https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11159

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW NO. E073 OF 2026** **IVY MUKOLWE……………………………………………….................…1ST APPLICANT** **CATHERINE ACHOLA…………………………………………………….2ND APPLICANT** **VERSUS** **BOMA INTERNATIONAL HOSPITALITY COLLEGE…….....1ST RESPONDENT** **GEORGE ADALLA…………………………………………….…………2ND RESPONDENT** **SUSAN NG’ONG’A……………………………………………………….3RD RESPONDENT** **JUDGEMENT** 1. I delivered a ruling herein, on 3rd July 2026, wherein I dismissed an application dated 6th May 2026. I also gave directions on the disposal of the substantive Motion, dated 23rd March 2026, and fixed the matter for mention on 22nd July 2026, to confirm compliance with filing of written submissions, so that I can allocate a date for judgement. 2. It has been brought to my attention, that I should have, in the ruling of 3rd July 2026, disposed of both the substantive motion, dated 23rd March 2026 and the application dated 6th May 2026, hence I should have written a judgement rather than a ruling. I have perused the record, and I have confirmed that, indeed, on 9th June 2026, directions had been taken, for disposal of the 2 applications together, with a combined ruling/judgement, on both, being delivered on 3rd July 2026. I have also confirmed, from the record, that on 9th June 2026, Mr. Atalo and Mr. Okuta highlighted their respective written submissions on both applications. I concede that I got mixed up, when it came to preparing the final determination, into believing that I was required to dispose of the application dated 6th May 2026, ahead of that dated 23rd March 2026, and I hereby apologise to the partes, especially to the applicants, for the inconvenience that has, no doubt, arisen from this mix-up. 3. These Judicial Review proceedings were initiated, in Milimani HCJR No. E070 of 2026, under certificate of urgency, by way of an *ex parte* chamber summons, dated 12th March 2026, for leave to apply for 2 *certiorari*, 1 *mandamus* and 1 prohibition orders*,* directed at the respondents, with respect to a decision to suspend the applicants from the 1st respondent, for a whole semester, made on 27th November 2025.The *ex parte* chamber application was placed before the Judge, on 13th March 2026, and the Judge granted the leave sought, with a further order that the grant of the leave was to operate as a stay of the suspension. The Motion was filed herein, Milimani HCJR No. E073 of 2026. It is based on the statutory statement, dated 12th March 2026, the verifying affidavit of the 2nd applicant, sworn on 12th March 2026, and the supporting affidavit of the 2nd applicant, sworn on 13th March 2026. 4. The orders sought are *certiorari*, *mandamus* and a prohibition. The *certiorari* is for the purpose of quashing disciplinary verdicts of the respondents, of 27th November 2025 and 30th January 2026, and the decision requiring the applicants to pay full fees afresh, for the term for which they shall be on suspension, and to re-take the studies for the 5th term. The *mandamus* is for compelling the respondents to allow the applicants back to college, and allow them pay the requisite fees and sit for all the examinations due for the purpose of the 2026 graduation. The prohibition is to bar the respondents from summoning, questioning or suspending the applicants, for the infraction, the subject of these proceedings. 5. The factual background is set out on the face of the application, the statutory statement and the affidavits. The applicants were body-checked, at the gate of the 1st respondent, as they were getting out, on 11th November 2025, and were found in possession of 6 fish fillets. They were suspended, pending disciplinary proceedings that were to be conducted on 24th November 2025. They appeared before the Disciplinary Committee of the 1st respondent, to answer to charges of theft. The Disciplinary Committee rendered a decision on 27th November 2025, vide a letter of that date, suspending them for 1 academic term, and to retake the 5th term, upon paying full-fees. It is averred that no reason was given, for the excessive penalty meted out, the decision was vague and ambiguous, the 5th term was near conclusion and the suspension was not immediate, which would have allowed the applicants to remain in college till end of term. 6. It is averred that the applicants lodged an appeal, with the Appeals Board. The Head of Academic Affairs, in an unprocedural manner, opened the appeal requests, which was a scar to the integrity of the process. The hearing of the appeal was delayed, without any reasons being given, and there was an arbitrary postponement, of a hearing scheduled for 20th January 2026. The appeal was eventually heard on 27th January 2026. At the appeal sitting the members of the Appeals Board interacted with the appeal requests by the applicants for the first time. The hearing conducted is dismissed as a kangaroo sitting, whose sole objective was to uphold the decision of the Disciplinary Committee. Mitigating circumstances, such as previous clean records and devoted class attendance, were treated as inconsequential. No reasons were given to justify the decision, for it was contained in a communication running into less than 10 lines, and the same was ambiguous. 