REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CONSTITUTIONAL PETITION CASE NO.E004 OF 2025
IN THE MATTER OF ARTICLES 2, 10, 19, 20(1-4), 21(1) & (2)(a), 23(1) & (3), 27, 35(1), 43(1)(f), 47(1) & (2), 48, 50, 53(1) (B), 53(2), 159, 165, 258(1) & (2)(b), and 259(1) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 24, 25, 27, 28, 29, 35, 43, 47, 48 AND 50(1)(2) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF ALLEGED CONTRAVNETION OF SECTIONS 4, 35 AND 36 OF THE BASIC EDUCATION ACT, CAP.211 AND REGULATION 38 AND 39 OF THE BASIC EDUCATION REGULATINS, 2015.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTIONS 8 AND 13 OF THE CHILDREN ACT, CAP.141.
BETWEEN
M.N.C. ( a minor suing through his father and next friend )
NATHAN NGALA CHIVATSI…………………………………...............PETITIONER/APPLICANT
VERSUS
BOARD OF MANAGEMENT,
TENGES BOYS HIGH SCHOOL, KABARNET………………1 ST RESPONDENT
THE SECRETARY B.O.M./PRINCIPAL,
TENGES BOYS HIGH SCHOOL……………………………2 ND RESPONDENT
THE HON. ATTORNEY GENERAL …………………………3 RD RESPONDENT
JUDGMENT
1. The Petitioner herein - M. N. C. was 16 years old boy, student, and KCSE candidate at Tenges Boys High School in 2025 – the material time.
2. According to the Petition and the supporting affidavit sworn by his father and next friend – Nathan Ngala Chivatsi dated and sworn on 10 th June, 2025 respectively the reason for this Petition is ;.
“That on or about 25 th May, 2025 a student unrest occurred at Tenges Boys High School. M. N. C alongside other students was accused by the School Principal or malicious damage to property.
That on the fateful day I received a message from the 2 nd respondent stating to with “someone should come to school urgently. Your son is still giving the school serious problems” I received a text message from the School Principal summoning me to attend an urgent meeting the following day. (Annexed hereto and marked “N.N.C-3” is a copy of the SMS screenshot.
That on May 26 th , 2025 the school principal effected an arrest, hounded and ferried my son alongside 14 other students to Tenges Police Station for incarceration and they were booked at Tenges Police Station vide O.B/13/26/5/2025.
That alongside other students the M.N.C. was placed in temporary custody wherein they were interrogated, upon interrogations allegations of malicious damage of property were dismissed by police and released vide OB/14/26/5/2025.
That in utter discrimination my son was left at the police station wherein I picked him while the other 14 students resumed their studies without any hindrance.
That despite providing explanations, M.N.C. was summarily dismissed from school that day without prior notice, without being afforded a hearing, and without written reasons for his suspension.
That the principal proceeded to remove M.N.C. from school indefinitely without any due process, including failure to involve the Board of Management or the County Education Board.
That M.N.C. has previously been wrongfully targeted and sent home on multiple occasions without proof or prior notification, including once being sent alone from Kabarnet to Kilifi.
Tha t I have consistently paid all school fees for M.N.C., ensuring full compliance with all school financial obligations. That the respondents’ actions have inflicted significant mental distress on M.N.C. resulting in a diagnosis of depression, deteriorating health, and academic decline, thereby affecting his KCSE preparation.”
3. It was further deponed:-
“ That M.N.C maintains his innocence and has never been given an opportunity to be heard in relation to the allegations made against him.
That the actions of the principal and Board of Management have gravely affected M.N.’s self-esteem and self-worth.”
4. On 18 th June, 2025 the court, Ngetich J, (as she then was) granted the following order.
“That a conservatory order is issued staying the 1 st and 2 nd respondents’ decision or action to constructively suspending and/or dismissing the petitioner/applicant herein from school on the basis of an alleged form of indiscipline that was never proved by the respondents .
The court directs the respondent to forthwith, immediately and unconditionally re-admit the petitioner/applicant back to school as boarding student and continue with his preparations for his Kenya Certificate of Secondary Education unhindered .”
( emphasis mine)
5. The Respondents were then given time to respond to the application and petition.
6. By 7 th October, 2025 the respondent had not filed any responses despite appearance by Counsel Ms. Tigoi on 15 th July, 2025.
7. On 7 th October, 2025 the Hon Judge noted that since there was no response either way – she would give directions on the hearing of the petition. The directions were that – the petition be heard by way of written submissions. Each party was given time (7 days).
8. On 4 th November, 2025 – Mr. Kamau ( From the office of the Hon Attorney General) appeared for the respondents, Ms. Muiruri for the petitioner. Time for filing of written submissions was extended – and a mention date given for compliance.
9. I took over the matter upon my transfer to Kabarnet High Court.
10. When the matter came before me on 25 th May, 2026 counsel confirmed filing of submissions. I gave them time to highlight – Ms. Muiruri did – Mr. Kamau opted to rely wholly on what was filed.
11. The petitioner seeks the following prayers:-
1. A DECLARATION THAT :-
a) The respondents’ actions of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right to Fair Administrative Action under Articles 27, 28, 29, 35, 43, 48 and 50 (1) (2) of the Constitution and the procedures laid down in the Basic Education Act and Regulations therein.
b) The actions of the respondents’ actions and decision of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right Article 53 of the Constitution of Kenya , the Basic Education Act and the Children Act.
