Introduction
1. The Petition before the Court is dated 3rd April 2025 and was brought by Maurice Onyando Ajok and Elvis Apondi Odwori, the Petitioners herein, both registered students of Kenyatta University and persons living with visual disability, duly registered with the National Council for Persons with Disabilities (NCPWD). The 1st Petitioner is a student of the Bachelor of Education and Arts, while the 2nd Petitioner is a student of the Bachelor of Laws (LL.B).
2. The Petition arises out of the ongoing review of the Kenyatta University Students Association (KUSA) Constitution (revised 2021), a process undertaken by the 1st Respondent through the 2nd Respondent, the Committee for Kenyatta University Students Association Constitutional Review, chaired by Prof. Benard Kivunge. During the review, the Petitioners submitted proposals seeking the inclusion of mandatory exclusive representation for persons with disabilities (PWDs) in the Student Governance Council (SGC) and the Kenyatta University Student Association Congress Assembly, anchored on Article 54(2) of the Constitution of Kenya, 2010.
3. The Respondents opposed the Petition and filed a Replying Affidavit, dated 7th August 2025 and sworn by Prof. Benard Kivunge, together with written submissions dated 20th October 2025. The Petitioners filed written submissions dated 8th September 2025.
The Petitioners' Case
4. The Petitioners moved this Court seeking, inter alia, the following orders:
a) A DECLARATION that the refusal by the Respondents to provide for exclusive representation of persons with disabilities within the SGC and the KUSA Constitutional Congress Assembly is unconstitutional, illegal, null and void, as it violates Articles 10, 27(4), 54(2) and 259 of the Constitution;
b) An INTERIM ORDER OF INJUNCTION staying the Respondents from continuing with the Kenyatta University constitutional review procedure pending the hearing and determination of the Petition;
c) An order directing the Respondents, their agents, servants, and/or officers to immediately amend the Kenyatta University Student Association Constitution to include provisions guaranteeing exclusive representation of persons with disabilities in line with Article 54(2) of the Constitution;
d) A PERMANENT INJUNCTION restraining the Respondents from conducting future student elections or appointments under the Kenyatta University Student Association Constitution unless and until provisions ensuring representation for persons with disabilities are incorporated;
e) An ORDER FOR CERTIORARI to bring before this Honourable Court the decision of the Respondents rejecting the Petitioners' proposals for amendments to the Kenyatta University Student Association Constitution and quash the same accordingly.
f) Damages for violation of the Petitioners' constitutional rights to fair and equitable representation, substantive equality and inclusion in student governance structures;
g) Any other relief that this honourable Court may deem fit and just to grant in the circumstances; and
h) Costs of the Petition.
5. The Petitioners case is that the failure by the Respondents to operationalize Article 54(2) of the Constitution of Kenya, 2010, which they contend guarantees that at least 5% of all elective and appointive positions in public bodies be reserved for persons with disabilities, amounts to a continuing violation of their constitutional rights.
6. They submit that the existing arrangement, whereby interests of People With Disabilities are subsumed within a general "Gender and Special Needs Secretary" position, does not amount to dedicated or exclusive representation, and that the increase of PWD seats in Congress from one to four does not cure the constitutional defect.
7. The Petitioners rely on Article 10 of the Constitution of Kenya 2010 and state that the national values of inclusiveness, equity, human dignity and protection of the marginalized people bind all State organs and public officers, and that the 1st Respondent, as a public university, is not exempted from these obligations. They further invoke Article 27 of the Constitution of Kenya 2010 which guarantees equality and freedom from discrimination and obliges the State to take legislative and other measures to redress disadvantages suffered by individuals or groups on account of past discrimination.
8. The Petitioners relied on British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR) to support the proposition that public participation and consultation are a living constitutional principle going to the sovereignty of the people and must be real, not illusory.
9. They further relied on the decision in Northern Nomadic Disabled Persons' Organization (NONDO) v The Governor, County Government of Garissa & another [2013] KEHC 467 (KLR), for the proposition that public bodies have an obligation to ensure the inclusion of persons with disabilities in governance and decision-making. They submitted that the recently enacted Persons with Disabilities Act, 2025 (Act No. 4 of 2025), in particular Section 82, which obligates public entities to implement targeted public participation and ensure the meaningful inclusion of persons with disabilities in decisions affecting them, leaves no room for passive or inadvertent sidelining.
10. The Petitioners urged that the continued exclusion of persons with disabilities from dedicated representation on the Student Governance Council and the Kenyatta University Student Association Congress Assembly is not a benign oversight or administrative convenience but a constitutional violation. They further urged that this Court should affirm that any public action or appointment structure that sidelines persons with disabilities is constitutionally bereft of legitimacy and cannot be allowed to stand.
The Respondents' Case
11. The Respondents' case is that Section 41(1)(A) of the Universities Act provides for the establishment of a Students' Council to govern the students' association. The Council comprises seven (7) members: a Chairperson, Vice-Chairperson, Treasurer, Secretary-General, and three other members representing special interest groups, including persons with disabilities, international students, and students from different religious groups.
12. It is deposed that, in preparing the Kenyatta University Students Association Constitution (revised 2021) and in its subsequent 2025 review, the 1st Respondent, in consultation with student stakeholders, established organs to make and administer KUSA by-laws and policies, promote students' welfare, and advance gender equity and human rights. The review is conducted periodically upon the advice of the University Senate and is spearheaded by the Vice-Chancellor, who appoints a Committee comprising both staff and students.
13. The Respondents averred that upon collection of proposals during the review process, the question of whether to establish an exclusive position for persons with disabilities was tabled before the students' Congress and forty-seven (47) delegates voted against the proposal while eleven (11) voted in its favour.
14. The Respondents further depose that, notwithstanding the rejection of the proposal for an exclusive PWD seat, the draft KUSA Constitution (2025) has, in promoting inclusivity, provided for a minimum of four (4) positions in Congress for persons with special needs. An increase from the one (1) position that existed under the 2021 Constitution.
15. The Respondents submit that the Petitioners have not demonstrated, with the precision demanded by Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, exactly how the Respondents have failed to operationalize Article 54(2) of the constitution of Kenya,2010, nor produced any evidence that any person, including either Petitioner, applied for or contested the Gender & Special Needs Secretary position and was excluded on account of disability.
16. It is submitted that the Petitioners are, in substance, interested only in creating a slot bearing a particular label, rather than in demonstrating any concrete failure of representation or advocacy by existing office-bearers.
17. On the law, the Respondents submit that Article 54(2) of the Constitution of Kenya,2010 is not a free-standing enforceable right but a principle directing the progressive realization of the 5% threshold, the substantive rights of persons with disabilities being found instead in Article 54(1) of the Constitution of Kenya,2010.
18. The Respondents relied on the decisions in Northern Nomadic Disabled Persons' Organization (NONDO) v The Governor, County Government of Garissa & another [2013] KEHC 467 (KLR), where Mutuku, J. held in terms that "the language of article 54(2) of the Constitution of Kenya,2010 is clear that realization of 5% percent of the members of the public in elective and appointive bodies of persons with disabilities is progressive," and that "it is not a right but a principle on how to implement the 5% percent of persons with disabilities requirement," the enforceable rights being found under Article 54(1) of the Constitution of Kenya, none of which the Petitioners claim to have been violated.
19. The Respondents raised the doctrine of ripeness and mootness. It is submitted that a court is prevented from determining an issue that is either premature (not yet ripe for adjudication) or moot (having ceased to present a live controversy, such that a decision would have no practical effect). It is submitted that, by the time of hearing, the KUSA constitutional review process had been completed, the Constitution approved and published, such that the specific prayers seeking to compel amendment of an ongoing process, and to restrain elections pending such amendment, have been overtaken by events and are academic.
20. It is further submitted that the Petitioners failed to exhaust available internal avenues, in particular by declining to submit formal memoranda to the 2nd Respondent during the review process, contrary to the doctrine of exhaustion.
21. On damages, the Respondents relied on the decision of court in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) (citing Romauld James v AGT [2010] UKPC), that a party seeking compensatory constitutional damages must first demonstrate that damage was in fact suffered as a result of the alleged breach before the Court may proceed to exercise its discretion to award damages, and that no such evidence has been placed before this Court.
22. On costs, the Respondents urged that costs follow the event, relying on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR, and submitted that the Petition, being unmeritorious, should be dismissed with costs to the 1st Respondent.
23. Having carefully considered the pleadings, the Replying Affidavit, and the rival written submissions, the following issues are for determination by this Court:
i) Whether the Petition, or any part of it, offends the doctrines of ripeness, mootness, or exhaustion, such that this Court ought to decline to determine it;
ii) Whether the Respondents violated Articles 10, 27(4), 54(2) and 259 of the Constitution by declining to provide for exclusive representation of persons with disabilities within the Student Governing Council and the KUSA Constitutional Congress Assembly;
iii) Whether the Petitioners are entitled to an award of damages; and
iv) Who bears the costs of the Petition.
Analysis and Determination
(i) Whether the Petition offends the doctrines of ripeness, mootness, or exhaustion
24. I agree that as a matter of law, courts will decline to determine disputes that are either premature or moot, in the sense that any decision rendered would have no practical effect upon an existing controversy.
32. However, this Court is not persuaded that the Petition, taken as a whole, is liable to be struck out on this ground. While it is true that the specific interim and structural prayers seeking to stay the constitutional review process, and to compel its amendment mid-stream, have substantially been overtaken by events by the completion and publication of the Kenyatta University Students Association Constitution (2025), the central question raised in the Petition whether the constitutional structure that has now been adopted, and which continues to govern the Petitioners as students, offends Article 54(2) as read with Articles 10 and 27(4) of the Constitution of Kenya, 2010 remain a live and justiciable controversy.
33. This Court is guided in this respect by the Supreme Court's decision in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) as referred to in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR) that constitutional interpretation must be holistic, and by Article 259 of the Constitution of Kenya, 2010 which enjoins courts to interpret the Constitution in a manner that promotes its purposes, values and principles and advances the rule of law and human rights.
