'DR. MAGARE GIKENYI BENJAMIN, CHARLES MORARO MOGUNDE,
JOSEPH MUREITHI WACHIRA ,GRACE WAMUYU MUREITHI & ESTHER WANGARI MUREITHI ,(hereinafter referred to as THE 1ST, 2ND, 3RD AND 4TH & 5 TH petitioners )respectively moved this court by way of Kisii Constitutional Petition No’s E002, E003, and E005 of all of 2025 dated 29.1.2025, 3.2.2025 and 13.2.25 respectively against the respondents herein challenging the constitutionality of declaration by the 2ND Respondent on 8th January 2025 on Mid-year KCSE examinations to wit:
A circular dated 22.1.25 referenced (JULY 2025) KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC) (the 2nd respondent herein )
The petitions are based on the following grounds ;
a. That on 8th January 2025, the 1st-4th respondents released the Kenya certificate of secondary examination to the general public and advised the public to inquire their results through the examination portal.
b. That during the release of the impugned KCSE 20243 results, the 3rd & 4th respondents said,
i. Starting this year and following extensive stakeholders’ consultations, I wish to announce that KNEC will introduce a mid-year series of the KCSE to be administered in July. 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 hardship. Adult candidates may also consider registering for the July KCSE series Examination.”
c. That further to the above press release, on 22nd January 2025, the 1st respondent, suo moto, released the circular dated 22.1.25 : (JULY 2025) KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) signed by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC).
d. They pleaded the said guidelines at paragraph 2.2, the 1st-2nd respondent in collaboration with the 3rd &4th respondent made a far-reaching administrative action which prima facie affects the rights and fundamental freedoms of learners and /parents /guardians.
e. That the registration of the learners started on 27th January 2025 and was schedule to close on 21st February 2024.
f. That despite the respondents'' insinuating involvement of various stakeholders and public participation, no evidence of stakeholders'' and public participation was never undertaken. They termed the decision as s whimsical,
They challenged the Constitutionality of the impugned guidelines as enumerated below;
i. That the guidelines were made without any stakeholders'' consultation or public participation, contrary to Articles 10 as read with 1, 3,73,75 of the constitution of Kenya.
ii. That the Mandatory nature as opposed to the right to choose either to sit on July or November examination series goes against the right of every individual to choose examination which is convenient to him 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.
iii. That annual examinations have always been sat for in November every year, and thus every learner had a legitimate expectation that he/she should fail, would repeat the same as an adult learner sitting the said examinations in December 2024. That abruptly changing the said date and without involving the affected learners and stakeholders in public is against the legitimate expectation of the affected learners, their parents, and stakeholders.
iv. That registration for annual the examination has always been registered latest by 31st March of every year and thus the learner had legitimate expectation to register by then, and that considering the repeaters and adult learners Do not benefit the 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 examination and this change affected the learners legitimate expectation to their right to education contrary to Article 1,3,10,73,75 of the constitution.
v. That the Impugned administrative guidelines were made without an iota of care for the affected students and parents, and hence they were made in contravention of Article 47 of the Constitution.
vi. That the impugned administrative guidelines, by the very nature, affected the right to education as provided in article 43(1)(f) of the constitution.
vii. The impugned administrative guidelines, by the very nature, introduced two classes/groups of people: One class with a limited time of preparation (July), while the other brings another class /group of people with a long preparation revision time without rational justification. This is contrary to article 27 as read with articles 24, 10, 73, and 75 of the Constitution.
viii. That the impugned administrative guidelines affected learners contrary to Article 28 of the Constitution.
ix. That despite the 3rd &4th respondent 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 candidate MUST register for the July series and not November KCSE Examination series essentially giving conflicting guidelines.
x. The actions and omissions of the respondents are irrational, arbitrary, and without any scientific and empirical reasoning. The respondents have not explained/justified why they decided on July and not March or June, or October. The July date was whimsically made and inconsiderate, and irrational. The irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.
xi. That the impugned administrative action guidelines with a short preparation period will impede one''s effort to achieve his/her economic and labour market, ostensibly by scoring less than expected. These actions and /or omissions contravene Articles 10, 41, 43, and 73 of the constitution.
xii. That the impugned guidelines did not give the learners and their parents information necessary to gain the 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.
xiii. Overall, the impugned administrative guidelines were made by essentially forcing learners to do their examination in July as opposed to November 2025. This goes against Article 53 of the Constitution on the best interests of the child.
xiv. It''s an undeniable fact that the respondents will use the KCSE results to place students at various public and private universities. Once unfairly treated in the secondary school, the learner''s future life is doomed. The constitution should never allow administrative decisions that affect the rights of students/children, who are the future of this country of ours.
xv. That the examination body and the Ministry of Education have acted negligently, failing their duty of care in their administrative decisions, essentially threatening an imaginable injustice to the young souls of these children. The administrative decisions by the respondents have effectively changed the trajectory of life for all these students, hence a great injustice that this court and society at large cannot countenance this behavior.
xvi. That the education cabinet secretary, 3rd &4th Respondent Hon Julius Migos Ogamba, and 1st Respondent are personally liable for Negligence through actions and omissions of the impugned administrative action.
xvii. That the 5th Respondent, Hon Attorney General, failed in her responsibility to advise the Respondents accordingly.
