Court ruling on buses will hurt community, school relationship

Justice Roselyn Aburili's decision in Old Mutual General Insurance Kenya Limited v. Board of Directors, Oder Boys Boarding Special School (Civil Case E003 of 2023) is one with profound implications on the relationship that exists 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 in 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 transport 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. Local community members usually contribute their hard-earned money to buy the buses in many parts of Kenya. Some contribute through extra charges in fees or through CDF initiatives. Over the years, this joint investment has created some shared ownership where members of the community expect that in case of need, the bus should be availed 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 local communities for use during funerals, weddings, and other social and religious occasions, usually because they were bought through contributions by these very community members. Justice Aburili failed to consider this important relationship and went for the legalistic interpretation of the insurance policy. The judgment failed to consider the real-life experiences of the same people bought the bus.

The worst part of the court decision is its long-term implication for community support of schools. Once the communities feel their contributions towards raising funds for school facilities like buses are useless when needed, they will be less likely to contribute to subsequent fundraising initiatives. This could lead to deterioration of the quality of school resources, especially in rural and underprivileged communities, since community fundraising is usually the only way they can 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 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 disconnect is most evident in Justice Aburili's judgment, which tends to forget that in many 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 oversight is singularly stark in a country where the gap between those who have and those who do not continues to widen.

Justice Aburili has taken an uncompromising stance on the letter of the law, in complete disregard for the spirit of community support upon which many 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 now 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 companies but also ensure that communities, that 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 recognise 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 should serve the people, not vice-versa. 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.