RULING
Introduction
1. Before the Court is the Petitioner/Applicant’s Notice of Motion dated 14th May 2026. The application is brought under Articles 22, 23, 27, 28, 43, 47 and 50 of the Constitution, the Fair Administrative Action Act, 2015 and all enabling provisions of the law.
2. The Applicant seeks, in substance, interim conservatory and injunctive orders restraining the Respondents from frustrating, intimidating, harassing, victimising or interfering with her studies; an order lifting her suspension and allowing her to continue attending classes and undertaking her studies at St. Clare’s Kaplong School of Nursing; an order that she be permitted to sit for all examinations and participate in all academic activities pending hearing and determination of the petition; and costs of the application.
3. The application is supported by the Petitioner’s affidavit and a further affidavit sworn on 28th May 2026. The Respondents oppose the application through the replying affidavit of Sr. Brenda Lungatsho, sworn on 26th May 2026.
4. The application was urged orally. Mr Chemwok appeared for the Petitioner/Applicant. Mr Mutai appeared for the Respondents.
The Applicant’s Case
5. Mr Chemwok submitted that the Respondents’ actions offended Article 47 of the Constitution on fair administrative action. He invited the Court to consider the suspension letter dated 9th March 2026. Counsel submitted that the letter stated that “it has been established that…” yet, according to him, the alleged event occurred in April 2026. Counsel contended that this apparent inconsistency showed that the disciplinary action was pre-determined, irregular and unsupported by any lawful decision-making process.
6. Counsel further submitted that no meeting was held, no quorum existed, and no lawful decision was made. It was his argument that the school’s own policy required the existence and involvement of a disciplinary committee, but none was constituted in this case. He submitted that in the absence of such a committee, the decision was unilateral and was made by a person other than the Principal.
7. The Applicant’s position is that there was no cogent decision or evidence to sustain the accusation against her. She contends that she had left school for a humane reason, namely to attend to her sick mother, and that she returned to school voluntarily. Counsel submitted that no prior notice was issued, no disciplinary committee was constituted, and no proper hearing was accorded before the impugned action was taken.
8. Counsel submitted that the Applicant has already been forced to repeat twice and that if she is not allowed to sit for the imminent examinations, she will lose another academic year. It was therefore urged that the balance of convenience tilts in her favour and that the Court should intervene to preserve her studies and examination opportunity pending the determination of the petition.
The Respondents’ Case
9. Mr Mutai, for the Respondents, submitted that the narrow question before the Court is whether the Applicant should be allowed to sit examinations scheduled to commence on Monday.
10. Counsel submitted that the Applicant is not entitled to sit the examinations because she is subject to disciplinary proceedings. It was argued that she stepped out of school without permission and that her explanation that she had gone to attend to her sick mother is belated.
11. Counsel submitted that the Respondents had annexed leave sheets showing that in previous situations where the Applicant sought permission, permission had been granted. It was submitted that the school is a nursing training institution and is heavily regulated; that the Applicant had not done clinical rotation with the other students for the past six weeks; and that the Nursing Council of Kenya regulations and school regulations bar her from sitting the examinations.
12. Counsel further submitted that if the Court eventually finds that the Applicant’s rights were violated, damages would be an adequate remedy. He indicated that the Respondents would be seeking viva voce evidence in the main petition and that if the Applicant is exonerated or pardoned after the disciplinary process, she will be able to sit examinations at an appropriate time.
13. In reply to the Respondents’ submissions, counsel for the Petitioner submitted that the Respondents themselves admitted that no completed disciplinary process had taken place. He further submitted that any clinical attachment deficit can be remedied between August and September 2026 and that the drastic consequence of excluding the Applicant from examinations would occasion hardship in time, finances and career progression. Counsel urged the Court to allow the Applicant to sit the examinations regulated by the Nursing Council of Kenya while permitting any disciplinary process to continue thereafter in accordance with due process.
