Case ID:171724

Charles Anderson Otieno v Victory Children’s Home Foundation & 4 others [2021] eKLR

Case Metadata

Case Number:

Constitutional Petition E001 of 2020

Parties:

Charles Anderson Otieno v Victory Children’s Home Foundation, Humphrey Wandeo, Kisumu County Director of Children Services, Ministry of Labour and Social Protection, Attorney General & Non-Governmental Organizations Co-ordinations Board

Date Delivered:

03 Feb 2021

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Judgment

Judge(s):

Fred Andago Ochieng

Citation:

Charles Anderson Otieno v Victory Children’s Home Foundation & 4 others [2021] eKLR

Court Division:

Civil

County:

Kisumu

Case Outcome:

Petition dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CONSTITUTIONAL PET. NO. E001 OF 2020

IN THE MATTER OF ARTICLES 20, 21, 22, 232, 25, 27, 28, 29, 43, 47, 48, 50, 53, 55, 56, 156, 159, 165, 258, 259 and 260 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLE 20 OF THE CONSTITUTION OF KENYA ON THE APPLICATION OF BILL OF RIGHTS

AND

IN THE MATTER OF ARTICLE 21 OF THE CONSTITUTION OF KENYA ON THE IMPLEMENTATION OF RIGHTS AND FUNDAMENTAL FREEDOMS

AND

IN THE MATTER OF ARTICLE 22 OF THE CONSTITUTION OF KENYA ON THE ENFORCEMENT OF BILL OF RIGHTS

AND

IN THE MATTER OF ARTICLE 28 OF THE CONSTITUTION OF KENYA ON

HUMAN DIGNITY

AND

IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION OF KENYA ON FAIR ADMINISTRATIVE ACTION

AND

IN THEMATTER OF ARTICLE 53 OF THE CONSTITUTION OF KENYA ON THE

RIGHTS OF CHILDREN

AND

CHARLES ANDERSON OTIENO.......................................PETITIONER

VERSUS

VICTORY CHILDREN’S HOME

FOUNDATION...1

ST

RESPONDENT

HUMPHREY WANDEO, KISUMU COUNTY

DIRECTOR OF CHILDREN SERVICES................2

ND

RESPONDENT

MINISTRY OF LABOUR AND

SOCIAL PROTECTION...........................................3

RD

RESPONDENT

THE HON. ATTORNEY GENERAL.......................4

TH

RESPONDENT

NON-GOVERNMENTAL ORGANIZATIONS

CO-ORDINATIONS BOARD..................................5

TH

RESPONDENT

JUDGMENT

The Petition before me is premised upon the provisions of Articles

20, 21, 22, 232, 25, 27, 28, 29, 43, 47, 48, 50, 53, 55, 56, 156, 159, 165, 258, 259

and 260 of the Constitution of Kenya.

1.

The Petitioner,

CHARLES ANDERSON OTIENO

told the Court that he had lodged the said Petition in his personal capacity and as the next friend to the 38 children whose names he provided.

2.

It was the assertion of the Petitioner that he had brought the Petition in the best interests of the 38 named children.

3.

It is common ground that by an Agreement dated 8

th

February 2013, the 1

st

Respondent.

VICTORY CHILDREN’S HOME FOUNDATION

took over the Institution named

COVENANT CHILDREN’S HOMES.

4.

The Petitioner asserted that although the assets of the Covenant Children’s Homes were transferred to the 1

st

Respondent;

“…… the original mission, vision management and objectives of Covenant Children Home, as an orphanage/charitable children organization remained ……..”

5.

Notwithstanding that understanding, the 1

st

Respondent is said to have sought approval and/or authority to unilaterally convert the institution from an orphanage/charitable children organization, to a Bible School.

6.

According to the Petitioner, if the conversion was approved or actualized, the result will be a violation of the rights to shelter and to human dignity, of the children residing at the institution.

7.

It was the Petitioner’s case that the proposed conversion would be a contravention of the Change of Ownership Agreement between the 1

st

Respondent and Covenant Children’s Home.

8.

It was the Petitioner’s further case that the proposed conversion would expose the children to economic exploitation, purely to the benefit of the 1

st

Respondent.

9.

The Petitioner’s fear was that the multitude of street children who are hosted by the 1

st

Respondent would be evicted from the institution, when it was converted to a Bible School.

10.

Such eviction would deny the children their constitutional rights to Basic Nutrition; Shelter; Healthcare; Protection from abuse; Protection from Neglect and harmful cultural practices.