34. This court shall not close its eyes and accede to the claims of mootness on the issues raised in the Petition concerning the constitutional rights of persons with disabilities in the 1st Respondent’s institution, which do not sit comfortably with the interpretive obligation placed upon the court.
35. The court is well guided by the jurisprudence set in Kenya Human Rights Commission & 4 others v Independent Electoral & Boundaries Commission & 3 others; National Council for Persons with Disability & another (Interested Parties) [2024] KEHC 16497 (KLR) wherein court proceeded to determine the constitutional question notwithstanding preliminary jurisdictional objections because the underlying constitutional controversy was about representation of persons with disabilities which was of continuing significance in the matter.
36. As regards exhaustion, the court makes reference to paragraph xii of the Replying Affidavit and the submissions filed herein which confirm that the Petitioners' proposal for an exclusive PWD seat was in fact tabled and voted upon by the students' Congress and that 47 votes were against this proposal and 11 votes were in favour of the proposal.
37. This position confirms that the Petitioners actually presented their grievance through the internal constitutional review mechanism, and that the mechanism engaged with it. The objection that the Petitioners failed to exhaust internal remedies therefore does not hold up; if anything, this fact bears more directly on the substantive question of whether the process afforded genuine and meaningful participation, which this Court shall consider.
38. This Court accordingly finds that the Petition is properly before it save for Prayer (b), which is spent. The Court shall proceed to determine the other issues raised in the Petition.
(ii) Whether the Respondents violated Articles 10, 27(4), 54(2) and 259 of the Constitution of Kenya, 2010
39. The heart of this dispute is the proper construction of Article 54(2) of the Constitution of Kenya, 2010, which provides that the State shall ensure the progressive implementation of the principle that at least 5% of the members of the public in elective and appointive bodies are persons with disabilities.
40. The Petitioners urge an immediate, enforceable reading of this provision, akin to the immediate enforceability the Court of Appeal ascribed to Article 10(2) of the Constitution of Kenya,2010 values in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), where it was held that the values in Article 10(2) are neither aspirational nor progressive but immediate, enforceable and justiciable.
41. The difficulty with transplanting that holding wholesale onto Article 54(2) is textual: unlike Article 10(2), which the Constitution frames as an immediate, unqualified value, Article 54(2) is deliberately and expressly framed in the language of progressive implementation of a stated principle. The two provisions are not, with respect, pari materia, and this Court is not persuaded that the enforceability the Court of Appeal ascribed to one automatically transfers to the other.
42. This Court respectfully agrees with, and adopts, the reasoning of Mutuku, J. in Northern Nomadic Disabled Persons Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) where the learned Judge held:
"The language of article 54(2), to my mind, is clear that realization of five percent of the members of the public in elective and appointive bodies of persons with disabilities is progressive, going by the Supreme Court Advisory Opinion (supra). I have considered the provisions of article 54(2), and I agree with the respondents that it is not a right but a principle on how to implement the five percent of persons with disabilities requirement. The rights of persons with disabilities are to be found in article 54(1) of the Constitution."
43. That construction accords, too, with the Supreme Court's Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, which defined "progressive realization" as neither a stand-alone nor a technical phrase, but simply the gradual or phased-out attainment of a human rights goal that, by its very nature, cannot be achieved on its own, unless a certain set of supportive measures legislative, policy, or program, including affirmative action are first taken by the relevant institution. The exact shape and pace of such measures will vary depending on the nature of the right and the prevailing institutional environment.
44. Applying that framework to the matter before this court, the issue is not whether the Respondents have achieved a perfect, dedicated, numerically-quantified PWD seat in every organ of student governance as per Article 54(2) of the Constitution of Kenya,2010 but whether the Respondents have taken bona fide, reasonable steps towards the progressive realization of meaningful disability representation, and whether the process by which the current arrangement was arrived at is guided by the provisions of the Constitution of Kenya, 2010.
45. On the evidence before this Court, the Kenyatta University Students Association constitutional review process addressed the proposal the Petitioners are advancing for an exclusive PWD seat and that proposal was placed before, debated by, and voted upon by the Students' Congress, the representative organ of the student body.
46. In my view, this is not a case of a public institution failing to consider the interests of persons with disabilities, but it is one in which the students' own representative assembly considered and, by a substantial majority, declined to adopt one particular institutional design for realizing that inclusion.
47. Applying the guiding principles outlined by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR) that public participation must be real and not illusory, that it need not take any one prescribed form, that written submissions are as legitimate a mode of participation as oral hearings, and that the fact that a particular constituency's preferred outcome was not adopted does not, without more, vitiate the process, this Court is satisfied that the process leading to the rejection of the exclusive-seat proposal was not constitutionally deficient.
48. Secondly, the record shows positive incremental steps consistent with progressive realization rather than stagnation or regression by the Respondents. The number of Congress seats reserved for special-needs students increased from one (1) to four (4) in the reviewed Constitution, and the Student Governing Council retains a Gender & Special Needs Secretary charged with formulating and implementing disability policy, promoting the welfare of persons with special needs, and advancing gender equity.
