https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9490

Mohamed t/a Gedi High School v Kenya National Examination Council & 2 others (Judicial Review E003 of 2026) [2026] KEHC 9490 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9490 (KLR) Republic of Kenya In the High Court at Garissa Judicial Review E003 of 2026 JL Tamar, J July 2, 2026 IN THE MATTER OF THE FAIR ADMINISTRATION OF ACTION ACT (CAP 7L) AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF FAIR ADMINISTRATIVE ACTION RULES 2024 AND IN THE MATTER OF BASIC EDUCATIONACT AND IN THE MATTER OF NON ADHERANCE BY KENYA NATIONAL EXAMINATION COUNCIL TO THE PRINCIPLES OF PROCEDURAL FAIRNESS, TRANSPARENCY, ACCOUNTABILITY AND CREDIBILITY AS REQUIRED BY ARTICLE 10 AND 47 OF THE CONSTITTUION 2010 AND IN THE MATTER OF ARBITRARY AND UNFAIR DEREGISTRATION OF EXAMINATION CENTRES BY THE KENYA NATIONAL EXAMINATION COUNCIL Between Feisal Gedi Mohamed t/a Gedi High School Applicant and Kenya National Examination Council 1st Respondent The Ministry Of Education 2nd Respondent The Honourable Attorney General 3rd Respondent Judgment 1.By an Originating Motion dated 13th April 2026, the Exparte applicant seeks the following orders;a.…Spentb.That pending the hearing and determination of this suit, the court be pleased to issue an interim order directed at the 1st respondent, Kenya National Examination Council, compelling it to reinstate the applicants School as an examination centre and re-activate the applicants 2026 KCSE registration Portal for registration of the applicants 2026 KCSE candidates.c.That this court do issue an order of certiorari by calling into this court and quashing the 1st respondent’s decision to de-register the applicant’s school as an examination centre, which action and/or commission was affected through the 1st respondents letter dated 19th March 2026.d.That this court do issue an order of Mandamus, compelling the 1st respondent to reinstate the applicant school as an examination centre and process the applicants 2026 KCSE candidates’ registration.e.That the court do issue an order of prohibition, restraining the 1st respondent from de-registering the applicant’s school and excluding candidates of the applicant’s school from the 2026 exams.f.That the court do issue any other remedy as this court may deem fit to grantg.That the cost of this application be provided for. 2.The Originating Motion in addition to the grounds on the face of the application is supported by the affidavit of FEISAL GEDI MOHAMED Sworn on 13th of April 2026. 3.The applicant is the proprietor and manager of Gedi High School, duly registered basic Education Institution as a secondary school by the 2nd respondent and registered as an examination centre and assigned examination No 45801157. It is the exparte applicant case that on or about 19th February 2026 while the registration of Kenya Certificate of Secondary Education examination Candidates was going on, the 1st respondent conducted a re-inspection of the applicant secondary section of the school. The school by then had relocated to Bulla Kunaso Estate Waberi Ward within Garissa in compliance with recommendation by the 2nd respondent owing to increase in population. This was as a result of assessment conducted on 8th September 2025 which was to be affected within 6 months. The applicant avers that despite the recommendation that the relocation be effected within 6 months, the Garissa Sub- County director of Education ordered that the school relocate within 3 months. Notwithstanding the short notice, the applicant purchased new parcel of land and constructed 10 classrooms, a permanent laboratory and preparation room in compliance with the 2nd respondent recommendations. The 2nd respondent inspected the school and was satisfied as to its infrastructural, health, safety and quality assurance requirement, issued a certificate of registration dated 14th February 2026. The applicant avers that in the 1st respondent notice of re-inspection dated 9th February 2026, the checklist of non-conformities was never brought to the applicant’s attention. 4.The applicant avers that on 19th March 2026 while the registration of the candidates was ongoing and by which time the applicant had uploaded on the 1st respondent’s portal data of some of the school candidates, the centre code number 45801157 was abruptly deactivated without prior notification or a later explanation. That the said deactivation was done without prior notice and the applicant was not granted an opportunity to be heard prior to taking the decision contrary to Article 47 (1) and (2) of the constitution as read with section 4(3) and section 5 of the Fair Administration Action Act. That the applicant was only served on 24th March 2026 through the Garissa County Director of Education with the 1st respondent letter dated 19th March 2026 indicating that following the inspection conducted on 19th February 2026 the 1st respondent declined to approve the school as examination centre. The applicant subsequently visited the 1st respondent offices in Nairobi to inquire about the deregistration but the 1st respondent’s officials were non responsive, evasive and failed to give any justification or offer solutions to the 120 candidates. Further, the applicant sought the assistance of County Director of Education who wrote a letter to the 1st respondent informing it that all the issues raised vide letter dated 19th February 2026 had been sufficiently addressed and that the 1st respondent should therefore reconsider its decision. This communication was not responded to by the 1st respondent. 