1. This is a ruling on applications dated 29.1.25 and 3. 2.25 filed by the 1st and second Petitioners respectively seeking confirmation conservatory orders herein and the another application is dated 6.2.25 and filed by the 1st and 2nd respondents seeking to have the interim conservatory order issued on 3.2.2025 lifted..
2. The Petitioners Applications which were similar seek are based on the following grounds;
1) That on 8th January 2025, the 1st to 4th respondents released the Kenya Certificate of secondary Examinations (KCSE Examinations) to the general public and advised the public to inquire their results through examination portal
2) That during the release of the impugned KCSE 2024 results, the 3rd & 4Th respondent (CS ministry of education) said quote
“Starting this year, and following extensive stakeholder consultations, I wish to announce that KNEC will introduce a midyear series of the KCSE examination, to be administered in July every year. The examination will target candidates wishing to repeat the KCSE examination, and those who may have missed sitting an examination due to sickness or other unexpected hardships. Adult candidates may also consider registering for the July KCSE series examination”
3) That further to the above press release, on 22nd January 2025, the 1st respondent suo moto released a circular dabbed “GUIDELINES ON ADMINISTRATION OF THE 2025 KCSE (JULY 2025) SERIES EXAMINATION”. On perusal of the said guidelines at paragraph 2.2 , the 1st and 2nd respondents in collaboration with the 3rd and 4th respondents made a far reaching administrative action which prima facie affects the rights and fundamental freedoms of learners and/or parents/guardians. The said administrative action was to the effect;
2.2 all repeaters and private candidates MUST register for the July series and not the November KCSE examination series;
6.0 please note that KNEC registration portal for the July series shall be closed on Friday 21st February 2025 and there will be no provision for late registration candidates once the portal is closed. All the relevant stakeholders including candidates must therefore be informed on the need to adhere to the set timelines
4) That registration of learners will start on 27th January 2025 to 21st February 2024.
5) That despite the respondents insinuating involvement various stakeholders and public participation, no evidence of stakeholders and/or public participation was ever undertaken. The decision was whimsical “which just dropped from the blues/sky”
6) That the above direction/guidelines/impugned administrative action violates several constitutional provisions inter alia as enumerated below.
a) That purported paragraph (paragraph 2.2) and the other parts of the guidelines were made without any stakeholders consultation and/or without public participation contrary to article 10 as read with article 1, 3,73,75 of the constitution.
b) That the mandatory nature, as opposed to choosing either to sit on July or November’s examination series, goes against the right of every individual to choose examination which is convenient to him/her so as to enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent as provided in article 20(2) of the constitution
c) That the yearly examinations has always been sat/done on November of every year and thus every learner had a Legitimate Expectation that should he/she fail, she would repeat the same and/or as an adult learner sit the said examinations in November 2024. That abruptly changing the said date and without involving the affected learners and stakeholders and public is against legitimate expectation of the affected learners, and their parents and stakeholders.
d) That the yearly examinations has always been registered latest by 31st March of every year and thus every learner had a Legitimate Expectation to register by then, and that considering that the Repeaters and adult learners do not benefit from government’s free examination and tuition fees and further considering Kenya’s poor economic status, the abrupt change to February 21st 2025 affected their ability to register for the impugned examinations and this change affected the learners’ legitimate expectation to their right to education contrary to article 1,3,10,73,75 of the constitution.
e) That the impugned administrative guidelines were made without any iota of care to the affected students and parents and hence they were made contravention of article 47
f) That the impugned administrative guidelines by the very nature affected the right to education as provided in article 43(1) (f) of the constitution.
g) That the impugned administrative guidelines by the very nature introduced two classes/groups of people: one class with limited time of preparation (July) while the other brings another class/group of people with long preparation revision time (November series) without rational justification. This is contrary to article 27 as read with article 24, 10, 73 and 75 of the constitution.
h) That despite the 3rd & 4Th respondent (CS Education) stating during the release of KCSE results on 8th January 2025 that “Adult candidates MAY also consider registering for the July KCSE series examination”, the 1St- 2nd respondent in its guidelines stated “All repeaters and private candidates MUST register for the July series and not the November KCSE examination series, essentially giving conflicting guidelines.
i) That the actions and/or omissions of the respondents are irrational, arbitrary and without any scientific and/or empirical reasoning. The respondents have not explained/justified why they decided on July and not march or June or October. The July date decision date was whimsically made and inconsiderate and irrational.
j) That impugned administrative action guidelines with short preparation period will impede one’s effort to achieve his/her economic and labour market ostensibly by scoring less than expected. This actions and/or omissions contravenes article 10, 41, 43 and 73 of the constitution
k) That impugned guidelines with did not give the learners and their parents information necessary to gain full benefit of education examinations and as a result, the impugned administrative action took away consumer rights as enshrined in article 46 of the constitution.
