KIPKOECH KANGOGO & 98 others v BOARD OF GOVERNORS & 2 others [2009] KEHC 694 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Petition 306 of 2008

IN THE MATTER OF SECTION 84(1) OF THE CONSTITUTION

IN THE MATTER OF ALLEGEED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 70 AND 75(1) & (2) OF THE CONSTITUTION

AND

IN THE MATTER OF THE EDUCATION ACT CHAPTER 211 LAWS OF KENYA

AND

IN THE MATTER OF THE TEACHERS SERVICE COMMISSION ACT CHAPTER 212 LAWS OF KENYA

IN THE MATTER OF SACHO HIGH SCHOOL

BETWEEN

1.     KIPKOECH KANGOG0

2.     ERIC TOROITICH

3.     ANDDREW C. KANGOR

4.     MICHAEL TOROITICH

5.     STEPHEN TOROITICH

6.     KIDOGEO KAGOGO

7.     KIPINYAGAN TOROITICH

8.     CHELIMO CHEPYATOR

9.     DAVID NGENO

10.    STEPHEN KOSGEI

11.    RENOS CHEROGONYI

12.    ZAPHANIA NGENO

13.    MICHAEL K. KIPROP

14.    MOROP CHELIMO

15.    STEPHEN G. KEBUT

16.    JACKSON K. KIBOGOGE

17.    REUGEN CHEBOR

18.    SAMSON TOROITICH

19.    CHARLES K. NGENO

20.    WESLEY K. KIPSANG

21.    EVANS K. LIMO

22.    JOSEPHAT K. NGENO

23.    JOHN K. KIPSANG

24.    DANIEL K. KEITANY

25.    ALRED K. KEITANY

26.    RICHARD KIPKOECH

27.    WILLY K. KONG’A

28.    KEMBOI J. KONG’A

29.    KIPYATOR CHEKONG’A

30.    NOEL K. JACKSON

31.    DANIEL K. KOECH

32.    BRIAN K. KONG’A

33.    PAUL K. KIPROTICH

34.    JACOB K. KIPRONO

35.    DANSON C. KANDAGOR

36.    CHERUTICH KIPTIM

37.    DICKSON KIPTIM

38.    KIPSOI KIPTIM

39.    KIPYEGON KIPTIM

40.    JAMES KIPLIMO

41.    MOSES KIPTARUS

42.    WILLIAM CHERUTICH

43.    WILSON CHERUTICH

44.    DAVID CHERUTICH

45.    WILSON KIPKOECH

46.    JOHN KIPKOECH

47.    JONATHAN KIPKOECH

48.    KIBOR CHELIMO

49.    EVANS CHELIMO

50.    KOPNGENO KIARUS

51.    SAMUEL KEITANY

52.    KIPCHUMBA KEITANY

53.    RICHARD KEITANY

54.    CHERUTICH KEITANY

55.    KIPTUI KEITANY

56.    REUBEN KEITANY

57.    LUKA KEITNAY

58.    KIPYEGON KIPNYAGAN

59.    KIMUTAI KIPSOI

60.    WILLIAM KIPSOI

61.    PHILIP KIPSOI

62.    CHERUTICH KIDOGO

63.    KIPYGEN KIDOGO

64.    MUSA KIDOGO

65.    MUSA K. KIPSAMBU

66.    SERECH S. NIXON

67.    SERECH K. HOSEA

68.    BENARD K. KOECH

69.    KANDIE CHEPYEGON

70.    WILLIAM K. KIPYEGON

71.    CHELIMO KIPYEGON

72.    DANIEL LIMO

73.    SOLOMON K. TUITOEK

74.    TUITOEK KIPYEGON

75.    DICKSON K. YATICH

76.    DAVID K. CHELIMO

77.    KENGOR CHEPYATOR

78.    CHARLES K. CHELIMO

79.    SYMON T. CHELIMO

80.    JAMES K. KANGOR

81.    DICKSON K. KANGOR

82.    HILARY K. LIMO

83.    LABAN K. LIMO

84.    KIPKOECH KANGOGO

85.    EDWIN K. CHELANGAT

86.    RICHARD CHELIMO

87.    SAMSON K. KIBOSA

88.    KIPLAGAT KIRUI

89.    RONGUMOI TILILEI

90.    WILSON TALLAM

91.    JOHN CHEBET

92.    ISAAC KIPYEGON

93.    ISAAC K. ROTICH

94.    RUTOH JOEL

95.    MARY CHEMOBO

96.    ISAAC KIBET

97.    FRNACIS KOIMA

98.    WYLCIFFE MATINI

99.    EMMAUEL K. MUTAI................................................PETITIONERS

AND

THE BOARD OF GOVERNORS

SACHO HIGHT SCHOOL..............................................1ST RESPONDENT

THE MINISTERS FOR EDUCATION..............................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..................3RD RESPONDENT