49. In the Court's view, the measures put in place by the Respondent are "supportive measures" that were outlined in the Supreme Court's Advisory Opinion as constituting progressive realization, even where they fall short of a dedicated, exclusive PWD organ.
50. The Court takes note that the Petitioners have not demonstrated, with the degree of precision this Court is entitled to demand under the long-settled threshold in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, a threshold this Court applies here as it was applied in Northern Nomadic Disabled Person's Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) and in Kenya Human Rights Commission & 4 others v Independent Electoral & Boundaries Commission & 3 others; National Council for Persons with Disability & another (Interested Parties) [2024] KEHC 16497 (KLR)
51. The Petitioners have not shown any concrete instance in which the Petitioners themselves or any other person with disability sought to contest or occupy the Gender & Special Needs Secretary position, or any Congress seat reserved for special-needs students, and was excluded, obstructed, or discriminated against on account of disability.
52. The burden of demonstrating such exclusion or discrimination lies squarely on the Petitioners, and mere assertion that a dedicated label ought to exist is not sufficient to discharge that burden. This mirrors precisely the finding in Northern Nomadic Disabled Persons' Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) where the High Court held that the petitioner had failed to prove its case because there was no evidence that any of its members applied for the relevant positions and were rejected on account of disability.
53. This Court does not lightly discount the lived reality that a generic "Gender and Special Needs" designation can, in practice, be captured by concerns other than disability, a risk the Petitioners rightly flag, and one this Court accepts is real and worth institutional vigilance. Indeed, Article 27(4) of the Constitution of Kenya,2010 prohibits discrimination directly or indirectly against any person on the ground of disability, among other grounds, and the recently enacted Persons with Disabilities Act, 2025 (Act No. 4 of 2025), particularly its provisions on meaningful inclusion and accessible communication in decisions affecting persons with disabilities, sets an important and rising statutory floor that public institutions, including universities, must increasingly meet.
54. But the remedy for a risk of future capture or dilution of a mandate is not, without a demonstrated present breach, the constitutional invalidation of a governance structure that a student body has itself, through a documented and participatory process, chosen to retain. Were this Court to grant the order compelling the creation of an exclusive PWD seat sought by the Petitioners, it would in substance be substituting its own preferred institutional design for that of the students' own representative Congress, absent any finding that the process by which the Congress reached its decision was itself tainted by unfair discrimination, bad faith, or a failure of meaningful participation. This Court declines to do so, mindful of the caution sounded by the Supreme Court of India in Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth & others 1984 AIR 1543, cited with approval in Nature Foundation Limited v Minister for Information and Communication & another [2015] KECA 976 (KLR) and endorsed in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR), that a court called upon to review the validity of a rule or decision made under lawful authority should not concern itself with the wisdom, merits or demerits of the policy choice made, but only with whether that choice falls within the power conferred and is consistent with the Constitution.
55. For completeness, this Court also does not find merit in treating Article 10 of the Constitution of Kenya as independently violated on these facts. The national values in Article 10 of the Constitution of Kenya, 2010 including inclusiveness, equity, and protection of the marginalized inform and colour the interpretation of Article 54(2) and Article 27(4) of the Constitution of Kenya,2010 but they are not, on the facts as pleaded and proved, shown to have been disregarded; to the contrary, the documented Congress debate and vote on the precise proposal advanced by the Petitioners is itself an exercise, however imperfect its outcome from the Petitioners' perspective, of participatory and inclusive governance.
56. Accordingly, this Court finds that the Petitioners have not discharged the burden of demonstrating that the Respondents' current constitutional arrangement for student governance amounts to a violation of Articles 10, 27(4), 54(2) or 259 of the Constitution of Kenya, 2010.
(iii) Whether the Petitioners are entitled to damages
57. Having found that no constitutional violation has been established, the question of damages falls away as a matter of course; a claim for compensatory constitutional damages cannot survive the absence of a demonstrated breach. In any event, even had a violation been found, this Court would not be inclined to award damages, as there is no evidence on record to support such a claim. The Court adopts the reasoning in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), citing with approval Romauld James v AGT [2010] UKPC, that it does not lie in the mouth of a petitioner to say that they are not obliged to place evidence of damage suffered before a constitutional court before liability is determined; it must first be shown that damage was in fact suffered as a result of the breach before the Court's discretion to award compensatory damages can be engaged. No such evidence exists on this record. The prayer for damages is accordingly declined.
58. On the issue of costs, the Court considers that the Petitioners did not act out of personal pecuniary motive but sought, in good faith and not frivolously, to advance a genuine question concerning the representation of persons with disabilities in the 1st Respondent’s governance. This is a matter of continuing public importance. In the circumstances, this Court declines to visit costs upon the Petitioners and directs that each party shall bear its own costs of the Petition.
59. It is so ordered.
Dated and signed at Nairobi this 30th day of July 2026.
