'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CONSTITUTIONAL PETITION NO. E010 OF 2025
GODFREY ROTICH……….……..……….....…………….....……….…..1ST PETITIONER
KAPLELACH LAVENDA JELAGAT…………………..………………….2ND PETITIONER
KIPYEGO KIGEN GIDEON………………………………,,,.,,,,………..3RD PETITIONER
CHESANG FLORENCE…………………………………….……………..4TH PETITIONER
VERSUS
CABINET SECRETARY, MINISTRY OF EDUCATION .............….…1ST RESPONDENT
COMMISSION FOR UNIVERSITY EDUCATION……….………….2ND RESPONDENT
THE ATTORNEY GENERAL…………………………………………..3RD RESPONDENT
RULING
1. The Petitioners, by way of a Notice of Motion dated 5th August 2025 brought under section 10(2) of the High Court (Organization and Administration) Act, Rule 3(2) of the High Court (Practice and Procedure) Rules (Part I – Vacations) (Cap 8, Laws of Kenya), seek interim conservatory orders pending the hearing and determination of the Petition. Specifically, they pray for orders staying the implementation of Legal Notice No. 109 of 2025 dated 13th June 2025, in so far as it mandates the relocation of students from Baringo Teachers Training College, Seretunin, to Talai Secondary School.
2. The petitioner also seek orders directing the Respondents to reinstate the Petitioners and all other displaced students to Moi Teachers College Baringo (Seretunin), with full access to hostel accommodation, academic resources, and campus infrastructure. Costs are also sought.
3. The application is supported by the grounds on its face and the affidavit of Godfrey Rotich sworn on 4th August 2025 whose gist is that the relocation directive issued on 31st July 2023 by the Cabinet Secretary for Education was made without public participation, stakeholder consultation, or adequate notice and thus contrary to Articles 10, 35, 43, 47, and 53 of the Constitution. It is alleged that over 1,000 learners, teaching staff, and support staff will be displaced from Moi Teachers College Baringo, contrary to constitutional principles of governance.
4. They further assert that the relocation will result in involuntary withdrawal from ongoing academic programs, as Talai Secondary School lacks the infrastructure and services of a teacher’s training college. This, they claim, will disrupt academic activities, breach their right to fair administrative action, and defeat their legitimate expectations.
5. It is additionally averred that the disruption is occurring mid-academic year, affecting Year 2 students whose KNEC timetable runs until November 2025. They add that the proposed site is geographically distant and lacks stable internet connectivity required for online examinations.
6. The deponent then states that Talai Secondary School sits on ancestral land donated for secondary education and that the Talai Community Education Committee has written to the Ministry questioning the legality and process of the relocation. He contends that a structured and inclusive transition plan, implemented after the academic year, would have safeguarded students’ progression and rights while facilitating the proposed university’s establishment.
Response to the Application
7. The Respondents, represented by the Attorney General, oppose the application via Grounds of Opposition dated 8th August 2025 wherein it is argued that the application is speculative as the Petitioners have failed to specify which infrastructural requirements are lacking at the relocation site. They cite the Technical and Vocational Education and Training Act, Cap 210A, and Legal Notice No. 242 of 2015, which set out minimum institutional requirements adding that where the facilities are lacking, the same will be moved from the current institution.
8. The respondents deny the allegation of lack of public participation and contend that the relocation is in the public interest, as it will expand access to education under Article 43(1)(f) of the Constitution. They note that Kenya Shillings One Hundred Million has been allocated for infrastructure improvements at the new site. The Respondents pray that the application be dismissed with costs.
9. The Respondents further oppose the application through the replying affidavit of Joshua N. Mwangi, County Director of Education for Baringo, sworn on 4th August 2025. In the affidavit, he refutes the Petitioners’ claims and asserts that the relocation site meets statutory requirements and that necessary amenities will be moved with the institution. He states that no Talai Secondary School students will be displaced and that the Petitioners lack authority to bring the matter in a representative capacity under Rule 13 of the Mutunga Rules. He maintains that public interest favours the relocation, which will expand higher education access in Baringo County.
