KTC (Minor suing through father and next friend VK) & 3 others v Principal, SHG High School & another

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Judicial Review Division** **HCJR No. E179 of 2026** **KTC *(Minor Suing Through Father and Next Friend VK)*..................1st Applicant** **VJWN *(Minor Suing Through Father and Next Friend LI) .........*…..2nd Applicant** **HWH *(Minor Suing Through Father and Next Friend RA)* ………...3rd Applicant** **IKJ *(Minor Suing Through Father and Next Friend MM)..*….……...4th Applicant** ***-Versus-*** **The Principal, SHG High School…..…………………….……………....1st Respondent** **The Board of Management, SHG High School……….…..……….....2nd Respondent** **Judgment** **Background** 1. On 5 June 2026, the Applicants being learners at SHGHS (the institution) in grade 10 (1st, 2nd and 3rd Applicants) and Form 3 (4th Applicant) were suspended from the institution by the 1st Respondent on suspicion of being part of a group of students who participated in a discussion to burn the institution. This discussion allegedly happened on the night of 4 June 2026. Vide the same letter of suspension, the Applicants were required to face the 2nd Respondent on 15 June 2026 accompanied by their parents. 2. The Applicants were granted an interim relief by this court when they filed an Originating Motion dated 10 June 2026 (the motion) where the Court temporarily suspended the disciplinary proceedings and directed the re-admission of the Applicants pending the hearing and determination of the motion. In the motion, the Applicants seek lengthy prayers set out as follows: 1. *Spent* 2. *That the Honourable Court be pleased to issue an order directing that all the applicants be re-admitted back in school forthwith without any pre-conditions;* 3. *That the Honourable Court be pleased to grant an order of certiorari to remove to this Honourable Court for purposes of quashing the decision of the 1st Respondent to suspend the 1st, 2nd ,3rd and 4th Applicants from State House Girls High School communicated through a letter addressed to each Applicant dated 5 June 2026;* 4. *That the Honourable Court be pleased to grant an order of mandamus compelling the 1st Respondent to reverse the suspension communicated vide letters dated 5 June 2026 and re-admit the Applicants back to school without any delay or pre-conditions and the record of this suspension be expunged from all records relating to the Applicants;* 5. *That the Officer Commanding Station (OCS) Kileleshwa Police Station be directed to enforce the re-admission of the Applicants should the order of this Honourable Court directing such re-admission of the Applicants not be complied with;* 6. *That the court orders that the sub-county director of education for Westlands Sub-County be notified of the decision to re-admit the Applicants should the same be allowed and the officer be granted access to the learners from time to time during the pendency of the application to ensure that none of the learners or their parents are victimized upon re-admission;* 7. *That the Honourable Court be pleased to grant an order of prohibition prohibiting the Respondents from suspending, kicking out of school or commencing any disciplinary action against the Applicants without following fair and just procedures;* 8. *That the Honourable Court issue an order of mandamus directing that any of the statements taken from the Applicants before their suspension are not used or relied on during any disciplinary hearing conducted by the school board, the 2nd Respondent herein;* 9. *That the Honourable Court grants an order of stay to restrain the Respondents from proceedings with the hearing scheduled for 15 June 2026 before the Board of management of State House Girls High School;* 10. *That due to the urgency of the matter and the short period remaining before the hearing before the Board of management, the requirement for a notice of intention to sue be dispensed with and the application be admitted as prayed;* 11. *That costs of this application be provided for.* 3. The basis of the prayers sought is explained to be a challenge of the 1st Respondent’s decision which is said to have been informed by irrationality. The Applicants further impugn the decision to set a hearing before the 2nd Respondent on the basis that the process that led to the hearing was flawed and offends the rules of natural justice. The Applicants accuse the 1st Respondent of bias and irrationality. It is their case that whereas the suspension was attributed to the then situation obtaining in the country of unrest in schools, the situation persisted despite their suspension and on 8 June 2026 all the students had been released. 4. The Applicants particularly take issue with what allegedly happened before they were suspended from the institution. They allege that they were subjected to a process that was rushed and with a predetermined outcome even before they could be heard at the preliminary stage. It is averred that the school matron summoned them at 11.30 pm and thereafter escorted them to the disciplinary committee without any of them knowing the reasons for the summons and why the same was being done late at night when most of them were tired and unable to comprehend the happenings of that night. 