- The judge noted that the case raised substantial questions of law and of great public importance which concern the private sector.
- The school argued the contract with parents was a private matter and the court ought not to intervene.
The management of Sabis International School has been stopped from demanding full fees for online lessons offered during the Covid-19 pandemic.
The temporary order favouring the parents of children schooling at the institution was given by judge James Makau on Thursday.
The judge noted that the case raised substantial questions of law and of great public importance that concern the private sector, in respect of private schools, which provide education services that have remained unregulated, despite the right to education being an important and fundamental right.
“Pending hearing and subsequent determination of the petition, conservatory order be and is hereby issued staying implementation of payment of full fees payable to the first and second respondents and in lieu, the petitioners are allowed to offset up to and 20 per cent of payment so as to pay 80 per cent of payment of full fees for term three of the school year 2019 – 2020 or until schools are reopened under the directions of the Ministry of Education,” the order read.
The judge allowed the use of initials to identify the parents of the minors who filed the case in order to protect the rights of the children.
His order arose out of an application filed by the parents on May 18. They sued the directors of Sabis International, the school itself, the Attorney General and the Cabinet Secretary for Education.
Their case was necessitated by a communication received from the school demanding payment of full fees.
The parents were of the view that the school should not demand full fees for online lessons as that would amount to violation of their rights.
They said the school failed to offer fee discounts despite its campus in Runda remaining shut and not incurring overhead costs such as electricity and water.
They were of the view that they be allowed to offset up to 50 per cent of the school fees for third term of the school year 2019-2020 and be charged for virtual lessons.
Also sought was an order to compel the school to immediately form a parents-teachers association.
The school argued that it sent out a letter to all the parents informing them of the online classes and making them aware of what was to happen during the lockdown period.
Additionally, the school continued to send regular updates to the parents of the status of learning during the period.
The institution says the contract between the parents and the school was private and the court ought not to intervene in private matters.
The parents say what they signed was a standard contract with the school but which has changed due to the circumstances brought by Covid-19.
"It is no doubt that the school is unable to meet its part of the bargain in the circumstances. This is not disputed by the school. That notwithstanding, the school insists that parents must pay fees according to its terms as this is a private contract," the judge noted.
“Upon considering the petitioners' submission and authorities in respect of whether the contract between the school and the parents falls under the purview of the Consumer Protection Act, it clearly turns out that the petitioners have proved that with regard to the application of the Act, they are justified in seeking the orders.”
The judge added: “The first and second respondent [the directors and the school] insist on full payment of the school fees when itself is unable to meet its part of the bargain due to conditions arising out Covid-19 pandemic and when its unable to discharge its part of the agreement fully. This is purely against clear provision of the Consumer Rights Act.”
Edited by Henry Makori