7. Thereafter, the applicants requested for negotiations, which the Principal accommodated. However, there was a power imbalance between them and the administration of the 1st respondent, and from a point of utter desperation, they pleaded for mercy. The applicants aver that they pay college fees out of their own sources, with little contribution from relatives, and, therefore, the decision to penalise them, by retaking the 5th term, and paying the fees for that term afresh, would be a serious financial strain on them, in the circumstances. 8. It is averred that the Student Handbook provides for expulsion and or being reported to the police, for the offence of theft. They decry the blanket penalty meted out on them, arguing that the case of taking 6 fish fillets ought not have been treated the same with more serious offences, and the same did not warrant suspension for a whole term, and payment of fees afresh. It is averred that the applicants conceded to violating the regulations, and partially welcomed the sanctions, they, however, found the penalty relating to paying fees a second time and retaking the 5th term onerous. 9. Several documents are exhibited to the application. There is a letter of authorisation, by the 1st applicant, authorising the 2nd applicant to take the lead in the matter. There is a copy of the letter, dated 13th November 2025, suspending the 2nd applicant, pending disciplinary proceedings, on allegations of theft. There is a copy of the Student Handbook, issued on 1st June 2024. There are copies of the letters, both dated 27th November 2025, communicating to the 1st and 2nd applicants, the verdict of the Disciplinary Committee, suspending them for 1 academic term, requiring them to retake the term and to pay the associated fees, prohibiting them from accessing areas of the campus of the 1st respondent and notifying that that the record of the incident was going into their respective academic files. There are copies of appeals, by both applicants, dated 27th November 2025. There is an excerpt, from the Student Handbook of the 1st respondent, on appeals procedures. There are copies of the decisions on the appeals, carried in letters dated 30th January 2026, addressed to the applicants. There are copies of demand letters, from the Advocates for the applicants, dated 9th February 2026 and 2nd March 2026, addressed to the 2nd respondent. 10. There is a reply to the application, vide a replying affidavit, sworn on 16th March 2026, by the 2nd respondent. He avers that the application is an attempt to invite the court to usurp the lawful mandate of the 1st respondent, by rewriting its Student Handbook and academic regulations. The applicants are identified as students with the 1st respondents, who are in their 30s. It is averred that they were found, on 11th November 2025, with pieces of uncooked fish fillet, which had been concealed, and which had been obtained from the premises of the 1st respondent, as it was part of the training materials used in the courses that the applicants were undertaking. A similar incident is cited, of another student found with another training type of training material, bread, unlawfully taken from the 1st respondent without authorisation. On 13th November 2025, the applicants were suspended. On 24th November 2025, the applicants were allegedly taken through disciplinary proceedings, whereat they appeared, and admitted the theft, which is classified as a non-academic disciplinary offence, under the 1st respondent’s Student Handbook, whose prescribed penalty is expulsion. The Disciplinary Committee exercised leniency, and resolved to suspend the students, instead, for 1 academic term, and require them to repeat Term 5, with the obligation of paying the requisite fees for the repeated term. The penalty was to commence on 11th May 2026. 11. It is averred that the applicants appealed, where they acknowledged their misconduct, and the leniency extended to them, and merely sought further indulgence from the 1st respondent. The appeal proceedings were conducted on 30th January 2026, before the Appeals Committee, which, after consideration, dismissed the appeals, and upheld the decision of the Disciplinary Committee. It is averred that the applicants never challenged, on appeal, the propriety, fairness or legality of the decisions of the Disciplinary Committee, for they were simply appealing for further leniency. It is averred that the respondents had exercised restraint, by refraining from pursuing criminal sanctions, in accordance with the Student Handbook. It is averred that the applicants failed to complete the academic term, which was due to ran from 8th September 2025 to 6th December 2025, due to the suspension, and they are ineligible to sit for examinations under the applicable regulations, unless they retake. It is averred that the action taken against the applicants was proportionate to what was meted out to another student, in similar circumstances. 