https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7759

Mutua v Jomo Kenyatta University of Agriculture and Technology (Petition E014 of 2025) [2026] KEHC 7759 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7759 (KLR) Republic of Kenya In the High Court at Siaya Petition E014 of 2025 DK Kemei, J June 4, 2026 Between Abraham Kyulu Mutua Petitioner and Jomo Kenyatta University of Agriculture and Technology Respondent Ruling 1.The Respondent/Applicant herein has filed an application dated 9/4/2026 seeking the following reliefs:i)Spent.ii)That the Judgment delivered on 19th January 2026 and all consequential orders made thereunder be set aside and vacated ex debito justiciae in their entirety.iii)That upon setting aside, this Honourable Court be pleased to grant the Respondent/Applicant unconditional leave to file its Response to the Petition and all such documents as may be necessary to defend the Petition.iv)That this Honourable Court be pleased to order a fresh hearing of the Petition filed by the Respondent/Petitioner on its merits, with the Respondent/Applicant having full opportunity to participate.v)That the Applicant/Respondent is ready and willing to comply with any directions this Honourable Court may give.vi)That this Honourable Court be pleased to grant such further or other relief as it deems just and expedient in the circumstances. 2.The application is supported by the affidavit of the Respondent’s Advocate sworn on even date and by the grounds set out thereunder. The Respondent’s gravamen is inter alia; that the Respondent was never served with summons to enter appearance at any stage of the proceedings yet the same was a fundamental requirement; that the eventual judgement was irregular and liable to be set aside ex debito justiciae; that the Respondent was not served with a hearing notice or entry of judgement; that at the initial stages the parties were directed to engage in negotiations to resolve the dispute and thus the Respondent was under the impression that the matter would be on hold pending the outcome of the discussions; that the Petitioner abandoned the negotiations and proceeded to prosecute the petition ex parte thereby violating the Respondent’s right to fair trial under article 50(1) of the constitution; that the cornerstone of the Petitioner’s case is a letter dated 17/12/2019 purportedly issued by the Respondent’s Project and Attachment coordinator is a fake document which does not feature in the Respondent’s records and does not reflect the Petitioner’s academic standing; that the petitioner deliberately misrepresented his academic standing by willfully concealing from the court that he has numerous pending supplementary and special examinations for his first to third year of study which requirement he has failed to satisfy to date; that at the time of filing the petition, the petitioner suppressed the fact that he had ceased to be a bonafide student of the Respondent having been deregistered in his fourth year for failure to register and consequently lacked the locus standi to invoke the court’s jurisdiction; that on account of the academic gaps, the order to update the petitioner’s academic record is untenable as there exists no academic data or record upon which the Respondent can lawfully effect such an update without falsifying university records in breach of the Universities Act; that the Respondent is a creature of statute which strictly mandates that a student may only be placed on the graduation list and awarded a degree upon its senate being satisfied that all the prescribed academic requirements have been met; that the Respondent is apprehensive that the petitioner will move to execute the judgement thereby compelling the Respondent to perform an unlawful act by graduating a deregistered person who has not satisfied legal requirements for a degree; that unless a stay is granted, the petitioner will proceed to execute the decree thereby compelling the Respondent to perform an unlawful act of falsifying academic records and awarding a fraudulent degree certificate. 3.The Petitioner filed a replying affidavit sworn on 20/4/2026 wherein he averred inter alia; that the Respondent was duly served with all the pleadings and documents as per the annexed affidavits of service; that the claim of non-service is false and misleading; that the Respondent admits that an out of court settlement and thus it is inconceivable that the Respondent cannot be heard to say that it was not aware of the suit; that the Respondent had knowledge of the suit and deliberately chose not to participate in it; that it is not true that the petition was prosecuted secretly without notice to the Respondent; that the judgement dated 19/1/2025 was regular; that the Respondent cannot seek to reopen the case yet it failed to attend court when served; that this court has become functus officio upon delivering the judgement; that the Respondent is now seeking to have this court sit on appeal over its own judgement; that if the Respondent is aggrieved, it should approach the Court of Appeal; that the Respondent has not demonstrated discovery of new or important matter that was not within its knowledge or which could not have been produced during the hearing of the petition; that the Respondent cannot use its own failure to participate in the proceedings as a ground for setting aside a lawful judgement; that the disputed letter dated 17/12/2019 termed a forgery by the Respondent has not been supported by any forensic or independent report; that even if parties engaged in negotiations, the same did not relieve parties from attending court when served; that the Respondent has not demonstrated any sufficient cause to warrant setting aside the judgement dated 19/1/2025. 4.The application was canvassed by way of written submissions. Both parties duly complied. 