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MAASAI MARA UNIVERSITY

SCHOOL: EDUCATION

COURSE:

COURSE CODE: EDA 4203

SUBMITTED TO: DR. KARA

NAME REG:NO SIGN

AUMA CATHERINE EB05/SR/MN/5870/2017
OCHIENG
MERCYLINE HASSAN EB05/SR/MN/5525/2017
GITIYE CLEOPHAS EB05/SR/MN/5496/2017
MIKIRARI CHRISTINE EB05/SR/MN/4969/2017
KENDI
MARY NYAGA EB05/SR/MN/5495/2017
FRANCIS MWAI EB05/SR/MN/5494/2017
MBAE MWENDWA BESSY EB05/SR/MN/5834/2017
KUBAI M KENETH EB05/SR/MN/5496/2017
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The plaintiffs are KIBORE WANGUI LUCIA, MBOTE NELLY MWIKALI, JACOB
ODHIAMBO ODANGA, MURABULA EMILY AKWANYI and NELLY GATIE JARA
lodged appeals with the Tribunal through Charles B. G. Ouma & Company Advocates against
the KENYA SCHOOL OF LAW as the respondent and the COUNCIL OF LEGAL
EDUCATION as an interested party.
The matters be certified as urgent and the appeals be fixed for inter parties hearing on priority
basis.
b) The Tribunal do declare that the appellants qualify for admission to Advocates training
programme (ATP) by dint of section 1 (a) schedule 2 of the Kenya School of Law Act, 2012.

c) The Tribunal to issue an order compelling the Kenya School of Law to admit the appellants to
the Advocates Training Programme (ATP).

d) The Tribunal to make any necessary orders.

The grounds of appeal as can be discerned from the respective motions by the appellants are:-

a) THAT the appellants are apprehensive and worried that the respondent will decline to admit
them into the Advocates Training Programme (ATP) based on the Kenya Certificate of
Secondary Education (K. C. S. E) results, despite being qualified under section 1 (a) of the
schedule to the Kenya School of Law Act, 2012.
b) THAT the respondent’s actions of denying admission to the Advocates Training Programme
(ATP) to the category of students comprising the appellants was a violation of the appellants
rights to fair administrative action as the same was unreasonable and thwarts their legitimate
expectations based on the representations of the respondent.
c) THAT the denial of the appellants’ admission is based on a misinterpretation of the law.
d) THAT it is in the interest of justice that the appeal be allowed and the orders sought granted.

The appellants to buttress their respective appeals have deponed to the facts in support and
annexed their respective documents. The appellants’ hinge their respective appeals on the
provisions of articles 47 and 159 of the Constitution of Kenya, 2010, section 29 of the Legal
Education Act, 2012, the Kenya School of Law Act, 2012, Council of Legal Education Act, 2009
(repealed) and all other relevant legal provisions.
The matters be certified as urgent and the appeals be fixed for inter parties hearing on priority
basis.
b) The Tribunal do declare that the appellants qualify for admission to Advocate training ATP by
dint of section 1 (a) schedule 2 of the Kenya School of Law Act, 2012.
c) The Tribunal to issue an order compelling the Kenya School of Law to admit the appellants to
the Advocates Training Programme (ATP).

d) The Tribunal to make any necessary orders.

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The grounds of appeal as can be discerned from the respective motions by the appellants are:-
a) THAT the appellants are apprehensive and worried that the respondent will decline to admit
them into the Advocates Training Programme (ATP) based on the Kenya Certificate of
Secondary Education (K. C. S. E) results, despite being qualified under section 1 (a) of the
schedule to the Kenya School of Law Act, 2012.
b) THAT the respondent’s actions of denying admission to the Advocates Training Programme
(ATP) to the category of students comprising the appellants was a violation of the appellants
rights to fair administrative action as the same was unreasonable and thwarts their legitimate
expectations based on the representations of the respondent.
c) THAT the denial of the appellants’ admission is based on a misinterpretation of the law.
d) THAT it is in the interest of justice that the appeal be allowed and the orders sought granted.