5.The applicant denies the non-conformities identified by the 1st respondent in their letter dated 19th March 2026 and termed them as false, misleading and malicious for the reason that by the time the 1st respondent inspected the school on 19th February 2026, the 2nd respondent had already inspected the school and issued a certificate of registration. Therefore, the applicant avers that the decision of the 1st respondent in de-activating the applicant portal on the eve of registration deadline was issued in gross breach of the rights of the applicants and its candidates to fair administrative actions, as the same was made without any notice of the proposed administrative actions and no views were sought from the applicant and the 120 candidates, their parents or guardians. It is contended that the decision to de-register the applicant as communicated in the letter dated 19th February 2026 is unlawful and contrary to the principles of fair administrative action for the reason that the applicant was not afforded an opportunity to be heard and/or respond to the non-conformities before the impugned decision is taken. Further, the applicant was not furnished with the inspection report or any written reason for the decision taken nor was the decision communicated within reasonable time effectively locking out the applicant’s candidates. The applicant avers that the decision by the 1st respondent is a violation of the candidates’ constitutional right to education guaranteed under Article 53(1) (b) and the best interest of the child under Article 53(2) of the Constitution. 1st respondents’ response to the Originating Motion 6.The 1st respondent took out a preliminary objection dated 24th April 2026 and a replying affidavit in opposition to the motion. The preliminary objection and the application shall be determined together. 7.The 1st respondent contends in the objection that the applicant lacks locus standi to institute a suit in view of section 55 and 56 of the Basic Education Act and therefore the suit herein should be struck with cost. 8.In replying affidavit filed in court on 24th April 2026 and sworn by ANASTACIA NZOMO, Assistant Director, Examination Management Department in charge of KCSE Division set out the statutory Mandate of the 1st respondent as established by section 3 of the Kenya National Examination Council Act Cap 214A which among others;a.Set and maintain examination standards while conducting public Academic technical and other national examinations within Kenya at basic and tertiary levels; award certificate and Diplomas to candidates.b.Undertake research on education assessment; andc.Advise the development and use of any system of assessment and advise the government on any policy decision that is relevant to administration of examination in Kenya. 9.The respondent also cited and referred to section 52 of the Basic Education Act, Kenya National Examinations Council (Management of examinations) Rules of 2015 and in particular rule 6 (6) to (11) which provides as follows;a.An institution registered by the ministry in charge of Education that wishes to offer a Council Examination for the first time, shall apply to the Council for registration as an examination centre at least one year before the year of examinationb.The application shall be sent to the council through the respective County Directors of Educationc.The application shall be accompanied by valid registration certificate and an inspection report issued by the Ministry in charge of Education through respective County Director of Educationd.The council may cause the centres to be inspected before it is approved and registered as an examination centre.e.Where the Council has received all the relevant documents, supporting evidence and is satisfied that the application meets the minimum requirements for examination centre, the Council shall approve, register and issue the centre with examination centre code.f.The examination centre shall be required to have the required facilities equipment and materials for the administration of the relevant examination and be located in the environment conducive for the administration of the national examination. 10.Rule 6 (12) and (13) empowers the Council to deregister or cancel the registration of examination centre or suspend or deregister an examination centre where it is satisfied that the centre does not comply with the Act, rules or Council examination regulations. 11.The respondent aver that the applicant had issues with their inspection in 2025 and vide letter dated 26th march 2025, the respondent had communicated to the applicant that they had inadequate laboratory for the conduct of science practicals, incomplete laboratory lacking benches, tables apparatus and equipment and that the classrooms were small and could not accommodate the minimum 20 candidates while maintain spacing requirements. These findings the respondent stated were supported by the inspection questionnaire and the report from the Directorate of Quality Assurance and standards at the Ministry of Education. That due to the outcome of the inspection conducted on the applicant in 2025, the applicant was scheduled for re-inspection and would not be able to access the KNEC system until they were approved. The letter was issued to the applicants, through the Sub- County Director of Education informing them that the re-inspection would be conducted between 16th and 20th February 2026 citing the non- conformities that had been identified in 2025. An email was sent to the Sub-County Director of Education to that effect. The inspection team was constituted from the officers of the 1st respondents and the Directorate of Quality Assurance & Standard from the ministry tasked with conducting inspections of new centres and re-inspections centres that had compliance issues in Garissa County. 