https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11019

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 450 OF 2025** **BETWEEN** **BEATRICE NJERI MAINA…………………………………..PETITIONER** **AND** **THE UNIVERISTY OF NAIROBI ………………………...RESPONDENT** **JUDGMENT** 1. The petitioner is a Year 3 postgraduate student (Registrar/Resident/Senior House Officer) pursuing a Master of Medicine in ENT Surgery (MMed ORL-HNS) at the University of Nairobi. She moved this court through petition dated 18th July 20255 and amended on 6th August 2025.The petition is supported by an affidavit sworn on 6th August 2025, further affidavit sworn on 7th November 2025 as well as written submissions dated 19th December 2025 and rebuttal submissions dated 8th April 2026. 2. The petitioner states that she commenced the said postgraduate programme following study leave approval by her employer, the County Government of Nyeri in November 2018. Further that her education was funded by County Government of Nyeri for an amount of Kshs. 14, 534, 300 by way of bonding which she was to pay back by working for the County Government of Nyeri for 5 years, or in cash if she resigned from the said County. She further states that the respondent's Students' Code of Conduct 2020 and the Students Code of Conduct (Revised) 2021 are expressly defined as the governing documents prescribing penalties for breaches for rules and regulations including those made by faculties and departments. Further that although faculties and departments may prescribe rules relating to academic programs such as deadlines for assignments, logbooks, dissertations, among others, they are not empowered to impose penalties for breach of such rules. It is the Students’ Code of Conduct 2020 (Revised) 2021 that stipulates the grounds upon which students of the respondent may be barred from sitting exams. These include lack of payment of school fees; failure to carry one’s Student ID and Exam Card to exam room, being found guilty of some disciplinary offence and deserving of such a penalty and lack of attendance of the required number of hours for a course that is being taken. 3. It is contended that nowhere in the Students’ Code of Conduct (2020) or Revised 2021 are formative assessments marks or incomplete dissertation proposals listed as grounds for imposition of any penalties upon a UoN student; whether in the form of barring from sitting an exam, barring from attendance of classes, quizzes or even Continuous Assessment Tests, relating to the courses taken within a student’s year of study. 4. Contrary to this, the petitioner avers that these grounds have been utilised to bar her from sitting end of year exam on four different occasions, on these grounds. Specifically, she was excluded from the Principles and Practice of Surgery examination in Year 2 (August 2020), and thrice from the Principles and Practice of Otorhinolaryngology, Head and Neck Surgery I / Principles and Practice of ORL-HNS1 (HMO 701) exam on 7th June 2022, 7th July 2023 and 10th February 2025 in year 3. That on a fifth occasion, 24th July 2025, she received a message from the Chairman of Department’s personal email account indicating she was ineligible to sit the examination on account of formative assessment marks which had been improved to above undisclosed departmental cut-off. No letter of such exclusion was ever issued by the respondent University. 5. The petitioner states that in July 2025, she was again denied registration in the HMO 701 course, preventing her from obtaining an Exam Card thereby locking her out of the July 2025 Exam. She contends that the formative assessments were contrived and based on no actually administered formative assessments. On 4th August 2020 and 10th February 2025, the petitioner was verbally barred from sitting examinations without written notice, contrary to Clause 2.9.3 of the respondent’s Guidelines on Student Progression. Similarly, her exclusion from the July 2025 examination was communicated only through the Chairman's personal email, without any formal departmental communication. 6. The petitioner states that following each exclusion, the respondent required her to undergo an extended teaching period (especially by way of teaching in the clinical rotations) in order to improve formative assessments marks that had been cited as grounds for exclusion. In year 2, she was compelled to repeat the General Surgery rotation pursuant to a letter dated 4th August 2020 from the General Surgery Thematic Unit. In year 3, she was subjected to an extended clinical rotation, extra lectures and an extra Temporal Bone Course activity as communicated in letters dated 7th June 2022 and 8th February 2024 from the Department of Surgery, reinforced by the verbal comments made by the Department’s chairman on 10th February 2025 upon ejecting her from the examination room and further the Chairman’s email of 24th July 2025. 7. The petitioner asserts that despite issuing a Letter of Demand dated 23rd May 2025 and a subsequent addendum dated 26th May 2025 to the respondent’s University’s VC demanding to be offered the HMO 701 and demanding a reassurance that formative assessment marks not be utilised as grounds to bar her from sitting the exam, the respondent failed to respond. 8. The petitioner opines that in light of the foregoing violations, she has been subjected to a sustained pattern of unjustified, irregular and unlawful exclusion from academic examinations. Further that with contrived marks having been utilised for years to bar her from sitting examinations, if not addressed, the Department of surgery lecturers would begin to contrive attendance records, records of documents brought to examination room to lock her out of future exams. 9. The petitioner avers that despite paying her full school fees and finding the HMO 701 on offer on the respondent’s website in July 2025, she was deliberately prevented from registering for the course on the SMIS Portal due to refusal by the Chairman of the Department of surgery to resolve hitches in her account on the respondent SMIS Portal, which would enable her register. 10. The petitioner states that the said Chairman, having previously collaborated with the ENT invigilator to contrive marks and unlawfully bar her from the February 2025 examination, continued to frustrate her attempts to register for the July 2025 HMO 701 course, thereby denying her the opportunity to obtain an Exam Card, a mandatory requirement under Clause 6.1.5 of the Student Code of Conduct (Revised) 2021.She adds that the Chairman initially treated her as though she remained in Temporary Withdrawal, terming her as “not fully back” in a WhatsApp message dated 4th July 2025 and refused to facilitate proper registration despite her appeals to the Dean of Faculty and VC. 11. The petitioner states that upon service of her pleadings as directed by court on 22nd July 2025, the previously registered HMO 701 course was dropped. There cropped up more impediments to her registration in the respondent’s SMIS Portal. The chairman falsely assured higher authorities through an email dated 23rd July 2025 that her registration problems were due to a fee balance, which disproved by the Bursar. He then gave false assurances that she would be able to register, yet failed to resolve the persistent errors in her SMIS account. 12. The petitioner states that on 28th July 2025 the Chaiman suddenly insisted that she had been migrated into the new curriculum group and could only register for HMOTO 701 the new equivalent of HMO 702. This communication was made using personal email account or phone number, contrary to Clause 2.9.3 of the Guidelines on Student Progression, which requires such actions to be formally communicated by the University. 13. The petitioner emphasizes that no provision exists in the pre-existing Mmed ORL-HNS syllabus and Examination Regulations requiring migration to the new curriculum, and students who commenced prior to 2022 continued under the pre-existing Program syllabus and Examination Regulations including courses HMO 710 and HMO 702. That having found the HMO 701 on the Respondent’s University’s website among those on offer for the MMed ENT Surgery program in July 2025, and having paid her full fees, she had a right under clause 4.3 of the students Information Booklet to have her SMIS account cleared to enable registration. Instead, she was flatly refused registration and locked out of the July examination. 14. The petitioner avers that she was on four separate occasions barred from various other non-exam teaching and evaluation activities, particularly, clinical rotations or from going on with her academic program in its entirety on the basis of unlawful and illegal administrative actions taken in violation of the dictates of the respondent’s University’s Students Code of Conduct (Revised) 2021 and its stipulations on academic process as communicated on its Students Information Booklet on the Procedures of Academic Process. 15. She explains that the suspension of 7th July 2023 by the Department of Surgery was imposed arbitrarily in violation of the University’s governing instruments. The suspension was effected contrary to Clauses 26 and 27.1 of the Students’ Code of Conduct, which regulate the delegation of disciplinary authority over University of Nairobi students, and in disregard of the disciplinary procedures prescribed under clauses 32 to 36 of the Code. The suspension letters were not copied to the Dean or Academic Registrar, further violating Clauses 2.9.3 and 2.9.4 of the Guidelines on Student Progression. 16. The petitioner states that initially, reinstatement was said to depend on advice from the Faculty of Health Sciences (Dean/Associate Dean). Later, the condition mutated to require favourable reports from the **Kenya Medical Practitioners and Dentists Council (KMPDC).** This was followed by demands for one, then two psychiatric evaluations, and ultimately, the requirement that she be found innocent at a disciplinary hearing. 17. The petitioner wrote to the Department of Surgery on **4th August 2023** requesting clarity on the duration and reasons for her suspension so that she could respond and seek reinstatement. In reply, the Department informed her that the suspension was **indefinite,** amounting to expulsion from clinical rotations. She was told she was presumed guilty of all allegations and would not be afforded any opportunity to defend herself. The Department further stated that reinstatement could only occur if she subjected herself to evaluations at the **Kenya Medical Practitioners and Dentists Council (KMPDC).** The Petitioner contends that this penalty was imposed on flimsy bases, including baseless allegations never tested before a disciplinary forum among others. 18. The petitioner contends that the Department of Surgery’s letter of **25th August 2023** contained **unfounded allegations** designed to justify its unprocedural suspension decision to the Associate Dean for Postgraduate Students and Research. She argues that this represented a clear **departure** from the Department’s earlier position that reinstatement would depend on advice from the Faculty of Health Sciences, shifting instead to conditions tied to evaluations at the **Kenya Medical Practitioners and Dentists Council (KMPDC)**. 19. She posits that forwarding such allegations to the KMPDC violated **Clause 32.1.1 of the Students’ Code of Conduct 2021,** which requires that complaints against students be forwarded to University offices within three working days. Further, basing the suspension on vague grounds such as “professional misconduct” or “inability to learn” contravened **Clauses 15.3 to 25.1.2 of the Code,** which specify the offences upon which disciplinary action may lawfully be commenced. 20. The petitioner submits that following her communication of **4th August 2023,** several meetings were convened by the Associate Dean–Postgraduate Students and Research (PGSR) and later by the Dean of Faculty to review the Department of Surgery’s suspension decision. At none of these meetings was reinstatement recommended, and she remained condemned unheard for months. 21. She emphasizes that the Associate Dean–PGSR issued two internal memos dated **4th September** and **23rd September 2023,** which imposed unlawful conditions for reinstatement. These included subjecting herself to one, then two psychiatric evaluations, counselling (psychotherapy), and readmission only upon recommendation of the University Health Services (UHS). The petitioner contends that these decisions disregarded the **Students’ Code of Conduct (Revised 2021)**, particularly Clauses **26, 27.1, 32.1.1, 32.1.9, and 32–36,** which vest disciplinary authority solely in the Vice‑Chancellor or Senate committees. 22. She further contends that the decisions were only communicated verbally, in violation of Clauses **2.9.3 and 2.9.4 of the Guidelines on Student Progression,** which require proper written communication copied to relevant officers. When she complained to the Dean of Faculty about the second memo of **18th September 2023,** yet another meeting was convened, again affording the Department of Surgery opportunity to justify its unlawful decision. 23. The petitioner states that seeing that she was getting no assistance from the administrators at the respondents University’s Faculty of Health Sciences to have the suspension lifted, she then requested for the intervention of the Main Campus Administration, including the then VC, through a letter date 16th January 2024. She was three weeks later reinstated to clinical rotations and the suspension lifted through letter of 8th February 2024 from the Department of Surgery. After that she applied for temporary withdrawal which was allowed through letter dated 1st March 2024 from the UoN Academic Registrar. 24. The petitioner avers that upon her readmission from temporary withdrawal in **February 2025,** she was again suspended from clinical rotations on the same allegations that had formed the basis of her July 2023 suspension. These allegations were forwarded to **Kenyatta National Hospital (KNH)** by the Department of Surgery Chairman, in disregard of **Clause 32.1.1 of the Students’ Code of Conduct (Revised 2021),** which requires allegations against students to be forwarded to university offices within three working days. She further contends that disciplinary power over University of Nairobi students can only be delegated to university bodies and officers under Clauses **26.1 and 26.2**,not external committees, and that this amounted to **double jeopardy**. 25. She explains that her application for readmission was frustrated by the Department of Surgery, which forwarded adverse comments on her presumed guilty to the Academic Registrar. The Registrar, by letter dated **25th August 2024,** arbitrarily converted her temporary withdrawal into indefinite barring, contrary to **Paragraph 3.6.2 of the Students Information Booklet,** which makes readmission contingent only upon a written application. The Registrar further required her to appeal to a disciplinary committee he himself convened and sat in, while the Deputy Vice‑Chancellor (Academic Affairs), by letter dated **4th October 2024,** imposed indefinite barring unless she was found to be of a certain health status. 26. The Petitioner contends that these actions violated the **Students’ Code of Conduct (Revised 2021),** which stipulates that penalties such as denial of readmission can only follow a disciplinary process triggered by breach of Part V rules. By refusing readmission and then presiding over his own appeal, the Academic Registrar acted as **prosecutor, judge, jury, and arbiter of his own decision,** contrary to all tenets of fair hearing. 27. The petitioner relies on **Paragraphs 3.6.1 and 3.6.2 of the Students Information Booklet on the Procedures of Academic Process,** which clearly distinguish between readmission following discontinuation/expulsion and readmission following temporary withdrawal. She submits that only the former is contingent upon successful appeal, while the latter is contingent solely upon the making of a written application as prescribed. Paragraph 3.6.2(c) further guarantees that applicants for readmission after temporary withdrawal are to receive a readmission letter within seven working days of receipt of the application by the Academic Registrar. Contrary to these stipulations, the Academic Registrar and DVC‑AA imposed grave penalties upon her, on flimsy and non-factual bases. 28. The petitioner avers that despite being duly readmitted into the academic program vide the DVC-AA’s 3rd February 2025 letter, and in spite of a 27th March 2025 communication from the Respondent University’s VC that her readmission process was long concluded and that her readmission letter remained valid; she was denied all letters she requested of the respondent University’s Department of Surgery which she was to use to communicate her academic progress to third parties in order to effectively appeal the decision by her employer to recall her to her workstation aa well as apply for sponsorship; the Respondent University’s Department Surgery refused as form 3rd February 2025 to add her name to the lists of bona fide Mmed ENT surgery students of UoN that were shared with KNH causing her to be denied a Practising Rights Badge. 29. The petitioner states that in a 5th March 2025 letter, the Chairman of the Department of Surgery wrote to KNH that it would be a high risk to patient safety to readmit her to the clinical rotations despite the DVC-AA’s recommendations. In a 25th March 2025 meeting of the Medical Advisory Committee (KNH) the said Chairman of the Department recommended the matter be escalated to MAC despite the University’s opinion that the Faculty of Health Science readmit her. She further states that the Chairman, until service of her pleadings on the Respondent, completely refused to facilitate the clearing of hitches in her account on the respondent’s SMIS Portal to enable her obtain registration in HMO 701 course and be included in the Year 3 Exams and download the exam card. She argues that this conduct amounted to **arbitrary disregard of communications from the Deputy Vice**‑**Chancellor (Academic Affairs) and the Vice**‑**Chancellor,** undermining the integrity of the University’s administrative processes. 30. The petitioner avers that the respondent has shown little regard for her right to privacy and to access to information. The Chairman, Department of Surgery, sent a letter dated **4th April 2023** to the Petitioner’s employer, disclosing details of her academic progression (including being barred from exams) without her request or consent. In September 2023 and October 2024, the petitioner had the receipt of a positive medical report by the Associate -Dean PSGR and DVC-AA put to her as conditions upon which her indefinite barring from clinical rotations and academic program would be lifted as seen in their letters of 4th and 18th September 2023 and 4th October 2024. 31. The Petitioner contends that despite numerous requests and Letters of Demand dated **14th March 2025** and **23rd May 2025,** she has been denied letters she could use to communicate her academic progression to third parties. Particularly, information in her 4th August 2020, 7th June 2022 and 3rd February 2025 letters from the respondent’s University’s General Surgery Thematic Unit, Department of Surgery and DVC-AA. This also abrogates **Clause 2.9.3 of the Guidelines on Student Progression,** which expressly requires the University to issue such letters upon request. 32. The petitioner claims that her academic records and information on her academic progression were leaked from the Department of Surgery to KNH contrary to the stipulations of Clause 2.9.4 of the Guidelines on Student Progression and Clause 6.1 of the Respondent University’s Policy on Records Management. She further claims that her requests through letters of 26th August 2024, 15th October 2024 and 25th October 2024 to the Academic Registrar and DVC-AA that she be furnished with reasons for her being denied readmission following temporal withdrawal/denial of readmission and a copy of her readmission form to enable her appeal the said decisions the same was denied. Her letter of demand of 23rd May 2025 was also not granted. 33. Regarding disregard for the right to a good name, the petitioner states that in a 23rd November 2023 Consultative Ad-hoc Committee meeting, she was introduced by the Chairman -Department of Surgery as one who suffers from obsessive compulsive disorder; In a 25th March 2025 meeting of the Medical Advisory Committee (MAC) of KNH, she was introduced by one administrator of the respondent University’s Department of Surgery as one with psychiatrist issues; and in the 4th August 2020 letter from the Department of Surgery’s General Surgery Thematic Unit, 25th August 2023 letter from the Department of Surgery, copied to the KMPDC, 25th March and 15th April 2025 MAC meetings, baseless allegations discussed among some Department of Surgery members, and not subjected to the scrutiny of a procedural disciplinary process were fronted as being true and accurate , as though they were guilty verdicts arrived at by College/Faculty Disciplinary Committee. 34. The petitioner contends that as a result of the respondent’s actions she has lost approximately 3-5 years from her stipulated duration of studentship; she has wasted Kshs. 6,358,756.25 out of the Kshs. 14,534,300 funds allocated to her by the County Government of Nyeri for Year 1 to 5 of her studies and is now without sponsorship for the remaining year so study. The Petitioner avers that she reasonably expected to be formally notified if barred from sitting the **February 10th 2025 HMO 701 exam,** but no such letter was issued. As a result, she incurred unnecessary expenses of **Kshs. 24,210** for accommodation in Nairobi from 7th February 2025, awaiting the exam in vain. 35. She was needlessly recalled to her work station on account of invalid grounds and contrived marks repeatedly used to slow her academic progression. This placed her in breach of term 1 (g) of her Bonding Agreement exposing her to a debt of Kshs. 14,534,300 owed to the County Government of Nyeri. She has further lost an opportunity to be an ENT Surgeon in the county Government of Nyeri from January 2024. 36. It is her case that she has suffered immense mental anguish, pain and suffering on account of the continuous barring from siting exams, suspension from clinical rotations, coupled with the recall from her work station among others. She further asserts that even if the denial of study leave were later reversed by the **Public Service Commission** or the **Ombudsman,** the MMed ENT Surgery programme lacks safeguards against malicious failure by disgruntled lecturers. Consequently, she would have little chance of redeeming her debt of over **Kshs. 14,534,300** or recovering her lost career opportunity. 37. The petitioner claims that the attempts to migrate her into the new curriculum Mmed ENT Surgery group would go under draconian and discriminatory Examination Regulation such as Clauses 7.1.9 and 7.1.10 where students are to incur grave penalties such as discontinuation and barring from sitting summative assessments on the grounds of having developed bout of malaria among others. 38. The Petitioner contends that the **Students’ Code of Conduct (Revised 2021),** which proscribes arbitrary penalties and sets out clear disciplinary procedures (Paragraphs 32–35; Clause 36.1.3(h)), has been disregarded in the **2022 MMed ORL**‑**HNS Program Syllabus and Examination Regulations**. She submits that while the Code requires penalties to follow due process and be imposed only for proven misconduct under Part V, the 2022 Regulations prescribe **wanton and arbitrary penalties.** These include barring students from summative assessments or discontinuation for reasons such as alleged misconduct, failure to meet deadlines for surgical logbooks (HMOTO 902), dissertation proposals, or dissertations (HMO 903). Clauses **7.1.5, 7.1.9, 7.1.10, 8.1.2, 7.1.7, 7.2.5, and 7.3.3** demonstrate how the new regulations undermine the protections guaranteed by the Code of Conduct, exposing students to disproportionate sanctions without lawful disciplinary scrutiny. 39. Mmed ENT Surgery postgraduate students are denied an equal pre-examination study break (study leave), with Year 3s and 4s being allocated 1 week and Year 5s one month. The postgraduate students taking various surgical programs under the Department of Surgery of the Respondent are denied an equal opportunity as are other students in various other departments and faculties of the Institution to know from the beginning of the academic year when their mid (Special/Supplementary) and End of Year Examinations are to be held, as the Semester/Term Dates Schedules issued at the beginning of the year are treated as meaningless and inconsequential by the Respondent’s Department of Surgery. 40. The petitioner asserts that respondent’s aforesaid actions violated the provisions of articles 10, 25, 27 (3) and (5), 28, 29(f), 31 (c), 33(3), 35(1) (b), 43 (1) (f), 46(1) (a), 47 and 50 of the Constitution, sections 4 and 6 of the Fair Administrative Action Act 2015 and sections 9(1) and 11(1) of the Health Act 2017 41. The petitioner therefore seeks the following relief: *a) A* ***DECLARATION*** *that the Respondent's actions and decisions that left the Petitioner barred from one or all of the teaching and evaluation activities pertaining to her academic program (including barring from course registration in July 2025), without procedural fairness and without regard to its own stipulations regarding grounds upon which such actions are to be taken, that put to her discriminatory conditions in order that various indefinite barring from her studies may be lifted, that subjected her to unequal treatment, that subjected her to compelled medical diagnosis by a doctor fed with misleading information about her, that violated her right to doctor-patient confidentiality, privacy and human dignity, that in a cruel and inhumane fashion kept on calling for and inciting repeated mental health evaluations, that were devoid of respect for her reputation being a “mere student”, that denied her information she required to exercise her rights, and that grossly violated her rights to goods and services of a reasonable quality, and that protect her economic interests were gross violations of Articles 25(c), 27, 28, 29(f), 31, 33(3), 35(1)(b), 43(1)(a)(f), 46(1)(a)(c), 47 and 50 of the Constitution of Kenya 2010.* *b) An order of* ***CERTIORARI*** *i. To remove and quash the declarations/orders against the Petitioner in the 28th July 2025 email (sent at 1.23 pm) from the Respondent's Department of Surgery Chairman.* *ii. To remove and quash, and declare unconstitutional, the declarations/orders of the Respondent's 2022 Mmed ORL-HNS Program Syllabus and Examination Regulations at Clauses 7.1.9 and 7.1.10 that (“new-curriculum”) students who fail to remain in sound physical and mental health throughout their academic program are liable to incur the penalties of discontinuation and barring from sitting summative assessments (examinations).* *iii. To remove and quash, the declarations/orders of the Respondent's 2022 Mmed ORL-HNS Program Syllabus and Examination Regulations at Clauses 7.1.5, 8.1.2, as well as 7.1.7, 7.2.5 and 7.3.3, that unlawfully prescribe arbitrary penalties (i.e. barring from sitting examinations and discontinuation) upon students who breach the program's rules regulations pertaining to the manner in which their courses and academic programs are to be carried out (breach of Regulation 5.1.8 of the Student Code of Conduct (Revised), 2021.* *c) An order of* ***MANDAMUS****:* *i. Compelling the Respondent to add back the 3.5 years needlessly wasted out of the Petitioner's stipulated duration of studentship to enable her complete her education within the stipulated time.* *ii. Compelling the Respondent to offer the Petitioner the HMO 701 exam (by facilitating her obtaining current registration in its SMIS Portal and thus obtaining a current Exam Card pertaining to its next offered exam, and she having registered, being added onto the Examination Register pertaining to Year 3 Mmed ENT Surgery students), at the mid-year or End of Year Examination that follows the full hearing and determination of this Petition.* *iii. Compelling the Respondent to allow the Petitioner go on with the Mmed ORL-HNS Program Syllabus and Examination Regulations that she commenced the program under in 2018, until the end of her academic program (including its courses Principles and Practice of ORL-HNS Stage I (HMO 701), Principles and Practice of ORL Stage II (HMO 702), Principles and Practice of ORL-HNS Stage III (HMO 703), Principles and Practice of Head and Neck Surgery (HMO 801), ORL-HNS Logbook (HMO 802) and Dissertation (HMO 803)).* *iv. Compelling the Respondent to immediately issue the Petitioner with a letter summarising her and progression from 2018 to date, in a manner that respects her right to privacy and to a good name.