12. It is averred that Clause 15 of the Student Handbook provides that fees are non-refundable, for a student who has been suspended or expelled, for reasons relating to academic and general misconduct. It is also averred that students would only be permitted to take examinations, upon attaining a prescribed number of instructional hours. It is further averred that school administrations have authority and responsibility to maintain discipline, and to impose appropriate disciplinary sanctions. It is further averred that the courts are reluctant to intervene in decisions of educational institutions, as was held in the case in *JNN (a minor) MNM, suing as next friend vs. Naisula Holdings Limited t/a N School* [2018] eKLR. 13. Several documents have been attached to the application. There is a copy of a letter dated 4th January 2024, on the credentials of the 1st respondent, as an institution affiliated to another based in Switzerland. There are copies of the incident forms, filled by the applicants, on 11th November 2025, where they are reflected as conceding to being found in possession of the fish fillet, and asking for forgiveness. There is a copy of a similar form, filled by another student, accused of taking or stealing bread. There are copies of letters, dated 12th November 2025, suspending the applicants, from the 1st respondent, pending disciplinary proceedings. There is also a copy of a similar suspension letter for the other student, who had been caught with bread. There is a copy of the proceedings conducted by the Disciplinary Committee, on 24th November 2025, with respect to the applicants and the other student, who had been caught with bread, and all 3 were suspended for 1 term, effective from 12th January 2026. There is a copy of the Student Handbook, dated 1st June 2024. There are copies of letters, dated 27th November 2025, separately addressed to the 3, communicating to them the outcome of the disciplinary proceedings conducted by the Disciplinary Committee. There are copies of the appeals, lodged by the 3, with the Appeals Committee, against the verdict of the Disciplinary Committee, on the penalty. Finally, there are copies of letters, dated 30th January 2026, addressed to the 3 separately, communicating the decision of the Appeals Committee, to uphold the decision of the Disciplinary Committee. 14. Directions were given, on 25th March 2026, by Chigiti J, for canvassing of the application, by way of written submissions, and judgement was to be delivered on 30th April 2026. I have, before me, written submissions placed on record by the applicants, dated 18th March 2026, and by the respondents, dated 23rd March 2026. Chigiti J, did not get to write and deliver a judgement on 30th April 2026, for other interlocutory applications were filed which thwarted that, and on 24th April 2026, Chigiti J delivered a ruling, on one of them. I took over the matter after that. On 26th May 2026, the Advocates for the parties requested for a date to highlight, and I gave them 9th June 2026, and, on that date, Mr. Atalo and Mr. Okuta made the highlights of their respective written submissions, on both the substantive motion and the application dated 6th May 2026. I have already delivered a ruling on the latter application, and this judgement is limited to the substantive motion, as indicated hereabove. 15. The written submissions, by theapplicants, identify only 1 issue for determination, and that is whether the decision of the respondents satisfies Article 47 of the Constitution and the Fair Administrative Action Act, Cap. 7L, Laws of Kenya. It is submitted that, under Article 47, administrative action should be expeditious, efficient, lawful, reasonable and procedurally fair, adding that the affected person has a right to be given written reasons for the action. It is also submitted that, under the Fair Administrative Action Act, there are further grounds, which include ulterior motive, failure to consider relevant considerations, unreasonable delay, proportionality, fairness, unreasonableness, procedural fairness and adherence to the prescribed procedure. It is argued that the decision tainted by ulterior motives, failure to consider relevant factors, disproportionality, failure to stick to the prescribed procedure, unexplained delays, abuse of power and arbitrariness, is a candidate for redress, through judicial review. 16. The decisions, in *JNN (a minor) MNM, suing as next friend vs. Naisula Holdings Limited t/a N School* [2018] eKLR; *Republic vs. National Police Service Commission Ex parte Daniel Chacha* [2016] KEHC 7755 (KLR); *Republic vs. University of Nairobi* JR No. 454 of 2016; *Council of Civil Service Union vs. Minister for Civil Service* [1985] AC 374; *Republic vs. Catholic University of Eastern Africa & another ex parte Edmund Kiiru* [2017] KEHC 9645 (KLR); *Associated Provincial Picture Houses vs. Wednesbury Corporation* [1948] 1 KB 223; *Kevin K. Mwiti & others vs. Council of Legal Education & others* Nbi JR 377 of 2015/Pet. No. 395 of 2015/JR 295 of 2015; *The Indian Borough of Newnham vs. Khatun-Zeb and Iqbal* [2004] EWCCA Civ. 55; *Macharia vs. Wanyoike* [1981] 1 KLR 45 and *Republic vs. Kirinyaga University College & 2 others ex parte Isaya Kamau Kagwima* [2015] eKLR; *Lehmann’s (East Africa) Limited vs. R. Lehmann & Co. Ltd* [1973] EA 167 and *Re Bivac International SA* *(Bureau Veritas)* [2005] 2 EA 43, are cited, to support the argument that the applicants are entitled to the orders sought. 17. The written submissions, by the respondents, turn on 2 issues, and that is whether the application reaches the threshold for grant of Judicial review remedies, and whether the orders sought can be granted based on the prayers as drafted. It is submitted that the threshold for grant of the orders has not been met. It is argued that the orders sought cannot be granted, based on the prayers as worded in the application, although an effort has been made to rework the words in the written submissions. *Pastoli vs. Kabale District Local Government Council & others* [2008] 2 EA 300; *Republic vs. Media Complaints Commission; Yattani (Interested Party); Nation Media Group* *& 2 others (Exparte)* [2023] KEHC 17568 (KLR); *Kiptoo & 3 others vs. Vice Chancellor, Strathmore University & 5 others* [2026] KEHC 1280 (KLR) and *JNN (a minor) MNM, suing as next friend vs. Naisula Holdings Limited t/a N School* [2018] eKLR and *Republic vs. Kenya National Examinations Council ex parte Gathenji & others* [1997] eKLR, are relied upon. 18. There is only 1 issue for determination, and that is whether the application reaches the threshold for grant of the judicial review orders sought. 19. It is common ground, that the applicants were caught, upon a search on them, as they exited the premises of the 1st respondent, in possession of material taken from the 1st respondent, meant for use as teaching aid. It is also common ground that the applicants conceded to that fact, and pleaded for forgiveness, mercy and leniency. It is also common ground that the applicants conceded to their being found culpable, in the proceedings conducted by the Disciplinary Committee. It is also common ground that they accept the penalty of being suspended for 1 academic term. What they make an issue of is the consequence of that suspension, around when it should start, and whether, at resumption of studies, they ought to pay fees afresh, for the term that was interrupted, and which they would have to repeat. 20. These are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the impugned decision or decisions, not on the merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural unfairness. See *Pastoli vs. Kabale District Local Government Council & others* [2008] 2 EA 30. 21. What is under challenge herein is the taking of the applicants through disciplinary proceedings, and the outcome of those proceedings. The first issue to consider would be whether those proceedings were legal. I have very carefully perused the statutory statement and the affidavits, and I have not encountered any averment, where the legality of the proceedings is under challenge. The applicants submitted to the mandate and the jurisdiction of the Disciplinary Committee and the Appeals Board or Appeals Committee. In these proceedings, the applicants do not question the mandate of those 2 bodies. The legality of the process is not questioned, and, therefore, I am not invited to determine whether the impugned decisions were made by bodies that had no mandate to make them. However, the legality of the process could come up obliquely, in the consideration of the other grounds, and I may have to consider that question in those circumstances. 22. The legality question, going by the statutory statement, is framed, based on how the process was handled, particularly with respect to the decision to repeat the term and pay full fees. The applicants point at the Student Handbook, to argue that the process became unlawful, when the prescribed procedure, of issuing warning letters, prior to the mounting of disciplinary proceedings, was not adhered to. 23. The relevant paragraph on that is at section D, of the statutory statement, which sets out the grounds upon which the reliefs are sought. It reads as follows: “Lawfulness 1. The decision suspending the students and further ordering them to redo the semester amid full fees payment is unlawful since the handbook-prescribed procedure of issuing warning letters was not followed.” 1. Curiously, in the affidavits, the applicants do not advert to that issue, of the unlawfulness of the process, on account of the prescribed procedure not being followed, particularly that relating to issuance of warning letters, before escalation of the matter to the Disciplinary Committee. The verifying affidavit, sworn on 12th March 2026, does not mention warning letters at all. There is a single mention of the Student Handbook, at paragraph 8, but that mention has nothing to do with the unlawfulness of the process, on account of the warning letters not being issued, contrary to the prescribed procedure. That affidavit does not say anything about the alleged prescribed procedure, and does not identify any of the clauses of the Student Handbook, relating to that procedure. 