Havi v Cabinet Secretary, Responsible For Matters Relating to Basic Education & 7 others; Kenya Private Schools Association & 4 others (Interested Parties) (Petition E371 of 2021) [2024] KEHC 7735 (KLR) (Constitutional and Human Rights) (18 June 2024) (Judgment)

Key Facts

Issues

• The court addressed claims that CBC's textbook policies caused environmental degradation, noting the 1st Respondent's arguments about biodegradable materials and recycling programs, while emphasizing the burden of proof on the petitioner.
• The court evaluated the appropriateness of halting CBC implementation, weighing public interest against potential disruption, referencing Gatirau Peter Munya v Dickson Mwenda Kithinji (2014) eKLR and the impact on 8 million learners.
• The court analyzed allegations that CBC's structure violated equality and freedom of expression rights under Articles 21 and 27 of the Constitution, emphasizing the lack of evidence from the petitioner to substantiate these claims.
• The court examined if the Cabinet Secretary fulfilled statutory obligations to make regulations for curriculum development under Sections 42(2) and 73(4) of the Basic Education Act, noting the absence of such regulations and referencing Walter Osapiri Barasa v Cabinet Secretary (2014) eKLR.
• The court evaluated the extent of public and stakeholder engagement in CBC development, referencing South African jurisprudence and Kenyan cases like Robert N. Gakuru v Governor Kiambu County (2014) eKLR, to determine if the process met constitutional standards.
• The court determined if constitutional questions could be avoided in favor of administrative remedies, referencing the Presidential Working Party on Education Reform and prior cases like Erick Mugambi v Ministry of Education (2017) Petition No. 49.
• The court assessed if the implementation of CBC via the 2017 Curriculum Framework and 2019 Sessional Paper violated the constitution by not amending Section 41 of the Basic Education Act, considering the inordinate delay in filing the petition and public interest implications.
• The court considered if the former Cabinet Secretary and deceased education official breached their duties under Section 41 and constitutional provisions, noting Magoha's death and Matiang'i's protection under Article 236 of the Constitution.
• The court examined allegations that CBC's vocational training elements constituted child labor, referencing Section 2 of the Children Act and High Court precedent in J M A v Paul Njogo Kihara (2005) eKLR to distinguish educational activities from exploitative labor.
• The court considered whether a petitioner must file an affidavit in a constitutional petition, referencing Mutunga Rules and precedents like Bernard Kibor Kitur v Alfred Kiptoo Keter (2018) eKLR and Isaac Aluoch Polo Aluochier v National Alliance (2016) eKLR.

Holdings

• The court denied injunctive relief to stop CBC implementation, citing the risk of disrupting over 8 million learners, wasting public funds, and violating the best interests of the child principle.
• The court found no evidence that the Competency-Based Curriculum (CBC) violates constitutional rights, including claims of discrimination, child labor, or environmental harm. The petitioner failed to demonstrate prejudice or constitutional violations.
• The court dismissed the petition but ordered the 1st Respondent to amend Section 41 of the Basic Education Act and make regulations within 120 days to align with the CBC system. The court emphasized the need for legal compliance in curriculum development.
• Public participation in CBC implementation was deemed sufficient, with extensive stakeholder engagement. The court rejected the petitioner's claim of inadequate consultation, noting the availability of forums for redress.
• The case against the 8th Respondent (Prof. George Albert Omore Magoha) was withdrawn due to his death, and no liability was assigned to the 7th Respondent (Dr. Fred Matiang'i) for actions taken in good faith as a public officer.

Remedies

• The 1st Respondent shall initiate the process of amending Section 41 of the Basic Education Act to align the structure of education with the CBC within 120 days.
• No orders as to costs.
• The 1st Respondent shall make regulations as demanded by Section 73 of the Basic Education Act within 120 days.
• The petition dated 16th September, 2021 is hereby dismissed.
• The 1st Respondent shall set up a committee to ensure the implementation of the recommendations of the Presidential Working Party on Education Reform report within 90 days.

Legal Principles

• The court applied the 'best interest of the child' principle from Article 53(2) of the Constitution, balancing the disruption of CBC implementation against children's educational needs and psychological impact.
• The court ruled the Petitioner failed to discharge their burden of proof by not providing evidence to support allegations of constitutional violations and procedural defects in the CBC rollout.
• The court conducted judicial review of the CBC implementation, assessing whether it was ultra vires the Basic Education Act, proportionate to children's rights, and met Wednesbury reasonableness standards. It found the Petitioner failed to prove violations.
• The court emphasized the importance of adhering to the Constitution and statutory requirements in implementing the Competence Based Curriculum (CBC), noting that actions must comply with legal frameworks and public participation obligations.

Precedent Name

• Bernard Kibor Kitur v Alfred Kiptoo Keter & another
• Isaac Aluoch Polo Aluochier v National Alliance and 542 others
• LNM v Attorney General & another
• Erick Mugambi vs Ministry of Education, State Department of Basic Education and Kenya Institute of Curriculum Development
• MAK v RMAA & 4 others
• Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
• Bryson Mangla v AG & Ors
• County Government of Kilifi v Ethics & Anti-Corruption Commission
• Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others
• Independent Electoral and Boundaries Commission & 4 others v David Ndii & 312 others
• J M A (minor suing through the uncle and next friend A A M) V Paul Njogo Kihara

Cited Statute

• Interpretation And General Provisions Act Cap 2
• National Government Coordination Act
• Basic Education Act No. 14 Of 2013
• Fair Administrative Action Act
• Kenya Institute Of Curriculum Development Act No. 4 Of 2013
• Employment Act 2007
• National Government Coordination Act Cap No. 1 Of 2013
• Constitution Of Kenya
• Children Act, 2022

Judge Name

• H. I. Ong'udi
• J. Chigiti (SC)
• A. K. Ndung'u

Passage Text

• The burden of proof was on the Petitioner to demonstrate that the course books were a threat to the environment... No evidence whatsoever was placed before us in this regard and the Petitioner therefore fails to prove this limb.
• From the material placed before us, it is evident that the CBC has already been rolled out and over eight (8) million children are undergoing the new system... Stopping implementation as sought by the Petitioner would only serve to wreak havoc and cause disorder in the country's education system.
• The petitioner's case is that there are no regulations made as envisaged under Section 73(4) of the Basic Education Act... We have however noted the existence of the Basic Education Regulations 2015 made by the Cabinet Secretary under the powers conferred by Section 95(2) of the Act.