5. The Applicants further contend that they were kept waiting for several hours without any explanation or action. It is alleged that the 3rd Applicant was kept waiting until 3 am in the morning. It is also averred that the 1st and 3rd Applicant who had visited the dispensary during the day were ailing when they were subjected to sitting in the cold through the night. 6. It is the Applicants’ further contention that they were forced to write statements in a “criminal style” interrogation which continued past 2.30 am when they were too tired and sleep deprived to comprehend the nature of the proceedings they were subjected to. It is the Applicants’ case that their written statements were destroyed by the 1st Respondent who insisted that they had not written what she wanted to see in the statements. Consequently, they aver, some of the minors chose to include information that was not within their personal knowledge so as to please the committee and the 1st Respondent. 7. The Applicants describe this exercise as psychological torture which they aver ended at 3.00 am in the night when they were allowed to go back to their hostels. The minors’ parents were subsequently summoned on 5 June 2026 when they were issued with the suspension letters. It is contended that the said suspension letters are scanty and do not contain sufficient information to assist the Applicants to present their defence before the 2nd Respondent. 8. The application is further supported by the supporting affidavits of the VK and RA sworn on 10 June 2026 reiterating the averments in the application 9. The application is opposed by the Respondents through a replying affidavit sworn by JM (the 1st Respondent) on 30 June 2026. JM avers that the administration and the day-to-day management of the institution has always been undertaken in compliance with the basic Education Act and the Basic Education Regulations. 10. It is the Respondents’ case as set out in the replying affidavit that the 2nd Respondent is empowered to determine cases of pupils’ indiscipline and make reports to the County Education Board pursuant to the Basic Education Act. Further, the rules thereunder give powers to the 1st Respondent to suspend a learner where the 1st Respondent is of the opinion that the act of indiscipline is likely to threaten the safety of the other learners in the institution. 11. In respect to the instant case, the 1st Respondent avers that on 4 June 2026, the school matron received information from a student who stated that she had overheard a group of students discussing plans to set part of the institution on fire on the same night of 4 June 2026. The said student, the 1st Respondent avers, identified another student as a ringleader and stated that the alleged plan was to set fire to one of the houses and a section of another hostel used as a mattress store. JM avers that this information was relayed by the school matron to the school deputy principal in charge of administration. 12. JM contends that due to the gravity of these allegations, the learner who was reported to be the ringleader was summoned to the Chief Principal’s office for questioning by an ad hoc disciplinary committee. It is the Respondents’ case that it was during the said questioning that it emerged that a clandestine and unauthorized meeting had indeed taken place earlier in the day inside the school dispensary which was attended by several students who were identified by the school nurse. 13. It is the Respondents’ case that the identified 15 students were questioned and their statements taken on the same day due to the possible implications of the alleged plot. The Respondents deny that any of the summoned students were kept waiting for an inordinate amount of time or questioned in the early hours of the morning as alleged by the Applicants. JM avers that many of the students questioned (including the 2nd and 4th Applicants) corroborated the allegation that there had been a discussion regarding planned arson and a strike. She relies on copies of the Applicants’ handwritten statements annexed to her affidavit and marked “JM-2(a)”, “JM-2(b)”, “JM-2(c)” and “JM-2(d)”. 14. JM avers that the ad hoc committee having considered that the alleged conduct on the part of the identified learners would constitute indiscipline resolved to have the implicated learners suspended pending further investigations and hearing before the 2nd Respondent. This was captured in the minutes of the committee which are annexed to her affidavit and marked “JM3”. She accordingly suspended the 15 learners who had been implicated and shared reports on each student with the 2nd Respondent. These reports are annexed to her affidavit and marked “JM5(a)-(d)”. 15. The 1st Respondent defends her decision to suspend the students as having been informed by the likelihood of a credible threat to the safety and security of over 1000 other students. It is her assertion that if the threat had materialized, it would have resulted in serious injuries or even death. In any case, she avers, no decision on the students’ culpability had or has been reached by the Respondents by virtue of those suspension letters. 