Application 1
1. By a Notice of Motion Application dated 24 th February 2026, the Petitioner seeks orders that:
i. Spent.
ii. The Court be pleased to issue an order directing the Registrar of the Court to mark the Petition as concerning a child and to consequently restrict access to and availability of all records of the Petition accordingly.
iii. The Court be pleased to issue an order directing that the following shall not be published or revealed by any person in any publication or report in relation to this Petition: name, identity and school registration number of A.O.A; any school and medical records of A.O.A produced in these proceedings; any information that may lead to the public identification of A.O.A; and any particulars of Edwin Abuya that may lead to the public identification of A.O.A.
iv. The Court be pleased to issue an order restraining the parties from disclosing to any third parties any information or particulars of A.O.A or Edwin Abuya that may lead to the identification of A.O.A, except as is strictly necessary for purposes of the proceedings.
v. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue an order directing the Respondents to immediately re-admit A.O.A back to the 1 st Respondent for purposes of continuing with education.
vi. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue a prohibitory order restraining the Respondents from suspending, expelling, excluding or in any manner preventing A.O.A from continuing with education in the 1 st Respondent.
vii. The Court be pleased to issue any other order/direction that it may deem just and expedient to issue.
viii. Costs of this Application be in the cause.
2. The Application is supported by the Petitioner’s affidavit of even date and the grounds on the face of the Application.
3. The Petitioner depones that the A.O.A was removed from school on 16 th January 2026, when the Respondent discovered that he had five electronic cigarettes (vapes) in his bag and had also absconded clubs and societies on that day. As a result, the Petitioner was advised to keep A.O.A from school and await communication from the 1 st Respondent.
4. He alleges that the 2 nd Respondent who is the principal, released five learners who were female but reprimanded the other five males who were together with A.O.A at the material time. He adds that one male minor of Indian ethnic decent was released all together and not summoned like the others.
5. He depones that a disciplinary meeting was held on 20 th January 2026 where he and the minor attended. He asserts that the proceedings were conducted by the 1 st Respondent’s staff and that there was no official from the Sub-County Education Office present as required by law. He notes that A.O.A informed that on that day, he had left his bag unattended in class where the cigarettes were put in his bag by another student.
6. He depones that following the proceedings and on the same day, the 2 nd Respondent issued him a letter informing that the minor had been suspended indefinitely. The letter also mandated him to subject A.O.A to outside rehabilitation programs and counselling using approved bodies or personnel, which he did at Mater Misericordiae Hospital, Nairobi, and issued a report to the 1 st Respondent.
7. He asserts that despite his consistent follow-ups on the way forward and amicable resolution, the Respondents ignored the same and remained silent until 9 th February 2026 when the 2 nd Respondent, abruptly informed him through the letter that A.O.A had been expelled from the 1 st Respondent.
8. He lamented that at the time of filing the Application, the minor had been out of school for 40 days.
9. He contends that the Respondents actions continue to deny A.O.A the rights under Article 27(1), 43(1)(f) and 53(1)(b) & 53(2) of the Constitution thus seeks this Court’s intervention.
Application 2
10. By a Notice of Motion Application dated 26 th February 2026, the Petitioner seeks orders that:
i. Spent.
ii. The Court be pleased to reconsider/revisit its orders of 25 th February 2026 by granting Orders 5 and 6 sought in the Application dated 24 th February 2026, being:
iii. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue an order directing the Respondents to immediately re-admit A.O.A back to the 1 st Respondent for purposes of continuing with education.
iv. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue a prohibitory order restraining the Respondents from suspending, expelling, excluding or in any manner preventing A.O.A from continuing with education in the 1 st Respondent.
v. In the alternative to (2) above, the Court be pleased to direct Counsel for the Applicant/Petitioner to urgently appear before the Judge as soon as possible but in any case, within two (2) days hereof to be heard on Orders 5 and 6 as sought in the Application dated 24 th February 2026, which are of utmost importance in ensuring that A.O. A is able to resume his education without further delay.
vi. The Court be pleased to issue any other order/direction that it may deem just and expedient to issue.
vii. Costs of this Application be in the cause.
11. The Application is supported by the Petitioner’s advocate, Dr.Owino Owiso’s affidavit of even date and the grounds on the face of the Application.
12. By way of background, A.O.A is a student of the 1 st Respondent who was expelled from school, mid-way through the school term on 16 th January 2026.The legality and lawfulness of the expulsion is the subject of the Petition.
13. Counsel depones that this Court in its orders dated 25 th February 2026 declined to grant Orders 5 and 6 which were sought in the Application dated 24 th February 2026, essentially, directing the Respondents to allow A.O.A resume school.
14. Counsel is apprehensive that A.O.A is going to miss at least 65 days of the school term if the Court does not intervene. Counsel stresses that this would not be in the best interest of the minor as envisaged under Article 53(2) of the Constitution and impedes the minor’s enjoyment of his right to compulsory basic education as enshrined under Article 43(1)(f) and 53(1)(b) of the Constitution as well as the Children Act and the Basic Education Act and International law.
