1. The name of the minor has been anonymized to protect the privacy of the minor. By a Petition dated 4.3.2026, the Petitioner sought the following reliefs:
(i) A declaration that the decision of the Respondent reached on 16.2.2026 to expel EMK was unconstitutional, unlawful and in breach of his right to fair administrative action and basic education.
(ii) An order for immediate readmission of EMK to the Respondent school to enable him attend and complete his secondary education without any hinderance whatsoever.
(iii) An order for compensation to the Petitioner’s son and herself for the loss and damage occasioned as a result of the Respondent’s actions.
(iv) Costs of the Petition.
2. The Petition was based on the grounds on its face and supported by the Supporting Affidavit of CWM and EMK, as well as the supplementary affidavit dated 24.3.2026 as follows:
a) On 16.2.2026, the Respondent expelled EMK from school for alleged drug abuse, which allegations were false and untrue.
b) The Deputy Head Teacher of the school summoned the Petitioner and her son to school via phone call and upon arrival, school rules and regulations prohibiting drug abuse were read to them. The deputy principal then asked EMK to collect his books and beddings and to meet the Petitioner at the school gate. No disciplinary hearing was conducted before the expulsion of EMK.
c) The Respondent school coerced EMK to write a confession regarding the alleged misconduct of abusing drugs. The decision was arrived at unilaterally and communicated verbally without written reasons.
d) The Respondent school subsequently summoned the Petitioner to school on 18.2.2026 when the Deputy Principal coerced her to sign a transfer request for her son with assurance of a positive report card on discipline if the recipient school made inquiries.
e) The Petitioner’s son has lost learning hours unused school fees, emotional distress, psychological injury and reputational harm.
f) The Respondent school has not registered the EMK in the KNEC despite having given him index number and so he will miss KCSE Exams scheduled for November 2026.
g) The Respondent breached the student’s right to fair trial, fair administrative action and education. The Petition appeared before the Respondent on 6.3.2026 and no evidence including of the alleged disciplinary committee minutes, CCTV or witness was tendered against EMK save for the alleged confession letter.
h) The Respondent ignored the evidence that the Petitioner took her son for drug test and results were negative. The hearing of 6.3.2026 was not a fair hearing as it had a redetermined judgment against EMK.
i) Dr. Mwirigi, the Chief Principal appeared in court and blamed the deputy for the actions but himself failed to lay down any action he took to forestall the breaches of the student’s rights. The decision of 6.3.2026 was never communicated to the Petitioner who learnt of it via the replying affidavit.
3. The Respondent filed a Replying Affidavit sworn by Dr. Silas Mwirigi, Chief Principal, on 26.3.2026 as follows:
a) Student doing drugs and aiding their purchase and distribution in school was a serious offence warranting expulsion and such rules were laid down to all students and parents while joining school.
b) EMK and others were got doing drugs and aiding their purchase and distribution in school. EMK did a letter dated 16.2.2026 confession to having been involved in drugs.
c) The Petitioner was called to school and was informed of the conduct of her son and request to wait for suspension letter before going with her son home but she became belligerent and left without waiting.
d) On 24.2.2026, the school invited the Petitioner and her son to a disciplinary hearing scheduled for 6.3.2026 but was served with this Petition on 4.3.2026. No decision has been made to expel the student as that is a mandate of the Respondent.
e) The disciplinary proceedings were subsequently made a decision reached and the student has since been registered for KCSE. The Petitioner should exhaust the appellate process under the Education Act and the petition is premature. He averred that the final decision lies with the ministry of education.
4. The interested parties did not file any documents in response to the petition. In any case their position is now settled by the supreme court in Methodist Church in Kenya v Fugicha & 3 others (Petition 16 of 2016) [2019] KESC 59 (KLR) , where the supreme court held as follows:
What should we make of a cross-petition fashioned as such? Yet this court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the court. We did remark, in Francis Karioki Muruatetu & another v Republic & 5 others, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):
“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court” [emphasis supplied].
54. In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others , Civil Appeal No 290 of 2012 (paragraph 24):
A suit in court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
5. The matter proceeded by way of written submissions. However, I had to call for the attendance of the school Principal in one of the sessions. I got a definite impression that he was at sea on what transpired, or feigned ignorance. I directed him to ensure that the minor was registered. He assured me that the registration had occurred. The principal appears ignorant of the processes and his ultimate role. He kept shifting responsibility to the Deputy Principal even in matters where the buck stops at his desk.
