Introduction
1. The Petition herein , dated 11th March 2026, relates the 2025 Kenya Certificate of Secondary Education results for Centre No. 28575201, Kabokyek Adventist Secondary School.
2. The Petitioners are challenging the Respondent’s decision, which was communicated in a letter dated 26 January 2026. The letter informed the School that the candidates’ results had been reviewed and confirmed as correct in both the system and the centre’s printout.
3. The Petitioners mainly argue that the Respondent, as the public body in charge of national examinations, did not give enough reasons or share the records and materials it used. They say this made the decision unclear, unreasonable, and unfair.
4. The Respondent opposes the Petition. In a Replying Affidavit by Andrew Francis Otieno, Acting Director of Research, Quality Assurance and Planning, the Respondent argues that the Petition does not have authority for a representative suit, is not clear about the alleged constitutional violations, and that the Petitioners did not use the process under the Access to Information Act. The Respondent also says the results were properly reviewed and confirmed as correct.
The Petitioners’ Case
5. The 1st Petitioner is the Board of Management of Kabokyek Adventist Secondary School. The 2nd to 5th Petitioners are parents or guardians of candidates who took the 2025 KCSE examination at the School. The 6th and 7th Petitioners are former candidates who sat for both the 2024 and 2025 KCSE examinations at the same centre.
6. The Petitioners state that on 9 January 2026, the Cabinet Secretary for Education officially released the 2025 KCSE results. Thereafter, the Respondent posted and sent the results to the examination centres.
7. Kabokyek Adventist Secondary School received results for 65 candidates, with an average grade of about 3.51, which is a D. The records show that none of the candidates got grades A, A-, B+, B, B-, or C+. One candidate got a C, five got C-, twenty-seven got D+, twenty-five got D, seven got D-, and none got E or X.
8. The Petitioners argue that the results do not correspond with the candidates’ previous academic performance. They refer to preparatory tests where the School ranked first among thirty-five schools in the Sion/Sigowet Sub-County Trial I examination, with a mean grade of 6.9, being C+. They also refer to a Mathematics contest with Kisii National School where students won two trophies, the Trial II SISO/Sion-Sigowet joint mock examination where the School again ranked first with a mean of about 6.8 or 6.9, and the Post-Mock internal Home Stretch examination where candidates had a mean of 7.648, being B-.
9. The Petitioners also gave specific examples in respect of the 6th and 7th Petitioners. Eddy Plimo Longolekel, Index No. 28575201018, scored B- in the 2024 KCSE and retook the examination in 2025, but received a D+. Okeri Esther Kerubo, Index No. 28575201027, scored C+ in 2024 and also got a D+ after retaking the examination in 2025.
10. The Petitioners argue that the overall drop in grades, along with the cases of the 6th and 7th Petitioners, raises valid questions about the accuracy of the results and how marks were recorded, moderated, standardised, or released.
11. The Petitioners wrote to the Respondent on 11 January 2026, asking for a review and confirmation of the results. On 13 January 2026, the Parents Teachers Association also expressed dissatisfaction and informed parents and candidates. In a demand letter dated 19 January 2026, the Petitioners asked for urgent verification of the marking process, rechecking of how marks were recorded, involvement of their representatives in the verification, and release of the correct results if any mistakes were found.
12. In the letter dated 26 January 2026, the Respondent informed the School that it had carried out a full review of all the candidates’ results and confirmed that the results were correct, both in its system and in the centre’s printout.
13. The Petitioners object that, even after reaching its conclusion, the Respondent did not provide the records, documents, audit trails, verification report, mark capture logs, moderation records, or other materials used to make the decision.
14. The Petitioners filed an appeal with the National Examinations Appeals Tribunal on 29 January 2026. The Respondent objected on 11 February 2026, saying the Tribunal did not have authority to hear the case. The Petitioners say they withdrew the case because the Respondent said the process could not give them the relief they wanted.
15. The Petitioners argue that the decision, and the refusal to provide reasons and materials, violated Articles 10, 35, 43(1)(f), 47, 50, and 232 of the Constitution, as well as sections 4 and 6 of the Fair Administrative Action Act and section 10 of the Kenya National Examinations Council Act.
16. They rely, among others, on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR on exceptions to the doctrine of exhaustion; Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR and Keroche Industries Ltd v Kenya Revenue Authority & 5 others [2007] eKLR on legitimate expectation; Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR and Geothermal Development Company Limited v Attorney General & 3 others [2013] eKLR on fair administrative action; and Kiarie v Attorney General & 2 others [2016] eKLR on the centrality of education.
The Respondent’s Case
17. The Respondent’s Replying Affidavit was sworn by Andrew Francis Otieno, who describes himself as the Acting Director, Research, Quality Assurance and Planning Department of the Respondent, a department concerned with research, quality assurance, awarding and grading of examination results.
18. He depones that he has been involved in awarding and grading examination results for the Respondent for several years and is conversant with the matters raised in the Petition.
19. The Respondent states that it is established under the Kenya National Examinations Council Act No. 29 of 2012 and is mandated, among other functions, to set and maintain examination standards; conduct public academic, technical and other national examinations; award certificates and diplomas; and ensure quality assurance in national assessment.
20. The Respondent relies on several instruments governing its operations, including the Kenya National Examinations Council Act, the User Guide for the Management of KCSE Examinations, the Kenya National Examinations Council Rules of 2015 relating to examination fees, equation of certificates, marking of examinations, release of results and certification, handling of examination irregularities, management of examinations, confirmation of results and conduct of examinations, as well as confidential marking regulations.
