[2025] KEHC 5783 (KLR)

GM & another (Parents Suing as Next Friend to TZM (Minor)) v Board of Management, St Mary’s School; Nairobi County Education Board, Ministry of Education & another (Interested Parties) (Judicial Review Miscellaneous Application E062 of 2025) [2025] KEHC 5783 (KLR) (Judicial Review) (8 May 2025) (Ruling)

Neutral citation: [2025] KEHC 5783 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E062 of 2025

JM Chigiti, J

May 8, 2025

Between

GM

1st Applicant

JK

2nd Applicant

Parents Suing as Next Friend to TZM (Minor)

and

Board of Management, St Mary’s School

Respondent

and

Nairobi County Education Board, Ministry of Education

Interested Party

Kenya National Examination CouncilCouncil

Interested Party

Ruling

1. The Minor is a Form 4 Student who is set to sit his KCSE 2025. He has been kept away from school and from undertaking preparatory examinations from the year 2024 through to this year by the Respondent.

2. It’s the child’s mother’s case that the Respondent expelled the Minor on 25th February 2025 which it communicated in its letter dated 27th February 2025.

3. It is the mother’s case that the suspension shall drastically affect the minor’s education and schooling.

4. According to her, it is no longer tenable to continue to wait for the exhaustion of remedies before the Education Appeals Tribunal because the decision to be appealed from, supposing it shall have approved the Respondent’s decision to expel the Minor from school has not yet been made despite notice and as the Minor keeps losing valuable academic time.

5. She argues that the Applicant also seeks urgent and immediate relief as the KCSE 2025 registration shall lapse on the 28th March 2025.

6. The father of the minor is also concerned that their son has been away from school from 10thFebruary 2025 when his colleagues sat KCSE Preparatory exams and he continues to be at home when the others are preparing for exams.

7. The Minor’s preparation continues to be prejudiced because he is prevented from benefiting from the teaching by his teachers including the revisions and practical exams in the sciences which he cannot access unlike his other colleagues.

8. He argues that the expulsion has so far caused him psychological harm, and continue to deny him the same standing with his peers which harm cannot be undone, presently and in future, and its continuation shall render moot these judicial review proceedings.

9. It is his case that the Respondent, though a private school, offers the public function of providing basic education to the public upon a licence. It is therefore supervised by the Ministry of Education hence it cannot hide behind its private nature.

10. It is their case that they have presented exceptional circumstances that support a waiver to exhaust the statutory remedy of appealing the decision of the 1stinterested party to the Education Appeals Tribunal and pray that this Court reconsiders them.

11. It is his case that it is only this Court that can help the minor given that the lower Court already agreed with the Respondent on that issue, and as a decision of the 1st interested party that may cause them to approach the Education Appeals Tribunal that has not yet been made in spite of his request at the apparent urgency.

12. He argues that there is no reason why the Respondent should even oppose this application because the expulsion is so wrong howsoever you look at it.

The Respondent’s case; 13. The Respondent raised the following grounds of opposition;a.The Applicants have never exercised the statutory interventions under the Act and regulations.b.The Applicants have not exhausted the statutory mechanisms set out under Regulation 40 and 41 of the Basic Education Regulations 2015. c.The application is premature and improperly before this court.

14. It is argued that The Applicants have not satisfied the exceptional circumstances requirement under section 9(4) of the Fair Administrative Action Act:a.Regulation 41 of the Basic Education Regulations provides a suitable appeal mechanism for the Applicants’ grievance.b.The decision being challenged does not stop the minor from registering for KCSE 2025. As evident from the Applicant’s annexure GM4, the Applicants can register the minor as a private candidate at the Sub-County Director of Education.

15. Fr. Eliud Mumo the School Administrator of the Defendant/ Respondent School, also filed a replying affidavit in opposing the application.

16. It is his case that the Applicants’ prayer for exemption under section 9(4) of the Fair Administrative Action Act must be considered first before the court can determine whether to grant them leave to file the judicial review.

