1. These Judicial Review proceedings were initiated by way of an Originating Motion, dated 24th June 2026, filed herein, for 2 certiorari, 2 mandamus and 3 prohibition orders, directed at the respondents, with respect to disciplinary proceedings, conducted by them, touching on the minor applicant.
2. According to the facts, set out on the face of the Originating Motion and in the supporting affidavit, sworn by Mr. Charles Okundi, the father of the minor applicant, on 24th June 2026, the minor applicant was a student at Dagoretti High School. He was, on 13th May 2026, required to record a statement on a planned incitement and unrest at the school. He was summoned to the office of the Deputy Principal, and taken to the Dagoretti Police Station, where he spent the night, before being returned to school, on 14th May 2026, and placed on suspension, on 15th May 2026. A suspension letter was subsequently issued, on 22nd May 2026, relating to alleged events of the 20th and 21st days of May 2026. Disciplinary proceedings were mounted on 29th May 2026, and the outcome was communicated 10 days later, by a letter dated 8th June 2026. The minor applicant was placed on further suspension, and was to appear before the 1st respondent on 12th June 2026. The proceedings of 12th June 2026 were conducted, and a letter of 15th June 2026, referred the matter to the 3rd respondent.
3. The minor applicant, through his father, avers that his parents were not informed or notified when the matter was escalated to the police on 13th May 2026. He further avers that there was no documentary communication when he was placed on suspension on 15th May 2026, and no internal disciplinary committee sat to deliberate on the matter. The documentary communication of the suspension came by a letter of 22nd May 2026, and, even then, it related to events of the 20th and 21st days of May 2026, when he was not at school. He complains that the disciplinary proceedings were mounted, on 29th May 2026, after his suspension, yet the proceedings should have preceded the suspension. He further argues that the suspension should have been followed by a hearing before the 1st respondent.
4. The instant proceedings are grounded on Articles 19(3), 20(1), 21(1), 22(1), 23(1)(3), 24, 28, 29(d), 35(1)(b), 47, 50(1) and 53(1)(d)(2) of the Constitution; sections 2, 4(1), 7 and 11 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya; and regulations 38, 39(5) and 40 of the Basic Education Regulations. The application is founded on several grounds, relating to non-compliance with the mandatory procedures prescribed by the enabling provisions; procedural flaws; ultra vires, arbitrariness, lack of proportionality and irrationality.
5. Several documents are exhibited, in the affidavit, in support of the quest. These are the letter from the 2nd respondent, dated 22nd May 2026, suspending the minor applicant from the school for gross misconduct; a letter from the 1st and 2nd respondents, dated 28th June 2026, extending the suspension, pending hearing before the 3rd respondent, on 12th June 2026; and a letter from the 1st and 2nd respondents, dated 15th June 2026, addressed to the father of the minor applicant, explaining the disciplinary process and its outcome.
6. The respondents were served, with the Originating Motion, for I have seen, on the record, affidavits of service, sworn on 7th July 2026 and 10th July 2026, evidencing the said service.
7. The respondents filed a replying affidavit, sworn on 13th July 2026, by Mr. John Kairu Ndathe, the 2nd respondent. He avers that the school, like all others, was run under rules and regulations, including rule 7, defining gross misconduct. The minor applicant was accused of attempting to cause unrest, at the school, on 21st May 2026, during night preps, and the matter was escalated to the police, from Matini Police Post, and it was agreed that the minor applicant, and others, spend the night at the police station, to protect them from the wrath of other learners. Upon investigations, the minor applicant was implicated, alongside others, as a ringleader. On 22nd May 2026, he was suspended from the school, for a period of 14 days. The minor applicant was required to come back to school, on 29th May 2026, accompanied by a parent, to face the school disciplinary committee, for violation of rule 7 of the school rules.
8. It is averred that the disciplinary proceedings, of 29th June 2026, were conducted, in the presence of the father of the minor applicant, and the minor applicant was afforded a fair hearing, in line with the Fair Administrative Action Act. The internal school disciplinary committee found the minor applicant liable for gross misconduct, and referred his case to the 1st respondent. The 1st respondent conducted its proceedings, on the matter, in the presence of the minor applicant and his father, on 12th June 2026, and the minor applicant was found guilty as charged. The 1st respondent thereafter referred the matter to the 3rd respondent, given that the minor applicant was registered to sit for national examinations.