* *v. Compelling the Respondent to going forward, issue the Petitioner with all letters she requests for in order to communicate her academic standing and progression to third parties in a manner that respects her right to privacy and to a good name.* *vi. Compelling the Respondent to afford the students walking into an exam room to take a Department of Surgery exam, an opportunity to sign an attendance record as they walk in, and document within this signed attendance record, the documents brought to the exam room, in addition to the opportunity to keep video/audio records of all signed attendance records at all formative and summative assessments in the course of her academic program.* *vii. Compelling the Respondent to install CCTV surveillance in all public areas within the Department of Surgery i.e. its boardroom/exam room, offices, waiting areas, corridors, as well as all other areas where teaching and evaluation activities pertaining to the Petitioner's academic program take place, and allow her also to keep video and audio records of these activities, in order that she may have some way to have and keep record of actions taken upon her by the Department that are not communicated in writing.* *viii. Compelling the Respondent to display in an area that is accessible to all (i.e. on its Department of Surgery Noticeboard) all Examination Registers pertaining to MMed ENT Surgery students at every End of Year/ Mid-year Examination, and all clinical rotation rotas pertaining to MMed ENT Surgery students (printed on a UoN Department of Surgery letterhead, stamped and signed by the Head of ENT Thematic Unit and Department of Surgery Chairman), in order that she may be able to seek redress if she were to be unprocedurally locked out of any of these activities with no official communication in writing, of the same.* *ix. Compelling the Respondent to take measures to ensure that all actions taken to bar its students from sitting examinations and from course registration are carried out in full adherence to Article 47 of the Constitution of Kenya, 2010 including the Fair Administrative Action Act, 2015.* *x. Compelling the Respondent's Department of Surgery to strictly comply with all the stipulations of the Respondent University within its Student Code of Conduct (Revised), 2021, Guidelines on Student Progression (including all revised versions of these documents), and with all its various stipulations and communications.* *xi. Compelling the Respondent to make known to the Petitioner, in writing and in advance, the membership of any committee formed within the Respondent University to review any decision she may appeal against in the course of her academic program, and to ensure the Petitioner is afforded with the opportunity to keep audio and video recordings of every such committee she is invited to appear before, in order that she may have record of who exactly was in the Committee.* *d) An order of* ***PROHIBITION****:* *i. Restraining the Respondent from barring the Petitioner from any future examinations on account of formative assessment marks/ scores/ratings or any other grounds not stipulated by the Student Code of Conduct (Revised) 2021 or any revised versions of this document;* *ii. Restraining the Respondent from barring the Petitioner from any other teaching and evaluation activities pertaining to her academic program, on any grounds other than those stipulated in the Student Code of Conduct (Revised), 2021, or revised versions of this document.* *iii. Restraining the Respondent from barring the Petitioner from sitting examinations, on grounds of attendance at teaching activities/course contact hours, that are not based on official and factual records, stamped and signed by the Head of Thematic Unit, and availed to the Department, Faculty level and Academic Registrar (which records the Petitioner has also been afforded an opportunity to have record of), communicating in advance which teaching and evaluation activities Mmed ENT Surgery students are to attend for each day of the academic year (including which clinical area/duty they have been assigned from day to day), along with official signed attendance records (on a Department of Surgery letterhead, which the Petitioner has also been afforded an opportunity to keep record of), showing which percentage of the above named activities were attended.* *iv. Restraining the Respondent from barring the Petitioner from sitting exams on any other non-disciplinary grounds that are not based on official and factual records that the Petitioner has been afforded an opportunity to have record of.* *v. Restraining the Respondent from any further attempts to migrate the Petitioner into the 2022 (“new-curriculum”) Mmed ORL-HNS Program Syllabus and Examination Regulations (including its “new-curriculum” courses), until the end of her academic program.* *vi. Restraining the Respondent's ENT Surgery Thematic Unit from prescribing (and putting in documents such as its Program Syllabus and Examination Regulations) penalties (especially barring from sitting examinations) for the breach of rules and regulations set concerning the manner in which its courses and academic programs are to be carried out, until such a time as a revised version of the Student Code of Conduct (Revised), 2021 should empower thematic units to independently set rules and regulations pertaining to the manner in which their courses and academic programs are to be carried out, and further empower the thematic units, departments and faculties of the Institution to carry out wanton imposition of penalties for the breach of such rules and regulations.* *vii. Restraining the Respondent from subjecting the Petitioner to any further violation of her right to informed consent to medical diagnosis and to doctor patient confidentiality.* *viii. Restraining the Respondent's Department of Surgery from taking any actions upon the Petitioner that affect her academic progression, and in particular excluding her from participation in any mid-year or End of Year Examination, without putting the same in writing to her, in the way of official communication from the departments, faculties, and other offices of the Respondent University, as per the stipulations of the Respondent University's Guidelines on Student Progression or any revised versions of this document.* *e)* ***GENERAL DAMAGES*** *for psychological trauma, mental anguish, and reputational harm arising from the unlawful imposition/unlawful instigation of 2 arbitrary suspensions upon the Petitioner, verbal and written defamatory statements made against her, the April 4th 2023 letter sent without her consent to her employer, the humiliations of having her health records passed around and discussed by the Respondent's staff members/administrators on account of her inferior status as a “mere student” and not a dignified professor, humiliation of being ejected from exam room, violations of her right to informed consent to medical diagnosis and to doctor-patient confidentiality, unlawful denial of letters necessary for communication of her academic progression without having to reveal unnecessary details and defamatory statements made about her, unlawful denial of readmission following temporary withdrawal, discrimination on account of a presumed “inferior” health status, unlawful denial of course registration, prolonged academic stagnation, frustration of career progression, needless snatching out of the Petitioner's hands of an opportunity to be an ENT Surgeon in the County Government of Nyeri as from January 2024, as well as loss of opportunity to be an ENT Surgeon if she should go on to be discontinued from the Mmed ENT Surgery program on academic grounds.* *f) An* ***ORDER*** *of Special Damages compelling the Respondent to pay to the Petitioner a sum of* ***Ksh 6,358,756.25*** *in the way of sponsorship funds, to compensate for the monies wasted between September 2020 to August 2021, and September 2022 to December 2023, as a result of the Respondent's barring the Petitioner from sitting exams without valid basis.* *g) An* ***ORDER*** *of Special Damages compelling the Respondent to fully redeem, on behalf of the Petitioner, what remains of the* ***Sh 14,534,300*** *Bonding Amount owed by the Petitioner to the County Government of Nyeri if she is unable to obtain a reversal of the decision to deny her extension of study leave upon appeal at both the PSC and Commission on Administrative Justice; or if she should obtain such a reversal but go on, at any point, to be discontinued on academic grounds by the Respondent University.* *h) An* ***ORDER*** *of Special Damages compelling the Respondent to compensate the Petitioner Sh 24,210 for the monies wasted away in the expectation that she would not be barred from sitting the 10th February 2025 HMO 701 exam on the bases utilised previously, without this having been communicated in writing as per Paragraph 2.6.3 of the Guidelines on Academic Progression.* *i) Costs of the Petition.* *j) Such other and/or further orders and/or directions as this Honourable Court may deem just and equitable to grant.* ***Respondent’s response*** 1. The respondent has opposed the amended petition through replying affidavit sworn by Prof Daniel Ojuka on 14th October 2025 and written submissions dated 25th February 2026. It is contended that the amended petition was filed without leave of court. 2. The respondent admits that the petitioner is indeed a third year post graduate medical student at its institution. According to the respondent, the academic records demonstrate that the petitioner challenges while undergoing her studies. In 2009, while the petitioner was an undergraduate student, pursuing Bachelor of Medicine and Bachelor of Surgery (MBChB) programmes at the Department of Surgery, Dr. Wangari Kuria, a consultant psychiatrist, reviewed her and concluded that she was suffering a mood disorder, and was undergoing a major depression with a differential diagnosis for a schizoaffective disorder. 3. Dr. Wangari Kuria further noted that the petitioner had no insight into her illness and therefore required urgent involuntary treatment upon parents giving their consent. This was however not achieved as the petitioner reportedly requested the parents to protect her from what she perceived as harassment from college administration. Consequently, Dr. Wangari Kuria, recommended that the school orders that she be treated and prescribed medication to improve her social functioning, mood and general behaviour. 4. It is claimed that in 2009, while the petitioner was a year 3 Medical Student, the Chairman of the Department of Orthopaedic Surgery, Prof J Milimba expressed concerns about the petitioner concluding that he was unsure whether the petitioner was meant to be a doctor. Further that through its mentorship and medical support, the petitioner eventually completed her undergraduate studies. 5. The respondent states that the petitioner joined its department of Surgery in 2018/2019 Academic Year for the MMed ORL-HNS programme and passed her first year without any incident. In her second year (2019/2020), while she passed her examinations, several incidents were reported while she was handling patients such as failure to appear in theatre for emergency operations. She had also received a warning letter from Kenyatta National Hospital (KNH), Ward 5A, for among other things, failing to do ward work, expression of lack of interest in surgical work among others. She was invited to a Departmental meeting convened to consider her matter and given an opportunity to explain herself. 6. In her third year (2021/2022), there were multiple reports of clinical incidents, as noted in the report of the Associate Dean, Postgraduate Students and Research. The Head of Thematic Unit Dr. Joyce Aswani reported that she had major shortcomings and serious issues concerning clinical judgement; refusing to insert a canula for a patient requiring blood transfusion in Ward 5C; several incidents requiring intervention by fellow Registrars while she was performing simple surgical procedures and that when she encounters complications in the surgical operating room, she declined assistance from senior colleagues. Lastly, that she was not safe to practise because of patient safety. 7. The respondent explains that in the 2021/2022 Academic Year, the petitioner was not eligible to sit for the end of year examinations because she had failed in her progressive assessments and the temporal bone course. Further that she was given another opportunity but declined to attend another temporal bone course, and failed the progressive assessments. She consequently could not sit the Year 3 examinations held in the 2022/2023 Academic Year, a position she was notified by the Chairman of the Department, Dr. Julius Kiboi through letter dated 7th July 2023. 8. The respondent again states that on the same day, 7th July 2023, the chairman, Dr. Kiboi informed the petitioner that it had been recommended that her clinical rotations be suspended pending advice from the Faulty Health Science. The Petitioner appealed this decision through university structures, and though initially faculty consultative committees recommended suspension pending a psychosocial assessment, her appeal was eventually successful. This was communicated to her through the letter of Dr. Kiboi, on 8th February 2024. It is asserted that the faculty meetings considered the views of the petitioner. 9. It is contended that despite the respondent’s letter lifting her suspension from clinical rotations, the petitioner on 12th February 2024 applied for temporary withdrawal from studies. The application was allowed through letter dated 1st March 2024 by the Academic Registrar. Subsequently, the petitioner applied for readmission, which was initially declined on account of regulations and syllabus requirements for mental and psychological fitness to practice. The petitioner appealed, was successful and received a letter of re-admission dated 3rd February 2025. 10. The respondent contends that that the information sought by the petitioner regarding the post readmission procedure and details of academic program in her letter dated 14th March 2025 through her advocates Wafula, Washika and Associates was provided through the Vice Chancellor’s letter of 27th March 2025. It is further contended that the petitioner experienced challenges with registration of courses, and was assisted by the respondent, through the Chairman of the Department, the Faculty Bursar and the Dean of Faculty. 