12.The team held conducted various inspections and meetings where it was noted that a total of 46 centres had been inspected and or re-inspected and the applicants were one of the centres that had met the requirements and were therefore not approved. The respondent contend that the findings of the inspection were communicated to the applicants vide a letter dated 19th March 2026 and sent via email on 24th March 2026 through the Garissa Sub-County Director of Education. The letter communicating the findings was based on the inspection questionnaire which had been filled by the applicant, the Sub-County Director of Education and the inspection officer as well as the inspection report compiled after the exercise. In the letter, it is averred that the centre had not been approved on the grounds that it was operating in different site/premises from that declared to KNEC and without the necessary inspection reports and that the centres laboratory was too small and did not have a preparation room as is required for sciences practicals. 13.The 1st respondent avers that it informed the County Director of Education, Garissa County vide letter dated 30th March 2026 that it had not approved 19 centres among them GEDI HIGH SCHOOL and directed that the principals of the affected centres be engaged to ensure that all the affected learners are registered with other approved centres convenient to them to enable them sit the forthcoming 2026 national examinations. The respondent confirmed that there are no learners registered with the applicants under Code 45801157 for the 2026 KCSE examination as the centre was not approved. It is also contended that the applicant aware of the provisions of clause 2.1.4 of the User Manual that required that when an examination centre relocate to new premises, it is required to apply to KNEC for reinspection which the applicant in this case did not do. That when the inspection team visited the centre on 16th February 2026, on request from the Sub-County Director of Education they were not given the report from the Directorate of Quality Assurance & standards, public health report and the Ministry of Education registration Certificate still indicated the previous site 14.The respondent contends that in the process of deregistration of the new centres, it complied fully with the provision of the constitution the KNEC Act, rules and user guide for management of examinations for KCSE. That the registration guidelines for Basic Education Institutions are meant to safeguard and protect children and ensure that they learn in a properly regulated, conducive, and safe environment. These standards it is urged, apply equitably across the board, to all Kenyans and are applied equally, fairly, objectively and justly as they are meant to safeguard the children’s right to a safe and conducive environment for learning in line with the right to basic education as set out in the constitution. 15.The respondent stated that the issues raised in the application for review have been resolved fully by the 1st respondent and there is no basis for the present application which in its view should be dismissed with cost. Further, it is urged that the applicant has not demonstrated any violation of the principles of fair administrative action under Article 47 and 165 (7) of the constitution or section 7 of the Fair Administrative Actions Act to warrant orders of judicial review. It is also contended that the applicant has not demonstrated how the decision to de-register was unprocedural, materially influenced by an error of law, was done with ulterior motive, was prejudicial, in bad faith, unreasonable or unfair as regards the applicants. 16.In response to the 1st respondent affidavit sworn on 24 April 2026, the applicant denies having been issued with a circular dated 11th February 2026 on the intended inspection and further that the same circular relates to new examination centres whilst the applicant centre was registered in 2025 and issued with examination code. The applicant stated that it was never issued with the 1st respondent letter dated 26th march 2025 bringing to its attention the nonconformities referred to in the letter contending that it met the minimum requirements as captured in the inspection questionnaire and was subsequently registered as an examination centre. It is the applicant contention that it only became aware of the intended pre inspection on 16th February 2026 upon receiving the 1st respondent letter dated 9th February 2026 indicating that the school inspection would be undertaken between 16th February 2026 to 20th February 2026 which was followed by the unilateral de-activation of the applicants KCSE registration portal on 19th march 2026. The applicants further aver that despite conducting the re- inspection on 19th February 2026 and holding and exit meeting on 20th February where decision to decline approval was made, the applicant was not informed of the result of inspection until 24th march 2026 by which time the registration portal was due to be closed on 31st march 2026. It is therefore the applicant contention that withholding the decision from 20th February 2026 to 24th march 2026 is a gross violation of the applicant rights to expeditious, efficient, lawful, reasonable and procedural fair administrative action and the delay denied the applicant to seek review of the said decision. 17.The applicant further aver that the relocation of the High School section was undertaken in compliance with the administrative directions issued by the 2nd respondent Sub-County Director in a letter dated 7th October 2025, an agent of the 1st respondent and therefore the 1st respondent should not have taken adverse decision as the directive to relocate originated from the 1st and 2nd respondents. Further, the applicant stated that the 1st respondent was furnished with all the necessary inspection reports including the report by 2nd respondents Quality Assurance and standard officers, public health reports and the 2nd respondent’s registration certificate which documents were submitted to the County Director of Education who was a member of the 1st respondent inspection team. The applicant contend that it was never issued with the 1st respondent letter dated 30th march 2026 and in any event the said letter was actuated by malice as it was issued on the date of deadline for registration of students for 2026 KCSE examinations hence denying the applicant the opportunity to be heard and challenge the decision or seek alternative remedy. 18.The applicant avers that it cannot be faulted for not applying for re- inspection upon relocation for the reason that the said relocation was triggered by directive from the sub-county Director of Education and in any case the requirement for reinspection was rendered moot by 1st respondent own letter dated 19th February indicating that it had already scheduled a re-inspection of the applicant school. 19.The 1st respondent filed a further affidavit to supplement the affidavit dated 24th April 2026 stating that on 30th march 2026, County Director of Education Garissa was requested to direct the SCDE to engage the respective principals of the centres that were not approved to ensure that all affected learners are registered with other approved centres convenient to them so that they are able to sit for the forthcoming National Examination. The Sub- County Director of Education by a letter dated 7th may 2026 informed the 1st respondent that they had identified Al- Hilal High School (code45801133) which had adequate physical facilities that met the standard requirements to cater for the 120 candidates of Gedi High School. On receipt of the aforesaid letter the 1st respondent sent its officers to Al-Hilal High School for inspection and confirmed that the said school had enough examination rooms, furniture, laboratory equipment and other facilities to cater for the 120 candidates of Gedi High School. By letter dated 12th may 2026, the 1st respondent requested the SCDE to facilitate the registration of the 120 candidates form Gedi High School under Al- Hilal High School and further ensures that the principal of both schools complete the registration exercise not later than 22nd may 2026 20.In a further rejoinder, the applicant filed a further affidavit in response thereto dated 18th may 2026 and stated that the school proposed by the respondent as a centre for examination of its candidates had been deregistered in 2024 and has not been in operation and no learning activities had been undertaken since its deregistration. The deregistration of Al- Hilal was occasioned by ownership wrangles and therefore the 1st respondent cannot guarantee the smooth administration of the examination at the centre. Further, no evidence has been presented to court of engagement between the 1st respondent and 2nd respondent on one hand and the officials of Al-Halal High School on registration of the applicant’s candidates at the school. There has not been any engagement between the owners of the said school and the parents of the applicant’s candidates regarding the transfer and placement of the students at he said institution. The applicants also challenged the report on inspection of Al -Hilal examination centre as the same fails to meet the requirements of a proper inspection report to wit; the report fails to identify the individuals who conducted the inspection, the date the inspection occurred and the persons present during the inspection. There is no indication of the involvement of the principal and/or proprietor of the school in the inspection exercise and the report has not been signed or stamped by the school. 21.It is contended that the 1st respondent did not notify the school, and/or the candidates and their parents and guardians of its decision to register the candidates at Al-Hilal. 22.The application was canvassed by way of written submissions. 23.The applicant filed submission dated 11th may 2026 setting out the following two issues for determination;i.Whether the 1st respondent Preliminary Objection is Meritedii.Whether the 1st respondent’s decision to de-register and/or issue a non-approval of the applicant’s school as an examination centre violated the right to fair administrative action pursuant to Article 47 of the constitution and fair administrative actions Act 24.On legal capacity of the applicant to sue, counsel submit that the applicant as the sole proprietor of the Gedi High School and the decision impugned being the deregistration of the applicant school as examination centre, the move has affected his right and interest as a business owner. That by reason that the applicant is raising a constitutional infringement, the provisions of Article 22 of the Constitution apply. The applicant referred to the court of Appeal case in Randu Nzai Ruwa &2others vs Secretary, IEBC & 9others (2016) Eklr and Republic vs Kenya National Examination Council & others (2025kehc 12436 where the court observed that Article 22 of the constitution has broaden locus to sue and that the manager or operator of schools can sue for an on behalf of the affected schools as a class of interested groups or persons hence properly have locus to seek the orders sought. The court is therefore urged to find that the applicant has locus to vindicate his rights as proprietor of the school and to protect the constitutional rights of the affected candidates. 