Petitioners’ Submissions
10. The Petitioners, in the submissions filed, identify three issues for determination as; Whether there is established a prima facie case with a likelihood of success and a risk of prejudice in the absence of conservatory orders; Whether failure to grant the orders would render the Petition nugatory and; and, Whether the orders should be granted in the public interest.
11. It is further submitted that relocating a training college to a secondary school without public participation violates Articles 10, 118, and 232 of the Constitution and cite the case of Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment) where it was held;
“In view of the foregoing, we opine that public participation requires the following bare minimum: -I, Proper sensitization on the nature of legislation to be enacted or policy to be effected; ii, Adequate notice depending on the circumstances which must however be reasonable; iii, Facilitation of the public to ensure that members of the public are able to access the information required in a convenient and practical manner, understand the same, have a meaningful opportunity to attend, contribute and provide their views; iv, The views of the public should be considered and where they are to be rejected or declined, reason for such rejection and dismissal should be stated; This will obviate the public participation being a cosmetic or a public relations act; v, Public participation should be inclusive and should reflect a fair representation and diversity of the populace to be affected; vi, There must be integrity and transparency of the process.”
12. The decisions in Petition No. 522 of 2017, Okiya Omtata v kenya Revenue Authority (2018)eKLR, Doctors For Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006(6) SA 416 (CC) (17th August, 2006), Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (2017)eKLR is also cited to underscore the importance of inclusive and meaningful public participation.
13. Additionally, they contend that the relocation also affects minors at Talai Secondary School, whose rights must be prioritized under the Constitution arguing that moving mid-year to an inadequately equipped institution undermines education quality and constitutes a retrogressive measure and runs afoul the best interests of the child.
14. The second issue is whether if an interim conservatory order is not granted, the Petition or its substratum will be rendered a nugatory. To this issue, the Petitioners submit that conservatory orders unlike injunctive reliefs are designed to safeguard constitutional principles and prevent the erosion of rights before a full hearing. They add that they operate to protect the integrity of the judicial process by ensuring that the subject matter remains intact. In that regard the decision of Supreme Court in Gitarau peter Minya v Dickson Mwenda Kithinji & others (2014) eKLR is cited where it was underscored that the grant of conservatory orders must be informed by the inherent merit of the case, public interest, and proportionally all which they contend weigh in favour of the Petitioners.
15. It is argued and stressed that granting the conservatory orders sought is necessary to preserve the substratum of the Petition, safeguard the constitutional rights in issue and protect the public interest until the final determination. To the petitioners, conservatory orders will ensure that the relocation directive does not defeat the very purpose of these proceedings and will protect both the rights invoked and the public interest in constitutional compliance, constitutional rights in issue, and protect the public interest until the final merit determination.
16. The third issue addressed is whether the court should grant the conservatory orders sought to stay and suspend the directive pending the hearing and determination of the Petition. To this issue it is submitted that article 23(3)(c) of the Constitution empowers this court to grant conservatory orders as an appropriate relief in proceedings seeking to enforce the Bill of Rights. The petitioners argue that at this stage, all they are required to do is demonstrate a prima facie case with a likelihood of success and cite the decision of Board of Management of Uhuru Secondary School v County Director of Education & 2 Others [2015] eKLR which relied on the decision in Centre for Rights Education and Awareness & 7 others v The Attorney General (HCCP No. 16 of 2011) in that regard.
17. There is a further argument that the sought conservatory orders staying the 1st Respondent’s decision on 31st July 2025 to relocate students from Moi Teachers College Baringo (Seretunin) to Talai Secondary School pursuant to Legal Notice No. 109 of 2025 will serve the important purposes of allowing the students to continue with their academic programs at the current institutions without disruption, pending the hearing and determination of the Petition. Once again, the court is referred to the Supreme Court decision in Gatirau peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014 where the court framed the guiding principles for the grant of conservatory orders to be; whether the suit is arguable or frivolous; whether the suit would be rendered nugatory unless the conservatory orders sought are granted; and, and whether it is in the public interest that the orders sought are granted.
18. It is then contended that the Petition raised constitutional issues that merit full consideration and determination by this court, that the Petitioners risk suffering irreparable harm if the conservatory orders are not granted and that the disruption to education and the violation of fundamental rights will be immediate, substantial and irreversible.