16. The Respondents, therefore, contend that the Applicants have not demonstrated through cogent evidence that the decision being challenged was illegal, irrational or procedurally improper. It is the Respondents’ case that the Applicants have prematurely approached this court even before a disciplinary hearing can take place. They aver that the Applicants will be given a fair opportunity to be heard before the 2nd Respondent and to present their cases and call any witnesses in support of their cases. 17. The Respondents further urge the court to take judicial notice of recent student deaths caused by incidences of arson by delinquent students and to properly balance the safety and security of more than 1000 students against the prayers of the Applicants. 18. In rejoinder, the Applicants through the further affidavit of VK sworn on 10 July 2026 contend that the 1st Respondent acted irrationally by suspending all the 15 students who had visited the dispensary rather than the implicated culprits. VK also contends that the 1st Respondent’s attempt to link past incidents that have no bearing to the allegations against the Applicants was in a bid to bolster the weak allegations against them. **Parties’ Submissions** 1. This application was canvassed by way of written submissions pursuant to the directions issued on 10 June 2026. The Applicants filed submissions dated 10 July 2026 while the Respondents filed submissions dated 20 July 2026. 2. The Applicants identify five issues for determination in their submissions being: whether the 1st Respondent’s decision to suspend them was tainted with illegality; whether the 1st Respondent’s decision to suspend them was irrational; whether the 1st Respondent breached the rules of natural justice in processing the Applicants before their eventual suspension; whether the Applicants are entitled to judicial review remedies of certiorari, mandamus and prohibition and all the consequential orders as prayed for against the Respondents; and, costs. 3. On whether the 1st Respondent’s decision was tainted with illegality, it is the Applicants’ argument that they were subjected to a sham disciplinary committee hearing that was conducted late at night which action was geared towards wearing them down through sleep deprivation. They contend that the late-night interrogation was confirmed by the ad hoc committee meeting which indicate that the meeting ended at 2.30 am. It is their case that subjecting them to a late-night interrogation ran afoul the constitution particularly Articles 10(1)(b), 10(2)(b), 29(d) and 53(2). The Applicants place reliance on ***Republic v. Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 Others [2019] eKLR.*** 4. On whether the decision to suspend the Applicants was irrational, they submit that the impugned suspension had no reasonable justification considering the facts surrounding the whole issue and the evidence tendered to support the allegations. They argue that the 1st Respondent failed to use the disciplinary committee hearing to identify the actual culprits but opted to suspend all the 15 learners who had been at the dispensary. The Applicants further argue that the statement of the key witness has also not been provided casting doubt on the specific nature of the meeting allegedly held at the dispensary. It is the Applicants’ argument, as well, that the minutes of the ad hoc committee meeting fail to connect any of them to the alleged indiscipline in order to afford them a fair chance to defend themselves. In sum, the Applicants contend that the 1st Respondent did not have any basis for suspending them and that, in any case, any suspension should have been for only those found to be culpable. The Applicants rely on the case of ***Republic v. Public Procurement Administrative Review Board, Principal Secretary State Department of Interior, Ministry of Interior and Coordination of national Government (Interested Party) Ex-Parte: CMC Motors*** that evidence and information must support a decision an administrator takes. 5. On whether the 1st Respondent breached the rules of natural justice, the Applicants argue that the actions of the 1st Respondent ran afoul the rules of natural justice. It is contended that contrary to the position taken by the Respondents, disciplinary committee hearings play an important role in sifting baseless allegations from those that warrant further action. This, they aver, necessitates the application of rules of natural justice at every juncture. Furthermore, the Applicants take issue with the holding of the disciplinary hearings late at night when they were too tired being minors. The Applicants further submit that the process was tainted with a lack of impartiality which was demonstrated by the actions of the 1st Respondent who kept destroying their statements because they did not state what she wanted. In support of these arguments, the Applicants rely on ***Gladys Nyawira & Others v. County Government of Nyeri [2016] KEHC 1512 (KLR)***and ***Republic v. Board of Management, Mbaikini Boys High School & Another Ex-Parte AMK & 4 Others [2022] KEHC 2281 (KLR).