[2017] KEHC 1615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO 54 OF 2017

IN THE MATTER OF ARTICLES 22, 23 & 165 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF AN ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS

UNDER ARTICLES 28, 36, 43, 47, 50 & 55 OF THE CONSTITUTION OF KENYA.

IN THE MATTER OF ALLEGED VIOLATION AND INFRINGEMENT

OF THE RIGHTSANDFREEDOMS IN ARTICLES 20 (1), 22 (1),

27, 47,50(2) & 53 OF THE CONSTITUTION OF KENYA

BETWEEN

OMONDI MICHAEL HAYA............................................................1STPETITIONER

BARASA OKUMU PETER EMMANUEL...................................2ND PETITIONER

OBWORA NOEL...........................................................................3RDPETITIONER

WAMBAI WILLIAM OCHIENG.....................................................4TH PETITIONER

CLIFF NYARIKI NYAMWEYA.......................................................5TH PETITIONER

VERSUS

UNIVERSITY OF NAIROBI.............................................................RESPONDENT

JUDGMENT

Introduction

1. The disciplinary power of a university is quite often derived from the Act by which the university was established, or the statute from which it derives its authority. It is common for the "primary" statute to empower the university Council or some other body to make disciplinary rules or Regulations. Thus, the University of Nairobi Regulations governing the conduct and Discipline of Students provides for inter alia general conduct of students. A student of the University is subject to the disciplinary provisions prescribed in the Regulations. Also, at the time of admission, a Student executes a Bond binding himself/herself to observe the rules and Regulations governing the conduct of the Student while at the University.

Petitioners case

2. The Petitioners aver that the Law Student's Association resolved to collect funds from all Universities in Kenya to file and prosecute a Petition to challenge the introduction of pre-bar examinations. Consequently, the second to fifth Petitioners approached fellow students to make voluntary contributions towards the said cause.

3. However, on 9th March 2016, the Petitioner's received letters of suspension from the Respondent's Vice Chancellor citing grounds that on 14th September 2015, they had put up a desk labelled "Registration at the Parking lot of School of Law, Parklands Campus, used two forms labelled Law Students Society of Kenya and Advocates Mentorship Programme respectively to collect Ksh. 200 from the first years for each form, and threatened first years to pay the money which totalled to Ksh. 400 failure to which they would not get rooms in the school.

4. On 25th April 2016, the Petitioners were served with charge sheets containing four counts:- (i) failure to respect and adhere strictly to the administrative and academic procedures established by the University of Nairobi Charter 2013 for the control, governance and operations of the University contrary to Part 111 (a) (i) of the rules governing the conduct and discipline of students; (ii) failure to respect the rights and privileges of members of the University Community contrary to Part 111 (a) (ii) of the rules, (iii) failure to refrain from any conduct that might bring the University or any section or programme thereof in disrepute or public odium contrary to Part 111 (a) (iii) of the rules, and failure to carry themselves in all public places and with such humility and dignity.

5. The Petitioners underwent the disciplinary proceedings, but the disciplinary committee determined that they be expelled. The decision was upheld by the Senate Appeals Committee. The Petitioners now challenge the decision on grounds that it violated their human dignity, freedom of association, fair trial, fair administrative action and right to education and employment, hence the declarations sought in the Petition.

Respondents Response to the petition

6. On record is the Replying Affidavit of Professor Henry W. Mutoro, the Respondents' Acting Deputy Vice-Chancellor, Student Affairs. He denies the allegations of violation of Constitutional rights, and avers that the process leading to the expulsion was lawful, and that the Petitioner's were found guilty of illegally collecting money from the first year students at the School of Law, Parklands, Nairobi Campus.

7. The particulars are that the Petitioners put up a desk labelled "Registration" at the parking lot of the School of Law, where they used two forms labelled "Law Students Mentorship Program" to collect Ksh. 200/= from first year students, and threatened first year students to pay the money which totalled to Ksh. 400/= failure to which they would not be allocated rooms in the school. He states that he matter was reported to the campus administration and the forms were seized by security officers.

