https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10026

Kenya Institute of Management v Technical and Vocational Education and Training Authority (Judicial Review E119 of 2026) [2026] KEHC 10026 (KLR) (Judicial Review) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10026 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E119 of 2026 WM Musyoka, J July 9, 2026 Between Kenya Institute Of Management Applicant and The Technical and Vocational Education And Training Authority Respondent Ruling 1.These proceedings commenced in Milimani HCJR Miscellaneous No. E060 of 2026, by way of an ex parte chamber summons, dated 21st April 2026, seeking leave to apply for 2 certiorari and 1 prohibition orders, with relation to a decision made by the respondent to order the applicant to close down, and stop operations. 2.The matter was placed before me, on 22nd April 2026, and I granted leave, for the filing of a substantive motion for the judicial review orders sought, and directed that the said motion be filed within 7 days. I also ordered that the grant of the leave order sought do operate as a stay. The substantive motion was filed herein, that is in Milimani HCJR No. E119 of 2026, dated 22nd April 2026. 3.Upon being served, the respondent filed a notice of preliminary objection, dated 27th April 2026, raising 3 points, that the court was devoid of jurisdiction to entertain the application; there was non-exhaustion of a mandatory administrative remedy, under section 37(2) of the Technical and Vocational Education and Training Act, Cap. 210A, Laws of Kenya; and the provisions of section 9(2) of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, had been offended. 4.On 29th April 2026, it was directed that the preliminary objection be argued first, by way of written submissions, to be filed and exchanged by the parties, within given timelines. Both sides have filed written submissions. The written submissions, by the respondent, are dated 8th May 2026; while those by the applicant are dated 22nd May 2026. 5.The principal argument, by the respondent, is that the court lacks jurisdiction to handle the matter, on account of the exhaustion principle. The argument is anchored on the Technical and Vocational Education and Training Act, which applies to the applicant. The relevant provision is said to be at section 37, which provides for closure of training institutions, and an appeal, against the closure, to the Cabinet Minister, within 30 days. The argument is that the applicant, upon being given a closure notice, did not avail itself of the procedure under section 37(2), before rushing to court. That argument is augmented by the submission that section 9(2) of the Fair Administrative Action Act, makes it mandatory that the administrative mechanisms, provided for under any applicable statutory law, should be exhausted, prior to court action under the Fair Administrative Action Act. It is submitted that since there was no exhaustion of the administrative mechanism, under section 37(2) of the Technical and Vocational Education and Training Act, there was non-compliance with section 9(2) of the Fair Administrative Action Act, hence the High Court could not assume jurisdiction prior to the said non-exhaustion of administrative remedies, and the application is incompetent on that account. 6.Mukisa Biscuits Manufacturing Limited vs. West End Distributors [1969 EA 696, Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2102] KESC 8 (KLR), Nyaga vs. Attorney General & 2 others [2021] KEELC 1575 (KLR), Consumer Federation of Kenya vs. Toyota Motors Corporation & 4 others [2022] KEHC 15459 (KLR), Republic vs. Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] KEHC 9434 (KLR) and Owalla vs. County Attorney of Siaya County Government & 2 others [2024] KEHC 3896 (KLR) are relied upon. 7.The applicant argues that the preliminary objection is not merited, for section 37 of the Technical and Vocational Education and Training Act, which the respondent relies upon, must be read together with section 36 of the same Act. It is submitted that section 37(1) provides for closure of an institution, upon failing to comply with a notice, served upon it, under section 36. Section 37(2) then prescribes the administrative remedy, of an appeal to the Cabinet Secretary, following the closure. It is submitted that the appeal, under section 37, could only be triggered by compliance with section 36, by way of the notice being given. It is argued that no notice was given under section 36, to trigger the appeal under section 37(2) of the Technical and Vocational Education and Training Act. It is submitted that the closure was with immediate effect, depriving the applicant of the right to the 30 days to lodge an appeal. 8.Regarding section 9(2) of the Fair Administrative Action Act, it is submitted that the same is not absolute, for there are exceptions to it, in public interest. Anthony Miano & others vs. Attorney General & others [2021] eKLR and NGO Coordination Board vs. EG & 5 others [2023] KESC 17 (KLR) are cited on the point. It is submitted that the exceptions to the exhaustion principle are set out in section 7(2) of the Fair Administrative Action Act, and Krystalline Salt Limited vs. Kenya Revenue Authority [2019] eKLR defined them. It is also argued that the preliminary objection does not raise pure points of law, because the court will have to look at the surrounding facts. Mukisa Biscuits Manufacturing Limited vs. West End Distributors [1969 EA 696 is relied on. 9.Section 37 of the Technical and Vocational Education and Training Act provides as follows:“37.Closure of training institutions(1)If any institution served with the notice under section 36 fails to comply with the notice, the Board may close the institution either permanently or until the notice is complied with.(2)Any person aggrieved by the decision of the Board under subsection (1) may appeal to the Cabinet Secretary within thirty days of the decision.” 10.The dispute herein relates to the closure of the applicant, ostensibly under sections 36 and 37 of the Technical and Vocational Education and Training Act. Section 37 would then be relevant to these proceedings. The closure is pegged on failure to comply with a notice served under section 36 of the Technical and Vocational Education and Training Act, and it would appear that that section 36 would also be relevant, it provides:“36.Notice to rectifyThe Board may by notice in writing, require an institution in default of any set standard to comply therewith within a prescribed time and in a prescribed manner.” 