https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11936

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO E351 OF 2025** **IN THE MATTER OF ARTICLES 3, 19, 20, 22, 23, 27, 28, 29, 35, 43, 47, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015** **AND** **IN THE MATTER IN THE MATTER OF THE ENFORCEMENT OF** **FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE BILL OF RIGHTS** **AND** **IN THE MATTER OF CONSTITUTIONAL INFRINGEMENTS AND VIOLATIONS** **OF THE PETITIONER’S RIGHTS BY THE KENYA METHODIST UNIVERSITY** **BETWEEN** **THOMAS OIRE OMBATI..................................................................PETITIONER** **AND** **KENYA METHODIST UNIVERSITY...................................................RESPONDENT** **J U D G M E N T** **Introduction** 1. The petition dated 10th June, 2025 and is supported by the petitioner’s affidavit in support of similar date and a further affidavit dated 20th January, 2026. 2. The Petitioner’s grievance is that the Respondents failed to provide a fair, transparent and accountable academic and examination process as well as fair administrative procedures, discriminating against him in violation of his inherent rights and freedoms. 3. He contends that the respondent’s actions are in direct violation of his constitutional rights and in breach of legitimate expectation. 4. He thus prays for the grant of the following reliefs: 5. ***A declaration that the Respondent has contravened, denied, violated, and infringed upon the Petitioner's rights and fundamental freedoms enshrined in the Constitution, including but not limited to Articles 19, 20, 27, 28, 35, 43, and 47 of the Constitution of Kenya.*** 6. ***A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's inherent rights and freedoms guaranteed under Article 19 of the Constitution of Kenya, by failing to uphold the dignity of the Petitioner and by undermining the enjoyment of his rights that are inalienable and not subject to arbitrary limitation.*** 7. ***A declaration that the Respondent has acted in breach of Article 20 of the Constitution by failing to respect and protect the Petitioner's rights and fundamental freedoms, and by limiting their enjoyment without lawful justification or adherence to constitutional safeguards.*** 8. ***A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's right to equal treatment under Article 27 of the Constitution of Kenya by discriminating against the Petitioner.*** 9. ***A declaration that the Respondent's acts and omissions, including the arbitrary exclusion of the Petitioner from classes, unequal treatment, and denial of academic information, violated the Petitioner's inherent dignity and contravened Article 28 of the Constitution of Kenya.*** 10. ***A declaration that the Respondent violated Article 35 of the Constitution by denying the Petitioner access to information necessary for the protection and enforcement of his fundamental rights, including academic records, examination criteria, and administrative decisions affecting his education.*** 11. ***A declaration that the Respondent violated the Petitioner's socio-economic rights under Article 43 of the Constitution, specifically his right to education, by subjecting him to arbitrary academic processes and withholding access to essential learning opportunities, thereby unjustly delaying the completion of his studies.*** 12. ***A declaration that the Respondent failed to provide written reasons for its adverse decisions against the Petitioner, in contravention of Article 47(2) of the Constitution and Section 4(2) of the Fair Administrative Action Act.*** 13. ***An order for general damages for violation of the Petitioner's rights.*** 14. ***An order for specific damages amounting to Kshs 10,721,000 which is broken down as follows:*** * *Fees paid for two of the repeated years Kshs.905,000.* * *Additional payment of rent, stationery and upkeep during the 40-month period Kshs.1,800,000.* * *Lost income that would have been earned by the Petitioner during the 40-month period of delay to graduate Kshs.8,016,000.* * *Costs of this Petition be awarded to the Petitioner.* * *Any other relief that the Court may deem fit and just to grant in the circumstances.* **Petitioner’s Case** 1. The petitioner deposed that he enrolled as a student at the Respondent’s institution in 2013 to pursue a six-year Bachelor of Medicine and Bachelor of Surgery degree programme and at the time of his admission, he was employed as a Senior Dental Technologist with Machakos County Government, who granted the Petitioner study leave with expectation that he would complete his studies in 2019. 2. Hedeposes that upon admission, to the Respondent University, he was issued with the Respondent's the Academic Handbook and Students Code of Conduct , which outlined the Respondent's guidelines, policies and procedures .The said Academic Handbook constituted a binding contract between the Petitioner and the Respondent as it established the rights and obligations of the parties and provided a framework for their interactions. 3. The Petitioner states that he progressed well with his studies until his 5th year of study, when he was informed that he had failed 3 units: Dermatology & STI, ENT and Orthopedics’ & Trauma and was required to sit for supplementary exams in these units and that he undertook the supplementary exams and upon receiving the results, he was informed that he had failed the Orthopedics & Trauma Unit again. 4. Dissatisfied with the outcome and believing that the result did not accurately reflect his performance. He requested for a remark under the Academic Handbook clause 5.6 which allowed a student who is dissatisfied with the marking in any examination to appeal to have such examination remarked under the following conditions Such an appeal may be made only once in respect of one paper to which the Respondent verbally declined the request for a remark on the basis that the exam was clinical in nature. The Petitioner insists the failure to reduce the decision to writing infringed his right of access to information and fair administrative action as guaranteed under Articles 35 and 47(2) of the Constitution as well as Section 4(2) of the Fair Administrative Action Act, 2015, depriving him of crucial evidence to present to his employer. 5. As a result, the Petitioners employer halted his salary and issued him with a show cause letter, which ultimately culminated in the termination of the Petitioners employment. 6. The Petitioner deposes that due to the Respondent's unjustified refusal to remark the Orthopedics and Trauma Unit, he was compelled to repeat the entire 5th year of study, which he completed successfully and subsequently advanced to the 6th year of study .However, the Dermatology & ST1 unit which was scheduled to be administered in the 5th year of study was irregularly deferred and conducted in the 6th year, contrary to the provisions of Clause 4.2(f) of the Academic Handbook in breach the provisions of the Academic Handbook and occasioned the Petitioner significant prejudice. 7. The Petitioner further deposes that, despite having registered for the Dermatology & STI unit, the said unit was conspicuously and inexplicably excluded from his teaching timetable in the 6th year of study, while other students were taught in all the units for which they had registered. That the Respondent's failure to offer classes and instruction in a unit that he had registered for resulted in unjustifiable differential treatment and academic discrimination, thereby violating the Petitioners right to equality and freedom from discrimination under Article 27 of the Constitution, as well as my right to education under Article 43(1)(f) of the Constitution of Kenya, 2010. 