17. He argues that the Applicants have never intended to exhaust the statutory available mechanisms for the following reasons:i.Before the letter of exclusion was issued, the Applicants filed an application dated 19th February 2025 sought to stay the suspension of the minor in Children’s Court Case No. MCCHMISC/E271/2024. The court declined to issue any interim orders and set down the matter for interparte hearing on 4th March 2025. ii.After the minor was excluded, the Applicants filed an application dated 28th February 2025 seeking to stay/suspend the exclusion in the Children’s Court Case MCCHMISC/E271/2024. The court declined to issue any interim orders and set down the application for interparte hearing on 4th March 2025. iii.The Applicants then filed an application dated 1st March 2025 in a different case, Children’s Case MCCHMISC/E054/2025 seeking the same orders as the application dated 28th February 2025. The Applicants failed to disclose that they had two similar cases involving the same parties in the same court. Through the non-disclosure of the material fact, the court issued orders on 3rd March 2025, staying the exclusion of the minor. The matter was scheduled for mention on 5th March 2025. iv.On 5th March 2025, the court immediately discharged those orders due to the matter being subjudice.v.The file was closed and the parties referred back to MCCHMISC/E271/2024. See page 24 of annexure EM1. vi.The parties took directions on the Respondent’s Notice of Preliminary Objection dated 3rd March 2025. On 12th March 2025, the court allowed the Respondent’s objection and dismissed the Applicants’ application dated 28th February 2025. vii.Instead of exhausting the appeal mechanisms under the Basic Education Act, the Applicants filed this case on 13thMarch 2025.

18. It is their case that The Applicants have not met the threshold for exemption from the statutory remedies given that:i.From the Applicant’s annexure GM4, the Applicants can register the minor as a private candidate at the Sub-County Director of Educationii.During the pendency of the appeals process under the Basic Education Act, the Applicants can also seek private tuition for the minor as it is within their means to do so.

19. The respondents believe that The Applicants have never attempted to exercise the statutory interventions under the Basic Education Act and the regulations and that the Applicants have used the court process to defeat the Respondent’s disciplinary process and the statutory interventions under the Act.

20. In submission he believes that the Applicant had no intention whatsoever to exhaust the appeal mechanisms under the Basic Education Act and have instead approached the court to circumvent the clear provisions set out in the Act from the following:a.On 7th October 2024, the minor was accused of assaulting another student using a Taser. He was suspendered effective 8th October 2024 for 2 weeks pending disciplinary process. The applicant moved the Children’s Court Case MCCHMISC E271 of 2024 and obtained orders to prevent the minor being taken through the disciplinary process until the hearing and determination of the suit. Effectively the minor was exempted from disciplinary action for the said offence.b.On 10th February 2025, the minor was accused of stealing another student’s food, an event captured on CCTV. He was subsequently suspended and ordered to report for disciplinary action on 18th February 2025. When the school commenced disciplinary action, the applicant moved the court by application dated 19th February 2025 seeking to stay the minor’s suspension. The court declined to issue any interim orders.c.The minor was excluded vide letter dated 27th February 2025. The Applicant filed another application on 28thFebruary 2025 seeking to stay the exclusion of the minor in Children’s Court Case MMCHMISC E271 of 2024. The court, however, declined to issue an interim order.d.The Applicants then filed an application dated 1st March 2025 in a new suit MCCHMISC E054 of 2025 seeking the same orders. The Applicant failed to disclose the fact that another suit involving the same parties was pending before a different court and obtained exparte orders on 3rdMarch 2025. On 5th March 2025, the court discharged the said orders and struck out the suit when it was brought to its attention the existence of similar suit and application in Children’s Court Case MCCHMISC E271 of 2024. e.The Applicant then proceeded to challenge the Respondent decision in MCCHMISC E271 of 2024which application was dismissed by the court for lack of jurisdiction on 12th March 2025. f.The applicant then filed the instant proceedings on 13thMarch 2025.

21. Under regulation 40 of the Basic Education Regulations, a decision to exclude a student can be reviewed by the County Director of Education upon the advice of the County Education Board.

22. It is submitted that the applicant did not request the County Director of Education to review the said decision.

23. It is his case that on 18th March 2025 and the Learned Judge directed that the Minor be registered for KCSE by the interested parties. Since then, the Applicants have repeatedly attempted to force the respondent to register the minor despite not being a member of the school.

24. Article 159 (2) (c) of the constitution states that in exercising judicial authority, courts and tribunals shall consider alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution.

25. Article 47(3) of the Constitution has led to the enactment of the Fair Administrative Action act, 2015 which is the governing statute for any persons seeking to invoke the High Court’s powers of Judicial review.

