https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9315

PM (On behalf of DA) v Maraga & 2 others (Constitutional Petition E006 of 2025) [2026] KEHC 9315 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9315 (KLR) Republic of Kenya In the High Court at Makueni Constitutional Petition E006 of 2025 JN Onyiego, J June 25, 2026 IN THE MATTER OF DA (A MINOR) SUING THROUGH HIS FATHER AND NEXT FRIEND, PM Between PM (On behalf of DA) Petitioner and Lawrence Maraga 1st Respondent Holyghost Schools 2nd Respondent County Director of Education Makueni County 3rd Respondent Ruling 1.The Amended Petition dated 23/10/2025 seeks the following prayers;a.A declaration that the Respondents are obligated to respect, protect and promote the best interests of the child in all disciplinary actions.b.That an order be issued disconnecting and absolving the minor from any allegations linking him to the said arson incident.c.That the 1st and 2nd Respondents be restrained from further making, circulating or relying upon any allegations or insinuations connecting the minor to the said arson attack.d.An order compelling the 1st and 2nd Respondents to tender a written apology to DA and his parents for vilifying his name.e.That, the 1st and 2nd Respondents do refund Kshs. 3,000 being transport expenses incurred by the minor on 7th October 2025 and a further sum of Kshs. 1,200 unlawfully confiscated by the 1st and 2nd Respondents.f.General damages for the violation of constitutional rights.g.An award of Kshs 100,000 being the legal expenses incurred by the Petitioner to be borne by the 1st and 2nd Respondents as part of the costs of this suit.h.Costs of this suit be borne by the Respondents.i.Any other relief that this honorable court deems just. 2.The Petition was contemporaneously filed with an application for Conservatory Orders, dated 01/10/2025 and filed under Certificate of Urgency which culminated in the issuance of a Conservatory Order on 02/10/2025. The 1st and 2nd Respondents’ decision to suspend the minor from school was stayed hence requiring the minor’s immediate re-admission to school and the Respondents were restrained from interfering with the minor’s right to education pending the hearing of the application. 3.The 1st and 2nd Respondents reacted to the Petition by filing a Preliminary Objection (P.O), dated 11/11/2025, and grounded as follows;a.That the Amended Petition is fatally and/or incurably defective for failure to disclose with reasonable precision the constitutional issue(s) or provisions allegedly infringed, the nature of the alleged infringement, and the manner in which the Respondents are said to have violated them, contrary to the principles or threshold of Constitutional Issue(s) or a Constitutional Petition established in the celebrated cases of Anarita Karimi Njeru v Republic (1979) 1 KLR 154 ( the Anarita Karimi Case) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.b.That the Amended Petition which is pleaded as lodged and/or instituted on behalf of a minor, expressly offends Order 32, rule 1 of the Civil Procedure Rules 2010 which mandatorily demands for a Written Authority to Sue as the next friend of the Minor to be filed in court. The Petitioner having not filed the requisite or such Written Authority to sue as the next friend of the Minor, lacks the Locus Standi in law to lodge and/or institute the amended Petition.c.That the 2nd Respondent as pleaded in the Amended Petition is not a legal entity or person capable of being sued in its own name. Similarly, the 1st Respondent as pleaded in paragraph 2 of the Amended Petition is incapable of singularly constituting a Board of Management (BOM) under the Basic Education Act, 2013, as alleged by the Petitioner.d.That the Amended Petition discloses no constitutional question(s) or violation(s), but instead raises issues of student discipline and school management which fall within the statutory framework of the Basic Education Act and the Basic Education Regulations, and not under the jurisdiction of this Honourable Court in the first instance.e.That accordingly, the Amended Petition is also premature and offends the doctrine of exhaustion, as the Petitioner has not invoked or exhausted the available internal dispute resolution mechanisms before the Board of Management, the County Education Office and the Education Tribunal. 4.The P.O was canvassed through written submissions. 5.Reference was made to the cases of Anarita Karimi Njeru -vs- Republic (supra), Trusted Society of Human Rights Alliance -vs- Mumo Matemu & 5 Others (Supra) and Communications Commission of Kenya -vs- Royal Media Services Ltd & 5 Others (2014) eKLR for the submission that a Petitioner in a Constitutional Petition must specify the constitutional provision violated, the nature of the violation and the manner in which the alleged violation occurred. 