https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8592

Bunde & 13 others (Suing on Their Own Behalf, on Behalf of the Parents of Students of Ambira High School, and as Officials/Members of Ambira Boy’s Community Based Organization) v Board of Management Ambira High School & 6 others (Petition E006 & E008 of 2026 (Consolidated)) [2026] KEHC 8592 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8592 (KLR) Republic of Kenya In the High Court at Siaya Petition E006 & E008 of 2026 (Consolidated) DK Kemei, J June 19, 2026 IN THE MATTER ARTICLE 1,10,22,23,27,29,22,35,35,40,43,47,48,50,56,258 AND 259 OF THE CONSITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT. NO. 4 OF 2015 AND IN THE MATTER OF THE BASIC EDUCATION ACT NO. 14 OF 2013 AND IN THE MATTER OF THE VIOLATION AND THREATENED VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS AND THE STUDENTS/APRENTS THEY REPRESENT. Between Fredrick Bunde 1st Petitioner Michael Oluoch 2nd Petitioner Sylvester Oloo 3rd Petitioner Ken Owitchira 4th Petitioner Sylvester Odhiambo 5th Petitioner Victor Otieno 6th Petitioner Dinah Murumba 7th Petitioner Dennis Shikuku 8th Petitioner Pamela Aloo 9th Petitioner Millicent Givai 10th Petitioner Kennedy Onyango 11th Petitioner Joseph Omondi 12th Petitioner Everlyne Adhiambo 13th Petitioner Caroline Ndiga 14th Petitioner Suing on Their Own Behalf, on Behalf of the Parents of Students of Ambira High School, and as Officials/Members of Ambira Boy’s Community Based Organization and The Board of Management Ambira High School 1st Respondent Boas Adit 2nd Respondent Eliud Onyango 3rd Respondent Bonface Otula 4th Respondent The Cabinet Secretary, Ministry of Education 5th Respondent The Hon. Attorney General 6th Respondent Teachers Service Commission 7th Respondent Ruling 1.The Petitioners herein had earlier filed two separate petitions namely Petition Number E006 of 2026 at Siaya High Court and another one namely Petition Number E355 of 2026 at Milimani High Court Nairobi. The Nairobi Petition was later given the number E008 of 2026 upon transfer from Nairobi Milimani High Court to Siaya High Court. The two Petitions were thus consolidated on 18/6/2026 and that proceedings were agreed to proceed in Petition E006 of 2026. 2.Filed contemporaneously with the Petitions were notices of motion dated 2/6/2026 and 4/6/2026 both of which sought for interim reliefs pending determination of the applications and Petitions. 3.The application dated 2/6/2026 sought for the following reliefs:i)Pending the hearing and final determination of this Petition, this Honourable Court be pleased to issue a conservatory order/injunction restraining the 1st, 2nd, 3rd and 4th Respondents, their agents, servants, employees, or any person acting on their behalf or instructions, from demanding, collecting, enforcing or in any manner compelling students or parents/guardians of Ambira High School to pay the sum of Kenya Shillings Thirty-Three Thousand (Kshs. 33,000/=) or any other amount purportedly levied as a 'damage penalty' arising from the student unrest of May 2026.ii)Pending the hearing and final determination of this Petition, this Honourable Court do issue an order restraining the Respondents from withholding or denying readmission to any student on account of failure to pay the said levy of Kshs. 33,000/=.iv)Costs of this application be provided for.v)Any other or further relief that this Honourable Court may deem just and fit to grant. 3.The application is premised on the grounds set out in the body of the Petition herein and the supporting affidavit of Michael Oluoch, the 2nd Petitioner herein, which raised the following grounds:a)The matter is urgent as students are required to report to school as from 2nd June 2026 and the Respondents have made the payment of Kshs. 33,000/ as a precondition for readmission, causing irreparable harm and prejudice to the students and their families.b)The imposition of the said levy is arbitrary, unlawful, and unconstitutional on its face, as it was imposed without any legal authority, parent participation, or due process.c)The 4th Respondent's mandate as a Board of Management has expired and no new, duly constituted board exists to lawfully exercise the power to impose such a levy, rendering any such decision null and void.d)The Petitioners and the students/families they represent stand to suffer irreversible prejudice including denial of the constitutional right to education if the injunction is not granted pending the hearing of this Petition.e)The balance of convenience tilts overwhelmingly in favour of granting the conservatory orders, as the Respondents stand to suffer no prejudice from the maintenance of the status quo pending the hearing. He further went ahead to aver inter alia; that he is a parent of a student enrolled at Ambira High School, hence competent and duly authorized to swear this Affidavit on his own behalf and on behalf of the other Petitioners; that in May 2026, there occurred incidents of student unrest at Ambira High School which allegedly resulted in destruction of school property; that following the said unrest, the Respondents purported to impose a levy of Kenya Shillings Thirty-Three Thousand (Kshs. 33,000/=) upon each student as a damage penalty; that the said levy was imposed arbitrarily and without any consultation, participation or engagement with parents, guardians or students and without disclosure of the basis upon which the amount was assessed; that the Respondents have directed that student will not be readmitted to school unless the said amount is paid in full; that students are required to report back to school from 2nd June 2026, and unless this Honourable Court intervenes, many students stand to be denied access to education solely on account of inability or refusal to pay the impugned levy; that the said levy has caused widespread anxiety and hardship among parents and guardians, many of whom are unable to raise the amount demanded within the limited period provided; that that the right to education guaranteed under the Constitution cannot lawfully be curtailed through arbitrary financial penalties imposed without due process and lawful authority; that the tenure of the Board of Management of Ambira High School has expired and that any decision made in the absence of a duly constituted board is unlawful, null and void; that unless the conservatory orders sought are granted, students will suffer immediate and irreparable prejudice through exclusion from school, interruption of learning, emotional distress and violation of their constitutional rights; that the Respondents shall suffer no prejudice if the status quo is preserved pending the hearing and determination of this Petition, whereas the students and parents stand to suffer substantial and irreversible harm if the impugned decision is implemented; that the application has been brought in utmost good faith and in the interest of safeguarding the constitutional rights and welfare of the affected students. 