REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E013 OF 2026
IN THE MATTER OF ARTICLES 22, 23, 27, 28, 29, 43(1)(f), 47, 53(1)(b), 165(3)(b) AND 258 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE VIOLATION AND THREATENED VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF WAYNE NYARASA MACHAYO
AND
IN THE MATTER OF THE BASIC EDUCATION ACT, 2013
BETWEEN
HARDLEY KAYANGE MACHAYO (Suing as the father
and next friend of W.N.M).....……………………………………...PETITIONER
VERSUS
THE PRINCIPAL, ST. MARY’S KIBABI BOYS
NATIONAL SCHOOL………………………………………...1st RESPONDENT
THE BOARD OF MANAGEMENT,
ST. MARY’S KIBABI BOYS NATIONAL SCHOOL..............2 nd RESPONDENT
THE CABINET SECRETARY, MINISTRY OF EDUCATION…………………………………………………...3rd RESPONDENT
RULING
1. By way of a Notice of Motion dated 16 th June, 2026 the Petitioner applicant approached this Honourable Court seeking the following orders:
a) Spent
b) Spent
c) THAT pending hearing and determination of this Petition, this Honourable Court be pleased to issue conservatory orders compelling the Respondents to immediately allow W.N.M to report back to St. Mary’s Kibabii Boys National School and continue attending classes.
d) THAT pending hearing and determination of the Petition, the Respondents be restrained from excluding, suspending, harassing or interfering with the student’s continued learning.
e) THAT the Respondents be directed to facilitate and permit the student to participate in KCSE registration and examinations preparation.
f) THAT costs be in the cause.
Brief Facts
2. The grounds in support of the Application are that the Petitioner, W.N.M, is a student at St. Mary’s Kibabi Boys National School. The Respondents are the administrators of the said institution.
3. It is averred that the Respondents have unlawfully, unfairly and without due process excluded the student from attending school despite him being a Form 4 candidate preparing to sit for the Kenya Certificate of Secondary Education (KCSE) examinations.
4. The Petitioner avers that the Respondents’ decision to bar the student from reporting to school was made arbitrarily, without issuing any formal notice, without conducting investigations, and without according the student an opportunity to be heard.
5. It is averred that the actions of the Respondents amount to a violation of the student’s right to fair administrative action guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act, 2015.
6. The Petitioner contends that the Respondents have subjected the student to repeated disciplinary sanctions based on mere suspicion, unverified allegations and without credible evidence. That the allegation that the student was smoking bhang had previously been investigated and the student subjected to a Drug Class Screening Test which returned negative results, thereby clearing the student of the said allegation.
7. The petitioner avers that despite absolved of the said allegations, the Respondents continued to subject the student to punitive and discriminatory treatment, including imposing disciplinary measures without any lawful basis. That the continued targeting of the student amounts to harassment, victimization and unfair treatment contrary to the principles of justice and fairness.
8. Further, the petitioner avers that the Respondents have subjected the student to humiliating and degrading treatment while under the school’s custody, including denial of basic welfare and alleged physical assault.
9. It is averred that the Respondents’ actions threaten to disrupt the student’s education, examination preparation and future academic progression and consequently the right to education. It is also averred that the Respondents have failed to adopt lawful, fair and proportionate disciplinary measures as required under the Basic Education Act, 2013 and applicable education regulations.
10. The Petitioner contends that the Respondents’ actions are unreasonable, irrational, disproportionate and manifestly unfair in the circumstances and that therefore the student has suffered and continues to suffer emotional distress, humiliation, disruption of learning and prejudice as a direct consequence of the Respondents’ unlawful conduct.
11. Therefore, the Petitioner seeks the intervention of this court for the reason that the continued exclusion of the student from school will render the Petition nugatory and cause irreparable damage to his academic interests and that damages would not be an adequate remedy because the interruption of a Form Four candidate’s education and KCSE preparation cannot be sufficiently compensated after the fact.
Respondent’s Replying Affidavit
12. The 1 st Respondent has filed a replying affidavit dated 6 th July, 2026 sworn by Geoffrey Murunga who is the Principal of St. Mary’s Kibabii National School and in his capacity has sworn the affidavit on behalf of the 1 st , 2 nd and 3 rd Respondents.
13. It is averred that the application is mischievous, speculative and built on conjecture. It is further deposed that the 1 st Respondent is scheduled to hear and address the issues relating to the said W.N.M hence the disciplinary proceedings are still on course, That therefore both the petition and application are consequently premature, speculative, built on misapprehensions and conjecture and do not disclose any cause of action as against the Respondents as the Respondent is yet to hear and determine the issues.
14. It was further averred that the Applicant ought to have exploited other fora to ventilate the alleged grievances by adhering to the laid down disciplinary procedures as laid out in the relevant rules and regulations. That both the petition and the application run counter to the best Interests of the subject W.N.M as well as other students of ST. Mary's Kibabi Boys National School.
15. It is deposed that W.N.M has not been subjected to any form of intimidation and unfair disciplinary action as alleged in the petition.
16. Further, that from the records W.N.M had been involved in several instances of misbehavior contrary to school rules and regulations bordering on drug peddling, and abuse, bullying and general indiscipline. It is averred that some of the instances such as suspected drug peddling and abuse are incidental to or are a pointer to the said student’s general appearance and conduct within the school premises.
17. The Respondent submitted a photo showing that on 17 th January, 2026 the said student was found in the playing field covering himself with a blanket while the sun was shining.
18. It is also deposed that sometimes on or about the 4 th of February, 2026 the said student was found after the evening remedial lesson in the school toilets smoking cannabis with another student who took off upon being confronted by the teacher on duty and as a consequence thereof the said student W.N.M recorded a statement on the incident and was sent home for a period of about two weeks. The Respondent produced W.N.M’s statement about the said incident.
