[2025] KEHC 16716 (KLR)

RAB & RAB (Minors Suing through their Mother and Next Friend) v Makini Schools & 3 others (Petition E243 of 2023) [2025] KEHC 16716 (KLR) (Constitutional and Human Rights) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 16716 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E243 of 2023

LN Mugambi, J

February 6, 2025

Between

RAB & RAB

Petitioner

Minors Suing through their Mother and Next Friend

and

Makini Schools

1st Respondent

Horace Mpanza

2nd Respondent

Catherine Njuguna

3rd Respondent

Gary Wagner

4th Respondent

Judgment

Introduction 1. The Petition dated 10th July 2023 is supported by the Petitioners’ affidavit in support of similar date and the further affidavit deponed on 14th July 2023 and 28th July 2023 respectively.

2. The Petitioners assail the Respondents action alleging that they unlawfully removed the two minor Petitioners from the 1st Respondent’s institution of learning due to differences between the Respondents and the minor’s father. The Petitioners argue that the Respondents’ actions are in blatant violation of Articles 10, 27, 28, 29(f), 43(1)(f), 47, 50 and 53 of the Constitution and the Basic Education Act, Children's Act, Fair Administration Actions Act and the Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations,2015.

3. The Petitioners thus pray for the following reliefs against the Respondents:i.A declaration be issued that the action of the Respondents to expel the two minor Petitioners from the 1st Respondent violated the Basic Education Act, Children's Act, Fair Administration Actions Act and the Constitution and therefore illegal, unlawful and unconstitutional.ii.A declaration be issued that the action of the Respondents to expel the two minor Petitioners from the 1st Respondent violated the 1st Respondent's Rules, Policies and Procedures, and therefore illegal, unlawful, unprocedural and unconstitutional.iii.A declaration be issued that the action of the Respondents to expel the two minor Petitioners from the 1st Respondent was precipitate, hasty, petty, malicious, capricious, draconian, and discriminatory and amounted to cruel, inhuman or degrading.iv.A declaration be issued that the action of the 3rd Respondent violated the Teachers Service Commission Code of Conduct and Ethics governing the Teaching profession in Kenya.v.An order of certiorari be issued removing into this Court and quashing the letter a letter dated 7th July 2023 expelling and purporting to terminate the education contractual relationship with the school with immediate effect.vi.An order be issued compelling the Respondents to forthwith re-admit the two minor Petitioners.vii.An order of prohibition against the Respondents whether by themselves, or any of their employees or agents or any person claiming to act under their authority from interfering with the education and the welfare of the two minor Petitioners.viii.General damages to the Petitioners for psychological, social, economic and physical torture, trauma, inhuman and degrading treatment.ix.An order for the Respondents to meet the cost of counselling for the two minor petitioners at a facility of their parent's choice.x.The Orders be served on the Ministry of Education and the State Department for Social Protection [Department of Children Services (DCS)] to enforce.xi.Any other relief and/ or orders this Court deems appropriate, just and fit to grant.xii.The costs of the Petition be provided to the Petitioners.

Petitioners’ Case 4. The Petitioner alleges that the minors are students in Grade 3 and 4 at the 1st Respondent. Their father is the Chairperson of the Parents/Teachers Association (PTA). The minors sue through their mother. She describes the minors as well-mannered and adds that they have never had disciplinary issues with the 1st Respondent. That the minors school fees has always been paid in full to the 1st Respondent.

5. On 16th June 2023, the 1st Respondent through a Circular Notice dated 8th July 2023 called for the Annual General Meeting (AGM) set for 8th July 2023. In addition to the agenda that was circulated with the Notice, the meeting was set to discuss issues pertaining to the students’ welfare and teachers’ high turnover.

6. It is alleged that the teachers’ high turnover was due to the 2nd Respondent’s aggressive behaviour at the school. That the 2nd Respondent carries a firearm in school and smokes in the presence of the students. In a further counter Notice dated 7th July 2023, the 3rd Respondent, issued a letter purporting to cancel the scheduled AGM meeting.

7. The Petitioner depones that soon after on 13th and 14th July 2023, the minors were expelled from their Class by the 3rd Respondent (Head Teacher-Junior Academy) under the instructions of the 2nd Respondent. The letter issued to the minors for their parents stated that the 1st Respondent was terminating their educational contractual relationship.

8. She notes that the 1st Respondent thereafter on 18th July 2023 refunded Ksh. 119,700 as the pro-rated tuition fees for the minors in view of their expulsion. Additionally, the Petitioners’ Counsel vide an email communication dated 13th July 2023 from the 1st Respondent’s Counsel was instructed to advise the minors mother to cease sending the minors to the school.

9. The Petitioner alleges that the minors were expelled from the school solely on the basis of their father’s role as the Chairperson of the PTA and his issues with the 1st and 2nd Respondent. She avers that the 1st and 2nd Respondents even filed a defamation suit against the minors’ father in Milimani Chief Magistrates Court Civil Case No.E3304 of 2023.

10. Aggrieved by their actions, the Petitioner reported the Respondents to the Ministry of Labour and Social Protection (State Department of Social Protection) which in turn summoned the 2nd, 3rd and 4th Respondents before the County Director Children’s Services on 18th July 2023. The Petitioner in addition also reported the matter to the Ministry of Education.

