https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10727

Prime Star Academy v Kirinyaga County Education Board & another (Constitutional Petition E017 of 2024) [2026] KEHC 10727 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 10727 (KLR) Republic of Kenya In the High Court at Kerugoya Constitutional Petition E017 of 2024 EM Muriithi, J May 14, 2026 Between Prime Star Academy Petitioner and The Kirinyaga County Education Board 1st Respondent The County Director Of Education (M.O.E) Kirinyaga County 2nd Respondent Judgment 1.By a Petition dated 9/4/2024, the Petitioner seeks specific reliefs that:1.A Declaration that the 2nd respondent’s resolution in the letter dated 12th September, 2024 and referenced NO.MOE/CDE/KRG/GEN/09/87/41 was and is unlawful and violates the petitioner’s Constitution rights as protected under Articles 10, 27, 35, 40, 41, 47 and 50 (1) of the Constitution of Kenya.2.A declaration that the 2nd respondent’s resolution in the letter dated 12th September, 2024 and referenced NO.MOE/CDE/KRG/GEN/09/87/41 was and is unlawful and violates the constitutional rights of the 246 pupils registered in the school in violation of Articles 43 (1) f, 53 (1) (b) and 53 (2) of the Constitution of Kenya.3.A declaration that the 2nd respondent’s resolution in the letter dated 12th September, 2024 and referenced NO.MOE/CDE/KRG/GEN/09/87/41 was and is unlawful and violates the constitutional rights of the petitioner’s 11 employees in violation or Articles 41 of the Constitution of Kenya.4.General damages for the violation of the petitioner’s constitutional rights.5.A declaration that in view of the past registration of the petitioner vide registration number PE/7204/11 and subsequent recommendation for the approval of re-registration by the 1st respondent, and the conduct of the respondents approving the operations of the petitioner, it has and has legitimate expectation that it shall continue operations in accordance with the Law.6.A declaration that the purported closure of the petitioner vide the 2nd respondent’s letter dated 12th September, 2024 and referenced NO.MOE/CDE/KRG/GEN/09/87/41 was and is unlawful, unconstitutional, null and void.7.Cost of the Petition Petitioner’s case 2.The Petitioner, Prime Star Academy is a private pre-primary and primary school situated in Kutus Town, Mwea East Sub-County, Kirinyaga County. It was established in 2004 by its proprietor, Stanley Muriithi Kariuki, and has been in continuous operation for over two decades. In 2006, the Kirinyaga District Education Officer inspected the School and prepared a School Registration Assessment Report recommending it for approval. On 20/6/2011, the Ministry of Education, Science and Technology granted it a provisional registration certificate No. PE/7204/11. The certificate authorized it to operate as a private mixed day nursery and primary school with a maximum enrolment of 345, comprising 25 nursery pupils and single-stream classes of 40 pupils each from Standard one to eight. The documents in support of the provisional registration included a recommendation from the District Education Officer dated February, 2011, a sanitary inspection report dated 4/1/2011, permission by Faith Evangelistic Ministry to use the church ground as a playground for 10 years dated 10/1/2011, an application for approval as a manager dated 5/4/2011, certificate of registration of the Petitioner No. BN/2011/124977, receipt for payment of Ksh. 20,000 dated 13/9/2013 and a map showing location of Plot 437 Kutus Mjini where the Petitioner is situated. The school subsequently applied for full registration as a day and boarding primary school, and in support of the application, the District Education Officer, Mwea East, prepared a detailed inspection report dated 11/7/2013, noting, inter alia, that the Petitioner had adequate land size, ECDE facilities, a tuition block, girls’ and boys’ dormitories, day and night sanitation facilities, a play field and teaching personnel at a ratio of one teacher per class for the 56 ECDE and 156 primary school pupils. The boarding facilities comprised of 2 dormitories with a combined capacity of 56 pupils, with a resident lady caretaker and a male teacher for the boys and the school compound was fenced and gated. The hygiene related issues including water and electricity were well catered for and the District Education Board recommended the School for permanent registration, which was issued on 24/3/2024 vide certificate No. PE/11615/14. 3.Upon the enactment of the Basic Education Act, and the devolution of education to counties, schools in Kenya, the Petitioner diligently commenced the re-registration in 2019 following the advice of the Education office, until the process stalled due to the onset of the COVID-19 pandemic. In 2021, the Petitioner re-applied for re-registration vide a letter dated 12/7/2021, and a recommendation report of its re-inspection was made by the Sub-county Public Health Officer on 30/9/2021. 