8. The Petitioner deposes that he sat for the final 6th year examinations despite not the lack of classes in Dermatology & STI and upon release of the results, he was informed that he had failed three units, namely, Dermatology & STI, Senior Clerkship in Pediatrics, and Senior Clerkship in Internal Medicine. As a result, the Respondent notified the Petitioner vide a letter dated 14th January 2021 that he was required to repeat the entire academic year on the basis that he had failed more than two clinical units. This frustrated the Petitioner who submitted a letter dated 3rd February 2021, requesting a review of the Respondent's decision on the grounds that: * 1. *The Dermatology & STI unit was assessed solely through an end-of-year theory examination alone, contrary to Sections 4.3 (b) and 5.1 of the Academic Handbook, which required all courses to be assessed through a combination of continuous assessment tests, end-of-year theory examinations and clinical examinations; and* 2. *The criteria applied to his 6th year examination results differed from that of his 5th year examination results, where under similar circumstances, he was only required to sit for supplementary examinations rather than be compelled to repeat the entire academic year.* 9. The Respondent responded vide a letter dated 29th March 2021 in which it declined the Petitioners request for review on the following grounds: 10. *In the end of year examinations in the 5th year, the Petitioner had failed 3 courses however only 1 of them was clinical based thus he was allowed to sit for the supplementary examination; and* 11. *In the end of year examinations in the 6th year, he had failed 4 courses out of which 3 were clinically based which constituted a 60% failure in the clinical courses.* 12. The Petitioner deposes that the Respondent's decision to decline his request for review was not lawful, reasonable and/or procedurally fair for refusal to address his query with respect to the Dermatology & STI unit and the Respondent indicated in the letter dated 29th March 2021 that he had failed 4 courses out of which 3 courses were clinically based, however, the 4th failed course remains unidentified to date. That the claim that the Petitioners failure constituted a 60% failure rate, the calculation was flawed as the Respondent arrived at this percentage by computing the three failed courses out of a total of five and not all the six courses examined (3/5=60%), with the Dermatology & STI unit being excluded in the total number of courses. Including the Dermatology & STI unit in the courses categorized as failures whilst simultaneously excluding it in the total number of courses examined constituted a mathematical error that led to a mathematical inconsistency; and the lack of clarity by the Respondent ,who claimed that he had failed 3 core courses in his 5th year examinations, and that only 1 of those 3 courses was a clinically- based unit, read Orthopedic & Trauma-which caused the repetition of the 5th year and now in the 6th year, the Respondent claimed that he had failed 4 courses out of which 3 were clinically based among them Dermatology & STI –a 5th year unit. The Petitioner states that it therefore follows that the ENT and Orthopedic &Trauma units were not clinically based and thus there was no justification in denying him a remark as the Orthopedics & Trauma course lacked a clinical component. 13. The Petitioner deposes that it is evident to that the Respondent's decision was based on an incorrect set of facts and computation of marks, which caused him repeat the entire 6th year of study. Yet again, despite having duly registered for the Dermatology & STI unit, it was conspicuously and inexplicably excluded from his teaching timetable, and no classes were offered to him. 14. The Petitioner deposes that he was barred from sitting for his final year examinations in time due to increased tuition fees arising from the Respondent's irregular and unjust referrals/repetition which caused the Petitioner and his family financial hardship in breach of the Petitioners right to fair administrative action under Article 47, right to education under Article 43(1)(1), and right to equal benefit protection of the law under Article 27(1) of the Constitution, and Article 28 of the Constitution, which guarantees right to dignity, by subjecting the Petitioner to repeated academic and financial hardships stemming from arbitrary and unreasonable administrative action. 15. The Petitioner ultimately completed his studies and graduated on 19th October 2024, however, the Respondent's persistent breaches of the Academic Handbook and violations of his constitutional rights-including the right to fair administrative action (Article 47), education (Article 43(1)(1)), human dignity (Article 28), equality and freedom from discrimination (Article 27), and access to information (Article 35)-have caused him to suffer considerable loss and damage which has guided the filing of this current petition. **Respondent’s Case** 1. In response, the respondents through the Legal Officer, **Njeri Mbugua** led a replying affidavit sworn on 13th August, 2025. 2. She deposed that the petitioner enrolled in the respondent in 2013 under registration number BMS-1-0792. That he proceeded well with his studies despite financial hardship here and there. She admitted the chronology of events concerning year 5 but differed on the reason for referral of the Petitioner stating that the reason the Petitioner was referred to repeat the said year was because of failure of the unit –Orthopedics & Traumatology which was practical in nature and could not be remarked, the MBCHB program dictated that a failure of supplementary exam would lead to referral and its therefore not true that it is the failure to provide written communication that led to his dismissal from work. She further quoted the suit between the Petitioner and its employer **ELRC CAUSE NO. 379 OF 2020-THOMAS OMBATI OIRE VS THE COUNTY GOVERNMENT OF MACHAKOS & PUBLIC SERVICE BOARD**, which shows admission by the Petitioner that he failed to demonstrate proof of ongoing studies, which led to his termination. 3. The Respondent deposed that the Petitioner himself admits to failing his 6th year exams and the Respondent is not to blame, stating further that the Dermatology & STI unit was a 5th year unit and hence could not be contained in the year 6 timetable, that it was upon the Respondent to trace and attend classes in year 5 for the unit. 4. The Respondent further states that the Petitioner deferred his 6th year examination before later resuming and the Respondent therefore has not violated any of the Petitioners rights as alleged ,that their actions were in accordance to the law and full compliance with the academic handbook and the petition ought to be dismissed for lack of merit. **Petitioner’s Submissions** 1. In the submissions dated 27th January,2026, Counsel for the petitioner, highlighted the issues for determination as: 2. *Whether the Academic Handbook constituted a binding contract between the Petitioner and the Respondent governing the academic, examination, and appeal processes and whether the Respondent’s departure from its provisions resulted in violation of the Petitioner’s constitutional rights?* 3. *Whether the Respondent violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act by arbitrarily refusing to remark the Petitioner’s failed supplementary examination?