5.The Respondent/Applicant raised several issues for determination inter alia; whether the failure to serve Summons to Enter Appearance renders the Judgment of 19th January 2026 a jurisdictional nullity liable to be set aside ex debito justiciae; whether the Petitioner lacked the locus standi to institute the Petition following his formal deregistration as a student; whether the Applicant can be compelled to update academic records that are non-existent due to the Petitioner’s failure to satisfy graduation requirements; whether the Applicant is entitled to a stay of execution and unconditional leave to defend the Petition on its merits. 6.As regards the 1st issue, it was submitted that at the initial mention, the parties were directed towards, and indeed engaged in, out-of-court negotiations intended to resolve the dispute amicably. That the Applicant/Respondent reasonably and professionally understood the litigation to be on hold pending the outcome of these discussions. That in a show of good faith, and while the Applicant was busy collating the necessary academic data to facilitate this process, the Petitioner, without any notification or formal notice of withdrawal from the talks, abandoned the negotiations and proceeded to prosecute the Petition ex parte, effectively ambushing the Applicant and securing a judgment in a procedural vacuum. Most critically, the Applicant/Respondent was never served with Summons to Enter Appearance at any stage of the proceedings. That the law on this point is both settled and uncompromising in that it is trite law that summons are the very instrument that confers jurisdiction upon a court. That without service, the court’s power to adjudicate over a party is not ignited. That this principle is anchored in Article 50(1) of the Constitution of Kenya, 2010, which elevates the right to a fair hearing to a constitutional imperative. That personal service is the only procedural guarantee that a defendant is aware of the claim against them and is afforded the opportunity to be heard. In the case of Dongo v Rorio (Civil Appeal 80 of 2024) [2025] KEHC 15196 (KLR), the Court held: "It is to be noted that personal service of summons is a fundamental procedural requirement which is intended to give notice to the defendant of the claim against them and to allow them to be heard under Article 50 of the constitution.The failure to serve the defendant personally goes to the root of the constitution and renders subsequent proceedings a nullity."This position was long ago solidified by the Court of Appeal in Shadrack Arap Baiywo v. Bodi Bach [1987] eKLR, where the Court emphasized:“The mode of service of summons is a matter of substance going to the jurisdiction of the court. Unless the defendant has been duly served, the court cannot assume jurisdiction over him.”Furthermore, in James Kanyita Nderitu & another v. Marios Philotas Ghikas & another [2016] eKLR, the Court of Appeal reaffirmed that:“A judgment entered against a defendant who has not been served with a summons to enter appearance is irregular. Such a defendant is entitled ex debito justiciae to have it set aside as a matter of right.”It was thus submitted that the Petitioner’s failure to serve Summons to Enter Appearance is not a mere procedural technicality that can be cured. It is a fundamental jurisdictional defect. The act of prosecuting the matter behind the Applicant's back while negotiations were ostensibly ongoing was a calculated violation of the right to a fair hearing. Consequently, the proceedings of this court and the resulting Judgment of 19th January 2026 are a jurisdictional nullity. The Respondent urged this Court to find that the Applicant is entitled, as a matter of right and ex debito justiciae, to have the said judgment set aside and vacated in its entirety to allow for a determination on the merits. 7.As regards the second issue, it was submitted that the facts regarding the Petitioner’s status at the time of filing this suit are both clear and incontrovertible. That at the time of instituting the Petition, the Petitioner was no longer a bona fide student of the Applicant as he had been formally deregistered in his fourth year of study for failure to register for his courses, a mandatory administrative and academic requirement. That by willfully suppressing the fact of his deregistration, the Petitioner moved this Court under the guise of being a "student," yet he held no such status in the records of the University. That he deliberately concealed that he had numerous pending supplementary and special examinations from his first to third year of study which academic requirements he has failed to satisfy to date. 8.It was submitted that the law on locus standi serves as a fundamental gatekeeper to the judicial process. In the decision of Chelogoi v Office of the Director of Public - Prosecutions & another; Shah & another (Interested Parties) [2026] KEELC 1291 (KLR), the court addressed this threshold requirement and held that:“locus standi as defined in Black’s Law Dictionary, refers to “the right to bring an action or to be heard in a given forum.”The Court of Appeal in Alfred Njau & Others vs City Council of Nairobi (1982) KAR 229 stated that to lack locus standi is to lack the right to appear or be heard, while in Law Society of Kenya vs Commissioner of Lands & 2 Others [2001] KEHC 831 (KLR) the court underscored that standing depends on demonstration of sufficient interest and legal capacity to invoke the court’s jurisdiction. That locus standi is therefore a threshold issue going to the competence of a party to move the court. That the Petitioner’s lack of locus standi is fatal to the Petition. That locus standi is a threshold issue going to the very competence of a party to move the court. That a deregistered person cannot, through judicial fiat, regain a status they lost through their own academic and administrative defaults. That by concealing his deregistration and his massive academic gaps, the Petitioner misled this Court into granting orders in favour of a person who, in the eyes of the University's governing statutes, lacked the legal capacity and sufficient interest to invoke the court's jurisdiction regarding academic conferment. Consequently, the suit was stillborn from the outset, and the resulting judgment is a legal impossibility that must be set aside to prevent the abuse of the court process. 