1. Article 53 of the Constitution of Kenya provides: -
“1) Every child has the right:-
a) …
b) to free and compulsory basic education.
2) A child’s best interest are of paramount importance in every matter concerning the child.”
2. The above right is crystalized by the Basic Education Act, Cap 211. Section 35 thereof provides:-
“(1) Pupils shall be given appropriate incentives to learn and complete basic education.
(2) No pupil admitted in a school, subject to subsection (3) shall be held back in any class or expelled from school.
(3) Subject to subsection (1) the Cabinet Secretary may make regulations to prescribe expulsion or the discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity of being heard:
Provided that such a pupil shall be admitted to an institution that focuses on correction in the context of education”.
3. Vide Legal Notice No. 39 of 2015, The Basic Education Regulations (“the Regulations”) were enacted. They provided for, inter alia, disciplinary procedures for students. Regulation 38 provides: -
“If the head of the institution is of the opinion that—
(a) the acts of indiscipline have persisted in spite of the warnings or corrective measures taken under these regulations; and
(b) if the act of indiscipline is likely to threaten the safety of the other learners in the institution, the head of the institution shall issue the learner, with a suspension letter addressed to the parent or guardian indicating the nature of the indiscipline and specifying the date the learner, accompanied by the parent or guardian is required to appear before the Board of Management of the institution.”
4. Regulation 39 provides : -
“(1) The particulars of the complaint preferred against the learner shall be read out to the parent or guardian and the learner at the meeting with the Board of Management under regulation 38, and the learner shall be asked to defend himself or herself.
(2) …
(3) …
(4) In all disciplinary proceedings affecting a learner, the attendance of the Sub-county Education Officer shall be mandatory.
(5) The recommendations of the Board of Management shall within two days be communicated to the County Director or Education.”
5. Section 8 of the Children’s Act, Cap 141 provides : -
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) …”
6. In Nyongesa & Others -Vs- Egerton University [1990] KLR 692 , the Court of Appeal observed: -
“Having thus stated, as I think to be desirable, the broad nature of the important issues and proposed procedure, I shall now state that courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies. Courts have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when courts are moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side”.
This state applies with full force and measure to school environment.
7. In RWT (suing through next friend and grandmother BGN) –vs- SNS School [2012] KEHC 5408 (KLR), the court observed: -
“I am aware that discipline in school is a delicate and sensitive matter both for the parents and the school authority. Both institutions, the parent and school, bear special responsibility to nurture the child by providing an environment where his potential can be realized so that he becomes a responsible citizen.
Article 53 of our Constitution now recognizes the general principle that the best interests of the children is the paramount consideration in any matter concerning children. … in a school environment, it is the welfare of all the children that must be taken into account rather than one deviant child who has a disciplinary problem. But there is also a responsibility to be borne in respect of that one child, one that flows from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of the other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution.
I am also alive to the fact that this court is not a disciplinary institution for children. The role of the court when moved under the provisions of Article 22 is to enforce fundamental rights and freedoms provided in the Bill of Rights.
In taking this responsibility, I must weigh all these facts and circumstances and consider what is in the best interest of the child.”
8. From the foregoing, it is clear how central the doctrine of best interest of the child is in matters touching on children. It is a Constitutional principle under Article 53. It has been embedded in both the Children’s Act, Cap 141, 2022 and the Basic Education Act Cap 211. It entails that whatever is done that affects a child, “it is to be to the child’s greatest benefit, it is that which best advances the child’s welfare”. BLACKS LAW DICTIONARY TENTH Edn, 1995 .
9. It also shows how courts have to be very circumspect when it comes to matters touching discipline of children in learning institutions. That the courts must be very careful in weighing the public interest of maintaining discipline in our learning institutions as well as the individual student’s rights under the Constitution and the law.
10. John Ransley Odaba (“the Petitioner”) is a minor. He is said to be 15 years old, admitted to Maseno School on 17/01/2024. He is now in Form 3. On 7/6/2026 he, together with others emptied several fire extinguishers belonging to the School.
11. On 8/6/2026, he was “permitted” to be out of school the reason given was for “suspect for plan to burn dormitories”. This is according to the document that permitted his exit from School. There was no return date given.
12. On the 25/6/2026, the School Administration wrote to the Petitioner’s mother communicating to her that the Petitioner had been suspended. It invited her and the Petitioner to appear before the disciplinary committee of the school on 6/7/2026 at 2:00pm for disciplinary hearing.
13. After hearing the Petitioner, that Committee found that the Petitioner had on the day complained of pressed the safety pin of a fire extinguisher and thereby emptied its content. That was damage to School property and it recommended that the issue be escalated to the Disciplinary Sub-Committee of the Board of Management. No date was given for that appearance.
