CNK (Suing on behalf of P.K.N (Minor) v Emily Kulola, Anne Ngugi Wanjiru, Peterson Gichuki, Board of Management ACK Thika Memorial Church School & Teachers Service Commission [2022] KEHC 1504 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

PETITION NO. 5 OF 2018

IN THE MATTER OF ARTICLES 27, 28, 29, 43 & 259(1) OF THE CONSTITUTION OF KENYA, 2010

CKN(Suing on behalf of P.K.N(minor)..............................................PETITIONER

VERSUS

EMILY KULOLA........................................................................1ST RESPONDENT

ANNE NGUGI WANJIRU..........................................................2ND RESPONDENT

PETERSON GICHUKI..............................................................3RD RESPONDENT

BOARD OF MANAGEMENT

[Particulars Withheld] CHURCH SCHOOL.........................4TH RESPONDENT

TEACHERS SERVICE COMMISSION...............................5TH RESPONDENT

JUDGMENT

1. The Petition dated 30th January, 2018 is brought byCNK(hereafter the Petitioner) against Emily Kulola, Anne Ngugi Wanjiru, Peterson Gichuki, Board of Management [Particulars Withheld]School, and the Teachers Service Commission (the 1st to 5th  Respondents, respectively) and alleging the contravention by the Respondents of the rights of Petitioner’s minor son P.K.N, under Articles 27, 28, 29, 43, & 53 inter alia , of the Constitution .The Petitioner seeks the following  reliefs:

a. “A declaration that the Respondents, all school and schoolteachers are at all times under the legal capacity of legal guardian and that they are under a duty to protect all the students from harm by teachers.

b. A declaration that the Respondents, all acts of corporal punishment against the minor and all students amounts threat, infringement, and a violation of their right to education and health as provided for under Article 43(1) of The Constitution and Section 7 of The Children Act.

c. A declaration that the Respondents have threat, infringed, and violated the minor’s right to Health and Education as provided for and guaranteed under Article 43(1) of The Constitution and Section 7 of The Children’s Act.

d. A declaration that the Respondents have threat, infringed, and violated the child’s right to security and exposed the minor to inhuman and degrading treatment as guaranteed under Article 29(f) of The Constitution.

e. A declaration that the Respondents have failed in their duty to protect the minor as provided for under Article 27 of the Constitution.

f. A declaration that the 5th Respondent has failed to discharge its duties through an omission in filing to protect the child from corporal punishment as guaranteed and provided for in Article 3 of The Constitution and Section 4 of the Teachers Service Commission Act.

g. An order compelling the 5th Respondent to draw a policy on Education that eliminates corporal punishment to students and one that ensures those students are not subjected to corporal punishment in schools and receive education in an environment of freedom and dignity free from fear.

h. An order compelling the 5th Respondent to ensure that all schools disseminate the information in the policy eliminating corporal punishment and to ensure that the material is fit for the consumption of all school going children. The information declaring the rights of a child be displayed conspicuously in all schools under its jurisdiction.

i. An order compelling the 1at and The 2nd Teachers to issue an express apology to the child to be published and translated into Kiswahili in a widely circulated newspaper.

j. Special damages.

k. An order for compensation.

l. An order compelling the Respondents to shoulder the costs of counselling of the child.

m. Costs”.(sic)

2. The Petitioner avers that she is the biological mother of the minor P.K.N and brings the petition on behalf of the minor aged 10years. She states that the minor was born with health complications about which his school, (the 4th Respondent) was duly notified at the time the minor was enrolled therein; and that notwithstanding the health challenges, the minor was a happy boy with great and legitimate expectations, aspirations and like any other student, had developmental, spiritual, academic needs.

3. She contends that on or about January 2016, the 1st Respondent, a teacher at the 4th Respondent’s school, using excessive force, maliciously and viciously assaulted the minor, causing him serious injuries and trauma that resulted in the minor missing school for 3 days; that in a bid to settle the matter, the 1st Respondent had offered the Petitioner Kshs. 8,600/- (eight thousand six hundred shillings); and that she wrote an apology letter to the Petitioner concerning the incident. It is further alleged that despite being made aware of the incident as the head teacher of the 4th Respondent’s school, the 3rd Respondent did not take up the matter, further causing the minor psychological trauma. And that subsequently the child was subjected to repeated acts of assault and cruelty at the hands of the 1st Respondent and other teachers at the school.

4.  The Petitioner further avers that  on 14th March, 2017 the minor  was subjected to severe corporal punishment by another teacher, the 2nd Respondent, occasioning him bruises and bleeding that necessitated  the admission of the minor into hospital  for 1  week; that the incident was reported to the Kirwara Police Station vide  OB. No. *** of  15th March 2017; and that as a result, criminal charges of assault causing actual bodily harm were preferred  against  the 2nd Respondent inKandara CM’s Criminal Case No. 921 of 2017.

5. The Petitioner avers that the actions of the 1st to 2nd  Respondents have had an adverse effect on the minor and offend the minor’s rights and fundamental freedoms under Article 10, 27, 28, 29(c), 29(f), 43 (1) (a) & (f) and 53(1) (b) (c) & (d) of the Constitution.

6. The Petitioner further pleads negligence and breach of duty against all the Respondents and avers that the 3rd and 4th and 5th Respondents are vicariously liable for the specified incidents involving the 1st and 2nd Respondents and alleged repeated acts of punishment or degrading treatment of the minor. The Petitioner claims Kshs. 531,151/= as special damages on account of medical costs incurred in respect of the minor’s treatment, and asserts that arising from the minor’s torture, inhuman and degrading treatment at the hands of the Respondents, the Petitioner was compelled to move the minor to a different school.

7. The Petitioner avers that the Respondents’ stated actions violate international conventions and local legislation including the International Convention on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the African Charter on Human and People’s Rights, the African Charter on Rights and Welfare of the Child, the Prevention from Torture Act, the Education Act and the Fair Administrative Action Act.