RULING

Before us is the application dated 8/8/08 which is brought pursuant to S 3A of the Civil Procedure Act, and Order 1 Rule 10 (2), R. 13 and 22 of the Civil Procedure Rules.  The petitioners Kipkoech Kangogo and 98 others, seek the leave of this court to enjoin Daniel Toroitich Arap Moi, Jonathan Kipkemboi Moi and Joshua Kulei as parties to this suit in their own capacity and being the Registered Trustees of Sacho High School Trust.  The Applicants also pray for any other order that the court deems fit to grant.  The application is founded on grounds found in the body of the application and the affidavit of Michael Toroitich dated 8/8/08.  The application was opposed and Harun Bomett, who describes himself as a trustee of Sacho High school, filed an affidavit dated 16/6/09.  Mr Kipkogei, counsel for the 2nd and 3rd Respondents also opposed the chamber summons by adopting submissions of the 1st Respondent’s counsel Mr. Kiplenge.   He also filed grounds of objection dated 20/7/09.

This petition was filed by 99 petitioners who claim that their fundamental rights under Ss 70, 75 (1) and (2) of the Constitution have been contravened by the Board of Governors, Sacho High School,  The Minister of Education and the Hon. The Attorney General and they seek several declarations inter alia, that their rights to property over Sacho High School and its assets have been breached.  The petitioners claim to be the original owners of the parcel of land upon which the school stands but that the land was compulsorily acquired by the Trustees of the school without any compensation.  That it is therefore necessary to enjoin the Trustees of the school to the petition for better determination of all the issues in this petition.  The petitioners contend that they came to learn of the existence of the Trust and the Registered Trustees when Messrs Kiplenge Advocate, Counsel for the 1st Respondent filed the Replying affidavit to the petition, sworn by Richard Cherutich Moindi on 4/6/08 and the annextures which included the Trust deed.  That it is the Trustees who manage the school’s property and it is therefore necessary to enjoin them to the suit.  That the Respondents will not suffer any prejudice.  In addition, Mr. Letangule counsel,  for the Petitioners urged that they had not been in possession of this information until Richard Toroitich Moindi, the Headmaster of the school filed the replying affidavit dated 4/6/08 in which he deponed that the school records show that the school is owned by the Registered Trustees of Sacho High School and exhibited a copy of the Trust Deed dated 17/7/1985 (‘RCMI’).  Counsel further said that the preamble of the Trust Deed shows that it is an irrevocable charitable Trust. That a trust is a Corporate body capable of suing and being sued and since the petitioners have become aware of the Trustees, it is only fair that they be allowed to enjoin the trustees.  As regards the objection to the provisions of law under which the petitioners have come to court, counsel urged that the court can even on its own motion order joinder of a party if it deems it necessary to do so.  That the deponements by Mr. Bomett that the Trustees have changed is a new development that should have been confirmed by some documentary evidence.

Mr. Kiplenge opposed the application on behalf of the 1st Respondent.  Counsel urged that the application is incompetent having been brought as a chamber summons instead of a notice of motion.  That order 1 of the Civil Procedure Rules does not apply to Constitutional applications.  That order 1 R 10 applies to a suit but what is before the court is a petition and that the same should be struck out.  As regards the merits of the application, counsel submitted that records have changed and it is Silas Yego, Henry Kiplangat and Bomet who are now trustees.  He submitted that President Moi registered an irrevocable Trust and appointed Trustees in July 1995.  That Article 8 allowed the Board of Governors of the School to appoint and remove Trustees.  That if trustees are enjoined, they will increase the costs of this petition and the application should be rejected.

Mr. Kipkogei opposed the application on grounds that it is incompetent as it was not brought under the Rules promulgated under S 84 of the Costitution.  That a certificate of registration of the school was exhibited at pg. 102 of the petition and shows the manager of the school to be the Board of Governor and that it is a requirement under the Education Act that the Board of Governors (BOG) be the manager.  That S 10 (2) of the Act provides that the Board is a body corporate capable of suing and  being sued.  That all the issues raised can be answered by the B.O.G otherwise it will be a muddle if all persons are enjoined.

