[2022] KEHC 12709 (KLR)

Nyangaresi v Kenyatta University (Petition 6 of 2018) [2022] KEHC 12709 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12709 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition 6 of 2018

MM Kasango, J

June 16, 2022

Between

Dismas Nyangaresi

Plaintiff

and

Kenyatta University

Respondent

Judgment

1. Dismas Nyagaresi is the petitioner hereof who has alleged by his petition that Kenyatta University, the respondent violated his constitutional rights to fair administrative action; and to fair hearing. The petitioner also alleged the respondent contravened the principles of natural justice.

2. The background of this matter is that the petitioner was a student at the respondent’s university undertaking a bachelor’s course in Education. The petitioner having completed his final examinations applied to graduate. The respondent in its replying affidavit stated that the petitioner was required to fulfil the requirements set out by the respondent’s Senate before being awarded a degree. That for a candidate to be classified and approved by the senate for inclusion in the graduation list, one had to meet the following criteria:-a.Have passed in all the required units.b.Met all the financial obligations to the respondent.c.Must not have any disciplinary cases pending.d.Ones online examination date must be verified against the primary examination record as held by the respective department.

3. The respondent stated the petitioner had failed to meet all the requirements for graduation. The respondent further stated that during its verification of the examination results, it found that the petitioner’s examination marks, as recorded in the class mark sheet for one unit varied from the marks as they appeared on the respondent’s online platform. The petitioner’s grade for that one unit as held by the departments was reflected as grade ‘D’. The grade reflected online was ‘A’.

4. The petitioner by his affidavit in support of his petition stated that he ought to have graduated in July, 2017 but did not graduate due to the following:-“… the respondent deliberately and unreasonably refused to include him in the list of grandaunts during the 41st graduation ceremony.”

5. The petitioner deponed that his name was excluded from the list of students who were due to graduate. On inquiring why his name was excluded from the list, he was informed that he attempted to alter his grades. He was issued by the respondent with a letter inviting him to appear before the disciplinary committee.

6. It is noteworthy that the petitioner failed to provide to this Court, a copy of that letter of the respondent inviting him to attend before the disciplinary committee.

7. The petitioner stated that before the disciplinary committee the respondent failed to provide him with evidence which implicated him in the alteration of his online grades. The petitioner termed the disciplinary procedure of the respondent as “a travesty of fair administrative action and fair hearing”.

8. That due to the aforestated alleged violations, the petitioner stated he had been denied the opportunity to graduate and had been unable to pursue a career of his choice.

9. The petitioner in his petition prayed for the following orders:-a.A declaration the petitioner is entitled to protection under the constitution.b.The court to quash the decision of the respondent’s Student’s Disciplinary Committee of October 25, 2016, conveyed vide respondent’s letter dated October 23, 2017and the respondent’s Student’s Appeal Committee decision of July 19, 2017. c.The court to order the respondent to issue the petitioner with a degree certificate.d.A declaration the respondent has a duty to observe, promote and fulfil fundamental freedoms in the Bill of Rights.e.Declaration indefinite withholding graduation of the petitioner was illegal and unlawful.f.Declaration the petitioner is entitled to be treated with human dignity, integrity, transparency and equal before the law.g.That in the event the court finds the respondent violated the petitioner’s fundamental right the respondent be ordered to compensate the petitioner with punitive damage.h.The respondent be ordered to pay special damages.

Analysis 10. The hearing of this petition was by affidavit evidence and written submissions. Before considering that evidence, I will comment on the prayers of the petitioner which I have reproduced above. Consideration of those prayers leaves me in a dilemma of what constitutional rights of the petitioner are alleged to be violated and much more, how those rights are alleged to have been violated. This brings to mind what Justice Majanja stated in the case Mathew Okwandavs. MinisterofHealthandMedicla Sercies & 3 Others (2013) eKLR, thus:-“18. The fact that the case is one that involves enforcement of economic and social rights does not relieve the petitioner of the responsibility to plead a case that discloses a violation of fundamental rights and freedoms with due particularity. The case of Anarita Karimi Njeru v Attorney General[1979] KLR 154 established the principle, that in matters concerning enforcement of fundamental rights and freedoms, a petitioner must plead with particularity that of which he complaints, the provision said to be infringed and the manner in which the particular right is violated. This principle is correct. I think the gloss put on it by the Trusted Society of Human Rights Alliance v Attorney General and Other Nairobi Petition 229 of 2012 (Unreported) is more appropriate. In that case the court went further and noted that it was not necessary to set out the violations with mathematical precision but in a manner that will enable the respondent have notice of the allegations and defend himself or herself and to enable the court adjudicate the violation. In order to give effect to the provisions of Article 48 which guarantee access to justice, the Court is obliged to go further and inquire about the petitioner’s grievance and see whether a case has been made out to warrant relief.”

