RULING
1. The ex-parte Applicant has proffered the instant Chamber Summons application premised on section 8 and 9 of the Law Reform Act CAP 26 of the Laws of Kenya, and Order 53, rules 1-4 of the Civil Procedure Rules 2010, seeking for orders that:
i. Spent.
ii. Spent.
iii. Spent
iv. That the Honourable Court be pleased to grant leave to the Applicant to apply for an order of Certiorari to remove to this Court and quash the letter by the 1st and 2nd Respondent’s letter dated 5th December 2025 Ref. No. TSC/348819/122 and addressed to the ex-parte Applicant, purporting to transfer her from Nge’nda Secondary School in Gatundu South Sub-County Kiambu to Dr. Kiano Girls’ Secondary School, Muranga County.
v. That this Honourable Court be pleased to grant leave to the Applicant to apply for Order of Prohibition directed at the 1st, 2nd, 3rd and 4th Respondents barring them from interfering with the ex-parte Applicant’s job placement as the Principal and Secretary of the Board of Management of Nge’nda Secondary School in Gatundu South Sub-County, Kiambu.
vi. That costs of the application be provided for.
2. The Application is grounded on the Statutory Statement dated 15th December 2025 and Verifying Affidavit sworn by the ex-parte Applicant.
3. The gravamen of the Applicant’s Application is that she received a transfer letter to Dr. Kiano Girls’ Secondary School without her application; therefore, terming it as an illegality and an abuse of power by the 1st and 2nd Respondents. She alleges that the 4th Respondent recommended the preferred teacher for the transfer to the 1st Respondent, and the transfer was on the basis of the said recommendation. She adds that the transfer is tainted with illegality, irrationality and impropriety as the Respondents’ actions are contrary to the rules of fair administration and thus, there is need to prohibit them from interfering with the Applicant’s placement as the Principal of Nge’nda Secondary School.
4. Subsequently, the Applicant filed a Notice of Motion Application dated 7th January 2026, under Certificate of Urgency grounded on section 10 of the Judicature Act, Rule 3(1 & 2) of the High Court Practice and Procedure Rules, section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules. In the said application, the Applicant sought orders that: the Application be certified urgent; the Court do grant the Applicant leave to be heard during court vacation; the Court do compel the 4th Respondent’s Chairman to unlock her office and the gate to Nge’nda Secondary School granting the Applicant unconditional access to the school, pending the hearing and determination of the application; the Court do issue temporary injunction or stay, restraining the Respondents or their agents from interfering with or removing the Applicant from her office as Principal and Secretary of BoM of the said school; and Cost be provided for.
5. The Application was grounded on the Applicant’s Supporting Affidavit and the grounds that: as per the 1st Respondent’s Teacher Management Information System, she was the Principal of the aforementioned school; that she had filed and served the application dated 16th December 2025; she received a transfer letter without her application for the same through the TSC Human Resource Portal as indicated in the letter; it is her belief that the transfer is an unfair administrative action done after filing of judicial review proceedings seeking to compel the 3rd Respondent to hand over the school to her; the matter was scheduled to be heard on 15th January 2026 but the 4th Respondent’s chairman had gone ahead and locked the Principal’s Office and the gate denying her access to the office; the school was still under her management and thus she had the duty to run the school affairs which included the intake of Grade 10 students; she cannot run the school with the interference from the Respondents and as a result, students would suffer the consequences of the crisis in management; and that it is in the interest of justice that the Court grants the orders sought.
6. When the matter came upon 9th January 2026, the Court issued interim orders compelling the Respondents to unlock the school and restraining them from interfering with the Applicant’s performance of her duties, pending inter-parties hearing of the application on 15th January 2026.
7. Consequently, the 1st and 2nd Respondents filed a Replying Affidavit and Notice of Preliminary Objection challenging: the Court’s jurisdiction to hear and determine the application, yet the leave sought vide the Chamber Summons had not been granted, the competence of the application on grounds that it was bad in law, incompetent and incurably defective for; want of leave, having been filed, admitted and heard during vacation without the requisite Chamber Summons Application as per Rule 3 of the High Court (Practice and Procedure) Rules and that it was subjudice the Application filed on 16th December 2025. It was contended further that without jurisdiction, the Orders issued on 8th January 2026 emanating from incompetent and incurably defective application ought to be set aside.