* 4. *Whether the Respondent violated Articles 47 and 35 of the Constitution and Section 4 of the Fair Administrative Action Act by failing and/or refusing to provide written reasons for adverse academic decisions affecting the Petitioner?* 5. *Whether the Respondent breached the Petitioner’s legitimate expectation by departing from its own assessment, examination, and academic progression procedures as set out in the Academic Handbook?* 6. *Whether the Respondent subjected the Petitioner to unequal and discriminatory treatment, including exclusion from teaching and inconsistent application of academic standards, in violation of Article 27 of the Constitution?* 7. *Whether the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution by compelling him to sit for examinations without instruction and by unjustifiably delaying the completion of his studies?* 8. *Whether the Petitioner suffered loss and damage as a result of the Respondent’s conduct, including loss of employment, delayed graduation, financial loss, and career stagnation?* 9. *Whether the Petitioner is entitled to the Orders sought in the Petition?* 10. The petitioner submitted on the first issue that the Academic Handbook constituted a binding contractual instrument that governed the academic relationship between the parties. In the present case, the Academic Handbook expressly governed: 11. methods of assessment (continuous assessment, theory and clinical examinations); 12. supplementary examinations; 13. remarking and appeal procedures; and 14. academic progression and circumstances warranting repetition of an academic year. 15. That the Petitioner complied with the Academic Handbook at all material times, including registering for units, sitting for examinations, and formally invoking the review and remarking procedures provided therein but the Respondent failed to adhere to it and hence, the Respondent’s departure from its own Academic Handbook did not only amount to breach of contract but resulted in arbitrary and procedurally unfair decision making, denial of access to information and discriminatory treatment, thereby violating the Petitioner’s constitutional rights. 16. On the second issue, the Petitioner submitted that the Respondent’s refusal to remark the Petitioner’s failed supplementary examination was an administrative action that adversely affected his academic progression. As such, it was required to meet the constitutional threshold of lawfulness, reasonableness, and procedural fairness under Article 47(1) of the Constitution and Section 4 of the Fair Administrative Action Act. 17. He submits that the action was unconstitutional and breached Section 4 of the Fair Administrative Actions Act as: 18. *it was made without a fair and transparent process for considering the request;* 19. *it was unreasonable and arbitrary, particularly given the severe academic consequences; and* 20. *it violated the Petitioner’s entitlement to administrative conduct consistent with the Respondent’s Academic Handbook as well as transparency and accountability, which are values that underpin Article 47 of the Constitution.* 21. The Petitioner insists there was no procedural fairness in the Respondent decisions and communication, citing ***University of Nairobi v Anyui (Civil Appeal 606 of 2019) [2021] KECA 112 (KLR) (22 October 2021).*** 22. On issue 3, the Petitioner submits that the Respondent’s adverse academic decisions constituted administrative actions within the meaning of Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, they were constitutionally required to be lawful, reasonable, and procedurally fair, and accompanied by written reasons where his rights are adversely affected hence the Respondent owed a duty to provide written reasons for adverse administrative action is a constitutional imperative, and not a discretionary courtesy. 23. That, by refusing and/or failing to provide the Petitioner with written reasons for declining the remark request and for other adverse academic determinations, the Respondent denied the Petitioner information necessary to understand, interrogate, and, where appropriate, even challenge those decisions. This conduct further violated the Petitioner’s right of access to information under Article 35 of the Constitution. 24. The Petitioner states that the Respondent has failed to discharge its evidentiary burden, having produced no documentary proof, such as evidence of service or acknowledgment by the Petitioner, demonstrating that the alleged written communication was ever received. In the absence of such proof, the Respondent’s allegation remains unsubstantiated and ought to be disregarded by this Honourable Court. 25. To buttress this point, he relied on ***Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR).*** 26. On whether the Respondent breached the Petitioners legitimate expectation, the Petitioner submits that he Respondent breached the doctrine of legitimate expectation by departing from its own published assessment, examination, remarking, and academic progression procedures as contained in the Academic Handbook, which had been communicated to and relied upon by the Petitioner ,stating that Kenyan Courts have recognized that where an institution sets out a process or mechanism by which decisions affecting rights will be made, a departure from that process undermines legitimate expectation and procedural fairness under Article 47 of the Constitution. 27. The Petitioner relied on the case of **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others (Petition No. 14 of 2014) [2014] eKLR** and **Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR,** and urges this Honourable Court to find and declare that the Respondent breached the Petitioner’s legitimate expectation. 28. On issue 5 Petitioner submits that excluding him from classes for his registered course while other students continued to receiving teaching amounted to differential treatment contrary to Article 27 of the Constitution. Further, the Respondent applied academic standards inconsistently and selectively to his detriment by: 29. *shifting the percentage thresholds and number of failed units to warrant repetition;* 30. *failing to disclose or apply a consistent formula for arriving at the alleged 60% threshold;* 31. *declining to produce the regulations governing referral or progression criteria; and* 32. *repeatedly altering the applicable standards without explanation.* 33. That excluding the Petitioner from classes whilst other students registered for the same unit continued to receive teaching, amounted to differential treatment which also affected his right to dignity. He relied on **Nyambura & 3 others v Independent Electoral and Boundaries Commission & 5 others [2025] KEHC 10457 (KLR) & Peter K. Waweru v Republic [2006] eKLR.** 34. On whether the Respondent violated the Petitioners right to education under Article 43 (1) (f), the Petitioner submits that the Respondent violated his constitutional right to education guaranteed under Article 43(1)(f) of the Constitution, by: 35. ***compelling him to sit for examinations without receiving instruction; and*** 36. ***unjustifiably delaying his academic progression and completion of studies through administrative inaction and inconsistent academic decisions,*** Hence undermining the Petitioner’s access to meaningful education, impaired academic progression, and unjustifiably delayed the completion of studies. The Petitioner therefore respectfully urges this Honourable Court to find and declare that the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution. 