[1] Upon being granted leave to file a substantive Judicial Review application, the applicants, Bonface Ochieng Awuor and Clement Lawrence Odhiambo, filed the Notice of Motion dated 30 th September 2024. The application was brought under Sections 8 and 9 of the Law Reforms Act and Order 53 Rule 4 of the Civil Procedure Rules for the following orders:
[a] An Order of Prohibition prohibiting the respondents from the continued freezing and/or denying the applicants access to the competency based curriculum assessment portal or any other related portal of Janeiro Junior Academy-Rodi in so far as the same relate to the same being granted to a parallel institution owned by the 1 st and 2 nd interested party.
[b] An Order of Prohibition prohibiting the respondents from revoking, canceling or in any way undermining the applicants access to the competency based curriculum assessment portal or any Other related portal of Janeiro Junior Academy-Rodi.
[c] An Order of Mandamus compelling the 1 st and 2 nd respondents to restore the applicants’ access by issuing the applicant with the password to the KNEC portal 41704322 or any other related portal of Janeiro Junior Academy-Rodi.
[d] An Order of Certiorari removing to this Honourable Court for purposes of being quashed the decision of the 1 st and 2 nd respondents from the continued freezing and/or denying the applicants access to the Competence Based Curriculum Assessment Portal 41704322 and password thereof or any other related portal of Janeiro Junior Academy-Rodi.
[e] A Declaration that the applicants are the sole persons/entity entitled to access and password for the Portal 41704322 of the institution called Janeiro Junior Academy-Rodi and not the interested parties.
[f] Costs of the application be provided for.
[2] The application was premised on the grounds that, on or about the year 2021, the applicants, then owning a facility/school under the name Furaha Academy, expressed interest in creating a partnership business with one James Okiro Akello (now deceased). The applicants averred that the deceased was then one of the proprietors of Janeiro Junior Academy, and that they struck a gentleman's agreement to register and did register a joint but independent entity in the name and style of Janeiro Junior Academy-Rodi (hereinafter, “the School”).
[3] It was further the contention of the applicants that they agreed amongst themselves that a management committee consisting 7 members be constituted to run the said school and that the profits and/or losses were similarly to be shared in the respective ratio of 60:40 between the deceased and the applicants. As at the time of institution of this suit, the school had a population of about 400 students ranging from the pre-school students all the way to Junior Secondary students.
[4] The applicants further deposed that, although one of the partners, James Okiro Akello , passed on in the year 2022 or thereabouts, the school continued to run under the leadership of the applicants. They also stated that it soon became evident that the intended successors of the deceased, who are the interested parties herein, became unruly and disregarded the terms and understanding reached between the applicants and the deceased. They added that the interested parties ultimately opted to unilaterally and singlehandedly run the school as a private property.
[5] The applicants averred that when they insisted on their recognition as partners, the interested parties reacted by sourcing for alternative school premises, but under the guise of the same name of Janeiro Junior Academy-Rodi. The applicants averred that they have since been denied the right to access the CBC Assessment Portal and password thereto or any other related portal of Janeiro Junior Academy-Rodi and are therefore unable to access and/or upload any assessment reports for the candidates.
[6] The applicants further stated that they sought the intervention of the 2 nd respondent in vain; and were instead threatened with dire consequences should they fail to upload the student's names in the portal within a period specified by the 2 nd respondent. They further deposed that, in making the adverse decision to deny them access to the portal, the respondents impinged the applicants’ proprietary rights over the subject school without taking into account all the relevant factors. They contended that the decision of the respondents in so far as it related to CBC Assessment Portal, or any other related portal of Janeiro Junior Academy-Rodi, is not only unreasonable for having been based on extraneous considerations but is also ultra vires the mandate of the respondents.
[7] With regard to the effect of the respondents’ inaction, the applicants averred that their lack of access to the CBC Assessment Portal if allowed to continue would result in irreparable consequences not only to them but also to the affected students and the community at large. They relied on the detailed particulars supplied in their Supporting Affidavit and the Statutory Statement filed alongside the application for leave.
