[2020] KEHC 359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei – J

PETITION NO. 37 OF 2019

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 21, 22, 23, 165(3), 258 AND 259 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 24, 35, 27, 33, 35, 37, 43, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES 2013

BETWEEN

NICHOLAS ODHIAMBO AWINO..............................................PETITIONER

VERSUS

MACHAKOS UNIVERSITY.....................................................RESPONDENT

JUDGEMENT

1. The Petition was filed on the 13th November, 2019 by Nicholas Odhiambo Awino who had been admitted in September, 2016 to pursue a Bachelor’s Degree in Education (Science) and was at the time of suspension a third year student in his first semester at the Respondent’s institution Machakos Campus and that the Petitioner herein challenges his suspension for four academic years and hereby seeks the following reliefs:

(a) A declaration that the suspensions and subsequent expulsion of the petitioner from the Respondent University was null and void ab initio for having violated Articles 24,25, 27,33,37, 43(1) (f), 48 and 50 of the Constitution of Kenya.

(b) An order do issue compelling the Respondent to unconditionally re-admit the Petitioner to join the university and further facilitate the re-admission to ensure he completes his studies at time he was ordinarily supposed to complete his studies but for the unlawful and illegal suspension and expulsion.

(c) A declaration that the Petitioner’s rights as stated in his petition and in particular his rights under Article 24, 25, 33, 37, 43 (1) (f), 48 and 50 of the Constitution were violated.

(d) An order of compensation including aggravated damages for violation of the Petitioner’s rights guaranteed under the constitution as aforesaid.

(e) Costs of this petition be borne by the Respondent.

(f) Such other or further orders as this Honourable court may deem just and expedient.

Petitioner’s case:

2. The Petitioner’s case as can be gleaned from his petition, supporting affidavit and written submissions is that he had been faithfully and without any incidents pursuing his studies until 5th October, 2018 when he received a letter of suspension from the Respondent through the Registrar (Academics and Students Affairs) wherein he was accused of acts of incitement among other offences contrary to the University Statutes and Regulations governing the conduct of students that include the following:-

(a) Refrain from any conduct that might bring the University or any section or programme thereof to disrepute, ridicule or public odium.

(b) Carry themselves in all public fora or places with such humility and dignity as befits their status as mature and responsible citizens.

(c) Refrain from all acts of violence, hooliganism, unruly or rowdy behaviour, or any conduct likely to cause a breach of the peace and disturbance to others within or outside the University campus.

3. According to the Petitioner, the Respondent linked him to the period of unrest (20th and 26th September, 2018) at the institution where it accused him of inciting students against the administration and student leadership through various fora including placing placards within the university compound, ejecting other students from lecture rooms and blocking road users. The Petitioner went on to state that the Respondent sent him a letter dated 18/10/2018 where he was summoned to appear before the Students Disciplinary Committee on 24/10/2018 and upon deliberations he was suspended for four academic years. The Petitioner thereafter vide his letter dated 21/11/2018 lodged an appeal to the Vice Chancellor which took long to be determined forcing him to seek the help of the Commission on Administration of justice (Ombudsman) but the appeal was later dismissed and the Student Disciplinary Committee’s verdict upheld.

4. The Petitioner contends that the disciplinary committee failed to prove or substantiate the charges levelled against him as there is no iota of evidence that he placed any placards within the university compound. He also contends that the committee did not present evidence such as a clip of the CCTV footage to show Petitioner’s involvement in ejecting students from lecture rooms or that he blocked road users or even call the affected students as witnesses. It is the contention of the Petitioner that the actions of the Respondent were unjust, unfair, illegal and disproportionate in the circumstances. Finally, the Petitioner contended that he was not given an opportunity to appear before the appeals committee and was not allowed to seek legal representation and as such his rights to fair administrative action under Article 47 of the Constitution as well as his rights under Articles 25, 43, 48 and 50 of the Constitution were violated.

5. From the above averments, the petitioners raft of complaints against the Respondent can be summarized as follows:-

(a) The decisions of the Students Disciplinary Committee as well as the appeals Committee were made in breach of the rules of natural justice as set out in Article 47(1) of the Constitution which guaranteed administrative action that is lawful, reasonable and procedurally fair.

(b) The proceedings before the Students Disciplinary Committee and the Appeals Committee were not fair, nor independent as required under Article 50(i) of the constitution.