6.It was submitted that the Petition herein fails; to plead, with any particularity; to demonstrate how the 1st or 2nd Respondent violated any right and; to show the nexus between routine school disciplinary processes and the constitutional violations alleged. It was contended that what is before the court is a policy and administrative grievance about school discipline and management not a constitutional issue. That, a Petition which falls below the Anarita/Mumo Matemu threshold is fatally defective and must be struck out. 7.Reference was made to Order 32 Rule 1 of the Civil Procedure Rules (CPR) on the submission that the Petition was filed without written authority of next friend. That, this rule is not a technicality but a substantive requirement protecting minors from improper litigation. That, Kenyan courts have consistently held that proceedings filed on behalf of a minor without the required written authority are incompetent. Reliance was placed on the case of Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko and Others (2013) eKLR where the Court of Appeal stated as follows:“In our view it is a misconception to claim, as it has been in recent times with increased frequency, that compliance with rules of procedure is antithetical to article 159 of the constitution and that overriding objectives principle under section 1A and 1B of the civil procure act (Cap 21) and section 3A and 3B of the Appellate jurisdiction act (Cap 9) Procedure is also a handmaiden of just determination of case”. 8.It was submitted that, since courts are enjoined by Article 53(1) to protect children against abuse, the court cannot ignore any procedures which enhance the protection of children. 9.It was submitted that failure by the Petitioner to file a written authority is a defect which goes to locus standi hence the Petitioner cannot activate the jurisdiction of this court without capacity to sue. It was contended that where there is no proper Petitioner, there is no competent Petition and the suit cannot be sanitized retroactively. 10.It was further submitted that the 2nd Respondent is not a suitable legal entity and the 1st Respondent cannot singularly form a Board of Management. That, the Holy Ghost Schools as pleaded is not a body corporate created under the Basic Education Act, Societies Act or any other enabling law. That, a party incapable of suing or being sued cannot be validly brought before court. Reliance was placed on the case of Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) -vs- Rosaline Njeri Macharia & Another [2016] eKLR where the Court of Appeal stated;“Mr. Waweru Gatonye, counsel for the appellant, conceded in his written submission that his firm made the mistake of omitting the word “Board” after the word “Fund” which resulted in the plaintiff in the suit being Deposit Protection Fund instead of Deposit Protection Fund Board. What was the legal effect of this error? First, a plaintiff is defined in Black’s Law Dictionary, Ninth Edition as “the party who brings a civil suit in a court of law”. The “plaintiff” in the struck-out suit, not being a legal body, there was clearly no plaintiff in law. A “suit” that is not instituted by a plaintiff who has no legal personality cannot be said to have a plaintiff as a party and is consequently a nullity. If a suit is a nullity, it is incapable of resuscitation. No life can be breathed into it. It is dead. It does not exist and it is therefore incapable of amendment…Clearly, a suit not by or against a person or a body corporate is incompetent. It is a nullity. That answers the first question. If more authority was required, the philosophy in the sagacious words of Madan, JA as he then was in D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another, (Civil Appeal No. 37 of 1978) that “a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal…”, show that only there is a suit, however poorly drafted, is amendment possible to save it. Where, as here, the suit is a nullity, there is no litigation in being in law and the issue of amendment does not arise. Madan, JA as he then was alluded to litigation which is akin to a patient who can be treated and healed. Here, the patient is in the morgue. He is dead.” 11.It was contended that the Petitioner describes the 1st Respondent as the Board of Management (BOM) yet the Basic Education Act, under Sections 55–56, a BOM is a corporate body comprising several persons duly appointed and cannot be constituted by a single individual. 12.It was submitted that no constitutional issue has been disclosed as the matter falls under the statutory education framework as it relates to school discipline, management of learners and learner’s safety and security. That, the matters are squarely governed by the Basic Education Act which has an internal dispute mechanisms framework through; the Board of Management, the County Director of Education and the Education Appeals Tribunal. It was contended that none of these mechanisms were invoked. Reliance was placed on the cases of Speaker of the National Assembly -vs- Karume (1992) eKLR and Geoffrey Muthinja Kabiru -vs- Samuel Wambugu (2015) eKLR for the submission that; where statute provides a dispute resolution mechanism, it must be exhausted before approaching the High Court. it was submitted that the Petition offends the doctrine of exhaustion and is therefore premature. 13.It was further submitted that a constitutional question must rise above ordinary statutory disputes. That, the Petition before this Court does not identify; any unconstitutional conduct, any violation of fundamental rights nor any unlawful state actions. That, it merely seeks to convert an administrative disagreement into a constitutional claim and courts have repeatedly refused such attempts. 14.In conclusion, it was submitted that the Petition is incompetent, fatally defective, premature, devoid of any disclosed constitutional issue and filed against parties who lack juridical capacity. 15.On the other hand the petitioner opposed the P.O. arguing that; a P.O must raise a pure point of law and is argued on the assumption that all pleaded facts are correct. That, it cannot be sustained where facts are disputed, require ascertainment or where the court is invited to exercise discretion. It was contended that all the grounds raised by the Respondents invite factual interrogation and evidentiary evaluation and are therefore unsuitable for determination at this preliminary stage. 16.The issues for determination were identified to be;a.Whether the amended Petition discloses constitutional violations with reasonable precision as required by the Anarita Karimi and Mumo Matemu decisions.b.Whether the Petition is defective for want of written authority under Order 32 Rule of the Civil Procedure Rules.c.Whether the Respondents are proper parties to the Petition.d.Whether the Petition raises constitutional issues within the jurisdiction of this Honorable Court.e.Whether the Petition is premature for failing to exhaust internal dispute resolution mechanism. 17.On whether the Petition discloses constitutional violations with reasonable precision, it was submitted that it has expressly pleaded violations of Articles 43, 47 and 53. That, the manner of infringement is clearly pleaded to be; the Respondents disciplinary conduct, the flawed and unconstitutional decision-making process, the harm suffered by the minor and the nexus between the Respondents administrative actions and constitutional violations. 18.It was submitted that in Mumo Matemu -vs- Trusted Society of Human Rights Alliance (supra) the court cautioned against a mechanical application of Anarita Karimi case and held that constitutional pleadings must be subjected to a holistic and purposive evaluation. 19.As to whether the Petition is defective for want of written authority, it was submitted that the Petitioner relies on Article 22 of the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, 2013(Mutunga Rules). That, Rule 4(2) of the Mutunga Rules expressly permits a person to institute proceedings on behalf of a minor without any special formality. That, Article 22 (2) (b) & (c) allows any person to act in the interests of a child whose rights have been violated. That, Article 159(2)(d) mandates courts to administer justice without undue regard to procedural technicalities. 20.Reliance was placed on the case of JN (Minor suing through next friend) -vs- Githinji (2011) eKLR for the submission that omission of a next friend’s authority is a procedural defect curable by amendment. Further reliance was placed on the case of Republic -vs-Public Procurement Administrative Review Board ex-parte Selex (2008) KLR for the submission that procedural technicalities must not override substantive justice. 21.As to whether the Respondents are proper parties to the Petition, it was submitted that Boards of Management are statutory bodies established under Sections 51 and 52 of the Basic Education and are capable of suing and being sued. Reference was made to Order 1 Rule 9 of the CPR for the submission that misjoinder, non-joinder or misdescription of parties are not grounds for striking out proceedings. 22.As to whether the Petition raises Constitutional issues within this court’s jurisdiction, it was submitted in the affirmative. That, the Petition raises allegations of violations of right to education and right to fair administrative action which are constitutional questions squarely within the jurisdiction of this court under Article 165 of the Constitution. It was contended that courts have consistently entertained constitutional Petitions arising from school disciplinary processes. That, the attempt to trivialize the Petition as a ‘mere disciplinary matter’ is legally unsustainable and ignores the constitutional dimension of the matter. 23.As to whether the Petition is premature, it was submitted that the doctrine of exhaustion is not absolute. Reliance was placed on the Court of Appeal decision in Geoffrey Muthinja Kabiru -vs- Samuel Munga Henry (2015) eKLR for the submission that the doctrine is not applicable where fundamental rights are violated or internal mechanisms are inadequate. 24.It was submitted that where suspension is contemplated, Regulation 38(b) of the Basic Education Regulations provide that the learner and parent must be informed of the disciplinary process and summoned before the Board of Management. It was submitted that the suspension letter issued to the Petitioner was vague, ambiguous and devoid of particulars. That, it neither disclosed the nature of the alleged indiscipline nor communicated that a disciplinary hearing was scheduled or intended. That, the clear impression conveyed was that no internal disciplinary mechanism had been initiated. 25.It was contended that the Respondents cannot fault the Petitioner for failure to exhaust a process that was never properly invoked or communicated. That, this Petition concerns the constitutional rights of a minor and courts have consistently held that matters involving children’s rights demand urgent judicial intervention. It was contended that any delay would have perpetuated harm to the child and violated the best interests of the child principle under Article 53(2). 26.Having considered the preliminary objection herein, submissions in support and the response thereof, the only issue for determination is; whether the P.O is merited. 27.The locus classicus case in determination of a preliminary objection is the case of Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696 which posits that a P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit. 28.The first ground in the P.O is that the Petition does not disclose, with reasonable degree of precision, the constitutional issue(s) or provisions allegedly infringed, the nature of the alleged infringement, and the manner in which the Respondents are said to have violated them. It is indeed a requirement in constitutional litigation that Petitions should be drafted precisely and with sufficient particulars to enable the Respondents reply adequately. The constitutional infringements complained of and the manner of infringement should be properly indicated. 