[2017] KEHC 2103 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. 642 OF 2017

IN THE MATTER OF ARTICLES 22,23,28,33,47 AND 50 OF THE CONSTITUTION

AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT

AND IN THE MATTER OF THE SUSPENSION PENDING HEARING

AND IN THE MATTER OF BAN FROM ACCESSING UNIVERSITY PREMISES

BETWEEN

KEBESO DAVID………………………………..........APPLICANT

VS

KENYATTA UNIVERSITY……………………1ST RESPONDENT

VICE CHANCELLOR………………………..2ND RESPONDENT

REGISTRAR ACADEMIC…………………...3RD RESPONDENT

KUSA ELECTORAL COMMISSION………..4TH RESPONDENT

RULING ON LEAVE AND STAY

1. By a chamber summons dated 3rd November, 2017, the exparte applicant Kebaso David Morara seeks from this court leave to institute judicial review proceedings for Orders:

a. Certiorari to remove to this court for the purpose of being quashed, the 3rd Respondent’s entire decision delivered on 1st November, 2017 to suspend the applicant from studying at Kenyatta University pending appearance before the Students Disciplinary Committee and banning the applicant from accessing Kenyatta University premises during the suspension period

b. An injunction stopping Kenyatta University Students Association (KUSA) Elections 2017 pending the hearing and determination of the intended Judicial Review Proceedings

c. The leave if granted to operate as stay of the decision to suspend the exparte applicant and by extension that of the 4th Respondent to bar the applicant and his coalition from contesting in the upcoming KUSA elections to be conducted on November 15th 2017 on the basis of suspension.

d. The costs for and incidental to this application be provided for.

2. The application is premised on the statutory statement and verifying affidavit and annextures which include the impugned letter of 1st November, 2017 suspending the applicant from the University pending disciplinary proceedings.

3. The exparte applicant’s case is that he is an LLB student at Kenyatta University. He is also a candidate for Chairperson in the 2017 KUSA elections.

4. On 2nd November, 2017, at 11 a.m., and 5 hours to the release of the list for cleared candidates to run in the KUSA election, he was summoned to the office of the Director of Security and issued with a letter of suspension from the university and instructed to immediately vacate the University Premises without being accorded an opportunity to gather his belongings or even approach the relevant offices and seek redress.

5. He was concerned that the letter dated 1st November, 2017 had no university stamp and moreso, that the purported regulation or media policy that he is alleged to have violated does not exist.

6. That in the General Student and Regulations Governing Students Conduct and student Disciplinary Procedures contained in the Student Information Handbook, 2017-2021 section 5:3 the alleged offence is classified as a general offence and therefore he should have been summoned to appear before the Student’s Disciplinary Committee with a fair opportunity to be heard before any action is taken against him.

7. That the alleged social media post that offends the alleged social media policy for the Respondent University was made on 3rd February 2016 which is over 1 year and 8 months ago, which was raising issues of public interest concerns to the students and the legality and constitutionality of procurement procedures of the students Association in which the Director of Students Affairs is a signatory and patron.

8. That if indeed the Director of Student Affairs found the Facebook posting to be offensive, nothing stopped him from taking legal action either through civil suit or disciplinary structures to settle personal scores or use the same as a short cut to avoid pursuing appropriate legal channels to enforce personal interests and rights.

9. That on 4th February, 2016 the applicant was summoned by the said Director of Student Affairs and the two had a discussion over the issue upon which the applicant stood his grounds because he believed in what he had said about the whole affair.

10. That about the same time, the said Director made a phone call to the applicant threatening the applicant with disciplinary action.

11. That since then, no action had been raised until the arbitrary suspension

12. That in October, 2017 the applicant filed a petition the High Court seeking to have certain sections of the Constitution of KUSA declared unconstitutional since they were violating fundamental rights and freedoms

13. That in a conference held on 10th October, 2017 between all aspirants for the KUSA elections 2017 and the Electoral Commission, the Director of Student Affairs made threatening remarks to the applicant and his coalition for taking the University to court and swore that the applicant’s team would not go far, upon which the applicant protested and requested the Director to withdraw but the Director remained adamant.

14. That the suspension had disabled the applicant from attending classes, submit his assignments or even do continuous assessment tests. And neither has he accessed his hostel room to gather his b belongings or change his essential clothing.