8. Relatedly, the 1st & 2nd Respondents filed a Notice of Motion Application dated 14th January 2025 under certificate of urgency seeking orders that: the Application be certified urgent and heard ex-parte in the first instance, the Court be pleased to set aside, discharge, vary and/or vacate its orders issued on a 9th January 2026 and the cost be in the cause. The application was grounded on the supporting affidavit sworn by Antonina Lentoijoni and the grounds that: the Application dated 16th December 2025 was heard ex-parte before Hon Lady Justice H. Wasilwa and the matter was certified urgent and directions issued for the same to be heard on 15th January 2026. The directions notwithstanding, the Applicant filed a similar application dated 7th January 2026 seeking similar orders wherein the Court issued interim orders and direction for the matter to be heard on 15th January 2026; that the Court lacked jurisdiction to hear and determine the said Application as the leave sought under Chamber Summons Application dated 16th December 205 had not been granted; that the impugned application was bad in law, incompetent and incurably defective as the same was filed without the leave required under the Law Reform Act and section 10(2) of the ELRC Rules 2024, was filed, admitted and heard during vacation without the requisite Chamber Summons Application as per Rule 3 of the High Court (Practice and Procedure) Rules, and is sub-judice the Application filed on 16th December 2025 which was pending before Court; that it was apparent that the Applicant was forum shopping as evidenced by the filing of multiple applications to get a more favourable outcome which amounted to an abuse of court process, vexatious litigation, waste of judicial resources and thus the same should be struck out with costs; that the orders sought have been overtaken by events as a new principal took over the school on 18th December 2025, long before the temporary orders were granted; that the interim orders were obtained through misrepresentation of facts as the Applicant failed to disclose that the hand over took place on 18th December 2025, that the new principal had taken over and was running the school, and failed to disclose that she had not obtained leave to file the substantive Notice of Motion as the issue on leave was scheduled for hearing on 15th January 2026.
9. In her Supplementary Affidavit sworn on 14th January, 2026, the applicant argued that her application dated 7th January 2026 was not bad in law or incompetent as she sought leave to be heard during vacation under Order 2. She deposed that on advice of counsel, which she relied on, she believed that one could file an application for interim relief or stay concurrently with one seeking leave to seek judicial review. She contended that the intended Principal, Esther Kibui was handed over Nge’nda Secondary School on 18th December 2025, despite there being a stay order issued on by the Hight Court at Thika in HJR Case No. 25 of 2025, issued on 12th September 2025. She deposed that although the letter dated 5th December 2025 was copied to the 3rd Respondent, it did not advise the 1st Respondent that it could not hand over the school due to the stay order that allowed her to continue holding her position pending the hearing and determination of the mater. She contended that the handover ceremony of 18th December 2025 was void ab initio as the orders were still in force as they had not been vacated or discharged. She contended that she was still the principal of the school as per the 1st Respondent’s Information Management System as she had not made any transfer requests contrary to the log ins of 14th January 2026. She acknowledged the 1st Respondent’s mandate to carry out its duties unhindered, noting however, that the decision to transfer her without her application despite her health status indicated that the same was made on recommendation of the PCEA Sponsor church, County Director of Education Kiambu, the County Education Board and the School BoM chairman who was also the chairman of the PCEA Sponsor church. She urged that the transfer resulted from a series of meetings by the Respondents as a form of punishment for filing the suit against the 3rd Respondent in HJR Case No. 25 of 2025, which is not only discriminatory but also an abuse of power by the Respondents. The applicant added that the 3rd Respondent, in his Replying Affidavit, in the abovementioned case deposed that he declined to handover the school due to grievances of the sponsor church. The affiant further contended that the 2nd Respondent was aware of the orders of the Court pursuant to the application dated 21st October 2025 restraining the 2nd Respondent from taking any administrative actions against her during the pendency of the suit and the orders were served upon it. The affiant added that being the school’s accounting officer, she could not handover the school as the handing over included the school finances, assets