19. The last identified issue is whether granting the conservatory orders is necessary in protecting the interest of the public to which they submit that preserving the status quo serves to protect not only the Petitioners’ constitutional rights but also the broader public interest by ensuring administrative stability and safeguarding the rule of law.
Respondents’ Submissions
20. The Respondents also frame only the three issues that as the petitioners. On whether a prima facie case has been established, the Respondents contend that the Petitioners’ claims are speculative, lacking evidence of actual rights violations, and rely on Nguruman Ltd v Jan Bonde Nielsen & Others (2014) eKLR where the Court of Appeal emphasized that a prima facie case must be founded on actual evidence of violation, not on speculative fears or assumptions. They assert that the relocation complies with statutory requirements which includes a transition plan.
21. On irreparable harm, it is argued that no student will lose access to education, staff, materials, or resources, and that the infrastructure budget will ensure adequate facilities. They add that any logistical challenges can be managed administratively. In addition, it is contended that speculative injury does not constitute irreparable harm and that harm must be “real, imminent and substantive”. On that proposition, reliance is placed on the decision in Nguruman Ltd v Jan Bonde Nielsen & 2 others (2014) eKLR in that regard.
22. On where the balance of public interest lies, it is submited that public interest favours relocation to expand educational opportunities, and that delaying the policy would harm more prospective learners than it would assist the Petitioners.
23. On thresholds, it is argued that the Petitioners have not complied with Rule 13 of the Mutunga Rules regarding representative suits, citing Trusted Society of Human Rights Alliance v Cabinet Secretary Devolution & Planning & Others (2017) eKLR for that proposition.
Issue, Analysis, and Determination
24. The only issue for determination is whether the application meets the threshold for grant of conservatory orders as settled by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & Others [2014] eKLR. At this interlocutory stage, the Court is not expected to delve into a detailed examination of the merits of the Petition, as such an inquiry would prematurely pre-empt the substantive hearing. Rather, the Court is only required to satisfy itself that the applicant has presented an arguable case with a prima facie likelihood of success. This principle requirement was underscored in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, where the Court held that a prima facie case need not establish certainty of success but only demonstrate that the issues raised are not frivolous. In the present matter, the Petitioners contend that there was an absence of meaningful public participation in the decision-making process and further allege that the facilities earmarked for relocation are inadequate to meet the intended purpose. The petitioners’ stressed lack of public participation and the disruptive nature of the planned relocation and expressed uncertainty on availability of infrastructure and other instructional amenities together with the best interests of the learner of the learners being children.
25. The Respondents, on their part, maintain that the process complied with all statutory and constitutional requirements and that the requisite infrastructure is in place but said that where there is lack, the same would be dealt with administratively but no timelines were given. However, when the court asked counsel for the respondent to point out evidence of the very important requirement for public participation, counsel sought to be excused from responding on that point.
26. The court has weighed these competing arguments, and it is satisfied that the Petition raises arguable issues meriting interrogation at the full hearing. In particular, in the absence of evidence of any public participation, the court finds it indubitable that the petition is arguable. When so arguable, the substratum deserves preservation pending the merit determination.
27. On the nugatory aspect test, the Court must consider whether, if interim relief is not granted, the substratum of the Petition will be lost and or rendered nugatory. In this respect, the Court is persuaded that proceeding with the implementation of the planned relocation before the Petition is conclusively heard would substantially undermine the subject matter of the dispute. It would not only risk occasioning irreparable prejudice to the Petitioners and those in the secondary school whose learning would be disrupted but may also render the eventual decision of this Court, whatever the outcome would be, an academic exercise.
28. On the question of public interest, the Court reiterates that this consideration extends beyond the narrow interests of the litigants before it and encompasses the welfare of the public at large. In matters touching on relocation of public facilities and service delivery, in this case the relocation of two learning institutions with the attendant rights to quality educational instruction and the best interests of the child, the rights and expectations of a broad spectrum of stakeholders are implicated. The Court is persuaded that preserving the status quo now prevailing will best serve the larger public interest at this juncture, to will enable the Court properly interrogate, at the substantive stage, whether there was adequate consultation with stakeholders and whether the proposed relocation site has been sufficiently prepared to safeguard the public’s welfare of those affected and constitutional rights implicated.