Issues for Determination
14. At this interlocutory stage, the Court is not called upon to make final findings on the merits of the petition or on the disciplinary allegations. The issues that arise for determination are:
a. Whether the Applicant has established a case for interim relief pending hearing and determination of the petition;
b. Whether the Court should direct that the Applicant be permitted to sit the imminent examinations and participate in academic activities pending the petition; and
c. What orders should be issued?
Applicable Law
15. The application invokes both the Court’s jurisdiction to grant conservatory relief under Article 23 of the Constitution and the ordinary equitable principles governing interlocutory injunctions.
16. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court set out the principles for grant of interlocutory injunctions: an applicant must establish a prima facie case with a probability of success; demonstrate that he or she stands to suffer irreparable injury which cannot adequately be compensated by damages; and where the Court is in doubt, the matter is determined on a balance of convenience.
17. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, a prima facie case was described as a case which, on the material presented to the Court, shows that a right has apparently been infringed by the opposite party so as to call for an answer.
18. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasised that the three tests are sequential and that the Court must be satisfied that the applicant has passed the threshold for interim protection before exercising its discretion.
19. Where a litigant seeks conservatory relief in a constitutional petition, the Court is guided by the need to preserve the substratum of the petition and to ensure that the petition is not rendered nugatory. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the Court held that conservatory orders are granted to preserve the subject matter pending determination of the dispute. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court stated that conservatory orders bear a public law connotation and are meant to facilitate ordered functioning within public agencies and uphold the adjudicatory authority of the Court.
20. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4 of the Fair Administrative Action Act, 2015 requires that where administrative action is likely to adversely affect the rights or fundamental freedoms of a person, the administrator shall give that person prior and adequate notice of the nature and reasons for the proposed administrative action, an opportunity to be heard and to make representations, notice of a right to review or internal appeal where applicable, and a statement of reasons.
21. In Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, the Court of Appeal recognised Article 47 as a constitutional command that administrative action must meet the standards of lawfulness, reasonableness and procedural fairness.
22. The Court is also alive to the principle that academic and professional training institutions are entitled to regulate discipline, attendance, examinations and clinical training. Courts do not ordinarily assume the role of academic boards, disciplinary committees or professional regulators. However, where the complaint is that the disciplinary or administrative process has been undertaken in violation of the Constitution, the Fair Administrative Action Act, the institution’s own rules, or the rules of natural justice, the Court is entitled to intervene to preserve rights and ensure legality.
Analysis
23. The Applicant is a student of St. Clare’s Kaplong School of Nursing. The dispute arose from allegations that she left the school compound without permission and the Respondents’ subsequent decision or steps affecting her continuation in school and eligibility to sit examinations.
24. The Respondents position is that a formal disciplinary process had already been initiated due to unauthorised absence and that the Applicant was advised to take a voluntary leave of absence for a short period to stabilise her home situation and to allow the school to conduct a fair hearing. The Respondents further state that the Applicant is not entitled to sit examinations because she has not completed a clinical rotation for the last six weeks and is subject to disciplinary proceedings.
25. The Applicant, on the other hand, asserts that no proper disciplinary process took place; that no disciplinary committee sat; that no notice was given; that no quorum or lawful decision existed; and that she was effectively suspended or excluded without due process. She admits leaving school without proper written permission, but maintains that the circumstances were urgent and humanitarian and that she returned voluntarily and apologised.
26. From the material placed before the Court, there is a live and arguable question whether the Respondents complied with Article 47 of the Constitution, section 4 of the Fair Administrative Action Act and the school’s own disciplinary policy before taking steps which adversely affected the Applicant’s studies and examination prospects.
27. The Respondents’ own policy document annexed to their application provides for a procedure of instituting disciplinary action. Under that policy, when an incident is reported or discovered, investigations are to be initiated. Depending on the magnitude of the case and circumstances, preliminary action may be taken by the class tutor, principal tutor or disciplinary committee. The disciplinary committee is composed of the principal tutor, disciplinary tutor/deputy principal, class tutor, tutors and any other relevant member of the institution based on the circumstances. The policy assigns the disciplinary committee the role of collecting facts, determining whether a complaint has merit, conducting disciplinary hearings and making a decision after completion of disciplinary hearings.