[8] In response to the substantive motion, Siada A. Osano , the 2 nd respondent who is the Sub-County Director of Education, relied on her Replying Affidavit sworn on 14 th October 2024. She averred that the applicants have come to court with unclean hands in so far as they did not make full disclosure of facts in respect of the subject application. They averred that Janeiro Junior Academy-Rodi, whose portal is the bone of contention in the instant application, was registered by the Ministry of Education on the 10 th June 2021. The 2 nd respondent annexed a copy of a certified copy of the Certificate of Registration as Annexure ZAO-I.
[9] She further averred that according to the records kept in her office, the subject school is registered in the sole name of James Okiro Akello ; and that when it was brought to the attention of her office that James Okiro Akello had passed away and his estate entrusted to the administration of his widow, Jane Atieno Akello, (the 2 nd interested party) they had no option but to comply with the wishes of the 2 nd interested party. She added that, Janeiro Junior Academy-Rodi, as every other learning institution, has a dedicated assessment portal run by the Kenya National Examination Council; which portal was active at as at the time of filing of the instant suit.
[10] The 2 nd respondent further averred that the portal can only be accessed by means of a secret password that is known only to the proprietor of the institution. She therefore deposed that her office does not create portals as alluded to by the applicants. She added that the portal for Janeiro Junior Academy-Rodi, Portal 41704322 had been operational and was being accessed effortlessly by a secret password which in the custody of the school administration and not her office. She was also categorical that no learners' interest had been adversely affected in any way since all their scores had been uploaded and received by KNEC.
[11] Further to the foregoing, the 2 nd respondent stated that on the 8 th July 2024, her office received a letter from the applicants seeking the validation of Furaha Academy. She annexed a copy of the letter of request as Annexture ZAO-4. She pointed out that the said Furaha Academy is unknown institution to the Ministry of Education and therefore her office could not have created a portal for such an institution.
[12] The 2 nd respondent posited that the dispute between the applicants and the interested parties is an ownership wrangles which can only be determined by a court of law and not her office. She therefore concluded her deposition by stating that the allegations made by the applicants in this suit are not only baseless but also intended to cast aspersions on her integrity. She therefore prayed for the dismissal of the application with costs.
[13] In response to the 2 nd respondent’s averments, the applicants filed a Further Affidavit sworn by the 2 nd applicant, Clement Lawrence Odhiambo . He described himself as a co-proprietor of the business known as Janeiro Academy-Rodi. He asserted that, contrary to the 2 nd respondent's assertion in Paragraphs 4 to 6 of her Replying Affidavit, the only entity registered by the name Janeiro Junior Academy is Janeiro Junior Academy-Rodi, which is registered in the name of three individuals, namely, Boniface Ochieng’ Awuor, Clement Lawrence Odhiambo and James Okiro Akello . The applicants annexed a copy of the Search Certificate as Annexure CEO-I is a copy of the Name Search. Hence, the applicants therefore reiterated their stance that Janeiro Junior Academy, the 1 st interested party herein, is not a registered entity,
[14] In the light of their assertion, the applicants contended that an entity must be registered either as a business name or as a company to be accredited by the Ministry of Education for the purpose of operating as a school; and therefore they posited that, since the 1 st interested party does not exist as a business entity duly registered by the Registrar of Companies it could not have been registered with the Ministry of Education to operate as a school. The applicants then set out in detail the applicable law governing registration of schools as provided for in the Basic Education Act and the Registration Guidelines for Basic Education Institutions; a copy whereof was annexed to the Further Affidavit.
[15] The applicants asserted that instant dispute arose because the 2 nd interested party, in collusion with the 2 nd respondent, started to illegally operate the 1 st interested party as a school on a property adjacent to their school and gave it a similar name as their school. They contended that this was a clear strategy to pass off the 2 nd interested party as Janeiro Junior Academy-Rodi with a view of creating confusion. In particular, the applicants asserted that 2 nd interested party colluded with the 2 nd respondent and bypassed the system, changed their password to the portal and gave the 2 nd interested party access to the CBA Portal belonging to their School; with the result that they were locked out of the CBA Portal.
