Parents and guardians of St. Bakhita Schools in Nairobi have been granted amnesty after the High Court temporarily barred the management from increasing school fees and other charges.
In her ruling, Judge Janet Molwa said parents and their children would suffer if the notice issued by the administration in March was not suspended.
The judge noted that the parents had expressed their grievances, including the possibility of withdrawing their children from school, which would cause anxiety, disrupt their education and have negative consequences for the children.
“It is my considered view that the harm to the plaintiffs and the interests of the children outweighs the harm that the defendants (the administration) may suffer if the interim injunction is not granted,” Judge Molwa said.
More than 1,000 parents went to court in April, accusing the school – which runs St. Bakhita’s nursery, kindergarten, primary and junior high schools on several campuses – of reviewing fees by up to 20 percent mid-year, citing inflation, a move that would disrupt their children’s education.
In an affidavit, Martin Mutua said the department had followed a policy of increasing fees every two years for the past 20 years.
Since the last increase occurred in the first semester of 2023, they had a legitimate expectation that the next fee adjustment would come into effect from the first semester of 2025.
He added that the contract is negotiated in advance at the beginning of each academic year through a fee structure for the year that parents accept on the basis that it will not be changed before the end of two academic years.
However, on April 9, 2024, just days before classes resumed after the April break, the school issued bills reflecting an increase in transportation fees by 40-41 percent, in tuition fees by 20-21 percent, and in extracurricular activities by 20-40 percent, depending on the extracurricular activity.
The Parent Teacher Association, which includes about 4,000 parents, teachers, school management and staff, also supported the case, arguing that the 21-day notice of the fee increase was too short and unfair.
The TRA also claimed that the unilateral increase violates the duty of good faith and the duty of consultation.
The parents, through their lawyer Charles Mwalimu, added that their only option was to withdraw their children from school, which would disrupt their education and have negative consequences.
The administration opposed the case, arguing that Kenya has a free market economy and the court should not dictate how private schools are run because that would set a dangerous precedent.
The court also heard that the Basic Education Act does not give parents the power to set fees in private schools and that this obligation lies with the administration alone.
In her ruling, Justice Mulwa said the reasons for the sudden change in the administration’s mind after the issuance of the 2024/25 fees structure three months after schools opened in January 2024 were not only unacceptable but also “unfair and unfair in the current circumstances and contrary to the principle of fair administrative action as enshrined in Section 47”.
The judge said the expectation of parents and guardians is that there will be no changes to the fee structure during the year, as is customary.
The judge said that private schools are not private clubs operating according to their own strict rules, but rather are an integral part of larger educational institutions that provide educational services, and are therefore bound by relevant laws, including Articles 46 and 43 of the Constitution and fair administrative action.
“It is therefore clear and evident that the defendants, as service providers, are bound by the rights that should be afforded to consumers under the Constitution,” the judge said.