2. The Student Handbook is only mentioned, at paragraph 8 of the affidavit of 12th March 2026, which reads as follows: “8. Subsequently, we appeared before the Disciplinary Committee to answer to the charges of “theft” under Section 9(3) of the Student Handbook. (Attached herewith and marked “CI-3” is a true copy of the Student Handbook).” 1. The motion, dated 13th March 2026, was filed simultaneously with a supporting affidavit, sworn by the 2nd applicant, on 13th March 2026. That supporting affidavit largely regurgitates the averments in the verifying affidavit, save for a few minor adjustments. Paragraph 8 of the supporting affidavit is a replica of paragraph 8 of the verifying affidavit, save that there is an insertion of “Page 18,” substitution of “herewith” with “hereto,” and the reflection of the second reference to “Student Handbook” in lowercase, as “student handbook.” Paragraph 8 of the supporting affidavit reads as follows: “8. Subsequently, we appeared before the Disciplinary Committee to answer to the charges of “theft” under Section 9(3), Page 18 of the Student Handbook. (Attached hereto and marked “CI-3” is a true copy of the student handbook).” 1. The statutory statement is the principle pleading, in judicial review proceedings founded on Order 53 of the Civil Procedure Rules. The statement should state the principle arguments and allegations of the applicants, while the verifying affidavit, and any other affidavits, should present the facts or evidence to back the averments made in the statement. The affidavits verify, evidentially, the averments made in the statement. Since the affidavits are meant to validate the averments in the statements, by presenting the evidential backstop to them, there ought to be harmony between the averments made in the statement and the facts presented through the affidavits. 2. As it is in this case, the statement, at section D, has made allegations of the unlawfulness of the processes, on account of failure to adhere to the prescribed process in the Student Handbook, particularly on the requirement that the process ought to be preceded by warning letters, is not supported by the facts that are presented in the 2 affidavits, for the deponent, in the 2 of them, has not at all alluded to that process. The only advantage, with the affidavits, with respect to that matter, is that it places on the record the Student Handbook, which allegedly carries a provision to that effect. 3. In their written submissions, the applicants have submitted at length, at paragraph 31, on section 11.0(a) and (c) of the Student Handbook, which dwell on written warnings and escalation of matters to the Disciplinary Committee without the necessity of such written warnings, in cases of gross misconduct. Yet, the pleadings, that is in the statutory statement, make no reference whatsoever to the said section 11.0(a) and (c) of the Student Handbook. The 2 affidavits being relied on have also not made any reference to the same. The written submissions are, therefore, founded on unpleaded material. Citing these provisions, in written submissions, when the same have not been pleaded in the pleadings, or elaborated in the affidavits, would amount to an ambush on the other party. 4. Be that as it may. Is there merit in that submission, that it was mandatory that warning letters ought to have preceded prosecution before the Disciplinary Committee? 5. The matter of written warnings is prescribed in Clause 11.0 of the Student Handbook. The entire clause is framed as follows: “11.0 WARNINGS, SUSPENSIONS, DISCONTINUATIONS 1. In the event that a student does not adhere to any of the BIHC rules and regulations, written warnings may be issued by the Head of Academic Affairs. A student contravening the BIHC rules and regulations will receive a 1st, 2nd and final warning letter after which the student is referred to the Disciplinary Committee for further action. 2. All warnings issued to students will be copied to the Head of Academic Affairs. All warning letters will expire after one year. 3. In the case of gross misconduct, the Head of Academics in consultation with the Principal, shall suspend the student without previous warnings.” 4. The applicants were accused of theft, which is covered under clause 9.0 of the Student Handbook, which deals with general discipline. It covers 2 areas, non-academic offences and social media. Theft falls under the category of non-academic offences. The provision in clause 9.0 of the Student Handbook reads as follows: “9.0 GENERAL DISCIPLINE The following will be construed as gross misconduct and will not be allowed. These offences are punishable both under BIHC regulations and under the laws of Kenya where applicable. The college shall be at liberty to refer the matter to the law enforcement agencies for legal action.” 