4.On 9/12/2021, a Quality Assurance and Standards Assessment Officer, Mwea East prepared a detailed report for purposes of registering the boarding section, clearly indicating that the Petitioner had approved enrolment of 395 learners, visitors book, examination results for KCPE (8 years), learners’ discipline records, registration certificate, 1¼ acres of land with intertwined barbed wire and a metal gate, strategic plan covering 10 years, good relation with the community, 11 clean, cemented and spacious classrooms measuring 8 meters by 7 meters which could accommodate 30 learners each, 4 toilets for boys, 6 for girls and 2 for teachers, 24 functional water points, water storage tanks with a capacity of 30,000 litres, clear field for volley ball, netball, swings, sliders, rotators and climbers, a library with over 300 books, a computer laboratory with 3 computers, a kitchen, food store and a 300 capacity hall. The boarding facilities consisted of Mt. Elgon Girls’ dormitory measuring 120 square meters with 24 girls and Mt. Kenya boys’ dormitory measured 144 meters with 12 boys. On 11/1/2023, officers from the Directorate of Quality Assurance and Standards Mr. Gikonyo Danson and Madam Dorothy Muchemi conducted a formal assessment of the School for purposes of registering the Petitioner as a Junior Secondary School, as required by the transition to the Competency Based Curriculum. In that report, it was expressly indicated that the Petitioner had a valid registration certificate (PE/11615/14), was both a primary and Junior Secondary school with regular day and boarding facilities, had enrolment from pre-primary to grade 8 with a total of 220 pupils, was registered on the National Education Management Information System (NEMIS), had 9 qualified teachers, had 6 desktop computers, 1 laptop, 1 router and 1 printer, had sufficient land to host Junior Secondary School, had adequate playgrounds and was approved to admit JSS learners in January 2023. 5.The Petitioner was No. 7 on the list of schools in Mwea East ready for re-registration to offer JSS and was allowed to admit JSS learners in 2023, whose 2023 and 2024 examinations were supervised and marked by government officers. The learners admitted in grade 6 in 2023 have progressed to grade 7 and were all registered in registered on the NEMIS and with the encouragement by the Respondents of continued lawful operations, the Petitioner invested heavily in its infrastructure over the years. It enrolled 246 pupils in the 3rd term of 2024 who paid school fees upto term 1 of 2025 and employed 11 salaried staff members. 6.On 11/9/2024, the 2nd Respondent made an unannounced visit to the school, declined to sign the visitors’ book and left without conducting a formal inspection or issuing any report. When the Petitioner’s head teacher visited the 2nd Respondent’s office to collect Kenya Primary School Education Assessment Examination (KIPSEA) materials, he learnt with utter shock and disbelief of the impugned letter dated 12/9/2024, purportedly closing the school, on grounds of congested classes, invalid registration, non-compliance with safety and health standards on doors and window grills, lack of adequate trained and TSC registered teachers, inadequate land to offer the CBC curriculum; boarding facilities not meeting minimum requirements, inadequate playground and inadequate and poorly maintained sanitation facilities. On 28/10/2024, the school wrote to the 2nd Respondent, highlighting the allegations, which elicited no response. The Petitioner was no among the 348 non-compliant schools contained in the Principal Secretary for Education’s Circular No. MOE.HQS/3/13/3 (117) dated 27/11/2024. The 2nd Respondent’s resolution dated 12/9/2024 was made without jurisdiction and without affording the Petitioner an opportunity to be heard, and therefore in violation of Articles 10, 27, 35, 40, 43 (1) (f), 47, 48, 50 (1) and 53 of the Constitution. 7.The Petitioner’s swore a supplementary affidavit on 17/1/2025 in support of the Petition. Respondents’ Case 8.The Respondents opposed the application vide a replying affidavit sworn by Lydia W. Mutegi, the 2nd Respondent herein on 6/1/2024. She avers that her officers visited the Petitioner on 11/9/2024 to assess its compliance with Safety Standards Manual for Schools in Kenya 2008, as directed by the Principal Secretary vide the circular dated 10/9/2024 after the Hillside Endarasha Academy fire disaster that killed over 20 learners. During the exercise, 12 schools, inclusive of the Petitioner, were found to be non-compliant with the Safety Standards Regulations Manual of schools in Kenya 2008, thus posing a great risk to the learners and staff. She prays for the dismissal of the petition, to afford room to the Petitioner to comply with the ministry of education requirements. Submissions 9.The Petitioner urges that the Respondents have violated its Constitutional rights together with those of its 246 students and 11 employees, and cites Anarita Karimi Njeru v Republic [1976-1980] KLR 1272 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] e KLR. It urges that the alleged closure by the 2nd Respondent was unlawful and violated its rights under Articles 10, 27, 35, 40, 41, 47 and 50 (1) of the Constitution. It submits that the 2nd Respondent lacked the mandate and/or authority to close the school under the provisions of Sections 18 (1), 52 (2), 77(1), 79 and 82 of the Basic Education Act, and flouted the procedures under Paragraphs 7 and 8 of the Ministry of Education Registration guidelines for Basic Education Institutions, 2021. It faults the 2nd Respondent for failing to afford it an opportunity to be heard contrary to Sections 4 and 5 of the Fair Administrative Action Act. It further faults the 2nd Respondent for not only belatedly serving it with the impugned letter 41 days after it had been authored, but also failing to respond to its