MSA (A Minor suing through her Mother and next friend SAA v Principal, the Ark Angels Kanyueri High School & another (Constitutional Petition E004 of 2024) [2025] KEHC 11168 (KLR) (23 July 2025) (Judgment)
Neutral citation:
[2025] KEHC 11168 (KLR)
Republic of Kenya
Constitutional Petition E004 of 2024
RM Mwongo, J
July 23, 2025
IN THE MATTER OF ALLEGED VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27(1) & (5), 28, 29 (1) (f), 35(1) (b) & (2), 43 (1)(f), 47(1) & (2), 48, 50 (1) AND 53 (1)(b)(d) & (2) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF RULE 2, 4, 10, 11, 13, AND 14 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF SECTIONS 8, 9, 13 & 22 OF THE CHILDREN ACT 2001
AND
IN THE MATTER OF SECTIONS 4(a) (b) & (e), 35 (2) & (3) & 36 OF THE BASIC EDUCATION ACT 2013
AND
IN THE MATTER OF SECTIONS 4 (1) (2) (3) & (4), 6 (1) OF THE FAIR ADMINISTRATIVE ACTION ACT 2015
AND
IN THE MATTER OF SECTIONS 4(1) (b) & 5 (d) OF THE ACCESS TO INFORMATION ACT 2016
Between
MSA (A Minor suing through her Mother and next friend SAA
Petitioner
and
The Principal, the Ark Angels Kanyueri High School
1st Respondent
The Ark Angels Kanyueri High School
2nd Respondent
Judgment
The Petition
1.The petitioner herein filed a petition dated 02nd May 2024 seeking the following orders against the respondents:1.A declaration that the Respondents’ actions and decision to expel the Petitioner are unconstitutional, unprocedural and wrongful;2.A declaration that the Respondents violated the minor’s right to basic Education, Fair Hearing, Fair Administrative Action, Access to information, Access to Justice, Equality and Non-discrimination;3.An order of certiorari, to remove into the Court and quash the decision of the Respondents to expel the Petitioner from the Respondent School and only attend school as a day scholar for her examinations;4.An order of prohibition directed at the Respondents herein barring them from further causing any mental anguish and cause any accusations to be levied on the Petitioner either in its present form or in any intended variation of the same;5.An order of mandamus directed at the Respondents herein to immediately and unconditionally issue a Transfer Letter to the Petitioner to allow her seek education in another institution;6.An order for Special Damages of Kshs.25,000/- Being school fees paid by the Petitioner for the year 2023. The minor will have to redo her Form three and will require fees for the entire year;7.An order for General and Aggravated Damages including exemplary damages for the contravention of the fundamental rights and freedoms of the Petitioner and for the mental anguish suffered due to the unconstitutional acts of the Respondents to be assessed by the Court;8.Costs of the Petition to be jointly borne by the 1st and 2nd Respondents; and9.Any other order that this Honorable Court may deem just and fit in the circumstances.
The Petitioner’s case
2.Until her expulsion from the 2nd respondent (hereinafter, ‘the School’), the petitioner was a learner in Form 3 at the School. Through the petition, it is her case that on or about 2nd October, 2023, the 1st respondent sent the petitioner’s fellow learner to inform her that the school has expelled her on grounds that she is engaged in lesbianism and drug use. She stated that no further explanation was offered by the 1st respondent, the School’s Principal. The petitioner was required to exit the School premises forthwith.
3.On the same date the petitioner’s mother received a call from the School’s Secretary informing her that her daughter had been expelled and that she should send transportation fare. The petitioner’s mother tried to plead with the school administration for more time since it was in the middle of the school term. Her pleas were declined. She sent the money required for the petitioner’s fare and the petitioner was sent away from the school on 02nd October 2023 at about 3.00 p.m.
4.The petitioner’s mother stated that the petitioner arrived home in Nairobi at about 10:30 p.m. She had no expulsion or release letter from the school. The petitioner’s mother tried to engage the respondents for an explanation as to her daughter’s release from school but they did not respond. Through her advocates on record, the petitioner reached out to the respondents who agreed to discuss the issue at the start of the year 2024. When the time came, they went quiet. All the while, the petitioner remained at home without the option of joining another school as she had not been issued with a transfer letter. In essence, the petitioner’s education was indefinitely halted, therefore necessitating this constitutional petition.