7) That, the impugned administrative guidelines were made by essentially forcing learners to do their examination on July as opposed to November 2025 against article 53 of the constitution on the best interests of the child.
8) That the actions of the respondents is against the international instrument of the Convention on the Rights of the Child based on four fundamental principle which include the right to equal treatment No child shall be placed at a disadvantage, whether because of their gender, origin or nationality, language, religion or skin color, a disability or their political views; the right to respect for the best interests of the child; The right to life and development and The right to be heard and to participate.
9) That if this Honourable court does not stop the illegal actions and/omissions done by the respondents then the outlined constitutional violations will continue against the rule of law and principles of good governance.
10) That from the foregoing, this action of the respondents will lead to inter alia loss of public confidence and outright abuse of administrative power to the detriment of many other young Kenyans in the county.
11) That It is important to maintain constitutionalism, rule of law, Law and Order, good governance and protecting of the constitution.
12) That in the circumstances, this radical , irrational, illegal decision which has been made by the respondents to defenseless Kenyans ought to be temporarily suspended and then declared illegal null and void and be quashed.
13) That this matter is of Public interest. This court has jurisdiction over this matter and I pray that it will be fair, just and expedient that this Motion be allowed.
3. On the other had the 1st and 2nd Respondents Application is based following grounds;
a) The of the conservatory orders have the effect of throwing the registration process into limbo while there are a number of candidates who have registered for the July 2025 Examinations and eagerly expect to sit for the said examinations in July and there are those who have been awaiting to register.
b) The Petitioners have failed to identify any persons whose interests are being served by the continuance of the conservatory orders vis-a-vis the large number of persons who the 1st Respondent can identify and who have already registered for the July 2025 examination and have legitimate expectation that they will have the chance to sit for their exams.
c) The balance of convenience therefore tilts in the favor of the lifting the interim orders as they serve to cause more harm than good to persons who are known as against those who have not been identified.
d) The Petitioners have failed to produce evidence of irreparable loss or damage on any unnamed beneficiary to the conservatory order in the event that the process is allowed to continue. This fact is made stronger by the fact that the candidates who do not wish to register for the exams in the July 2025 will have the opportunity to do so in July 2026 and July 2027.
e) The administration and management of examinations is based on strict timelines and any slight delay would be of untold disadvantage to the 1st Respondent. The balance of convenience tilts in favor of the 1st Respondent as it stand to suffer the greatest prejudice if the conservatory orders subsists
f) The July Series examination was intended to cater inter alia for candidates who have been incapacitated during the holding of the November 2024 examination series and could not sit those examinations or who might have sat the November series examinations but could not perform well because of their state of health. Some of the female candidates could have been pregnant at the material time.
g) The 1st Respondent has made a policy decision within its legal mandate to hold two series of examination in July and November. The July Series enabled those who had failed in the November examination to repeat the examinations in July and be able to join universities in September instead of waiting for over a year to resit the exams in November series and another one year after re-sitting waiting to join the universities the following year in September should they be successful.
h) The Petitioners had failed to identify any person whose interests they were serving at the time they applied and were granted conservatory orders.
i) The Petitioners had failed to identify the loss which they as individual Petitioners would suffer if the conservatory orders were not in place.
j) Any person who could not sit the 2025 July Series examinations could still sit similar examinations in July 2026 and July 2027.
k) The administration and management of examinations is based on strict timelines and courts should reluctantly interfere with that program.
l) The Respondent stand to suffer a great loss and harm should the conservatory orders subsist as substantial time and resources have been employed in arranging for the July 2025 series of examinations.
4. This court directed that the Applications be heard together by way of written submissions . The parties filed their respective submissions as directed .
DETERMINATION
5. Having perused two Applications before me as well as the written submissions filed by I find that main issue for determination is whether this court should grant conservatory order barring the 1st and 2nd Respondent from proceeding to effect the impugned administrative decision to offer the July series of national examination in July 2025 pending the hearing and determination of the Petitions.
6. A conservatory order is one of the appropriate reliefs available to a party who alleges and proves denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The purpose of conservatory orders is to preserve the substratum of the petition before Court pending the hearing and determination of the same. Rule 23 of the Mutunga Rules provides that despite any provision to the contrary, a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders.
7. In Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR the court of Appeal expressed itself as follows:
Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.
8. The threshold for the grant of conservatory orders was established by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:
(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
(87) The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:
(i)the appeal or intended appeal is arguable and not frivolous; and that
(ii)unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
(88)These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:
(iii)that it is in the public interest that the order of stay be granted.
(89)This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution.”