4.The second application dated is dated 4/6/2026 which seeks the following reliefs:i)That the application herein be certified urgent, heard ex-parte and service of the same be dispensed with in the first instance.ii)That pending the hearing and determination of this application inter-partes, this Honorable court be pleased to issue Conservatory Orders restraining the Respondents either by themselves or through their servants and/or agents or any other claiming under them from compelling the Petitioners to pay Kenya Shillings Thirty Three Thousand (Kshs.33,000/=) as indicated in the Respondents’ letter to the Petitioners dated 30th May 2026 in contravention of the Constitution of Kenya and this Honorable court be pleased to issue Conservatory Orders compelling the Respondents to unconditionally admit the Petitioners’ children to school with immediate effect.iii)That pending the hearing and determination of this Petition, this Honourable court be pleased to issue Conservatory Orders restraining the Respondents either by themselves or through their servants or agents or employees and or any other claiming under them from intimidating, blackmailing, threatening or victimizing the Petitioners and the Petitioner’s sons and to guarantee the Petitioner’s sons their safety within the school as required by the Ministry of Education in the Ministry’s guideline on School’s safety rules and regulations and to safeguard the Petitioner’s Constitutional rights and freedoms.iv)That pending hearing and determination of this Petition, this Honourable Court be pleased to order the 1st and 2nd Respondents to tender the School’s Safety Manual in adherence to the Ministry of Education’s School Safety Rules and Regulations and table evidence of compliance giving detailed information on areas covered in terms of CCTV installations, Fire Extinguishers available, Bed spacing, Dormitory entry and exit points, the distance between the Kitchen and the Dormitories, the location of the Gas Cylinders /Boilers and any other inflammatory objects, the safety of students inside the school, monitoring and control of movement in and outside the school, evaluation reports among other safety requirements and if the same has not been complied with as directed by the Ministry of Education, then this Honourable Court to order the 3rd Respondent to conduct an audit of the same and table the report in court and an order be issued to the 1st and 2nd Respondents of mandatory compliance of the Schools` Safety Rules and Regulations with immediate effect.v)That costs of this application be borne by the Respondents. 5.The said application is based on the grounds set out thereunder and by the affidavit of Sylvester Odhiambo which are inter alia; that the Petitioners are parents of Grade 10 Students at Ambira High School (hereinafter called "the School") which in this matter is represented by the Respondents; that on or about 18th/19th May 2026 there was a student strike at the school which occasioned severe damage to school and student property resulting to the school being closed indefinitely; that as per information provided to the Petitioners by the 1st Respondent in a parents meeting on 21st May 2026, the student strike was undertaken by the Form 4 students who had grievances with the school administration including but not limited to suspension of the school captain who was accused of practicing homosexuality/sodomy and a demand to be given a leakage to the Kenya National Examination Council (KCSE) examination, which demands the school was unable to satisfy; that during the meeting aforesaid, the 1st Respondent assured the Petitioners that their children/students that is Grade 10 pupils will not be affected by any punitive measures issued by the school as a result of the damage to property since the only players in the strike were Form 4 students; that the 1st Respondent further gave a personal commitment that parents of Grade 10 students, the Petitioners herein will not bear any costs towards the repair of the damaged school property for the reasons aforesaid; that however, in a shocking turn of events and in blatant reversal of the 1st Respondent’s earlier commitment in the meeting held on 21st May 2026, the 1st and 2nd Respondents through a letter dated 30th May 2026 informed the Petitioners that Grade 10 students to report on 2nd June 2026 while all students were required to report on the specified dated without fail and that assessment report from Public works indicated that the total sum of the damages caused by the strike amounted to Kshs.50,000,000/= and that the penalty on the damages amounted to Kshs.33,000/= per student, inclusive of Grade 10 students and that all students were to be readmitted to the school; that due to the aforesaid actions by the Respondents, the Petitioners’ children have been denied entry to school in order to access education in contravention of Articles 43(f) and 53(1)(b) of the Constitution of Kenya; that the Petitioners’ children’s right to Fair Administrative Action has been grossly violated by the Respondents’ demand that each students pays a global sum of Kshs.33,000/= without granting the students a right to be heard as is guaranteed under Article 50 of the Constitution of Kenya; that from the foregoing and in view of the evidence provided by the Petitioners herein, it is apparent that the Respondents’ actions amount to a gross violation of the Petitioners’ children’s constitutional rights which actions must be sanctioned by this Honorable court; that unless this Honorable court grants the Conservatory Orders sought in this application the Petitioners’ children are bound to suffer irreparable loss, as the Respondents have continued to deny them their constitutional right to education without any justification which constitutes a flagrant violation of the Petitioners’ children’s rights and fundamental freedoms as envisioned by the Constitution of Kenya 2010 and other Laws of Kenya; that it is only fair and just that this Honorable court restrains the Respondents from violating the Petitioners’ children’s right to education by denying them entry to school to access education without payment of the impugned Kshs.33,000/=; that no Prejudice will be suffered by the Defendants/Respondents if the orders sought are granted. 6.The Respondents filed replying affidavits in opposition to the application. The Principal of the affected school, Boaz Adit filed a replying affidavit in opposition to the application wherein he averred inter alia; that the application is incompetent, without merit frivolous and vexatious; that the Respondents vehemently opposes the issues raised in the Applicants' application as they are misconceived, misguiding and legally untenable based on the following grounds; that he is the Chief Principal of the Ambira High School having been appointed as such at the beginning of this year; that currently the number of students enrolled at the school stands at over 1,500 students; that in the morning of 18th May 2026, a grade 10 pupil came to his office and reported that there were form 4 students who were making sexual advances at him and that he had previously reported the matter to one of the teachers; that following that report, he summoned the said teacher and directed him to conduct further investigation on the issue of sodomization within the school; that after investigation and upon gathering enough evidence, one student was sent home and later in the afternoon, he held a meeting with the form 4 students; that in the meeting, several issues arose among them were the issues of Malpractice in National examinations, sodomy and the introduction of 8.00PM tea; that he assured the students that investigation would be done and stern action would be taken against any student found making sexual or forcing sexual advances on other fellow students; that he informed the form 4 students that the issue of cheating in National Examinations will not be tolerated under his watch and assured them of the commitment the teachers have in ensuring that every student's academic need is catered for and he encouraged them also to work hard; that he informed the students that the issue of 8.00PM tea would have financial implications on their parents and that the school would discuss the same with the parents first; that the meeting ended at around 6.00 PM and the students went to take supper; that at around 8.00 PM, he heard noises up school and rushed to the administration block where he found teachers trying to calm the students down to no avail; that the students wanted the head boy out of the school and so he went into hiding; that the disruption escalated, he tried calming them down but the students persisted and they started throwing stones at the teachers and him; that the police were called but they were unable to contain the situation as the students went on wanton destruction of property; that the wanton destruction of school property took place at night, lights were vandalized and switched off hence it was difficult to pinpoint the culprits; that in the morning of 19.05.2026, a multi-agency meeting consisting of the school's board of management, Ministry of Education County Director of education and SCDE. Security agencies/area OCPD, Teacher service commission/CD-TSC and National Intelligence service Agent (NIS) was held and the members resolved that:a)The school be closed indefinitely with immediate effect.b)Parents meeting be scheduled immediately.c)School Board of management to hold a meeting to discuss way forward.; that on 21.5.2026, the board of management convened a meeting with the teachers and the parents and other officials at the school's main hall; that in the meeting the atmosphere was extremely hostile and highly volatile as the parents shut down the Chairperson of the 2nd Respondent before he could finish addressing them; that the parents also shut down the Parent-Teachers Association (PTA) representative one Mr. Benjamin Siguda before he could finish his speech, despite his efforts to maintain order; that due to the harsh environment created by the parents, the Sub County Director, Mr. Bonface Otula was not able to give out his full speech as he had intended; that the Ambira boys' community-based organization (Consisting mostly of parents of Grade 10 pupils) took over the meeting led by their Chairman Mr. Fredrick Bunde and their patron known as Engineer Mark Onyango where they allowed me and other officials to address them; that he gave a chronological order of events of what transpired on the night of 18.05.2026 to 20.05.2026; that the various issues were discussed; that the Public works officer gave a report on the extent of damage which was still inconclusive at that time; that the report indicated that the following areas in school had been affected by the wanton destruction of property by the students:- The principal's office- The Secretary's office- The Store- The students' welfare office- The staff toilet with the Administration block- The strong room- All departmental offices- The shaving room- The Teachers' Quarters- The TV Dish- The Bursars office- The Reception- Two Deputy principals' office- The staffroom- The health room- The school canteen- The lighting rooms- The Biometric equipment- Window panes in ultra-modern block and lower-class rooms- Unity hall- Kitchen and store- Fence- Gate sentry Boxes- Dormitories- Perimeter wall; that at no time during the meeting did he personally or otherwise state that strike was undertaken by form 4 and form 3 students or even assured the parents of grade 10 pupils that they will not be affected by any punitive measures that would be issued by the school as a result of the mass indiscipline which culminated to wanton destruction of school property; that Paragraph 8 is false as he did not give any personal commitment to Grade 10 parents that they will be exempted from bearing costs towards the repair of damaged school property; that since the wanton destruction of school property took place at night, and none of students were willing to listen to their teachers including the Grade 10 pupils, it was difficult to ascertain the students who participated in the destruction of school property; that he verily believe to be true that it is not within his purview to personally exempt Grade 10 students as the mass indiscipline issue had been taken over by the 2nd and 3rd Respondents and further it is the duty of the 2nd Respondent to determine cases of pupils' discipline and make reports to the County Education Board as provided for under Section 59 of the Basic Education Act Cap 211; that the Board of Management is mandated to maintain discipline, protect school property, and ensure the continued provision of education; that where school property is destroyed, the board of management is entitled to appoint a registered loss assessor to investigate the incident, assess the loss suffered, and take lawful measures aimed at restoring the damaged facilities and ensuring accountability; that on 29.5.2026 the Director of Public works submitted two reports both dated 28.05.2026 to the school's Board of Management. The report on the proposed estimate for damages caused by student unrest containing Building works only was estimated at KSHS. 21,061,661.80 while the report on the estimate for damages caused by students' unrest on all works consolidated amounted to KSHS. 50,003,110.80; that following the report by the public works, a special Board of management and multi-agency meeting was convened on 29.05.2026 in which it was unanimously agreed that there was no way of apportioning damages to those who participated most during the unrest; that the areas damaged included :-Window panes in ultra-modern block and lower-class rooms- Unity hall- Kitchen and store- Fence- Gate sentry Boxes- Dormitories- Perimeter wall;that at no time during the meeting did he personally or otherwise state that the strike was undertaken by form 4 and form 3 students or even assured the parents of grade 10 pupils that they will not be affected by any punitive measures that would be issued school as a result of the mass indiscipline which culminated to wanton destruction of school property. (Attached herewith are minutes of the meeting held on 21.05.2026); that Paragraph 8 is false. He did not give any personal commitment to Grade 10 parents they will be exempted from bearing costs towards the repair of damaged school property; that since the wanton destruction of school property took place at night, and none of students were willing to listen to their teachers including the Grade 10 pupils, it was difficult to ascertain the students who participated in the destruction of school property; that he believe to be true that it is not within his purview to personally exempt Grade 10 students as the mass indiscipline issue had been taken over by the 2nd and 3rd Respondents and further it is the duty of the 2nd Respondent to determine cases of pupils' discipline and make reports to the County Education Board as provided for under Section 59 of the Basic Education Act Cap 211; that following the report by the public works, a special Board of management and multi-agency meeting was convened on 29.05.2026 in which it was unanimously agreed that because there was no way of apportioning damages to those who participated most during any document indicating violation of any constitutional right that the respondents will deny entry to school any student unless that said amount is paid in full; that the Respondents have admitted several students back to school some of whom have paid the said amount in full while several other students have also been admitted back to school after paying at least half of the said amount and upon signing a damage commitment form to clear the balance endue cause; that the students have reported back to school and teaching is continuing despite