HO (Suing as Next Friend of PO (Minor) v Peter Obwogo & 3 others [2019] KECA 23 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed schools may lawfully expel students for indiscipline without breaching constitutional rights, if fair procedures are followed and other schooling is available.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant proved a violation of his or P's constitutional rights under Articles 27, 28, 43(1)(f) and 53 of the Constitution
- 2.Whether P was discriminated against in the disciplinary process and expulsion compared to other similarly situated students
- 3.Whether the appellant's failure to attend the meeting convened for P's conditional re-admission defeated the claim of interference with P's right to basic education
Key legal issues
#Whether P was discriminated against in the disciplinary process contrary to Article 27
No discrimination was established; P was subjected to the same disciplinary process and the same sanction as other students who sneaked out of school.
The court evaluated the record and found P was expelled together with other students who admitted sneaking out, following a disciplinary committee process documented in minutes annexed to the respondent's affidavit. The alleged discrepancy in the date the minutes were confirmed was probably an error. Without cogent grounds showing differential treatment, the trial court's finding on non-discrimination could not be disturbed.
Whether P's right to basic education under Article 53(1)(b) and his best interests under Article 53(2) were violated
No violation: expulsion was a lawful disciplinary measure under section 35 of the Basic Education Act, P was admitted to a different institution, and the appellant himself failed to attend the meeting for conditional re-admission.
The court held that boards of management may discipline students including by expulsion if done without violating the child's rights, per sections 35 and 59 of the Basic Education Act. The County Education Board directed conditional re-admission and a meeting was convened, but the appellant did not attend and sent a representative who left. The appellant therefore could not claim P's access to basic education was interfered with.
The role of the first appellate court in re-hearing a constitutional petition
The appellate court must rehear the petition, make its own independent conclusions and give its own reasons.
The court invoked its duty as a first appellate court to re-evaluate the evidence and reach independent conclusions, relying on James Kanyiita Nderitu v Attorney General. On such re-evaluation the petition was found to lack merit and its dismissal by the High Court was proper.
Legal principles established
#- A litigant alleging discrimination must demonstrate differential treatment on some ground, whether or not listed in Article 27(4), and the listed grounds are not exhaustive.
- Expulsion of a student, carried out through a lawful disciplinary process that respects the child's rights, is not of itself a bar to the student's right to basic education.
- Boards of management of basic education institutions have statutory power under the Basic Education Act to determine student discipline cases and report decisions to the County Education Board.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear his/its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Okwengu, JA wrote a short concurring judgment stating full agreement with the draft judgment of Mohammed, JA, noting delivery in accordance with Rule 32(3) of the Court of Appeal Rules as Githinji, JA had retired.
I have read the draft Judgment of my sister Mohammed, JA. The facts relating to this appeal are well captured in the Judgment. I fully concur with the reasoning of my sister Judge.p. 5
- On appeal from
- High Court of Kenya at Kitale
- High Court Petition No 15 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court sitting to enforce the Bill of Rights under Article 23 of the Constitution
Relief refused
#Declarations of violation of Articles 27, 28, 43(1)(f) and 53 and a declaration that the 1st respondent is unfit to hold public office
The petition lacked merit; no violation of rights was established on re-evaluation of the evidence
General and exemplary damages
No constitutional breach was proved, so no remedy under Article 23 was available
Costs
Each party bears his/its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, on my re-evaluation of the evidence, I find that the appellant’s petition lacked merit and was properly dismissed. Accordingly, I find no merit in this appeal and would dismiss it with an order that each party bears his/its own costs. It is so ordered.
The expulsion of a student is not of itself a bar to the student’s right to basic education.
The clear message flowing from the constitutional text is that rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State.
A purposive interpretation of the grounds listed in Article 27(4) is to the effect that they are not exhaustive.
In the absence of any cogent grounds upon which the appellant alleges that P was discriminated against, or was subjected to different treatment from the other students, I am unable to differ with the trial court that P was not discriminated against.
Issues in the judgment
#The judgment header lists a coram of three judges (Githinji, Okwengu & J. Mohammed, JJ.A), but the concurring judgment records that the judgment was delivered under Rule 32(3) because Githinji, JA had retired before delivery; the panel effectively deciding was two judges.
The judgment alternates between first-person singular and plural when describing the court's conclusions, and there is a date discrepancy concerning the confirmation of the Board's minutes (confirmed 28th January 2014 for a meeting held 30th October 2014), which the court itself treated as probable error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HO (Suing as Next Friend of PO (Minor) v Peter Obwogo & 3 others [2019] KECA 23 (KLR)", Case Analysis (2019). Civil Appeal No 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/23/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.