19. The 1 st Respondent avers that on 19 th February 2026 the said student recorded an undertaking not to involve himself in any further incidents of indiscipline and was allowed back in school (see annexures marked GM (1)(a) & (b) which is a letter by the subject and a record of disciplinary proceedings undertaken by the 1 st respondent).
20. The 1 st Respondent claims that on the 23 rd February, 2026 there was a student unrest at ST. Mary’s Kibabii Boys School causing disruption of school programs and destruction of property as well as the programmed closure of the school which matter was said to be in the public domain. Consequently, all the students were sent home and a structured return-to-school formula generated. However, that upon resumption on the 10 th of March, 2026 the said student was caught with a matchbox in his bag upon frisking.
21. It is averred that the explanation given by the student was found not satisfactory considering that possession of matchboxes by students and the dangers of smoking or arson was in the public domain, it was resolved that the student be sent home on disciplinary grounds and a date given for him to appear for a hearing.
22. However, the guardian who had accompanied the student to school demanded for a written communication of the same but by the time the letter communicating the above decision was ready for dispatch; the said guardian had already left leaving the said student behind.
23. It is averred that the student remained in school as the guardian had left and he could not be released go back home alone. That sometime around the 4 th June 2026 another student was caught in possession of 13 rolls of bhang and upon interrogation he mentioned the subject, W.N.M. as the person who had given him the bhang while out for games at Kibabii University (see annexures marked “G6” ).
24. It is further averred that in the intervening period, as a result of the numerous cases of indiscipline in the school, the students council prepared and handed over to the principal a list of students who are engaged in various vices within the school and were therefore creating disruptions and destruction of property as well as general indiscipline and warned that the situation was volatile both for the students on the list and the rest of the school. The report was produced (see annexure marked “G8” ).
25. Upon further investigations being conducted, it was concluded that the said W.N.M must have been accessory to the rolls of cannabis impounded and as a consequence it was resolved that the student attend proceedings over the matter on 22 th June 2026 together with the parent.
26. It is averred that on 22 nd June 2026 the said student turned up in the company of one Issac Wakhungu Musuya as his guardian but that the committee saw it fit to have the session with the biological parent of the student. As a result it was resolved that, the student attends a hearing on 2 nd July 2026 with the biological parent and not the guardian.
27. The 1 st Respondent contends that on 24 th June 2026 he was then served with the instant application and petition when the disciplinary proceedings are yet to be concluded. That the school disciplinary committee therefore met the petitioner herein and presented the case against the student and noted the said W.N.M is in fact appearing on the list submitted by the students council and upon hearing the student and the petitioner forwarded the matter to the Discipline committee of the Board and informed the petitioner and the said student to appear on 3 rd July 2026 .
28. It is deposed that the disciplinary committee of the board convened on 3 rd July, 2026 and heard the said student W.N.M and the petitioner whereupon the committee resolved to forward the matter to be heard by the full board of the school at the earliest convenient date (see the annexure marked “GM11” ).
29. The 1 st Respondent further deposes that the situation in the school is very volatile going by the complaints of other students against 22 students who include W.N.M hence it does not serve the best interests of the student to remain in school in the pendency of the disciplinary proceedings.
30. Further, that the information obtained from the student council was critical and pointed at possibility of violence and destruction of property and/or life and thus it was important to take the necessary administrative action to avert disaster. This action is justified by the respondents to be in the best interest of both the student and the school at large, as the students own well-being is likely to be compromised should he be readmitted without the conclusion of disciplinary proceedings against him and others involved in similar vices.
31. It is the 1 st Respondent’s position that the interests of the petitioner do not in any way supersede the interests of the rest of the students. That the respondents and the school administration has been patient with the subject and has exercised caution and carefully considered all factors before taking any decisions in relation to him.
32. It is also deposed that at no material time have the respondents or any other person within the school administration exercised callousness, cruelty or harshness against the said student such that the same can be said to be derogatory to the rights of the student. It is also deposed that the purported medical report whose veracity and authenticity it did not acknowledge, the respondents were open to an examination of samples done by a certified examiner.
33. Finally, the court was urged to dismiss the Application for the reasons that the petitioner had not explored other alternative, sufficient, appropriate and adequate avenues to ventilate his alleged Constitutional grievances and therefore the petition violates the doctrine of constitutional avoidance; the entire petition offends the spirit and letter of the law as espoused by the Court of Appeal in the case of Speaker of the National Assembly v The Hon. James Njenga Karume Civil Case No. 92 of 1992; that there is no constitutional petition for determination before the court as the petitioner has not produced evidence of how his constitutional rights have been violated; that the petition does not set out with reasonable degree of precision the constitutional provisions infringed and the manner they are alleged to have been infringed.
PETITIONER’S FURTHER AFFIDAVIT
34. Pursuant to leave obtained on 7 th July, 2026 the Petitioner filed a further affidavit dated 10 th July, 2026 where it was deposed that while the Respondents seek to portray W.N.M as a habitual offender every allegation levelled against him has neither been investigated and proved or remains unsupported by any credible evidence whatsoever.
35. With regard to the allegations that W.N.M had been smoking bhang it is deposed, the Respondents conveniently fail to disclose that W.N.M voluntarily underwent a Drug Class Screening Test, which returned negative results, thereby completely exonerating him from the allegations.
36. It was further deposed that despite the negative test results, the petitioner requested the disciplinary panel to subject the student to a second confirmatory test if indeed they genuinely believed he had been using bhang, but the Respondents declined to do so and instead cleared him to resume classes after he confirmed before the panel that he had never smoked bhang.
37. On the matchbox issue, it is deposed that the recovery of a matchbox from W.N.M’s school bag, the Respondents deliberately omit the material fact that the matchbox was brand new and unused and had inadvertently remained inside the bag after the bag had previously been used by a house help of the subject’s guardian, Mr. Isaac Musuya, for domestic shopping.