11.

It was for that reason that the Petitioner asked the Court to Preserve and Protect the rights of the vulnerable children.

12.

In the face of the threatened action, the Petitioner lodged a complaint with the 5

th

Respondent, the

NON-GOVERNMENTAL ORGANIZATIONS CO-ORDINATION BOARD

.

13.

However, by the time the Petition was lodged in court, the 5

th

Respondent had not yet taken any action on the complaint.

14.

Ultimately, the Petitioner sought the following reliefs;

“1. A DECLARATION that the Respondents

are in breach of their constitutional

and statutory mandate by failing to

protect the best interests of the

Petitioner and the children, as Citizens

of Kenya.

2. A DECLARATION that the Respondents are in breach of their constitutional and

statutory mandate by failing to

discharge a fair administrative action

while handling the matter of the

Petitioner as a Citizen of Kenya.

3. AN ORDER OF MANDAMUS to compel the

1

st

, 2

nd

and 3

rd

Respondents for the

unconditional return of all the children

removed from the 1

st

Respondent’s

institution and that in future there should

be no movement, reconciliation or

relocation of the children without the

knowledge, authority and consent of the

Petitioner or without the involvement and/

or an order from the Children’s Court.

4. AN ORDER FOR PERMANENT INJUNCTION restraining the Respondents either by

themselves or servants, agents or any of

them in any manner whatsoever or

otherwise from processing, sanctioning

and approving any proposed change of

the objectives of the 1

st

Respondent to

a Bible School or any other form of

institution, or interfering in any manner

whatsoever with the operations, mission

and vision of the orphanage or howsoever

interfering with the interests of the

vulnerable children.

5. A DECLARATION that the 1

st

Respondent and all other Charitable Children Organization as defined under Section 58 of the Children Act No. 8 of 2001 must for

all intents and purposes be treated and

interpreted to be equivalent to a person charged with Parental Responsibility as defined under Section 23 of the Children Act, and that the 1

st

Respondent and all other Charitable Children Organizations must in the exercise of the duty and responsibility placed upon them ensure that all children placed under their care are protected from neglect, discrimination and abuse.

6. Costs of the Petition.”

15.

In answer to the Petition the 1

st

Respondent denied the allegation that it had evicted any children from its institution.

16.

The 1

st

Respondent explained that it had sent children back home, in compliance with the Government directive to close down all learning institutions.

17.

It is a matter of common notoriety, about which the Court can and does take Judicial Notice, that Kenya and literally the whole world is faced with the

“Corona Pandemic”

.

18.

As a result of the harsh realities brought about by the said Pandemic, the Government of the Republic of Kenya, through its Ministry of Health published guidelines which are intended to help curb the spread of the disease associated with the pandemic.

19.

I find that the decision by the 1

st

Respondent, to send children home was made in compliance with the Presidential Directive on Containment of the Corona Virus (Covid 19).

20.

The said directive was relayed to, inter alia, the Director, Social Services through an Internal Memo dated 18

th

March 2020. The said Memo [Exhibit “HW6”] was signed by the Principal Secretary, Ministry of Labour and Social

Protection.

21.

The directive required all officers manning institutions to ensure that, where possible, the learners/residents were released from their institutions to their homes.

22.

In the circumstances, the decision to have the children sent home, from the institution, did not emanate from the 1

st

Respondent.

23.

Secondly, the action of sending the children home was not

“under the guise or excuse of Covid-19…..”

24.

The children were sent home in compliance with a Presidential Directive, which was intended to help in the containment of the Corona Virus (Covid 19).

25.

I find that the Petitioner has failed to demonstrate how the compliance with the directive was either illegal or not in the best interests of the children.

26.

The Petitioner has submitted as follows, concerning the request made by the 1

st

Respondent, to have the institution converted into a Bible School;

“That the 1

st

Respondent has by a letter dated 22

nd

June 2020, addressed to the 2

nd

Respondent, sought an approval and/or authority to unilaterally convert the composition of the 1

st

Respondent as an institution from an institution from an orphanage/charitable children organization, mandated with the delicate responsibility of catering for the needs of homeless children, to a Bible School, which conversion if approved or actualized will result into a violation of the rights to shelter and human dignity of the children residing therein ……..”

27.