1. On whether the Petitioner suffered loss and damage, the Petitioner that the Respondent’s unlawful actions and omissions directly and foreseeably occasioned substantial loss and damage to the Petitioner, including loss of employment, delayed graduation, financial loss, and prolonged career stagnation. 2. The Petitioner submits that his delayed graduation deprived him of eligibility for employment, promotion, and professional advancement in a regulated profession where graduation and certification are mandatory prerequisites. He cited **Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR) (30 July 2021) (Judgment).** 3. He further cites **Jesse Waweru Wahome & 2 Others V Kenya Engineers Registration Board [2012] KEHC 1773 (KLR),** stating that delayed graduation is not a mere inconvenience. It has far reaching professional, financial, and psychological consequences. 4. The Petitioner submits that he incurred financial loss in the form of additional tuition fees, living expenses, transport, lost income, and opportunity Career Stagnation and Loss of Prospects, all which were occasioned by the Respondent’s conduct. 5. He therefore invites this court to allow the Petition as prayed ,because he has proven the violations pleaded and is entitled to damages. He cited **Mereka v Sikalieh (Petition E299 of 2022) [2025] KEHC 3467 (KLR) (Constitutional and Human Rights) (20 March 2025) (Judgment),** **Mboya v Kenyatta University (Petition E376 of 2022) [2024] KEHC 11853 (KLR) (Constitutional and Human Rights) (4 October 2024) (Judgment) & Lucas Omoto Wamari v Attorney General & another [2017] KECA 334 (KLR).** **Respondent’s Submissions** # The Respondent filed submissions dated 24th April, 2026 condensing the issues for determination as follows: # *Whether the Respondent violated the law?* # *Whether the Respondent contributed, in any way, to the delayed completion of studies and graduation of the Petitioner?* # *Whether the Respondent breached the Petitioner’s legitimate expectations?* # *Whether the Petitioner is entitled to the orders sought?* # The Respondent on the 1st issue largely re-produces the contents of the replying affidavit already highlighted above, it adds that during the 5th year the Petitioner failed three (3) courses one (1) of which was clinical based and the Petitioner was therefore allowed to sit for supplementary examination. During the 6th year, the Petitioner failed three (3) clinical based units and the Petitioner was therefore expected to discontinue however, the Respondent graciously allowed the Petitioner to refer the year in order for him to continue enjoying his right to education. # It is the Respondents submissions that in making the decision not to remark the Orthopedics and Traumatology unit and allow the Petitioner to repeat the 5th and 6 th years, it was guided by the law, rules and regulations that govern it specifically its Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, therefore they violated no law. # On the second issue, the Respondent submits that after enrolment, the Petitioner failed core units and as required by clause 4.2 of the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, the Petitioner repeated years 5 and 6 of his studies, he also applied to defer his studies for a year in between , it is the Respondent’s submissions that the delayed completions of studies by the Petitioner for a period of the alleged 40 months was occasioned by the Petitioner himself on account of either a repeated year for failing core units and/or a defer requested by the Petitioner. # On legitimate expectations ,the Respondent cites the case of Kenya Revenue Authority & another v Republic (Ex parte) Kenya Nut Company Limited [2020] eKLR, which states as follows; # *“It has long been established that legitimate expectation can only operate within the law and it can only be relied on when the law has been complied with.”* # The Respondent therefore submits that the legitimate expectation in this case is that all decisions that relate to the Petitioner would be made pursuant to the rules and regulations in the Academic Handbook and Students Code of Conduct, the Bachelor of Medicine and Bachelor of Surgery Curriculum and the applicable law, citing clause 4.2 of the Academic Handbook and Students Code of Conduct. # That the Petitioner failed critical practical units in year for which could not be remarked and hence occasioned his referral, that the Honourable Court should take judicial notice of the nature of practical examinations and that therefore, there was no legitimate expectation created that the Petitioner would be exempted from the application of the rules and regulations in the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery Curriculum. # The Respondent submits that it wholly complied with the clear and relevant provisions of the law and applied the law in totality in declining a request to remark a supplementary examination and requesting the Petitioner repeat year 5 and 6 of his studies. # On whether the Petitioner is entitled to the orders sought, the Respondent submitted as follows: # On whether the Respondent violated the right to access to information in article 35 of the Constitution of Kenya, the Respondent submits that the Petitioner’s concern on remarks of the failed supplementary unit was addressed in a letter dated 4th December 2018 where he was informed that the MEDC 507 Orthopedics & Traumatology being a practical examination could not be remarked and MBCHB Curriculum requires that where one fails a supplementary, they repeat the whole year and that all requests made by the Petitioner were responded to in written specifically in letters dated 4th December 2018, 14th January 2021, 29th March 2021 and 13th August 2021 which were supplied to the Petitioner in hardcopies, that the Petitioners allegations that he has never had sight of the letter dated 4th December 2018 but acknowledges letters dated 14th January 2021, 29th March 2021 and 13th August 2021 that were served in the same manner. One cannot pick and choose which served documents to acknowledge especially when the documents denied do not favor the Petitioner’s case. The piecemeal acceptance of documents served in the same manner confirms malice on the part of the Petitioner. # The Respondent submits that the Petitioner had in his custody other correspondences between himself and the Respondent which he could have supplied to his employer to proof that he was still a student with the Respondent and the allegations that it was only a response to the request for remark that could have been presented to the employer to protect his rights is baseless and misconceived, the Respondent therefore states that they did not violate the Petitioners rights to information as alleged. # On whether the Respondent was in breach of the economic and social rights provided under article 43 of the Constitution of Kenya, specifically the right to education; the Respondent submits that it is also trite law that the right to education is not absolute but is subject to the rules and regulations governing studies/education in a given institution as held in the case of H O O(*a child suing through his father and next friend*) P O O v Board of Management N School & 2 others [2018] eKLR , RM (*Suing Through his Mother and Next Friend JCM)* v Jackson & another [2023] KEHC 20823 (KLR) and H O O (*a child suing through his father and next friend)* P O O v Board of Management N School & 2 others . # The Respondent submits that in order for one to enjoy the right to education there is a duty on their part, in this case the Petitioner, to pay school fees, attend classes as per the timetable provided each semester of the academic year and ensure that he has passed the units to enable him progress to the next level of studies and since the Petitioner was found guilty of breaching clause 4.2 of the Academic Handbook and Students Code of Conduct and the MBCHB Curriculum by failing to pass the core units in his 5th and 6th years of studies and he was therefore required to repeat the said years. That it was therefore justified and in accordance with the law, rules and regulations to allow the Petitioner to repeat the 5th and 6th years of studies and/or sit for supplementary in the affected units which led to delayed graduation and that does not amount to denial and/or violation of his right to education. # The Respondent therefore submits that the Petitioner who violated his own right to education by failing to pass the requisite academic units per year and/or attend the classes when offered by the Respondent. # On whether the Respondent violated the right to a fair administrative action under Article 47 of the Constitution of Kenya; the Respondent avers that the allegations that the Petitioner was not provided with timely and written reasons for declining to remark the Orthopedics & Trauma Unit having failed the supplementary and further, that in requiring the Petitioner to repeat his 5th and 6th year, the Respondent infringed the Petitioner’s right to a fair administrative action are unfounded. # The Respondent avers that NM-7 in the Respondent’s Replying Affidavit dated 13th August 2025, vide a letter dated 4th December 2018, the Petitioner was provided with written reasons for the decision of the Respondent in that the Orthopedics & Trauma Unit is a practical unit and cannot be remarked. In addition, the MBCHB Curriculum provides that if one fails a supplementary unit, they must repeat the year. In making the decision not to remark the supplementary examination and require the Petitioner to repeat the 5th and 6th year, the Respondent was guided by and fairly applied the provisions of the Academic Handbook & Student Code of Conduct and the MBCHB Curriculum and the substantive justice was therefore served upon the Petitioner. # The respondent submits that there was no unfairness in the handling of the Petitioners affairs and the Respondent only followed laid down rules and regulations. # On whether the Respondent violated the right to equality and freedom from discrimination under Article 27 of the Constitution of Kenya; the Respondent cited the case of Barclays Bank of Kenya LTD & Another versus Gladys Muthoni & 20 Others [2018] eKLR, stating that the issue to be determined by court was whether there was a “distinction” or “different treatment” or “prejudicial treatment” between the Petitioner and other students of the Respondent. # The Respondent states that the Petitioner alleged that the Dermatology & STI Unit was excluded from his teaching timetable whilst simultaneously classes were being offered to other students in all the registered units which constituted differential treatment and academic discrimination. It is the Respondent’s submissions that a student’s timetable is generated from the units that the said student has registered in the student’s portal. In addition, it is the responsibility of the student to ensure that he has paid fees, registered for the units and attended classes as per the timetable that is provided for each semester in a given academic year and that the Petitioner has not provided any evidence to support these allegations, he has failed to call a fellow student who was treated differently as a witness. # It is the Respondent’s submissions that given that Dermatology & STI Unit is a 5th year unit taught to the 5th year students, any student including the Petitioner who registers for the said unit during his 6th year of studies is required to attend classes of the Dermatology & STI Unit when they are being offered to the 5th year students. Further, that a unit cannot be offered to the Petitioner alone just because he had registered for the same during his 6th year of study. # On whether the Respondent violated the right to Human Dignity under article 28 of the Constitution of Kenya; it’s the Respondents assertion that the Petitioner was aware of the rules and regulations applicable during his studies with the Respondent. The said rules and regulations were applied fairly on all students, that where a claim for violation of the right to human dignity has been alleged, there must be proof that any related rights have been violated. In the instance case, the Petitioner’s rights have not been violated in any way and the Petitioner’s claim for violation of his right to human dignity is not merited. # Whether the Respondent has violated rights and fundamental freedom and the application of the Bill of rights under articles 19 and 20 of the Constitution of Kenya; the Respondent states that it has a fair, transparent and accountable academic and examination process provided in the Academic Handbook & Student Code of Conduct and the MBCHB Curriculum which are applied to all students in line with articles 27 and 43 of the Constitution of Kenya and in making decisions that relate to the Petitioner, the Respondent was guided by the applicable laws, rules and regulations. Further, the Respondent provided timeous written reasons for all its decisions are required under article 35, 43 and 47 of the Constitution of Kenya and there was no infringement of his rights and fundamental freedoms. # On general damages it is the Respondent’s submission that there has not been any wrong doing on their part/or violation of the Petitioner’s rights , that the Petitioner either failed to perform his duties in order for him to enjoy his rights and/or violated his own rights and there is therefore no need to compensate the Plaintiff by an award for general damages. # On special damages, the Respondent submits that the halting of the Petitioner’s salary and ultimate termination of employment by the Machakos County Government was occasioned by absence from work on the part of the Petitioner and not failure to provide documents on the part of the Respondent. The Respondent submits that the Petitioner is therefore not entitled to the loss of income claimed in the Petition. # On Payment of school fees is a duty on the part of every learner in any learning institution. School fees is payable for every year that the learner was in school and he/she attended the learning session irrespective of whether or not, the said year is a first attempt or repeated. Since the Petitioner failed core units during his 5th and 6th Year and was therefore required to repeat the said years as provided by the Academic Handbook & Student Code of Conduct and the MBCHB Curriculum. During the years repeated, the Petitioner attended classes and payment of school fees was therefore a lawful and regular requirement and inevitable. The Petitioner cannot therefore claim a refund when he attended classes during the said years. # The claim for additional payment of rent, stationery and upkeep during the 40-month period of Kshs.1,800,000. It is the Respondent’s submissions that all students who are enrolled in the said institution makes personally arrangement on accommodation and incur costs on any stationery they may need and upkeep needed during the period of learning and it wasn’t the Respondents responsibility. # The Respondent submits that there is no shred of evidence before this Court in support of the claim for stationery and/or upkeep. In addition, the