[16] It was therefore the contention of the applicants that the respondents are all in a unique position to ensure that their school is granted access to the CBA Portal. It was therefore their prayer that the orders sought in their substantive Judicial Review application dated 30 th September, 2024 be granted.
[17] The application was canvassed by way of written submissions. The applicants relied on their written submissions dated 20 th November 2024. They provided a summary of the background facts as set out in their respective affidavits. They submitted that the 2 nd interested party, as the legal representative of their deceased partner, James Okiro Akello , is keen on asserting ownership of the trade name and the school; and had therefore colluded with the 2 nd respondent to deny them access to the school’s CBC Portal.
[18] The applicants submitted that, in making the adverse decision to deny them access to the CBS Portal, the respondents violated their proprietary rights over the subject school without taking into account the relevant factors. They urged the Court to find that decision to be unreasonable. The applicants further submitted that they are reasonably apprehensive that the respondents would take steps to interfere with their proprietary rights over the school; an action which if undeterred would result in irreparable and irredeemable consequences to them as well as the students and the community at large. They added that they had a lawful and legitimate expectation to be informed and given opportunity to be heard before such an adverse and drastic measure was taken by the respondents. They urged the Court to therefore allow their application and grant the orders sought to compel the respondents to perform what is a public duty bestowed on them by the law.
[19] In her written submissions dated 12 th November 2024, the 2 nd respondent proposed the following issues for determination:
[a] Whether the court can exercise its discretion in favour of the applicants;
[b] What orders are available in the circumstances.
[20] The 2 nd respondent addressed the Court on the remedy of Certiorari and its efficacy. She made reference to Halsbury’s Laws of England and the cases of Blue Sea Shopping Mall Limited v City Council Of Nairobi & Others CA, Civil Appeal No 129 of 2013 (Nairobi), and Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Nairobi Civil Appeal No 185 of 2007(2002) eKLR, to support their submission that the remedy is discretionary and is concerned mainly with the decision making process.
[21] The respondents also relied on Section 9(2) of the Fair Administrative Action Act, No. 4 of 2015 and The Speaker of National Assembly v Karume [2008] KLR 426 for the proposition that where there is a clear procedure to address a particular grievance, it should first be followed before a party can seek the intervention of the courts. They argued that, since it is apparent that at the core of the instant application is a dispute over the ownership of Janeiro Junior Academy-Rodi between the applicants on the one hand and the interested parties on the other hand the applicants have recourse elsewhere. They relied on Republic v Inland Revenue Commissioner Ex Parte Opman International [1986] I ALLER 328 in which the Court held that judicial review is a procedure of last resort and is only available in those cases where the alternative procedure does not satisfactorily achieve a just resolution of the dispute.
[22] Accordingly, the respondents urged the Court to find that the application dated 30 th September 2024 lacks merit and therefore should be dismissed in its entirety with costs.
[23] The interested parties also filed written submissions in opposition to the application dated 30 th September 2024. They proposed for determination the following questions:
[a] What is the nature and scope of judicial review?
[b] Can judicial review orders be issued to settle proprietary rights?
[24] The interested parties submitted that from the evidence placed before the Court, they had demonstrated that they are in possession and ownership of the CBC Portal No. 41704322 belonging to Janeiro Junior Academy-Rodi and that the relevant authorities recognize them as such. They relied on Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300, Municipal Council of Mombasa & Umoja Consultants Limited, Civil Appeal No. 185 of 2001 and Republic v Kenya Revenue Authority, Ex Parte Yaya Towers Limited [2008] eKLR to support their submission that judicial review is not concerned with the merits of the decision itself but with the decision-making process and that it is impermissible for the Court to substitute the impugned decision with its own.
[25] On whether judicial review orders can be issued to settle proprietary rights, the interested parties relied on Republic v Kenya National Examination Council, Ex Parte Gathenji and 9 others among others to support their argument that for the order of Mandamus to issue, the applicants were under duty to demonstrate the following:
[a] A prior demand for performance
[b] A reasonable time to comply with the demand, unless there was outright refusal;
[c] that no other adequate remedy is available
[d] the order sought must be of some practical value or effect
[e] There is no adequate bar to the relief sought
[26] They urged the Court to find that no justification was made by the applicants to warrant the issuance of any of the orders prayed for.
[27] The applicants filed supplementary written submissions in support of their Further Affidavit dated 20 th March 2025. They reiterated their principal submissions and underscored their assertion that they are entitled to the orders sought because they had demonstrated that they are the proprietors of the School. They further reiterated their stance that the respondents are in a unique position to grant the School access to CBA Portal, adding that the 1 st respondent, being in charge of the Ministry of Education, spearheads the overall planning, coordination, and management of all education levels, including policy formulation, implementation, and ensuring access to quality education for all. This includes the overall overseeing CBC and the CBA Portals.
[28] They further submitted that the 1 st interested party is illegally being operated by the interested party; and therefore they had demonstrated true ownership of the School and as well as the true ownership of the CBA portal. They urged the Court to ensure the return of the CBA Portal to its rightful owners by allowing their application and granting the orders sought.
[29] The applicants moved the Court for Judicial Review Orders of Prohibition, Mandamus and Certiorari. They also prayed for a Declaration that the they are the sole persons/entity entitled to access and use of the password for the Portal 41704322 of the institution known as Janeiro Junior Academy-Rodi and not the interested parties. In the premises, the issues for determination are:
[a] Whether the ex-parte Applicants are entitled to the Orders sought in its Notice of Motion dated 30 th September, 2024.
[b] What orders ought to issue on costs.
A. On whether the applicants are entitled to the judicial review orders prayed for:
[30] The historical background of judicial review of administrative actions was reiterated by the Supreme Court in the case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) as follows:
“Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under that system, the High Court could issue orders of mandamus , prohibition, and certiorari . The grounds for the issuance of such orders were borrowed from common law. Prior to the promulgation of the Constitution of Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.
The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review was no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, article 47 of the Constitution provided that every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
…
When a party approached a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party filed a suit under the provisions of order 53 of the Civil Procedure Rules and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se .”
[31] As to the scope and efficacy of the remedies, the Court of Appeal had the following to say in Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
[32] In the same case, the Court of Appeal had proceeded to state as follows in connection with the order of Prohibition:
“…It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised... The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
[33] The same position was reiterated by the Court of Appeal in Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170 , as follows:
“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
[34] The scope was well explicated in Halsbury's Laws of England, 4 th Edition, Volume 1 thus:
"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual..."
[35] Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another (supra) it was held, at paragraph 91 as follows:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of fact and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
[36] The foregoing notwithstanding, it is now settled that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence . The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
[37] What then are the factors to consider in an application for judicial review. In Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300, it was held:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”. Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
[38] Hence, the question to pose is whether the impugned decision or action can be faulted on the grounds of illegality, irrationality or procedural impropriety.
[39] From the facts deposed to by the parties, there is no dispute that the application was premised on the grounds that, on or about the year 2021, the applicants, then owning a facility/school under the name Furaha Academy, expressed interest in creating a partnership business with one James Okiro Akello (now deceased). The applicants averred that the deceased was then one of the proprietors of Janeiro Junior Academy, and that they struck a gentleman's agreement to register and did register a joint but independent entity in the name and style of Janeiro Junior Academy-Rodi.
[40] The applicants’ grievance stemmed from the fact that, after the demise of James Okiro Akello , in the year 2022 or thereabouts, his successors, and in particular the 2 nd interested party herein, became unruly and disregarded the terms and understanding reached between the applicants and the deceased. They added that the 2 nd interested party opted to unilaterally and singlehandedly run the school as a private property.
[41] The applicants averred that when they insisted on their recognition as partners, the interested parties reacted by sourcing for alternative school premises but under the guise of the same name of Janeiro Junior Academy-Rodi. The applicants have since been denied the right to access the CBC Assessment Portal and password thereto or any other related portal of Janeiro Junior Academy-Rodi and are therefore unable to access and/or upload any assessment reports for the candidates.
[42] It was in response to the foregoing factual assertions that the 2 nd respondent, accused the applicants of coming to court with unclean hands in so far as they did not make full disclosure of facts in respect of the subject application. They averred that Janeiro Junior Academy-Rodi was registered by the Ministry of Education on the 10 th June 2021. The 2 nd respond
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[a] An Order of Prohibition prohibiting the respondents from the continued freezing and/or denying the applicants access to the competency based curriculum assessment portal or any other related portal of Janeiro Junior Academy-Rodi in so far as the same relate to the same being granted to a parallel institution owned by the 1 st and 2 nd interested party.
[b] An Order of Prohibition prohibiting the respondents from revoking, canceling or in any way undermining the applicants access to the competency based curriculum assessment portal or any Other related portal of Janeiro Junior Academy-Rodi.
[c] An Order of Mandamus compelling the 1 st and 2 nd respondents to restore the applicants’ access by issuing the applicant with the password to the KNEC portal 41704322 or any other related portal of Janeiro Junior Academy-Rodi.
[d] An Order of Certiorari removing to this Honourable Court for purposes of being quashed the decision of the 1 st and 2 nd respondents from the continued freezing and/or denying the applicants access to the Competence Based Curriculum Assessment Portal 41704322 and password thereof or any other related portal of Janeiro Junior Academy-Rodi.
[e] A Declaration that the applicants are the sole persons/entity entitled to access and password for the Portal 41704322 of the institution called Janeiro Junior Academy-Rodi and not the interested parties.
[f] Costs of the application be provided for.
[2] The application was premised on the grounds that, on or about the year 2021, the applicants, then owning a facility/school under the name Furaha Academy, expressed interest in creating a partnership business with one James Okiro Akello (now deceased). The applicants averred that the deceased was then one of the proprietors of Janeiro Junior Academy, and that they struck a gentleman's agreement to register and did register a joint but independent entity in the name and style of Janeiro Junior Academy-Rodi (hereinafter, “the School”).
[3] It was further the contention of the applicants that they agreed amongst themselves that a management committee consisting 7 members be constituted to run the said school and that the profits and/or losses were similarly to be shared in the respective ratio of 60:40 between the deceased and the applicants. As at the time of institution of this suit, the school had a population of about 400 students ranging from the pre-school students all the way to Junior Secondary students.
[4] The applicants further deposed that, although one of the partners, James Okiro Akello , passed on in the year 2022 or thereabouts, the school continued to run under the leadership of the applicants. They also stated that it soon became evident that the intended successors of the deceased, who are the interested parties herein, became unruly and disregarded the terms and understanding reached between the applicants and the deceased. They added that the interested parties ultimately opted to unilaterally and singlehandedly run the school as a private property.
[5] The applicants averred that when they insisted on their recognition as partners, the interested parties reacted by sourcing for alternative school premises, but under the guise of the same name of Janeiro Junior Academy-Rodi. The applicants averred that they have since been denied the right to access the CBC Assessment Portal and password thereto or any other related portal of Janeiro Junior Academy-Rodi and are therefore unable to access and/or upload any assessment reports for the candidates.
[6] The applicants further stated that they sought the intervention of the 2 nd respondent in vain; and were instead threatened with dire consequences should they fail to upload the student's names in the portal within a period specified by the 2 nd respondent. They further deposed that, in making the adverse decision to deny them access to the portal, the respondents impinged the applicants’ proprietary rights over the subject school without taking into account all the relevant factors. They contended that the decision of the respondents in so far as it related to CBC Assessment Portal, or any other related portal of Janeiro Junior Academy-Rodi, is not only unreasonable for having been based on extraneous considerations but is also ultra vires the mandate of the respondents.
[7] With regard to the effect of the respondents’ inaction, the applicants averred that their lack of access to the CBC Assessment Portal if allowed to continue would result in irreparable consequences not only to them but also to the affected students and the community at large. They relied on the detailed particulars supplied in their Supporting Affidavit and the Statutory Statement filed alongside the application for leave.
[8] In response to the substantive motion, Siada A. Osano , the 2 nd respondent who is the Sub-County Director of Education, relied on her Replying Affidavit sworn on 14 th October 2024. She averred that the applicants have come to court with unclean hands in so far as they did not make full disclosure of facts in respect of the subject application. They averred that Janeiro Junior Academy-Rodi, whose portal is the bone of contention in the instant application, was registered by the Ministry of Education on the 10 th June 2021. The 2 nd respondent annexed a copy of a certified copy of the Certificate of Registration as Annexure ZAO-I.