and liabilities, which issues were still pending before the Court in Thika. She denied the Respondent’s assertions under Paragraph 47 of their affidavit arguing that the same were false as she produced the TSC human resource data from her portal which showed that there was no transfer application done by her. She added that she immediately appealed against the transfer as soon as she collected her letter from the 2nd Respondent, but the same did not elicit a response from the Respondents. She contended that due to the nullity of the handing over ceremony, she was still the principal of the school and the Respondents were in disobedience of the Court’s orders. She stated that the Respondents were acting maliciously and in abuse of office with the aim of infringing her employment rights. She alleged that the transfer was a collusion between the parties as the said Esther Kibui was proposed by the sponsor church on 6th May 2025 and was transferred on her own application; which action contradicted the Teachers Service Commission Act and the Code of Regulations for Teachers. She added that the 3rd Respondent’s hesitation to hand over the school from April 2025 and rush to hand over the same on 18th December 2025 indicated that the Respondents were not acting in good faith and there was abuse of office. She therefore urged he Court to grant her leave to file judicial review proceedings against the 1st Respondent. She added that the Respondents have continued to disobey court orders by having the said Esther Kibui run the school. She further prayed that the Court do grant an injunction preventing the Respondents from interfering with her position as principal of the school pending the hearing of the suit.
10. When the matter came up for directions on 15th January 2026, it was slated for mention on 19th January 2026. On the said date, the Court in its order noted that the orders issued on 8th January 2026 were interim in nature and that they had not been extended by the trial court on 15th January 2026 and they had since lapsed pursuant to Rule 45(4) of this Court’s Rules. Consequently, there was nothing to either be varied or discharged as sought by the Respondents. Being a judicial review matter, and the same having been mentioned before the Claims and Labour Relations Division, the matter was referred to the Principal Judge for mention for directions on 18th February 2026.
Applicants Submissions
As to whether leave ought to be granted, Counsel submitted that the applicant had an arguable case in that the letter of transfer stated that she had applied for transfer yet she had not and the 1st Respondent admitted the same in its Replying Affidavit sworn on 14th January, 2026 and the letter dated 5th December 2025 was neither amended nor served upon the applicant.
Reliance was placed on the sentiments of the court in Republic v County Council of Kwale & another Ex Parte Kondo & 57 others Mombasa HCMCA No. 384 of 1996 on the objective of seeking leave to apply for judicial review, to submit that the applicant had established a case for the grant of leave to commence judicial review proceedings.
3rd and 4th Respondent’s submissions
As to whether the 3rd Respondent acted unlawfully Counsel submitted that he did not as he neither approved nor communicate the transfer decision as it was the decision of the 1st Respondent, placing reliance on the provisions of section 54(7) of the Basic Education Act and the Constitution of Kenya.
Counsel submitted that the applicant was aware of the date of the handover and as such it was neither secret nor abrupt as alleged and it proceeded as scheduled.
Reliance was further placed on the decision in Republic v. County Education Board, Kitui County & 2 others (2003) KEHC 19575 (KLR) on the powers of the County Education Board. Also cited was the decision in Municipal Council of Mombasa Republic & Umoja Consultants Ltd (2002) eKLR to urge that the 3rd Respondent acted within the law.
As to whether the 3rd Respondent acted unlawfully, unreasonably or in a procedurally unfair manner, counsel reliance was placed on Suchan Investment Ltd v. Ministry of National Heritage & Culture & 3 others (2016) eKLR to urge that neither the 3rd nor the 4th Respondent acted as such and the Replying Affiant was clear as to when the handover took place and no evidence was availed to implicate the 3rd and 4th Respondent’s exercise of power or disregard of relevant facts.
Counsel further submitted that the order sought against the 3rd and 4th Respondent’s served no lawful utility and had been overtaken by events.
As to whether the applicant was entitled to Judicial Review Orders, Counsel submitted that none of the orders sought could issue against the 3rd and 4th Respondents.
Counsel urged the court to dismiss the case against the 3rd and 4th Respondent with costs.
Analysis
11. The main and only issue for determination by this Court is whether the application for leave to file judicial review proceedings is merited.