8. Further, he states that the Petitioners represented to the new students that the contributions were mandatory. Annexed to the affidavit is a statement by a one Odhiambo Vincent Otieno stating that the chairperson of the Law Students Society distanced herself from the alleged exercise.

9. He further avers that the Petitioners were furnished with details of the charges against them, they were subjected to the disciplinary proceedings, they were granted an opportunity to defend themselves, and that they appealed against the decision but the Senate Student Disciplinary Committee upheld the decision.

10. He also states that the conduct in question was despicable and criminal in nature and unexpected of aspiring lawyers and that it is necessary to remove those found to engage in such activities in order to maintain law and order. He annexed copies of the bond signed by each petitioner, the charge sheet, minutes and suspension letters.

Petitioners advocates submissions

11. Counsels for the Petitioners cited inordinate delay in prosecuting the Petitioners which they submitted is a violation of Article 47 of the Constitution, which requires administrative action to be expeditious,[1] and that the decision was inspired by bad faith and was undertaken in blatant breach of procedural fairness or natural justice.[2]It was also submitted that a crucial witness was not called hence, denying the Petitioners the opportunity to challenge the evidence.[3]

12. Counsels also submitted that the decision was ultra vires and did not receive the requisite approval by the Senate Students Disciplinary Committee[4]and that the committee was not properly constituted.[5] Counsels also cited violation of the Petitioners right to dignity, association, education and their development as youth.[6]

Respondents' Advocates submissions

13. The Respondents Counsel submitted that the Petitioners actions were despicable, criminal and warranted the discplinary proceedings, that the proceedings were fair, that the Petitioners collected money without authorization from the University contrary to Part 111 (a) of the Respondents' Regulations,[7]and that they engaged in criminal activities which amounted to obtaining money by false pretences and singled out the document labelled 'Advocate Mentorship Programme Registration" which was not explained nor was it authorized.

14. Counsel submitted that all the Petitioners admitted before the College Disciplinary Committee that the monies were collected without authorization from the Respondent and insisted that the Disciplinary Proceedings were properly and fairly conducted, that the Petitioners were notified of the offences in writing, that all of them presented themselves for hearing, and all admitted collecting the said funds without authorization and upon due consideration all were found guilty as charged, and that the Disciplinary Committee met all the reasonably required standards[8] and maintained that the Petitioners are not entitled to the reliefs sought.

The issues

15. From the above opposing positions taken by the parties, the core issue that falls for determination is whether or not the Petitioners have demonstrated a case to warrant the court to grant the orders sought.

Analysis of the law and authorities

16. Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.[9]Further there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action.[10] The issue that inevitably follows is whether or not the manner in which the Respondent conducted the proceedings amounted to breach of the rules of natural justice.

17. The concept and doctrine of Principles of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. It has by now assumed the importance of being, so to say, "an essential inbuilt component" of the mechanism, through which decision making process passes, in the matters touching the rights and liberty of the people. It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative; order or action, adversely affecting the substantive rights of the individuals.

18. In Local Government Board vs. Arlidge,[11] Viscount Haldane observed, "...those whose duty it is to decide must act Judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice."As early 1906, the Judicial Committee[12] observed that the principle should apply to every tribunal having authority to adjudicate upon matters involving civil consequences.

19. In India, the principle is prevalent from the ancient times.[13] In this context, para 43 of the judgment of the Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner,[14] may be usefully quoted:-

“Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognized from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam-and of Kautllya's Arthashastra-the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

20. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not. De Smith, in his Judicial Review of Administrative Action,[15] observed, "Where a statute authorizes interference with properties or other rights and is silent on the question of hearing, the courts would apply rule of universal application and founded on principles of natural justice."Wade in Administrative Law[16] says that principles of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power.

