https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11438

MNC (A minor suing through his father and next friend NNC) v Board of Management, Tenges Boys High School, Kabarnet & 2 others (Constitutional Petition E004 of 2025) [2026] KEHC 11438 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11438 (KLR) Republic of Kenya In the High Court at Kabarnet Constitutional Petition E004 of 2025 TM Matheka, J July 24, 2026 IN THE MATTER OF ARTICLES 2, 10, 19, 20(1-4), 21(1) & (2)(a), 23(1) & (3), 27, 35(1), 43(1)(f), 47(1) & (2), 48, 50, 53(1) (B), 53(2), 159, 165, 258(1) & (2)(b), and 259(1) OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 24, 25, 27, 28, 29, 35, 43, 47, 48 AND 50(1)(2) OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF ALLEGED CONTRAVNETION OF SECTIONS 4, 35 AND 36 OF THE BASIC EDUCATION ACT, CAP.211 AND REGULATION 38 AND 39 OF THE BASIC EDUCATION REGULATINS, 2015. AND IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTIONS 8 AND 13 OF THE CHILDREN ACT, CAP.141. Between MNC (A minor suing through his father and next friend NNC) Petitioner and Board of Management, Tenges Boys High School, Kabarnet 1st Respondent The Secretary BOM Principal, Tenges Boys High School 2nd Respondent The Hon Attorney General 3rd Respondent Judgment 1.The Petitioner herein - MNC was 16 years old boy, student, and KCSE candidate at Tenges Boys High School in 2025 – the material time. 2.According to the Petition and the supporting affidavit sworn by his father and next friend – NNC dated and sworn on 10th June, 2025 respectively the reason for this Petition is ;.“That on or about 25th May, 2025 a student unrest occurred at Tenges Boys High School. MNC alongside other students was accused by the School Principal or malicious damage to property.That on the fateful day I received a message from the 2nd respondent stating to with “someone should come to school urgently. Your son is still giving the school serious problems” I received a text message from the School Principal summoning me to attend an urgent meeting the following day. (Annexed hereto and marked “N.N.C-3” is a copy of the SMS screenshot.That on May 26th, 2025 the school principal effected an arrest, hounded and ferried my son alongside 14 other students to Tenges Police Station for incarceration and they were booked at Tenges Police Station vide O.B/13/26/5/2025.That alongside other students the MNC was placed in temporary custody wherein they were interrogated, upon interrogations allegations of malicious damage of property were dismissed by police and released vide OB/14/26/5/2025.That in utter discrimination my son was left at the police station wherein I picked him while the other 14 students resumed their studies without any hindrance.That despite providing explanations, MNC was summarily dismissed from school that day without prior notice, without being afforded a hearing, and without written reasons for his suspension.That the principal proceeded to remove MNC from school indefinitely without any due process, including failure to involve the Board of Management or the County Education Board.That MNC has previously been wrongfully targeted and sent home on multiple occasions without proof or prior notification, including once being sent alone from Kabarnet to Kilifi.That I have consistently paid all school fees for MNC, ensuring full compliance with all school financial obligations. That the respondents’ actions have inflicted significant mental distress on MNC resulting in a diagnosis of depression, deteriorating health, and academic decline, thereby affecting his KCSE preparation.” 3.It was further deponed:-“That MNC maintains his innocence and has never been given an opportunity to be heard in relation to the allegations made against him.That the actions of the principal and Board of Management have gravely affected M.N.’s self-esteem and self-worth.” 4.On 18th June, 2025 the court, Ngetich J, (as she then was) granted the following order.“That a conservatory order is issued staying the 1st and 2nd respondents’ decision or action to constructively suspending and/or dismissing the petitioner/applicant herein from school on the basis of an alleged form of indiscipline that was never proved by the respondents.The court directs the respondent to forthwith, immediately and unconditionally re-admit the petitioner/applicant back to school as boarding student and continue with his preparations for his Kenya Certificate of Secondary Education unhindered.”(emphasis mine) 5.The Respondents were then given time to respond to the application and petition. 6.By 7th October, 2025 the respondent had not filed any responses despite appearance by Counsel Ms. Tigoi on 15th July, 2025. 7.On 7th October, 2025 the Hon Judge noted that since there was no response either way – she would give directions on the hearing of the petition. The directions were that – the petition be heard by way of written submissions. Each party was given time (7 days). 8.On 4th November, 2025 – Mr. Kamau ( From the office of the Hon Attorney General) appeared for the respondents, Ms. Muiruri for the petitioner. Time for filing of written submissions was extended – and a mention date given for compliance. 9.I took over the matter upon my transfer to Kabarnet High Court. 10.When the matter came before me on 25th May, 2026 counsel confirmed filing of submissions. I gave them time to highlight – Ms. Muiruri did – Mr. Kamau opted to rely wholly on what was filed. 