11. The respondent states that it later emerged that the issue that was preventing the smooth registration of the petitioner, was that the course unit she was trying to register under the code “HMO 701 Principles and Practice of Otorhinolaryngology” had been updated in the Students Management Information System (SMIS) to its equivalent “HMOTO 901 Principles and Practice of Otorhinolaryngology”, consequent to implementation of a revised 2022 MMed ORL-HNS syllabus and regulations. Upon explaining to her that she should register for the equivalent unit HMOTO 901 Principles and Practice of Otorhinolaryngology, she declined and amended her Petition to request this Court that she be allowed to be trained using the non-revised curriculum. 12. The respondent asserts that this issue not to be trained under the 2022 MMed ORL-HNS syllabus and regulations was never raised with it before. In addition, the cohort of students that the petitioner has joined are all under the 2022 MMed ORL-HNS curriculum, and for purposes of programme management, it would be onerous to have one student proceeding under an non-revised curriculum while other are trained under a revised curriculum. 13. The respondent pleads that for examination, the course content in HMO 701 and HMOTO 901 did not change, so a student sitting for the examination under the new code will not be disadvantaged in terms of content to be examined. It is further pleaded that even though the petitioner wanted to sit for the August 2025 Year 3 MMed examinations, the Chairman, Department of Surgery, explained to her that: while she could register for courses, in her case course registration alone did not entitle her to sit for examination, as she had to fulfil the requirements outlined in the letters of the Chairman of the Department dated 7th July 2023 and 8th February 2024, which were to pass progressive assessments, including in the temporal bone course and attend clinical activities (rotations). 14. The respondent states that the attending clinical rotations by the petitioner was untenable given that she was under suspension by the KNH, the training hospital. According to the respondent, the petitioner is free and enabled to register for the course, attend clinical rotations at KNH. Further, the issue of which course unit to register for as between the previous curriculum or the current curriculum can be resolved through internal mechanisms of the university. 15. Dismissing the contentions by the petitioner, the respondent asserts that the requirements for students in the MMed ORL HNS to pass progressives assessments, before sitting the end of year examinations and for a candidate to be expected to be of sound mental and physical health at all times while undertaking the program and to conduct himself in a manner befitting the medical profession (Clauses 7.1.9 and 7.1.10) were all previous MMed ORL curricula and conforms with constitutional requirements for patient safety and the need to provide the highest attainable standard of health. 16. With regard to seeking to be compensated over fees paid, it is pleaded that the petitioner’s university fees are paid directly to the respondent by the Government through Ministry of Health, and as such any refunds or repayments can only be claimed by the Ministry of Health, which has not been enjoined to the proceedings. It is further pleaded that the petitioner is an employee of the County Government of Nyeri and any bonding terms that she has would be pegged on the salary she has been receiving and currently receives, as such she cannot seek to make the respondent a party to her employment contract. 17. The respondent states that, the petitioner has not enjoined the parties to the bond to these proceedings; that any such payment to her would amount to paying her salaries that she is already earning hence constituting unjust enrichment; that it is premature to claim funds from bond terms which cannot be shown to have been breached and the amount payable and the respondent is not responsible for paying student accommodation and for the time the she has taken at the university. 18. The respondent asserts that based on the aforesaid, the petition lacks legal foundation, the issues have not crystalized for litigation. It adds that it fully accepts the petitioner as its student and that she will be allowed to sit for examinations upon fulfilling the academic requirements. The respondent further urges this court to dismiss the prayers in the amended petition as no leave was sought. 19. The respondent asserts that all decisions were undertaken in accordance with the applicable procedures and the petitioner was afforded an opportunity to challenge those decisions at the departmental level with higher authorities of the respondent, including the Vice Chancellor and at the highest levels she was consistently successful. It is added that even though she has experienced health challenges, the respondent has treated them with due caution, with no letter disclosing her illness to her employer of potential employer. 20. It is pleaded that the email dated 28th July 2025 from the Chairman of the Department merely reiterated the academic conditions that the petitioner needs to fulfil before qualifying to sit her examinations. Those requirements had previously been communicated through the Chairman’s letters dated 7th July 2023 and 8th February 2024 and are expressly provided for under both the current and previous MMed ORL-HNS regulations. It is further reiterated that any dispute concerning whether the petitioner should register under the previous or the revised curriculum is capable of resolution through the University’s internal mechanisms without recourse to the Court, as the course content is similar. 21. Regarding an order of *Certiorari,* the respondent contends that no lawful basis has been established because: the email of 28th July 2025 simply restates the academic conditions previously communicated to the petitioner and other students through the Chairman’s letters dated 7th July 2023 and 8th February 2024; the issue concerning registration under either the previous or revised curriculum is an internal academic matter capable of resolution through the University’s established processes and the challenge to Clauses 7.1.5, 7.1.7, 7.2.5, 7.3.3 and 8.1.2 of the MMed ORL-HNS curriculum is without merit because the provisions were not introduced for the first time in the 2022 revised curriculum but have consistently appeared in previous curricula. The said provisions further align with the dictates of Clause 5.1.8 of the University of Nairobi Students’ Code of Conduct (Revised), 2021. 22. In relation to the prayer for an order of *Mandamus,* the respondent submits that it is unfounded because; the request for an extension of the programme by 3-5 years is premature as the petitioner has not exhausted the 10 years allowed to cover the 5-year programme which are set to expire in 2029. Should additional time become necessary, the University has internal procedures for extension. 23. The respondent denies wasting the 3-5 years as alleged. It urges that this has been caused by the petitioner’s own actions including temporarily from the programme as well as actions by other parties such as recall by her employer and her suspension from the training hospital. Regarding implementation of the revised 2022 MMed ORL-HNS curriculum, the respondent pleads that this falls within the statutory mandate of the University Senate under the Universities Act, 2012; the petitioner has not yet raised this issue with it. Therefore, this court lacks jurisdiction. 24. With regard to issuance of letter of progress, it is ready to issue the petitioner with such a letter and has already done so. With regard to compelling, it to issue the petitioner with all letter she requests in manner that protects her rights to privacy and to a good name is speculative and it will always issue letters as per its statutory mandate. Conceding the petitioner recording video/audio records of the examination and the attendance records and installing CCTV cameras in public areas and exam rooms this will breach the data protection laws. 25. The request compelling public display of examination registers and clinical rotation rotas pertaining to Mmed ENT Surgery students will also violate their right to privacy. Moreover, the final clinical rotation schedules are made by KNH and is made available to the doctors concerned, and are not public record. The respondent asserts that it complies with the dictates of article 47of the Constitution and adheres to the University Regulations and the Student Code of conduct and where there is divergence there are procedures for raising complaints. 26. Regarding the prayer of prohibition, there is no lawful basis for restraining the respondent from applying academic progression regulations contained in its curriculum. The contention that only the Students’ Code of Conduct should govern academic progression ignores the existence of programme-specific curriculum regulations applicable to specialized academic programmes. Further the allegation that she will be barred from sitting examinations because of unstamped attendance records is speculative. 27. The respondent contends that it would be unlawful to prohibit the it from applying academic progression regulations contained in its curriculum. There is similarly no lawful basis for restraining it from implementing the revised 2022 MMed ORL-HNS curriculum when the petitioner has failed to utilize internal mechanisms to resolve the issue. Further that the Students’ Code of Conduct, 2021 is not the authoritative source of regulations governing academic progression. Both the Code and the curriculum derive their authority from the University Senate. 28. It is pleaded that the respondent has not violated any rights to informed consent or doctor patient confidentiality, save as only authorised by the law; and that respondent has duly notified the petitioner in writing of the requirements she needs to fulfil to sit the Year3 end of year examinations. The respondent reiterating its earlier on assertions dismisses the prayers on general damages and special damages and pleads that it did not author the letter of 4th April 2023 to the employer. The letter dated 1st August 2023 was responding to the County Government of Nyeri upon it enquiry with no other extraneous information. 29. The respondent concluded by indicating that in her supporting affidavit, the petitioner has admits having been recalled from her studies by the County Government of Nyeri through a letter dated 20th January 2025. The Master of Medicine programme is a full-time course requiring students to be available during the day and, where necessary, at night for patient care at KNH. Further that as a public university, it is obligated to train only those postgraduate students who have been formally released from duty by their employers. ***Petitioner’s further affidavit*** 1. In her affidavit sworn on 7th November 2025, the petitioner states that contrary to the respondent’s assertion that the Mmed ORL-HNS progressive assessments were fair and grades not contrived, she maintains that the Mmed ORL-HNS progressive assessments, specifically in the year 2 May to August 2020 General Surgery Rotation and as from the 2021/2022 academic year when she joined year 3 were unfair with cooked up and fabricated scores being used to bar her from sitting the August 2020 Year 2 Examination, and then the June 2022, July 2023, February 2025 and July 2025. 2. The petitioner contends that no evidence was adduced by the respondent that prior to arriving at the various marks mentioned in the 7th June 2022 and 7th July 2023 letters that she had failed to learn the principles of surgery during the May to August 2020 General Surgery rotation, that there had been any assessment administered to her in order to gauge what level of skill and knowledge she acquired in the year 2 Principle and Practice of Surgery course and then year 3 HMO 701 course. 3. The petitioner dismisses the argument that in the previously existing MMed ORL -HNS curriculum Regulations and Syllabus, that they have been going on with the program under stipulated that Continuous Coursework/formative Assessment marks were a bar to sitting examinations. She contends that she commenced the MMed ENT surgery program under the 2009 Mmed ORL-HNS curriculum and not the one attached by the respondent under annexure DKO-15. 4. The petitioner reiterates that despite demand letter dated 23rd May 2025 to the VC that she be offered the HMO 701 Exam at the end of the year and despite that her fees were fully paid and that she found HMO 701 among the courses on offer in July 2025 on the respondent’s website, she received no assistance until her pleadings were served upon the respondents on 22nd July 2025. Further, it was not until 1.23 pm on 28th July 2025 that upon writing to the Chairman of the Department of Surgery did, she gets information as to why she could not be registered for the HMO 701 course. 5. The petitioner dismisses the contention that her inability to register for the HMO 710 course up to July 28th 2025 was as a result of the implementation of the 2022 (Revised) Mmed ORL-HNS curriculum and hence upgrading of the HMO 701 course to its new curriculum equivalent to HMOTO 901. She deposes that in July 2025 the course HMO 701 was being offered on the respondent’s website and that upon making a complaint to the Chairman Department of Surgery on July 28th 2025 , the administrator sent her an email on the same day suddenly migrating her to the new curriculum group of students that joined the MMed ENT Surgery program as from 2022 and communicating that she was not going to be assisted to register for the HMO 710 course but was now to join the new curriculum group pf students and register for HMO’s course equivalent in the Revised (2022) curriculum, HMOTO 701. 6. The petitioner states that upon the revision of a program’s Regulations and Syllabus at the respondent University, there is not just one but 2 tracks along which the students already in the program at the point of the revision are directed; in some programs, there is a provisions in the Regulations and Syllabus document to the effect that upon its revision, there is to be a mass migration of all students already in the program into the new curriculum group , with all these students proceedings with their academic program under the revised curriculum. 