28. At this interlocutory stage, the Court cannot conclusively determine whether a proper disciplinary committee was constituted or whether there was a valid disciplinary decision. That is a matter for the main hearing where the parties may tender evidence and, if necessary, viva voce testimony. However, the apparent dispute on whether the school’s own disciplinary procedure was followed is sufficient to disclose an arguable prima facie issue.
29. The Respondents have also relied on institutional rules governing permission to leave the school compound and clinical rotations. The policy requires a student wishing to leave the compound for over 10 hours to obtain permission from the Principal; the request is to be initiated by the parent or guardian; permission slips are to issue; students are to sign out and sign in; and permission is limited to serious and urgent matters. The same policy also provides that absence from clinical experience for more than two weeks may require repetition of the rotation or referral and that students absent for shorter periods may be required to compensate the time.
30. Those provisions show that the school has a legitimate regulatory interest in discipline, attendance, patient safety and professional training standards. The Court does not minimise that interest. Nursing training is not ordinary classroom learning only. It involves patient contact, clinical competence and compliance with professional standards. The Respondents are therefore entitled, and indeed obliged, to insist on discipline, attendance and completion of clinical requirements.
31. The question, however, is not whether the school may discipline the Applicant. The question is whether, pending the determination of the petition, the Applicant should be excluded from sitting imminent examinations where the complaint is that the exclusion or suspension may have been imposed without a procedurally fair process.
32. In considering irreparable harm, the Court notes that examinations are time-bound. If the Applicant is barred from sitting examinations scheduled to commence imminently, the immediate consequence may be loss of an academic opportunity and possible loss of a full academic cycle. That prejudice is not readily quantifiable. Although damages may in an appropriate case compensate a constitutional wrong, the loss of academic progression, professional training momentum and examination opportunity is not always adequately remedied by a later award of damages.
33. The Respondents contend that if the Applicant is eventually exonerated or pardoned she can sit examinations later. That may be so. However, the Court must also consider whether denying her the opportunity now, before the petition is heard, may render the petition nugatory. The petition specifically seeks orders allowing her to resume studies and sit scheduled examinations. If the examinations proceed without her, a central limb of the interim dispute will have been overtaken by events.
34. On the other hand, the Respondents’ concerns can be addressed by carefully framed orders. Allowing the Applicant to sit examinations at this stage need not amount to a finding that she is innocent of the disciplinary allegations. It need not bar the school from undertaking a lawful disciplinary process. It need not prevent the school, the Nursing Council of Kenya or any relevant academic body from applying lawful requirements on marking, release of results, clinical completion, registration, progression or certification.
35. The Court is persuaded that the just course is to preserve the Applicant’s academic opportunity while protecting the Respondents’ lawful mandate to regulate discipline and professional training. This will ensure that the petition is not rendered nugatory, while not usurping the disciplinary and academic functions of the institution and the Nursing Council of Kenya.
36. The balance of convenience favours an order permitting the Applicant to sit the imminent examinations and participate in necessary academic activities, subject to compliance with examination rules, professional requirements and any lawful directions relating to clinical make-up or completion. The greater prejudice lies in excluding her from examinations at this interlocutory stage, especially where the alleged disciplinary process itself is under constitutional challenge.
37. I am also satisfied that interim non-victimisation orders are appropriate. A student who approaches the Court alleging violation of constitutional rights should not, on account of filing proceedings, be subjected to retaliation, intimidation or victimisation. Equally, the Applicant must obey all lawful school rules, maintain discipline, attend classes and clinical activities as directed, and submit herself to any lawful disciplinary process conducted in accordance with the Constitution, the Fair Administrative Action Act and the school policy.
38. The prayer for the OCS Kaplong Police Station to ensure compliance is declined at this stage. This is an academic and administrative dispute. No sufficient basis has been laid for the involvement of the police in enforcing the interim orders of this Court.
39. I find that the Applicant has established sufficient grounds for interim preservation pending hearing and determination of the petition.