15. That the letter of suspension does not disclose the intended date of hearing of the disciplinary proceeding by the disciplinary committee and that as such, he will suffer severe damage to his academics

16. That as at 2nd November, 2017, the applicant had met all the constitutional requirements to contest for the seat of chairperson of the Students Governing Council

17. That the KUSA electoral commission has already disqualified the applicant’s candidature and that of his coalition as per the list of cleared candidates posted on 2nd November, 2017 at 4. 00 pm, upon receipt of the suspension letter.

18. That the Students Governing Council shall hold elections on 15th November, 2017 as per the Schedule issued hence this court’s intervention is necessary.

19. The application for leave and stay was opposed by the respondents who filed grounds of opposition dated 8th November, 2017contending that: the application is misconceived, frivolous and vexatious and an abuse of court processes and ought to be dismissed with costs because the application for leave is premature because the applicant was suspended pending appearance before the Student’s Disciplinary Committee for disciplinary hearing; the said disciplinary hearing is yet to commence against the applicant to answer to charges; the disciplinary action is an internal process that is not subject to the direction or control of this court to interfere; the suspension is an interim measure as the respondent University has not made a final determination on his culpability as to the charges in the suspension letter; that the issues raised herein can only be determined by the Students Disciplinary Committee at the hearing and not before this court.

20. According to the respondent’s, the intended SDC would be rendered nugatory and otiose if the court herein granted the orders sought.

21. In addition, it was contended that even if this court were to grant leave then such leave should not operate as stay of his suspension because the disciplinary process intended to be conducted against the applicant will be crippled.

22. Both parties’ advocates canvassed the application by way of oral submissions in court yesterday on 8th November, 20107 when this matter came up for interpartes hearing.

23. Mr Omoke advocate for the exparte applicant submitted that what was under challenge was the suspension of the applicant from the University pending disciplinary proceedings whose date is not disclosed to the applicant and premised on unknown provision of the social media policy of the University.

24. It was submitted that an illegality had been perpetuated because Clause 5 (3) of the Disciplinary Procedures provides for violation of Social Media Policy and a process through which suspension can be conducted. That there is no provision for suspension pending disciplinary proceedings.

25. Counsel also prayed that the court should suspend the implementation of the decision pending hearing and determination of the Judicial Review proceedings.

26. It was submitted that the applicant is barred from sitting for his examinations and he will lose a whole year yet the regulation cited does not exist.

27. It was submitted that the university is about to conduct elections for KUSA and the applicant is vying for the post of Chairman. That his suspension means he is denied the opportunity to participate in political rights. Further, that his other coalition partners will also suffer.

28. It was submitted that it is not clear why the applicant was suspended 2 weeks before elections yet the nature of the offence described in the letter of suspension could only be dealt with by the Student Affairs Director over 1 year and 8 months ago.

29. Counsel relied on the bundle of authorities filed which relate to the threshold and yardstick for grant of leave and stay in judicial review proceedings. He submitted that he had demonstrated that the applicant has an arguable prima facie case on illegalities.

30. On stay, it was submitted that an injustice will be visited on the applicant if stay is not granted because he cannot sit for examinations, assessment tests and cannot sit for his final year examinations. Counsel for the applicant prayed for the orders sought.

31. On behalf of the respondents, Mr Khaseke advocate opposed the chamber summons for leave and stay relying on the grounds of opposition dated and filed on 8th November, 2017. Mr Khaseke submitted that the basis for leave is to sieve frivolous and baseless applications and only those applications that seem to be prima facie arguable that leave should be granted.

32. It was submitted that this application is baseless and frivolous because, ordinarily they would not oppose leave to apply but this application does not merit grant of leave.

33. It was contended that the decision impugned is a suspension pending the applicant’s appearance before Student’s Disciplinary Committee. That the nature of the offence is disclosed and the date for the hearing will be communicated to him.

34. It was submitted that Disciplinary processes have not been exhausted at the time that this matter was commenced and that if the applicant is aggrieved on the failure to give him date of hearing, he should have written to the author of the suspension letter to seek clarification on the date, which counsel submitted, that he was instructed that it would be in the next three weeks.