11.The petitioner seeks the following prayers:-1.A declaration that:-a)The respondents’ actions of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right to Fair Administrative Action under Articles 27, 28, 29, 35, 43, 48 and 50 (1) (2) of the Constitution and the procedures laid down in the Basic Education Act and Regulations therein.b)The actions of the respondents’ actions and decision of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right Article 53 of the Constitution of Kenya, the Basic Education Act and the Children Act.2.Judicial Review by way of:-a)An order of certiorari to remove into the court and quash the decision of the respondents to indefinitely suspend the said petitioner from the 1st respondent school.b)An order of prohibition directed at the 1st and 2nd respondents herein barring them from further causing any mental anguish and cause any accusations to be levied on the petitioner either in its present form or in any intended variation of the said accusations therein akin to the same allegations levied herewith.c)An order of mandamus directed at the respondents herein to order and direct the respondent to forthwith, immediately and unconditionally re-admit the petitioner back to school to continue with his preparations for his Kenya Certificate of Secondary Education unhindered.3.An order of a permanent injunction restraining the 1st and 2nd respondents either by themselves, its servants, employees and/or agents from violating the rights of the minor espoused in prayer 1 and 2.4.An order for general and aggravated damages including exemplary damages for the contravention of the fundamental rights and freedoms of the petitioner and for the mental anguish suffered due to the unconstitutional acts of the respondents to be assessed by the court.5.Costs of the petition to be jointly born by the 1st and 2nd respondents.6.Any other order that this honourable court may deem just and fit in the circumstances. 12.It is submitted for the petitioner that the petition is undefended as the respondents did not file any responses to the averments of the petitioner. 13.I have carefully considered the petition, and the submissions –both written, and the highlights – and the issues for determinations are:1.Whether the petitioner was wrongfully and maliciously suspended without any form of due process and whether that act violated the petitioners’ rights under Article 27, 28, 43(1) (f) 47, 50(1) & 53 of the Constitution.2.What is the legal effect of failure by respondent to file replying affidavit?3.Whether the petitioner is entitled to an award of General and Aggravated damages.4.Who should pay the damages, and the costs of the petition? 14.On the legal effect of failure by respondents, to file a replying affidavit to the petitioner. The Hon. A.G. entered appearance on behalf of the three respondents and filed written submissions dated 20th January, 2026. There was no replying affidavit.The petitioner submitted that the said failure was an admission of the facts averred in the supporting affidavit. It is submitted that the respondent was obligated to file a reply to the petition vide Rule 15 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 (Mutunga Rules). 15.The petitioner cautions the court that there is a distinction between the admission of the claim and admission of the facts supporting the claim. For this proposition the petitioner relies on Daniel Kibet Mutai & 9 others –vs- AG [2019] KECA 125 (KLR). The Court of Appeal found that the filing of grounds of opposition amounted to opposition of the claim and therefore there was no admission of the claim. 16.However, that the failure by the respondents to file replying affidavit to challenge the appellant’s affidavits, the facts in their affidavits were “essentially admitted” – The Court of Appeal held that the judge had erred in rejecting the affidavit evidence “……as they formed an appropriate basis for the claim.” 17.The Petitioner cited Philip Tirop Kitur –vs- AG [2018] KEHC 7492 (KLR) where both courts faced with a similar situation where the Respondent failed to file a replying affidavit found that that was failure to adduce evidence on the part of that respondent, and the evidence adduced by the petitioner was uncontroverted, unchallenged, and hence the facts set therein were admitted. 18.It is submitted that the petitioner has discharged the burden of proof – the evidential obligation through the affidavit and the documentary evidence. That in Daniel Kibet Mutai & 9 others the court found that the facts deposed not having been denied, was appropriate basis from the claim. This court is urged to be properly guided. 19.On the part of the respondents, it was submitted that the petitioner ought to have filed a civil suit where each party would have tendered evidence and been cross-examined on the same rather than relying on affidavits. It was argued that if the prayers sought in their application were granted the prayers would in effect violate the rights of the respondents, in effect “forcing them to reinstate a student into the school disregarding the rights of the other students and teachers.” 20.It was further submitted that that “A school or any other institution of learning is entitled to dispense with the presence of any student who has through a pattern of behavior proven to be unruly, undisciplined, a danger to his or her fellow students and/or teachers or is generally a disruptive influence.” 21.The respondents also submitted that “If a student does anything which is incompatible with the purpose of an institution of learning ... he may be suspended as in this instance or expelled if need be.” 22.It was further submitted that “The student’s conduct need not be found to be criminal, but sufficient if it is of such a grave and weighty character as to amount to breach of relationship between student and the school.” 23.From the foregoing submissions it was alluded that there was proven evidence the Petitioner had a pattern of behavior that was unruly, undisciplined, and that he was a danger to his fellow students and teachers and generally a disruptive influence. It is also alluded that he had done things that were incompatible with the purpose of Tenges Boys High School as an institution of learning. Further that though his conduct was not criminal it was such of such a grave and weighty character it amounted to breach of his relationship and the school. 