11. The petitioner needed to set out his case with precision and show to this Court the nature of infringement of his constitutional rights. The pleadings of the petitioner, I dare say, reveals a case akin to the normal civil cases and not a constitutional petition. I also wish to add that the petitioner included in his written submissions, evidence not supported by the pleadings and the supporting affidavit. Such evidence will not be considered in this judgment.

12. It needs also to be noted that the petitioner failed to attach and bring to court, documents referred to in the written submissions such as, the letters dated September 20, 2016 and October 23, 2017 and minutes of the Students’ Disciplinary Committee (SDC).

13. Under Section 13(c) of the Kenyatta University Act (the Act), the University’s Council is required to provide for the welfare and discipline of students. That statutory mandate was what the respondent exercised when it summoned the petitioner to appear before the disciplinary committee. The respondent confirmed through the affidavit of Prof. Fatuma Chege, the respondent’s active Vice Chancellor that the petitioner was accorded an opportunity to defend himself. On being heard, the deponent further stated that the disciplinary committee recommended the discontinuation of the petitioner’s study at the respondent’s university. The respondent through its acting vice chancellor stated that the result of that hearing was communicated to the petitioner by a letter, which letter was not attached to the petitioner’s supporting affidavit filed in court. The petitioner was informed of his right to appeal that decision by a letter dated February 17, 2017, which letter yet again the petitioner failed to file in this Court. The respondent’s acting vice chancellor stated the petitioner’s appeal was heard by Students’ Disciplinary Appeals Committee on July 19, 2017 and on hearing of the appeal, discontinuation of the petitioner at the university was upheld.

14. The petitioner failed to prove what made the disciplinary hearings a travesty of fair administrative action. If what the petitioner seeks by such pleading is to invite this Court to reconsider the merits of the evidence tendered by the respondent at that hearing, this Court will immediately decline such invitation. Firstly, such invitation cannot be entertained because the evidence, the subject of the disciplinary hearing is not before this Court. I have mentioned here above that the petitioner either by design or by error failed to attach documents which are referred to in the parties’ submissions. Most importantly, the petitioner failed to attach the minutes of the SDC’s meeting. But even if the said documents were availed, the court cannot determine by this petition whether or not the petitioner tampered with the online record of grades. In this regard, I am supported by the holding of Justice Lenaola (as he then was) in the case Eliud Nyauma Omwoyo & 2 Othersvs. Kenyatta University (2014) eKLR thus:-“The Court should [not] be seen to be usurping the powers and functions of an appellate body. (The chairman of Senate) in that regard. In any event, is discrimination based on punishment a valid ground under the law? I do not think so and it is my view and I do hold that the Disciplinary Committee is empowered to conduct disciplinary proceedings and it is within its discretion to mete out any punishment it deems fit it in accordance with the University Statute. This Court will not proceed forth to dismiss their decision and direct them to adopt a certain decision.I therefore hold in conclusion that the Petitioners were not discriminated against.”...“I have also stated that this Court cannot turn itself into the proper body to determine whether the Petitioners are guilty of tampering with their online examination results or not. The Court does not have such a mandate and cannot assume the role conferred on the Respondent by Statute.”

15. The petitioner has also thrown constitutional provisos under Article 47 and right to fair hearing, Article 50 but failed to provide evidence in support of violation of those provisions. The petitioner indeed presented to this Court a hollow petition lacking in evidence in support of its allegations.

Disposition 16. There is no evidence at all before court of violation of the petitioner’s constitutional rights in the respondent’s decision to discontinue the petitioner at the university. It follows that the declaratory prayers sought must and do fail.

17. This Court is also in agreement with the court’s rendering on the claim for damages in a petition similar to this one in the case of Eliud Nyauma(supra) thus:-“I wish to adopt the holding of the Court in Pet No. 261 of 2011 (Consolidated with Pet No. 276 of 2011) (supra) whereby it was stated that;“An award of damages in circumstances such as this would send the message that even if one is found to have tampered with examination results or grades, he or she may well get monetary compensation if one is removed unprocedurally from the respondent’s graduation list. It would be against the public interest for students whose grades have been tampered with to either be permitted to graduate with such grades, or to be compensated in damages for removal from the graduation list… in the circumstances, though I do find that there was a violation of the right to be heard and of fair administrative action, and balancing the right of the petitioners to be heard against the greater public interest to ensure that students graduate from our institutions of higher learning with the grades that they deserve, and thus preserve the integrity of our tertiary education, I make no award of damages against the respondent.”I am in agreement and the reasoning above is crystal clear as to why an award of damages cannot be made in the circumstances of these Petitions.”

18. In conclusion, the petition is dismissed with costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16THDAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Petitioner : -For the Respondent :COURTJUDGMENT delivered virtually.MARY KASANGOJUDGE