8. The Petition is supported by the Petitioner’s affidavit which amplifies the averments in the petition.

9. The 1st and 2nd Respondent, filed grounds of opposition to the petition on 17th September 2018. To the effect that the allegations in the petition are unfounded, spurious, baseless, and lacking in merit and solely meant to disparage and cast the 1st Respondent and 2nd Respondents as persons who are incompetent and or unsuitable to continue serving as teachers.

10. In addition, the said Respondents filed replying affidavits. On her part, the 1st Respondent filed a replying affidavit dated 4th September, 2019 in opposition to the petition. Admitting that the minor was one of the students in the 4th Respondent’s  school, she swore  that she was unaware of the minor’s asserted medical condition ; that at no time did she assault or use excessive force, or administer any punishment on the minor beyond an incident in 2016 or thereabouts  when, she assigned the minor class cleaning tasks after he failed to complete an academic assignment; that  the Petitioner thereafter approached her accusing  her of being malicious towards the minor and subjecting him to psychological trauma for which he allegedly received psychological counselling,  and demanded refund of the costs thereof; that she did not offer or make any payment to the Petitioner as asserted;  but to facilitate  closure of the matter,  she  offered to write an apology letter as an act of good faith intended to foster good relations and  not as an admission of guilt.

11.  She asserted further that she did not offer compensation to the Petitioner at the time, and that on the contrary, it is the Petitioner who demanded compensation allegedly to cover the child’s counselling costs; and that in any case, the incident had been amicably  resolved, and the minor remained in the school until 2017. She denies that any punishment impinging upon the minor’s right to education was administered on the minor. Finally, she deposed that the Petitioner’s allegations of assault, cruelty, or degrading treatment in violation of the minor’s rights are untrue, malicious, fallacious and are calculated to unfairly obtain compensation,  and the petition ought to be dismissed with costs.

12. The 2nd Respondent filed a replying affidavit dated 11th June, 2019 in opposition to the petition. She too admitted that the minor was one of her charges in the 4th Respondent’s school, but asserted that she was unaware of the minor’s alleged medical condition. She denied that she had assaulted the minor using a rubber pipe as claimed by the Petitioner, or that the minor was taken ill due to the alleged corporal punishment. She pointed out that the criminal case against her had never commenced and that the Petitioner made a report to police after the deponent rebuffed her demands for payment in compensation for alleged medical treatment of the minor; that upon being arraigned in court, she had pleaded not guilty to the charges and had not been found guilty, and hence she enjoys the presumption of innocence.

13. She reiterated that  she had not administered corporal punishment upon the minor and or exposed him to cruel and degrading treatment, and referring to the treatment notes in the petition, she  asserted that the minor’s multiple absences from school are attributed to other health issues, about which she sympathizes, but not arising from alleged corporal punishment; and that as a teacher and parent she had exercised  diligence and utmost caution with her pupils. She swore, finally, that the Petitioner’s groundless and exaggerated allegations are calculated to unfairly procure financial gain for the Petitioner. She urged that the petition be dismissed.

14. The 3rd and 4th Respondents presented a common response through the replying affidavit sworn by the 3rd Respondent in opposition to the petition. The deponent who was the principal of the 4th Respondent’s school described his other role as the secretary of the 4th Respondent. He swore that the 4th Respondent has the mandate to recruit, discipline school staff and to oversee the operation of the school, and has laid down  procedures for the  discipline of staff and for the management of learners; that in executing its mandate  the 4th Respondent has acted  diligently and lawfully; and  that the minor herein was handled appropriately as any other child with delayed developmental milestones, and was not discriminated against.

15. Concerning the allegations of assault levelled against the 1st Respondent and consequences to the minor, he asserted that these were never brought to the attention of the board, or the school and he only learned about them through this petition, even though his office was always open to parents, and himself being always available at the school. That in the material period, the Petitioner had made several routine visits to the school but had never raised the allegations; that the school and board were neither privy to nor sanctioned the apology letter or alleged offer for compensation concerning the 1st Respondent; and that well before the alleged first assault, the Petitioner had during a visit disclosed to him that the minor suffered bed-wetting for which some teachers had offered help.

16. Regarding  the second alleged assault, the deponent asserts that it was reported to him by the Petitioner after several days;  that he had advised her to lodge a formal complaint which was submitted to the 4th Respondent’s sub-committee to inquire into the complaint and report to the school board; and that the sub-committee  could not progress the matter because the Petitioner opted to report  the matter to police and was subsequently unwilling to engage with the sub-committee. That in any event, the alleged caning incident did not occur, and the documented treatment allegedly received by the minor,  and missed school days were evidently  not related thereto, but to other medical conditions. He asserted that the allegations of torture, inhuman and degrading treatment are false as the board and teachers in the school were alive to the need to maintain a good learning environment. In a word, all the allegations made against the 3rd and 4th Respondents and its staff were denied by the deponent who concluded by stating that, the petition herein does not rise to the requisite legal and evidential threshold and the claims for compensation are without basis and should fail.

17. The 5th Respondents filed a replying affidavit sworn by Viola Jemutai Kihara, described as the Deputy Director (Discipline) at the Teachers Service Commission (hereafter the Commission). To the effect that  the 5th Respondent is a constitutional commission established under Article 237(1) of the Constitution and the Teachers Service Commission Act, the latter which stipulates its principal objectives and mandate to include the registration, recruitment, deployment, assignment, promotion, transfer, and discipline of teachers within the public service. That the 5th Respondent is the regulator of the teaching profession in the country and responsible for the registration and de-registration of all teachers whether  in public and private employment. She further deposed that   the 5th Respondent and Government through the Ministry of Education had in place a policy and legislative framework that has proscribed corporal punishment in all schools, whether public or private.

18. Concerning the 1st to 3rd Respondents, she asserted that though they were registered as teachers, they were not employees of the Commission but employees of the 4th Respondent which is a private institution for which the 5th Respondent exercises no immediate or direct supervisory powers, its disciplinary role concerning teachers in private institutions being limited to deregistration of such teachers upon  conviction for any offence considered repugnant to the teaching profession. And that in connection with the said Respondents, no evidence of such conviction had been presented to the 5th Respondent to justify de-registration.  It was her contention therefore that the 5th Respondent is not a proper party to the proceedings. Her view is that the petition is fatally defective and falls short of the requisite thresholds under the Constitution and the law.

