The parents who brought the action against the Sabis International School, Kenya, first asked for an order that would keep their names confidential in order to protect the identities of their children. They are thus to be known as ‘SPG’. Given this order by the court, it is not possible to tell how many parents are involved in the legal action against the school.
Pending the hearing of their case as a constitutional petition, they asked that the court should order that they did not have to pay full fees for the third term of this year, or until the minister of education reopens schools, whichever is the later.
Judge James Aaron Makau who heard the matter, said he needed to establish whether the parents had met the conditions for the granting of an interim order. Among others, there needed to be a ‘present, real and impending danger’ to the applicant’s constitutional rights. And the public or applicant would suffer prejudice unless the court intervened and granted the orders sought.
The judge considered the affidavit of the school principal, Robert Kleynhans, who said that the school had sent a letter to all the parents, informing them of what would happen during the lockdown period. The school had also continued with regular updates to the parents about how classes and learning would continue. He claimed the contract between the parents and the school was ‘private’ and consequently the court ought not to intervene.
However, the parents drew the court’s attention to the announcement by the cabinet minister in charge of education, closing all schools in Kenya until next year. Despite this announcement, however, Kleynhans had emailed parents to say, ‘We reconfirm our earlier position, communicated [in] our letter dated 15 April, to collect Term 3 tuition fees in full and refund Term 3 boarding and cafeteria fees, along with any unused position of Term 3 transportation fees.’
The parents also referred to a letter from the Association of Private Schools that said any learning or activity that private member schools engaged in with learners during this period when schools were official closed ‘should be treated as a separate programme/contract from the normal school terms programmes/contracts and be made optional.’
In addition, the parents suggested that consumer rights, that were also constitutional rights, were at stake in the case, and should be protected.
They said the school was under an obligation to supply services such as accommodation, boarding facilities, access to an auditorium, a library and a laboratory. It was also obliged to provide transport and internet services as well as text books, study material, notes and so on.
Judge Makau said the parents had raised the issue of the basic rights of a child to an education if they attended a private school. These and other matters had not previously been regulated, and ought to be argued fully in court. They had argued that there was now a ‘totally different contract’ brought into operation because of Covid-19. There was ‘no doubt that the school is unable to meet its part of the bargain…. This is not disputable by the school ….’ However, the school still insisted ‘that parents must pay fees according to its terms as this is a private contract.’
He noted that though the school insisted on full payment of the school fees, it was ‘unable to met its part of the bargain due to conditions arising out [of] Covid-19 pandemic and when it is unable to discharge its part of the agreement fully.’
Judge Makau said he had considered the issues raised by the parents ‘which I find to be novel, raising substantial questions of law and of great public importance. I further note this matter concerns the private sector, in respect of private schools, which provide education services that have remained unregulated, despite the right to education being important and fundamental.’
He was satisfied that the parents had shown, on the face of it, that they had a likelihood of success and that they were likely to suffer prejudice if the interim order were not granted.
The judge’s order, dated July 30, was issued as serious concerns are growing in Kenya about the school system and the fate of the country’s teachers. A report by Voice of America on 22 July noted that while public school teachers were still being paid, many teachers at private schools were not. The private schools have asked for a USD 7m grant to help with salaries and other costs and government officials say the request is being considered.
The economic crisis caused by Covid-19 has raised serious questions about the future of Kenya’s private schools, with the Sabis International School at the centre of this court case, being just one of many in a similar position.
The US-funded independent think-tank, the Council on Foreign Relations (CFR), says that while Kenya’s government wants to make online learning more accessible for students, and has been broadcasting school programmes on radio and television, it ‘acknowledges that many households do not have the technological resources to fully switch to remote learning.’ The CFR quotes 2016 figures showing that Kenya has an estimated 17 % of households with internet access, compared to South Korea with 99% household internet coverage.