Kaimenyi order closing private schools quashed

Private primary and secondary schools yesterday got a reprieve when a Nairobi judge suspended a government directive closing all schools countrywide.

Officials of the Kenya Private Schools Association (KPSA) sued the government to challenge the directive issued on Friday through a circular by Education Cabinet Secretary Jacob Kaimenyi. The circular led to the closure of all schools yesterday.

However, private schools, through their lawyer, Mr Muturi Kamande, said the circular did not explain why private schools had to be closed when they were not party to the salary dispute between public school teachers and their employer, the Teachers Service Commission.

According to KPSA officials Ernest Wangai, Mutheu Kasanga and Dolly Anjiri, private schools have a right to continue with their programmes.

Mr Kamande asked Justice Mumbi Ngugi to issue an order suspending the order to close the schools.

SECURITY WORRIES

Although most private schools are still in operation, he requested the judge to issue the order because some had already closed in response to the directive.

“As of today we were aware that private school children are going to school but as we were coming to court we were informed that in Mombasa the police commandant was going round to enforce the directive. We seek a suspension of this closure,” Mr Kamande said in the suit against Education Cabinet Secretary Jacob Kaimenyi and Attorney-General Githu Muigai.

He told the judge there were about 9,000 private schools with nearly two million learners countrywide who would be affected by the directive.

“The Cs said there has been no learning since the beginning of (the) term, that tension has been building among learners who have been left idle and that there might be incidences of insecurity. These reasons do not apply to private schools,” Mr Kamande said.

(READ: Protests planned over schools closure)

(READ: Private schools seek court relief)

TEMPORARY ORDERS

Justice Ngugi said she was satisfied the matter was urgent considering the circumstances described. She issued temporary orders stopping the circular and certified the suit as urgent.

“I am satisfied that it is in the interest of justice to grant a stay with regards to private schools. Pending the hearing and determination of this case inter partes, an order is hereby issued suspending the application of Mr Kaimenyi’s circular,” she said.

The circular gave revised term dates for public and private schools, as well as teacher training colleges and technical training institutes. It indicated that opening dates for the third term for primary and secondary schools was August 31 and the closing date was September 21.

Mr Kamande said KPSA members operate under the curriculum set by the CS and, among other things, adhere to term dates, which are usually communicated at the beginning of the calendar.

An earlier circular had November 13 as the closing date for the third term and hence KPSA members received fees with the expectations that the term would run.

PRIVATE CONTRACTS

The KPSA argued that last week’s circular was issued without prior notice to the association and unilaterally indicated a change of term dates and that the Cs has not explained to private school operators why their schools should close.

They also argued that teachers in their member schools had private contracts to teach pupils for 53 days and they have no issues with their employers. They claimed that the directive violated their rights since teachers employed in private schools would still be paid whether the closure takes effect or not and that fees would not be refunded.

“Unless urgent conservatory orders are made, pupils in private primary and students in secondary schools will suffer gross violation of their right to schooling for reasons which are unknown or do not apply in their case,” Mr Kamande said.

They want the court to declare that the circular violates the education rights of their pupils and is unconstitutional.

The judge directed the sued parties to be issued with the case documents before a hearing on Thursday.