[9] She further averred that according to the records kept in her office, the subject school is registered in the sole name of James Okiro Akello ; and that when it was brought to the attention of her office that James Okiro Akello had passed away and his estate entrusted to the administration of his widow, Jane Atieno Akello, (the 2 nd interested party) they had no option but to comply with the wishes of the 2 nd interested party. She added that, Janeiro Junior Academy-Rodi, as every other learning institution, has a dedicated assessment portal run by the Kenya National Examination Council; which portal was active at as at the time of filing of the instant suit.
[10] The 2 nd respondent further averred that the portal can only be accessed by means of a secret password that is known only to the proprietor of the institution. She therefore deposed that her office does not create portals as alluded to by the applicants. She added that the portal for Janeiro Junior Academy-Rodi, Portal 41704322 had been operational and was being accessed effortlessly by a secret password which in the custody of the school administration and not her office. She was also categorical that no learners' interest had been adversely affected in any way since all their scores had been uploaded and received by KNEC.
[11] Further to the foregoing, the 2 nd respondent stated that on the 8 th July 2024, her office received a letter from the applicants seeking the validation of Furaha Academy. She annexed a copy of the letter of request as Annexture ZAO-4. She pointed out that the said Furaha Academy is unknown institution to the Ministry of Education and therefore her office could not have created a portal for such an institution.
[12] The 2 nd respondent posited that the dispute between the applicants and the interested parties is an ownership wrangles which can only be determined by a court of law and not her office. She therefore concluded her deposition by stating that the allegations made by the applicants in this suit are not only baseless but also intended to cast aspersions on her integrity. She therefore prayed for the dismissal of the application with costs.
[13] In response to the 2 nd respondent’s averments, the applicants filed a Further Affidavit sworn by the 2 nd applicant, Clement Lawrence Odhiambo . He described himself as a co-proprietor of the business known as Janeiro Academy-Rodi. He asserted that, contrary to the 2 nd respondent's assertion in Paragraphs 4 to 6 of her Replying Affidavit, the only entity registered by the name Janeiro Junior Academy is Janeiro Junior Academy-Rodi, which is registered in the name of three individuals, namely, Boniface Ochieng’ Awuor, Clement Lawrence Odhiambo and James Okiro Akello . The applicants annexed a copy of the Search Certificate as Annexure CEO-I is a copy of the Name Search. Hence, the applicants therefore reiterated their stance that Janeiro Junior Academy, the 1 st interested party herein, is not a registered entity,
[14] In the light of their assertion, the applicants contended that an entity must be registered either as a business name or as a company to be accredited by the Ministry of Education for the purpose of operating as a school; and therefore they posited that, since the 1 st interested party does not exist as a business entity duly registered by the Registrar of Companies it could not have been registered with the Ministry of Education to operate as a school. The applicants then set out in detail the applicable law governing registration of schools as provided for in the Basic Education Act and the Registration Guidelines for Basic Education Institutions; a copy whereof was annexed to the Further Affidavit.
[15] The applicants asserted that instant dispute arose because the 2 nd interested party, in collusion with the 2 nd respondent, started to illegally operate the 1 st interested party as a school on a property adjacent to their school and gave it a similar name as their school. They contended that this was a clear strategy to pass off the 2 nd interested party as Janeiro Junior Academy-Rodi with a view of creating confusion. In particular, the applicants asserted that 2 nd interested party colluded with the 2 nd respondent and bypassed the system, changed their password to the portal and gave the 2 nd interested party access to the CBA Portal belonging to their School; with the result that they were locked out of the CBA Portal.
[16] It was therefore the contention of the applicants that the respondents are all in a unique position to ensure that their school is granted access to the CBA Portal. It was therefore their prayer that the orders sought in their substantive Judicial Review application dated 30 th September, 2024 be granted.
