INTRODUCTION
1. The Petitioners filed the petitions dated 29.1.2025 and 4.2.2025 against the 1st to 5th respondents challenging Constitutionality of declaration by the 3rd respondent on 8th January 2025 on Mid-year KCSE examinations to wit;
i. "Starting this year and following extensive stakeholders' consultations, I wish to announce that KNEC will introduce a mid-year series of the KCSE examination 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,"
2. The Petitioner equally claimed that on the 22nd January 2025, the 1st Respondent following the above statement by 4th Respondent suo moto released a circular dabbed as; “GUIDELINES ON ADMINISTRATION OF THE 2025 KCSE (JULY 2025) SERIES EXAMINATION. Upon perusal of the said guidelines at paragraph 2.2, they discovered the Respondents made a far-reaching administrative action which they contend affects the rights and fundamental freedoms of learners and/or parents /guardians.
3. They stated that despite the Respondents insinuating that there was involvement of various stakeholders and public participation, there is no evidence that stakeholder and/or public participation was ever undertaken. They decried that following the above communication, directions /guidelines /administrative actions were made without any stakeholders' consultation and or 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.
4. The Petitioner sought a declaration that the said guidelines were unconstitutional, an order of Certiorari quashing the same among other reliefs.
5. The 1st Respondent and 2nd Respondent filed a notice of preliminary objection dated 4th February, 2025 which was premised on the ground that this court lacks jurisdiction to hear and determine the Petition on the grounds:
a. THAT the subject matter of the dispute being issues arising out of alleged actions undertaken by the 1st and 2nd Respondent pursuant to the powers conferred to them under Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya and the Rules made thereunder should be dealt with under Rule 26 of Legal Notice No.131 of 2015 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules which the Petitioner has failed to invoke.
b. THAT upon being handled under Legal Notice No.131 of 2015, if the Petitioner is still aggrieved or in lieu of being handled under those Rules the Petitioner has the right to appeal to the Kenya National Examinations Appeals Tribunal (the Tribunal) pursuant to Section 40 J (3) of the Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya.
c. THAT the jurisdiction of the Honourable Court can only be invoked in its appellate capacity from the decision of the Tribunal pursuant to Section 400 of the Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya.
d. THAT the institution of the Petition in the Honourable Court is contrary to the spirit of Article 159 (1) and (2) (c) of the Constitution.
6. On 12th February, 2024, this court directed that the two petitions be consolidated and the preliminary objection be heard first. The court also directed that the same be disposed of by way of written submissions The learned Counsel appearing for the 3rd 4th to 5th Respondent indicated that the said Respondents were in support of the preliminary objection. All the parties complied by filing their respective submissions.
7. The 1st and 2nd respondents submitted that section 10(a) of the KNEC Act mandates the council to make rules regulating the conduct of examinations and all purposes incidental thereto. They cited Section 10(2) of the KNEC provides, ‘’ In the performance of its functions under subsection (1), the Council shall have powers to—
(a) make rules regulating the conduct of examinations and for all purposes incidental thereto;
(b) make rules regulating the confirmation of examination results and for purposes incidental thereto.
8. It was alsosubmitted that the council made the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules, 2015 (gazette vide legal notice No.131 of 2015) provides as follows;
(1) A person may lodge a query to the Council on—
(a) a candidate's personal details; or
(b) Examination results.
(2) In resolving queries lodged under paragraph (1), the Council shall be guided by, the Act, these Rules, written laws, Council policies, Council procedures and Council regulations
(3) An applicant submitting any query to the Council for resolution shall ensure the applicant provides all the required evidence to enable the Council process and validate the query promptly.
9. . The 1st and 2nd respondents also cited Rule 9 (2) of the said rules that in issuing the circular the council was acting within its powers. The said rule provides ‘’The assistant chief examiner shall—
(a) coordinate team leaders and the examiners in the marking of
Kenya Certificate of Primary Education examinations;
(c) ensure that the marking regulations are complied with by the examiners under the team leader;
(d) prepare a confidential report to the chief examiner or examiner on the work of team leaders;
(e) verify the number of scripts marked by every team leader in their team; Assistant Chief Examiners
(f) ensure that the set standard on the marking exercise are maintained; and
(g) advice the chief examiner or deputy chief examiner on standard as evidenced by the quality of the work of the relevant candidates in the report submitted by other examiners.’’
10. It was further submitted that the petition relates to examination queries and thus are subject to the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules, 2015. Also, that the obligation to raise queries is not limited to the queries under Rule 26.
11. It was submitted that the petitioners did not exhaust the internal dispute resolution mechanism under Rule 26 of the Examination marking, release and certification rules 2015. Also, that Article 47 (3) of the constitution provides for exhaustion of internal remedies before moving the court . It was further submitted that Article 159 (2) (c) of the Constitution enjoins courts to encourage alternative dispute resolution mechanisms and that section 9 of the Fair Administration Act provides for internal dispute resolution in administrative conflicts and that the first port of call in examination queries is the Appeals National Examination Appeals Tribunal under Section 40B of the KNEC Act. The respondents told this court that nowhere in the petition has the petitioner stated that the they moved county director of education or the 1st respondent in relation to the said circular. Also, that Section 40J. of the Act provides for appeals from the decisions of the council to wit;
(1)’’ A person who is aggrieved by a decision of the Council to withhold or cancel the results of a candidate may lodge an appeal to the Tribunal in the prescribed form.
(2) An institution that is aggrieved by the decision of the Council to withhold or cancel the results of
the candidates in that institution may lodge an appeal to the tribunal in the prescribed form.
