Judicial Review E007 of 2021

Case Metadata
Case Number:	Judicial Review E007 of 2021
Parties:	Republic v County Education Board Kitui County & 2 others
Date Delivered:	27 Jun 2023
Case Class:
Court:	High Court at Kitui
Case Action:	Judgment
Judge(s):	Robert Kipkoech Limo
Citation:	Republic v County Education Board Kitui County & 2 others (Judicial Review E007 of 2021) [2023] KEHC 19575 (KLR) (27 June 2023) (Judgment)
County:	Kitui
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Republic v County Education Board Kitui County & 2 others (Judicial Review E007 of 2021) [2023] KEHC 19575 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19575 (KLR)

Republic of Kenya

In the High Court at Kitui

Judicial Review E007 of 2021

RK Limo, J

June 27, 2023

In The Matter Of Constitution Of Kenya, 2010 Articles 2(1) 3(1) 10(1) 19, 20,21(1) 22,23,21(1), 22,23,47 1 And (2), 159(2) (A) And (C) 258(1) And 260 And In The Matter Of The Fair Administrative Action Act, (Act N0. 4 Of 2015) Section 3,4,7,9 And 11 In The Matter Of: 1. Order 53 Of The Civil Procedure Rules, 2010 2. The Law Reform Act In The Matter Of An Application For Judicial Review Order Of Certiorari And Prohibition

Between

Republic

Applicant

and

County Education Board Kitui County

1^st Respondent

County Director Of Education-Kitui County

2^nd Respondent

Ngolomo Emanman

3^rd Respondent

Judgment

1.The ex parte applicant has lodged these Judicial Review Proceedings brought pursuant to provisions of Order 53 Rule 3 and 4 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act and all other enabling provisions of the Law to challenge the respondent’s administrations in the substantive motion dated 29^th November 2021, he seeks the following orders:-i.That a declaration be made that the decisions taken by the 1^st, 2^nd and 3^rd Respondents suspending the activities of the Board of Management Mbitini Girls Secondary School, inhibiting participation of parents in the school and revoking the appointment of the individual members of the Board are illegal, unreasonable, ultra vires, unjustified and procedurally unfair hence unsustainable.ii.A declaration be made that the decisions of the 1^st, 2^nd and 3^rd Respondents constitute an abrogation of the right to fair administrative action guaranteed by Article 47 of the Constitution of Kenyaiii.An order of Certiorari to remove to this Honourable Court and quash the letter by the 3^rd Respondent dated 20^th September 2021, purporting to suspend meetings of the parents and the Board of Management meetings.iv.An order of Certiorari to remove to this Honourable Court and quash the letters by the 1^st and 2^nd Respondents dated 26^th October 2021 and addressed to the individual members of the Board of Management, Mbitini Girls Secondary School, purporting to revoke their appointment.v.An order of Prohibition directed at the 1^st, 2^nd and 3^rd Respondents barring them from issuing letters to or taking any decisions against the Applicants similar to or in terms of the letters dated 20^th September, 2021 and 26^th October 2021.vi.That costs of the application be provided for.

2.The ex parte applicant has supported his application with the grounds set out in the Statutory statement of facts dated 5^th November, 2021 and verifying affidavit sworn on 5^th November, 2021 and which accompanied the application for leave to challenge the decisions made by the Respondents.

3.The grounds are summarized as herein below: -a.The ex parte applicant averred that he was the Chairman of the Board of Management, Mbitini Girls Secondary School and that the school is sponsored by the African Brotherhood Church. He further contended that the school’s Board of Management which is composed of 14 members was appointed into office on 3^rd May 2019 to serve for a term of 3 years.b.That the school began experiencing challenges relating to the students’ rights of worship, deterioration of discipline, allegations of lesbianism, riots, misconduct within the teaching fraternity as such, the Board of Management sought to intervene to resolve these challenges.

The Ex parte applicant’s submissions

4.In his written submissions done through learned counsel M/s M M Kimuli & Co. Advocates and dated 27^th February, 2023 the ex parte applicant submits the impugned letter dated 20^th September, 2021 suspending board meetings was done without prior notice or hearing of those affected which he contends was a contravention of due process. It is his view that the Respondents had no power to suspend board meetings in the first place.