9.As regards the third issue, it was submitted that the facts underlying this issue touch upon the very sanctity of higher education and the limits of judicial intervention in academic administrative processes. That the Petitioner moved this Court to compel the Applicant to update his academic records and place him on the graduation list, but the court should know that a university record is a reflection of academic reality and not a fictional narrative. That the Petitioner has numerous pending supplementary and special examinations from his first to third year of study and that there is no academic data or passing marks in existence for these units and therefore, the order to update his records is an order to perform a physical and legal impossibility. That for the Applicant to comply, it would be forced to "cook marks" and manufacture a transcript that does not exist in its records, an act that would constitute a criminal offence under the Universities Act.It was submitted that the law is clear that where a specific procedure is prescribed by the internal statutes of an organization or by national legislation, that path must be followed to its conclusion. That the Petitioner has sought to bypass the internal academic and administrative mechanisms of the University. That there exists a clear statutory and internal procedure for sitting examinations, and verification of marks by the University Senate for graduation. In the case of Republic v University of Nairobi & 2 others; Ex-parte Mwangi Emma Wahito & another, the Court was emphatic on this point, holding that where, the Constitution of an organization has provided the procedure for doing something, the procedure should be followed and that it is only after the procedure is exhausted that the facilities of courts should be resorted to. It was submitted that by granting the orders to graduate the Petitioner, this Court would have inadvertently allowed the Petitioner to leapfrog the University Senate’s mandate. Hence, to compel the Applicant to update records and graduate the Petitioner in the absence of the Senate’s approval is to ignore the very procedure that preserves the integrity of Kenyan degrees. It was urged that the Applicant cannot be compelled to perform an act that bypasses its own internal constitutional and statutory procedures and that since the Petitioner failed to satisfy the University Senate, the order to graduate him is procedurally and legally premature. 10.As regards the fourth issue, it was submitted that the Applicant is a creature of statute, governed by the Universities Act, which strictly mandates that a degree may only be conferred upon the University Senate being satisfied that all prescribed academic requirements have been met. That the Petitioner is a deregistered person with significant academic gaps. Hence, the Applicant is rightly apprehensive that the Petitioner might imminently move to execute a judgment that would compel the University to perform an unlawful act namely, the graduation of an unqualified individual and the active falsification of academic records.It was also submitted that the primary consideration in setting aside a judgment is the protection of the right to be heard and the prevention of a miscarriage of justice. That unless a stay of execution is granted, the Applicant will be forced into a position of awarding a fraudulent degree certificate, an act that would irreversibly damage the standards and integrity of higher education in Kenya. That the suit involves significant questions of public interest that require urgent judicial intervention.It was also submitted that the University’s statutory mandate is to protect academic integrity and which constitutes a meritorious defense of the highest order. That having demonstrated that the Petitioner secured a judgment in a jurisdictional vacuum by failing to serve summons, and further showing that the Petitioner is a deregistered individual who has misled this Court, it is only just that the judgment be stayed to allow for a determination of the matter on the merits. 11.It was finally submitted that the Respondent has demonstrated that the Petitioner secured a judgment in a jurisdictional vacuum by failing to serve summons at any stage of the proceedings and that the Petitioner is a deregistered individual who has misled this Court to obtain an order that is both legally and practically impossible to perform and that to allow this judgment to be executed would be to sanction a fraud upon the University, the public, and the law. That the Petitioner has not filed any evidence to controvert these facts and that it is in the interest of justice, and to preserve the integrity of our educational statutes that the Judgment of 19th January 2026 be vacated in its entirety, and the Applicant be granted unconditional leave to defend the Petition. 12.The Petitioner relied on the contents of the replying affidavit, which reveals that the Judgment delivered on 19th January 2026 was lawfully obtained after due service and hearing, and that there exists no lawful basis for interfering with the same. The Petitioner raised three issues for determination inter alia; whether the Respondent/Applicant was duly served with the Petition and subsequent court process; whether this Honourable Court is functus officio; whether the Respondent/Applicant has satisfied the legal threshold for setting aside the Judgment or grant of stay of execution. 