Submissions
6. The Petitioner filed submissions dated 24.3.2026. It was submitted that the Petitioner’s son was thrown out of school with beddings and all belongings on 16.2.2026 without a hearing on the alleged involvement in drugs. Further, there was no evidence of a disciplinary committee hearing or investigation before the expulsion, and the purported hearing on 16.3.2026 was an attempt to sanitize the infringement of the student's rights and fundamental freedoms. Reliance was placed on Section 4 of the Fair Administrative Action Act, which requires written reasons and a notice of right to review to justify an administrative action.
7. On the doctrine of exhaustion, it was submitted that the Respondent took unreasonably long to safeguard the rights of the student, and it was necessary that only the court would be an appropriate mechanism for justice. Reliance was placed on Geoffrey Muthinja & 4 others v Samuel Muguna Henry & 2 others [2022] KEHC 2085 (KLR) .
8. It was also submitted that there were exceptions to the exhaustion doctrine that applied to this case and reliance was placed inter alia on Fleur Investments Limited v held that: - Commissioner of Domestic Taxes & another (2018) eKLR .
9. On compensation, it was submitted that Ksh. 300,000/= would be adequate and supported by E K & 5 others v Registered Trustees of S H S [2015] KEHC 2692(KLR) .
10. On the part of the Respondent, submissions dated 1.4.2026 were filed. It was submitted that the student's registration had already been completed, and such prayers in the Petition were overtaken by events.
11. It was as such submitted that the Petition was filed without having exhausted the elaborate procedure for disciplinary action against the student and is premature.
12. The Respondent submitted that the right to education was not absolute, and where a student was involved in prohibited drugs, the Respondent had the responsibility to protect the welfare of other students in the school from being affected negatively.
13. The Respondent, however, cited no authorities.
Analysis
14. In this Petition, the issue that presents to me for determination is whether the Respondent acted in breach of the constitutional rights of the student under Articles 47 and 53 of the Constitution as to entitle the Petitioner to the reliefs sought. The Petitioner maintained that the rights and fundamental freedoms of the student were threatened and infringed when the student was thrown out of school without any hearing on the alleged drug abuse contrary to Article 25 and 47 of the Constitution. Therefore the petition raises four issues, that is:
a. Whether the petitioner’s right to fair hearing was breached
b. Whether the minor’s right to education was breached
c. Remedies and reliefs available
d. Doctrine of exhaustion
15. The Constitution imposes an obligation on all courts to promote the spirit, purport, and objects of the Bill of Rights, when interpreting legislation. In Phumelela Gaming and Leisure Ltd v Gründlingh and Others (2006) ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR 883 , the Constitutional Court observed as follows:
"A court is required to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation, and when developing the common law or customary law‘. In this no court has a discretion. The duty applies to the interpretation of all legislation and whenever a court embarks on the exercise of developing the common law or customary law. The initial question is not whether interpreting legislation through the prism of the Bill of Rights will bring about a different result. A court is simply obliged to deal with the legislation it has to interpret in a manner that promotes the spirit, purport and objects of the Bill of Rights. The same applies to the development of the common law or customary law.
16. This obligation bestowed on this Court resounds the special role of the judiciary in our system with respect to constitutional interpretation. In Marbury vs. Madison, 5 U.S. 137 (1803), it was observed that the courts, as well as other departments, are bound by the Constitution and must interpret it when a dispute so requires.
17. The Court of Appeal in Attorney General v Law Society of Kenya & another [2017] KECA 176 (KLR) , applied the case of ( Marbury vs. Madison) where they stated as follows:
What Chief Justice John Marshall observed in 1803 on the supremacy of the American Constitution in Marbury V. Madison, 5 U.S. (1 Cranch) 137 (1803), appear to have informed the enactment of the above section 3. Those words, which we reproduce below, apply to date in many jurisdictions, including ours. He said;
“The Constitution is the fundamental and paramount law of the nation, and that it cannot be altered by an ordinary act of the legislature. Therefore, an act of the Legislature repugnant to the Constitution is void…It would be an absurdity to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution: It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.......”
18. The above decision was affirmed in Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) by the Supreme Court.
19. This court is thus the ultimate guardian of the Constitution and its values. The constitutional court of South Africa in My Vote Counts NPC vs Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30 September 2015) stated thus:
"We are mindful that it is this Court that is the final arbiter on adherence to the Constitution and its values. On this, in Doctors for Life, Ngcobo J says:-
“…This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’. Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that ‘the obligations imposed by [the Constitution] must be fulfilled’. It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution."