14. On 22/7/2026, the School wrote to the Petitioner’s mother advising that the Disciplinary Sub-committee of the Board of Management was to meet on 27/7/2026. It invited her and the Petitioner to appear thereat. On that date, the Petitioner and the mother duly attended the said meeting at 11:21am in the School Boardroom.
15. After deliberations, the said Committee decided that:-
“Because of his security and that of other students and threats issued by other students, the Committee has extended the student’s suspension until when the full B.O.M would sit and determine his case.”
16. Faced with the foregoing, on 19/8/2026, the Petitioner came to this Court alleging that his rights had been infringed by the violation of Articles 43(1)(f), 47 and 53 of the Constitution. He sought various declarations and other orders including one of immediate re-admission to school.
17. Contemporaneous with the Petition, he lodged a Motion on Notice of even date and sought two substantive prayers; an order for re-admission back to school (though prayed in the negative) and an order for disclosure of the outcome of the meeting of 6/7/2026 and accounts of the utilization of the monies he had paid for term 2 and a written catch-up/remedial plan for the syllabus and course work which he had missed during the period of his absence. These prayers were sought in the interim pending the determination of the Petition.
18. He contended that he and his mother had duly attended the disciplinary proceedings but he had not been told the outcome of the meeting of 22/7/2026. That his Mother had complained to the Ministry on 22/7/2026 but there had been no response. That the respondents had written on 5/8/2026 stating that he was to be subjected to further disciplinary hearing by the Board of Management (“BOM”) at a future an undisclosed date. That the 3rd School term was commencing on 24/8/2026 and he was still uncertain of his status and risked missing another School term.
19. Ms. Awuor, Learned Counsel for the Petitioner submitted that the Petitioner had never had any previous disciplinary issues. He was 15 years old and his mental wellbeing was being affected by his prolonged absence from school. He is in the last class of the former 8-4-4 system. That if he loses the 3rd school term, then he will be unable to join Form 4 next year and that will be the end of his studies.
20. The respondents opposed the Motion vide the Replying Affidavit of Dominic Ojenda, the Deputy Principal of the School. He deposed that on 7/6/2026, the School received reports from students that 5 students, including the Petitioner, had emptied fire extinguishers in a pre-meditated attempt to burn the school and prompt the administration to close the school following closure of other schools.
21. That because of the magnitude of the issue and wave of arson attacks in schools then prevailing in the country, the School released the students on 8/6/2026 to their parents as the other students had threatened to beat them and their continued stay was life threatening. He confirmed the suspension of 25/6/2026, the disciplinary proceedings of 6/7/2026 and 27/7/2026, respectively. That the matter had been referred to the full Board for consideration. This was communicated on 6/8/2026 to the Petitioner’s mother. That the School closed on the 29/7/2026 to 25/8/2026 and the date for the further disciplinary hearing was yet to be set.
22. That the application was premature as the disciplinary process was still ongoing. That the same was being conducted in line with the Regulations and once a decision is made, the same will be communicated to the County Director. That there was acrimony between the Petitioner and other students who view him as a threat and they are likely to harm him. That the Petitioner will have an opportunity to appeal any decision arrived at.
23. Ms. Jumma, Learned Counsel for the respondents submitted that suspension of the Petitioner was not a breach of a child’s right to education. She cited the case of A.O.J –vs- Board of Management of NHS [2018] KEHC No.2710 (KLR) for that proposition.
24. That the disciplinary process was being undertaken strictly in accordance with the procedures stipulated in the Statute and Regulations. That the Petitioner had not yet been excluded. That the Orders sought were in the nature of a mandatory injunction yet there were no special circumstances that existed to warrant granting the same. That the BOM meets 3 times a year and she did not know when it would meet next.
25. I have considered the Petition, the rival averments and submissions by Learned Counsel. This is an application for Conservatory Orders. In Centre for Rights Education and Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 Others [2017] eKLR , the court held: -
“A party who moves the court seeking Conservatory Orders must show to the satisfaction of the court that his or her right are under a threat of violation, are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedoms and preserve the subject matter pending the hearing and determination of a pending case or Petition.”
26. In Gatirau Peter Munya vs. Dickson Mwende Kithinji & 2 Others [2014] eKLR , the Supreme Court of Kenya held that: -
“Conservatory Orders bear a more decided public-law connotation, for these are orders to facilitate ordered functioning within – public agencies, as well as to uphold the adjudicatory authority of the court, in public interest…
Conservatory Orders consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.”
27. In this regard, the jurisdiction to grant Conservatory Orders emanate from Article 23(3) of the Constitution. They are meant to preserve the status quo and prevent the violation of the Constitution while the Petition is pending. The applicable principles are that an applicant must demonstrate an arguable prima facie case with a likelihood of success, the danger of prejudice must be real, demonstrable and imminent, public interest and public order must be considered and the balance of convenience and irreparable harm must also be considered.