Respondent’s case
1. The Respondents opposed the Petition through a Replying Affidavit sworn by Amb. (Prof) Julius K Bitok, the principal secretary, State Department for Basic Education in the Ministry of Education, the respondent herein;
2. Amb. (Prof) Julius K Bitok avers that Mr. Migos Ogamba was acting within the powers bestowed upon him under the constitution as a cabinet secretary and cannot be held liable for carrying out what is provided in the constitution, and that his name should be expunged from the court records as a respondent.
3. He further averred that the petition herein is speculative, premised on assumptions of generality, hence bad in law, incompetent, and frivolous, and should be dismissed in limine.
4. He avers that the provisions of article 53(1) (b) of the constitution on the right of every child to free education and the attendant assessment in form of KCSE the Government has put in a robust policy, legal and institutional infrastructure to support the right ant that the basic education in Kenya is primarily regulated under the basic education cap 211 and the Basic regulation act 2015 which exemplifies the right of every child to free and compulsory basic education.
5. He avers that regarding the constitutionality of the KCSE July series, the same should be assessed in light of the context of all the processes relevant in the conduct of the examination.
6. He further avers that under the fourth schedule of the constitution, education policy and examination functions are vested in the National Government through the Ministry of Education.
7. He avers that the administration of examinations includes setting, moderation, printing, logistical arrangements, actual conduct of the examination, marking, moderation, release of the results, and placement of the learners.
8. He further avers that to support the process the parliament, through the Kenya National Examination Council Act, Cap 214A, entrusted the Kenya National Examination Council as a specialized and functionally autonomous agency with the mandate to set and maintain examination standards, conduct examinations, and award certificates, and in the performance of its action KNEC has powers under the Kenya National Examination Council Act Cap 214A to make rules regulating the confirmation of the results.
9. He avers that in order to enhance the development of human capital through education with a view to promoting the national economic development agenda as set out in Kenya''s Vision 2030. The Government 2025 introduced the July series of KCSE Examination, which is equivalent to the supplementary examinations offered in learning institutions, to be held in the same months in subsequent years.
10. He further avers that the said exam targets candidates who have sat the exam previously and wish to repeat to improve their grade, adult who are not in regular schools but have proof of the necessary primary education qualification, and those who might have registered for KCSE Examinations but may have missed sitting an examination due to sickness or other unexpected hardships.
11. He avers that the Kenya National Examinations Council went ahead to issue guidelines on the administration of the 2025 KCSE Examinations July series, following an extensive stakeholders'' consultation.
12. He further avers that the KCSE examinations, July series, are voluntary and the private and repeating candidates have the choice to sit the exams in July 2025 or July 2026, or July 2027.
13. On the other hand the 1st and 2nd respondents vide a replying affidavit sworn by Dr. David Njegere avers that the July series of Examination as a matter of its statutory duty donated to it by the public through an Act of parliament, the Kenya National Examination Council Act Chapter 214A of the Laws of Kenya and the regulations made thereunder.
14. He further avers that the 1st Respondent did not have to conduct a public participation to implement duties and responsibilities that the public had already entrusted it with, and that the July examination series KCSE was prompted by an already existing public demand, and notwithstanding the fact that he was obliged to conduct public participation through stakeholders engagements in all the counties of the republic between July and November 2024.
15. He further avers that the stakeholders'' meetings were convened in county schools and attended by Headteachers and the education supervisors, being local leaders in the public in matters of education, and who would be able to disseminate information to their pupils.
16. He further avers that before the issuance of the circular on guidelines on Administration of the 2025 Examination the Respondent conducted a follow up meeting on the subject which was attended by, Regional directors, Teachers service commission, County Directors Education, County quality assurance and standard officers, Center Management of schools offering computer studies and the Centre of managers of schools presenting candidates visually impaired and that close to 3,000 stakeholders participated in the virtual meetings.
17. The interested parties did not appear in these petitions
18. I have carefully considered the petitions, the replies, the able submissions and all the cited authorities by both parties on record. The issues arising for determination are;
a. Whether there was public participation before issuance of the directions dated 22.1.25 for July 2025 examination series .
b. On whether the impugned circular containing guidelines that the 2024 KCSE repeaters should all sit for the July 2025 series of KCSE is discriminatory under Article 27 of the Constitution .
c. Whether the 3th respondent herein violated Articles 73 and 75 of the Constitution.
d. Whether the petition meets the threshold of Constitutional Petitions.
e. Whether the Circular dated 22.1.25 ; KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC) (the 2nd respondent herein) is unconstitutional .
f. On whether the petitioners have made out a case for judicial review orders in the nature of certiorari , mandamus and prohibition against the 1st to 3rd respondents in against the impugned circular .
g. Who bears the costs of the petitions
Determination
Whether there was public participation
19. The petitioners have contended that public participation was never undertaken in the impugned administrative action guidelines. The respondent has however denied this contention arguing that they need not to conduct a public participation to implement duties and responsibilities that the public had already entrusted it with, and that the concept of the July examination series KCSE was prompted by an already existing public demand, and notwithstanding the fact that he was obliged to conduct public participation through stakeholders engagements in all the counties of the republic between July and November 2024, and that the stakeholders'' meetings were convened in county schools and attended by Headteachers and the education supervisors, being local leaders in the public in matters of education, and who would be able to disseminate information to their students. They filed alleged attendance sheets
20. Public participation is one of the national values and principles in our constitution, which must be observed by all persons, state organs and public officers in the exercise of their responsibilities. Article 10(1) of the constitution states that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution; (b) enacts, applies or interprets any law; or makes or implements public policy decisions. And according to Article 10(2), the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy, and “participation of the people”. Article 232 (1) (d) of the Constitution also enjoins public servants to involve people in the policy making process.
21. In the case of British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited [2019] eKLR, it was stated that;
Public participation and consultation were a living constitutional principle that went to the constitutional tenet of the sovereignty of the people. In line with the court’s mandate under section 3 of the Supreme Court Act, the following were the guiding principles for public participation:
i. -by-As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
ii. The public officer and/or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
iii. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means.
iv. Public participation had to be real and not illusory. It was not a cosmetic, public relations act or a mere formality to be undertaken as a matter of course, just to ‘fulfill’ a constitutional requirement. There was a need for both quantitative and qualitative components in public participation.
v. Public participation was not an abstract notion; it must be purposive and meaningful.
vi. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness could be determined on a case-by-case basis.
vii. Public participation was not necessarily a process consisting of oral hearings; written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
viii. Allegations of a lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope, and extent of public participation was to be determined on a case case basis.
Components of meaningful public participation included the following;
i. clarity of the subject matter for the public to understand;
ii. structures and processes (medium of engagement) of participation that were clear and simple;
iii. opportunity for balanced influence from the public in general;
iv. Commitment to the process;
v. Inclusive and effective representation;
vi. Integrity and transparency of the process;
vii. Capacity to engage on the part of the public, including that the public had to be first sensitized to the subject matter.
22. The 1st respondent submitted that it did not have to conduct a public participation to implement duties and responsibilities that the public has already entrusted it with, and that the July examination series KCSE was prompted by an already existing public demand. Public participation is a duty imposed by Article 10 of the constitution and it does not matter whether the decision to be made is by a public office or state officer . This is because the Constitution of Kenya is the supreme law of the land and the powers of all state officers are donated by the people of Kenya under Article one of the Constitution Infact, state officers have a higher duty to comply with the Constitutional provisions under Articles 1, 3 and 21 of the Constitution being servants of the people of Kenya.
23. Applying the above legal principles to this petition, there is no doubt that the public participation was mandatory before implementation of the impugned circular . The 1st and 2nd respondents in the affidavit and further affidavit of Dr David Njengere the CEO of the 1st respondent stated that they indeed conducted a public participation by meeting for stake holders and annexed ‘’DN1’’ and ‘’DN2’’ as evidence of the same . I have perused the said annextures and I note that’’ DN1’’ is an attendance register for online briefing for 2024 KCSE supervisors in several sub- counties . It has nothing to do with the impugned circular herein . DN2 contains attendance registers for two online meetings. The first one was held on 17.1.25 and it was a sensitization meeting for centre managers with computer studies . The second one was held by KNEC on 24.1.25 and it was a sensitization meeting of stakeholders participation on registration for 2025 National Examinations . The meeting of 24.1.25 cannot be said to be public participation by all standards as it came 2 days after the release of the impugned circular .
Were children involved in the alleged public participation?
23. The Petitions are also based their contention that the respondents'' violated the rights of the children under the African Charter for Rights and Welfare of Children (ACRWC )by not involving them in the decision making before issuance of the impugned circular . Also that Children’s civil rights are guaranteed in the United Nations Charter on the Rights of Children (UNCRC), along side the rights to health care, education, leisure time, and protection from abuse, exploitation, and violence and that children have a right to participate by expressing their opinions on decisions that affect their lives. The respondent said that the stakeholders'' meetings were convened and were attended by head teachers , educational supervisors who were to disseminate information to the learners. The said ACRWC charter provides for Rights and freedoms of African children including non- discrimination. Right to education, Freedoms of expression and the best interest of Children The said UNCRC and ACRWC are applicable in Kenya by virtue of Articles 2(5) and (6) of the constitution as Kenya ratified them . The said international instruments have been domesticated in the Children Act 2022. Section 28 of the Children Act provides that ‘’ 28. (1) Every child has the right, peaceably and unarmed, to assemble, demonstrate or present petitions to public authorities, and to freely participate in matters affecting children through lawfully established forums, associations, and assemblies at the national and county levels. (2) The right of a child to assemble, demonstrate, and to present petitions, shall be subject to the rights of others. (3) In addition to the rights guaranteed under subsections (1) and (2), every child shall have the right to express their views in all matters affecting them, and have those views heard and given due weight in accordance with the child''s age and maturity.
(4) The right guaranteed under subsection (3) shall be
exercised—
(a) in accordance with the national values and
principles of governance prescribed in Article 10
(2) of the Constitution.