13.As regards the first issue, it was submitted that the Respondent’s allegation of lack of service of the Petition and court process is false and unsupported by evidence since the Petitioner annexed Affidavits of Service marked AKM-1 and AKM-2 confirming that the Petition and subsequent pleadings were duly served upon the Respondent and acknowledged by authorized officers. That an affidavit of service is prima facie proof of service unless successfully challenged. In the case of Shadrack Arap Baiywo vs Bodi Bach [1987]eKLR, the Court held that;'There is a presumption of services as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service'It was submitted that the Respondent has not applied to cross-examine the process server nor demonstrated any defect in service. Further, it was contended that the Respondent admitted engaging in negotiations during pendency of this matter and that such admission clearly demonstrates knowledge of the proceedings. Hence, the Respondent therefore had knowledge of proceedings but deliberately failed to attend Court. 14.As regards the second issue, it was submitted that the Judgment in this Petition was delivered on 19th January 2026 after due hearing of the Petition and consideration of the evidence placed before this Honourable Court. That upon delivery of the said Judgment, the Court conclusively determined the issues in dispute between the parties and thereby exhausted its jurisdiction in respect of the Petition. That the doctrine of functus officio dictates that once a court has performed its function by determining a matter and rendering a final decision, it lacks jurisdiction to reopen or revisit the same matter except as may be provided under the law. The principle exists to safeguard the finality of judicial proceedings and to prevent endless litigation over matters that have already been determined.It was submitted that the present application by the Respondent/Applicant seeks to reopen the proceedings and revisit issues that were conclusively determined by this Honourable Court in its Judgment delivered on 19th January 2026, and that the Respondent is effectively inviting this Honourable Court to reconsider and overturn its own Judgment without invoking the proper appellate process. It is the Petitioner's submission that if the Respondent/Applicant was dissatisfied with the Judgment delivered by this Honourable Court, the proper recourse available to it was to lodge an appeal before the appropriate appellate Court. That the present attempt to reopen concluded proceedings through the current application is therefore improper and amounts to an abuse of the process of this Honourable Court. It was urged that in the circumstances, this Honourable Court lacks jurisdiction to revisit the merits of the Judgment already delivered, and that the Respondent's application ought to be dismissed. 15.As regards the third issue, it was submitted that the power to set aside a judgment is discretionary but must be exercised judiciously and only upon demonstration of sufficient cause. While discussing the criteria for allowing an application for setting aside a default judgment, as held in the case of James Kanyita Nderitu & Another vs Marios Philotas Ghikas & Another [2016] eKLR that;'In a regular default judgment, the defendant will have been duly served withSummons to enter appearance, but for one reason or another, he had failed to enter appearance or to file a defence, resulting in a default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.In the celebrated case of Shah v Mbogo & Another [1967] EA 116, the Court held:“This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."Similarly, in Mbogo v Shah [1968] EA 93, the Court held:“A court of appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter."It was submitted that the Respondent has not demonstrated accident, mistake or inadvertence but instead, the failure to attend Court was deliberate despite proper service and knowledge of proceedings.That the matters now being raised relating to academic deficiencies and deregistration were within the Respondent's knowledge and ought to have been presented during the hearing. A party cannot rely on its own inaction to reopen concluded proceedings.Further, the allegation that the letter dated 17th December 2019 is a forgery is unsupported by forensic evidence. Mere allegations do not constitute proof. 16.It was also submitted that under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, review may only be granted where new and important evidence is discovered or there exists an error apparent on the face of the record. No such grounds have been demonstrated. That the Respondent was duly served and had knowledge of the proceedings but failed to attend Court. That the Court became functus officio upon delivery of Judgment on 19th January 2026 and lacks jurisdiction to reopen the matter. That the Respondent has failed to demonstrate sufficient cause for setting aside Judgment or grant of stay of execution and that the application is an afterthought and intended to delay compliance with lawful orders of this Honourable Court. It was urged that the said application should be dismissed with costs. 17.I have given due consideration to the rival affidavits and submissions. I find the issue for determination is whether the Respondent’s application dated 9/4/2026 has merit. 18.It is noted that the Respondent’s application is predicated on the main issue that it was never served with the requisite court pleadings to enable to enable it to respond to the petition and to participate in the trial and that it contends that it was condemned unheard and now seeks to be given an opportunity to defend the suit as it has a credible defence which raises triable issues. The Respondent therefore seeks for the setting aside of the judgement dated 19/1/2025. The Petitioner, on his part, maintains that the Respondent was duly served as confirmed by affidavits of service by a process server and therefore the judgement entered was quite regular and ought not to be disturbed. 