https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8623

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CONSTITUTIONAL PETITION NO. E021 OF 2025** **IN THE MATTER OF ARTICLES 10, 11, 19, 20, 21, 22, 23, 24, 47, 165, 258 AND 259 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 27, 44 AND 53 OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015** **BETWEEN** **ERNEST ACHESA MAKHAMBALA…………………………..…………………….PETITIONER** **VERSUS** **THE CABINET SECRETARY, MINISTRY OF EDUCATION……………….1ST RESPONDENT** **THE KENYA INSTITUTE OF CURRICULUM DEVELOPMENT……………..2ND RESPONDENT** **THE HON. ATTORNEY GENERAL……………………….…………………3RD RESPONDENT** **RULING** 1. The Court is seized of the Notice of Motion dated 23rd October 2025 brought under Articles 22, 23, 47, 165, 258 and 259 of the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 2. The application is supported by the affidavit of the Petitioner, Ernest Achesa Makhambala, sworn on even date.The application was not certified urgent and was therefore placed for hearing. 3. The Petitioner seeks, inter alia, orders compelling the 1st Respondent to issue guidelines on literacy intervention and indigenous language instruction, directions to the 2nd Respondent to specify implementation of indigenous language curriculum and curriculum materials, timelines for implementation mechanisms, and an order compelling the 2nd Respondent to indicate whether it intends to concede the Petition. 4. The Petition is grounded on allegations that the current language-in-education policy, as implemented, disproportionately favors English and marginalizes indigenous languages contrary to Articles 7, 44 and 53 of the Constitution and section 4 of the Basic Education Act, 2013. 5. The Respondents opposed the application through Grounds of Opposition, contending that the Court cannot interfere with constitutional and statutory mandates of education authorities, and that no constitutional violation has been demonstrated. **ISSUES FOR DETERMINATION** 1. The Court identifies the following issues for determination: 2. Whether the application meets the threshold for interlocutory intervention. 3. Whether the orders sought are preservatory or mandatory in nature. 4. Whether the Court can compel formulation or revision of policy at interlocutory stage. 5. Whether the relief requiring a party to indicate concession is legally tenable. 6. What orders should issue. **ANALYSIS AND DETERMINATION** 1. **Whether the application meets the threshold for interlocutory relief** 2. The principles governing conservatory and interlocutory relief in constitutional litigation are settled In ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others,*** the Supreme Court held that an applicant must demonstrate a prima facie case, prejudice, and that the orders sought preserve the subject matter. 3. Similarly, in ***Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General***, the Court held that conservatory orders are aimed at preserving the substratum of litigation. 4. In the present case, the Court notes that the application was not certified urgent and was therefore not placed under any interim protective regime. 5. The matter therefore falls to be determined strictly on its merits. 6. **Whether the orders sought are mandatory or preservatory** 7. The Court has carefully considered the prayers sought. 8. Prayer 2 seeks an order compelling the 1st Respondent to issue guidelines within strict timelines. Prayer 3 seeks directions compelling the 2nd Respondent to specify curriculum implementation details, including indigenous language instruction. Prayer 4 seeks an order compelling establishment of implementation mechanisms for the Petition. 9. These are not preservatory orders. They are mandatory in nature and would require the Court to direct formulation, implementation and restructuring of national education policy at an interlocutory stage. 10. The law is clear that mandatory orders at an interlocutory stage are granted only in clear and exceptional cases. 11. ***In Locabail International Finance Ltd v Agro-Export & Another***, the Court held that mandatory interlocutory injunctions should only issue in clear and exceptional circumstances. 12. The Court of Appeal ***in Kenya Breweries Ltd v Washington Okeyo*** reaffirmed that such orders must be granted sparingly and with caution. 13. The Petitioner is effectively inviting this Court to supervise and restructure ongoing education policy before the Petition is heard.This would amount to determining substantive issues prematurely. 14. **Whether the Court can compel policy formulation or revision at interlocutory stage** 15. The formulation of education policy is a constitutional and statutory function of the Executive and specialized agencies such as the Ministry of Education and the Kenya Institute of Curriculum Development. 16. While the Court has jurisdiction under Article 165(3)(b) to interrogate constitutional compliance, it must avoid encroaching upon the doctrine of separation of powers. 17. The Court is not persuaded that it can lawfully compel the Respondents to formulate or amend policy through interlocutory orders without hearing evidence from all parties. 18. Such intervention would amount to final relief disguised as interim orders. 19. Whether the prayer requiring a Respondent to indicate concession is tenable 20. Prayer 5 seeks an order directing the 2nd Respondent to indicate whether it is willing to concede to the Petition. The Court finds no legal basis for such an order. 21. The Court cannot compel a litigant to reveal its litigation position in advance. 22. Accordingly, the prayer is misconceived. 23. **Whether the Petitioner has an arguable case** 24. The Court notes that the Petition raises important constitutional questions relating to language rights, indigenous identity, and access to education.These issues are weighty and of public importance.However, the existence of an arguable case alone is insufficient to justify the grant of mandatory interlocutory orders. 25. The Petitioner must satisfy the additional requirement that the orders sought are necessary to preserve the subject matter pending determination of the Petition. 26. That threshold has not been met. 27. Having considered the application, the affidavit evidence, and the law, the Court finds as follows: 28. The application, though raising arguable constitutional questions, does not meet the threshold for interlocutory relief. 29. The orders sought are mandatory in nature and would amount to premature determination of the Petition. 30. The Court declines to interfere with policy formulation and implementation at this stage. 31. The prayer seeking to compel the Respondents to indicate concession is not legally tenable. 32. Accordingly, the Notice of Motion dated 23rd October 2025 is hereby dismissed. 33. The dismissal of the application shall not prejudice the hearing and determination of the substantive Petition on its merits. 34. Given the public interest nature of the matter, each party shall bear its own costs. 35. Mention 25.7.2026 to take directions on the main petition. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 12TH DAY OF JUNE,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Mr. Achesa for the Petitioner/Applicant present online.