25.On the second issue, the applicant submit that the 1st respondent decision to de-register the school as an examination centre as contained in its letter dated 19th march 2026 violated Article 47 of the constitution and section 4(3) of Fair Administrative Action Act in that the decision was made without prior and adequate notice, the applicant was not granted an opportunity to be heard, was not supplied with the information, materials and evidence relied upon by 1st respondent in reaching the impugned decision hence denied the opportunity to seek a review of the decision. The case of Nancy Nyaguthii Gachewa vs Kenya National Examination Council & 3others (2019) KEHC7941 (KLR) was referred to where the court dealt with the issue of prior notice before adverse decision could be taken. The position was reiterated in Republic vs Kenya National Examination Council & 2others; Khalid Mohamed Ali t/a Amal Secondary School & 5 others (2025) where the court held that failure to issue a notice of inspection and the failure to grant the applicant a chance to be heard prior to de- registration of the school as examination centre constituted a breach of the applicants right to fair administrative process. The applicants submit that just as in the above case, it was not given prior and adequate notice or an opportunity to be heard. 26.The applicant contends that its right to be heard and explain the fact that the relocation of the school to another site was not voluntary action but was prompted by the recommendations made by the 2nd respondent Quality Assurance and Standard officers following an assessment conducted on 8th September 2025 was violated. The recommendation contained in the above report was subsequently communicated vide letter dated 7th October 2025 form the Sub-County Director of Education. 27.The applicant therefore submit that the impugned decision was reached in violation of Article 47 of the Constitution, and Section 4(3)(a) and (b) of the Fair Administrative Action Act to wit failure to give prior notice of intended de-registration and afford adequate opportunity to respond before the impugn decision was made. 28.The applicant submits further that it was never supplied with the relevant information, materials and evidence relied upon by the 1st respondent in making its administrative decision which is contrary to section 4(3) of the FAAA. That save the non-approval letter dated 19th march 2026, the applicant has not been supplied with inspection report and the inspection questionnaire which informed the decision to deregister the applicant as an examination centre. The applicant further submit that it was unaware of the specific findings made against the school and was therefore denied an opportunity to respond to the alleged deficiencies. That the deputy principal of the school signed the questionnaire before the inspection but the findings of the report was never furnished to him. 29.It is submitted on behalf of the applicant that the decision made by the 1st respondent was unreasonable, irrational and unfair for the reason that the relocation of the school was undertaken pursuant to the directive issued by the SCDE following inspection conducted on 8th September 2025 which directed the applicant to relocate the school within three months. And yet one of the grounds for deregistration was that the applicant is operating in a different site from the one declared. The applicant also submits that by conduct the 1st respondent denied it an opportunity to review or appeal the decision to deregister the applicant’s school. 30.It is therefore submitted on behalf of the applicant that the circumstances of the present case warrant the intervention of the court as decision to deregister the applicant’s school as an examination centre was made in a manner that was unreasonable, arbitrary, irrational and in blatant disregard of the rules of natural justice. 31.The respondents filed its submission dated 17th may 2026 setting out the fact of the case and the following issues for determination;i.Whether the applicants have locus standi before the courtii.Whether the applicants were deregistered lawfullyiii.Whether notice was duly giveniv.Whether sufficient evidence has been granted to justify the relief sought. 32.In support of the argument that the applicants have no locus to institute the present suit, the respondent referred to the case of Taireni Association of Miji Kenda vs Chakama Ranching Limited & 7 others ; National Land Commission & 2 others KEELC 18551 (KLR), Law Society of Kenya vs Commissioner of Land & others, Nakuru High Court Civil Case No 464 of 2000 and Kisumu ELC Case No 225 of 2014 Evans Otiende Omollo vs School Committee Union Primary school and another (2015) Eklr for the definition of locus standi in court proceedings and that the application having brought by the owner of the school and not the Board of Management as required by section 55 and 56 of the Basic Education Act. 33.As to whether the deregistration was lawful, the respondent contends that the same was constitutionally and statutorily lawful citing various Acts, regulations and guidelines to support the assertion. The respondent submits that the applicant was made aware of the nonconformities in 2025 that needed to be addressed vide letter dated 26th march 2025 and further informed in 2026 that re-inspection would be carried out to confirm that the nonconformities had been addressed. The respondent submitted that, the findings of the inspection were communicated to the applicant vide letter dated 19th march 2026 and sent via email on 24th march through Sub-County Director of Education which letter was based on the inspection questionnaire filled by the owner, SCDE and the inspecting officer. It is the respondent position that the applicant was given adequate notice and reasons for the deregistration and the communication done in a timely manner. 