28. Has the Petitioner demonstrated any real arguable prima facie case? From the onset, I will reiterate the words of Nyarangi JA in the case of Nyongesa & Others vs. Egerton University (supra) that, courts are not the disciplinary arena for students. Maintenance of discipline in schools is a cardinal principle in building a Nation. Having disciplined students today is a promise of an organised and patriotic society of tomorrow. The court should always act with restraint before interfering with disciplinary processes in learning institutions.
29. I would also echo the words of Mumbi J (as she then was) in RWT –Vs- SNS School [2012] KEHC 5408 KLR (supra ) that issues of discipline in schools are very delicate that should be handled with a lot of care. They not only involve minors, but that they entail character formation for future citizens of the country. Disciplinary issues in Schools are better handled and undertaken by experts, the people endowed with the expertise and functionality to do that work. That is clearly set out in Regulations 38 to 40 of the Regulations.
30. Be that as it may, the Court will not fold its hands where such processes when undertaken, either break the law or undertaken in disregard to the Constitution and the law. The Court will intervene where issues of infringement of fundamental rights and freedoms of any individual student is threatened.
31. In the present case, the wrong doing of the Petitioner, that he destroyed School property is not challenged. Neither is the power of the respondents to undertake disciplinary proceedings is being challenged. What is being challenged is the manner in which that process is being undertaken. That its long, meandering process with no sight of end has infringed the Petitioner’s rights under Articles 43(1)(f), 47 and 53 of the Constitution. That is what is before me.
32. Under Article 43(1) (f), the Petitioner has the right to education. Under Article 47, the Petitioner is entitled to fair administrative action. Article 47 provides: -
“1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given reasons for the action.”
33. In RCK (suing through her mother and next friend KRC) vs. KSI [2014] KEHC 7489 (KLR] , the court observed that: -
“A school disciplinary panel dealing with children’s matters must have the necessary flexibility having regard to the school environment and the child’s rights, to deal with students discipline provided the process is fair …”
34. In the present case, the Petitioner contends that the process undertaken by the respondents is unfair. It has been protracted to his detriment. That he was excluded from school on 8/6/2026 to date, a period of nearly 3 months. That he has lost studies between 8/6/2026 until 29/7/2026 when the school closed. And that there is risk of further losing studies from 25/8/2026, when the Schools were opening to an unknown future date. On their part, the respondents contend that the process is in accordance with the statute and Regulations.
35. The process of exclusion began on 8/6/2026 and to date, it has not ended. It is still in the pipeline as follows: -
a) 8/6/2026 – The Petitioner was excluded until 25/6/2026 when the suspension letter was written to the Mother. That was a period of 17 days.
b) 25/6/2026 – The Petitioner was informed to attend the Internal School Disciplinary Committee on 6/7/2026, (11 days).
c) From 6/7/2026 – Nothing happened until 22/7/2026 when a letter was written informing the Petitioner to attend the Disciplinary Sub-Committee of the BOM on 27/7/2026, (21 days).
d) 5/8/2026 – A letter was issued informing the Petitioner that the BOM will consider his matter at a future undisclosed date. This is ad-infinitum.
36. The period from 8/6/2026 to 5/8/2026 totalled 58 days. Nowhere in the Basic Education Act or in Regulations 38 to 40 are all these processes that were undertaken by the respondents authorized or spelt out. Although the School Rules which the Petitioner signed on 17/01/2024, when he joined the School, indicate that a serious offence such as the one he was facing would attract 14 days suspension, his initial exclusion from 8/6/2026 until when the formal letter of suspension was written on 25/6/2026 was in excess of 14 days. Prima facie therefore, that exclusion was ultra vires and therefore illegal. The moment the period which the School excluded the petitioner for a period exceeding the 14 days allowed by the school rules, that was illegal.
37. From the reading of the provisions of the Regulations, the disciplinary process of a student is supposed to be expeditious. That is why in Regulation 39(5), the decision of the B.O.M is required to be communicated to the County Director of Education within two days.
38. From case law and the Regulations, it is clear that the period between the letter of suspension and the meeting of the B.O.M is to be 14 days. See the cases of Republic –Vs- Board of Management St. Josephs School Rapogi [2019] eKLR & Republic –Vs- B.O.M, Mbaikini Boys High School & Another Exparte AN & 4 others [2021] eKLR.
39. In the present case however, there was no Letter of Suspension in terms of Regulation 38. Such letter of suspension was supposed to ask the Petitioner to appear before the B.O.M on a particular date not more than 14 days from that date. The letter of 25/6/2026 cannot be regarded as a proper letter of suspension under Regulation 38 as it did not satisfy that requirement. It is therefore irregular to the extent that it required the Petitioner to appear before another body not being the BOM.