1. The Petition before the Court is dated 3rd April 2025 and was brought by Maurice Onyando Ajok and Elvis Apondi Odwori, the Petitioners herein, both registered students of Kenyatta University and persons living with visual disability, duly registered with the National Council for Persons with Disabilities (NCPWD). The 1st Petitioner is a student of the Bachelor of Education and Arts, while the 2nd Petitioner is a student of the Bachelor of Laws (LL.B).
2. The Petition arises out of the ongoing review of the Kenyatta University Students Association (KUSA) Constitution (revised 2021), a process undertaken by the 1st Respondent through the 2nd Respondent, the Committee for Kenyatta University Students Association Constitutional Review, chaired by Prof. Benard Kivunge. During the review, the Petitioners submitted proposals seeking the inclusion of mandatory exclusive representation for persons with disabilities (PWDs) in the Student Governance Council (SGC) and the Kenyatta University Student Association Congress Assembly, anchored on Article 54(2) of the Constitution of Kenya, 2010.
3. The Respondents opposed the Petition and filed a Replying Affidavit, dated 7th August 2025 and sworn by Prof. Benard Kivunge, together with written submissions dated 20th October 2025. The Petitioners filed written submissions dated 8th September 2025.
The Petitioners' Case
4. The Petitioners moved this Court seeking, inter alia, the following orders:
a) A DECLARATION that the refusal by the Respondents to provide for exclusive representation of persons with disabilities within the SGC and the KUSA Constitutional Congress Assembly is unconstitutional, illegal, null and void, as it violates Articles 10, 27(4), 54(2) and 259 of the Constitution;
b) An INTERIM ORDER OF INJUNCTION staying the Respondents from continuing with the Kenyatta University constitutional review procedure pending the hearing and determination of the Petition;
c) An order directing the Respondents, their agents, servants, and/or officers to immediately amend the Kenyatta University Student Association Constitution to include provisions guaranteeing exclusive representation of persons with disabilities in line with Article 54(2) of the Constitution;
d) A PERMANENT INJUNCTION restraining the Respondents from conducting future student elections or appointments under the Kenyatta University Student Association Constitution unless and until provisions ensuring representation for persons with disabilities are incorporated;
e) An ORDER FOR CERTIORARI to bring before this Honourable Court the decision of the Respondents rejecting the Petitioners' proposals for amendments to the Kenyatta University Student Association Constitution and quash the same accordingly.
f) Damages for violation of the Petitioners' constitutional rights to fair and equitable representation, substantive equality and inclusion in student governance structures;
g) Any other relief that this honourable Court may deem fit and just to grant in the circumstances; and
h) Costs of the Petition.
5. The Petitioners case is that the failure by the Respondents to operationalize Article 54(2) of the Constitution of Kenya, 2010, which they contend guarantees that at least 5% of all elective and appointive positions in public bodies be reserved for persons with disabilities, amounts to a continuing violation of their constitutional rights.
6. They submit that the existing arrangement, whereby interests of People With Disabilities are subsumed within a general "Gender and Special Needs Secretary" position, does not amount to dedicated or exclusive representation, and that the increase of PWD seats in Congress from one to four does not cure the constitutional defect.
7. The Petitioners rely on Article 10 of the Constitution of Kenya 2010 and state that the national values of inclusiveness, equity, human dignity and protection of the marginalized people bind all State organs and public officers, and that the 1st Respondent, as a public university, is not exempted from these obligations. They further invoke Article 27 of the Constitution of Kenya 2010 which guarantees equality and freedom from discrimination and obliges the State to take legislative and other measures to redress disadvantages suffered by individuals or groups on account of past discrimination.
8. The Petitioners relied on British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR) to support the proposition that public participation and consultation are a living constitutional principle going to the sovereignty of the people and must be real, not illusory.
9. They further relied on the decision in Northern Nomadic Disabled Persons' Organization (NONDO) v The Governor, County Government of Garissa & another [2013] KEHC 467 (KLR), for the proposition that public bodies have an obligation to ensure the inclusion of persons with disabilities in governance and decision-making. They submitted that the recently enacted Persons with Disabilities Act, 2025 (Act No. 4 of 2025), in particular Section 82, which obligates public entities to implement targeted public participation and ensure the meaningful inclusion of persons with disabilities in decisions affecting them, leaves no room for passive or inadvertent sidelining.
10. The Petitioners urged that the continued exclusion of persons with disabilities from dedicated representation on the Student Governance Council and the Kenyatta University Student Association Congress Assembly is not a benign oversight or administrative convenience but a constitutional violation. They further urged that this Court should affirm that any public action or appointment structure that sidelines persons with disabilities is constitutionally bereft of legitimacy and cannot be allowed to stand.
The Respondents' Case
11. The Respondents' case is that Section 41(1)(A) of the Universities Act provides for the establishment of a Students' Council to govern the students' association. The Council comprises seven (7) members: a Chairperson, Vice-Chairperson, Treasurer, Secretary-General, and three other members representing special interest groups, including persons with disabilities, international students, and students from different religious groups.