29. On the issue of representative capacity or locus of the petitioners raised b the respondents, Articles 22 and 258 of the Constitution expressly grant locus standi to any person acting in good faith to institute proceedings alleging violation or threatened violation of rights, or to safeguard the Constitution, whether on their own behalf, on behalf of others, or in the public interest. The framers of the Constitution deliberately removed the shackles of strictures on standing requirements in order to encourage robust constitutional litigation in defense of public interest. The Supreme Court in Okiya Omtatah Okoiti v Portside Freight Terminals Limited & Others [2025] eKLR emphatically reaffirmed that any person, acting bona fide and in furtherance of public good, may bring proceedings without the need for express written authority from those they seek to represent. Guided by this principle, the Court is satisfied that the Petitioners properly invoke their representative capacity in these proceedings.
30. Arising from the foregoing discussions and conclusions, it follows that the Notice of Motion dated 5th August 2025 is allowed for being meritted. The Implementation of Legal Notice No. 109 of 2025 dated 13th June 2025 is hereby stayed to the extent that it mandates relocation of students from Baringo Teachers Training College, (Seretunin), to Talai Secondary School pending the hearing and determination of the Petition.
31. The court having appreciated that the conservatory order serves to protect the substratum of the petition and the rights threatened with possible violation, it deems it necessary that the conclusion of the petition be expedited in a way that facilitates the intention of the ministry to operationalize the establishment of a university within Baringo county but in a wat that is least disruptive. On that basis, it is directed that the respondent files and serves, if yet to, response to the petition so that the matter is mentioned before the trial court on 17.09.2025 for directions on the way forward.
32. The court is satisfied that the petition seeks to enforce and protect public interest and makes no orders as to costs.
Dated, signed and delivered Virtually, this 22nd day of August, 2025
Patrick J O Otieno
Judge
'
IN THE HIGH COURT OF KENYA AT KABARNET
CONSTITUTIONAL PETITION NO. E010 OF 2025
GODFREY ROTICH……….……..……….....…………….....……….…..1ST PETITIONER
KAPLELACH LAVENDA JELAGAT…………………..………………….2ND PETITIONER
KIPYEGO KIGEN GIDEON………………………………,,,.,,,,………..3RD PETITIONER
CHESANG FLORENCE…………………………………….……………..4TH PETITIONER
VERSUS
CABINET SECRETARY, MINISTRY OF EDUCATION .............….…1ST RESPONDENT
COMMISSION FOR UNIVERSITY EDUCATION……….………….2ND RESPONDENT
THE ATTORNEY GENERAL…………………………………………..3RD RESPONDENT
RULING
1. The Petitioners, by way of a Notice of Motion dated 5th August 2025 brought under section 10(2) of the High Court (Organization and Administration) Act, Rule 3(2) of the High Court (Practice and Procedure) Rules (Part I – Vacations) (Cap 8, Laws of Kenya), seek interim conservatory orders pending the hearing and determination of the Petition. Specifically, they pray for orders staying the implementation of Legal Notice No. 109 of 2025 dated 13th June 2025, in so far as it mandates the relocation of students from Baringo Teachers Training College, Seretunin, to Talai Secondary School.
2. The petitioner also seek orders directing the Respondents to reinstate the Petitioners and all other displaced students to Moi Teachers College Baringo (Seretunin), with full access to hostel accommodation, academic resources, and campus infrastructure. Costs are also sought.
3. The application is supported by the grounds on its face and the affidavit of Godfrey Rotich sworn on 4th August 2025 whose gist is that the relocation directive issued on 31st July 2023 by the Cabinet Secretary for Education was made without public participation, stakeholder consultation, or adequate notice and thus contrary to Articles 10, 35, 43, 47, and 53 of the Constitution. It is alleged that over 1,000 learners, teaching staff, and support staff will be displaced from Moi Teachers College Baringo, contrary to constitutional principles of governance.