15. Counsel claims that the Respondents will not suffer any prejudice if the minor is allowed to resume his studies, pending determination of the Petition.
Respondents’ Case
16. In response to the Application, the Respondents through the 2 nd Respondent filed a Replying Affidavit sworn on 23 rd March 2026.
17. He is the 1 st Respondent’s Principal and on the onset asserts that the Petitioner has failed to exhaust the statutory mechanisms set out under Regulation 40 and 41 of the Basic Education Regulations, before the Educations Appeals Tribunal. Further to this, he argues that the Fair Administrative Action Act relied on by the Petitioner provides under Section 3 that it applies to state agencies and non-state agencies. He asserts that the 1 st Respondent is a non-state agency with quasi-judicial functions hence the Petition is defective as ought to have been litigated through a judicial review.
18. According to him, the Petitioner in the application dated 24 th February 2026, sought conservatory orders and hence required to satisfy the set elements for grant of such an order. In his opinion, the Petitioner did not demonstrate that he has a prima facie case with a likelihood of success. Equally that unless the Court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation.
19. He avers that Regulation 51 of the Basic Education Regulations, provides that any person requiring education may attend a private school. As such, he reasons that the Petitioner has an option of admitting A.O.A to any other private learning institution other than the 1 st Respondent.
20. Speaking to the genesis of this matter, he depones that A.O.A during the disciplinary hearing held on 20 th January 2026, admitted to being aware of the electronic cigarettes that were placed in his bag by another student, however failed to report the same to the 1 st Respondent. He notes that action was also taken against all the students who were involved in the matter.
21. He states that A.O.A was suspended on 20 th January 2026 on the allegations of possession of electronic cigarettes (vapes) and failing to attend clubs and societies, in accordance with Regulation 38 of the Basic Education Regulations.
22. He adds that Regulations 39 and 40 of the Basic Education Regulations, mandate a learning institution to expel a learner from a learning institution. He notes that the County Director of Education and the County Education Board are only mandated to act after the recommendation of the Board of Directors, two days upon making the decision.
23. He states that in their letter dated 9 th February 2026, they informed that the A.O.A would no longer be a student at the 1 st Respondent. He asserts that the 1 st Respondent is not equipped to provide special education or facilities for students like the minor arising from drug related issues.
24. He concludes by stating that the right to education is not a non-derogable right under Article 25 of the Constitution and thus its enjoyment is subject to the rules and regulations governing the learning institution. Equally, he contends that the best interest of a child under Article 53 of the Constitution must be weighed against the best interests of the other students in the school. On this premise, he emphasizes that the 1 st respondent has a duty to ensure A.O.A’s enjoyment of his rights does not prejudice the rights of the other students.
25. In his considered view, reinstatement of AOA before determination of the issues raised in the Petition will set a bad precedent and encourage disobedience by other students of school rules, on the notion that disobedience does not attract any consequences.
26. Be that as it may, he depones that during the disciplinary hearing, they recommended that A.O.A be counselled. He states that vide a letter dated 23 rd January 2026, by Mater Misericordiae Hospital, they were informed that A.O.A still requires continued structured psychological therapy. He asserts that the school is unable to provide the kind of care that the minor requires to move forward with his education.
Petitioner’s Submissions
27. The Petitioner through OLC Law Advocates LLP filed two sets of submissions dated 8 th and 23 rd March 2026.
28. To begin with, Counsel submitted that the principles for grant of an interim order are captured in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015] KEHC 2174 (KLR) as follows:
“Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:
“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.
…
Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights: see Patrick Musimba –v- The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.
Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects, the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.
The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.”
29. Counsel submitted that it is evident that the Petition raises serious questions of violation of a minor’s rights, the unlawful exercise of authority by the Respondents which is primarily bestowed on the Interested Parties and imposition by the Respondents of sanctions not provided for in law or prohibited by law. Counsel submitted that this clearly demonstrates a prima facie case with a likelihood of success.
30. Counsel further argued that the minor having been suspended from school for over 50 days as at the time of filing the submissions, was being prejudiced as cannot pursue his education. As such, Counsel stated that the Applications seek to ensure that the minor resumes his education. Counsel is apprehensive that if the orders sought are not granted, the Petition will be rendered nugatory, as its essence is the minor’s education. Counsel emphasized that it is in public interest and best interest for children to continue their education without interruption.
31. In Counsel’s view, grant of these orders would not prejudice the Respondents in any way. Reliance was placed in HOO v MGO [2021] KEHC 13435 (KLR) where it was held that:
“The Court ought to “consider the substantial loss to be suffered by the child”, which consideration/interests must “supersede those of the parties and must at all times be upheld”.