11. The Petitioner contends that the Respondents actions are malicious, draconian and discriminatory as the issues between them and the minors’ father can be resolved independently without involving the minors. Furthermore, their actions have caused them as Parents and the minors’ emotional distress. The two minors have further been subjected to ridicule by their fellow students causing them mental anguish. Moreover, the Respondents actions are said to be in violation of the minors’ rights to education and also freedom from cruel, inhuman and degrading treatment.

12. The Respondents actions are in violation of the due process of the law as outlined in the 1st Respondent’s own Rules and Regulations, the Basic Education Act, the Children’s Act, the Fair Administrative Actions Act and the Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations, 2015 and in violation Articles 10, 27, 28, 29(f), 43(1)(f),47, 50 and 53 of the Constitution.

The Respondents’ Case 13. In response, the Respondents filed a Replying Affidavit by the 2nd Respondent, the Regional Managing Director of the 1st Respondent sworn on 18th July 2023 and a further affidavit sworn 14th November 2023. The Respondents in addition relied on the School Principal’s, Angelica Ouya’s affidavit and the 3rd Respondent’s affidavit both sworn on 31st October 2023

14. The 2nd Respondent depones that the minors’ tenure as students at the 1st Respondent was exclusively based on the private contractual agreement between the 1st Respondent and their father, NB and the 1st Respondents Rules and conditions. It is asserted that the minors father agreed to the 1st Respondent’s terms prior to the enrollment of the minors in the school. According to 2nd Respondent, the fact of existence of contractual relationship does not give the minors an absolute right to education in the school.

15. The 2nd Respondent challenges the minors’ mother legal standing to institute this suit as she is not a party to the said Contract. As such he argues that the Petition ought to be struck out on that basis. Moreover being that this is a contractual matter, he alleges that the issue herein can be resolved through various statutes not through a constitutional petition. On this premise, he avers that this Court lacks jurisdiction to entertain this matter.

16. That said, he depones that the 1st Respondent terminated his contract with the minors’ father, NB on 7th July 2023 because he was harassing and intimidating its staff and principals through misleading information regarding the operations of the school. Additionally, he states that the minors’ father has continued to serve as the PTA’s chairman since 2019 yet the PTA Constitution only stipulates a 3-year term.

17. The 2nd Respondent as well in this affidavit and further affidavit highlighted the numerous issues concerning the minor’s father with the 1st Respondent that led to the breakdown of his relationship with the Respondents and eventual filing of the defamation suit Milimani Chief Magistrates’ Civil Case No.E3304 of 2023 – Makini School Limited & Horace Mpanza v. Nixon Bugo.

18. He depones that after the termination of the said contract the 1st Respondent refunded a total of Ksh.119, 700 to the minors’ father and required the minors to exit the school. In breach of this, it is alleged that the minors father proceeded to sneak the minors into the school on two occasions. In his view, the Petitioner herein is seeking to have the Court reinstate an already terminated contractual agreement.

19. The 3rd Respondent echoing the 2nd Respondent’s sentiments depones that the 1st Respondent terminated its contract with the minors’ father as he was harassing and intimidating the 1st Respondent’s employees. She depones that she was personally harassed by the minors’ father during their interactions where he would constantly make demeaning comments towards her.

20. Comparable detailed averments were also deponed by Angelica Ouya concerning the minors’ father conduct and interaction with the 1st Respondent’s employees. Ultimately, the Respondents’ argue that it is the minors father disruptive conduct that led to the termination of the 1st Respondent’s Agreement with him and the eventual expulsion of the minors from the 1st Respondent’s institution.

Parties’ SubmissionsPetitioners’ Submissions 21. Apollo and Company Advocates filed submissions for the Petitioner dated 28th July 2023. Counsel identified the issues for determination as:“whether the actions of the Respondents to expel the two minor was contrary to the Best Interest of the two minor Petitioners; whether the action of the Respondents to expel the two minor Petitioners violated the Basic Education Act, Children's Act, Fair Administration Actions Act and the Constitution thus illegal, unlawful and unconstitutional; whether the action of the Respondents to expel the two minor Petitioners was precipitate, hasty, petty, malicious, capricious, draconian, and discriminatory and amounted to cruel, inhuman or degrading; whether the two minor Petitioners are entitled to General damages for psychological, social, economic and physical torture, trauma, inhuman and degrading treatment and whether the action of the 3rd Respondent violated the Teachers Service Commission Code of Conduct and Ethics.”

22. On the first issue, Counsel asserted that indeed the Respondents had violated this right. Counsel submitted that the Constitution under Article 53 (2) of the Constitution requires the Court to give regard to the best interests of the child. This is also echoed under Section 8 of the Children Act. Further this Article under 53(1)(b) as read with Section 4 of the Children Act provides that every child has the right to compulsory education. Reliance was placed in the Committee on the Rights of the Children General Comment No. 14 (2013): The Right of the Child to Have His or Her Best Interests where it was stated that:The "best interest" of the child is described by the Committee as a "dynamic concept that encompasses various issues which are continuously evolving." Due to the complex nature of the best interests of the child, its content must be determined on a case by case basis. It is flexible and adaptable and should be assessed and determined according to the specific situation and circumstances of the children concerned.