Disposition
40. Consequently, the Notice of Motion dated 14th May 2026 is allowed in the following terms:
a. Pending the hearing and determination of the petition, the Respondents are ordered to lift the Applicant’s suspension and permit her to continue attending classes and undertaking her studies at Kaplong Nursing School.
b. Pending the hearing and determination of the petition, the Respondents shall permit the Petitioner/Applicant to sit the examinations scheduled to commence next Monday and any related examinations in the same series, subject to the ordinary examination rules applicable to all students and subject to the requirements of the Nursing Council of Kenya.
c. The Petitioner/Applicant shall be allowed to access classes, examination facilities and necessary academic activities for purposes of sitting the said examinations and preserving her academic progression pending determination of the petition.
d. Pending hearing and determination of this petition the respondents are restrained from victimizing , intimidating , discriminating against or retaliating against the applicant
e.For avoidance of doubt, order (b) above shall not be construed as exempting the Petitioner/Applicant from satisfying any lawful clinical rotation, attendance, logbook, assessment, regulatory or professional requirement imposed by the school, the Nursing Council of Kenya or any competent academic body.
f. The Respondents shall be at liberty to proceed with any disciplinary process against the Petitioner/Applicant, provided that such process shall be conducted in strict compliance with Article 47 of the Constitution, section 4 of the Fair Administrative Action Act, the rules of natural justice and the Respondents’ own disciplinary policy.
g. The Petitioner/Applicant shall cooperate with any lawful disciplinary process, obey all lawful school rules, attend classes and clinical activities as directed, and maintain discipline while the petition is pending.
h. The prayer directing the OCS Kaplong Police Station to ensure compliance is declined.
i. The petition shall be mentioned on 17.6.26 for directions on the main petition.
j. Costs of the application shall abide the outcome of the petition.
41. Orders accordingly.
T.A ODERA –
JUDGE
29.5.25
DATED, SIGNED AND DELIVERED AT KERICHO THIS 29TH DAY OF MAY 2026 IN THE PRESENCCE OF MR CHEMWOK FOR PETITIONER /APPLICANT AND MR MUTAI FOR RESPONDENTS.
Introduction
1. Before the Court is the Petitioner/Applicant’s Notice of Motion dated 14th May 2026. The application is brought under Articles 22, 23, 27, 28, 43, 47 and 50 of the Constitution, the Fair Administrative Action Act, 2015 and all enabling provisions of the law.
2. The Applicant seeks, in substance, interim conservatory and injunctive orders restraining the Respondents from frustrating, intimidating, harassing, victimising or interfering with her studies; an order lifting her suspension and allowing her to continue attending classes and undertaking her studies at St. Clare’s Kaplong School of Nursing; an order that she be permitted to sit for all examinations and participate in all academic activities pending hearing and determination of the petition; and costs of the application.
3. The application is supported by the Petitioner’s affidavit and a further affidavit sworn on 28th May 2026. The Respondents oppose the application through the replying affidavit of Sr. Brenda Lungatsho, sworn on 26th May 2026.
4. The application was urged orally. Mr Chemwok appeared for the Petitioner/Applicant. Mr Mutai appeared for the Respondents.
The Applicant’s Case
5. Mr Chemwok submitted that the Respondents’ actions offended Article 47 of the Constitution on fair administrative action. He invited the Court to consider the suspension letter dated 9th March 2026. Counsel submitted that the letter stated that “it has been established that…” yet, according to him, the alleged event occurred in April 2026. Counsel contended that this apparent inconsistency showed that the disciplinary action was pre-determined, irregular and unsupported by any lawful decision-making process.
6. Counsel further submitted that no meeting was held, no quorum existed, and no lawful decision was made. It was his argument that the school’s own policy required the existence and involvement of a disciplinary committee, but none was constituted in this case. He submitted that in the absence of such a committee, the decision was unilateral and was made by a person other than the Principal.
7. The Applicant’s position is that there was no cogent decision or evidence to sustain the accusation against her. She contends that she had left school for a humane reason, namely to attend to her sick mother, and that she returned to school voluntarily. Counsel submitted that no prior notice was issued, no disciplinary committee was constituted, and no proper hearing was accorded before the impugned action was taken.