32. Further reliance was placed on CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) and J v National Director of Public Prosecution, 59[CCT 114/13) [2014] ZACC 13 .
33. Counsel buttressed the Respondents assertion by contending that expulsion of a learner from a basic education institution is not a permitted course of action as per Section 35 of the Basic Education Act. Equally, that pursuant to Section 54(7)(m) of the Basic Education Act, discipline of learners, and specifically any drastic disciplinary action including removal from a school, is the function of the County Director of Education in consultation with the County Education Board.
34. In addition to this, Counsel pointed out that the 1 st Respondent Student Behaviour Policy at page 20 of the Petitioner’s Annexures does not provide expulsion as a disciplinary measure. Instead provides that the measures to be undertaken are, discussion with parents to find a solution, written commitment by learner to more positive behaviour, referral to guidance and counselling, suspension for not more than ten days, and school community service for ten days after completing suspension. In light of this, Counsel argued that the Respondents breached both the applicable law and its own Student Behaviour Policy in this matter.
35. Further to this on the disciplinary process, Counsel submitted that Section 35(3) of the Basic Education Act provides in mandatory terms, two preconditions before a drastic disciplinary action is taken against a learner. First, the school must first explore and exhaust all other less drastic corrective measures, and second, the school must afford the learner a fair opportunity to be heard.
36. In addition, Regulation 38 of the Basic Education Regulations informs that where a learner is suspected of any infraction or breach of school rules, the school must issue a warning to the learner and/or take corrective action with respect to the offensive conduct. Counsel submitted that in this case, no such warning was ever issued to the minor and neither was any corrective action attempted by the school. Instead, the school immediately excluded him from school on the same day of the alleged violation being 16 th January 2026.
37. Furthermore, Counsel noted that Regulation 39(4) of the Basic Education Regulations, 2015 provides that in all disciplinary proceedings affecting a learner, the attendance of the Sub-county Education Officer shall be mandatory and recommendations of the disciplinary hearing be communicated to the County Director of Education within 2 days. In his understanding this means that the Sub-County Education Officer must be present during a learner’s disciplinary hearing and also recommendations be forwarded promptly, which was not the case in this matter. Consequently, Counsel argued that the minor’s suspension was effected in total disregard of the preconditions and procedure provided in Regulation 38 and 39.
38. Reliance was placed in P.P. (a Minor suing through his Father and Next Friend) F W v Board of Management, [Particulars Withheld] High School [2017] KEHC 5151 (KLR) where it was held that:
“Moreover, under Regulation 40, a duty is placed upon the County Director of Education, upon receiving the Board of Management’s recommendation for exclusion of the learner, to adopt the following course of action:
“Where the County Director of Education receives the recommendation of the Board of Management then he or she shall seek the advice of the County Education Board as to whether to-
(a) order for conditional or unconditional re-admission of the learner;
(b) transfer the learner to an alternative institution; or
(c) transfer the learner to a corrective center in the context of education.”
39. In view of the foregoing, Counsel maintained that the Petition is properly before this Court and its jurisdiction not ousted by Regulation 41 of the Basic Education Regulations as advanced by the Respondents. Nonetheless, Counsel argued that this Regulation provides that only a final decision of the County Director of Education can be appealed to the Education Appeals Tribunal.
40. Accordingly, Counsel submitted that an appeal to the Tribunal only arises once the correct disciplinary procedure as provided under Regulations 38–40 of the Basic Education Regulations is finalized, culminating into a decision of the County Director of Education, which gives rise to the appealable decision. Counsel argued that the Respondents’ in failing to follow the right procedure and acting ultra vires, curtailed the Petitioner’s right of appeal to the Education Appeals Tribunal.
41. Reliance was placed in Republic v Board of Management St. Joseph’s School Rapogi [2019] KEHC 10290 (KLR) where it was held that:
“The Principal acted without regard to due process and erred in not requiring the Applicants to appear before the Board within 14 days of the impugned letters. By so doing the Principal acted irrationally and ultra vires his legal mandate. He further illegally usurped the powers of the other organs charged with the responsibilities of dealing with cases of indiscipline in the School including the Board and the County Education Board. The Principal also curtailed the Applicants’ right to appeal to the Education Appeals Tribunal in the event they were aggrieved by the decision the County Education Board. Although the Principal (and by extension the Respondent herein) was fully vested with the egal powers to exclude the Applicants from the School under Regulation 38 the decisions to indefinitely exclude the Applicants from the School and as contained in the impugned letters fell short of fully complying with the law. To that end the impugned letter cannot stand are hereby removed to this Court and quashed by an Order of Certiorari.”