9. In essence, the Supreme Court set out the test for the grant of conservatory orders in 3 limbs. A party seeking conservatory orders must demonstrate to the Court that first, the petition is arguable and not frivolous. Second that unless the orders sought are granted the suit, were it to succeed, would be rendered nugatory. The first 2 limbs though linked to injunctions in private party matters, are also applicable in public law. The Supreme Court added the third test in the context of the Constitution, namely, that it is in the public interest that the orders sought are granted.
10. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR after going through several decisions the court summarized three main principles for consideration on whether to grant conservatory orders as follows: -
(a) an applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the constitution.
(b) whether, if a conservatory order is not granted, the petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
(c) the public interest must be considered before grant of a conservatory order.”
11. In Board of management of Uhuru Secondary School vs. City County Director of Education & 2 others [2015] eKLR, the court summarized the principles for grant of conservatory orders as: -
(i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice.
(ii) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the bill of rights.
(iii) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.
(iv) Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
12. It is therefore be imperative in the determination in this case to make a finding on whether the Petitioners has met three elements.
A prima-facie case:
13. A prima facie case was defined in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 to mean: -
…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.
14. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: -
If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities that is the end of any claim to interlocutory relief.
15. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows:
It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought. (emphasis added).
16. In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.
17. In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole and the responses filed. It must weigh, albeit preliminarily, the pleadings, the facts, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22 (1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened .
18. In the instant case, the case , the Petitioners in their consolidated Petitions are challenging the constitutionality of the communication by the 1st to 4th Respondent made 8th January 2025 during the release of the KCSE 2024 results wherein the 3rd Respondent made a statement to the effect that they will administer mid year KCSE examination to repeaters and all those who missed to sit for the said examination due to sickness and other unexpected reasons.
19. The Petitioner equally claimed that the guidelines dated 22nd January 2025 were issued without public participation contrary and/or in violation articles 1, 2, 3, 10, 20(2), 22 27, 28, 43 (1) (f), 46, 47, 53(2), 73, 75 and 258 of the constitution as well as the provisions of the Basic Education Act as well as the Fair Administrative Actions Act
20. The Petitioners thus sought a declaration that the said provisions contravened Article 27 as read with Articles 1, 2, 3, 10, 20(2), 22 ,24 27, 28, 43 (1) (f), 46, 53(2), 73, 75 and 258 of the constitution as well as the provisions of the Basic Education Act as well as the Fair Administrative Actions Act
21. The petitioners sought an order of Certiorari quashing the decision of the respondents among other reliefs .
22. The 1st and 2nd Respondents’ common position is that the Petitioners failed to establish a prima-facie case. The 1st and 2nd Respondents argued that several there was no breach of the Constitution and the law. Also that the Petitioners do not have locus standi to institute this petition because they have not established the persons whose interests they represent. They also claim that the 1st Petitioner only attached affidavits of persons on whose behalf he had filed the petition on 29th January, 2024 which was after the interim conservatory orders had been issued. It would appear like the 1st and 2nd Respondents overlooked Petition No. E003 of 2025 consolidated with the instant one in which was filed a person whose interests would be directly affected by the their impugned decision.
23. The above notwithstanding, Articles 22(1) and (2) and 258 (1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. A literal interpretation of Articles 22 and 258 in my view confers upon any person a right to bring action in two instances firstly in the public interest, and secondly, where breach of the Constitution is threatened in relation to a right of fundamental freedom. The 1st Petitioner clearly stated that his petition was filed in the public interest wherein he stated that he was specifically challenging the 1st and 2nd Respondent administrative decisions made on 8th January, 2025 and 22nd January, 2025 which he alleges were made without public participation and in contravention of several Articles of the constitution that I have highlighted hereinabove. It is therefore outright that 1st Petitioner’s Petition is rightly within the confines of Articles 22 (2) (c) and 258 (2) (c) of the Constitution. The petitioners thus had capacity to file the petitions herein
24. The 1st and 2nd Respondents do deny that the decision was made without public participation, they averred that they made the decision within their legal mandate set out under the Kenya National Examination Council Act. They also claim the said decision has also taken effect since several students have registered for the July Examinations. With such a position, several issues arise for determination including whether the various provisions of the Constitution and the law as cited by the Petitioners were indeed infringed as result of the said decision or whether the impugned decision passed the test of public participation under Article 10 of the Constitution among many other pertinent constitutional issues. In the case of Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E402, E416 & E426 of 2020 (Consolidated)) [2021] KEHC 9763 (KLR) (Constitutional and Human Rights) (8 February 2021) (Ruling), the 5-bench Judge of the high court while contemplating on the issue of locus standi observed as follows;
“As regards the locus of the 25th interested party to make an application seeking orders in the nature of conservatory relief, as we have stated hereinabove, conservatory orders are orders in rem. They are not a preserve of particular persons but are meant to advance the mandate of Kenyans to respect, uphold and defend the Constitution as mandated in article 3(1) of the Constitution. It therefore follows that the argument by the Commission that since it has followed the constitutional edict, adverse orders cannot be issued against its mandate is untenable. Such orders are granted to preserve the substratum of the petition and therefore, where it is contended that there is a threat of violation of the Constitution, any stage in the chain of a constitutional process under challenge may properly be the subject of a conservatory order as long as that action is consequential to the process under challenge. As we have held hereinabove, conservatory orders may be granted on an application or by the court suo moto as long as the court is satisfied that the constitutional threshold for doing so has been met.
