[2018] KEHC 8900 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 573 OF 2017

IN THE MATTER OF AN APPLICATION FOR AN ORDER OF CERTIORARI

AND

IN THE MATTER OF THE DECISION OF THE RESPONDENT TO DISCONTINUE THE APPLICANT FROM STUDYING AT THE UNIVERSITY CONTAINED IN THE RESPONDENT’S LETTER DATED 11TH APRIL, 2017

AND

IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTIONS 4, 6, 7, 8 AND 9 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015

BETWEEN

LOSEM NAOMI CHEPKEMOI.....................APPLICANT

AND

KENYATTA UNIVERSITY..........................RESPONDENT

JUDGEMENT

Introduction

1. By a Notice of Motion dated 20th September, 2017, the applicant herein, Losem Naomi Chepkemoi, seeks the following orders:

1. It be declared that the letter inviting the ex parte applicant to disciplinary hearing and the disciplinary proceedings conducted against the ex parte applicant on 26th January 2017, as well as the decision to discontinue her from the University contained in the letter dated 11th April, 2017, amount to a contravention of the ex parte applicant’s right under Articles 50 of the constitution to have the respondent’s allegations of the alleged commission of an alleged examination result tampering against her, adjudicated upon by an independent and impartial adjudicating authority and to a fair hearing of the same within a reasonable time.

2. It be declared that the letter inviting the ex parte applicant to disciplinary hearing and the disciplinary proceedings conducted against the ex parte applicant on 26th January 2017 as well as the decision to discontinue her from the university contained in the letter dated 11th April 2017 amount to a contravention of the ex parte applicant’s right under Article 47 of the constitution to a fair administrative action that’s is expeditious, efficient, lawful, reasonable and procedurally fair with regard to the respondent’s allegations against her of alleged tampering with examination results

3. It be declared that the letter inviting the ex parte applicant to disciplinary hearing and the disciplinary proceedings conducted against her on 26th January, 2017, as well as the decision to discontinue her from the university contained in the letter dated 11th April 2017, amount to contravention of the ex parte applicant’s rights under Sections 4 of the Fair Administrative Action Act, 2015.

4. That this honourable court be pleased to issue an order of certiorari to remove and bring to the High Court for the purposes of quashing and to quash the decision to discontinue the ex parte applicant from the university contained in the letter dated 11th April 2017

5. An order that the respondent do pay general damages to the ex parte applicant.

6. An order that the respondent do admit the ex parte applicant back to the university with her marks in HFN 101, HFN 102, PHM 107, HCU 300 and HFN 330, as held by the university

7. In the alternative to (6) above, this honourable court be pleased to order that the respondent do conduct fresh disciplinary proceedings against the ex parte applicant in accordance with the law; which inter alia, recognizes the ex parte applicant’s right to legal representation in the disciplinary proceedings.

8. That this honourable court be pleased to make any other or further order/directions to secure enforcement of the ex parte applicant’s fundamental right to administrative action as it will deem fit.

9. An order that the respondent do pay to the petitioner costs of this petition.

Ex ParteApplicant’s Case

2. According to the applicant, she joined Kenyatta University on 6th May, 2013, to study for a degree of Bachelor of Science (Foods, Nutrition and Dietetics) Course until August, 2016, when she completed the 4 years degree course. She averred that between May, 2013 and August, 2016, she went through the said course, studying a total of 50 units as required and fulfilled all requirements for the award of Bachelor of Science (Foods, Nutrition and Dietetics) degree.

3. It was her case that throughout the period she studied at the University, the students used to check their exam results at the University website where results were posted after every semester and that during the said period, she used to check her results religiously. It was averred that the applicant took a total of 50 units for the four years distributed as follows:

Year of study Number of courses/units

1st year 13

2nd year 13

3rd year 12

4th year 12

Total 50

4. The applicant deposed that according to the results posted in the university’s web site, she passed all the units, except two in the 2nd and 3 years for which she did re-takes and passed. Accordingly, she finished the second semester of the fourth year, and indeed the whole course in August, 2016, after a three month’s attachment and the results for the fourth year were posted over time till around October, 2016. She duly checked her results for the fourth year and confirmed that she had passed all units.

5. According to the applicant, fortified by these results, and having passed earlier years, she commenced the process of clearing with various university departments in readiness for graduation ceremony which had been slated for 16th December, 2016 and for which she had duly applied for.

6. It was the averred by the applicant that around November, 2016, upon being satisfied that she had fulfilled all requirements for the award of the degree, the respondent notified her to clear her fees balance in readiness for the said graduation ceremony and in readiness for the graduation, she had also made arrangements including informing and invited friends and relatives.

7. However, as she was preparing and waiting for graduation, on 6th December, 2017, she received a letter of suspension from the University dated 30th November, 2016, where the respondent was alleging that she had been involved in an exam irregularity, a development which shocked and traumatized her as her name had already appeared in the list of those who were to graduate on 16th December, 2017 having cleared her fees.

8. It was averred by the applicant that when she enquired for an explanation from the respondent, she was told to go home and wait for the next communication from the respondent. The applicant insisted that to the best of her knowledge, she had never been involved in an examination irregularity and that like other students, had always relied on the results that are posted in the University’s website and had passed all the units.