*** 6. In conclusion, the Applicants submit that they have made out a case for the grant of the judicial review orders sought. It is their case that the decision to suspend them was tainted with aspects that make the decision one that is susceptible to quashing. 7. In the alternative, and without prejudice to the prayers sought, the Applicants argue that the court should issue appropriate orders if it is not inclined to issue the judicial review orders sought. In this regard, the Applicants submit that an appropriate order would be to allow them to continue with their learning while the 2nd Respondent undertakes a hearing of the accusations against them. They urge the court to be persuaded by ***Republic v. Board of Management, Mbaikini Boys High School & Another Ex-Parte AMK & 4 Others [2022] KEHC 2281 (KLR)*** where a similar order was issued. 8. On their part, the Respondents identify two main issues for resolution: whether the application dated 10 June 2026 is competent, and; whether the Applicants have met the threshold for grant of judicial review orders. 9. It is the Respondents’ argument that what the Applicants are seeking amounts to a merit review of the 1st Respondent’s decision to suspend them which they aver is subject to the outcome of the intended hearing before the 2nd Respondent. They further submit that the Applicants have a right to challenge the decision of the 1st Respondent when they appear before the 2nd Respondent. The Respondents also rely on the provisions of the Basic Education Act and the regulations thereunder in asserting that the court should defer to the procedure set out thereunder for handling disciplinary cases pursuant to the doctrine of constitutional avoidance. The Respondents rely on ***Communications Commission of Kenya & 5 Others v. Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR); Speaker of the National Assembly v. Karume (1992) KECA 42 (KLR); Motiga v. Lugalia & 4 Others [2025] KEHC 275 (KLR); Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR), and; Institute for Social Accountability & Another v. National Assembly & 5 Others [2022] KESC 39 (KLR).*** 10. The Respondents further argue that the Applicants have not demonstrated that the decision to suspend them was illegal, irrational or procedurally improper. The Respondents contend that the 1st Respondent’s decision to suspend the Applicants among eleven other learners was informed by a reasonable apprehension of a credible and imminent threat to the safety and security of over 1000 learners and staff at SHGHS. They aver that the decision was a very reasonable and rational one and any authority addressing itself to the facts and the law would have made the same decision. They also assert that the decision was legally supported by Rule 38 of the regulations and procedurally fair pursuant to Rules 39, 40 and 41 which set out the procedure for handling disciplinary cases including appeal. The Respondents rely on ***Wandaka & 2 Others v. Director Criminal Investigations & Another; Muiruri (Interested Party) [2026] KEHC 5861 (KLR)***. **Analysis and Determination** 1. Having considered the Originating Motion, the affidavits filed by the parties and the rival submissions, I am of the view that the dispute principally turns on whether the decision to suspend the Applicants and the disciplinary proceedings against them are susceptible to judicial review. 2. This matter necessitates a restatement of what may be considered as cardinal rules of engagement in the context of the relationship between an institution and its learners. The first one is that institutions of learning retain the power to discipline delinquent learners, administratively. Second, in exercise of that power in their administrative action against learners, the institutions shall uphold the learners’ rights to fair administrative action, to wit: - administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The third is that administrative action against learners is tempered with other special protections that the leaners enjoy under the Constitution particularly Article 53 (1) (b) and (2), and the Children Act. 3. The above calls for a balance between the rights of the learners, on the one hand, and the maintenance of order and importantly safety of other learners in the learning institution when acts of one or a few learners may endanger other learners, on the other hand. This balance was recognized in ***J M O O –vs- Board of Governors of St. M’s School, Nairobi [2015] eKLR*** as follows: *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.* 1. In ***Kanini Kega v. Okoa Kenya Movement [2014] eKLR***, GV Odunga, J (as he then was) stated the role of a court when faced with competing rights as follows: *121…The function of the Court when faced with the task of establishing or determining the rights on the one hand and determining the limitation and restrictions on the other hand is to do a balancing act and in this balancing act are principle values, objectives to be attained, a sense of proportionality and public interest and public policy considerations….