https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7292

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION NO E002 OF 2026** **PETITION NO E002 OF 2026** **IN THE MATTER OF: AN ALLEGED VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF ROBYN GREEN- A MINOR** **IN THE MATTER OF: THE RIGHT OF FAIR ADMINISTRATIVE ACTION PROVIDED UNDER ARTICLE 47 OF THE CONSTITUTION OF KENYA** **IN THE MATTER OF: THE RIGHT TO EDUCATION UNDER ARTICLE 43 OF THE CONSTITUTION OF KENYA** **IN THE MATTER OF: THE RIGHT TO EQUALITY AND FREEDOM FROM DISCRIMINATION PROVIDED UNDER ARTICLE 27 OF THE CONSTITUTION OF KENYA** **IN THE MATTER OF: THE RIGHTS PROVIDED UNDER ARTICLE 46 OF THE CONSTITUTION OF KENYA** **IN THE MATTER OF: ARTICLES 19, 20, 22, 23, 28, 43, 46, 47, 53 OF THE CONSTITUTION OF KENYA, 2010** **IN THE MATTER OF: SECTION 4(1) OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4 OF 2015** **IN THE MATTER OF: SECTION 34(2) OF THE BASIC EDUCATION ACT NO 14 OF 2015** **IN THE MATTER OF: SECTION 13(2)(e) OF THE CONSUMER PROTECTION ACT CAP 501** **AG (Sued as parent and** **guardian of RG-Minor)………….………………………PETITIONER** **VERSUS** **BRAEBURN SCHOOLS LIMITED..…………………………….1ST RESPONDENT** **TIM RICHARDS……………………………………………………2ND RESPONDENT** **EMMA GOULD…………………………………………………….3RD RESPONDENT** **RULING** **INTRODUCTION** 1. In his Notice of Motion dated 21st April 2024 and filed on 22nd April 2024, on behalf of the Minor, the Petitioner herein sought, pending the hearing and determination of the Petition, a conservatory order restraining the Respondents whether by themselves, their servants, employees or any person acting on their behalf or under their direction, from implementing, enforcing or giving effect to the decision of the Respondent’s withdrawing, cancelling or otherwise revoking the placement of the Minor, at Braeburn Nanyuki International School, a conservatory order be issued compelling the Respondents to immediately reinstate and restore the Minor’s uninterrupted access to and continued participation in all the educational programmes of the said School and an order that the Respondents be restrained from refusing, denying or in any way preventing the Minor access to and continued participation in the educational programmes of the Braeburn Nanyuki International School. 2. The said application was supported by the Affidavit of the Petitioner that was sworn on 21st April 2026. The gist of his case was that the Minor, who was aged six (6) years, was admitted in Year 1 at Braeburn Nanyuki International School on 10th November 2025. He averred that the Minor maintained a satisfactory academic record and participated actively in the school life, but that on 6th March 2026, he received a verbal notice to discontinue the Minor’s placement at the school with immediate effect. He decried the unilateral decision to withdraw the Minor without providing any formal communication of the decision. 3. He asserted that he and the Minor were not accorded any fair hearing prior to the making of the said impugned decision, which constituted a violation of the right to fair administrative action under Article 47 of the Constitution of Kenya and Section 36 of the Basic Education Act. He contended that the withdrawal of the Minor from the school was likely to cause irreversible harm to the Minor’s education and future prospects. 4. He pointed out that the Respondents had admitted to failures in handling the Minor’s placement and had failed to implement a Behavioural Support Plan that he negotiated with the School on 4th March 2026. He was emphatic that the Respondents had not demonstrated any sustained or escalating pattern of behavioural concerns that would have warranted the extreme measure of removal of the Minor from the School, which he did not anticipate. 5. He averred that the withdrawal of the Minor from the School had jeopardised the Minor’s legal residency in Kenya because a confirmed enrollment in a recognised institution and a valid student pass were mandatory requirements for the Minor’s continued stay in Kenya. 6. He stated that the balance of convenience tilted in favour of the orders being granted, as failure to grant the same would cause disproportionate harm to the Minor. 7. In response thereto, the 1st Respondent swore an Amended Replying Affidavit on 30th April 2026. The same was filed on even date. The Respondents termed the Petitioner’s present application as an abuse of the court process and devoid of merit, as the Petitioner never disclosed the child’s needs before enrollment at the School. 8. They asserted that the rights of an individual could be limited under Article 24 (1) (d) of the Constitution of Kenya, which provides that there was a need to ensure that the enjoyment of the rights and fundamental freedoms of an individual did not prejudice the rights and fundamental freedoms of others. They contended that the Minor’s conduct was untenable due to constant disturbance and conflicts with fellow students and teachers, making orderly teaching impossible. They averred that even though the court found that the withdrawal of the offer at the School was improper, they were right in their action to safeguard the rights of all the other learners and the Minor. 9. They pointed out that the interests of the Minor were taken into account before the decision was made. They added that *ad hoc* and informal communications on the Minor’s behaviour were discussed with the Minor's mother on the fifth day of the Minor’s enrollment in school. They stated that the Minor did not change in her behaviour but was instead physically and verbally aggressive towards other learners, who were now afraid of the Minor. 10. They denied that the Minor was expelled and averred that it was only that he placement was withdrawn after expert advise from the Petitioner’s employer, British Army Training Unit in Kenya (BATUK) that the Minor was unsupportable in Kenya. They asserted that even if they re-offered the Minor a place at the School, the Petitioner’s employer would not pay the Minor’s fees. They, therefore, urged this court to dismiss the Petitioner’s application with costs to them. 11. The Petitioner swore a Further Affidavit on 5th May 2026. The same was filed on 6th May 2026. He stated that a clearance process was conducted by the Ministry of Defence, and no enhanced need for the Minor was identified. He explained that the reason why his employer found the Minor unsupportable in Kenya was that the Minor was not in School. 