The appellants to buttress their respective appeals have deponed to the facts in support and
annexed their respective documents. The appellants’ hinge their respective appeals on the
provisions of articles 47 and 159 of the Constitution of Kenya, 2010, section 29 of the Legal
Education Act, 2012, the Kenya School of Law Act, 2012, Council of LegalEducation Act, 2009
(repealed) and all other relevant legal provisions.
The respondent in opposition to the appeal contended that matters of admission to the Advocates
Training Programme offered by it were exclusively provided for under section 16 of the Kenya
School of Law Act, no. 26 of 2012. It challenged the jurisdiction of the Tribunal contending that
it was limited to matters that relate to the Legal Education Act, 2012.
Whether the Appellants are entitled to the orders sought.

The appellants seek a declaration of eligibility into the Advocates Training Programme and
consequent admission by the Tribunal to the Kenya School of Law. The Tribunal finds that the
appeal is premature as no adverse decision has been taken by the respondent or the interested
party on the pending applications submitted by the appellants for admission into the Advocates
Training Programme for the academic year 2021/2022. An appeal cannot be lodged against a non
– existent decision. The Tribunal accordingly refrains from exercising its well espoused
jurisdiction in this matter without delving into the merits of the dispute before it to avoid
prejudicing the respondent and the interested party from addressing the pending applications
based on the statutory mandate accorded to them. The dispute is not ripe for consideration by the
Tribunal. The Tribunal is well guided by the authority in Wanjiru Gikonyo & 2 Others v
National Assembly of Kenya & 4 Others, (2016) eKLR where it was held inter alia that;

“Effectively, the justifiability dogma prohibits the court from entertaining hypothetical or
academic interest cases. The court is not expected to engage in abstract arguments. The court is
prevented from determining an issue when it is too early or simply out of apprehension, hence
the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for
determination.”
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The appellants have not established facts that merit intervention of the Tribunal on a threat to
breach of the right to fair administrative action to the required standard at this stage. They have
fallen short of the standard set in law by the Court of Appeal in Alfred N. Mutua v Ethics &
Anti-Corruption Commission (EACC) & 4 Others, (2016) eKLR where it was stated;

“34. We find that the applicant is entitled in law to institute proceedings whenever there is threat
of violation of his fundamental rights and freedoms or threat of violation of the Constitution.
Whether there is a threat of violation is a question of fact and evidence must be adduced to
support the alleged threat.”
The respondent was required by its establishing law to consider an application for admission to
the Advocates Training Programme and once satisfied that the applicant qualified it would grant
admission to the school. To entertain the appeals before the Tribunal it would amount to
arrogating the statutory duties of the respondent as the Tribunal would end up granting
admissions to the school. The purpose of fair administrative action was to seek to scrutinize the
process and legality of a decision made by an entity and the appellants could not challenge a
decision that had not been made.
the respondent relied on the decision in Victor Juma v Kenya School of Law, Council of Legal
Education (Interested Party), (2020) eKLR; in which while upholding the decision taken by the
respondent it was observed;
“The right to education can only be enjoyed in the context of the laws of the country. One can
only pursue a course of his choice if he qualifies for that course. Being denied the opportunity to
pursue a course that one does not qualify for cannot be said to be a violation of the rights to
education.