9. The applicant asserted that she is neither an employee of the respondent/university nor the administrator of the respondent’s website and I had no access and capacity to tamper with that web site.

10. It was the applicant’s case that before removing her name from list of graduands, the university had never charged her with any irregularity and she had never undergone any disciplinary process as pertains the allegations of tampering with exam results. It was further averred that the applicant had not received any communication from the University as pertains those allegations.

11. It was the applicant’s case that the decision to remove her name from among the graduands was done arbitrarily, capriciously and oppressively and as a result she never graduated on 16th December, 2016.

12. The applicant averred that vide a letter dated 19th January, 2017, she was invited to disciplinary case to be held on Thursday, 16th January 2017 at 8. 30 am to a charge of influencing and tampering with online examination data in five units listed in that letter which meeting she duly attended on 26th January, 2017. At the disciplinary committee meeting, she was ushered into a hall of about 20 people who did not introduce themselves to her, except the Academic Registrar and one of her lecturers whom she recognized. She was then asked to tell them what had happened to her units and if she knew of somebody who had tampered with her on-line grades for the units to which the applicant denied knowledge of.

13. It was deposed that the Academic Registrar then told the applicant that she should not lie because the respondent had full evidence of what had happened without disclosing that evidence to her. Although the applicant was urged to apologize by the Academic Registrar, she declined to do so after which one of the panellists told her that she was rude and was not giving the satisfactory answers to their questions.

14. Thereafter the applicant was told to go and wait for a verdict from the University and vide a letter dated 11th April, 2017, the applicant was notified of the decision of the disciplinary committee where she was discontinued from studying at the university, allegedly for committing an examination irregularity in her grades.

15. The applicant disclosed that she was aware of two students, Alice Njeri Ngiciri and Edgar Nyabengi Otemo whose names were removed from the graduation list in circumstances similar to hers and who had filed cases in High Court and who were subsequently invited for disciplinary proceedings and the disciplinary committee recommended that their altered marks be reversed and were not discontinued like in her case.

16. Based on legal advice, the applicant believed that the letter of invitation to disciplinary proceedings, the disciplinary proceedings conducted against her, and the decision of the disciplinary committee to discontinue her amounted to a contravention of her fundamental rights to a fair administration action under article 47 of the Constitution, her right to be heard before an adverse decision is made under article 50 of the Constitution, and my right to equality and against discrimination under Article 27 of the constitution in that.

i) The said letter gave only seven days’ notice which was not adequate notice to prepare for the disciplinary proceedings.

ii) The said letter did not contain detailed charges and particulars of exam tampering.

iii) The said letter did not contain/disclose the name of the accuser, evidence or the source of the evidence against him.

iv) I was not given adequate time to defend myself, and making my representations in that regard as she was confronted with allegations of alleged bribery to influence the exam tampering, which allegations she did know beforehand.

v) The disciplinary proceedings had against her were sham, vindictive, haphazard, and investigative, rather than disciplinary proceedings.

vi) She was not notified of the right to legal representation

vii) She was not notified of the right to cross-examination and neither was she given an opportunity to cross-examine witnesses.

17. It was therefore the applicant’s case that the decision to discontinue her was most unfair, un-proportional and unreasonable.

18. It was averred that on 2nd June, 2017, the applicant appealed against the decision as required by the rules and at the same time sought for the reasons of the decision. She accordingly, lodged the appeal at the same time with her colleagues, who had also faced disciplinary proceedings on 26th January, 2017 and that her colleagues got their decision on appeal around August, 2017. She however did not receive the decision on her appeal or reasons for the decision to discontinue her. When on 30th August, 2017 her advocates on record wrote a reminder to the respondent, which letter the applicant delivered herself the same day to the Students’ Affairs Office, Room 12, the respondent refused to receive the same hence these proceedings.

19. It was submitted on behalf of the applicant that the entire proceedings up to the appeal level starting from the letter inviting the applicant for disciplinary proceedings defied the criteria of a fair hearing set out in De Souza vs. Tanga Town council [1961] EA 377,that:

(i) If a statute prescribes, or statutory rules and regulations binding on domestic tribunals prescribe, the procedure to be followed, that procedure must be observed.

(ii) If no procedure is laid down. There may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue.

(iii) In such a case, the tribunal, which should be properly constituted must do its best to act justly and to reach just ends by just means…….

(iv) The person accused must know the nature of the accusation made.

(v) A fair opportunity must be given to those who are parties to the controversy to correct or to contradict any statement prejudicial to their view.

(vi) The tribunal should see that matter which has come into existence for the purpose of the quasi-lis is made available to both sides and, once the quasi-lis has started, if the tribunal receives a communication from one party or from a third party, it should give the other party an opportunity of commenting on it.

20. It was submitted that the above principles of fair hearing which can also be termed as principles of fair administrative action have now been codified under section 4(3) of the Fair Administrative Action Act, 2015, which sates as follows:

(3) where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) Prior and adequate notice of the nature and reasons for the proposed action;

(b) An opportunity to be heard and to make representations in that regard;

(c) Notice of a right to a review or internal appeal against an administrative decision where applicable;

(d) A statement of reasons pursuant to section 6;

(e) Notice of the right to legal representation, where applicable

(f) Notice of the right to cross-examine or where applicable; or

(g) Information, material and evidence to be relied upon in making the decision or taking the administrative action.