9. It is further averred that the minor applicant and his father had been informed of the accusations against him, and afforded an opportunity to present his case. It is argued that the instant proceedings, for judicial review, are premature, as the minor applicant has not exhausted the internal dispute resolution mechanisms, for the 3rd respondent is yet to give its final verdict on the matter before it. It is asserted that the provisions of section 9(2) of the Fair Administrative Action Act and regulation 40 of the Basic Education Regulations have been offended, with respect to the exhaustion principle.
10. Attached to that replying affidavit are several documents. There is a letter, dated 22nd May 2026, from the 1st and 2nd respondents, addressed to the father of the minor applicant, communicating his suspension from school, for incitement and disruption of learning on the evening of 21st May 2026, and inviting him and the minor to the school disciplinary committee proceedings, slated for 29th May 2026. There is the letter dated 8th June 2026, similarly addressed to the parent of the minor applicant, referring the matter to the 1st respondent, and requiring an appearance on 12th June 2026. There are minutes of the meeting of the 1st respondent, of 12th June 2026, when the disciplinary matter of the minor applicant, among other issues, were deliberated on, before it was resolved that the matter be escalated to the 3rd respondent for disciplinary action, upon the minor applicant being found guilty. The final annexture is a letter, dated 13th June 2026, formally referring the case of the minor applicant, and others, to the 3rd respondent.
11. Directions were taken, on 15th July 2026, for canvassing of the application, by way of written submissions. The written submissions, by the minor applicant, are dated 28th July 2026; while those by the respondents are dated 27th July 2026. I have read through the said written submissions, and noted the respective arguments made in them.
12. The applicant identifies 2 issues for determination, that is on whether the decision of the 1st respondent lacked proportionality and whether the judicial review remedies sought ought to be granted. He cites regulation 39 of the Basic Education Regulations, Article 53 of the Constitution and Republic vs. Board of Management, Mbaikini Boys High School & another Ex-parties AMK & 4 others [2022] eKLR.
13. The respondents submit around 2 issues too, whether the proper disciplinary procedure was followed, and whether the orders sought should be granted. They cite regulations 38(b) and 39(5) of the Basic Education Regulations, and section 9(2) of the Fair Administrative Action Act; and rely on Republic vs. Public Procurement Administrative Review Board & another ex parte GIBB Africa Limited & another [2012] eKLR, Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300, Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] KECA 58 (KLR), Republic vs. University of Nairobi [2002] 2 EA 572 and Republic vs. Commissioner of Customs Service ex parte Africa K-Link International Limited [2012] eKLR.
14. These are judicial review proceedings. I need to remind myself of the scope of such proceedings. They focus on the process that the administrative tribunal used in the course of making the impugned decision. It is not about the merits of the decision, for it is not an appeal against that decision. Going by Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300, the decision is looked at from the parameters of legality, rationality and reasonableness, and procedural fairness or propriety.
15. The jurisdiction exercised by the respondents, to make the decisions of the sort the subject of these proceedings, is derived from the Basic Education Act, Cap 211, Laws of Kenya, and the rules or regulations made under it, being the Basic Education Regulations. The Basic Education Act does not deal directly with student disciplinary proceedings, but establishes the administrative bodies responsible for such. It is the Basic Education Regulations which carries provisions on school rules and disciplinary procedures.
16. The relevant provisions, in the Basic Education Regulations, on school rules and discipline, are in Part III. The provisions that are relevant, for the purposes of these proceedings, are regulations 38, 39 and 40. Regulation 38 is on suspension letters, which issue where acts of indiscipline, which are defined in regulation 32, persist, in spite of warnings or corrective measures, and are likely to threaten the safety of other learners. The procedure is that the head of the institution would issue the letter, addressed to the parent or guardian, suspending the learner, indicating the nature of the indiscipline and the date when the learner, accompanied by the parent or guardian is required to appear before the Board of Management of the institution.