24.These were really grave allegations against the Petitioner. These allegations and accusations were made in submissions. They do not emanate from evidence that is was placed before the court. Submissions are not evidence. They can never be evidence. They are founded on the facts, the evidence as produced in court, the law/legal principles, any judicial precedents, the application of the law on the facts. These submissions stood on their own. 25.The petitioner has in the affidavit set out the acts and omissions of the respondents. None is denied/countered or challenged. In that event, I find that the petitioners – the facts in support of the petition remain unchallenged; and I find therefore that the facts are admitted. 26.It is admitted that on 25th May, 2025 the petitioner was together with 14 other school boys falsely accused of malicious damage of school property.” It is admitted that the petitioner’s parent was summoned to school through a text message from the school principle to “…….come to school urgently. Your son is still giving the school seriouse (sic) trouble”; it is admitted that the head teacher/principal arrested the petitioner, booked him at Tenges Police Station on the alleged damage to school property vide O.B. 13/26/5/2025, but the police found the allegations to be unfounded and released the him together with the other boys vide O.B.14/26/5/2025. 27.It is admitted that the principal readmitted the other 14 students in school, and abandoned the petitioner abandoned at the police station, denying him re admission. 28.It is admitted that this was constructive suspension/expulsion which was done without a written notice or disciplinary notice or hearing, or even evidence of the involvement of the other requisite school management structures. 29.The submissions by the counsel for the respondents are an indicator that the Petitioner’s complaint that the removal/suspension was part of repeated harassment by the respondents. The School Principal baselessly accused the Petitioner of leading strikes , sent home multiple times (including a journey from Kabarnet to Mombasa), without notifying the Petitioner’s parents or following due process, despite payment and clearance of school fees. This unwarranted pattern of harassments by the Respondents led to the demand letter dated May 28th 2025, requiring reinstatement of the Petitioner and was served on the 1st and the 2nd Respondent but received no response. 30.It is on these undisputed facts that this petition will be determined. 31.On the unlawful arrest of the Petitioner, the respondents submitted that the petitioner “….was arrested by police officers after a report by respondent” . However, no such evidence of arrest by police officers was availed. The evidence on record is that the 2nd petitioner ( The Principal) arrested the Petitioner with other students, took him to the police station, and booked him in where he was held in the cells until his release later. 32.Hence the authorities cited – James Karuga Kiira –vs- Joseph Mwamburi & Anor – Nairobi C.A. No.171 of 2000 (unreported) is distinguishable – there was no police arrest, it was a re-arrest from the principal, there was no prosecution as the police released the petitioner the same day hence the petitioner does not have the burden to prove that the “prosecution acted unreasonably.” This was a case of the school principal acting without lawful cause. The arrest was malicious, intended to remove the Petitioner from the school without following due process by cooking up a criminal offence which was found to be inexistent. the arrest by the principal was unlawful. 33.Following the release of the Petitioner by the Police the principal and abandoned him at the police station , and denied him admission back to school. It was only after an order for re-admission was made by the court that the Petitioner was readmitted but up to that time he was out of school. 34.By abandoning the Petitioner at the police station, the Principal rendered the Petitioner to be a child in need of care and protection, a criminal offence under the Children Act. This was a minor who was supposed to in school. Whose parents knew he was in school and in whose care and control he was pending his collection by his parents. This action in addition was violated the best interests of the child principle. 35.It was submitted that these actions by Respondents amounted to a comprehensive assault on the petitioner’s constitutional persona.1.That the petitioner’s rights to education vide Article 53 (1) (b) were unlawfully terminated – through the constructive expulsion by the 2nd Respondent. The right to education is a fundamental. it is a right that is fundamental to a child’s future and a key driver to national development. This right is given effect by Section 28 of the Basic Education Act – Cap.211 which guarantees every child free and compulsory basic education.2.That the respondent’s action was in violation of Article 53(2) of the Constitution effected by Section 8 of the Children Act Cap.141, that:-“(1)in all actions concerning children undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child; and(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.” 36.The petitioner relied on RWT (suing as next friend of BGN – a minor) –vs SNS School [2012] KEHC 5408 (KLR) where the court held with profound clarity that:“7.Expulsion or suspension of a child from school may negatively affect him particularly in a situation where he has only one year to finalize high school. That would be contrary to his best interests.” 