From The Bench

Media Summary – Petition No. 16 of 2016. Methodist Church of Kenya and Mohamed Fugicha & 2 others



S.C PET.NO. 16 OF 2016





 The following explanatory note is provided to assist the media in reporting this case and is not binding on the Supreme Court or any member of the Court.

On 24th January, 2019 the Supreme Court by a majority (Maraga, CJ &P, Ibrahim, Njoki, Lenaola with J.B Ojwang, SCJ dissenting) delivered a judgment setting aside the orders of the Court of Appeal directing the Board of Management of St. Paul’s Kiwanjani Day Mixed Secondary School to amend school rules to accommodate students with religious beliefs requiring them to wear particular items in addition to the school uniform. The Court of Appeal’s orders also directing the Cabinet Secretary for Education to formulate rules and regulations for the protection of the rights under Articles 32 and 27 of the Constitution have also been set aside.

At the High Court, the Methodist Church of Kenya had challenged the decision of the TSC, County Director of Education, Isiolo County and the District Education Officer, Isiolo Sub-County (herein refereed to as the Respondents) that all Muslim girls in Kiwanjani Secondary School be allowed to wear hijab and white trousers contrary to existing school uniform policy. The Church sought a determination that the Respondent’s declaration was unlawful and contravened the Constitution and school rules. The Church also sought the following orders; to nullify the decision to  transfer the principal from the school; an injunction restraining the respondents from interfering with the petitioner in executing its rightful role as a sponsor of the affairs of the school; a mandatory injunction compelling the respondents to comply and ensure full compliance with current school rules and regulations; an injunction preventing the respondents from dissolving or purporting to stultify the current Board of Management and the Parents-Teachers Association of the school; and general damages. The respondents challenged the case. The interested party in challenging the case stated in his Affidavit that Muslim students should be allowed to wear a limited form of hijab as manifestation of their faith.

The High Court, Makau J, on 5th March, 2015  , allowed the petition, and made the following final orders: the respondents’ decision to allow Muslim Students to wear hijab/trousers was discriminatory, unlawful, unconstitutional and contrary to the rules and regulations of the school;  injunction preventing the respondents from allowing Muslim students to wear hijab, contrary to the rules and regulations of the school; injunction restraining the respondents from interfering with the petitioner in executing its rightful role as sponsor, in respect of the affairs of the school; mandatory injunction compelling the respondents to ensure full compliance with the school rules and regulations; injunction preventing the respondents from dissolving or purporting to dissolve the Board of Management and the Parents-Teachers Association of the school; the school uniform policy did not indirectly discriminate against the interested party(Mr. Fugicha)’s daughter and other Muslim female students; and the interested party’s cross-petition was found defective, and was for striking out. Aggrieved by that decision, Mr. Fugicha, sought redress in the Court of Appeal which overturned the decision of the High Court and gave orders as indicated above.

Aggrieved by the decision of the Court of Appeal, the Methodist Church appealed to this Court faulting the Court of Appeal’s decision for granting reliefs and Orders that were not sought in the appeal by the Mr. Fugicha especially paragraph 34 of the Mr. Fugicha’s affidavit sworn on 4th November 2014,  which according to the Church, did not constitute a cross-petition, denying the Church an opportunity to be heard on the alleged cross-petition. The Church also faulted the Court of Appeal for  adopting a wrong perception of the proceedings before the High Court thereby reaching an erroneous finding that there was no factual or legal basis for the trial Judge to hold that allowing Muslim girls to wear hijab favoured such students, and discriminated against the non-Muslims. Finally, the Church challenged the Court of Appeal’s interpretation and application of Articles 8, 27 and 32 of the Constitution among other grounds.

Upon consideration, we have come to the decision that the issues set out in the cross-petition did not afford the opportunity for the Petitioner to respond to the same effectively.  Firstly, because it introduced a different cause of action from that raised in the original Petition; and secondly, because it was not framed in a manner, for which there was a known laid out procedure for an exhaustive response.  The fact, that the petitioner may have referred to the issues therein through oral arguments, could not, as wrongfully determined by both the High Court and the Court of Appeal, have amounted to formal pleadings in response to those issues.  As such we find that both superior Courts violated the Petitioner’s right to be heard, as provided for under Articles 25 and 50 of the Constitution. We also find that the cross-petition was improperly before the High Court, and ought not to have been introduced by an interested party, and in that light, it should not and could not have been entertained by the Court of Appeal; neither court having proper jurisdiction to do so.  The Court however, recognizes that the issue as contained in the impugned cross petition is an important national issue, that will provide a jurisprudential moment for this Court to pronounce itself upon in the future.  However, to do so, it is imperative that the matter ought to reach us in the proper manner, so that when a party seeks redress from this court, they ought to have had the matter properly instituted, the issues canvassed and determined in the professionally competent chain of courts leading up to this Apex Court. In view of this, the Court recommends that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court


Our orders are:

(i)         That the appeal is hereby allowed;

(ii)        That the judgment of the Court of Appeal dated 7th September 2016 is hereby set aside;

  • Parties to bear their own respective costs.


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