20. The power of the court is set out in extension under Article 22 of the Constitution as follows in regard to the enforcement of fundamental rights and freedoms:
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) An association acting in the interest of one or more of its members.
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
(4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.
21. Article 23 of the constitution provides for the authority of courts to uphold and enforce the Bill of Rights. The court granted the primacy on the enforcement of these rights is the High Court under Article 165(3)(b) of the Constitution as follows:
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
22. Article 23 (1) of the constitution provides as follows:
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
23. The power is buttressed in Article 23(3) of the Constitution, which gives a gamut of remedies that the High Court may give. The sub Article provides as follows:
In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.
24. The manifestation of contravention or infringement of the constitutional rights is a matter that should be clearly spelt out by the grievant Petitioner. The apex court has discussed the prerequisites for a proper Constitutional Petition. In Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR the court stated as follows:
Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
25. Therefore, the Petitioner herein should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. The foregoing was fittingly captured in in Miscellaneous Criminal Application 4 of 1979, Anarita Karimi Njeru v Republic [1979] KLR where the court observed as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…
26. The requirement of precision is thus crucial to serve to derive the actual dispute for the determination by the court and goes to the root of the Petition as a pleading. In Constitutional Petition No E265 of 2021, Kenya Medical Practitioners, Pharmacists and Dentists’ Union v University of Nairobi & another [2021] eKLR, the court discussed the need for precision in approval to the precedent in Anarita Karimi decision and observed as follows: -
The foregoing finding (Anarita Karimi Njeru) received endorsement from the Court of Appeal in Nairobi Civil Appeal No 290 of 2012, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR as follows-
(41) We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.
27. The Petition herein meets the threshold for constitutional petitions but the issue is whether the violations are proved. The jurisdiction of this court is circumscribed under Article 165(3) of the Constitution of Kenya, which posits as follows: -
(3) Subject to clause (5), the High Court shall have-
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
28. It is noteworthy that there is no necessity that all constitutional petitions that come before this court must win. The condition was that the Petitioner raises constitutional questions as anticipated in the locus classicus of Anarita Karimi vs Republic , and once the court was satisfied that there was a justiciable case, based on a real and substantial controversy which unequivocally calls for adjudication of the rights asserted, that was enough. In Patrick Ouma Onyango & 12 Others v The Attorney General & 2 Others, Misc Appl No. 677 of 2005 , the court endorsed the doctrine of justiciability, as stated by Lawrence H. Tribe in his book American Constitutional Law , 2nd Edition, p. 92 that ;
'In order for a claim to be justiciable as an article III, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantially of the controversy is also a part of the controversy itself-an aspect of the appropriateness of the issues for judicial decision....and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors' .
29. I have perused the minutes of the Board and they appear choreographed to meet a specific end in mind. The student in this matter and the related matter were registered since the court had directed so. However, a third student who had not gone to court was expelled since he had not gone to court. This meant that the decision was made with the court case in mind.
30. Thirdly, the decision of the board should be by way of recommendation to the second interested party. However, in this case it was final. The original expulsion done by the Deputy Principal was not nullified by the board. The minor was already expelled by the time the board considered the expulsion. There can be no re-expulsion. The respondent could not validate an ultra vires action by the Deputy Principal.
31. Once service of the petition was effected, the board was convened on the same day as the hearing in court. After the court parties purported to hear the applicant and communicated the decision. There is no indication of what the minor said or any request to answer the charges. There is no record of the student having time to interrogate the deputy principal. There are no proceedings on what transpired. The board was not considering the report of the disciplinary committee. I do not understand how the board expects the minor to follow the appellate rules when there was no primary decision.
32. It is important to note that the board’s decision was to re-expel the minor who had already been expelled by the Deputy Principal, who appeared to be under the impression that he had those powers. He had no such powers. He is not even a member of the board of management. It is surprising that though the Respondent appears to suggest that the parents were present and the student, there is no record indicating that they, like the two deputy principals and the sub-county director of education were in attendance at any time.
33. Petitioner’s case was also argued that the petitioner was not given written reasons before the carrying out of the administrative action. Indeed, he was literally thrown out of school and given his luggage to go home. At that point the student was expelled. The respondent purported that there are rules to be used.
34. The Basic Education Act, 2013, is an Act of Parliament to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes. The Act provides in section 13 as follows:
35. (1) Pupils shall be given appropriate incentives to learn and complete basic education.
(2) No pupil admitted in a school, subject to subsection (3) shall be held back in any class or expelled from school.
(3) Subject to subsection (1) the Cabinet Secretary may make regulations to prescribe expulsion or the discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity of being heard: Provided that such a pupil shall be admitted to an institution that focuses on correction in the context of education.
35. Section 54 of the Basic Education Act, 2013 provides as follows:
(7) The County Director of Education shall, subject to the authority of the Cabinet Secretary and in consultation with the County Government, perform the following functions.
36. Section 59 (f) of the Basic Education Act, 2013, provides as follows:
The functions of the Board of Management of a basic education institution shall be to:
(f) Determine cases of pupils’ discipline and make reports to the County Education Board;
37. The representative is therefore required to determine discipline and make reports to the County Education Board. In this case, the Deputy Principal determined the wrongs, took the alleged confessions, expelled the students, and even determined the manner of leaving the school, which was with immediate effect, with all books and beddings. The respondent then worked backward to validate the Deputy Principal's decision.
38. There are elaborate mechanisms for redress for the school. There is, however, no provision for verbal expulsion. The deputy principal exceeded his mandate by being the complainant, the confessor, the jury, the prosecutor, and the executioner and jailer. The kind of action by the school must be frowned upon. The right to fair administrative action must be proportionate and have regard to the nature of the right. It must also have age-appropriate measures to safeguard the minors’ rights.
39. The right to fair administrative action is enshrined under Article 47 of the 2010 Constitution as follows:
(1) Every person has the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration.
40. Is the act of terminating education for form four students at the tail end of the 8-4-4 system reasonable? The action meets the perfect test of irrational action.
41. The Basic Education Act enjoins the Respondent to first exhaust other mechanisms for correction before the option of expulsion is considered. There was absolutely no correction, or other record referred to or attempt to review any corrective measure. Such co
[...truncated]
(i) A declaration that the decision of the Respondent reached on 16.2.2026 to expel EMK was unconstitutional, unlawful and in breach of his right to fair administrative action and basic education.
(ii) An order for immediate readmission of EMK to the Respondent school to enable him attend and complete his secondary education without any hinderance whatsoever.
(iii) An order for compensation to the Petitioner’s son and herself for the loss and damage occasioned as a result of the Respondent’s actions.
(iv) Costs of the Petition.
2. The Petition was based on the grounds on its face and supported by the Supporting Affidavit of CWM and EMK, as well as the supplementary affidavit dated 24.3.2026 as follows:
a) On 16.2.2026, the Respondent expelled EMK from school for alleged drug abuse, which allegations were false and untrue.
b) The Deputy Head Teacher of the school summoned the Petitioner and her son to school via phone call and upon arrival, school rules and regulations prohibiting drug abuse were read to them. The deputy principal then asked EMK to collect his books and beddings and to meet the Petitioner at the school gate. No disciplinary hearing was conducted before the expulsion of EMK.
c) The Respondent school coerced EMK to write a confession regarding the alleged misconduct of abusing drugs. The decision was arrived at unilaterally and communicated verbally without written reasons.
d) The Respondent school subsequently summoned the Petitioner to school on 18.2.2026 when the Deputy Principal coerced her to sign a transfer request for her son with assurance of a positive report card on discipline if the recipient school made inquiries.
e) The Petitioner’s son has lost learning hours unused school fees, emotional distress, psychological injury and reputational harm.
f) The Respondent school has not registered the EMK in the KNEC despite having given him index number and so he will miss KCSE Exams scheduled for November 2026.
g) The Respondent breached the student’s right to fair trial, fair administrative action and education. The Petition appeared before the Respondent on 6.3.2026 and no evidence including of the alleged disciplinary committee minutes, CCTV or witness was tendered against EMK save for the alleged confession letter.
h) The Respondent ignored the evidence that the Petitioner took her son for drug test and results were negative. The hearing of 6.3.2026 was not a fair hearing as it had a redetermined judgment against EMK.
i) Dr. Mwirigi, the Chief Principal appeared in court and blamed the deputy for the actions but himself failed to lay down any action he took to forestall the breaches of the student’s rights. The decision of 6.3.2026 was never communicated to the Petitioner who learnt of it via the replying affidavit.
3. The Respondent filed a Replying Affidavit sworn by Dr. Silas Mwirigi, Chief Principal, on 26.3.2026 as follows:
a) Student doing drugs and aiding their purchase and distribution in school was a serious offence warranting expulsion and such rules were laid down to all students and parents while joining school.
b) EMK and others were got doing drugs and aiding their purchase and distribution in school. EMK did a letter dated 16.2.2026 confession to having been involved in drugs.
c) The Petitioner was called to school and was informed of the conduct of her son and request to wait for suspension letter before going with her son home but she became belligerent and left without waiting.
d) On 24.2.2026, the school invited the Petitioner and her son to a disciplinary hearing scheduled for 6.3.2026 but was served with this Petition on 4.3.2026. No decision has been made to expel the student as that is a mandate of the Respondent.
e) The disciplinary proceedings were subsequently made a decision reached and the student has since been registered for KCSE. The Petitioner should exhaust the appellate process under the Education Act and the petition is premature. He averred that the final decision lies with the ministry of education.
4. The interested parties did not file any documents in response to the petition. In any case their position is now settled by the supreme court in Methodist Church in Kenya v Fugicha & 3 others (Petition 16 of 2016) [2019] KESC 59 (KLR) , where the supreme court held as follows:
What should we make of a cross-petition fashioned as such? Yet this court has been categorical that the most crucial interest or stake in any case is that of the primary parties before the court. We did remark, in Francis Karioki Muruatetu & another v Republic & 5 others, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42):
“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court” [emphasis supplied].
54. In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others , Civil Appeal No 290 of 2012 (paragraph 24):
A suit in court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
5. The matter proceeded by way of written submissions. However, I had to call for the attendance of the school Principal in one of the sessions. I got a definite impression that he was at sea on what transpired, or feigned ignorance. I directed him to ensure that the minor was registered. He assured me that the registration had occurred. The principal appears ignorant of the processes and his ultimate role. He kept shifting responsibility to the Deputy Principal even in matters where the buck stops at his desk.
Submissions
6. The Petitioner filed submissions dated 24.3.2026. It was submitted that the Petitioner’s son was thrown out of school with beddings and all belongings on 16.2.2026 without a hearing on the alleged involvement in drugs. Further, there was no evidence of a disciplinary committee hearing or investigation before the expulsion, and the purported hearing on 16.3.2026 was an attempt to sanitize the infringement of the student's rights and fundamental freedoms. Reliance was placed on Section 4 of the Fair Administrative Action Act, which requires written reasons and a notice of right to review to justify an administrative action.
7. On the doctrine of exhaustion, it was submitted that the Respondent took unreasonably long to safeguard the rights of the student, and it was necessary that only the court would be an appropriate mechanism for justice. Reliance was placed on Geoffrey Muthinja & 4 others v Samuel Muguna Henry & 2 others [2022] KEHC 2085 (KLR) .
8. It was also submitted that there were exceptions to the exhaustion doctrine that applied to this case and reliance was placed inter alia on Fleur Investments Limited v held that: - Commissioner of Domestic Taxes & another (2018) eKLR .
9. On compensation, it was submitted that Ksh. 300,000/= would be adequate and supported by E K & 5 others v Registered Trustees of S H S [2015] KEHC 2692(KLR) .
10. On the part of the Respondent, submissions dated 1.4.2026 were filed. It was submitted that the student's registration had already been completed, and such prayers in the Petition were overtaken by events.
11. It was as such submitted that the Petition was filed without having exhausted the elaborate procedure for disciplinary action against the student and is premature.
12. The Respondent submitted that the right to education was not absolute, and where a student was involved in prohibited drugs, the Respondent had the responsibility to protect the welfare of other students in the school from being affected negatively.