17. Regulation 39 is the procedure for handling disciplinary cases, by the Board of Management. Particulars of the charge are read out to the learner and the parent or guardian, and the learner is asked to defend himself. Where the parent or guardian fails to appear, the business of the Board of Management would be adjourned, and the matter deferred to another date, with notice to the parties to appear. If the parent or guardian fails to appear, at the re-scheduled meeting, the case would be heard, his or her absence notwithstanding. The attendance of the learner is mandatory at the sessions. The recommendation of the Board of Management would be communicated within 2 days to the County Director of Education.
18. Regulation 40 is about exclusion of the learner from the institution in case of indiscipline. Upon receipt of the recommendation, under regulation 39, by the County Director of Education from the Board of Management, the County Director of Education would seek advice of the County Education Board, on whether to order re-admission of the learner, or his transfer to an alternative institution, or transfer to a corrective centre, in the context of education. Regulations 41 and 42 are also relevant. There is provision for an appeal, from a decision under regulation 40, to the Education Appeals Tribunal. Schools, by virtue of those provisions, have no power to withdraw a learner, as a candidate in a national examination, as a form of punishment.
19. My remit, in judicial review proceedings, such as these, would be to determine whether the minor applicant was subjected to proceedings that were aligned to the process envisaged under the Basic Education Regulations. As indicated above, I am not seized of an appeal, to the merits of the impugned decision. The appellate jurisdiction, on the merits of the impugned decision, rests with the Education Appeals Tribunal, contemplated under regulation 42.
20. So, was the laid down procedure followed in this case? I note that both sides rely on the same documents, being the letters dated 22nd May 2026 and 8th June 2026. The minor applicant, in addition, refers to another letter, dated 15th June 2026; while the respondents add the minutes of 12th June 2026 and a letter dated 13th June 2026. Both parties are, therefore, reading from the same script.
21. The point of departure, however, is the allegation by the minor applicant, that he was placed under police custody, in the night of the 13th and 14th May 2026, before suspension on 15th May 2026, which was confirmed by the letter of 22nd May 2026. It is argued that the suspension of 15th May 2026 was without legal authority. The respondents have not addressed themselves to the alleged events of the night of 13th and 14th May 2026, and 15th May 2026, and confine themselves to the events of 22nd May 2026, onwards. The minor applicant alludes to 2 sets of events, while the respondents allude to only 1.
22. The documentary material, placed on record, by both sides, relates to only 1 event, and that is that the unrest happened on 21st May 2026, leading to the confinement of the minor applicant in a police station, and subsequent suspension on 22nd May 2026, and the events that followed. The case, by the minor applicant, is aligned with that documentary trail, going by the documents that he has himself supplied. He has made allegations about events on 13th, 14th and 15th May 2026, but he has provided no documentary material to support them. Being held in police custody is always documented, as required by law, and, if the minor applicant desired to establish, to the court, for a fact, that the police detention did indeed happen on the night of 13th and 14th May 2026, then he ought to have obtained the evidence, to that effect, from the police. He who alleges is required to prove their allegations. I have no material before me, to support the assertions that these events happened on 13th, 14th and 15th May 2026. What has been placed on record only relates to 22nd May 2026.
23. I have found compliance with regulation 38, relating to the suspension by the 2nd respondent. The letter was addressed to the parent or guardian of the minor applicant. There was, of course, no evidence of persistent acts of indiscipline, warnings and corrective measures, but the act of indiscipline complained of, of the evening of 21st May 2026, would appear to have been grave enough to require immediate suspension, hence the action taken through the letter of 22nd May 2026. That letter required the learner and the parent or guardian to appear before the 1st respondent, on an appointed date.
24. The minor applicant has argued that his suspension was improper, for he was suspended before disciplinary proceedings were conducted. According to him, the disciplinary proceedings ought to have preceded the suspension, so that the suspension was the outcome of the disciplinary proceedings. Yet, he has not cited any law which requires that. The Basic Education Regulations, which he premises these proceedings on, from my reading of its provisions, does not require so. It empowers, by virtue of regulation 38, the head of the institution to place a learner on suspension, after which the Board of Management of the institution sits to deliberate on the matter.