(3) Notwithstanding the provisions of subsection (1), a person aggrieved by a decision of the Council may appeal to the Tribunal through the County Director of Education in the County in which theapplicant is resident.
(4) The County Director of Education shall transmit to the Tribunal any applications received under subsection (3) within five days of receipt.’’
12. Counsel submitted that the objection raises a pure point of law in line with the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, Law. Counsel also cited case law on matters education. In Management Chalbi Boys High School and 2 others versus the Cabinet Secreta Ministry of Education Science and Technology and 4 others 2018 eKLR the Court held that:
"I do find that the petitioners ought to have first pursued the under rules 15 of legal notice no. 131 of 2015 as well as the procedure under Section 40] of the Act no. 29 of 2012. The petitioners were aware of [he right fronts 20.122017 that the school's results had been withheld.
13. They also, referred to the High Court Petition No. E475 of 2023 - Dr. Magare Benjamin Gikenyi versus Kenya National
Examinations Council (KNEC) and Others the petitioner
therein who is also the Petitioner in the present proceedings challenged the credibility
of the 2023 Kenya Certificate of Primary Education (KCPE) examination results and the integrity of the process of production of the results. The 1st Respondent challenged the jurisdiction of the High Court to entertain the proceedings. The High Court upheld the Preliminary Objection. In his Ruling Justice L. N. Mugambi observed as follows:
"39, Section 40(1) of the Kenya National Examinations Council Act lists types of disputes that arise front the Council decisions in respect of an examination and provides 110 to an aggrieved person can seek redress front the Tribunal established under the said Act.
14. The respondents also cited the case of R. V. COUNCIL OF LEGAL EDUCATION [2007) eKLR the learned Judge in his decision emphasized this point while dealing with role of the Council of Legal Education in the following statement. where the case of MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION and ANOTHER v KURMARSHETH [19851 CLR India Constitution) was cited. In the said Indian case it was held that where it was held for the finding that:
i. “So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it in the sense that the rules and regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute can best be implemented and what measures substantive as well as procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purposes of the Act. It is not for the Court to examine the merits and demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulation falls within the scope of the regulation-making power conferred on the delegate by the statute. The responsible representative entrusted to make bylaws must ordinarily be presumed to know what is necessary, reasonable, just and fair.”
15. Counsel for Counsel for 3rd and 4th and 5th respondent submitted that they support the preliminary objection and that the same meets the threshold set in the case of Mukisa Biscuits (supra) and the case of Oraro -versus Mbai (2005) 1 KLR 141, where Ojwang J. (as he then was) defined a preliminary objection as follows:
‘’A Preliminary Objection correctly understood is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed ‘’.
16. Further that KNEC is a body corporate Under Section 10 of the KNEC Act and it has the mandate to conduct and administration of examinations under section 48 of the Act. Also, that KNEC made rules including Legal Notice No 131 of 2015 and legal Notice No 133 of 2015 with a view of issuing guidelines on different issues to do with the examinations conducted by the council and that Rule 26 of the Legal Notice NO 131 of 201 5, provides the procedure to be followed by a person aggrieved by results or a person with queries on the handling of the examination.
17. Counsel submitted that Article 47 (3) (a) of the provides:
(l) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (J) and that legislation shall--provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration.
18. It was submitted that the council acted within the law by issuing the impugned directives. Further that Section 9(2) of the Fair Administration Act provides that:
9(2) The High Court or a subordinate court under sub-section (shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
19. Counsel cited the Mombasa Constitutional Petition No. 159 OF 2018 Constitutional Petitionan No. 201 of 2019 William Odhiambo Ramogi & 3 Others V Attorney General & 4 Others; Muslims For Human Right & 2 Others (Interested Parties ) (2020) EKLR. Where the Court held as follows:
‘’The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of Judicial consideration of matters to ensure that a party Is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [201 7] eKLR’’.
20. The 3rd and 4th and 5th respondents also referred to Court of Appeal in the case of SPEAKER OF NATIONAL ASSEMBLY V KARUME (1992 )1 KLR 21 in the following oft-repeated words:
‘’Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures’’.
21. The 1st petitioner submitted that this court has jurisdiction to hear the petition by virtue of Article 165(3) of the constitution which provides that:
22. The 1st petitioner sought to distinguish the cases cited b y the 1st and 2nd respondent on Republic v KNEC, Ex-parte Board of management of Ortum secondary school (Kapenguria High Court JR.9 &10 of 2018) JR challenged the Cancellation of KCSE Examinations Court upheld the P.O since the JR was challenging marking, release and certification (cancellation of marked examinations) but not implementation of new policy decisions .
23. 1st petitioner submitted that in the case of Management of Chalbi Boys High School & 2 Others Vs Cs Ministry of Educations, Science and Technology & 4 Others where Court upheld the objection since the petition was challenged of examinations results with errors and not implementation of new policy decisions High Court Decision Petition E475 Of 2023-Dr.Magare Gikenyi Benjamin Vs KNEC & Others where Petition challenged for release of examination with error, Court upheld the Objection as the petition challenged release of examination results with errors but not implementation of new policy decisions.
24. The 1st petitioner further submitted that all state officers are bound by the national values in making, implementing public policy decision. He quoted Article 10 of the constitution on National values and principles of governance provides:
‘’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-
………………………………….
………………………………….makes or implements public policy decisions. (Emphasis ours)
The national values and principles of governance include-
..the rule of law, democracy and participation of the people;
human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability.