Petitioner repeated years 5 and 6 of his studies as required by the Academic Handbook & Student Code of Conduct and the MBCHB Curriculum for failing core units in the curriculum. The referral of the said years was occasioned by failure on the part of the Petitioner and not the Respondent and the Petitioner therefore has no one but himself to blame for the additional costs, if any. # The Respondent therefore submits that the prayer for special damages fails. # In conclusion, the Respondent submits that the Petitioner failed in his duty of attending classes and ensuring that he attains the pass mark in all the examinations taken and the Respondent proceeded to apply the Academic Handbook & Student Code of Conduct and the MBCHB Curriculum in making decision relating to the Petitioner and the said decision were regular and proper, the Respondent therefore submits that it did not infringe the Petitioner’s constitutional rights and the issues in the Petition have not been proven to the requisite standard on constitutional violations. The Respondent prays that the Court dismiss the Petition with costs. # Analysis and Determination 1. It is my considered view that the issues that arise for determination in this matter are: 1. ***Whether the Petition meets the threshold of a Constitutional Petition, and, if so, whether the respondent violated the petitioner’s rights under Articles 19, 20, 22, 23, 27, 28, 29, 35, 43, 47, 258 and 259 of the Constitution.*** 2. ***Whether the respondent violated the petitioner’s right to a legitimate expectation.*** 3. ***Whether the petitioner is entitled to the reliefs sought.*** 2. The petitioner claims that his rights to education, human dignity, access to information, fair administrative action and against discrimination were violated. To determine whether the alleged rights were violated or upheld, it is necessary to consider each of the rights individually. 3. ***The right to freedom from discrimination*** 4. This right is envisaged under Article 27 of the Constitution. The relevant sub-articles as referenced by the petitioner read as follows: *“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.* *(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.* *(3) …* *(4) …* *(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).”* 1. The Constitutional Court of South Africa discoursing on this right in the case of **Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5** opined as follows: ***“17. If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by means of resort to section 33, or else constituted discrimination which had to be shown not to be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct. As Hogg puts it:*** ***“What is meant by a guarantee of equality? It cannot mean that the law must treat everyone equally. The Criminal Code imposes punishments on persons convicted of criminal offences; no similar burdens are imposed on the innocent. Education Acts require children to attend school; no similar obligation is imposed on adults. Manufacturers of food and drugs are subject to more stringent regulations than the manufacturers of automobile parts. The legal profession is regulated differently from the accounting profession. The Wills Act prescribes a different distribution of the property of a person who dies leaving a will from that of a person who dies leaving no will. The Income Tax Act imposes a higher rate of tax on those with high incomes than on those with low incomes. Indeed, every statute or regulation employs classifications of one kind or another for the imposition of burdens or the grant of benefits. Laws never provide the same treatment for everyone”*** 1. The Court went further to state that: # *“At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”* 1. Similarly, the Supreme Court of Kenya in the case of **Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) [22 October 2021] (Judgment)** expounded and guided on this right in the following way: # *[51] In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the superior courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.”* 1. The Court went on further to observe that: ***[50] In equal measure, we adopt the definition of discrimination in the High Court case of Peter K. Waweru v Republic [2006] eKLR as follows:*** # *“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.* # *Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex .... a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”* 1. The test for determining whether the petitioner’s claim on discrimination will be successful involves showing that there was a nexus between the negative treatments he experienced as against fellow students. Further that the discrimination was without any objective and reasonable justification. On that, the petitioner submits that he was the only one whose 6th year timetable did not indicate the failed unit, Dermatology and STI. 2. A perusal of the pleadings does not show evidence of this, of other student’s different timetables and or witness testimony of any student who received treatment that was different from that of the petitioner. There is no factual or documentary evidence attached to support the claim of discrimination as against his fellow students. 3. My understanding of the petition is that, the unit Dermatology and STI is a 5th year unit, after the Petitioner repeated his 5th year, he again failed the said unit ,which he now had to sit for as a supplementary unit while on his 6th year of study. It would then follow that there is no way a 5th year unit could be listed in his 6th year timetable and the Petitioner’s argument fails. All he had to do was register for the supplementary examination in the year it was offered, and sit for exams as such. 4. In this case, I do not find the petitioner to have properly and with the required precision demonstrated how he was discriminated against. He merely quoted the discrimination clause but failed to explain with detail the facts upon which grounds for discrimination would have become discernable to the Court in this analysis. I find this alleged violation under Article 27 (1), (2) & (5) of the Constitution not proved. 5. ***Right to education*** 6. This right falls under the economic and social rights accorded under the Constitution in Article 43. The specific provision provides as follows: *“(1) Every person has the right--* *(a) ….* *(b)…* *(c)…* *(d)…* *(e) …* *(f) to education.”* 1. In analyzing this right as envisaged under Article 43(1) (f) of the Constitution, the Court in the case of **Joseph Njuguna & 28 others v George Gitau T/A Emmaus School & another [2016] eKLR** adopted the following view: ***“39. It is key to observe that this right is placed on the State such that, where the State does not have resources to implement a right under Article 43, the State has to either show that it does not have the resources or it will give priority to ensuring the widest possible enjoyment of the right to prevailing circumstances, including the vulnerability of particular groups or individuals. The provision under the Bill of Rights applies to all law and binds all State organs and all persons….*** ***41. Mumbi Ngugi J., while addressing the right to education and the place of private schools in the case of J.K (Suing on Behalf of CK) v Board of Directors of R School & another [2014] e KLR, observed that:*** ***“It is indeed correct that Article 43 guarantees to everyone the right to education. The constitutional responsibility is placed on the state to achieve the progressive realization of the rights set out in Article 43. However, there is no obligation placed on a private entity such as the respondent school to provide such right;”….