29.Looking at the Petition in this case, the alleged constitutional provisions infringed are indicated under ‘Part C-grounds for the Petition’ and the manner of infringement has been captured under ‘Part B- Background’. This ground is therefore devoid of merit, in my view. 30.Ground 2 is that the Petitioner lacks locus standi for want of authority to institute the Petition on behalf of the minor. Order 32 Rule 1 of the CPR provides;(1)Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.(2)Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed. 31.Order 32 Rule 2 of the CPR provides;(1)Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented.(2)Notice of such application shall be given to such person, and the court, after hearing his objections (if any), may make such order in the matter as it thinks fit. 32.On the other hand, Rule 4 of the Mutunga Rules provides;4.(1)Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.(2)In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by—(i)a person acting on behalf of another person who cannot act in their own name;(ii)a person acting as a member of, or in the interest of, a group or class of persons;(iii)a person acting in the public interest; or(iv)an association acting in the interest of one or more of its members. 33.Rule 4 of the Mutunga Rules is also codified in Article 22 of the Constitution of Kenya. The Petitioner herein is a father who alleges that the constitutional rights of his son were violated by the Respondents. It is therefore a suit under Article 22 of the Constitution and Rule 4 of the Mutunga Rules where written authority is not a pre-requisite. Further, Article 2(4) of the Constitution provides that; “Any law including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.” Consequently, ground 2 of the P.O has no merit. 34.Ground 3 is to the effect that the 1st Respondent does not constitute a Board of Management and that the 2nd Respondent is not a legal entity capable of being sued in its own name. The 1st Respondent is the name of one individual hence evident that he has been misdescribed as the Board of Management of Holy Ghosts Schools, Makueni. According to Sections 55–56 of the Basic Education Act, a BOM is a corporate body comprising several persons duly appointed. Be that as it may, Order 1 Rule 9 of the CPR provides;“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 35.Consequently, ground 3 of the P.O has no merit as it is curable by amendment. 36.Ground 4 is that the Petition does not disclose constitutional question(s) or violation(s). In my view, this ground is tied to ground 1 above where I have already established that the alleged constitutional provisions infringed are indicated under ‘Part C-grounds for the Petition’ and the manner of infringement has been captured under ‘Part B- Background’. Consequently, this ground is devoid of merit. 37.Ground 5 is that the Petition is premature and offends the doctrine of exhaustion. Having looked at the Petition and all the annexures, one of the allegations by the Petitioner is that the minor was suspended without being subjected to due process hence this court is supposed to interrogate whether that omission amounts to an infringement of the minor’s constitutional right to education. In my view, an internal disciplinary mechanism of the 2nd Respondent has no capacity to address alleged constitutional violations because that is a preserve of the High Court and subordinate courts (in appropriate cases) as per Article 23 of the Constitution. 38.In the case of Justus Kariuki Mate & Anor -vs- Martin Wambora & Anor (2017) eKLR it was held that the doctrine of exhaustion does not apply where the dispute raises constitutional issues. Further, in the case of William Odhiambo Ramogi & 3 Others -vs- Attorney General & 4 Others (2020) eKLR, the consensus by a 4-Judge Bench of the High Court was that courts may intervene where internal mechanisms are inadequate or ineffective. The Bench stated as follows;“60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively.” 39.Similarly, in our case, the available internal dispute resolution mechanisms before the Board of Management, the County Education Office and the Education Tribunal do not have the capacity to address the alleged constitutional violations conveniently. Ground 5 of the P.O is therefore devoid of merit. 40.The upshot, in my opinion, is that the P.O is not merited as it seeks to circumvent the fair administration of justice and the right to be heard. Accordingly, the same is dismissed. Costs shall be in the cause. However, I wish to make the following directions;1.The petitioner to amend within 10 days his petition so as to substitute the 2nd respondent with the School Board of Management as a body corporate capable of suing or of being sued.2.That upon receipt of the said amended petition, the respondents to file their response within 10 days.3.Upon receipt of the said response, the petitioner to file submissions within 10 days.4.That upon receipt of the said submissions, the respondents to file theirs within 10 days.5.Highlighting of submissions on 23-9-2026. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE 2026....................................J.N.ONYIEGOJUDGE