13. The Respondent, however, cited no authorities.
Analysis
14. In this Petition, the issue that presents to me for determination is whether the Respondent acted in breach of the constitutional rights of the student under Articles 47 and 53 of the Constitution as to entitle the Petitioner to the reliefs sought. The Petitioner maintained that the rights and fundamental freedoms of the student were threatened and infringed when the student was thrown out of school without any hearing on the alleged drug abuse contrary to Article 25 and 47 of the Constitution. Therefore the petition raises four issues, that is:
a. Whether the petitioner’s right to fair hearing was breached
b. Whether the minor’s right to education was breached
c. Remedies and reliefs available
d. Doctrine of exhaustion
15. The Constitution imposes an obligation on all courts to promote the spirit, purport, and objects of the Bill of Rights, when interpreting legislation. In Phumelela Gaming and Leisure Ltd v Gründlingh and Others (2006) ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR 883 , the Constitutional Court observed as follows:
"A court is required to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation, and when developing the common law or customary law‘. In this no court has a discretion. The duty applies to the interpretation of all legislation and whenever a court embarks on the exercise of developing the common law or customary law. The initial question is not whether interpreting legislation through the prism of the Bill of Rights will bring about a different result. A court is simply obliged to deal with the legislation it has to interpret in a manner that promotes the spirit, purport and objects of the Bill of Rights. The same applies to the development of the common law or customary law.
16. This obligation bestowed on this Court resounds the special role of the judiciary in our system with respect to constitutional interpretation. In Marbury vs. Madison, 5 U.S. 137 (1803), it was observed that the courts, as well as other departments, are bound by the Constitution and must interpret it when a dispute so requires.
17. The Court of Appeal in Attorney General v Law Society of Kenya & another [2017] KECA 176 (KLR) , applied the case of ( Marbury vs. Madison) where they stated as follows:
What Chief Justice John Marshall observed in 1803 on the supremacy of the American Constitution in Marbury V. Madison, 5 U.S. (1 Cranch) 137 (1803), appear to have informed the enactment of the above section 3. Those words, which we reproduce below, apply to date in many jurisdictions, including ours. He said;
“The Constitution is the fundamental and paramount law of the nation, and that it cannot be altered by an ordinary act of the legislature. Therefore, an act of the Legislature repugnant to the Constitution is void…It would be an absurdity to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution: It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.......”
18. The above decision was affirmed in Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) by the Supreme Court.
19. This court is thus the ultimate guardian of the Constitution and its values. The constitutional court of South Africa in My Vote Counts NPC vs Speaker of the National Assembly and Others (CCT121/14) [2015] ZACC 31 (30 September 2015) stated thus:
"We are mindful that it is this Court that is the final arbiter on adherence to the Constitution and its values. On this, in Doctors for Life, Ngcobo J says:-
“…This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’. Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that ‘the obligations imposed by [the Constitution] must be fulfilled’. It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution."
20. The power of the court is set out in extension under Article 22 of the Constitution as follows in regard to the enforcement of fundamental rights and freedoms:
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) An association acting in the interest of one or more of its members.
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-
(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
(4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.
21. Article 23 of the constitution provides for the authority of courts to uphold and enforce the Bill of Rights. The court granted the primacy on the enforcement of these rights is the High Court under Article 165(3)(b) of the Constitution as follows:
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
22. Article 23 (1) of the constitution provides as follows:
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
23. The power is buttressed in Article 23(3) of the Constitution, which gives a gamut of remedies that the High Court may give. The sub Article provides as follows:
In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.
24. The manifestation of contravention or infringement of the constitutional rights is a matter that should be clearly spelt out by the grievant Petitioner. The apex court has discussed the prerequisites for a proper Constitutional Petition. In Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR the court stated as follows:
Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic , (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
25. Therefore, the Petitioner herein should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. The foregoing was fittingly captured in in Miscellaneous Criminal Application 4 of 1979, Anarita Karimi Njeru v Republic [1979] KLR where the court observed as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…
26. The requirement of precision is thus crucial to serve to derive the actual dispute for the determination by the court and goes to the root of the Petition as a pleading. In Constitutional Petition No E265 of 2021, Kenya Medical Practitioners, Pharmacists and Dentists’ Union v University of Nairobi & another [2021] eKLR, the court discussed the need for precision in approval to the precedent in Anarita Karimi decision and observed as follows: -
The foregoing finding (Anarita Karimi Njeru) received endorsement from the Court of Appeal in Nairobi Civil Appeal No 290 of 2012, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR as follows-
(41) We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.