letter, and cites Mboya v Kenyatta University (Petition E376 of 2022) [2024] KEHC11853 (KLR). It contends that the Respondents can only close a school that is not registered or one that has never started the registration process, and cites Republic v The County Education Board & another Ex-parte Bridge International Academies Ltd [2017] KEHC 7278 (KLR) and Jovet (Kenya) Limited v Bavaria NV (Petition E039 of 2024) [2025) KESC 27 (KLR) (Constitutional and Judicial Review) (16 May 2025) (Judgment). It submits that it had a legitimate expectation that it shall continue operations, and cites Transparency International - Kenya v Omondi (Civil Appeal 81 of 2018) [2023] KECA 174 (KLR) (17 February 2023) (Judgment), Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Republic v The County Education Board &another Ex-parte Bridge International Academies Ltd [2017] KEHC 7278 (KLR) and CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2017] KEHC 8364 (KLR). It cites Peter Ndegwa, Kiai t/a Pema Wines & Spirits v Attorncy General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment), Pauline Kahiga Waititu versus County government of Nairobi & another 2021 KEELRC 1072 and Ol pejeta Ranching Limited versus David Wanjau Muhoro 2017 KECE 329 in urging that it proved violation of its constitutional rights and seeks Ksh. 10,000,000 as general damages. 10.The Respondents urge that the Basic Education Act empowers education authorities to supervise institutions, ensure compliance with standards, inspect facilities and take enforcement measures where minimum requirements are not met. Further, the Registration Guidelines prescribe minimum mandatory requirements relating to land size, infrastructure standards, approvals from regulatory agencies, staffing qualifications, safety compliance and institutional registration conditions. They maintain that the Petitioner’s operations were, and remain, in violation of multiple statutory and regulatory provisions designed to safeguard educational standards and learner welfare. They assert that they acted within their legal mandate, in good faith and in full discharge of their duty to enforce compliance, protect learners, and uphold the integrity of Kenya’s basic education framework, and cite Gachoka v Attorney General [2017] eKLR. They cite Kenya Human Rights Commission v Attorney General [2013] eKLR and Kenya National Commission on Human Rights v Attorney General [2015] eKLR where courts rightfully held that economic inconvenience, speculative loss, or inability to continue operations due to non-compliance does not constitute a violation of constitutional rights. 11.They submit that the Petitioner has not met the constitutional threshold required for this Court to entertain the matter, and cite Peter Glen Onyango v Attorney General & another [2014] eKLR, Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272 and Trusted Society of Human Rights Alliance vs. Attorney General and 2 Others [2012] eKLR. Analysis and Determination 12.Having carefully considered the pleadings on record, the issue for determination is whether the Petitioner’s rights under the Constitution were violated.1.The functions of the 1st Respondent are set out under section 18 (1) of the Act as follows; “(a)oversee in consultation with the county government, the operation and management of youth polytechnics, early childhood education including early childhood care and education programmes in the county;(b)coordinate and monitor education and training in the County on behalf of the national government and the county government;(c)interpret national policies in education based on the county’s needs;(d)initiate proposals for policy reforms;(e)plan, promote, develop, and coordinate education, training and research in the county in accordance with the provisions of this Act, the national education policy and the laws and policies of the county government;(f)collaborate with the Board of Management, the Principal, the Head Teacher, and other appropriate authorities in the management of basic schools;(g)register and maintain a data bank of all education and training institutions within the county;(h)monitor curriculum implementation in basic education in the county;(i)monitor the conduct of examinations and assessments at the basic education and training levels in the county in collaboration with all the relevant national bodies;(j)collaborate with the Teachers Service Commission on teacher management within the county;(k)prepare and submit a comprehensive school termly annual report including Educational Management Information System data to the Cabinet Secretary on all areas of its mandate including education and training services, curriculum, policy implementation and school based audit report within the County;(l)coordinate with all relevant agencies to ensure that all the barriers to the right to quality education are removed and with National Government to facilitate realization of the right to education within the county;(m)put measures in place to ensure all children and youth of school going age within the county attend and stay in to complete basic education.