26. Section 9 of the act provides for the procedure for judicial review of a decision of an administrative body with subsection (2) stating that the High Court shall not review an administrative decision unless all the internal mechanisms for appeal or review and any other mechanisms under any written law have been exhausted i.e., the doctrine of exhaustion.

27. Reliance is placed in the case of Speaker of the National Assembly v James Njenga Karume (Civil Application 92 of 1992) where the court stated that where there is a clear procedure for redress of any particular grievance prescribed for by an Act of parliament, the procedure should be strictly followed before approaching the court.

28. It also relies on the Supreme court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] where the court stated that the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute. The court further stated that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give preference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.

29. It is submitted that Section 93 of the Act as read with Regulations 39 to 41 provide the procedure followed when handling disciplinary cases in a school. Regulation 41 specifically states that: any person aggrieved by the decision of a school to expel them, with the same having been approved by the sub-county director of education ought to appeal to the Education Appeals Tribunal.

30. The minor was expelled from the Respondent institution on 27thFebruary 2025, since then four applications have been filed in court seeking to have the same stayed and/or lifted.

31. The applicants have made no effort whatsoever to appeal to the tribunal and thereby have failed to exhaust the prescribed statutory interventions.

32. The strict procedure for appealing decisions by a school board was addressed by the high court in Brig (RTD) Foustine Sirera Oduodi and another v Busia County Education Board and 3 others (2021) eKLR where the court in dismissing the Applicants application for leave to institute judicial review proceedings stated the applicant had an opportunity and was obligated by the Basic Education Act to first challenge the decision of the County Education Board, by appealing to the Education Appeals Tribunal upon which he could then approach the court if dissatisfied with the outcome of the same.

33. They submit that the Applicant has failed to exhaust all available internal review mechanisms before seeking leave to institute judicial review remedies.

34. Section 9(4) of the Fair Administrative Action Act states that the High Court or a Subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

35. In Republic v Kenya School of Law & another; Immaculate (Exparte) (Judicial Review Miscellaneous Application E180 of 2021) the court stated as follows: ‘…This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on constitutional interpretation especially in virgin areas or where an important constitutional value is at stake…’Paragraph 35 further states;“The second principle suggested by case law for limiting the applicability of the doctrine of exhaustion in appropriate cases is that a statutory provision providing an alternative forum for dispute resolution must be carefully read so as not to oust the jurisdiction of the Court to consider valid grievance from parties who may not have audience before the forum created, or who may not have the quality of audience before the forum which is proportionate.

36. The court in paragraph 43 of the aforementioned Kgaborone Tshofolo Wekesa (supra) narrowed down the spectrum for what amounts to an exceptional circumstance by stating;“.…I should perhaps add that there is no definition of ‘exceptional circumstances’ in the Fair Administrative Action Act, but this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided….Paragraph 44 further states;“The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in cases generally. The circumstances do not have to be unique or very rare but they do happen to be truly an exception rather than the rule."

37. They submit that the applicants’ case doesn’t do not meet the threshold for exceptional circumstances for the following reasons:a.In response to paragraphs a, f and g, the minor was expelled from the school via a letter dated 27th February2025 and the same was approved by the sub-county director of education as per regulation 40 the Basic Education Regulations. The Applicants have had an entire month to appeal to the Education appeals tribunal but have instead filed four applications in three different suits despite being well aware of the right forum to seek redress from. They have been aware of the deadline for registration the entire time and therefore the same cannot be used as a way of evading the prescribed statutory recourse.b.In response to paragraph b, c, d and e, the minor can be registered as a private candidate by the Kenya National Examination Council and does not need to be a student in the school to be registered.

38. In any event it is argued that the respondent is a private institution and cannot be forced to offer education to a learner who breaches is code of conduct. In RM (Suing through his mother and next friend JCM) v Jackson and another (constitutional petition 367 of 2018) where the court in paragraph 61 stated that the right to education is not absolute and learners are subject to the rules and regulation of the educational institutions that they attend.

39. In HOO (a child suing through his father and next friend) POO v the Board of Management N school and 2 others) [2018] eKLR where the court stated that it is trite law that the right to education is not absolute, but subject to the rules and regulations governing an institution. The court upholding the Petitioners exclusion stated that where a learner was guilty of breaching school rules after the appropriate disciplinary process has been followed, an institution is justified in excluding them and it does amount to denial of the right to education. The minor has been the subject of various breaches of the school code of conduct and, despite numerous warnings and suspensions, has failed to reform. Excluding him therefore did not amount to a breach of the right to education.

40. It is his case that since the court issued directions on 18th March 2025 ordering that the minor be registered for KCSE by the interested parties. This means that the minor can be registered before the deadline and no exceptional circumstances permit judicial review arise from the same. The minor is not a student of the school and thus the school cannot register him as a candidate.

41. The Court of Appeal in Aluochierv Independent Electoral and Boundaries Commission & 17 others (Civil Appeal E176 of 2022) [2022] addressed this issue by stating,“…judicial review is a special jurisdiction; and that, in so far as no rules have been made under Article 47 of the Constitution, there can be no vacuum in law; that a party approaching the court for judicial review orders of certiorari, mandamus or prohibition must comply with the procedure set out in Order 53 Rule 1(2) of the Civil Procedure Rules. Accordingly, such a party must seek the court’s leave by way of a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit together with relevant annexures in support of the prayers sought…”Paragraph 23 further states;‘…It therefore goes without saying that, in the absence of specific rules tailored to suit applications for judicial review orders, Order 53 of the Civil Procedure Rules necessarily applies. In view of the fact that the prescriptive provisions of Order 53 Rule 1 are mandatory, failure to comply therewith renders a Motion for judicial review incompetent, fatally defective and deserving of nothing short of dismissal…"

42. In Republic v Retirement Benefits Authority Exparte Alex Anyona Momanyi & 6 others [2021] eKLR also addressed the vague nature of Article 47 and Section 9 by stating:“…I am also minded that the applicant has invoked various provisions of the Fair Administrative Action Act, 2015, in particular, sections 7, 8, 9, 10 and 11 none of which provide for application for leave as the preliminary step in lodging the application for judicial review. However, none of those provisions expressly oust the application of Order 53 (1) of the Civil Procedure Rules in applications for judicial review. The specific provision in the Fair Administrative Actions Act relating to procedure is section 9 of the Act … The Act does not say how the application is made and, in my humble view, this is a deliberate omission because the procedure for invoking judicial review jurisdiction remains Order 53 of the Civil Procedure Rules. One very important point to remember is that the common law principles upon which the requirement for leave was grounded still subsist today and are as much relevant today as they were before. I suppose it is for this reason that section 12 of the Fair Administrative Actions Act is express that the Act is complementary to and not a substitute of the general principles of common law…"

43. He also relies further in the case of Oluoch Dan Owino & 3 others v Kenyatta University [2014] eKLR the court stated that:“…As I understand it, the right to education does not denote the right to undergo a course of education in a particular institution on one’s terms. It is my view that an educational institution has the right to set certain rules and regulations, and those who wish to study in that institution must comply with such rules. One enters an educational institution voluntarily, well aware of its rules and regulations, and in doing so commits himself or herself to abide by its rules…”

44. The High Court in JMOO v Board of Governors of St M’s School, Nairobi (Petition 542 of 2014) [2015] KEHC 3036 (KLR) stated that,“…It is correct that the Constitution guarantees to children the right to education, and it also requires that in every matter concerning the child, the best interests of the child must be the primary consideration. However, it must be restated and re-emphasised that rights have their corresponding responsibilities, and the responsibility of students in school is to abide by the school’s regulations. It would certainly not be in the best interests of the petitioner, or of the other students in the respondent school, were the respondent to ignore disruptive conduct on the part of the petitioner, or of any other student…the rights of the petitioners’ daughter must be considered alongside the rights of the other students in the school. The school has an obligation to all its students, and as the respondent submits, failing to discipline the students who break rules would set a bad precedent and affect students and parents who are willing to abide by school regulations…”

45. It is submitted that the minor has had numerous cases of indiscipline. He has intimidated, bullied and even stolen from fellow students. He has also been repeatedly rude and disrespectful to his teachers.

46. It is further submitted that it would not be in the minor’s best interest to be reinstated. His reinstatement would also set a bad precedent for his fellow students and parents. It would show that the school’s regulations are of no consequence thereby rendering them nugatory.

Analysis and determination; The following are issues for determination:1. Whether the applicant has made out a case for the grant of leave to institute judicial proceedings.2. Whether or not the applicant is entitled to the orders sought.

47. In Mombasa HCMCA No. 384 of 1996 Republic v County Council of Kwale & Another, Exparte Kondo and 57 others it was held that:“The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.

48. In the case of Dawda K. Jawara v Gambia, it was held that:“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.”

49. In the case Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR it was held that:“The principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.”

50. In the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others[2015] eKLR the Court of Appeal stated that: -“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be of last resort and not the first port of call the moment a storm brew… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

51. Where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the Court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it.

52. In the case of Dawda K Jawara v Gambia 147/95-149/96 on availability of effective alternative remedies, where it was held that:“A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint... The government’s assertion of non-exhaustion of local remedies will therefore be looked at in this light... a remedy is considered available only if the applicant can make use of it in the circumstance of his case.” (emphasis added).

53. I am satisfied that there is a redress mechanism that is available to the applicant.

54. School rules are not made for the sake of it. In order to promote the right to education, regulations are to be followed by all the students, parents and the teachers. That is the only way to achieve a safe learning environment.

55. No student must stand in the way of the right to education of fellow students or the learning facilities. Regulations must be obeyed at all times.

56. The Basic Education Act presents one of the legislative frameworks that was put into place with a view to promoting the right to education.

57. The Applicant admits that there is an appeal process but argues that it will take long to determine the appeal.Regulations 38, 39 ,40 and 41 of the Basic Education Regulations 2015 sets out a raft of steps that the learning institution is expected to comply with when attending to the students’ discipline.

58. Regulations 41 provides that Any Person aggrieved by a decision under regulation 40 may Appeal to the Education Appeals Tribunal.

59. Regulation 42 stipulates that no school shall withdraw the registration of a learner or candidate in a national examination as a form of punishment.

60. The applicant sought an order that leave granted to the Applicants under S. 9(4) Fair Administrative Actions Act to institute these judicial review proceedings without awaiting the decision of the Nairobi County Education Director and Nairobi County Education Board regarding the expulsion of the Minor herein, Trevor Zeke Masolo, from the Respondent’s St Mary’s School Nairobi, and without going to the Education Appeals Tribunal under Regulations 40 and 41 of the Basic Education Regulations 2015.

61. This court is in agreement with the findings in HOO (a child suing through his father and next friend) POO v the Board of Management N school and 2 others) [2018] eKLR where the court stated that it is trite law that the right to education is not absolute, but subject to the rules and regulations governing an institution. The court upholding the Petitioners exclusion stated that where a learner was guilty of breaching school rules after the appropriate disciplinary process has been followed, an institution is justified in excluding them and it does amount to denial of the right to education.

62. In the instant suit, this court is minded to allow the alternative dispute resolution mechanisms to roll out to the end where the final decision of the minors fate shall be determined after the appropriate disciplinary process has been followed. That will accord with the right to fair hearing. That process will come to an end once Regulations 41 which provides that any Person aggrieved by a decision under regulation 40 may Appeal to the Education Appeals Tribunal is exhausted by the minor.

63. This court is of the informed view that the grant of leave to institute judicial review proceedings will go against the best interest of the child given that there are alternative redress mechanisms that can deal with the issues raised by the minor.

Disposition: 64. The Applicant has not exhausted the alternative dispute resolution mechanisms. This court takes note of the fact that unlike the Board of Management, the Sub-county Education Officer and Education Appeals Tribunal, this court is not equipped with the tools to help it to preside over the issues that are in dispute.

65. This court is alive to the fact that keeping a student away from the school learning environment while his disciplinary process is rolling out for an indefinite and a prolonged time is detrimental to the child’s right to education and the best interest principle.

66. Noting that this matter touches on the right of education of a child and the best interest of the child principle, this court shall in exercise of its discretion under Article 165 of the Constitution proceed to issue the following orders.

Order;1. Prayer 1A is allowed.2. The rest of the Application is disallowed.3. The pending disciplinary proceedings and appeal be heard and determined within 14 days.4. In the intervening period, the minor shall be admitted back in school forthwith.5. No orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MAY 2025. ………………………………………….J. M. CHIGITI (SC)JUDGE