21. The reason why these decision were cited, it was submitted, was because the evidence brought against the ex parte applicant indicates that these principles were grossly violated by the respondent in that the letter dated 19th January, 2017 inviting the petitioner for disciplinary proceedings did not contain the detailed particulars of the allegations or accusations made against the petitioner, accusers and their evidence. In this respect the applicant relied on the case of Winrose Gathigia –vs- Kenyatta University, Nairobi High Court Misc. Application No. 1029 of 2007 where the court held that a similar letter inviting students for disciplinary proceedings offended the principles of natural justice and proceeded to quash disciplinary proceedings carried out pursuant to such invitation by holding at page 19-20 of the judgment, that:

“A reading of the above letter does not disclose the nature of the charges that the petitioner was going to meet at the committee on 3rd August, 2006. It was very general. All that the petitioner would have known is that she violated unit ECT 300, Education Technology but not how she violated it.”

22. The applicant also relied on Eliud Omwoyo & Others vs. Kenyatta University Petition No. 365 of 2012, where the student in that case had been accused of similar offence of influencing tampering of online grades, the court, whilst commenting on the letter inviting the student to disciplinary hearing, said the following at paragraph 48, line 18 onwards:

“..The questions that I would ask then are, was the letter supposed to reveal the manner of influencing tampering with on-line grades? Was it supposed to reveal any evidence? Was it supposed to reveal the nature of the tampering and the parties involved? Was it supposed to reveal the sources of the evidence that the petitioners were to be charged with? My answer to these questions would be in the affirmative. I say so because the letters were basically inviting them for proceedings whereby they would be required to give their defence and side of the story. It was also at these proceedings that the respondent was going to lay down the evidence that he had against the petitioners but obviously this did not happen. In fact even at these proceedings, the Respondent merely stated that “investigations revealed that the petitioners were complicit in the tampering of online grades”. As to what evidence had led the Respondent to such a conclusion, none as placed before me at all, and like the petitioners, I take the view that the respondents treated the matter rather casually..”

23. According to the applicant, the very wording of the letter inviting a student to disciplinary hearing is central to the student’s right to fair hearing and a fair administrative action. It is this letter that ought to inform him or her fully of the case he or she is to meet at the hearing so that he or she can adequately prepare for him or herself. This is more crucial considering that in these kinds of hearings, a student is usually not afforded legal representation.

24. It was therefore contended that in this case:

(i) The letter should disclose the manner of influencing tampering with on-line grades.

(ii) The letter should reveal evidence.

(iii) The letter should reveal the nature of the tampering and parties involved.

(iv) The letter should reveal the sources of evidence that the applicant was charged with

25. According to the Respondent, in this case the letter does not set out the manner in which the applicant influenced tampering of online grades. For instance, did she do it herself? How did she get access to the respondent’s password to be able to change the grades? Was she given by somebody else, and who was that person? Did she pay a bribe to someone else to change the grades? How was the bribe paid? Did she pay money? How? Cash or Mpesa? Cheque? How much? Bank transfer? Or was it in kind? How? Sex? Romance? Or did she buy that person a car? Lap top? Or what? The letter is just too general and the student did not know what to expect. Secondly, the letter did not reveal evidence. For instance if it was Mpesa transaction, did they have the transcript? If it was in kind; what did they have? What of the name of the person allegedly paid? Had he recorded statement and if so, where was this statement? Section 4(3)(g) of the Fair Administrative Action Act, makes it mandatory for the administrator to supply evidence. The respondent blatantly ignored this statutory obligation. Thirdly, the letter does not reveal the nature of influencing tampering and the parties involved. Although the letter appears indicate how the tampering was done for instance from D to A, It is worth noting that the applicant was not charged with “tampering” but “influencing tampering”, It is the nature of “influencing” that should have been disclosed and not the nature of “tampering”. Needless to say, the parties involved were not disclosed in the letter. Fourthly, the letter des not disclose the sources of evidence that the applicant was charged. It was submitted that it is clear from the replying affidavit that respondent did not have any evidence in the first place that the ex parte applicant had influenced tampering of her online grades. It is worth noting that at paragraph 4 of the said Replying affidavit, the respondent opines that it suspended the applicant on 30th November, 2016 on “information that had come to it”. That information was not given to the applicant at the time, was never given at the disciplinary hearing and in fact it has never been supplied to her at all.

26. In the replying affidavit, the respondent claims that the grades were changed using the password of one Alphonso Wafula. It does not indicate who changed the marks and what relationship there was with the ex parte applicant.

27. It was therefore submitted that the letter inviting the applicant to disciplinary proceedings conducted 26th January, 2017 violated the petitioner’s right to fair administrative action and fair hearing under Article 47 and 50 of the constitution as well as sections 4 and 6 of the Fair Administrative Action Act.

