Paul Kiprono Chepkwony v The Attorney General of the Republic of Kenya

Application No. 17 of 2018

East African Court of Justice at Arusha

First Instance Division

M K Mugenyi, PJ; F Ntezilyayo, DPJ; F A Jundu, A Ngiye and C Nyachae, JJ

March 29, 2019

Reported by Faith Wanjiku

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Civil Practice and Procedure-interlocutory injunctions-interim orders- principles governing the granting of interim orders-whether the applicant had proven a prima facie case for grant of interim orders against the alleged violation of the right to education of the students affected by evictions of people from the Mau Forest Complex

Brief Facts:

The applicant was the Governor of Kericho County, one of the 47 devolved governments within the Republic of Kenya under the Constitution of Kenya 2010. He however brought the application in his personal capacity and on behalf of the minors whose parents were allegedly evicted from areas within the Mau Complex. The Applicant alleged that the respondent through its officers and/ or agents had forcefully evicted civilian population from dwelling places and homes in most insensitive, cruel, horrifying, degrading, traumatizing and inhumane manner, and that that was done without due processes of the law and in violation of the principles of the rule of law and good governance enshrined in the Treaty. The applicant sought interim orders against the Attorney General of the Republic of Kenya.

Issue:

i    Whether the applicant had proven a prima facie case for grant of interim orders against the alleged violation of the right to education of the students affected by evictions of people from the Mau Forest Complex.

Relevant Provisions of the Law

The Treaty for the Establishment of the East African Community, 1999(Amended on 14th December, 2006 and on 20th August, 2007)

Article 6-Fundamental Principles of the Community

The fundamental principles that shall govern the achievement of the objectives of theCommunity by the Partner States shall include: good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

Article 7-Operational Principles of the Community

The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.

Article 30-Reference by Legal and Natural Persons

1. Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.

Constitution of Kenya, 2010

Article 53-Children

(1) Every child has the right—

(b) to free and compulsory basic education;

Held:

1. Principles governing the granting of interim orders had been set out as follows: First, an applicant had to show a prima facie case with a probability of success. Secondly, an interlocutory injunction would not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court was in doubt, it would decide an application on the balance of convenience.
2. There was need for courts faced with an application for an interlocutory injunction to be satisfied that the claim was not frivolous or vexatious but that there was a serious question to be tried, without attempting to resolve conflicts of evidence, as previously required in the determination of a prima facie case with probability of success, as those matters were to be dealt with at trial.
3. The court only needed to be satisfied that there was a serious question to be tried on the merits. The result was that the court was inquired to investigate the merits to a limited extent only. All that needed to be shown was that the claimant’s cause of action had substance and reality. For a serious triable issue to be established, the substantive suit should, on the face of it, without recourse to the merits, disclose a cause of action.
4. Within the context of EAC Community law, a cause of action demonstrating the prevalence of a serious triable issue had been held to exist where the reference raised a legitimate legal question under the Court’s legal regime as spelt out in article 30(1) of the Treaty establishing East African Community (the Treaty); more specifically, where it was the contention therein that the matter complained of violated the national law of a Partner State or infringed any provision of the Treaty. Causes of action before the Court were grounded in parties’ recourse to the Court’s interpretative and enforcement function as encapsulated in article 23(1) of the Treaty, rather than the enforcement of typical common law rights.
5. The gravamen of the applicant’s contention was that the eviction of the population from the Mau Forest Complex which subsequently led to the discontinuation of the pupils’ schooling within the affected area was a violation of the pupils’ fundamental right to education enshrined in article 53 of the Constitution of Kenya, 2010, and thus, a violation of Kenya’s treaty obligations under articles 6(d) and 7(2) of the Treaty.
6. The respondent on its part contended that evictions that occurred did not affect the students’ education and that for the ones that were moved following clashes between communities in the affected areas it had already taken appropriate measures to ensure that each and every affected pupil was in school in accordance with the Kenyan law. The respondent averred that affected students had been transferred to other schools and that it would give evidence of that when arguing the reference. The respondent had pointed out that since section 78 of the Basic Education Act, 2015 made it an offence to run a school without being licensed or accredited and registered, it was not proper that it would be asked to provide school facilities to unregistered or informal schools deemed non-existent under the Kenyan Law.
7. When the applicant was pressed to explain the kind of temporary school facilities which the respondent should be ordered to provide pending the determination of the reference, although he gave some indication to that effect, he seemed to leave the matter of the determination of those facilities to the discretion of the respondent and later on, stated that they were looking for basic infrastructure for the affected pupils.
8. An interlocutory injunction would not normally be granted unless the applicant for it might otherwise suffer irreparable injury which could not be adequately compensated by an award of damages. Where a court was in doubt as to the adequacy of damages to atone the foreseeable injury, it would decide an application on the balance of convenience.
9. The right to education was recognized by the respondent’s Constitution, article 53(1) (b) of which stated that every child had a right to free and compulsory basic education. The International Covenant on Economic, Social and Cultural Rights states in its General Comment No’ 13 stated that the right to education, like all human rights, imposed on states parties the obligations to respect, protect and fulfil.
10. The obligation to respect required states parties to avoid measures that hindered or prevented the enjoyment of the right to education. The obligation to fulfill incorporated both an obligation to facilitate and an obligation to provide while the obligation to protect required states parties to take measures that prevented third parties from interfering with the enjoyment of the right to education. The obligation to fulfill or facilitate required states to take positive measures that enabled and assisted individuals and communities to enjoy the right to education.
11. In the instant case, it was not in dispute that the events that occurred in the area in question did affect the schooling of students from families that had been displaced from their places of residence. The respondent asserted that it had taken measures to enable the affected students sit the KCPE Examinations and continue their education. There was, at most, a temporary interruption of the schooling of the affected students following the impugned events. Given those circumstances, it was debatable whether such an interruption constituted the kind of irreparable injury that could or could not be compensated by damages. Since the application could not be determined on the adequacy of damages to recompense an applicant for possible injury, it was necessary to consider the balance of convenience in the matter.
12. The object of interlocutory injunction was to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection had to be weighed against the corresponding need of defendant to be protected against injury resulting from having been prevented from exercising his own legal rights for       which he could not be adequately   compensated under the    plaintiff’s undertaking’s favour at trial. The court had to weigh one need against another and determine where the balance of convenience lay. Where other factors appeared to be evenly balanced it was a counsel of prudence to take such measures as were calculated to preserve the status quo.
13. The status quo was the existing state of affairs; but since states of affairs did not remain static that raised the query of when they existed. The relevant status quo was the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction or, if there be unreasonable delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion.
14. The applicable status quo ante was the state of affairs before a respondent commenced the conduct complained of by the applicant, unless there had been unreasonable delay in filing the application for interim orders, in which case it would be the state of affairs immediately before the application. The applicant for interim orders ought to have acted quickly.
15. In the present case, the applicant asserted that prior to the alleged evictions; education in the affected area was provided in schools built by parents and that the Government had given support in providing teachers through the Teachers Service Commission (TSC). On its part, the respondent asserted that following the inter-ethnic clashes that had affected students in the area in question, it had taken measures as detailed therein above and normalcy had returned in the schooling of the said students. That evidence was not controverted by the applicant. Given those circumstances, the balance of convenience lay in favour of the respondent.

Application dismissed; Reference No.17 of 2018 would be fixed for hearing forthwith; no order as to costs.

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