21. The Respondent raises three preliminary objections. It contends that the Petition lacks consent to institute a representative suit contrary to Order 1 Rules 8 and 13 of the Civil Procedure Rules; that the Petition does not set out the alleged constitutional infringements with reasonable precision; and that the Petitioners failed to exhaust the remedies provided under section 14 of the Access to Information Act.
22. On the facts, the Respondent admits receipt of the Petitioners’ complaint and demand letter. It states that by its letter dated 26th January 2026, it responded to the issues raised and confirmed that the candidates’ results were correct as posted on the Respondent’s website and as reflected in the centre’s results printout.
23. The Respondent states that, upon receipt of the request for review, it undertook a comprehensive review of all candidates’ results. It states that the process involved cross-checking candidates’ scripts and reports on the administration of the examination. It further states that the Report and Certificate of Supervision and the Centre Manager’s Confidential Report indicated that the examination papers were administered in accordance with KNEC rules and regulations.
24. The Respondent depones that during the review, it examined and verified candidates’ answer scripts, approved marking schemes for the respective subjects, marksheets and an examination audit trail.
25. The Respondent further states that several checks were conducted on the candidates’ scripts and scores. These included checking all pages of candidates’ scripts to confirm that all responses were marked; verifying that the awarding of marks per question had been correctly done in accordance with the score attached to each question; cross-checking the addition and totalling of marks per question or page; validating the transfer of marks to the grid so as to obtain a summary of the candidates’ scores per question; and re-adjudicating the scores captured in the system against the scores on the candidates’ scripts to check for any discrepancies.
26. The Respondent states that, in view of the foregoing, and in line with Rule 27(5) and (6) of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015, it determined that the 2025 KCSE results for the Petitioners’ candidates were correct as reflected on the portal.
27. The Respondent also gave a detailed account of the examination administration, marking and release of the 2025 KCSE examination. It stated that candidates were examined in thirty subjects using seventy-four papers and were required to sit a minimum of seven and a maximum of nine subjects.
28. It further stated that the 2025 KCSE examination papers were administered from Tuesday, 21st October 2025 to Friday, 21st November 2025 in 10,771 examination centres. The Council engaged 107,447 contracted professionals, including supervisors, invigilators, centre managers, security officers, drivers, county and sub-county education officers, deputy county commissioners and clerks.
29. The Respondent averred that the monitoring of the field administration of the 2025 KCSE examination was conducted by 552 officers and that 3,601 examination centres, being 33.45% of the centres, were monitored across the 47 counties.
30. Regarding marking, the Respondent stated that examiners reported to six teacher training colleges and that marking was finalised on 18th December 2025. It stated that 30,980 examiners participated in the marking exercise and were accommodated in 40 marking centres. Processing of the results commenced on 1st December 2025 and was completed on 5th January 2026.
31. On grading, the Respondent stated that 993,226 candidates sat the 2025 KCSE examination and that an Awards Committee meeting was held on 23rd December 2025 for grade setting and standards fixing. The committee comprised officers from the Ministry of Education Directorate of Quality Assurance and Standards, the Kenya Institute of Curriculum Development and KNEC. Representatives of regional and international examination bodies were also invited to participate.
32. The Respondent further stated that the Awards meeting recommended the three critical grade boundaries of Distinction, Credit and Pass for all papers and that the grading process was part of the maintenance of national and international examination standards.
33. The Respondent’s position is that the Petitioners’ reliance on internal and mock examinations is misplaced. According to the Respondent, internal school examinations are diagnostic and formative, while KCSE is a national summative assessment. The Respondent states that school-based assessments cannot be used to determine achievement levels nationally because national examinations are set, administered, moderated, marked and graded through standardised psychometric procedures.
34. The Respondent adds that national examinations are distinguishable from school examinations in purpose, scope, setting, moderation, administration, marking and processing. It states that KCSE measures cumulative learning outcomes over four years, is administered under high-security nationally standardised conditions, is marked by trained national examiners using coordinated marking schemes, and is processed centrally using automated systems, statistical analysis and quality checks.
35. The Respondent denies any malice, bias, negligence, impropriety or unfairness. It depones that no irregularity was reported at the Petitioners’ school and that no candidate’s result was affected by any irregularity.
36. The Respondent also contends that access to examination reports is restricted under Rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015. It further relies on section 42 of the Kenya National Examinations Council Act, contending that Article 35 of the Constitution is limited by statutory provisions intended to preserve the integrity, confidentiality and security of national examinations.
37. The Respondent states that the Petitioners’ request for production of all information, materials and records relied upon in making the decision is sweeping, speculative and amounts to a fishing expedition. It also contends that an independent audit of its systems would set a dangerous precedent and pose a risk to the sanctity and security of a critical national database.
38. The Respondent therefore asks the Court to dismiss the Petition.
Issues for Determination
39. From the pleadings, affidavits, submissions, replying affidavit, annexures and authorities, the following issues arise for determination:
a. Whether the Petition is incompetent for want of authority, want of precision or failure to exhaust statutory remedies;
b. The scope of this Court’s jurisdiction in disputes touching on national examination results;
c. Whether the Respondent violated the Petitioners’ and affected candidates’ rights to access information, fair administrative action, legitimate expectation, fair hearing and education; and
d. What reliefs, if any, should issue.
Whether the Petition is Incompetent
40. The first objection concerns authority and representative action. The Respondent relies on authorities including JKR (Father to AKK - Minor) & 2 others v Kenya National Examination Council & 3 others [2025] KEHC 15021 (KLR) and Sareri & 14 others v Attorney General & 7 others [2026] KEHC 1242 (KLR).