37.The petitioner also relied on RCK (A child suing through her mother and next friend KRC) v KSI [2014] KEHC 7489(KLR) where the court (Majanja J,) expounded in great detail on what Article 53 (2) of the Constitution means when schools are dealing with cases of alleged indiscipline, and the role of the court under Article 22 of the Constitution. 38.That the school was bound to consider that welfare of all the children in the institution – but also the best interests of the so called “deviant” child that there was a responsibility for this one child flowing from “the human rights and fundamental freedoms of each individual.”The learned judge also addressed the question of whether the child was subjected to due process – citing Nyongesa & 4 others –vs- Egerton University College [1990] KECA 51 (KLR). It is submitted that on the strength of these authorities that petitioner was not subjected to due process and his rights were violated. 39.It is further submitted that the 2nd respondent acted ultra vires his powers – as under Regulations 38 of that Basic Education Regulations 2015, he could not indefinitely exclude/expel a student – that his power as a principal is limited to issuing a suspension letter. That the Regulations 39 and 40 of the Basic Education Regulations 2015 are mandatory is nature – as they provide the process/procedure that must precede an expulsion. 40.On the purport of the word “shall” the petitioner relies on Krystalline Salt Ltd –vs- Kenya Revenue Authority [2019] KEHC 6939 (KLR) – that it imports a command/mandate. The action that is preceded by the term ‘shall’ “ is not permissive, it is mandatory” 41.On whether the action of the 2nd respondent in re-admitting the other students and leaving out the petitioner was discriminatory the petitioner relies on Peter K. Waweru –vs- R [2006] eKLR on the meaning of discrimination as failure to treat all person equally without any reasonable distinction. 42.On whether the damages: It is submitted that the petitioner is entitled to both general and aggravated and exemplary damages of Ksh.500,000/=, Ksh.300,000/= and Ksh.200,000/= respectively. Reliance is placed on Article 23(3) of the Constitution, which recognizes that a Constitutional violation can be appeased by way of compensation to deter the state and its agents from future infringements. 43.Reliance is also placed on Gitobu Imanyara & 2 others –vs- AG [2016] KECA 557 KLR) where the court stated;“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.” 44.Reliance is also placed on RAB & RAB (Minors suing through their mother and next friend) –vs- P.S Ministry of Education & 2 others where the court accorded General Damages of Ksh.600,000/= and Peter Mauki Kaijenja & 9 others –vs- Chief of Defence Forces & Anor.[2019] KEHC 7530 (KLR) for the proposition that award of General Damages is discretionary and comparable common law measure of damages is a useful guide in assessing amount of compensation. 45.The respondent did not propose any quantum for purposes of compensation. However, the petitioner’s counsel cited Onjira John Anyul –v university of Nairobi [2019] KEHC 10931(KLR) in which the court awarded Ksh.1,000,000/= compensation, E.K. & 5 others –v- The Registered Trustees of S.H.S [2015] KEHC 2692 (KLR) where the court awarded compensation of Kshs.150,000/= and KO (suing on behalf of OKI) –v- Supreme Council of Kenya t/a Kenya Muslim Academy [2014] KEHC 1672 (KLR) where the court awarded compensation of Kshs.230,000/=.” 46.On aggravated damages it is submitted that this ought to be awarded to address the humiliating, oppressive and high handed nature of the respondent’s conduct. The court is referred to Gitobu Imanyara (above). 47.On exemplary (punitive) Damages:- it is submitted that they are intended to deter others from doing the same thing – the court is referred to KO suing on behalf of OKJ) vs Supreme Court of Muslim Kenya t/a Kenya Muslim Academy to send strong message to school/administrators that the Constitution is not and suggestion and that rights of children are not to be trifled with – that the total sum of Ksh.1,000,000/= is justified in the circumstances of this case. 48.On costs – that under Section 27 of the Civil Procedure Act and Republic –v- Rosemary Wairimu Munene, Ex-parte applicant –v- Ihururu Dairy Farmers Cooperative Society Ltd judicial Review Application No.6 of 2004, Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR) that costs follow the event. The court is urged to allow the petition. 49.The court is urged to find that the respondents have contravened Articles 2, 10, 27, 35(1), 43(1) (f), 47(1) & (2), 53(1)(b), and 53(2) of the Constitution, Sections 4, 18, and 35 of the Basic Education Act, Cap.211, Regulation 36 of the Basic Education Regulations, 2015, Section 4 and 21 of the Children Act, Cap.141, and Section 6 of the Fair Administrative Action Act Cap.7L, by acting in disregard of the Constitution’s supremacy; disregarding national values of rule of law, transparency, and accountability; discriminating against the petitioner through a baseless profiling; denying access to information; violating the right to education; failing to ensure fair administrative action; disregarding the petitioner’s best interests; and failing to involve the Board of Management or notify the County Education Board for the Respondent. 50.For the Respondents on damages, it is submitted that no evidence has been presented to confirm that the petitioner is entitled to the said damages of Ksh.500,000/=. The court is referred to Dalmas B. Ooye –vs- KNTC Ltd NBI CA.125/96 (unreported) – that the appellant could not recover damages for mental anguish for unlawful dismissal. 