12. It is deposed that, in preparing the Kenyatta University Students Association Constitution (revised 2021) and in its subsequent 2025 review, the 1st Respondent, in consultation with student stakeholders, established organs to make and administer KUSA by-laws and policies, promote students' welfare, and advance gender equity and human rights. The review is conducted periodically upon the advice of the University Senate and is spearheaded by the Vice-Chancellor, who appoints a Committee comprising both staff and students.
13. The Respondents averred that upon collection of proposals during the review process, the question of whether to establish an exclusive position for persons with disabilities was tabled before the students' Congress and forty-seven (47) delegates voted against the proposal while eleven (11) voted in its favour.
14. The Respondents further depose that, notwithstanding the rejection of the proposal for an exclusive PWD seat, the draft KUSA Constitution (2025) has, in promoting inclusivity, provided for a minimum of four (4) positions in Congress for persons with special needs. An increase from the one (1) position that existed under the 2021 Constitution.
15. The Respondents submit that the Petitioners have not demonstrated, with the precision demanded by Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, exactly how the Respondents have failed to operationalize Article 54(2) of the constitution of Kenya,2010, nor produced any evidence that any person, including either Petitioner, applied for or contested the Gender & Special Needs Secretary position and was excluded on account of disability.
16. It is submitted that the Petitioners are, in substance, interested only in creating a slot bearing a particular label, rather than in demonstrating any concrete failure of representation or advocacy by existing office-bearers.
17. On the law, the Respondents submit that Article 54(2) of the Constitution of Kenya,2010 is not a free-standing enforceable right but a principle directing the progressive realization of the 5% threshold, the substantive rights of persons with disabilities being found instead in Article 54(1) of the Constitution of Kenya,2010.
18. The Respondents relied on the decisions in Northern Nomadic Disabled Persons' Organization (NONDO) v The Governor, County Government of Garissa & another [2013] KEHC 467 (KLR), where Mutuku, J. held in terms that "the language of article 54(2) of the Constitution of Kenya,2010 is clear that realization of 5% percent of the members of the public in elective and appointive bodies of persons with disabilities is progressive," and that "it is not a right but a principle on how to implement the 5% percent of persons with disabilities requirement," the enforceable rights being found under Article 54(1) of the Constitution of Kenya, none of which the Petitioners claim to have been violated.
19. The Respondents raised the doctrine of ripeness and mootness. It is submitted that a court is prevented from determining an issue that is either premature (not yet ripe for adjudication) or moot (having ceased to present a live controversy, such that a decision would have no practical effect). It is submitted that, by the time of hearing, the KUSA constitutional review process had been completed, the Constitution approved and published, such that the specific prayers seeking to compel amendment of an ongoing process, and to restrain elections pending such amendment, have been overtaken by events and are academic.
20. It is further submitted that the Petitioners failed to exhaust available internal avenues, in particular by declining to submit formal memoranda to the 2nd Respondent during the review process, contrary to the doctrine of exhaustion.
21. On damages, the Respondents relied on the decision of court in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) (citing Romauld James v AGT [2010] UKPC), that a party seeking compensatory constitutional damages must first demonstrate that damage was in fact suffered as a result of the alleged breach before the Court may proceed to exercise its discretion to award damages, and that no such evidence has been placed before this Court.
22. On costs, the Respondents urged that costs follow the event, relying on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR, and submitted that the Petition, being unmeritorious, should be dismissed with costs to the 1st Respondent.
23. Having carefully considered the pleadings, the Replying Affidavit, and the rival written submissions, the following issues are for determination by this Court:
i) Whether the Petition, or any part of it, offends the doctrines of ripeness, mootness, or exhaustion, such that this Court ought to decline to determine it;
ii) Whether the Respondents violated Articles 10, 27(4), 54(2) and 259 of the Constitution by declining to provide for exclusive representation of persons with disabilities within the Student Governing Council and the KUSA Constitutional Congress Assembly;
iii) Whether the Petitioners are entitled to an award of damages; and
iv) Who bears the costs of the Petition.
Analysis and Determination
(i) Whether the Petition offends the doctrines of ripeness, mootness, or exhaustion
24. I agree that as a matter of law, courts will decline to determine disputes that are either premature or moot, in the sense that any decision rendered would have no practical effect upon an existing controversy.
32. However, this Court is not persuaded that the Petition, taken as a whole, is liable to be struck out on this ground. While it is true that the specific interim and structural prayers seeking to stay the constitutional review process, and to compel its amendment mid-stream, have substantially been overtaken by events by the completion and publication of the Kenyatta University Students Association Constitution (2025), the central question raised in the Petition whether the constitutional structure that has now been adopted, and which continues to govern the Petitioners as students, offends Article 54(2) as read with Articles 10 and 27(4) of the Constitution of Kenya, 2010 remain a live and justiciable controversy.
33. This Court is guided in this respect by the Supreme Court's decision in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) as referred to in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR) that constitutional interpretation must be holistic, and by Article 259 of the Constitution of Kenya, 2010 which enjoins courts to interpret the Constitution in a manner that promotes its purposes, values and principles and advances the rule of law and human rights.
34. This court shall not close its eyes and accede to the claims of mootness on the issues raised in the Petition concerning the constitutional rights of persons with disabilities in the 1st Respondent’s institution, which do not sit comfortably with the interpretive obligation placed upon the court.
35. The court is well guided by the jurisprudence set in Kenya Human Rights Commission & 4 others v Independent Electoral & Boundaries Commission & 3 others; National Council for Persons with Disability & another (Interested Parties) [2024] KEHC 16497 (KLR) wherein court proceeded to determine the constitutional question notwithstanding preliminary jurisdictional objections because the underlying constitutional controversy was about representation of persons with disabilities which was of continuing significance in the matter.
36. As regards exhaustion, the court makes reference to paragraph xii of the Replying Affidavit and the submissions filed herein which confirm that the Petitioners' proposal for an exclusive PWD seat was in fact tabled and voted upon by the students' Congress and that 47 votes were against this proposal and 11 votes were in favour of the proposal.
37. This position confirms that the Petitioners actually presented their grievance through the internal constitutional review mechanism, and that the mechanism engaged with it. The objection that the Petitioners failed to exhaust internal remedies therefore does not hold up; if anything, this fact bears more directly on the substantive question of whether the process afforded genuine and meaningful participation, which this Court shall consider.
38. This Court accordingly finds that the Petition is properly before it save for Prayer (b), which is spent. The Court shall proceed to determine the other issues raised in the Petition.
(ii) Whether the Respondents violated Articles 10, 27(4), 54(2) and 259 of the Constitution of Kenya, 2010
39. The heart of this dispute is the proper construction of Article 54(2) of the Constitution of Kenya, 2010, which provides that the State shall ensure the progressive implementation of the principle that at least 5% of the members of the public in elective and appointive bodies are persons with disabilities.
40. The Petitioners urge an immediate, enforceable reading of this provision, akin to the immediate enforceability the Court of Appeal ascribed to Article 10(2) of the Constitution of Kenya,2010 values in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), where it was held that the values in Article 10(2) are neither aspirational nor progressive but immediate, enforceable and justiciable.
41. The difficulty with transplanting that holding wholesale onto Article 54(2) is textual: unlike Article 10(2), which the Constitution frames as an immediate, unqualified value, Article 54(2) is deliberately and expressly framed in the language of progressive implementation of a stated principle. The two provisions are not, with respect, pari materia, and this Court is not persuaded that the enforceability the Court of Appeal ascribed to one automatically transfers to the other.
42. This Court respectfully agrees with, and adopts, the reasoning of Mutuku, J. in Northern Nomadic Disabled Persons Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) where the learned Judge held:
"The language of article 54(2), to my mind, is clear that realization of five percent of the members of the public in elective and appointive bodies of persons with disabilities is progressive, going by the Supreme Court Advisory Opinion (supra). I have considered the provisions of article 54(2), and I agree with the respondents that it is not a right but a principle on how to implement the five percent of persons with disabilities requirement. The rights of persons with disabilities are to be found in article 54(1) of the Constitution."
43. That construction accords, too, with the Supreme Court's Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, which defined "progressive realization" as neither a stand-alone nor a technical phrase, but simply the gradual or phased-out attainment of a human rights goal that, by its very nature, cannot be achieved on its own, unless a certain set of supportive measures legislative, policy, or program, including affirmative action are first taken by the relevant institution. The exact shape and pace of such measures will vary depending on the nature of the right and the prevailing institutional environment.
44. Applying that framework to the matter before this court, the issue is not whether the Respondents have achieved a perfect, dedicated, numerically-quantified PWD seat in every organ of student governance as per Article 54(2) of the Constitution of Kenya,2010 but whether the Respondents have taken bona fide, reasonable steps towards the progressive realization of meaningful disability representation, and whether the process by which the current arrangement was arrived at is guided by the provisions of the Constitution of Kenya, 2010.
45. On the evidence before this Court, the Kenyatta University Students Association constitutional review process addressed the proposal the Petitioners are advancing for an exclusive PWD seat and that proposal was placed before, debated by, and voted upon by the Students' Congress, the representative organ of the student body.
46. In my view, this is not a case of a public institution failing to consider the interests of persons with disabilities, but it is one in which the students' own representative assembly considered and, by a substantial majority, declined to adopt one particular institutional design for realizing that inclusion.
47. Applying the guiding principles outlined by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR) that public participation must be real and not illusory, that it need not take any one prescribed form, that written submissions are as legitimate a mode of participation as oral hearings, and that the fact that a particular constituency's preferred outcome was not adopted does not, without more, vitiate the process, this Court is satisfied that the process leading to the rejection of the exclusive-seat proposal was not constitutionally deficient.
48. Secondly, the record shows positive incremental steps consistent with progressive realization rather than stagnation or regression by the Respondents. The number of Congress seats reserved for special-needs students increased from one (1) to four (4) in the reviewed Constitution, and the Student Governing Council retains a Gender & Special Needs Secretary charged with formulating and implementing disability policy, promoting the welfare of persons with special needs, and advancing gender equity.