(b) voluntarily by a child and without any undue
influence, coercion, inducement or enticement by
any person.
24. Article 53 (2) of the Constitution provides that the best interest of Children shall be of paramount importance in all matters relating to children . Section 28 (1) of the Act provides for right to a child to participate in matters affecting them in lawfully established forums and sub Section 3 provides or the right of children to express their views in the said matters and consideration of the same taking into account the age and maturity of the child . Section 28 (4) ( a) of the Act provides that public participation of children shall be conducted in accordance with the national value and principles of good governance under Article 10 of the Constitution. It was argued that teachers represented children in the public participation but this is not in compliance with Section 28 (1) and (3) of the Children Act. The children were entitled to be heard in person in a lawfully constituted forum as a matter of right and not through adults in the alleged herein . The respondents thus had a duty under Article 10 of the Constitution to ensure that the voices children of Kenya were heard on the issue of change of examination month but this was not done. The Children Act 2022 is a very progressive law which has specifically domesticated and the rights and freedoms of children under the said international instrument by recognizing enforceable individual rights of children . The rights of the children under Article 53 (2), of the Constitution were thus violated by the 1st , 2nd and 3rd respondents .
25. I find that the 1st 2nd and 3rd respondents did not conduct any public participation as provided for under Articles 10 (2) and 232 (1) (d) of the Constitution of Kenya before coming up with the impugned circular ref. KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC ).
On whether the guideline in the impugned circular that the 2024 KCSE repeaters should all sit for the July 2025 series of KCSE is discriminatory under Article 27 of the Constitution
25. The petitioners argued that the impugned circular is discriminatory as it seeks to create two classes of students i.e the regular one and the repeaters and thus it is discriminatory as it offends the provisions of Article 27(1) and (4) of the constitution of Kenya . Article 27 of the Constitution of Kenya guarantees citizens against non -discrimination by the state organs or persons . The respondent contended that the said mid- year examinations were introduced as the Country was transiting from Kenya Certificate of Secondary Education (KCSE) to the Competency Based Curriculum (CBC) System . Also that they benchmarked with other countries in the commonwealth on the mid year examination for unsuccessful candidates in national examinations and found that it worked very well there . This court also takes judicial notice that the country has embraced the CBC system and that KCSE is being phased out . Further that mid year examinations are in place in other Commonwealth jurisdictions like India and United Kingdom . However I note that those are countries with very highly developed educational systems and the teacher - student ratio in those countries is much lower than ours . paragraph 5;1 of the regulations provide that the candidates will seat for examinations in centres to be identified by the county directors of education . 5: 2 provides that the theory and practical subjects will be administered at the county head quarters while projects will be administered at sub- county level . This means the July series candidates will not be in school like the regular candidates . Sitting for the examination in the counties and sub counties would also be expensive and inconvenient for the candidates as this involve movement from home the centre every day. Secondly, national examinations is not an event but a culmination of process. Non -attendance of school would school would be disadvantageous to the candidates as practical subjects such as agriculture French, homescience , music etc require adequate prior preparation and the candidates wholly rely on schools for candidates, procurement of items to facilitate their practical aspects and teacher guidance to ensure compliance with the confidential instructions released to the examiners preparation through heads of schools and teachesr . It is worth noting that the repeaters are those candidates who either did not score good grades in the previous examinations and would want to improve on the same . The candidates who missed sitting for examinations for different reasons are also targeted by in the July said series examinations. They are expected to study from home and sit for the same examination with the regular candidates who have been prepared in in school for about 8 months . At the end of the day both July series students will be assessed by the same examiners and based on the outcome compete for the same university and Tvet institutions entry opportunities . The regular candidates will thus be better prepared for the examination than the July series candidates . Administration of the said July series examination for repeater would also create 2 classes of candidates that is regular and repeaters which may subject the repeaters to stigma as rightly submitted by the petitioners . It is thus clear that the repeaters will be treated differently from the regular candidates in all aspects. I thus find that administration of July series for the repeaters would thus be clearly discriminative to the candidates and in contravention of Article 27 of the Constitution.
Whether the impugned circular is unconstitutional
26. On whether the said circular are unconstitutional , I have already found that there was no participation of teachers, children , stakeholders and the general public before issuance of the impugned circular and that it is discriminatory . The Respondents had a duty to exercise their administrative authority in a manner that is fair, reasonable, and consistent with the principles enshrined in the Constitution. The process fell short of the said principles . The petitioners argued that the guidelines are couched in mandatory terms and are as such unconstitutional . Paragragh 2 :2 of the said guidelines provides that ‘’ All repeaters MUST register for the July series and not the November series (The emphasis is not mine ). My interpretation of the said paragragh is that is it mandatory in nature as rightly submitted by the petitioners. I also note that the circular is dated 22.1.25 and registration was to commence on 27th January and end on 21.2.25. The notice was for about one month only which was too short to register as the process requires finances . This court takes judicial notice that KCSE is usually administered in the month of October – November every year from its inception in the year 1989. The previous National examinations were also administered in The Months of October – November from time immemorial . The Period for preparation for
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JOSEPH MUREITHI WACHIRA ,GRACE WAMUYU MUREITHI & ESTHER WANGARI MUREITHI ,(hereinafter referred to as THE 1ST, 2ND, 3RD AND 4TH & 5 TH petitioners )respectively moved this court by way of Kisii Constitutional Petition No’s E002, E003, and E005 of all of 2025 dated 29.1.2025, 3.2.2025 and 13.2.25 respectively against the respondents herein challenging the constitutionality of declaration by the 2ND Respondent on 8th January 2025 on Mid-year KCSE examinations to wit:
A circular dated 22.1.25 referenced (JULY 2025) KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC) (the 2nd respondent herein )
The petitions are based on the following grounds ;
a. That on 8th January 2025, the 1st-4th respondents released the Kenya certificate of secondary examination to the general public and advised the public to inquire their results through the examination portal.