28. According to the applicant, the second stage at which the ex parte applicant’s rights to fair hearing and fair administrative action were violated is at the stage of disciplinary hearing. Based on the afore-cited decisions, it was submitted that the test to apply therefore to establish whether the applicant’s rights were violate is i) whether, at the hearing, the respondent disclosed to the ex parte applicant the manner of his influencing tampering with on-line grades, ii) whether at the hearing, the respondent revealed evidence, iii) whether at the hearing, the respondent revealed the nature of the tampering and parties involved and iv) whether at the hearing, the respondent revealed the sources of evidence to the ex parte applicant.

29. In this case it was submitted that the evidence produced before the court by way of verifying affidavit indicates that the above questions were not answered during the hearing. The hearing was sham, sort of kangaroo court. No evidence was presented against the ex parte applicant. No witnesses were called. Instead, the applicant was being intimidated to admit guilt and supply evidence against herself. In fact there were no proceedings at all.

30. Concerning the disciplinary hearing itself, a look at the minutes annexed clearly confirms that the hearing was sham. For instance no witness testified against the applicant, no evidence was tendered against the applicant and no hearing took place; no cross-examination of witnesses.

31. In the applicant’s submissions the alleged hearing was actually a fishing expedition by the respondent who was basically interviewing the applicant to get incriminating information. She submitted that it was also clear from the minutes that the applicant categorically denied being involved in influencing tampering with the online grades and there was no evidence whatsoever to support the finding of guilt. Inn her view, the respondent’s decision to find the applicant guilty of examination irregularity was based on spurious assumption as stated at observation No.(iii) of the disciplinary hearing minutes that:

“There was no way her marks could have been changed without having paid the money to facilitate the enhancement”

32. The other absurd basis that could have influenced the respondent to assume that the applicant was guilty is because one of the students admitted to have been involved in the irregularity. However, in her supplementary affidavit, the applicant denies any association with this student. The applicant wondered what connection there was between admission of guilt by one student to the guilty of another.

33. The applicant relied on section 4(4) of Fair Administrative Action Act which provides for the right to cross-examine witnesses which right according to her was also ignored. The respondent is challenged to provide minutes of the disciplinary hearing to prove that it complied with the law at the hearing.

34. At the appellate level, it was submitted that this right was violated in two respects. In the first, the appeal has not been heard in over 3 months; hence unreasonable delay. In the second, the respondent declined to give reasons for their decision to the applicant, upon request to enable her lodge an effective appeal in terms of section 6(1) of the Act. It was contended that the applicant appealed against the decision on 2nd June, 2017. To date, the appeal has not been heard. By the time the applicant brought these review proceedings, the respondent had heard the appeals of the other students who appealed at the same time with the applicant. The questions that arise are whether the applicant had been discriminated and whether the respondent has taken unreasonably long time to hear the appeal.

35. The applicant relied on section 4(1)(f) the Fair Administrative Action Act which guarantees the applicant a fair administrative action that is among others expedient and it was her contention that action, in includes appeal. It was contended that the delay for 3 months to deal with the appeal at the time of filing the proceedings going to 5 months violates the right to fair administrative action which is expeditious. We answer that question in the affirmative for the following reasons. First, in the initial proceedings, the respondent took less than three months to hear and determine the matter. Why does it now take over 3 months to hear the appeal? Secondly, it is on record that the respondent has disposed of the other appeals by the other students. What is so unique about the applicant’s; appeal that warrants this long time? Thirdly, over 3 months is in any event inordinate delay and amount to a contravention of the right to a fair administrative action that is expedient.

36. It was further submitted that the other aspect in which the applicant’s rights have been violated at the appellate stage is failure by the respondent to supply the applicant with the reasons for the decision to enable her effectively appeal against the same. Reliance was thus placed on section 6(3) of the Act that makes it mandatory for the reasons to be supplied within 30 days which the respondent failed to do. It was submitted that by dint of section 6(4) of the Act, where the reasons are not given within 30 days, the decision is deemed to have been made without any good reasons; hence unfair.

37. It was further submitted that the decision to discontinue her from studying at the respondent was also made in bad faith, irrational unreasonable, disproportionate, violates legitimate expectation and unfair in terms of section 7(2)(h), (i), (l), (m), (k), (l), (m) and (n) of the Fair administrative Action Act, 2015 in that some of the applicant’s colleagues charged with similar offences had been treated differently. One of the students graduated and the other went back to take the impugned unit after the University restored the grades as held by the University. It was the applicant’s case that the fact that the said students had been heard earlier is not a proper basis for differential treatment. In the absence of any explanation for this differential treatment the Court was urged to hold that the applicant’s right to equal treatment and against discrimination under article 27 of the Constitution was violated.

38. It was submitted that in the replying affidavit, the respondent does not deny that the applicant was treated differently. Whereas it claimed that the case of other students was conducted in 2012 under a different University Calendar, the respondent did not attach that calendar to show how different it is from the current calendar.

39. Further, it was the applicant’s legitimate expectation, in view of what happened to previous students, that she would have been treated in the same manner for a similar offence.

40. The applicant therefore submitted that she was entitled to the reliefs sought. In additional to the orders and declarations sought, she is entitled to an award of damages/pecuniary compensation.All these reliefs are provided for by section 11 of the Act.