12. It is trite that the requirements for leave to file judicial review proceedings are enshrined under sections 8 and 9 (3) of the Law Reform Act and the Order 53 of the Civil Procedure Rules. The scope of judicial review proceedings was outlined by the Court in Simon Waweru v The Director G.T.I Mombasa and another [2004] KEHC 1469 (KLR) as follows:
“The judicial review jurisdiction was initially meant to control acts of the subordinate courts and statutory tribunals but has over the years been extended to cover even administrative acts of public officers. (See Ridge Vs Baldwin [1964] 1 ALL ER 66). The acts or decisions now do not have to be made on judicial or quasi-judicial capacities only in order to be amenable to judicial review. If they are not fair the court can intervene by way of judicial review. (See Re H.K. (an infant) [1967] 2 QB 617. Mr. Okello’s argument therefore that the GTI decision not to renew the tenancy was not a proceeding or that GTI does not have legal authority does not in the circumstances hold any water. It is common knowledge and Mr. Okello conceded that GTI falls under the Directorate of Personnel Management which is a department in the Office of the President. The duties of the GTI Principal are public duties and his acts and decisions are amenable to judicial review.”
13. IN AN APPLICATION SEEKING JUDICIAL REVIEW UNDER ORDER LIII CIVIL PROCEDURE RULES AND THE LAW REFORM ACT SUGAR ACT NO. 10 OF 2001 AND CUSTOMS & EXCISE ACT AND KENYA REVENUE AUTHORITY ACT AND THE CUSTOMS & EXCISE ACT AND KENYA SUGAR BOARD ATTORNEY-GENERAL [2004] KEHC 552 (KLR) the court held as follows:
It is to be noted that at this stage substantive orders cannot be given. The court can only allow or refuse leave.
Before considering the application for leave the court must be satisfied that a notice of the application has been given to the Registrar not later than the preceding day.
The application is accompanied by a statement of the name and description of the applicant, the relief sought and the grounds on which it is sought and by affidavits verifying the facts relied upon. Upon examination of this application I find these provisions are complied with. In giving leave the court is to consider whether there is a point fit for further investigation at a substantive hearing with all such evidence as is necessary on the facts and all such arguments as is necessary on the law – that there is an arguable case.
The hearing of Chamber Summons for leave should not be anywhere near so extensive as for the substantive Judicial Review hearing namely the hearing of Notice of Motion.
14. The Applicant’s application for leave was not defended by the Respondents and thus stands unchallenged. However, that alone is not sufficient to grant leave.
15. The threshold is outlined under Order 53 Rule 1 of the Civil Procedure Rules as follows:
APPLICATIONS FOR JUDICIAL REVIEW
1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise: emphasis added.
16. On the import of Sub-Rule 2 above, the court is guided by the holding of the Court of Appeal in Commissioner General, Kenya Revenue Authority Vs Silvano Onema Owaki Kisumu Civil Appeal No. 45 of 2000 as cited with approval in [2004] KEHC 1469 (KLR) above; where it was held as follows:
“We would observe that it is the verifying affidavit not the statement to be verified, which is of evidential value in an application for judicial review. That appears to be the meaning of Rule 1(2) of Order LIII. This position is confirmed by the following passage from the Supreme Court Practice 1976 Vol. 1 at paragraph 53/1/7: The application for leave “By a Statement” the facts relied on should be stated in the affidavit (see Republic ic V Wandsworth JJ., ex P. Read [1942] 1 KB 281). “The statement” should contain nothing more than the name and the description of the Applicant, the relief sought, and the grounds on which it is sought. It is not correct to lodge a statement of all the facts, verified by an affidavit”.
17. From the foregoing, the court is satisfied that the Application for leave to file judicial Review proceedings against the respondents is merited and leave ought to be granted.
18. On the issue of leave operating as a stay, it is discernible that a new principal had taken over the school, and in the circumstances the order that commends itself is maintaining the status quo.
19. In the upshot, leave is hereby granted to the Applicant to institute Judicial Review proceedings against the respondents and the status quo be maintained.
20. There shall be no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
21. In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
1. The ex-parte Applicant has proffered the instant Chamber Summons application premised on section 8 and 9 of the Law Reform Act CAP 26 of the Laws of Kenya, and Order 53, rules 1-4 of the Civil Procedure Rules 2010, seeking for orders that:
i. Spent.
ii. Spent.
iii. Spent
iv. That the Honourable Court be pleased to grant leave to the Applicant to apply for an order of Certiorari to remove to this Court and quash the letter by the 1st and 2nd Respondent’s letter dated 5th December 2025 Ref. No. TSC/348819/122 and addressed to the ex-parte Applicant, purporting to transfer her from Nge’nda Secondary School in Gatundu South Sub-County Kiambu to Dr. Kiano Girls’ Secondary School, Muranga County.
v. That this Honourable Court be pleased to grant leave to the Applicant to apply for Order of Prohibition directed at the 1st, 2nd, 3rd and 4th Respondents barring them from interfering with the ex-parte Applicant’s job placement as the Principal and Secretary of the Board of Management of Nge’nda Secondary School in Gatundu South Sub-County, Kiambu.
vi. That costs of the application be provided for.
2. The Application is grounded on the Statutory Statement dated 15th December 2025 and Verifying Affidavit sworn by the ex-parte Applicant.
3. The gravamen of the Applicant’s Application is that she received a transfer letter to Dr. Kiano Girls’ Secondary School without her application; therefore, terming it as an illegality and an abuse of power by the 1st and 2nd Respondents. She alleges that the 4th Respondent recommended the preferred teacher for the transfer to the 1st Respondent, and the transfer was on the basis of the said recommendation. She adds that the transfer is tainted with illegality, irrationality and impropriety as the Respondents’ actions are contrary to the rules of fair administration and thus, there is need to prohibit them from interfering with the Applicant’s placement as the Principal of Nge’nda Secondary School.
4. Subsequently, the Applicant filed a Notice of Motion Application dated 7th January 2026, under Certificate of Urgency grounded on section 10 of the Judicature Act, Rule 3(1 & 2) of the High Court Practice and Procedure Rules, section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules. In the said application, the Applicant sought orders that: the Application be certified urgent; the Court do grant the Applicant leave to be heard during court vacation; the Court do compel the 4th Respondent’s Chairman to unlock her office and the gate to Nge’nda Secondary School granting the Applicant unconditional access to the school, pending the hearing and determination of the application; the Court do issue temporary injunction or stay, restraining the Respondents or their agents from interfering with or removing the Applicant from her office as Principal and Secretary of BoM of the said school; and Cost be provided for.
5. The Application was grounded on the Applicant’s Supporting Affidavit and the grounds that: as per the 1st Respondent’s Teacher Management Information System, she was the Principal of the aforementioned school; that she had filed and served the application dated 16th December 2025; she received a transfer letter without her application for the same through the TSC Human Resource Portal as indicated in the letter; it is her belief that the transfer is an unfair administrative action done after filing of judicial review proceedings seeking to compel the 3rd Respondent to hand over the school to her; the matter was scheduled to be heard on 15th January 2026 but the 4th Respondent’s chairman had gone ahead and locked the Principal’s Office and the gate denying her access to the office; the school was still under her management and thus she had the duty to run the school affairs which included the intake of Grade 10 students; she cannot run the school with the interference from the Respondents and as a result, students would suffer the consequences of the crisis in management; and that it is in the interest of justice that the Court grants the orders sought.
6. When the matter came upon 9th January 2026, the Court issued interim orders compelling the Respondents to unlock the school and restraining them from interfering with the Applicant’s performance of her duties, pending inter-parties hearing of the application on 15th January 2026.
7. Consequently, the 1st and 2nd Respondents filed a Replying Affidavit and Notice of Preliminary Objection challenging: the Court’s jurisdiction to hear and determine the application, yet the leave sought vide the Chamber Summons had not been granted, the competence of the application on grounds that it was bad in law, incompetent and incurably defective for; want of leave, having been filed, admitted and heard during vacation without the requisite Chamber Summons Application as per Rule 3 of the High Court (Practice and Procedure) Rules and that it was subjudice the Application filed on 16th December 2025. It was contended further that without jurisdiction, the Orders issued on 8th January 2026 emanating from incompetent and incurably defective application ought to be set aside.
8. Relatedly, the 1st & 2nd Respondents filed a Notice of Motion Application dated 14th January 2025 under certificate of urgency seeking orders that: the Application be certified urgent and heard ex-parte in the first instance, the Court be pleased to set aside, discharge, vary and/or vacate its orders issued on a 9th January 2026 and the cost be in the cause. The application was grounded on the supporting affidavit sworn by Antonina Lentoijoni and the grounds that: the Application dated 16th December 2025 was heard ex-parte before Hon Lady Justice H. Wasilwa and the matter was certified urgent and directions issued for the same to be heard on 15th January 2026. The directions notwithstanding, the Applicant filed a similar application dated 7th January 2026 seeking similar orders wherein the Court issued interim orders and direction for the matter to be heard on 15th January 2026; that the Court lacked jurisdiction to hear and determine the said Application as the leave sought under Chamber Summons Application dated 16th December 205 had not been granted; that the impugned application was bad in law, incompetent and incurably defective as the same was filed without the leave required under the Law Reform Act and section 10(2) of the ELRC Rules 2024, was filed, admitted and heard during vacation without the requisite Chamber Summons Application as per Rule 3 of the High Court (Practice and Procedure) Rules, and is sub-judice the Application filed on 16th December 2025 which was pending before Court; that it was apparent that the Applicant was forum shopping as evidenced by the filing of multiple applications to get a more favourable outcome which amounted to an abuse of court process, vexatious litigation, waste of judicial resources and thus the same should be struck out with costs; that the orders sought have been overtaken by events as a new principal took over the school on 18th December 2025, long before the temporary orders were granted; that the interim orders were obtained through misrepresentation of facts as the Applicant failed to disclose that the hand over took place on 18th December 2025, that the new principal had taken over and was running the school, and failed to disclose that she had not obtained leave to file the substantive Notice of Motion as the issue on leave was scheduled for hearing on 15th January 2026.
9. In her Supplementary Affidavit sworn on 14th January, 2026, the applicant argued that her application dated 7th January 2026 was not bad in law or incompetent as she sought leave to be heard during vacation under Order 2. She deposed that on advice of counsel, which she relied on, she believed that one could file an application for interim relief or stay concurrently with one seeking leave to seek judicial review. She contended that the intended Principal, Esther Kibui was handed over Nge’nda Secondary School on 18th December 2025, despite there being a stay order issued on by the Hight Court at Thika in HJR Case No. 25 of 2025, issued on 12th September 2025. She deposed that although the letter dated 5th December 2025 was copied to the 3rd Respondent, it did not advise the 1st Respondent that it could not hand over the school due to the stay order that allowed her to continue holding her position pending the hearing and determination of the mater. She contended that the handover ceremony of 18th December 2025 was void ab initio as the orders were still in force as they had not been vacated or discharged. She contended that she was still the principal of the school as per the 1st Respondent’s Information Management System as she had not made any transfer requests contrary to the log ins of 14th January 2026. She acknowledged the 1st Respondent’s mandate to carry out its duties unhindered, noting however, that the decision to transfer her without her application despite her health status indicated that the same was made on recommendation of the PCEA Sponsor church, County Director of Education Kiambu, the County Education Board and the School BoM chairman who was also the chairman of the PCEA Sponsor church. She urged that the transfer resulted from a series of meetings by the Respondents as a form of punishment for filing the suit against the 3rd Respondent in HJR Case No. 25 of 2025, which is not only discriminatory but also an abuse of power by the Respondents. The applicant added that the 3rd Respondent, in his Replying Affidavit, in the abovementioned case deposed that he declined to handover the school due to grievances of the sponsor church. The affiant further contended that the 2nd Respondent was aware of the orders of the Court pursuant to the application dated 21st October 2025 restraining the 2nd Respondent from taking any administrative actions against her during the pendency of the suit and the orders were served upon it. The affiant added that being the school’s accounting officer, she could not handover the school as the handing over included the school finances, assets and liabilities, which issues were still pending before the Court in Thika. She denied the Respondent’s assertions under Paragraph 47 of their affidavit arguing that the same were false as she produced the TSC human resource data from her portal which showed that there was no transfer application done by her. She added that she immediately appealed against the transfer as soon as she collected her letter from the 2nd Respondent, but the same did not elicit a response from the Respondents. She contended that due to the nullity of the handing over ceremony, she was still the principal of the school and the Respondents were in disobedience of the Court’s orders. She stated that the Respondents were acting maliciously and in abuse of office with the aim of infringing her employment rights. She alleged that the transfer was a collusion between the parties as the said Esther Kibui was proposed by the sponsor church on 6th May 2025 and was transferred on her own application; which action contradicted the Teachers Service Commission Act and the Code of Regulations for Teachers. She added that the 3rd Respondent’s hesitation to hand over the school from April 2025 and rush to hand over the same on 18th December 2025 indicated that the Respondents were not acting in good faith and there was abuse of office. She therefore urged he Court to grant her leave to file judicial review proceedings against the 1st Respondent. She added that the Respondents have continued to disobey court orders by having the said Esther Kibui run the school. She further prayed that the Court do grant an injunction preventing the Respondents from interfering with her position as principal of the school pending the hearing of the suit.
10. When the matter came up for directions on 15th January 2026, it was slated for mention on 19th January 2026. On the said date, the Court in its order noted that the orders issued on 8th January 2026 were interim in nature and that they had not been extended by the trial court on 15th January 2026 and they had since lapsed pursuant to Rule 45(4) of this Court’s Rules. Consequently, there was nothing to either be varied or discharged as sought by the Respondents. Being a judicial review matter, and the same having been mentioned before the Claims and Labour Relations Division, the matter was referred to the Principal Judge for mention for directions on 18th February 2026.
Applicants Submissions
As to whether leave ought to be granted, Counsel submitted that the applicant had an arguable case in that the letter of transfer stated that she had applied for transfer yet she had not and the 1st Respondent admitted the same in its Replying Affidavit sworn on 14th January, 2026 and the letter dated 5th December 2025 was neither amended nor served upon the applicant.
Reliance was placed on the sentiments of the court in Republic v County Council of Kwale & another Ex Parte Kondo & 57 others Mombasa HCMCA No. 384 of 1996 on the objective of seeking leave to apply for judicial review, to submit that the applicant had established a case for the grant of leave to commence judicial review proceedings.
3rd and 4th Respondent’s submissions
As to whether the 3rd Respondent acted unlawfully Counsel submitted that he did not as he neither approved nor communicate the transfer decision as it was the decision of the 1st Respondent, placing reliance on the provisions of section 54(7) of the Basic Education Act and the Constitution of Kenya.
Counsel submitted that the applicant was aware of the date of the handover and as such it was neither secret nor abrupt as alleged and it proceeded as scheduled.
Reliance was further placed on the decision in Republic v. County Education Board, Kitui County & 2 others (2003) KEHC 19575 (KLR) on the powers of the County Education Board. Also cited was the decision in Municipal Council of Mombasa Republic & Umoja Consultants Ltd (2002) eKLR to urge that the 3rd Respondent acted within the law.
As to whether the 3rd Respondent acted unlawfully, unreasonably or in a procedurally unfair manner, counsel reliance was placed on Suchan Investment Ltd v. Ministry of National Heritage & Culture & 3 others (2016) eKLR to urge that neither the 3rd nor the 4th Respondent acted as such and the Replying Affiant was clear as to when the handover took place and no evidence was availed to implicate the 3rd and 4th Respondent’s exercise of power or disregard of relevant facts.
Counsel further submitted that the order sought against the 3rd and 4th Respondent’s served no lawful utility and had been overtaken by events.
As to whether the applicant was entitled to Judicial Review Orders, Counsel submitted that none of the orders sought could issue against the 3rd and 4th Respondents.
Counsel urged the court to dismiss the case against the 3rd and 4th Respondent with costs.
Analysis
11. The main and only issue for determination by this Court is whether the application for leave to file judicial review proceedings is merited.
12. It is trite that the requirements for leave to file judicial review proceedings are enshrined under sections 8 and 9 (3) of the Law Reform Act and the Order 53 of the Civil Procedure Rules. The scope of judicial review proceedings was outlined by the Court in Simon Waweru v The Director G.T.I Mombasa and another [2004] KEHC 1469 (KLR) as follows:
“The judicial review jurisdiction was initially meant to control acts of the subordinate courts and statutory tribunals but has over the years been extended to cover even administrative acts of public officers. (See Ridge Vs Baldwin [1964] 1 ALL ER 66). The acts or decisions now do not have to be made on judicial or quasi-judicial capacities only in order to be amenable to judicial review. If they are not fair the court can intervene by way of judicial review. (See Re H.K. (an infant) [1967] 2 QB 617. Mr. Okello’s argument therefore that the GTI decision not to renew the tenancy was not a proceeding or that GTI does not have legal authority does not in the circumstances hold any water. It is common knowledge and Mr. Okello conceded that GTI falls under the Directorate of Personnel Management which is a department in the Office of the President. The duties of the GTI Principal are public duties and his acts and decisions are amenable to judicial review.”
13. IN AN APPLICATION SEEKING JUDICIAL REVIEW UNDER ORDER LIII CIVIL PROCEDURE RULES AND THE LAW REFORM ACT SUGAR ACT NO. 10 OF 2001 AND CUSTOMS & EXCISE ACT AND KENYA REVENUE AUTHORITY ACT AND THE CUSTOMS & EXCISE ACT AND KENYA SUGAR BOARD ATTORNEY-GENERAL [2004] KEHC 552 (KLR) the court held as follows:
It is to be noted that at this stage substantive orders cannot be given. The court can only allow or refuse leave.
Before considering the application for leave the court must be satisfied that a notice of the application has been given to the Registrar not later than the preceding day.
The application is accompanied by a statement of the name and description of the applicant, the relief sought and the grounds on which it is sought and by affidavits verifying the facts relied upon. Upon examination of this application I find these provisions are complied with. In giving leave the court is to consider whether there is a point fit for further investigation at a substantive hearing with all such evidence as is necessary on the facts and all such arguments as is necessary on the law – that there is an arguable case.
The hearing of Chamber Summons for leave should not be anywhere near so extensive as for the substantive Judicial Review hearing namely the hearing of Notice of Motion.
14. The Applicant’s application for leave was not defended by the Respondents and thus stands unchallenged. However, that alone is not sufficient to grant leave.
15. The threshold is outlined under Order 53 Rule 1 of the Civil Procedure Rules as follows:
APPLICATIONS FOR JUDICIAL REVIEW
1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise: emphasis added.
16. On the import of Sub-Rule 2 above, the court is guided by the holding of the Court of Appeal in Commissioner General, Kenya Revenue Authority Vs Silvano Onema Owaki Kisumu Civil Appeal No. 45 of 2000 as cited with approval in [2004] KEHC 1469 (KLR) above; where it was held as follows:
“We would observe that it is the verifying affidavit not the statement to be verified, which is of evidential value in an application for judicial review. That appears to be the meaning of Rule 1(2) of Order LIII. This position is confirmed by the following passage from the Supreme Court Practice 1976 Vol. 1 at paragraph 53/1/7: The application for leave “By a Statement” the facts relied on should be stated in the affidavit (see Republic ic V Wandsworth JJ., ex P. Read [1942] 1 KB 281). “The statement” should contain nothing more than the name and the description of the Applicant, the relief sought, and the grounds on which it is sought. It is not correct to lodge a statement of all the facts, verified by an affidavit”.
17. From the foregoing, the court is satisfied that the Application for leave to file judicial Review proceedings against the respondents is merited and leave ought to be granted.
18. On the issue of leave operating as a stay, it is discernible that a new principal had taken over the school, and in the circumstances the order that commends itself is maintaining the status quo.
19. In the upshot, leave is hereby granted to the Applicant to institute Judicial Review proceedings against the respondents and the status quo be maintained.
20. There shall be no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
21. In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE