Fugicha v Methodist Church in Kenya (Suing Through its Registered Trustees) & 3 others (Civil Appeal 22 of 2015) [2016] KECA 273 (KLR)

Article 22(3) obligates the Chief Justice to keep formalities to a minimum and permit proceedings on informal documentation. The High Court judge failed to direct himself to this constitutional command and struck out the 'cross-petition' for want of form. Since the affidavit clearly disclosed the complaint, the violator and the constitutional provisions infringed, and the matter was fully canvassed, the striking out was draconian. The court proceeded to consider the merits.

The judge decided a question not pleaded - discrimination against unnamed non-Muslim students who were never enjoined. A discrimination claim requires a protected ground under article 27(4), a comparator pool and a discernible proof pattern. Allowing the hijab treated Muslim girls differently but placed no non-Muslim student at a disadvantage on any protected ground. The court endorsed the principle that unequal matters may be treated unequally and that equality should not be confused with uniformity.

Applying the Sarika four-step proof pattern: the criterion is the uniform policy; the comparator group is the wider non-Muslim body whose beliefs are not compromised; the Muslim girls suffered a particular disadvantage because the hijab is a genuinely held religious obligation; and the justification (uniformity, feared disorder) was hollow, with no rational connection to the aim and disproportionate. The burden of justification rested on the school and the church, which did not discharge it.

Article 8 bars a state religion but does not demand hostility to religion; the Preamble acknowledges God and constitutional interpretation requires harmonious reading. Accommodation is a positive measure enabling equal participation; it imposes no religious dress code on others. The 'parade of horribles' argument was rejected on the authority of Pillay: acceptance of one practice does not require permitting all practices.

Any limitation of a fundamental freedom must be by law and be reasonable and justifiable in a free and democratic society under article 24. School rules, being inferior to statute and the Constitution, cannot limit the manifestation of religion. The Basic Education Act, sections 4 and 27, actually obliges sponsors and schools to respect religious diversity. Schools must also establish fair exemption procedures consistent with the doctrine of accommodation.

The court held that the Kenya High and Alliance High cases suffered from a deficit of analysis, gave no attention to indirect discrimination under article 27(4) and scant attention to accommodation, and contained dicta suggesting hostility to religion inconsistent with the Constitution. They therefore lose their persuasive quotient and cannot guide decision-making on religious attire in schools.