8. Counsel submitted that the Applicant has already been forced to repeat twice and that if she is not allowed to sit for the imminent examinations, she will lose another academic year. It was therefore urged that the balance of convenience tilts in her favour and that the Court should intervene to preserve her studies and examination opportunity pending the determination of the petition.
The Respondents’ Case
9. Mr Mutai, for the Respondents, submitted that the narrow question before the Court is whether the Applicant should be allowed to sit examinations scheduled to commence on Monday.
10. Counsel submitted that the Applicant is not entitled to sit the examinations because she is subject to disciplinary proceedings. It was argued that she stepped out of school without permission and that her explanation that she had gone to attend to her sick mother is belated.
11. Counsel submitted that the Respondents had annexed leave sheets showing that in previous situations where the Applicant sought permission, permission had been granted. It was submitted that the school is a nursing training institution and is heavily regulated; that the Applicant had not done clinical rotation with the other students for the past six weeks; and that the Nursing Council of Kenya regulations and school regulations bar her from sitting the examinations.
12. Counsel further submitted that if the Court eventually finds that the Applicant’s rights were violated, damages would be an adequate remedy. He indicated that the Respondents would be seeking viva voce evidence in the main petition and that if the Applicant is exonerated or pardoned after the disciplinary process, she will be able to sit examinations at an appropriate time.
13. In reply to the Respondents’ submissions, counsel for the Petitioner submitted that the Respondents themselves admitted that no completed disciplinary process had taken place. He further submitted that any clinical attachment deficit can be remedied between August and September 2026 and that the drastic consequence of excluding the Applicant from examinations would occasion hardship in time, finances and career progression. Counsel urged the Court to allow the Applicant to sit the examinations regulated by the Nursing Council of Kenya while permitting any disciplinary process to continue thereafter in accordance with due process.
Issues for Determination
14. At this interlocutory stage, the Court is not called upon to make final findings on the merits of the petition or on the disciplinary allegations. The issues that arise for determination are:
a. Whether the Applicant has established a case for interim relief pending hearing and determination of the petition;
b. Whether the Court should direct that the Applicant be permitted to sit the imminent examinations and participate in academic activities pending the petition; and
c. What orders should be issued?
Applicable Law
15. The application invokes both the Court’s jurisdiction to grant conservatory relief under Article 23 of the Constitution and the ordinary equitable principles governing interlocutory injunctions.
16. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court set out the principles for grant of interlocutory injunctions: an applicant must establish a prima facie case with a probability of success; demonstrate that he or she stands to suffer irreparable injury which cannot adequately be compensated by damages; and where the Court is in doubt, the matter is determined on a balance of convenience.
17. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, a prima facie case was described as a case which, on the material presented to the Court, shows that a right has apparently been infringed by the opposite party so as to call for an answer.
18. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasised that the three tests are sequential and that the Court must be satisfied that the applicant has passed the threshold for interim protection before exercising its discretion.
19. Where a litigant seeks conservatory relief in a constitutional petition, the Court is guided by the need to preserve the substratum of the petition and to ensure that the petition is not rendered nugatory. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the Court held that conservatory orders are granted to preserve the subject matter pending determination of the dispute. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court stated that conservatory orders bear a public law connotation and are meant to facilitate ordered functioning within public agencies and uphold the adjudicatory authority of the Court.
20. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4 of the Fair Administrative Action Act, 2015 requires that where administrative action is likely to adversely affect the rights or fundamental freedoms of a person, the administrator shall give that person prior and adequate notice of the nature and reasons for the proposed administrative action, an opportunity to be heard and to make representations, notice of a right to review or internal appeal where applicable, and a statement of reasons.
21. In Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, the Court of Appeal recognised Article 47 as a constitutional command that administrative action must meet the standards of lawfulness, reasonableness and procedural fairness.