*** ***43. I further wish to state that, the services offered by a private entity are akin to a contract, where each of the parties has an obligation. The private school in fulfilling its obligation has to ensure that it provides proper and a conducive learning environment. The parents or guardians have to ensure that they pay the requisite fee so that the child is offered the services rendered in the private school. A private school cannot be equated to a public school, where free tuition is offered and charges can only be imposed with the approval of the Cabinet Secretary.”*** 1. The court in the case of **MMM v Permanent Secretary, Ministry of Education & 2 others [2013] eKLR** referred to the rights provided for in Article 43 of the Constitution. This is also articulated in Article 20 (5) of the Constitution which clearly sets out the principles for guidance. In both Articles 20 (5) and 21 (2) of the Constitution it is illustrated how the State has a duty to ensure the progressive realization of the rights guaranteed under Article 43 and as far as this case is concerned Article 43 (1) (f). 2. Taking into consideration the pronouncement in the cited cases and the context of the alleged violation, I find that, since the Respondent is a private school, it was accordingly impossible for the respondent to violate the petitioner’s right under Article 43 (1) (f) since availability of this right is borne by the State not learning institutions. As such it is my view that the respondent did not violate the petitioner’s right under Article 43 (1) (f) of the Constitution. 3. The right to education has also been determined by several courts as being not absolute. In **I.K. & Another v. Principal M Academy & another (2015) eKLR**the Court addressed itself as follows:- **“The right to education is not absolute when a parent takes his child to learn in a private school which is managed through the school fees paid for the students. Such an institution cannot run effectively and efficiently if parents do not meet their parental obligations of paying school fees for their children.”** 1. The court further observes that the respondent as an institution of higher education and training did indeed provide the required education in Medicine and Surgery as contracted by the petitioner. However, the petitioner was unable to complete his course work with the respondent in the prescribed 6 years of study because of financial issues, deferment and repetition. In fact, it is undisputed that when he cleared his school fees and repeated the classes failed, he graduated and currently holds a Bachelor’s Degree in Medicine and Surgery from the Respondent. There was therefore no violation of his right to education. 2. ***Right to a fair administrative action*** 3. Article 47 of the Constitution of Kenya 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 be adversely affected by administrative action, the person has the right to be given written reasons for the action.”* 1. Additionally Section 4 (1) & (2) of the Fair Administrative Action Act, 2015 has provisions similar to Article 47 (1) and (2). Section 4 (3) and (4) of the Act provides: *(3) Where an administrative 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 representations 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 or where applicable; or* *(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.* *(4) The administrator shall accord the person against whom administrative action is taken an opportunity to—* *(a) attend proceedings, in person or in the company of an expert of his choice;* *(b) be heard;* *(c) cross-examine persons who give adverse evidence against him; and* *(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.* 1. Section 7 (2) of the Fair Administrative Action Act, 2015 further provides for grounds of review by the Court which include *bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power.* The prominence of fair administrative action as a constitutional right was appreciated in the South African Constitutional Court in the case of **President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1**, at paragraphs135 -136 it was held as follows: ***“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”*** 1. Taking this into consideration, this Court is accordingly only required to conduct a procedural review of the respondent’s administrative decision in accordance with the set principles. There is no dispute that the petitioner was a student at the respondent’s institution. 2. The Petitioner submitted that the Respondent’s refusal to remark the Petitioner’s failed supplementary examination was an administrative action that adversely affected his academic progression which were against Article 47 of the Constitution as well as the Fair Administrative Actions Act whilst the Respondent stated they were bound by the provisions of the MCHB Curriculum as well as the Academic handbook and ensured fairness when handling the Petitioner herein. 3. Universities in Kenya are vested with statutory academic autonomy which is both substantive and purposive. It is the legal and functional space within which institutions of higher learning design curricula, prescribe assessment criteria, evaluate performance and determine whether a learner has attained the requisite competence to be certified. ***Section 20 of the Universities Act*** recognizes this autonomy, subject only to the overarching regulatory oversight of the Commission for University Education. 4. Courts have upheld that this autonomy must be respected, particularly in matters touching on academic judgment, unless a clear case of illegality, irrationality or procedural impropriety is established. 5. In the case of **Oluoch Dan Owino & 3 others v Kenyatta University [2014] KEHC 8577 (KLR),** the Court emphasized that: ***“Universities have the right to set and enforce their own academic rules and that a student must comply with those rules. The Court stated: “…an educational institution has the right to set certain rules and regulations, and those who wish to study in that institution must comply with its 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.”*** 1. The reasoning applies with even greater force to medical training, where assessment standards are not merely academic but are intertwined with public health and safety. 2. The court in **Harry v University of Nairobi & another; Commission for University Education (Interested Party) (Constitutional Petition E022 of 2025) [2025] KEHC 18993 (KLR),** observed, ***“Medical education, by its very nature, places a premium on clinical competence. Clinical and practical components are designed to test not theoretical recall, but applied skill, judgment, ethical conduct and patient safety. A regulatory regime that treats failure in clinical or practical assessment as failure of the entire unit is neither novel nor arbitrary. It reflects a pedagogical judgment that a medical graduate who cannot demonstrate minimum clinical competence cannot safely progress or be certified.”*** 1. In the case of **Daniel Ingida Aluvaala & Another v Council of Legal Education & Another [2017] KEHC 2775 (KLR),** the Court stated: “***Power to maintain standards in the course of studies confers authority not merely to prescribe minimum qualification for admission, courses of study, and minimum attendance at an institution which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners’ assessment at the final examination.”