5.The petitioner claimed violation of her rights under the Constitution and statutes as stated hereinbefore. She highlighted the following violations:a.Article 24 which provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society;b.Article 25 which decrees that the right to a fair trial cannot be limited;c.Article 27 on the rights to equal treatment of all persons including the right to equal protection and equal benefit of the law;d.Article 43(1)(f) which guarantees the Petitioner’s right to education;e.Article 47 which requires all administrative actions to be expeditious, efficient, lawful, reasonable and procedurally fair;f.Article 48 which requires the state to ensure access to justice for all persons;g.Article 50 on the right to have disputes decided in a fair and public hearing before a court or tribunal of competent jurisdiction. Failure to conduct a disciplinary hearing, failure to offer the petitioner a chance to produce relevant documents, call and examine witnesses and peruse and document that may have been produced;h.Article 53 (1) (b) which entitles the minor to free and compulsory basic Education;i.Section 4(1) of the Fair Administrative Action Act which provides that every person has the right to administrative action which is Lawful and procedurally fair, and that one should be afforded an opportunity to be heard and to make representations in regard to a decision that would affect her;j.Section 35 of the Basic Education Act which prohibits holding back or expelling a student from school and provides that students should be given proper incentives to complete basic education;k.Article 35(1) (b) which entitles her to information held by another person and required for the exercise or protection of her right;l.Section 4 (2) of the Fair Administration Act which provides that every person has the right to be given Written reasons for any administrative action that is taken against her;m.Section 4(1)(b) of the Access to Information Act which entitles her to information held by another person and required for the exercise or protection of her right;n.Article 43(1)(f) which guarantees the Petitioner’s right to education;o.Article 53 of the Constitution which guarantees the Petitioner’s right to education;p.Section 13 of the Children Act which guarantees the Petitioner’s right to basic compulsory education;q.Section 4(a) of the basic Education Act which guarantees the Petitioner’s right to basic compulsory education;r.Article 27 of the Constitution which protects the Petitioner from discrimination on any ground and entitles her to equal protection and benefit of the law;s.Section 9(1) of the Children Act which provides that no person shall discriminate against a child on any ground or status;t.Article 53(1)(d) which provides that every child has the right to be protected from abuse, be it physical, emotional or mental;u.b. Article 28 which protects every person’s right to have their dignity respected and protected; andv.c. Section 22 (1)(a) of the Children Act which provides that no person shall subject a child to psychological abuse.
6.The petitioner provided documentary evidence in support of her case, including a toxicology report showing that she was not using any drugs.
The Respondents’ Case
7.The respondents filed a joint replying affidavit stating that on the day when the petitioner was released from the school, her mother had been called to go and pick her. However, she refused, saying that the petitioner had given her enough trouble as it were. That when the 3rd school term in 2023 began, the petitioner reported to school about 1 month late and no sufficient explanation was given by her or her mother. When the petitioner reported, a note was found amongst her belongings, indicating that she could have been pregnant at the time. It was the respondent’s case that the petitioner continually engaged in issues of indiscipline, including sneaking out of School on several occasions.
8.When the School asked the petitioner’s mother to come and discuss the necessary disciplinary measures, she refused to attend the School. The petitioner’s mother was then asked by the 1st respondent to send fare for her daughter to go home and she sent the money through the school bursar. The School had no choice but to release the petitioner, which occurred at about 10am. The respondents stated that it was not their fault that the petitioner got home late that night because she was released in the morning.
9.It was the respondents’ case that the petitioner was never denied a transfer letter. That, in fact, the school communicated the transfer process of a learner to the petitioner’s mother through her advocates but she failed/refused to initiate the process as required. That all she had to do was to procure the relevant form from the Subcounty Director of Education and bring it to the School for signature by the relevant officers. They produced WhatsApp messages between the 1st respondent and the petitioner’s advocate advising that the School had not refused to issue the transfer form, and that the petitioner’s parent needed to initiate the transfer process.
10.As for the issue of school fees, the respondents stated that the petitioner had defaulted in paying the fees for 3rd term, thus the school did not owe her anything. That in fact she owes the School for the days of that term when she stayed there as a boarding learner. They denied the allegation that the petitioner was sent away from School for being a lesbian and drug user.
The Petitioner’s Further Affidavit
11.The petitioner’s mother deposed that the respondents’ replying affidavit did not respond to the issue of violation of rights, rather, they focused on the petitioner’s character flaws. She stated that the petitioner delayed in reporting to School because of financial constraints, a matter that was well communicated to the school. She denied the respondent’s’ allegation that they had called her to the school on several occasions. She stated that when she sent fare for her daughter, the School Secretary refused to release the learner immediately on grounds that she had had lost some school property which she needed to replace before leaving. According to her, the petitioner was released at 3pm without any written information explaining her release.