41. Those authorities affirm the principle that where a litigant purports to sue on behalf of unnamed or numerous persons, the Court must be satisfied that authority exists or that the procedure for representative suits has been followed.
42. However, this Petition is not founded solely on a bare representative claim by strangers. The 1st Petitioner is the Board of Management of Kabokyek Adventist Secondary School. A Board of Management under the Basic Education Act is a statutory body capable of suing and being sued. The 2nd to 7th Petitioners are named parties suing in their own capacities as parents, guardians and former candidates.
43. Further, Articles 22 and 258 of the Constitution permit proceedings to be instituted by a person acting in his own interest, on behalf of another person who cannot act in his own name, as a member of or in the interest of a group or class of persons, or in the public interest.
44. The objection based on representative capacity therefore fails.
45. On whether the Petition has been pleaded with reasonable precision, the Court is guided by Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, where it was held that a party alleging constitutional violation must set out, with reasonable precision, the constitutional provisions said to have been violated and the manner of violation.
46. The Petition clearly identifies the decision being challenged, which is the Respondent’s letter dated 26th January 2026 confirming the 2025 KCSE results after review. It connects this decision to Articles 35, 43, 47, 50, 10, and 232 of the Constitution and explains how these were allegedly violated. The Respondent has replied to the Petition and addressed the Articles in question. Therefore, it cannot be said that the Respondent was unsure of the case to answer. The objection about lack of precision is overruled.
47. The third objection concerns exhaustion. The Respondent argues that the Petitioners ought to have pursued the mechanism under section 14 of the Access to Information Act before approaching this Court.
48. The Court appreciates the general principle in Speaker of the National Assembly v Karume [1992] KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR that where a statute has established a dispute resolution mechanism, that mechanism ought ordinarily to be exhausted before recourse is had to Court.
49. However, the doctrine of exhaustion is not applied mechanically. In Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, the Court held that the availability, adequacy, effectiveness and suitability of the alternative remedy must be examined in light of the facts and the nature of the claim.
50. Section 14 of the Access to Information Act provides for review of decisions of public entities by the Commission on Administrative Justice in relation to access to information. It provides, in part, that an applicant may apply in writing to the Commission requesting a review of a decision refusing to grant access to information, granting access in edited form, purporting to grant access but not actually granting access in accordance with an application, or deferring access to information.
51. To the extent that the Petition is founded on access to information and seeks disclosure of documents, records and materials allegedly relied upon by the Respondent, the Petitioners ought to have first pursued the statutory review mechanism before the Commission on Administrative Justice as provided under section 14 of the Access to Information Act.
52. The reason advanced by the Petitioners for not subjecting themselves to the statutory mechanism under the Access to Information Act is not persuasive. Section 14 of the Act is couched in mandatory terms. The Petitioners therefore ought to have exhausted that mechanism in relation to the access to information component of the Petition before moving this Court.
53. There is also an allegation by the respondent that the petitioners did not exhaust the Appeal mechanism under the Kenya National Examinations Council Act. Petitioners contend that they attempted to pursue the examination-specific appeal route by filing a Memorandum of Appeal before the National Examinations Appeals Tribunal, but the Respondent raised a Preliminary Objection contending that the Tribunal lacked jurisdiction, whereupon they withdrew the appeal. Section 40H of the Kenya National Examination Council Act provides for jurisdiction of National Examination Council Appeals Tribunal as follows -
The Tribunal shall consider all appeals made against a decision of the Council to withhold, nullify or cancel examinations prepared and administered by the Council. .
54. The case of the Petitioners herein does not question withholding, nullification or cancellation of results but the correctness of the results. The Appeals Tribunal thus had no jurisdiction to hear this dispute .
55. I find that the Petitioners did not use the statutory process under the Access to Information Act for the part of the Petition that seeks disclosure of information and records. That part of the Petition is therefore premature because the required process was not followed. However, since the Petition also raises broader constitutional and administrative law questions about fair administrative action, education, and the legality of the Respondent’s decision, I will consider those on their merits.
The Scope of the Court’s Intervention in Examination Matters
56. The Respondent’s statutory mandate is not disputed. Section 10 of the Kenya National Examinations Council Act empowers it to set and maintain examination standards, conduct public academic, technical and other examinations, award certificates and diplomas, undertake research in educational assessment and advise on systems of assessment.
57. In Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held that mandamus may compel the performance of a public duty, such as conducting examinations, marking papers or declaring results within a reasonable time, but the High Court cannot order the Council to award a particular mark or grade to a candidate because that is a function reserved to the Council.
58. The same decision is also an authority for the proposition that mandamus does not quash what has already been done. Where a completed decision is challenged, the proper order is ordinarily certiorari.
59. In Kenya National Examinations Council v Republic ex parte Kemunto Regina Ouru [2010] eKLR, the Court of Appeal emphasised that examination administration involves confidentiality, expert scrutiny of scripts, examiner reports and statistical assessment. The Court cautioned against procedures that would unnecessarily burden KNEC or undermine examination integrity, while recognising that courts may intervene where there is illegality, irrationality, procedural unfairness or abuse of power.
60. The decisions in Maharashtra State Board of Secondary and Higher Secondary Education v Kumarstheth [1985] LRC and Republic v Council of Legal Education ex parte James Njuguna & 14 others [2007] eKLR support the same principle: courts should not substitute their own assessment for that of specialised academic and examining bodies unless breach of law, breach of natural justice, irrationality, bad faith, abuse of discretion or violation of constitutional standards is established.
61. It follows that this Court has no jurisdiction or technical capacity to re-mark the 2025 KCSE scripts, award alternative grades, compel a general open marking process in the presence of the Petitioners’ representatives, or direct the Respondent to release grades not established through the lawful examination process.