2. JUDICIAL REVIEW by way of:-
a) AN ORDER OF CERTIORARI to remove into the court and quash the decision of the respondents to indefinitely suspend the said petitioner from the 1 st respondent school.
b) AN ORDER OF PROHIBITION directed at the 1 st and 2 nd respondents herein barring them from further causing any mental anguish and cause any accusations to be levied on the petitioner either in its present form or in any intended variation of the said accusations therein akin to the same allegations levied herewith.
c) AN ORDER OF MANDAMUS directed at the respondents herein to order and direct the respondent to forthwith, immediately and unconditionally re-admit the petitioner back to school to continue with his preparations for his Kenya Certificate of Secondary Education unhindered.
3. AN ORDER OF A PERMANENT INJUNCTION restraining the 1 st and 2 nd respondents either by themselves, its servants, employees and/or agents from violating the rights of the minor espoused in prayer 1 and 2.
4. AN ORDER for general and aggravated damages including exemplary damages for the contravention of the fundamental rights and freedoms of the petitioner and for the mental anguish suffered due to the unconstitutional acts of the respondents to be assessed by the court.
5. Costs of the petition to be jointly born by the 1 st and 2 nd respondents.
6. Any other order that this honourable court may deem just and fit in the circumstances.
12. It is submitted for the petitioner that the petition is undefended as the respondents did not file any responses to the averments of the petitioner.
13. I have carefully considered the petition, and the submissions –both written, and the highlights – and the issues for determinations are:
1) Whether the petitioner was wrongfully and maliciously suspended without any form of due process and whether that act violated the petitioners’ rights under Article 27, 28, 43(1) (f) 47, 50(1) & 53 of the Constitution.
2) What is the legal effect of failure by respondent to file replying affidavit?
3) Whether the petitioner is entitled to an award of General and Aggravated damages.
4) Who should pay the damages, and the costs of the petition?
14. On the legal effect of failure by respondents, to file a replying affidavit to the petitioner. The Hon. A.G. entered appearance on behalf of the three respondents and filed written submissions dated 20 th January, 2026. There was no replying affidavit.
The petitioner submitted that the said failure was an admission of the facts averred in the supporting affidavit. It is submitted that the respondent was obligated to file a reply to the petition vide Rule 15 of the Constitution of Kenya ( Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 (Mutunga Rules ).
15. The petitioner cautions the court that there is a distinction between the admission of the claim and admission of the facts supporting the claim. For this proposition the petitioner relies on Daniel Kibet Mutai & 9 others –vs- AG [2019] KECA 125 (KLR). The Court of Appeal found that the filing of grounds of opposition amounted to opposition of the claim and therefore there was no admission of the claim.
16. However, that the failure by the respondents to file replying affidavit to challenge the appellant’s affidavits, the facts in their affidavits were “ essentially admitted ” – The Court of Appeal held that the judge had erred in rejecting the affidavit evidence “……as they formed an appropriate basis for the claim.”
17. The Petitioner cited Philip Tirop Kitur –vs- AG [2018] KEHC 7492 (KLR) where both courts faced with a similar situation where the Respondent failed to file a replying affidavit found that that was failure to adduce evidence on the part of that respondent, and the evidence adduced by the petitioner was uncontroverted, unchallenged, and hence the facts set therein were admitted.
18. It is submitted that the petitioner has discharged the burden of proof – the evidential obligation through the affidavit and the documentary evidence. That in Daniel Kibet Mutai & 9 others the court found that the facts deposed not having been denied, was appropriate basis from the claim. This court is urged to be properly guided.
19. On the part of the respondents, it was submitted that the petitioner ought to have filed a civil suit where each party would have tendered evidence and been cross-examined on the same rather than relying on affidavits. It was argued that if the prayers sought in their application were granted the prayers would in effect violate the rights of the respondents, in effect “forcing them to reinstate a student into the school disregarding the rights of the other students and teachers.”
20. It was further submitted that that “A school or any other institution of learning is entitled to dispense with the presence of any student who has through a pattern of behavior proven to be unruly, undisciplined, a danger to his or her fellow students and/or teachers or is generally a disruptive influence.”
21. The respondents also submitted that “If a student does anything which is incompatible with the purpose of an institution of learning ... he may be suspended as in this instance or expelled if need be.”
22. It was further submitted that “ The student’s conduct need not be found to be criminal, but sufficient if it is of such a grave and weighty character as to amount to breach of relationship between student and the school.”
23. From the foregoing submissions it was alluded that there was proven evidence the Petitioner had a pattern of behavior that was unruly, undisciplined, and that he was a danger to his fellow students and teachers and generally a disruptive influence . It is also alluded that he had done things that were incompatible with the purpose of Tenges Boys High School as an institution of learning. Further that though his conduct was not criminal it was such of such a grave and weighty character it amounted to breach of his relationship and the school.
24. These were really grave allegations against the Petitioner. These allegations and accusations were made in submissions. They do not emanate from evidence that is was placed before the court. Submissions are not evidence. They can never be evidence. They are founded on the facts, the evidence as produced in court, the law/legal principles, any judicial precedents, the application of the law on the facts. These submissions stood on their own.
25. The petitioner has in the affidavit set out the acts and omissions of the respondents. None is denied/countered or challenged. In that event, I find that the petitioners – the facts in support of the petition remain unchallenged; and I find therefore that the facts are admitted.
26. It is admitted that on 25 th May, 2025 the petitioner was together with 14 other school boys falsely accused of malicious damage of school property.” It is admitted that the petitioner’s parent was summoned to school through a text message from the school principle to “…….come to school urgently. Your son is still giving the school seriouse (sic) trouble ”; it is admitted that the head teacher/principal arrested the petitioner, booked him at Tenges Police Station on the alleged damage to school property vide O.B. 13/26/5/2025, but the police found the allegations to be unfounded and released the him together with the other boys vide O.B.14/26/5/2025.
27. It is admitted that the principal readmitted the other 14 students in school, and abandoned the petitioner abandoned at the police station, denying him re admission.