19. On 23rd May, 2019 directions were given for the canvassing of the petition by way of written submissions. The parties duly complied and thereafter orally highlighted their respective submissions.

20. Counsel for the Petitioner commenced his submissions by reiterating the Petitioner’s affidavit evidence concerning the two instances giving rise to the petition.  In this regard, he emphasized the apology letter by the 1st Respondent and medical evidence  in the form of  medical reports showing the hospitalization and treatment of the minor and the P3 Form completed in respect of the criminal case facing the 2nd Respondent before the CM’s CourtatKandara,as evidence that the minor was subjected to corporal punishment as defined by the United Nations Committee on the Rights of the Child in its General Comment No. 8 of 2006. Namely, any punishment in which physical force is used with the intention to cause some degree of pain or discomfort, however light.

21.  Counsel contended that the actions or  inaction of the 3rd Respondent and his deputy following the alleged assaults on  the minor was in breach of their respective duties to protect the minor, in furtherance of the minor’s rights under the provisions of  Articles 27, 28, 29(c, f), 27, 43(1) (a, f) ,47,53(1) (b, c, d) of the Constitution, sections 4 and 36 of the Basic Education Act, as well as Regulation 9(1) of the Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations 2015(hereafter the Regulations). In addition, counsel relied on various international instruments including those cited in the petition, such as the International Convention on Economic, Social and Cultural Rights and the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment and The Convention on the Rights of the Child.

22. Further, citing the Indian case of Kishor Guleria v The Director of Education Directorate of Education & ORS [2012](sic), and section 251 of the Kenyan Penal Code, counsel submitted that corporal punishment is inconsistent with the dignity of the child and is proscribed. That  pursuant to Article 53(2)  and section 4 of the Children Act the best interest of the child is a primary consideration binding any persons or bodies such as teachers and educational institutions acting in matters concerning a child,  as reiterated in  A.O.O & 6 Others v Attorney General & Another [2017] eKLR and  M A v R O O [2013] eKLR .He asserted that any disciplinary measures taken against a child must align with the best interest of the child principle.  That corporal punishment, on the contrary, infringes upon the diverse rights of the child, including the right to health and education.

23. Concerning the vicarious liability of the 4th Respondent for the actions of their employees, namely the 1st and 2nd and 3rd Respondents, counsel cited several cases including Tabitha Nduhi Kinyua v Francis Mutua Mburi & Another CA 180 of 2009 [2014] eKLR, Teachers Service Commission v WJ & 5 others [2020] eKLR, and the Canadian case ofB.(A.) v D.(C.) [2011] B.C.J. No. 1087, 2011 BCSC 775to submit  that as an employer, the 4th Respondent  was liable for acts done by their employees within the course and scope of their employment.

24. With regard to the Commission, it was argued that it has a direct or implied contractual relationship with all teachers whether employed in private or public institutions and that; the Commission is under a strict duty to ensure that young pupils who belong to a vulnerable group are safe from harm, as stated in TeachersService Commission v WJ.He asserted that the Commission’s failure to discharge its mandate under Article 237(2) of the Constitution exposes it to vicarious liability for the acts committed by the 1st and 2nd Respondents in violation of the child’s rights under the Constitution, the law, and the Commission Circular No. 6 of 2017 proscribing corporal punishment in schools.

25.   As regards compensation, counsel relied on W.J. and Another v Astariko Henry Amkoah & 9 Others(supra) to urge an award of Kshs. 5,000,000/- and structural interdicts in terms of prayers (g) to (i) and (l) against the Respondents jointly and severally.

26. On behalf of the 1st and 2nd Respondent, it was submitted that the allegations of assault on the minor by the 1st Respondent in 2016 and subsequent repeated assaults are unsubstantiated and vague, and no formal complaint was lodged with the school, police, and Ministry of Education since 2016 until the filing of the petition. It was submitted there was no probative material placed before the court to support the allegations of assault by the 1st Respondent, injuries allegedly suffered by the minor or alleged payment of compensation therefor by the 1st Respondent; that the apology letter by the 1st Respondent was not an admission of such assault. Asserting the lack of correlation between the contents of the medical evidence tendered in the petition and alleged first and repeated assaults on the minor, counsel submitted that the Petitioner’s claims against the 1st Respondent are inter alia, misconceived, based on factual distortions, and motivated by desire for financial gain.

27. In respect of the 2nd Respondent counsel submitted the mere fact that she was arraigned in court for the offence of assault did not render her guilty or culpable and in any event, the criminal case before the CM’s Court at Kandara had since been withdrawn under Section 87A of the Criminal Procedure Code, due to the Petitioner’s persistent failure to attend the hearing. It was submitted that the Petitioner’s allegations of assault made against the 2nd Respondent have been disputed and that the medical documents relied on by the Petitioner are inconsistent with asserted facts of assault on the minor, but rather point to his history of medical challenges. Finally, counsel submitted the expenses alleged to have been incurred in the treatment of the minor have neither been specifically proved nor demonstrated to relate to injuries arising from the alleged assaults. The Court was urged to dismiss the petition with costs.

28. Counsel for the 3rd and 4th Respondents equally reiterated the material in their replying affidavit, emphasizing that the Petitioner had never reported the alleged first incident of assault by the 1st Respondent to the board or school or government agency to facilitate verification of her claims. Further that, the medical evidence placed by her before the court is illustrative of the minor’s tumultuous medical history and not the alleged assault. Moreover, that contrary to the Petitioner’s assertions the 1st Respondent’s apology letter did not amount to an admission of the Petitioner’s allegations  of assault and for which no medical proof has been tendered. And besides, the allegations of continued assault by several teachers thereafter are vague and unsubstantiated. While affirming the rights of a child under international instruments, the Constitution and statute, counsel asserted that the burden of proof of violation of the rights lay upon the Petitioner under section 107 (1) of the Evidence Act and cannot be discharged by adduction of hearsay evidence or rumor.