The petitioners came to this court seeking enforcement of their rights under the Constitutional provisions.  It is trite law and there is ample case law that has held that it is the Government that guarantees fundamental rights of individuals but not individuals or private entities.  In  the case of TEITWINANG V ARIONG (1987) LRC (CONSTITUTION)517 which was adopted in the Case of KENYA BUS SERVICES V AG (2005) IKLR AND MARTHA KARUA V RADIO AFRICA T/a Kiss FM.  Maxwell C.J held as follows:

“Dealing now with the question can a private individual maintain an action for declaration against another private individual or individual or individuals for breach of the fundamental rights provisions of the Constitution.  The rights and duties of individuals and between individuals are regulated by private law.  The Constitution on the other hand is an instrument of Government.  It contains rules about the Government of the country.  It is my view therefore that the duties imposed by the Constitution under the fundamental rights provisions are owed by the Government of the day to the governed.  I am of the opinion that an individual or a group of individuals as in this case, cannot owe a duty under the fundamental rights provisions to another individual so as to give rise to an action against the individual or a group of individuals since no duty can be owed by an individual or group of individuals to another or individuals under the fundamental rights provisions of the Constitution, no action for a declaration that there has been a breach of duty under the provision can be or be maintained in the case before me, and I so hold.”

In our view, it would be futile enjoining the said trustees as Respondents to this petition because the final orders sought can not issue against them.  However, they can be enjoined to this petition as persons interested in the outcome of the case or as persons who may be affected by the court’s orders.

The application has been opposed as having been brought under the wrong provisions of the law.  This  application arises in a petition brought pursuant to the Constitutional provisions and there are indeed Rules made pursuant to S 84 (6) of the Constitution which guide parties who wish to approach this court for reliefs.  The Respondents have not pointed this court to any section or regulation that provides for joinder of parties.  Since the Rules are silent on the issue of amendment, I believe that this court would not fold its hands and declare that it is helpless to assist an aggrieved party who wishes to have a party enjoined.  This court has inherent powers to intervene where the law is silent or when there are no specific statutory provisions to cover a particular situation in order to do justice to the parties.  We do agree that Order 1 of the Civil Procedure Rules may not be applicable to petitions under the Constitutional provisions but this court can exercise its discretion under its inherent powers to do justice.  The right of access to the court under S 84 of the Constitution is a fundamental right and though an amendment is not specifically provided for, a party can not be denied full access to court to have their matter fully articulated and argued on merit to serve the ends of justice which is one of the objectives of the Constitution, that is, to ensure that justice is done.  We have in mind the case of REP V AG ex parte MUITE 2005) IKLR 238 where Nyamu J allowed an amendment of a Constitutional Reference.  He also held that the Constitution pressumes the existence of the law of evidence and the Rules of Civil Procedure in so far as is practicable in the circumstances of the case and the Rules are  in conformity and do not violate specific provisions of the Constitution.  It has not been shown that the joinder of the Trustees will prejudice the Petitioner or that they will violate any provisions of the Constitution.

In the instant case, it is the Respondent who actually mentioned the trustees and exhibited the Trust deed to the replying affidavit of Richard Cherutich Moindi who at para. 4 thereof deponed that Sacho High School is owned by the Registered Trustees of the Sacho High School Trust (RCMI) dated 17/7/1985.  At para. 8 and 9, of the Trust Deed, the Board of Governors is given the mandate to appoint or remove a trustee.  Mr. Bomett has deponed that there are new Trustees namely, Bishop Silas Yego, Mr. Harun Bomett and Henry Kiplang’at.  However,However

HHHHhhhhh there is no evidence that the Trustees named in the replying affidavit of Moindi have been removed.  It would be expected that minutes of the Board of Governors would be availed or some documentation from the Board of Governors to confirm the change in the Trustees.  It is only the Respondents who can avail that evidence and the allegation that there has been a change is not substantiated.  The affidavits of Mr. Moindi and Mr. Bomett are obviously contradictory.

The Trustees being the owners of the school are parties with a direct interest in this matter and its outcome and in our considered view, they should be enjoined to these proceedings as Interested parties.  Mr. Kiplenge had come on record for the Interested parties and had no objection to the trustees named by Mr. Bomett being enjoined.  However since it is not clear whether or not the first trustees have ceased to be such or not, it is only proper that all of them be named as interested parties in this matter.  We hereby allow the application by the petitioner to enjoin Daniel Toroitich Arap Moi, Jonathan Kipkemboi Moi and Joshua Kulei as interested parties to this petition.  The Respondents have not demonstrated what kind of prejudice they will suffer if the orders are granted.  In exercise of the inherent powers of

this court,  we therefore allow prayer 1 of the chamber

summons dated 8/9/08 and direct that costs abide the petition.

Dated and delivered at Nairobi this 25th day of September.

2009.

R.V.P. WENDOH

JUDGE

G. DULU

JUDGE

Delivered in the presence of:

Mr. Letangule for Petitioners

Mr. Kiplenge for 1st Respondent

Mr. Ombwayo for 2nd and 3rd Respondent

Court clerks  - Muturi, David Mutisya