28. it is admitted that this was constructive suspension/expulsion which was done without a written notice or disciplinary notice or hearing, or even evidence of the involvement of the other requisite school management structures.
29. The submissions by the counsel for the respondents are an indicator that the Petitioner’s complaint that the removal/suspension was part of repeated harassment by the respondents. The School Principal baselessly accused the Petitioner of leading strikes , sent home multiple times ( including a journey from Kabarnet to Mombasa ), without notifying the Petitioner’s parents or following due process, despite payment and clearance of school fees. This unwarranted pattern of harassments by the Respondents led to the demand letter dated May 28 th 2025, requiring reinstatement of the Petitioner and was served on the 1 st and the 2 nd Respondent but received no response.
30. It is on these undisputed facts that this petition will be determined.
31. On the unlawful arrest of the Petitioner, the respondents submitted that the petitioner “….was arrested by police officers after a report by respondent ” . However, no such evidence of arrest by police officers was availed. The evidence on record is that the 2 nd petitioner ( The Principal) arrested the Petitioner with other students, took him to the police station, and booked him in where he was held in the cells until his release later.
32. Hence the authorities cited – James Karuga Kiira –vs- Joseph Mwamburi & Anor – Nairobi C.A. No.171 of 2000 ( unreported ) is distinguishable – there was no police arrest, it was a re-arrest from the principal, there was no prosecution as the police released the petitioner the same day hence the petitioner does not have the burden to prove that the “ prosecution acted unreasonably .” This was a case of the school principal acting without lawful cause. The arrest was malicious, intended to remove the Petitioner from the school without following due process by cooking up a criminal offence which was found to be inexistent. the arrest by the principal was unlawful.
33. Following the release of the Petitioner by the Police the principal and abandoned him at the police station , and denied him admission back to school. It was only after an order for re-admission was made by the court that the Petitioner was readmitted but up to that time he was out of school.
34. By abandoning the Petitioner at the police station, the Principal rendered the Petitioner to be a child in need of care and protection, a criminal offence under the Children Act. This was a minor who was supposed to in school. Whose parents knew he was in school and in whose care and control he was pending his collection by his parents. This action in addition was violated the best interests of the child principle.
35. It was submitted that these actions by Respondents amounted to a comprehensive assault on the petitioner’s constitutional persona.
(1) That the petitioner’s rights to education vide Article 53 (1) (b) were unlawfully terminated – through the constructive expulsion by the 2 nd Respondent. The right to education is a fundamental. it is a right that is fundamental to a child’s future and a key driver to national development. This right is given effect by Section 28 of the Basic Education Act – Cap.211 which guarantees every child free and compulsory basic education.
(2) That the respondent’s action was in violation of Article 53(2) of the Constitution effected by Section 8 of the Children Act Cap.141 , that:-
“(1) in all actions concerning children undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.”
36. The petitioner relied on RWT (suing as next friend of BGN – a minor) –vs SNS School [2012] KEHC 5408 (KLR) where the court held with profound clarity that:
“7.Expulsion or suspension of a child from school may negatively affect him particularly in a situation where he has only one year to finalize high school. That would be contrary to his best interests.”
37. The petitioner also relied on RCK ( A child suing through her mother and next friend KRC ) v KSI [2014] KEHC 7489(KLR ) where the court (Majanja J,) expounded in great detail on what Article 53 (2) of the Constitution means when schools are dealing with cases of alleged indiscipline, and the role of the court under Article 22 of the Constitution.
38. That the school was bound to consider that welfare of all the children in the institution – but also the best interests of the so called “deviant” child that there was a responsibility for this one child flowing from “ the human rights and fundamental freedoms of each individual .”
The learned judge also addressed the question of whether the child was subjected to due process – citing Nyongesa & 4 others –vs- Egerton University College [1990] KECA 51 (KLR). It is submitted that on the strength of these authorities that petitioner was not subjected to due process and his rights were violated.
39. It is further submitted that the 2 nd respondent acted ultra vires his powers – as under Regulations 38 of that Basic Education Regulations 2015 , he could not indefinitely exclude/expel a student – that his power as a principal is limited to issuing a suspension letter. That the Regulations 39 and 40 of the Basic Education Regulations 2015 are mandatory is nature – as they provide the process/procedure that must precede an expulsion.
40. On the purport of the word “ shall” the petitioner relies on Krystalline Salt Ltd –vs- Kenya Revenue Authority [2019] KEHC 6939 (KLR) – that it imports a command/mandate. The action that is preceded by the term ‘shall’ “ is not permissive, it is mandatory ”
41. On whether the action of the 2 nd respondent in re-admitting the other students and leaving out the petitioner was discriminatory the petitioner relies on Peter K. Waweru –vs- R [2006] eKLR on the meaning of discrimination as failure to treat all person equally without any reasonable distinction.
42. On whether the damages: It is submitted that the petitioner is entitled to both general and aggravated and exemplary damages of Ksh.500,000/=, Ksh.300,000/= and Ksh.200,000/= respectively. Reliance is placed on Article 23(3) of the Constitution , which recognizes that a Constitutional violation can be appeased by way of compensation to deter the state and its agents from future infringements.
43. Reliance is also placed on Gitobu Imanyara & 2 others –vs- AG [2016] KECA 557 KLR) where the court stated;
“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”
44. Reliance is also placed on RAB & RAB (Minors suing through their mother and next friend) –vs- P.S Ministry of Education & 2 others where the court accorded General Damages of Ksh.600,000/= and Peter Mauki Kaijenja & 9 others –vs- Chief of Defence Forces & Anor.[2019] KEHC 7530 (KLR) for the proposition that award of General Damages is discretionary and comparable common law measure of damages is a useful guide in assessing amount of compensation.
