Probe against Makini Schools senior managers to proceed, High Court rules 

Efforts by senior officials of Makini Schools led by the Regional Managing Director Horace Mpanza to quash summons by Directorate of Immigration Services (DIS) over issues raised by parents over the running of the private institution, have been dismissed by the High Court.

High Court judge John Chigiti rejected the bid by Mpanza and three other senior officials of the school, to block the summons issued to them in July 2023, saying the Director of Immigration Services has the statutory power to issue such summons.

According to the court, the summons were necessary and appropriate for an administrative inquiry to allow them to respond to the concerns raised by the parents.

“The court is satisfied by summoning the applicant the Second Respondent (DIS) was discharging its duty to uphold the Applicant’s right to fair hearing as guaranteed at Article 50 Constitution,” said the judge.

Justice Chigiti added that no legal investigations would have been completed without hearing both sides.

“Unfortunately, the applicants blocked that process when they refused to obey the summons,” noted the judge.

The DIS said the summons were issued based on the spirit of a fair administrative procedure so as to give both the complainants and the South Africans an opportunity to be heard.

The court noted that the government repeatedly indicate that it had no intentions of deporting the South Africans, since their work permits were valid.

Others who had been summoned by DIS were Jacqueleine Van Der Merwe, Stephanus Coetsee Izak and Gary Wagner.

The government said it summoned the four officials following a complaint letter dated July 14, 2023 from the Parents and Teachers Association (PTA) of Makini School Limited.

The letter allegedly raised “grave concerns” involving the South Africans, prompting the DIS to require their attendance and provide information necessary for assessing their continued stay in Kenya.

The South Africans argued that the summons were instigated by Nixon Bugo, a former PTA official, following the termination of his contractual relationship with the school on in July 2023, and had since engaged in a concerted campaign of harassment, defamation, and incitement against them.

They submitted that they sought court’s assistance, due to the unlawful nature of the summons and the potential threat of further retaliatory action.

The officials maintained that the actions of the DIS have violated their rights to fair administrative action, and that unless the court intervened, they risked unlawful interference with their continued stay and business in Kenya.

The South Africans added that they are lawfully residing and working in Kenya under valid work permits issued by the Department of Immigration Services. Mpanza told the court that the dispute stems from invalidly convened Annual General Meeting (AGM) by a retired PTA Secretary, which was cancelled by the school.

Bugo allegedly held a virtual PTA meeting on July 8, 2023, at which he made numerous false, malicious, and defamatory statements against him.

He said the baseless allegations included claims of armed intimidation, mismanagement, employee mistreatment, and racism at the school.

After the PTA meeting, Mpanza said Bugo allegedly instigated unlawful and xenophobic resolutions calling for government investigations, deportations, and regulatory reprisals against the foreign employees of the school despite the pending case.

He said the Director of Immigration Services was being improperly used as an instrument of retaliation to settle personal grievances, in an attempt to achieve collateral purposes outside the scope of its statutory mandate under Section 49(8) of the Kenya Citizenship and Immigration Act.

The four argued that the summons were issued following a complaint made by parents of students at the school, who were dissatisfied with how the school was being run and who were aggrieved by the fact that senior management positions were held by South African nationals.

They further contended that the complaint was purely civil in nature, raising no immigration or criminal issues, and that it was addressed to the Ministry of Education, not the immigration authorities.

Despite this, the Second Respondent (DIS) took it upon itself to intervene and issue the summons, purportedly to investigate the applicants’ immigration status, even though the Applicants held valid and unexpired work permits at the time.

They maintained that governance and oversight of private educational institutions, including the hiring of teachers, the formation of parents’ associations, and the assessment and inspection of school programs and personnel, are expressly vested in the Cabinet Secretary for Education, the Teachers Service Commission, and the County Education Boards.

But the DIS said the summons were necessary and appropriate for an administrative inquiry to allow them to respond to the concerns raised.

The government emphasized that the summons were issued not based on suspicion of any offence, but in the spirit of fair administrative procedure and to give both the complainants and the applicants an opportunity to be heard.

The court heard that the law allows immigration officers to summon non-citizens for information relevant to their immigration status.

It was contend that summoning foreign nationals to provide information related to their immigration status is a statutory function, and is not conditional upon suspicion of wrongdoing. Further, the action is globally standard immigration practice.

“In the instant suit, the court is of the informed view that it was premature of the Applicants to file this suit. They denied themselves the right to fair hearing and they cannot then turn around and blame the 2nd Respondent,” said the judge.