41. As regards the appeal, it was submitted that in her supplementary affidavit, the applicant has stated in details what transpired in regard with her appeal. That she presented the appeal which was prepared with assistance of her advocates, Gacheru Ng’ang’a & Company Advocates dated 2nd June, 2017 and the letter seeking reasons for the decision of the same were delivered on the same day but the respondent declined to sign or stamp on the same as evidence of receipt. At the time of filing the appeal, the applicant was not informed of any payment. In fact, the letter that had requested her to appeal again did not mention of any appeal filing fees.

42. In the applicant’s view, the respondent cannot therefore claim that the applicant did not appeal. It received the appeal but set out to punish the applicant; ostensibly for seeking the services of a counsel.

43. With respect to quantum of damages, it was submitted that in the case of Lempaa Vincent Suyianka & 4 Others vs. Kenyatta University, High Court Misc. Appl. No. 118 of 2003, the Court awarded damages of Kshs. 800,000/- to each of the petitioners for contravention of their right to be heard. In the applicant’s view, that was a case where, like in this case, the right to fair hearing was contravened with effect that the petitioners were suspended from the university and therefore losing academic time. In reaching a quantum for pecuniary compensation, the Court was urged to consider the following factors.

i) The arbitrary nature in which the respondent conducted itself,

ii) The fact that the applicant had spent money preparing for the graduation ceremony where she did not participate

iii) The fact that the applicant will waste more years before graduating as a result of the conduct of the respondent.

iv) Had the applicant graduated on time, she could have worked for these lost years earning substantial salary.

v) The compensation award should have a punitive element to discourage the respondent from further violations of law and court orders

44. Taking those factors into consideration, it was submitted that an amount of Kshs. 10,000,000/- would reasonable to vindicate the rights of the applicant that were blatantly violated and the pain, agony and anguish she underwent and still going through.

45. As regards prayer (vi), it was submitted that this prayer, among others, is to bring this matter to a conclusion. It is meant to avoid a situation where the University is ordered to conduct fresh disciplinary proceedings for a second time and probably this goes on forever.

46. The applicant was of the view that the argument that the Court will not interfere with the merits of the decision of the disciplinary committee of the respondents is wrong in law for the following reasons:

1) Firstly, Article 23(3) of the Constitution gives the court power to award appropriate relief; including fashion a new remedy, where a fundamental right has been violated. It will give any appropriate and effective relief; regardless that this matter was not commenced by way of petition. In an application such as this one, the court has power not only to look at the process of decision making but the merit of the decision. It has power for instance to look at whether the decision was supported by evidence, whether the decision violates the applicant’s rights to fair hearing, legitimate expectation etc.

2) Secondly, section 11 of the Act gives the court wide powers to give an appropriate relief including giving directions to the administrator on how to deal with the matter.

3) Thirdly, whilst the court cannot perform the role of a public organ, it will play a supervisory role; it will ensure that the public organ follows the law; it will ensure that in performing its role, the public organ respects the fundamental rights and freedoms of the party involved. This is all what this application is about.

47. In the applicant’s view, the criterion is effective remedy and this remedy is the most effective one for the following reasons:

1) Firstly, the court will have already declared that the University has failed to conduct disciplinary hearing that accords with the law. This process cannot go on forever.

2) Secondly, the circumstances of this case show that this is the most reasonable remedy to give in the matter. There is no evidence whatsoever that the applicant was involved in influencing tampering with her marks. The respondent does not have witnesses. It has not supplied this information in the last disciplinary hearing and it is obvious that even it is given another chance it will not have the evidence. However, the University may be given benefit of doubt that it holds different marks and it is not fair to allow the student graduate with the wrong marks. The student should be allowed to retain the correct grades as held by the University.

3) Thirdly, this has happened before with the previous students. The University has not given any explanation of the differential treatment. The law calls for equal treatment. This is a proper case for the court to apply that living principle of the law.

4) Fourthly, the Constitution contains other provisions that support the view expressed above. For instance Article 159(2)(d) calls upon the court to promote the purposes and principles of the constitution in exercising judicial authority. Some of the constitutional principles under Article 10 of the constitution are human dignity, equity, equality, human rights and non-discrimination.

48. In concluding this aspect, it was submitted that of all other orders sought, order (vi) is the most effective and the applicant is entitled to it. Authorities abide in abundance to the effect that the court has power to grant the relief and in doing so, the court is not assuming the role of the respondents’ disciplinary committee.

49. The applicant therefore submitted that she had demonstrated that her fundamental rights both under the Constitution and the Fair Administrative Action Act were violated by the respondent and was therefore entitled to reliefs sought in this regard. As a result she has suffered loss and damage and she is clearly entitled to specially to redress taking form of pecuniary compensation, which is assessed at a reasonable figure of Kshs. 10,000,000/-. Specifically too, the applicant is entitled to prayer (vi) of the Motion; for her marks as held by the university to be restored as well as the costs of the application.

Respondents’ Case

50. The application was however opposed by the Respondent.

51. According to the Respondent, on 30th November, 2016, the Respondent suspended the Applicant on suspicion that she had been involved in an examination irregularity after information came to the Respondent, that various student’s including the Applicant had caused their online examination data to be changed for their benefit.