4. They further assert that the relocation will result in involuntary withdrawal from ongoing academic programs, as Talai Secondary School lacks the infrastructure and services of a teacher’s training college. This, they claim, will disrupt academic activities, breach their right to fair administrative action, and defeat their legitimate expectations.
5. It is additionally averred that the disruption is occurring mid-academic year, affecting Year 2 students whose KNEC timetable runs until November 2025. They add that the proposed site is geographically distant and lacks stable internet connectivity required for online examinations.
6. The deponent then states that Talai Secondary School sits on ancestral land donated for secondary education and that the Talai Community Education Committee has written to the Ministry questioning the legality and process of the relocation. He contends that a structured and inclusive transition plan, implemented after the academic year, would have safeguarded students’ progression and rights while facilitating the proposed university’s establishment.
Response to the Application
7. The Respondents, represented by the Attorney General, oppose the application via Grounds of Opposition dated 8th August 2025 wherein it is argued that the application is speculative as the Petitioners have failed to specify which infrastructural requirements are lacking at the relocation site. They cite the Technical and Vocational Education and Training Act, Cap 210A, and Legal Notice No. 242 of 2015, which set out minimum institutional requirements adding that where the facilities are lacking, the same will be moved from the current institution.
8. The respondents deny the allegation of lack of public participation and contend that the relocation is in the public interest, as it will expand access to education under Article 43(1)(f) of the Constitution. They note that Kenya Shillings One Hundred Million has been allocated for infrastructure improvements at the new site. The Respondents pray that the application be dismissed with costs.
9. The Respondents further oppose the application through the replying affidavit of Joshua N. Mwangi, County Director of Education for Baringo, sworn on 4th August 2025. In the affidavit, he refutes the Petitioners’ claims and asserts that the relocation site meets statutory requirements and that necessary amenities will be moved with the institution. He states that no Talai Secondary School students will be displaced and that the Petitioners lack authority to bring the matter in a representative capacity under Rule 13 of the Mutunga Rules. He maintains that public interest favours the relocation, which will expand higher education access in Baringo County.
Petitioners’ Submissions
10. The Petitioners, in the submissions filed, identify three issues for determination as; Whether there is established a prima facie case with a likelihood of success and a risk of prejudice in the absence of conservatory orders; Whether failure to grant the orders would render the Petition nugatory and; and, Whether the orders should be granted in the public interest.
11. It is further submitted that relocating a training college to a secondary school without public participation violates Articles 10, 118, and 232 of the Constitution and cite the case of Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment) where it was held;
“In view of the foregoing, we opine that public participation requires the following bare minimum: -I, Proper sensitization on the nature of legislation to be enacted or policy to be effected; ii, Adequate notice depending on the circumstances which must however be reasonable; iii, Facilitation of the public to ensure that members of the public are able to access the information required in a convenient and practical manner, understand the same, have a meaningful opportunity to attend, contribute and provide their views; iv, The views of the public should be considered and where they are to be rejected or declined, reason for such rejection and dismissal should be stated; This will obviate the public participation being a cosmetic or a public relations act; v, Public participation should be inclusive and should reflect a fair representation and diversity of the populace to be affected; vi, There must be integrity and transparency of the process.”
12. The decisions in Petition No. 522 of 2017, Okiya Omtata v kenya Revenue Authority (2018)eKLR, Doctors For Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006(6) SA 416 (CC) (17th August, 2006), Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (2017)eKLR is also cited to underscore the importance of inclusive and meaningful public participation.
13. Additionally, they contend that the relocation also affects minors at Talai Secondary School, whose rights must be prioritized under the Constitution arguing that moving mid-year to an inadequately equipped institution undermines education quality and constitutes a retrogressive measure and runs afoul the best interests of the child.
14. The second issue is whether if an interim conservatory order is not granted, the Petition or its substratum will be rendered a nugatory. To this issue, the Petitioners submit that conservatory orders unlike injunctive reliefs are designed to safeguard constitutional principles and prevent the erosion of rights before a full hearing. They add that they operate to protect the integrity of the judicial process by ensuring that the subject matter remains intact. In that regard the decision of Supreme Court in Gitarau peter Minya v Dickson Mwenda Kithinji & others (2014) eKLR is cited where it was underscored that the grant of conservatory orders must be informed by the inherent merit of the case, public interest, and proportionally all which they contend weigh in favour of the Petitioners.