45. The respondent did not propose any quantum for purposes of compensation. However, the petitioner’s counsel cited Onjira John Anyul –v university of Nairobi [2019] KEHC 10931(KLR) in which the court awarded Ksh.1,000,000/= compensation, E.K. & 5 others –v- The Registered Trustees of S.H.S [2015] KEHC 2692 (KLR) where the court awarded compensation of Kshs.150,000/= and KO ( suing on behalf of OKI) –v- Supreme Council of Kenya t/a Kenya Muslim Academy [2014] KEHC 1672 (KLR) where the court awarded compensation of Kshs.230,000/=.”
46. On aggravated damages it is submitted that this ought to be awarded to address the humiliating, oppressive and high handed nature of the respondent’s conduct. The court is referred to Gitobu Imanyara (above).
47. On exemplary (punitive) Damages:- it is submitted that they are intended to deter others from doing the same thing – the court is referred to KO suing on behalf of OKJ) vs Supreme Court of Muslim Kenya t/a Kenya Muslim Academy to send strong message to school/administrators that the Constitution is not and suggestion and that rights of children are not to be trifled with – that the total sum of Ksh.1,000,000/= is justified in the circumstances of this case.
48. On costs – that under Section 27 of the Civil Procedure Act and Republic –v- Rosemary Wairimu Munene, Ex-parte applicant –v- Ihururu Dairy Farmers Cooperative Society Ltd judicial Review Application No.6 of 2004, Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR) that costs follow the event. The court is urged to allow the petition.
49. The court is urged to find that the respondents have contravened Articles 2, 10, 27, 35(1), 43(1) (f), 47(1) & (2), 53(1)(b), and 53(2) of the Constitution , Sections 4, 18, and 35 of the Basic Education Act, Cap.211, Regulation 36 of the Basic Education Regulations, 2015, Section 4 and 21 of the Children Act, Cap.141, and Section 6 of the Fair Administrative Action Act Cap.7L, by acting in disregard of the Constitution’s supremacy; disregarding national values of rule of law, transparency, and accountability; discriminating against the petitioner through a baseless profiling; denying access to information; violating the right to education; failing to ensure fair administrative action; disregarding the petitioner’s best interests; and failing to involve the Board of Management or notify the County Education Board for the Respondent.
50. For the Respondents on damages, it is submitted that no evidence has been presented to confirm that the petitioner is entitled to the said damages of Ksh.500,000/=. The court is referred to Dalmas B. Ooye –vs- KNTC Ltd NBI CA.125/96 ( unreported ) – that the appellant could not recover damages for mental anguish for unlawful dismissal.
51. On aggravated damages – the same submission is made – and on special damages that none can be made unless specifically pleaded and proved as held in Philemon E. L. Ngogoto –v- Teachers Service Commission NBI HCC NO.1816 of 1990) the court referred to the case of Savannah Development Co. Ltd –v- Post & Telecommunication employees Housing Co-operative Society Ltd.).
ANALYSIS AND DETERMINATION :
52. I have carefully considered the petition, the supporting affidavit and the submissions by counsel.
53. I have already found that the petition was undefended and the facts that support the petition are admitted.
54. The issues for determination are:
i. Whether the respondents violated the petitioner’s rights are set out in the petition.
ii. Whether the petitioner is entitled to damages.
iii. Who is to bear the costs of the petition?
55. Article 260 of the Constitution of Kenya defines child to mean any individual who has not attained the age of 18 years – this is reiterated in the Children Act cap.141 Laws of Kenya.
56. Article 53 of the Constitution provides that the rights of the child – which are also expounded in the Children Act at part II include the right to free and compulsory basic education. Article 53(2) provides for the best interests of the child – that they are of paramount importance in every matter concerning a child.
57. This principle is expounded at Section 8 of the Children Act. Section 8(2) is very specific it binds all institutions and persons acting under any written law – that they shall bear the best interests of the child as the first paramount consideration, even when they need guidance and correction – and s. 8(3) secures the right of the child to be heard.
58. It is not in dispute that the petitioner was “ arrested ” by the 2 nd respondent and taken to a police station – and later expelled from school and only reinstated following a court order. It is not in dispute that the petitioner was abandoned by the 2 nd respondent at the police station until the parent came to pick him.
59. There, glaring as broad as day multiple violations of the rights of the petitioner – his right to education was taken away – just like that – and the 2 nd respondent dropped his responsibility for the child without proper hand over to the parents/guardians – rending the petitioner to become a child in need of care and protection.
60. The Basic Education Act makes it the primary duty of a head teacher to retain pupils in school – to give pupils the incentives to learn, and complete their basic education – and expulsion is prohibited except as provided for by the Regulations. This is what Section 35(1), (2) and (3) of the Act provide. But of importance is that Section 35(3) provides that expulsion/discipline of a delinquent pupil will occur only when all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity to be heard .
61. In this case there was no such hearing. An SMS text was sent to the parent’s phone. Before he could arrive the child was already arrested , taken to the police who released him, and abandoned there exposing him to all manner of danger.
62. According to Regulation 37 of the Basic Education Regulations – the school is expected to maintain a register of undisciplined learners – indicating – “ name, class, category indiscipline, date, warning or any other corrective measures taken by the institution. “In this case – no such evidence was availed to support the allegation that the petitioner was causing “ serious trouble ” and the alleged “trouble” was not even mentioned. As the parent was going to school he was not aware what his child was alleged to have done. It is evident that even up to this time the respondents have not provided any evidence of what the minor is supposed to have done. Regulation 38 is clear what the duty of the principal was, and when, and what he was required to do. It says
38. Suspension letter
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 .