52. The decision, according to the Respondent was based on University Statute XLVI on University Examination Regulations as stipulated in the 2014 – 2017 University Calendar page 174 that provides that, ‘ A student who is involved in an examination irregularity shall be suspended immediately by the Registrar (Academic) upon receipt of an incident report pending appearance before the Students’ Disciplinary Committee.’It was the Respondent’s case that it was therefore entitled to suspend the Applicant pending her appearance before the Students’ Disciplinary Committee.

53. According to the Respondent, while the Applicant was suspended, the Respondent conducted and concluding its investigations into the alteration of the Applicant’s online examination data and a Grades Audit Report was prepared on this alternation which revealed that five (5) units in which the Applicant had acquired a Grade D in the examination were altered to a Grade A on 7th October, 2016 using the password of one Alphonse Wafula. This alteration was done prior to the graduation of the Applicant.

54. It was also averred that it was further discovered that the same password was used to alter the Grades of a student by the name of Kanja Simon Kirocho on 22nd October, 2016.

55. The Respondent averred that by a letter dated 19th January, 2017, the Respondent invited the Applicant for disciplinary proceedings which were to take place before the Students Disciplinary Committee on 26th January, 2017 at 8:30 a.m. The letter informed the Applicant of the units she was accused of tampering with, the nature of the tampering, where the disciplinary hearing was to take place and the time it was to take place. On 26th January, 2017, the Applicant appeared before the Student Disciplinary Committee, was informed of the charges she was facing and given an opportunity to make representations. The Committee considered the Applicant’s submissions and recommended her discontinuation from the Respondent University.

56. It was contended that before and during the disciplinary hearing, the Applicant did not request for more time to prepare a defence, did not request for legal representation and did not request to cross-examine any member of staff of the Respondent. It was revealed that on the same date, a student known as Kanja Simon Kirocho who had been accused of the same offence as the Applicant, confessed to the Student Disciplinary Committee that he had paid Kshs. 30,000 to have his marks changed using the password of one Alphonse Wafula.

57. As regards the penalties for examination irregularities, the Respondent contended that the 2014-2017 University Calendar at page 175 provides that, ‘Any student found guilty of an examination irregularity by the Students’ Disciplinary Committee shall be discontinued.’ This meant that once a student was found guilty of an examination irregularity, the University had no option but to discontinue them. These were the regulations the Applicant subjected herself to when she enrolled in the Respondent University.

58. As a result of the regulations in place in the Respondent University and the recommendations of the Students’ Disciplinary Committee, the Respondent on 11th April, 2017 discontinued the Applicant from studying with immediate effect and was advised that she could appeal to the Chairman of the Senate within 14 days of receiving the letter. The Respondent however did not receive any Appeal from the Applicant within the 14 days stated in the letter of 11th April, 2017 and that the Petition of Appeal dated 2nd June, 2017 is dated outside the 14 day period, does not have a stamp of the University and no receipt of the payment of Kshs. 1,000 appeal fee is attached.

59. With respect to the allegations touching on two students Alice Njeri Ngiciri and Edgar Nyabengi Otemo, that they were taken through the disciplinary process by the Respondent and received different sanctions, the Respondent averred that their cases were conducted in 2012 when there was a different University Calendar in place in the Respondent University hence their circumstances were therefore different from those of the Applicant.

60. It was the Respondent’s case that the Applicant failed to adduce any evidence of the bias she claims in relation to the determination of her colleagues’ disciplinary cases, the appeals they lodged and the decision of the Senate and it is therefore not possible for this Honourable Court to determine if students were treated differently by the Respondent.

61. The Respondent asserted that its actions were in conformity with the Constitution, the Fair Administrative Action Act and the rules of natural justice and urged the Court to dismiss the application.

62. It was submitted on behalf of the Respondent that the Respondent informed the applicant of the charge – tampering with on line examination data. It informer her of the Units which she was accused of tampering with. Finally, it informed of the nature of the tampering – changing the grades from a Grade D to a Grade A. Further, the applicant was notified when and where the disciplinary hearing would take place and she did not complain about the time given to her to prepare for the hearing. To the Respondent this letter had substantial more information that the impugned letter in Petition No. 1029 of 2007 – Winrose Gathigia vs Kenyatta University. In that case the Petitioner was only informed that he was to answer to charges of an examination irregularity in a unit. The contrast in detail with the invitation letter which is before this Honourable Court is stark.

63. It was the Respondent’s submission that the information that was presented to the Applicant when inviting her for the hearing was sufficient for her to prepare for the hearing. She knew what the University was saying she had done and what she was required to defend herself against. Further, at the hearing, she did not request for any further information from the University or additional evidence.,

64. According to the Respondent, it has presented to this Honourable Court the report that was generated after investigations were concluded on the alteration of the Applicant’s grades. It shows evidence of the alteration, the person who conducted the alteration and when it was conducted. The same individual’s password, Alphonse Wafula, had been used to alter the marks of another student who confessed to paying for the alteration. This is in contrast to Petition No. 365 of 2012 – Eliud Omwoyo & Others v Kenyatta University where no evidence had been presented to support the finding that the examination results of the Petitioners had been altered.