34.The respondent contend that the applicant has not presented before the court any evidence to show that the 1st respondent acted unprocedurally, unfair, unlawfully, or acted in a way that demonstrate malice or bias as the inspection process was conducted in other counties and centres across the country. That the process was equitable and objective based on the minimum standards that had been set by the Ministry of Education and the 1st respondent. The respondent submits that the learners are required to sit science practicals and the examination centres must have proper laboratories of standard size its apparatus. Further, the preparation room is especially important for chemistry practicals where the teacher is required to also do experiment in a separate preparation room. 35.It is the respondent submissions that the registration period had concluded, and the registration has closed for 2026 national assessment and examination. That the portal cannot be re-opened as the 1st respondent process are time bound from registration to verification of the candidates’ details, test development, printing, dispatching and administration of examination to the expected 3.6 million candidates set to sit this year’s 2026 national examination and any interference would affect the entire cycle. 36.The respondent submits that Sub-County Director of Education for Garissa has already identified a nearby approved examination centre being Al- Hilal High School and that all the applicants’ candidates would be registered there. It is therefore the respondent position that the issues raised in the application for judicial review have been resolved fully and there is no basis for the application which in its view should be dismissed with cost. Analysis and Determination 37.I have given due considerations to the application the affidavits filed by the parties and their respective submissions together with the authorities supplied. The issues for determination as borne from the pleadings are in my view two;1.Whether the applicant has locus standi to institute the suit before the court2.Broadly, whether the applicant has met the threshold for grant of the orders sought in the Originating Motion dated 13th April 2026. 38.On the first issue, the respondent cited the cases of Taireni Association of Miji Kenda vs Chakama Ranching Limited & 7 others; National Land Commission & 2 others KEELC 18551 (KLR), Law Society of Kenya vs Commissioner of Land & others, Nakuru High Court Civil Case No 464 of 2000 and Kisumu ELC Case No 225 of 2014 Evans Otiende Omollo vs School Committee Union Primary school and another (2015) Eklr which dealt with the issue of locus standi. I am in agreement with the above decisions that locus standi signifies a right to be heard, and that a person must demonstrate sufficient interest to sustain his capacity to sue in a court of law. In the current constitutional dispensation, the scope of locus standi has been broadened significantly to permit individuals and groups to challenge public actions and decisions with minimum common law strictures if at all. Article 22 (1) & (2) of the Constitution is clear that any person can institute proceedings in a court, claiming the violation of rights and fundamental freedoms under the Constitution, on behalf of another person or in the public interest. The respondent argues that the application having been brought by the owner of the school and not the Board of Management under section 55 of the Basic Education Act renders the action incompetent for lack of locus standi. 39.The Basic education Act in section 43 categorises basic education institution into two; public schools established, owned and operated by the Government and private schools established, owned or operated by private individuals, and entrepreneurs. The law in section 52 allows private schools to establish their own necessary educational and governance structures to run the affairs of the schools as they are essentially private business entities offering public service within the confines of the law. So, the management structures of private schools are left to the owners and proprietors of those schools unlike public schools where in section 55(1) of the Basic Education Act, the law in mandatory terms establishes Board of Management for every Public school whose members shall be appointed by County Education Board. The only structure that the Basic education Act establishes for private schools is Parents Associations. Therefore, the Basic Education Act as currently enacted does not provide for a mandatory establishment of Board of Management of private schools and this perhaps is the reason why the report on the inspection of the applicant school on 8th September 2025 noted the absence of an operational board of management. 40.It my view that there is no legal requirement for establishment of board of management (BOM) for private schools under the Basic Education Act. For this reason, the preliminary objection raised has no basis and the same is dismissed. 41.On the second issue, whether the applicant has met the threshold for grant of the order sought to invalidate the decision of the 1st respondent, the action is predicated in Article 47 of the Constitution and section 4 and 7 of the Fair Administrative Action Act. Article 47 of the Constitution, guarantees every person (1) the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Sub Article (2) provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. 