38. It is deposed that the Petitioner and W.N.M appended signatures to a statement that he would "change", the same was merely imposed as a condition for readmission and cannot by any stretch amount to an admission of guilt, particularly where the scientific test had already proved his innocence. Further that the punishment relating to those allegations was therefore fully served and concluded, and the Respondents cannot lawfully revive the same allegations months later in an attempt to justify fresh disciplinary action against him.
39. It is deposed that the photos adduced by the Respondent do not show any wrongdoing and are explained by the fact that he was simply warming himself, as he was ill.
40. On the thirteen (13) rolls of bhang were recovered, the Petitioner deposes that no evidence has been produced showing that the alleged rolls belonged to W.N.M or were ever recovered from his possession and that W.N.M has denied possession of the same.
41. As to the list the Respondents relied on it is deposed that no student has ever confronted, interrogated or implicated W.N.M directly, and the said list merely makes generalized allegations without attributing any specific proven act of misconduct to him.
42. It is also deposed that one Mr. Kiliswa candidly admitted before the disciplinary panel that the only basis upon which the subject remained excluded from school was because his name appeared on a list and further confirmed that there existed no evidence linking him to the alleged offences. On his disciplinary hearing of 3 rd July, 2026 it is deposed that the Board of Management declined to reinstate W.N.M and instead informed the petitioner that another Board meeting would be convened at an unspecified future date, thereby condemning him to remain indefinitely out of school while losing valuable preparation time for his KCSE examinations when he had already lost 47 days.
43. Lastly it is deposed that the Respondents are denying W.N.M his constitutional right to education as prior to his suspension during the First Term in March 2026, W.N.M had attained a Mean Grade of B in his school examinations, but following his prolonged exclusion from school he subsequently scored a Mean Grade of D+, thereby demonstrating the severe adverse effect that the Respondents' unlawful exclusion had on his academic performance and educational development
PETITIONER’S SUBMISSION
44. The Petitioner submits that it has established a prima facie case to warrant the grant of conservatory orders.
45. Counsel for the petitioner submits that the material before Court demonstrates several procedural irregularities. That the allegations previously investigated through scientific testing were revived despite the student having been cleared. The alleged recovery of thirteen rolls of cannabis has not been linked to the student through any objective evidence. That the alleged student-generated list has not been authenticated and no witness statements have been produced. Further that no documentary exhibits identifying the student as the perpetrator have been exhibited. Lastly, that the Further Affidavit discloses that during disciplinary proceedings it was allegedly admitted that the student's continued exclusion was based merely upon his name appearing on a list rather than any proven misconduct. This was submitted to be a violation of W.N.M’s rights under Article 47 and Article 53 of the Constitution.
46. It is submitted that W.N.N has remained out of school for over forty-seven (47) days. During this period, he has missed classroom instruction, continuous assessment tests, examinations, practical lessons, revision programs, teacher supervision and preparation for the Kenya Certificate of Secondary Education examinations.
47. Counsel posits that the Constitution does not permit a school to suspend or exclude a learner indefinitely merely because allegations have been raised. Further, that the Respondents have neither pleaded nor demonstrated any lawful limitation under Article 24 of the Constitution.
48. It is the petitioner’s submission that prior notice, adequate reasons, disclosure of relevant material; an opportunity to be heard; consideration of representations made; and written reasons for the decision ought to be done before an administrative action is done.
49. Counsel submits that the Respondents have not demonstrated compliance with these statutory obligations under Section 4 of the Fair Administrative Action Act. That the Petitioner's affidavits establish that the student was initially instructed not to report back to school through a telephone communication from his class teacher. No written communication explaining the reasons was issued before the exclusion took effect. The Petitioner's guardian requested written communication before removing the student from school but none was provided. Instead, the Respondents allegedly prepared correspondence only after the petitioner’s advocates had already issued a demand letter.
50. It is submitted that the Respondents’ actions are irrational, unreasonable and disproportionate as where a school has legitimate disciplinary concerns, the sanctions imposed must be necessary, fair and proportionate to the alleged misconduct. In the present case, the Respondents have resorted to the most severe sanction available to them, which is the continued exclusion of a Form 4 candidate from school despite the absence of credible evidence demonstrating that W.N.M committed the offences alleged.
51. On public interest, it is submitted that public interest is served when educational institutions enforce discipline fairly, transparently and in accordance with the Constitution. Counsel urges that the granting of conservatory orders will not undermine discipline; instead, it will reaffirm the constitutional principle that disciplinary authority must always be exercised within the bounds of legality, fairness and due process.
RESPONDENTS SUBMISSIONS
52. Counsel submits that given the interlocutory nature of conservatory orders, there is need for a court to exercise caution when dealing with any request for such prayers for the reason that matters, which are the preserve of the main petition, ought not to be dealt with finality at the interlocutory stage. Reliance is placed on Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General (2011) eKLR.
53. It is submitted that while the main contention is the exclusion of the subject herein W.N.M from school the disciplinary proceedings continue and the matter has now been forwarded to the full board of the school (the 2nd Respondent) to make a final determination over the same.
54. Counsel submits that the petitioner failed to provide, in a very clear and elaborate manner, the evidence on how the Respondents have violated his Constitutional rights. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] eKLR .
55. It is submitted that proceedings before the 2 nd Respondent have not been concluded such as to create a ripe situation for this court to come into play.
56. Counsel for the Respondent relied on the cases of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR in support of the submission that the prayers sought by the Petitioner in the Petition are civil in nature with civil remedies and could have readily been redressed in a civil court. The Petitioner ought to have filed a civil suit as opposed to the constitutional petition currently before this Court.