65. The Respondent denied that it treated its students differently when the same set of facts concern them. Two letters have been attached to the application for judicial review and it is alleged that they demonstrate bias. According to the Respondent the two cases the Applicant refers to were decided on 12th February, 2012 and 15th February, 2012. This was over 5 years ago. The other issue is that there is a different University Calendar governing the actions of the Students and the consequences of those actions. This change occurred in 2014 and it annexed the University Calendar to the Respondent’s Replying Affidavit together with the punishment it prescribes.

66. In support of its submissions the Respondent relied on Eliud Nyauma Omwoyo & 2 Others vs. Kenyatta University [2014] eKLR in which the Court held as follows regarding the issue of discrimination when analysing punishments meted out by the Respondent’s Disciplinary Committee:

In any event, is discrimination based on punishment a valid ground under the law? I do not think so and it is my view and I do hold that the Disciplinary Committee is empowered to conduct disciplinary proceedings and it is within its discretion to mete out any punishment it deems fit it in accordance with the University Statute. This Court will not proceed forth to dismiss their decision and direct them to adopt a certain decision.

67. It was submitted that the SDC in the present case had power to mete out the punishment it thought fit in accordance with the University Statute and the facts of the case. It would be terribly unfair to measure their decision against a decision made by a Disciplinary Committee, 5 years ago, in a different regulation regime in the Respondent.

68. According to the Respondent, the letter informing the Applicant of the disciplinary action which was being taken against her is dated 11th April, 2017. It has not been alleged in any of the pleadings that the Applicant has filed in this Court that she received the letter after the date stated on it. It must therefore be assumed that she received the letter on 11th which letter stated that the Applicant had 2 weeks to file an appeal. The Applicant purportedly filed her appeal almost 2 months after the Respondent had informed her of her discontinuation. It was therefore out of time. Further, the Applicant has presented a document which was not received by the University and there is no evidence of its receipt. The Respondent has explained to this Honourable Court that when an appeal is filed, the Applicant pays Kshs. 1,000. 00 and a receipt is issued to her. No receipt has been presented as evidence to the Court.

69. In light of the above facts, it was submitted that no appeal was filed against the decision of the Students’ Disciplinary Committee and no evidence of such an appeal has been presented to this Honourable Court.

70. The Court was urged not to award damage in a case such as this and reliance was placed on the case of Alice Njeri Ngichiri vs. Kenyatta University [2012] eKLR where it was held as follows:

“An award of damages in circumstances such as this would send the message that even if one is found to have tampered with examination results or grades, he or she may well get monetary compensation if one is removed unprocedurally from the respondent’s graduation list. It would be against the public interest for students whose grades have been tampered with to either be permitted to graduate with such grades, or to be compensated in damages for removal from the graduation list…in the circumstances, though I do find that there was a violation of the right to be heard and of fair administrative action, and balancing the right of the petitioners to be heard against the greater public interest to ensure that students graduate from our institutions of higher learning with the grades that they deserve, and thus preserve the integrity of our tertiary education, I make no award of damages against the respondent.

71. To the Respondent, this position was affirmed in Eliud Nyauma Omwoyo & 2 Others vs. Kenyatta University [2014] eKLRwhen it elected not to award damages in a case similar to the present.

72. The Respondent insisted that it was common ground that the marks of the Applicant were altered. The issue is whether she influenced the alterations. This is where the parties part. She could not be on the Respondent’s graduation list with the tampered results. An investigation had to be completed and hearing conducted before she could get back on the list with her actual results. It was submitted that it was in the greater public interest to prevent the Applicant from graduating with marks she did not earn or deserve. Further, it would send a wrong message if she were awarded damages for being removed in a gradualist because she had grades which had been tampered with.

73. As regards the award claimed, it was submitted that it is not explained how the amount claimed was arrived at, the authority which supports and why the Applicant is deserving of it.

74. The Respondent therefore prayed that the application be dismissed.

Determinations

75. I have considered the issues raised in this application. In my view the determination of this application may well rest on whether there was an appellate procedure provided in the subject disciplinary proceedings and whether that right was invoked and the effect thereof.

76. It is common ground that there was an appellate procedure provided under which the applicant could appeal the decision of the Students’ Disciplinary Committee to the Chairman of the Senate within 14 days of receiving the decision.

77. Whereas the applicant contended that she indeed exercised that right the Respondent denied this. The applicant however contended that the Respondent declined to receive the appeal.

78. In Republic vs. National Environment Management Authority [2011] eKLR, it was held that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted. The Court of Appeal had this to say at page 15 and 16 of its judgment:

“The principle running through these cases is 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 statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. 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.”

79. 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. This principle was well articulated by the Court of Appeal in Speaker of the National Assembly vs. Karume [1990-1994] EA 549which held that:

“Irrespective of the practical difficulties enumerated...these should not in our view be used as a justification for circumventing the statutory procedure...In our view, 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. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions and statutory provisions.”