*** 1. This court is in agreement with the above persuasive decisions. The Petitioner has also failed to show how the Academic handbook or MBCHB regulations offend the Constitution. It is not in dispute that the Petitioner failed in some units or classes and that when he actually repeated, he managed to pass and graduate or that the Petitioner applied for re-marking and verification of his results and that the request was granted. The outcome of that process was formally communicated to him. The University explained, with some detail, that clinical and practical examination cannot be remarked and can only be referred. 2. Upon careful review of the record, it is evident that the Petitioner was accorded access to the remarking process, was provided with reasons for the decision reached by the school and, received all communication of decisions. These steps demonstrate that the principles of procedural fairness, as contemplated in our jurisprudence, were substantially observed. 3. In the case of **Dry Associates Ltd v Capital Markets Authority [2012] eKLR,** the Court emphasized that the concept of procedural fairness is inherently contextual and must be applied with practical realism. The Court observed as follows: “***Fairness, however, does not necessarily require a plurality of hearings or representations and counter‑representations. If there were too much elaboration of procedural safeguards nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too easily sacrificed.”*** 1. The Petitioner’s dissatisfaction with the outcome of the re-marking process, without more, does not translate into illegality or unfairness and therefore, I find that the Respondent did not violate the Petitioner’s right to fair administrative action. 2. ***Right to human dignity*** 3. The Petitioner submitted that the Respondent’s arbitrary actions including failure to provide written communication as well as disregard for procedural fairness subjected him to humiliation thereby violating his right to human dignity. The Respondent on the other hand, attached all the communication which mirrors the attachments provided by the Petitioner and submitted that there was proper communication. 4. Article 25 of the Constitution protects against torture, cruel and inhuman as well as degrading treatment. The petitioner has not tabled proof of harassment, humiliation, cruelty and reputational harm by the Respondent. 5. The court in **Harry v University of Nairobi & another; Commission for University Education (Interested Party) (Constitutional Petition E022 of 2025) [2025] KEHC 18993 (KLR) (supra)** noted “***The Petitioner also alleged that the University’s conduct amounted to psychological torture or inhuman treatment, invoking Articles 28 and 29(d) of the Constitution. It is imperative to note, however, that the Constitution protects against deliberate infliction of suffering, cruelty or degrading treatment. My view is that distress arising from academic failure, while regrettable and capable of causing emotional discomfort, does not constitute the severe, deliberate or systemic infliction of suffering contemplated under these constitutional provisions. There was no evidence before the Court to suggest that any officer of the University acted with deliberate intent to cause suffering or humiliation or that the procedures were administered in a manner intended to degrade or traumatize the Petitioner.”*** 1. This court finds similarly. ***Whether the respondent violated the petitioner’s right to a legitimate expectation.*** 1. The Petitioner argues that he had a legitimate expectation that the Respondent would apply a uniform and standard academic assessment policy to him and their arbitrary and discriminative nature infringed upon his legitimate expectations. It is therefore urged that the respondent did not follow due process. 2. In the case of **Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR;** the court held as follows:- ***“18. The requirements for the existence of such an expectation in South African law (whose legislation is similar to ours) were restated in****National Director of Public Prosecutions v Philips****.*** ***These include: -*** 1. ***that there must be a representation which is “clear, unambiguous and devoid of relevant qualification”,*** 2. ***that the expectation must be reasonable in the sense that a reasonable person would act upon it,*** 3. ***that the expectation must have been induced by the decision-maker and*** 4. ***that it must have been lawful for the decision-maker to make such representation.*** ***If such an expectation exists it will be incumbent on the administrator to respect it and afford the individual holding that expectation due procedure before the expectation is disappointed. Failing such procedure, the individual may approach a court to review the administrator’s actions on the ground of procedural unfairness. If the court finds that a legitimate expectation did in fact exist, it will ordinarily invalidate the administrative action and refer the matter back to the decision-maker to deal with it in a procedurally fair manner.”*** 1. In the case of ***Royal Media Services Limited vs. Attorney General & 8 others Nairobi CA No. 4 of 2014 (2014) eKLR***it was held that; ***“for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either*** 1. ***he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do and until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or*** 2. ***(ii) he has received assurance form the decision maker that they will not be withdrawn without giving him first an opportunity to advancing reasons for contending that they should not be withdrawn.”*** 3. The Petitioner has not proved that there was any representation made by the Respondent to the effect that he would be allowed to move onto the next class without passing its examinations or that re-marks would be allowed on clinical units without following the due process laid down by the Respondent. The Petitioner’s expectation to graduate was inherently contingent upon fulfilling the prescribed academic requirements, including passing all core and clinical units. There can be no legitimate expectation to graduate where statutory or regulatory conditions for graduation have not been satisfied. A student cannot acquire a right to graduation in the absence of compliance with the academic regulations and requirements set by the University, which are binding and enforceable. **Whether petitioner is entitled to the orders sought?** 1. The Petitioner in his Petition has failed to demonstrate what constitutional rights and fundamental freedoms the Respondent has violated; how and in what manner. The issues raised in the petition revolve around a contract entered into between the Petitioner and the school. It is clear that the Petitioner failed to satisfy core requirements with the Respondent, which led to his deferral and hence more finances. When he adhered to or satisfied the requirements, he was allowed to graduate. 2. I find and hold that if this court were to allow the Petitioner and any other student/former student to fail to carry out their obligations as per parties’ contractual agreement, that will be tantamount to exposing the Respondent’s school to unscrupulous students who are unwilling meet their contractual obligations with the Respondent or other institutions. 3. The upshot is that the Petition lacks merit and I proceed to dismiss the same. 4. Given the nature of the relationship between parties, each party to *bear its own costs.* ***Dated, signed and delivered at Nairobi this 30th day of July 2026.*** **DAVID MBURU** **JUDGE**