Justice Roselyn Aburili's decision in Old Mutual General Insurance Kenya Limited vs Board of Directors, Oder Boys Boarding Special School (Civil Case E003 of 2023) is one with profound implications on the relationship that happens to exist between public schools and their proximate communities.
While the judgment might be legally sound, it exposes a deep disconnect between the legal interpretations of insurance contracts and the socio-economic realities most Kenyans face, especially those at the lower socio-economic spectrum.
The incident involved a school bus covered under an insurance policy, which only allowed using the vehicle for school purposes. The accident occurred when it was used to carry Church members engaged in activities unrelated to school purposes, although the said Church was one of the school's sponsors.
Following the accident, the insurance company declined the claims of the injured Church members on the grounds that they were unauthorised passengers, as provided in the insurance policy. Justice Aburili ruled in favour of the insurance company, shutting communities from accessing school buses for non-school events.
Justice Aburili's decision is right from a technical point of view and in its rigid interpretation of the insurance contract. The judgment, however, needs to consider the context in which these school buses are often bought — mostly through community efforts.
The buying of a school bus is usually a community project where local residents contribute their hard-earned cash to raise funds for the purchase of the bus in large parts of Kenya. Some contribute through extra charges in the fees or CDF initiatives.
Over the years, this joint investment has created some shared ownership where members of the community would expect that in case of need, the bus should be available for the service of the greater community.
In effect, this decision upsets the symbiotic relationship that has always existed between schools and their surrounding communities. For years, school buses have been released to the local communities for use in funerals, weddings, and other social and religious occasions, usually because the bus was purchased through individual contributions by these very community members.
Justice Aburili fails to consider this important relationship but is hell-bent on a legalistic interpretation of the insurance policy. So the judgement becomes irrelevant to the real-life experiences of the same people through whom such contributions to the community are possible.
The most odious part of the court's decision is its long-term implication for community support of schools. This would imply that once such communities feel their contributions towards raising funds for school facilities, like buses, are useless when needed, they would be less likely to contribute to subsequent fundraising initiatives.
The implications of this could be deteriorating quality in general among the resources used by the schools, especially concerning rural and underprivileged communities, since fundraising within the community usually stays the only avenue, they are able to afford such facilities.
Moreover, it typifies legal elitism, which is becoming increasingly insensitive to the ordinary experiences of Kenyans. Justice Aburili's decision works with a premise that construes the law as an inflexible instrument that must enforce the execution of contracts without consideration of social impact.
From such a point of view, it completely disregards the fact that laws and contracts, as much as they might be important, do have a binding commitment toward the people and communities they are working for.
This order brings into critical question the role of judicial officers in understanding and addressing the socio-economic challenges facing most Kenyans. Most judicial officers, especially those in superior ranks, are cushioned from the day-to-day struggles that ordinary citizens face.
Their decisions, as correct as they might be legally, may sometimes reflect a need for more appreciation of the greater setting within which such legal issues arise. The disconnection is most evident in Justice Aburili's judgment, which tends to forget that in large parts of Kenya, school buses are the only available and affordable transportation options for entire communities.
The ruling needs to appreciate the salient balance between legal frameworks and social realities. As it is now, the law does not recognise that resource acquisition in rural and semi-urban Kenya is an essentially communal affair. This over-sight is singularly stark in a country where the gap between those who have and those who do not continues to grow larger, and where the only hope for an, that will catch them if they fall, is at the communal level.
Justice Aburili has in her judgment taken an uncompromising stance on the letter of the law, in complete disregard for the spirit of community support upon which many of Kenya's public schools depend. It tells communities something to the effect that their contributions are welcome only insofar as they help in meeting obligations that are clearly legal or contractual, beyond which they count for nothing.
This, therefore, sets a very dangerous precedent, one that might lead to the breakdown of the so important community-school relationship for the development and sustainability of educational institutions in Kenya.
What is needed is a rethinking of how the law interacts with community resources. One such solution is insurance policies against the dual-use nature of school resources-school buses and other facilities insured for educational purposes and community purposes.
This would protect not just the schools and insurance firms but also ensure that communities, who are often the main financiers of these resources, can continue benefiting from them.
Secondly, these gaps require legislative intervention. Parliament may want to legislate laws that recognize and protect the communal nature of school resources by permitting the communities, which helped acquire them, to make use of such facilities without legal intimidation. Such laws would strike a better balance in an attempt to meet both the legal and social needs of the community.
In the final analysis, though legally defensible, Justice Aburili's decision is socially and morally debatable. After all, the law is to be in the service of the people, not vice-versa. And here, the law has failed the people badly. As we forge ahead with nation- building, there is a crying need for our legal frameworks to catch up with the times and reflect the real-life concerns of the communities they are intended to serve. Only under these conditions can we be certain that relations between schools and their host communities will be warm, vibrant, and mutually reinforcing.
Mr Alai is a social justice activist and MCA, Kileleshwa Ward, Nairobi County