25. He submitted that the preliminary objection is devoid of merit and ought to be dismissed.
26. The 2nd petitioner submitted that jurisdiction is everything and without it the court must pen down as was held by Nyarangi J in the celebrated case of Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [19891 eKLR). He also cited the case of Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [20121 eKLR where the Supreme Court stated on jurisdiction;
“CA Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ..without jurisdiction, the Court cannot entertain any proceedings... Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Also, Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [20111 eKLR, after referring to Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (supra), the Supreme Court again stated;
"The Lillian 'S' case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution."
27. It was submitted that this case has jurisdiction to hear the matter by dint of Article 165(3) of the Constitution of Kenya, 2010.
28. The 2nd The petitioner averred that the petition herein is based on both administrative decision of the respondents and whether fundamental rights and freedoms in the Bill of rights of the petitioners were violated. denied, infringed violated or threatened
29. He cited the case of Cami Graphics Limited v Chief Registrar of the Judiciary & 2 others; Commissioner of Lands & 4 others (Interested Parties) (Constitutional Petition 543 of 2022) [20241 was cited on this point and in that case, it was held that;
"Where a party moves this Court under Article 22 of the Constitution, the Court has jurisdiction in terms of Article 23(1) as read with Article 165 (3) (d) to determine the petition. However, the claim must be that the action complained of violates or threatens a right or fundamental freedoms and the relief sought must be aimed at redressing that violation."
30. The 2nd petitioner told this court that this constitutional petition brought under Article 22 as read with Articles 23(1) and 165(3) (b) and (d) (ii)of the Constitution, for the court to investigate and determine the veracity, or otherwise of the alleged infringements and redress the violations, if any.
31. He also cited the case Law Society of Kenya v Supreme Court of Kenya & another; Abdulahi SC & 19 others (Interested Parties) (Petition E026 of 2024) [20241 the learned judge stated that;
“It is not a must that a petition challenging violations or infringements of constitutional rights and fundamental freedoms in the Bill of Rights has to succeed. Rather, it is a cardinal principle in our constitutional architecture and philosophy, that a petitioner who has come to this court on the basis that rights and fundamental freedoms in the Bill of Rights have been violated or infringed, should be accorded an opportunity to be heard so that the court can make an informed decision on the issue, rather than shut out such a petitioner from the seat of justice at the preliminary stage, unless his is an open and shut case... is that this court has jurisdiction to hear and determine the issues raised in the petition. Further, some of the issues are factual and can only be determine after hearing the parties.
32. On the threshold of preliminary objections, 2nd petitioner submitted that the threshold was set in the case of Mukhisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [19691 E.A 696 (Supra) was cited. ."
33. He further relied on, the case of Mathenge & another v Inspector General of Police & 4 others; National Commission on Human Rights & 3 others (Interested Parties) (Constitutional Petition E048 of 2023) [20241 KEHC 3125 (KLR) (14 March 2024) (Ruling) upheld the decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [19691 E.A 696 and dismissed a preliminary objection with costs. It was held that;
''In consideration of the authorities cited above on what constitutes pure points of law, the court is to determine whether any pure point of law has been raised in the preliminary objection; and the facts in issue are settled. ...The upshot of the analysis of the preliminary objection is that the petitioners have not shown that there is any pure point of law that warrants the striking out of the petition herein. There are also many issues of fact that are contested as is shown by the several grounds raised by the 2nd, 3rd and 5th Respondents, and the long submissions by the Petitioners, the Respondents and the 2nd Interested Party."
34. He argued that in the case of the case of Omwoyo v Attorney General & 4 others (Constitutional Petition E045 of 2023) [20241 KEHC 7511 (KLR) (13 June 2024) (Ruling) the learned judge dismissed the Notice of Preliminary Objection for lack of merit. The Court held that;
"Hence, for a preliminary objection to succeed the court must be satisfied that it raises a pure point of law. It is argued on the assumption that all the facts pleaded by the other side are correct. Therefore, a preliminary objection would not lie if what is sought is the exercise of judicial discretion. Undoubtedly, the issues of specificity and the doctrine of avoidance are both capable of disposing of the Petition in limine and therefore are proper subjects to raise as preliminary points. ...The Petition seeks declaratory orders for purposes of enforcing the constitutional rights of access to information under Article 35 as well as enforcement of socio-economic rights under Article 43. Prima facie, these are grievances that can only be enforced by way of a constitutional petition. Since no suggestion was proffered by the 4th respondent as to any other alternative way of realizing the rights it is plain to me that the doctrine of constitutional avoidance is not applicable to the circumstances of this Petition."
35. It was submitted that a preliminary objection must be based on a pure point of law and cannot succeed if any fact has to be ascertained or is at the discretion of the court.
36. It was also submitted that this petition is orchestrated to delay the hearing of this petition.
ISSUES OF DETERMINATION
37. Having perused preliminary objection before me as well as the able written submissions filed by all the parties herein, I find that that the issues for determination are;
i. Whether the objection meets the threshold for preliminary objections.
ii. Whether this court has jurisdiction to hear and determine the Petition.
Whether the preliminary objection meets the threshold for preliminary objections.
38. It is not disputed that the threshold for preliminary objections was laid down in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, Law JA had this to say:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary Objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
On his part, Sir Charles Newbold, President stated:
i. “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what I sought is the exercise of judicial discretion.”
39. I have considered the arguments by the parties in support of their respective position on this issue. Jurisdiction is what gives a court power or authority to hear and determine a dispute presented before it.
40. The objection herein is based on the issue of jurisdiction by virtue of Section 40 (J) of the Kenya National Examination Council Act (KNEC) and I find that the same is a pure point of law and thus meets the threshold for preliminary objections.
Whether this court has jurisdiction to hear and determine the Petition
41. The 1st and Second respondents in their preliminary objection averred that the Petitioner ought to have invoked the provisions of rule 26 of legal Notice 131 of 2015, the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules before filing these Petitions. They also averred that section 40J (3) of the Kenya National examination council Act Cap 214A that provides for an avenue to challenge administrative decisions of the Council and appeal to the tribunal created under the Act in case of dissatisfaction with the decision of the council. Rule 26 of the ‘’The Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Certification) Rules, 2015 provides as follows;
(1) A person may lodge a query to the Council on—
(a) a candidate's personal details; or
(b) Examination results.
(2) In resolving queries lodged under paragraph (1), the Council shall be guided by, the Act, these Rules, written laws, Council policies, Council procedures and Council regulations
(3) An applicant submitting any query to the Council for resolution shall ensure the applicant provides all the required evidence to enable the Council process and validate the query promptly.
42. Section 40J on the other hand provides as follows:
(1) A person who is aggrieved by a decision of the Council to withhold or cancel the results of a candidate may lodge an appeal to the Tribunal in the prescribed form.
(2) An institution that is aggrieved by the decision of the Council to withhold or cancel the results of the candidates in that institution may lodge an appeal to the tribunal in the prescribed form.
(3) Notwithstanding the provisions of subsection (1), a person aggrieved by a decision of the Council may appeal to the Tribunal through the County Director of Education in the County in which the applicant is resident.
(4) The County Director of Education shall transmit to the Tribunal any applications received under subsection (3) within five days of receipt.
(5) Where the person aggrieved by the decision of the Council is a minor, the application under subsection (1) shall be made by the parent or guardian of the minor.
(6) An appeal under subsection (1) shall be—
(a) in writing; and
(b) lodged with the Tribunal within a period of fourteen days from the date of the decision of the Council.
(7) The parties to an appeal lodged under subsection (1) may appear before the Tribunal in person or be represented by an advocate or any other person whom the Tribunal may permit to be heard on behalf of such party.
43. Where doubt is raised regarding the jurisdiction of the court to hear a matter before it, the court has to carefully weigh the objection and determine whether it has or does not have jurisdiction over the matter. If the court determines that it has no jurisdiction to hear a matter, it should not take any further step. It must down its tools as that is the end of that matter. (See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
44. Also in the case of Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) the Supreme Court held that jurisdiction of a court flows from the constitution and the law. The court cannot exercise jurisdiction it does not have or through the craft of judicial interpretation. A review of the Petitions herein, reveals that the subject matter is the administrative decision made by the 1st to 4th Respondents to offer Mid-year KCSE Examination every July starting July, 2025.
45. I appreciate that Article 159 (2)(c) of the Constitution enjoins the courts to embrace alternative dispute resolution mechanisms. Internal dispute resolution mechanisms are enacted in furtherance of the said Article.
46. A 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows:
i. 52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
ii. 42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
iii. Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
iv. 43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
v. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
vi. It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
47. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
i. 59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
ii. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)
iii. 60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
iv. 61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
v. 62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.
Determination
48. Section 40J which the 1st and 2nd Respondent have also based the objection on is couched in a clear language and it relates to decisions of the Council on disputes relating to withholding or cancellation of results of a candidate wherein a candidate is given an opportunity lodge an appeal to the Tribunal established under section 40B of the Act. Rule 26 of the Kenya National Examination Council (Marking of Examinations , Release of Results and Certification ) Rules, deals with queries of a candidates details or examination results and provides for the procedure for lodging a query to the Council on matters personal details of a candidate or examination results . The subject matter in the two Petitions has nothing to do with the personal details of a candidate or examination results ,or which are the queries that a person can raise with the council but allegations of denial , violation ,threat to violation of the Bill of Rights and can thus they cannot fall with the jurisdiction of the Examination Tribunal. The cases cited by the respondents are not applicable herein as the issues in those petitions and the instant petitions are totally different. I agree with submissions of the Dr. Gikenyi, the 1st Petitioner that the doctrine exhaustion doctrine does not apply in situations where the alleged internal dispute resolution mechanism lacks jurisdiction to deal with issues raised in a Petition. Thus, the doctrine of exhaustion envisaged under Section 40 J of the KNEC Act does not therefore apply in this case.
49. It thus follows that Article 47 and Fair Administration Act do not apply in this case.
50. In any event , the High Court is the Custodian of the Bill of Rights by virtue of the powers donated to it by Article 165(3) of the constitution of Kenya. Article 165 (3) of the constitution provides that-;
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(h) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
51. I find that the High Court thus has wide powers to determine denial violation threat or infringement of fundamental rights and freedoms as rightly submitted by counsel for the 2nd petitioner. The petition herein is brought under Articles 1,2,3, 10, 27, 35, 41,43,47, 53, 73, 75 (1), 201, 258 ,259 and 260 of the Constitution. The Petition is properly before this court since the same is challenging constitutionality of the decision made by the 1st to 4th Respondents to offer Mid-year KCSE Examination series every July starting July, 2025 which they claim violates the constitutional rights of targeted persons and/or learners intending to repeat KCSE examinations. This court therefor has jurisdiction to hear and determine the with the petitions herein.
i. CONCLUSION
52. It therefore goes without saying that the Preliminary objection filed by the 1st and 2nd Respondents and supported by the 3rd to 5th Respondents lacks merit and the same is dismissed. Each party will bear its own costs.
