1.

TITLE AND CITATION

Type of case

The case is a petition for the determination of the question whether a right or fundamental freedom in
the Bill of Rights has been denied, violated, infringed or threatened. Article 165(3)(b) of the Constitution
gives the High Court jurisdiction to determine any question as to the infringement, violation or threat to
any right or fundamental freedom.

Procedure

The application is made directly to the High Court by way of petition in a prescribed format supported by
affidavit to which shall be annexed any documents on which a party wishes to rely and served upon the
Respondent within 7days of filing. This is in accordance with the Supervisory Jurisdiction and Protection
of Fundamental Rights and Freedoms of the Individual High Court Practice and Procedure Rules
2006(Gicheru Rules) Rule 11-18.

It would be prudent to note the provisions of Article 22(3) of the Constitution that prescribes for a
simplified way of bringing a case involving the Bill of Rights.

2. EVOLUTION OF THE CASE

6TH January 2011 - The PS Ministry of Education issued to all PDEs, DEOs and principals of secondary
schools guidelines for Form 1 selection. This involved a quota system based on the number of candidates
that a public or private institution registered.

11th January 2011 - Minister of Education releases Form 1 selection list for national schools and
reiterates the above formula. He announces that in previous years private schools had registered fewer
students as compared to public schools and therefore they would be afforded a lesser number of
positions in national schools.

1st February 2011- Applicants filed this petition on behalf of the Kenya Private Schools Association

Applicants Contention

That the quota imposed by the State through the Ministry of Education violated the rights of the children
in private schools as follows:

(a) It resulted in their unequal treatment before the law

(b) It was discriminatory against candidates from private schools who seek admission to national
schools
(c) That the Constitution provides for the protection of the welfare of the child and a right to
education and the paramount consideration will be the child’s best interest
Respondents Contention

(a) Children in private schools are not a group capable of being discriminated against under Article
27(4) and an attempt to place the children under “social origin” cannot be legally tenable
(b) the 1st Respondent argued that it acted merely as a facilitator of national exams such as KCPE
and that Form 1 selection was the prerogative of the 2nd Respondent
(c) the quota only affected national schools and not provincial or district schools
(d) the 2nd Respondent conceded that free and compulsory basic education is a protected right
under Article 53(1)(e) but that the government ‘s efforts in meeting this goal was faced with
various challenges such as overcrowded classes, shortage of teachers, inadequate infrastructure
and diminished parental support. These challenges have the attendant consequence of affecting
the quality of education offered in public schools.
The quota system was therefore intended to counter this shortcoming in the quality of education
in public schools.

3.ISSUES IDENTIFIED BY THE COURT

1. Whether the 2nd Respondents policy in relation to admission into national schools discriminated
against candidates from private schools
2. Whether students from private schools formed a group capable of being discriminated against
3. The question of the progressive realization of socio-economic rights

4.DECISION

The court held that the policy directive was not discriminatory to the Applicants, their schools or the
children in those schools in relation to accessing Form 1 places in national schools.

REASONING

A) The state is required to give full effect to the realization of the right to equality and freedom
from discrimination by taking measures including affirmative action policies to address any
disadvantaged groups
B) In providing for socio-economic rights there must be a holistic approach that focuses beyond the
individual
C) The realization of socio-economic rights involves political decisions and budgetary implications
therefore a public body should be given appropriate leeway in determining the best way of
meeting its constitutional obligations
D) Not all distinctions resulting in differential treatment can properly be said to violate equality
rights