b. That during the release of the impugned KCSE 20243 results, the 3rd & 4th respondents said,
i. Starting this year and following extensive stakeholders’ consultations, I wish to announce that KNEC will introduce a mid-year series of the KCSE to be administered in July. 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 hardship. Adult candidates may also consider registering for the July KCSE series Examination.”
c. That further to the above press release, on 22nd January 2025, the 1st respondent, suo moto, released the circular dated 22.1.25 : (JULY 2025) KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) signed by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC).
d. They pleaded the said guidelines at paragraph 2.2, the 1st-2nd respondent in collaboration with the 3rd &4th respondent made a far-reaching administrative action which prima facie affects the rights and fundamental freedoms of learners and /parents /guardians.
e. That the registration of the learners started on 27th January 2025 and was schedule to close on 21st February 2024.
f. That despite the respondents'' insinuating involvement of various stakeholders and public participation, no evidence of stakeholders'' and public participation was never undertaken. They termed the decision as s whimsical,
They challenged the Constitutionality of the impugned guidelines as enumerated below;
i. That the guidelines were made without any stakeholders'' consultation or public participation, contrary to Articles 10 as read with 1, 3,73,75 of the constitution of Kenya.
ii. That the Mandatory nature as opposed to the right to choose either to sit on July or November examination series goes against the right of every individual to choose examination which is convenient to him 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.
iii. That annual examinations have always been sat for in November every year, and thus every learner had a legitimate expectation that he/she should fail, would repeat the same as an adult learner sitting the said examinations in December 2024. That abruptly changing the said date and without involving the affected learners and stakeholders in public is against the legitimate expectation of the affected learners, their parents, and stakeholders.
iv. That registration for annual the examination has always been registered latest by 31st March of every year and thus the learner had legitimate expectation to register by then, and that considering the repeaters and adult learners Do not benefit the 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 examination and this change affected the learners legitimate expectation to their right to education contrary to Article 1,3,10,73,75 of the constitution.
v. That the Impugned administrative guidelines were made without an iota of care for the affected students and parents, and hence they were made in contravention of Article 47 of the Constitution.
vi. That the impugned administrative guidelines, by the very nature, affected the right to education as provided in article 43(1)(f) of the constitution.
vii. The impugned administrative guidelines, by the very nature, introduced two classes/groups of people: One class with a limited time of preparation (July), while the other brings another class /group of people with a long preparation revision time without rational justification. This is contrary to article 27 as read with articles 24, 10, 73, and 75 of the Constitution.
viii. That the impugned administrative guidelines affected learners contrary to Article 28 of the Constitution.
ix. That despite the 3rd &4th respondent 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 candidate MUST register for the July series and not November KCSE Examination series essentially giving conflicting guidelines.
x. The actions and omissions of the respondents are irrational, arbitrary, and without any scientific and empirical reasoning. The respondents have not explained/justified why they decided on July and not March or June, or October. The July date was whimsically made and inconsiderate, and irrational. The irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.
xi. That the impugned administrative action guidelines with a short preparation period will impede one''s effort to achieve his/her economic and labour market, ostensibly by scoring less than expected. These actions and /or omissions contravene Articles 10, 41, 43, and 73 of the constitution.
xii. That the impugned guidelines did not give the learners and their parents information necessary to gain the 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.
xiii. Overall, the impugned administrative guidelines were made by essentially forcing learners to do their examination in July as opposed to November 2025. This goes against Article 53 of the Constitution on the best interests of the child.
xiv. It''s an undeniable fact that the respondents will use the KCSE results to place students at various public and private universities. Once unfairly treated in the secondary school, the learner''s future life is doomed. The constitution should never allow administrative decisions that affect the rights of students/children, who are the future of this country of ours.
xv. That the examination body and the Ministry of Education have acted negligently, failing their duty of care in their administrative decisions, essentially threatening an imaginable injustice to the young souls of these children. The administrative decisions by the respondents have effectively changed the trajectory of life for all these students, hence a great injustice that this court and society at large cannot countenance this behavior.
xvi. That the education cabinet secretary, 3rd &4th Respondent Hon Julius Migos Ogamba, and 1st Respondent are personally liable for Negligence through actions and omissions of the impugned administrative action.
xvii. That the 5th Respondent, Hon Attorney General, failed in her responsibility to advise the Respondents accordingly.