1. What comes out clearly, from the above, is that, when clauses 9.0 and 11.0 are read together, the provisions of clause 11.0, on written warnings preceding disciplinary proceedings, do not apply to the conduct or misconduct the subject of clause 9.0. Clause 11.0(c) is explicit, that that clause would not apply to cases falling under clause 9.0, and disciplinary action would be taken without previous written warning. In view of that, there can be no merit, in the argument by the applicants, that the procedure under clause 11.0 was not complied with in their case, which meant, according to them, that the proceedings against them were faulty and unlawful. Clause 11.0 did not apply to the case of the applicants, given that the accusation against them fell under clause 9.0 of the Student Handbook, where such prior written warning is not required, before suspension and prosecution before the Disciplinary Committee. 2. The case of gross misconduct of theft would apply to a student of the 1st respondent, when the theft is committed within the campus of the 1st respondent; or off-campus, in a public place, while wearing the uniform of the 1st respondent. The penalty prescribed, under clause 9.0 of the Student Handbook, for the said gross misconduct, is expulsion, and, in addition, the matter may be referred to law enforcement for legal action, and a recommendation may be offered for psycho-social support. That is to say that the penalty prescribed is expulsion from the 1st respondent, but the 1st respondent retains discretion to escalate the matter to the criminal justice system, and to facilitate psycho-social support. 3. Upon being found liable, the applicants were not subjected the penalty prescribed under the Student Handbook. Instead, they were suspended for a period of 1 academic term, effective from 12th January 2026, and they were, in addition, required to re-take term 5 and pay the associated fees when next on offer, and their access to campus of the 1st respondent was restricted in the duration of the suspension. That penalty is not prescribed for the gross misconduct of theft. It is the penalty prescribed for other acts of gross misconduct, such as those relating to pornography, sexual activity, vandalism, forgery, among others. 4. Where suspension for a term or year is prescribed, in the Student Handbook, there is no provision attached to it, relating to payment of fees or re-take of the term. For the gross misconduct relating to pornography, the penalty is “One term suspension from campus not including current term of study suspension from college and recommendation offered for psycho-social support.” For engaging in sexual activity, within the campus or at public spaces in the uniform of the 1st respondent, the penalty is “Up to ONE academic year suspension from campus not including current term of study and a recommendation offered for psychosocial support.” For vandalism, the penalty is “Fine and 1 academic year suspension from the college.” 5. A court or administrative body exercises such power, authority, jurisdiction or mandate as is given to it by the law vesting the same. Power, authority, jurisdiction or mandate is granted by the Constitution and other constitutions, legislation and subsidiary legislation and statutes. Statutes include those passed by Parliament, County Assemblies, and even university and college authorities. The Student Handbook, in this case, is a statute of the 1st respondent, governing or regulating various matters, including conduct and discipline within its campus or in public spaces while in its uniform. The Student Handbook would be binding on the students, so long as the same was brought to their attention, upon admission or at enrolment. I see that there is a column for execution by students, as acknowledgement of receipt. I note that the applicants have not contested the application of the Student Handbook to them. 6. I note too that the Student Handbook makes reference to the Disciplinary Committee, as a body to handle disciplinary cases. There is no mention of the Appeals Committee or the Appeals Board, although provision is made for an appeal from the decision of the Disciplinary Committee. Since the Disciplinary Committee is mentioned as the body to handle cases of indiscipline, there would be mandate for it to handle such cases. However, the Disciplinary Committee can only deal with the cases that are spelt out under clause 9.0, in accordance with the rules of procedure, set out in clauses 11.0, 12.0 and 13.0. The Student Handbook makes no mention of the entity or the outfit that ought to hear and determine the appeals contemplated in clauses 12.0(iii) and (iv) and 13.0(h). It does not mention the Appeals Committee or the Appeals Board. Hence such a body is not envisaged in the Student Handbook, and it should not exist, and if any such a body has been set up, outside of the provisions of the Student Handbook, it would have no mandate to handle appeals relating to the matters set out in the Student Handbook, specifically relating to clauses 9.0, 12.0 and 13.0 of the Student Handbook. 