21. Natural justice has been described as “fair play in action the principles and procedures which in any particular situation or set of circumstances are right and just and fair.”[17]Its rules have been traditionally divided into two parts: Audi alteram partem– the duty to give persons affected by a decision a reasonable opportunity to present their case. Nemo judex in cau sa sua debet esse– the duty to reach a decision untainted by bias. “Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it.”[18]

22. Generally, however, it is imperative that individuals who are affected by administrative decisions or decisions made by statutory bodies be given the opportunity to present their case in some fashion. They are entitled to have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process which is appropriate to the statutory, institutional, and social context of the decision being made.[19]

23. From the material presented to me, it is clear that the Petitioners were presented with the allegations against them. In fact, in their Petition they have reiterated the charges against each one of them and the Regulations they were accused of violating. They all participated at the proceedings and the decision was communicated to them. The minutes are annexed to the Replying Affidavit.

24. Effectively, procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. There is nothing to show that the decision is tainted by bias nor has it been demonstrated that the Respondents exhibited bias during the investigations, or the proceedings or even after the final decision.

25. The following observation by Charles Goredema may be relevant:-

"The relationship between a university student and the university appears at first sight to be entirely contractual. It may appear that the student's position is analogous to that of a party to a contract which makes certain demands on him and offers him reciprocal benefits. On enrolling the student, the university under takes to provide tutorship, facilities and a learning environment that is conducive to the pursuit of knowledge. The student in turn undertakes to pay the fees which will make it possible for the university to provide these services. He also undertakes to commit himself to the process of learning. The relationship does, however, have a disciplinary dimension to it. In so far as the university commits itself to creating and maintaining an environment that is conducive to learning, it assumes a position of authority in relation to the student. In turn the student undertakes to accept that authoritative status.

A relationship of authority is by definition hierarchical. It is a relationship in which the student is in a subordinate position and the university is in a superior, super ordinate, position. The relationship is also administrative. An administrative relationship is characterized by the unequal distribution of power between the subordinate and the super ordinate. The attribute by which the latter is easily identifiable is the vesting of power in it, power which it is in a position to enforce. The power is usually derived from statute, and normally the same statute will define the subsidiary position of the subordinate. A common formula is to provide that every registered student shall be subject to the disciplinary authority of the university council. As an administrative relationship, the student/university relationship is regulated by administrative law. Apart from creating and recognizing certain rights, administrative law also serves to prevent the wrongful encroachment upon or violation of those rights."[20]

26. It has not been shown that the decision in question is unreasonable such that no reasonable tribunal properly applying its mind to the law and the material before it could arrive at such a decision. The Petitioners admitted they were collecting funds from first year students without authority from the University. The test of unreasonableness was set out in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation.[21]

27. The law places the onus on the Petitioners to demonstrate that the decision was absurd that no sensible person could ever dream that it lays within the powers of the Respondent.[22]

28. It is settled law that Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decision to be annulled, it must be demonstrated that the same is not grounded on law or the regulations. This has not been demonstrated in this case.

29. Put differently, it must be demonstrated that the challenged decision has no foundation in law. Discussing the principle of legality, the South African court in the case of AAA Investments (Pty) Ltd vs Micro Finance Regulatory Council and another stated as follows:-

“(t)he doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . . Public power . . . can be validly exercised only if it is clearly sourced in law"[23]

30. The respondent has not only a statutory duty but also a moral duty to uphold Discipline at the University. It would in general be wrong to whittle away the obligation of the Respondent as a public body to uphold Discipline within the University and enforce compliance with law and Regulations to ensure efficient learning. A lenient approach could be an open invitation to the Respondent to act against its legal mandate.

31. My understanding of the Petitioners case is that the legal mandate of the Respondent to conduct the disciplinary proceedings in issue is not disputed. The bone of contention is whether the proceedings were fairly conducted.