(n)perform such other functions as may be necessary for the better carrying out of the functions of the county education board under this Act or any other written law.”2.One of the powers of the Quality Assurance and Standards Officers under Section 66 (4) of the Basic Education Act is to “recommend temporary suspension of operations of an institution to the County Education Board for a specific period until the basic standards are met.” Notably, the officer makes a recommendation not a unilateral decision and most importantly, that recommendation goes to the 1st Respondent, which is the body vested with the decision-making authority. The 2nd Respondent serves as the Secretary of the 1st Respondent by virtue of Section 20 (1) (b) of the Act, and is not, under any provisions of the Act, clothed with the unilateral power to order the closure of a registered school.3.The 2021 Registration Guidelines for Basic Education set out in Section 8.0 a detailed and sequential process for de-registration of basic education institutions, as follows, “An adverse report on contravention of legal provisions or involvement in one of the circumstances mentioned in 7.0; An assessment by Quality Assurance and Standards Officers to ascertain the allegations and a report prepared with recommendations to CEB; The institution shall temporarily be closed by the CEB following recommendation of the report; The CEB shall meet and make deliberations which shall be forwarded together with all relevant supporting reports to the CS for action; The CS shall write to the institution Board of Management through the CEB on the resolution to deregister the institution; The CS shall Gazette deregistration of the institution in the Kenya Gazette, the Registration Certificate shall be returned and cancelled by the CEB; The institution’s stakeholders can appeal to the Cabinet Secretary to lift the gazette notice deregistering the school after three (3) months.”4.On 12/9/2024, the 2nd Respondent issued the impugned letter ordering the immediate closure of the Petitioner, in blatant disregard of the procedure set out hereinabove.5.The Court of Appeal in Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 others [2020] KECA 157 (KLR), observed that:“Articles 1 and 2 of the Constitution states that all sovereign power belongs to the people of Kenya exercisable only in accordance with the Constitution through delegated authority donated to state organs such as the executive, the legislature and the judiciary. Being the Supreme Law, the Constitution binds all persons and all state organs at both levels of government. It follows therefore that if any state organ does or purports to do an act in a manner which does not fall within the constitutional prescription, then that action would be unlawful and or unconstitutional.”6.The Court must emphasize the legal position as Lord Wright said in General Medical Council v Spackman [1943] A.C. 627 that;“If principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”7.This court finds that the 2nd Respondent’s impugned letter was void ab initio for want of authority and ultra vires to its statutory mandate under the Basic Education Act.8.Even if the 2nd Respondent possessed the requisite statutory authority, the impugned decision would still be unconstitutional for want of compliance with the dictates of Article 47 of the Constitution as read with Section 4 (1) of the Fair Administrative Action Act. 13.Article 47 of the Constitution provides that, “(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.” 14.Article 50 (1) of the Constitution guarantees every person the right to a fair hearing, which includes the right to be heard before an adverse decision is made against them. 15.In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), the Supreme Court expounded that:“Suffice it to say that the intention of the Constitution, through Article 47 was to strengthen the procedural fairness expected when dealing with public administrative processes. These processes ought to be conducted in the sanctity of imperative principles such as; expedition, efficiency, the rule of law, reason and procedural fairness.” 16.In Republic v National Police Service Commission Ex parte Daniel Chacha Chacha [2016] KEHC 7755 (KLR), the Court (G.V Odunga J. as he then was) observed that;“Procedural fairness is therefore now a Constitutional requirement in administrative action and the requirement goes further than the traditional meaning of the duty to afford one an opportunity of being heard. It is now clear that even in cases where there is no express requirement that a person be heard before a decision is made, the tribunal or authority entrusted with the mandate of making the decision must act fairly...54. Therefore, the principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material...65. In my view, an introduction of a procedure which does not permit the hearing of a party in his case whether orally or otherwise, may well amount to bad faith and constitute irrationality as one cannot be in a position to know what factors were considered by the authority in arriving at the decision. Such a decision may well be described as having being arbitrarily arrived at. This must necessarily be so because statutes are interpreted by reference to their purpose, and statutory powers must be exercised for the purpose for which they were conferred. Public authorities are required to promote, and not to frustrate, the legislative purpose.” 17.Firstly, the Petitioner was not given any time to respond to the alleged concerns and/ or prior notice of the intended closure, and it was served with the impugned decision on 23/10/2024, notwithstanding that the letter had been authored 41 days earlier on 12/9/2024. 