57. It is also submitted that in the pleadings and documents accompanying the petition there is no mention of the Petitioner invoking the available dispute resolution mechanism including running through the 2nd Respondents Full Board disciplinary hearing prior to approaching this Honourable Court.
58. Counsel further submits that the full Board of the 2nd Respondent will have the presence of the County Director of Education as required by the Basic Education Regulations. Under Regulation 40 of the Basic Education Regulations, once the County Director of education receives recommendations of the 2nd Respondent’s full Board he will then make a decision under the same regulation to either order for conditional or unconditional re-admission of the learner; transfer the learner to an alternative institution, or to transfer the learner to a corrective center in the context of the needs of his education.
59. It is submitted that the Petitioner has not invoked the available dispute resolution mechanism under Regulation 41 of the Basic Education Regulations, which provides for an appeals mechanism. Reliance was placed on the case of Speaker of The National Assembly –Vs The Hon. James Njenga Karume Civil Case of Application No 92 0f 1992 .
ISSUES FOR DETERMINATION
60. Having considered the Notice of Motion, the grounds in support, the replying affidavit and further affidavit, and the rival submissions of counsel, the issues arising for determination are the following:
i. Whether the Petition and the Application are premature for want of ripeness, and or for failure to exhaust the internal dispute resolution mechanisms ;
ii. Whether the Petitioner has demonstrated an arguable prima facie case that W.N.M.'s rights under Articles 43(1)(f), 47, 50 and 53(1)(b) of the Constitution have been, or are threatened to be, violated by the manner of his continued exclusion from school;
iii. Whether, absent the grant of conservatory orders, the Petitioner is likely to suffer prejudice that cannot adequately be remedied, and whether the substratum of the Petition would thereby be rendered nugatory;
iv. Whether the grant of the conservatory orders sought would enhance or undermine the public interest.
i) Whether the Petition and the Application are premature for want of ripeness, and or for failure to exhaust the internal dispute resolution mechanisms
61. Counsel for the Respondent had submitted that the Petition offends the doctrine of exhaustion and that the Petitioner ought first to have allowed the disciplinary process to run its course to a Regulation 40 decision by the County Director of Education, with a Regulation 41 appeal to the Education Appeals Tribunal thereafter, before invoking this Court's jurisdiction.
62. The doctrine of exhaustion, however, is not an absolute bar to the jurisdiction of this Court. Where an applicant demonstrates a threat to fundamental rights of a kind the internal mechanism is not designed, or presently positioned, to address on an interim basis, it warrants the intervention of the court.
63. A conservatory order does not require the Court to determine whether the Petition itself, concerning the ultimate lawfulness of any disciplinary sanction eventually imposed on W.N.M, is ripe for substantive determination. It requires the Court to assess whether the status quo obtaining during the pendency of the process is causing harm disproportionate to any legitimate purpose it is intended to serve.
64. Regulation 41 affords a right of appeal against a decision made under Regulation 40 that is, a decision of the County Director of Education made upon the recommendation of the Board of Management. No such decision has been made. The record before me shows the matter progressing from the disciplinary process undertaken by the 1 st respondent to the discipline committee of the Board. There is no indication that the County Director has been seized of any recommendation or has rendered a Regulation 40 decision. There is, in short, no decision in existence against which the Regulation 41 appeal mechanism could presently be invoked. An exhaustion objection cannot be sustained by pointing to a remedy that does not yet exist on the facts.
65. This court finds that the Petition and Application are not barred by the doctrines of ripeness or exhaustion. This finding is confined to the propriety of interim conservatory relief; it does not pre-empt or foreclose the Respondents' full disciplinary process from proceeding to its conclusion, nor does it determine the substantive merits of any disciplinary charge against W.N.M.
ii) Whether the Petitioner has demonstrated an arguable prima facie case that W.N.M.'s rights under Articles 43(1)(f), 47, 50 and 53(1)(b) of the Constitution have been, or are threatened to be, violated by the manner of his continued exclusion from school.
66. It is apparent that the bhang-smoking allegation of February, 2026 was investigated, and resulted in a negative Drug Class Screening Test. Subsequently W.N.M. was permitted to resume classes.
67. The Petitioner avers that the Respondents declined a request for confirmatory re-testing. Reviving that same episode as part of the justification advanced for the present, continuing exclusion sits uneasily with the Respondents' own earlier resolution of the matter.
68. The allegation concerning the thirteen rolls of cannabis rests on the uncorroborated account of another student is denied by W.N.M., and no documentary or forensic material directly linking W.N.M. to the rolls has been placed before the Court.
69. This does not mean the allegation is untrue; it means that, present and based on the evidence on record record, it has not risen above the level of an untested accusation. Most significant is the deposition, unrebutted on this record, that one Mr Kiliswa is alleged to have stated before the disciplinary panel that the sole basis for W.N.M.'s continued exclusion was the appearance of his name on a list generated by the students' council, with no evidence linking him to a specific proven act.
70. An exclusion maintained on that basis alone is in flagrant to the requirement of Article 47 and section 4 of the Fair Administrative Action Act, 2015 that requires that administrative action affecting a person's rights be lawful, reasonable, and procedurally fair.
71. The matchbox incident of 10th March 2026 resulted in the student being kept at school and not sent home because his guardian had already departed, and appears, on the Petitioner's account, capable of an innocent explanation though concerning to this court. It does not by itself; establish a proper basis for the present indefinite exclusion.
72. At this interlocutory stage, I make no finding as to whether W.N.M. did or did not engage in the conduct alleged. That is a matter for the disciplinary process, and if necessary this Court’s finding on a full hearing of the Petition. It suffices for present purposes that the Petitioner has shown an arguable case that the manner in which his continued exclusion is being maintained through repeated invocation of a previously cleared allegation, an unlinked accusation, and presence on a list of undiscipli
[...truncated]
IN THE HIGH COURT OF KENYA AT BUNGOMA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E013 OF 2026
IN THE MATTER OF ARTICLES 22, 23, 27, 28, 29, 43(1)(f), 47, 53(1)(b), 165(3)(b) AND 258 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE VIOLATION AND THREATENED VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF WAYNE NYARASA MACHAYO
AND
IN THE MATTER OF THE BASIC EDUCATION ACT, 2013
BETWEEN
HARDLEY KAYANGE MACHAYO (Suing as the father
and next friend of W.N.M).....……………………………………...PETITIONER
VERSUS
THE PRINCIPAL, ST. MARY’S KIBABI BOYS
NATIONAL SCHOOL………………………………………...1st RESPONDENT
THE BOARD OF MANAGEMENT,
ST. MARY’S KIBABI BOYS NATIONAL SCHOOL..............2 nd RESPONDENT
THE CABINET SECRETARY, MINISTRY OF EDUCATION…………………………………………………...3rd RESPONDENT
RULING
1. By way of a Notice of Motion dated 16 th June, 2026 the Petitioner applicant approached this Honourable Court seeking the following orders:
a) Spent
b) Spent
c) THAT pending hearing and determination of this Petition, this Honourable Court be pleased to issue conservatory orders compelling the Respondents to immediately allow W.N.M to report back to St. Mary’s Kibabii Boys National School and continue attending classes.
d) THAT pending hearing and determination of the Petition, the Respondents be restrained from excluding, suspending, harassing or interfering with the student’s continued learning.
e) THAT the Respondents be directed to facilitate and permit the student to participate in KCSE registration and examinations preparation.
f) THAT costs be in the cause.
Brief Facts
2. The grounds in support of the Application are that the Petitioner, W.N.M, is a student at St. Mary’s Kibabi Boys National School. The Respondents are the administrators of the said institution.
3. It is averred that the Respondents have unlawfully, unfairly and without due process excluded the student from attending school despite him being a Form 4 candidate preparing to sit for the Kenya Certificate of Secondary Education (KCSE) examinations.
4. The Petitioner avers that the Respondents’ decision to bar the student from reporting to school was made arbitrarily, without issuing any formal notice, without conducting investigations, and without according the student an opportunity to be heard.
5. It is averred that the actions of the Respondents amount to a violation of the student’s right to fair administrative action guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act, 2015.
6. The Petitioner contends that the Respondents have subjected the student to repeated disciplinary sanctions based on mere suspicion, unverified allegations and without credible evidence. That the allegation that the student was smoking bhang had previously been investigated and the student subjected to a Drug Class Screening Test which returned negative results, thereby clearing the student of the said allegation.
7. The petitioner avers that despite absolved of the said allegations, the Respondents continued to subject the student to punitive and discriminatory treatment, including imposing disciplinary measures without any lawful basis. That the continued targeting of the student amounts to harassment, victimization and unfair treatment contrary to the principles of justice and fairness.
8. Further, the petitioner avers that the Respondents have subjected the student to humiliating and degrading treatment while under the school’s custody, including denial of basic welfare and alleged physical assault.
9. It is averred that the Respondents’ actions threaten to disrupt the student’s education, examination preparation and future academic progression and consequently the right to education. It is also averred that the Respondents have failed to adopt lawful, fair and proportionate disciplinary measures as required under the Basic Education Act, 2013 and applicable education regulations.
10. The Petitioner contends that the Respondents’ actions are unreasonable, irrational, disproportionate and manifestly unfair in the circumstances and that therefore the student has suffered and continues to suffer emotional distress, humiliation, disruption of learning and prejudice as a direct consequence of the Respondents’ unlawful conduct.
11. Therefore, the Petitioner seeks the intervention of this court for the reason that the continued exclusion of the student from school will render the Petition nugatory and cause irreparable damage to his academic interests and that damages would not be an adequate remedy because the interruption of a Form Four candidate’s education and KCSE preparation cannot be sufficiently compensated after the fact.
Respondent’s Replying Affidavit
12. The 1 st Respondent has filed a replying affidavit dated 6 th July, 2026 sworn by Geoffrey Murunga who is the Principal of St. Mary’s Kibabii National School and in his capacity has sworn the affidavit on behalf of the 1 st , 2 nd and 3 rd Respondents.
13. It is averred that the application is mischievous, speculative and built on conjecture. It is further deposed that the 1 st Respondent is scheduled to hear and address the issues relating to the said W.N.M hence the disciplinary proceedings are still on course, That therefore both the petition and application are consequently premature, speculative, built on misapprehensions and conjecture and do not disclose any cause of action as against the Respondents as the Respondent is yet to hear and determine the issues.
14. It was further averred that the Applicant ought to have exploited other fora to ventilate the alleged grievances by adhering to the laid down disciplinary procedures as laid out in the relevant rules and regulations. That both the petition and the application run counter to the best Interests of the subject W.N.M as well as other students of ST. Mary's Kibabi Boys National School.
15. It is deposed that W.N.M has not been subjected to any form of intimidation and unfair disciplinary action as alleged in the petition.
16. Further, that from the records W.N.M had been involved in several instances of misbehavior contrary to school rules and regulations bordering on drug peddling, and abuse, bullying and general indiscipline. It is averred that some of the instances such as suspected drug peddling and abuse are incidental to or are a pointer to the said student’s general appearance and conduct within the school premises.
17. The Respondent submitted a photo showing that on 17 th January, 2026 the said student was found in the playing field covering himself with a blanket while the sun was shining.
18. It is also deposed that sometimes on or about the 4 th of February, 2026 the said student was found after the evening remedial lesson in the school toilets smoking cannabis with another student who took off upon being confronted by the teacher on duty and as a consequence thereof the said student W.N.M recorded a statement on the incident and was sent home for a period of about two weeks. The Respondent produced W.N.M’s statement about the said incident.
