fact that the instant motion was brought without undue delay and the respondents had not shown any prejudice they stood to suffer if time sought was granted.
  3. The court had, under section 23A of the Supreme Court Act, jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit. The principles for grant of stay of execution were, as it were;
    1. the applicant must satisfy the court that the appeal was arguable and was not frivolous;
    2. that unless the orders of stay were granted, the appeal would be rendered nugatory; and
    3. it was in the public interest that the order of stay be granted.
  4. The issues which were to be raised in the intended reference were indeed arguable and not frivolous. The impending and imminent threat of execution of the decree arising from the ruling would render the intended reference nugatory should the auctioneers proceed to sell and dispose of the proclaimed goods before the determination of the reference. In view of the fact that the dispute involved a statutory body funded by public coffers, it was in public interest that the order of stay be granted pending the determination of the intended reference.
  5. By the provisions of rule 62 of the Supreme Court Rules, 2020, the jurisdiction to determine a reference on taxation was donated to a single judge as opposed to the full bench. The applicant’s invitation of the court in the application to deem the reference filed therein as properly filed was untenable. Once time was enlarged, the applicant must properly and formally lodge the document, serve it and pay fees for it. The court could not sanitize by “deeming” documents irregularly lodged before granting leave. It was presumptive and inappropriate to file a document out of time and then seek the court to extend the time. The proper course was to file and serve the reference for consideration before a single judge.
Application allowed .

Orders:

  1. Leave was granted to the applicant to file and serve the reference against the decision of the Deputy Registrar on taxation of costs dated June 9, 2023 within 7 days of delivery of the ruling.
  2. An order staying the execution of the order of the Deputy Registrar of the court dated June 9, 2023 commenced by the 1st respondent, including an order restraining the 1st respondent and Zasha Auctioneers, their agents and/or employees, and/or any person acting under their instructions or directions from selling, dealing, interfering, alienating or disposing of any of the applicant’s property and/or household equipment was issued pending the determination of the reference on taxation.
  3. Costs of the application to abide the outcome of the reference on taxation.
  4. The court directed that the file be placed before the Deputy Registrar of the court for the purposes of issuing directions on the filing of the reference on taxation and the subsequent exchange of submissions.

CRIMINAL LAW

There is an urgent need to enact legal provisions to address the lacuna in the law relating to expungement of criminal records

Headnote: The matter revolved around the expungment of criminal records by the Directorate of Criminal Investigations. The court found that there was no legal provision or basis for expungement of criminal records in Kenya. The court further stated that there was a very urgent need for the Legislature to enact legal provisions to address the lacuna in the law relating to expungement of criminal records in the interest of justice. The court further stated that there should be a distinction between misdemeanors and felonies as related to the period the records should be kept.

Njoki v Directorate of Criminal Investigations & 2 others (Miscellaneous Petition 05 of 2020) [2023] KEHC 17924 (KLR) (Constitutional and Human Rights) (31 May 2023) (Judgment)
Neutral citation: [2023] KEHC 17924 (KLR)

High Court at Nairobi
HI Ong'udi, J
May 31, 2023
Reported by Kakai Toili
 Download the Decision

Criminal Law - Directorate of Criminal Investigations (DCI) – powers of the DCI – expunging of criminal records - whether the DCI had the discretion to expunge criminal records.
Jurisdiction – jurisdiction of courts – jurisdiction of courts when interpreting the law - what was the role of courts when interpreting the law to make the ends of justice.

Brief facts
The petitioner filed a petition and notice of motion before the court. The notice of motion sought among other orders; that the 1st respondent, the Directorate of Criminal Investigations furnish the petitioner with a clear interim police clearance certificate. The petitioner averred that he was in possession of two (2) police clearance certificates dated March 19, 2019 and December 9, 2019 respectively. Both certificates referred to a previous conviction for the offence of creating disturbance. The petitioner questioned the repeated appearance of that conviction in his clearance certificates, twenty (20) years after the occurrence.
The petitioner deponed that his requests to the respondents to remove the previous conviction from his clearance certificate had fallen on deaf ears. The 2nd respondent stated that the police clearance certificates were issued as per the law, and the information could not be changed by the 1st respondent. The 2nd respondent further contended that the record could only be changed where by appeal or revision the conviction was quashed.

Issues:

  1. Whether the Directorate of Criminal Investigations had the discretion to expunge criminal records.
  2. What was the role of courts when interpreting the law to make the ends of justice? Read More..

Held:

  1. One must plead in a precise manner the constitutional provisions said to have been violated and the manner in which the same was violated. A perusal of the petition only showed a citation of articles 2(1), 3(1), 21(1), 22(1), 23(1), 41(1) and 51(1) but not how they applied to the petitioner’s case. His supporting affidavit only set out what his complaint was but did not link the cited provisions of the Constitution of Kenya, 2010 to his complaint. The petition did not meet the threshold required as set out in the Anarita Karimi Njeru case.
  2. From a perusal of the key criminal statues in Kenya namely; the Penal Code Cap 63, the Criminal Procedure Code Cap 75 and the National Police Service Act No11A of 2011, there was no legal provision or basis for expungement of criminal records in Kenya. It was therefore not clear under what provision of the law the 1st respondent exercised the discretion, in expunging a conviction from ones record. Did that discretion apply to both demeanors and felonies? Was it fair to maintain the alleged twenty (20) year period for a conviction whose maximum sentence was six (6) months as that of the petitioner? That created a lacuna in law in that there was no regulatory framework to guide and stipulate the conditions one should satisfy before their criminal record was expunged. Further the law would stipulate the scope of such a mandate to safeguard against its abuse and create certainty and uniformity in the manner the procedure was applied in such applications.
  3. While interpreting the law, the court should bear in mind that they should make laws when necessary to make the ends of justice. Legal systems world over could not grow as had been the case without a great amount of judicial law making in all fields, constitutional law, common law and statutory interpretation. However, to the extent that judges made laws, they should do so with wisdom and understanding. Judges should be informed on the factual data necessary to good policy making. That included not only the facts peculiar to the controversy between the litigants before them, but also enough of an understanding of how the society worked so that they could gauge the effect of the various alternative legal solutions available in deciding a case.
  4. There was a very urgent need for the Legislature to enact legal provisions to address the lacuna in the law relating to expungement of criminal records in the interest of justice. There should be a distinction between misdemeanors and felonies as related to the period the records should be kept.
  5. Though the petitioner may not be successful in getting the orders he sought he had brought up through the petition a very important issue for consideration by the Attorney General and the Cabinet Secretary for the Ministry of Interior and National Administration and Parliament. It was not a loss to him because it was now twenty (20) years since his conviction in the year 2003. He was at liberty to apply to the 1st respondent for the expungement of this conviction from the record, which should not be an issue.

Petition partially allowed; counsel for the respondent should bring to the attention of the Attorney General, Cabinet Secretary for the Ministry of Interior and National Administration and Parliament the contents of the judgment; no order as to costs.