35. Mr Khaseke submitted that this court is being called upon to quash and stay the disciplinary proceedings which will accord to the applicant an opportunity to be heard before the Student’s Disciplinary Committee hence this application is premature.

36. It was submitted that it is trite law that where a procedure has been provided for settlement of grievances, that procedure must be adhered to by an applicant before Judicial Review is resorted to.

37. Counsel for the respondent submitted that disciplinary proceedings commenced cannot be stopped before due process is finalized and that the applicant must submit and abide by the Disciplinary Procedure provided for by the University.

38. It was submitted that according to the calendar of events for the KUSA elections dated 11th October, 2017, the posting of names of successful candidates was done on 30th October 2017 and the suspension was done on 1st November 2017 so by then there was a decision of the Electoral Commission on participation by the applicant and his team/coalition.

39. It was submitted that the applicant has not appealed against his disqualification from vying for the position of Chairperson of SGC since he received the letter of suspension.

40. On the issue of other coalitions being affected by the applicant’s suspension, it was submitted that this application is made by the applicant only without joining any other interested party.

41. It was further submitted that the orders sought in the chamber summons do not agree with the reliefs sought in the statutory statement wherein the applicant seeks mandamus. It was submitted that the defect is so fundamental and incurable to the extent that ultimately the court in all probabilities cannot grant the orders sought.

42. Mr Khaseke however submitted that in the unlikely event that the court grants leave then leave should not operate as stay because this court cannot stay disciplinary proceedings as it will be descending in the arena of internal disciplinary processes of the university. He urged the court to decline the application and dismiss it.

43. In a rejoinder submission by Mr Omoke counsel for the exparte applicant, it was submitted that the respondents have not shown the necessity of suspending the applicant pending disciplinary proceedings. That the danger posed by the applicant to the university is not disclosed. Further, that the higher level of injustice will be that the applicant will suffer since the disciplinary procedures in Clause 5 (3) of the Student Information Handbook are not being adhered to.

44. Counsel maintained that he had highlighted the relevant issues for consideration by the court. He submitted that these proceedings are not premature and that the suspension in itself is a decision based on unknown procedure. Further, that it will be highly indolent of the applicant to sit on an illegality being perpetuated against him and for him to wait until too late before he approaches the court.

45. Counsel for the applicant prayed for the orders sought maintaining that the application is not frivolous or vexatious.

46. On the respondent’s submission against stay, it was submitted that the stay orders are extremely important as the applicant will miss Continuous Assessment Tests, (CATS), examinations, elections and the entire academic year unless stay is granted.

47. On the contention that the orders sought in the Chamber Summons are different from the reliefs sought according to the Statutory Statement, it was submitted that the orders sought are clear and that mistakes in statutory statements are curable by Article 159 of the Constitution. Further, that Mandamus may not be necessary if stay is granted.

DETERMINATION

48. I have carefully considered the exparte applicant’s application, statutory statement, grounds, verifying affidavit, exhibits, submissions and authorities relied on by the exparte applicant’s counsel Mr Omoke. I have also considered the respondent’s grounds of opposition and submissions by Mr Khaseke Advocate.

49. In my humble view, there are two main questions for determination namely, whether the application for leave is merited and if so, whether stay should issue as prayed.

50. The rationale for the requirement that leave be sought and obtained is to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. However, leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case.

51. Leave stage is thus a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious. See, Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321; Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353;and Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993.

52. Waki, J (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996held as follows:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.”

53. the Court of Appeal in Mirugi Kariuki Vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 set the yardstick for the grant of leave thus:

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

54. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Like the Biblical mustard seed which a man took and sowed in his field and which the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. One can safely state that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

55. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Television Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.

56. What emerges from the foregoing is that the grant of leave to commence judicial review proceeding is neither a mere formality nor a practice of magic. It is not to be granted as a matter of course. Delay is one of the factors which a Court often considers in deciding whether or not to grant leave.

57. The applicant for leave is under an obligation to show to the court that he or she has a prima facie arguable case for grant of leave. Therefore whereas he is not required at the leave stage to go into the depth of the application, he has to show that he has not come to court after an inordinate delay and that the application is not frivolous, malicious and futile.