40. I have carefully considered the School Rules, the Basic Education Act and the Regulations and I have not seen anywhere where a student has to undergo such multiple proceedings ie, internal School Disciplinary Committee, then the Disciplinary Sub-Committee of the B.O.M before appearing before the B.O.M. While having such multi-tiered processes may ensure fairness, the same should be undertaken in less than 14 days when the student is to appear before the BOM. Where such proceedings is undertaken without strict timelines like in the present case, it infringes on the principle of expedition and reasonableness in Article 47 of the Constitution. It leads to wastage of precious study time for a child and not therefore in the best interest of the child.
41. In the present case, there is no Letter by the School Principal under Regulation 38 requiring the student to appear before the B.O.M. The letter of 25/6/2026 required the Petitioner and the Mother to appear before the internal School Disciplinary Committee. His appearance in that Committee and the subsequent sub-committee of the BOM led to the loss of over 52 days of the second term.
42. The letter of 5/8/2026 requiring the Petitioner to appear before the B.O.M on an undisclosed future date which is in excess of 14 days is adding salt to injury. It is an indefinite wait. It amounts to constructive exclusion or expulsion of the Petitioner by adults who are busy in their own daily schedules to the extreme prejudice of the Minor.
43. It is clear from the foregoing that the Petitioner was put in quandary as to what to do by the foregoing processes as well as by the letter of 5/8/2026. He was never given an indication of when the return date before the B.O.M would be. He was left with no option but to come to this Court as there was no decision to appeal against. In that state of anxiety, it is clear that the actions of the respondents had the effect of infringing on the Petitioner’s right to education and expeditious determination of the disciplinary process.
44. On the foregoing, the Court finds that the danger of prejudice is not only imminent, but that the Petitioner has been excluded from class for an unreasonable long time. He has lost what he might not be able to recover. It is in public interest to uphold his right to education and expeditious administrative action.
45. As to the balance of convenience, the respondents contended that the Petitioner’s life will be in danger if he is re-admitted back to School. That is a fallacious contention. If that be the case, then what is the purpose of the alleged proposed future proceedings before the B.O.M? It would seem that the respondents have already made their mind that the Petitioner is to be excluded from the School. These processes may then have been merely cosmetic.
46. Be that as it may, there was no evidence before Court to show that any of the students had threatened or attacked the Petitioner before 8/6/2026 or the days thereafter. The minutes relied on do not show any deposition or the source of such grave conclusions. While the Petitioner’s conduct is unacceptable and abhorrent, he has not been shown to have been of bad character or behaviour before the 6/6/2026. No register of disciplinary cases under Regulation 37 was produced to show his previous misconduct. Neither was it alluded to.
47. I will here echo the words of Muriithi J in G N (Minor suing thorugh G N Father and next Friend) –Vs- Chumani Secondary School Baord of Management [2014] eKLR wherein he stated:-
“The best interest of the child, the student herein, requires that the student be allowed to continue with his studies in the crucial period of his revision for his final examinations in his secondary school education. The defendant/respondent’s concern or the security of the other student, or of the student upon return of the student to the school cannot override the paramountcy of the student’s right to education and his best interests in pursuing education qualifications…”
48. In this case, it is the respondents’ duty to offer such security as shall be necessary to both the Petitioner as well as the other students under their case. The School is not a crime zone, neither is it an institution without rules and regulations. It has tradition.
49. The order for re-admission is in the nature of mandatory injunction. Special circumstances exist in this case to warrant it’s issuance as follows; the Petitioner has so far been excluded from studies for far too long, (approximately 86 days); with the unknown return date for the B.O.M meeting, there is the likelihood of him missing a good part of the 3rd term; he is in Form 3 which is the last class in the former 8-4-4 system. Unless he immediately returns to class and catches up with the others, he may not enter Form 4 next year. That will be the end of the road for him as for his basic education. That will not be in his best interest or in public interest. He is only a minor of 15year old and society must oversee his future. Accordingly, the balance of convenience lies in granting the Order for re-admission.
50. For the foregoing reasons, the application succeeds and the Court makes the following orders: -
a) Pending the hearing and determination of the Petition, the respondents are hereby directed to forthwith re-admit the Petitioner JOHN RANSLEY ODABA to school and are restrained, whether by themselves, their agents, employees or servants from whatsoever and howsoever barring, excluding or preventing him from attending classes, sitting examinations or accessing any school facility at Maseno School.
b) The Petitioner to pay forthwith any outstanding school fees for his re-admission.
c) The costs shall abide the outcome of the Petition.
It is so ordered.