62. The proper question is narrower whether the Respondent, after receiving a serious and documented complaint, acted lawfully, reasonably, transparently and fairly when it issued the decision of 26th January 2026.
Whether Constitutional and Statutory Rights Were Violated
63. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) requires written reasons where a right or fundamental freedom has been or is likely to be adversely affected.
64. Sections 4 and 6 of the Fair Administrative Action Act operationalise Article 47. Section 6 provides that a person materially or adversely affected by administrative action has a right to be supplied with information necessary to facilitate an appeal or review, including reasons and relevant documents, subject to lawful limitations.
65. The Respondent’s letter dated 26th January 2026 did more than merely state that the results were correct. It set out that a comprehensive review had been undertaken; that candidates’ scripts and reports on the administration of the examination were cross checked; that the Report and Certificate of Supervision and the Centre Manager’s Confidential Report were considered; that candidates’ answer scripts, approved marking schemes, marksheets and examination audit trail were examined; and that checks were undertaken to confirm marking, awarding of marks, addition and totalling, transfer of marks to the grid and re-adjudication of scores captured in the system.
66. That said, the Petitioners’ complaint is not only that the Respondent failed to say that a review was done. Their complaint is that the Respondent did not provide the underlying records or materials necessary to test the conclusion reached.
67. Article 35 of the Constitution guarantees the right of access to information held by the State, as well as information held by another person where such information is required for the exercise or protection of a right. The Respondent is a public body. The information sought relates to examination results which directly affect the educational progression of the affected candidates.
68. That right, however, is not absolute. Section 42 of the Kenya National Examinations Council Act and Rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015 protect the confidentiality and integrity of national examinations. The disclosure of examination scripts, identities of examiners, marking schemes, confidential reports, moderation tools, audit systems or database architecture may compromise examination integrity, privacy and security.
69. The constitutional balance here is not between full disclosure and complete secrecy, but between accountability and confidentiality. The Respondent must give enough reasons to make its decision clear, transparent, and open to review. However, it does not have to share confidential examination materials if doing so would harm the integrity, credibility, or security of national examinations.
70. In this case, the Respondent provided an explanation of the process followed. Through the Replying Affidavit, it went further and explained the statutory framework, the distinction between school-based assessments and national examinations, the marking and grading safeguards, and the specific checks undertaken in respect of the Petitioners’ complaint.
71. The Petitioners’ case is mainly based on the difference between the candidates’ performance in internal and mock exams and their KCSE results. This difference is understandably worrying. However, concern by itself does not prove illegality, irrationality, bias, malice, negligence, or procedural unfairness.
72. I agree with the Respondent’s explanation that school-level examinations are formative and diagnostic, while KCSE is a national summative assessment. Internal examinations, mock examinations and contests may assist schools to track progress, but they cannot, without more, prove that national examination results are erroneous.
73. The Petitioners did not place before the Court cogent evidence showing that any specific script was unmarked, that marks were wrongly totalled, that marks were wrongly transferred, that the wrong results were assigned to the candidates, or that the Respondent’s system contained a demonstrated error.
74. The cases relied on by the Petitioners on legitimate expectation, including Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others and Keroche Industries Ltd v Kenya Revenue Authority & 5 others, are good law. However, a legitimate expectation cannot arise that candidates will perform in KCSE in the same manner as they performed in internal examinations or mock assessments. What may arise is a legitimate expectation that a complaint will be considered fairly and in accordance with the law.
75. On the evidence before this Court, the Respondent received the complaint, reviewed the results, communicated its decision in writing, and gave the broad basis upon which it concluded that the results were correct.
76. The Petitioners were entitled to reasons. They received reasons, though not the underlying confidential materials. The refusal or failure to provide confidential material cannot, in the circumstances of this case, be treated as a violation of Article 35 or Article 47, particularly where the Petitioners did not first pursue a specific access to information request under the Access to Information Act and where the information sought includes protected examination material.
77. As regards Article 43(1)(f), this Court appreciates that education is a fundamental right and that KCSE results are gateways to university, college, TVET and other educational opportunities. In Kiarie v Attorney General & 2 others [2016] eKLR, the Court recognised the centrality of education to the enjoyment of other rights. However, Article 43(1)(f) does not confer a right to a particular grade. It guarantees access to education, not judicial substitution of examination outcomes in the absence of proof of error or illegality.
78. With respect to Article 50, the primary right engaged in this dispute is Article 47. Article 50(1) may be implicated where a party is denied access to a tribunal or denied information necessary to pursue a lawful appeal. In this case, however, the Respondent’s position before the Tribunal and the Petitioners’ withdrawal of the appeal do not, without more, establish a violation of Article 50 by the Respondent in the processing of the results.
79. I therefore find that the Petitioners have not proved, on a balance of probabilities, that the Respondent violated Articles 35, 43, 47 or 50 of the Constitution. They have also not proved breach of Articles 10 and 232 beyond the general allegation that the decision was unsatisfactory.
80. The Court is also not satisfied that the Petitioners have proved the correct grades that should be awarded to the candidates or that the Court can properly declare the 2025 KCSE results for all 65 candidates false, inaccurate or invalid.
Reliefs
81. Article 23(3) empowers this Court to grant appropriate relief, including declarations and orders of judicial review. Appropriate relief must vindicate the Constitution while observing statutory mandates and institutional competence.
82. The Petitioners seek declarations, certiorari, mandamus, disclosure of records, verification, audit and release of what they describe as correct results.
83. Having found that the Respondent considered the complaint, reviewed the results and c
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1. The Petition herein , dated 11th March 2026, relates the 2025 Kenya Certificate of Secondary Education results for Centre No. 28575201, Kabokyek Adventist Secondary School.