42. Additional reliance was placed on G N v Chumani Secondary School Board of Management [2014] KEHC 2598 (KLR) .
43. Counsel submitted moreover that the assertion that this matter ought to have been filed as a judicial review matter is unfounded as the Petition is anchored on this Court’s jurisdiction under Articles 22, 23, 165(3)(b) and (d) and 258 of the Constitution. Reliance was placed in G N v Chumani Secondary School Board of Management [2014] KEHC 2598 (KLR) where it was held that:
“Although the proceedings are commenced as a normal action, the nature of the claim is one of constitutional application under Article 22 or judicial review under the court’s supervisory jurisdiction under Article 165 (6) of the Constitution. Indeed, the applicant cites Articles 22, 23 and 53 in his suit for enforcement in respect of the student, the Bill of Rights provision on the rights of the child under the latter Article, as quoted above.”
Respondents’ Submissions
44. Kale Maina and Bundotich Advocates LLP filed submissions dated 23 rd March 2026 in view of the Petitioner’s application dated 24 th February 2026 and set out the issue for determination as: whether this Court should issue conservatory orders pending the hearing and determination of the Petition .
45. On the first issue, Counsel submitted that the Petitioner seeks A. O. A’s re-admission to the 1 st Respondent pending the hearing of the application and petition. Counsel relying in Board of Management of Uhuru Secondary School [supra] , stated that the Court guided as follows on the applicable principles in granting conservatory orders:
'Is there a prima facie case with a likelihood of success? If no order is granted in the interim as sought will the Petitioner be prejudiced and its petition rendered nugatory? Would public interest be served by the grant of the orders sought?”
46. Counsel submitted that the Petitioner had failed to demonstrate that he has a prima facie case with probability of success. This is since firstly failed to exhaust the available dispute resolution mechanisms under Section 77 of Basic Education Act as read with Regulation 41 of the Basic Education Regulations. Counsel noted that following the Respondents’ impugned decision, the Petitioner ought to have filed an appeal before the Education Appeals Tribunal as also appreciated by the Court in GM & another (Parents Suing as Next Friend to TZM (Minor)) v Board of Management, St Mary's School; Nairobi County Education Board, Ministry of Education & another (Interested Parties) [2025] KEHC 5783 (KLR) .
47. Counsel further argued that the Petitioner ought to have approached the Court vide judicial review proceedings and not a petition, since his allegations are founded on the alleged violation of his fair administrative rights. Counsel stressed that he failed to move the Court under Article 47(3) of the Constitution as read together with Section 9 of the Fair Administrative Action Act. To buttress this point reliance was placed in H O (suing through next friend P O (a minor) v Peter Obwogo O. the Secretary Board of Management St Joseph's Boys High School & 3 others [2016) KEHC 445 (KLR) where it was held that:
“All that he complained against the respondence are administrative acts of the school and by extension the board in exercise of their delegated authority. Disciplinary action by the schools and the relevant boards are powers donated to it by the relevant statutes which draw their authority from the Constitution. If they act ultra vires then it’s the province of judicial review to be invoked”.
48. Thirdly, Counsel submitted that A.O.A was rightly suspended from school for being in possession of electronic cigarettes (vapes). Counsel argued that in light of this, the Petition would not be rendered nugatory since the Petitioner has the option of enrolling him in a different school pending determination of the Petition. Nonetheless, Counsel argued that the prejudice likely to be suffered by A.O.A and public interest in the matter, must be weighed against the interests and rights of the other students.
49. Reliance was placed in JMOO v Board of Governors of St M's Schoo), Nairobi [2015) KEHC 3036 (KLR) where it was stated that:
"...However, it must be restated and re-emphasized that rights have their corresponding responsibilities and the responsibility of students in school is to abide by the school’s regulations. It would certainly not be in the best interests of the petitioner, or of the other students in the respondent school, were the respondent to ignore disruptive conduct on the part of the petitioner or of any other student …the rights of the petitioners’ daughter must be considered alongside the rights of the other students in the school. The school has an obligation to all its students and as the respondent submits, failing to discipline the students who break rules would set a bad precedent and affect students and parents who are willing to abide by school regulations.”
50. Comparable reliance was placed in Petition No. 11 of 2016: P.P. (A minor suing through his father and next friend) F W Vs High School and HOO (a child suing through his father and next friend) POO v the Board of Management N school and 2 others) [2018) eKLR .
51. In a nutshell, Counsel submitted that the Petitioner had failed to demonstrate the principles applicable for grant of conservatory order.
Analysis and Determination
52. It is my considered view that the issue that arises for determination is:
Whether the Petitioner has met the threshold for grant of conservatory orders.
53. The law on issuance of conservatory orders in constitutional petitions is anchored under Article 23(2) (c) of the Constitution as read with Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which reads as follows:
Conservatory or interim orders.
(1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.
(2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.
(3) The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.
54. Conservatory orders were defined in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows:
“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
55. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
b. Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
c. The public interest must be considered before grant of a conservatory order.”
