Two activists in Homa Bay County have suffered a setback in their bid to stop the decision by the government to re-open schools.
They had filed a petition in a magistrate's court seeking to compel Education Cabinet Secretary George Magoha to issue new dates for re-opening of learning institutions.
But Principal Magistrate Ruth Maloba, who was supposed to give directions on the matter, adjourned the case after the Attorney-General, in a response filed to the petition, asked the magistrate to dismiss the application on grounds that the lower court lacked jurisdiction to determine the matter.
The petitioners, Michael Kojo and Evance Oloo, were hoping to get orders to suspend the phased re-opening of schools, but the application by State Counsel Ms Sarah Jumma scuttled their bid.
The magistrate adjourned the case to November 5, 2020 when she is expected to make a ruling on whether she has jurisdiction to hear and determine the case before setting a date for an "inter-partes" hearing.
The petition, filed on October 7, 2020, sought to compel the Education CS to issue new dates for re-opening of schools.
Safety of schools
Mr Kojo and Mr Oloo argued that the Ministry of Health failed to certify whether schools are safe for learning after some institutions were used as quarantine facilities, adding that the safety of learners could be at risk.
"Health officers have not done enough assessment on some of the then quarantine facilities and declared whether they are safe to accommodate learners," the activists said in their petition.
In their application, the activists listed Prof Magoha, Ministry of Education, Teachers Service Commission, Health Cabinet Secretary Mutahi Kagwe, Ministry of Health and Attorney-General Kihara Kariuki as the first, second, third, fourth, fifth and sixth respondents.
Schools have re-opened with Grade Four and Class Eight pupils being the first to report back to school as well as Form Four students who are preparing to sit the Kenya Certificate of Secondary Education (KCSE) examination.
Ms Jumma argued that re-opening of schools is already in top gear and it would be a waste of time to challenge the matter. She asked the court to dismiss the case.
"It is only the High Court with the jurisdiction to hear any question regarding interpretation of the Constitution, including whether anything done under the authority of the Constitution or law is inconsistent as portrayed in this application," Ms Jumma told the court.
"The application is bad in law and is short on any legal basis. The cited provisions of Public Health Act do not make it a mandatory requirement for health authorities to make any assessment," she argued.
TSC, through its legal adviser Allan Sitima, said the court is under obligation to investigate and determine whether it has jurisdiction to determine the matter.
He argued that the threshold to warrant the magistrate's court to issue an order to suspend learning was not met.
"This matter has been filed in the wrong court and should be dismissed," he said.
Mr Kojo argued that the High Court, where he is being asked to file his application, should only play a supervisory role on the lower court.
"Any court has the mandate to issue orders. The magistrate's court is also the only court that can issue orders related to health matters," he argued.
Mr Kojo said the lives of learners were at stake.