[2022] KEHC 1912 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E208 OF 2021

BETWEEN

CATHERINE MWIHAKI NGAMBI.................................................................PETITIONER

VERSUS

INTERNATIONAL LEADERSHIP UNIVERSITY....................................RESPONDENT

R U L I N G

Introduction

1. The Petitioner filed the petition dated 10th June, 2021 seeking the following orders: -

i. A declaration that the respondent’s actions barring the petitioner from graduating despite having satisfied the conditions necessary for the award of a Bachelors of Theology degree violated her right to education under Article 43 (1)(f) of the Constitution;

ii. A declaration that the respondent’s action of failing to issue the respondent with written reasons for barring her from graduating violates her rights to fair administrative action under Article 47 of the Constitution;

iii. A declaration that the failure by the respondent to inform the petitioner the reasons for barring her from graduation violated her rights to a fair hearing under Article 50(1))(b) and (c) of the Constitution;

iv. A declaration that the denial by the respondent to allow the petitioner to graduate is irrational and unreasonable and a violation of Article 47 of the Constitution;

v. An order of mandamus be issued directed at the respondent to issue the petitioner with his Bachelors of Theology Degree Certificate;

vi. An injunction be issued restraining the respondent from conducting its 36th graduation ceremony on the 12th June 2021 online or in any other manner;

vii. An order of mandamus be issued directing the respondent to include the petitioner in the graduation ceremony scheduled for the 12th June 2021 online or in any other manner;

viii. Compensation for the violation of the petitioner’s constitution rights under Article 43(1)(f),47 and 50(1)(b) and (c) of the Constitution;

ix. Any other relief that the honourable Court deems fit; and

x. Costs of the claim.

2. The Respondent filed a response denying the claims. The response is dated 28th June, 2021. Later it filed a preliminary objection dated 6th July, 2021 on the following grounds.

i. That the petition is not ripe to warrant the court’s jurisdiction because the petitioner has infringed the doctrine of exhaustiveness in filing this matter;

ii. The petitioner’s petition is an abuse of court process and bad in law incapable of being entertained by the court at this point.

3. The Petitioner in response filed her replying affidavit dated 2nd August 2021 denying that the Respondent had established a dispute resolution mechanism which she had failed to exhaust before filing her petition. In addition, she notes that the exhaustion requirement was not in line with the constitutional principles in light of her violated constitutional rights under Article 43(1) (f), 47 and 50 of the Constitution. In essence the petitioner avers that the forum proposed by the respondent is unable to determine constitutional questions.

The Petitioner’s Submissions

4. The Petitioner, through its advocates Mukele Ngacho & Co. Advocates filed written submissions dated 19th November 2021 with regard to the preliminary objection. It is submitted that the issues for determination are:

i. Whether there is an alternative dispute resolution mechanism within the respondent;

ii. Whether this matter falls within the exceptions of the doctrine of exhaustion; and

iii. Costs.

5. Counsel submits that by dint of Article 165(3) as read with Articles 22 and 23 of the Constitution only this Court has the jurisdiction to entertain matters concerning the denial, violation or infringement of fundamental rights and freedoms and grant appropriate reliefs. As such no dispute resolution mechanism is available for the petitioner within the respondent with reference to the stated rights. In support reliance was placed on the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) (2020) eKLRwhere it was held that while a party was required to exhaust remedies under the Competition Act, the issues raised involved questions on fundamental rights which warranted an exception to the doctrine of exhaustion. Additional reliance was placed on the case of Didmus Barasa v Inspector General of Police & 3 others (2021) eKLR.

6. It is Counsel’s submission in light of this that the Petitioner lacks adequate audience before the forum referred to by the respondent since the petitioner seeks protection of her fundamental rights and freedoms under the Constitution which is this Court’s jurisdiction. In support reliance was placed on the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLRwhich affirmed that a court’s jurisdiction flows from the Constitution.

7. While relying on Section 27 of the Civil Procedure Act counsel submits that the petitioner should be awarded costs, as the successful party.