2. The Petitioners are challenging the Respondent’s decision, which was communicated in a letter dated 26 January 2026. The letter informed the School that the candidates’ results had been reviewed and confirmed as correct in both the system and the centre’s printout.
3. The Petitioners mainly argue that the Respondent, as the public body in charge of national examinations, did not give enough reasons or share the records and materials it used. They say this made the decision unclear, unreasonable, and unfair.
4. The Respondent opposes the Petition. In a Replying Affidavit by Andrew Francis Otieno, Acting Director of Research, Quality Assurance and Planning, the Respondent argues that the Petition does not have authority for a representative suit, is not clear about the alleged constitutional violations, and that the Petitioners did not use the process under the Access to Information Act. The Respondent also says the results were properly reviewed and confirmed as correct.
The Petitioners’ Case
5. The 1st Petitioner is the Board of Management of Kabokyek Adventist Secondary School. The 2nd to 5th Petitioners are parents or guardians of candidates who took the 2025 KCSE examination at the School. The 6th and 7th Petitioners are former candidates who sat for both the 2024 and 2025 KCSE examinations at the same centre.
6. The Petitioners state that on 9 January 2026, the Cabinet Secretary for Education officially released the 2025 KCSE results. Thereafter, the Respondent posted and sent the results to the examination centres.
7. Kabokyek Adventist Secondary School received results for 65 candidates, with an average grade of about 3.51, which is a D. The records show that none of the candidates got grades A, A-, B+, B, B-, or C+. One candidate got a C, five got C-, twenty-seven got D+, twenty-five got D, seven got D-, and none got E or X.
8. The Petitioners argue that the results do not correspond with the candidates’ previous academic performance. They refer to preparatory tests where the School ranked first among thirty-five schools in the Sion/Sigowet Sub-County Trial I examination, with a mean grade of 6.9, being C+. They also refer to a Mathematics contest with Kisii National School where students won two trophies, the Trial II SISO/Sion-Sigowet joint mock examination where the School again ranked first with a mean of about 6.8 or 6.9, and the Post-Mock internal Home Stretch examination where candidates had a mean of 7.648, being B-.
9. The Petitioners also gave specific examples in respect of the 6th and 7th Petitioners. Eddy Plimo Longolekel, Index No. 28575201018, scored B- in the 2024 KCSE and retook the examination in 2025, but received a D+. Okeri Esther Kerubo, Index No. 28575201027, scored C+ in 2024 and also got a D+ after retaking the examination in 2025.
10. The Petitioners argue that the overall drop in grades, along with the cases of the 6th and 7th Petitioners, raises valid questions about the accuracy of the results and how marks were recorded, moderated, standardised, or released.
11. The Petitioners wrote to the Respondent on 11 January 2026, asking for a review and confirmation of the results. On 13 January 2026, the Parents Teachers Association also expressed dissatisfaction and informed parents and candidates. In a demand letter dated 19 January 2026, the Petitioners asked for urgent verification of the marking process, rechecking of how marks were recorded, involvement of their representatives in the verification, and release of the correct results if any mistakes were found.
12. In the letter dated 26 January 2026, the Respondent informed the School that it had carried out a full review of all the candidates’ results and confirmed that the results were correct, both in its system and in the centre’s printout.
13. The Petitioners object that, even after reaching its conclusion, the Respondent did not provide the records, documents, audit trails, verification report, mark capture logs, moderation records, or other materials used to make the decision.
14. The Petitioners filed an appeal with the National Examinations Appeals Tribunal on 29 January 2026. The Respondent objected on 11 February 2026, saying the Tribunal did not have authority to hear the case. The Petitioners say they withdrew the case because the Respondent said the process could not give them the relief they wanted.
15. The Petitioners argue that the decision, and the refusal to provide reasons and materials, violated Articles 10, 35, 43(1)(f), 47, 50, and 232 of the Constitution, as well as sections 4 and 6 of the Fair Administrative Action Act and section 10 of the Kenya National Examinations Council Act.
16. They rely, among others, on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR on exceptions to the doctrine of exhaustion; Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR and Keroche Industries Ltd v Kenya Revenue Authority & 5 others [2007] eKLR on legitimate expectation; Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR and Geothermal Development Company Limited v Attorney General & 3 others [2013] eKLR on fair administrative action; and Kiarie v Attorney General & 2 others [2016] eKLR on the centrality of education.
The Respondent’s Case
17. The Respondent’s Replying Affidavit was sworn by Andrew Francis Otieno, who describes himself as the Acting Director, Research, Quality Assurance and Planning Department of the Respondent, a department concerned with research, quality assurance, awarding and grading of examination results.
18. He depones that he has been involved in awarding and grading examination results for the Respondent for several years and is conversant with the matters raised in the Petition.
19. The Respondent states that it is established under the Kenya National Examinations Council Act No. 29 of 2012 and is mandated, among other functions, to set and maintain examination standards; conduct public academic, technical and other national examinations; award certificates and diplomas; and ensure quality assurance in national assessment.
20. The Respondent relies on several instruments governing its operations, including the Kenya National Examinations Council Act, the User Guide for the Management of KCSE Examinations, the Kenya National Examinations Council Rules of 2015 relating to examination fees, equation of certificates, marking of examinations, release of results and certification, handling of examination irregularities, management of examinations, confirmation of results and conduct of examinations, as well as confidential marking regulations.
21. The Respondent raises three preliminary objections. It contends that the Petition lacks consent to institute a representative suit contrary to Order 1 Rules 8 and 13 of the Civil Procedure Rules; that the Petition does not set out the alleged constitutional infringements with reasonable precision; and that the Petitioners failed to exhaust the remedies provided under section 14 of the Access to Information Act.
22. On the facts, the Respondent admits receipt of the Petitioners’ complaint and demand letter. It states that by its letter dated 26th January 2026, it responded to the issues raised and confirmed that the candidates’ results were correct as posted on the Respondent’s website and as reflected in the centre’s results printout.
23. The Respondent states that, upon receipt of the request for review, it undertook a comprehensive review of all candidates’ results. It states that the process involved cross-checking candidates’ scripts and reports on the administration of the examination. It further states that the Report and Certificate of Supervision and the Centre Manager’s Confidential Report indicated that the examination papers were administered in accordance with KNEC rules and regulations.
24. The Respondent depones that during the review, it examined and verified candidates’ answer scripts, approved marking schemes for the respective subjects, marksheets and an examination audit trail.
25. The Respondent further states that several checks were conducted on the candidates’ scripts and scores. These included checking all pages of candidates’ scripts to confirm that all responses were marked; verifying that the awarding of marks per question had been correctly done in accordance with the score attached to each question; cross-checking the addition and totalling of marks per question or page; validating the transfer of marks to the grid so as to obtain a summary of the candidates’ scores per question; and re-adjudicating the scores captured in the system against the scores on the candidates’ scripts to check for any discrepancies.
26. The Respondent states that, in view of the foregoing, and in line with Rule 27(5) and (6) of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015, it determined that the 2025 KCSE results for the Petitioners’ candidates were correct as reflected on the portal.
27. The Respondent also gave a detailed account of the examination administration, marking and release of the 2025 KCSE examination. It stated that candidates were examined in thirty subjects using seventy-four papers and were required to sit a minimum of seven and a maximum of nine subjects.
28. It further stated that the 2025 KCSE examination papers were administered from Tuesday, 21st October 2025 to Friday, 21st November 2025 in 10,771 examination centres. The Council engaged 107,447 contracted professionals, including supervisors, invigilators, centre managers, security officers, drivers, county and sub-county education officers, deputy county commissioners and clerks.
29. The Respondent averred that the monitoring of the field administration of the 2025 KCSE examination was conducted by 552 officers and that 3,601 examination centres, being 33.45% of the centres, were monitored across the 47 counties.
30. Regarding marking, the Respondent stated that examiners reported to six teacher training colleges and that marking was finalised on 18th December 2025. It stated that 30,980 examiners participated in the marking exercise and were accommodated in 40 marking centres. Processing of the results commenced on 1st December 2025 and was completed on 5th January 2026.
31. On grading, the Respondent stated that 993,226 candidates sat the 2025 KCSE examination and that an Awards Committee meeting was held on 23rd December 2025 for grade setting and standards fixing. The committee comprised officers from the Ministry of Education Directorate of Quality Assurance and Standards, the Kenya Institute of Curriculum Development and KNEC. Representatives of regional and international examination bodies were also invited to participate.
32. The Respondent further stated that the Awards meeting recommended the three critical grade boundaries of Distinction, Credit and Pass for all papers and that the grading process was part of the maintenance of national and international examination standards.
33. The Respondent’s position is that the Petitioners’ reliance on internal and mock examinations is misplaced. According to the Respondent, internal school examinations are diagnostic and formative, while KCSE is a national summative assessment. The Respondent states that school-based assessments cannot be used to determine achievement levels nationally because national examinations are set, administered, moderated, marked and graded through standardised psychometric procedures.
34. The Respondent adds that national examinations are distinguishable from school examinations in purpose, scope, setting, moderation, administration, marking and processing. It states that KCSE measures cumulative learning outcomes over four years, is administered under high-security nationally standardised conditions, is marked by trained national examiners using coordinated marking schemes, and is processed centrally using automated systems, statistical analysis and quality checks.
35. The Respondent denies any malice, bias, negligence, impropriety or unfairness. It depones that no irregularity was reported at the Petitioners’ school and that no candidate’s result was affected by any irregularity.
36. The Respondent also contends that access to examination reports is restricted under Rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015. It further relies on section 42 of the Kenya National Examinations Council Act, contending that Article 35 of the Constitution is limited by statutory provisions intended to preserve the integrity, confidentiality and security of national examinations.
37. The Respondent states that the Petitioners’ request for production of all information, materials and records relied upon in making the decision is sweeping, speculative and amounts to a fishing expedition. It also contends that an independent audit of its systems would set a dangerous precedent and pose a risk to the sanctity and security of a critical national database.
38. The Respondent therefore asks the Court to dismiss the Petition.
Issues for Determination
39. From the pleadings, affidavits, submissions, replying affidavit, annexures and authorities, the following issues arise for determination:
a. Whether the Petition is incompetent for want of authority, want of precision or failure to exhaust statutory remedies;
b. The scope of this Court’s jurisdiction in disputes touching on national examination results;
c. Whether the Respondent violated the Petitioners’ and affected candidates’ rights to access information, fair administrative action, legitimate expectation, fair hearing and education; and
d. What reliefs, if any, should issue.
Whether the Petition is Incompetent
40. The first objection concerns authority and representative action. The Respondent relies on authorities including JKR (Father to AKK - Minor) & 2 others v Kenya National Examination Council & 3 others [2025] KEHC 15021 (KLR) and Sareri & 14 others v Attorney General & 7 others [2026] KEHC 1242 (KLR).
41. Those authorities affirm the principle that where a litigant purports to sue on behalf of unnamed or numerous persons, the Court must be satisfied that authority exists or that the procedure for representative suits has been followed.