11.The effect of section 36 of the Technical and Vocational Education and Training Act would be that before an institution is closed, under section 37 of the Technical and Vocational Education and Training Act, it would have to be served with a notice, under section 36, requiring it to rectify or comply with certain set standards, within given timelines. The closure, under section 37(1), should follow non-compliance with the notice served under section 36. The applicant argues that notice, under section 36 was not served, prior to the closure under section 37(1), hence it was denied the opportunity to take advantage of the administrative remedy under section 37(2). 12.I see, from the material placed on record by the applicant, a letter, dated 20th April 2026, which formally revoked the accreditation of the applicant, and ordered immediate closure of the institution. That closure is premised on sections 36 and 37 of the Technical and Vocational Education and Training Act. I have not seen, from the material filed by the applicant, any document purporting to be a notice issued under section 36 of the Technical and Vocational Education and Training Act, requiring the applicant to rectify or comply with any standard set by the respondent, prior to the letter of 20th April 2026 was issued, to revoke accreditation and closing the campuses of the applicant. I have equally not seen a notice or letter indicating that there had been a non-compliance with a notice under section 36, by the applicant, before action was taken to close the institution. 13.At this stage, the respondent has not filed an affidavit in response to the application, hence no material evidence has been placed on record, and I am unable, in the circumstances, to tell whether a notice under section 36 of the Technical and Vocational Education and Training Act had been served, and not complied with, prior to the closure of the applicant, under section 37 of the Technical and Vocational Education and Training Act, vide the letter of 20th April 2026. 14.The question then would be whether there is a proper preliminary objection before me, in the circumstances. The test, set in Mukisa Biscuits Manufacturing Limited vs. West End Distributors [1969] EA 696, is that the preliminary objection should be on a pure point of law, and should rest on the premise that all the facts are uncontested. The respondent proceeds on the assumption that there was a notice under section 36 of the Technical and Vocational Education and Training Act, which was not complied with, triggering the action under section 37(1) of the Technical and Vocational Education and Training Act, which would have entitled the applicant to the administrative relief under section 37(2) of the Act. The applicant argues that there was no notice under section 36, to justify the action under section 37(1), which would have availed the remedy under section 37(2). The 2 parties are not in agreement on those facts. In the absence of evidence that the notice, under section 36, was ever issued, and was not complied with, I would, at this stage, be unable to rule on whether the action, under section 37(1), was procedural, to trigger invocation of section 37(2). In short, it would be premature to determine the issues raised in the preliminary objection, at this stage. 15.Secondly, I note that the letter of closure, dated 20th April 2026, does not make any reference to a notice under section 36 of the Technical and Vocational Education and Training Act, having been previously issued, and not complied with, to pave way for action under section 37(1) of the Act. I also notice that the closure was to take effect immediately, and the closure letter of 20th April 2026, was accompanied by a notice to the general public, also dated 20th April 2026. 16.Thirdly, the provision, under section 37(2), for an appeal to the Cabinet Secretary, is not in mandatory terms, but in the permissive “may.” That does not confine any challenge to the closure under section 37(1) to the Cabinet Secretary, for it leaves room for the challenge to be mounted elsewhere. That then would mean that although there is provision for an administrative mechanism, the said provision does not close out any other mechanism, by making it a mandatory step to be undertaken before any other. 17.Both sides have addressed me on the provisions of the Fair Administrative Action Act, with respect to exhaustion of administrative remedies, before resort to court action. The Fair Administrative Action Act is not a statute of universal application, to all cases of judicial review. It only governs proceedings that are brought under it. These proceedings are not anchored on the Fair Administrative Action Act, but on Order 53 of the Civil Procedure Rules. They are Order 53 judicial review proceedings, and not the Fair Administrative Action Act judicial review proceedings, to which the provisions of the Fair Administrative Action Act would apply. Sections 7(2) and 9(2) of the Fair Administrative Action Act, which the parties hereto have cited, are of no application to these proceedings, neither are the decisions in Republic vs. Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] KEHC 9434 (KLR), Anthony Miano & others vs. Attorney General & others [2021] eKLR and NGO Coordination Board vs. EG & 5 others [2023] KESC 17 (KLR). 18.I believe that I have said enough to demonstrate that the preliminary objection herein is not well-founded, and I, accordingly, overrule and dismiss the same. Let the respondent file its papers in response to the motion, dated 22nd April 2026, in Milimani HCJR No. E119 of 2026. The file, in Milimani HCJR Miscellaneous No. E060 of 2026, shall be closed, and placed within the file in Milimani HCJR No. E119 of 2026. The matter, in Milimani HCJR No. E119 of 2026, shall be mentioned on 29th July 2026, to confirm filing of a response by the respondent, and for further directions. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 9TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMs. Githii, instructed by Kiarie Kariuki & Githii, Advocates for the ex parte applicant.Mr. Weche/Mr. Ali, instructed by the Attorney General, for the respondent.