[2025] KEHC 3331 (KLR)

Abdikadir v University of Nairobi; Ag Vice Chancellor Academic Affairs & another (Interested Parties) (Judicial Review Application E031 of 2025) [2025] KEHC 3331 (KLR) (Judicial Review) (19 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3331 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E031 of 2025

RE Aburili, J

March 19, 2025

Between

Abdullahi Jabir Abdikadir

Applicant

and

The University of Nairobi

Respondent

and

The Ag Vice Chancellor Academic Affairs

Interested Party

The Dean Faculty of Health Sciences

Interested Party

Ruling

1. This matter was initiated on 10/2/2025 under the Fair Administrative Action Act and Rules. The court gave directions and set a mention date for directions on the mode of disposal of the Originating Motion dated 7/2/2025.

2. On 24/2/2025, the parties were present and the court granted the Respondent more time to file their reply to the application, even as parties were implored to attempt a negotiated settlement within the given period. The Court then fixed a hearing date, and the hearing was to be by way of oral submissions.

3. The matter came up for oral hearing on 3/3/2025 but only the applicant Counsel appeared. The respondent and interested parties had not filed their replying affidavit as directed by the Court. The court allowed the applicant’s Counsel to submit orally as scheduled as there was no indication that the Respondent had any issues attending court. Still, no response had been filed. The court then reserved judgment for delivery on 24/3/2025.

4. In the intervening period, the Respondent and Interested Parties represented by Mr. Omondi filed a replying affidavit and served the applicant’s Counsel. On realizing that the affidavit in reply was filed out of time without leave of court, they have now filed a formal application dated 17/3/2025 supported by an affidavit sworn by Professor George Oyamo Osanjo seeking leave to file the Replying affidavit and submissions out of time and that the Replying affidavit dated 10/3/25 and filed on the same date be deemed as properly on record. Further, that the judgment in this case be arrested until the Respondent and Interested Parties file and serve the Replying affidavit and submissions.

5. The reasons for the delay as given is that the deponent was out of the work station and on return, he had to peruse the documents and file a 77-paragraph affidavit. Further, that the matter is serious as it involves the university’s finances and reputation since the applicant was defrauding fellow students and alleging that he was to help them pay fees for them at the University by receiving their money and not remitting to the university, hence, the University should be given the opportunity to be heard on the application. It was also submitted that the advocate had no power in his office chambers hence his non attendance on 3/3/2025 and that he had called the applicant’s counsel and notified him of the same.

6. The applicant opposes the application in question by way of a replying affidavit sworn on 18/3/2025 contending that the respondent and interested parties had flouted the timelines given by the court on filing of their responses, that the other reasons as submitted on were not deposed in the affidavit, that there was no evidence of power outage or that the deponent was out of office on official duty as alleged hence the application should be dismissed.

7. The court had certified the matter and directed service and filing of any response expeditiously for hearing orally at 11. 00 am today and thankfully, there was compliance.

8. I have heard the application and the reasons for the delay in filing of the Replying affidavit. Ordinarily, this court would not lock out any party from the judgment seat and the right to a hearing cannot be denied by the court.

9. However, the Respondent and Interested Parties were given that opportunity to be heard and they appeared through Counsel Mr. Omondi who took the court’s directions on the hearing of the case and timelines given for compliance.

10. On the hearing date, which was on 3/3/2025, there was no appearance by the respondent & Interested Parties’ counsel and although it is now alleged verbally that Mr. Omondi had power outage issues in his office, the open court room at Milimani assigned to this Court is open and available for parties who are unable to appear virtually, to attend physical hearings. This Court sits in Court every day and is ready to conduct hybrid hearings for parties such that no party should sit comfy and find reason from their residence that the court will excuse them for power outage. Virtual hearings are meant to be facilitative of expedition and less inconvenience to the parties and not the only mode of appearance by parties in courts.

11. Additionally, apart from the deposition that the deponent was away on official duty, there is no evidence annexed, to substantiate that deposition.

12. Parties are bound to abide by directions given by the court and the timelines set are not cosmetic. Additionally, where a party seeks discretion of the court, they must be candid with the court.

13. To say that one was out of the work station on official duty without evidence of such engagement and Counsel not appearing in court to seek more time for filing of the reply on account that he had no power in his work station are not explanations that this court can buy in and stay delivery of a judgment or grant more time to file a replying affidavit.

14. The Respondent and interested parties claim that the disciplinary case against the student is very serious and borders on reputation & finances of the University. That may be so. Yet, that should be the reason the University has to take directions given by the court very seriously and not casually the way they did in this matter.

15. Even the 77 paragraph Replying affidavit sworn on 10/3/2025, seven days after the hearing of this matter, with the deponent not disclosing when he returned from official duty to embark on the exercise of drawing that affidavit, mentions annextures which were never filed in the e-portal of the court and therefore the court does not have the opportunity to peruse them. Documents are only filed when they are uploaded on the e-portal. I have frantically searched for those annextures from the e-portal in vain.

16. On the whole, I find the application dated 17/3/2025 not merited. It is dismissed and the Replying affidavit dated 10/3/2025 filed on the same date out of the timelines given by the court is struck out.

17. I make no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19THDAY OF MARCH, 2025R.E. ABURILIJUDGE