the hardship that the respondents are facing as a result of the mass indiscipline; that the students will be breaking for Mid-term Holiday from 19.06.2026 to 30.06.2026; that it is therefore not true that the school has been closed indefinitely as alleged by the Applicants; that, if any student has not reported back to school, it is the parent's own personal choice for the school remains open to engage parents on case-to-case basis on the issue of payment of Kshs. 33,000/= as he stated on Paragraph 37 above; that he believes to be true that the Applicants have presented mere anxiety and hardship which do not meet the threshold expected to be demonstrated in an application for conservatory orders; that it is purely the students lack of discipline that escalated to wanton destruction of school properties that gave rise to the public works report assessing the loss to the tune of Kshs. 50,003,110.80/=, and it is only fair and just that the students bear the costs of the repair work; that the school has been in existence for a long time and the safety of the students is of paramount importance; that the safety was intact before the unrest of 18.05.2026 which led to the destruction of fire extinguishers, water reticulation and pumping system, gas system, dormitories, cctv cameras among others and it is therefore impossible to ascertain compliance with orders sought in the application as the renovation works is ongoing and may not be completed soon if the orders sought are granted by this Honorable court; that, the Applicants are aiming at running the risk of permanent closure of the school if repairs works are not gradually and systematically done and these repairs can only be achieved if the damage amount of Kshs. 33,000/= is paid either in full or in instalment upon signing a commitment form; that further to the above, and the 2nd Respondent being a public entity, the government usually conduct routine inspection of schools on safety standards as it is a ministerial function carried out annually; that he believe to be true that the there are numerous ways to solve issues, and mass indiscipline leading to wanton destruction of school property is not one of them and the Honourable court should be slow to interfere with the administrative and managerial decisions of the 2nd Respondent where such decisions are made in good faith and for the proper functioning of the school; that the Respondents will suffer prejudice should the court grant the orders sought as the respondent lack funds to carry out repair works caused by learners during the unrest; that he believe to be true that the Applicants have failed to demonstrate that they stand to suffer prejudice incapable of remedy should the court decline to grant the orders sought and further, the students are already back in school and learning is ongoing; that he believe to be true that the Supreme Court in Gatirau Peter Munya V Dickson Mwenda Kithinji & 2 Others EKLR held that conservatory orders should be granted only after considering the inherent merits of the case, public interest, constitutional values and proportionality; that he believe to be true that the court further reiterated in the case of Samuel Njoroge Waweru Vs Ministry Of Education And 3 Others (PET NO.91 OF 2017) KLR and the case of Board Of Management Of Uhuru Secondary School Vs City County Director Of Education And 2 Others KLR the grounds upon which Conservatory orders may be granted; that he believe to be true that the public interest weighs heavily against the grant of the conservatory orders sought; that the destruction of school property during the unrest occasioned substantial loss estimated at approximately Kshs. 50,003,110.80, and the Respondents require resources to restore the school back to its glory for the benefit of all the 1,500 learners; that in the interest of justice that the Honourable court find the Applicants' application unmerited and dismiss the same with costs to the Respondents. 7.Michael Oluoch, filed a further affidavit in response to the replying affidavit of Boaz Adit, the Principal of the affected school wherein he averred inter alia; that; that while the 2nd Respondent describes the applications as "incompetent, frivolous and vexatious," the truth is that he is trying to dress up an illegal collective punishment as a lawful school levy as calling a wrong name does not make it right; that the 2nd Respondent admits in paragraphs 16 and 20 of his affidavit that the destruction happened at night, lights were vandalized, and it was "difficult to pinpoint the culprits." He then admits that the Board nevertheless decided that "all students were proposed to bear the cost equally" simply because there was no way to know who did what. This is the very definition of collective punishment, which our Constitution does not permit; that the 2nd Respondent claims the Kshs. 33,000/= was not arbitrary and cites Regulations 33(c), (d), 35, and 36 of the Basic Education Regulations, 2015 which he has read with his advocates and that there is nowhere that they authorize a school to demand a blanket penalty from innocent students for damage they may not have caused and that the regulations deal with general discipline and lawful recovery of actual losses from identified wrongdoers after a fair process which was not followed; that the 2nd Respondent states in paragraph 26 that "it is not true... that students will not be readmitted if the said amount is not paid in full" yet the circular of 30th May 2026, which he does not deny issuing, states in black and white that the Kshs. 33,000/= is "a precondition for readmission; that the reality on the ground contradicts the 2nd Respondent's denial since he is aware of a specific student, Samuel Nalo, admission number 13196, currently in Grade 10, who presented himself for readmission but was turned away solely because his parents could not pay the Kshs. 33,000/= and he remains at home and hence this is not a theoretical fear—it is actual exclusion; that the verbal instructions given to students by their class teachers make the position even clearer as class teachers have directly advised students not to report to school unless they have cleared the Kshs. 33,000/= levy in full and which confirms that the threat of exclusion is not just on paper it is being actively enforced on the ground; that the 2nd Respondent claims in paragraph 27 that some students who paid partially were readmitted but this is a red herring and raises the question whether a few managed to negotiate and whether it is lawful to keep any child out of school for failing to pay a penalty that has no legal basis; that regarding the Board of Management's mandate, the 2nd Respondent baldly asserts in paragraph 28 that the Board is "properly constituted" under Section 55 and 56 of the Basic Education Act but provides no evidence of when the current Board was appointed or when its term expires; that the 2nd Respondent argues that the petitioners have shown only "anxiety and hardship" and not sufficient prejudice yet there is greater prejudice in sending a child home permanently one month before KCSE and that some parents earns Kshs. 10,000 a month who cannot find Kshs. 33,000 in three days; that the 2nd Respondent claims the Respondents will suffer prejudice because they lack funds to repair the school but two wrongs do not make a right as the law does not allow an illegal levy simply because the school is desperate yet the proper path was to identify the actual culprits, take disciplinary action against them, and pursue their parents for proven losses instead of punishing 1,500 students for the