27. The Petition herein meets the threshold for constitutional petitions but the issue is whether the violations are proved. The jurisdiction of this court is circumscribed under Article 165(3) of the Constitution of Kenya, which posits as follows: -
(3) Subject to clause (5), the High Court shall have-
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
28. It is noteworthy that there is no necessity that all constitutional petitions that come before this court must win. The condition was that the Petitioner raises constitutional questions as anticipated in the locus classicus of Anarita Karimi vs Republic , and once the court was satisfied that there was a justiciable case, based on a real and substantial controversy which unequivocally calls for adjudication of the rights asserted, that was enough. In Patrick Ouma Onyango & 12 Others v The Attorney General & 2 Others, Misc Appl No. 677 of 2005 , the court endorsed the doctrine of justiciability, as stated by Lawrence H. Tribe in his book American Constitutional Law , 2nd Edition, p. 92 that ;
'In order for a claim to be justiciable as an article III, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantially of the controversy is also a part of the controversy itself-an aspect of the appropriateness of the issues for judicial decision....and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors' .
29. I have perused the minutes of the Board and they appear choreographed to meet a specific end in mind. The student in this matter and the related matter were registered since the court had directed so. However, a third student who had not gone to court was expelled since he had not gone to court. This meant that the decision was made with the court case in mind.
30. Thirdly, the decision of the board should be by way of recommendation to the second interested party. However, in this case it was final. The original expulsion done by the Deputy Principal was not nullified by the board. The minor was already expelled by the time the board considered the expulsion. There can be no re-expulsion. The respondent could not validate an ultra vires action by the Deputy Principal.
31. Once service of the petition was effected, the board was convened on the same day as the hearing in court. After the court parties purported to hear the applicant and communicated the decision. There is no indication of what the minor said or any request to answer the charges. There is no record of the student having time to interrogate the deputy principal. There are no proceedings on what transpired. The board was not considering the report of the disciplinary committee. I do not understand how the board expects the minor to follow the appellate rules when there was no primary decision.
32. It is important to note that the board’s decision was to re-expel the minor who had already been expelled by the Deputy Principal, who appeared to be under the impression that he had those powers. He had no such powers. He is not even a member of the board of management. It is surprising that though the Respondent appears to suggest that the parents were present and the student, there is no record indicating that they, like the two deputy principals and the sub-county director of education were in attendance at any time.
33. Petitioner’s case was also argued that the petitioner was not given written reasons before the carrying out of the administrative action. Indeed, he was literally thrown out of school and given his luggage to go home. At that point the student was expelled. The respondent purported that there are rules to be used.
34. The Basic Education Act, 2013, is an Act of Parliament to give effect to Article 53 of the Constitution and other enabling provisions; to promote and regulate free and compulsory basic education; to provide for accreditation, registration, governance and management of institutions of basic education; to provide for the establishment of the National Education Board, the Education Standards and Quality Assurance Commission, and the County Education Board and for connected purposes. The Act provides in section 13 as follows:
35. (1) Pupils shall be given appropriate incentives to learn and complete basic education.
(2) No pupil admitted in a school, subject to subsection (3) shall be held back in any class or expelled from school.
(3) Subject to subsection (1) the Cabinet Secretary may make regulations to prescribe expulsion or the discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity of being heard: Provided that such a pupil shall be admitted to an institution that focuses on correction in the context of education.
35. Section 54 of the Basic Education Act, 2013 provides as follows:
(7) The County Director of Education shall, subject to the authority of the Cabinet Secretary and in consultation with the County Government, perform the following functions.
36. Section 59 (f) of the Basic Education Act, 2013, provides as follows:
The functions of the Board of Management of a basic education institution shall be to:
(f) Determine cases of pupils’ discipline and make reports to the County Education Board;
37. The representative is therefore required to determine discipline and make reports to the County Education Board. In this case, the Deputy Principal determined the wrongs, took the alleged confessions, expelled the students, and even determined the manner of leaving the school, which was with immediate effect, with all books and beddings. The respondent then worked backward to validate the Deputy Principal's decision.
38. There are elaborate mechanisms for redress for the school. There is, however, no provision for verbal expulsion. The deputy principal exceeded his mandate by being the complainant, the confessor, the jury, the prosecutor, and the executioner and jailer. The kind of action by the school must be frowned upon. The right to fair administrative action must be proportionate and have regard to the nature of the right. It must also have age-appropriate measures to safeguard the minors’ rights.
39. The right to fair administrative action is enshrined under Article 47 of the 2010 Constitution as follows:
(1) Every person has the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration.
40. Is the act of terminating education for form four students at the tail end of the 8-4-4 system reasonable? The action meets the perfect test of irrational action.
41. The Basic Education Act enjoins the Respondent to first exhaust other mechanisms for correction before the option of expulsion is considered. There was absolutely no correction, or other record referred to or attempt to review any corrective measure. Such co
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