The Respondent’s Submissions

8. The firm of King’oina – Obuya Advocates on behalf of the Respondent filed written submissions dated 25th October 2021. Counsel submits that the issues for determination are:

i. Whether the respondent has an internal dispute resolution procedure/mechanism for dealing with its students grievances;

ii. Whether the petitioner’s petition ousts the jurisdiction of the student dispute resolution mechanism as envisaged under the respondent’s student handbook; and

iii. Whether the exhaustion doctrine applies to the petitioner’s petition.

9. Counsel answers the first issue in the affirmative. He argues that the Petitioner being a student of the respondent was aware of the policies outlined in the Respondent’s handbook. One of the policies is the grievance resolution mechanism through the Student’s Council. As such the handbook outlines a comprehensive grievance resolution mechanism which in this case the petitioner failed to utilize.

10. On the second issue Counsel reiterates that as per the student handbook, the Petitioner’s first point of call was the Respondent’s exhaustive five step grievance mechanism. Moreover Counsel submits that the petitioner has failed to give reasons why she failed to exhaust this method. He argues that following this negligence, which underestimates the respondent’s internal dispute resolution policy as empowered by the University Act (2012) should not be entertained. Counsel contends that if this Court allows the petition to stand it will oust the procedures of the respondent as provided in the handbook.

11. On the final issue, Counsel submits that owing to their submission above, it is clear that the petitioner failed to exhaust the available dispute resolution mechanism. It is his argument that it was incumbent on the petitioner to approach this Court as the last resort as held by the Court of Appeal in the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others(2015) eKLR.

12. As a result he contends that the petition is an abuse of the court process and runs against the Respondent’s internal dispute resolution procedures pegged on its policies as envisaged under Section 12 and 13 of the Universities Act. He placed reliance on East Africa Pentecostal Churches Registered Trustees & 1754 others v Samuel Muguna Henry & 4 others (2015)eKLR where it was noted that where a statute establishes a dispute resolution procedure it must be strictly followed. In essence he submits that the doctrine of exhaustion has not been adhered to and as such the petition should be struck out.

ANALYSIS AND DETERMINATION

13. Having considered the pleadings, submissions herein this Court finds the issue that arises for determination to be whether the Preliminary Objection dated 6th July 2021 is merited.

14. The threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696as follows:

“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.”

15. The Court went further to note that: -

A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

16. Likewise, the Court in the case Oraro v Mbaja [2005] eKLR 141, on the nature of preliminary objections observed that:

“A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

17. The preliminary objection in this matter is founded on the notion that the petitioner failed to exhaust the dispute resolution mechanism under the respondent’s Student handbook. It has been held severally that a party is required to exhaust any alternative dispute resolution mechanism before filing a matter in Court as a matter of law. To this end the Court of Appeal in the case of Geoffrey Muthinja & another(supra) observed as follows:

“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

18. The question therefore that follows this background is what then invokes the doctrine of exhaustion before embarking on the Court process. This was aptly discussed in the case of William Odhiambo Ramogi & 3 others(supra) by the five judge bench as follows:

“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…”

19. The Court went on to outline the exceptions to the rule as follows:

“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.

61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.

62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

20. Considering the facts of this case, the respondent maintains that the petitioner being its student was aware of the policies available for dispute resolution. The Petitioner denies the existence of such a mechanism. There is, therefore, no evidence showing that she exhausted the mechanism before filing this suit. Her argument is that it is only this court which has the jurisdiction to entertain matters concerning the denial, violation or infringement of fundamental rights and freedoms.

21. A perusal of the respondent’s Student Handbook at page 10 reveals that there exists a Student Council whose membership comprises of 13 elected students. It is identified as the first body to receive student complaints and handles all conflicts that arise as between a student and another student, a student and a lecturer and a lecturer or a staff member. Further at page 22 the grievance resolution process outlines three types of grievances namely academic, interpersonal and general concerns. Of importance to note is that the theme of the student handbook in its processes discloses that the decisions taken out by the various persons such as the Vice Chancellor and bodies such as its committees’ are final.

22. At this juncture it is vital to note that this Court is obliged to look at whether the dispute resolution mechanism established by the respondent under its handbook is competent in the circumstances of this case and in the interest of justice. In addition, this Court must consider the efficacy of the remedies if any, available in the Handbook beside the nature of the issue in this matter.