Respondent’s case
1. The Respondents opposed the Petition through a Replying Affidavit sworn by Amb. (Prof) Julius K Bitok, the principal secretary, State Department for Basic Education in the Ministry of Education, the respondent herein;
2. Amb. (Prof) Julius K Bitok avers that Mr. Migos Ogamba was acting within the powers bestowed upon him under the constitution as a cabinet secretary and cannot be held liable for carrying out what is provided in the constitution, and that his name should be expunged from the court records as a respondent.
3. He further averred that the petition herein is speculative, premised on assumptions of generality, hence bad in law, incompetent, and frivolous, and should be dismissed in limine.
4. He avers that the provisions of article 53(1) (b) of the constitution on the right of every child to free education and the attendant assessment in form of KCSE the Government has put in a robust policy, legal and institutional infrastructure to support the right ant that the basic education in Kenya is primarily regulated under the basic education cap 211 and the Basic regulation act 2015 which exemplifies the right of every child to free and compulsory basic education.
5. He avers that regarding the constitutionality of the KCSE July series, the same should be assessed in light of the context of all the processes relevant in the conduct of the examination.
6. He further avers that under the fourth schedule of the constitution, education policy and examination functions are vested in the National Government through the Ministry of Education.
7. He avers that the administration of examinations includes setting, moderation, printing, logistical arrangements, actual conduct of the examination, marking, moderation, release of the results, and placement of the learners.
8. He further avers that to support the process the parliament, through the Kenya National Examination Council Act, Cap 214A, entrusted the Kenya National Examination Council as a specialized and functionally autonomous agency with the mandate to set and maintain examination standards, conduct examinations, and award certificates, and in the performance of its action KNEC has powers under the Kenya National Examination Council Act Cap 214A to make rules regulating the confirmation of the results.
9. He avers that in order to enhance the development of human capital through education with a view to promoting the national economic development agenda as set out in Kenya''s Vision 2030. The Government 2025 introduced the July series of KCSE Examination, which is equivalent to the supplementary examinations offered in learning institutions, to be held in the same months in subsequent years.
10. He further avers that the said exam targets candidates who have sat the exam previously and wish to repeat to improve their grade, adult who are not in regular schools but have proof of the necessary primary education qualification, and those who might have registered for KCSE Examinations but may have missed sitting an examination due to sickness or other unexpected hardships.
11. He avers that the Kenya National Examinations Council went ahead to issue guidelines on the administration of the 2025 KCSE Examinations July series, following an extensive stakeholders'' consultation.
12. He further avers that the KCSE examinations, July series, are voluntary and the private and repeating candidates have the choice to sit the exams in July 2025 or July 2026, or July 2027.
13. On the other hand the 1st and 2nd respondents vide a replying affidavit sworn by Dr. David Njegere avers that the July series of Examination as a matter of its statutory duty donated to it by the public through an Act of parliament, the Kenya National Examination Council Act Chapter 214A of the Laws of Kenya and the regulations made thereunder.
14. He further avers that the 1st Respondent did not have to conduct a public participation to implement duties and responsibilities that the public had already entrusted it with, and that the July examination series KCSE was prompted by an already existing public demand, and notwithstanding the fact that he was obliged to conduct public participation through stakeholders engagements in all the counties of the republic between July and November 2024.
15. He further avers that the stakeholders'' meetings were convened in county schools and attended by Headteachers and the education supervisors, being local leaders in the public in matters of education, and who would be able to disseminate information to their pupils.
16. He further avers that before the issuance of the circular on guidelines on Administration of the 2025 Examination the Respondent conducted a follow up meeting on the subject which was attended by, Regional directors, Teachers service commission, County Directors Education, County quality assurance and standard officers, Center Management of schools offering computer studies and the Centre of managers of schools presenting candidates visually impaired and that close to 3,000 stakeholders participated in the virtual meetings.
17. The interested parties did not appear in these petitions
18. I have carefully considered the petitions, the replies, the able submissions and all the cited authorities by both parties on record. The issues arising for determination are;
a. Whether there was public participation before issuance of the directions dated 22.1.25 for July 2025 examination series .
b. On whether the impugned circular containing guidelines that the 2024 KCSE repeaters should all sit for the July 2025 series of KCSE is discriminatory under Article 27 of the Constitution .
c. Whether the 3th respondent herein violated Articles 73 and 75 of the Constitution.
d. Whether the petition meets the threshold of Constitutional Petitions.
e. Whether the Circular dated 22.1.25 ; KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC) (the 2nd respondent herein) is unconstitutional .
f. On whether the petitioners have made out a case for judicial review orders in the nature of certiorari , mandamus and prohibition against the 1st to 3rd respondents in against the impugned circular .
g. Who bears the costs of the petitions
Determination
Whether there was public participation
19. The petitioners have contended that public participation was never undertaken in the impugned administrative action guidelines. The respondent has however denied this contention arguing that they need not to conduct a public participation to implement duties and responsibilities that the public had already entrusted it with, and that the concept of the July examination series KCSE was prompted by an already existing public demand, and notwithstanding the fact that he was obliged to conduct public participation through stakeholders engagements in all the counties of the republic between July and November 2024, and that the stakeholders'' meetings were convened in county schools and attended by Headteachers and the education supervisors, being local leaders in the public in matters of education, and who would be able to disseminate information to their students. They filed alleged attendance sheets
20. Public participation is one of the national values and principles in our constitution, which must be observed by all persons, state organs and public officers in the exercise of their responsibilities. Article 10(1) of the constitution states that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution; (b) enacts, applies or interprets any law; or makes or implements public policy decisions. And according to Article 10(2), the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy, and “participation of the people”. Article 232 (1) (d) of the Constitution also enjoins public servants to involve people in the policy making process.