Petition 158 of 2020

This case is presented in High court of Kenya at Nairobi constitutional and human Rights
division. The case presented is the challenging online learning introduced by Oshwal Academy
due to COVID-19 pandemic. Also, the Oshwal Academy expected the parents to clear the school
fees before 15th may 2020 they also threatened the parents to deregistering students for non-
payment of fees.
The plaintiff in this case is parents or guardians of students minors currently schooling at Oshwal
Academy. The defendant is the Oshwal education Relief Board.
The parents or guardians seek the reliefs from the respondents(Oshwal Academy) to which some
included the following;
(a)The respondent to consider the best interests of children in the school whenever they make
policy decisions and also must consider and consult the consult of parents before implementing
the same.
(b)That the Oshwal Academy should be ordered only to charge the proportionate fees for the
service offered which is virtual learning.
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(c) That a declaration and is hereby issued that the petitioners are entitled by virtue of article 36
of the the constitution,s.55 and the third schedule of the Basic education Act No.13 of 2012 to
establish a parent association that is recognized and is able to engage the school.
The Oshwal Academy (respondent) response to this case is the opposition of the petition on the
ground that same does not meet the pleading test for constitutional petition as set up in cases of
Anarita Karimi Njeru v Republic (1979).
Also the contention that an independent and unaided Private institution does not exercise public
function and the relationship between it and the petitioners is nothing more than contractual and
court has no jurisdiction on matters of admission,fee structure, constitution of governing body
appointment of staff and other services provided by the school to the students who have
voluntarily enrolled and registered with it.The case was judged on the two grounds that is
whether the petition raises o constitutional dispute and if so whether the petitioners have
established a case for grant of the holders sought.it was argued that this court does not entertain
the petition on different surfaces.
That the petition does not met the pleading test for constitutional petition as laid down in Anarita
Karimi Njeru (supra)and Mumo Matemu(supra).Another ground on which the court is asked to
dimiss the matter is that the petition concerns alleged breach of the contract between the
petitioners and the Oshwal Academy and has nothing to do with violation of constitution and
rights and freedom enshrined therein.
PETITION 133 OF 2013
In this case the plaintiff is a petitioner,who is the father of one M B M
The defendant is the cabinet secretary of Education
The Petitioner states that he is the father of one, M B M, who in February 2013 was offered a
Form 1 slot to further his education at [Patriculars withheld] High School.
The Petitioner now contends that the Principal of the [Patriculars withheld] High School initially
declined to admit his son for the reason that he was unable to secure the required school fees. He
adds that for reasons beyond his control, his business suffered a major setback and this has
impacted on his inability to raise requisite funds. The Petitioner seeks the indulgence of this
Court to enable him organize himself as he has other school going children, but his prayer is that
his own dire circumstances should not deny or affect the future of his son's secondary education.
The Petitioner has added that prior to moving this Court, he made an effort to have this issue
resolved and to that end he sought audience with the Nyeri County Director of Education, one
Mr. Harrison, as well as the Director of Secondary Schools based at Jogoo House, one Mr.
Masese, to no avail.
The Petitioner also complains that the Respondents are determined to deny his son his right to
education as provided for in Article 43(1) and Article 53 (1) (b) of the Constitution and he
believes that the Respondents have no interest in his socio- economic situation and contends that
his son has a right to seek bursary from the Respondents because under the Constitution and the
Basic Education Act, the Respondents are tasked with the responsibility of providing free and
compulsory education as well as cushioning vulnerable families like his.
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However the case was handled by looking at the various constitutional clauses and articles that
were attahed to the presented case.For instance;Article 43 of the Constitution which states that;
“Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care services,
including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
(2) A person shall not be denied emergency medical treatment
(3) The State shall provide appropriate social security to persons who are unable to support
themselves and their dependants.”
The petitioners issue was all about education and getting bursary for his needy son which her
never got.The information before the Court showed that the Petitioner in fact applied for a
bursary through the Ministry of Education from the Constituency Bursary Committee on the 18th
February, 2013 before he moved the Court. The application forms were received by the said
High school with the Head teacher, a Mr. Muriithi indicating that the Petitioner's son is indeed
needy. It is unclear, to me what action was taken upon such determination was made.
However, the very fact that the Petitioner's son was admitted to the school and the school indeed
accepted his needy status and the fact that some money was procured from the CDF kitty should
not be seen as an infringement on his right to education.
Having so said and noting my sentiments above regarding the need to have the right to
education, I will not dismiss the Petition. I say so because I believe that the Petitioner is still
deserving of a remedy and under Article 23 of the Constitution, this Court is obligated to grant
“an appropriate relief” where a matter deserving of it is brought to its attention.
Therefore;No party has succeeded or lost and so each should pay its own costs as each party was
again send to make reports supporting their claims and the case would later be determined
according to the said reports.
Petition 41 of 2015
PLAINTIFF
The Petitioner herein, A B H, is a mother of a student, who like her mother, professes the
Muslim faith. The Petitioner says that her daughter was suspended from (Particulars Withheld)
Girls’ High School, situate in Taita Taveta County for allegedly refusing to attend Christian
service on Sunday 21st June, 2015 a ground which the First Respondent denies and says the
suspension letters were due to disobedience of school authority and negligence to school routine,
and no student’s rights as enshrined in Article 32 of the Constitution of Kenya were contravened.
The Petitioner says that the suspension of the Muslim girl students at (Particulars Withheld)
Girls’ High School on 22nd June, 2015 for refusing to compulsorily attend Christian worship is
not consistent with their Islamic faith and is a gross violation of the law and that it cannot go
unchallenged.
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THE RESPONDENTS
The First Respondent is the Board of Management of Bura Girls’ High School, and is sued for
failure to protect the human rights and promote the best interest of the child.
The Second Respondent is the County Director of Education, Taita Taveta County and is sued
through the Attorney-General, for failure to carry out his duties under Section 54(7) of the Basic
Education Act, 2013, being the office charged with the responsibility of admissions, discipline,
auditing of the basic education institutions, management and monitoring of education programs,
management of basic education and implementation of education policies which are all geared
towards ensuring quality standards pursuant to Section 4 of the Act, and that they are guided in
discharging their duties by principles of non-discrimination, promotion of peace, integration,
cohesion and inclusion amongst others.
The Petitioner’s Application for interim orders to lift the suspensions of the thirty eight (38) girl
students of the Muslim faith were declined by the court as such orders would unnecessarily
interfere with the orderly management of the school by the First Respondent, the Board of
Management of (Particulars Withheld) Girls High School in consultation with the County
Director of Education. The court did however direct the First Respondent to re-admit those
students who were suspended, and who agreed to abide by the Regulations and Rules of
(Particulars Withheld) Girls’ High School. The court was informed that most of the suspended
students had reported back to school and were attending class and other activities of the school.
RULINGS
Counsel rejected the Respondent’s argument that the Petitioner’s daughter had signed an
undertaking to abide by the schools’ regulations which identified the sponsor as the Catholic
Church and those Catholic traditions must be followed. Counsel submitted that though
Sectin4(1) of the Basic Education Act is in tandem with Article 10 of the Constitution, the
Schools’ Rules are not, and are by forcing non-Catholic students to attend to Catholic Mass and
traditions unconstitutional.
PETITION NO. 10 OF 2019
This is the first ever case or petition in this country brought on behalf of a Rastafarian child who
has been denied the right to receive education because she wears rastas (dreadlocks) due to
religious beliefs. JWM alias P, the Plaintiff, is father to MNW a 15 years Rastafarian girl who
was admitted to Form One at O High School, a public secondary school, for her secondary
school education in January 2019. She reported to school, paid the required fees and was dully
issued with admission Number, allocated a class and even attended lessons. However, it was
soon discovered that keeps rastas which lead to her being sent home with a warning not to return
to school until she had shaved the rastas.
The Plaintiff felt this was discrimination and a violation of MNW’s right to education based on
her religious beliefs. He filed this case on behalf of the minor against the Board of Management
of O High School, the ministry of Education and the Attorney General, the 1st, 2nd and 3rd
respondents respectively, challenging the School’s action.
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The Plaintiff averred that his family is Rastafarian by faith and keeps rastas as a mark of their
religious beliefs; that after MNW’s Kenya Certificate of Primary Education Examination
(KCPE) results, she applied for form 1 admission at the 1st respondent’s school and indicated in
the form that she was Rastafarian by religion; that she was admitted and reported to school on
10th January, 2019; paid the required school fees; issued with admission number and attended
classes. He further averred that MNW was later summoned by the school authorities,
admonished for keeping rastas and sent home not to return until she shaves the hair.
The Plaintiff stated that he approached Head Teacher the following day, 11th January, 2019,
with a view to sorting out the issue in order to have MNW back in school but was turned away
without being given a hearing. His attempt to have the Education Officer intervene bore no fruit.
It is the Plaintiff's case that the Respondents’ action was not only discriminatory on grounds of
religion but also a violation of MNW’s right to religion, education and fair administrative action,
contrary to Articles 27, 32, 43 and 47(1) of the constitution. The Petitioner therefore sought the
following reliefs;
Respondents’ /defendants' response
The Respondents filed grounds of opposition dated 25th January 2019 and a replying affidavit by
Michael Kahora Waichinga, the Head Teacher and Secretary of the 1st Respondent, sworn on the
same day in response to the petition. In the grounds of opposition, the Respondents contended
that it is the 1st Respondent’s mandate to make rules for the management the school; that the
Petitioner has not challenged the legality or constitutionality of the school rules; that MNW
accepted to be bound by the school rules; that the Petitioner has misconstrued and misapplied the
import of enjoyment of rights and fundamental freedoms and the limitation thereof; that the
school dress code is part and parcel of school management and that the Petitioner has not shown
how the right to religion is related to the right to education.
In the replying affidavit, Mr. Waichinga deposed that as a public secondary school, the school is
managed by a Board of Management; that the school admits students from all walks of life and
from various religious backgrounds; that MNW’s mother approached the school seeking a
chance for her daughter and that after the school was satisfied with her KCPE performance, she
was admitted but strictly in accordance with the school rules and regulations.
Mr. Waichinga further deposed that a calling letter was issued to MNW with an admission form
which she filled and thereafter reported for admission on 10th January, 2019. According to the
deponent, MNW was given admission No. 4016 after the she signed to be bound by school rules
and regulations. He stated that although NMW had indicated her religion as Rastafarian, she
wore a hijab and she had informed teachers that she was Muslim which explained why she had a
hijab.
He further stated that it was when she was being issued with school uniform that the hijab fell off
revealing the rastas. He contended that it was at that point that MNW was reminded about the
school rules but was allowed to attend classes for the day and advised to comply with school
rules the following day.
According to the deponent, the following day, 11th January 2019, the Petitioner went to school
accompanied by MNW but they were told that she had to comply with school rules and that she
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would not be treated in a special way. He deposed that at that point the Petitioner and MNW
stormed out of the office and left. Mr. Waichinga further deposed that he informed the Sub
county Director of Education of the incident who ordered that a report be prepared; that a report
was prepared and showed that MNW had violated rule 7 of the school rules and regulations
which prohibits students from keeping dreadlocks. He contended that the Rastafarian Society has
nothing to do with the right to Education and denied that they violated any of MNW’s right.
The court then stated;
The right to freedom of conscience, religion, thought, beliefs and opinion…in its various facets
is far-reaching and profound; it encompasses freedom of thought on all matters, personal
conviction and the commitment to religion or belief, whether manifested individually or in
community with others, privately or in public. The manifestation through observance includes
observance of a day of worship, and a believer will not be subject to coercion which would
impair his freedom to have or to adopt a religion or belief of his choice.

In the end, therefore, having considered the petition, submissions, the Constitution and the law,
as well as both local and foreign decisions, I am satisfied that the Petitioner has made out a case
that the Respondents’ decision to exclude the minor from school for keeping rastas which
symbolize her religious beliefs and the attempt to force her to act contrary to her religious
beliefs, is a violation of her constitutional rights to religion and education guaranteed by the
Constitution and is therefore null and void.
A declaration is hereby issued that the decision by the School administration of O High School to
exclude MNW from school on the basis of her keeping Rastas which manifests her religious
beliefs is a violation of her rights guaranteed under Articles 32, 43 and 53 of the constitution and
is therefore unconstitutional null and void.