acts of a few which is not only illegal but is a lazy administration; that furthermore, the Respondents are not without options. The school receives annual capitation from the national government under the free day secondary education programme, which is meant to cover operational costs and basic repairs. In addition, the school has a development fund that can be lawfully applied toward restoring damaged infrastructure. If the Respondents genuinely need money for repairs, those are the proper channels not imposing an illegal levy on innocent students. And even if the court ultimately finds against us, the Respondents can still recover the Kshs. 33,000 from the Petitioners or the affected parents at that stage. No irreparable harm will befall the school if the conservatory orders are granted. The only irreparable harm in this equation is the one already being suffered by children who are out of school today; that the 2nd Respondent says the orders we seek are "final in nature." That is a technical objection that misses the point. If the court does not stop this levy now, by the time the full hearing is done, hundreds of children will already have dropped out. That is why conservatory orders exist to prevent irreparable harm before it is too late; that the public interest, contrary to what the 2nd Respondent claims, lies firmly with protecting the right to education of over 1,500 children. No public interest is served by turning away children from school because their parents cannot afford an illegal fine; that believe that the Supreme Court has repeatedly held that where a constitutional right is threatened with irreparable harm, a conservatory order must issue even if the merits are still to be fully determined. This is precisely such a case. 8.Sylvester Odhiambo the 1st Petitioner in the matter herein stated inter alia; that he is well conversant with the matter at hand and I have had had conduct of the matter herein from its inception to date with full permission and authority to swear this further affidavit on his own behalf and on behalf of the other co – Petitioners who are 165 in total; that the school unrest that occurred in the night of 18th May 2026 was due to negligence as it was a situation that ought to have been contained right from the onset; that at Paragraph 6, 7,8,9,10,11,12,13,14 and 15 of his Replying Affidavit dated the 16th of June 2026, the Chief Principal Mr. Boaz Adit admits that the issue emanated from the prevalent homosexual behavior in the school that was perpetuated by a section of Form 4s and the School Head Boy/Captain who the students were demanding for his suspension; that the said Replying Affidavit, the Chief Principal states as follows: “I assured the students that investigations would be done and stern action would be taken against any student making sexual or forcing sexual advances on other fellow students.”; that while at Paragraph 14 of his Replying Affidavit, the Chief Principal confirms that the students wanted the Head Boy out of the school so he went into hiding, this clearly demonstrates the indecisive nature of the deponent since if all that the students wanted was the suspension of the students who are practicing homosexuality in the school starting with the Head Boy, what stopped the Chief Principal from taking a decisive action against them?; that from the averments as contained in Paragraph 8,9,10,11,12 and 13 of the Replying Affidavit, it is clear as day follows night where the origin/source of the school unrest and who exactly had tendered their grievances to the Principal, at Paragraph 8 of the Replying Affidavit, the Principal confirms that he held a meeting with the Form 4 students and he goes further at Paragraph 9 to Paragraph 13 on what transpired in the said meeting including the National Examinations(KCSE) Malpractices/cheating, from these averments, it is very clear as day follows night that the grievances came from the Form 4 students, therefore the Grade10 students had absolutely NO reason to go on strike or to cause mayhem/chaos; that the Grade10 students were admitted in the school between the 11th of January 2026 and the end of February 2026, this simply means that they are relatively new in the school, barely 3 months old as at the date of the school unrest, Paragraph 6 of the Replying Affidavit confirms that the Grade 10 are the victims of the said homosexuality as they are the most vulnerable group in the school, in his own averments at Paragraph 6 of his Replying Affidavit, the Chief Principal confirms that a Grade 10 student visited his office and reported that there were some Form 4 students who were making sexual advances to him, this is a clear evidence that the Grade10 are the most vulnerable and the weakest in the school and could not have instigated the school unrest; that the same is confirmed from the video evidence that was recorded during the Parents meeting held on the 21st of May 2026, the Chief Principal while giving the chronology of the events of the 18th day of May 2026, he stated that majority of Grade 10 students were directed to seek refuge at a nearby Primary School immediately the strike broke out as they were stranded and they spent the night in that Primary school. This is a clear testimony that the Grade 10 were actually evacuated or assisted by some of the older boys to seek refuge in the nearby school, these Grade 10 students being new in the school were probably clueless and had no escape route when the strike broke out and that is the reason why they had to seek refuge at a nearby school, a person who seeks refuge or one being evacuated cannot be a perpetrated of the dire situation but rather a victim of such circumstances. (Annexed and Marked ``MPP – 1 is the video link of the Chief Principal narrating the events of the 18th of May 2026 and confirming that Grade 10 students sought refuge in a nearby Primary school immediately the strike broke out; that the averments at Paragraph 18 that a meeting was held on the 18th of May 2026, however, I vehemently oppose the averments contained in Paragraph 19 and 20 of the Replying Affidavit and state that the environment was very cordial but firm since parents were demanding answers and they also wanted to know exactly what transpired, the reason for the school unrest and what measures the school administration had taken, the solutions to the problems/issues raised and the way forward; that it is not true that Parents who attended the meeting called on 21st May 2026 were rowdy or that they did not allow the Respondents to speak, neither is it true that the environment was hostile and volatile as the Respondent wants this Honourable Court to believe but rather, on the contrary, Parents who attended the meeting allowed the speakers of the day to speak as evidenced in the annexed recorded video of the meeting held on the 21st May 2026 confirming that the Chief Principal had amble time addressing Parents and he even apologized on any wrong doing/negligence on his part which apology was accepted by the Parents. (Annexed and Marked ``MPP – 2 is the video link of the Chief Principal narrating the events of the 18th of May 2026 and apologizing to Parents for any wrong doing/negligence on his part; that they vehemently oppose and give our strong objections to the averments at Paragraph 23, 29, 30 and 31 of the said Replying Affidavit dated 16th June 2026 and state that the damages as illustrated by the Respondent are false since the school has no perimeter wall except on the front side (at the gate) and there was no wall brought down or damaged and the store was not damaged. The amount quantified