23. Like dependence was also placed in Committee on the Right of the Child General Comment No. 5: The General Measure of Implementation of the Convention on the Rights of the Child and Committee on Economic, Social and Cultural Rights General Comment No. 13: The Right to Education (Art. 13), MAK v RMAA & 4 others [2023] KESC 21 (KLR) and HOO v MGO [2021] eKLR.

24. Counsel in the second issue further submitted that the Respondents are required in carrying out their function to uphold the legal principles set out in these statutes. Particularly, Section 4 of the Basic Education which outlines the guiding values and principles to be upheld in basic education and Section 4 (3) of the Children Act.

25. Counsel submitted therefore that the Respondents action had effectively violated Articles 10, 27, 28, 29(f), 43(1)(f), 47, 50 and 53 of the Constitution. This is because the Respondents expelled the minors without granting them a fair administrative action and fair hearing. Reliance was placed in Judicial Service Commission v Mbalu Mutava & another (2014) eKLR where it was held that:“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountabilitJ1. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed."

26. On the third issue, Counsel was certain that the Respondents draconian action was discriminatory amounting to cruel, inhuman and degrading treatment. This is because the Respondents expelled the minors despite them having fulfilled the criteria of admission and paying the school fees. Further that the expulsion was done without regard to the due process stipulated in the law. Equally that the minors were denied education in total disregard of the dictates of the Constitution, Children Act and the Basic Education Act. In like manner the minors were denied access to food, extra curriculum activities and use of the school’s amenities and further subjected to ridicule and psychological torture by their fellow students.

27. Reliance was placed in Mohammed Abduba Dida vs. Debate Media Limited & Another [2018] eKLR where it was held that:“A broad and liberal interpretation of the provisions would mean that not only is discrimination on the grounds classified or specified prohibited, so too are any other grounds not specifically referred to by the provisions. So that discriminatory conduct would not merely be limited to the classifications set out, but could also include, any other ground, not specified by Article 27 (4) and (5)".

28. It was submitted that in light of the foregoing violations, the minors were indeed entitled to an award of damages as they had endured psychological, social, economic and physical torture, inhuman and degrading treatment. As a result it was stated that the minors have to undergo psychotherapy. Additionally, the minors having been expelled, missed a number of school lessons.

29. Reliance was placed in GNB & others vs. Attorney General [2018] eKLR where it was held that:“35. An injury suffered as a result of discrimination, harassment or inhuman and degrading treatment is no less real because it does not possess tangible physical or financial consequences. And the difficulty in assessing the amount of compensation for that type of injury should not deter a court from recognizing its potential."

30. Similar dependence was placed in Antony Murimi Waigwe v Attorney General & 4 Others [2021] eKLR.

31. On the final issue, Counsel submitted that the minors were under the care of the 3rd Respondent being the Head Teacher – Junior Academy. Considering this, Counsel stressed that the 3rd Respondent had violated Regulations 4, 5, 6, 7, 8, 9, 12(1), 19 and 20 of the Teachers Service Commission (Code of Conduct and Ethics for Teachers) Regulations, 2015. In essence, Counsel submitted that the Code affirms that a teacher’s position is of public trust and the authority of the office ought to be exercised in the best interests of the learners.

Respondents’ Submissions 32. On 31st January 2024, O & M Law LLP filed submissions for the Respondents’ and highlighted the issues for determination as:“whether Dena Atieno has the locus standi to institute or sustain the Petition; whether this Court has jurisdiction to entertain the Petition; if the answer to (a) & (b) is in the affirmative, whether the Petitioners have met the threshold of a constitutional petition; and whether the rights of the Petitioners have been violated.”

33. Counsel at the onset challenged the minors’ mother legal standing. This argument was pegged on the fact that the mother was not a party to the agreement with the school that allowed the minors to be enrolled there for learning. Second Counsel contended that the mother did not file a written authority as required under Order 32, Rule 1(2) of the Civil Procedure Rules, 2010 which is a mandatory requirement. Reliance was placed in Stephen Gachethire Ranjau (suing as next of kin to Irene Wanjira Stephen) v Robert Muchai [2005] eKLR where it was held that:“Were the provisions of the above rule complied with? On perusal of the court file the only pleadings on the file are the plaint and the verifying affidavit. No written authority by the next friend was signed by the next friend to the advocate for the purpose of instituting the suit and there is no copy on the file of such signed authority. This absence of the signed and filed authority by the next friend to the advocate means that if the defendant had appeared in this matter, he would have invoked the provisions of Order 31 Rule 2(1) to have the suit dismissed. Defendant or no defendant, this court has to determine whether the absence of the signed and filed authority by the next friend is fatal to the plaintiffs’ suit. The provisions of Rule I of Order 31 is couched in mandatory language, so that where there is no signed and filed authority by the next friend, the suit is liable to be dismissed. In my view therefore, and having failed to comply with the requirements of Rule 1 of Order 31, the next friend could not properly have filed the suit on behalf of the plaintiff minor when he purported to do so on 14. 7.2003. I would therefore dismiss the suit on that ground.”

34. Similar dependence was placed in DN (Suing as Father and next friend of SA) v Ndirangu Lydia & 2 others [2019] eKLR and Rickey Antoney Muluyia v Rebeccah Achondo Muluyia & 2 others [2019]eKLR.

35. Furthermore, Counsel submitted that this Court does not have jurisdiction to entertain this matter as the dispute revolves around a private contract agreement between the 1st Respondent and the Nixon Bugo that was effectively terminated. Counsel stressed that this issue is not a constitutional issue to warrant invoking this Court’s jurisdiction and thus this is not the appropriate forum. Reliance was placed in Kapi Ltd & Anor. V. Pyrethrum Board Of Kenya [2013]eKLR where it was held that:a.The proceedings before the court do not seek interpretation of any Constitutional rights and should not be brought by way of a petition;b.The proceedings before the court seek the determination of competing private rights to property between private corporate persons and therefore can only be determined by a substantive suit for recovery of or protection of the suit property;c.The petitioners herein also seek determination of private contractual rights and this cannot be achieved or litigated through a constitutional petition but can only be properly determined through a substantive formal law suit;d.There is no constitutional matter between the state and its citizens to be determined in this petition and therefore the petitioner has come before the court using an entirely erroneous process for determination of its grievances and the court is cannot make any of the orders sought.”

36. Similar dependence was placed in Republic v National Environmental Management Authority [2011] eKLR and Civil Appeal No. 84 of 2010, Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR.

37. Counsel further stressed that the relationship between the two was purely contractual. To buttress this point reliance was placed in of J N N, (a Minor) M N M, suing as next friend v Naisula Holdings Limited t/a N School [2018] eKLR where it was held that:“It is not disputed that there exists a binding contract signed by the school, the minor and the parent. The terms are clear. The fees paid is not refundable upon expulsion as in this case. I agree with the Respondents counsel that a court of law cannot purport to re-write a contract voluntarily executed by parties. It cannot be denied that relationship between the parties in this case is governed by the contract in question. The petitioner is now inviting this court to rewrite the contract in question.”

38. Turning to the third issue, Counsel submitted that for a petition to pass this threshold, it must raise a constitutional issue which the instant Petition fails to do. Reliance was placed in Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others [2002] 23 ILJ 81 (CC) where it was observed as follows:“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of....the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State, the interpretation, application and upholding of the Constitution are also constitutional matters. So too, is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.”

39. Equal dependence was placed inJames Kuria v Attorney General & 3 others [2018] eKLR and Hakizimana Abdul Abdulkarim v Arrow Motors (EA) Ltd & another [2017] eKLR.

40. On whether the Respondents had violated the Petitioners rights, Counsel submitted that the Petitioners are required to demonstrate such a violation as required in Anarita Karimi Njeru v Republic [1979] eKLR. In this matter, Counsel stressed that the Petitioners’ had failed to prove how the Respondents had violated their rights. Further that the Petition is premised on a misconception that the minors were expelled from the school.

41. Likewise, Counsel submitted that the private service contract does not provide for a process or hearing prior to the termination thereof and removal of a pupil from the School. Counsel noted that this position was upheld by the Supreme Court of South Africa in A B and Another v Pridwin Preparatory School and Others (1134 of 2017) [2018] ZASCA 150 (1 November 2018) where the Court endorsed the common law principle of pacta sunt servanda and upheld private school’s decision to terminate a contract with parents.

42. Additionally Counsel submitted that the right to education is a right placed in the State not private schools as held in JK (Suing on behalf of CK) v Board of Directors of Rusinga School & another KEHC 7490 (KLR).

43. In light of the foregoing Counsel submitted that the Petitioners’ were not entitled to the reliefs sought. Further that the minors’ parents had the option of enrolling the Minors in a different institution once they were removed from the 1st Respondent which is a private institution. Equally, it was noted that the alleged violations had not been proved.

Analysis and Determination 44. In my view the issues that arise for determination in this matter are as follows:i.Whether the Petitioner has locus standi to file this Petitionii.Whether the doctrine of Constitution avoidance applies as against this Petition.iii.Whether the Petitioners’ rights under Articles 27, 28, 29(f), 43(1) (f), 47, 50 and 53 of the Constitution were violated; andiv.Whether the Petitioners are entitled to the reliefs sought.

Whether the Petitioner has locus standi to file this Petition 45. The meaning of the term locus standi was explained in Daykio Plantations Limited vs National Bank of Kenya Limited & 2 others [2019] eKLR as follows:“…In the case of Law Society of Kenya …Vs… Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that ;-“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others ..Vs.. City Council of Nairobi ( 1982) KAR 229, the Court also held that;-“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’…”

46. Article 22 (1) of the Constitution provides that every person has a right to institute proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated or infringed or is threatened. In 22 (2); it provides further that; In addition to a person acting in their own interest, Court proceedings under clause (1) may be instituted by-a.a person acting on behalf of another person who cannot act in their own nameb.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members

47. The content of the above Article is reproduced as Rule 4 in the ‘Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013’.