63. There was constructive expulsion of the Petitioner a situation that was only corrected by the court order directing
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IN THE HIGH COURT OF KENYA AT KABARNET
CONSTITUTIONAL PETITION CASE NO.E004 OF 2025
IN THE MATTER OF ARTICLES 2, 10, 19, 20(1-4), 21(1) & (2)(a), 23(1) & (3), 27, 35(1), 43(1)(f), 47(1) & (2), 48, 50, 53(1) (B), 53(2), 159, 165, 258(1) & (2)(b), and 259(1) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 24, 25, 27, 28, 29, 35, 43, 47, 48 AND 50(1)(2) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF ALLEGED CONTRAVNETION OF SECTIONS 4, 35 AND 36 OF THE BASIC EDUCATION ACT, CAP.211 AND REGULATION 38 AND 39 OF THE BASIC EDUCATION REGULATINS, 2015.
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTIONS 8 AND 13 OF THE CHILDREN ACT, CAP.141.
BETWEEN
M.N.C. ( a minor suing through his father and next friend )
NATHAN NGALA CHIVATSI…………………………………...............PETITIONER/APPLICANT
VERSUS
BOARD OF MANAGEMENT,
TENGES BOYS HIGH SCHOOL, KABARNET………………1 ST RESPONDENT
THE SECRETARY B.O.M./PRINCIPAL,
TENGES BOYS HIGH SCHOOL……………………………2 ND RESPONDENT
THE HON. ATTORNEY GENERAL …………………………3 RD RESPONDENT
JUDGMENT
1. The Petitioner herein - M. N. C. was 16 years old boy, student, and KCSE candidate at Tenges Boys High School in 2025 – the material time.
2. According to the Petition and the supporting affidavit sworn by his father and next friend – Nathan Ngala Chivatsi dated and sworn on 10 th June, 2025 respectively the reason for this Petition is ;.
“That on or about 25 th May, 2025 a student unrest occurred at Tenges Boys High School. M. N. C alongside other students was accused by the School Principal or malicious damage to property.
That on the fateful day I received a message from the 2 nd respondent stating to with “someone should come to school urgently. Your son is still giving the school serious problems” I received a text message from the School Principal summoning me to attend an urgent meeting the following day. (Annexed hereto and marked “N.N.C-3” is a copy of the SMS screenshot.
That on May 26 th , 2025 the school principal effected an arrest, hounded and ferried my son alongside 14 other students to Tenges Police Station for incarceration and they were booked at Tenges Police Station vide O.B/13/26/5/2025.
That alongside other students the M.N.C. was placed in temporary custody wherein they were interrogated, upon interrogations allegations of malicious damage of property were dismissed by police and released vide OB/14/26/5/2025.
That in utter discrimination my son was left at the police station wherein I picked him while the other 14 students resumed their studies without any hindrance.
That despite providing explanations, M.N.C. was summarily dismissed from school that day without prior notice, without being afforded a hearing, and without written reasons for his suspension.
That the principal proceeded to remove M.N.C. from school indefinitely without any due process, including failure to involve the Board of Management or the County Education Board.
That M.N.C. has previously been wrongfully targeted and sent home on multiple occasions without proof or prior notification, including once being sent alone from Kabarnet to Kilifi.
Tha t I have consistently paid all school fees for M.N.C., ensuring full compliance with all school financial obligations. That the respondents’ actions have inflicted significant mental distress on M.N.C. resulting in a diagnosis of depression, deteriorating health, and academic decline, thereby affecting his KCSE preparation.”
3. It was further deponed:-
“ That M.N.C maintains his innocence and has never been given an opportunity to be heard in relation to the allegations made against him.
That the actions of the principal and Board of Management have gravely affected M.N.’s self-esteem and self-worth.”
4. On 18 th June, 2025 the court, Ngetich J, (as she then was) granted the following order.
“That a conservatory order is issued staying the 1 st and 2 nd respondents’ decision or action to constructively suspending and/or dismissing the petitioner/applicant herein from school on the basis of an alleged form of indiscipline that was never proved by the respondents .
The court directs the respondent to forthwith, immediately and unconditionally re-admit the petitioner/applicant back to school as boarding student and continue with his preparations for his Kenya Certificate of Secondary Education unhindered .”
( emphasis mine)
5. The Respondents were then given time to respond to the application and petition.
6. By 7 th October, 2025 the respondent had not filed any responses despite appearance by Counsel Ms. Tigoi on 15 th July, 2025.
7. On 7 th October, 2025 the Hon Judge noted that since there was no response either way – she would give directions on the hearing of the petition. The directions were that – the petition be heard by way of written submissions. Each party was given time (7 days).
8. On 4 th November, 2025 – Mr. Kamau ( From the office of the Hon Attorney General) appeared for the respondents, Ms. Muiruri for the petitioner. Time for filing of written submissions was extended – and a mention date given for compliance.
9. I took over the matter upon my transfer to Kabarnet High Court.
10. When the matter came before me on 25 th May, 2026 counsel confirmed filing of submissions. I gave them time to highlight – Ms. Muiruri did – Mr. Kamau opted to rely wholly on what was filed.
11. The petitioner seeks the following prayers:-
1. A DECLARATION THAT :-
a) The respondents’ actions of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right to Fair Administrative Action under Articles 27, 28, 29, 35, 43, 48 and 50 (1) (2) of the Constitution and the procedures laid down in the Basic Education Act and Regulations therein.
b) The actions of the respondents’ actions and decision of suspending and or constructively expelling the minor herein on the basis of an alleged indiscipline is a violation of his right Article 53 of the Constitution of Kenya , the Basic Education Act and the Children Act.