51.On aggravated damages – the same submission is made – and on special damages that none can be made unless specifically pleaded and proved as held in Philemon E. L. Ngogoto –v- Teachers Service Commission NBI HCC NO.1816 of 1990) the court referred to the case of Savannah Development Co. Ltd –v- Post & Telecommunication employees Housing Co-operative Society Ltd.). Analysis and Determination: 52.I have carefully considered the petition, the supporting affidavit and the submissions by counsel. 53.I have already found that the petition was undefended and the facts that support the petition are admitted. 54.The issues for determination are:i.Whether the respondents violated the petitioner’s rights are set out in the petition.ii.Whether the petitioner is entitled to damages.iii.Who is to bear the costs of the petition? 55.Article 260 of the Constitution of Kenya defines child to mean any individual who has not attained the age of 18 years – this is reiterated in the Children Act cap.141 Laws of Kenya. 56.Article 53 of the Constitution provides that the rights of the child – which are also expounded in the Children Act at part II include the right to free and compulsory basic education. Article 53(2) provides for the best interests of the child – that they are of paramount importance in every matter concerning a child. 57.This principle is expounded at Section 8 of the Children Act. Section 8(2) is very specific it binds all institutions and persons acting under any written law – that they shall bear the best interests of the child as the first paramount consideration, even when they need guidance and correction – and s. 8(3) secures the right of the child to be heard. 58.It is not in dispute that the petitioner was “arrested” by the 2nd respondent and taken to a police station – and later expelled from school and only reinstated following a court order. It is not in dispute that the petitioner was abandoned by the 2nd respondent at the police station until the parent came to pick him. 59.There, glaring as broad as day multiple violations of the rights of the petitioner – his right to education was taken away – just like that – and the 2nd respondent dropped his responsibility for the child without proper hand over to the parents/guardians – rending the petitioner to become a child in need of care and protection. 60.The Basic Education Act makes it the primary duty of a head teacher to retain pupils in school – to give pupils the incentives to learn, and complete their basic education – and expulsion is prohibited except as provided for by the Regulations. This is what Section 35(1), (2) and (3) of the Act provide. But of importance is that Section 35(3) provides that expulsion/discipline of a delinquent pupil will occur only when all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity to be heard. 61.In this case there was no such hearing. An SMS text was sent to the parent’s phone. Before he could arrive the child was already arrested , taken to the police who released him, and abandoned there exposing him to all manner of danger. 62.According to Regulation 37 of the Basic Education Regulations – the school is expected to maintain a register of undisciplined learners – indicating – “name, class, category indiscipline, date, warning or any other corrective measures taken by the institution. “In this case – no such evidence was availed to support the allegation that the petitioner was causing “serious trouble” and the alleged “trouble” was not even mentioned. As the parent was going to school he was not aware what his child was alleged to have done. It is evident that even up to this time the respondents have not provided any evidence of what the minor is supposed to have done. Regulation 38 is clear what the duty of the principal was, and when, and what he was required to do. It says38.Suspension letterIf the head of the institution is of the opinion that—(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, the head of the institution shall issue the learner, with a suspension letter addressed to the parent or guardian indicating the nature of the indiscipline and specifying the date the learner, accompanied by the parent or guardian is required to appear before the Board of Management of the institution. 63.There was constructive expulsion of the Petitioner a situation that was only corrected by the court order directing the respondents to readmit the student back to school. It is clear that in this case that the 2nd respondent acted outside the law, did not follow the laid down procedure for the expulsion of a student. There was no letter to the parent, and even the SMS to the parent did not indicate what the issue was, neither did it state on the which specific date the parent was required to appear in school. 64.Clearly the procedure for handling the alleged indiscipline was not followed as required by Regulations 39 and the expulsion of the Petitioner was ultra vires. It provides:39.Procedure for handling disciplinary cases(1)The particulars of the complaint preferred against the learner shall be read out to the parent or guardian and the learner at the meeting with the Board of Management under regulation 38, and the learner shall be asked to defend himself or herself.(2)Where the parent or guardian fails to appear, the business of the Board shall be adjourned, and the matter shall be deferred and a new date set and communicated for the parties to appear.(3)Where the parent or guardian fails to attend on the rescheduled date, the case shall be heard and determined such absence notwithstanding.(4)In all disciplinary proceedings affecting a learner the attendance of the Sub- County Education Officer shall be mandatory.(5)The recommendations of the Board of Management shall within two days be communicated to the County Director or Education. 