and arrived at of Kshs. 50,003,011.80/- as the total amount/cost of the damage is not only inflated but the same is also outrageous, unreasonable and far-fetched; that they state categorically that there was no independent valuer`s report, no Ministry of Works reports as alleged and the same has not been tabled in court as evidence, therefore that figure should be dismissed in totality; that no break down has been provided to justify this figure and there is no clear guideline on how it was arrived at, no Bill of Quantity attached and no iota of evidence provided in court to prove the same; that it is important to note that the school was not burnt down, no single structure was brought down and the photographic evidence provided by the Respondent only shows tables and chairs turned upside down, books and papers littered all over the place, broken windows and damaged computers and a few damaged items. Such kind of damage as shown by the Respondent cannot amount to such a substantial amount of money by any means; that the averments as contained in Paragraph 24,25,26,27, and 28 of the Replying Affidavit are dismissive, misleading and pure lies only meant to sanitize the deponent since the Chief Principal was very sympathetic to Grade 10 Parents and kept on assuring them that they should not worry about the aftermath of the strike and since Grade 10 parents had lost majority of their son`s personal belongings because many Grade 10 students were led out of the school when the strike broke out leaving behind all their belongings. Some of Grade 10 students arrived home with just slippers and games kit that they were wearing as at the time when the strike broke out since they were having their evening preps and were clueless of what was about to happen, therefore they were caught completely unaware; that his son arrived in Nairobi with a short and pullover/sweater that he was wearing as at the time when the strike broke out and up to date he does not know where all his other personal effects are or whether they were kept safe or not; that the averments by the Respondents as contained in Paragraph 30,31,32,33,34,35, and 36 of his replying affidavit are opposed for the following reasons: First, the school failed to involve the Parents before coming up with the decision to levy Kshs. 33,000/- on all the students. The Chief Principal stated that he will call Parents to a second meeting to deliberate on the same but he failed to do so as promise only to send a letter dated 30th May 2026 demanding Kshs. 33,000/- from all parents; that Article 47(1) of the Constitution of Kenya 2010 provides that:"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”; that from the foregoing and as stipulated in the Constitution of Kenya 2010, such drastic, severe and adverse decision ought to have been made only after total participation and consultation with parents who are key stakeholders in the school since the said decision had a serious bearing/ramifications on them; that they disagree with the averments of Paragraph 34 and 35 of the said Replying Affidavit and states that we have been advised by our advocates on record which advise we strongly believe to be true that the quoted Article 47(1) of the Constitution of Kenya 2010 is supreme and supersedes the provisions of Regulations 35(1), 33 ( c ), (d) and Regulations 36(1),(b), 2 and 3 of the Basic Education Regulations 2015; that they have also been advised by our advocates on record which advise we strongly believe to be true that Article 53(1), (b) and 43(f) of the Constitution of Kenya 2010 states that;“Every child has the right to a free and compulsory basic education;” Whereas;Article 43 of the Constitution of Kenya on Economic and social rights provides as follows –“Every person has the right to education.”; that while on the same breathe, it goes further in Article 53(2) of the Constitution to stipulate that: “A child's best interests are of paramount importance in every matter concerning the child.” ; that in view of the foregoing, it is of utmost importance that the best interest of the child forms the integral part of any decision making involving a child and we do submit that the Respondent did not take into account the best interest of our children before coming up with such decision to levy Kshs. 33,000/- on all the students before re – admission back to school resulting on our children staying at home unnecessarily; that they that the decision by the Respondent to levy uniform/collective punishment on us is unconstitutional, illegal, null and void ab initio; that the unilateral decision as arrived at by the school is detrimental to us parents considering the fact that schools had just opened and students sent home with a demand for zero balance before being admitted for second term therefore most parents had exhausted all their resources to ensure that their sons remain in the school so as to continue with learning activities only to be sent back home due to the school unrest; that the averments as contained in Pararaph36, 37, 38 and 39 are false and only meant to mislead this Honourable Court since the letter authored by the 1st and 2nd Respondents dated 29th May 2026 and another version dated 30th May 2026 were very unequivocal with finality that ALL students were required to pay Kshs. 33,000/- first which was to be deposited in a Bank Account Details provided and it stated as follows:a)Grade 10 students to report on 2nd June 2026. All students were required to report on the specified dated without fail. Assessment report from Public works indicated that the total sum of the damages caused by the strike amounted to Kenya Shillings Fifty Million Only. (Kshs.50, 000, 000.00/=.)b)The penalty on the damages amounted to Kenya Shillings Thirty Three Thousand (Kshs.33, 000/=) per student, inclusive of Grade 10 students.c)Re – admission requirements were Student`s Birth Certificate, Results Slips/KCPE Certificate, Assessment Slip, Boarding items including Box, Mattress, Bed Sheets, Uniform and Personal effects, Academic Notes, files, text books, calculator and Mathematical Set.d)All students were to be re - admitted to the school.; that this said deposit of the WHOLE amount plus school fees balance had to happen first before the student is re – admitted. (Annexed and Marked ``MPP – 3(a) is the said letter dated 29th May 2026 and a second version dated 30th May 2026 all demanding a deposit of Kshs. 33,000/- to be deposited in the school`s Bank Account Number; that the averments at Paragraph 42 touching on the safety of the students is false since the school is lacking fire extinguishers as stipulated by the Ministry of Education`s School Safety Rules and Regulations, there are no fire extinguishers inside the dormitories, no CCTV Cameras, no water reticulation and pumping system and the two big gas cylinders are located between the kitchen and the dormitories( about 10 meters from the dormitories) since the kitchen is barely 20 meters from the dormitories( just a stone throw away); that the school has porous fence, no permanent fence only at the front side while the back side is just fenced using old mabati sheets/rusty iron sheets that can be accessed easily therefore there is no proper control of movements in and outside the school and the safety measures put in place in the school is wanting; that they totally disagree with the averments made at Paragraph 43, 44, 45, 46 and 47 and wish to state that administrative/managerial decisions made by the 1st and 2nd Respondents were made in bad faith without placing the interest of our children first as a matter of priority neither was it driven