48. The Court of Appeal in Randu Nzai Ruwa & 2 others vs Secretary, the Independent Electoral and Boundaries Commission & 9 others [2016] eKLR while considering the provisions of Article 48, 22 and 258 of the Constitution among others stated:“While Article 48 of the Constitution recognizes the importance of access to justice as an essential instrument for the protection of human rights, it must, at the same time be borne in mind that… Taken together with Articles 22, and 258 these Articles are a stark departure from the narrow scope of Section 84 of the former Constitution in so far as the concept of locus standi is concerned. The former Constitution and the cases decided during its reign provided and held in no uncertain terms that only a party aggrieved and whose interests were directly affected could institute proceedings for protection, under the Bill of Rights… Each of the first two Articles starts with the phrase “Every person has the right to institute court proceedings.” They also provide that that person may either bring the proceedings as an individual in his/her own interest. He/she can, in addition bring proceedings in many other capacities, on behalf of persons who cannot act in their own name, or as a member of or in the interest of a group or class of persons, … In this broad context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution …”

49. Guided by the Constitution and above authority from the Court of Appeal, the submission by the Respondent that the mother of the minors whose rights were allegedly violated cannot file a Petition on their behalf is untenable as the issue at hand is violation of rights and fundamental freedoms in the Constitution and such Petition can instituted on behalf of another person who cannot act in his or her name as this case, the minors.Whether the doctrine of Constitution avoidance applies as against this Petition.

50. The Respondents contended that the Petition does not raise any constitutional issues, that the dispute is governed contract between the 1st Respondent and the minors’ father hence it against the doctrine of constitutional avoidance to invoke the Constitution to resolve such a dispute.

51. The doctrine of Constitutional avoidance asserts that disputes or controversies that can be dealt with by any other legal basis without resorting to the Constitution should not be entertained as Constitutional controversies.

52. Although it is acknowledged that the High Court has wide jurisdiction under Article 165 to interpret the Constitution, that jurisdiction has to be exercised in conformity with established legal principles as was observed in Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] eKLR citing with approval Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another [2020] eKLR, where the Court stated as follows:“It is appreciated that the cited decision does indeed recognize that the unlimited jurisdiction of the High Court of Kenya under Article 165(3)(b) of the Constitution to determine questions on whether a right or fundamental freedom has been infringed or violated. Nevertheless, it must be appreciated that the High Court does not exercise its jurisdiction in a vacuum. Jurisdiction is exercised within the laid down principles of law …”

53. And as to what amounts to a Constitutional question or controversy, that was answered in the case of Hakizimana Abdoul Abdulkarim vs Arrow Motors (EA) Ltd & another (2017) eKLR as follows:37. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute… When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values. …40. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others in which Justice O’Regan recalling the Constitutional Court’s observations in S vs. Boesak notes that:-“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ........the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State..., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,..., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.”41. Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.42. The Petition before me does not raise any constitutional questions at all. This court abhors the practice of parties converting every issue in to a constitutional question and filing suits disguised as constitutional Petitions when in fact they do no not fall anywhere close to violation to constitutional Rights.”

54. In the instant matter, the Respondents argue that the matter before the Court is a contractual dispute between the 1st Respondent and the minors’ father hence should be resolved through application of the principles of the law of contract. Nevertheless, it is manifest that the Petitioners have set out the various rights and fundamental freedoms in the Constitution that they allege were violated and also describe in detail how the violation occurred in the light of the actions taken by the Respondents in relation to the minor petitioners.

55. The rights that were allegedly infringed or violated are specified in the Petition as falling under Articles 27, 28, 29 (f), 43 (1) (f), 47, 50 and 53 of the Constitution. Article 165 (3) (b) empowers this Court “to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.” This Court has a Constitutional obligation interrogate these allegations and determine if there was violation of fundamental rights and freedoms as stated. The Petition as framed cannot thus be dismissively waived of as a mere contractual dispute.Whether the Petitioners’ rights under Articles 27, 28, 29(f), 43(1) (f), 47, 50 and 53 of the Constitution were violated;

56. It is important to begin by underscoring that the Petitioner has a duty to prove the allegations pleaded in the Petition. That was the holding of the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) eKLR which opined as follows:49. Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”50. This Court in Raila Odinga & Othersv. Independent Electoral & Boundaries Commission & Others, Petition No. 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:“…a Petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”

57. Correspondingly, in Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh (2021) eKLR the Court noted as follows:22. I also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”16The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

58. In the instant case, the Petitioners claimed that the Respondents violated the minors’ rights under Article 27 of the Constitution. The relevant sub-articles reads:4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

59. The question therefore becomes, did the Petitioner establish discrimination of the minors before this Court?

60. The Supreme Court in Gichuru vs Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) (22 October 2021) (Judgment) guided as follows in a matter that alleges discrimination:50. In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows:“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex .... a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”51. From the above definitions, it is clear that discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex disability etc or due to unfair practice and without any objective and reasonable justification.”

61. In the present Petition, the burden of proving discrimination lay on the Petitioners. It was not enough to say minors were discriminated without adducing evidence of that discrimination. In the instance case, there was no evidence tendered that discrimination was done on any of the prohibited grounds specified under Article 27. Further, the Petitioners did not bring forth any facts to demonstrate that there were other children in the exact similar situation as the minors, that is where the father or parent had irreconcilably differed with the Institution but only the two minors were singled out for removal from the 1st Respondent learning Institution. I do not find the claim of discrimination proved.