5.The ex parte applicant contends that the Board of Management runs the school and the Principal acts as the Secretary to the Board. He submits that the Secretary cannot run the school alone because Board of Management is in charge of all affairs of the school adding that the Basic Education Act does not envisage a situation where a school would run without a Board of Management (BOM).

6.It is the ex parte applicant’s case that Board of Management cannot be suspended whimsically adding that, suspension means a school should be closed.

7.He further submits that, their appointments as Board of Management were revoked without notice or explanation adding that removal could only be done following due process.He further submits that the respondent does not have power to disband Board of Management before their full term expires adding that, it was only the Cabinet Secretary who had the mandate once the term expires to put up a new Board of Management adding that there can never be a vacuum in running of schools.

8.He adds that the law provides the circumstances under which individual member of Board of Management can be removed but contends that any member must be heard before such removal. He submits that he was not given a chance to be heard or given a letter setting out any misconduct or malpractice. He opines that the Respondents action contravened Article 47 of the Constitution.

9.He further avers that the Forth Schedule of the Basic Education Act at Section 5 provides for circumstances under which a member of Board of Management can be removed adding that the respondents did not invoke any reason listed in the cited schedule.

10.He submits that the nominating body is mandated to revoke an appointment to the Board of Management and it was irregular for the Respondent to disband the Board of Management. He submits that Board of Management should be accorded latitude to carry out their mandate without undue influence by other people or agents with vested interests. He faults the Respondents for taking charge of finances of the school in the absence of Board of Management.

The Respondent’s Case

11.The Respondents are opposed to this motion and has filed grounds of opposition dated 18.07.2022 raising the following objections: -a.That the entire Judicial Review application has been overtaken by events as the mandate of the Board of Management which was appointed on 3^rd May 2019 expired on 3^rd May 2022.b.That the Respondents acted within their powers and jurisdiction in suspending the 3 members of the Board of Management after the said members exceeded their mandate by holding the school at ransom and defying the Ministry of Education Officials’ advice.c.The decisions of the Respondents were arrived at after due process and advice from the Ministry of Education National office.d.That the applicant’s actions are not supported by the majority of the then 13 members of the Board of Management but only 3 members whose appointment to the board was revoked.

12.The Respondents have further opposed the application vide a Replying Affidavit sworn by the Director of Education, Kitui County, John Gitonga Thiringi on 18^th July 2022 who has deponed as follows:-a.That the school’s board comprised of 13 members was appointed to serve a term of 3 years from 3^rd May 2019 (letters of appointed to that effect marked JGT 1(a)-1(h) (vide letter dated attached to the affidavit sworn on 18^th July 2022).b.That Mbitini Girls Secondary School is a government school placed under the African Brotherhood Church (ABC) as its sponsor on spiritual matters but the institution admits students from other faithsc.That the school programmes were running smoothly until three Board of Management members including the applicant one David Matheka and Musili Mutia all nominated by school sponsor ABC made unsavoury remarks during a parents’ meeting held on 18^th September, 2021. The 2^nd Respondent has exhibited a letter he received from sub-county Director dated 20^th September, 2021 that list the remarks made by the ex parte applicant.d.That after receiving complaints about the remarks, the deponent summoned the Board of Management together with two members of the ABC church, the school’s principal and education officials but the three aforementioned board members refused to attend the meeting. That instead a letter by Rev Nzou Mutui, Assistance Education Secretary of ABC schools was sent to the deponent. (said letter is attached and marked JGT-3 to the affidavit sworn on 18^th July 2022.)e.The deponent avers that upon reading the letter, he gathered that the school’s sponsor had assumed ownership of the school which is government owned and further, that the sponsor had declared war on Catholic, Muslims, Parents, Students and School employees who did not adhere to ABC doctrines.f.That consequently, the deponent called a meeting of the Kitui County Education Board on 15^th October 2021 which recommended dissolution of the school’s board of management following which, the deponent sent a letter dated 21^st October 2021 to the Principal Secretary, Ministry of Education to that effect. (Letter dated 21^st October 2021 annexed and marked JGT-4 to the affidavit sworn on 18^th July 2022.)g.The deponent avers that as he awaited communication from the Ministry of Education, he instructed the 3^rd Respondent to suspend all board and parents’ meetings and upon receiving approval from the Principal Secretary, Ministry of Education, he issued letters revoking appointment of the 3 defiant members of the school board on 26^th October 2021.h.That in the meantime, the Ministry of Education sent officers to Kitui County to investigate the take-over of the school by ABC church which the deponent avers was confirmed by the applicant’s letter to the Cabinet Secretary, Education dated 27^th October 2021. Following which, the PS education, revoked the appointment of the entire board through a letter dated 14^th December 2021. (Letters dated 27^th October 2021 and 14^th December 2021 marked JGJ-5 & JGJ -6 respectively and annexed to the affidavit sworn on 18^th July 2022.)

13.The 2^nd Respondent on his part avers that it took the action it took after the 3 members inclusive of the applicant refused to attend to a meeting to show cause why their appointment to Board of Management should not be revoked.

14.He contends that only 3 of the 13 members of Board support the applicant and faults them for lodging this case in this court on behalf of Board of Management Mbitini Girls without the blessings of other members.

15.The Respondents insists that the term of the Board of Management expired on 3^rd May, 2022 and sees no reason why a new board should not be appointed.

16.It is submitted that with the expiry of their term in the Board of Management, the reliefs sought are in vain.

17.This Court has considered the ex parte applicant’s case and the respondents position. This Judicial Review has been brought to this court to challenge basically two decisions namely: -i.A letter dated 20^th September, 2021 authored by the Sub-County Director of Education suspending all meeting in Mbitini Girls Secondary School and two,ii.A letter dated 26^th October, by the 2^nd Respondent revoking appointment of the Board of Management of individual members including the ex parte applicant.

18.The Applicant’s case is that the Respondents acted in excess of their mandate and failed to observe rules of natural justice as they did not give a hearing to the Board of Management before suspending the board’s meetings and revoking the three members’ appointments to the board.

19.His contention is that the respondents have no power to disband a board of a school before expiry of its term adding that, individual members of Board of Management can be removed only by Cabinet Secretary after the due process.

20.The ex parte applicant has cited a number of infringements of the law by the Respondents but central to this, is the provisions of Article 47 of Constitution of Kenya.

21.Article 47 of the Constitution provides as follows;‘‘i.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.ii.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.iii.Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall;a.provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; andb.promote efficient administration.’’

22.The legislature pursuant to the above provision enacted Fair Administrative Action Act No. 4 of 2015 to give effect to Article 47 of the Constitution of Kenya.

23.Section 2 of the Fair Administrative Act defines an ‘administrative action’ as follows;administrative action’ includes;i.The powers, functions and duties exercised by authorities or quasi-judicial tribunals; orii.Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates…’’

24.The statute further proceeds to provide the procedural steps that must be taken before an adverse administrative action is taken.

25.Section 4(3) of the said Act stipulates;‘‘i.Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision;a.prior and adequate notice of the nature and reasons for the proposed administrative actionb.an opportunity to be heard and to make representations in that regardc.notice of a right to a review or internal appeal against an administrative decision, where applicabled.a statement of reasons pursuant to Section 6e.notice of the right to legal representation, where applicable.f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.’’

26.Section 6 of the statutes provides that every person adversely affected by the administrative action has a right to be supplied with information and reasons for the action taken so that he can either appeal or apply for a review.

27.The ex parte applicant in this instance claims that the respondents’ action through the cited impugned letters infringed on the provisions cited above and has asked for this court intervention via Judicial Review Order or reliefs.

28.The Purpose of Judicial Review was well set out in the case of Municipal Council of Mombasa versus Republic & Umoja Consultants Limited, [2002] eKLR where the Court of Appeal stated:‘‘The court would duly be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of Judicial review is concerned with; and such court is not entitled to act as a court of appeal over the decider acting on appeal would involve going into the merit of the decision itself such as whether there was or there was not sufficient evidence to support the decision and that, as we have said, is not the province of judicial review.’’

29.Justice Kasule of Uganda gave a more elaborate circumstances under which orders of Judicial Review can be issued in the Uganda case of Pastoli vs Kabale District Local Government Canal & Others [2008] 2 EA 300 when he made the following observations:-“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.Illegality, is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality----.Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.Procedural impropriety, is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision.”

30.The above position applies in the situation obtaining in this case.This court has looked at the evidence placed before it with a view to discerning the cause of the conflict at Mbitini Girls Secondary School. It is apparent from the evidence tabled that the applicant’s remarks made during a parent’s meeting for Form two students on 18^th September, 2021 instigated the actions taken by the respondents which actions have been challenged through this Judicial Review Proceedings.

31.After the meeting of 29th September, 2021, the 3^rd Respondent who was in attendance wrote a letter dated same day the 20^th September 2021 suspending further meetings at the school. The Respondents through the Director of Education, Kitui County has defended suspension of all meetings in the school done through that letter of 20^th September 2021 by stating at paragraph 9 of the Director’s Affidavit sworn on 18^th July 2022 as follows;‘‘That after receiving the above report from my SCDE on the ground where the school is situate, I summoned the Board of Management Chairman to my office together with two other members of ABC, the school principal and the Education officials on the ground to attempt to resolution of the issues but to my shock, the 3 board members refused to attend to any talks but forwarded to me a letter dated 28.8.2021 by Rev Nzou Mutui the assistant education secretary of ABC schools’ headquarters…….’’

32.This Court finds the above averment is not entirely correct because the letter referred is dated 26^th August, 2021 while the acts complained of reportedly took place on 18^th September 2021 during Form II Parents’ Meeting. It is clear that the conflicts between the sponsors of the school and education officials began much earlier as illustrated by the letter dated 26^th August, 2021.

33.The allegations by the 2^nd Respondent that he invited the ex parte applicant and 2 Other members of Board of Management representing the sponsor (ABC) with a view to resolving the conflict is not supported by evidence. The 2^nd Respondent should have enclosed a copy of the invite to show good faith on its part and/or demonstrate that such an invite was done in the first place.

34.I have also considered the said letter dated 20^th September, 2021 written by Sub-County Director of Education complaining or listing down grievances in regard to reported utterances made by ex parte applicant in a Parents’ Meeting of Form II Students. It is apparent that the respondents, going by the impugned letter dated the 20^th September, 2021, that suspension of all meetings at Mbitini Secondary School was carried out simultaneously because in that letter, the 2^nd Respondent was being informed by sub-county Director of Education what had taken place on 18^th September, 2021 and at the same time, all Board Meetings in the same school were suspended. That in my view raises fundamental question. Was the 2^nd Respondent’s action through its agent consultative or unilateral? Did he engage the other members of the Board before suspending all meetings? After all he avers that the applicant had on his side only 3 out of 13 members of Board of Management.

35.From the evidence presented in this court, the answers to the above questions are in the negative.

36.In his Replying Affidavit, the Director of Education, Kitui County, again defended the 3^rd Respondent’s action of suspending all meetings at the school at paragraph 12 stating that he gave the 3^rd Respondent instructions to suspend the meetings as he awaited communication from the Ministry of Education. Again this could not have been true. The suspension was done on 20^th September, 2021 while the Director’s communication to the Minister was done on 21^st October 2021. So even if the County Director and the 3^rd Respondent communicated and he gave him the instructions, the same did not happen in the manner it is alleged to have happened in the affidavit filed in court as the dates just don’t add up. The implication of this is that the 3^rd Respondent gave the directive suspending all board meeting at the school unilaterally and without any involvement of other stakeholders.

37.That unilateral action taken by the 2^nd Respondent’s office is frowned upon by the new constitutional dispensation because one of the important tenets or national values and principles of governance enunciated under Article 10 of the Constitution of Kenya is inclusiveness and participation of the people. This principle binds all state organs, state offices, public offices and all persons when making or implementing Public Policy decisions.

38.The 2^nd Respondent’s action from whichever angle one looks at it reeks of arbitrariness, lacks transparency and accountability. The 2^nd Respondent’s action was required to reflect all values and principles spelt out under Article 232 of the Constitution of Kenya because of the significance of the office held by Respondents on matters education. Every state officer, state organ or agency or Public Servant should ensure that the discharge of their duties is transparent and accountable. Transparency and accountability is only possible if any policy decision or action taken is anchored in law. In this instance, the 2^nd Respondent may have had good intentions but unfortunately he failed the above test by making unilateral and arbitrary decision when he had lawful options like involving the board and other stakeholders like the school parents’ association existed.

39.The Office of the Sub-County Director of Education is a creature under Section 18(2) of the Basic Education Act which states as follows: -‘‘The County Education Board may in consultation with National Education Board and relevant stakeholders appoint a sub-county education officer with clear functions and powers.’’

40.These functions and powers are not stipulated in the Basic Education Act however, the composition of the Board of Management of any particular secondary school as provided for under Section 56 of the Basic Education Act is as follows;i.The Board of Management established under section 55 shall consist of the following members appointed by the County Education Board;a.six persons elected to represent parents of the pupils in the school or local community in the case of county secondary schoolsb.one person nominated by the County Education Boardc.one representative of the teaching staff in the school elected by the teachersd.three representatives of the sponsors of the schoole.one person to represent special interest groups in the community; andf.one person to represent persons with special needsg.a representative of the students' council who shall be an ex officio member.’’

41.Flowing from the above the County Education Board is allowed to have a representative in the Board of Management and even if the representative is the Sub-County director as was the case in this instance, the officer does not have powers to suspend board meetings when there is Chairman of the board.

42.Provisions of Section 6 of Fourth Schedule of the Basic Education Act mirrows the Fair Administrative Action Act, 2015 as it provides as follows: -‘‘ii. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision;h.prior and adequate notice of the nature and reasons for the proposed administrative actioni.an opportunity to be heard and to make representations in that regardj.notice of a right to a review or internal appeal against an administrative decision, where applicablek.a statement of reasons pursuant to Section 6l.notice of the right to legal representation, where applicablem.notice of the right to cross-examine or where applicable; orn.information, materials and evidence to be relied upon in making the decision or taking the administrative action.’’

43.The suspensions of board meeting as per the letter dated 20th September, 2021 by the 2^nd Respondent’s agent (sub-county director) lacked legal backing and I find that the action did not invoke participation of stakeholders as envisaged under Article 10 of the Constitution of Kenya.

44.Now turning to the question of revocation of Mbitini Girls Board of Management, the legal mandate to dissolve a Board of Management of any school in Kenya is donated to the Cabinet Secretary as stipulated under Section 9 of the Basic Education Regulations 2015 provides as follows: -‘‘The Cabinet Secretary may, on the recommendation of the County Education Board dissolve the Board of Management of an institution where;a.Such boardi.Is found guilty of misconductii.Is deemed to be incapable of discharging its mandate as provided for in the Act; oriii.The institution changes its mandate or ceases to operate.(2)Where a Board of Management is dissolved under paragraph (1) the Board shall appoint an interim committee of five members to assume the responsibility of managing the institution.’’

45.In this instance, the County Director of Education, 2^nd Respondent wrote a letter to the Principle Secretary on 21^st October 2021 in which he sought permission to revoke the appointment of the school board for failure to execute the ministry of education guidelines and policies on management of public education institutions. The decision to revoke appointment of some members including the applicant herein, followed a County Education Board meeting which was held on 15^th October 2021. The Principal Secretary replied to the letter on 14^th December 2021 whereby he revoked the appointments to the board. A Principal Secretary is not a Cabinet Secretary because each has distinct roles. Furthermore, there are no minutes or confirmation from County Education Board that a meeting was held on 15^th October 2021. That is the first anomaly. Secondly, the revocation in itself was tainted with impropriety because the law is clear on what conduct can lead to revocation of a member of Board of Management of a school. Section 5 of the Forth Schedule of the Basic Education Act provides as follows: -‘‘The appointment of a member to a Board of Management shall be revoked and the member shall vacate office if the member;i.resigns in accordance with paragraph 2 of this Scheduleii.becomes insolvent or has conveyed or assigned his property or has made a proposition or arrangement for the benefit of his creditorsiii.is sentenced by a court of law to imprisonment for a term of six months or moreiv.is incapacitated by physical or mental illnessv.has been absent from three consecutive meetings of the Board of Management without leave;vi.has his appointment revoked by the nominating body; orvii.is otherwise unable or unfit to discharge his functions as a member of the Board of Management on account of any matter in this Act.’’