56. Similarly in Board of Management of Uhuru Secondary School [supra] the Court held as follows:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the pr
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1. By a Notice of Motion Application dated 24 th February 2026, the Petitioner seeks orders that:
i. Spent.
ii. The Court be pleased to issue an order directing the Registrar of the Court to mark the Petition as concerning a child and to consequently restrict access to and availability of all records of the Petition accordingly.
iii. The Court be pleased to issue an order directing that the following shall not be published or revealed by any person in any publication or report in relation to this Petition: name, identity and school registration number of A.O.A; any school and medical records of A.O.A produced in these proceedings; any information that may lead to the public identification of A.O.A; and any particulars of Edwin Abuya that may lead to the public identification of A.O.A.
iv. The Court be pleased to issue an order restraining the parties from disclosing to any third parties any information or particulars of A.O.A or Edwin Abuya that may lead to the identification of A.O.A, except as is strictly necessary for purposes of the proceedings.
v. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue an order directing the Respondents to immediately re-admit A.O.A back to the 1 st Respondent for purposes of continuing with education.
vi. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue a prohibitory order restraining the Respondents from suspending, expelling, excluding or in any manner preventing A.O.A from continuing with education in the 1 st Respondent.
vii. The Court be pleased to issue any other order/direction that it may deem just and expedient to issue.
viii. Costs of this Application be in the cause.
2. The Application is supported by the Petitioner’s affidavit of even date and the grounds on the face of the Application.
3. The Petitioner depones that the A.O.A was removed from school on 16 th January 2026, when the Respondent discovered that he had five electronic cigarettes (vapes) in his bag and had also absconded clubs and societies on that day. As a result, the Petitioner was advised to keep A.O.A from school and await communication from the 1 st Respondent.
4. He alleges that the 2 nd Respondent who is the principal, released five learners who were female but reprimanded the other five males who were together with A.O.A at the material time. He adds that one male minor of Indian ethnic decent was released all together and not summoned like the others.
5. He depones that a disciplinary meeting was held on 20 th January 2026 where he and the minor attended. He asserts that the proceedings were conducted by the 1 st Respondent’s staff and that there was no official from the Sub-County Education Office present as required by law. He notes that A.O.A informed that on that day, he had left his bag unattended in class where the cigarettes were put in his bag by another student.
6. He depones that following the proceedings and on the same day, the 2 nd Respondent issued him a letter informing that the minor had been suspended indefinitely. The letter also mandated him to subject A.O.A to outside rehabilitation programs and counselling using approved bodies or personnel, which he did at Mater Misericordiae Hospital, Nairobi, and issued a report to the 1 st Respondent.
7. He asserts that despite his consistent follow-ups on the way forward and amicable resolution, the Respondents ignored the same and remained silent until 9 th February 2026 when the 2 nd Respondent, abruptly informed him through the letter that A.O.A had been expelled from the 1 st Respondent.
8. He lamented that at the time of filing the Application, the minor had been out of school for 40 days.
9. He contends that the Respondents actions continue to deny A.O.A the rights under Article 27(1), 43(1)(f) and 53(1)(b) & 53(2) of the Constitution thus seeks this Court’s intervention.
Application 2
10. By a Notice of Motion Application dated 26 th February 2026, the Petitioner seeks orders that:
i. Spent.
ii. The Court be pleased to reconsider/revisit its orders of 25 th February 2026 by granting Orders 5 and 6 sought in the Application dated 24 th February 2026, being:
iii. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue an order directing the Respondents to immediately re-admit A.O.A back to the 1 st Respondent for purposes of continuing with education.
iv. Pending the hearing and determination of the Application and Petition, the Court be pleased to issue a prohibitory order restraining the Respondents from suspending, expelling, excluding or in any manner preventing A.O.A from continuing with education in the 1 st Respondent.
v. In the alternative to (2) above, the Court be pleased to direct Counsel for the Applicant/Petitioner to urgently appear before the Judge as soon as possible but in any case, within two (2) days hereof to be heard on Orders 5 and 6 as sought in the Application dated 24 th February 2026, which are of utmost importance in ensuring that A.O. A is able to resume his education without further delay.
vi. The Court be pleased to issue any other order/direction that it may deem just and expedient to issue.
vii. Costs of this Application be in the cause.
11. The Application is supported by the Petitioner’s advocate, Dr.Owino Owiso’s affidavit of even date and the grounds on the face of the Application.
12. By way of background, A.O.A is a student of the 1 st Respondent who was expelled from school, mid-way through the school term on 16 th January 2026.The legality and lawfulness of the expulsion is the subject of the Petition.
13. Counsel depones that this Court in its orders dated 25 th February 2026 declined to grant Orders 5 and 6 which were sought in the Application dated 24 th February 2026, essentially, directing the Respondents to allow A.O.A resume school.
14. Counsel is apprehensive that A.O.A is going to miss at least 65 days of the school term if the Court does not intervene. Counsel stresses that this would not be in the best interest of the minor as envisaged under Article 53(2) of the Constitution and impedes the minor’s enjoyment of his right to compulsory basic education as enshrined under Article 43(1)(f) and 53(1)(b) of the Constitution as well as the Children Act and the Basic Education Act and International law.