25. From the forgoing, the issue of public participation is a matter for determination in the main petition since it has been contested . The issues raised in the two Petitions cannot, therefore, be wished away. They are fundamental constitutional issues worth consideration during the main hearing . Without going to the merits and demerits of the petitions , this Court finds that the petitions herein raise a prima-facie case in the circumstances of this case.
26. This second requirement for the granting of conservatory orders dictates that an Applicant must demonstrate that if the application is not allowed, the substratum of the Petition will be lost and as such the main claim will be rendered nugatory. In other words, that the Applicant will suffer prejudice.
27. Put differently, an applicant must show, albeit on the face of it, that if not granted conservatory orders, the alleged violations of the rights and fundamental freedoms in the constitution will be continued or threatened and thus the subject matter of the petition will be lost .
28. The Petitioners submitted that since conservatory orders are meant to preserve the status quo, it was necessary to allow their applications. They contended that the decision was made without public and that considering Kenya’s poor economic status, the abrupt change registration deadline to 21st February, 2025 from usual 31st March every year would affect the ability of several learners to register for the impugned examinations in July, 2025 and this change affected the learners’ legitimate expectation to their right to education contrary to Article 1, 3,10,73,75 of the constitution.
29. The Respondents on the other hand argued that a large number of persons who have already registered for the July 2025 examination and have legitimate expectation that they will have the chance to sit for their exams. They contend that they stand to suffer a great loss and harm should the conservatory orders subsist as substantial time and resources have already been employed in arranging for the July 2025 series of examinations given that the administration and management of examinations is based on strict timelines and courts should reluctantly interfere with that program. They claim that any person who would not sit the 2025 July Series examinations could still sit similar examinations in July 2026 and July 2027. The Petitioners have also raised concern that the 1st respondent might end up spending resources in funding an administrative action which this court might end up determining to be unconstitutional if conservatory orders are not granted.
33. I have carefully considered this rival submissions on this point , the 1st and 2nd Respondents have equally argued that the students who have already registered for the mid- year examination have a legitimate expectation that the 2nd Petitioners and the persons on whose behalf the 1st Petitioner has filed his petition. The petitioners also argued that repeaters and adult learner expected to sit for KCSE in November 2025 as usual. In the Supreme Court case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR explained the principle of legitimate expectation as follows:
“[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.
[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) SA 42 (SCA) at [paragraph 28]: the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following
:i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.
(ii)The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.
iii. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”
30. For this court to determine the legitimate expectation of the alleged already registered candidates, it must look at it vis a viz the issue of public participation which is a crucial issue for determination in the main petition and thus if the interim orders are lifted at this stage then the final decision of the court may be rendered otiose . It is therefore in the Interest of justice that the substratum of the petition be preserved till the hearing and determination of the petition
31. Public Interest:
32. ‘Public interest’ is defined by the Black’s Law Dictionary 10th Edition at page 1425 as: -
The general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation.
33. The adjudicatory authority of the court especially where public interest is at stake would dictate that the court balances all factors and acts as appropriate instead of divesting itself of jurisdiction in limine. The respondents annexed a list of students it alleges have already registered for the July examination and that they have already spent public resources in the preparation of the July exams which will go to waste of the conservatory orders continue to subsist. They contend that public interest leans towards not granting the conservatory orders. As have observed hereinabove the Respondents did contest the allegations that the Impugned decision to offer the examination in July, 2025 was not subjected to public participation as required under Article 10 as well as Article 47 of the constitution and they filed 2024 KCSE attendance lists for briefing and sensitization in some sub -counties to support this point The Respondents have not established at this point that any resources spent in preparing for the examination and the allegation that the registration process had commenced does not serve as sufficient evidence that in deed public resources have already been spent in the process. In any event it is the public which funds all government projects through the taxes they pay and having considered all the issues herein . I come to the conclusion that it is in public interest that the conservatory orders remain in force .
Conclusion
34. I find that in the Interest of justice that the substratum of the petition be preserved till the hearing and determination of the petition. I make the following orders :
a. The application dated 6.2.25 is disallowed .
b. The applications dated 29.1.25 and 3.2.25 are allowed and interim conservatory orders issued by this court on 29.1.25 and 4.2.25 be and are hereby confirmed pending the hearing and determination of the Petitions herein .
c. There will be no order as to the costs as this is a public interest litigation .
d. Directions be taken for expeditious hearing and determination of the petition .
e. It is so ordered.
