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: -
12.The Respondents have further opposed the application vide a Replying Affidavit sworn by the Director of Education, Kitui County, John Gitonga Thiringi on 18th July 2022 who has deponed as follows:-
13.The 2nd 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 3rd 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 20th September, 2021 authored by the Sub-County Director of Education suspending all meeting in Mbitini Girls Secondary School and two,ii.A letter dated 26th October, by the 2nd 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.
23.Section 2 of the Fair Administrative Act defines an ‘administrative action’ as follows;administrative action’ includes;
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;‘‘
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,  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  2 EA 300 when he made the following observations:-
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 18th 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 3rd Respondent who was in attendance wrote a letter dated same day the 20th 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 20th September 2021 by stating at paragraph 9 of the Director’s Affidavit sworn on 18th 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 26th August, 2021 while the acts complained of reportedly took place on 18th 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 26th August, 2021.
33.The allegations by the 2nd 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 2nd 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 20th 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 20th September, 2021, that suspension of all meetings at Mbitini Secondary School was carried out simultaneously because in that letter, the 2nd Respondent was being informed by sub-county Director of Education what had taken place on 18th 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 2nd 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 3rd Respondent’s action of suspending all meetings at the school at paragraph 12 stating that he gave the 3rd 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 20th September, 2021 while the Director’s communication to the Minister was done on 21st October 2021. So even if the County Director and the 3rd 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 3rd 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 2nd 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 2nd Respondent’s action from whichever angle one looks at it reeks of arbitrariness, lacks transparency and accountability. The 2nd 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 2nd 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;
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;
43.The suspensions of board meeting as per the letter dated 20th September, 2021 by the 2nd 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;
45.In this instance, the County Director of Education, 2nd Respondent wrote a letter to the Principle Secretary on 21st 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 15th October 2021. The Principal Secretary replied to the letter on 14th 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 15th 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;
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 2nd Respondent herein) is tainted with illegality. The 2nd 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 2nd 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 2nd 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 1st, 2nd and 3rd 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 1st, 2nd and 3rd 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  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.