58. At this stage the court is therefore only concerned with whether the applicant has demonstrated that he has a prima facie arguable case for consideration at the substantive stage and therefore whether he should be accorded an opportunity to ventilate his grievances.

59. As a fundamental right and portion of the rule of law, the right to access justice demands that all state organs and other justice sector institutions should be open to all persons who allege that their rights have been violated, or who are in search of a form of justice. The right entails the ability of aggrieved subjects to access such fora and services devoid of undue roadblocks, which tend to defeat the ends of justice. The right is also inseparably interlinked with the availability of meaningful and reasonable remedy and equal treatment.

60. The respondent has raised an important issue to the effect that the application herein premature because the applicant has not exhausted the internal mechanisms for resolving disputes before approaching the court. That the applicant’s suspension is temporary and that the Students Disciplinary Committee is yet to assign a date for the disciplinary proceedings. Further, that if he was aggrieved by the date not being given to him then he should have inquired from the author of the letter of suspension and not to come to court to cripple the impending disciplinary proceedings.

61. On the part of the applicant, he maintains that there is no provision in the Students Information Handbook for suspension pending disciplinary proceedings before the Students Disciplinary Committee and that the letter of suspension violates his rights as it does not state when the applicant shall appear before the SDC. Further, that in any event, the regulation under which he is charged does not exist in the Social Media Policy

62. The applicant further states that what is in existence is the general offences for which the General Student and Regulations Governing Students Conduct and student Disciplinary Procedures contained in the Student Information Handbook, 2017-2021, under section 5:3 the alleged offence is classified as a general offence and therefore the applicant should have been summoned to appear before the Student’s Disciplinary Committee with a fair opportunity to be heard before any action is taken against him.

63. He claims that the respondents have acted arbitrarily and are hell bent to deny him the right to education and to participate in the political affairs of the KUSA because the alleged violations occurred over 1 year and 8 months ago so he does not see why he was suspended only 15 days to the scheduled elections. He blames his bad blood with the Director of Students Affairs to be responsible for his misfortunes which is denying him a legitimate expectation to study and vie for the position of Chair of Students Governing Council.

64. That the alleged social media post that offends the alleged social media policy for the Respondent University was made on 3rd February 2016 which is over 1 year and 8 months ago, was raising issues of public interest concerns to the students and the legality and constitutionality of procurement procedures of the students Association in which the Director of Students Affairs is a signatory and patron.

65. On the question of exhaustion of internal remedies, I have read KDM2 the Kenyatta University Student Social Media Policy, 2017-2021. The Preamble to the said policy states that: “social media, both print and electronic, is an important and critical communication channel where the university can engage students in her strategic direction. However, social media has the potential to build or destroy personalities and institutions. It is against this back drop that the university felt the need to have a social media policy to regulate its use.”

66. At page 2 of the policy is the audience that is targeted by the policy which are: members of the University student fraternity. And the policy includes guidelines and regulations governing proper conduct between- students, staff and students, students and staff, students and management, students and university and students and outsiders.

67. Clause 1. 4.3 deals with regulations governing social media use and clause 1. 4.4 are consequences of violation of the policy. These consequences are: warning, suspension for a specified period to be determined by the Student Disciplinary Committee, expulsion from the University and or university residence and a combination of any two or more of the above.

68. Clause 1. 5 deals with dissemination and review of the policy and is clear that every student is issued with a copy of the policy and is expected to read, understand and comply with its provisions.

69. The exparte applicant does not deny the existence of the social media policy and its provisions on compliance and consequences for breach thereof. He complains that the regulation he is alleged to have breached does not exist in the policy.

70. Under clause 1. 4.4 above, violation of the Regulations Governing Social Media Use will lead to the penalties prescribed in the Kenyatta University Student Information Handbook. Section 5. 0 then prescribes the penalties stipulated in clause 1. 4.4 of the policy. The applicant also annexed the entire Student Information Handbook as KDM 3 for 2017-2021.

71. At page 39 of the Handbook is general offences and it provides that: “on general offences, the Committee will make decisions and recommend appropriate penalties depending on the gravity of the offence(s).” The penalties will include:

i. Letter of warning which will be carried in the students’ file;

ii. Payment of damages;

iii. suspension from the university for a specific period;

iv. expulsion from halls of residence;

v. expulsion from the university;

vi. combination of any two or more of the above;

vii. any other penalties as the committee may deem fit

72. On page 40 of the handbook, there is a note to the effect that:

“Note:the University may suspend a student accused of committing a general offence pending appearance before the Student’s Disciplinary Committee if it considers such an offence serious enough to warrant such action.”

73. From the above note, it is clear that the university could, suspend a student pending appearance before a SDC. It is therefore not true as stated by the applicant quite viciously that there was no provision for suspension pending appearance before the SDC.

74. The applicant carefully avoided the above provision which is contained in his own exhibit.

75. What emerges clearly is that the applicant has simply been accused of violating the social media policy. Page 52 of the Student Information Handbook clause 5. 0 on General Rules and Regulations Governing Student Conduct and Student Disciplinary Procedures, at para 5. 2 (l) is clear that it shall be an offence under the state law and university rules , regulations and policies for a student to abuse or misuse internet and social media(Facebook, twitter, pinterest, etc.(see Social Media Policy).

76. Although the applicant claims that he was charged under a nonexistent regulation, clause 1. 4.3 page 4 of the Student Social Media Policy on Regulations Governing Social Media Use which is found at page 4 is clear and any person reading that part can see the stated prohibitions. See 1. 4.3 (iii),(iv), (v), and (vii) of the Student Media Policy document. It says: “… it is therefore the duty of every Kenyatta University students posting content to ensure that he /she: iii) posts content in the social media that is constructive and devoid of abusive, obscene and vulgar language in accordance with the guidelines spelt out in this policy document. iv) does not write in a manner that can be interpreted as combative , threatening, demeaning or otherwise negative. A legal disclaimer may be required for such posts. v) does not post any content that might be embarrassing to an individual or that can be construed to portray an individual negatively or assassinate an individual’s image or character. Such posts might be perceived as ethnic, bigoted and demeaning. Vii) does not use e-mail or social media account to misinform or incite the students, other members of the University community or the general public.

77. Therefore, should this court grant leave? In my humble view, citing a wrong provision of the Social media policy is different from saying that the Regulation is nonexistent. In this case, the Regulations exist only that the letter of suspension cited the wrong provisions. To my mind, that cannot be fatal to the allegation at the [preliminary stages since the respondents have not, at this stage commenced any disciplinary proceedings against the applicant.

78. The respondents have only shown an intention to subject the applicant to disciplinary proceedings which is an elaborate process to be conducted.

79. As was correctly submitted by Mr Khaseke counsel for the respondents, where there are internal disciplinary mechanisms, a party ought to exhaust those mechanisms before he seeks the court’s intervention by way of judicial review. This is the spirit and letter of Section 9 of the Fair Administrative Action Act, 2015.

80. Courts have held not once not twice but severally and consistently in matters of student discipline that- see Onguto J in Nkatha Joy Faridah Mbaabu v Kenyatta University [2016] eKLR,

“The starting point must be the recognition by the Petitioner that the Respondent had the authority and indeed ability to discipline and punish the Petitioner for any of her transgressions qua student. This fact was not contested by the Petitioner. The disciplinary process is to be conducted by a body constituted by the Respondent. As was held in Republic –vs- Kenyatta University & 2 Others Ex Parte Jared Juma, HC. Misc Civil Application No. 90 of 2009:

“Discipline at the Respondent’s University is necessarily an internal process conducted using internal personnel. It would be impractical to sub-contract or delegate as it were, this function to an outside agency. Most bodies established under statute also establish disciplinary committees. Kenyatta University is no exception. The composition of the disciplinary committee is set out in the Statute, and it comprises University officers. The University has jurisdiction to conduct its own disciplinary proceedings. This must necessarily be so. The suggestion that disciplinary proceedings are a matter for courts is untenable…the existence of such a disciplinary committee has always been recognized by the courts. The courts also recognize that their relationship with such committees is limited to supervision.”

“The court must thus be loath to interfere with any decision of such institution unless it is evident that it was undertaken outside of legal provisions and contrary to constitutional provisions. The institution is enjoined to perform such disciplinary tasks through such bodies are legally and properly constituted as dictated by such relevant laws as the Universities Act, No 42 of 2012 and the institution’s own statutes.