42.These constitutional and statutory provisions require that any person affected by an administrative decision be allowed a fair opportunity to present their case, and be furnished with written reasons for any adverse decision. 43.Section 4(3) of Fair Administration Act provide inter alia that Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision (a) prior and adequate notice of the nature and reasons for the proposed administrative action; (b) an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision. 44.The elevation of fair administrative action as a constitutional right was stated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) as follows:“ 66...Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over superior court. In 2015, Parliament in adherence to article 47 of the Constitution enacted the Fair Administrative Action Act, No 4 of 2014, Laws of Kenya (FAA Act)." 67. Also instructive to the application of judicial review, is that article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.” 104. The Supreme Court further opined that: “74. It is our considered opinion that the framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi- judicial functions. We further take the view, that this approach is consistent with realizing the right of access to justice because justice can be obtained in other places besides a courtroom. 75.In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis.” 45.This court will therefore not be restricted to process of the decision made only, but also its legality and rationality of the decision. The gravamen of the applicant complaint was triggered by the 1st respondent letter dated 19th March 2026 addressed to the Principal Gedi High School communicating the decision of the 1st respondent arising from an inspection undertaken on 19th February 2026 to assess the school suitability as an examination centre. In the said letter the applicant was informed that due to non-conformity noted, which included the school operating in a different site from the one declared to KNEC and the school’s laboratories being too small for science practicals, the school as an examination centre has not been approved. 46.The applicant contend that no communication was received from the 1st respondent on the outcome of the said inspection even as it proceeded with registration of the candidates. The applicant was shocked to find that the school had been deactivated from the 1st respondent 2026 KCSE registration portal. 47.I have looked at the inspection report signed on 16th February 2026 and the observations made therein. The observations in the questionnaire formed the basis for the decision taken by the 1st respondent as contained in the letter dated 19th march 2026. There is no evidence that the deficiencies noted during the re-inspection was brought to the attention of the applicant in good time or at all. From 20th February 2026 when the exit meeting was held, and 19th March 2026 when the decision not to approve the applicant as an examination centre, was communicated, almost a month later, there is no evidence that the applicant was made aware of the decision or invited to make representation on why such adverse decision should not be made. The exit meeting held on 20th February 2026 would have availed the 1st respondent opportunity to officially communicate the decision as contained in the inspection team report and afford the applicant a chance to commit and/or take appropriate measures to remedy the defects noted and apply for review of the decision if necessary. It is worth noting that the exit meeting held on 20th February 2026 comprised of members of the 1st respondent and perhaps the 2nd respondent only. There was no evidence that the applicant and all those that would be affected by its decision were invited. The exit meeting held at the County Director of Education offices in Garissa Town where the applicant school is situated was a perfect forum to offer the applicant an opportunity to be heard before the adverse decision was taken. That was not done. I however note with great concern that the decision to deregister the applicant school as examination centre seems to have been pre- determined. I say this because the questionnaire report dated 16th February 2026 which formed the basis for the 1st respondent decision, at paragraph 2.9.3, on the issue of “De-registration by KNEC,” it is indicated by hand thus “this was the intention of the Visit.” 48.The impugned letter dated 19th March 2026 addressed to the principal Gedi High School, informed the applicant that it had the right to seek re-inspection after addressing the non-conformities, this was barely two weeks to the closure of the registration portal on 31st March 2026. The County Director of Education, the 1st respondent agent vide letter dated 27th March 2026 and received on the same date by the 1st respondent, informed the chief executive officer of the 1st respondent that the recommendations mentioned in its report of 19th February 2026 had been addressed and all necessary documents were submitted to the Sub -County Director of Education Garissa. The CDE requested the 1st respondent to reconsider approving the centre so that it is able to register their candidates before deadline on 31st march 2026. This request went an answered instead, three days later on 30th march 2026, the chief executive officer of the 1st respondent without reference to the letter dated 27th march 2026, wrote to the County Director of Education with instructions to direct the SCDE to engage the principals of the affected centres and ensure that all the affected learners are registered with approved centres convenient to them and that the affected centres should be advised to seek re- inspection in 2027. 