(c) The Petitioner was not given reasonable or adequate time and facilities to prepare his defence or informed that he had a right to be defended by an Advocate under Article 50(2) of the constitution.

(d) The decision to suspend the petitioner’s studies for four academic years was harsh, excessive and amounted to cruel inhuman or degrading treatment outlawed under Article 25(a) of the constitution.

(e) he petitioner was not accorded a proper or fair appeal process.

6. In his submissions, counsel for the Petitioner raised one issue for determination namely whether or not the Respondent through the disciplinary process and subsequent suspension of the Petitioner violated the Petitioner’s constitutional rights and fundamental freedoms as particularly averred. Counsel cited Articles 24 (right to fair trial shall not be limited), 33 (freedom of expression), 37 (Assembly demonstration, picketing and petition), 50 (right to legal representation/fair bearing), 35(right to information), 47 (right to fair administrative action) as the ones which were violated by the Respondent. On the right to fair trial reliance was placed in the case of Francis Karioko Muruatetu & Another –vs- Republic [2017] eKLRand also in Constitution Petition No. 11 of 2019 Gideon Omare –vs- Machakos University [2019] eKLR. On the issue of freedom of expression and assembly, reliance was placed in the case of Wilson Olal and 5 others –vs- Attorney General & 2 others [2017] eKLR. On the issue of right to legal representation, reliance was placed in the case of Republic –vs- Chuka University Ex parte Kennedy Omondi Waringa & 16 Others [2018] eKLR. On the issue of right to fair administrative action and right to information, reliance was placed in the case of Judicial Service Commission –vs- Mbalu Mutava & Another [2015] eKLR.

Finally, counsel submitted that the petitioner’s letter of apology dated 21/11/2018 should be read wholesomely in that the Petitioner was apologizing because the Respondent was bitter with him and not because he was admitting the charges levelled against him. Learned counsel submitted that the petition be allowed as prayed.

Respondent’s case

7. The Respondent by a replying affidavit sworn on 28/02/2020 by Professor Joyce J. Agalo, its Deputy Vice – Chancellor (Academic & Student Affairs) vehemently opposed the petition and who raised several issues inter alia: that the student unrest at the University on the 26/09/2018 had the petitioner being one of the ring leaders and who was invited to appear before the Student Disciplinary Committee regarding his involvement and who duly presented his oral defence; that the petitioner was properly suspended for four academic years; that the petitioner did not raise the issue of legal representation during the disciplinary proceedings; that the petitioner vide his letter of apology dated 21/11/2018 agreed with the Respondent that the suspension was not wrong; that the petitioner was procedurally and lawfully suspended and that due process was followed in accordance with the constitution, rules of natural justice and University Statutes and hence the Respondent did not breach any of the rights and fundamental freedoms of the Petitioner as the Respondent only discharged its obligations as a University and a public institution.

8. Learned counsel for the Respondent submitted that the Petitioner’s rights were not violated as alleged as he was taken through the disciplinary process procedurally and who afterwards agreed with the verdict and sought apology. It was further submitted that the disciplinary proceedings were not a “trial” contemplated under Article 50(2) of the Constitution so as to make them adversarial in nature. Reliance was placed in Simon Gakuo –vs- Kenyatta University & 2 Others – Misc. Civil Application No. 34 of 2009, Egerton University –vs- Patel Maulik Prasien [2017] eKLR, Nyongesa & 4 others –vs- Egerton University College [1990] EKLR, Ouma Christopher Odongo –vs- kenya University [2016] eKLR, Oluoch Dan Owino & 3 others –vs- Kenyatta University [2014] eKLR.

It was also submitted that the Petitioners right to assembly and association was not breached as the petitioner and others were expected to adhere to the University regulations and ensure that they did not interfere with the rights of other persons. Reliance was placed in the case of Wilson Olal & 5 others –vs- Attorney General & 2 others [2017] eKLR where it was held that freedom of assembly and association is not an absolute right as it can be limited in a reasonable justifiable manner in an open democratic society. Finally, it was submitted that none of the petitioner’s rights were violated by the Respondent and hence the petition should be dismissed with costs and that the petitioner should continue to serve the remainder of the suspension term of two years.

Determination

9. I have considered the Petitioner’s petition as well as the rival affidavits. I have also considered the submissions and the authorities cited. It is noted that the Petitioner has made a raft of accusations against the Respondent for violating his rights under the constitution the sum total of which revolve around two key and paramount rights namely right to fair administrative action and right to fair trial provided for under Article 47 and 50 of the Constitution. The issues for determination are firstly whether the petitioner’s rights have been violated and secondly what reliefs should be granted to the Petitioner?

10. Right to fair administrative action is provided for in Article 47 of the Constitution which provides as follows: -

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to adversely affect by administrative action, the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause-

(i) And that legislation shall:-

(a) Provide for the review of administrative action by a court or if appropriate, an independent and impartial tribunal; and

(b) Promote efficient administration.

11. The Fair Administration Act 2015 is the legislation envisioned under Article 47(3) of the constitution. As far as the Petitioner’s case is concerned section 4 (3) of the aforesaid Act is relevant and provides as follows:-

“1) .......................

2) ........................

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

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

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

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

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

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

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

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

4) ..............................

5) ...............................

6) ...............................”

12. The Petitioner’s main grouse with the Respondent is that he was not informed that he was entitled to an advocate to represent him and that the alleged witnesses were not availed in order for him to cross – examine them. The Petitioner also claimed that he was not accorded an opportunity to appear for the hearing of his appeal against the decision of the Student Disciplinary Committee. The Respondent has vehemently denied the assertion and maintains that it followed all due process while dealing with the Petitioner. Whereas good practice demands that public bodies, tribunals or other authorities be left to run their affairs as well as make decisions based on their areas of expertise, the courts must be given the leeway to check the excesses of such bodies and their officials while exercising administrative or disciplinary measures. In the case of Nyongesa & 4 others –vs- Egerton University College [1990] eKLR, Nyarangi JA held as follows:-

“Courts are very loathe to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies where the courts are moved to do so where it is manifest that a decision has been made without fairly and justly hearing the person concerned or the other side. It is the duty of the courts to curb excesses of officials and bodies whose exercise administrative or disciplinary measures. Courts are the ultimate custodians of the rights and liberties of people. Whatever the status and there is no rule of law that courts will abdicate jurisdiction merely because the proceedings or enquiry are of an internal disciplinary character.”

13. Wendo J inArthur Kaindi Nzioka –vs- Kenyatta University Misc. Application No. 316 of 2007 also held as follows:-

“When it comes to such matters of discipline it is up to those institutions to ensure that they strictly follow procedure that is laid down in their respective statutes..... if such institutions want the court to keep off interfering with the management of their institutions, that they have to comply with and adhere to all procedures laid down in their respective statutes to avoid courts intervention ....... in the circumstances, considering the Respondents total failure to comply with procedure relating to discipline, this court cannot just sit back, throw its hands up and say that it is powerless to say anything to uphold the applicant’s rights”.

14. One of the complaints raised by the Petitioner is that he was suspended indefinitely. However, the Respondent’s letter dated 5/10/2018 was clear that the petitioner had been suspended pending his appearance before the Students Disciplinary Committee. Indeed, the Petitioner was subsequently invited to appear before the said Student Disciplinary Committee vide a letter dated 18/10/2018 where all the charges levelled against him were deliberated upon and for which he tendered his defence. The Students Disciplinary Committee later recommended to the senate for his suspension for four academic years. He was duly given a right to lodge an appeal which he did but which was dismissed vide the Respondent’s letter dated 9/08/2019. A perusal of the Petitioners appeal vide his letter dated 21/11/2018 indicates that the same was purely an apology and which sought for clemency from the Respondent. The Petitioner’s conduct in sending an apology to the Respondent over the charges that had been levelled against him and the deliberations of the Student Disciplinary Committee left no doubt that he had owned up to the allegations and hence there was no proper appeal lodged by the Petitioner for consideration by the respondent. The Respondent’s vice chancellor properly found that there was no new evidence availed by the Petitioner vide his letter of apology and proceeded to dismiss the appeal. The Vice chancellor’s letter dated 9/08/2019 upheld the decision of the Students Disciplinary Committee recommending the Petitioner’s suspension for four academic years. However, the letter indicated that the Petitioner stood expelled. The Respondent’s Deputy Vice Chancellor (Academic and Student Affairs) vide paragraph 3 of her replying affidavit averred that the Students Disciplinary Committee’s decision to suspend petitioner for four academic years was upheld and that the mention of the word “expelled” was an error on the face of the said letter. I find the error did not prejudice the Petitioner as the Respondent has maintained that he had been suspended and not expelled as confirmed from the proceedings of the Student Disciplinary Committee. As all the administrative processes were fully accorded to the Petitioner, I am unable to fault the Respondent in any way regarding the Petitioner’s right to fair administrative action.

15. Regarding the complaint that the Respondent failed to inform the Petitioner of his right to be represented by an Advocate during the Student Disciplinary Committee proceedings, section 3(e) of the fair Administrative Act appears to qualify the right to legal representation to circumstances where such a right is applicable. It was not mandatory for the Respondent to inform the Petitioner that he should be represented by an Advocate. In any event the Petitioner did not claim that he had sought to be represented by counsel and was denied such a right. The proceedings of the Student Disciplinary Committee indicate that the Petitioner and a guardian appeared. In the case of Simon Gakuo –vs- Kenyatta University and 2 others Misc. civil No. 34 of 2009 the court held that administrative proceedings are not proceedings where all aspects of litigation are expected to be on the table. I find that the Petitioner did not suffer any prejudice by the absence of an Advocate since he was able to present his defence and that upon the outcome of the deliberations, he sent out a letter of apology and pardon to the Respondent. In such circumstances, it is clear that the Petitioner was satisfied with the Respondent’s disciplinary process.

16. As regards the right to fair hearing, it is noted that the petitioner has assailed the Respondent’s action for violating his rights under Article 50(1) and (2) of the constitution. The same provides as follows:-

(1) Every person has the right to have any dispute that can be resolved on the application of law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right :-

(a) to be presumed innocent until the contrary is proved;

(b) to be informed of the charge, with sufficient detail to answer it.

(c) to have adequate time and facilities to prepare a defence;

(d) to a public trial before a court established under this constitution;

(e) to have the right to begin and conclude without unnecessary delay;

(f) to be present when being tried unless the conduct of the accused person makes it impossible for the trial to proceed;

(g) to choose and be represented by an advocate and to be informed of his right promptly;

(h) to have an advocate assigned to the accused person by the state and at state expense if substantial injustice would otherwise result, and to be informed of this right promptly;

(i) to remain silent and not to testify during proceedings;

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence;

(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;

(n) not to be convicted for an act or omission that at the time it was convicted or omitted was not:-

(i) an offence in Kenya; or

(ii) a crime under international law;

(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;

(p) to the benefit of the lease severe of the prescribed punishments for an offence has been changed between the time that the offence was committed and the time of sentencing;

(q) if convicted, to appeal to, or apply for review by a higher court as prescribed by law;

(3) If this Article requires information to be given to a person, the information shall be given in a language that the person understands;

(4) Evidence obtained in a manner that violates any right of fundamental freedom in the bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice;

(5) An accused person:-

(a) Charged with an offence , other than an offence that the court may try by summary procedures is entitled during the trial to a copy of the record of proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law;

(b) Has the right to a copy of the record of proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law;

(6) A person who is convicted of a criminal offence may petition the high court for a new trial if:-

(a) The persons appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and

(b) New and compelling evidence has become available.

(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.

(8) This article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary in a free and democratic society, to protect witnesses or vulnerable person’s morality, public order or national security.

(9) Parliament will enact legistration providing for the protection, rights and welfare of victims of offences.

17. The Petitioner has claimed that he was denied a fair hearing in that he was not allowed to cross-examine witnesses or be represented by an advocate or be allowed to participate in his appeal. As the Respondent fell under the category provided for under article 50(1) of the constitution namely an independent body, it was expected to stick to the tenets of a fair hearing while dealing with the petitioner. The Petitioner was notified of the charges and invited to appear before the Students Disciplinary Committee. He duly presented himself and tendered his oral defence. The decision to suspend him was duly relayed to him and was advised of his right to lodge an appeal. Up to that stage, I do not see how he was prejudiced. As regards the appeal, the appellant did not present new evidence or grounds challenging the decision of the Student disciplinary Committee but instead tendered a letter of apology and sought clemency. I find the clemency sought by the Petitioner left no doubt that he had accepted the verdict and thereby the same put paid his claims in this petition that his rights had been infringed and or violated. I am satisfied that he was given a fair hearing by the Respondent. The Respondent had the discretion of accepting or rejecting the Petitioner’s plea for pardon or clemency. If the Respondent rejected the Petitioner’s request, the same does not amount to violation of his constitutional rights. I find the Respondent’s procedures of conducting the disciplinary proceedings against the petitioner met the requisite threshold and expectations of the rule of natural justice and fair hearing under Article 50(1) of the Constitution. The importation of Article 50(2) of the constitution by the Petitioner is not helpful to his cause since the said Article relates to fully fledged criminal trials where proof of guilt is beyond any reasonable doubt and further the petitioner had not been described as an accused person per se.

18. The Petitioner has also claimed that his rights under Article 37 of the constitution were infringed in that he was entitled to peacefully assemble and demonstrate or picket. The version of the Respondent and which formed part of the charges against the petitioner is that the petitioner had incited students against the Respondent, organized demonstration by barricading roads thereby inconveniencing road users and finally improperly using social medial contrary to the Respondent’s regulations 10 (2) of its Rules and Regulations covering the conduct and discipline of students at the university. It is clear from the disciplinary proceedings that the actions of the Petitioner interfered with the rights and interests of other persons such as fellow students, members of public and staff of the Respondent which actions actually led to the closure of the University at the time. In that regard I am not satisfied that the Petitioner’s rights under Article 37 of the Constitution were infringed.

19. The Petitioner has also claimed that his rights under Articles 24, 25, 27, 33, 37, 43, 48 have been violated. However, looking at the pleadings and the Student Disciplinary Proceedings as well as the submissions filed, I am not persuaded that the Petitioner’s rights were violated by the Respondent as claimed by the Petitioner. Indeed, the Petitioner as a student was entitled to education and to pursue the same up to conclusion but was circumscribed by the Respondent’s rules and procedures governing the conduct of students within the said university. It is a fact that an institution without rules must be a chaotic one. The Petitioner alleges that his right to assembly and association were infringed upon by the Respondent yet he was required to abide by the Respondent’s rules. The court in Oluoch Dan Owino & 3 others –vs- Kenyatta University held as follows:-

“As I understand it, the right to education does not denote the right to undergo a course of education in a particular institution on one’s terms. It is my view that an education institution has the right to set certain rules and regulations, and those who wish to study in that institution must comply with such rules. One enters an educational institution voluntarily well aware of its rules and regulations and in doing so commits himself or herself to abide by its rules unless such rules are demonstrated to be unreasonable and unconstitutional, to hold otherwise would be to invite chaos in educational institutions. I can therefore find no violation of the right to education in respect of the Petitioners”.

The Petitioner has sought to have the Respondent’s Rules and Regulations governing the conduct and discipline of students in the university more particularly Rule 10 (2) thereof declared as unconstitutional. The said rule dealt mainly with the issue of incitement of students, organizing of demonstrations and the use of social media. I have perused the said regulations and find nothing unconstitutional about them as they are necessary for the conduct of good order at the university. It is not in dispute that a university requires a tranquil and serene environment for the purpose of one major issue namely learning. I find that there was no clash between the aforesaid Rules and the rights enjoyed by the Petitioner in Article 37 and 43 of the Constitution. The Petitioner’s enjoyment of those rights were not meant to override the Rules of conduct at the university. In that regard I agree with the holding in Wilson Olal & 5 others –vs- Attorney General & 2 others [2017] eKLR where the court stated thus:-

“While freedom of assembly and association is not an absolute right, it cannot be limited except by law, and then only to the extent that the limitation is reasonable, justifiable in an open democratic society”

The Petitioner’s right to assemble and associate was not at all curtailed by the aforesaid Rules since any assembly or association was expected to be peaceful pursuant to the tenets and culture of the Respondent as a learning institution. The Petitioner and other students were bound by those tenets.

On the claim that the Petitioner was discriminated regarding the period of suspension, I note that the petitioner was suspended for four academic years. I have seen the summary of the decisions by the Student Disciplinary Proceedings and note that the suspension ranged from one academic year to four years depending on the charges preferred against the specific students as well as the evidence adduced. I am not persuaded that the Petitioner had been discriminated in violation of Article 27 of the constitution.

20. Turning to the prayers sought, I note that prayer (a) in view of my above analysis has not been established. Similarly, prayers (b) and (c) have not been established. As regards prayer (d) I find that no evidence was presented to show that the Petitioner had suffered damages and which I find were not proved to the satisfaction of the court.

21. In the result it is my finding that the Petitioner’s petition dated 16/10/2019 is without merit. The same is dismissed. Each party to bear their own costs.

It is so ordered.

Dated and delivered at Machakos this 2nd day of December, 2020.

D. K. Kemei

Judge