I must additionally also point out that even where the court finds it appropriate to interrogate any disciplinary process by an educational institution a clear balance ought and must always be struck between the need to ensure that the private rights of a student to education of the one hand and the wider public and societal interest which expects the institution to avail graduates at whatever level, whose credentials both academically, ethically and integrity- wise are unblemished and spotless. It is truly not for a party outside of the educational institution including the court to chaperon and nurture the student. Such nurturing which includes discipline is best left to the institution, including the punishment meted out.”

81. Article 50(1) of the Constitution stipulates:

“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

82. It has not been shown by the applicant that the SDC is not an impartial and independent body or tribunal capable of according him a fair hearing in accordance with the rules of natural justice.

83. In holding that the court ideally ought to let such process run its course, the case of Nkatha Joy Petition No. 441 of2015 is useful. The case involved suspension pending inquiry. Onguto J stated as follows in the above decision:

“The appropriate forum is ideally the concerned institution itself. The institution ought to be in a position to determine cases of examination irregularity with little intervention externally. The court ideally ought to let such process run its course.

In the instant case, the Petitioner was accused of examination irregularity. Her examination was cut short. That was on 8 August 2014. Seven weeks later on 30 September 2014, the Petitioner was suspended from the Respondent institution. The letter suspending the Petitioner read partly as follows:

“Following a report by the Department of Library and Information Science on your involvement in examination irregularity in Unit ISC 402: Practical Cataloguing held on Friday 8th August 2014, I regret to inform you that you are suspended from studying in this University pending your appearance before the students Disciplinary Committee. This is in accordance with University Examination Regulation on penalties stipulated in the university calendar.

You will be informed in due course when to appear before the Students’ Disciplinary Committee.”[empahasis added].

The letter made no specific mention of the charges the Petitioner would be facing. In sum, it was a generalized letter talking of examination irregularity and suspension. The suspension of the Petitioner could have meant that the Respondent was still conducting its own internal inquiries to properly place the Petitioner in the hands of the Student Disciplinary Committee. When the Respondent was finally ready to place the Petitioner before the Students Disciplinary Committee, the charge(s) against the Petitioner should have been framed in detail and they indeed they were.”

84. It has not been alleged that the respondents have denied the applicant a hearing as time for such hearing has not been given. In my humble view, the fact that the applicant was suspended at the time when he is vying for position of student leader at the Students Governing Council does not make any exception. All students are subject to the law and the University’s disciplinary proceedings irrespective of their social status or political interests at the University. Clearly, the letter of suspension indicates that the respondent was to communicate the dates for the applicant’s appearance before the SDC. Before that happens, the Respondent must be allowed to conduct its own internal inquiries to properly place the applicant in the hands of the Student Disciplinary Committee. Rush or hurried disciplinary proceedings may end up achieving nothing, not even justice for the applicant.

85. Prima facie, this court does not find any form of illegality disclosed. In addition, it cannot be said that the suspension was meant to deny the applicant the opportunity to vie for the position of SGC because as at 11th October, 2017 when the Calendar for 2017 elections was send out by the Chairman of the KUSA Electoral Commission Dr Bernard Kivunge, the calendar gave timelines for each action preceding the scheduled elections. The applicant does not explain why he did not appeal against his disqualification or his non-clearance by 30th October when names of successful candidates and teams were posted and an appeal expected to be filed by the same day of 30th October, 2017 from 2 pm to 2nd November 2017 at 10. am, which period was before he received his letter of suspension on 2nd November at 11 am.

86. As per the calendar, the posting of successful and unsuccessful candidates and teams was done on 30th October 2017 hence it is not true that the applicant was disqualified after his suspension. I therefore have no hesitation in finding that the applicant’s case is prima facie not arguable and therefore any leave granted will not serve the justice of the case.

87. The applicant had many avenues of resolving his issues with the University. It is not for this court to clear him to vie as SDC Chair and or his team as there is a procedure and timelines set out in his own exhibit KDM 5 and if by 30th October 2017 noon the applicant had not been cleared, he should have appealed from 2 pm as stipulated in the calendar which he was aware of.

88. In my humble view, therefore, this court is being used as a clearing house for internal dispute resolution which is not permitted in law.