[17] The application was canvassed by way of written submissions. The applicants relied on their written submissions dated 20 th November 2024. They provided a summary of the background facts as set out in their respective affidavits. They submitted that the 2 nd interested party, as the legal representative of their deceased partner, James Okiro Akello , is keen on asserting ownership of the trade name and the school; and had therefore colluded with the 2 nd respondent to deny them access to the school’s CBC Portal.
[18] The applicants submitted that, in making the adverse decision to deny them access to the CBS Portal, the respondents violated their proprietary rights over the subject school without taking into account the relevant factors. They urged the Court to find that decision to be unreasonable. The applicants further submitted that they are reasonably apprehensive that the respondents would take steps to interfere with their proprietary rights over the school; an action which if undeterred would result in irreparable and irredeemable consequences to them as well as the students and the community at large. They added that they had a lawful and legitimate expectation to be informed and given opportunity to be heard before such an adverse and drastic measure was taken by the respondents. They urged the Court to therefore allow their application and grant the orders sought to compel the respondents to perform what is a public duty bestowed on them by the law.
[19] In her written submissions dated 12 th November 2024, the 2 nd respondent proposed the following issues for determination:
[a] Whether the court can exercise its discretion in favour of the applicants;
[b] What orders are available in the circumstances.
[20] The 2 nd respondent addressed the Court on the remedy of Certiorari and its efficacy. She made reference to Halsbury’s Laws of England and the cases of Blue Sea Shopping Mall Limited v City Council Of Nairobi & Others CA, Civil Appeal No 129 of 2013 (Nairobi), and Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Nairobi Civil Appeal No 185 of 2007(2002) eKLR, to support their submission that the remedy is discretionary and is concerned mainly with the decision making process.
[21] The respondents also relied on Section 9(2) of the Fair Administrative Action Act, No. 4 of 2015 and The Speaker of National Assembly v Karume [2008] KLR 426 for the proposition that where there is a clear procedure to address a particular grievance, it should first be followed before a party can seek the intervention of the courts. They argued that, since it is apparent that at the core of the instant application is a dispute over the ownership of Janeiro Junior Academy-Rodi between the applicants on the one hand and the interested parties on the other hand the applicants have recourse elsewhere. They relied on Republic v Inland Revenue Commissioner Ex Parte Opman International [1986] I ALLER 328 in which the Court held that judicial review is a procedure of last resort and is only available in those cases where the alternative procedure does not satisfactorily achieve a just resolution of the dispute.
[22] Accordingly, the respondents urged the Court to find that the application dated 30 th September 2024 lacks merit and therefore should be dismissed in its entirety with costs.
[23] The interested parties also filed written submissions in opposition to the application dated 30 th September 2024. They proposed for determination the following questions:
[a] What is the nature and scope of judicial review?
[b] Can judicial review orders be issued to settle proprietary rights?
[24] The interested parties submitted that from the evidence placed before the Court, they had demonstrated that they are in possession and ownership of the CBC Portal No. 41704322 belonging to Janeiro Junior Academy-Rodi and that the relevant authorities recognize them as such. They relied on Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300, Municipal Council of Mombasa & Umoja Consultants Limited, Civil Appeal No. 185 of 2001 and Republic v Kenya Revenue Authority, Ex Parte Yaya Towers Limited [2008] eKLR to support their submission that judicial review is not concerned with the merits of the decision itself but with the decision-making process and that it is impermissible for the Court to substitute the impugned decision with its own.
[25] On whether judicial review orders can be issued to settle proprietary rights, the interested parties relied on Republic v Kenya National Examination Council, Ex Parte Gathenji and 9 others among others to support their argument that for the order of Mandamus to issue, the applicants were under duty to demonstrate the following:
[a] A prior demand for performance
[b] A reasonable time to comply with the demand, unless there was outright refusal;
[c] that no other adequate remedy is available
[d] the order sought must be of some practical value or effect
[e] There is no adequate bar to the relief sought
[26] They urged the Court to find that no justification was made by the applicants to warrant the issuance of any of the orders prayed for.