62. The other allegation that was made on behalf of the Petitioners is that their right to education was violated as a result of the action taken against them by the Respondent of removing them from the school following what the 1st Respondent termed as termination of the contract between the 1st Respondent and the father of the minors. This right to education falls under the economic and social rights in particular, Article 43(1). The specific provision provides as follows:Every person has the right—f.to education.

63. Analyzing the right to education under Article 43(1) (f) of the Constitution, the Court in Joseph Njuguna & 28 others vs George Gitau T/A Emmaus School & another (2016)eKLR held as follows:39. It is key to observe that this right is placed on the State such that, where the State does not have resources to implement a right under Article 43, the State has to either show that it does not have the resources or it will give priority to ensuring the widest possible enjoyment of the right to prevailing circumstances, including the vulnerability of particular groups or individuals. The provision under the Bill of Rights applies to all law and binds all State organs and all persons. To ensure this right, the Basic Education Act (supra) enjoins the Cabinet Secretary to implement the right to basic education as enshrined under Article 53. 40. As stated above, public and private institutions are categorized as basic education institutions. However, what is the role of private institutions with regard to education? Are they enjoined to ensure the realization of the right to education and by extension, the right to free and compulsory basic education?41. Mumbi Ngugi J., while addressing the right to education and the place of private schools in the case of J.K (Suing on Behalf of CK) v Board of Directors of R School & another [2014] e KLR, observed that:“It is indeed correct that Article 43 guarantees to everyone the right to education. The constitutional responsibility is placed on the state to achieve the progressive realization of the rights set out in Article However, there is no obligation placed on a private entity such as the respondent school to provide such right;”42. I do agree with the above proposition as the correct legal position.43. I further wish to state that, the services offered by a private entity are akin to a contract, where each of the parties has an obligation. The private school in fulfilling its obligation has to ensure that it provides proper and a conducive learning environment. The parents or guardians have to ensure that they pay the requisite fee so that the child is offered the services rendered in the private school. A private school cannot be equated to a public school, where free tuition is offered and charges can only be imposed with the approval of the Cabinet Secretary.”

64. Given therefore that the right to provide education rests on the State, it goes without saying therefore that is no constitutional obligation on a private education institution to provide education. The relationship between such an institution and the beneficiaries of its services thus squarely rests on the arrangement that they have entered into.

65. It is thus ill-conceived for the Petitioners to claim that the action by Respondents violated or denied them the minors the right to education since the Respondent is a private educational institution which is under no constitutional obligation provide them with education. The claim lies in breach of contract and not the violation of Article 43 (1) (f) of the Constitution by the Respondents as right to provide education rests on the State.

66. In regard to violation of Article 53(1) of the Constitution, it provides as follows:Every child has the right --b.to free and compulsory basic education;

67. My finding in respect of Article 43 (1) (f) applies in equal force to Article 53 (1) as well. It is the State that has an obligation to provide compulsory free basic education. The present Petition does not concern provision of basic compulsory education. The minor Petitioners were already enrolled in a private education institution belonging to the 1st Respondent which was offering education on terms that were agreed between the 1st Respondent’s Institution and the minors’ father. Article 53 (1) does not therefore apply.

68. The next issue is on the best interest of the child under Article 53(2) of the Constitution. The Constitution provides as follows:2. A child’s best interests are of paramount importance in every matter concerning the child.

69. What the Constitution requires is that in every decision affecting a child, the impact of the decision of a child must be given foremost consideration in designing the appropriate steps or interventions to be taken which must be considered on a case-by-case basis. The Supreme Court considered the principle in MAK v RMAA (supra) and observed as follows:66. The children’s rights legal regime (the Constitution, Children Act (repealed), CRC, and the African Charter on the Rights and Welfare of the Child) emphasizes the centrality of the best interest of the child. The best interest of the child is determined by the circumstances of the case as they specifically relate to the child. This comprises the principles that prime the child’s right to survival, protection, participation, and development above other considerations and includes the rights contemplated under article 53 (1) of the Constitution. As such, the focus must be on the child and what is best for him/her.67. In addition, there is no hierarchy in the children’s rights provided for under the Constitution. In other words, all the rights provided under article 53 are in the child’s best interest. The ‘best interests’ concept is further strengthened by being the ‘paramount’ consideration. This means that the best interests of the child are to be the determining factor when making a decision on the child. It is against this aspect that parental rights ought to be balanced. This is also taking into consideration that no right should be compromised by a negative interpretation of a child’s best interest.”

70. Similarly, the Court in M W K and another vs Attorney General & 3 others [2017]eKLR discussed as follows:69. Contrary to the position pre-2010, our constitutional dispensation has ushered in a new era – an era where the best interests of a child must be accorded paramount importance in all matters affecting the child – an era where we, as society, are committed to raising, developing and nurturing our children in an environment that conduces to their well-being…”

71. In the South African case of AB v Pridwin Preparatory School (2018) ZASCA 150 the Supreme Court of Appeal was faced with a similar situation that involved a private school terminating parents’ contract with the effect that the minors were affected. The Court, in rejecting argument advanced by the parents that the decision taken by the school in terminating the contract went against the best interest principle the children since children were not heard, explained as follows:“… It is not only the dignity of DB and EB that needs protection, but also dignity of every other child and every other person at the School. This means that every person’s rights are worthy of equal consideration. This includes the right of the School to enter into and terminate contracts freely in accordance with their terms, and the freedom to associate and to disassociate with whomsoever it wishes… Bearing this in mind the argument that S 28(2) gives rise to an implied right to be heard before a parent contract is terminated, falls flat. It is not a right that arises generally from S 28(2), and it cannot be deployed to limit a party’s rights to terminate a contract on notice. [34] If it were otherwise this would entitle a lessee to a prior hearing whenever a lessor wishes to terminate a lease, if there are children on the property. It would also mean, as counsel for the appellants was constrained to accept, that if the appellants themselves wished to terminate the contract, in accordance with clause 9. 2, they would first have to give the School a hearing. Even more preposterous is the idea that the School or a lessor would not be able to rely on a breach clause before cancelling a contract, without affording a hearing to the aggrieved party, which is the unavoidable consequence of the appellants’ stance…”

72. The main grievance by the Petitioners was the unfairness exhibited by the Respondents in expelling the minors from school for the differences between their father and the 1st Respondent through its management. The Respondents argued that once the relationship between them and the father irreversibly broke down, it terminated the contract between the Institution and the parent. The breakdown was so pronounced that even the Petitioner in her second further affidavit sworn on 28th July 2023 acknowledges that the 1st and 2nd Respondent have filed pending defamation suit at Milimani Chief Magistrate Court Civil Case No. E3304 of 2023.

73. A number of incidents are also cited in the Respondent’s replying affidavits as having also led to deterioration of the relationship that caused the Institution to terminate the contract.

74. Angelica Ouya, who deponed her affidavit on 31st October, 2024 stated that she has been an employee of the 1st Respondent since January, 2015 as the Director of Education at the School. She attested to inexplicable personal vendetta that the minors father exhibited towards senior management staff at the Institution specifically citing an incident a Ms. Lyn Nowell, School’s former Director of Education and Development Consultant was prevented from attending a PTA meeting chaired by the minors father against the direction of the School which disoriented her and had to comfort her as she organized for her transport home.

75. Catherine Nyangi, also deponed an affidavit as the school’s former Communications Manager and Marketing and Sales Director. She alluded to several incidents in which the minors’ father belittled and disrespected her.

76. The combination of the numerous incidents of hostility between the minors’ father and the 1st Respondent and its Senior Management is what culminated into termination of the parent and the institution’s contract that impacted on the learning of the minors at the Institution.

77. The petitioners are however aggrieved that the action on the minors was unreasonable and done without according them an opportunity for a hearing being given by the respondents hence it violated their rights under Article 47 of the Constitution.

78. Article 47 is on the fair administrative action; it provides as follows: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.

79. The complication in this matter is brought about by the fact that there are minors entangled in it. Apparently, their father and the 1st Respondent, a private institution fell out and the 1st Respondent decided enough was enough and decided to bring the parent-school relationship to an end thereby impacting on minors who were beneficiaries of the contractual relationship but had nothing to do with the dispute.

80. The question is, was there a duty on the part of the school to inform the minors that it was ending the contractual relationship with their father? I think not.

81. Again, if the relationship between the father and the school had irreversibly broken down and they could no longer get along at the level of the parent and the private school institution, could the school end the parent-school relationship notwithstanding that it would have adverse effect on learning of the minors at the institution?

82. Again, I think that without any existing contractual relationship between the parent and the private school upon which the learning of the minors was anchored, the position of the minors remaining in the school was without doubt indefensible.

83. The relationship between the father and the school rested on the contract and the aggrieved party could only sue in contract. When it was terminated, just like when a lease is terminated and there are children living in a house who have a right to shelter, the landlord has no obligation to accord the children a hearing. It is the parents’ duty to explain to the children.

84. In my considered opinion, the 1st Respondent should have at all times directly dealt with the parents on the question of terminating their relationship with the school. Once the information got to the parents, it was up the parents to consider how best to deal with that situatuin including relaying the information to minors affected by the school decision as this was not a controversy between the school and the children. If there was violation of rights of the minors by the Respondents, it was of a different kind but breach of administrative act and this is what takes me to the next issue.

85. I now turn to consider the rights of the minors under Article 28 and 29 (d). Under Article 28, the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected. Article 29 states that every person has right to freedom and security of the person, which includes the right not to be: (d)- subjected to torture in any manner, whether physical or psychological.

86. Although it was within the rights of the 1st Respondent to terminate the contract in accordance with terms of the contract, it could not rely on the terms contract to violate the rights of the minors that the Constitution guarantees.

87. Considering that that the minors were unaware of the differences between their father and the school that led to termination of the contract and which rendered their stay in the school no longer tenable, due to the lapse of the parent-school contract under which they were the beneficiaries; I do not find the manner in which the Respondents treated the minors to be in accord with dignity of the minors.