T.A ODERA
JUDGE
21.3.25
2. The Petitioners Applications which were similar seek are based on the following grounds;
1) That on 8th January 2025, the 1st to 4th respondents released the Kenya Certificate of secondary Examinations (KCSE Examinations) to the general public and advised the public to inquire their results through examination portal
2) That during the release of the impugned KCSE 2024 results, the 3rd & 4Th respondent (CS ministry of education) said quote
“Starting this year, and following extensive stakeholder consultations, I wish to announce that KNEC will introduce a midyear series of the KCSE examination, to be administered in July every year. The examination will target candidates wishing to repeat the KCSE examination, and those who may have missed sitting an examination due to sickness or other unexpected hardships. Adult candidates may also consider registering for the July KCSE series examination”
3) That further to the above press release, on 22nd January 2025, the 1st respondent suo moto released a circular dabbed “GUIDELINES ON ADMINISTRATION OF THE 2025 KCSE (JULY 2025) SERIES EXAMINATION”. On perusal of the said guidelines at paragraph 2.2 , the 1st and 2nd respondents in collaboration with the 3rd and 4th respondents made a far reaching administrative action which prima facie affects the rights and fundamental freedoms of learners and/or parents/guardians. The said administrative action was to the effect;
2.2 all repeaters and private candidates MUST register for the July series and not the November KCSE examination series;
6.0 please note that KNEC registration portal for the July series shall be closed on Friday 21st February 2025 and there will be no provision for late registration candidates once the portal is closed. All the relevant stakeholders including candidates must therefore be informed on the need to adhere to the set timelines
4) That registration of learners will start on 27th January 2025 to 21st February 2024.
5) That despite the respondents insinuating involvement various stakeholders and public participation, no evidence of stakeholders and/or public participation was ever undertaken. The decision was whimsical “which just dropped from the blues/sky”
6) That the above direction/guidelines/impugned administrative action violates several constitutional provisions inter alia as enumerated below.
a) That purported paragraph (paragraph 2.2) and the other parts of the guidelines were made without any stakeholders consultation and/or without public participation contrary to article 10 as read with article 1, 3,73,75 of the constitution.
b) That the mandatory nature, as opposed to choosing either to sit on July or November’s examination series, goes against the right of every individual to choose examination which is convenient to him/her so as to enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent as provided in article 20(2) of the constitution
c) That the yearly examinations has always been sat/done on November of every year and thus every learner had a Legitimate Expectation that should he/she fail, she would repeat the same and/or as an adult learner sit the said examinations in November 2024. That abruptly changing the said date and without involving the affected learners and stakeholders and public is against legitimate expectation of the affected learners, and their parents and stakeholders.
d) That the yearly examinations has always been registered latest by 31st March of every year and thus every learner had a Legitimate Expectation to register by then, and that considering that the Repeaters and adult learners do not benefit from government’s free examination and tuition fees and further considering Kenya’s poor economic status, the abrupt change to February 21st 2025 affected their ability to register for the impugned examinations and this change affected the learners’ legitimate expectation to their right to education contrary to article 1,3,10,73,75 of the constitution.
e) That the impugned administrative guidelines were made without any iota of care to the affected students and parents and hence they were made contravention of article 47
f) That the impugned administrative guidelines by the very nature affected the right to education as provided in article 43(1) (f) of the constitution.
g) That the impugned administrative guidelines by the very nature introduced two classes/groups of people: one class with limited time of preparation (July) while the other brings another class/group of people with long preparation revision time (November series) without rational justification. This is contrary to article 27 as read with article 24, 10, 73 and 75 of the constitution.
h) That despite the 3rd & 4Th respondent (CS Education) stating during the release of KCSE results on 8th January 2025 that “Adult candidates MAY also consider registering for the July KCSE series examination”, the 1St- 2nd respondent in its guidelines stated “All repeaters and private candidates MUST register for the July series and not the November KCSE examination series, essentially giving conflicting guidelines.
i) That the actions and/or omissions of the respondents are irrational, arbitrary and without any scientific and/or empirical reasoning. The respondents have not explained/justified why they decided on July and not march or June or October. The July date decision date was whimsically made and inconsiderate and irrational.
j) That impugned administrative action guidelines with short preparation period will impede one’s effort to achieve his/her economic and labour market ostensibly by scoring less than expected. This actions and/or omissions contravenes article 10, 41, 43 and 73 of the constitution
k) That impugned guidelines with did not give the learners and their parents information necessary to gain full benefit of education examinations and as a result, the impugned administrative action took away consumer rights as enshrined in article 46 of the constitution.
7) That, the impugned administrative guidelines were made by essentially forcing learners to do their examination on July as opposed to November 2025 against article 53 of the constitution on the best interests of the child.