* 1. The operative legal provisions that are relevant to the matters in issue are the Basic Education Act and the regulations thereunder being the Basic Education Regulations. Whereas the Basic Education Act generally establishes the institutions responsible for discipline of learners, the regulations provide for the procedures. Under the Basic Education Act, discipline is undertaken by the Boards of Management which make reports to the County Education Boards. The Basic Education Regulations provide for a comprehensive procedure for handling disciplinary cases in schools. In the relevant parts, Regulation 32 outlines acts which constitute indiscipline and for which a learner would be held liable. Regulation 38 empowers the school heads to suspend learners if, *“(a) the acts of indiscipline have persisted in spite of the warnings or corrective measures taken under these regulations; and (b) if the act of indiscipline is likely to threaten the safety of the other learners in the institution.”* 2. Upon being issued with a suspension letter, which is addressed to the parent or guardian, the suspended learner is then required to appear before the Board of Management of the institution at a specific date accompanied by a parent or guardian. Regulation 39 provides for the procedure before the Board of Management where the complaint against the learner is read out in the presence of the parent or guardian and the learner is required to defend themselves. The Board of Management then transmits its recommendations to the County Director of Education within two days of hearing the complaint. 3. Regulations 40 and 41 deal with the process that follow after the recommendation is transmitted to the County Director of Education. The County Director of Education is required to seek the advice of the County Education Board on the recommended disciplinary action under Regulation 40. Regulation 41 provides for a right of appeal to the Education Appeals Tribunal to any person aggrieved by the decision of the County Education Board. 4. The above procedure, in a nutshell, underscores the scrupulousness with which the legislature dealt with the procedure involving disciplinary cases against learners. Contextually, these provisions give effect to the constitutional protections under Articles 47, and 53 (1) (b) and (2) of the Constitution. It is against this backdrop that any challenge against a disciplinary procedure or decision must be assessed. 5. As a court exercising powers of judicial review, I am reminded that my powers are restricted to inquiring whether the decision-making process complied with the law rather than the merits of the decision. In ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd (Civil Appeal 185 of 2001) [2002] KECA 8 (KLR) (1 November 2002) (Judgment),*** the Court of Appeal held that the Court’s role is not to determine whether it would have reached a different conclusion from the administrative body, but rather to determine whether the body acted lawfully, rationally and within the confines of its statutory mandate. In [***Sintmond Group Ltd v Procurement Administrative Review Board & 3 others [2026] KECA 1334 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1334/eng%402026-07-10)***,***the Court of Appeal was emphatic that, *“Courts are entitled – and, indeed, are obligated – to undertake sufficient substantive scrutiny to determine legality, rationality, and constitutional compliance.”* 6. The matter in dispute concerns a disciplinary process that is yet to be completed. The Applicants were suspended from the institution and they are yet to face the Board of Management. The task before me is limited to examining whether the process and decision to suspend them complied with the law. The head of the institution (the 1st Respondent in this case) is empowered by the Regulations (Regulation 38) to suspend learners who have committed an act of indiscipline falling under Regulation 32. The suspension letters in issue which are identical for all the Applicants read as follows: ***Date: 5th June 2026*** ***Name: XX XX*** ***Grade: X*** ***ADM No. XXXXX*** ***Dear Parent/Guardian,*** ***RE: SUSPENSION*** ***Kindly note that XX XX, Admission number: XXXXX, Grade X has been suspended from school with effect from 5th June, 2026.*** ***She was found to be part of the group of students who participated in discussion where they were planning to burn the school on the night of Thursday, 4th June, 2026.*** ***She is required to face the Board of Management, accompanied by, parent/ legal guardian, on Monday, 15th June, 2026 at 9:00 am.*** ***Yours faithfully,*** ***XX XX*** ***Chief Principal/Secretary, BOM*** 1. The 1st Respondent asserts that the decision to suspend the Applicants was informed by the likelihood of a credible threat to the safety and security of over 1000 other students. The Respondents further aver that the Applicants would be given a fair opportunity to be heard when they appear before the Board of management. 2. The Applicants’ grievances are centered on alleged breach of rules of natural justice, bias, unreasonableness, irrationality and illegality. In summary, the Applicants allege that the disciplinary proceedings before they were suspended did not take care of their needs as minors by subjecting them to interrogation late into the night; that they were not informed of the charges they were facing; that the principal/ disciplinary committee acted in a biased way by pushing them to write statements in a particular direction; and that the decision to suspend the learners was arbitrary and was not based on any sound reason. 3. This court acknowledges that the need to keep learners safe at a time when the unrest in schools was at its peak and against the backdrop of the tragic deaths of learners at Utumishi Girls Academy was non-negotiable. There is also no doubt that in acting to protect learners in institutions there is no perfect context. This calls for school administrations to be accorded reasonable deference when taking into account the practical considerations. In this case, the 1st Respondent avers that the alleged plans to burn the institution were reported in the evening and there was apprehension that the learners were in danger. To that extent, and taking into consideration the imminent danger, this court does not find the questioning of the Applicants late into the night, in itself, as having violated their rights. 4. On the other hand, however, the practical considerations within which the ad hoc committee operated did not give the 1st Respondent a *carte blanche* in exercising the powers under the Basic Education Act and the regulations thereunder. Suspending a learner from school must be based on circumstances that can be considered reasonable. This court must be satisfied that the administrative act of suspending the learners from the institution was reasonable - a standard recognised by Article 47(1) of the Constitution and Section 7(2) of the Fair Administrative Actions Act. Law scholar *Dudley Ochiel* ties the reasonableness test to the rule of law and argues that it provides an anchor to the judiciary as a guardian of the constitution.[[1]](#footnote-1) There is consensus among scholars that the Constitution of Kenya 2010 gave way to the reasonableness test in lieu of the antiquated *Wednesbury* unreasonableness by adopting a rights-based approach to administrative law.[[2]](#footnote-2) I concur. 5. The Respondents have contended that the decision to suspend is not a final decision as it is subject to disciplinary proceedings before the 2nd Respondent. Whereas this is the correct legal position, a decision to suspend a learner from school pending disciplinary proceedings must strictly comply with the constitution and the law. When viewed through the lens of reasonableness, a decision to suspend a learner must be reached upon satisfaction on the part of the decision maker that there are sufficient grounds to require the learner to face disciplinary. Whereas the role of this court is not to inquire into the facts in order to reach a different decision than that of the decision maker, such an inquiry is necessitated by this court’s duty to ensure that the decision was made in accordance with the law. 6. This court’s role as a judicial review court is also apposite in ensuring a balance of various competing interests and rights. A decision which is likely to interfere with rights and freedoms and in this case a decision to exclude a learner from school, even temporarily, has a direct impact on the learner’s right to education and the upholding of the learner’s best interests as a child. This, therefore, calls for more scrupulousness on the part of the decision maker. 7. *Ochiel* offers some guidance on how courts should define the bounds of a reasonable act as follows: *…entails offering practical justification with the result that reasonableness serves to justify human actions, choices, decisions. On the other hand, an unreasonable administrative action can be described as one that is senseless, unfair, discriminatory, immoral or inflexible.[[3]](#footnote-3)* 1. A revisit of the facts underpinning this case is necessary in situating the 1st Respondent’s decision. All the parties agree that the events leading to the suspension of the Applicants were the widespread unrest in Kenyan schools which included the tragic death of 16 learners of Utumishi Girls Academy where a dormitory had been set on fire. It is alleged that an unauthorized meeting had been held at the school dispensary on the night of 14 June 2026 where a number of learners discussed burning a dormitory. A learner allegedly overheard this discussion and reported to the school authorities naming one learner as being the ringleader of the alleged plan. This prompted an immediate investigation by an ad hoc disciplinary committee and the suspension of the Applicants. It is also not contested that the 1st Respondent suspended a total of 15 learners. These are the learners who had visited the dispensary at the material time in a list that was supplied by the school nurse. 2. The facts also do not disclose that there was any material or statement that implicated the Applicants as participating in a plan to burn the institution other than the allegation that they were present at the dispensary when that discussion happened. The Respondents aver that the 2nd and 4th Applicants admitted to being part of the discussion but that is far from accurate. The 2nd Applicant stated in her statement that, *“when the conversation involving the strike began, I stood up and walked to the front side of the dispensary. After a while I came back and found that most people who were there had left so I also left the dispensary.”* 3. The 4th Applicant also distanced herself from the alleged discussion. In her statement, she stated, *“…M said that we should also go home like the rest. She explained about how she will use kiwi if there won’t be paraffin and that she will get matches from the labs or the homescience room.”* It is evident from this statement that the 4th Applicant offered information on what she heard while at the dispensary but her participation in the alleged scheme that would constitute an indiscipline is not clear from the material relied upon by the 1st Respondent to suspend the Applicants. 4. As stated above, this Court will not conduct an evidential enquiry for purposes of reaching a different decision but will do so in order to be satisfied that the 1st Respondent’s decision was in compliance with the law. This court rejects the proposition advanced by the 1st Respondent that the Applicants would have an opportunity to defend themselves before the Board of management and hence the suspension should not be questioned. A suspension must comply with the regulations especially regulations 32, 33 and 38. In other words, the school head cannot suspend a learner just because he or she can but because the suspension is justified as per the regulations. A failure to ensure that a suspension is anchored in the regulations is an abuse of that power and that would call for this Court’s intervention. 5. This court must reiterate that whereas the safety of the close to one thousand learners of the institution was a paramount consideration in the backdrop of genuine apprehension that there was a plan to burn the institution, the interests and rights of the Applicants could not be subordinated to that apprehension. 6. From the two statements and the information upon which the ad hoc committee had acted on in conducting the investigations, it is evident that there are learners who had been identified as being part of the plan to burn the institution. It is also clear that the ad hoc committee reached the decision to suspend all the learners who had visited the dispensary at the material time when the discussion is alleged to have happened. Being at the dispensary when the discussion happened, without more, does not establish any basis for suspending the Applicants. Suspending an entire group of students who had visited the dispensary at the material time for the indiscipline of a few is tantamount to collective or group punishment and an outright infringement on the Applicants’ rights to fair administrative action. The same is senseless and unfair. 7. The test of reasonableness requires an administrative decision to be in harmony with the factual basis upon which it is founded. The same must portray a logical basis that is discernible. The 1st Respondent’s decision to suspend the learners fails on that front and is susceptible to judicial review. 8. The final issue for this Court would be to determine whether sufficient basis has been established for granting the prayers for judicial review. The analysis above demonstrates that the 1st Respondent’s decision to suspend the Applicants did not pass muster. This is considering the discussion above especially in respect of the overarching need to uphold the rights of learners who are minors. The impugned decision cannot stand in the circumstances. Consequently, an order of certiorari is hereby issued removing into this court and quashing the 1st Respondent’s decision to suspend the Applicants through the various letters dated 5 June 2026. This order sufficiently covers the other prayers for mandamus and prohibition which would be unnecessary to grant as all actions stemming from the impugned decision accordingly fall by the wayside. Considering the relationship between the parties, there shall be no orders as to costs. Parties shall bear their own costs. 9. Orders accordingly. **Dated and Delivered at Nairobi this 7th day of September, 2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Mr. Ondu for the Applicants*** ***Mr. Ajwang for the Respondents*** ***Linda - Court Assistant*** *\*This judgment has been anonymised to protect the privacy of the minors* 1. Odhiambo John Dudley Ochiel, ‘Transformation of Judicial Review in Kenya under the 2010 Constitution’ Unpublished Thesis, 30 November 2016, pg 51. [↑](#footnote-ref-1) 2. See, for instance, Walter Khobe, ‘Reasonableness is not Wednesbury reasonableness! Righting wrongs in Kenya's administrative law jurisprudence’ (2016) 17 Platform for Law, Justice & Society [↑](#footnote-ref-2) 3. Ochiel, *supra* at 51. [↑](#footnote-ref-3)