88. They were physically ejected from the classroom and isolated from the rest of the pupils. In the further affidavit of their mother, DA sworn on 14th July, 2023; she depones:“2. That my minor children RAB and RAB in grades 3 and 4 respectively at Makini School reported to School on Thursday 13th and Friday 14th July, 2023. “3. That Catherine Njuguna, Head Teacher- Junior Academy (3rd Respondent, herein) purporting to implement the instruction of (horace Mpanza) (the 2nd Respondent herein) ejected the two minors from the class on Thursday 13th and Friday 14th July and relocated them to the library where I picked up the minors.”“4. That I was informed by my Advocate on record, which information I believe to be true, that he received via email a letter dated 13th July 2023 from the Advocates of the 1st Respondent demanding that I stop sending the two minors RAB and RAB to school. (Annexed and marked DA- 1 (a) is copy of the said letter.”“5. That the expulsion of the two minors RAB and RAB has caused tremendous psychological effect on the minors and immeasurable stress and agony to me.”

89. In her second further affidavit sworn on 28th July, 2023; the Petitioner’s mother swore as follows:“21. That following the experience of my two minor children RAB and RAB in grades 3 and 4 respectively at Makini School, they have been withdrawn and exhibited lack of sleep with one of them bedwetting.”“22. That the two minors have been attended to at the hospital and were diagnosed with conversion syndrome that affects their brain works and Noctuenal Enuresis (bedwetting) as a result of psychological stress.”“23. That the doctor attending to them has recommended continuous physiotherapy and guidance. Annexed and marked D-3 is copy of the respective medical summary.”

90. It is clear to me the treatment that the Respondents subjected the minors to was unwarranted and disrespectful and an affront to their dignity. Further as proved by the medical notes, it impacted on their psychological well-being. I thus find that they violated the minors’ rights under Articles 28 and 29 (d) of the Constitution.

91. I thus find that this Petition partially succeeds from this viewpoint only.Whether the Petitioners is entitled to the relief sought

92. Having found that the Respondents violated the rights of the minors under Articles 28 and 29 (d) of the Constitution, the task ahead is now to consider the reliefs that the Court should grant, regard being on the principles applicable in granting reliefs in matters involving constitutional violations.

93. The Supreme Court in Charles Muturi Macharia & 6 Others v Standard-Group & 4 Others (SC Petition No.13 (E015) of 2022) guided as follows:91. By the provisions of Articles 22 and 23 of the Constitution, the High Court has the power and authority to enforce and uphold the Bill of Rights in claims of infringements. In proceedings brought by any person claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened, the court may, under Article 23 grant appropriate relief, including:“a.a declaration of rightsb.an injunctionc.a conservatory orderd.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24. e.an order for compensationf.an order of judicial review.”92. This Court in the case of Gitobu Imanyara & 2 Others v. Attorney General, SC Petition No. 15 of 2017, described Article 23 as “the launching pad of any analysis on remedies for Constitutional violations”. This statement has repeatedly been made in other decisions like Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae), SC Petition No. 3 of 2018; [2021] KESC 34 (KLR) and others. As a launching pad, it is acknowledged that the list of six remedies in Article 23(3) is not closed; that the court can grant any other appropriate relief not included in the list; that whether or not to grant a constitutional relief is an act of judicial discretion which must be exercised upon known legal principles and not arbitrarily, whimsically or capriciously.”131. The Superior Court proceeded to note as follows:“94. To answer directly the question posed by this issue, under common law principles, it is settled that an injured party is entitled to damages for the loss and injury suffered under private law causes of action, like in tortious claims. In situations like those, compensation for personal loss depends on proof of such loss or damage. However, arising out of the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awardable are broadly compensatory or vindicatory, as should be apparent from the list of examples of reliefs in Article 23. While it is not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy. In deserving cases, the redress may be in the form of an award of damages to compensate the victim. In some cases, a suitable declaration, an injunctive or conservatory order, or an order of judicial review will suffice to vindicate the right.95. In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum will afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation will take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. We stress that the purpose of constitutional relief of an award of compensation is not necessarily intended to punish the violator, but only to vindicate the right of the victim.….Therefore, once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. For these reasons, it can be said that the approach in awarding damages or compensation in constitutional rights violation cases is different from that in tortious claims….”

94. The Court of Appeal in Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR pronounced as follows:“…the South African Case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 where the Constitutional Court of South Africa held that:“...The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.“…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.”

95. The Court of Appeal in Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others [2021] KECA 328 (KLR) further noted as follows:15. The relevant principles applicable to award of damages for constitutional violations under the Constitution were also explained by the Privy Council in the case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No 13 of 2004. It was held by Lord Nicholls at Paragraphs 18 & 19 that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense as follows:.“When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.”16. The guiding principle to be gleaned from these decisions is that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.”

96. Guided by the above principles, I grant the following reliefs:1. A declaration is hereby issued that the manner in which the 1st Respondent through its agents treated the minors following its decision to terminate the 1st Respondent contract with their father violated their inherent dignity under Article 28 and the minors’ mental and psychological well-being in violation of Article 29 (d) of the Constitution.2. Compensation in form of general damages- Kshs. 600, 000/- (Six hundred thousand shillings only) is awarded.3. Costs of this Petition.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF FEBRUARY, 2025. ……………………………………..L N MUGAMBIJUDGE