22. The Court is also alive to the principle that academic and professional training institutions are entitled to regulate discipline, attendance, examinations and clinical training. Courts do not ordinarily assume the role of academic boards, disciplinary committees or professional regulators. However, where the complaint is that the disciplinary or administrative process has been undertaken in violation of the Constitution, the Fair Administrative Action Act, the institution’s own rules, or the rules of natural justice, the Court is entitled to intervene to preserve rights and ensure legality.
Analysis
23. The Applicant is a student of St. Clare’s Kaplong School of Nursing. The dispute arose from allegations that she left the school compound without permission and the Respondents’ subsequent decision or steps affecting her continuation in school and eligibility to sit examinations.
24. The Respondents position is that a formal disciplinary process had already been initiated due to unauthorised absence and that the Applicant was advised to take a voluntary leave of absence for a short period to stabilise her home situation and to allow the school to conduct a fair hearing. The Respondents further state that the Applicant is not entitled to sit examinations because she has not completed a clinical rotation for the last six weeks and is subject to disciplinary proceedings.
25. The Applicant, on the other hand, asserts that no proper disciplinary process took place; that no disciplinary committee sat; that no notice was given; that no quorum or lawful decision existed; and that she was effectively suspended or excluded without due process. She admits leaving school without proper written permission, but maintains that the circumstances were urgent and humanitarian and that she returned voluntarily and apologised.
26. From the material placed before the Court, there is a live and arguable question whether the Respondents complied with Article 47 of the Constitution, section 4 of the Fair Administrative Action Act and the school’s own disciplinary policy before taking steps which adversely affected the Applicant’s studies and examination prospects.
27. The Respondents’ own policy document annexed to their application provides for a procedure of instituting disciplinary action. Under that policy, when an incident is reported or discovered, investigations are to be initiated. Depending on the magnitude of the case and circumstances, preliminary action may be taken by the class tutor, principal tutor or disciplinary committee. The disciplinary committee is composed of the principal tutor, disciplinary tutor/deputy principal, class tutor, tutors and any other relevant member of the institution based on the circumstances. The policy assigns the disciplinary committee the role of collecting facts, determining whether a complaint has merit, conducting disciplinary hearings and making a decision after completion of disciplinary hearings.
28. At this interlocutory stage, the Court cannot conclusively determine whether a proper disciplinary committee was constituted or whether there was a valid disciplinary decision. That is a matter for the main hearing where the parties may tender evidence and, if necessary, viva voce testimony. However, the apparent dispute on whether the school’s own disciplinary procedure was followed is sufficient to disclose an arguable prima facie issue.
29. The Respondents have also relied on institutional rules governing permission to leave the school compound and clinical rotations. The policy requires a student wishing to leave the compound for over 10 hours to obtain permission from the Principal; the request is to be initiated by the parent or guardian; permission slips are to issue; students are to sign out and sign in; and permission is limited to serious and urgent matters. The same policy also provides that absence from clinical experience for more than two weeks may require repetition of the rotation or referral and that students absent for shorter periods may be required to compensate the time.
30. Those provisions show that the school has a legitimate regulatory interest in discipline, attendance, patient safety and professional training standards. The Court does not minimise that interest. Nursing training is not ordinary classroom learning only. It involves patient contact, clinical competence and compliance with professional standards. The Respondents are therefore entitled, and indeed obliged, to insist on discipline, attendance and completion of clinical requirements.
31. The question, however, is not whether the school may discipline the Applicant. The question is whether, pending the determination of the petition, the Applicant should be excluded from sitting imminent examinations where the complaint is that the exclusion or suspension may have been imposed without a procedurally fair process.
32. In considering irreparable harm, the Court notes that examinations are time-bound. If the Applicant is barred from sitting examinations scheduled to commence imminently, the immediate consequence may be loss of an academic opportunity and possible loss of a full academic cycle. That prejudice is not readily quantifiable. Although damages may in an appropriate case compensate a constitutional wrong, the loss of academic progression, professional training momentum and examination opportunity is not always adequately remedied by a later award of damages.
33. The Respondents contend that if the Applicant is eventually exonerated or pardoned she can sit examinations later. That may be so. However, the Court must also consider whether denying her the opportunity now, before the petition is heard, may render the petition nugatory. The petition specifically seeks orders allowing her to resume studies and sit scheduled examinations. If the examinations proceed without her, a central limb of the interim dispute will have been overtaken by events.