19.The principles guiding the setting aside of judgments have been enunciated in several cases. In Patel Vs East African Cargo Handling Services Ltd [1974] EA 75 it was held that the courts possesses a wide ‘’unfettered discretion’’ to set aside ex-parte judgements to ensure justice is served, provided the applicant has a triable issue ( a prima facie defence), The principles laid down in the aforesaid case include inter alia; that the overriding concern of the court is to do justice between the parties and that a judge will not impose rigid rules that fetter the discretionary powers granted by the civil procedure rules; that a defence on merits implies a good defence but which does not imply one that must succeed as long as it raises triable issues or prima facie defence that warrants a trial; that whereas courts have free discretion to set aside judgements entered in default, they will not usually set aside a regular judgement unless the defendant can clearly demonstrate there is a valid, triable issue to be heard. 20.The power to set aside a judgment is discretionary but must be exercised judiciously and only upon demonstration of sufficient cause. While discussing the criteria for allowing an application for setting aside a default judgment, as held in the case of James Kanyita Nderitu & Another vs Marios Philotas Ghikas & Another [2016] eKLR that;'In a regular default judgment, the defendant will have been duly served withSummons to enter appearance, but for one reason or another, he had failed to enter appearance or to file a defence, resulting in a default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.In the celebrated case of Shah v Mbogo & Another [1967] EA 116, the Court held:“This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice."Similarly, in Mbogo v Shah [1968] EA 93, the Court held:“A court of appeal will not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter." 21.The record herein confirms that from the word go, the Respondent had been in attendance through one of its legal officers Mr Savini who was present when directions on the disposal of the appeal were issued on 17/9/2025 and in which the parties were directed to file and exchange submissions and that the Respondent herein was granted leave to file a response to the petition alongside submissions. However, on the mention date to confirm compliance, there was no appearance by the said Savini and thus the Petitioner was allowed to proceed to take the judgement date. It is not in dispute that to date the Respondent has not filed a response to the petition. I find that the judgement entered on 19/1/2025 was a regular one and that the Respondent’s claim that it was not served with summons to enter appearance is not convincing. The affidavits of service filed herein left no doubt that the Respondent was duly served. Hence, the Respondent’s claim that the Petitioner went behind its back and prosecuted the petition is not believable. Indeed, the Respondent through its then counsel (legal officer) and together with the Petitioner’s counsel agreed to engage in some negotiation with a view to amicably resolving the matter. However, the parties did not reach an agreement and hence the directions to canvass the petition by way of written submissions. It is therefore quite inconceivable for the Respondent to turn around and deny having had knowledge of the matter. I find the moment the Respondent’s legal officer presented himself as acting for the Respondent, this court had no reason to doubt the same. Iam not convinced by the Respondent’s assertions that it was not aware of this suit. Had the Respondent not been served then the judgement would have been set aside ex-debito justiciae as now contended by the Respondent. However, the converse is true and that the Respondent if really was interested to be given an opportunity to defend the suit, was under obligation to render a plausible explanation for not being able to file response to the petition despite being served. It is noted that the Respondent has maintained that it has a credible defence on merits and now craves to be given an opportunity to defend the suit. The Respondent has further contended that it intends to challenge the Petitioner’s alleged letter dated 17/12/2019 and prove that the same was a forgery. Even though the Petitioner is against the Respondent being given an opportunity to participate in the trial, iam persuaded that the Respondent should be given an opportunity to defend the suit. The Respondent has maintained that it has evidence which would dislodge that of the Petitioner. I find that this court should not shut out the Respondent but to give it an opportunity to ventilate its case. No prejudice will be suffered by the Petitioner if the application is allowed as he can be cushioned by an award of costs. 22.In view of the foregoing observations, it is my finding that the Respondent’s application dated 9/4/2026 has merit. The same is allowed in the following terms:i)The judgement dated 19/1/2025 is hereby set aside.ii)The Respondent is granted ten (10) days within which to file and serve response to the Petition with corresponding leave to the Petitioner to file and serve a further affidavit if need be within seven (7) days of service.iii)The Respondent to pay to the Petitioner throw away costs of twenty thousand shillings (Kshs 20, 000/) within ten (10) days from the date hereof.iv)The matter is fixed for further directions on 25/6/2026.Orders accordingly. DATED AND DELIVERED AT SIAYA THIS. 4TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:MS ONONO..........................................Petitioner/RespondentN/A JENIFFER AKINYI.........................................for Respondent/ApplicantMAUREEN.............................................Court Assistant