Parties’ Submissions
12.The petition was canvassed by way of written submissions.
13.The petitioner submitted that the best interest of the child is paramount in this case. She asked the court to find that the manner in which she was removed from the School was unconstitutional and unprocedural. Reliance was placed on Article 50(1) of the Constitution and the cases of Ridge v Baldwin [1964] AC 40 and Catherine Chepkemoi Mukenyang v Evanson Pkemei Lomaduny & another [2022] KEHC 1548 (KLR) where the rules of natural justice were applied. She submitted that failure by the respondents to issue her with a letter of suspension or expulsion shows mischief on the respondents’ part.
14.Further reliance was placed on the case of F B O v Board of Governors [particulars withheld] High School [2017] KEHC 3083 (KLR) and the petitioner submitted that before filing the petition, she had attempted to engage the School for 8 months to no avail. That even with the responses filed, there is no reason why the petitioner was sent away from the School. Thus, she was denied her right to information as guaranteed by the Constitution. At the same time, the petitioner’s right to basic education was violated as a result of the respondents’ actions.
15.The Petitioner relied on Articles 35(1), 43, 53(1) of the Constitution, Article 26 of the Universal Declaration of Human Rights and the case of John Kiplangat Barbaret & 3 others v Attorney General & 4 others [2014] KEHC 1248 (KLR) and RCK (A Child suing through her mother and next friend KRC) v KSI [2014] KEHC 7489 (KLR). The petitioner sought damages of Kshs.1,000,000/= as a common law remedy, relying on the cases of Onjira John Anyul v University of Nairobi [2019] KEHC 10931 (KLR), Lucas Omoto Wamari v Attorney General & another [2017] KECA 334 (KLR) and Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR).
16.The respondents submitted that the petitioner’s expulsion was justified and in accordance with the School rules, due to her alleged erratic behaviour, lateness to school, refusal to attend preps and the like. To keep her in School would jeopardize the rights of other learners. They relied on the cases of Republic v Head Teacher, Kenya High School & another; SMY (A Minor Suing Through her Mother and Next Friend AB) (Ex-parte) [2012] KEHC 2492 (KLR), Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] KEHC 3187 (KLR), Francis Majimbo & another v Principal, Kianda School Secondary Section Petition No 281 of 2012; [2012] eKLR and Oluoch Dan Owino & 3 others v Kenyatta University [2014] KEHC 8577 (KLR). On the claim for damages, they relied on the case of Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and stated that the school does not owe the petitioner any money in fees or damages. They defended their actions relying on section 59 of the Basic Education Act which empowers the Board of the School to handle the situation in the manner that they did.
Issue for Determination
17.The core issue for determination is whether the petitioner’s rights were violated in the manner pleaded to warrant granting of orders sought through the petition.
Analysis and Determination
18.The petition arises from the decision of the respondents to send the petitioner away from the School. The Petitioner highlighted that the respondents accused her of being a lesbian and a drug user in the School. She contended that when she was sent away, she was not given any written information relating to her release. Until now, it is not clear whether the petitioner was suspended or expelled from the School. From a reading of order 3 as prayed by the petitioner, the respondents decided to expel her from the school but seemingly allowed her to attend her examinations as a day-scholar.
19.The petitioner’s mother deposed in her supporting and further affidavits that the petitioner arrived home late in the night because she was released from the School at about 3pm yet she had sent fare earlier that morning. The petitioner was not given a transfer form to facilitate her transfer to another learning institution.
20.In rebuttal, the respondents denied the allegations made by the petitioner and stated that the petitioner’s mother had been called to collect her daughter but she refused. Apparently, the petitioner’s mother told the 1st respondent that the petitioner had caused enough trouble which is why she did not want to go to the School to pick her.
21.However, the 1st respondent asked her to send fare through the School bursar, which she did. According to the respondents, the petitioner was released from the school that morning. The respondents denied that they had refused to issue a transfer letter and stated that the procedure for obtaining the letter was duly communicated to the petitioner’s advocates when they served a demand letter upon them. In their replying affidavit and written submissions, the respondents disclosed that the petitioner exhibited bouts of indiscipline in the School and she was not keen on learning. They stated that she sneaked out of the School compound and reported many days too late for school term opening.