15. It is argued and stressed that granting the conservatory orders sought is necessary to preserve the substratum of the Petition, safeguard the constitutional rights in issue and protect the public interest until the final determination. To the petitioners, conservatory orders will ensure that the relocation directive does not defeat the very purpose of these proceedings and will protect both the rights invoked and the public interest in constitutional compliance, constitutional rights in issue, and protect the public interest until the final merit determination.
16. The third issue addressed is whether the court should grant the conservatory orders sought to stay and suspend the directive pending the hearing and determination of the Petition. To this issue it is submitted that article 23(3)(c) of the Constitution empowers this court to grant conservatory orders as an appropriate relief in proceedings seeking to enforce the Bill of Rights. The petitioners argue that at this stage, all they are required to do is demonstrate a prima facie case with a likelihood of success and cite the decision of Board of Management of Uhuru Secondary School v County Director of Education & 2 Others [2015] eKLR which relied on the decision in Centre for Rights Education and Awareness & 7 others v The Attorney General (HCCP No. 16 of 2011) in that regard.
17. There is a further argument that the sought conservatory orders staying the 1st Respondent’s decision on 31st July 2025 to relocate students from Moi Teachers College Baringo (Seretunin) to Talai Secondary School pursuant to Legal Notice No. 109 of 2025 will serve the important purposes of allowing the students to continue with their academic programs at the current institutions without disruption, pending the hearing and determination of the Petition. Once again, the court is referred to the Supreme Court decision in Gatirau peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014 where the court framed the guiding principles for the grant of conservatory orders to be; whether the suit is arguable or frivolous; whether the suit would be rendered nugatory unless the conservatory orders sought are granted; and, and whether it is in the public interest that the orders sought are granted.
18. It is then contended that the Petition raised constitutional issues that merit full consideration and determination by this court, that the Petitioners risk suffering irreparable harm if the conservatory orders are not granted and that the disruption to education and the violation of fundamental rights will be immediate, substantial and irreversible.
19. The last identified issue is whether granting the conservatory orders is necessary in protecting the interest of the public to which they submit that preserving the status quo serves to protect not only the Petitioners’ constitutional rights but also the broader public interest by ensuring administrative stability and safeguarding the rule of law.
Respondents’ Submissions
20. The Respondents also frame only the three issues that as the petitioners. On whether a prima facie case has been established, the Respondents contend that the Petitioners’ claims are speculative, lacking evidence of actual rights violations, and rely on Nguruman Ltd v Jan Bonde Nielsen & Others (2014) eKLR where the Court of Appeal emphasized that a prima facie case must be founded on actual evidence of violation, not on speculative fears or assumptions. They assert that the relocation complies with statutory requirements which includes a transition plan.
21. On irreparable harm, it is argued that no student will lose access to education, staff, materials, or resources, and that the infrastructure budget will ensure adequate facilities. They add that any logistical challenges can be managed administratively. In addition, it is contended that speculative injury does not constitute irreparable harm and that harm must be “real, imminent and substantive”. On that proposition, reliance is placed on the decision in Nguruman Ltd v Jan Bonde Nielsen & 2 others (2014) eKLR in that regard.
22. On where the balance of public interest lies, it is submited that public interest favours relocation to expand educational opportunities, and that delaying the policy would harm more prospective learners than it would assist the Petitioners.
23. On thresholds, it is argued that the Petitioners have not complied with Rule 13 of the Mutunga Rules regarding representative suits, citing Trusted Society of Human Rights Alliance v Cabinet Secretary Devolution & Planning & Others (2017) eKLR for that proposition.