25. I also find that regulation 39 was complied with, in terms of the procedure adopted, in the handling of the disciplinary proceedings before the 1st respondent. There are minutes on record, which detail what happened before the 1st respondent. The minor applicant appeared before the 1st respondent, in the company of his father, and they were given an opportunity to address the 1st respondent, on the issues. Recommendations were made, by the 1st respondent, to the 3rd respondent, which were communicated, within 2 days, vide the letter of 13th June 2026. Regulation 40 was also complied with, for the right of the minor applicant, relating to his candidature in the national examinations, was not interfered with, in view of the recommendations in the letter of 13th June 2026.
26. In view of the above, it has not been demonstrated that the proceedings and the impugned decision were illegal or irrational, or that there was procedural impropriety or unfairness.
27. The procedure prescribed, under Part III of the Basic Education Regulations, envisages an appeal. The matter was escalated to the 3rd respondent, and it would appear that a decision is yet to be made by the 3rd respondent. With respect to the right of appeal, I would state that the minor applicant has not exhausted the dispute resolution mechanism envisaged, under regulation 41, upon being dissatisfied with the determinations by the administrative bodies, set up under Part III of the Basic Education Regulations. He should have exhausted that process, before moving the High Court. He should have waited for the decision of the 3rd respondent, and, if, he was dissatisfied with it, challenge it at the Education Appeals Tribunal, by way of an appeal. It is only upon the determination of an appeal, by the Education Appeals Tribunal, that he would approach this court, by way of judicial review, to challenge the handling of the appeal by the Education Appeals Tribunal. I would agree, that these judicial review proceedings are premature.
28. In the end, I am not persuaded that the prayers sought, in the originating motion, dated 24th June 2026, are adequately substantiated or established, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. It has not been established that the respondents have acted illegally or in excess of jurisdiction, or their decisions are irrational or unreasonable, or that they adopted procedures, in the lead up to the determinations of the matters before them, which were unfair or improper. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its own costs. Orders accordingly.
DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT NAIVASHA, ON THIS 31ST DAY OF AUGUST 2026.
W MUSYOKA
JUDGE
Mr. Abdirahman, Court Assistant.
Advocates
Mr. Ondu, instructed by BT Atancha & Company, Advocates for the applicant.
Mr. Wanjohi, instructed by the Attorney General, for the respondents.
2. According to the facts, set out on the face of the Originating Motion and in the supporting affidavit, sworn by Mr. Charles Okundi, the father of the minor applicant, on 24th June 2026, the minor applicant was a student at Dagoretti High School. He was, on 13th May 2026, required to record a statement on a planned incitement and unrest at the school. He was summoned to the office of the Deputy Principal, and taken to the Dagoretti Police Station, where he spent the night, before being returned to school, on 14th May 2026, and placed on suspension, on 15th May 2026. A suspension letter was subsequently issued, on 22nd May 2026, relating to alleged events of the 20th and 21st days of May 2026. Disciplinary proceedings were mounted on 29th May 2026, and the outcome was communicated 10 days later, by a letter dated 8th June 2026. The minor applicant was placed on further suspension, and was to appear before the 1st respondent on 12th June 2026. The proceedings of 12th June 2026 were conducted, and a letter of 15th June 2026, referred the matter to the 3rd respondent.
3. The minor applicant, through his father, avers that his parents were not informed or notified when the matter was escalated to the police on 13th May 2026. He further avers that there was no documentary communication when he was placed on suspension on 15th May 2026, and no internal disciplinary committee sat to deliberate on the matter. The documentary communication of the suspension came by a letter of 22nd May 2026, and, even then, it related to events of the 20th and 21st days of May 2026, when he was not at school. He complains that the disciplinary proceedings were mounted, on 29th May 2026, after his suspension, yet the proceedings should have preceded the suspension. He further argues that the suspension should have been followed by a hearing before the 1st respondent.
4. The instant proceedings are grounded on Articles 19(3), 20(1), 21(1), 22(1), 23(1)(3), 24, 28, 29(d), 35(1)(b), 47, 50(1) and 53(1)(d)(2) of the Constitution; sections 2, 4(1), 7 and 11 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya; and regulations 38, 39(5) and 40 of the Basic Education Regulations. The application is founded on several grounds, relating to non-compliance with the mandatory procedures prescribed by the enabling provisions; procedural flaws; ultra vires, arbitrariness, lack of proportionality and irrationality.
5. Several documents are exhibited, in the affidavit, in support of the quest. These are the letter from the 2nd respondent, dated 22nd May 2026, suspending the minor applicant from the school for gross misconduct; a letter from the 1st and 2nd respondents, dated 28th June 2026, extending the suspension, pending hearing before the 3rd respondent, on 12th June 2026; and a letter from the 1st and 2nd respondents, dated 15th June 2026, addressed to the father of the minor applicant, explaining the disciplinary process and its outcome.
6. The respondents were served, with the Originating Motion, for I have seen, on the record, affidavits of service, sworn on 7th July 2026 and 10th July 2026, evidencing the said service.
7. The respondents filed a replying affidavit, sworn on 13th July 2026, by Mr. John Kairu Ndathe, the 2nd respondent. He avers that the school, like all others, was run under rules and regulations, including rule 7, defining gross misconduct. The minor applicant was accused of attempting to cause unrest, at the school, on 21st May 2026, during night preps, and the matter was escalated to the police, from Matini Police Post, and it was agreed that the minor applicant, and others, spend the night at the police station, to protect them from the wrath of other learners. Upon investigations, the minor applicant was implicated, alongside others, as a ringleader. On 22nd May 2026, he was suspended from the school, for a period of 14 days. The minor applicant was required to come back to school, on 29th May 2026, accompanied by a parent, to face the school disciplinary committee, for violation of rule 7 of the school rules.
8. It is averred that the disciplinary proceedings, of 29th June 2026, were conducted, in the presence of the father of the minor applicant, and the minor applicant was afforded a fair hearing, in line with the Fair Administrative Action Act. The internal school disciplinary committee found the minor applicant liable for gross misconduct, and referred his case to the 1st respondent. The 1st respondent conducted its proceedings, on the matter, in the presence of the minor applicant and his father, on 12th June 2026, and the minor applicant was found guilty as charged. The 1st respondent thereafter referred the matter to the 3rd respondent, given that the minor applicant was registered to sit for national examinations.
9. It is further averred that the minor applicant and his father had been informed of the accusations against him, and afforded an opportunity to present his case. It is argued that the instant proceedings, for judicial review, are premature, as the minor applicant has not exhausted the internal dispute resolution mechanisms, for the 3rd respondent is yet to give its final verdict on the matter before it. It is asserted that the provisions of section 9(2) of the Fair Administrative Action Act and regulation 40 of the Basic Education Regulations have been offended, with respect to the exhaustion principle.
10. Attached to that replying affidavit are several documents. There is a letter, dated 22nd May 2026, from the 1st and 2nd respondents, addressed to the father of the minor applicant, communicating his suspension from school, for incitement and disruption of learning on the evening of 21st May 2026, and inviting him and the minor to the school disciplinary committee proceedings, slated for 29th May 2026. There is the letter dated 8th June 2026, similarly addressed to the parent of the minor applicant, referring the matter to the 1st respondent, and requiring an appearance on 12th June 2026. There are minutes of the meeting of the 1st respondent, of 12th June 2026, when the disciplinary matter of the minor applicant, among other issues, were deliberated on, before it was resolved that the matter be escalated to the 3rd respondent for disciplinary action, upon the minor applicant being found guilty. The final annexture is a letter, dated 13th June 2026, formally referring the case of the minor applicant, and others, to the 3rd respondent.
11. Directions were taken, on 15th July 2026, for canvassing of the application, by way of written submissions. The written submissions, by the minor applicant, are dated 28th July 2026; while those by the respondents are dated 27th July 2026. I have read through the said written submissions, and noted the respective arguments made in them.
12. The applicant identifies 2 issues for determination, that is on whether the decision of the 1st respondent lacked proportionality and whether the judicial review remedies sought ought to be granted. He cites regulation 39 of the Basic Education Regulations, Article 53 of the Constitution and Republic vs. Board of Management, Mbaikini Boys High School & another Ex-parties AMK & 4 others [2022] eKLR.
13. The respondents submit around 2 issues too, whether the proper disciplinary procedure was followed, and whether the orders sought should be granted. They cite regulations 38(b) and 39(5) of the Basic Education Regulations, and section 9(2) of the Fair Administrative Action Act; and rely on Republic vs. Public Procurement Administrative Review Board & another ex parte GIBB Africa Limited & another [2012] eKLR, Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300, Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] KECA 58 (KLR), Republic vs. University of Nairobi [2002] 2 EA 572 and Republic vs. Commissioner of Customs Service ex parte Africa K-Link International Limited [2012] eKLR.
14. These are judicial review proceedings. I need to remind myself of the scope of such proceedings. They focus on the process that the administrative tribunal used in the course of making the impugned decision. It is not about the merits of the decision, for it is not an appeal against that decision. Going by Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300, the decision is looked at from the parameters of legality, rationality and reasonableness, and procedural fairness or propriety.
15. The jurisdiction exercised by the respondents, to make the decisions of the sort the subject of these proceedings, is derived from the Basic Education Act, Cap 211, Laws of Kenya, and the rules or regulations made under it, being the Basic Education Regulations. The Basic Education Act does not deal directly with student disciplinary proceedings, but establishes the administrative bodies responsible for such. It is the Basic Education Regulations which carries provisions on school rules and disciplinary procedures.
16. The relevant provisions, in the Basic Education Regulations, on school rules and discipline, are in Part III. The provisions that are relevant, for the purposes of these proceedings, are regulations 38, 39 and 40. Regulation 38 is on suspension letters, which issue where acts of indiscipline, which are defined in regulation 32, persist, in spite of warnings or corrective measures, and are likely to threaten the safety of other learners. The procedure is that the head of the institution would issue the letter, addressed to the parent or guardian, suspending the learner, indicating the nature of the indiscipline and the date when the learner, accompanied by the parent or guardian is required to appear before the Board of Management of the institution.
17. Regulation 39 is the procedure for handling disciplinary cases, by the Board of Management. Particulars of the charge are read out to the learner and the parent or guardian, and the learner is asked to defend himself. Where the parent or guardian fails to appear, the business of the Board of Management would be adjourned, and the matter deferred to another date, with notice to the parties to appear. If the parent or guardian fails to appear, at the re-scheduled meeting, the case would be heard, his or her absence notwithstanding. The attendance of the learner is mandatory at the sessions. The recommendation of the Board of Management would be communicated within 2 days to the County Director of Education.
18. Regulation 40 is about exclusion of the learner from the institution in case of indiscipline. Upon receipt of the recommendation, under regulation 39, by the County Director of Education from the Board of Management, the County Director of Education would seek advice of the County Education Board, on whether to order re-admission of the learner, or his transfer to an alternative institution, or transfer to a corrective centre, in the context of education. Regulations 41 and 42 are also relevant. There is provision for an appeal, from a decision under regulation 40, to the Education Appeals Tribunal. Schools, by virtue of those provisions, have no power to withdraw a learner, as a candidate in a national examination, as a form of punishment.
19. My remit, in judicial review proceedings, such as these, would be to determine whether the minor applicant was subjected to proceedings that were aligned to the process envisaged under the Basic Education Regulations. As indicated above, I am not seized of an appeal, to the merits of the impugned decision. The appellate jurisdiction, on the merits of the impugned decision, rests with the Education Appeals Tribunal, contemplated under regulation 42.
20. So, was the laid down procedure followed in this case? I note that both sides rely on the same documents, being the letters dated 22nd May 2026 and 8th June 2026. The minor applicant, in addition, refers to another letter, dated 15th June 2026; while the respondents add the minutes of 12th June 2026 and a letter dated 13th June 2026. Both parties are, therefore, reading from the same script.
21. The point of departure, however, is the allegation by the minor applicant, that he was placed under police custody, in the night of the 13th and 14th May 2026, before suspension on 15th May 2026, which was confirmed by the letter of 22nd May 2026. It is argued that the suspension of 15th May 2026 was without legal authority. The respondents have not addressed themselves to the alleged events of the night of 13th and 14th May 2026, and 15th May 2026, and confine themselves to the events of 22nd May 2026, onwards. The minor applicant alludes to 2 sets of events, while the respondents allude to only 1.
22. The documentary material, placed on record, by both sides, relates to only 1 event, and that is that the unrest happened on 21st May 2026, leading to the confinement of the minor applicant in a police station, and subsequent suspension on 22nd May 2026, and the events that followed. The case, by the minor applicant, is aligned with that documentary trail, going by the documents that he has himself supplied. He has made allegations about events on 13th, 14th and 15th May 2026, but he has provided no documentary material to support them. Being held in police custody is always documented, as required by law, and, if the minor applicant desired to establish, to the court, for a fact, that the police detention did indeed happen on the night of 13th and 14th May 2026, then he ought to have obtained the evidence, to that effect, from the police. He who alleges is required to prove their allegations. I have no material before me, to support the assertions that these events happened on 13th, 14th and 15th May 2026. What has been placed on record only relates to 22nd May 2026.
23. I have found compliance with regulation 38, relating to the suspension by the 2nd respondent. The letter was addressed to the parent or guardian of the minor applicant. There was, of course, no evidence of persistent acts of indiscipline, warnings and corrective measures, but the act of indiscipline complained of, of the evening of 21st May 2026, would appear to have been grave enough to require immediate suspension, hence the action taken through the letter of 22nd May 2026. That letter required the learner and the parent or guardian to appear before the 1st respondent, on an appointed date.
24. The minor applicant has argued that his suspension was improper, for he was suspended before disciplinary proceedings were conducted. According to him, the disciplinary proceedings ought to have preceded the suspension, so that the suspension was the outcome of the disciplinary proceedings. Yet, he has not cited any law which requires that. The Basic Education Regulations, which he premises these proceedings on, from my reading of its provisions, does not require so. It empowers, by virtue of regulation 38, the head of the institution to place a learner on suspension, after which the Board of Management of the institution sits to deliberate on the matter.
25. I also find that regulation 39 was complied with, in terms of the procedure adopted, in the handling of the disciplinary proceedings before the 1st respondent. There are minutes on record, which detail what happened before the 1st respondent. The minor applicant appeared before the 1st respondent, in the company of his father, and they were given an opportunity to address the 1st respondent, on the issues. Recommendations were made, by the 1st respondent, to the 3rd respondent, which were communicated, within 2 days, vide the letter of 13th June 2026. Regulation 40 was also complied with, for the right of the minor applicant, relating to his candidature in the national examinations, was not interfered with, in view of the recommendations in the letter of 13th June 2026.
26. In view of the above, it has not been demonstrated that the proceedings and the impugned decision were illegal or irrational, or that there was procedural impropriety or unfairness.
27. The procedure prescribed, under Part III of the Basic Education Regulations, envisages an appeal. The matter was escalated to the 3rd respondent, and it would appear that a decision is yet to be made by the 3rd respondent. With respect to the right of appeal, I would state that the minor applicant has not exhausted the dispute resolution mechanism envisaged, under regulation 41, upon being dissatisfied with the determinations by the administrative bodies, set up under Part III of the Basic Education Regulations. He should have exhausted that process, before moving the High Court. He should have waited for the decision of the 3rd respondent, and, if, he was dissatisfied with it, challenge it at the Education Appeals Tribunal, by way of an appeal. It is only upon the determination of an appeal, by the Education Appeals Tribunal, that he would approach this court, by way of judicial review, to challenge the handling of the appeal by the Education Appeals Tribunal. I would agree, that these judicial review proceedings are premature.
28. In the end, I am not persuaded that the prayers sought, in the originating motion, dated 24th June 2026, are adequately substantiated or established, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. It has not been established that the respondents have acted illegally or in excess of jurisdiction, or their decisions are irrational or unreasonable, or that they adopted procedures, in the lead up to the determinations of the matters before them, which were unfair or improper. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its own costs. Orders accordingly.
DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT NAIVASHA, ON THIS 31ST DAY OF AUGUST 2026.
W MUSYOKA
JUDGE
Mr. Abdirahman, Court Assistant.
Advocates
Mr. Ondu, instructed by BT Atancha & Company, Advocates for the applicant.
Mr. Wanjohi, instructed by the Attorney General, for the respondents.