32. As stated above, Article 47 of the Constitution provides that every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The procedure has not been challenged. It is alleged the proceedings took long to commence. No objection was raised at the proceedings and as the minutes show, the Petitioners participated at all stages. Above all, I am not persuaded that the alleged delay was unreasonable no has prejudice been alleged or proved on account of the alleged delay. In any event, the alleged delay was raised in the final submissions and was not pleaded in the Petition.

33. The Fair Administrative Action Act[24] was enacted to illuminate and expand the values espoused under Article 47of the Constitution. Section 4(3) of the Act provides the broad parameters which bodies undertaking administrative action have to adhere.

34. In Judicial Service Commission vs. Mbalu Mutava & Another[25]a decision cited by the Petitioners counsels, the Court of Appeal held that:-

“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

35. The importance of fair administrative action as a Constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others[26] where it was held as follows with regard to similar provisions on just administrative action in Section 33 of the South African Constitution:-

“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…”

36. In Republic vs. Kenya Power & Lighting Company Limited & Another[27] the court observed that:-

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”

37. Once it has been established that a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the decision is shown to be so unreasonable that it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court.

38. Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and function or acting outside of their jurisdiction. Judicial review cannot be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandates[28]unless the decision is arrived at in violation of the Constitution or the relevant statute.

39. Section 7 (2) of the Fair Administrative Action Act[29]provides for grounds of review 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. None of these has been proved in this case.

40. When the constitutionality or legality of a decision made by a public body in the exercise of its statutory mandate is questioned, the duty of the court is to determine whether the impugned decision is capable of being read in a manner that is constitutionally compliant or as in the present case whether it can be read in a manner that conforms to the relevant statute. Every act of the state or public bodies must pass the constitutional test, put differently, it must conform to the principal of legality.

41. A contextual or purposive interpretation of the challenged decision must of course remain faithful to the actual wording of the statutes, namely the Fair Administrative Action Act,[30]the Constitution and the Universities Act[31] and the Regulations. The challenged decision must be capable of sustaining an interpretation that would render it compliant with the constitution and the statutes, otherwise the courts are required to declare it unconstitutional and invalid.

42. A contextual interpretation of the impugned decision, therefore, must be sufficiently clear to accord with the rule of law. Mindful of the imperative to read the challenged decision in conformity with the Constitution and the relevant statute, I find and hold that the decision is in inconformity with the law and was not tainted by illegality, unreasonableness, ultra vires, procedural impropriety or otherwise.

43. The other crucial question which must be answered is what is the standard by which the legality of the decision and conformity with the Fair Administrative Action Act[32] and Article 47 of the constitution should be judged. In this regard such a question should be answered with reference to the standards of review laid down by courts when the legality or constitutionality of decisions are challenged which include two main standards.

a. The first is the “rationality” test. This is the standard that applies to all legislation under the rule of law;

b. The second, and more exacting standard, is that of “reasonableness” or “proportionality”, which applies when a decision or legislation limits a fundamental right in the Bill of Rights. Article 24 (1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”

44. It is important to mention that the Regulations and Disciplinary Proceedings are "reasonably related" to a legitimate purpose, that is to uphold Discipline in the University and to enable the Respondent fulfill its statutory mandate of managing the institution. In determining reasonableness, relevant factors include:-(a) whether there is a "valid, rational connection" between the decision and a legitimate and public interest to justify it, which connection cannot be so remote as to render the decision arbitraryor irrational. In this regard I hold the view that maintaining discipline in Universities is a legitimate purpose. These grounds meet the limitation test under Article. Perhaps I should add that the rights alleged to have been violated are not absolute.

45. It is equally important that the court should also as far as possible, avoid any decision or interpretation which would bring about the result of rendering the system of managing Discipline in Universities unworkable in practice or create a situation that will go against clear provisions of the law governing the subject in issue. In this case, the law and the Regulations aim at the good of the society in maintaining discipline in Universities. This meets the proportionality test.