7. 2 things should emerge from the discussion above. The first is that since the Student Handbook does not create the body known as the Appeals Committee or the Appeals Board, vesting it with mandate to handle appeals, from the processes under clauses 9.0, 12.0 and 13.0, the proceedings and decisions made on 27th January 2026, were conducted and made unlawfully, to the extent that the Appeals Committee or the Appeals Board is a non-existent body under the Student Handbook. 8. The second is that the Disciplinary Committee could only handle cases relating to misconduct that is clearly identified and defined in the Student Handbook, and could only impose such penalties as are prescribed under the Student Handbook. Clause 9.0(a) identifies theft within campus as a case of gross misconduct, and prescribes the penalty of expulsion, with discretion to make a report to the police and to recommend psycho-social support. There was mandate, on the part of the Disciplinary Committee, but not the Appeals Committee or the Appeals Board, to take the applicants through a disciplinary process relating to gross misconduct of theft. However, upon finding them liable, the only penalty prescribed was expulsion, with discretion to make a report to the police and to offer psycho-social support. There is nothing, in clauses 9.0, 11.0, 12.0 and 13.0, which mandates the Disciplinary Committee to consider imposing any other penalty, besides that which is prescribed in clause 9.0. The imposition, therefore, of the penalty of suspension for 1 term, for theft, and the adding to it of the direction on re-taking or re-doing the interrupted academic term, and payment of the fees afresh, was outside of what is mandated under clause 9.0(a), and the said penalty is unlawful, for it was imposed without statutory authority. 9. So much for legality. Let me now advert to rationality and reasonableness, which go together. They call for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, and the circumstances of the case, the decision arrived at was rational or reasonable. 10. The case, on these 2, is set out in section D of the statutory statement, and it is anchored on clause 9.0(a)(3). It is argued that that clause did not make provision for paying fees as second time, when the fees for the term had already been cleared. 11. I have already dealt with the issue of the fees in the foregoing paragraphs. I reiterate, that an administrative body can only exercise such mandate as is assigned to it by the statute or the instrument setting it up. The Student Handbook has explicitly set out the penalty for theft, which is expulsion. The decision to expel may be accompanied by a decision to have the matter escalated to the law enforcement authorities, and a recommendation for psycho-social support. Clause 9.0(a)(3) says nothing about fees, or re-take of the course, or even suspension from the 1st respondent. The penalty imposed, on the applicants, was not what the instrument prescribes, and the instrument has not provided for consideration of imposition of other or alternative penalties. It would be irrational and unreasonable to exercise a power or mandate that has not been vested by the relevant or enabling instrument. 12. The applicants have lumped procedural unfairness together with rationality and reasonableness, in their statutory statement, and I believe what I have discussed above adequately deals with it. It would be unfair to impose a penalty, which has not been prescribed by the law. The applicants did not anticipate any other penalty, for the accusation that they faced, besides that which is prescribed under the Student Handbook, and imposing any other penalty would violate their legitimate expectation and their fair trial rights. 13. There is an issue raised about violation of the constitutional right to fair administrative action and fair hearing, with respect to a delay prior to the hearing of the appeal, and lack of adequate notice to the hearing on 27th January 2026. The pleading herein, with respect to that, is mutually inconsistent, for one cannot complain of delay, yet, when notice is given for hearing, complain about inadequate notice. There is talk of an arbitrary postponement, of the scheduled appeal hearing, but there is no material proof of any postponement of that appeal hearing. 14. In view of everything said here above, I find and hold that there is merit in the Motion, dated 13th March 2026. The same is hereby allowed, in terms of prayers 1, 2 and 3 thereof. There shall be no order on costs. Orders accordingly. **DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 22ND DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Atalo/Mr. Maalim, instructed by Maalim & Associates, Advocates for the applicants.** **Mr. Okuta, instructed by Okuta & Company Advocates LLP, for the respondents.**