65.Contrary to what head teachers and school principals do all the time, it emerges from the Regulations that no learner is expected to simply stay out of school – the decision to exclude a learner from a specific school in case of indiscipline – shall be accompanied with a recommendation on what should happen to the learner – the responsibility for this is placed on the shoulders of the “Board of Management, the County Director of Education and the County Education Board. Clearly the respondents acted ultra vires their powers and did not comply with the law. Learners are routinely expelled and it is left to the parents to find schools for their children, not an easy task due to the stigma the walks with a learner who has been expelled from school. This is made worse by the culture of naming and shaming such learners without working on the root cause of their delinquency. 66.There is clear recognition in the Basic Education Act that a student could be delinquent to the extent that they may have to leave a specific learning institution for good reason but the one he is leaving does not have the luxury of expulsion without a recommendation of what should happen to the student. If he needs correction outside that learning institution then such a recommendation ought to be made as well and the appropriate referral made. 67.The Children Act, and the Basic Education Act – recognize that delinquency is to be corrected – A child who is truant, who falls into bad associations is a child in need of care and protection as per Section 144 (i) of the Children Act – and even when a child does an acts that makes them to be conflict within the law – that child is still in need of case and protection – and the teacher (who is an authorized officer as per the Children Act) is required to do the necessary - consider what is in the best interests of the child and act accordingly. 68.That is why Section 59(f, h, i) of the Basic Education Act – provides that the functions of the Board of Management – to(f)determine cases of pupils' discipline and make reports to the County Education Board;(h)facilitate and ensure the provision of guidance and counseling to all learners;(i)provide for the welfare and observe the human rights and ensure safety of the pupils, teachers and non-teaching staff at the institution; 69.From the foregoing I find that the Respondents – acted contrary to the express provisions of the Constitution, The Children Act and the Basic Education Act and Regulations. In so doing they violated the rights of the petitioner. 70.The actions of the 2nd respondent stand out and reflect the actions of some principals of school across the country – who consistently fail to comply with clear provisions of the Children Act, the Basic Education Act and the Constitution. When adults fail to follow the laid down procedure they set out bad examples. Learning institutions ought to be the places where children also learn that their rights, the rights of fellow learners and teachers and staff are interrelated and none is superior. Teachers should not just violate rights because they are in a position of power. – in the circumstances they create resentment among the children who are punished unheard, denied the right to education, have their learning schedules unilaterally dismantled – and forced to look for other schools to admit them. 71.The UN General comment No. 24 (2019) on children’s rights in the child justice system CRC/C/GC/24 provides at Rule 3(3)The Committee acknowledges that preservation of public safety is a legitimate aim of the justice system, including the child justice system. However, States parties should serve this aim subject to their obligations to respect and implement the principles of child justice as enshrined in the Convention on the Rights of the Child. As the Convention clearly states in article 40, every child alleged as, accused of or recognized as having infringed criminal law should always be treated in a manner consistent with the promotion of the child’s sense of dignity and worth. Evidence shows that the prevalence of crime committed by children tends to decrease after the adoption of systems in line with these principles. 72.Further at 95(g)Any disciplinary measure is to be consistent with upholding the inherent dignity of the child and the fundamental objectives of institutional care. Disciplinary measures in violation of article 37 of the Convention must be strictly forbidden, including corporal punishment, placement in a dark cell, solitary confinement or any other punishment that may compromise the physical or mental health or well-being of the child concerned, and disciplinary measures should not deprive children of their basic rights, such as visits by legal representative, family contact, food, water, clothing, bedding, education, exercise or meaningful daily contact with others; 73.If violation of rights, unlawful actions by adults go without being called out how can we in the society expect that while setting such poor examples the children will respect the human rights and fundamental freedom of others? 74.In the Basic Education Act the principal and the Board of Management their 1st central role is to ensure that learners remain in school and complete their education – and in all circumstances comply with the law and in this case, on indiscipline cases . I must adopt the words of Majanja J, in RCK (A Child suing through her mother and next friend KRC) v KSI [2014] KEHC 7489 (KLR) because they capture the essence of what the respondents were expected to do. He stated:The determination of this matter is guided by article 53(2) of the Constitution which provides that, “A child’s best interests are of paramount importance in every matter concerning the child.” This provision is also given effect by section 4(2) of the Children’s Act which provides that, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.” In DKC v Flourspar Company Limited (supra), the court held that, “[E]ven a “private school” is bound by law to protect the best interests of the child while carrying out its functions.”26.The petitioner’s case concerns discipline in school. In RWT (suing through next friend and grandmother BGN) v SNS School(supra) I observed follows“[5]I am aware that discipline in school is a delicate and sensitive matter both for the parents and the school authority. Both institutions, the parents and school, bear special responsibility to nurture the child by providing an environment where his potential can be realized so that he becomes a responsible citizen.[6]Article 53 of our Constitution now recognizes the general principle that the best interests of the children is the paramount consideration in any matter concerning children. ...[I]n a school environment, it is the welfare of all the children that must be taken into account rather than one deviant child who has a disciplinary problem. But there is also a responsibility to be borne in respect of that one child, one that flows from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of the other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution.[7]I am also alive to the fact that this court is nota disciplinary institution for children. The role of the court when moved under the provisions of article 22 is to enforce fundamental rights and freedoms provided in the Bill of Rights. In taking this responsibility I must weigh all these facts and circumstances and consider what is in the best interest of the child.”27.The issue raised by the petitioner is one about due process and whether the RCK’s rights were thereby violated. The ability of the school to take disciplinary action against delinquent students has not been impugned by the petitioner. Indeed, the School has elaborate procedures contained in the Handbook which the RCK and her parents agreed to be bound by when RCK was admitted to the school.28.The question for consideration is whether RCK was subjected to due process. I must emphasise that such an inquiry does not involve the court substituting itself for the school but satisfying itself that the procedure adopted met the threshold of what constitutes a fair process. The applicable principle was laid down by Nyarangi JA, in Nyongesa and others v Egerton University College [1990] KLR 692 where he stated as follows, “Having thus stated, as I think to be desirable, the broad nature of the important issues and proposed procedure, I shall now state that courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the courts are moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side.” This state applies with equal force to a school environment.29.What constitutes a fair process is dependent on the facts and circumstances of each case. Implicit in the concept of fairness is flexibility. A school disciplinary panel dealing with children’s matters must have the necessary flexibility, having regard to the school environment and the child’s rights, to deal with student discipline provided that the process is fair; that the child who is subject to the proceedings is given a hearing and an opportunity to defend himself. 75.Does the petitioner deserve damages sought? 76.It is my view that from the evidence before me the Petitioner has proved that the respondents violated acted in violation of the best interest principle as enshrined in the Constitution. 77.According to Article 53 of the Constitution and the Children Act, childhood is conferred a legal status. It comes with rights and responsibilities specific to that status, the duty bearers are defined therein. 78.The Key principial is the Best Interests of the Child principle. This principle a substantive right of the child. It is also the standard against which the actions of the respondents are held with respect to the child. The respondents required to respect, protect and fulfil this right. This right encompasses the other rights of the child, his right to education, his right to be heard, his right to his dignity , his right to be to care and protection, his right to guidance and correction. The respondent did not even bother about fair administrative action. 79.I hasten to say that I did not find that this was a case suitable for civil litigation. In this one the Petitioner was able to not only set out the articles of the Constitution, but the manner in which they were violated 80.In the circumstance pursuant to Article 23,of the Constitution the appropriate relief for a petitioner may include declarations, compensation – Being arrested by the principal, being escorted to and held at the police station, being abandoned there, and subsequent stigma ,then not re-admitted in school in a discriminatory manner, and, denied education for a time, his studies disrupted without considering he was in Form 4 and preparing for Kenya Certificate of Secondary Education, subjected to psychological and mental anguish and suffering. 81.Looking at the authorities cited herein above it is my view that the petitioner is entitled to damages. 82.In addition, the actions of the Principal were unwarranted. They were baseless, unlawful ultra vires and against the best interests of the child. The state cannot be held liable from his unlawful actions , for actions beyond his statutory mandate. This was personal and– he is liable to pay aggravated on exemplary damages. This the same was held by Ngugi J, (as he then was) in Kimunai Ole Kimeiwa & 5 others –vs- Joseph Motoyei Mosigisi (The then DC Rongai & 3 others [2020]. KECH 10267(KLR)Was it justifiable to sue the 1 st Respondent in his Personal Capacity? 