15. Counsel claims that the Respondents will not suffer any prejudice if the minor is allowed to resume his studies, pending determination of the Petition.
Respondents’ Case
16. In response to the Application, the Respondents through the 2 nd Respondent filed a Replying Affidavit sworn on 23 rd March 2026.
17. He is the 1 st Respondent’s Principal and on the onset asserts that the Petitioner has failed to exhaust the statutory mechanisms set out under Regulation 40 and 41 of the Basic Education Regulations, before the Educations Appeals Tribunal. Further to this, he argues that the Fair Administrative Action Act relied on by the Petitioner provides under Section 3 that it applies to state agencies and non-state agencies. He asserts that the 1 st Respondent is a non-state agency with quasi-judicial functions hence the Petition is defective as ought to have been litigated through a judicial review.
18. According to him, the Petitioner in the application dated 24 th February 2026, sought conservatory orders and hence required to satisfy the set elements for grant of such an order. In his opinion, the Petitioner did not demonstrate that he has a prima facie case with a likelihood of success. Equally that unless the Court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation.
19. He avers that Regulation 51 of the Basic Education Regulations, provides that any person requiring education may attend a private school. As such, he reasons that the Petitioner has an option of admitting A.O.A to any other private learning institution other than the 1 st Respondent.
20. Speaking to the genesis of this matter, he depones that A.O.A during the disciplinary hearing held on 20 th January 2026, admitted to being aware of the electronic cigarettes that were placed in his bag by another student, however failed to report the same to the 1 st Respondent. He notes that action was also taken against all the students who were involved in the matter.
21. He states that A.O.A was suspended on 20 th January 2026 on the allegations of possession of electronic cigarettes (vapes) and failing to attend clubs and societies, in accordance with Regulation 38 of the Basic Education Regulations.
22. He adds that Regulations 39 and 40 of the Basic Education Regulations, mandate a learning institution to expel a learner from a learning institution. He notes that the County Director of Education and the County Education Board are only mandated to act after the recommendation of the Board of Directors, two days upon making the decision.
23. He states that in their letter dated 9 th February 2026, they informed that the A.O.A would no longer be a student at the 1 st Respondent. He asserts that the 1 st Respondent is not equipped to provide special education or facilities for students like the minor arising from drug related issues.
24. He concludes by stating that the right to education is not a non-derogable right under Article 25 of the Constitution and thus its enjoyment is subject to the rules and regulations governing the learning institution. Equally, he contends that the best interest of a child under Article 53 of the Constitution must be weighed against the best interests of the other students in the school. On this premise, he emphasizes that the 1 st respondent has a duty to ensure A.O.A’s enjoyment of his rights does not prejudice the rights of the other students.
25. In his considered view, reinstatement of AOA before determination of the issues raised in the Petition will set a bad precedent and encourage disobedience by other students of school rules, on the notion that disobedience does not attract any consequences.
26. Be that as it may, he depones that during the disciplinary hearing, they recommended that A.O.A be counselled. He states that vide a letter dated 23 rd January 2026, by Mater Misericordiae Hospital, they were informed that A.O.A still requires continued structured psychological therapy. He asserts that the school is unable to provide the kind of care that the minor requires to move forward with his education.
Petitioner’s Submissions
27. The Petitioner through OLC Law Advocates LLP filed two sets of submissions dated 8 th and 23 rd March 2026.
28. To begin with, Counsel submitted that the principles for grant of an interim order are captured in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015] KEHC 2174 (KLR) as follows:
“Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:
“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.
…
Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights: see Patrick Musimba –v- The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others –v- Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.
Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects, the case of Martin Nyaga Wambora –v- Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.
The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.”
29. Counsel submitted that it is evident that the Petition raises serious questions of violation of a minor’s rights, the unlawful exercise of authority by the Respondents which is primarily bestowed on the Interested Parties and imposition by the Respondents of sanctions not provided for in law or prohibited by law. Counsel submitted that this clearly demonstrates a prima facie case with a likelihood of success.
30. Counsel further argued that the minor having been suspended from school for over 50 days as at the time of filing the submissions, was being prejudiced as cannot pursue his education. As such, Counsel stated that the Applications seek to ensure that the minor resumes his education. Counsel is apprehensive that if the orders sought are not granted, the Petition will be rendered nugatory, as its essence is the minor’s education. Counsel emphasized that it is in public interest and best interest for children to continue their education without interruption.
31. In Counsel’s view, grant of these orders would not prejudice the Respondents in any way. Reliance was placed in HOO v MGO [2021] KEHC 13435 (KLR) where it was held that:
“The Court ought to “consider the substantial loss to be suffered by the child”, which consideration/interests must “supersede those of the parties and must at all times be upheld”.
32. Further reliance was placed on CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) and J v National Director of Public Prosecution, 59[CCT 114/13) [2014] ZACC 13 .
33. Counsel buttressed the Respondents assertion by contending that expulsion of a learner from a basic education institution is not a permitted course of action as per Section 35 of the Basic Education Act. Equally, that pursuant to Section 54(7)(m) of the Basic Education Act, discipline of learners, and specifically any drastic disciplinary action including removal from a school, is the function of the County Director of Education in consultation with the County Education Board.
34. In addition to this, Counsel pointed out that the 1 st Respondent Student Behaviour Policy at page 20 of the Petitioner’s Annexures does not provide expulsion as a disciplinary measure. Instead provides that the measures to be undertaken are, discussion with parents to find a solution, written commitment by learner to more positive behaviour, referral to guidance and counselling, suspension for not more than ten days, and school community service for ten days after completing suspension. In light of this, Counsel argued that the Respondents breached both the applicable law and its own Student Behaviour Policy in this matter.
35. Further to this on the disciplinary process, Counsel submitted that Section 35(3) of the Basic Education Act provides in mandatory terms, two preconditions before a drastic disciplinary action is taken against a learner. First, the school must first explore and exhaust all other less drastic corrective measures, and second, the school must afford the learner a fair opportunity to be heard.
36. In addition, Regulation 38 of the Basic Education Regulations informs that where a learner is suspected of any infraction or breach of school rules, the school must issue a warning to the learner and/or take corrective action with respect to the offensive conduct. Counsel submitted that in this case, no such warning was ever issued to the minor and neither was any corrective action attempted by the school. Instead, the school immediately excluded him from school on the same day of the alleged violation being 16 th January 2026.
37. Furthermore, Counsel noted that Regulation 39(4) of the Basic Education Regulations, 2015 provides that in all disciplinary proceedings affecting a learner, the attendance of the Sub-county Education Officer shall be mandatory and recommendations of the disciplinary hearing be communicated to the County Director of Education within 2 days. In his understanding this means that the Sub-County Education Officer must be present during a learner’s disciplinary hearing and also recommendations be forwarded promptly, which was not the case in this matter. Consequently, Counsel argued that the minor’s suspension was effected in total disregard of the preconditions and procedure provided in Regulation 38 and 39.
38. Reliance was placed in P.P. (a Minor suing through his Father and Next Friend) F W v Board of Management, [Particulars Withheld] High School [2017] KEHC 5151 (KLR) where it was held that:
“Moreover, under Regulation 40, a duty is placed upon the County Director of Education, upon receiving the Board of Management’s recommendation for exclusion of the learner, to adopt the following course of action:
“Where the County Director of Education receives the recommendation of the Board of Management then he or she shall seek the advice of the County Education Board as to whether to-
(a) order for conditional or unconditional re-admission of the learner;
(b) transfer the learner to an alternative institution; or
(c) transfer the learner to a corrective center in the context of education.”
39. In view of the foregoing, Counsel maintained that the Petition is properly before this Court and its jurisdiction not ousted by Regulation 41 of the Basic Education Regulations as advanced by the Respondents. Nonetheless, Counsel argued that this Regulation provides that only a final decision of the County Director of Education can be appealed to the Education Appeals Tribunal.
40. Accordingly, Counsel submitted that an appeal to the Tribunal only arises once the correct disciplinary procedure as provided under Regulations 38–40 of the Basic Education Regulations is finalized, culminating into a decision of the County Director of Education, which gives rise to the appealable decision. Counsel argued that the Respondents’ in failing to follow the right procedure and acting ultra vires, curtailed the Petitioner’s right of appeal to the Education Appeals Tribunal.
41. Reliance was placed in Republic v Board of Management St. Joseph’s School Rapogi [2019] KEHC 10290 (KLR) where it was held that:
“The Principal acted without regard to due process and erred in not requiring the Applicants to appear before the Board within 14 days of the impugned letters. By so doing the Principal acted irrationally and ultra vires his legal mandate. He further illegally usurped the powers of the other organs charged with the responsibilities of dealing with cases of indiscipline in the School including the Board and the County Education Board. The Principal also curtailed the Applicants’ right to appeal to the Education Appeals Tribunal in the event they were aggrieved by the decision the County Education Board. Although the Principal (and by extension the Respondent herein) was fully vested with the egal powers to exclude the Applicants from the School under Regulation 38 the decisions to indefinitely exclude the Applicants from the School and as contained in the impugned letters fell short of fully complying with the law. To that end the impugned letter cannot stand are hereby removed to this Court and quashed by an Order of Certiorari.”