49. In the Court's view, the measures put in place by the Respondent are "supportive measures" that were outlined in the Supreme Court's Advisory Opinion as constituting progressive realization, even where they fall short of a dedicated, exclusive PWD organ.
50. The Court takes note that the Petitioners have not demonstrated, with the degree of precision this Court is entitled to demand under the long-settled threshold in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272, a threshold this Court applies here as it was applied in Northern Nomadic Disabled Person's Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) and in Kenya Human Rights Commission & 4 others v Independent Electoral & Boundaries Commission & 3 others; National Council for Persons with Disability & another (Interested Parties) [2024] KEHC 16497 (KLR)
51. The Petitioners have not shown any concrete instance in which the Petitioners themselves or any other person with disability sought to contest or occupy the Gender & Special Needs Secretary position, or any Congress seat reserved for special-needs students, and was excluded, obstructed, or discriminated against on account of disability.
52. The burden of demonstrating such exclusion or discrimination lies squarely on the Petitioners, and mere assertion that a dedicated label ought to exist is not sufficient to discharge that burden. This mirrors precisely the finding in Northern Nomadic Disabled Persons' Organization (NONDO) v Governor, County Government of Garissa & another [2013] KEHC 467 (KLR) where the High Court held that the petitioner had failed to prove its case because there was no evidence that any of its members applied for the relevant positions and were rejected on account of disability.
53. This Court does not lightly discount the lived reality that a generic "Gender and Special Needs" designation can, in practice, be captured by concerns other than disability, a risk the Petitioners rightly flag, and one this Court accepts is real and worth institutional vigilance. Indeed, Article 27(4) of the Constitution of Kenya,2010 prohibits discrimination directly or indirectly against any person on the ground of disability, among other grounds, and the recently enacted Persons with Disabilities Act, 2025 (Act No. 4 of 2025), particularly its provisions on meaningful inclusion and accessible communication in decisions affecting persons with disabilities, sets an important and rising statutory floor that public institutions, including universities, must increasingly meet.
54. But the remedy for a risk of future capture or dilution of a mandate is not, without a demonstrated present breach, the constitutional invalidation of a governance structure that a student body has itself, through a documented and participatory process, chosen to retain. Were this Court to grant the order compelling the creation of an exclusive PWD seat sought by the Petitioners, it would in substance be substituting its own preferred institutional design for that of the students' own representative Congress, absent any finding that the process by which the Congress reached its decision was itself tainted by unfair discrimination, bad faith, or a failure of meaningful participation. This Court declines to do so, mindful of the caution sounded by the Supreme Court of India in Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth & others 1984 AIR 1543, cited with approval in Nature Foundation Limited v Minister for Information and Communication & another [2015] KECA 976 (KLR) and endorsed in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR), that a court called upon to review the validity of a rule or decision made under lawful authority should not concern itself with the wisdom, merits or demerits of the policy choice made, but only with whether that choice falls within the power conferred and is consistent with the Constitution.
55. For completeness, this Court also does not find merit in treating Article 10 of the Constitution of Kenya as independently violated on these facts. The national values in Article 10 of the Constitution of Kenya, 2010 including inclusiveness, equity, and protection of the marginalized inform and colour the interpretation of Article 54(2) and Article 27(4) of the Constitution of Kenya,2010 but they are not, on the facts as pleaded and proved, shown to have been disregarded; to the contrary, the documented Congress debate and vote on the precise proposal advanced by the Petitioners is itself an exercise, however imperfect its outcome from the Petitioners' perspective, of participatory and inclusive governance.
56. Accordingly, this Court finds that the Petitioners have not discharged the burden of demonstrating that the Respondents' current constitutional arrangement for student governance amounts to a violation of Articles 10, 27(4), 54(2) or 259 of the Constitution of Kenya, 2010.
(iii) Whether the Petitioners are entitled to damages
57. Having found that no constitutional violation has been established, the question of damages falls away as a matter of course; a claim for compensatory constitutional damages cannot survive the absence of a demonstrated breach. In any event, even had a violation been found, this Court would not be inclined to award damages, as there is no evidence on record to support such a claim. The Court adopts the reasoning in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), citing with approval Romauld James v AGT [2010] UKPC, that it does not lie in the mouth of a petitioner to say that they are not obliged to place evidence of damage suffered before a constitutional court before liability is determined; it must first be shown that damage was in fact suffered as a result of the breach before the Court's discretion to award compensatory damages can be engaged. No such evidence exists on this record. The prayer for damages is accordingly declined.
58. On the issue of costs, the Court considers that the Petitioners did not act out of personal pecuniary motive but sought, in good faith and not frivolously, to advance a genuine question concerning the representation of persons with disabilities in the 1st Respondent’s governance. This is a matter of continuing public importance. In the circumstances, this Court declines to visit costs upon the Petitioners and directs that each party shall bear its own costs of the Petition.
59. It is so ordered.
Dated and signed at Nairobi this 30th day of July 2026.