Republic v Head Teacher, Kenya High School & another; SMY (A Minor Suing Through her Mother and Next Friend AB) (Exparte) (Judicial Review 318 of 2010) [2012] KEHC 2492 (KLR) (Judicial Review) (18 September 2012) (Judgment)

Facts

The applicant, SMY, a Muslim girl, sought to wear a hijab at Kenya High School, but the school's uniform policy denied her this right. The Ministry of Education issued a directive allowing all students to observe a standardized dress code, which included prohibiting the hijab.

Issues

1. Whether a legitimate expectation could be claimed to exist when an applicant had never been permitted to exercise the right they alleged to have a legitimate expectation towards.
2. Whether a directive that was ultra vires could give rise to legitimate expectation.
3. Whether a party in judicial review proceedings could seek remedies that the High Court explicitly refused to authorize for application.
4. Whether the school rule that allowed all students without exception to observe a standardized dress code thus limiting the rights of Muslim lady students to wear a hijab were valid limitations to the freedom of religion.
5. Whether an order of certiorari (order to quash a decision) could issue where an applicant had not specified the decision which it sought to be quashed.

Reasoning

The court held that the respondents’ limitation of the applicant’s right to outwardly manifest her religion by wearing a hijab in school was reasonable and justifiable. The uniform school policy was designed by the respondents with the legitimate aim ensuring equality among all students and to facilitate enforcement of discipline.

Outcome

The court upheld the school's uniform policy.

Authorities cited