42. Additional reliance was placed on G N v Chumani Secondary School Board of Management [2014] KEHC 2598 (KLR) .
43. Counsel submitted moreover that the assertion that this matter ought to have been filed as a judicial review matter is unfounded as the Petition is anchored on this Court’s jurisdiction under Articles 22, 23, 165(3)(b) and (d) and 258 of the Constitution. Reliance was placed in G N v Chumani Secondary School Board of Management [2014] KEHC 2598 (KLR) where it was held that:
“Although the proceedings are commenced as a normal action, the nature of the claim is one of constitutional application under Article 22 or judicial review under the court’s supervisory jurisdiction under Article 165 (6) of the Constitution. Indeed, the applicant cites Articles 22, 23 and 53 in his suit for enforcement in respect of the student, the Bill of Rights provision on the rights of the child under the latter Article, as quoted above.”
Respondents’ Submissions
44. Kale Maina and Bundotich Advocates LLP filed submissions dated 23 rd March 2026 in view of the Petitioner’s application dated 24 th February 2026 and set out the issue for determination as: whether this Court should issue conservatory orders pending the hearing and determination of the Petition .
45. On the first issue, Counsel submitted that the Petitioner seeks A. O. A’s re-admission to the 1 st Respondent pending the hearing of the application and petition. Counsel relying in Board of Management of Uhuru Secondary School [supra] , stated that the Court guided as follows on the applicable principles in granting conservatory orders:
'Is there a prima facie case with a likelihood of success? If no order is granted in the interim as sought will the Petitioner be prejudiced and its petition rendered nugatory? Would public interest be served by the grant of the orders sought?”
46. Counsel submitted that the Petitioner had failed to demonstrate that he has a prima facie case with probability of success. This is since firstly failed to exhaust the available dispute resolution mechanisms under Section 77 of Basic Education Act as read with Regulation 41 of the Basic Education Regulations. Counsel noted that following the Respondents’ impugned decision, the Petitioner ought to have filed an appeal before the Education Appeals Tribunal as also appreciated by the Court in GM & another (Parents Suing as Next Friend to TZM (Minor)) v Board of Management, St Mary's School; Nairobi County Education Board, Ministry of Education & another (Interested Parties) [2025] KEHC 5783 (KLR) .
47. Counsel further argued that the Petitioner ought to have approached the Court vide judicial review proceedings and not a petition, since his allegations are founded on the alleged violation of his fair administrative rights. Counsel stressed that he failed to move the Court under Article 47(3) of the Constitution as read together with Section 9 of the Fair Administrative Action Act. To buttress this point reliance was placed in H O (suing through next friend P O (a minor) v Peter Obwogo O. the Secretary Board of Management St Joseph's Boys High School & 3 others [2016) KEHC 445 (KLR) where it was held that:
“All that he complained against the respondence are administrative acts of the school and by extension the board in exercise of their delegated authority. Disciplinary action by the schools and the relevant boards are powers donated to it by the relevant statutes which draw their authority from the Constitution. If they act ultra vires then it’s the province of judicial review to be invoked”.
48. Thirdly, Counsel submitted that A.O.A was rightly suspended from school for being in possession of electronic cigarettes (vapes). Counsel argued that in light of this, the Petition would not be rendered nugatory since the Petitioner has the option of enrolling him in a different school pending determination of the Petition. Nonetheless, Counsel argued that the prejudice likely to be suffered by A.O.A and public interest in the matter, must be weighed against the interests and rights of the other students.
49. Reliance was placed in JMOO v Board of Governors of St M's Schoo), Nairobi [2015) KEHC 3036 (KLR) where it was stated that:
"...However, it must be restated and re-emphasized that rights have their corresponding responsibilities and the responsibility of students in school is to abide by the school’s regulations. It would certainly not be in the best interests of the petitioner, or of the other students in the respondent school, were the respondent to ignore disruptive conduct on the part of the petitioner or of any other student …the rights of the petitioners’ daughter must be considered alongside the rights of the other students in the school. The school has an obligation to all its students and as the respondent submits, failing to discipline the students who break rules would set a bad precedent and affect students and parents who are willing to abide by school regulations.”
50. Comparable reliance was placed in Petition No. 11 of 2016: P.P. (A minor suing through his father and next friend) F W Vs High School and HOO (a child suing through his father and next friend) POO v the Board of Management N school and 2 others) [2018) eKLR .
51. In a nutshell, Counsel submitted that the Petitioner had failed to demonstrate the principles applicable for grant of conservatory order.
Analysis and Determination
52. It is my considered view that the issue that arises for determination is:
Whether the Petitioner has met the threshold for grant of conservatory orders.
53. The law on issuance of conservatory orders in constitutional petitions is anchored under Article 23(2) (c) of the Constitution as read with Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which reads as follows:
Conservatory or interim orders.
(1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.
(2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.
(3) The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.
54. Conservatory orders were defined in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows:
“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
55. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
b. Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
c. The public interest must be considered before grant of a conservatory order.”
56. Similarly in Board of Management of Uhuru Secondary School [supra] the Court held as follows:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the pr
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