[2018] KESC 21 (KLR)

Moi University v Zaippeline & another (Civil Application 27 of 2015) [2018] KESC 21 (KLR) (5 October 2018) (Ruling)

Moi University v Oindi Zaippeline & another [2018] eKLR

Neutral citation: [2018] KESC 21 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil Application 27 of 2015

DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

October 5, 2018

Between

Moi University

Applicant

and

Oindi Zaippeline

1st Respondent

Karatina University

2nd Respondent

(Being an application for review of the decision of the Court of Appeal (Nambuye, Kiage & Kihara, JJA) given at Nyeri on 14th October, 2015 declining to grant certification that the matter herein is one ofgeneral public importance warranting a further appeal to the Supreme Court) Civil Appeal 52 of 2014,

Civil Suit 13 of 2013 )

Ruling

1. In its ruling delivered at Nyeri on 14th October 2015, the Court of Appeal Kihara Kariuki, Nambuye and Kiage, JJA declined to grant Moi University the applicant certification to appeal to this Court against its decision delivered on 14th April 2015. On 27th October 2015, the applicant filed this application under Articles 1592, 1634b and 2591 of the Constitution; Sections 15, 16 and 21 of the Supreme Court Act, 2011 as well as Rules 26 and 312 of the Supreme Court Rules, 2012 seeking a review of the Appellate Court’s said decision declining to grant certification.

2The application is premised on the grounds that the Appellate Court failed to appreciate that the issue the applicant seeks a decision of this Court on is one of general public importance which transcends the circumstances of this particular case.

3As this Court stated in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR, a decision it had also made in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo & 5 Others [2012] eKLR Supreme Court Petition No. 2 of 2012 and reiterated in many other subsequent decisions, an applicant seeking such certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case….” If it is a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.” The question is whether or not this threshold has been satisfied in this case.

4The brief facts of the matter before us are that on 27th July 2009, the applicant admitted the 1st respondent into its Central Kenya Campus at Karatina to pursue a three-year course leading to an award of a bachelor’s degree. In the course of the 1st respondent’s studies, on 1st October 2010, the applicant, by Legal Notice No. 163 of 2010, transformed its said Central Kenya Campus into a constituent college known as Karatina University College. Paragraph 51 of the said Legal Notice stated that “The degrees and postgraduate diplomas to be awarded by Karatina University College shall be the degrees and postgraduate diplomas conferred by Moi University.”

5Just two months before the 1st respondent completed his studies, the applicant obtained a charter for its said constituent college and had it transformed into a full-fledged university known as Karatina University. Paragraph 33 of the Charter states that “the students of the former Karatina University College who were pursuing degrees, diplomas and other certificate programmes … shall be allowed to complete their courses and be awarded degrees, diplomas and certificates of Karatina University.”

6On completion of his studies, the 1st respondent wishing to be awarded a degree by Moi University, the applicant, and not by the new and relatively unknown Karatina University, filed a case in the High Court and sought, inter alia, a mandatory injunction to compel the applicant to award him a degree. The High Court dismissed his case but on appeal, the Appellate Court reversed that decision and granted the 1st respondent the mandatory injunction he had sought. As stated, the applicant wishes to further appeal to this Court against that decision hence its application for review of the Appellate Court’s order declining certification.

7In their written submissions, counsel for the applicant argued that Moi University could not award a degree to a student who was no longer registered with it and whom it did not examine. On their part, counsel for the 1st respondent argued that para 33 did not apply to him as the relationship between him and Moi University was contractual which contract had not been frustrated by the operation of the law, and that his legitimate expectation was to be awarded a degree from Moi University. Moi University was therefore estopped from denying him its degree.

8Upon consideration of these rival submissions alongside the said principles governing the grant of certification to appeal to this Court, we find that the issue of whether a university can award a degree to a student who was no longer registered with it and whom it did not examine is a matter of general public importance. In the circumstances, we review the Court of Appeal’s decision declining certification and grant the applicant leave to file his appeal under Article 1634b of the Constitution. The costs of this application shall abide the outcome of the intended appeal.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2018. .........................D.K. MARAGACHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT..........................P.M. MWILUDEPUTY CHIEF JUSTICE/VICE PRESIDENT OF THE SUPREME COURT..........................J. B. OJWANGJUSTICE OF THE SUPREME COURT...........................S. C. WANJALAJUSTICE OF THE SUPREME COURT...........................N. S. NDUNG’UJUSTICE OF THE SUPREMECOURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA