NAIROBI, Kenya — The High Court in Nairobi has dismissed a judicial review application challenging investigations by the Commission on Administrative Justice (CAJ) into conditions at Ngara Girls High School, ruling that the matter was premature and failed the constitutional test of justiciability.
In a judgment delivered on April 22, 2026, in HCJR/E035/2026, Hon. Lady Justice R. E. Aburili upheld a Preliminary Objection raised by the Commission on Administrative Justice and dismissed the ex parte Applicant’s Notice of Motion dated February 13, 2026.
The case had been filed by Innocent Masara, who sought orders of certiorari to quash two letters authored by the Chairperson of the Commission dated January 26 and February 3, 2026.
The letters requested information from the school principal concerning student admissions, enrolment approvals, infrastructure, and boarding conditions following allegations touching on learners’ welfare and academic standards.
Masara argued that the Commission had exceeded its legal mandate by allegedly intruding into functions reserved for education authorities under the Basic Education Act, including the Cabinet Secretary for Education, County Education Boards, Boards of Management, and the Education Standards and Quality Assurance Council.
However, the Commission opposed the application through a Preliminary Objection dated March 5, 2026. It argued that its inquiry process had not been concluded and that no final or adverse decision had been made capable of judicial review.
The Commission relied on Articles 59 and 252 of the Constitution, Section 8 of the Commission on Administrative Justice Act, and Regulations 19 and 21 of the Commission on Administrative Justice Regulations, 2013, to defend its investigative mandate.
Justice Aburili agreed with the Commission and held that the impugned correspondence merely sought information from the school and did not amount to a final administrative decision.
“The Commission had not rendered any determination on the merits of the allegations,” the Court found, adding that the inquiry process was still at a preliminary stage.
The judge emphasized that courts should avoid entertaining disputes that are hypothetical, premature, or academic. In reaching that conclusion, the Court relied on the landmark authority of Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 on preliminary objections, as well as Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020] eKLR and Benjamin v Attorney General & 55 others [2024] KECA 1672 (KLR) on the doctrines of ripeness and non-justiciability.
The Court held that the Applicant’s claims of ultra vires action had not crystallized into a real legal dispute because no sanctions, directives, or punitive measures had been issued against the school or its administrators.
Justice Aburili further warned that treating requests for information as unlawful administrative action would undermine the constitutional oversight role of independent commissions.
“The existence of other institutions with responsibilities in education governance does not extinguish the Commission’s constitutional mandate,” the Court observed.
The ruling reinforces the principle that constitutional commissions may conduct preliminary investigations and request information from public institutions without immediate judicial interference, provided no final administrative action has been taken.
The Court also noted that the Interested Parties neither entered an appearance nor filed responses or submissions in the proceedings.
On costs, the Court exercised its discretion and directed that each party bear its own costs.