19. The Respondent’s next technical objection to the suit is based on Section 12 (1) of the Government Proceedings Act. That section reads as follows: Parties to proceedings Subject to the provisions of any other written law, civil proceedings by or against the Government shall be instituted by or against the Attorney-General, as the case may be. 20. The Respondents argue that the 1st Respondent is a public officer and he should not have been sued in his individual capacity. 21. The Respondents are correct that when sued as a result of discharging one’s duties or functions, the proper course is to sue the Attorney General or the office and not the individual officer in their personal capacity. However, there are times when a particular Petitioner may feel that a public officer conducted himself so flagrantly that they were acting on their own; on their own frolic so to speak. In such circumstances, the Petitioner is at liberty to sue the public officer on their own in addition to suing the Government 83.And in a further Ruling 12th day of November, 2020 in an application for review between the same parties the Judge stated he stated:13.This Court is, by constitutional definition and design, potentially fallible. However, the constitutionally mandated path to discovering and demonstrating its fallibility and reversing the effects of such fallibility is not to invite the self-same holder of its office to “change his mind” on an issue he has already determined through a stealth review application like the one before the Court. The path divined by the Constitution and statutory law is vide an appeal to the Court of Appeal. This is the reason the review jurisdiction of the Court is radically circumscribed. There are fundamentally good reasons for such circumscription – including the fact that litigation at a given rung of the Court system must come to an end. An aggrieved party is entitled to seek an appeal – but to the higher Court; not to vex his adversaries in the same Court.14.In the case at bar, the Court considered the facts of the case and the law and announced a rule of law that a public servant who travels outside the remit of his office and acts maliciously towards his fellow citizens and thereby inflicts actual injury or emotional distress to such citizens loses the personal protection and immunity afforded to him by virtue of his public office. Such an official is, in the famous Torts speak, on a frolic of his own. On such a frolic, he should expect consequences of his actions; consequences which are not inoculated by either the Constitution or statutory law.15.In announcing and applying this rule of law to the case at bar, the Court was reminding all public servants that their offices are clothed with public power to be exercised in accordance with the Constitution, the law and their oath of office. Public Officers should not excitedly and maliciously exercise power at the behest of the politically powerful to harm those perceived to be on the wrong side of the political divide at the given political moment. The rule of law this Court announced and applied was to remind public servants that political power and public office are transient. They pass. But the Rule of Law is, by our Constitution, enduring. The arc of history might be long; but it unfailingly arcs towards justice.16.If this Court was wrong in discovering this eternal rule of law in the subtext of our Constitution, statutory and decisional law, let the higher Court say so. And the only way to bring the question within the purview of the higher Court is through an appeal 84.This position was upheld by the Court of Appeal in Mosigisi (The then District Commissioner, Rongai District) v Ole Kimeiwa & 8 others [2026] KECA 577 (KLR) 85.In the circumstances the petition succeeds : Final Orders 86.The prayers for Judicial Review for orders of Certiorari, Mandamus and Prohibition, and Injunction were compromised by the conservatory and finally overtaken by the flax of time.Hence:i.A declaration be and is hereby issued that The 2nd respondents’ actions of arresting, escorting the Petitioner to Tenges Police Station, having him held there on false claims, abandoning him there, constructively expelling him without due process violated the petitioner’s right to having his best interests as a child considered as paramount as per article 53 (2) of the Constitution.ii.A declaration be and is hereby issued that the respondents’ actions of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right to Fair Administrative Action and other rights under Articles 27, 28, 29, 35, 43, 47, 48 and 50(1) of the Constitution and the procedures laid down in the Basic Education Act and Regulations therein.iii.A declaration be and is hereby issued that the actions and decision of the respondents suspending and or constructively expelling the Petitioner on the basis of an alleged indiscipline violated of his rights as a child under Article 53 of the Constitution, the Basic Education Act and the Children Act.iv.An order be and is hereby issued for general damages in the sum of Ksh 500,000 against the respondents for the contravention of the fundamental rights and freedoms of the petitioner and for the mental anguish suffered due to the unconstitutional acts of the respondentsv.An order be and is hereby issued for aggravated damages and exemplary damages against the 2nd respondent of Ksh 500,000 for acting ultra vires against the best interests of the Petitioner and setting off the chain leading to the violation of the Petitioner’s rights.vi.The damages will earn interest from date of this judgment until payment in full.vii.The Petitioner will also have costs of the petition to be jointly born by the 1st and 2nd respondents. 87.Orders Accordingly. JUDGMENT DATED,SIGNED AND DELIVERED VIRTUALLY AT ELDAMA RAVINE (SUB-REGISTRY) THIS 24TH JULY 2026.MUMBUA MATHEKAJUDGEIn the presence of:-- N/A for the Respondents- Counsel for Petitioner- Momanyi Court Assistant