It is to be noted that the Petitioner stated as follows at

Paragraph 3 of the Petition;

“The 2

nd

Respondent is a Director of Children Services appointed pursuant to the provisions of the Children Act of 2001, with the statutory mandate of safeguarding the welfare of children, assisting in the establishment, protection, co-ordination and supervision of services and facilities designed to advance the well-being of children ………”

28.

It therefore appears that the Petitioner acknowledges the pivotal role of the 2

nd

Respondent in the advancement of the well-being of children.

29.

I find that when the 1

st

Respondent sought approval or the authority to convert the institution, the said 1

st

Respondent had taken the appropriate step. The action of seeking approval or the authority of the relevant officer cannot be construed as a desire to make a unilateral decision.

30.

There is nothing unconstitutional in the step taken by the 1

st

Respondent to seek either the approval or the authorization of the proposal to convert the institution to a Bible School.

31.

After all, it is not known whether or not the 2

nd

Respondent will give his approval or authorization.

32.

Meanwhile, the Petitioner has now submitted that the 2

nd

, 3

rd

and 4

th

Respondents have been indolent or sleeping on their jobs, by allowing the 1

st

Respondent to operate illegally for almost 7 years.

33.

In that respect, I wish to point out that the Petition did not contain any prayer to have the 1

st

Respondent shut down.

34.

It is ironical that whilst the Petitioner begun by urging the court to order the 1

st

Respondent to take back the children who had been sent home, the Petitioner’s later submissions suggested that the 1

st

Respondent be closed down because it was a home that was unfit and non-compliant for purposes of providing the necessary protection to the children.

35.

According to the Petitioner, the 1

st

Respondent was operating illegally. If that be the case, the Petitioner would actually be telling the court not to have any of the children returned to the 1

st

Respondent’s institution. Yet, the relief sought in the Petition was the very opposite of this contention by the Petitioner.

36.

In order to give a declaration that the children should be returned to the 1

st

Respondent would imply that the said Respondent was duly registered as an institution duly authorized to operate as an orphanage or charitable home for children.

37.

Once the Petitioner has come to the conclusion that the 1

st

Respondent was not licensed or authorized to operate as an orphanage or a charitable home for children, it follows that the court cannot now grant the orders to compel the 1

st

Respondent to return the children to the institution.

38.

I also decline to order the 2

nd

, 3

rd

and 5

th

Respondents to advise the 4

th

Respondent to immediately shut down the operations of the 1

st

Respondent. The reason for that decision is that the question as to whether or not the operations of the 1

st

Respondent should be shut down, did not fall for determination in the Petition. If anything, the Petition sought to have the 1

st

Respondent continue to operate as an orphanage.

39.

I further decline to order the Office of the Director of Criminal Investigations and the Director of Public

Prosecutions to investigate the affairs of the 1

st

Respondent, with a view to possibly arresting and prosecuting the Board of Directors of the 1

st

Respondent. The Petition contained no prayer for such relief.

40.

As regards the conduct of the officials of the 2

nd

, 3

rd

, 4

th

and 5

th

Respondents, over their handling of the issues raised in the Petition, the Petitioner failed to demonstrate to the court why the said officials should be censured.

41.

Finally, there is absolutely no basis in law to warrant an order directing the 1

st

Respondent to transfer back to the Trustees of Covenant Homes Organization, the assets which that organization had earlier transferred to the 1

st

Respondent. If the Covenant Homes Organization had the intention to take back the assets in question, they would need to negotiate directly with the 1

st

Respondent, and thereafter comply with all the requisite provisions of the law.

42.

But the court noted that the Petitioner conceded that Covenant Children’s Home was dissolved in the year 2013. By a letter dated 20

th

August 2013, the

NGOs

Co-ordination Board granted permission to the said Covenant Home

Organization to officially dissolve. In the circumstances, if the court were to order the 1

st

Respondent to Covenant Home Organization or Covenant Children’s Home, the court would have in vain. The court declines to grant an order which would, in any event, be incapable of enforcement or implementation.

43.

I find that the Petitioner has not given any legal or factual justification for seeking orders that would compel the Respondents, or any of them, to notify him, or to seek either his authority or his consent before they could take steps at the 1

st

Respondent’s institution.

44.

In conclusion, I find no merit in the Petition. It is therefore dismissed.

45.

The Petitioner is ordered to pay to the Respondents, the costs of the Petition.

DATED, SIGNED

and

DELIVERED

at

KISUMU

This

3

rd

day of

February

2021

FRED A. OCHIENG

JUDGE