Wh & At-h (suing As Father and Mother and Next Friend of A Minor Bh) v The Board of Management of International French School of Nairobi

RULING (On the Respondent’s Notice of Preliminary Objection dated 3rd October 2025) 1. This is the Ruling on the Notice of Preliminary Objection dated 3rd October 2025 filed by the Respondent on the 3rd of October 2025. The Respondent’s Preliminary Objection contends that the “Board of Management of International French School of Nairobi” is not a juristic person or a proper party in law capable of being sued; and thus the Petition herein is fatally and incurably defective and should be struck-out with costs. Parties’ Positions 2. The Respondent’s Notice of Preliminary Objection dated 3rd October 2025 argues that the Board of Management does not exist in law under the Basic Education Act and so is a misjoinder. The Respondent contends that the Petition should have been brought against the school itself a body corporate or the Board of Governors, not the Board of Management. The Respondent further argues that an unincorporated body like the Board lacks legal capacity to be sued. 3. In its submissions dated 23rd October 2025, the Respondent submits that its objection raises a pure point of law: namely, the non-existence of legal personality for the Board. The Respondent contends that the Basic Education Act establishes a Board of Management only for public schools (Section 55) and not for private schools, and that nothing in the Act or any regulation creates a Board of Management for a private institution. 4. The Respondent, therefore, contends that Board does not exist “in law.” Even if it did exist, the Respondent argues in the alternative that the Board of Management of the International French School of Nairobi could only be deemed as an unincorporated body of persons without corporate status, and that Kenyan law is settled that only juristic persons have capacity to sue or be sued. 5. The Respondent points to the cases of Kenya Power & Lighting -v- Benzene Holdings and Mitikenda Residents Association -v- Njuguna and the holdings therein that non-existent or unincorporated entities cannot litigate in their own name. Finally, the Respondent submits that, while the child’s interests are important, they do not override clear legal requirements. In their eyes, Article 159(2)(d) and its imperative that Courts should not pay undue regard to procedural technicalities cannot be read to permit any Court to confer jurisdiction on itself that it does not have or to ignore a fundamental incurable defect. The Preliminary Objection, the Respondent concludes, should be upheld. 6. In the Petitioners opposed the Respondent’s Preliminary Objection by way of both a Replying Affidavit dated 13th October 2025 as well as the Petitioners’ Written Submissions of even date. The Replying Affidavit countered that the Board’s existence or non-existence was a contested question of fact, with the Respondent and the Petitioner taking contrasting positions. 7. The Petitioners’ argument for the existence of legal personality for the Respondent as sued was buttressed by their reference to an alleged civil suit in which the Respondent as named by the Petitioners is a party. 8. The Petitioners written submissions dated 28th October 2025 reiterated that the Board of Management was in fact constituted and active at the school, and it performs statutory functions. The Petitioners further submit that the Respondent’s Preliminary Objection does not solely raise a pure point of law and instead relies it relies on contested facts as its basis, specifically the contested fact of whether the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 2

page 2 of 7

Board of Management exists or doesn’t exist within the subject school and what is its legal status. They thus contend that the Respondent’s Preliminary Objection fails the three-pronged for a Preliminary Objection as established in the seminal case of Mukisa Biscuits Manufacturing Co. Ltd -v- West End Distributors Ltd (1969) EA 696. 9. The Petitioners further argue the Board of Management does exist both in fact and in law under the Basic Education Act and the associated regulations and that Section 55 of the Basic Education Act does not state that private schools cannot have a Board of Management or that only the Parents Teachers Association of a private school can be sued. 10. The Petitioners proceed to argue that even if the Board were deemed an unincorporated body, the Petitioners urge the Court to apply the broad definition of person under the 2010 Constitution to include the Respondent as framed in the Petition. Article 260’s broad definition of “person,” to submit that no absolute bar exists to proceeding. 11. In its rejoinder written submissions dated 24th November 2025, the Respondent has countered that the statutory position under the Basic Education Act is conclusive and it establishes clearly that private schools do not have Boards of Management. The Respondent further argues in rebuttal that nothing in the Education vests legal capacity to sue or be sued in a Board of Management of a private school. 12. The Respondent also argues that the evidentiary materials such as minutes and letters which point to the existence of a Board of Management within the subject school and which were adduced by the Petitioners cannot manufacture legal personality where none exists. Similarly, the Respondent argues that the mere fact that in other proceedings the subject school may have litigated under a Board of Management cannot be construed as an admission of legal capacity. 13. Having considered the pleadings and submissions, the Court frames the following issues as being ripe for determination: a. Whether the Preliminary Objection meets the Mukisa Biscuit test; and b. Costs of the Objection. Analysis Whether the Preliminary Objection raises a pure point of law 14. A proper Preliminary Objection must satisfy the test laid out in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, where Law J.A. stated: “ A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Newbold P added: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 3

page 3 of 7

15. This test has been consistently upheld, including in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] eKLR, where the Supreme Court emphasized that a Preliminary must not require factual inquiry. Thus, under the Mukisa Biscuit criteria, a Preliminary Objection: a. Must solely raise a pure point of law; and b. Be in the nature of a demurrer and be based on an assumption that all facts pleaded by the opposing party are true; and c. Not require the Court to ascertain any facts or establish the correct position with respect to contested or disputed facts. 16. In the present case, the Respondent’s Notice of Preliminary Objection dated 3rd October 2025 most certainly solely raises a pure point of law; which is in the form of an objection based on the question of legal capacity to be sued. Once raised, that pure point of law must succeed, but that is analyzed once all three ingredients of a valid Preliminary Objection have been established. 17. On to the second limb, the Respondent’s Preliminary Objection invites this Court to ascertain various facts which are contested between the parties, including whether or not the subject school has a Board of Management. 18. A Preliminary Objection is not the same as a Notice of Motion Application seeking striking-out, although the ultimate outcome upon success is the same in both instances. Once a Preliminary Objection requires a court to engage in a fact-finding expedition and to make a finding on the relative merits or demerits of facts in contest, then the same is not a Preliminary Objection under the law. 19. In the present case, once determining the points raised by the Respondent required this Court to adjudicate on whether factually a Board of Management exists or does not exist within the subject school, and to towards that end examine minutes and documents, filings in another case, and correspondences; then the second limb failed and the Respondent’s Preliminary Objection strayed into the waters of an Application to Strike-Out and not a Preliminary Objection. 20. Similarly, and on the third limb, the Preliminary Objection is not in the nature of a demurrer that accepts all the facts as pleaded by the opposing party as being true. The Respondent not only rejects the factual existence of the Board of Management of the subject school that is contended as a fact by the Petitioner, but also the Petition’s description of the Respondent as being wholly the subject school and interchangeable with it. 21. The Petition at the description of parties and also in the factual background uses the term “the Respondent” to refer to both the subject school and the various organs and officers therein. A Preliminary Objection that does not assume the validity and veracity of these factual positions cannot be properly viewed as a Preliminary Objection. 22. Turning now to the merits of the point of law raised, the Respondent has stretched Section 55 of the Basic Education Act well outside its intended scope. Firstly, Section 55 of the Act does not state that private schools shall not or cannot have Boards of Management, rather it says they must have Parents Teachers Associations. Secondly, that Section does not state that only the Parents Teachers Association of a private school can be sued for the alleged legal failings of the school. The Basic Education Act is not particularly insightful in support of the Respondent’s position. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 4

page 4 of 7

23. What is insightful is that the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 states at Rule 5(b) “ A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.” 24. Rule 5 proceeds to empower the High Court to add any Respondent as it sees just, fit, and proper to add in the pursuit of a determination of the dispute on its merits. In that regard, even if the Respondent were to be struck-out from the present proceedings, this Court would be obligated to add a relevant Respondent, likely in the form and name of the subject school or nomenclature such as “the Management of .” 25. In support of its Preliminary Objection, the Respondent has cited authorities that are not applicable to constitutional litigation. The principles as they apply to ordinary civil disputes cannot always be seamlessly applied in the constitutional arena. Locus to sue and amenability to be sued are quintessential examples of this. That is the reason why, unlike in other arenas of law, misjoinder and/ or non-joinder cannot be a sole basis to defeat a Petition. 26. While the Respondent has argued that the issue it raises is not a procedural technicality, this Court can only conclude that it is. With a stroke of its judicial pen, by deleting “ the Board of Management of” this Court could resolve the Respondent’s argument by establishing the subject school as the Respondent. This would result in no substantive change of any aspect of the Petition, including the description of the Respondent, which the Petition states at Paragraph 2 of the Petition is “ 2. The Respondent is a private school registered under section 49 of the Basic Education Act, offers basic education and a member of the network of the Agency for French Education Abroad (AEFE). The Respondent purports to be governed by the French Education Code. (Service upon the Respondent shall be effected through the Petitioner’s Advocates Offices.)” 27. A Preliminary Objection that yields no actual favourable outcome for its mover but merely returns them to the same position as they were before the filing of the Preliminary Objection cannot be one that ought to succeed. If the Board of Management were to be struck out as a party, the Court would be obligated to replace it with essentially the same entity merely under a different moniker and not strike out the entire petition. The subject school would then have to enter appearance under that name imposed by the Court, and perhaps even through the same counsel as at present, and still defend the exact same Petition. Is that substantive justice or undue regard to procedural technicalities and formalism? The Court finds that it is the latter. 28. This situation is compounded by the fact that even if this Petition was to be struck out as sought by the current Respondent, there would be no res judicata bar to the Petitioners simply filing a fresh petition suing another person or persons along the lines as suggested by the current Respondent. Is that the best use of limited time and scarce resources? Is that really what justice in Kenya should be and is about? I find that it is not, and it cannot resonate with the demands of the Constitution or the expectation of Kenyans for their Courts and court processes. 29. In any case, it is clear as day that the Petitioners are aggrieved with the subject school and its treatment of the minor. That is plainly seen from the Petition. Even without a change in name, this matter can as filed, with the Respondent as framed, be fully heard and determined to either success or failure of the Petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 5

page 5 of 7

30. The invocation at Article 159(2)(d) was and is a call for Courts and Parties to move beyond the rigmarole and rote commitment to formalism that existed under the former constitution. In its place, we now have a constitutional dispensation that prioritizes substantive justice over legal formalism and pedantic application of formal rules. 31. Finally, and as a critical aspect in construing and determining what would be the just and proper outcome with respect to the Respondent’s Preliminary Objection, the Petition herein raises serious allegations touching on the alleged mistreatment of a minor. The Petition alleges racism, bodyshaming, discrimination, harassment, physical and psychological harm, breach of the right to human dignity, breach of the right to education, and breaches of due process and fair administrative action; all with respect to a minor. It would take a preliminary point so incredibly clear, strong, and inescapable for this Court to remove petitioners alleging such from the halls of justice at the interlocutory stage. 32. Whether the Petition will ultimately be defeated or it will be successful, it is one that must be heard and determined on its relative merits and/or demerits. As emphasized in Patricia Cherotich Sawe v IEBC & 4 others [2015] by the Supreme Court, justice and fairness should prevail over technical objections. Costs 33. Costs are discretionary and only awarded as against an unsuccessful mover of a Preliminary Objection if that Preliminary Objection was so unmerited in a constitutional petition so as to meet the standard of being vexatious and an abuse of the court process. In the current case, that standard has been met. The Preliminary Objection filed by the Respondent was so out of tune with Article 159(2)(d) and the caselaw applicable to constitutional litigation, and with the Mukisa Biscuit three-pronged test, and it would have resulted in no litigation gain even for the subject school even if it were to have succeeded, such that the only avenue open for this Court is to award costs. 34. The Respondent is not arguing that the Petition is so imprecise as to render it incomprehensible. The Respondent is not arguing that the framing of Board of Management means that the subject school is unable to understand the Petition or defend itself in this Petition. The Respondent is not arguing that the misjoinder or non-joinder would lead to substantive injustice. On the contrary, the Respondent’s Preliminary Objection is pursuing a point that is neither fatal or incurable and which is so narrow and easily resolvable in light of the Petition as framed that there can be no other characterization of the Preliminary Objection other than it was vexatious and an abuse of the Court Process. It ought not to have been filed and it unnecessarily invited responses by the Petitioner, who are private persons. The Petitioners are thus deserving of costs, and it is inescapable and just that the Respondent should pay them costs. 35. Consequently, and for the foregoing reasons, this Court makes the following findings and orders: a. The Respondent’s Preliminary Objection dated 3/10/2025 is found to be without merit and the same is dismissed with costs to the Petitioners; b. Costs are assessed at Kenya Shillings Eighty-Seven Thousand and the same shall be paid by Subject School to the Petitioners within forty-five days from the date hereof; and c. Further directions towards the expedited hearing and determination of the substantive petition to issue separately and after delivery of this Ruling. Orders accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 27TH DAY OF NOVEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 6

page 6 of 7

BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner –Nr. Kent Omondi Counsel for the Respondents – Ms. Migiro hb Mr. Odero Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18229/eng@2025-11-27 7

page 7 of 7