29. Taking issue with the alleged second assault, the 3rd and 4th Respondents tore into the Petitioner’s medical records, her proven conduct surrounding the alleged assault and especially her reticence and refusal to attend to the board sub-committee charged with making inquiries into her formal complaint in respect of the second alleged assault. Seeking to distinguish the facts of this case from those in  Tabitha Nduhi Kinyua(supra), counsel argued that the latter case was founded on the tort of negligence and that in this case the 3rd and 4th Respondents cannot be held vicariously liable  for acts of the 1st and 2nd Respondents that were not sanctioned or authorized by them; and that corporal punishment, outlawed by section 36 of the Basic Education Act , does not amount to acts committed within the scope of the former respondents’ employment.   Finally, counsel submitted the 3rd and 4th Respondents could not be held to have abdicated their duty of care concerning unreported incidents they had no knowledge of. Thus, they urged that the petition be dismissed with costs.

30. Counsel for the 5th Respondent submitted, emphasizing their affidavit response, that the 1st to 3rd Respondents though registered as teachers were not employees of the 5th Respondent, and were at all material times engaged by the 4th Respondent in a private capacity to undertake teaching assignments. It was reiterated that on account of the 4th Respondent’s private enterprise status, the 5th Respondent lacked immediate and/or direct supervisory powers over the personnel of, or the 4th Respondent and no vicarious liability could attach on the Commission for acts of the employees of the 4th Respondent. Relying on JosephNjuguna & 28 Others v George Gitau T/A Emmaus School & Another [2016] eKLR and Kisii HCCC No. 380 & 243 of 1998 Joseph Suri Nyateng & Another v H.P Mashru Limited (Unreported)counsel argued that the 1st and 2nd Respondents were   teachers engaged through a contract of employment with the 4th Respondent,  and the Commission not being privy to such contract,  could not be held liable for the said 1st and 2nd Respondents’ actions.

31. Citing among other cases the KenyaPharmaceutical Association & Another v Nairobi City County and 46 Other County Governments & Another [2017] eKLR and  FJK & Another v Patrick Wanyonyi & 3 Others (2019) eKLR ,counsel submitted that the 5th Respondent’s mandate and power to regulate the teaching profession  pursuant to  Article 237 of the Constitution , the  Teachers Service Commission Act , the Basic Education Act, and Regulations, does not necessarily impute liability on the Commission  for the actions of the 1st and 2nd Respondents. And that the core mission of the Commission as a professional regulatory body is regulation aimed at minimizing and mitigating risks to the public that may arise from the practice but is not tantamount to the regulator taking over the management of private institutions. For this proposition, counsel called to his aid the decision in Dry Associates Limited v Captial Markets Authority & Others [2012] e KLR.

32. Further, counsel sought to distinguish the facts of the present case from those in WJ& Another v Astariko highlighting that the errant teacher therein was a teacher employed by the Commission in a public school and the victims who were petitioners themselves pupils at the said public school, which was managed by a board appointed by the government. Finally, counsel argued that as a matter of law and logic, no duty of care can be cast upon the Commission in the absence of a direct and immediate nexus between the Commission and the teachers herein, and to do so in this instance would fly in the face of private enterprise. He urged the court to dismiss the petition with costs to the Respondents.

33. The court has considered the petition, the rival affidavits, and submissions. The broad question for determination is whether the Petitioner has demonstrated that the Respondents committed acts that qualify as threats to, and/or infringement and/or violation of the minor’s rights and fundamental freedoms enumerated in the petition, and ultimately, whether the Respondents are liable, and whether the Court should grant the remedies sought. In AnaritaKarimi Njeru v R (No.1) [1979] 1 KLR the Court emphasized that a party seeking redress for alleged violation of his constitutional  rights is required to set out with a reasonable degree of precision “ that of which he complains , the provisions said to be infringed and the manner in which they are alleged to be infringed” .See also Mumo Matemu v Trusted Society of Human Rights Alliance [2013] e KLR.

34. In addressing the principle inAnarita Karimi Njeru’scase,the Supreme Court inCommunications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR observed as follows:-

“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

35.  In this case, the Court is not in doubt that the petition herein elaborately sets out the Petitioner’s complaints, the provisions of our Constitution allegedly infringed or violated and manner thereof.  In addition to relying on international instruments, the Petitioner has cited the minor’s rights to:  equal protection and benefit of the law(Article 27); human dignity (Article 28); freedom and security of the person incorporating the right not to be subjected to any form of violence from either public or private sources and not to be treated or punished in a cruel , inhuman or degrading manner(Articles 29(c) and (f) ; 53(1) (d) ; the highest attainable standard of health (Articles 43(1) (a) and 53(1) (c)); and education (Articles 43(1) (f) and 53(1) (b).  The Petitioner’s case is based on the alleged cruel treatment of the minor through corporal punishment and other non-physical maltreatment meted by the 1st, 2nd, and 3rd Respondents, thereby impinging and infringing upon the minor’s rights above.

36. For good measure, the Petitioner has also cited section 36 of the Basic Education Act of 2013 which provides that: -

“(1) No pupil shall be subjected to torture and cruel, inhuman or degrading treatment or punishment, in any manner, whether physical or psychological. (2) A person who contravenes the provisions of sub-section (1) commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment not exceeding six months or both.”

37. And section 9(1) of the Teacher’s Service Commission (Code of conduct and Ethics for Teachers) Regulations, 2015 provides: -

“(1) A teacher shall be entrusted with the duty of care of a child, including a child with special needs and shall take all reasonable steps to ensure the child is protected from abuse, neglect, harmful cultural practices, all forms of violence, discrimination, inhuman treatment, corporal punishment and exposure to hazardous or exploitative labour.”

38. The minor herein was admittedly born with a medical condition described as “stomach volvulus” in the report by Dr.Tsutsu of  Gertrude’s Children’s  Hospital (annexure marked “CN4” to the Petitioner’s  supporting affidavit). The condition affected the minor’s developmental milestones. It is common ground that in the material period, the 1st to 3rd Respondents were teachers in the 4th Respondent’s school into which the minor was enrolled since 2011 and was in class 4 in March 2017, when he was moved to a different school. The incidents giving rise to this petition allegedly occurred between January or February 2016 and March 2017.

39. That the minor as a student in the 4th Respondent’s school was entitled to the rights and fundamental freedoms and protections enumerated above is beyond disputing. Correspondingly, in relation to the minor herein, all the Respondents were generally bound by the Bill of Rights pursuant to the provisions of Article 20(1) of the Constitution.  The sticking point in this matter, however, and upon which the entire petition turns is whether the Petitioner has demonstrated the alleged conduct by the Respondents constituting the violation of the minor’s rights during the last year of his sojourn as a student at the 4th Respondent’s school.

40. The Evidence Act applies to these proceedings by dint of section 2 thereof. The Act provides at section 107(1) that:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”

41. Section 108 further provides that:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

42. The provisions of   Section 109 of the Evidence Act are to the effect that:

“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

43. The standard of proof in proceedings of this nature is on a balance of probabilities, as stated by the Court of Appeal in Daniel Kibet Mutai & 9 Others v Attorney General (2019) eKLR. The Court of Appeal in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, stated concerning the degree of proof  that:

“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say; - “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal, it is not.

This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

44. In the case of Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated concerning the burden of proof that: -

“And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities.  In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue.  It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

45.  With respect to the 1st Respondent the Petitioner averred that:

“On or about January, 2016, the 1st Respondent used excessive force and malice in viciously beating the child with her bare hands and pinched him with her finger nail, on the inner arm breaking his skin hence causing the minor a lot of pain, bruises bleeding and harm.

The child stayed out of class for 3 days because of the injuries and trauma sustained. He lost the use of the hand for two days and could not write or play with it.

In an attempt of settling the issue, the 1st respondent offered to pay Kes. 8,600 (eight thousand six hundred shillings) as compensation and wrote an apology letter to the child’s mother admitting that he assaulted the child”(sic)

46. The Petitioner supported her allegations by way of her affidavit and annexures, as allowed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly known as the Mutunga Rules). The procedure for hearing of constitutional petitions for violation of Fundamental Rights and Freedoms is provided under the  Mutunga Rules and  Rule 20 thereof provides as follows:

“(1) The hearing of the petition shall, unless the Court otherwise directs, be by way of—

(a) affidavits.

(b)  written submissions; or

(c)  oral evidence.

(2) The Court may limit the time for oral submissions by the parties.

(3) The Court may upon application or on its own motion direct that the petition or part thereof be heard by oral evidence.

(4) The Court may on its own motion, examine any witness or call and examine or recall any witness if the Court is of the opinion that the evidence is likely to assist the court to arrive at a decision”.

47.  In Daniel Kibet Mutai’s case (supra) the Court of appeal held that under the above Rule, “affidavit evidence is provided for on the same pedestal as oral evidence”.  That said, it is trite that the rules of evidence apply equally to both kinds of evidence and the Rule above in no way supplants the rules of Evidence as codified in the Evidence Act. Concerning the alleged initial assault, the Petitioner heavily relied on the annexure CN-5 being an apology letter authored by the 1st Respondent in respect of punishment of the minor. On her part, the 1st Respondent though admitting the said letter categorically denied that it was an admission of the alleged assault, which she denied, and pointed out that there was no indication in the letter that she administered corporal punishment on the minor.

48. Regarding the circumstances leading to the letter,  the 1st Respondent deposed  that on the material date, she had assigned the minor the task of cleaning his class as punishment after the minor failed to complete an assignment given in class; that  the Petitioner thereafter approached her accusing  her of acting maliciously towards the minor and subjecting him to psychological trauma for which he allegedly received psychological counselling,  and demanded refund of the costs thereof; that the 1st Respondent  did not offer or make any payment to the Petitioner as asserted;  but to facilitate  closure of the matter,  she  had offered to write an apology letter as an act of good faith intended to foster good teacher/pupil  relations and  not as an admission of the alleged assault.

49. The court has reviewed the rival evidence concerning the alleged assault of the minor by the 1st Respondent on an unstated date “about January 2016”. First, the Petitioner did not witness the alleged assault, and her narration of the actual happenings on the day in question is second- hand, therefore hearsay evidence, pursuant to Section 62 of the Evidence Act.  She deposes in her affidavit that at the time, the 1st Respondent had used “excessive force and malice in beating the child with her bare hands and pinched him with her fingers and nails, on the inner arm breaking skin hence causing the minor a lot of pain, bruises and bleeding”. As the Petitioner was not an eyewitness to the alleged assault, this description of the assault could only have come from the minor or other eyewitness.

50. The minor himself did not record any statement concerning the assault and the Petitioner’s affidavit does not expressly state that the minor was the source of the details of any incident described by her.  Secondly, while the Petitioner asserts that the minor missed school for 3 days owing to the injuries and trauma and could not use his hand (specific hand not identified) for two days, no medical report or even photograph was tendered to demonstrate the alleged injuries. Yet, the incident described, and resultant injuries appear serious enough to have warranted medical attention.

51. The Petitioner has instead relied heavily on the apology letter by the 1st Respondent marked as annexure CN 5, in proof of the alleged assault.  The court has closely examined the said letter, dated 18th February, 2016 (and not January, the month of the alleged assault). It reads in part:

“Dear Madam,

RE: APOLOGY FOR PUNISHING PK

I am realy sorry for what I did to your boy on Monday afternoon, and I realy regret for that.  I didn’t have an intention of hurting him.

I sincerely from my heart apologise for not handling the issue correctly.  I know as a parent you were hurt by that.  I also feel it. It’s always my wish to have a good teacher pupil relationship.  I talked to the boy yesterday and I believe I made my things right with him.  I promise not to repeat that in future.

I also apologize for making you leave your important duties just because of me.

Please forgive me. I will be happy to have a good relationship with you in future.

Yours faithfully

Signed

Tr. Emily Kulola.”

52. This letter at best indicates that an incident had occurred in February, 2016 between the 1st Respondent and the minor which involved punishment of the minor and for which the teacher was apologizing. The use of the words “punishing” or “hurting him” without more, cannot be read as necessarily implying that the writer is admitting having meted out corporal punishment (i.e the use of physical force on the minor intended to cause pain or discomfort) on the minor, as asserted by the Petitioner. The 1st Respondent’s narration of the incident in her affidavit is that she had assigned the child to clean the class as punishment for not completing his class assignment.  This narrative is not controverted by any direct evidence by the minor or other eyewitness. In the absence of medical evidence or even photographs, it would be stretching the purport of the apology letter to conclude that it proves the alleged assault and injuries inflicted on the minor in January, 2016 by the 1st Respondent.

53.  Further, this letter does not contain any offer by the 1st Respondent to pay compensation in the sum of Shs. 8600/- to the Petitioner as the latter  alleges at paragraph 6 of her affidavit. The deposition is contested by the 1st Respondent who states that it is the Petitioner who demanded from her the refund of monies the Petitioner claimed to have paid as counselling fees for the minor. In absence of credible evidence controverting the 1st Respondent’s account of the incident, it is believable that the apology letter, as the 1st Respondent explained, was written with intent to foster a good relationship between pupil and teacher and to bring closure of the discipline incident.  In my view, the apology letter is a poor substitute for tangible and cogent evidence of assault and by itself does not shore up the Petitioner’s allegations.

54. Moreover, the alleged subsequent events as narrated in paragraphs 8 – 12 of the affidavit of the Petitioner serve to create doubt as to occurrence of the alleged first assault, and to reduce the probative value of the apology letter. In the said paragraphs, the Petitioner describes the alleged mockery and indifferent response by the 3rd Respondent (denied by the said Respondent) concerning her assault complaint against the 1st Respondent.  In effect, the said 3rd Respondent allegedly indirectly warned her, implying that the child would be victimized because the teacher “had paid the cost”, and that the teachers would protect their own by ganging up against the child.  She depones further that thereafter, the child “started bedwetting, being jumpy and withdrawn and often sickly” as he was allegedly subjected to daily beatings sometimes by several teachers.

55. The question arising from these depositions is why the Petitioner who presented herself as an involved parent and professional doctor, and therefore aware of the child’s rights and consequences of the cruel treatment alleged, would allow such a grave situation to persist, fail to report to authorities, and retain her child in the same school under the care of alleged cruel teachers for a whole year between 2016 and 2017.  As her action after the second alleged assault incident shows, she was aware of the right to engage the criminal law process.

56. Not only is there no evidence to support the alleged first and other subsequent beatings or assaults on the minor, but also the 3rd Respondent has strongly denied that the incidents described in the affidavit of the Petitioner happened. He correctly pointed out that the claims of alleged persistent assaults on the child over a period of a year, were not particularized but couched in vague terms, and asserted that none of these alleged incidents were reported to the Board or his office by the Petitioner during her routine school visits, or at all.

57. What is more, the child’s performance as captured in the child’s academic reports (annexure CN 2) for class 3 (in 2016) and class 4 (2017) appear inconsistent with the Petitioner’s claims, showing as they do that, he was performing relatively well in the material period. This is certainly not the profile expected of a child subjected to repeated acts of assault and mistreatment in the same period, at the hands of his teachers.

58. The second alleged assault, also stridently denied by the 2nd Respondent, is said to have occurred on 14th March, 2017, as pleaded and deposed in the petition and affidavit, respectively.  Again, the child’s own account or account of an eyewitness of the incident is excluded, the Petitioner relying on her own depositions regarding the incident, in which she swears that the minor was assaulted with a rubber pipe by the 2nd Respondent. The physical injuries allegedly sustained in that assault were listed as:

“a. Bruises with erythema and ecchymoses on both thighs with tenderness.

b. Wheezing, difficulty in breathing, inspiratory stridor.

c. Suffered anxiety and tachypnea.”

59.   Going by his date of birth in the copy of birth certificate exhibited in the petition, the minor was almost 10 years old in 2016 and was 11 years old in 2017.  At the time of the filing of the petition the minor was at least 12 years old, and not 10 years old as asserted in the petition. The minor, according to evidence adduced on both sides was, despite his health challenges a normal child attending regular school and doing relatively well in his studies. Though a child of tender years at the material time, the said minor was potentially a competent witness under the Evidence Act. The officers at Kirwara Police Station to whom the alleged second assault was reported must have recorded a statement from the minor concerning the incident of 14/03/2017 prior to opening criminal charges against the 2nd Respondent. Neither that statement nor any account by the minor or other eyewitness regarding the incident in question has been placed before this court.

60.  Once more the Petitioner, who was evidently not in school on the material date, supplies her own vivid but hearsay account of the assault by stating in her affidavit that:

“On 14th March 2017, the child was again badly beaten and assaulted this time round by another teacher,the 2nd Respondent herein using a rubber pipe causing bruises and serious bleeding under the skin just because he delayed submitting his English book during beak time because he had gone to take tea….

This indeed was excessive brutal and vicious a way to discipline a student.  Following this incident, I took the boy to M. P. Shah Hospital where he was admitted for a period of one week.  I reported at Kirwara Police Station on 14th March, 2017 where a report was drawn and a P3 to that effect with details of the injuries”. (sic)

61. The Petitioner proceeds to state that consequently, the child missed school between 9th March 2017 and 14th March, 2017 while admitted at M. P. Shah Hospital, and had been earlier admitted at Gertrude’s Children’s Hospital Muthaiga between 28th February 2017 and 4th March, 2017.

62. According to the Petitioner’s averments in the petition and depositions in the supporting affidavit, the second alleged assault occurred on 14th March 2017 and was reported on the same date to police. However, the two invoices from M. P. Shah Hospital annexed to her affidavit as annexure CN8are dated 9th March 2017, while the credit voucher for the sum of Kshs. 148,481. 00 attached thereto is dated 14th March 2017. However, the copy of the Police Investigation Diary marked annexure CN6B indicates that the Petitioner’s  report to police on 14th March 2017 was that the assault occurred on 9th March 2017.

63. Moreover, the discharge summary from Gertrude Children’s Hospital (Part of annexure CN9) indicates hospitalization of the minor between 28th March, (not February) 2017 and 4th April (not March) 2017, which period is after the alleged second assault and not before as the Petitioner swore in her affidavit. The diagnosis reflected in that discharge summary is “pneumonia, organism unspecific severe pneumonia, partially controlled asthma, chronic rhinitis nasopharyngitis, and pharyngitis.”

64. Not only do the dates of admission contained therein differ with those at paragraph 19(b) of the Petitioner’s affidavit but also the diagnosis and treatment appear unrelated to the alleged beatings.  Equally, there is no indication that while admitted at Gertrude’s, the minor underwent psychotherapy as claimed in the Petitioner’s affidavit.

65. Concerning the minor’s admission at MP Shah Hospital said to have been necessitated by the assault on 14th March, 2017, two discharge summaries are presented in the bundle marked annexure CN9.  It strikes the Court as unusual and remarkable that two separate discharge summaries could issue from the same hospital, on the same date, in respect of the same patient, the same treatment, by the same doctors and in more or less the same period of admission, but significantly vary on the narration of the patient’s clinical summary.

66.  The first discharge summary signed by Dr. Judy Kamau bears the registration no. 10244792 and is serialized as no. 34. It indicates that the minor’s admission in ward 5 commenced on 10th March 2017 and that he was he discharged on 14th March 2017.  The diagnosis is stated to include rhinitis, asthma, ADHD while  the clinical summary states:

“Presented with a 2-day history of cough and noisy stridor.  Also noted to have behavioral problems in school with psychological consequences – bed wetting”.

67. There is no mention in the summary of any physical injuries observed on the child and the child’s treatment indicated to have been under doctors Wachira, Kioni and Kamau involved antibiotics, nebulization, psychotherapy, and behavioral intervention. Surely M.P Shah Hospital could not have missed the serious injuries allegedly inflicted upon the minor before the admission, according to the Petitioner.  Significantly, these records appear inconsistent with the Petitioner’s asserted date of assault.  Because, if the child was in hospital on 14th March 2017, the alleged assault could not have happened at school on the same date.

68. The second discharge summary alleged to be from M.P. Shah Hospital and supposedly signed by Dr. John Wachira is serialized as no. 35. It reflects admission of the minor in paedtriatic ward on 9th March 2017 (not 10th March 2017 as stated in previous summary) for asthma, inspiration stridor, atopic rhinitis, “refractive error” and anxiety disorder,  under the care of Drs. Wachira, Kioni, Kamau and A.Sha(sic). The minor was according to this document discharged on 14th March 2017. The said discharge summary, unlike the previous one has no registration number.  In the space reserved for notes on clinical summary the document indicates wheezing, inspiration stridor and “Resp-Tachypnea” but adds that “On admission had bruises/echymosis.... on both thighs”.(sic)

69. As for the treatment, the summary indicates the same treatment as recorded in the previous summary as well as psychosocial assessment.   The summary bears what is supposedly the signature of Dr. Wachira, essentially a long squiggle. Both summaries are dated 14th March, 2017.

70. On the other hand, as earlier noted, the copy of the Police Investigation Diary (CN6B) indicates that the alleged assault was reported on 14/03/2017 and said to have happened on 9/03/2017. Notwithstanding the discrepancy in the date of the alleged assault, it is the opinion of the Court that, if indeed the minor’s admission at M.P Shah on 10th or 9th March, 2017 was related to the said assault as alleged by the Petitioner, the severe injures described in the Petitioner’s affidavit ought to feature prominently in the entries of both discharge summaries.   That is if both summaries are genuine.

71. In my considered view however, a scrutiny of the entries in the second summary, reveals what appear to be hallmarks of a “doctored” and apparently false document, and in the absence of an explanation for the issuance of two differing discharge summaries concerning the same patient, and given the discrepancies in the clinical summaries concerning  the date of admission and diagnosis therein, both summaries are put to question. They appear unreliable.

72. Returning now to annexure CN6B, it states in the last paragraph that the minor was “bed ridden at MP Shah since Thursday until today when he was discharged”.  The cause as stated elsewhere on the document is that the mother “came from work and found his son was seriously sick, reason being he was assaulted at his thighs by his teacher namely teacher ANN, the reportee’s son has a complication of Asthmatic condition and his body swells when beaten.” (sic)

73. The General Medical History section of the Police P3 Form (annexureCN6A) apparently completed on 27/04/2017 borrows heavily from second discharge summary of the  M.P.Shah Hospital concerning the diagnosis and clinical summary.   In the section reserved for completion by the examining doctor, the P3 Form indicates at the section labelled “Lower limbs:”,the presence of“SCATTERED AREAS OF BRUISING WITH ERYTHEMA ON THIGHS BILATERALLY ASSOCIATED TENDERNESS”. And additionally gives the approximate age of injuries as “HOURS”, which is obviously incorrect, the Form having been completed about one and a half months since the date of the alleged assault, the 17th March 2017. The degree of injuries is assessed as harm.

74. Pausing there, is it believable or possible that on 27/04/2017 the police doctor could have observed scattered bruising on thighs that still elicited pain in the minor, but that the doctors who had treated the minor between 28/03/2017 and 4/04/2017 at Gertrude’s Children’s Hospital(per annexure CN9) missed these supposedly already present injuries? And instead diagnosed him for pneumonia, asthma, and rhinitis, and upon physical examination noted only that the minor was “sick looking, marked reduced air entry bilateral esp. right-side inspiratory stridor, creps/rhonci”? (sic)It appears unlikely.

75.  Attached to the Petitioner’s affidavit is the general medical report prepared in October 2017 at Gertrude’s Children’s Hospital, evidently from the minor’s medical records therein,  showing the minor’s “tumultuous” medical history since birth. This report makes no reference to any treatment for injuries sustained in an assault in March 2017 or at all.Clearly, the Police P3 Form, like the second discharge summary attributed to M.P. Shah Hospital appears questionable. Suffice to say that the P3 Form completed on 27/04/2016 appears to further compound the dissonance between the Petitioner’s assertions on the alleged assault and medical evidence relied on.

76. The Court is of the view that taken separately and together these medical reports are inherently incoherent and inconsistent with and do not support the Petitioner’s claims of assault of the minor on 14/03/2017 or at all. And which assault is vigorously disputed by the 2nd Respondent.  I venture to add that even if these records were consistent with the claims of assault, no credible evidence was adduced before the court to create a nexus between any such injuries and the 2nd Respondent.