49.On the face of it and without any explanation, and none had been offered, the directive by the 1st respondent to CDE seems to be a continuation of a pre-determined decision and malicious for the reason that, the CDE of education the man on the ground had clearly advised that the de-registration of the school as an examination centre should be re-considered on the basis that the applicant had complied with the recommendation arising from the inspection conducted on 19th February 2026. There was no reason given by the 1st respondent why the recommendation by the CDE was ignored. 50.The decision to de-register the school on the grounds that it was operating from a different location is irrational and not well thought out because, the relocation was in compliance with the directive of the Sub – County Director of Education following inspection undertaken on 8th September 2025 giving the applicant six months within which to move to another site. The period to move to another site was later reduced by three months again without giving the applicant reasons why the compliance period was significantly varied. The 1st respondent was therefore fully aware of the relocation to a new site due to growing student population and is estopped from arguing to the contrary. 51.From 30th march 2026, when the 1st respondent wrote to CDE to engage the principals of the affected schools with a view to register learners in compliant examination centres convenient to the candidates, nothing seems to have taken place until on 6th May 2026, after the filing of this suit, when the 1st respondent CEO wrote to the County Director of Education requesting for an update and confirmation that suitable centre had been identified and the learners registered. The sub- county Director of Education responded the following day on 7th may 2026, requesting the 1st respondent to register KCSE candidates for Gedi Secondary school at Al- Halil High School which met all the necessary requirements. The school had been an examination centre in 2024. The identification of Al- Hilal as a suitable and alternative centre for examination was made by the SCDE before the centre was inspected and a report prepared, clearly indicating the haste with which the whole exercise was carried out. Therefore, the challenge by the applicant on the decision to have Gedi High School candidates registered for examination at Al-Hilal High School is not without merit. 52.Firstly, the decision is clearly rushed informed perhaps by the matter before the court as referenced by the 1st respondent chief executive officer in letter dated 6th may 2026. Secondly there is no evidence of engagement as suggested in the letter between the principal of the affected school, the respondents and other principals of the neighbouring schools. There is also no evidence that the identified school is a registered examination centre for the years 2026 noting that the letter dated 7th may 2026, from the SCDE, indicated that the school had been in operation up to 2024. Importantly, the report prepared on 12th may 2026 on the suitability of the school as an examination centre, unlike the previous two inspection reports dated 8th September 2025 and 16th February 2026, is scanty on the relevant parameters such as the details of the inspecting officer his or her declaration and the details of the in- charge of the institution inspected. If indeed Al-Hilal School was no longer in operation since 2024, are the physical facilities and laboratories apparatus still in place? This information and other details are not provided in the report dated 12th may 2026. 53.Article 47(2) of the Constitution and as elaborated in section 4(1) and (3) of the Fair Administration Act guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision (a) prior and adequate notice of the nature and reasons for the proposed administrative action; (b) an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, 54.Public bodies such as the respondents exercising public power are bound by the fair hearing principles when making decisions or in proceedings that are adversarial and affect the rights of individuals. In the case of Republic vs Kenya National Examination Council & 2others; Khalid Mohamud Ali ta Amal Secondary School & 5others (2025)12436 cited by the applicant the court reiterated the fair hearing principle that failure to grant the applicant a chance to be heard prior to deregistration of the school as examination centre constituted a breach of the applicants right to fair administrative process. 55.The decision taken by the 1st respondent as contained in the letter dated 19th march 2026 without affording the applicant an opportunity to be heard and make representation before such action was taken runs counter the spirit of Article 47 of the Constitution and Sections 4 and 7 of the Fair Administration of Action Act, is illegal and irrational. 56.Consequently, the following Orders shall issue forthwith;a.That an order of certiorari is hereby issued calling into this court and quashing the 1st respondent’s decision to de-register the applicant’s school as an examination centre, as contained in 1st respondents letter dated 19th March 2026.b.That an order of Mandamus, be and is hereby issued compelling the 1st respondent to reinstate the applicant school as an examination centre and process the applicants 2026 KCSE candidates’ registration.c.That an order of prohibition is hereby issued, restraining the 1st respondent from de-registering the applicant’s school and excluding candidates of the applicant’s school from the 2026 exams.d.That the applicant shall have the cost of the application. DATED, SIGNED AND DELIVERED AT GARISSA THIS 2ND OF JULY 2026JOHN T LOLWATANJUDGE