18.Secondly, the written reasons provided in the impugned letter are inconsistent with the documentary evidence of the Petitioner’s prior positive inspection reports. The letter makes no reference to the January 2023 assessment that gave the Petitioner 85.71% and approved it to admit JSS learners or to the repeated positive public health inspections. The letter equally makes no reference to the Petitioner’s outstanding loan obligations and/or investments made in reliance on the Respondents’ representations. 19.Needless to state, the Respondents irregularly introduced new grounds for closure of the Petitioner to wit lack of National Environment Management Authority approval and National Construction Authority project registration which were not among those in the impugned letter of 12/9/2024. 20.This Court notes takes cognizance of the circular by the Principal Secretary for Education dated 27/11/2024, listing 348 non-complaint boarding schools across Kenya. However, the Petitioner was conspicuously missing from the said list, thereby implying that it was compliant. 21.The Respondents urged that the safety emergency measures were particularly geared towards averting a recurrence of another Endarasha disaster. This court has considerable sympathy for the regulatory imperative to protect children’s lives and does not downplay the gravity of the Endarasha tragedy. Nonetheless, even in genuine emergencies, the minimum requirements of procedural fairness which do not require elaborate processes cannot be wholly dispensed with. 22.The Court of Appeal in Mbaki & Others v Macharia & Another [2005] 2 EA 207 enunciated that;“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.” 23.Similarly in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR), had this to say;“The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” 24.This Court accordingly finds that the impugned letter of 12/9/2024 was unlawful, having been issued in contravention of the Petitioner’s constitutional right to fair administrative action under Article 47 of the Constitution as read with Section 4 of the Fair Administrative Action Act and the prescribed procedures under the Registration Guidelines for Basic Education Institutions 2021. 25.The record reveals that the Petitioner operated continuously since 2004 to 2024. It received provisional registration in 2011 and full registration in 2014, and various inspection reports spanning from 2013 to 2023 commended its facilities. The Quality Assurance and Standards Officers formally approved the School to admit JSS learners in January 2023 while the 1st Respondent recommended its re-registration. On representation by the Respondents to continue operations while the administrative process of re-registration was completed, the Petitioner invested millions of shillings in dormitories, tuition blocks, a library, a computer laboratory, a dining hall, sanitation facilities, and a play field and human resource. The Petitioner’s legitimate expectation to continue its operations was short lived when it was served with the impugned letter of its closure without notice, hearing or any opportunity to address the concerns raised. 26.In arbitrarily closing the Petitioner serving 246 learners without any provision for alternative education, the Respondents violated their rights to education as enshrined under Articles 43(1) (f), 53 (1) (b) and 53 (2) of the Constitution. Additionally, that decision had grave economic consequences on the 11 employees of the Petitioner, who were innocent 3rd parties to any regulatory measures, and was thus a contravention of their rights under Article 41 of the Constitution. 27.On whether the Petitioner is entitled to general damages for the real and demonstrable harm it suffered, this court finds in the affirmative. 28.In Jekim Hospital Nkubu Ltd & another v Kenya Medical Practitioners and Dentists Council & 2 others [2023] KEHC 27205 (KLR), this court awarded compensation of Ksh.1,000,000 for violation of the right to fair administrative action and fair hearing. 29.The 2nd respondent exercised pretended powers. The award of damages of Ksh.2million is justified for breach of right to fair hearing and Faith administrative action, and for exemplary damages for 2nd Respondent's exercising pretended powers. 30.For avoidance of doubt, this court reiterates that this judgment is not a shield against lawful regulation. The Respondents retain the statutory authority and duty to ensure that all schools operating in Kirinyaga County meet the prescribed safety, staffing, and curriculum standards. Nevertheless, such authority must be exercised within the confines of the law, regard being had for the Petitioner’s rights and the best interests its learners. 31.The Court must, however, sound a warning yet again against State breaches of the Constitution and procedural law, and show that short-cuts and high-handedness in governance does not pay! 32.In this case, therefore, costs should follow the event even through a public interest litigation. Orders 33.Accordingly, for the reasons set out above, this court finds merit in the petition and it is allowed. 34.The Petitioner is awarded general damages of Ksh.2,000,000 for violation of its rights to fair hearing and fair administrative action. 35.The Respondent shall also pay to the Petitioner the costs of the Petition.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Magee for the Petitioner.Mr. Kiongo for the Respondent.