22.For the petition to succeed, it is paramount that the alleged constitutional violations be established at was held in the case of Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR). The petitioner has pleaded the violations involved. Article 43(1)(f) of the Constitution provides that every person has the right to education. Article 53(1)(b) of the Constitution provides that every child has the right to free and compulsory basic education. The petitioner herein was just over 17 years old at the time she was sent away from the School. She was a child within the meaning of section 2 of the Children Act and Section 2 of the Basic Education Act. She was pursuing basic education at the 2nd respondent School.
23.Under the Basic Education Act, it is anticipated that learners who join educational institutions and will be incentivized and encouraged to stay therein and learn as provided under Article 53(1)(b) of the Constitution. The Act also anticipates that not all learners will automatically smoothly cruise through learning institutions. This is why there is provision for instances where a learner may be expelled from a learning institution. However, such expulsion is structured and there is a procedure to be followed. Section 35 of the Basic Education Act provides:
24.The petitioner appeared to the respondents as one of the learners fit to be expelled/suspended from the School due to her erratic behaviour. According to the Basic Education Regulations 2015, Part III thereof provides for school rules, discipline procedures for students, and exclusion. Under that part, Regulation 32 provides for indiscipline cases which the student may be individually held accountable for. It provides:
25.The petitioner alleged that the respondents said that she was involved in lesbianism and drug use in the school, an assertion that the respondents denied. The petitioner produced a toxicology report as evidence proving that she did not have any drugs in her blood. The allegation that the petitioner is a lesbian is unfounded and, in any event, it does not form part of the indiscipline cases stated under the Basic Education Regulations 2015. As to the allegation that she was using drugs, the toxicology report produced, together with the respondents’ denial of the assertion lean toward the unlikelihood that the petitioner was using drugs in the school.
26.The respondents alleged that the student reported to School late on occasion; that she failed to attend evening preps; that she claimed that her mother was forcing her to attend school which she did not want; that she did not carry out other assigned duties and sneaked out of school on occasion. However, the School did not avail evidence of any of these allegations.
27.The question in the Court’s mind remains: why was the petitioner sent away from the school yet no indiscipline case was disclosed against her in accordance with the Basic Education Regulations? If an indiscipline case had been disclosed against the petitioner, the respondents had an obligation under Regulation 38 of the Basic Education Regulations to formally write to the learner’s parent/ guardian stating the problem and the procedure going forward. This provision states:
28.The respondents confirmed that the petitioner was out of character and due to repeated acts of indiscipline, she had to be released from the school. That the petitioner’s mother was called to pick her but she refused. Despite this assertion, the respondents did not produce any written communication to the petitioner’s parent/guardian as required by law. The petitioner’s mother also deposed in her affidavit that no such letter was written to her. As stated earlier, without any such communication, it is unclear whether the learner was suspended or expelled and why she left the School under unclear circumstances.
29.Had the correct procedure laid down under the regulations had been followed, the respondents would have been held to have exercised their obligations under the Basic Educations Act to limit the petitioner’s right to education as provided under Article 24 of the Constitution. In such case, it would have been fair to limit the petitioner’s rights if she had been found to be indisciplined in the manner stipulated under the Basic Education Regulation 32 and the indiscipline acts addressed procedurally as required.
30.The respondents argued that the petitioner’s behavior was bound to negatively impact other learners in the institution, therefore, she had to be removed from the School. In the case of Johncom Media Investments Limited v M and others (CCT 08/08) [2009] ZACC 5, the Constitutional Court of South Africa had the following to say as regards dealing with competing rights:
31.In the present case, the respondents outrightly denied the petitioner’s rights as accorded by the Constitution without explanation or written communication. It then follows that the petitioner’s right to education under Article 43(1)(f) of the Constitution and the right to compulsory basic education as a child as provided under Article 53(1)(b) of the Constitution were grossly violated by the respondents when they removed her from the school unprocedurally and without cause. Until the time the petition was filed, the learner’s fate remained unknown following the respondents’ actions. No explanation by the respondents was forth coming.
32.The 2nd respondent is a public secondary school while the 1st respondent is its school principal; That title ‘Principal’ is defined under the Teachers’ Service Commission Act as “the lead educator or administrator in a post-primary school level educational institution appointed by the Commission as such and responsible for the implementation of educational policy guidelines and professional practices”.
33.Therefore, the respondents are public offices that are accountable to the judicial review process, including through a constitutional petition such as this one. Judicial review orders may be granted where appropriate remedies for constitutional violations as provided for under Article 43(3) of the Constitution. In addition, the High Court sitting as a constitutional court may consider the decisions of a public body, not only on the procedure but the merits thereof as well and where necessary, it may issue judicial review reliefs.