53. Orders accordingly
1. The Petitioners filed the petitions dated 29.1.2025 and 4.2.2025 against the 1st to 5th respondents challenging Constitutionality of declaration by the 3rd respondent on 8th January 2025 on Mid-year KCSE examinations to wit;
i. "Starting this year and following extensive stakeholders' consultations, I wish to announce that KNEC will introduce a mid-year series of the KCSE examination 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,"
2. The Petitioner equally claimed that on the 22nd January 2025, the 1st Respondent following the above statement by 4th Respondent suo moto released a circular dabbed as; “GUIDELINES ON ADMINISTRATION OF THE 2025 KCSE (JULY 2025) SERIES EXAMINATION. Upon perusal of the said guidelines at paragraph 2.2, they discovered the Respondents made a far-reaching administrative action which they contend affects the rights and fundamental freedoms of learners and/or parents /guardians.
3. They stated that despite the Respondents insinuating that there was involvement of various stakeholders and public participation, there is no evidence that stakeholder and/or public participation was ever undertaken. They decried that following the above communication, directions /guidelines /administrative actions were made without any stakeholders' consultation and or 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.
4. The Petitioner sought a declaration that the said guidelines were unconstitutional, an order of Certiorari quashing the same among other reliefs.
5. The 1st Respondent and 2nd Respondent filed a notice of preliminary objection dated 4th February, 2025 which was premised on the ground that this court lacks jurisdiction to hear and determine the Petition on the grounds:
a. THAT the subject matter of the dispute being issues arising out of alleged actions undertaken by the 1st and 2nd Respondent pursuant to the powers conferred to them under Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya and the Rules made thereunder should be dealt with under Rule 26 of Legal Notice No.131 of 2015 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules which the Petitioner has failed to invoke.
b. THAT upon being handled under Legal Notice No.131 of 2015, if the Petitioner is still aggrieved or in lieu of being handled under those Rules the Petitioner has the right to appeal to the Kenya National Examinations Appeals Tribunal (the Tribunal) pursuant to Section 40 J (3) of the Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya.
c. THAT the jurisdiction of the Honourable Court can only be invoked in its appellate capacity from the decision of the Tribunal pursuant to Section 400 of the Kenya National Examinations Council Act Chapter 214A of the Laws of Kenya.
d. THAT the institution of the Petition in the Honourable Court is contrary to the spirit of Article 159 (1) and (2) (c) of the Constitution.
6. On 12th February, 2024, this court directed that the two petitions be consolidated and the preliminary objection be heard first. The court also directed that the same be disposed of by way of written submissions The learned Counsel appearing for the 3rd 4th to 5th Respondent indicated that the said Respondents were in support of the preliminary objection. All the parties complied by filing their respective submissions.
7. The 1st and 2nd respondents submitted that section 10(a) of the KNEC Act mandates the council to make rules regulating the conduct of examinations and all purposes incidental thereto. They cited Section 10(2) of the KNEC provides, ‘’ In the performance of its functions under subsection (1), the Council shall have powers to—
(a) make rules regulating the conduct of examinations and for all purposes incidental thereto;
(b) make rules regulating the confirmation of examination results and for purposes incidental thereto.
8. It was alsosubmitted that the council made the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules, 2015 (gazette vide legal notice No.131 of 2015) provides as follows;
(1) A person may lodge a query to the Council on—
(a) a candidate's personal details; or
(b) Examination results.
(2) In resolving queries lodged under paragraph (1), the Council shall be guided by, the Act, these Rules, written laws, Council policies, Council procedures and Council regulations
(3) An applicant submitting any query to the Council for resolution shall ensure the applicant provides all the required evidence to enable the Council process and validate the query promptly.
9. . The 1st and 2nd respondents also cited Rule 9 (2) of the said rules that in issuing the circular the council was acting within its powers. The said rule provides ‘’The assistant chief examiner shall—
(a) coordinate team leaders and the examiners in the marking of
Kenya Certificate of Primary Education examinations;
(c) ensure that the marking regulations are complied with by the examiners under the team leader;
(d) prepare a confidential report to the chief examiner or examiner on the work of team leaders;
(e) verify the number of scripts marked by every team leader in their team; Assistant Chief Examiners
(f) ensure that the set standard on the marking exercise are maintained; and
(g) advice the chief examiner or deputy chief examiner on standard as evidenced by the quality of the work of the relevant candidates in the report submitted by other examiners.’’
10. It was further submitted that the petition relates to examination queries and thus are subject to the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules, 2015. Also, that the obligation to raise queries is not limited to the queries under Rule 26.
11. It was submitted that the petitioners did not exhaust the internal dispute resolution mechanism under Rule 26 of the Examination marking, release and certification rules 2015. Also, that Article 47 (3) of the constitution provides for exhaustion of internal remedies before moving the court . It was further submitted that Article 159 (2) (c) of the Constitution enjoins courts to encourage alternative dispute resolution mechanisms and that section 9 of the Fair Administration Act provides for internal dispute resolution in administrative conflicts and that the first port of call in examination queries is the Appeals National Examination Appeals Tribunal under Section 40B of the KNEC Act. The respondents told this court that nowhere in the petition has the petitioner stated that the they moved county director of education or the 1st respondent in relation to the said circular. Also, that Section 40J. of the Act provides for appeals from the decisions of the council to wit;
(1)’’ A person who is aggrieved by a decision of the Council to withhold or cancel the results of a candidate may lodge an appeal to the Tribunal in the prescribed form.
(2) An institution that is aggrieved by the decision of the Council to withhold or cancel the results of
the candidates in that institution may lodge an appeal to the tribunal in the prescribed form.
(3) Notwithstanding the provisions of subsection (1), a person aggrieved by a decision of the Council may appeal to the Tribunal through the County Director of Education in the County in which theapplicant is resident.
(4) The County Director of Education shall transmit to the Tribunal any applications received under subsection (3) within five days of receipt.’’
12. Counsel submitted that the objection raises a pure point of law in line with the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, Law. Counsel also cited case law on matters education. In Management Chalbi Boys High School and 2 others versus the Cabinet Secreta Ministry of Education Science and Technology and 4 others 2018 eKLR the Court held that:
"I do find that the petitioners ought to have first pursued the under rules 15 of legal notice no. 131 of 2015 as well as the procedure under Section 40] of the Act no. 29 of 2012. The petitioners were aware of [he right fronts 20.122017 that the school's results had been withheld.
13. They also, referred to the High Court Petition No. E475 of 2023 - Dr. Magare Benjamin Gikenyi versus Kenya National
Examinations Council (KNEC) and Others the petitioner
therein who is also the Petitioner in the present proceedings challenged the credibility
of the 2023 Kenya Certificate of Primary Education (KCPE) examination results and the integrity of the process of production of the results. The 1st Respondent challenged the jurisdiction of the High Court to entertain the proceedings. The High Court upheld the Preliminary Objection. In his Ruling Justice L. N. Mugambi observed as follows:
"39, Section 40(1) of the Kenya National Examinations Council Act lists types of disputes that arise front the Council decisions in respect of an examination and provides 110 to an aggrieved person can seek redress front the Tribunal established under the said Act.
14. The respondents also cited the case of R. V. COUNCIL OF LEGAL EDUCATION [2007) eKLR the learned Judge in his decision emphasized this point while dealing with role of the Council of Legal Education in the following statement. where the case of MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION and ANOTHER v KURMARSHETH [19851 CLR India Constitution) was cited. In the said Indian case it was held that where it was held for the finding that:
i. “So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it in the sense that the rules and regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute can best be implemented and what measures substantive as well as procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purposes of the Act. It is not for the Court to examine the merits and demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulation falls within the scope of the regulation-making power conferred on the delegate by the statute. The responsible representative entrusted to make bylaws must ordinarily be presumed to know what is necessary, reasonable, just and fair.”
15. Counsel for Counsel for 3rd and 4th and 5th respondent submitted that they support the preliminary objection and that the same meets the threshold set in the case of Mukisa Biscuits (supra) and the case of Oraro -versus Mbai (2005) 1 KLR 141, where Ojwang J. (as he then was) defined a preliminary objection as follows:
‘’A Preliminary Objection correctly understood is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed ‘’.
16. Further that KNEC is a body corporate Under Section 10 of the KNEC Act and it has the mandate to conduct and administration of examinations under section 48 of the Act. Also, that KNEC made rules including Legal Notice No 131 of 2015 and legal Notice No 133 of 2015 with a view of issuing guidelines on different issues to do with the examinations conducted by the council and that Rule 26 of the Legal Notice NO 131 of 201 5, provides the procedure to be followed by a person aggrieved by results or a person with queries on the handling of the examination.
17. Counsel submitted that Article 47 (3) (a) of the provides:
(l) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (J) and that legislation shall--provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration.
18. It was submitted that the council acted within the law by issuing the impugned directives. Further that Section 9(2) of the Fair Administration Act provides that:
9(2) The High Court or a subordinate court under sub-section (shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
19. Counsel cited the Mombasa Constitutional Petition No. 159 OF 2018 Constitutional Petitionan No. 201 of 2019 William Odhiambo Ramogi & 3 Others V Attorney General & 4 Others; Muslims For Human Right & 2 Others (Interested Parties ) (2020) EKLR. Where the Court held as follows:
‘’The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of Judicial consideration of matters to ensure that a party Is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [201 7] eKLR’’.
20. The 3rd and 4th and 5th respondents also referred to Court of Appeal in the case of SPEAKER OF NATIONAL ASSEMBLY V KARUME (1992 )1 KLR 21 in the following oft-repeated words:
‘’Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures’’.
21. The 1st petitioner submitted that this court has jurisdiction to hear the petition by virtue of Article 165(3) of the constitution which provides that:
22. The 1st petitioner sought to distinguish the cases cited b y the 1st and 2nd respondent on Republic v KNEC, Ex-parte Board of management of Ortum secondary school (Kapenguria High Court JR.9 &10 of 2018) JR challenged the Cancellation of KCSE Examinations Court upheld the P.O since the JR was challenging marking, release and certification (cancellation of marked examinations) but not implementation of new policy decisions .
23. 1st petitioner submitted that in the case of Management of Chalbi Boys High School & 2 Others Vs Cs Ministry of Educations, Science and Technology & 4 Others where Court upheld the objection since the petition was challenged of examinations results with errors and not implementation of new policy decisions High Court Decision Petition E475 Of 2023-Dr.Magare Gikenyi Benjamin Vs KNEC & Others where Petition challenged for release of examination with error, Court upheld the Objection as the petition challenged release of examination results with errors but not implementation of new policy decisions.
24. The 1st petitioner further submitted that all state officers are bound by the national values in making, implementing public policy decision. He quoted Article 10 of the constitution on National values and principles of governance provides:
‘’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-
………………………………….
………………………………….makes or implements public policy decisions. (Emphasis ours)
The national values and principles of governance include-
..the rule of law, democracy and participation of the people;
human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability.
25. He submitted that the preliminary objection is devoid of merit and ought to be dismissed.
26. The 2nd petitioner submitted that jurisdiction is everything and without it the court must pen down as was held by Nyarangi J in the celebrated case of Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [19891 eKLR). He also cited the case of Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [20121 eKLR where the Supreme Court stated on jurisdiction;
“CA Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ..without jurisdiction, the Court cannot entertain any proceedings... Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Also, Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 [20111 eKLR, after referring to Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (supra), the Supreme Court again stated;
"The Lillian 'S' case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution."
27. It was submitted that this case has jurisdiction to hear the matter by dint of Article 165(3) of the Constitution of Kenya, 2010.
28. The 2nd The petitioner averred that the petition herein is based on both administrative decision of the respondents and whether fundamental rights and freedoms in the Bill of rights of the petitioners were violated. denied, infringed violated or threatened
29. He cited the case of Cami Graphics Limited v Chief Registrar of the Judiciary & 2 others; Commissioner of Lands & 4 others (Interested Parties) (Constitutional Petition 543 of 2022) [20241 was cited on this point and in that case, it was held that;
"Where a party moves this Court under Article 22 of the Constitution, the Court has jurisdiction in terms of Article 23(1) as read with Article 165 (3) (d) to determine the petition. However, the claim must be that the action complained of violates or threatens a right or fundamental freedoms and the relief sought must be aimed at redressing that violation."
30. The 2nd petitioner told this court that this constitutional petition brought under Article 22 as read with Articles 23(1) and 165(3) (b) and (d) (ii)of the Constitution, for the court to investigate and determine the veracity, or otherwise of the alleged infringements and redress the violations, if any.
31. He also cited the case Law Society of Kenya v Supreme Court of Kenya & another; Abdulahi SC & 19 others (Interested Parties) (Petition E026 of 2024) [20241 the learned judge stated that;
“It is not a must that a petition challenging violations or infringements of constitutional rights and fundamental freedoms in the Bill of Rights has to succeed. Rather, it is a cardinal principle in our constitutional architecture and philosophy, that a petitioner who has come to this court on the basis that rights and fundamental freedoms in the Bill of Rights have been violated or infringed, should be accorded an opportunity to be heard so that the court can make an informed decision on the issue, rather than shut out such a petitioner from the seat of justice at the preliminary stage, unless his is an open and shut case... is that this court has jurisdiction to hear and determine the issues raised in the petition. Further, some of the issues are factual and can only be determine after hearing the parties.
32. On the threshold of preliminary objections, 2nd petitioner submitted that the threshold was set in the case of Mukhisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [19691 E.A 696 (Supra) was cited. ."
33. He further relied on, the case of Mathenge & another v Inspector General of Police & 4 others; National Commission on Human Rights & 3 others (Interested Parties) (Constitutional Petition E048 of 2023) [20241 KEHC 3125 (KLR) (14 March 2024) (Ruling) upheld the decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [19691 E.A 696 and dismissed a preliminary objection with costs. It was held that;
''In consideration of the authorities cited above on what constitutes pure points of law, the court is to determine whether any pure point of law has been raised in the preliminary objection; and the facts in issue are settled. ...The upshot of the analysis of the preliminary objection is that the petitioners have not shown that there is any pure point of law that warrants the striking out of the petition herein. There are also many issues of fact that are contested as is shown by the several grounds raised by the 2nd, 3rd and 5th Respondents, and the long submissions by the Petitioners, the Respondents and the 2nd Interested Party."
34. He argued that in the case of the case of Omwoyo v Attorney General & 4 others (Constitutional Petition E045 of 2023) [20241 KEHC 7511 (KLR) (13 June 2024) (Ruling) the learned judge dismissed the Notice of Preliminary Objection for lack of merit. The Court held that;
"Hence, for a preliminary objection to succeed the court must be satisfied that it raises a pure point of law. It is argued on the assumption that all the facts pleaded by the other side are correct. Therefore, a preliminary objection would not lie if what is sought is the exercise of judicial discretion. Undoubtedly, the issues of specificity and the doctrine of avoidance are both capable of disposing of the Petition in limine and therefore are proper subjects to raise as preliminary points. ...The Petition seeks declaratory orders for purposes of enforcing the constitutional rights of access to information under Article 35 as well as enforcement of socio-economic rights under Article 43. Prima facie, these are grievances that can only be enforced by way of a constitutional petition. Since no suggestion was proffered by the 4th respondent as to any other alternative way of realizing the rights it is plain to me that the doctrine of constitutional avoidance is not applicable to the circumstances of this Petition."
35. It was submitted that a preliminary objection must be based on a pure point of law and cannot succeed if any fact has to be ascertained or is at the discretion of the court.
36. It was also submitted that this petition is orchestrated to delay the hearing of this petition.
ISSUES OF DETERMINATION
37. Having perused preliminary objection before me as well as the able written submissions filed by all the parties herein, I find that that the issues for determination are;
i. Whether the objection meets the threshold for preliminary objections.
ii. Whether this court has jurisdiction to hear and determine the Petition.
Whether the preliminary objection meets the threshold for preliminary objections.
38. It is not disputed that the threshold for preliminary objections was laid down in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, Law JA had this to say:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary Objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
On his part, Sir Charles Newbold, President stated:
i. “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what I sought is the exercise of judicial discretion.”
39. I have considered the arguments by the parties in support of their respective position on this issue. Jurisdiction is what gives a court power or authority to hear and determine a dispute presented before it.
40. The objection herein is based on the issue of jurisdiction by virtue of Section 40 (J) of the Kenya National Examination Council Act (KNEC) and I find that the same is a pure point of law and thus meets the threshold for preliminary objections.
Whether this court has jurisdiction to hear and determine the Petition
41. The 1st and Second respondents in their preliminary objection averred that the Petitioner ought to have invoked the provisions of rule 26 of legal Notice 131 of 2015, the Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Rules before filing these Petitions. They also averred that section 40J (3) of the Kenya National examination council Act Cap 214A that provides for an avenue to challenge administrative decisions of the Council and appeal to the tribunal created under the Act in case of dissatisfaction with the decision of the council. Rule 26 of the ‘’The Kenya National Examination Council (Marking of Examinations, Release of Results and Certification) Certification) Rules, 2015 provides as follows;
(1) A person may lodge a query to the Council on—
(a) a candidate's personal details; or
(b) Examination results.
(2) In resolving queries lodged under paragraph (1), the Council shall be guided by, the Act, these Rules, written laws, Council policies, Council procedures and Council regulations
(3) An applicant submitting any query to the Council for resolution shall ensure the applicant provides all the required evidence to enable the Council process and validate the query promptly.
42. Section 40J on the other hand provides as follows:
(1) A person who is aggrieved by a decision of the Council to withhold or cancel the results of a candidate may lodge an appeal to the Tribunal in the prescribed form.
(2) An institution that is aggrieved by the decision of the Council to withhold or cancel the results of the candidates in that institution may lodge an appeal to the tribunal in the prescribed form.
(3) Notwithstanding the provisions of subsection (1), a person aggrieved by a decision of the Council may appeal to the Tribunal through the County Director of Education in the County in which the applicant is resident.
(4) The County Director of Education shall transmit to the Tribunal any applications received under subsection (3) within five days of receipt.
(5) Where the person aggrieved by the decision of the Council is a minor, the application under subsection (1) shall be made by the parent or guardian of the minor.
(6) An appeal under subsection (1) shall be—
(a) in writing; and
(b) lodged with the Tribunal within a period of fourteen days from the date of the decision of the Council.
(7) The parties to an appeal lodged under subsection (1) may appear before the Tribunal in person or be represented by an advocate or any other person whom the Tribunal may permit to be heard on behalf of such party.
43. Where doubt is raised regarding the jurisdiction of the court to hear a matter before it, the court has to carefully weigh the objection and determine whether it has or does not have jurisdiction over the matter. If the court determines that it has no jurisdiction to hear a matter, it should not take any further step. It must down its tools as that is the end of that matter. (See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
44. Also in the case of Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) the Supreme Court held that jurisdiction of a court flows from the constitution and the law. The court cannot exercise jurisdiction it does not have or through the craft of judicial interpretation. A review of the Petitions herein, reveals that the subject matter is the administrative decision made by the 1st to 4th Respondents to offer Mid-year KCSE Examination every July starting July, 2025.
45. I appreciate that Article 159 (2)(c) of the Constitution enjoins the courts to embrace alternative dispute resolution mechanisms. Internal dispute resolution mechanisms are enacted in furtherance of the said Article.
46. A 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows:
i. 52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
ii. 42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
iii. Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
iv. 43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
v. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
vi. It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
47. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
i. 59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
ii. What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)
iii. 60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
iv. 61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
v. 62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.
Determination
48. Section 40J which the 1st and 2nd Respondent have also based the objection on is couched in a clear language and it relates to decisions of the Council on disputes relating to withholding or cancellation of results of a candidate wherein a candidate is given an opportunity lodge an appeal to the Tribunal established under section 40B of the Act. Rule 26 of the Kenya National Examination Council (Marking of Examinations , Release of Results and Certification ) Rules, deals with queries of a candidates details or examination results and provides for the procedure for lodging a query to the Council on matters personal details of a candidate or examination results . The subject matter in the two Petitions has nothing to do with the personal details of a candidate or examination results ,or which are the queries that a person can raise with the council but allegations of denial , violation ,threat to violation of the Bill of Rights and can thus they cannot fall with the jurisdiction of the Examination Tribunal. The cases cited by the respondents are not applicable herein as the issues in those petitions and the instant petitions are totally different. I agree with submissions of the Dr. Gikenyi, the 1st Petitioner that the doctrine exhaustion doctrine does not apply in situations where the alleged internal dispute resolution mechanism lacks jurisdiction to deal with issues raised in a Petition. Thus, the doctrine of exhaustion envisaged under Section 40 J of the KNEC Act does not therefore apply in this case.
49. It thus follows that Article 47 and Fair Administration Act do not apply in this case.
50. In any event , the High Court is the Custodian of the Bill of Rights by virtue of the powers donated to it by Article 165(3) of the constitution of Kenya. Article 165 (3) of the constitution provides that-;
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(h) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
51. I find that the High Court thus has wide powers to determine denial violation threat or infringement of fundamental rights and freedoms as rightly submitted by counsel for the 2nd petitioner. The petition herein is brought under Articles 1,2,3, 10, 27, 35, 41,43,47, 53, 73, 75 (1), 201, 258 ,259 and 260 of the Constitution. The Petition is properly before this court since the same is challenging constitutionality of the decision made by the 1st to 4th Respondents to offer Mid-year KCSE Examination series every July starting July, 2025 which they claim violates the constitutional rights of targeted persons and/or learners intending to repeat KCSE examinations. This court therefor has jurisdiction to hear and determine the with the petitions herein.
i. CONCLUSION
52. It therefore goes without saying that the Preliminary objection filed by the 1st and 2nd Respondents and supported by the 3rd to 5th Respondents lacks merit and the same is dismissed. Each party will bear its own costs.
53. Orders accordingly