46.The Power to appoint or revoke a member of a school board under the above section is not bestowed upon the County Director of Education. The Provisions of Sections 54 of the Basic Education sets out clearly the mandate of the County Director of Education. Section 54(7) of Basic Education Act provides:-‘‘The County Director of Education shall, subject to the authority of the Cabinet Secretary and in consultation with the County Government, perform the following functions; implementation of education policies;(b)co-ordination and supervision of all education officers and support staff at the County level;(c)management of basic education, adult continuing education, non-formal, special needs education, tertiary and other educational programmes;(d)initiating educational policies at County level;(e)liaise with Kenya National Examination Council on management of national examinations;(f)maintenance of quality assurance and standards in the County;(g)management and monitoring the implementation of educational programmes;(h)advising and facilitating the establishment and registration of learning institutions by the County government;(i)administration of education management information system and the related information and communication technology at the County level;(j)facilitate auditing of all basic education institutions in the County;(k)advise the County Education Board on selection and appointment of Boards of Management (BOMs), School Management Committees, and Parents Associations;(l)co-ordinate capacity building and development for officers, school managers, Boards of Management and curriculum implementers;(m)admissions, transfers and discipline of students;(n)co-ordination of partners and education providers in the County. Including links with Government Departments on all education matters.(o)supervision of handing and taking over in schools and educational institutions in consultation with the Teacher Service Commission;(p)oversee the proper management and maintenance of school buildings, property and infrastructure development;(q)monitoring and evaluation of education programmes;(r)management of co-curricular activities, sports education and talent development in basic education institutions in the County;(s)any other duties assigned by the Cabinet Secretary.’’

47.From the above provisions, it is quite apparent that the revocation letter dated 26th October, 2021 signed by County Director of Education (the 2^nd Respondent herein) is tainted with illegality. The 2^nd Respondent acted in excess of his mandate by purportedly revoking the appointment of 3 members of Board of Management of Mbitini Girls including the exparte applicant herein. Their contention that the complaint has been overtaken by events cannot mask the illegality.

48.This Court further finds that the action by the 2^nd Respondent in revoking the said appointments is also tainted with procedural impropriety because the exparte applicant was not accorded his right to fair administrative action clearly stipulated under Article 47 of the Constitution of Kenya and Section 4 (3) of the Fair Administrative Act as well as Section 6 of the Fourth Schedule of the basic Education Act. This is because, though the Respondents claim that the exparte applicants were invited to show cause before the 2^nd Respondent, the show cause letter or even an ordinary invite has not been exhibited by the Respondents to contest the ex parte applicant’s claim that his rights to be heard were infringed. There is no evidence placed before this Court that due process was followed by the Respondents.

49.From the foregoing, it is obvious that the ex-parte applicant has made a solid basis for this court to intervene. This Court has no hesitation in declaring which I hereby do that the decisions taken by the 1^st, 2^nd and 3^rd Respondents in suspending the activities of the Board of Management Mbitini Girls Secondary School and revoking the individual members of the Board of the School were illegal, unreasonable, ultra vires, unjustified and procedurally unfair.

50.This Court also declares that the decisions of the 1^st, 2^nd and 3^rd Respondent constitute an abrogation of the right to fair administrative action guaranteed under Article 47 of the Constitution of Kenya.

51.I note that the ex parte applicant has inter alia sought orders of certiorari and prohibition as per Paragraph 33. The question which crops up is what would happen even if I quash the decision made to suspend school meetings and revoke the appointments, that relief might not be of much help since the terms of the previous board came to an end on 3rd May, 2022 by Operation of Law.

52.Secondly, an Order of Prohibition can only issue to prevent a future event not a past one. That relief is belated and unavailable to the exparte applicant.In the case of Kenya National Examination Council versus Republic ex part, Geoffrey Gathenji Njoroge & 9 other [1997] eKLR, the Court of Appeal stated the grounds upon which an order of prohibition may issue as follows;‘‘What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedingsProhibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision made. Prohibition cannot quash a decision which has already been made. It can only prevent the making of a contemplated decision.”

53.This Court however, is minded by the legal maxim that there is no wrong without a remedy (‘‘ubi jus ibi remedium’’) and I could have invoked the provisions of Article 23 to Order compensation to the ex parte applicant but the issue of damages was never canvassed before and I would be breaching the same rule of the right to be heard if I was to condemn the respondents without hearing them. The exparte applicant is at liberty to pursue his rights to compensation via separate action.

54.In the end, for the afore-stated reason, this court allows this motion only in terms of prayer (i) and (ii) as have declared above. The exparte applicant is at liberty to pursue his either rights granted by law but for now, I find that it is in Public interest not to make orders that would interfere with the smooth running of the subject school but the parties are advised to be on the right side of the law always in their public duties. The ex parte applicant will have costs of this Judicial Review.

DATED, SIGNED AND DELIVERED AT KITUI THIS 27^TH DAY OF JUNE, 2023.HON. JUSTICE R. LIMO-JUDGE

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