Parents and guardians of St Bakhita Schools in Nairobi have won a reprieve after the High Court temporarily blocked the management from increasing school and other fees.
In her ruling, Justice Janet Mulwa said parents and their children would suffer if the notice issued by the management 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 that may be caused to the plaintiffs and the children’s interest outweighs the harm that the defendants (management) may suffer if the temporary injunction is not granted,” Justice Mulwa said.
More than 1,000 parents approached the court in April, accusing the school – which runs St Bakhita Daycare & Kindergarten, primary and junior secondary schools on several campuses – of revising fees by up to 20 percent mid-year, citing inflation, a move that could disrupt their children’s learning.
In an affidavit, Martin Mutua said the management had followed a policy of increasing fees every two years for the past 20 years.
And since the last increase took place in Term I of 2023, they had a legitimate expectation that the next fee adjustment would take effect from Term I of 2025.
He added that the contract is pre-negotiated at the beginning of each school year through a fee structure for the year, which is accepted by parents on the understanding that it will not be changed before the end of two academic years.
However, on April 9, 2024, a few days before the resumption of school after the April holidays, the school issued invoices reflecting an increase in transport fees by a margin of 40-41 percent, in tuition fees by a margin of 20-21 percent and in co-curricular activities by a margin of 20-40 percent, depending on the co-curricular activity.
The Parents’ Teachers Association (PTA), which brings together around 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 PTA also argued that the unilateral increase breached the duty of good faith and the duty to consult.
Through their lawyer Charles Mwalimu, the parents added that their only option was to withdraw their children, which would disrupt their education and have negative consequences.
The management opposed the case, arguing that Kenya is a free market economy and the court should not dictate how private schools are run as it 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 the obligation is at the sole discretion of the management.
In her ruling, Justice Mulwa said the reasons for the management’s sudden change of mind after issuing the 2024/2025 fee structure three months after the schools opened in January 2024 was not only unacceptable but also “unconscionable, unfair and unjust in the circumstances and contrary to [the principle of] fair administrative action as envisaged in Article 47”.
The judge said it was the expectation of parents and guardians that there would be no changes in the fee structure during the year, as had been the practice.
The judge said private schools were not private clubs operating by their own rigid rules, but were part and parcel of the larger educational institutions providing educational services and were therefore bound by the relevant laws, including Articles 46 and 43 of the Constitution and Fair Administrative Action.
“It is therefore evident and clear that the defendants, being suppliers of services, are bound by the rights that must be given to the consumers under the Constitution,” the judge said.