7. In the other group of the respondent’s program, there was no provision for a mass migration of the students already in the program exits; students simply proceed with the curriculum they began their program under to the end of their academic program. Under the MMed ORL-HNS Regulations and Syllabus, the 2009/pre-existing MMed ORL-HNS curriculum lacked a provision for mass migration into the new curriculum. She contends that even the document the respondent purports were the previous /non-revised curriculum contained no provisions for mass migration of students already in the program into the new curriculum group. In addition, even in June 2022 with the MMed ORLHNS curriculum having been revised in March, they were not required to register for HMO 701’s new curriculum equivalent course but continued to register for HMO 701. 8. The petitioner states that she declined being migrated into the new curriculum because she knew if she registered for HMOTO 701, she would be locked out of the July 2025 examinations on account of clauses 7.1.5 of the 2022 MMed ORL HNS curriculum which stipulates that students under that curriculum who score a Progressive Assessment mark lower than 50% in a course taken, will be barred from participation in the course exam. She deposes that she knew that with Progressive Assessment marks like 45% in June 2022 and 36% in July 2023 if she registered for HMOTO 701 she would be barred from sitting the exams. 9. The petitioner states that her being denied HMO 701 course registration, and instead suddenly migrated to the new curriculum group of students under the 2022 MMed ORL-HNS curriculum in July 2025 and given only the option of registering for HMOTO 710 rendered her ineligible to sit the July 2025 Year 3 Exam; but was a decision communicated to her suddenly and without notice or reasons and chance to be heard. 10. The petitioner asserts that she raised the issue of remaining under the non-revised Regulations and Syllabus in a 23rd May 2025 letter of demand to the respondent’s VC demanding to be offered the HMO 710 Examination at the upcoming End of Year exam but got no response. The VC being the CEO and academic head of the university and there is therefore nowhere else she could raise the issue within the University. 11. The petitioner contends the claim that having students at year 3 or 4 or 5 of study that are under both the non revised (2009) and revised (2022) curriculum is impractical is baseless. She narrates that upon her readmission on 3rd February 2025 as a Year 3 student under the non‑revised curriculum, she was humiliated and ejected from the HMO 701 examination room on 10th February 2025, while another student under the same curriculum was permitted to sit the examination, passed, and progressed to Year 4 and subsequently Year 5. 12. The petitioner deposes that the MMed ENT Surgery program integrates both “old‑curriculum” and “new‑curriculum” students in Years 3 to 5 for lectures, ward rounds, clinics, theatres, dissertation presentations, and clinical rotations, only separating during examinations. She refers to WhatsApp group posts, signed attendance sheets, and rotation schedules as evidence that students from both curricula were taught together in non‑clinical and clinical rotations, including emergency call duties at KNH. She emphasizes that clinical rotations involve individual, hands‑on teaching of surgical and diagnostic skills, making separation of curricula unnecessary and impractical. 13. The petitioner deposes the departmental chairmen and administrator lacked authority to determine her academic progression. She explains that emails issued in July 2023, February 2024, and July 2025, which purported to impose conditions on her advancement, were unlawful since only the Senate has the mandate to decide matters of progression, graduation, or eligibility for examinations. She cites the Respondent’s Guidelines on Student Progression and Statute XIX (14) (iv) of the University of Nairobi Statutes, 2013, which provide that Heads of Units may monitor and track performance but final decisions must be approved by Senate. She contends that the requirements imposed upon her were ultra vires and procedurally unfair. 14. Regarding not being able to attend clinical rotations due to a suspension by KNH, the petitioner states that her suspension on 17th April 2025 from KNH was illegally instigated by the Respondent’s Department of surgery Chairman, in disregard of Paragraph 32.1.1. of the Students Code of Conduct (Revised) 2021 which requires that allegations raised against the respondent’s students are to within 3 days of alleged date of occurrence, be forwarded to an office of the University and not KNH. 15. The petitioner reiterates that as a result of being compelled to remain in Year 2 and 3, on account of cooked up marks and unlawful administrative actions being utilised to bar her from sitting the August 2020, June 2022 and July2023 exams, and to compel her to undergo an extended teaching period running into the 2020/2021 and then the 2022/2023 and 2023/2024 academic years, she was compelled to eat into a total amount of Kshs. 6,629, 894.50 of her sponsorship funds and this is the sum that was unjustly wasted away. It is the sum she is seeking the respondent to pay her out of the sum allocated to her by the Nyeri County to carry out her schooling up to December 2023. 16. The petitioner states that she does not dispute the fact that the sum of Kshs. 14,534,300 is owed to Nyeri County. She only disputed who should pay that bonding amount back to the county. It is her case that contrary to the respondent’s assertions by her not having completed the masters program within the stipulated timelines she was in breach of Clause 1 (g) of the Bonding Agreement, within the Training Bond Form of Public Servants and as per Term 4 of the obligations /terms stipulate within the Training Bond Form for Public Servants, she is required to pay that sum. The breach of the bonding agreement was occasioned by the respondent who should be responsible for paying the remaining sum of the Kshs. 14, 534, 300. 17. The petitioner states that the prayer to be compensated for the Kshs. 24, 210 that was wasted away in the expectation that she would not be barred from sitting the 10th February 2025 HMO 701 exam on the bases utilised previously, without this having been communicated in writing as per paragraph 2.6. of the Guidelines on Student Progression, was not a prayer that the respondent pay her stipend, but she be compensated for monies wasted away on account of its unlawful actions. She avers that if paragraphs 2.9.3 and 2.9,4 of the Guidelines on Student Progression had been followed, and she was issued on Friday 7th February 2025 with a letter communicating her having been barred form sitting the Monday February 10th 2025 HMO701 Exam, she would have returned to Nyeri and not spent the money to stay in Nairobi to await her exam. 18. The petitioner imputes the wastage of 3-5 years on the respondent and not lack of diligence on her part. This was done by way of the grossly unfair evaluation meted upon her by its lecturers and the unlawful actions of these lecturers at 5 different occasions. She refutes the argument that going into Temporary Withdrawal between February 12th 2024 and February 3rd 2025 wasted time out of her stipulated duration of studentships, because the time spent on Temporary Withdrawal is not to be included in computing a student’s duration of studentship. 19. The petitioner is of the view that if there were genuine internal quality assurance mechanisms at the respondent as well as prioritization of the academic interests of students as per CUE’s Quality of Teaching and Academic Integrity standards, she would have been facilitated to register for the HMO 701 course in May 2025 when she wrote the Demand letter to the VC and sat the July 28th 2025 end of year 3 exam. 20. On the contention that the petitioner is still a student at the respondent and that the issues have not crystallised, she contends that the academic requirements the respondent’s former chairman department of surgery put on her, in his unofficial email dated 24th July 2025 that she must fulfil in order to sit for the end of year 3 exams were illegal and unlawful requirements and were not within his mandate to do so. The issue was also raised with the VC and other offices within the university but were futile, leaving her with no action but to seek legal redress. 21. The petitioner claims that the claim that she had some health illness or health changes was baseless, no evidence was adduced to substantiate that claim. In the medical report written in January 2025, the University Health Services doctor concluded that she was of normal physical and mental health. In January 2025, she presented herself for a wellness check to another doctor who concluded that she is of normal physical and mental health. Further, the 2009 health records attached by the respondent were not accompanied by any evidence that the psychiatrist who wrote the reports had examined her prior to writing the reports. There was also no evidence that the said reports were about herself. 22. The petitioner contends that contrary to the respondent’s assertions, the rules and regulations within the 2009 MMed ORL-HNS Syllabus and Regulations /Curriculum requiring MMed ORL-HNS students to remain in sound physical and mental health at all times, and to hand in their surgical logbook and dissertation by the commencement of the Part II Final ( Year 5) examinations or be slapped with the penalties of barring from sitting these examinations were deemed as withdrawn by the University and to have ceased to exist at Paragraph 43.1.1 of the Students Code of Conduct 2020. These and the above-mentioned penalties were however, illegally prescribed into the revised (2022) MMed ORL\_HNS curriculum upon the revision of the pre-existing (2009) curriculum in 2022. 23. It is the petitioner’s position that Clauses 7.1.9 and 7.1.20 which prescribe the grave penalties of barring from sitting exams, as well as termination of studentship on account of students’ failure to remain sound physical and mental health at all times do not specify that which mental health disorders that will earn each students such penalties. They also do not specify the severity of a mental health, renal, respiratory, cardiac or other disease that will earn students under the 2022 MMed ORL HNS curriculum the penalties mentioned above and thus provide for termination of studentship on the basis of a student’s developing a cough or flu. 24. According to the petitioner it is not true that an MMed ENT surgery student being taught in the clinical rotations in a KNH theatre is an ENT surgeon; the very reason there is an MMed ENT Surgery program offered by the resident is that it is necessary to attain the MMed Ent Surgery qualification in order to become and practice as an ENT surgeon. Accordingly, the respondent communicates at Clause 5.1.8 of the student code of conduct (Revised ) 2021, that it is the faculties and departments of the university that shall prescribe the rules and regulations pertaining to the manner in which their courses and academic programs are to be carried out; no evidence was adduced by the respondent that any of the regulations prescribed at clauses 7.1.5, 7,.1.7,7.1.9, 7.2.5 of 7.3.3 was discussed and arrived at the departmental or faculty level. It is reiterated that the 2022 MMed ORL HNS curriculum disregards, the fact that the grounds stipulated in the Student Code of Conduct 2021 , upon which the penalty of barring from sitting exams is to be imposed upon the respondents students, include only failure to pay school fees, failure to attend the prescribed property of course contact hours in a course taken, failure to arrive at an exam room with a valid students ID and Exam Card, and being found guilty of breach of the rules and regulations at the end of a disciplinary process and deserving of the penalty of barring form sitting a course exam. 25. It is the petitioner’s case that the new curriculum disregards the fact that the penalties imposed upon the respondent’s students are to be found in the Students Code of Conduct 2021 which made it clear that failure to meet deadline pertaining to the handing in of assignments , dissertations, surgical logbooks or even research projects, failure to adhere to regulations pertaining to the requirement for students to maintain their marls above certain cut offs and not to simply aim to score the course pass mark to progress and failure to maintain a certain health status are non penalizable offences. 26. The petitioner further contends that the curriculum ignores the disciplinary procedures stipulated under SCC 2021, which require a formal process before penalties such as barring from exams or termination of studentship can be imposed. Instead, the curriculum prescribes such penalties directly, without Senate‑approved disciplinary proceedings. She emphasizes that only Senate disciplinary committees have authority to impose such sanctions, not thematic units or departments. 27. The petitioner deposes that despite numerous requests, including letters to the Vice‑Chancellor and Deputy Vice‑Chancellor (Academic Affairs), she was denied a letter summarising her academic progression since 2018, or a proper readmission letter free of unnecessary and defamatory details. She maintains that this denial frustrated her ability to communicate her academic status to third parties, including her employer, and undermined her appeal against the November 2023 recall. 28. The petitioner further highlights the respondent’s lack of administrative control over clinical rotation schedules. She provides evidence that rotas are prepared informally by residents and circulated via WhatsApp groups, with no central oversight. She notes that residents were allocated to rotations even during periods designated as holidays in the academic calendar, exposing them to excessive and uncontrolled working hours. She cites medical literature and reports, including the Institute of Medicine of the National Academies’ book Resident Duty Hours: Enhancing Sleep, Supervision, and Safety, to demonstrate the health and safety risks of fatigue, including needle‑stick injuries, exposure to blood‑borne pathogens, and driving accidents. 29. The petitioner contends that failure to cap duty hours violates the Commission for University Education’s standards under Clause PROG/STD/06(2) and (5) of the Universities Standards and Guidelines, 2014, which limit teaching and examination activities to 48 weeks and 1,800 hours per year. She argues that the Respondent’s practices fall short of these standards and endanger both residents and public safety. 30. The petitioner states that contrary to the respondent’s assertions, a forensic report indicated the letter of April 4th 2023 was signed by the same individual who signed the July 23rd 2023 letter and February 8th 2024 from the then Chairman Department of Surgery Dr. Kiboi. The respondent did not attach any evidence of an enquiry by the County Government of Nyeri, in August 2023 or thereabout as to whether she as a continuing student or not. 31. The petitioner states that the letter of readmission following Temporary Withdrawal was issued close to 6 months after having made her application despite the respondent’s communication at paragraph 3.6.2 (a) to (c) of the Students Information Booklet on the Procedures of Academic Process that students will be issued with a letter of readmission within 7 working days of receipt of their application for readmission at the office of the Academic Registrar. She contends that the denial of the readmission on the basis of an alleged inferior health status fell short of the CUE’s Academic Integrity Standards and abrogates the national value and principles of governance that include non-discrimination, equality and equity. 32. The petitioner denies that while undertaking her undergraduate studies at the respondent’s institution, that she was ever reviewed by the Consultant Psychiatrist Dr. Wangari Kuria or diagnose her with any disease or prescribe treatment. There is no evidence that the letters the respondents attached and marked DKO-1 and DKO 1-2 were about herself and not some other undergraduate or postgraduate students within is then School of Medicine; there is no admission number or even ID number given no year or program of study mentioned, no mention of whether the student is an undergraduate or postgraduate. There is further no evidence adduced by the respondent that Dr. Wangari Kuria had at any point prior to arriving at the conclusion by the respondent reviewed her or examined her. 33. The petitioner again denies interacting with the Chairman of the Orthopaedic Surgery Department until 2012 or being placed under mentorship or receiving medical support during her undergraduate years. Regarding the assertions that she passed her second year (2019/2020) with several incidents, she states that she states that she received no warning letter during Year 2 of her studies (over the 2019/2020 and 2020/2021 academic years) whether from KNH, its ward 5A or from anybody else. She further states that as per the code of conduct 2020 at paragraphs 15.3 to 25.1.2, expression of lack of interest in surgical work and other allegation mentioned by the respondent do not include offences upon which the respondent will commence disciplinary action. 34. According to the petitioner, an MMed ENT Surgery Student’s failure to appear in theatre during their clinical rotations is not fatal. The responsibility is in any case on the hands of the lecturers who teach the HMO 710 and other courses because they are the only ones registered and recognised, and thus permitted to practice in Kenya as ENT surgeons, Neurosurgeons, Plastic surgeons etc. ***Petitioner’s submissions*** 1. The petitioner submits the respondent baring her from sitting her Year 2 Examination in August 2020 and her year 3 Examination on 7th June 2022, 7th July 2023, 10th February 2025 and 24th July 2025 as well as the various remedial actions prescribed after the barrings were a violation of her legitimate expectation and violated her rights under articles 47(1), 27(1), 28, 33(3), 43 (1)(f), 46(1) (a) and (c) of the Constitution and the Fair Administrative Action Act, 2015. She relies on the decisions in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others *[2014]* eKLR, *Douglas Moturi Nyairo v University of Nairobi [2018] eKLR*, Kimani v Kenyatta University & another (Petition E197 of 2023) [2025] KEHC 6602 (KLR); Ndurumo v University of Nairobi; Kenya National Commission on Human Rights (Interested Party) [2025] KEELRC 1477 (KLR) and ***Mtana Lewa v Kahindi Ngala Mwagandi, Malindi Civil Appeal No. 56 of 2014 [2015] eKLR.*** 2. **It is the petitioner’s position that being barred by the respondent from HMO 701 course registration violated her legitimate expectation and her rights guaranteed under articles 47, 2791), 43(1) (f), 46(1) (a) and the Fair Administrative Action Act, 2015*.* She** cites the decision in Mark Ndumia Ndung’u v Nairobi Bottlers Ltd & another [2018] eKLR. 3. **The petitioner contends that the sudden migration to the group of MMed ENT Surgery Students under the revised (2022) curriculum on 28th July 2025 violated her legitimate expectation and her rights guaranteed under articles 47, 27(1) and (2), 43 (1) (f) and 46(1) (a) of the Constitution.** She relied on Keroche Industries Limited v Kenya Revenue Authority & 5 Others [2007] eKLR; Belinda Kanana Muriuki v University of Nairobi [2021] eKLR and Keroche Industries Ltd v Kenya Revenue Authority & 5 others [2007] eKLR. The petitioner further submits that she exhausted all the available mechanisms before approaching this court as evidenced by letters of 23rd May **2025**, **3rd July 2025** and **23rd July 2025.** 4. The petitioner posits that her sudden migration to the group of Mmed ENT Surgery students under the Revised (2022) curriculum on 28th July 2025 was not justifiable and thus a violation of the dictates of article 24 of the Constitution. Her argument is that contrary to the respondents’ assertions that maintaining students under two curricular was impractical and unsustainable, neither the 2009 nor the 2022 Mmed ORL-HNS curriculum contains any transitional provisions requiring students already enrolled to migrate to a revised curriculum. 5. Further that throughout the **2024/2025 academic year**, students under both the **2009** and **2022 curricula** attended the same lectures, clinical rotations, emergency call duties, theatre sessions, clinics, dissertation activities and other practical training without distinction. She explains that postgraduate medical training, including clinical rotations, dissertations and logbooks, is inherently **individual-centred**, with each student being taught, supervised and assessed separately, making curriculum differences immaterial to programme administration. In support, she relies on ***Republic v Kenya Bureau of Standards & 4 Others; Ex Parte United Millers Limited; Department of Health Services, Nakuru County (Interested Party) [2019] eKLR.*** 6. The petitioner submits that the penalties prescribed at Clauss 7.1.5, 7.1.7, 7.1.9, 7.1.10, 7.2.5, 7.3.3 and 8.1.2 of the MMed ORL-HNS curriculum violate her rights to legitimate expectation and rights to equality before the law and lawful administrative action, right to human dignity and rights to goods and services of a reasonable quality under 27(1) and (5), 47(1) and 28, 46(1) (a) of the Constitution and the Fair Administrative Action Act. She relies on the decision in Mandeep Chauhan v Kenyatta National Hospital & 2 others [2013] eKLR. 7. The petitioner submits that the unauthorised disclosure of academic progress to her employer without her consent violated her rights under articles 31(c), 47, 46(1) (a) and 46(1) (c) of the Constitution. She makes reference to a letter sent to her employer by the Chairman of the department dated 4th April 2023. 8. It is the petitioner’s case that her suspension form clinical rotations on 7th July 2023 and subsequent reviews of August and September 2023 and 23rd November 2023 violated her rights under articles 27(5), 28, 31(c), 33(3), 43(1) (a), 43(1) (f), 46 (1) (a) and (c), 47 and 50(1) of the Constitution; section 4(1) of the Fair Administrative Action Act and sections 9 and 11 the Health Act 2017. She relies on the decisions in *Republic v Moi University & 3 others Ex-parte Magare [2019]* eKLR; *CNM v Karen Hospital Limited [2016] eKLR*; *R v University of Cambridge* and *Evans Odhambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014] eKLR.* She also relies on article7 of the African Charter on Human and Peoples’ Rights (ACHPR). 9. The petitioner argues that the 23rd August 2024 denial of readmission following Temporary Withdrawal by the respondent’s Academic Registrar and the subsequent reviews of this decision by the DVC-AA violated her legitimate expectation and her rights to fair administrative action, to equality before the law, human dignity, privacy, access to information, to the highest standard of health, to education, to goods and services of a reasonable quality and to a fair hearing guaranteed under articles 27(1), 27(5), 28, 31, 35(1) (b), 43 (1) (a), 43 (1) (f), 46(1) (a) and (c) , 47 and 50(1) of the Constitution; sections 9 and 11 Health Act, 2017 and section 4 and 6 of the Fair Administrative Action Act, 2015. She relies on the decisions in *Zweni v Road Accident Fund and others 2022 (6) SA 639 (WCC)* and *Republic v Kenyatta University Exparte Martha Waihuini Ndungu [2019] eKLR.* 10. It is the petitioner’s case that the Chairman’s instigation of a second consecutive suspension from clinical rotations by KNH upon her readmission, and the said administrator sitting on the committees that considered the matter he, himself, had instigated, as well as the leakage of records pertaining to herself and other students to KNH and the calls/incitement for the petitioner to be subjected to repeated mental health evaluations, violated her legitimate expectation, and violated her rights under Articles 29(f), 31(c), 33(3) and 47 of the Constitution. 11. The petitioner contends that the Chairman’s treatment (until 22nd July 2025), of her letter of readmission following Temporary Withdrawal, in addition to a March 27th 2025 letter from the Respondent’s VC affirming this readmission, as meaningless and inconsequential, violated her rights under Article 47 of the Constitution. Further that the respondent’s refusal to issue the her with letters that she could utilise to communicate her academic standing and progression to third parties for the purposes of her study leave appeal process, without having to reveal unnecessary details, violated her rights under Articles 31(c), 46(1)(a) and 47(1) of the Constitution. 12. The petitioner asserts that the nature and delivery of the Respondent’s Mmed ENT Surgery (Mmed ORL-HNS) program, constitutes a defective service, in violation of her rights under Article 46(1)(a) of the Constitution. She further denies that the respondent has put up sufficient safeguards against unfair evaluation to qualify its Mmed ORL-HNS program as a meritocracy, where the results obtained by students in the program are reflective of their merit, and not of the biases of the lecturers. This she argues renders students defenceless against biased lecturers. 13. She places reliance on the decisions in *Republic v Kenyatta University Ex parte Martha Waihuini Ndungu [2019] eKLR;* *Kumari Shrilekha Vidyarthi vs State of U.P. 1991 (1) SCC 212*; *CNM v Karen Hospital Limited [2016] eKLR*; *Gitobu Imanyara & 2 others v Attorney General [2016] eKLR*; *Mboya v Kenyatta University (Petition E376 of 2022) [2024] KEHC 11853 (KLR);* *Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR);* *Macharia & 6 Others v Standard Group & 4 Others, SC Pet 13 (E015 of 2022)* and *Kimani v Kenyatta University & another (Petition No. E197 of 2023) [2025] KEHC 6602 (KLR)* and pleads that the reliefs sought in the petition be granted. ***Rebuttal submissions*** 1. The petitioner in rebutting the submissions by the respondent again regurgitates the content of her pleadings and submits that the contention that she should be allowed to sit the End of Year 3 Examinations before she has satisfied the Faculty Boad of Examiners is misleading. No student at the respondent can undergo any kind of consideration by the Faculty Board of Examiners until they have sat an examination. Reference is made to Statute XIX (11) of the UoN Statutes that prescribes the mandate of the Faculty Board of Governors as to receive and consider examination results and to recommend them thereon to the Senate 2. The petitioner relies on section 2 of the Fair Administrative Action Act, 2015 and the decisions in *Daniel Ingida Aluvaala & another v Council of Legal Education & another [2017] eKLR and* *R (Cardao -Pito) v Office of the Independent Adjudicator [2012] EWHC 203 (Admin)* for the contention that being granted or denied the right to sit the End of Year 3 (HMO 701 of even the HMOTO 701) examination is an administrative action involving the granting or denial of her legal right to undergo coursework assessment in a lawful manner that adheres to Statute XXXIII (2.1.6) of the UoN Statutes, 2013; be granted access to all teaching and evaluation activities pertaining to her year course and to only be denied the right to participate in the lectures, clinical rotations among others on the lawful grounds prescribed in the SCC 2021 and having been migrated into the new curriculum on 28th July 2025 to be subjected only to lawful penalties stipulated at Clause 7.1.5 of the 2022 Mmed ORL-HNS Curriculum. 3. The petitioner submits that the reason as to why she did not seek for a quashing of the contents of either the 24th July 2025 email communicating her being barred from sitting the July 2025 HMO 701 Examination (an examination which pertained to the 2024/2025 academic year), or the contents of the 7th June 2022 or 7th July 2023 letters communicating her being barred from sitting the HMO 701 examination in the 2021/2022 and 2022/2023 academic years, respectively, is that these various barrings/denials of the right to participate in the HMO 701 Examination have all been overtaken by events, this being the 2025/2026 academic year. 4. It is argued that on the flip side, the intention of the respondent to keep on utilizing “poor” CCA marks (“below-average” Temporal Bone Course score, “below average” Progressive Assessment mark, etc.), cited in the 7th July 2023 letter from the former Chairman-Department of Surgery, to continue to bar the petitioner from sitting the Year 3 course’s examination, has been communicated clearly by respondent, and the decision to be made pertaining to her progress in this 2025/2026 academic year is sure to be that of her once more being barred from sitting the upcoming End of Year 3 Examination on the basis of “poor” CCA marks. 5. The petitioner reiterates that it is practicable to have masters students proceeding under the old and new curriculum. She urges that the internal mechanisms of appeal regarding the adding back of the time wasted away into her stipulated duration of studentship, that of being denied HMO 701 course registration and being migrated into the new curriculum student group do not exist. As per clause 2.1.4 of the Guidelines on Student progression, the maximum amount of time that can be added to students stipulated duration of studentship once expired is just two semesters. Further as per section 35 of the Universities Act, 2012 and Clause19(3) of the University of Nairobi Charter 2013, the functions assigned to the Respondent’s Senate: nowhere provided for among the said functions is the implementation of curricula, the hearing and determination of student appeals pertaining to unfair/unlawful migration across curriculum groups, or the hearing and determination of student appeals of any kind. She relies on the decision is *Catherine Mwihaki Ngambi v International Leadership University [2022] eKLR, Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR.* 6. The petitioner is further of the view that even if there were internal mechanisms in place, it is highly unlikely that she would be able to access any justice through such mechanisms. This is because all decision taken by the respondent have been made arbitrarily in violation of article 47(1) of the constitution., She relies on the decisions in *Sharma Transport vs. Government of A. Palso (2002) 2 SCC 188*; *Njogu v Director of Alcoholic Drinks Control & Management, Nyeri County [2025] KEHC 2161and* *Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR.* 7. The petitioner relies on the decisions in *Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] eKLR;* *Republic v Kenya Wildlife Service & 2 others; Oguna (Suing as the Legal Representative of the Estate of Peter Ouma Ogola) (Exparte Applicant) [2025] KEHC 2019 (KLR);* *Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR, Wagoy & 3 others v University of Nairobi [2022] KEHC 16498 (KLR); Famy Care Limited v Public Procurement Administrative Review Board & another & 4 others [2012] eKLR;* *Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) [2022] KEHC 368 (KLR)* and *Tumaz and Tumaz Enterprises Limited & 2 others v National Council for Law Reporting [2022] KEHC 14747 (KLR)* to further support the contention for the grant of the order of mandamus. 8. Regarding whether the canon of legal interpretation that a specific provision prevails over a general provision is applicable with regard to the provisions of the revised curriculum and those of the SCC 2021, the petitioner submits that this is not the case. It is the petitioner’s position that the canon of legal interpretation that a specific provision overrides a general one only applies where two instruments are of equal standing, which the SCC 2021 and revised curriculum are not. Reliance is placed on *Rossouw v First Rand Bank Ltd (640/09) [2010] ZASCA 130 (30 September 2010) Trustco Group International (Pty) Ltd v Vodacom (Pty) Ltd (82/2015) [2016] ZASCA 56 (1 April 2016).* 9. The petitioner further relies on the decisions in *Daniel Ingida Aluvaala & another v Council of Legal Education & another [2017] eKLR* and *Republic v Betting Control and Licensing Board & another; Outdoor Advertising Association of Kenya (Exparte Applicant) [2023] KEHC 23792 (KLR)* to justify the need to grant the order of prohibition and the need to quash Clauses 7.1.5, 7.1.7, 7.1.9, 7.1.10, 7.2.5, 7.3.3 and 8.1.2 of the revised curriculum. ***Respondent’s submissions*** 1. The respondent wholly and substantively reiterates the averments in its replying affidavit regarding the petitioner not being able to register the Unit under the code HMO 701 Principles and Practice of Otorhinolaryngology; the judicial review orders for certiorari, mandamus and prohibition and the prayers for general and special damages urging for the dismissal of the petition with costs. 2. The respondent further urges the court to be guided by the decision in *Rachel Adhiambo Ogola & another v Council of Legal Education & another [2017] eKLR;* *Maharashtra State board vs Kurmarsheth & others [1985] CLR 1083;* *Makupa Transit Shade Limited & Another v Kenay Ports Authority & another [2015] KECA 721 (KLR)* and *Republic v Kenya Copyright Board & 2 others; Ngema & another (Ex parte Applicants); Music Copyright Society of Kenya Limited (Interested Party) [2026] KEHC 1039 (KLR)* in determining the instant petition. ANALYSIS AND DETERMINATION 1. Having considered the pleadings and rival submissions filed herein I frame the following as the constitutional issues for determination- 1. Whether the Petition is barred by the Doctrine of Exhaustion? 2. Whether the actions of the Respondent violated the Petitioner’s right to Fair Administrative Action as guaranteed under Article 47 of the Constitution and the Fair Administrative Act, 2015 3. Whether the Petitioner’s Legitimate expectation was violated in relation to her academic progression for the registered programme 4. Whether the actions of the respondent violated the respondent’s rights as alleged under Article 27, 28, 31, 33(3), 35, 43, 46, 47 and 50 5. Whether the Petitioner is entitled to the reliefs sought ***Whether the Petition fails for not exhausting existing remedies?*** 1. The respondent argues that the petition is premature because the petitioner did not exhaust the University’s internal dispute‑resolution mechanisms before invoking the Court’s jurisdiction. In its view, the matters complained of, course registration, curriculum placement, extension of programme duration and academic‑progression requirements, are quintessentially academic‑administrative issues entrusted to departmental, faculty and Senate structures. The respondent maintains that those mechanisms were available, were utilised by the petitioner, and even yielded favourable outcomes such as the lifting of her clinical‑rotation suspension and her eventual readmission. It therefore contends that the dispute had not crystallised into a constitutional controversy and that the petition should be dismissed for failure to exhaust alternative remedies. 2. The petitioner counters that the petition is not premature because she had already pursued the available internal avenues without obtaining effective redress. She states that she escalated her grievances to senior University offices through letters dated 23 May, 3 July and 23 July 2025, but the University either failed to respond or failed to resolve the unlawful barriers to her course registration, examination eligibility and continued progression. She further asserts that the impugned decisions were made irregularly, without notice, written reasons or a fair hearing, and in violation of the University’s own procedures, rendering the internal mechanisms unavailable, ineffective or futile. In her assessment, the dispute had matured into constitutional litigation because it implicated rights to fair administrative action, equality, education, privacy, dignity, access to information and legitimate expectation, leaving her with no practical remedy other than recourse to the Court. 3. Our Courts have rendered numerous decisions speaking to the issue of alternative dispute resolution mechanisms. The Supreme Court decision in **Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR**, held: **[63].Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complainant the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed:** **It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.** 1. The Court of Appeal in the decision in **Benjamin v General & 55 others [2024] KECA 1672 (KLR)** addressed its mind on this issue as follows: - **[116]The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance…** 1. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in **Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR*.*** The Court stated as follows: **The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:** **This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:** **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 procedures.** **While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:** **It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.** 1. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: - **[59]. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:** **What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)** **[60]. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.** **[61]. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.** **[62]. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.** 1. The Court of Appeal in upholding the above decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 ***Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR*** held as follows: - **The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.** **At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted** or substituted. 1. The Petitioner’s attempts to resolve the matter through the University’s internal mechanisms are well documented. She raised her grievances with the relevant University offices and, ultimately, the matter was considered at the highest level within the University’s dispute-resolution architecture, including by the Deputy Vice-Chancellor in charge of Academic Affairs. In those circumstances, the petition cannot properly be defeated on the ground of non-exhaustion. In any event, the dispute has since transcended the ordinary management of academic progression and has crystallised into a substantive challenge alleging violation of constitutional and human rights, including the rights to fair administrative action, equality, education, dignity, privacy and fair hearing. For that reason, this Court cannot decline jurisdiction where such jurisdiction is expressly donated to it by Article 165(3) of the Constitution. ***Whether the Petitioner’s right to Right to fair administrative action under article 47 of the Constitution was violated?*** 1. The petitioner alleges that the respondent repeatedly violated her right to fair administrative action by imposing academic and disciplinary measures that were arbitrary, unsupported by any lawful framework, and implemented without notice, written reasons or a hearing. She states that she was barred from examinations on grounds not recognised in the Students’ Code of Conduct, denied registration despite paying fees, irregularly migrated to a new curriculum, and suspended from clinical rotations without charges or due process. She further claims that reinstatement was conditioned on requirements not grounded in any disciplinary instrument, that confidential academic and medical information was improperly disclosed, and that senior administrators imposed unlawful barriers to her readmission while presiding over their own appeals. In her view, these actions were irrational, opaque and discriminatory, thereby infringing Article 47 of the Constitution and the Fair Administrative Action Act. 2. The respondent maintains that all decisions affecting the petitioner were lawful academic‑administrative measures anchored in internal regulations, departmental policies and legitimate concerns about academic performance, professional conduct and patient safety. It asserts that examination exclusions, extended rotations, curriculum alignment and registration decisions were informed by formative assessments, clinical reports and supervisory feedback, and that communications issued by the Department of Surgery fell within its mandate. The respondent further contends that suspensions, reinstatement conditions and delays in readmission were reasonable safeguards rather than punitive actions, and that any administrative delays stemmed from fee issues, system hitches or ongoing investigations. It denies breaching confidentiality, stating that disclosures were made in contexts requiring professional oversight. Overall, the respondent’s position is that its conduct was justified, procedurally compliant and consistent with academic integrity and clinical‑training obligations. 3. In **Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR**, the Court observed that; *35.* **The Constitution is the Supreme law of the Republic and decrees as such in Article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies...”** **40.Taking the above jurisprudence into account, there is no doubt in my mind, that acting as it did, the respondent violated 1st petitioner’s right to a fair Administrative Action contrary to Article 47 of**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**. Administrative Actions that flow from statutes, must now meet the constitutional test of legality, reasonableness and procedural fairness. According a party a hearing before taking action against him is no longer discretionary. It is firmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation.** 1. In the decision in **Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR**) discussing the right to fair administrative action under articles 47, stated; **45.Under Article 47 (2) of the Constitution as read with the provisions of the Fair Administrative Actions Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principle of law in Kenya. A shift has taken place and there is requirement to give reasons for administrative decisions. (See also Section 45 (2) (a) and (b) of the Employment Act No. 11 of 2007). In Judicial Service Commission -v- Hon. Justice Mutava Mbalu, Civil Appeal No. 52 of 2014, Githinji JA in considering the duty to give reasons for administrative action in light of Article 47 (2) of the Constitution expressed that reasons for decision should be given as a matter of right where a right under the Bill of Rights has been or is likely to be adversely affected by the administrative action and not otherwise; that the right to be given written reasons for the decision can be limited by law for a reasonable and justifiable cause.** **46.Article 47 (2) of the Constitution as read with Sections 4 (3) (d) and 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Action Act require written reasons for administrative decision. Section 6 (1) as read with Section 6 (2) (a) of the Act stipulates that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary and such information shall include reasons for which the action was taken and any relevant documents relating to the matter. Sections 3(d), 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Act encompass a statutory obligation upon decision-makers to give written reasons for their decisions. This contrasts with common law that had stopped short of requiring reasons for all administrative decisions.** 1. In**Judicial Service Commission vs. Mbalu Mutava & another [2015] eKLR** the Court of Appeal expressed itself on Article 47 of the Constitution and stated that: **Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.** 1. In the South African Constitutional Court in **President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others** **CCT16/98) 2000 (1) SA 1** (paragraphs 135 and 136) the Court ring-fenced the importance of fair administrative action as a constitutional right. The Court, citing Section 33 of the South African Constitution which is similar to Kenya’s Article 47 of the Constitution stated as follows: **“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”** 1. In**Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti [2018] eKLR***,* the Court discussed this right to fair administrative action as follows: **[25]. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano**[**[39]**](http://kenyalaw.org/caselaw/cases/view/158432/#_ftn39)**the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.** **These are: -** **a. Illegality - Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.** **b. Fairness - Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.** **c. Irrationality and proportionality - The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation**: **-** **If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere...but to prove a case of that kind would require something overwhelming...** 1. In determining this issue, I confine myself to the three discrete questions raised by the Petitioner: first, the Department’s decision to bar her from sitting examinations; second, her migration to the new curriculum; and third, her suspension ostensibly on account of illness and her alleged inability to undertake clinical duties safely. These issues implicate the scope of administrative authority exercised by the Respondent and the procedural safeguards demanded by Article 47 of the Constitution and the Fair Administrative Action Act, 2015. 2. On the first issue, the Petitioner anchors her challenge on an isolated reading of the Students’ Code of Conduct. That approach is untenable. The Code must be read holistically, not piecemeal. Part III of the Code expressly delineates disciplinary infractions, while Part IV (5) sets out academic guidelines requiring compliance with course progression requirements. The Petitioner’s reliance on a single provision to oust the Department’s authority to enforce academic progression obligations is therefore misplaced. As the Court stated in **Rachel Adhiambo Ogola & another v Council of Legal Education & another [2017] KEHC 2724 (KLR),** academic bodies retain latitude to enforce academic standards provided they act within the confines of their instruments. I therefore find no fault in the Department’s insistence that the Petitioner comply with course guidelines. Her progression is dependent on compliance. 3. On the second issue, the Respondent asserts that the migration to the new curriculum did not alter course content nor prejudice the Petitioner. That assertion is consistent with the well‑settled principle that courts do not lightly interfere with the academic autonomy of universities. In **Daniel Ingida Aluvaala & another v Council of Legal Education & another [2017] KEHC 2775 (KLR)**, the Court affirmed that curriculum design, alignment, and restructuring fall squarely within the mandate of academic institutions unless shown to be irrational or actuated by malice. No such showing has been made here. I therefore find no basis to impugn the Respondent’s curricular adjustments. 4. It is on the third issue that the Respondent’s conduct falters. The record does not disclose a coherent or lawful progression leading to the conclusion that the Petitioner was ill or unfit to undertake clinical duties. The process is marred by procedural missteps that cumulatively offend Article 47. There is no evidence that she was afforded a hearing before the determination was made; the psychiatric analysis relied upon was conducted in her absence; the report was never disclosed to her despite repeated requests; meetings of the MAC were convened without her participation; and decisions of grave consequence were made without transparency or procedural fairness. As the Court held in **Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR,** administrative bodies must act fairly, transparently, and in accordance with due process. The Respondent did not. 5. The Petitioner’s subsequent attempts to resume her studies were further frustrated by the imposition of psycho‑analysis requirements unsupported by any demonstrable basis. The Respondent’s conduct violated multiple facets of fair administrative action: the right to be heard, the right to a transparent and reasoned decision, and the right to an efficient and procedurally compliant process. The Court in **Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR)** underscored that Article 47 demands not only procedural propriety but also substantive rationality. On this ground, I find that the Petitioner’s right to fair administrative action was violated on several fronts. 6. The right to fair administrative action is conjoined to the right to information. In **Katiba Institute v Presidents Delivery Unit & 3 others [2017] KEHC 2183 (KLR)** the court stated as follows; *[39.]The right to access information as a basis for accountability, responsiveness and openness was emphasized in the case of Brummer v Minister for Social Development & Others (supra) where the Court stated;* *“(62) The importance of this right too, in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the state. Indeed, one of the basic values and principles governing public administration is transparency. And*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*demands that transparency “must be fostered by providing the public with timely, accessible and accurate information.”* *(63) Apart from this, access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas.”* *40.The above principles regarding the right to access information are also founded on international instruments. Article 19 of the Universal Declaration of Human Rights is clear that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.* *Article 19(2) of International Convention on Civil and Political Rights also makes the right to information imperative when it states that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” And finally, Article 9(1) of Africa Charter on Human and Peoples Rights states that “every individual has the right to receive information.”* 1. The cumulative effect of the actions of the respondent in failing to respond to the petitioner’s requests for information was a violation of the Petitioners rights to information. ***Whether the Petitioner’s Legitimate expectation was violated in relation to her academic progression for the registered programme*** 1. The Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)** set out the ingredients to be met when establishing a case for legitimate expectation. It stated; **[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation** **[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA) at [paragraph 28]: the Court held as follows:** **The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:** * + 1. **The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.** 2. **The expectation must be reasonable: Administrator, Transvaal v. Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).** 3. **The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.** 4. **The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”This was also referred to with approval in Walele v. City of Cape Townand Others; 2008 (6) S.A 129 (C.C.) paragraph 41.** **[269]The emerging principles may be succinctly set out as follows:** **a. there must be an express, clear and unambiguous promise given by a public authority;** **b. the expectation itself must be reasonable;** **c. the representation must be one which it was competent and lawful for the decision-maker to make; and** **d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.** 1. Speaking to this issue the Court of Appeal in the decision in **Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR)** addressed its mind on the issue as hereunder: *The decision of the Supreme Court that we have just cited stresses that legitimate expectation involves a representation that must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate. Other important aspects of the doctrine is that the law does not protect every expectation save only those which are legitimate (South African Veterinary Council v. Szymanski 2003 ZASCA 11); clear statutory words override any contrary expectation however founded (R. v. DPP ex parte Kebilene [199] 4 All ER 801 and Republic v. Nairobi City County & Another, ex parte Wainaina Kigathi Mungai , HC. JR. Misc. C. No 356 of 2013; the representation must be one which the decision-maker can competently and lawfully make without which the reliance cannot be legitimate (Hauptfleisch v. Caledon Divisional Council [1963] (4) SA 53); legitimate expectation does not arise when it is made ultra vires the decision-maker’s powers (Rowland v. Environment Agency (2003) EWCA Civ. 1885; and a public authority which has made a representation which it has no power to make is not precluded from asserting the correct position which is within its power to make (Republic v. Kenya Revenue Authority, ex parte Aberdare Freight Services Ltd [2004] 2 KLR 530).* *82. A pre-requisite to successful invocation of the doctrine of legitimate expectation, we reiterate, is that the person who bases his or her claim on the doctrine has to satisfy that he or she has relied on the decision-maker’s representation to his or her detriment. In the instant case, the appellants have not demonstrated how they relied on the 1st respondent’s decision to their detriment. A claim based on mere legitimate expectation, without anything more in the form of suffered detriment, cannot ipso facto sustain an action founded on the doctrine of legitimate expectation. (See Sethi Auto Service Station & Another v. Delhi Development Authority & Others, (2009) 1 SCC 180).* 1. The Petitioner’s claim of legitimate expectation is well‑grounded in both fact and law. She enrolled in the MMed ORL‑HNS programme on the strength of the Respondent’s own representations contained in its University Manual, Students’ Information Booklet, and the Students’ Code of Conduct (2020; Revised 2021). These instruments expressly assured her that her academic progression would occur within a supportive, predictable, and procedurally regulated environment, and that any infraction would be addressed strictly in accordance with the disciplinary architecture set out under Part III of the Code. Having registered for her course, she was entitled to expect that the Respondent would adhere to its own policies, act consistently with its published procedures, and refrain from imposing sanctions or conditions not contemplated by its governing instruments. 2. This expectation is not merely aspirational; it is legally cognisable. In **Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] KLR 240**, the High Court held that public bodies must honour the procedural promises they make, and cannot depart from them capriciously. 3. She could not reasonably have anticipated that the Respondent—having assured her of procedural fairness, would become the principal actor in a chain of events culminating in her stigmatization as mentally ill, the commissioning of a psychiatric analysis in her absence, the circulation of undisclosed medical assessments, and her exclusion from the academic programme on that basis. Such conduct is antithetical to the doctrine of legitimate expectation, which demands consistency, transparency, and fidelity to established procedure. As the Court of Appeal observed in **Judicial Service Commission v Mbalu Mutava [2015] eKLR**, Article 47 entrenches a constitutional expectation that administrative bodies will act fairly, rationally, and in accordance with their own frameworks. 4. In the circumstances, I find that the Petitioner’s legitimate expectation, that her academic journey would be governed by the Respondent’s published rules, and that any concerns regarding her conduct or performance would be addressed through the stipulated disciplinary processes, was breached in a manner that was abrupt, stigmatizing, and procedurally indefensible. This is particularly significant as the Petitioner claims that her extended stay at the university may jeopardise her academic scholarship with her employer. This concern is not trivial. 5. The Petitioner asserts that her prolonged and uncertain stay at the University places her academic scholarship, funded by her employer, at potential risk. While the feared consequence has not yet crystallised into an actual withdrawal or sanction, it is sufficient that the respondent’s actions have directly contributed to the anxiety she now bears regarding the security of that scholarship. ***What are the appropriate reliefs*** 1. Article 23 of the Constitution does not speak in half‑measures. It vests this Court with the authority, and the obligation, to craft remedies that give life to the Bill of Rights. A right without a remedy is a constitutional promise written in disappearing ink. Where a violation is established, the Court must respond with relief that is not symbolic, but effective. In the Petitioner’s case, the breach of her rights was neither technical nor trivial. It was sustained, injurious, and deeply personal. Damages, therefore, are not a windfall. They are a vindication, an affirmation that her dignity matters, that her voice counts, and that the Constitution does not permit public bodies to act with opacity, arbitrariness, or stigma. 2. As the Court of Appeal observed in **Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR**, constitutional damages serve both to compensate and to declare that the violated right stands inviolable. And as the High Court held in **M W K & Another v Attorney General & 3 Others[2017] eKLR**, such damages must reflect the gravity of the injury and the need to deter future infringements- **[120] An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in helping the court arrive at a reasonable award. The court must consider and have regard to all the circumstances of the case** 1. In this sense, the award is both personal and principled: personal in restoring the Petitioner’s dignity, and principled in signaling that constitutional rights are enforceable commitments, not aspirational ideals. I therefore consider an award of Kshs. 10 million sufficient in the circumstances, both as recompense for the harm suffered and as a principled affirmation that constitutional rights are not hollow promises but enforceable commitments. 2. The Petitioner will have costs of the Petition. **DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JULY 2026.** **P .M NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Beatrice Njeri Maina in person