“1) Every child has the right:-
a) …
b) to free and compulsory basic education.
2) A child’s best interest are of paramount importance in every matter concerning the child.”
2. The above right is crystalized by the Basic Education Act, Cap 211. Section 35 thereof provides:-
“(1) Pupils shall be given appropriate incentives to learn and complete basic education.
(2) No pupil admitted in a school, subject to subsection (3) shall be held back in any class or expelled from school.
(3) Subject to subsection (1) the Cabinet Secretary may make regulations to prescribe expulsion or the discipline of a delinquent pupil for whom all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity of being heard:
Provided that such a pupil shall be admitted to an institution that focuses on correction in the context of education”.
3. Vide Legal Notice No. 39 of 2015, The Basic Education Regulations (“the Regulations”) were enacted. They provided for, inter alia, disciplinary procedures for students. Regulation 38 provides: -
“If the head of the institution is of the opinion that—
(a) the acts of indiscipline have persisted in spite of the warnings or corrective measures taken under these regulations; and
(b) if the act of indiscipline is likely to threaten the safety of the other learners in the institution, the head of the institution shall issue the learner, with a suspension letter addressed to the parent or guardian indicating the nature of the indiscipline and specifying the date the learner, accompanied by the parent or guardian is required to appear before the Board of Management of the institution.”
4. Regulation 39 provides : -
“(1) The particulars of the complaint preferred against the learner shall be read out to the parent or guardian and the learner at the meeting with the Board of Management under regulation 38, and the learner shall be asked to defend himself or herself.
(2) …
(3) …
(4) In all disciplinary proceedings affecting a learner, the attendance of the Sub-county Education Officer shall be mandatory.
(5) The recommendations of the Board of Management shall within two days be communicated to the County Director or Education.”
5. Section 8 of the Children’s Act, Cap 141 provides : -
“(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—
(a) the best interests of the child shall be the primary consideration;
(b) …”
6. In Nyongesa & Others -Vs- Egerton University [1990] KLR 692 , the Court of Appeal observed: -
“Having thus stated, as I think to be desirable, the broad nature of the important issues and proposed procedure, I shall now state that courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies. Courts have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when courts are moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side”.
This state applies with full force and measure to school environment.
7. In RWT (suing through next friend and grandmother BGN) –vs- SNS School [2012] KEHC 5408 (KLR), the court observed: -
“I am aware that discipline in school is a delicate and sensitive matter both for the parents and the school authority. Both institutions, the parent and school, bear special responsibility to nurture the child by providing an environment where his potential can be realized so that he becomes a responsible citizen.
Article 53 of our Constitution now recognizes the general principle that the best interests of the children is the paramount consideration in any matter concerning children. … in a school environment, it is the welfare of all the children that must be taken into account rather than one deviant child who has a disciplinary problem. But there is also a responsibility to be borne in respect of that one child, one that flows from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of the other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution.
I am also alive to the fact that this court is not a disciplinary institution for children. The role of the court when moved under the provisions of Article 22 is to enforce fundamental rights and freedoms provided in the Bill of Rights.
In taking this responsibility, I must weigh all these facts and circumstances and consider what is in the best interest of the child.”
8. From the foregoing, it is clear how central the doctrine of best interest of the child is in matters touching on children. It is a Constitutional principle under Article 53. It has been embedded in both the Children’s Act, Cap 141, 2022 and the Basic Education Act Cap 211. It entails that whatever is done that affects a child, “it is to be to the child’s greatest benefit, it is that which best advances the child’s welfare”. BLACKS LAW DICTIONARY TENTH Edn, 1995 .
9. It also shows how courts have to be very circumspect when it comes to matters touching discipline of children in learning institutions. That the courts must be very careful in weighing the public interest of maintaining discipline in our learning institutions as well as the individual student’s rights under the Constitution and the law.
10. John Ransley Odaba (“the Petitioner”) is a minor. He is said to be 15 years old, admitted to Maseno School on 17/01/2024. He is now in Form 3. On 7/6/2026 he, together with others emptied several fire extinguishers belonging to the School.
11. On 8/6/2026, he was “permitted” to be out of school the reason given was for “suspect for plan to burn dormitories”. This is according to the document that permitted his exit from School. There was no return date given.
12. On the 25/6/2026, the School Administration wrote to the Petitioner’s mother communicating to her that the Petitioner had been suspended. It invited her and the Petitioner to appear before the disciplinary committee of the school on 6/7/2026 at 2:00pm for disciplinary hearing.
13. After hearing the Petitioner, that Committee found that the Petitioner had on the day complained of pressed the safety pin of a fire extinguisher and thereby emptied its content. That was damage to School property and it recommended that the issue be escalated to the Disciplinary Sub-Committee of the Board of Management. No date was given for that appearance.
14. On 22/7/2026, the School wrote to the Petitioner’s mother advising that the Disciplinary Sub-committee of the Board of Management was to meet on 27/7/2026. It invited her and the Petitioner to appear thereat. On that date, the Petitioner and the mother duly attended the said meeting at 11:21am in the School Boardroom.
15. After deliberations, the said Committee decided that:-
“Because of his security and that of other students and threats issued by other students, the Committee has extended the student’s suspension until when the full B.O.M would sit and determine his case.”
16. Faced with the foregoing, on 19/8/2026, the Petitioner came to this Court alleging that his rights had been infringed by the violation of Articles 43(1)(f), 47 and 53 of the Constitution. He sought various declarations and other orders including one of immediate re-admission to school.
17. Contemporaneous with the Petition, he lodged a Motion on Notice of even date and sought two substantive prayers; an order for re-admission back to school (though prayed in the negative) and an order for disclosure of the outcome of the meeting of 6/7/2026 and accounts of the utilization of the monies he had paid for term 2 and a written catch-up/remedial plan for the syllabus and course work which he had missed during the period of his absence. These prayers were sought in the interim pending the determination of the Petition.
18. He contended that he and his mother had duly attended the disciplinary proceedings but he had not been told the outcome of the meeting of 22/7/2026. That his Mother had complained to the Ministry on 22/7/2026 but there had been no response. That the respondents had written on 5/8/2026 stating that he was to be subjected to further disciplinary hearing by the Board of Management (“BOM”) at a future an undisclosed date. That the 3rd School term was commencing on 24/8/2026 and he was still uncertain of his status and risked missing another School term.
19. Ms. Awuor, Learned Counsel for the Petitioner submitted that the Petitioner had never had any previous disciplinary issues. He was 15 years old and his mental wellbeing was being affected by his prolonged absence from school. He is in the last class of the former 8-4-4 system. That if he loses the 3rd school term, then he will be unable to join Form 4 next year and that will be the end of his studies.
20. The respondents opposed the Motion vide the Replying Affidavit of Dominic Ojenda, the Deputy Principal of the School. He deposed that on 7/6/2026, the School received reports from students that 5 students, including the Petitioner, had emptied fire extinguishers in a pre-meditated attempt to burn the school and prompt the administration to close the school following closure of other schools.
21. That because of the magnitude of the issue and wave of arson attacks in schools then prevailing in the country, the School released the students on 8/6/2026 to their parents as the other students had threatened to beat them and their continued stay was life threatening. He confirmed the suspension of 25/6/2026, the disciplinary proceedings of 6/7/2026 and 27/7/2026, respectively. That the matter had been referred to the full Board for consideration. This was communicated on 6/8/2026 to the Petitioner’s mother. That the School closed on the 29/7/2026 to 25/8/2026 and the date for the further disciplinary hearing was yet to be set.
22. That the application was premature as the disciplinary process was still ongoing. That the same was being conducted in line with the Regulations and once a decision is made, the same will be communicated to the County Director. That there was acrimony between the Petitioner and other students who view him as a threat and they are likely to harm him. That the Petitioner will have an opportunity to appeal any decision arrived at.
23. Ms. Jumma, Learned Counsel for the respondents submitted that suspension of the Petitioner was not a breach of a child’s right to education. She cited the case of A.O.J –vs- Board of Management of NHS [2018] KEHC No.2710 (KLR) for that proposition.
24. That the disciplinary process was being undertaken strictly in accordance with the procedures stipulated in the Statute and Regulations. That the Petitioner had not yet been excluded. That the Orders sought were in the nature of a mandatory injunction yet there were no special circumstances that existed to warrant granting the same. That the BOM meets 3 times a year and she did not know when it would meet next.
25. I have considered the Petition, the rival averments and submissions by Learned Counsel. This is an application for Conservatory Orders. In Centre for Rights Education and Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 Others [2017] eKLR , the court held: -
“A party who moves the court seeking Conservatory Orders must show to the satisfaction of the court that his or her right are under a threat of violation, are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedoms and preserve the subject matter pending the hearing and determination of a pending case or Petition.”
26. In Gatirau Peter Munya vs. Dickson Mwende Kithinji & 2 Others [2014] eKLR , the Supreme Court of Kenya held that: -
“Conservatory Orders bear a more decided public-law connotation, for these are orders to facilitate ordered functioning within – public agencies, as well as to uphold the adjudicatory authority of the court, in public interest…
Conservatory Orders consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.”
27. In this regard, the jurisdiction to grant Conservatory Orders emanate from Article 23(3) of the Constitution. They are meant to preserve the status quo and prevent the violation of the Constitution while the Petition is pending. The applicable principles are that an applicant must demonstrate an arguable prima facie case with a likelihood of success, the danger of prejudice must be real, demonstrable and imminent, public interest and public order must be considered and the balance of convenience and irreparable harm must also be considered.
28. Has the Petitioner demonstrated any real arguable prima facie case? From the onset, I will reiterate the words of Nyarangi JA in the case of Nyongesa & Others vs. Egerton University (supra) that, courts are not the disciplinary arena for students. Maintenance of discipline in schools is a cardinal principle in building a Nation. Having disciplined students today is a promise of an organised and patriotic society of tomorrow. The court should always act with restraint before interfering with disciplinary processes in learning institutions.
29. I would also echo the words of Mumbi J (as she then was) in RWT –Vs- SNS School [2012] KEHC 5408 KLR (supra ) that issues of discipline in schools are very delicate that should be handled with a lot of care. They not only involve minors, but that they entail character formation for future citizens of the country. Disciplinary issues in Schools are better handled and undertaken by experts, the people endowed with the expertise and functionality to do that work. That is clearly set out in Regulations 38 to 40 of the Regulations.
30. Be that as it may, the Court will not fold its hands where such processes when undertaken, either break the law or undertaken in disregard to the Constitution and the law. The Court will intervene where issues of infringement of fundamental rights and freedoms of any individual student is threatened.
31. In the present case, the wrong doing of the Petitioner, that he destroyed School property is not challenged. Neither is the power of the respondents to undertake disciplinary proceedings is being challenged. What is being challenged is the manner in which that process is being undertaken. That its long, meandering process with no sight of end has infringed the Petitioner’s rights under Articles 43(1)(f), 47 and 53 of the Constitution. That is what is before me.
32. Under Article 43(1) (f), the Petitioner has the right to education. Under Article 47, the Petitioner is entitled to fair administrative action. Article 47 provides: -
“1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given reasons for the action.”
33. In RCK (suing through her mother and next friend KRC) vs. KSI [2014] KEHC 7489 (KLR] , the court observed that: -
“A school disciplinary panel dealing with children’s matters must have the necessary flexibility having regard to the school environment and the child’s rights, to deal with students discipline provided the process is fair …”
34. In the present case, the Petitioner contends that the process undertaken by the respondents is unfair. It has been protracted to his detriment. That he was excluded from school on 8/6/2026 to date, a period of nearly 3 months. That he has lost studies between 8/6/2026 until 29/7/2026 when the school closed. And that there is risk of further losing studies from 25/8/2026, when the Schools were opening to an unknown future date. On their part, the respondents contend that the process is in accordance with the statute and Regulations.
35. The process of exclusion began on 8/6/2026 and to date, it has not ended. It is still in the pipeline as follows: -
a) 8/6/2026 – The Petitioner was excluded until 25/6/2026 when the suspension letter was written to the Mother. That was a period of 17 days.
b) 25/6/2026 – The Petitioner was informed to attend the Internal School Disciplinary Committee on 6/7/2026, (11 days).
c) From 6/7/2026 – Nothing happened until 22/7/2026 when a letter was written informing the Petitioner to attend the Disciplinary Sub-Committee of the BOM on 27/7/2026, (21 days).
d) 5/8/2026 – A letter was issued informing the Petitioner that the BOM will consider his matter at a future undisclosed date. This is ad-infinitum.
36. The period from 8/6/2026 to 5/8/2026 totalled 58 days. Nowhere in the Basic Education Act or in Regulations 38 to 40 are all these processes that were undertaken by the respondents authorized or spelt out. Although the School Rules which the Petitioner signed on 17/01/2024, when he joined the School, indicate that a serious offence such as the one he was facing would attract 14 days suspension, his initial exclusion from 8/6/2026 until when the formal letter of suspension was written on 25/6/2026 was in excess of 14 days. Prima facie therefore, that exclusion was ultra vires and therefore illegal. The moment the period which the School excluded the petitioner for a period exceeding the 14 days allowed by the school rules, that was illegal.
37. From the reading of the provisions of the Regulations, the disciplinary process of a student is supposed to be expeditious. That is why in Regulation 39(5), the decision of the B.O.M is required to be communicated to the County Director of Education within two days.
38. From case law and the Regulations, it is clear that the period between the letter of suspension and the meeting of the B.O.M is to be 14 days. See the cases of Republic –Vs- Board of Management St. Josephs School Rapogi [2019] eKLR & Republic –Vs- B.O.M, Mbaikini Boys High School & Another Exparte AN & 4 others [2021] eKLR.
39. In the present case however, there was no Letter of Suspension in terms of Regulation 38. Such letter of suspension was supposed to ask the Petitioner to appear before the B.O.M on a particular date not more than 14 days from that date. The letter of 25/6/2026 cannot be regarded as a proper letter of suspension under Regulation 38 as it did not satisfy that requirement. It is therefore irregular to the extent that it required the Petitioner to appear before another body not being the BOM.
40. I have carefully considered the School Rules, the Basic Education Act and the Regulations and I have not seen anywhere where a student has to undergo such multiple proceedings ie, internal School Disciplinary Committee, then the Disciplinary Sub-Committee of the B.O.M before appearing before the B.O.M. While having such multi-tiered processes may ensure fairness, the same should be undertaken in less than 14 days when the student is to appear before the BOM. Where such proceedings is undertaken without strict timelines like in the present case, it infringes on the principle of expedition and reasonableness in Article 47 of the Constitution. It leads to wastage of precious study time for a child and not therefore in the best interest of the child.
41. In the present case, there is no Letter by the School Principal under Regulation 38 requiring the student to appear before the B.O.M. The letter of 25/6/2026 required the Petitioner and the Mother to appear before the internal School Disciplinary Committee. His appearance in that Committee and the subsequent sub-committee of the BOM led to the loss of over 52 days of the second term.
42. The letter of 5/8/2026 requiring the Petitioner to appear before the B.O.M on an undisclosed future date which is in excess of 14 days is adding salt to injury. It is an indefinite wait. It amounts to constructive exclusion or expulsion of the Petitioner by adults who are busy in their own daily schedules to the extreme prejudice of the Minor.
43. It is clear from the foregoing that the Petitioner was put in quandary as to what to do by the foregoing processes as well as by the letter of 5/8/2026. He was never given an indication of when the return date before the B.O.M would be. He was left with no option but to come to this Court as there was no decision to appeal against. In that state of anxiety, it is clear that the actions of the respondents had the effect of infringing on the Petitioner’s right to education and expeditious determination of the disciplinary process.
44. On the foregoing, the Court finds that the danger of prejudice is not only imminent, but that the Petitioner has been excluded from class for an unreasonable long time. He has lost what he might not be able to recover. It is in public interest to uphold his right to education and expeditious administrative action.
45. As to the balance of convenience, the respondents contended that the Petitioner’s life will be in danger if he is re-admitted back to School. That is a fallacious contention. If that be the case, then what is the purpose of the alleged proposed future proceedings before the B.O.M? It would seem that the respondents have already made their mind that the Petitioner is to be excluded from the School. These processes may then have been merely cosmetic.
46. Be that as it may, there was no evidence before Court to show that any of the students had threatened or attacked the Petitioner before 8/6/2026 or the days thereafter. The minutes relied on do not show any deposition or the source of such grave conclusions. While the Petitioner’s conduct is unacceptable and abhorrent, he has not been shown to have been of bad character or behaviour before the 6/6/2026. No register of disciplinary cases under Regulation 37 was produced to show his previous misconduct. Neither was it alluded to.
47. I will here echo the words of Muriithi J in G N (Minor suing thorugh G N Father and next Friend) –Vs- Chumani Secondary School Baord of Management [2014] eKLR wherein he stated:-
“The best interest of the child, the student herein, requires that the student be allowed to continue with his studies in the crucial period of his revision for his final examinations in his secondary school education. The defendant/respondent’s concern or the security of the other student, or of the student upon return of the student to the school cannot override the paramountcy of the student’s right to education and his best interests in pursuing education qualifications…”
48. In this case, it is the respondents’ duty to offer such security as shall be necessary to both the Petitioner as well as the other students under their case. The School is not a crime zone, neither is it an institution without rules and regulations. It has tradition.
49. The order for re-admission is in the nature of mandatory injunction. Special circumstances exist in this case to warrant it’s issuance as follows; the Petitioner has so far been excluded from studies for far too long, (approximately 86 days); with the unknown return date for the B.O.M meeting, there is the likelihood of him missing a good part of the 3rd term; he is in Form 3 which is the last class in the former 8-4-4 system. Unless he immediately returns to class and catches up with the others, he may not enter Form 4 next year. That will be the end of the road for him as for his basic education. That will not be in his best interest or in public interest. He is only a minor of 15year old and society must oversee his future. Accordingly, the balance of convenience lies in granting the Order for re-admission.
50. For the foregoing reasons, the application succeeds and the Court makes the following orders: -
a) Pending the hearing and determination of the Petition, the respondents are hereby directed to forthwith re-admit the Petitioner JOHN RANSLEY ODABA to school and are restrained, whether by themselves, their agents, employees or servants from whatsoever and howsoever barring, excluding or preventing him from attending classes, sitting examinations or accessing any school facility at Maseno School.
b) The Petitioner to pay forthwith any outstanding school fees for his re-admission.
c) The costs shall abide the outcome of the Petition.
It is so ordered.