by a well thought out or a well-informed position but rather the same was only meant to benefit the 1st and 2nd Respondents while leaving the parents financially crippled; that this Honourable Court take cognizant of the fact that there is no quantifiable loss that has been demonstrated by the 1st and 2nd Respondents to justify the said data cost/amount of Kshs. 33,000/- that is being neither has there been any concrete evidence tabled before court in support of the same and the process of arriving at such fee was not only vague/opaque but the same lacked transparency, it was a rushed and irrational decision that was made without taking into account the views of the parents who are the key stakeholders and who stood to be directly affected with the said decision; that the majority of parents come from very humble backgrounds and are struggling to keep their children in school while many also depend on bursaries therefore levying such an excessive fee is a great dis service to them and the same would have far – reaching consequences that may even lead to their children dropping out of school; that it is not true that majority of the students are back in school since the few who returned back as was directed in the letter dated 30th May 2026 were again sent back home after an incident of attempted arson attack occurred in the school in the night of 9th June 2026 after a few students attempted to burn one of the dormitory forcing the school to close yet again therefore the school is currently shut down completely. (Annexed and Marked ``MPP – 4(a) and 4(b) are the two links from Bunyala TV and Mayienga FM and Marked ``MPP – 4(c), (d) and (e ) are the links namely; httpscitizen. digital, httpswww.facebook.com, https//instagram.com showing the most recent media reports on the said incident dated 9th and 10th June 2026; that it is our most humble prayer that the application dated 4th June 2026 be allowed and the Conservatory Orders south therein be granted as a matter of utmost priority since majority of the students are still at home and they are currently losing valuable learning time and wasting away at home whereas some of them had already cleared school fees or paid up to 90% of the school fees; that what is deponed to herein is true to the best of his knowledge information and belief. 9.Due to the urgency of the matter, this court directed the parties to present oral submissions regarding the issue of whether conservatory orders are merited at this stage pending determination of the applications and the Petition. 10.Mr. Antony Omolo stated inter alia; that the issues in the petitions are almost the same and that there is need to consolidate and dispose them by way of written submissions. That the matter concerns rights to children who have been ordered to pay 33,000/= as a condition to rejoin school. That he sought for conservatory orders as Article 27 of the Constitution has been violated. That the Board of Management had no lawful authority to make the impugned decision since their tenure had expired. That access to education is now conditional upon payment of 33,000/=. That the application thus raises weighty constitutional issues worthy of consideration. That the students whose parents cannot afford will be locked out of school. That learning time has been lost since they are only less than 50 learners currently at school; that there is a high likelihood of prejudice and damage; that some students are candidates and are likely to suffer; that the school can still have ways to get monies from other sources to do repairs; that the school was not burnt. That public interest requires that interim orders should be issued; that there are over 1000 parents who implore the Court to consider granting the prayers. 11.Mr. Masinde relied on the supporting affidavits in their quest for conservatory orders. That there is no dispute that following the unrest, the school-imposed payment of 33,000/= on all students as it was impossible to identify the culprits hence the liability is collective; that this raises serious constitutional violations of articles 27,47 and 53 of the Constitution. That the school has not indicated if they got parental concurrence over the imposition of the amounts. That there is no assessment as to how the sums were arrived at; that there was no procedural fairness, accountability and administrative fairness; that the Petitioners have established a prima facie case to warrant the conservatory orders. That article 53 of the constitution deals with the best interest of the children. That some students resumed learning but another incident took place which disrupted the school activities; that students have lost valuable time in class and thus prejudice is real. That as regard to public interest, the same favors grant of the order pending determination of the petition; that the Court is to balance the interest of the school against the right of the learners. That the children should continue learning while the issue is interrogated. That public institution are expected to exercise their powers while considering the rights of the student; that the orders will preserve the petition and right of the affected learners pending determination of the matter. 12.Mr. Adhiambo submitted inter alia; that the prayers sought touch on the safety of students while in school; that it is crucial that the Court has authority to order for protection of the minors from harm, inhuman degrading treatment under article 29 of the Constitution. That the 1st and 2nd Respondents have directed students to report in school without considering the safety of students. That this was a major factor which contributed the aftermath on 18/5/2026 (see replying affidavit dated 16/6/2026 by the school). That the 1st and 2nd Respondent had all the time to deal with the situation but they failed. That the right to education as enshrined in article 53 of the constitution as well as article 43 places the Petitioners children at the centre of the instant application. That this Court has a duty to preserve the right of the pupils/students; that no prejudice shall be suffered by the Respondents if the Order is granted but it is in the best interest of justice to allow the order sought; that this Court is clothed with powers under article 165 of the Constitution and to grant the orders sought in the best interest of justice. 13.Ms. Odhiambo submitted inter alia; that they oppose the grant of conservatory orders; that the students require to contribute the sums as they are needed to restore the school which was damaged; that they rely on the affidavit of Boaz Adit dated 8/6/2026 and 16/6/2016; that the school is a public educational institution managed by the Basic Education Act Cap 211 Constitution of Kenya; that there were acts of indiscipline resulting in extensive destruction of facilities intended for the benefit and use by the learners; that there was damage of public property held by the school for the learners and financed by the public; that the Board of Management was mandated under Section 59 of the Basic Education Act to guarantee security to the learners; that the students population is 1500; that the applications are devoid of merit as they have not raised sufficient grounds and that they should be rejected; that the principles guiding conservatory orders were stated in the case of Peter Gatirau Munya vs Dickson Mwenda Githinji. Also in Samuel Njoroge Waweru vs Ministry of Education & 3 others where the issue of a prima facie case with a like hood of success was discussed and that the Applicants must demonstrate that in absence of the orders, the petition will be rendered nugatory. That as regards the prima facie case, the same has been made as at 18/5/2026 when the students engaged in widespread destruction of property at a cost of Kshs 50 million; that the Board of Management convened meetings involving parents and an assessment made; that under the Basic Education Rules 2015 33 (c) learners deemed to have joined in destruction of property through mass indiscipline must be dealt with; that it was difficult to pinpoint culprits. That regulation 35(i) BOM may declare the school closed for two weeks. That all learners were sent home; that the County Director is required to determine the issue and come up with rules. That the BOM held several meetings on 29/5/026 and it was resolved that all students to bear the costs equally; that a registered loss assessor came up with the figure of Kshs 50 million which was to be shouldered by al students. That the directive was not irrational but after extensive consultation; that the Respondents acted within the mandate to maintain discipline and order; that no good reasons have been given for grant of conservatory orders.On the issue of whether the application will be rendered nugatory, she submitted that the key factor is to consider the mater carefully; that there is active learning and that school reopened and learners are back in school (see replying affidavit dated 16/6/2016) where the parents have signed commitments and to clear the balances later and that it is not correct to say that the school has been closed as alleged. That Applicants have presented anxiety and financial inconvenience and that they rely on the Waweru case. That there is need to ensure that there are no issues arising from indiscipline which can paralyze the operation of the school. That no student has been turned away for lack of payment of the sum. That denying the school the sums, then they will not be able to effect repairs; that the educational infrastructure must be maintained. That denial of the order favours the Respondents. That no prima facie case has been raised. That public interest favours rejection of the orders and allows Respondents to restore the situation of the school. 14.I have considered the oral submissions of learned counsels. It is not in dispute that all the students at Ambira Boys High School have been sent home following the student unrest that took place on 18/5/2026. It is also not in dispute that the said school has imposed the payment of Kshs 33,000/ upon each student which sums are to be paid by their parents upon rejoining the school and continuing with studies. It is also not in dispute that owing to the damage caused due to the unrest, the school has to organize for repairs so as to restore the infrastructure at the school and hence the demand for Kshs 33,000/ from all the students through their parents/guardians. It is also not in dispute that the applications as well as the Petitions are yet to be canvassed and determined. The issue for determination is whether conservatory orders should be granted at this stage, pending the determination of the application and petitions. 15.Due to the fact that the applications and the petitions are yet to be heard in earnest, the concern for the court at this point in time is to consider the issue of a conservatory order which should be required to preserve the subject matter of the suit. I will not delve much deeper as the parties are yet to canvass the applications and petitions proper. The principles guiding the grant of conservatory orders have been laid down in several cases.In Gitaru Peter Munya v Dickson Mwenda Githinji & 2 Others [2014] eKLR, the Supreme Court stated;"Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate ordered functioning within Public agencies, as well as to uphold adjudicatory authority of the court in the Public interest. Conservatory orders therefore are not unlike interlocutory injunctions linked to such private party issues on the prospects of irreparable harm occurring during the pendency of a case or high probability of success” in the applicant’s case for orders of stay. Conservatory orders consequently should be granted on the inherent merit of the case bearing in mind the public interest, the constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes.”Also in Mrao Limited v First American Bank of Kenya Limited and 2 others [2003] eKLR the court held that; “A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”The issue of a conservatory order was also dealt with by Musinga J (as he then was) in the case of Centre for Rights, Education and Awareness(CREW) & 7 Others v Attorney General [2011]eKLR when he held;At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the conservatory order is granted, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the constitution.” 16.Looking at the rival issues herein, it is clear that the students of Ambira High School despite having been accused of causing the unrest stand to suffer great prejudice if they do not get an opportunity to get back to class and continue with the learning process. This is so because the dictates of the constitution under article 53 of the constitution on the best interest of the child requires that matters involving children must be jealously guarded and protected. Indeed, the purpose for which the school was set up in the first place was about children and their education. As the applications are yet to be canvassed as well as the Petitions, I find that a denial of a conservatory order at this stage will cause prejudice to the Petitioners, as their children will not be able to get to school, and that the determination of the petition might take some time and further likely to be rendered illusory as they will have been forced to make the payment under great difficulties even before the matter is heard. Even though the school requires the money at this stage to use to improve the school infrastructure, I find that the prejudice to be suffered is less severe than that of the learners as the dispute is yet to be determined. I am satisfied that the petitioners’ affidavits and submissions by learned counsels have shown that they have a prima facie case with a probability of success and thus merit the conservatory order. The parties will be directed to fast track the applications and the petitions so that the same are determined within the shortest time possible. 17.The upshot of the foregoing brief observations is that the Petitioners quest for the grant of a conservatory order is merited. The same is allowed in the following terms:i)A conservatory order is hereby granted restraining the Respondents, their agents, servants, employees from demanding, collecting, enforcing or in any manner compelling students or parents/guardians of Ambira High School to pay the sum of Kenya Shillings Thirty Three thousand (Kshs 33,000/) or any other amount purportedly levied as a ‘’damage penalty’’ arising from the students unrest that took place in May 2026 pending the determination of the applications.ii)The two applications dated 2/6/2026 and 4/6/2026 shall be canvassed by way of written submissions.iii)The Petitioners to file and serve their submissions within three days of today while the Respondents will file and serve theirs within three days upon service.iv)The matter is fixed for mention on 25/6/2026 to confirm compliance and for further directions. DATED AND DELIVERED AT SIAYA THIS 19TH DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of ;Anthony Omolo/ Masinde/ Odhiambo........for PetitionersM/s Odhiambo for M/s Esendi....... for RespondentsM/s Maurine...............Court Assistant