77. The Petitioner cannot rely on the preference by the state, of criminal charges against the 2nd Respondent, which charges are now said to have been withdrawn under Section 87 (a) of the Criminal Procedure Code, as proof of her case, because the 2nd Respondent is entitled to the presumption of innocence under Article 50 of the Constitution. There is uncontroverted evidence that the Petitioner and minor had on several   occasions absented themselves when summoned to testify against the 2nd Respondent and possibly, his led to the withdrawal of charges.

78. In my opinion, this is a case where given the serious factual disputation, the minor’s or other eyewitness evidence and consistent medical evidence were sorely needed. In supporting her case, the Petitioner has heavily relied on the case ofW. J. and another v. Astarikoh and others (supra). In that case, the Court of Appeal confirmed that “the minors’ statements and those of their guardians, with respect to the events that took place on 4th July 2010 in the 3rd Respondent’s house, and in the classroom on 30th July 2010 were consistent enough to draw a conclusion of culpability based on the test of balance of probabilities”.

79. In other words, the alleged sexual assault on the victim in that case were found proven on a balance of probabilities. In this instance, it is true for both alleged incidents of assault that the minor’s statements are not on record, the Petitioner opting to rely on her own narration of events she did not witness and on a mere letter of apology and discordant medical records.

80. The 1st and 2nd Respondents have vigorously denied the assault claims made against them, and challenged the Petitioner’s medical evidence. They were teachers of the minor and present in school on the dates of the alleged assault incidents.  Their denials are supported by the 3rd Respondent who is the Head Teacher. In my considered view, the Petitioner’s evidence concerning the assaults is riddled with grave inconsistencies that strongly suggest that the Respondents’ denials may be true.  Further, the court is inclined to agree with the Respondents’ assertions that the primary and real reason for the admission of the minor in two hospitals in March 2017 was his apparent congenital medical condition which had nothing to do with any incident of assault.

81.   The court is not without sympathy for the Petitioner and the minor on account of the latter’s complicated medical condition. However, the Court is obligated to base its decisions on evidence and the law, and in this instance, the Petitioner has failed to discharge the burden of proof on a balance of probabilities. For that reason, the petition must fail.

82. In concluding, the Court notes that even if the Petitioner had succeeded in making her case against the 1st to 4th Respondents, the case of WJ and Another on which she relied is distinguishable from this case so far as the liability of 5th Respondent is concerned.  Because in that case, unlike herein, the teacher involved was an employee of the 5th Respondent and his victims were pupils in a public school run by a Board appointed by the Government. In this case it is doubtful that vicarious liability could be imputed upon the Commission for wrongful acts of teachers employed by a private school.

83. There being no dispute in the W.J and Another case that the errant teacher was employed by the Commission and the Court of Appeal said concerning vicarious liability that:

“Wenow turn to the main issue under contention, whether the TSC was vicariously liable for the unlawful acts by the Teacher. The appellant’s argument is that the learned Judge misapplied the Salmon Test which has prevailed for almost a century as the yardstick for determining acts committed in the ‘course of employment’. Salmond on Torts, 1st ed. Pg 83 states:

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.”

The primary function of the ‘course of employment’ requirement is to ensure that the employee’s tort is sufficiently linked to the employer’s enterprise, so as to justify the imposition of liability on the employer. It thus limits the responsibility of the employer to acts committed by the employee, acting in their employment capacity, and excludes those related to personal or private life.

84. Pursuant to the provisions of the Basic Education Act, and the Teachers Service Commission Act, it is difficult to see how the 5th Respondent could be held vicariously liable for the actions of the 1st, 2nd and 3rd Respondents who were not its employees but merely teachers registered by the Commission. Neither sufficient linkage was established between the 1st to 3rd Respondents and the Commission in this instance as to impute vicarious liability on the latter, nor evidence tendered in that regard in proof of dereliction of duty by the 5th Respondent concerning its mandate and functions under the Constitution and section 11 of the Teacher Service Commission Act.

85. Indeed, it was common ground that the Commission had crafted policies, Regulations encompassing a code of conduct for teachers and issued a circular to schools regarding the prohibition of corporal punishment in schools, pursuant to section 36 of the Basic Education Act. Moreover, none of the assault incidents alleged by the Petitioner had been reported to the Commission for investigation or action.

86. Further, the Commission’s role in the discipline of registered but privately employed teachers is circumscribed by section 33 of the Teachers Service Commission which provides that:

“(1) The Commission may, subject to the regulations made under this Act, take disciplinary action against any person registered as a teacher under this Act.  (2) Subject to subsection (1), the discipline of teachers not in the employment of the Commission shall be limited to offences leading to removal from the register of teachers.”

87. That said, no liability can attach against any of the Respondents herein as the factual basis upon which the petition was premised has not been established. In the circumstances, the court hereby dismisses the petition.

88. Ordinarily, costs follow the event. The 1st ,2nd,3rd, and 4th Respondents are all private persons who have had to shoulder the burden of legal fees and other costs after being needlessly dragged to Court by the Petitioner. While there might possibly have been some public interest element intended to be vindicated through this litigation had a factual basis been established, such litigation ought not to be at the expense of these Respondents.

89.  Equally, the 5th Respondent though a public body, is funded from the Exchequer at the taxpayers’ cost. As I have sought to demonstrate in this judgment, this petition appears to have been misadventure ab initio and therefore, it would be especially unjust for this Court, having dismissed it, to deny costs to the 1st, 2nd, 3rd, and 4th Respondents.   In the circumstances, while directing that the 5th Respondent bears its own costs, the Court will nevertheless award the costs of the petition to the 1st,2nd, 3rd, and 4th Respondents as against the Petitioner. It is so ordered.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF MARCH 2022.

C. MEOLI

JUDGE

In the presence of:

For the Petitioner: Mr. Chigiti

For the 1st and 2nd Respondents: N/A

For the 3rd and 4th Respondents: N/A

For the 5th Respondent: N/A

Court Assistant: Carol