The High Court has rejected a case in which Brookhouse School parents were seeking a 30 percent fee discount on online learning during the Covid-19 pandemic.
Justice Weldon Korir on Thursday said while parents do not pay peanuts in school fees, free basic education is an important constitutional right and the responsibility of discharging that mandate rests on the State and not private entities.
“Private schools are not funded by the State and they must charge fees in order to provide services. The onus of determining whether fees for private schools should be capped is an issue for the Executive and Parliament,” he said.
He said the closure of schools was abrupt and that there was no time for meaningful engagement as the management of the school was required to deliver its part of the bargain despite the changed circumstances.
Judge Korir added that in the circumstances, the consultation that took place at the time of the introduction of the new mode of learning was adequate.
Parents had sued the institution in a bid to block a 90 percent fee demand and the suspension of classes for kindergarten and lower primary since schools remain closed. They termed the school’s board of directors’ “paltry” 10 percent discount as unlawful.
“It is noted that the studies offered by the school are pegged on an international system of education which had not been suspended at the time the Kenyan schools were closed. The school had a contractual obligation to prepare the children for examinations,” he said.
He said the parents failed to make out a case faulting the school for not seeking licencing from the Ministry of Education before offering virtual classes and did not demonstrate the inferiority of virtual learning. “Consequently, this particular ground in support of the petition fails,” the judge said.
Justice Korir, however, directed the school to establish a parents’ association to allow for consultations and consent for any changes in policies, rules and regulations.
He said the parents who moved to court are by virtue of Section 55(2) and (3) and the Third Schedule of the Basic Education Act, 2013 entitled to be members of a parents’ association.
“The establishment of a parents and teachers’ association as per Section 55(3) of the Basic Education Act is the responsibility of the school. In the circumstances, an order is issued compelling the 1st [Brookhouse directors] and 2nd [school management] respondents to forthwith, and not later than 120 days from the date of this judgement, establish a parents’ association which meets the requirements of the Act,” directed Justice Korir.
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