23. I have noted a number of things which are as follows: First, the Student Council’s mandate appears to be limited to student, lecturer and staff day to day concerns. Secondly, academic concerns are to be first reported to the head of department before moving up the dispute resolution chain. Interpersonal grievances are to be handled personally and reported to the dean of students if escalated, while the general concerns are to be taken to the Student Council. Thirdly, the procedure undertaken by the Student Council is not detailed and nothing is supplied by the Respondent.

24. The facts of the case herein revolve around the petitioner’s central assertion that despite having successfully completed her examination and complied with all requirements she has not been allowed to graduate as would be expected. I take it that the dispute before this Court does not arise as a result of an academic issue but an administrative issue owing to the decision taken out by the respondent.

25. The Student Handbook which provides for a mechanism for general concerns reveals these as general student welfare concerns as a body. The said book does not outline clear provisions on administrative disputes resolution mechanisms as between the respondent and the students, or the appeal channel available to the petitioner and other students if need be. It shows that decisions made are final.

26. Ordinarily this Court will not interfere with a body’s authority to create its own regulations as empowered by a Statute in this case the Universities Act Cap 210B. In fact this Court concurs with the view that “So long as the body entrusted with the task of framing the rules and regulations acts within the scope of the authority conferred on it in the sense that the rules and regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of efficaciousness of such rules or regulations” as held in the case of Maharashtra State Board v Kurmarsheth and Others, (1985) CLR 1083.

27. It is however not lost on this Court as guided by the principles in Geoffrey Muthinja & Another (supra) that it is necessary for the court to look carefully at the suitability of the dispute mechanism in the context of each particular case in making its determination. Where the adequacy and availability of the mechanism is deemed wanting this creates an exceptional case that allows the Court to intervene. This was well captured in the case of Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLRwhere it was held that:

“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.

…this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.”

28. It is my considered view that the Respondent has not clearly spelt out the provision in its Student Handbook that allows students with administrative concerns against it to present the concerns before a dispute resolution mechanism and neither is such a procedure clearly stipulated. It is on this basis that the petitioner asserts that her constitutional rights under Articles 43(1) (f), 47 and 50 were violated. These allegations are undoubtedly constitutional issues and cannot thus be deemed to be framed in the Bill of Rights language in order to gain access to this Court. The applicability of the Student Handbook’s mechanism as maintained should therefore not purport to oust the jurisdiction of this Court under Article 165(3) (d) of the Constitution to consider the petitioner’s grievances.

29. It is my humble finding accordingly that the application of the doctrine of exhaustion in the circumstances of this case justifies its exemption. This is since the respondent lacks a clear dispute resolution mechanism to appropriately address the petitioner’s concerns.

30. Despite the above findings, I have noted that the main issue between the petitioner and the Respondent is unpaid fees. The Respondent puts it at Ksh.1,022,544/-. The Petitioner has nowhere responded to this allegation. All she states at paragraph 8 of her supplementary affidavit dated 2nd August, 2021 is that: -

“That I only learnt of the alleged fee arrears of Ksh.1,022,544/- after hearing of my application under Certificate of urgency in this matte on the 11th June, 2021.

9. That in light of what is stated above paragraphs 2. 8 and 2. 9 have no basis at all whatsoever.

13. That paragraph 3. 4 is untrue since the additional amounts on the statement accrued long after I had cleared with the school and do not in any way whatsoever relate to my academic affairs.”

31. All these averments are matters of evidence which the parties will be expected to adduce. From the above findings, it is my considered view that this court will need to interrogate the pleadings and evidence further. It would be unfair and unjust to strike out the Petition before assessing the evidence if any is to be adduced. If the parties would consider an out of court settlement in view of the limited time, it would be for their own good.

32. I find the Preliminary Objection dated 6th July, 2021 to be unmerited. I hereby, dismiss it. Costs in cause.

DELIVERED, DATED, SIGNED VIRTUALLY THIS 3RD DAY OF MARCH, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.

H I ONG’UDI

HIGH COURT, JUDGE