[2022] KEHC 11628 (KLR)

Orwoba v Management University Of Africa (Judicial Review Application E153 of 2021) [2022] KEHC 11628 (KLR) (Judicial Review) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11628 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E153 of 2021

AK Ndung'u, J

July 21, 2022

Between

Gloria Magoma Orwoba

Applicant

and

Management University Of Africa

Respondent

Judgment

Factual Background 1. Gloria Magoma Orwoba (hereinafter, the Applicant) was suspended as a student of the Management University of Africa (hereinafter, the Respondent) vide a letter dated 30th September, 2021.

2. It is the Applicant’s case that on 13th September, 2021, she was issued with a Notice to Show Cause where she was invited for a disciplinary hearing due to examination irregularities as had been claimed by the Respondent. She alleges that she was not given an opportunity to respond but she only received a letter from the Respondent titled “Verdict on examination irregularity”. She was suspended for one academic year running from September to April 2021.

3. The Applicant faults the suspension by the Office of the Chief Registrar Academics and Students Affairs stating that it is only the Vice Chancellor who has the power to suspend.

4. The Respondent’s Case as laid out in the replying affidavit of Daniel Maina Komu sworn on the 10th December 2021 is that through the use of a very expensive and elaborate state of the art online Examination Artificial Intelligence Software and Hardware, the Applicant was found to have tried to cheat in the exam using other persons sit the exams on her behalf.

5. The Applicant was consequently invited to a disciplinary Committee held virtually where she was given an opportunity to defend herself. (The verdict was that she had breached examination rules and was thus suspended.)

6. It is urged that the disciplinary procedures in the Respondent’s institution is thorough and has an appeal process which includes a Tier one (Which is a Standing Committee of the Senate on Examination irregularities) and Tier two (which is a Standing Examination Irregularities Appeal Board.)

7. It is the Respondent’s case therefore that this suit is prematurely before the court as the Applicant has not exhausted the appeal process provided under the Respondent’s disciplinary procedures.

8. The application was canvassed through written submissions. Both parties duly filed and I am greatly indebted to counsel for their industry in that regard. In my analysis, I will consider the entire submissions including on areas I may not necessarily make direct reference to.

Analysis and determination 9. I have carefully considered the application, the supporting grounds and affidavits on record. I have had due regard to the response filed. I have had the opportunity to consider the learned submission by counsel. Gleaned therefrom, the issues for determination are:1. Whether the application herein offends the doctrine of exhaustion and if in the negative,2. Whether the applicant has established sufficient grounds for the grant of the judicial review orders sought.3. What orders should issue.

Whether the application herein offends the doctrine of exhaustion 10. Naturally, I elect to begin with answering this question as the same has the potential to dispose of the matter. Section 9(2) (3) and (4) of the Fair Administrative Action Act provide as follows:“(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.”

11. It is thus trite that under section 9(2) (3) and (4) of the Fair Administrative Action Act one ought to exhaust all internal and alternative dispute resolution mechanisms before moving this Court for judicial review proceedings. However, the Court is also granted discretion to exempt an applicant from such mechanisms in exceptional circumstances.

12. The internal and the alternative dispute resolution mechanisms will only be deemed available if the same are accessible by the applicant and are effective. In Mohammed Ali Baadi and Others vs The Attorney General and 11 Others, (2018) eKLR a five judge bench of this court held as follows;“94While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume41), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia42 it was held that:"A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ... the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."

13. So, what is the obtaining situation in the instant suit? There is uncontroverted evidence on record that the Respondent’s disciplinary procedures are thorough and encompasses an appeal process which includes a Tier One hearing before a Standing Committee of the Senate on Examination irregularities and a Tier Two hearing which is before a Standing Examination Irregularities Appeal Board. It follows then that the Applicant had an internal mechanism through which to resolve the dispute at hand within the Universities disciplinary procedures. This avenue was accessible, affordable, timely and effective.

14. The Applicant has countered this by challenging the disciplinary process in her further affidavit sworn on 14th February 2022 at paragraphs 7, 8, 9 and 10 where she avers;“7. That, in addition to the foregoing, and in response to paragraphs 13, 14, 15, 16, and 18 of the Replying affidavit, I would like to state that because I was not summoned to a disciplinary committee meeting, the allegations that I had to appeal the committee's decision to "Tier Two" should not have arisen because I was never given the opportunity to defend myself on the issue of exam irregularity.8. That, in response to paragraph 18 of the Replying affidavit, I wish to state that I have the legal right to sue the person who violated my rights. I will also like to emphasize that by appealing the Respondent's "tier one" decision to "Tier Two," 1' would be legalizing their breach.9. That, in response to Paragraph 19 of the Replying Affidavit, I respectfully request that the court award me an order of prohibition since the Respondent's "Tier One" decision was reached without providing me with an opportunity to present my case.10. That, in response to paragraph 20 of the Replying affidavit, the order of certiorari be made since the Respondent's representatives reached a judgment without providing me with an opportunity to canvass my case.”

15. In my view, it is plainly obvious that the above protestations by the Applicant were, and would have been, her effective arsenal for deployment before the tier two appellate Board. Failure to exhaust the internal mechanism based on the reasons proffered in the affidavit is a clear demonstration of a misapprehension of the law. There is no evidence that the mechanism was not available and effective. The Applicant thus approached this court prematurely and in the process fell afoul of Section 9(2) of the Fair Administrative Action Act.

16. That said, and for reasons above stated, the application herein is in breach of the law and thus irregularly before the court. Having so found, I find it unnecessary to delve into the other issues set out for determination as the application has come a cropper.

17. With the result that the application dated 16th November 2021 is dismissed. The Applicant shall bear the costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY, 2022…………………A.K. NDUNGUJUDGE