2. JUDICIAL REVIEW by way of:-
a) AN ORDER OF CERTIORARI to remove into the court and quash the decision of the respondents to indefinitely suspend the said petitioner from the 1 st respondent school.
b) AN ORDER OF PROHIBITION directed at the 1 st and 2 nd respondents herein barring them from further causing any mental anguish and cause any accusations to be levied on the petitioner either in its present form or in any intended variation of the said accusations therein akin to the same allegations levied herewith.
c) AN ORDER OF MANDAMUS directed at the respondents herein to order and direct the respondent to forthwith, immediately and unconditionally re-admit the petitioner back to school to continue with his preparations for his Kenya Certificate of Secondary Education unhindered.
3. AN ORDER OF A PERMANENT INJUNCTION restraining the 1 st and 2 nd respondents either by themselves, its servants, employees and/or agents from violating the rights of the minor espoused in prayer 1 and 2.
4. AN ORDER for general and aggravated damages including exemplary damages for the contravention of the fundamental rights and freedoms of the petitioner and for the mental anguish suffered due to the unconstitutional acts of the respondents to be assessed by the court.
5. Costs of the petition to be jointly born by the 1 st and 2 nd respondents.
6. Any other order that this honourable court may deem just and fit in the circumstances.
12. It is submitted for the petitioner that the petition is undefended as the respondents did not file any responses to the averments of the petitioner.
13. I have carefully considered the petition, and the submissions –both written, and the highlights – and the issues for determinations are:
1) Whether the petitioner was wrongfully and maliciously suspended without any form of due process and whether that act violated the petitioners’ rights under Article 27, 28, 43(1) (f) 47, 50(1) & 53 of the Constitution.
2) What is the legal effect of failure by respondent to file replying affidavit?
3) Whether the petitioner is entitled to an award of General and Aggravated damages.
4) Who should pay the damages, and the costs of the petition?
14. On the legal effect of failure by respondents, to file a replying affidavit to the petitioner. The Hon. A.G. entered appearance on behalf of the three respondents and filed written submissions dated 20 th January, 2026. There was no replying affidavit.
The petitioner submitted that the said failure was an admission of the facts averred in the supporting affidavit. It is submitted that the respondent was obligated to file a reply to the petition vide Rule 15 of the Constitution of Kenya ( Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 (Mutunga Rules ).
15. The petitioner cautions the court that there is a distinction between the admission of the claim and admission of the facts supporting the claim. For this proposition the petitioner relies on Daniel Kibet Mutai & 9 others –vs- AG [2019] KECA 125 (KLR). The Court of Appeal found that the filing of grounds of opposition amounted to opposition of the claim and therefore there was no admission of the claim.
16. However, that the failure by the respondents to file replying affidavit to challenge the appellant’s affidavits, the facts in their affidavits were “ essentially admitted ” – The Court of Appeal held that the judge had erred in rejecting the affidavit evidence “……as they formed an appropriate basis for the claim.”
17. The Petitioner cited Philip Tirop Kitur –vs- AG [2018] KEHC 7492 (KLR) where both courts faced with a similar situation where the Respondent failed to file a replying affidavit found that that was failure to adduce evidence on the part of that respondent, and the evidence adduced by the petitioner was uncontroverted, unchallenged, and hence the facts set therein were admitted.
18. It is submitted that the petitioner has discharged the burden of proof – the evidential obligation through the affidavit and the documentary evidence. That in Daniel Kibet Mutai & 9 others the court found that the facts deposed not having been denied, was appropriate basis from the claim. This court is urged to be properly guided.
19. On the part of the respondents, it was submitted that the petitioner ought to have filed a civil suit where each party would have tendered evidence and been cross-examined on the same rather than relying on affidavits. It was argued that if the prayers sought in their application were granted the prayers would in effect violate the rights of the respondents, in effect “forcing them to reinstate a student into the school disregarding the rights of the other students and teachers.”
20. It was further submitted that that “A school or any other institution of learning is entitled to dispense with the presence of any student who has through a pattern of behavior proven to be unruly, undisciplined, a danger to his or her fellow students and/or teachers or is generally a disruptive influence.”
21. The respondents also submitted that “If a student does anything which is incompatible with the purpose of an institution of learning ... he may be suspended as in this instance or expelled if need be.”
22. It was further submitted that “ The student’s conduct need not be found to be criminal, but sufficient if it is of such a grave and weighty character as to amount to breach of relationship between student and the school.”
23. From the foregoing submissions it was alluded that there was proven evidence the Petitioner had a pattern of behavior that was unruly, undisciplined, and that he was a danger to his fellow students and teachers and generally a disruptive influence . It is also alluded that he had done things that were incompatible with the purpose of Tenges Boys High School as an institution of learning. Further that though his conduct was not criminal it was such of such a grave and weighty character it amounted to breach of his relationship and the school.
24. These were really grave allegations against the Petitioner. These allegations and accusations were made in submissions. They do not emanate from evidence that is was placed before the court. Submissions are not evidence. They can never be evidence. They are founded on the facts, the evidence as produced in court, the law/legal principles, any judicial precedents, the application of the law on the facts. These submissions stood on their own.
25. The petitioner has in the affidavit set out the acts and omissions of the respondents. None is denied/countered or challenged. In that event, I find that the petitioners – the facts in support of the petition remain unchallenged; and I find therefore that the facts are admitted.
26. It is admitted that on 25 th May, 2025 the petitioner was together with 14 other school boys falsely accused of malicious damage of school property.” It is admitted that the petitioner’s parent was summoned to school through a text message from the school principle to “…….come to school urgently. Your son is still giving the school seriouse (sic) trouble ”; it is admitted that the head teacher/principal arrested the petitioner, booked him at Tenges Police Station on the alleged damage to school property vide O.B. 13/26/5/2025, but the police found the allegations to be unfounded and released the him together with the other boys vide O.B.14/26/5/2025.
27. It is admitted that the principal readmitted the other 14 students in school, and abandoned the petitioner abandoned at the police station, denying him re admission.
28. it is admitted that this was constructive suspension/expulsion which was done without a written notice or disciplinary notice or hearing, or even evidence of the involvement of the other requisite school management structures.
29. The submissions by the counsel for the respondents are an indicator that the Petitioner’s complaint that the removal/suspension was part of repeated harassment by the respondents. The School Principal baselessly accused the Petitioner of leading strikes , sent home multiple times ( including a journey from Kabarnet to Mombasa ), without notifying the Petitioner’s parents or following due process, despite payment and clearance of school fees. This unwarranted pattern of harassments by the Respondents led to the demand letter dated May 28 th 2025, requiring reinstatement of the Petitioner and was served on the 1 st and the 2 nd Respondent but received no response.
30. It is on these undisputed facts that this petition will be determined.
31. On the unlawful arrest of the Petitioner, the respondents submitted that the petitioner “….was arrested by police officers after a report by respondent ” . However, no such evidence of arrest by police officers was availed. The evidence on record is that the 2 nd petitioner ( The Principal) arrested the Petitioner with other students, took him to the police station, and booked him in where he was held in the cells until his release later.
32. Hence the authorities cited – James Karuga Kiira –vs- Joseph Mwamburi & Anor – Nairobi C.A. No.171 of 2000 ( unreported ) is distinguishable – there was no police arrest, it was a re-arrest from the principal, there was no prosecution as the police released the petitioner the same day hence the petitioner does not have the burden to prove that the “ prosecution acted unreasonably .” This was a case of the school principal acting without lawful cause. The arrest was malicious, intended to remove the Petitioner from the school without following due process by cooking up a criminal offence which was found to be inexistent. the arrest by the principal was unlawful.
33. Following the release of the Petitioner by the Police the principal and abandoned him at the police station , and denied him admission back to school. It was only after an order for re-admission was made by the court that the Petitioner was readmitted but up to that time he was out of school.
34. By abandoning the Petitioner at the police station, the Principal rendered the Petitioner to be a child in need of care and protection, a criminal offence under the Children Act. This was a minor who was supposed to in school. Whose parents knew he was in school and in whose care and control he was pending his collection by his parents. This action in addition was violated the best interests of the child principle.
35. It was submitted that these actions by Respondents amounted to a comprehensive assault on the petitioner’s constitutional persona.
(1) That the petitioner’s rights to education vide Article 53 (1) (b) were unlawfully terminated – through the constructive expulsion by the 2 nd Respondent. The right to education is a fundamental. it is a right that is fundamental to a child’s future and a key driver to national development. This right is given effect by Section 28 of the Basic Education Act – Cap.211 which guarantees every child free and compulsory basic education.
(2) That the respondent’s action was in violation of Article 53(2) of the Constitution effected by Section 8 of the Children Act Cap.141 , that:-
“(1) in all actions concerning children undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.
(2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child; and
(c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.
(3) In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.”
36. The petitioner relied on RWT (suing as next friend of BGN – a minor) –vs SNS School [2012] KEHC 5408 (KLR) where the court held with profound clarity that:
“7.Expulsion or suspension of a child from school may negatively affect him particularly in a situation where he has only one year to finalize high school. That would be contrary to his best interests.”
37. The petitioner also relied on RCK ( A child suing through her mother and next friend KRC ) v KSI [2014] KEHC 7489(KLR ) where the court (Majanja J,) expounded in great detail on what Article 53 (2) of the Constitution means when schools are dealing with cases of alleged indiscipline, and the role of the court under Article 22 of the Constitution.
38. That the school was bound to consider that welfare of all the children in the institution – but also the best interests of the so called “deviant” child that there was a responsibility for this one child flowing from “ the human rights and fundamental freedoms of each individual .”
The learned judge also addressed the question of whether the child was subjected to due process – citing Nyongesa & 4 others –vs- Egerton University College [1990] KECA 51 (KLR). It is submitted that on the strength of these authorities that petitioner was not subjected to due process and his rights were violated.
39. It is further submitted that the 2 nd respondent acted ultra vires his powers – as under Regulations 38 of that Basic Education Regulations 2015 , he could not indefinitely exclude/expel a student – that his power as a principal is limited to issuing a suspension letter. That the Regulations 39 and 40 of the Basic Education Regulations 2015 are mandatory is nature – as they provide the process/procedure that must precede an expulsion.
40. On the purport of the word “ shall” the petitioner relies on Krystalline Salt Ltd –vs- Kenya Revenue Authority [2019] KEHC 6939 (KLR) – that it imports a command/mandate. The action that is preceded by the term ‘shall’ “ is not permissive, it is mandatory ”
41. On whether the action of the 2 nd respondent in re-admitting the other students and leaving out the petitioner was discriminatory the petitioner relies on Peter K. Waweru –vs- R [2006] eKLR on the meaning of discrimination as failure to treat all person equally without any reasonable distinction.
42. On whether the damages: It is submitted that the petitioner is entitled to both general and aggravated and exemplary damages of Ksh.500,000/=, Ksh.300,000/= and Ksh.200,000/= respectively. Reliance is placed on Article 23(3) of the Constitution , which recognizes that a Constitutional violation can be appeased by way of compensation to deter the state and its agents from future infringements.
43. Reliance is also placed on Gitobu Imanyara & 2 others –vs- AG [2016] KECA 557 KLR) where the court stated;
“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”
44. Reliance is also placed on RAB & RAB (Minors suing through their mother and next friend) –vs- P.S Ministry of Education & 2 others where the court accorded General Damages of Ksh.600,000/= and Peter Mauki Kaijenja & 9 others –vs- Chief of Defence Forces & Anor.[2019] KEHC 7530 (KLR) for the proposition that award of General Damages is discretionary and comparable common law measure of damages is a useful guide in assessing amount of compensation.