80. The position was restated by the Court of Appeal sitting in Kisumu in Eliud Wafula Maelo vs. Ministry of Agriculture and 3 Others [2016] KLR where it was held that:

“The jurisdiction of the High Court in particular matters or instances can be ousted or restricted by statute…The subject’s right of access to the courts may be taken away or restricted by statute…Where a tribunal with exclusive jurisdiction has been specified by a statute to deal with claims arising under the statute, the County Court’s jurisdiction to deal with those claims is ousted, for where an Act creates an obligation to and enforces the performance of it in a specified manner only, the general rule is that performance cannot be enforced in any other manner.”.

81. It was accordingly held in Thuku Kirori & 4 Others vs. County Government of Murang’a [2014] eKLR that:

“Moreover, where a statute or constitution, for that matter, has expressly delegated specific functions, duties or responsibilities to a particular organs, state or otherwise, this court will be hesitant to intervene and curtail these organs’ efforts to execute their statutory or constitutional mandates’’

82. In Re Preston [1985] AC 835 at 825D, Lord Scarmanwas of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort. The position was also expressed in Republic vs. Chief Magistrate Nanyuki Law Courts Ex Parte Purity Gathoni Macheru [2016] eKLR where the court held that:

“The Learned authors Beatson, Mathews and Elliot in the book Administrative Law on availability of alternative remedy had this to say.’ It is generally accepted that, at least in principle, judicial review is a remedy of last resort, to be invoked only when other avenues, such as rights of appeal…have been explored; if not then permission may be defined.’’

83. I therefore associate myself with the position adopted by Emukule, J in Revital Healthcare (Epz) Limited & Another vs. Ministry of Health & 5 Others [2015] eKLR at paragraph 10 where he cited with approval the case of Damian Belfonte vs. The Attorney General of Trinidad and Tobago C.A 84 of 2004in which it was held that:-

“…where there is a parallel remedy, Constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature, which, at least arguably indicates that the means of least redress otherwise available would not be adequate. To seek constitutional relief in the absence of such feature would be a misuse, an abuse of the Court’s process.”

84. This position has now acquired statutory underpinning by the enactment of the Fair Administrative Action Act, No. 4 of 2015 which is an Act of Parliament enacted pursuant to Article 47 of the Constitution. Section 9(2), (3) and (4) thereof 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.

85. It is however my view that the onus is upon the applicant to satisfy the Court that she ought to be exempted from resorting to the available remedies.

86. In International Centre for Policy and Conflict and 5 others-vs. The Hon. Attorney-General & 4 Others [2013] eKLR the Court recognized the need to let relevant statutory bodies deal with matter within their mandate fully before interfering in manner sought in these proceedings by holding that a Court of law:

“…must first give an opportunity to the relevant constitutional bodies or State organs to deal with the dispute under the relevant provision of the parent statute. If the court were to act in haste, it would be presuming bad faith or inability by that body to act...Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted…”

87. Similarly in Diana Kethi Kilonzo & Another vs. Independent Electoral & Boundaries Commission & 10 Others[2013] eKLR the court held as follows:

‘We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities…Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted…”

88. Therefore if the applicant did not appeal, this Court would not in the exercise of its judicial review jurisdiction quash the decision of the Respondent.

89. What has however disturbed me is that whereas the applicant placed the blame for her failure to properly lodge her appeal as required on the doorstep of the Respondent, the Respondent apart from denying that the appeal was lodged within the prescribed time has not dealt with the damning allegation that the receipt of the applicant’s appeal was unjustifiably declined. In the absence of a specific denial of this allegation, the Court finds that the Respondent improperly declined to accept the applicant’s appeal. It is trite that even in cases where a discretion is given to an authority the Court is entitled in appropriate cases to interfere with the same (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323.

90. I have no doubt that the Respondent was obliged in the exercise of its discretion to receive an appeal presented to it by the applicant and in the absence of reasons for not doing so, the only reasonable conclusion is that the Respondent failed to exercise its discretion reasonably.

91. What then is the option available to the Court in those circumstances? In Kenya National Examination Council vs. Republic, Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No. 266 of 1996[1997] eKLR it was held that:

“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:-

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

At paragraph 90 headed “the mandate” it is stated:

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…”

92. In other words this Court cannot purport to step into the shoes of the Chairman of the Senate and in effect issue orders which ought to have been issued upon the hearing of the appeal.

93. However under section 11 of the Fair Administrative Action Act, 2015, in proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including an order declaring the rights of the parties in respect of any matter to which the administrative action relates, setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions, compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right or setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions.

94. Pursuant to the foregoing provisions, I hereby set aside the Respondent’s decision declining to accept the applicant’s appeal and direct the Respondent to do so upon payment of the requisite fees and proceed to hear and determine the applicant’s appeal in accordance with the law. The said determination is to be made within 30 days of the lodging of the appeal and in default the Respondent’s decision discontinuing the applicant from her studies at the University and the consequential orders shall, unless ordered otherwise by this Court, stand quashed.

95. In the circumstances, each party will bear own costs of these proceedings.

96. It is so ordered.

Dated at Nairobi this 24th day of January, 2018

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Gacheru for the ex parte applicant

Mr Angwenyi for the Respondent

CA Ooko