19. The 1 st Respondent avers that on 19 th February 2026 the said student recorded an undertaking not to involve himself in any further incidents of indiscipline and was allowed back in school (see annexures marked GM (1)(a) & (b) which is a letter by the subject and a record of disciplinary proceedings undertaken by the 1 st respondent).
20. The 1 st Respondent claims that on the 23 rd February, 2026 there was a student unrest at ST. Mary’s Kibabii Boys School causing disruption of school programs and destruction of property as well as the programmed closure of the school which matter was said to be in the public domain. Consequently, all the students were sent home and a structured return-to-school formula generated. However, that upon resumption on the 10 th of March, 2026 the said student was caught with a matchbox in his bag upon frisking.
21. It is averred that the explanation given by the student was found not satisfactory considering that possession of matchboxes by students and the dangers of smoking or arson was in the public domain, it was resolved that the student be sent home on disciplinary grounds and a date given for him to appear for a hearing.
22. However, the guardian who had accompanied the student to school demanded for a written communication of the same but by the time the letter communicating the above decision was ready for dispatch; the said guardian had already left leaving the said student behind.
23. It is averred that the student remained in school as the guardian had left and he could not be released go back home alone. That sometime around the 4 th June 2026 another student was caught in possession of 13 rolls of bhang and upon interrogation he mentioned the subject, W.N.M. as the person who had given him the bhang while out for games at Kibabii University (see annexures marked “G6” ).
24. It is further averred that in the intervening period, as a result of the numerous cases of indiscipline in the school, the students council prepared and handed over to the principal a list of students who are engaged in various vices within the school and were therefore creating disruptions and destruction of property as well as general indiscipline and warned that the situation was volatile both for the students on the list and the rest of the school. The report was produced (see annexure marked “G8” ).
25. Upon further investigations being conducted, it was concluded that the said W.N.M must have been accessory to the rolls of cannabis impounded and as a consequence it was resolved that the student attend proceedings over the matter on 22 th June 2026 together with the parent.
26. It is averred that on 22 nd June 2026 the said student turned up in the company of one Issac Wakhungu Musuya as his guardian but that the committee saw it fit to have the session with the biological parent of the student. As a result it was resolved that, the student attends a hearing on 2 nd July 2026 with the biological parent and not the guardian.
27. The 1 st Respondent contends that on 24 th June 2026 he was then served with the instant application and petition when the disciplinary proceedings are yet to be concluded. That the school disciplinary committee therefore met the petitioner herein and presented the case against the student and noted the said W.N.M is in fact appearing on the list submitted by the students council and upon hearing the student and the petitioner forwarded the matter to the Discipline committee of the Board and informed the petitioner and the said student to appear on 3 rd July 2026 .
28. It is deposed that the disciplinary committee of the board convened on 3 rd July, 2026 and heard the said student W.N.M and the petitioner whereupon the committee resolved to forward the matter to be heard by the full board of the school at the earliest convenient date (see the annexure marked “GM11” ).
29. The 1 st Respondent further deposes that the situation in the school is very volatile going by the complaints of other students against 22 students who include W.N.M hence it does not serve the best interests of the student to remain in school in the pendency of the disciplinary proceedings.
30. Further, that the information obtained from the student council was critical and pointed at possibility of violence and destruction of property and/or life and thus it was important to take the necessary administrative action to avert disaster. This action is justified by the respondents to be in the best interest of both the student and the school at large, as the students own well-being is likely to be compromised should he be readmitted without the conclusion of disciplinary proceedings against him and others involved in similar vices.
31. It is the 1 st Respondent’s position that the interests of the petitioner do not in any way supersede the interests of the rest of the students. That the respondents and the school administration has been patient with the subject and has exercised caution and carefully considered all factors before taking any decisions in relation to him.
32. It is also deposed that at no material time have the respondents or any other person within the school administration exercised callousness, cruelty or harshness against the said student such that the same can be said to be derogatory to the rights of the student. It is also deposed that the purported medical report whose veracity and authenticity it did not acknowledge, the respondents were open to an examination of samples done by a certified examiner.
33. Finally, the court was urged to dismiss the Application for the reasons that the petitioner had not explored other alternative, sufficient, appropriate and adequate avenues to ventilate his alleged Constitutional grievances and therefore the petition violates the doctrine of constitutional avoidance; the entire petition offends the spirit and letter of the law as espoused by the Court of Appeal in the case of Speaker of the National Assembly v The Hon. James Njenga Karume Civil Case No. 92 of 1992; that there is no constitutional petition for determination before the court as the petitioner has not produced evidence of how his constitutional rights have been violated; that the petition does not set out with reasonable degree of precision the constitutional provisions infringed and the manner they are alleged to have been infringed.
PETITIONER’S FURTHER AFFIDAVIT
34. Pursuant to leave obtained on 7 th July, 2026 the Petitioner filed a further affidavit dated 10 th July, 2026 where it was deposed that while the Respondents seek to portray W.N.M as a habitual offender every allegation levelled against him has neither been investigated and proved or remains unsupported by any credible evidence whatsoever.
35. With regard to the allegations that W.N.M had been smoking bhang it is deposed, the Respondents conveniently fail to disclose that W.N.M voluntarily underwent a Drug Class Screening Test, which returned negative results, thereby completely exonerating him from the allegations.
36. It was further deposed that despite the negative test results, the petitioner requested the disciplinary panel to subject the student to a second confirmatory test if indeed they genuinely believed he had been using bhang, but the Respondents declined to do so and instead cleared him to resume classes after he confirmed before the panel that he had never smoked bhang.
37. On the matchbox issue, it is deposed that the recovery of a matchbox from W.N.M’s school bag, the Respondents deliberately omit the material fact that the matchbox was brand new and unused and had inadvertently remained inside the bag after the bag had previously been used by a house help of the subject’s guardian, Mr. Isaac Musuya, for domestic shopping.