Issue, Analysis, and Determination
24. The only issue for determination is whether the application meets the threshold for grant of conservatory orders as settled by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & Others [2014] eKLR. At this interlocutory stage, the Court is not expected to delve into a detailed examination of the merits of the Petition, as such an inquiry would prematurely pre-empt the substantive hearing. Rather, the Court is only required to satisfy itself that the applicant has presented an arguable case with a prima facie likelihood of success. This principle requirement was underscored in Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, where the Court held that a prima facie case need not establish certainty of success but only demonstrate that the issues raised are not frivolous. In the present matter, the Petitioners contend that there was an absence of meaningful public participation in the decision-making process and further allege that the facilities earmarked for relocation are inadequate to meet the intended purpose. The petitioners’ stressed lack of public participation and the disruptive nature of the planned relocation and expressed uncertainty on availability of infrastructure and other instructional amenities together with the best interests of the learner of the learners being children.
25. The Respondents, on their part, maintain that the process complied with all statutory and constitutional requirements and that the requisite infrastructure is in place but said that where there is lack, the same would be dealt with administratively but no timelines were given. However, when the court asked counsel for the respondent to point out evidence of the very important requirement for public participation, counsel sought to be excused from responding on that point.
26. The court has weighed these competing arguments, and it is satisfied that the Petition raises arguable issues meriting interrogation at the full hearing. In particular, in the absence of evidence of any public participation, the court finds it indubitable that the petition is arguable. When so arguable, the substratum deserves preservation pending the merit determination.
27. On the nugatory aspect test, the Court must consider whether, if interim relief is not granted, the substratum of the Petition will be lost and or rendered nugatory. In this respect, the Court is persuaded that proceeding with the implementation of the planned relocation before the Petition is conclusively heard would substantially undermine the subject matter of the dispute. It would not only risk occasioning irreparable prejudice to the Petitioners and those in the secondary school whose learning would be disrupted but may also render the eventual decision of this Court, whatever the outcome would be, an academic exercise.
28. On the question of public interest, the Court reiterates that this consideration extends beyond the narrow interests of the litigants before it and encompasses the welfare of the public at large. In matters touching on relocation of public facilities and service delivery, in this case the relocation of two learning institutions with the attendant rights to quality educational instruction and the best interests of the child, the rights and expectations of a broad spectrum of stakeholders are implicated. The Court is persuaded that preserving the status quo now prevailing will best serve the larger public interest at this juncture, to will enable the Court properly interrogate, at the substantive stage, whether there was adequate consultation with stakeholders and whether the proposed relocation site has been sufficiently prepared to safeguard the public’s welfare of those affected and constitutional rights implicated.
29. On the issue of representative capacity or locus of the petitioners raised b the respondents, Articles 22 and 258 of the Constitution expressly grant locus standi to any person acting in good faith to institute proceedings alleging violation or threatened violation of rights, or to safeguard the Constitution, whether on their own behalf, on behalf of others, or in the public interest. The framers of the Constitution deliberately removed the shackles of strictures on standing requirements in order to encourage robust constitutional litigation in defense of public interest. The Supreme Court in Okiya Omtatah Okoiti v Portside Freight Terminals Limited & Others [2025] eKLR emphatically reaffirmed that any person, acting bona fide and in furtherance of public good, may bring proceedings without the need for express written authority from those they seek to represent. Guided by this principle, the Court is satisfied that the Petitioners properly invoke their representative capacity in these proceedings.
30. Arising from the foregoing discussions and conclusions, it follows that the Notice of Motion dated 5th August 2025 is allowed for being meritted. The Implementation of Legal Notice No. 109 of 2025 dated 13th June 2025 is hereby stayed to the extent that it mandates relocation of students from Baringo Teachers Training College, (Seretunin), to Talai Secondary School pending the hearing and determination of the Petition.
31. The court having appreciated that the conservatory order serves to protect the substratum of the petition and the rights threatened with possible violation, it deems it necessary that the conclusion of the petition be expedited in a way that facilitates the intention of the ministry to operationalize the establishment of a university within Baringo county but in a wat that is least disruptive. On that basis, it is directed that the respondent files and serves, if yet to, response to the petition so that the matter is mentioned before the trial court on 17.09.2025 for directions on the way forward.
32. The court is satisfied that the petition seeks to enforce and protect public interest and makes no orders as to costs.
Dated, signed and delivered Virtually, this 22nd day of August, 2025
Patrick J O Otieno
Judge
'