34.The respondents, being public bodies, are charged with offering fair administrative procedures in the course of their management and operations. The rules of natural justice are to be applied in order to attain fairness.
35.It cannot be disputed that the petitioner should have been given a chance to be heard through the procedures laid down in the Basic Education Act and regulations. This was not done. In fact, the disciplinary procedure was not even initiated, yet the respondents bore the responsibility to initiate it as required by law. In addition, the fact that the petitioner was sent away without any information explaining why she should be away from the School discloses that her rights to access that information were denied.
36.Even where a learner has committed acts of indiscipline, fairness and the right to be heard must be accorded. In the case of RCK (A Child suing through her mother and next friend KRC) v KSI [2014] KEHC 7489 (KLR) (supra), a learner brought drug-laced biscuits to school and shared them with her classmates. The school wrote to the learner’s parents and eventually, the learner was expelled from the school. The court in that case quashed the school’s decision to expel the student and substituted it with an order that the learner be suspended for the remainder of the academic year. Thereafter, the learner would resume studies and obtain the various qualifications that were pending. The court held:
37.As to the issue of enabling the learner to transition to a different learning facility, there is proof through WhatsApp messages that the petitioner’s mother was informed, albeit late, to initiate the transfer process and bring the relevant forms to the school for signing by the 1st respondent. The petitioner’s mother apparently did not follow up on this. The respondents stated that they did not have any objection to issuing the transfer letter through the laid-down procedure.
38.There seems to be a way-forward on that issue and the avenue remains open for the petitioner to pursue formal transfer to another learning institution where she may complete her studies. At this point, it is important to note that the learner has been out of the institution since October 2023 to date. In light of this, I think it would defeat the purpose to issue order 3 as prayed.
39.On the same note, the petitioner’s mother claimed Kshs.25,000/= which she had paid to the School as school fees for the term when the learner was removed from School. The respondents rebutted this position by stating that the petitioner owed them fees arrears and that the fees paid was towards the arrears. From a perusal of the pleadings and evidence, none of the parties produced receipts or acknowledgment of fees of any arrears thereof. In absence of proof, no order can be made on the alleged fees.
40.On the question of whether the petitioner should be paid damages, it has already been held that the petitioner’s right to education and a fair administrative process have been infringed. Article 23(3)(e) of the Constitution provides that an order for compensation may be made where it is found that a petitioner’s rights have been violated.
41.The petitioner relied on the case of Onjira John Anyul v University of Nairobi [2019] KEHC 10931 (KLR) (supra) where the court awarded Kshs.1,000,000/= to the petitioner who had been expelled and also suspended from the University of Nairobi. On this basis, the petitioner herein also claimed a similar amount. The respondent did not make any submission on the issue of compensation. This Court has found that the Petitioner’s rights were violated. Thus, due compensation may be granted to the petitioner for violation of her rights. In Onjira’s case the Court noted that the violation had persisted for 3 years from 2016; that the Petitioner was a medical student in the University of Nairobi whose medical career progression was seriously interfered with. The position in the present case is not as dire.
Disposition
42.In light of all the foregoing, the petition herein partially succeeds and I hereby make the following orders:a.A declaration issues that the Respondents’ actions and decision to remove the Petitioner from the School are unconstitutional, unprocedural and wrongful;b.A declaration hereby issues that the Respondents violated the minor’s right to basic Education under Article 43(1)(f) and Article 53(1)(b) of the Constitution, Fair Hearing under article 50 of the Constitution, Fair Administrative Action under Article 47 of the Constitution and Access to information under Article 35 of the Constitution;c.An order of mandamus hereby issues to the Respondents herein to, within 14 days of receipt of the relevant documents from the Subcounty education officer, unconditionally issue a Transfer Letter to the Petitioner to allow her seek education in another institution. Correspondingly, the petitioner and her parent/guardian are hereby ordered to, immediately following this judgment, visit the relevant Subcounty Education Offices to initiate the said transfer process;d.An award of Kshs.300,000/= is hereby awarded to the Petitioner as compensation for violation of the petitioner’s rights in the circumstances;e.Half of the costs of the petition shall be paid by the Respondents.
43.Orders accordingly.
DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 23RD DAY OF JULY, 2025................................R. MWONGOJUDGEDelivered in the presence of:Ms. Aoko for PetitionerJoy Irungu for Kiongo for RespondentsFrancis Munyao - Court AssistantConst.Pet No.E004 of 2024 M.S.A - Vs – The Principal, A.A. Kanyueri High Sch {Judgment} [R. Mwongo, J] Page 8 of 8