45. The respondent did not propose any quantum for purposes of compensation. However, the petitioner’s counsel cited Onjira John Anyul –v university of Nairobi [2019] KEHC 10931(KLR) in which the court awarded Ksh.1,000,000/= compensation, E.K. & 5 others –v- The Registered Trustees of S.H.S [2015] KEHC 2692 (KLR) where the court awarded compensation of Kshs.150,000/= and KO ( suing on behalf of OKI) –v- Supreme Council of Kenya t/a Kenya Muslim Academy [2014] KEHC 1672 (KLR) where the court awarded compensation of Kshs.230,000/=.”
46. On aggravated damages it is submitted that this ought to be awarded to address the humiliating, oppressive and high handed nature of the respondent’s conduct. The court is referred to Gitobu Imanyara (above).
47. On exemplary (punitive) Damages:- it is submitted that they are intended to deter others from doing the same thing – the court is referred to KO suing on behalf of OKJ) vs Supreme Court of Muslim Kenya t/a Kenya Muslim Academy to send strong message to school/administrators that the Constitution is not and suggestion and that rights of children are not to be trifled with – that the total sum of Ksh.1,000,000/= is justified in the circumstances of this case.
48. On costs – that under Section 27 of the Civil Procedure Act and Republic –v- Rosemary Wairimu Munene, Ex-parte applicant –v- Ihururu Dairy Farmers Cooperative Society Ltd judicial Review Application No.6 of 2004, Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR) that costs follow the event. The court is urged to allow the petition.
49. The court is urged to find that the respondents have contravened Articles 2, 10, 27, 35(1), 43(1) (f), 47(1) & (2), 53(1)(b), and 53(2) of the Constitution , Sections 4, 18, and 35 of the Basic Education Act, Cap.211, Regulation 36 of the Basic Education Regulations, 2015, Section 4 and 21 of the Children Act, Cap.141, and Section 6 of the Fair Administrative Action Act Cap.7L, by acting in disregard of the Constitution’s supremacy; disregarding national values of rule of law, transparency, and accountability; discriminating against the petitioner through a baseless profiling; denying access to information; violating the right to education; failing to ensure fair administrative action; disregarding the petitioner’s best interests; and failing to involve the Board of Management or notify the County Education Board for the Respondent.
50. For the Respondents on damages, it is submitted that no evidence has been presented to confirm that the petitioner is entitled to the said damages of Ksh.500,000/=. The court is referred to Dalmas B. Ooye –vs- KNTC Ltd NBI CA.125/96 ( unreported ) – that the appellant could not recover damages for mental anguish for unlawful dismissal.
51. On aggravated damages – the same submission is made – and on special damages that none can be made unless specifically pleaded and proved as held in Philemon E. L. Ngogoto –v- Teachers Service Commission NBI HCC NO.1816 of 1990) the court referred to the case of Savannah Development Co. Ltd –v- Post & Telecommunication employees Housing Co-operative Society Ltd.).
ANALYSIS AND DETERMINATION :
52. I have carefully considered the petition, the supporting affidavit and the submissions by counsel.
53. I have already found that the petition was undefended and the facts that support the petition are admitted.
54. The issues for determination are:
i. Whether the respondents violated the petitioner’s rights are set out in the petition.
ii. Whether the petitioner is entitled to damages.
iii. Who is to bear the costs of the petition?
55. Article 260 of the Constitution of Kenya defines child to mean any individual who has not attained the age of 18 years – this is reiterated in the Children Act cap.141 Laws of Kenya.
56. Article 53 of the Constitution provides that the rights of the child – which are also expounded in the Children Act at part II include the right to free and compulsory basic education. Article 53(2) provides for the best interests of the child – that they are of paramount importance in every matter concerning a child.
57. This principle is expounded at Section 8 of the Children Act. Section 8(2) is very specific it binds all institutions and persons acting under any written law – that they shall bear the best interests of the child as the first paramount consideration, even when they need guidance and correction – and s. 8(3) secures the right of the child to be heard.
58. It is not in dispute that the petitioner was “ arrested ” by the 2 nd respondent and taken to a police station – and later expelled from school and only reinstated following a court order. It is not in dispute that the petitioner was abandoned by the 2 nd respondent at the police station until the parent came to pick him.
59. There, glaring as broad as day multiple violations of the rights of the petitioner – his right to education was taken away – just like that – and the 2 nd respondent dropped his responsibility for the child without proper hand over to the parents/guardians – rending the petitioner to become a child in need of care and protection.
60. The Basic Education Act makes it the primary duty of a head teacher to retain pupils in school – to give pupils the incentives to learn, and complete their basic education – and expulsion is prohibited except as provided for by the Regulations. This is what Section 35(1), (2) and (3) of the Act provide. But of importance is that Section 35(3) provides that expulsion/discipline of a delinquent pupil will occur only when all other corrective measures have been exhausted and only after such child and parent or guardian have been afforded an opportunity to be heard .
61. In this case there was no such hearing. An SMS text was sent to the parent’s phone. Before he could arrive the child was already arrested , taken to the police who released him, and abandoned there exposing him to all manner of danger.
62. According to Regulation 37 of the Basic Education Regulations – the school is expected to maintain a register of undisciplined learners – indicating – “ name, class, category indiscipline, date, warning or any other corrective measures taken by the institution. “In this case – no such evidence was availed to support the allegation that the petitioner was causing “ serious trouble ” and the alleged “trouble” was not even mentioned. As the parent was going to school he was not aware what his child was alleged to have done. It is evident that even up to this time the respondents have not provided any evidence of what the minor is supposed to have done. Regulation 38 is clear what the duty of the principal was, and when, and what he was required to do. It says
38. Suspension letter
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 .
63. There was constructive expulsion of the Petitioner a situation that was only corrected by the court order directing
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