12. He asserted that the School was aware of the Minor’s profile through documentation, and the chance of high anxiety and behaviour was triggered by the relocation to Kenya before they enrolled the Minor in the School. He referred to the School Reports, which showed that the Minor had no additional needs at the time. He explained that he was not a medical doctor to make clinical determinations regarding the Minor, which trained educators had not made. 13. He pointed out that the Minor had made positive behavioural markers on the day the Respondents withdrew her placement at the School, and hence the withdrawal was unwarranted. He averred that the Minor’s challenges were consistent with age- appropriate interpersonal conflicts among children of her age. 14. He faulted the School for shifting blame to his employer and asserted that the Respondents’ conduct had to be considered independently. He stated that the effect of “withdrawal of place” and “expulsion” had similar outcomes, which was still an infringement of the Minor’s rights to education. 15. The Petitioner’s Written Submissions and List and Bundle of Documents were both dated and filed on 6th May 2026, while the Respondents’ Written Submissions and List of Authorities were both dated and filed on 11th May 2026. **LEGAL ANALYSIS** 1. The Petitioner reiterated the averments in his Supporting and Further Affidavits in his Written Submissions. He pointed out that the issues that were before the court for determination were:- 1. **Whether the Respondents’ unilateral actions violated the Minor’s rights?** 2. **Whether the court was empowered to issue the orders sought?** 3. **Whether the Petitioner was entitled to the orders sought?** 2. He submitted that this court had jurisdiction to issue a wide range of orders, which included, injunction and conservatory orders, under Article 23(3) of the Constitution of Kenya. 3. It referred this court to the case of **Gatitrau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR,** where the court therein considered whether the petitioner therein raised a *prima facie* case, whether the petitioner would suffer prejudice that could not adequately be compensated in damages if the conservatory order was not granted, and whether the grant of the conservatory order would serve the public interest and, in particular, the administration of justice. 4. He placed reliance on the case of **Giella vs Cassman Brown (1973) EA 360** whereit was heldthat before an applicant could be granted an interlocutory injunction, an applicant had to show:- 5. **That he had demonstrated a *prima facie* case with a probability of success.** 6. **That he would suffer irreparable injury, which could not adequately be compensated by an award of damages if the interlocutory injunction is not granted.** 7. **That if the court was in doubt, it would decide an application on the balance of convenience.** 8. He submitted that the facts of this case had met the threshold of a conservatory order to protect the Minor’s rights pending the hearing and a mandatory injunction to give practical and immediate effect to those rights by compelling the Minor’s reinstatement. It added that her right to education and fair administrative action were infringed upon, contrary to the Constitution of Kenya. 9. On their part, the Respondents submitted that the Petitioner had not met the threshold of being granted a mandatory injunction. They referred this court to the case of **Kenya Breweries Limited & Another vs Washington O. Okeyo [2002] EA 109** and **Locabail International Finance Limited vs Agro Export & Another [1986] ALL ER** where the common thread was that a mandatory injunction could only be granted at an interlocutory stage in special circumstances and where the case was clear of the court thought a case ought to be determined at once or the act that was done was a simple one or a summary one. 10. They also relied on the case of **Board of Management of Uhuru Secondary School vs City County Director of Education & 2 Others [2015] eKLR,** where it was held that a court was required to look at all relevant material facts before it and to consider if the grievances were legitimate and serious or they were merely vague and reckless. They asked this court to exercise restraint because the payer of the fees could not be forced to take a place at the School due to the direction of MOD. 11. They further submitted that the Minor’s best interests could not be served by remaining in an environment where the Minor’s needs, the safety of others, and specialised needs could not be met. They relied on the case of **FSL vs FNK [2022],** where it was emphasised that the child’s best interests were of paramount importance in every matter concerning the child, as was held in Article 53 of the Constitution. They argued that the best interests could not be interpreted to compel a private school to provide services that the fee-payer had deemed to be beyond the School’s capacity or expertise to handle. 12. They pointed out that the withdrawal of the Minor’s place in the School was not intended to be permanent and that they communicated responsibly in communicating the Minor’s concerns, albeit informally, which led to a professional assessment for undisclosed needs that had been prevalent for over two (2) years. 13. This court exercised great restraint in not considering the merits or otherwise of the Petition. Indeed, the risk of encroaching on the merits of the substantive issues in a petition when dealing with issues at an interlocutory stage was ever present. This court, therefore, limited itself to ascertaining the issues it found to have been pertinent for determination in the Petition to assist it in establishing whether it could issue interlocutory orders at that stage. 14. It identified the following relevant issues:- 15. **Whether withdrawal of the place for the Minor in the School was in the best interests of the Minor?** 16. **Whether withdrawal of the place for the Minor in the School was in the best interests of the Minor’s co-learners?** 17. **Whether the Minor’s behavioural challenges were a spectrum disorder or a disciplinary issue?** 1. **Whether the Minor’s behavioural profile was beyond the capacity and expertise of the School?** 2. **Whether the Minor’s behavioural profile had been determined to have been irredeemable?** 3. **Whether the Minor’s constitutional right to education was infringed, contravened or violated pursuant to the withdrawal of the place in the School?** 4. **Whether the Minor’s constitutional right to fair administrative action was infringed, contravened or violated pursuant to the withdrawal of the place in the School?** 5. **Whether a private school was bound by the Basic Education Act?** 6. **Whether the withdrawal of the place of the Minor at the School was temporary or permanent;** 7. **Whether the Petitioner’s employer’s averment that the Minor was unsupportable in Kenya referred to the Minor’s behavioural profile or the fact of not being enrolled in a recognised institution in Kenya to sustain the legal status in Kenya?** 8. **Whether the placement of the Minor in the School was dependent on the fee-payer’s consent to such placement of the Minor in the School?** 18. At this stage, the court was only concerned with establishing whether the criteria in **Giella vs Cassman Brown** (Supra) had been met. Neither the Petitioner nor the Respondents provided expert reports to explain the relationship between the Minor’s profile and the support the School could provide. This court could not, therefore, with certainty state that the Petitioner had demonstrated a *prima facie* case. In the same vein, this court could not conclude that the Minor would suffer irreparable damage if an interlocutory injunction was not granted. 19. However, in further considering whether or not to grant these interlocutory orders, this court had due regard to Article 53 (1)(b) of the Constitution of Kenya, 2010, which provides as follows:- **“Every child has the right to free and compulsory basic education** (emphasis court).**”** 1. It also looked at Article 53(2) of the Constitution of Kenya that states as follows:- **“A child’s best interests are of paramount importance in every matter concerning the child.”** 1. It also considered Section 8 of the Children Act Cap 141(Laws of Kenya) that stipulates that:- 2. **In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—** 3. **the best interests of the child shall be the primary consideration;** 4. **the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.** 5. **All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—** 6. **safeguard and promote the rights and welfare of the child;** 7. **conserve and promote the welfare of the child; and** 8. **secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.** 9. **In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.** 10. The Minor was currently out of school and had been out of school since 6th March 2026. The Minor’s legal status in Kenya was at stake for not being enrolled in school. Relocating to the United Kingdom during the pendency of the Petition herein would not be in the Minor’s best interests. Indeed, the Minor’s family was currently based in Kenya, with the Petitioner working for BATUK. There was no indication that the Minor would get support during the hearing and determination of the Petition herein while in the United Kingdom. 11. Weighed against the interests of the Respondents, it was evident that the aforesaid provisions of the law put the Minor’s interests on a pedestal higher than those of the Respondents. The issues that this court enumerated hereinabove were pertinent and weighty. They could not be wished away. This, therefore, persuaded this court to find and hold that the balance of convenience tilted in granting the Petitioner conservatory and mandatory injunctive orders as it determined the Petition. The special circumstances herein called for a mandatory injunction to be issued pending the hearing and determination of the Petition herein. 12. The question as to whether the Petitioner’s Petition would succeed at the end of the day was another matter altogether. Notably, this court could not determine the strength of this case without the issues it had listed hereinabove being ventilated and a determination made. 13. This court noted the Respondents’ assertions that the safety of the Minor and the Minor’s co-learners was at risk with the Minor attending the School. As there was no expert documentation that would have assisted this court to find that no such risk existed or it if at all, the same existed, as the Respondents had contended herein, there was, therefore, a need to determine the Petition expeditiously to give both parties direction in this matter. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Notice of Motion application dated 21st April 2024 and filed on 22nd April 2024 was merited and the same be and is hereby allowed in terms of Prayer Nos (4), (5) and (6) therein. 2. For the avoidance of doubt, the said orders have been granted pending the hearing and determination of the Constitutional Petition dated 21st April 2026 and filed on 22nd April 2026 as the prayers pending the hearing and determination of the present application had already been overtaken by events. 3. It is hereby directed that the Petitioner and Respondents jointly agree on an appropriate support system for the Minor while in School pending the hearing and determination of the Petition herein. 4. The parties are at liberty to seek redress from the court in the event the support system for the Minor was not workable to enable the court to issue further orders and/or directions. 5. It is further hereby directed that this matter be mentioned on 2nd July 2026 with a view to the parties informing the court on the status of the support system for the Minor in the School and/or to confirm the filing of pleadings in respect of the Petition herein and/or for further orders and/or directions. 6. It is so ordered. **DATED** and **DELIVERED** at **NANYUKI** this **22nd** day of **May** 2026 **J. KAMAU** **JUDGE**