8) That the actions of the respondents is against the international instrument of the Convention on the Rights of the Child based on four fundamental principle which include the right to equal treatment No child shall be placed at a disadvantage, whether because of their gender, origin or nationality, language, religion or skin color, a disability or their political views; the right to respect for the best interests of the child; The right to life and development and The right to be heard and to participate.
9) That if this Honourable court does not stop the illegal actions and/omissions done by the respondents then the outlined constitutional violations will continue against the rule of law and principles of good governance.
10) That from the foregoing, this action of the respondents will lead to inter alia loss of public confidence and outright abuse of administrative power to the detriment of many other young Kenyans in the county.
11) That It is important to maintain constitutionalism, rule of law, Law and Order, good governance and protecting of the constitution.
12) That in the circumstances, this radical , irrational, illegal decision which has been made by the respondents to defenseless Kenyans ought to be temporarily suspended and then declared illegal null and void and be quashed.
13) That this matter is of Public interest. This court has jurisdiction over this matter and I pray that it will be fair, just and expedient that this Motion be allowed.
3. On the other had the 1st and 2nd Respondents Application is based following grounds;
a) The of the conservatory orders have the effect of throwing the registration process into limbo while there are a number of candidates who have registered for the July 2025 Examinations and eagerly expect to sit for the said examinations in July and there are those who have been awaiting to register.
b) The Petitioners have failed to identify any persons whose interests are being served by the continuance of the conservatory orders vis-a-vis the large number of persons who the 1st Respondent can identify and who have already registered for the July 2025 examination and have legitimate expectation that they will have the chance to sit for their exams.
c) The balance of convenience therefore tilts in the favor of the lifting the interim orders as they serve to cause more harm than good to persons who are known as against those who have not been identified.
d) The Petitioners have failed to produce evidence of irreparable loss or damage on any unnamed beneficiary to the conservatory order in the event that the process is allowed to continue. This fact is made stronger by the fact that the candidates who do not wish to register for the exams in the July 2025 will have the opportunity to do so in July 2026 and July 2027.
e) The administration and management of examinations is based on strict timelines and any slight delay would be of untold disadvantage to the 1st Respondent. The balance of convenience tilts in favor of the 1st Respondent as it stand to suffer the greatest prejudice if the conservatory orders subsists
f) The July Series examination was intended to cater inter alia for candidates who have been incapacitated during the holding of the November 2024 examination series and could not sit those examinations or who might have sat the November series examinations but could not perform well because of their state of health. Some of the female candidates could have been pregnant at the material time.
g) The 1st Respondent has made a policy decision within its legal mandate to hold two series of examination in July and November. The July Series enabled those who had failed in the November examination to repeat the examinations in July and be able to join universities in September instead of waiting for over a year to resit the exams in November series and another one year after re-sitting waiting to join the universities the following year in September should they be successful.
h) The Petitioners had failed to identify any person whose interests they were serving at the time they applied and were granted conservatory orders.
i) The Petitioners had failed to identify the loss which they as individual Petitioners would suffer if the conservatory orders were not in place.
j) Any person who could not sit the 2025 July Series examinations could still sit similar examinations in July 2026 and July 2027.
k) The administration and management of examinations is based on strict timelines and courts should reluctantly interfere with that program.
l) The Respondent stand to suffer a great loss and harm should the conservatory orders subsist as substantial time and resources have been employed in arranging for the July 2025 series of examinations.
4. This court directed that the Applications be heard together by way of written submissions . The parties filed their respective submissions as directed .
DETERMINATION
5. Having perused two Applications before me as well as the written submissions filed by I find that main issue for determination is whether this court should grant conservatory order barring the 1st and 2nd Respondent from proceeding to effect the impugned administrative decision to offer the July series of national examination in July 2025 pending the hearing and determination of the Petitions.
6. A conservatory order is one of the appropriate reliefs available to a party who alleges and proves denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The purpose of conservatory orders is to preserve the substratum of the petition before Court pending the hearing and determination of the same. Rule 23 of the Mutunga Rules provides that despite any provision to the contrary, a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders.
7. In Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR the court of Appeal expressed itself as follows:
Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.
8. The threshold for the grant of conservatory orders was established by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:
(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
(87) The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:
(i)the appeal or intended appeal is arguable and not frivolous; and that
(ii)unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.
(88)These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:
(iii)that it is in the public interest that the order of stay be granted.
(89)This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution.”
9. In essence, the Supreme Court set out the test for the grant of conservatory orders in 3 limbs. A party seeking conservatory orders must demonstrate to the Court that first, the petition is arguable and not frivolous. Second that unless the orders sought are granted the suit, were it to succeed, would be rendered nugatory. The first 2 limbs though linked to injunctions in private party matters, are also applicable in public law. The Supreme Court added the third test in the context of the Constitution, namely, that it is in the public interest that the orders sought are granted.
10. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR after going through several decisions the court summarized three main principles for consideration on whether to grant conservatory orders as follows: -
(a) an applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the constitution.
(b) whether, if a conservatory order is not granted, the petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
(c) the public interest must be considered before grant of a conservatory order.”
11. In Board of management of Uhuru Secondary School vs. City County Director of Education & 2 others [2015] eKLR, the court summarized the principles for grant of conservatory orders as: -
(i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice.
(ii) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the bill of rights.
(iii) Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.
(iv) Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
12. It is therefore be imperative in the determination in this case to make a finding on whether the Petitioners has met three elements.
A prima-facie case:
13. A prima facie case was defined in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 to mean: -
…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.
14. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: -
If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities that is the end of any claim to interlocutory relief.
15. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows:
It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought. (emphasis added).
16. In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.
17. In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole and the responses filed. It must weigh, albeit preliminarily, the pleadings, the facts, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22 (1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened .
18. In the instant case, the case , the Petitioners in their consolidated Petitions are challenging the constitutionality of the communication by the 1st to 4th Respondent made 8th January 2025 during the release of the KCSE 2024 results wherein the 3rd Respondent made a statement to the effect that they will administer mid year KCSE examination to repeaters and all those who missed to sit for the said examination due to sickness and other unexpected reasons.
19. The Petitioner equally claimed that the guidelines dated 22nd January 2025 were issued without public participation contrary and/or in violation articles 1, 2, 3, 10, 20(2), 22 27, 28, 43 (1) (f), 46, 47, 53(2), 73, 75 and 258 of the constitution as well as the provisions of the Basic Education Act as well as the Fair Administrative Actions Act
20. The Petitioners thus sought a declaration that the said provisions contravened Article 27 as read with Articles 1, 2, 3, 10, 20(2), 22 ,24 27, 28, 43 (1) (f), 46, 53(2), 73, 75 and 258 of the constitution as well as the provisions of the Basic Education Act as well as the Fair Administrative Actions Act
21. The petitioners sought an order of Certiorari quashing the decision of the respondents among other reliefs .
22. The 1st and 2nd Respondents’ common position is that the Petitioners failed to establish a prima-facie case. The 1st and 2nd Respondents argued that several there was no breach of the Constitution and the law. Also that the Petitioners do not have locus standi to institute this petition because they have not established the persons whose interests they represent. They also claim that the 1st Petitioner only attached affidavits of persons on whose behalf he had filed the petition on 29th January, 2024 which was after the interim conservatory orders had been issued. It would appear like the 1st and 2nd Respondents overlooked Petition No. E003 of 2025 consolidated with the instant one in which was filed a person whose interests would be directly affected by the their impugned decision.
23. The above notwithstanding, Articles 22(1) and (2) and 258 (1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. A literal interpretation of Articles 22 and 258 in my view confers upon any person a right to bring action in two instances firstly in the public interest, and secondly, where breach of the Constitution is threatened in relation to a right of fundamental freedom. The 1st Petitioner clearly stated that his petition was filed in the public interest wherein he stated that he was specifically challenging the 1st and 2nd Respondent administrative decisions made on 8th January, 2025 and 22nd January, 2025 which he alleges were made without public participation and in contravention of several Articles of the constitution that I have highlighted hereinabove. It is therefore outright that 1st Petitioner’s Petition is rightly within the confines of Articles 22 (2) (c) and 258 (2) (c) of the Constitution. The petitioners thus had capacity to file the petitions herein
24. The 1st and 2nd Respondents do deny that the decision was made without public participation, they averred that they made the decision within their legal mandate set out under the Kenya National Examination Council Act. They also claim the said decision has also taken effect since several students have registered for the July Examinations. With such a position, several issues arise for determination including whether the various provisions of the Constitution and the law as cited by the Petitioners were indeed infringed as result of the said decision or whether the impugned decision passed the test of public participation under Article 10 of the Constitution among many other pertinent constitutional issues. In the case of Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E402, E416 & E426 of 2020 (Consolidated)) [2021] KEHC 9763 (KLR) (Constitutional and Human Rights) (8 February 2021) (Ruling), the 5-bench Judge of the high court while contemplating on the issue of locus standi observed as follows;
“As regards the locus of the 25th interested party to make an application seeking orders in the nature of conservatory relief, as we have stated hereinabove, conservatory orders are orders in rem. They are not a preserve of particular persons but are meant to advance the mandate of Kenyans to respect, uphold and defend the Constitution as mandated in article 3(1) of the Constitution. It therefore follows that the argument by the Commission that since it has followed the constitutional edict, adverse orders cannot be issued against its mandate is untenable. Such orders are granted to preserve the substratum of the petition and therefore, where it is contended that there is a threat of violation of the Constitution, any stage in the chain of a constitutional process under challenge may properly be the subject of a conservatory order as long as that action is consequential to the process under challenge. As we have held hereinabove, conservatory orders may be granted on an application or by the court suo moto as long as the court is satisfied that the constitutional threshold for doing so has been met.