21. In the case of British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited [2019] eKLR, it was stated that;
Public participation and consultation were a living constitutional principle that went to the constitutional tenet of the sovereignty of the people. In line with the court’s mandate under section 3 of the Supreme Court Act, the following were the guiding principles for public participation:
i. -by-As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
ii. The public officer and/or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
iii. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means.
iv. Public participation had to be real and not illusory. It was not a cosmetic, public relations act or a mere formality to be undertaken as a matter of course, just to ‘fulfill’ a constitutional requirement. There was a need for both quantitative and qualitative components in public participation.
v. Public participation was not an abstract notion; it must be purposive and meaningful.
vi. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness could be determined on a case-by-case basis.
vii. Public participation was not necessarily a process consisting of oral hearings; written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
viii. Allegations of a lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope, and extent of public participation was to be determined on a case case basis.
Components of meaningful public participation included the following;
i. clarity of the subject matter for the public to understand;
ii. structures and processes (medium of engagement) of participation that were clear and simple;
iii. opportunity for balanced influence from the public in general;
iv. Commitment to the process;
v. Inclusive and effective representation;
vi. Integrity and transparency of the process;
vii. Capacity to engage on the part of the public, including that the public had to be first sensitized to the subject matter.
22. The 1st respondent submitted that it did not have to conduct a public participation to implement duties and responsibilities that the public has already entrusted it with, and that the July examination series KCSE was prompted by an already existing public demand. Public participation is a duty imposed by Article 10 of the constitution and it does not matter whether the decision to be made is by a public office or state officer . This is because the Constitution of Kenya is the supreme law of the land and the powers of all state officers are donated by the people of Kenya under Article one of the Constitution Infact, state officers have a higher duty to comply with the Constitutional provisions under Articles 1, 3 and 21 of the Constitution being servants of the people of Kenya.
23. Applying the above legal principles to this petition, there is no doubt that the public participation was mandatory before implementation of the impugned circular . The 1st and 2nd respondents in the affidavit and further affidavit of Dr David Njengere the CEO of the 1st respondent stated that they indeed conducted a public participation by meeting for stake holders and annexed ‘’DN1’’ and ‘’DN2’’ as evidence of the same . I have perused the said annextures and I note that’’ DN1’’ is an attendance register for online briefing for 2024 KCSE supervisors in several sub- counties . It has nothing to do with the impugned circular herein . DN2 contains attendance registers for two online meetings. The first one was held on 17.1.25 and it was a sensitization meeting for centre managers with computer studies . The second one was held by KNEC on 24.1.25 and it was a sensitization meeting of stakeholders participation on registration for 2025 National Examinations . The meeting of 24.1.25 cannot be said to be public participation by all standards as it came 2 days after the release of the impugned circular .
Were children involved in the alleged public participation?
23. The Petitions are also based their contention that the respondents'' violated the rights of the children under the African Charter for Rights and Welfare of Children (ACRWC )by not involving them in the decision making before issuance of the impugned circular . Also that Children’s civil rights are guaranteed in the United Nations Charter on the Rights of Children (UNCRC), along side the rights to health care, education, leisure time, and protection from abuse, exploitation, and violence and that children have a right to participate by expressing their opinions on decisions that affect their lives. The respondent said that the stakeholders'' meetings were convened and were attended by head teachers , educational supervisors who were to disseminate information to the learners. The said ACRWC charter provides for Rights and freedoms of African children including non- discrimination. Right to education, Freedoms of expression and the best interest of Children The said UNCRC and ACRWC are applicable in Kenya by virtue of Articles 2(5) and (6) of the constitution as Kenya ratified them . The said international instruments have been domesticated in the Children Act 2022. Section 28 of the Children Act provides that ‘’ 28. (1) Every child has the right, peaceably and unarmed, to assemble, demonstrate or present petitions to public authorities, and to freely participate in matters affecting children through lawfully established forums, associations, and assemblies at the national and county levels. (2) The right of a child to assemble, demonstrate, and to present petitions, shall be subject to the rights of others. (3) In addition to the rights guaranteed under subsections (1) and (2), every child shall have the right to express their views in all matters affecting them, and have those views heard and given due weight in accordance with the child''s age and maturity.
(4) The right guaranteed under subsection (3) shall be
exercised—
(a) in accordance with the national values and
principles of governance prescribed in Article 10
(2) of the Constitution.
(b) voluntarily by a child and without any undue
influence, coercion, inducement or enticement by
any person.
24. Article 53 (2) of the Constitution provides that the best interest of Children shall be of paramount importance in all matters relating to children . Section 28 (1) of the Act provides for right to a child to participate in matters affecting them in lawfully established forums and sub Section 3 provides or the right of children to express their views in the said matters and consideration of the same taking into account the age and maturity of the child . Section 28 (4) ( a) of the Act provides that public participation of children shall be conducted in accordance with the national value and principles of good governance under Article 10 of the Constitution. It was argued that teachers represented children in the public participation but this is not in compliance with Section 28 (1) and (3) of the Children Act. The children were entitled to be heard in person in a lawfully constituted forum as a matter of right and not through adults in the alleged herein . The respondents thus had a duty under Article 10 of the Constitution to ensure that the voices children of Kenya were heard on the issue of change of examination month but this was not done. The Children Act 2022 is a very progressive law which has specifically domesticated and the rights and freedoms of children under the said international instrument by recognizing enforceable individual rights of children . The rights of the children under Article 53 (2), of the Constitution were thus violated by the 1st , 2nd and 3rd respondents .
25. I find that the 1st 2nd and 3rd respondents did not conduct any public participation as provided for under Articles 10 (2) and 232 (1) (d) of the Constitution of Kenya before coming up with the impugned circular ref. KNEC /GEN / REG/KCSE/ JULY SERIES /2025-01) issued by Dr David Njengere the Chief Executive officer of Kenya National Examination Council (KNEC ).
On whether the guideline in the impugned circular that the 2024 KCSE repeaters should all sit for the July 2025 series of KCSE is discriminatory under Article 27 of the Constitution
25. The petitioners argued that the impugned circular is discriminatory as it seeks to create two classes of students i.e the regular one and the repeaters and thus it is discriminatory as it offends the provisions of Article 27(1) and (4) of the constitution of Kenya . Article 27 of the Constitution of Kenya guarantees citizens against non -discrimination by the state organs or persons . The respondent contended that the said mid- year examinations were introduced as the Country was transiting from Kenya Certificate of Secondary Education (KCSE) to the Competency Based Curriculum (CBC) System . Also that they benchmarked with other countries in the commonwealth on the mid year examination for unsuccessful candidates in national examinations and found that it worked very well there . This court also takes judicial notice that the country has embraced the CBC system and that KCSE is being phased out . Further that mid year examinations are in place in other Commonwealth jurisdictions like India and United Kingdom . However I note that those are countries with very highly developed educational systems and the teacher - student ratio in those countries is much lower than ours . paragraph 5;1 of the regulations provide that the candidates will seat for examinations in centres to be identified by the county directors of education . 5: 2 provides that the theory and practical subjects will be administered at the county head quarters while projects will be administered at sub- county level . This means the July series candidates will not be in school like the regular candidates . Sitting for the examination in the counties and sub counties would also be expensive and inconvenient for the candidates as this involve movement from home the centre every day. Secondly, national examinations is not an event but a culmination of process. Non -attendance of school would school would be disadvantageous to the candidates as practical subjects such as agriculture French, homescience , music etc require adequate prior preparation and the candidates wholly rely on schools for candidates, procurement of items to facilitate their practical aspects and teacher guidance to ensure compliance with the confidential instructions released to the examiners preparation through heads of schools and teachesr . It is worth noting that the repeaters are those candidates who either did not score good grades in the previous examinations and would want to improve on the same . The candidates who missed sitting for examinations for different reasons are also targeted by in the July said series examinations. They are expected to study from home and sit for the same examination with the regular candidates who have been prepared in in school for about 8 months . At the end of the day both July series students will be assessed by the same examiners and based on the outcome compete for the same university and Tvet institutions entry opportunities . The regular candidates will thus be better prepared for the examination than the July series candidates . Administration of the said July series examination for repeater would also create 2 classes of candidates that is regular and repeaters which may subject the repeaters to stigma as rightly submitted by the petitioners . It is thus clear that the repeaters will be treated differently from the regular candidates in all aspects. I thus find that administration of July series for the repeaters would thus be clearly discriminative to the candidates and in contravention of Article 27 of the Constitution.
Whether the impugned circular is unconstitutional
26. On whether the said circular are unconstitutional , I have already found that there was no participation of teachers, children , stakeholders and the general public before issuance of the impugned circular and that it is discriminatory . The Respondents had a duty to exercise their administrative authority in a manner that is fair, reasonable, and consistent with the principles enshrined in the Constitution. The process fell short of the said principles . The petitioners argued that the guidelines are couched in mandatory terms and are as such unconstitutional . Paragragh 2 :2 of the said guidelines provides that ‘’ All repeaters MUST register for the July series and not the November series (The emphasis is not mine ). My interpretation of the said paragragh is that is it mandatory in nature as rightly submitted by the petitioners. I also note that the circular is dated 22.1.25 and registration was to commence on 27th January and end on 21.2.25. The notice was for about one month only which was too short to register as the process requires finances . This court takes judicial notice that KCSE is usually administered in the month of October – November every year from its inception in the year 1989. The previous National examinations were also administered in The Months of October – November from time immemorial . The Period for preparation for
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