38. It is deposed that the Petitioner and W.N.M appended signatures to a statement that he would "change", the same was merely imposed as a condition for readmission and cannot by any stretch amount to an admission of guilt, particularly where the scientific test had already proved his innocence. Further that the punishment relating to those allegations was therefore fully served and concluded, and the Respondents cannot lawfully revive the same allegations months later in an attempt to justify fresh disciplinary action against him.
39. It is deposed that the photos adduced by the Respondent do not show any wrongdoing and are explained by the fact that he was simply warming himself, as he was ill.
40. On the thirteen (13) rolls of bhang were recovered, the Petitioner deposes that no evidence has been produced showing that the alleged rolls belonged to W.N.M or were ever recovered from his possession and that W.N.M has denied possession of the same.
41. As to the list the Respondents relied on it is deposed that no student has ever confronted, interrogated or implicated W.N.M directly, and the said list merely makes generalized allegations without attributing any specific proven act of misconduct to him.
42. It is also deposed that one Mr. Kiliswa candidly admitted before the disciplinary panel that the only basis upon which the subject remained excluded from school was because his name appeared on a list and further confirmed that there existed no evidence linking him to the alleged offences. On his disciplinary hearing of 3 rd July, 2026 it is deposed that the Board of Management declined to reinstate W.N.M and instead informed the petitioner that another Board meeting would be convened at an unspecified future date, thereby condemning him to remain indefinitely out of school while losing valuable preparation time for his KCSE examinations when he had already lost 47 days.
43. Lastly it is deposed that the Respondents are denying W.N.M his constitutional right to education as prior to his suspension during the First Term in March 2026, W.N.M had attained a Mean Grade of B in his school examinations, but following his prolonged exclusion from school he subsequently scored a Mean Grade of D+, thereby demonstrating the severe adverse effect that the Respondents' unlawful exclusion had on his academic performance and educational development
PETITIONER’S SUBMISSION
44. The Petitioner submits that it has established a prima facie case to warrant the grant of conservatory orders.
45. Counsel for the petitioner submits that the material before Court demonstrates several procedural irregularities. That the allegations previously investigated through scientific testing were revived despite the student having been cleared. The alleged recovery of thirteen rolls of cannabis has not been linked to the student through any objective evidence. That the alleged student-generated list has not been authenticated and no witness statements have been produced. Further that no documentary exhibits identifying the student as the perpetrator have been exhibited. Lastly, that the Further Affidavit discloses that during disciplinary proceedings it was allegedly admitted that the student's continued exclusion was based merely upon his name appearing on a list rather than any proven misconduct. This was submitted to be a violation of W.N.M’s rights under Article 47 and Article 53 of the Constitution.
46. It is submitted that W.N.N has remained out of school for over forty-seven (47) days. During this period, he has missed classroom instruction, continuous assessment tests, examinations, practical lessons, revision programs, teacher supervision and preparation for the Kenya Certificate of Secondary Education examinations.
47. Counsel posits that the Constitution does not permit a school to suspend or exclude a learner indefinitely merely because allegations have been raised. Further, that the Respondents have neither pleaded nor demonstrated any lawful limitation under Article 24 of the Constitution.
48. It is the petitioner’s submission that prior notice, adequate reasons, disclosure of relevant material; an opportunity to be heard; consideration of representations made; and written reasons for the decision ought to be done before an administrative action is done.
49. Counsel submits that the Respondents have not demonstrated compliance with these statutory obligations under Section 4 of the Fair Administrative Action Act. That the Petitioner's affidavits establish that the student was initially instructed not to report back to school through a telephone communication from his class teacher. No written communication explaining the reasons was issued before the exclusion took effect. The Petitioner's guardian requested written communication before removing the student from school but none was provided. Instead, the Respondents allegedly prepared correspondence only after the petitioner’s advocates had already issued a demand letter.
50. It is submitted that the Respondents’ actions are irrational, unreasonable and disproportionate as where a school has legitimate disciplinary concerns, the sanctions imposed must be necessary, fair and proportionate to the alleged misconduct. In the present case, the Respondents have resorted to the most severe sanction available to them, which is the continued exclusion of a Form 4 candidate from school despite the absence of credible evidence demonstrating that W.N.M committed the offences alleged.
51. On public interest, it is submitted that public interest is served when educational institutions enforce discipline fairly, transparently and in accordance with the Constitution. Counsel urges that the granting of conservatory orders will not undermine discipline; instead, it will reaffirm the constitutional principle that disciplinary authority must always be exercised within the bounds of legality, fairness and due process.
RESPONDENTS SUBMISSIONS
52. Counsel submits that given the interlocutory nature of conservatory orders, there is need for a court to exercise caution when dealing with any request for such prayers for the reason that matters, which are the preserve of the main petition, ought not to be dealt with finality at the interlocutory stage. Reliance is placed on Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General (2011) eKLR.
53. It is submitted that while the main contention is the exclusion of the subject herein W.N.M from school the disciplinary proceedings continue and the matter has now been forwarded to the full board of the school (the 2nd Respondent) to make a final determination over the same.
54. Counsel submits that the petitioner failed to provide, in a very clear and elaborate manner, the evidence on how the Respondents have violated his Constitutional rights. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] eKLR .
55. It is submitted that proceedings before the 2 nd Respondent have not been concluded such as to create a ripe situation for this court to come into play.
56. Counsel for the Respondent relied on the cases of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR in support of the submission that the prayers sought by the Petitioner in the Petition are civil in nature with civil remedies and could have readily been redressed in a civil court. The Petitioner ought to have filed a civil suit as opposed to the constitutional petition currently before this Court.
57. It is also submitted that in the pleadings and documents accompanying the petition there is no mention of the Petitioner invoking the available dispute resolution mechanism including running through the 2nd Respondents Full Board disciplinary hearing prior to approaching this Honourable Court.
58. Counsel further submits that the full Board of the 2nd Respondent will have the presence of the County Director of Education as required by the Basic Education Regulations. Under Regulation 40 of the Basic Education Regulations, once the County Director of education receives recommendations of the 2nd Respondent’s full Board he will then make a decision under the same regulation to either order for conditional or unconditional re-admission of the learner; transfer the learner to an alternative institution, or to transfer the learner to a corrective center in the context of the needs of his education.
59. It is submitted that the Petitioner has not invoked the available dispute resolution mechanism under Regulation 41 of the Basic Education Regulations, which provides for an appeals mechanism. Reliance was placed on the case of Speaker of The National Assembly –Vs The Hon. James Njenga Karume Civil Case of Application No 92 0f 1992 .
ISSUES FOR DETERMINATION
60. Having considered the Notice of Motion, the grounds in support, the replying affidavit and further affidavit, and the rival submissions of counsel, the issues arising for determination are the following:
i. Whether the Petition and the Application are premature for want of ripeness, and or for failure to exhaust the internal dispute resolution mechanisms ;
ii. Whether the Petitioner has demonstrated an arguable prima facie case that W.N.M.'s rights under Articles 43(1)(f), 47, 50 and 53(1)(b) of the Constitution have been, or are threatened to be, violated by the manner of his continued exclusion from school;
iii. Whether, absent the grant of conservatory orders, the Petitioner is likely to suffer prejudice that cannot adequately be remedied, and whether the substratum of the Petition would thereby be rendered nugatory;
iv. Whether the grant of the conservatory orders sought would enhance or undermine the public interest.
i) Whether the Petition and the Application are premature for want of ripeness, and or for failure to exhaust the internal dispute resolution mechanisms
61. Counsel for the Respondent had submitted that the Petition offends the doctrine of exhaustion and that the Petitioner ought first to have allowed the disciplinary process to run its course to a Regulation 40 decision by the County Director of Education, with a Regulation 41 appeal to the Education Appeals Tribunal thereafter, before invoking this Court's jurisdiction.
62. The doctrine of exhaustion, however, is not an absolute bar to the jurisdiction of this Court. Where an applicant demonstrates a threat to fundamental rights of a kind the internal mechanism is not designed, or presently positioned, to address on an interim basis, it warrants the intervention of the court.
63. A conservatory order does not require the Court to determine whether the Petition itself, concerning the ultimate lawfulness of any disciplinary sanction eventually imposed on W.N.M, is ripe for substantive determination. It requires the Court to assess whether the status quo obtaining during the pendency of the process is causing harm disproportionate to any legitimate purpose it is intended to serve.
64. Regulation 41 affords a right of appeal against a decision made under Regulation 40 that is, a decision of the County Director of Education made upon the recommendation of the Board of Management. No such decision has been made. The record before me shows the matter progressing from the disciplinary process undertaken by the 1 st respondent to the discipline committee of the Board. There is no indication that the County Director has been seized of any recommendation or has rendered a Regulation 40 decision. There is, in short, no decision in existence against which the Regulation 41 appeal mechanism could presently be invoked. An exhaustion objection cannot be sustained by pointing to a remedy that does not yet exist on the facts.
65. This court finds that the Petition and Application are not barred by the doctrines of ripeness or exhaustion. This finding is confined to the propriety of interim conservatory relief; it does not pre-empt or foreclose the Respondents' full disciplinary process from proceeding to its conclusion, nor does it determine the substantive merits of any disciplinary charge against W.N.M.
ii) Whether the Petitioner has demonstrated an arguable prima facie case that W.N.M.'s rights under Articles 43(1)(f), 47, 50 and 53(1)(b) of the Constitution have been, or are threatened to be, violated by the manner of his continued exclusion from school.
66. It is apparent that the bhang-smoking allegation of February, 2026 was investigated, and resulted in a negative Drug Class Screening Test. Subsequently W.N.M. was permitted to resume classes.
67. The Petitioner avers that the Respondents declined a request for confirmatory re-testing. Reviving that same episode as part of the justification advanced for the present, continuing exclusion sits uneasily with the Respondents' own earlier resolution of the matter.
68. The allegation concerning the thirteen rolls of cannabis rests on the uncorroborated account of another student is denied by W.N.M., and no documentary or forensic material directly linking W.N.M. to the rolls has been placed before the Court.
69. This does not mean the allegation is untrue; it means that, present and based on the evidence on record record, it has not risen above the level of an untested accusation. Most significant is the deposition, unrebutted on this record, that one Mr Kiliswa is alleged to have stated before the disciplinary panel that the sole basis for W.N.M.'s continued exclusion was the appearance of his name on a list generated by the students' council, with no evidence linking him to a specific proven act.
70. An exclusion maintained on that basis alone is in flagrant to the requirement of Article 47 and section 4 of the Fair Administrative Action Act, 2015 that requires that administrative action affecting a person's rights be lawful, reasonable, and procedurally fair.
71. The matchbox incident of 10th March 2026 resulted in the student being kept at school and not sent home because his guardian had already departed, and appears, on the Petitioner's account, capable of an innocent explanation though concerning to this court. It does not by itself; establish a proper basis for the present indefinite exclusion.
72. At this interlocutory stage, I make no finding as to whether W.N.M. did or did not engage in the conduct alleged. That is a matter for the disciplinary process, and if necessary this Court’s finding on a full hearing of the Petition. It suffices for present purposes that the Petitioner has shown an arguable case that the manner in which his continued exclusion is being maintained through repeated invocation of a previously cleared allegation, an unlinked accusation, and presence on a list of undiscipli
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