46. It is my view that the decision has not been shown to be unreasonable and or violating the Petitioners Right to fair Administrative Action or any Constitutional provisions as alleged. It is logically related to the legitimate purpose as discussed above.

47. In view of my conclusions herein above, I find and hold that this Petition has no merits at all. I dismiss it with no orders as to costs.

Orders accordingly.

Signed, Dated at Nairobi this 5thday ofDecember2017

John M. Mativo

Judge

[1] Counsel cited Eliud Nyauma Omwoyo & 2 Others vs Kenyatta University {2014}eKLR

[2] Counsel cited Joseph Mbalu Mutava vs A.G. & Another {2014}eKLR and Halsbury's Laws of England, 5th Edition, 2010, Vol 61 at Para 639

[3] Counsel cited Joy Faridah Mbaabu vs KenyattaUniversity {2016}eKLR

[4] Counsel cited R vs University of Nairobi ex parte Michael Jacobs Odhiambo & 7 Others {2016}eKLR

[5] Ibid cited

[6] Counsel cited Articles 28, 36, 43 and 55 of the Constitution

[7] Part 111 (a) provides:- (a) All students shall conduct themselves I accordance with the highest standards of integrity, personal discipline and morality and particular shall; (i) Respect and adhere to the administrative and academic procedure and structures established by the University of Nairobi Act for control, governance and operations of the University, (ii) Respect the Rights and privileges of the members of the University Community at all times (iii) Refrain from any conduct that might bring the University or any section or program thereof to disrepute or public odium, and (iv) carry themselves in all public places or for a with such humility and dignity as befits their status as mature and responsible citizens

[8] Counsel cited R vs Medical Practitioners and Dentists Board & Another ex parte J. Wanyoike {2015}eKLR, hALSBURY'S lAWS OF eNGLAND, 5 Edition, Vol. 61 Page 545 at Par 640 and Russel vs Duke of Norfolk {1949}1ALL ER 109 at P 117-118

[9] Article 47(1) of the Constitution of Kenya, 2010

[10] Article 47(2) of the Constitution of Kenya, 201

[11] {1915} AC 120 (138) HL

[12] {1906} AC 535 (539), Lapointe v. L'Association

[13] We find it Invoked in Kautllya's Arthashastra.

[14] AIR 1978 SC 851

[15] (1980), at page 161

[16] (1977) at page 395

[17] Wiseman v. Borneman [1971] A.C. 297

[18] Kanda v. Government of the Federation of Malaya, [1962] A.C. 322, 337, as quoted by the Alberta Court of Appeal in R. v. Law Society of Alberta, (1967) 64 D.L.R. (2d) 140, 151 (Alta C.A.).

[19] David Phillip JONES and Anne S. de VILLARS, Principles of Administrative Law (4th edition), Thomson Carswell, 2004, p. 251.

[20]Observations on the Observance of Administrative Law in University Student Disciplinary Proceedings: A Survey of Selected Universities in Southern Africa, Charles Goredema Lecturer, Department of Public Law, University of the Western Cape, Zimbambwe Law Review, Vol 13, 1996

[21] {1948}1 KB 223

[22] Counsel cited R vs. Kenya Power & Lighting Co Ltd & Another {2013}eKLR

[23] AAA Investments (Pty) Ltd v Micro Finance Regulatory Council [2006] ZACC 9;2007 (1) SA 343 (CC).

[24] Act No. 4 of 2015

[25] {2015} eKLR,Civil Appeal 52 of 2014

[26](CCT16/98) 2000 (1) SA 1,at paragraphs135 -136

[27]{2013} eKLR

[28] See Githua Jin Republic vs. Commissioner of Customs Services ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of 2012 [2012] eKLR

[29] Act No. 4 of 2015

[30] Supra

[31] Act No 42 of 2012

[32] Ibid