42. However, this Petition is not founded solely on a bare representative claim by strangers. The 1st Petitioner is the Board of Management of Kabokyek Adventist Secondary School. A Board of Management under the Basic Education Act is a statutory body capable of suing and being sued. The 2nd to 7th Petitioners are named parties suing in their own capacities as parents, guardians and former candidates.
43. Further, Articles 22 and 258 of the Constitution permit proceedings to be instituted by a person acting in his own interest, on behalf of another person who cannot act in his own name, as a member of or in the interest of a group or class of persons, or in the public interest.
44. The objection based on representative capacity therefore fails.
45. On whether the Petition has been pleaded with reasonable precision, the Court is guided by Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, where it was held that a party alleging constitutional violation must set out, with reasonable precision, the constitutional provisions said to have been violated and the manner of violation.
46. The Petition clearly identifies the decision being challenged, which is the Respondent’s letter dated 26th January 2026 confirming the 2025 KCSE results after review. It connects this decision to Articles 35, 43, 47, 50, 10, and 232 of the Constitution and explains how these were allegedly violated. The Respondent has replied to the Petition and addressed the Articles in question. Therefore, it cannot be said that the Respondent was unsure of the case to answer. The objection about lack of precision is overruled.
47. The third objection concerns exhaustion. The Respondent argues that the Petitioners ought to have pursued the mechanism under section 14 of the Access to Information Act before approaching this Court.
48. The Court appreciates the general principle in Speaker of the National Assembly v Karume [1992] KLR 21 and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR that where a statute has established a dispute resolution mechanism, that mechanism ought ordinarily to be exhausted before recourse is had to Court.
49. However, the doctrine of exhaustion is not applied mechanically. In Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, the Court held that the availability, adequacy, effectiveness and suitability of the alternative remedy must be examined in light of the facts and the nature of the claim.
50. Section 14 of the Access to Information Act provides for review of decisions of public entities by the Commission on Administrative Justice in relation to access to information. It provides, in part, that an applicant may apply in writing to the Commission requesting a review of a decision refusing to grant access to information, granting access in edited form, purporting to grant access but not actually granting access in accordance with an application, or deferring access to information.
51. To the extent that the Petition is founded on access to information and seeks disclosure of documents, records and materials allegedly relied upon by the Respondent, the Petitioners ought to have first pursued the statutory review mechanism before the Commission on Administrative Justice as provided under section 14 of the Access to Information Act.
52. The reason advanced by the Petitioners for not subjecting themselves to the statutory mechanism under the Access to Information Act is not persuasive. Section 14 of the Act is couched in mandatory terms. The Petitioners therefore ought to have exhausted that mechanism in relation to the access to information component of the Petition before moving this Court.
53. There is also an allegation by the respondent that the petitioners did not exhaust the Appeal mechanism under the Kenya National Examinations Council Act. Petitioners contend that they attempted to pursue the examination-specific appeal route by filing a Memorandum of Appeal before the National Examinations Appeals Tribunal, but the Respondent raised a Preliminary Objection contending that the Tribunal lacked jurisdiction, whereupon they withdrew the appeal. Section 40H of the Kenya National Examination Council Act provides for jurisdiction of National Examination Council Appeals Tribunal as follows -
The Tribunal shall consider all appeals made against a decision of the Council to withhold, nullify or cancel examinations prepared and administered by the Council. .
54. The case of the Petitioners herein does not question withholding, nullification or cancellation of results but the correctness of the results. The Appeals Tribunal thus had no jurisdiction to hear this dispute .
55. I find that the Petitioners did not use the statutory process under the Access to Information Act for the part of the Petition that seeks disclosure of information and records. That part of the Petition is therefore premature because the required process was not followed. However, since the Petition also raises broader constitutional and administrative law questions about fair administrative action, education, and the legality of the Respondent’s decision, I will consider those on their merits.
The Scope of the Court’s Intervention in Examination Matters
56. The Respondent’s statutory mandate is not disputed. Section 10 of the Kenya National Examinations Council Act empowers it to set and maintain examination standards, conduct public academic, technical and other examinations, award certificates and diplomas, undertake research in educational assessment and advise on systems of assessment.
57. In Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held that mandamus may compel the performance of a public duty, such as conducting examinations, marking papers or declaring results within a reasonable time, but the High Court cannot order the Council to award a particular mark or grade to a candidate because that is a function reserved to the Council.
58. The same decision is also an authority for the proposition that mandamus does not quash what has already been done. Where a completed decision is challenged, the proper order is ordinarily certiorari.
59. In Kenya National Examinations Council v Republic ex parte Kemunto Regina Ouru [2010] eKLR, the Court of Appeal emphasised that examination administration involves confidentiality, expert scrutiny of scripts, examiner reports and statistical assessment. The Court cautioned against procedures that would unnecessarily burden KNEC or undermine examination integrity, while recognising that courts may intervene where there is illegality, irrationality, procedural unfairness or abuse of power.
60. The decisions in Maharashtra State Board of Secondary and Higher Secondary Education v Kumarstheth [1985] LRC and Republic v Council of Legal Education ex parte James Njuguna & 14 others [2007] eKLR support the same principle: courts should not substitute their own assessment for that of specialised academic and examining bodies unless breach of law, breach of natural justice, irrationality, bad faith, abuse of discretion or violation of constitutional standards is established.
61. It follows that this Court has no jurisdiction or technical capacity to re-mark the 2025 KCSE scripts, award alternative grades, compel a general open marking process in the presence of the Petitioners’ representatives, or direct the Respondent to release grades not established through the lawful examination process.
62. The proper question is narrower whether the Respondent, after receiving a serious and documented complaint, acted lawfully, reasonably, transparently and fairly when it issued the decision of 26th January 2026.
Whether Constitutional and Statutory Rights Were Violated
63. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) requires written reasons where a right or fundamental freedom has been or is likely to be adversely affected.
64. Sections 4 and 6 of the Fair Administrative Action Act operationalise Article 47. Section 6 provides that a person materially or adversely affected by administrative action has a right to be supplied with information necessary to facilitate an appeal or review, including reasons and relevant documents, subject to lawful limitations.
65. The Respondent’s letter dated 26th January 2026 did more than merely state that the results were correct. It set out that a comprehensive review had been undertaken; that candidates’ scripts and reports on the administration of the examination were cross checked; that the Report and Certificate of Supervision and the Centre Manager’s Confidential Report were considered; that candidates’ answer scripts, approved marking schemes, marksheets and examination audit trail were examined; and that checks were undertaken to confirm marking, awarding of marks, addition and totalling, transfer of marks to the grid and re-adjudication of scores captured in the system.
66. That said, the Petitioners’ complaint is not only that the Respondent failed to say that a review was done. Their complaint is that the Respondent did not provide the underlying records or materials necessary to test the conclusion reached.
67. Article 35 of the Constitution guarantees the right of access to information held by the State, as well as information held by another person where such information is required for the exercise or protection of a right. The Respondent is a public body. The information sought relates to examination results which directly affect the educational progression of the affected candidates.
68. That right, however, is not absolute. Section 42 of the Kenya National Examinations Council Act and Rule 19 of the Kenya National Examinations Council (Marking of Examinations, Release of Results and Certification) Rules, 2015 protect the confidentiality and integrity of national examinations. The disclosure of examination scripts, identities of examiners, marking schemes, confidential reports, moderation tools, audit systems or database architecture may compromise examination integrity, privacy and security.
69. The constitutional balance here is not between full disclosure and complete secrecy, but between accountability and confidentiality. The Respondent must give enough reasons to make its decision clear, transparent, and open to review. However, it does not have to share confidential examination materials if doing so would harm the integrity, credibility, or security of national examinations.
70. In this case, the Respondent provided an explanation of the process followed. Through the Replying Affidavit, it went further and explained the statutory framework, the distinction between school-based assessments and national examinations, the marking and grading safeguards, and the specific checks undertaken in respect of the Petitioners’ complaint.
71. The Petitioners’ case is mainly based on the difference between the candidates’ performance in internal and mock exams and their KCSE results. This difference is understandably worrying. However, concern by itself does not prove illegality, irrationality, bias, malice, negligence, or procedural unfairness.
72. I agree with the Respondent’s explanation that school-level examinations are formative and diagnostic, while KCSE is a national summative assessment. Internal examinations, mock examinations and contests may assist schools to track progress, but they cannot, without more, prove that national examination results are erroneous.
73. The Petitioners did not place before the Court cogent evidence showing that any specific script was unmarked, that marks were wrongly totalled, that marks were wrongly transferred, that the wrong results were assigned to the candidates, or that the Respondent’s system contained a demonstrated error.
74. The cases relied on by the Petitioners on legitimate expectation, including Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others and Keroche Industries Ltd v Kenya Revenue Authority & 5 others, are good law. However, a legitimate expectation cannot arise that candidates will perform in KCSE in the same manner as they performed in internal examinations or mock assessments. What may arise is a legitimate expectation that a complaint will be considered fairly and in accordance with the law.
75. On the evidence before this Court, the Respondent received the complaint, reviewed the results, communicated its decision in writing, and gave the broad basis upon which it concluded that the results were correct.
76. The Petitioners were entitled to reasons. They received reasons, though not the underlying confidential materials. The refusal or failure to provide confidential material cannot, in the circumstances of this case, be treated as a violation of Article 35 or Article 47, particularly where the Petitioners did not first pursue a specific access to information request under the Access to Information Act and where the information sought includes protected examination material.
77. As regards Article 43(1)(f), this Court appreciates that education is a fundamental right and that KCSE results are gateways to university, college, TVET and other educational opportunities. In Kiarie v Attorney General & 2 others [2016] eKLR, the Court recognised the centrality of education to the enjoyment of other rights. However, Article 43(1)(f) does not confer a right to a particular grade. It guarantees access to education, not judicial substitution of examination outcomes in the absence of proof of error or illegality.
78. With respect to Article 50, the primary right engaged in this dispute is Article 47. Article 50(1) may be implicated where a party is denied access to a tribunal or denied information necessary to pursue a lawful appeal. In this case, however, the Respondent’s position before the Tribunal and the Petitioners’ withdrawal of the appeal do not, without more, establish a violation of Article 50 by the Respondent in the processing of the results.
79. I therefore find that the Petitioners have not proved, on a balance of probabilities, that the Respondent violated Articles 35, 43, 47 or 50 of the Constitution. They have also not proved breach of Articles 10 and 232 beyond the general allegation that the decision was unsatisfactory.
80. The Court is also not satisfied that the Petitioners have proved the correct grades that should be awarded to the candidates or that the Court can properly declare the 2025 KCSE results for all 65 candidates false, inaccurate or invalid.
Reliefs
81. Article 23(3) empowers this Court to grant appropriate relief, including declarations and orders of judicial review. Appropriate relief must vindicate the Constitution while observing statutory mandates and institutional competence.
82. The Petitioners seek declarations, certiorari, mandamus, disclosure of records, verification, audit and release of what they describe as correct results.
83. Having found that the Respondent considered the complaint, reviewed the results and c
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