25. From the forgoing, the issue of public participation is a matter for determination in the main petition since it has been contested . The issues raised in the two Petitions cannot, therefore, be wished away. They are fundamental constitutional issues worth consideration during the main hearing . Without going to the merits and demerits of the petitions , this Court finds that the petitions herein raise a prima-facie case in the circumstances of this case.
26. This second requirement for the granting of conservatory orders dictates that an Applicant must demonstrate that if the application is not allowed, the substratum of the Petition will be lost and as such the main claim will be rendered nugatory. In other words, that the Applicant will suffer prejudice.
27. Put differently, an applicant must show, albeit on the face of it, that if not granted conservatory orders, the alleged violations of the rights and fundamental freedoms in the constitution will be continued or threatened and thus the subject matter of the petition will be lost .
28. The Petitioners submitted that since conservatory orders are meant to preserve the status quo, it was necessary to allow their applications. They contended that the decision was made without public and that considering Kenya’s poor economic status, the abrupt change registration deadline to 21st February, 2025 from usual 31st March every year would affect the ability of several learners to register for the impugned examinations in July, 2025 and this change affected the learners’ legitimate expectation to their right to education contrary to Article 1, 3,10,73,75 of the constitution.
29. The Respondents on the other hand argued that a large number of persons who have already registered for the July 2025 examination and have legitimate expectation that they will have the chance to sit for their exams. They contend that they stand to suffer a great loss and harm should the conservatory orders subsist as substantial time and resources have already been employed in arranging for the July 2025 series of examinations given that the administration and management of examinations is based on strict timelines and courts should reluctantly interfere with that program. They claim that any person who would not sit the 2025 July Series examinations could still sit similar examinations in July 2026 and July 2027. The Petitioners have also raised concern that the 1st respondent might end up spending resources in funding an administrative action which this court might end up determining to be unconstitutional if conservatory orders are not granted.
33. I have carefully considered this rival submissions on this point , the 1st and 2nd Respondents have equally argued that the students who have already registered for the mid- year examination have a legitimate expectation that the 2nd Petitioners and the persons on whose behalf the 1st Petitioner has filed his petition. The petitioners also argued that repeaters and adult learner expected to sit for KCSE in November 2025 as usual. In the Supreme Court case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR explained the principle of legitimate expectation as follows:
“[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.
[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) SA 42 (SCA) at [paragraph 28]: the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following
:i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.
(ii)The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.
iii. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”
30. For this court to determine the legitimate expectation of the alleged already registered candidates, it must look at it vis a viz the issue of public participation which is a crucial issue for determination in the main petition and thus if the interim orders are lifted at this stage then the final decision of the court may be rendered otiose . It is therefore in the Interest of justice that the substratum of the petition be preserved till the hearing and determination of the petition
31. Public Interest:
32. ‘Public interest’ is defined by the Black’s Law Dictionary 10th Edition at page 1425 as: -
The general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation.
33. The adjudicatory authority of the court especially where public interest is at stake would dictate that the court balances all factors and acts as appropriate instead of divesting itself of jurisdiction in limine. The respondents annexed a list of students it alleges have already registered for the July examination and that they have already spent public resources in the preparation of the July exams which will go to waste of the conservatory orders continue to subsist. They contend that public interest leans towards not granting the conservatory orders. As have observed hereinabove the Respondents did contest the allegations that the Impugned decision to offer the examination in July, 2025 was not subjected to public participation as required under Article 10 as well as Article 47 of the constitution and they filed 2024 KCSE attendance lists for briefing and sensitization in some sub -counties to support this point The Respondents have not established at this point that any resources spent in preparing for the examination and the allegation that the registration process had commenced does not serve as sufficient evidence that in deed public resources have already been spent in the process. In any event it is the public which funds all government projects through the taxes they pay and having considered all the issues herein . I come to the conclusion that it is in public interest that the conservatory orders remain in force .
Conclusion
34. I find that in the Interest of justice that the substratum of the petition be preserved till the hearing and determination of the petition. I make the following orders :
a. The application dated 6.2.25 is disallowed .
b. The applications dated 29.1.25 and 3.2.25 are allowed and interim conservatory orders issued by this court on 29.1.25 and 4.2.25 be and are hereby confirmed pending the hearing and determination of the Petitions herein .
c. There will be no order as to the costs as this is a public interest litigation .
d. Directions be taken for expeditious hearing and determination of the petition .
e. It is so ordered.
T.A ODERA
JUDGE
21.3.25