89. There is no apparent illegality disclosed in this case and neither do I find any procedural impropriety or irrationality.

90. Legitimate expectation; be as it may, must be anchored on the law or some regulation. It is not for this court to create a legitimate expectation for a party. It must be apparent. In this case, having regard to the prevailing circumstances, I see no legitimate expectation which has been breached.

91. the Court of Appeal decision in Speaker of the National Assembly –vs- Njenga Karume’s Nrb. C.A.C.A. No. 92 of 1992 held that:

“There is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedure.”

92. As was held by this Court in Republic vs. Ministry of Interior and Coordination of National Government and Another ex parte ZTE Judicial Review Case No. 441 of 2013:

“…one must not lose sight of the fact that the decision whether or not to grant judicial review orders is an exercise of judicial discretion and as was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003,for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort though the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. Therefore, unless due to the inherent nature of the remedy provided under the statute to resort thereto would be less convenient or otherwise less appropriate, parties ought to follow the procedure provided for under the statute.”

93. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. See Kipkalya Kones vs. Republic & Another ex-parte Kimani Wanyoike& 4 Others (2008) 3 KLR (EP) 291,andFrancis Gitau Parsimei & 2 Others vs. National Alliance Party & 4 Others Petition No.356 and 359 of 2012.

94. This position has now acquired statutory underpinning vide section 9(2), (3) and (4) of the Fair Administrative Action Act, 2015 which provides:

(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

95. In Republic vs. National Environment Management Authority Civil Appeal No. 84 of 2010 the Court of Appeal expressed itself as follows:

“...where there was an alternative remedy and especially where Parliament had provided a statutory appeal process it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue is to be determined and whether the statutory appeal procedure was suitable to determine it...The learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute. With respect we agree with the judge.”

96. Having considered the issues raised before me in these proceedings, I am not satisfied that this is a matter in which an exemption ought to be considered since the applicant did not even apply for exemption from resort to the internal review or appeal mechanisms on account of exceptional circumstances contemplated in section 9 of the Fair Administrative Action Act.

97. Judicial review, it ought to be remembered, is a remedy of last resort and ought not to be applied for where there exist appropriate remedies to redress the grievance complained of.

98. In the premises, it is my view that the applicant ought to have pursued his grievances on disqualification by way of an appeal contemplated in the Calendar. With regard to the suspension, it was too premature to challenge the same in view of the clear provision in the Students Information Handbook which stipulates that he could be suspended pending an appearance before the SDC.

99. In addition, the Applicant cannot allege delay in considering his case because he was given the letter of suspension on 2nd November, 2017 and on 3rd November, 2017 he was before this court seeking leave and stay.

100. This court must indeed let the procedure provided for the challenge of student disciplinary proceedings take its course as contemplated under the established mechanisms which, it has not been shown, are ineffective or inadequate. The applicant cannot be heard to complain that he has not been heard as the time for hearing is yet to be fixed and like every other disciplinary process, patience must be exercised. In addition, a student who is on suspension must abide by the rules. Staying out of the university premises or halls of residence cannot be said to be an additional punishment but part of the terms of suspension.

101. As the prayer for stay would be dependent on the grant of leave, I find no purpose in delving into the merits of the prayer for stay. However, assuming I had granted leave, in this matter, I would not have granted stay. This is because the applicants’ relief for mandamus seeking to compel the University to include him as a cleared candidate eligible to run for election as Chairperson of the Students Governing Council cannot lie on account that Order 53 Rule 1(4) of the Civil Procedure Rules is clear that stay would lie only in cases of Certiorari and Prohibition. It would not lie in cases where Mandamus is sought. The applicant in his reliefs sought for mandamus but changed tact in the face of the chamber summons by asking for an injunction to stop elections. I find no material upon which I can grant a prohibitory injunction which is grounded on facts which seek for a mandatory injunction.

102. Accordingly, the Notice of Motion dated 3rd November, 2017 is disallowed and dismissed with no order as to costs.

Dated, signed and delivered in open court at Nairobi this 9th day of November, 2017.

R.E.ABURILI

JUDGE

In the presence of :

Mr Omoke for the exparte applicant

Mr Imende h/b for Mr Khaseke for the Respondents

Court Assistant: George