34. On the other hand, the Respondents’ concerns can be addressed by carefully framed orders. Allowing the Applicant to sit examinations at this stage need not amount to a finding that she is innocent of the disciplinary allegations. It need not bar the school from undertaking a lawful disciplinary process. It need not prevent the school, the Nursing Council of Kenya or any relevant academic body from applying lawful requirements on marking, release of results, clinical completion, registration, progression or certification.
35. The Court is persuaded that the just course is to preserve the Applicant’s academic opportunity while protecting the Respondents’ lawful mandate to regulate discipline and professional training. This will ensure that the petition is not rendered nugatory, while not usurping the disciplinary and academic functions of the institution and the Nursing Council of Kenya.
36. The balance of convenience favours an order permitting the Applicant to sit the imminent examinations and participate in necessary academic activities, subject to compliance with examination rules, professional requirements and any lawful directions relating to clinical make-up or completion. The greater prejudice lies in excluding her from examinations at this interlocutory stage, especially where the alleged disciplinary process itself is under constitutional challenge.
37. I am also satisfied that interim non-victimisation orders are appropriate. A student who approaches the Court alleging violation of constitutional rights should not, on account of filing proceedings, be subjected to retaliation, intimidation or victimisation. Equally, the Applicant must obey all lawful school rules, maintain discipline, attend classes and clinical activities as directed, and submit herself to any lawful disciplinary process conducted in accordance with the Constitution, the Fair Administrative Action Act and the school policy.
38. The prayer for the OCS Kaplong Police Station to ensure compliance is declined at this stage. This is an academic and administrative dispute. No sufficient basis has been laid for the involvement of the police in enforcing the interim orders of this Court.
39. I find that the Applicant has established sufficient grounds for interim preservation pending hearing and determination of the petition.
Disposition
40. Consequently, the Notice of Motion dated 14th May 2026 is allowed in the following terms:
a. Pending the hearing and determination of the petition, the Respondents are ordered to lift the Applicant’s suspension and permit her to continue attending classes and undertaking her studies at Kaplong Nursing School.
b. Pending the hearing and determination of the petition, the Respondents shall permit the Petitioner/Applicant to sit the examinations scheduled to commence next Monday and any related examinations in the same series, subject to the ordinary examination rules applicable to all students and subject to the requirements of the Nursing Council of Kenya.
c. The Petitioner/Applicant shall be allowed to access classes, examination facilities and necessary academic activities for purposes of sitting the said examinations and preserving her academic progression pending determination of the petition.
d. Pending hearing and determination of this petition the respondents are restrained from victimizing , intimidating , discriminating against or retaliating against the applicant
e.For avoidance of doubt, order (b) above shall not be construed as exempting the Petitioner/Applicant from satisfying any lawful clinical rotation, attendance, logbook, assessment, regulatory or professional requirement imposed by the school, the Nursing Council of Kenya or any competent academic body.
f. The Respondents shall be at liberty to proceed with any disciplinary process against the Petitioner/Applicant, provided that such process shall be conducted in strict compliance with Article 47 of the Constitution, section 4 of the Fair Administrative Action Act, the rules of natural justice and the Respondents’ own disciplinary policy.
g. The Petitioner/Applicant shall cooperate with any lawful disciplinary process, obey all lawful school rules, attend classes and clinical activities as directed, and maintain discipline while the petition is pending.
h. The prayer directing the OCS Kaplong Police Station to ensure compliance is declined.
i. The petition shall be mentioned on 17.6.26 for directions on the main petition.
j. Costs of the application shall abide the outcome of the petition.
41. Orders accordingly.
T.A ODERA –
JUDGE
29.5.25
DATED, SIGNED AND DELIVERED AT KERICHO THIS 29TH DAY OF MAY 2026 IN THE PRESENCCE OF MR CHEMWOK FOR PETITIONER /APPLICANT AND MR MUTAI FOR RESPONDENTS.