[27] The applicants filed supplementary written submissions in support of their Further Affidavit dated 20 th March 2025. They reiterated their principal submissions and underscored their assertion that they are entitled to the orders sought because they had demonstrated that they are the proprietors of the School. They further reiterated their stance that the respondents are in a unique position to grant the School access to CBA Portal, adding that the 1 st respondent, being in charge of the Ministry of Education, spearheads the overall planning, coordination, and management of all education levels, including policy formulation, implementation, and ensuring access to quality education for all. This includes the overall overseeing CBC and the CBA Portals.
[28] They further submitted that the 1 st interested party is illegally being operated by the interested party; and therefore they had demonstrated true ownership of the School and as well as the true ownership of the CBA portal. They urged the Court to ensure the return of the CBA Portal to its rightful owners by allowing their application and granting the orders sought.
[29] The applicants moved the Court for Judicial Review Orders of Prohibition, Mandamus and Certiorari. They also prayed for a Declaration that the they are the sole persons/entity entitled to access and use of the password for the Portal 41704322 of the institution known as Janeiro Junior Academy-Rodi and not the interested parties. In the premises, the issues for determination are:
[a] Whether the ex-parte Applicants are entitled to the Orders sought in its Notice of Motion dated 30 th September, 2024.
[b] What orders ought to issue on costs.
A. On whether the applicants are entitled to the judicial review orders prayed for:
[30] The historical background of judicial review of administrative actions was reiterated by the Supreme Court in the case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) as follows:
“Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under that system, the High Court could issue orders of mandamus , prohibition, and certiorari . The grounds for the issuance of such orders were borrowed from common law. Prior to the promulgation of the Constitution of Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.
The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review was no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, article 47 of the Constitution provided that every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
…
When a party approached a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party filed a suit under the provisions of order 53 of the Civil Procedure Rules and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se .”
[31] As to the scope and efficacy of the remedies, the Court of Appeal had the following to say in Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR:
“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”
[32] In the same case, the Court of Appeal had proceeded to state as follows in connection with the order of Prohibition:
“…It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised... The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
[33] The same position was reiterated by the Court of Appeal in Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170 , as follows:
“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
[34] The scope was well explicated in Halsbury's Laws of England, 4 th Edition, Volume 1 thus:
"The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual..."
[35] Ordinarily, judicial review is concerned with the decision-making process as opposed to the merits of the decision. Accordingly, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another (supra) it was held, at paragraph 91 as follows:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of fact and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
[36] The foregoing notwithstanding, it is now settled that some measure of merit review is acceptable to enable the Court properly adjudicate a judicial review matter. The Supreme Court acknowledged as much in the Saisi thus:
“For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence . The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”
[37] What then are the factors to consider in an application for judicial review. In Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300, it was held:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”. Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
[38] Hence, the question to pose is whether the impugned decision or action can be faulted on the grounds of illegality, irrationality or procedural impropriety.
[39] From the facts deposed to by the parties, there is no dispute that the application was premised on the grounds that, on or about the year 2021, the applicants, then owning a facility/school under the name Furaha Academy, expressed interest in creating a partnership business with one James Okiro Akello (now deceased). The applicants averred that the deceased was then one of the proprietors of Janeiro Junior Academy, and that they struck a gentleman's agreement to register and did register a joint but independent entity in the name and style of Janeiro Junior Academy-Rodi.
[40] The applicants’ grievance stemmed from the fact that, after the demise of James Okiro Akello , in the year 2022 or thereabouts, his successors, and in particular the 2 nd interested party herein, became unruly and disregarded the terms and understanding reached between the applicants and the deceased. They added that the 2 nd interested party opted to unilaterally and singlehandedly run the school as a private property.
[41] The applicants averred that when they insisted on their recognition as partners, the interested parties reacted by sourcing for alternative school premises but under the guise of the same name of Janeiro Junior Academy-Rodi. The applicants have since been denied the right to access the CBC Assessment Portal and password thereto or any other related portal of Janeiro Junior Academy-Rodi and are therefore unable to access and/or upload any assessment reports for the candidates.
[42] It was in response to the foregoing factual assertions that the 2 nd respondent, accused the applicants of coming to court with unclean hands in so far as they did not make full disclosure of facts in respect of the subject application. They averred that Janeiro Junior Academy-Rodi was registered by the Ministry of Education on the 10 th June 2021. The 2 nd respond
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