[2016] KEHC 4338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CONSTITUTIONAL AND JUDICIAL REVEIEW DIVISION

J.R MISC. CIVIL APPLICATION NO. 205 OF 2016

IN THE MATTER OF: APPLICATION FOR LEAVE BY KENNEDY OMONDI WARINGA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY THE WAY OF ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE DECISION OF THE SENATE OF CHUKA UNIVERSITY SENATE CONTAINED IN THE LETTER DATED 15TH APRIL 2016

AND

IN THE MATTER OF: SECTION 3A OF THE CIVIL PROCEDURE ACT, ORDER 53 RULES 3(1), AND 7(2) OF THE CIVIL PROCEDURE RULES, FAIR ADMINISTRATIVE ACTION ACT, 2015, ARTICLES 27,36,43, 47 AND 48 OF THE CONSTITUTION OF KENYA AND ALL OTHER ENABLING PROVISIONS OF THE LAW AND INHERENT JURISDICTION OF THIS COURT

REPUBLIC …………………………………. APPLICANT

VERSUS

CHUKA UNIVERSITY…………...………. RESPONDENT

EX-PARTE:

KENNEDY OMONDI WARINGA

JACKSON OTAKA PASTOR

VICTOR OTIENO OCHOLLA

MOPHAT OCHIENG OKINYI

BENSON MARKVANCE OMWANDA

DALTON OCHIENG OKETCH

KENNEDY ONYANGO OCHIENG

IAN CHILULI

MARY ATIENO OTIENO

SIMON NABUKO ANGATIA

MORIASI OBAGA COLLINS

ARIANDA SAMUEL OMONDI

ROBERT OUKO

OMWEGA SILAS MUTUKU

GERALD OMONDI OMINGO

ABONGO OKELLO MATHEWS

OTIENO OMONDI VICTOR

ANTONY DALMAS OUMA

ONYANGO CORNELLY LAWRENCE

DAVID ODHIAMBO AMOLLO

LINUS OMATA KINORO

RICHARD M MAIRA

KEVIN ONYANGO ADUR

JUSTINE BOSIRE

OTIENO LAWRENCE JABUYA

OKUTO GEOFFREY JONYO

OJWANG NELSON MANDELA

OCHIENG DERRICKS

SHADRACK O

POTPHIRA BENARD

JULIUS LISUTSA

MAKORI KELVIN

OCHIENG SOLOMON

JOHN K.

OBAGA COLLINS

GRADUS ONOKA ODEK

JUDGEMENT

Introduction

The ex parte Applicants herein are students at Chuka University (hereinafter referred to as “the University”), the Respondent herein which is described in these proceedings as a fully-fledged University of higher learning in Kenya.

By a Chamber Summons dated 4th May, 2016, the applicants herein sought the following orders:

THAT this Honourable Court be pleased to grant leave to the Applicants to institute a judicial review application against the Respondent herein for the orders of Certiorari, Prohibition and Mandamus.

THAT the said grant of leave to the Applicant to institute these Judicial Review proceedings do operate as a stay of the decision of the Respondent taken on 21st-24th March, 2016 and in the Senate on 14th April 2016 as communicated in letters dated 15th April, 2016 addressed to the Applicants.

The grant of leave to the Applicants to institute these judicial review proceedings do operate as a stay of proceedings in Chuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016: Republic vs. Kennedy Omondi Waringa and 17 Others.

The costs of and incidental to this application be provided for in any event.

Such further or other relief as the Honourable Court may deem fit, just and expedient to grant.

In the same bundle containing the application for leave was a Notice of Motion dated 4th May, 2016 in which the following orders were sought:

An order of certiorari to remove into this court and quash the proceedings, findings and decisions of the Respondent’s Disciplinary Committee of 21st-24th March, 2016 and Senate of 14th April, 2016 as contained in the Respondent’s letters dated 15th April, 2016 addressed to the Applicants.

An order of prohibition do issue against the Respondents and/or any of its authority, organ, body or persons from implementing the decision of the Senate communicated by the letters dated 15th April 2016 in whatever manner whatsoever or in any other manner relating to the outcome of student elections announced on 29th January 2016 or otherwise.

An order of prohibition do issue against the Respondents and/or any of its authority, organ, body or persons from instituting disciplinary proceedings, arresting, charging or prosecuting, suing or commencing any proceedings against the Applicants in relation to any matters touching upon or related to the outcome of the Student elections announced on 29th January, 2016 or arising from the said Students Elections or otherwise.

An order of prohibition do issue against the Respondent from hearing or continuing with the proceedings against the Applicants in relation to any matters touching upon or related to the outcome of the Student elections announced on 29th January 2016 or arising from the said Students Elections or otherwise.

An order of mandamus directed to the Respondent to transfer the cumulative academic credits and units of the Applicants to a university of the Applicants’ choice.

An order of mandamus directed to the Respondent to administer special final examination to the 2nd Applicant Jackson Otaka Pastor, a final year Masters student who missed his final examination on 3rd May, 2016.

An order of mandamus directed to the Respondent to organise and administer special lectures to the undergraduate students of 1st and 4th year who have missed lectures conducted during the period they were purportedly expelled.

The costs of and incidental to this application be provided for in any event.

Such further relief as the Honourable Court may deem fit, just and expedient to grant.

The application was supported by a verifying affidavit sworn by Kennedy Omondi Waringa, the 1st ex parte applicant herein on 4th May, 2016 who deposed that he was a candidate for the post of Chairmanship for Chuka University Students Association (hereinafter referred to as “CUSA” or “the Association”). According to the deponent, he had studied the application and the supporting documents and affirmed the contents thereof. That was the substance of the verifying affidavit although there was also a supporting affidavit which was slightly detailed than the verifying affidavit.

Together with the affidavit, the Applicants filed a statement signed by the same deponent. According to the said statement, the said Association conducted its elections on 29th January, 2016 which elections were however riddled with irregularities particulars whereof were specified. It was disclosed that the results of the said elections were announced the same day by Hillary K. Barchok, the Chairperson of the University Electoral Commission. However, due to the said irregularities, the 1st applicant disputed the said results and his agents declined to sign the form confirming the said results. On 1st February, 2016 the 1st applicant lodged a petition with the said Electoral Commission receipt of which its said chairman acknowledged. By a letter dated 3rd February, 2016 signed by the acting Registrar Academic Affairs, Mr O W Mwangala, the 1st applicant was invited to attend the University’s Appeals Committee on 4th February, 2016.

However by a letter dated 8th February, 2016 signed by the said chairperson, the 1st ex parte applicant was informed that his appeal had been dismissed due to lack of sufficient evidence to sustain the allegations. It was the 1st applicant’s case that the decision dismissing his appeal ought to have been communicated by the chairperson of the appeals committee the said Mr O W Mwangala and not the said chairperson of the said Electoral Commission, Dr Hillary K. Barchok.

Following the disclosure of the decision to other students, it was contended that there was tension in the University and riots broke out leading to police intervention. However, the University administration ordered all the students to vacate the University premises and hostels by 2. 00 pm of 8th February, 2016 and the respondent caused the applicants to be arrested and maliciously charged in Chuka Senior Principal Magistrate’s Court Criminal Case No. 140 and 158 of 2016 with taking part in unlawful assembly but the said charges were withdrawn under section 87A of the Criminal Procedure Code.

It was further averred that the Respondent’s disciplinary committee purported to hold disciplinary proceedings against the applicants from 21st-24th March, 2016 at which recommendations were made for the expulsion of the applicants. It was however contended that the said Committee was not properly constituted as required by the rules and regulations of the University and that the applicants were not accorded fair administrative hearing and action before the decision to expel them was made.

According to the applicants, the University communicated the decision to expel them through letters dated 15th April, 2016 addressed to the applicants, two days after the withdrawal of the criminal charges. The applicants contended that the number of counts enumerated in the disciplinary letters were not the same as those in the expulsion letters. Whereas the 12th applicant, Arianda Samuel Omondi appeared before the Disciplinary Committee his letter of expulsion indicated that he had failed to appear. The 18th applicant, Antony Dalmas Ouma, on the other hand did not receive the letter inviting him for the meeting with the same Committee. With respect to the applicants Nos. 25, 28, 29, 30, 31, 32, 33, 34, 35 and 36, it was contended that they never received their expulsion letters which were purportedly sent by post by the Respondents despite their registration numbers being included in the list of those expelled.

According to the applicants, the 24th Applicant, Justin Samson Bosire, having been prevailed upon to resign had no reason to participate in the alleged misconduct or indiscipline. The applicants asserted that the expulsions targeted the supporters of the 1st ex parte applicant and were directed against one ethnic community.

The applicants accused the Respondent of having tampered with some of the applicants’ results. It was averred that some of the applicants, as a result o the expulsion, missed their lectures and final examinations.

It was therefore contended that the decision to expel the applicants was malicious, unlawful, oppressive and in total breach of the rules of natural justice, the rules and regulations of the University hence the prayers sought herein ought to be granted.

Respondent’s Case

The University, on its part opposed the application. According to it, it is a is a Chartered Public University governed by the Universities Act, 2012, Chuka University Charter 2012, Chuka University Statutes 2014 and Chuka University Information Handbook 2014 and has a population of approximately Fifteen Thousand (15,000) students mostly attending the main campus in Chuka.

According to the University, on the 10th May, 2016 through a report appearing in the Standard Newspaper for the day it came to the attention of the University that some 36 students against whom the University had taken disciplinary action had gone to court and obtained certain orders against the University and upon following up with its advocates on record, Waweru Gatonye & Co. Advocates, it managed to get the court papers from the advocates acting on behalf of the said students – M/s Apollo & Co. Advocates. From the said documents, it was discovered that the orders of court issued on the 5th May, 2016 in effect granted the 36 students leave to institute judicial review proceedings and granted further orders on 9th May, 2016 in effect that the leave granted do operate a stay against the decision of the university taken on 21st -24 March, 2016 and in the Senate on 14th April, 2017 as communicated in letters dated 15th April, 2016 and addressed to the students.

According to the University, the University had not been served and was hitherto not aware of the said court proceedings. In the University’s view the affidavit of service sworn by Miriam K Ikware on the 6th May,2016 was incorrect due to the following reasons: -

Upon following up none of the University Officers including the unnamed security guards and customer care desk ever saw a lady process server within the University precincts with the court documents as deposed;

The purported service of the documents by way of G4S Service never reached the University;

According to the G4S Service Collection Sheet attached to the said affidavit of service, the documents were received by the said Courier service on Friday, 6th May, 2016 at 1730 hours (5. 30PM);

Clearly, from the particulars contained in the G4S Service Collection Sheet, the University could not have received the document on the same day when it was delivered for posted outside the official working hours;

It is evident that the university was not served with the court papers on the 6th May,2016 and afforded an opportunity to defend the issue as to whether the leave granted to the applicant should also operate as stay-an issue which was again determined ex-parteon Monday 9th May,2016;

The University is located over 173 Km from Nairobi’s Milimani Law Court’s where the court proceedings were instituted;

For or avoidance of doubt, Chuka University and its officers are law abiding and we have always received court documents and the purported service could not be an exception;

Service through a courier provider like G4S as averred in the Ikware’s Affidavit of Service was not proper service within the law and the orders granted pursuant to such service ought to be set aside as matter of right.

The University averred that upon learning of the existence of the orders through the press and perusing the court papers obtained from its advocates on record - Waweru Gatonye & Co. Advocates, the University instructed its lawyers to seek appropriate redress before the same court and it is on the foregoing together with other grounds relating non-disclosure of material facts that the university filed an urgent application dated 17th May, 2016 seeking to set aside the orders obtained by the applicants and on the 18th May, 2016 when the court suspended the previous order of the 9th May, 2016 which was to the effect that the applicants be re-admitted to the University.

Based on legal advice, the University contended that the previous orders of court granted on the 9th May, 2016 which were to the effect that the applicants be re-admitted to the University remain suspended.

According to the University, the Notice of Motion (the substantive application) is defective and should be struck out for reasons that: -

The said substantive application was lodged in Court on 5th May, 2016 together with the Chamber Summons application seeking leave contrary to the express provisions of Order 53, rule 3 of the Civil Procedure Rules, 2010 which mandates that the substantive application be made after leave has been granted;

The applicants have purported to seek prayers in the substantive application which are at variance with the prayers in the leave application;

The substantive application is also premised on a verifying affidavit which does not contain any factual or evidential basis to support it.

The 1st Applicant has sworn a supporting affidavit alleging to have the authority of the other Applicants to do so yet no such written authority has been annexed thereto as required by law.

In any event, the application is premised on a defective statutory statement as it does not comply with the mandatory provisions of Order 53 Rule 1(2) of the Civil Procedure Rules, 2010 in the sense that: -

it does not contain the names and description of the applicants;

it does not set out the reliefs being sought;

it does not set out the grounds upon which the reliefs are sought; and

it is in the form of an affidavit with documents annexed to it.

It was therefore the University’s position that based on the foregoing alone, the substantive application ought to be struck out from the court records as being incompetent.

On the merits of the application, the University averred that the 1st ex-parte applicant -Kennedy Omondi Waringa was an aspirant for the position of Chairperson. On the election held on the 29th January, 2016 he garnered 1872 votes and lost to a Mr. Maina Harison Wanjohi who garnered 1,927 votes. The 24th ApplicantMr. Justine Samson Bosire who contested the position of Treasurer resigned citing personal reasons. Accordingly, and acting pursuant to the CUSA constitution, by-laws 2013 the second candidate Mr. Kiprono Pius was declared the winner by the electoral commission.

Being dissatisfied with the results of the elections held on the 29th January, 2016, Kennedy Omondi Waringa who contested the post of the chairperson invoked the relevant provisions of the CUSA Constitution and filed an appeal with the Chuka University Electoral Commission against the said results of the chairperson which appeal was considered and heard by the Appeals Committee. Upon hearing the appeal and submissions from the parties, the Appeals Committee upheld the decision of the Electoral Commission and dismissed Mr. Kennedy Omondi Waringa’s appeal.

According to the University, the appellant got his appeal’s verdict on the 8th February, 2016 at around 9. 30 A.M from the office of the Electoral Commission Chair. At around 10. 30 A.M Mr. Waringa and his supporters gathered at gate C and then forced their way through the gate and headed to the Dean of Students’ office. Not finding the dean, so they left the dean’s office, stoned the nearby buildings, shouted and disrupted learning activities that were going on. Subsequently there was a commotion in the main campus as students ran all over chanting and disrupting public peace. As a result, the University management called the Police from the nearby Chuka Police Station to come and help restore law and order. As the police arrived at the University, the rioting students had stoned buildings, university staff vehicles and looted items from the community shops. It was averred that as a result, at around 1. 00 P.M the University Management closed the university indefinitely in order to avert any further damages. Subsequently, the senate held an emergency meeting held at around 3. 00 PM and ratified the closure of the university which action was similarly ratified by the University Council on 10th February, 2016.

It was disclosed that as a result of the violence, the following university and public property were destroyed by the students: -

Motor Vehicle Registration Nos. KBB 894S (a lorry), five buses KCA 155F (burnt), KAY 950V, KBJ 061U, KAW 083Z, KCD 476 G, staff vehicles KAQ 036Z, KAT 557, KBF 133F, KBP 603G, KBV 810V;

Damaged buildings including Gate A that was burnt and smashed windows of Mulembe House, Science complex, University House, Gatumbi House with Computer labs, business and students Recreation Centre, Central Stores and the University Dispensary. They also broke all doors of the Ladies’ B Hostel; and

The students also stormed the nearby Ndagani Market and looted items from the shops.

Consequently, internal investigations were carried out by an ad hoc Committee of the Senate and students who were suspected to have been involved in the illegal activities were summoned to appear before the Students Disciplinary Committee to Show Cause why disciplinary action should not be taken against them. According to the University, the Students’ Disciplinary Committee is standing Committee constituted as per the Second Schedule of the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students ‘Information Handbook (2014). At the time of admission to the University, each student is provided with a copy of the handbook and signs a letter of acceptance of admission where they agree to be bound and to adhere to the regulations, conduct and discipline at the Chuka University as stipulated in the Handbook. The applicable regulations are therefore correctly presumed to be known to all the students including the applicants herein.

It was contended that the 36 students who have filed the case in court are among the students that are suspected to have organized the violent demonstration and destruction of property at the University precincts and in the neighbourhood which violent and activities disrupted the normal operations and learning activities for the second semester that had been scheduled to run from January to April, 2016 as a result of which the Senate indefinitely closed down the University on 8th February, 2016.

It was the University’s position that all the students including the 36 applicants herein who were suspected to have been involved in the illegal activities were summoned to appear before the Students Disciplinary Committee on the diverse dates between 21st -24th March, 2016 at 9 am to respond to the charges stated therein. The letters summoning them were dispatched through the EMS postal service to their last known postal addresses as per the admission records with the University. The students were also simultaneously notified through their mobile phone numbers by way of short messages (SMS). On the diverse dates between 21st-24th March, 2016 the Students’ Disciplinary Committee- a Standing Committee constituted as per the Second Schedule of the University’s Statutes (2014) and the Students’ Conduct and Discipline rules and Regulations contained in the Chuka University Students ‘Information Handbook (2014) conducted the hearings and recommended to the senate appropriate disciplinary action to be taken against the students and at its meeting held on the 14th April, 2016 at the University’s Science Room Complex S306, the University Senate Considered the findings, and recommendations of the Disciplinary Committee and a verdict was passed by the senate on each of the individual students who were summoned to appear before the Disciplinary Committee. That on the premise of those findings the senate made a decision that some of the students who happen to include the applicants were to be expelled from the university. Pursuant to the decision of the senate, the students were again notified of the Senate decision by way of formal letters which were dispatched through the EMS Postal Service to their last known postal addresses as per the admission records with the University and the students were also simultaneously notified through their mobile phone numbers by way of short messages (SMS).

According to the University, it is evident on the face of the said letter that the students have a right to appeal to the University Council through the Vice Chancellor within a period of thirty (30) days as stipulated in the Second Schedule Part 4 of the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students ‘Information Handbook (2014). However, at the time of filing their application for leave in court on 5th May,2016, the applicants failed to disclose to this Honourable Court that: -

The appeal period was yet to expire and that indeed their grievance could be redressed under the University Statute by way of an appeal to the University Council; and

Indeed, a number of the students including 11 applicants before the court had lodged their appeals which were pending for consideration by the University Council.

To the University, the prayers sought in the notice of motion are misplaced and misleading for the reasons that:

The University has a mandate to conduct disciplinary proceedings against errant students in accordance with the Second Schedule of the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students ‘Information Handbook (2014). That an Order restricting the Respondent from instituting disciplinary proceedings against the applicants or any other person suspected of having participated in the riots that erupted after the 29th January CUSA elections would amount to denying the respondent a legally granted mandate to ensure order and discipline in the University. The same would also amount to granting the applicants immunity from disciplinary process that would amount to usurpation of the respondent’s mandate.

The respondent does not have any powers to arrest, charge or prosecute the applicants as this is a state responsibility conducted by the Directorate of Public Prosecutions. The orders sought in prayer 3 of the motion are therefore misconceived.

The respondent has no statutory mandate and/or power to transfer the cumulative academic credits and units of the applicants or any of its students to any other university as sought in prayer number 5 of the motion.

The University conducted the disciplinary proceedings against the applicants in accordance with its statutory mandate. The decision made by the respondent to expel the applicants was in accordance with its duty to carry out disciplinary proceedings. To grant prayer number 7 of the motion would amount to punishing the respondent for carrying out its statutory mandate.

The University’s view was that it acted fairly to all the students and the allegations of ethnic bias are unfounded and at best unfortunate having come from a student at the University level. Indeed, the applicants have conveniently initialized the last name of the 34th Applicant as ‘K’ which stands for ‘Kamau’ to conceal his ethnic identity. Further, and perhaps more importantly, the applicants herein were not the only ones who underwent the disciplinary process. The Court was invited to take judicial notice of how recent unrests have paralysed operations in a number of public universities in the recent past and that it is in order for the institutions to be allowed to employ the available disciplinary mechanisms to redress the situations. It was added that it is in the public interest that the orders sought by the applicants should not be granted and that the University should be allowed to carry out its mandate and particularly hear the pending appeals in the manner prescribed in the University statutes. To re-admit the students whom the university has conducted its investigations and found to have participated and incited others to participated in an unlawful destruction of university and public property and disrupted learning, it was contended is tantamount to sanctifying a culture of impunity and the University administration is now left impaired and hamstrung in its operations particularly in so far as disciplining errant students.

Applicant’s Submissions

On behalf of the applicants it was submitted by Mr Apollo Mboya, their learned counsel, that the University caused the police to arrest the 1st Applicant from his rural home in Homa Bay County and other students before being charged in the Chuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016: Republic vs. Kennedy Omondi Waringa and 17 Otherswith taking part in unlawful assembly contrary to section 78(3) of the penal code. On 13th April 2016 the prosecution applied and withdrew the same under section 87A of the Criminal Procedure Act.

It was submitted that the University invited the students to appear before the disciplinary committee that purported to hold disciplinary proceedings against the students from 21st -24th March 2016 and made recommendations to the Senate of the University. On 14th April 2016, the Senate of the University in turn held a meeting that purportedly to expel the students and communicated its decision by letters dated the following day 15th April 2016 which was posted to the students. Those affected comprise of undergraduate and Post graduate students, some in their final semester and weeks at the University. It was contended that some of the students specifically applicants No. 25, 28, 29 30, 31, 32, 33, 34, 35 and 36 had not received their letters of expulsion purportedly sent by post by the University and only learnt of their expulsion from information posted online by the University which included their registration numbers in the list of those expelled from the University.

It was submitted that the 1st Applicant was a candidate for the post of Chairman in the said Chuka University Students Association (CUSA) elections held on 29th January 2016 while the 2nd Applicant Jackson Otaka Pastor is a final year Masters student and was expected to complete his studies upon sitting his final examination conducted on 3rd May 2016 which he missed as a result of the expulsion. The undergraduate students of 1st and 4th year have missed lectures conducted during the period they were purportedly expelled.

According to the Applicants, the purported disciplinary process was illegal and unconstitutional. To them, the disciplinary committee was not fully and properly constituted as required by the rules and regulation of the University and did not accord the students fair administrative action. The Rules and Regulation for Students’ Conduct and Discipline in the Student’s Information Handbook 2014, it was contended makes provision on the composition of Students’ Disciplinary Committee on page 53 at No 9. 1 as the Deputy Vice Chancellor (Academic, Research & Students Affairs)/Chair; Dean of Students; Dean of Faculty Concerned; Chairman of the department concerned; Two Senate representatives; Chairman of the student association and any other student leader; and Registrar(Academic Affairs)/Secretary. To them the Committee before whom they appeared was not fully constituted with the eight members and was composed of the opponent of the 1st Applicant (Chairman of the student association) in the Chuka University Students Association (CUSA) elections held on 29th January 2016 which gave rise to the incident leading to the purported disciplinary process. The Chairman of the student union, Mr Harrison Wanjohi Maina was the opponent of the 1st Applicant Kennedy Omondi Waringawho could not be impartial. The rules of natural justice, they contended, demanded that one cannot be the accuser, jury and the judge in his own cause and that the composition was contrary to the Rules and Regulation for Students’ Conduct and Discipline in the Student’s Information Handbook 2014 at No. 9. 5 on page 54 which states that:

In particular, the committee shall ensure that both sides are heard and the witnesses required in the case do not act as members of the committee.

The applicants submitted that the role of a court exercising powers of judicial review is limited to the process involved in arriving at a decision, and does not require the court to enter into an inquiry on the merits of a decision and reliance was placed on Civil Appeal No. 180 of 2013- Isaack Osman Sheikh vs. IEBC & Otherswhere the Court expressed itself in the following terms:

“A judicial review of administrative, judicial and quasi-judicial action and decisions of inferior bodies and tribunals by the High Court in exercise of its supervisory jurisdiction flowing from Article 165(6) of the Constitution is not in the nature of an appeal. It concerns itself with process and is not a merit review of the decision of those other bodies. And it does not confer on the High Court a power to arrogate to itself the decision-making power reserved elsewhere.”

It was submitted that Article 47 of the Constitution of Kenya guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that the procedure for fair administrative action is elaborated in section 4(3) and (4) of the Fair Administrative Action Act No. 4 of 2015 as follows:

(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-

prior and adequate notice of the nature and reasons for the proposed administrative action;

an opportunity to be heard and to make representations in that regard;

notice of a right to a review or internal appeal against an administrative decision, where applicable;

a statement of reasons pursuant to section 6 of the Act;

notice of the right to legal representation, where applicable;

notice of the right to cross-examine or where applicable; or

information, materials and evidence to be relied upon in making the decision or taking the administrative action.”

It was the applicants’ case that the letters inviting the students to appear before the University Disciplinary Committee between 21st -23rd March 2016 were dated 14th March 2016 and were posted to the home addresses of the respective students. Further, the letters did not include any or all of the ingredients contained in section 4(3) (b)-(g) of the Fair Administrative Action Act No. 4 of 2015 as enumerated above and that there was therefore no adequate notice to the students to prepare and appear.

In addition, there are manifest discrepancies in the charges against the students contained in the letters of 14th March 2016 and the expulsion letters of 15th April 2016 as follows:

Jackson Otaka Pastor,2nd Applicant herein was expelled after allegedly being found guilty of charges contained in the Chuka University Student’s Handbook (2014) sections 7. 16, 7. 20, 7. 22and 7. 24 while the letter inviting him to the disciplinary meeting had only charges under section 7. 16 and 7. 22.

Victor Otieno Ocholla 3rd Applicant herein- was expelled after allegedly being found guilty of charges contained in the Chuka University Student’s Handbook (2014) sections 7. 16, 7. 18,7. 20, 7. 21, 7. 22 and 7. 24 while the letter inviting him to the disciplinary meeting DID NOT have charges under section 7. 20.

Arianda Samuel Omondi,12th Applicant herein appeared before the disciplinary committee on 23rd March 2016 yet his expulsion letter indicates that one of the grounds for expulsion is failure to appear before the disciplinary committee.

Antony Dalmas Ouma,18th Applicant herein, received an expulsion letter but was never invited to appear before the disciplinary committee.

It was contended that sub section (4) of section 4 of the Fair Administrative Action Act No. 4 of 2015 requires the administrator to accord the person against whom administrative action is taken an opportunity to-

attend proceedings, in person or in the company of an expert of his choice;

be heard;

cross-examine persons who give adverse evidence against him; and

request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

However, none of the students were accorded the above statutory opportunity. Whereas the law in this regard is clear that courts will not interfere with the decisions of such organs unless it is shown that there was a breach of statute or the rules of natural justice so as to render the decision reached a great injustice to a party affected, it was submitted that this was the position aptly captured in the case of Daniel Nyongesa and Others vs Egerton University College CA No. 90 of 1989 in which the Court (Nyarangi JA) stated:

“Courts are very loathe to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run Universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the courts are moved to do so where it is manifest that decision has been made without fairly and justly hearing the person concerned or the other side…”

According to the applicants, the test and elements of procedural fairness was laid down and elucidated inR vs. Commission for Higher Education ex-parte Peter Shitanda [2013] eKLRas follows:

“Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

The Applicants’ position was that the disciplinary proceedings by the University is quasi-judicial in nature that must comply with section 4(5) of the Fair Administrative Action Act No. 4 of 2015 Act which permits a person facing an administrative action to appear or be represented by a legal representative. However, Rules and Regulation No 9. 6 for Students’ Conduct and Disciplinecontained in the Student’s Information Handbook 2014 states as follows:

At all meetings of the committee, before which a student is summoned, the procedure adopted shall be determined by the committee and the student alone shall be entitled to appear in person. For avoidance of doubt, the committee shall not entertain the audience of the advocates or to the legal agents on behalf of the students.

While not disputing that the University has the power to conduct the quasi-judicial process against them if they are in breach of the university regulations, the applicants contended that the issue raised by them is one about due process and whether their rights were thereby violated. They appreciated the ability of the University to take disciplinary action against delinquent students and that the University has elaborate procedures contained in the Handbook which the students agreed to be bound by when the Students were admitted to the University despite some of its unconstitutional provisions such as legal representation. However, the question for consideration is whether the Students were subjected to due process and that emphasis is that such an inquiry does not involve the court substituting itself for the University but satisfying itself that the procedure adopted met the threshold of what constitutes a fair process.

According to the applicants, their main grievances are in two limbs. First, that the disciplinary committee against them was not composed of the required representation to accord fair hearing, and secondly, that they asked for and were denied right to legal representation. In support of their case, they relied on Republic vs. Pwani University College Ex-parte Maina Mbugua James & 2 Others Misc. App. No. 28 of 2009 where the court observed that:

"The situation in Kenya was captured in the case of Geoffrey Mwangi Kariuki vs. University of Nairobi. – but where the distinction can immediately be drawn in that the college Disciplinary Committee refused to allow Geoffrey to be represented by advocates in the proceedings, and the High Court ruled that he was entitled to such representation. My own view is that if an individual requests for legal representation, then he should be entitled to such representation…..”

It was disclosed that the Senate in its meeting held on 14th April 2016, against the rules of natural justice, refused and/or omitted to accord a hearing to any of the students, before arriving at a decision to expel them. Their case, they contended, is that their rights were violated by the manner in which the disciplinary process was conducted and that their legitimate expectation to natural justice, due process and a fair treatment was infringed upon by the University and relied on Daniel Nyongesa and Others vs. Egerton University College(supra) where the Court further stated that:

“….it is the duty of the courts to curb excesses of officials and bodies who exercise administrative or disciplinary measures. Courts are the ultimate custodians of the rights and liberties of people. Whatever the status and there is no rule of law that courts will abdicate jurisdiction merely because the proceedings or inquiry are of an internal disciplinary character.”

It was submitted that whereas what constitutes a fair process is dependent on the facts and circumstances of each case, implicit in the concept of fairness is flexibility. A University disciplinary panel dealing with Student’s matters must have the necessary flexibility, having regard to the University environment and the Student’s rights, to deal with student discipline provided that the process is fair; that the student who is subject to the proceedings is given a hearing and an opportunity to defend himself or herself. In the instant case there is obvious violation of the rules of natural justice that no one could justify and the purported disciplinary process by the university exposed the students to double jeopardy after the University had instigated the arrest and subsequent filing of charges against the students in Chuka Senior Principal Magistrates Court Criminal Case No. 140and158 of 2016which was withdrawn by the prosecution on 13th April 2016 pursuant to section 87(a) of the Criminal Procedure Code. The expulsion by the senate was issued a day after the withdrawal of the criminal charges. The applicants maintained that no evidence whatsoever was adduced to sustain the allegation in the disciplinary and expulsion letters dated 14th March and 15th April 2016 and in the criminal charges instigated by the University in theChuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016: Republic vs. Kennedy Omondi Waringa and 17 Others. To them, the institution of charges and withdrawal of the same is not only an abuse of the prosecutorial powers but also an abuse of the court process since there is indeed a risk that the students may be charged again on the same facts. In their view, the prosecutor pre-empted the learned magistrate’s decision on the lack of evidence by applying to withdraw the case against the students.

The applicants further contended that the purported expulsion targeted perceived supporters and those from the ethnic community of the 1st Applicant herein Kennedy Omondi Waringawho was a candidate in the Chuka University Students Association (CUSA) elections held on 29th January 2016. This is despite the fact that none of the applicants were ever convicted for the disturbances that followed the announcement of the results of the elections. Indeed, one of the 3rd year student Isaack Mwangi, John Kamau and Sacred Mwangi were also charged together with the applicants in Chuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016but were either not called to the disciplinary meeting and/or expelled. It was submitted that Article 27 guarantees equality before the law and protects the right to equal protection and equal benefit of the law and that equality includes the full and equal enjoyment of all rights and fundamental freedoms.

According to the applicants, the university has also targeted students for victimization as can be illustrated as follows:

the cumulative aggregate marks indicated in the letter inviting Kennedy Omondi Waringa, 1st Applicant herein to the disciplinary committee is indicated as 66% while the provisional transcript correctly indicates 69%

the cumulative aggregate marks indicated in the letter inviting Onyango Cornelly Lawrence, 19th Applicant herein to the disciplinary committee is indicated as 52% while the provisional transcript correctly indicates 70%

the cumulative aggregate marks indicated in the letter inviting Kevin Onyango Adur, 23rd Applicant herein to the disciplinary committee is indicated as 64% while the provisional transcript correctly indicates 68%.

The University caused Robert Ouko, 13th Applicant Onyango Cornelly Lawrence, 19th ApplicantandKevin Onyango Adur, 23rd Applicantto be arrested but were not charged in court after spending a night at the cell of Chuka Police Station on 22nd, 23rd and 24th March 2016 respectively.

The applicants contended further that their right to dignity protected by Article 20 of the Constitution was violated. The expulsion affected the students psychologically and their legitimate expectation to complete their education, within the stipulated period was shattered and their reputation destroyed as the University had circulated their identity widely and caused a criminal case to be instituted and later withdrawn.

It was submitted that in the totality of the circumstances, the expulsion was drastic, arbitrary, unreasonable and unlawful and the court ought to declare that the decision to expel the students from the University unconstitutional, null and void as it violated Article 47 of the Constitution of Kenya and section 4(3) (b)-(g) of the Fair Administrative Action Act No. 4 of 2015 and that the disciplinary hearing was not carried out in accordance with the University Handbook and order their reinstatement.

Respondent’s Submissions

On behalf of the respondent, it was submitted by Mr Waweru Gatonye, SC that the applicant adopted the mode of service not recognized in law and in total disregard of the court’s order to apply for and serve the respondent through substituted service. The respondent contended that it was never served with the summons to appear in court on 9th May 2016 as alleged in the affidavit of service of Miriam K Ikware sworn on the 6th May 2016 and that this was affirmed in the replying affidavit of Prof Erastus Nyaga Njoka, the respondent that none of the University staff or security guards was contacted or saw the said deponent within the university precincts. It was submitted that the Civil Procedure Rules, Order 5 is very clear on the proper means of service of summons. As an authorized court process server, the deponent ought to know the proper means of effecting service even in cases where the defendant refuses to accept service or cannot be found. Accordingly, the law having laid down the procedure for effecting service, any process server must strictly comply with it. The process server in this case contravened the set down procedure. It was submitted that to employ the services of a courier without an order of court was improper, irregular and in total disregard of the law. Accordingly, it is evident that the university was not served with the court papers on the 6th May,2016 and afforded an opportunity to defend the issue as to whether the leave granted to the applicant should also operate as stay-an issue which was again determined ex-parteon 9th May,2016. It was thus submitted that the applicants deliberately misled the court in order to get the orders they were seeking. Failure to properly serve a party to a suit, in the respondent’s view is fatal the suit and reliance for this proposition was sought from National Bank of Kenya Limited vs. Puntland Agencies Limited & 2 others [2006] eKLR, where the court held that:

“In our case however the defendants state they were not served with the summon and the plaintiff failed to rise up to the challenge to prove service. The court therefore makes a finding that the defendants were not served with the summons to enter an appearance. Having so found the judgment, which was based on that service, must fail.”

The court in the above case, in holding that the proper mode of service is individual, quoted the court of appeal case of John Akasirwa vs. Alfred Inai Kimuso (C.A. No. 164 Of 1999) (UR)which held that;

“Proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfied itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not. Hence the need for strict compliance with order 5 Rule 9 [1]. The ideal form of service is personal service, it is only when the defendant cannot be found, that service on his agent empowered to accept service is acceptable.”

It was therefore clear, according to the respondent that proper service must be effected and that personal service is always the best service. Further reliance was placed on Leisure Lodges Limited vs. Commissioner for Lands & 297 Others [2011] eKLR,where the court ruled that:

“First and foremost, there is no provision in the Rules for service by substituted service. This implies that the Constitutional Rules require that service be personal service on a Respondent. The best service is personal service in legal proceedings in any court or Tribunal. Under the Civil Procedure Rules, there is provision for substituted service by way of formal application through which explanation and reasons are given for the inability to effect personal service. The court must be satisfied that there exist sufficient evidence or material to justify and substituted service. In the absence of any provisions allowing substituted service then it may be reasonably deemed that the law requires personal service of a petition or process in Constitutional matters.”

In addition the Respondent relied on Grace Wairimu Mungai vs. Catherine Njambi Muya [2014] eKLR, in which the court pronounced itself thus:

“My understanding of orders 5 Rules 1 and 2 and order 6 Rule 1 and order 7 Rule 1 is that until the Defendant is served with the summons to enter appearance there is no basis for him to answer to the suit.”

In striking out the suit, the court went further to hold;

“In my view service of summons on a defendant is a vital step in initiating the litigation against a Defendant and until a summons is properly served on the Defendant there is no valid invitation to the Defendant to defend the suit.”

It was the Respondent’s case that it was not served with the court summons as alleged by the applicant and that the failure to effect service is detrimental to any suit before a court of law hence the application before the court be struck out for failure of service.

According to the Respondent, the application for leave was fatally and incurably defective and as such, leave ought not to have been granted for the reasons that the applicants blatantly failed to disclose to this Court material facts that were they to be disclosed, the court would not have granted the leave sought. The particulars of non-disclosure, according to the respondent include:

That the students had a right of appeal to the University Council through the Vice Chancellor within a period of 30 days, which period had not lapsed at the time the applicants filed this application. This avenue of appeal was clearly stated in the expulsion letters sent to the applicants and were thus aware of this mechanism.

That indeed a number of students including the 11 applicants before the court had lodged their appeals which were pending for consideration by the University Council.

It was submitted that the respondent derives its authority to carry out disciplinary proceedings from the University Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations made pursuant to section 23(1) of the Universities Act, 2012. The applicants had a right and are indeed required to exhaust the internal procedures of appeal before seeking redress from the court and in this respect the respond relied on Speaker of the National Assembly vs. Karume [1990-1994] EA 549 which held that:

“where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Order LIII of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”

It was therefore contended that the failure to disclose materials facts by the applicants affected the exercise of discretion by the court in determining the application for leave and that this was the court’s decision in Karume’s case (above) where the court held thus:

“…conceded that the filing and pendency of the election petition had not been disclosed in the respondent’s statement of facts. In our view this was a material fact which was capable of affecting the manner in which the judge exercised his discretion.”

Since the internal appeals mechanism had not been exhausted by the applicants, the respondent submitted that the application should not be allowed as the same would amount to usurpation of the respondent’s statutory mandate to conduct disciplinary proceedings. The respondent should be given an opportunity to conclude the appeals pending before it. The respondent further submitted that in the circumstances, judicial review is not the suitable remedy where there is an existence of an appellate procedure and relied on the Court of Appeal decision in Republic vs. National Environmental Management Authority [2011] eKLR where the court held that:

“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it….The learned trial Judge, in our respectful view, considered these structures and came to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute. With respect, we agree with the Judge.”

According to the respondent, the application before the court is fatally defective for failing to comply with the Civil Procedure Rules. The application is premised on a verifying affidavit which does not contain any factual or evidential basis to support it contrary to Order 53 Rule 2 of the Civil Procedure Rules which states that:

An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

To the respondent, it is the verifying affidavit that should contain the facts and evidence and not the statutory statement and this was the holding of the Court of Appeal in Commissioner General, Kenya Revenue Authority through Republic vs. Silvano Onema Owaki t/a Marenga Filling Station [2001] eKLR.

The court of appeal went on to hold that the learned judge of the High court decided the application for judicial review on the basis of inadmissible matters and proceeded to set aside the orders that had granted the applicant leave to institute the judicial review proceedings on the basis that the application was defective. It was therefore submitted that the verifying affidavit of the applicant does not contain any facts or evidence to support the application but merely verifies the statutory statement contrary to the Rules as discussed by the court of appeal in the above case.

Apart from the verifying affidavit, it was submitted that the applicant’s statutory statement is also fatally defective and contrary to the provisions of rule 1(2) of Order 53 which states that the statement should set out the name and description of the applicant, the relief sought, and the grounds on which it is sought. The applicant’s statement does not meet this standard in the sense that: -

it does not contain the names and description of the applicants;

it does not set out the reliefs being sought;

it does not set out the grounds upon which the reliefs are sought; and

it is in the form of an affidavit with documents annexed to it.

It carries the facts aimed to be relied on instead of the same being stated in the verifying affidavit.

In this respect the Respondent relied on Bespoke Insurance Brokers vs. Philip Kisia, the Town Clerk City Council of Nairobi & another [2013] eKLR.

It was accordingly submitted that the application does not meet the legal threshold as provided for in the Rules and should therefore be struck out on the basis that the same is fatally defective.

The Respondent submitted that the substantive Notice of Motion application was not properly made in accordance with the provisions of the Civil Procedure Rules as the same was lodged in court on 5th May, 2016 together with the Chamber Summons application seeking leave contrary to the express provisions of Order 53 rule (1) of the Civil Procedure Rules.

It was submitted that since this provision is couched in mandatory terms, the applicant must first obtain the leave of the court before making the substantive application. However, he applicants blatantly disregarded this mandatory provision when it filed both the application for leave and the substantive application together. The respondent noted that whereas during the grant of leave to institute the Judicial Review proceedings, the court directed the Applicant to file the substantive motion within ten (10) days, the Applicants did not seek to have the motion already filed be deemed as properly on record. To the Respondent, failure to comply with the mandatory provisions of the law cannot be excused and reliance was sought from Republic vs. Attorney General & 2 Others Ex-parte Robert Magige [2013] eKLR .

It was contended that since the substantive motion must be based on the orders the court may grant and/or impose at leave stage, the substantive application must therefore be made only after the leave has been granted.

According to the Respondent, the prayers sought in the substantive application are at variance with those sought in the leave application. To the respondent, the applicants have purported to seek prayers in the substantive application which are at variance with the prayers sought in the leave application. In the chamber summons application for leave, the applicants sought 5 prayers. The first 3 prayers relate to the leave to institute judicial review proceedings and the leave sought to operate as stay of both the respondent’s decisions contained in letters of 15th April 2016 and the criminal proceedings in Chuka Senior Principal Magistates Court Criminal Case No. 140 and 158 of 2016: R vs. Kennedy Omondi Waringa and 17 Others. Those are the main prayers in the chamber summons application. The notice of motion however contains 9 prayers which are substantially different from those in the leave application.

It was submitted that it is now trite law that the main prayers sought in the substantive application must be the same as those sought at the leave stage and the respondent cited Bespoke Insurance Brokers vs. Philip Kisia, The Town Clerk City Council of Nairobi & another (supra)and Republic vs. Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR.

The Respondent therefore urged the Court to hold, that the prayers introduced to the main motion that were not sought during the leave stage must be struck out.

According to the Respondent, the prayers sought in the substantive application are misplaced and misleading for the reasons that:

The University has a mandate to conduct disciplinary proceedings against errant students in accordance with the Second Schedule of the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students’ Information Handbook (2014). An Order restricting the Respondent from instituting disciplinary proceedings against the applicants or any other person suspected of having participated in the riots that erupted after the 29th January CUSA elections would amount to denying the respondent a legally granted mandate to ensure order and discipline in the University. The same would also amount to granting the applicants immunity from disciplinary process that would amount to usurpation of the respondent’s mandate.

The respondent does not have any powers to arrest, charge or prosecute the applicants as this is a state responsibility conducted by the Directorate of Public Prosecutions. The orders sought in prayer number 3 of the motion are therefore misconceived.

The respondent has no statutory mandate and/or power to transfer the cumulative academic credits and units of the applicants or any of its students to any other university after they have been expelled as sought in prayer number 5 of the motion.

The University conducted the disciplinary proceedings against the applicants in accordance with its statutory mandate. The decision made by the respondent to expel the applicants was in accordance with its duty to carry out disciplinary proceedings. To grant prayer number 7 of the motion would amount to punishing the respondent for carrying out its statutory mandate.

It was therefore the respondent’s position that the sought prayers in the substantive application cannot be granted as leave therefrom had neither been sought nor granted. The leave so granted relates to the prayers in the chamber summons application which are at variance with the prayers in the substantive application. To grant the prayers sought would be a clear violation of Order 53 Rule 1 of the Civil Procedure Rules.

In response to the applicant’s submissions, the respondent averred that the applicants have in their submissions introduced evidence that were never included in the affidavits in support of their application and cited Ngang’a & Anothervs.Owiti & Another (2008) 1KLR (EP) 749, and Mahamud Muhumed Sirat vs. Ali Hassan Abdirahman & 2 Others [2010] eKLR.

In this case, it was contended that the following paragraphs of the Applicant’s submissions contain facts that were neither pleaded nor deposed to by the Applicants.

Paragraph 13 introduces an aspect of alleged victimization that was neither pleaded nor deposed to;

Paragraph 14 introduces issues of legitimate expectation and assault that were also not pleaded or deposed to.

This Court was urged to strike out these offending paragraphs of the submissions as the same are prejudicial to the Respondents in that they never had an opportunity to respond to the said allegations. With respect to the disciplinary proceedings, it was submitted that the same were in accordance with the law and the statutory mandate of the University. The students including the 36 applicants herein who were suspected to have been involved in the illegal activities were summoned to appear before the Students Disciplinary Committee on the diverse dates between 21st -24th March, 2016 at 9 am to respond to the charges stated therein. These letters were dispatched through the EMS postal service to the last known postal addresses of the applicants as per the admission records with the University. The students were also simultaneously notified through their mobile phone numbers by way of short messages (SMS). The applicants therefore cannot allege that they were not summoned to appear before the disciplinary committee.

It was submitted that on the diverse dates between 21st-24th March, 2016 the Students’ Disciplinary Committee- a Standing Committee constituted as per the Second Schedule of the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students’ Information Handbook (2014) conducted the hearings and recommended to the senate appropriate disciplinary action to be taken against the students. Pursuant to the decision of the senate, the applicants were again notified of the Senate decision by way of formal letters which were dispatched through the EMS Postal Service to their last known postal addresses as per the admission records with the University. The students were also simultaneously notified through their mobile phone numbers by way of short messages (SMS).

In the respondent’s view, this is an elaborate procedure employed by the respondent in accordance with the University’s Statutes (2014) and the Students’ Conduct and Discipline Rules and Regulations contained in the Chuka University Students’ Information Handbook (2014). The respondent took every effort to ensure that the process was fair and in accordance with the law.

On the constitution of the disciplinary committee, it was submitted that based on the record of the proceedings, the composition of the Committee was proper and in accordance with the Regulations. From the Student’s Information Handbook (2014), the composition of the Committee includes the chairperson of the student’s association who at the time of the disciplinary proceedings was Mr. Harrison Wanjohi Maina as had been declared by the Electoral Commission in the official results for the CUSA elections held on the 29th January, 2016. The said chairperson was therefore legally entitled to sit in the Committee.

According to the Respondent, the Disciplinary proceedings were distinct from election appeals and process. Since what was before the disciplinary committee was whether the students had misbehaved or conducted themselves in breach of the school rules, the chairperson of the student union was therefore in no way conflicted. Indeed, the basis of the disciplinary process related to acts and events done after the elections. Furthermore, the decisions of the Disciplinary Committee are based on majority vote and so one decision could not have swayed the decision of 9 members. Rule 9. 7 of the Students’ Conduct and Discipline contained at page 54 of the Student’s Information Handbook (2014) provides that the committee’s decision shall be arrived at either by consensus or by simple majority vote through a secret ballot.

On the contention that the letters summoning the students did not comply with the provisions of section 4(3) (b)-(g) of the Fair Administrative Act No. 4 of 2015, the respondent relied on section 3 of the Act which provides as follows:

“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-

prior and adequate notice of the nature and reasons for the proposed administrative action;

an opportunity to be heard and to make representations in that regard;

notice of a right to a review or internal appeal against an administrative decision, where applicable;

a statement of reasons pursuant to section 6;

notice of the right to legal representation, where applicable;

notice of the right to cross-examine or where applicable;

information, materials and evidence to be relied upon in making the decision or taking the administrative action.

It was contended that the respondent had demonstrated that the applicants were given an opportunity to appear and present their case before the Committee. Indeed, from the Report of the Disciplinary Committee, the applicants appeared as summoned and presented their case. To the Respondent, the notice given to the applicants was adequate. The letters summoning the applicants for disciplinary proceedings were issued on 14th March 2016 and sent through EMS. The disciplinary proceedings began on 21st March 2016 which was one clear week to prepare for the proceedings. To it, since the applicants were fully aware of the facts leading to the proceedings, a week’s notice is adequate time. In any event, none of the applicants sought more time to prepare and appear. Had such a request been made, the Respondent would have considered the same and made appropriate orders. In this respect the respondent relied on Oluoch Dan Owino & 3 Others vs. Kenyatta University [2014] eKLR,in which the court held the view that;

“The petitioners have argued that they were not accorded a fair hearing as they did not receive the letters inviting them for the disciplinary hearing, and that they were invited by way of short text messages (SMS). I have considered the letters inviting the petitioners for the hearings. The letters are addressed to the petitioners at addresses to which other letters from the respondent to the petitioners contained in the replying affidavit are addressed. It would perhaps have been prudent for the respondent to obtain a certificate of posting or some other evidence of delivery of the letters, but in the end, I am not satisfied that the petitioners’ claim in this regard has merit, for two reasons. First, I note that the respondent took the further step of inviting the petitioners to the hearings by way of short text messages and telephones. More importantly, I note that all the petitioners attended the disciplinary proceedings on the scheduled dates and did not raise the issue of the non-delivery of the letters at the hearing before the Committee, nor did they seek an adjournment of the hearing.”

In the respondent’s view, the particular facts in the case are the same as those in the present case. The respondent further submitted that the letters summoning the applicants were in full compliance with section 4 of Fair Administrative Act as they contained the particular charges the students had been charged with and the consequences of failing to appear at the Committee. The subsequent letters containing the decision of the senate to expel the applicants contained a notice of right of appeal as required by the Act.

It was further submitted that:

In the case of Jackson Otaka Pastor and Victor Otieno Ocholla, the discrepancies in the charges did not in any way prejudice the said applicants. The applicants have not even attempted to show any kind of prejudice that they suffered due to the discrepancies. Furthermore, and perhaps more importantly, the two applicants were found guilty of other charges that were listed in the invitations letters.

In the case of Antony Dalmas Ouma, the applicant was invited and failed to appear before the Disciplinary Committee. As such, the committee and subsequently the senate were entitled to make their decision as they did.

In the case of Arianda Samuel Omondi, it was submitted that he indeed appeared before the Disciplinary Committee as evidenced in the Report of the Disciplinary Committee and that the error that indicated that he never appeared before the Disciplinary Committee was corrected vide a letter dated 12th May, 2016.

The respondent reiterated that in any event, if the applicants are dissatisfied with the outcome of the disciplinary committee proceedings, they have an internal avenue for appeal where they can present their concerns.

On the issue of legal representation, it was submitted that this issue was raised too late a day as the same was not taken up before the Disciplinary Committee and as such, the issue of violation of this right cannot be raised before this Court at this stage. In this respect the respondent relied on Oluoch Dan Owino & 3 Others vs. Kenyatta University (supra) where the court held that:

“The petitioners have also argued that their right to choose, and be represented by, an advocate, and to be informed of this right promptly was violated. The right of a party to be represented by Counsel in quasi-judicial proceedings such as the petitioners were subjected to is well recognized, but is subject to the rules of procedure of the tribunal to which a party is appearing before, and must be requested for before a violation of the right to legal representation can be alleged…the issue of legal representation was not raised before the Disciplinary Committee, and it cannot therefore properly be raised now as a ground for challenging the decision of the Committee.”

It was therefore the respondent’s view that the above perfectly reflects the position in the present case and the Court was urged to find that the challenge by the applicants is unmerited.

On the issue of double jeopardy, it was submitted that the criminal proceedings at Chuka Law Courts were instituted by the directorate of public prosecutions as it is a mandate of the state to protect individuals and property and that the respondent was in no way involved in the said proceedings. The Vice-Chancellor of the respondent University in his duty to ensure order and peace reported the riots to the police station. He never followed it up as the matter had been taken by the police. The subsequent discharge of the applicants was done by the prosecution and not the applicant. To the respondent, the disciplinary proceedings conducted by the University are in accordance with its statutory mandate and this is a different process from the criminal proceedings before a court of law. Therefore, the institution of criminal proceedings does not bar the respondent from carrying out its statutory mandate. The respondent supported this submission by citing Dry Associates Limited vs. Capital Markets Authority & Another Interested Party Crown Berger (K) Ltd [2012] eKLR,whereMajanja, J expressed himself as follows:

“I have examined the charge sheets which form the basis of the criminal charges against Karanja. The charges were not initiated by the CMA as complainant but specific investors who claimed that Karanja has stolen their money. The criminal charges are being pursued by the State which does so in public interest. In this case, I do not think that the charging Karanja affects the statutory authority of CMA. CMA has wide discretion in the manner it uses the various tools in its arsenal.”

The Court was urged to adopt a similar stance in the current dispute as the same relates to similar assertions.

To the respondent the Applicants have raised a rather unfortunate ground in both their pleadings and submissions. In its view, the allegations are not only unfortunate but also incorrect. In paragraph 12 of their submissions, the applicants have listed three students whom they claimed were part of their mischief but claimed that they were not expelled. Nothing could be further from the truth. According to the respondent, John Kamau is indeed the 34th Applicant herein and suffered the same fate. Issack Mwangi and Sacred Mwangi were also expelled after the disciplinary process. It was therefore submitted that the said allegations were unsubstantiated and unfounded and as such must be treated with utmost contempt.

In conclusion, it was the respondent’s position that IT respondent adhered to the required provisions of the law in conducting its disciplinary proceedings against the applicants and that the application before this Court is fatally and incurably defective ought to be struck it out with costs to the Respondent.

Determinations

I have considered the issues herein.

The respondent has raised a number of preliminary procedural and jurisdictional issues which in its view ought to dispose of these proceedings. I therefore wish to deal with the same first.

The first issue that was raised by the respondent was based on the provisions of Order 53 rule (1) of the Civil Procedure Rules which provides that:

“no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.”

It was contended that the substantive Notice of Motion was not properly made in accordance with the provisions of the Civil Procedure Rules as the same was lodged in court together with the Chamber Summons seeking leave contrary to the above express provisions. To the respondent since this provision is couched in mandatory terms, the applicant must first obtain the leave of the court before making the substantive application. However, the applicants blatantly disregarded this mandatory provision when they filed both the application for leave and the substantive application together. The respondent noted that whereas during the grant of leave to institute the Judicial Review proceedings, the court directed the Applicants to file the substantive motion within ten (10) days, the Applicants did not seek to have the motion already filed be deemed as properly on record.

It is not in doubt that the Notice of Motion herein was filed at the same time as the Chamber Summons that sought leave. This issue calls for a re-examination of the stage at which judicial review proceedings proper are legally deemed to have commenced. Judicial Review, are mandatorily required as a matter of law to be commenced by way of leave. As reproduced hereinabove Order 53, rule 1(1) of the Civil Procedure Rules provides that an application for judicial review is to be made upon leave being granted.

The word “leave” is defined by Black’s Law Dictionary, 9th Edn. at page 974 as “Judicial permission to follow a non-routine procedure”. “Leave” is clearly therefore a permission to take a particular judicial procedure and in this case it is permission to commence judicial review proceedings.

It is therefore clear that an application for judicial review is not made until after leave is granted. If the grant of leave was to be construed as an application for judicial review, it would in my view constitute an absurdity. If the Rules Committee was of the view that an application for leave constitute the suit, the said Committee would in my view have used the phrase such as “an application for an order of mandamus, prohibition or certiorari shall be commenced by leave”or similar provision.

The Chamber Summons is simply an application for leave or permission to commence judicial review proceedings and whereas on the filing of the Notice of Motion the Chamber Summons is subsumed or submerged in the Motion, it is the Motion that originates the judicial review application proper. I can do no better than quote the Court of Appeal in R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Televisions Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199 where it expressed itself inter alia as follows:

“The proceedings under Order 53 can only start after leave has been obtained and the proceedings are then originated by the notice of motion filed pursuant to the leave granted. It would be somewhat ridiculous to bring the application for leave by way of an originating summons and once the leave is granted, the originating summons is then swallowed up or submerged in the notice of motion.”

Similarly in Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993 it was held by a three Judge bench of this Court that it is consequent upon leave being granted that an application is brought. On the same note, Mike J. C. Mills & Another vs. The Posts & Telecommunications Nairobi HCMA No. 1013 of 1996 held inter alia that the application for leave does not commence judicial review until such permission is granted to institute appropriate Judicial Review application.

Therefore both on the letter of the law and on authorities, judicial review proceedings are commenced after leave therefor is sought and granted.

Thereafter a Notice of Motion is filed in the same cause and the documents filed in support of the application form part of the main application for judicial review. In other words unless leave to file further documents is sought and granted the applicant is only expected to file a Notice of Motion subsequent to the leave being granted. This was the position taken by Nyamu, J (as he then was) in Paul KipkemoiMelly vs. The Capital Markets Authority Nairobi HCMA No. 1523 of 2003where he held:

“All affidavits must be served with the notice and the statement on the Registrar and a party at the hearing of the Notice Motion seeking the actual orders must rely on the affidavit verifying the statement at the time of leave. A statement can however be amended with leave and further affidavits can be allowed upon notice, if third parties raise new matters…There is nothing that offends S 9 of the Law Reform Act in allowing a party to file a proper verifying affidavit in an emergency situation because of the word “affidavits” in plural.”

The position was restated in Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321 by the same Judge as follows:

“There is no legal requirement that the statement and verifying affidavit or any other supporting affidavits and documents relied on by the applicant be filed together with the Notice of Motion and indeed there is no requirement that the motion be filed simultaneously with any other document. Order 53, rule 4 requires that the Motion be served together with the documents filed at the application for leave stage and the grounds to be relied on in support of the motion are those set out in the statement filed at leave stage and the facts are as set out in the affidavit verifying the statement. This means that no other documents need be filed with the Motion and the Motion is supported by the statement and the affidavits accompanying the application for leave. However under Order 53, rule 4(2) the applicant can file other or further affidavits, apart from those accompanying the application for leave, in reply to any affidavits filed by the other parties (where they introduce a new matter arising out of the affidavits) and the applicant can do so after sending out a notice to the parties and the procedure for this is clearly outlined in the rules. Where the other parties have not filed any affidavits the applicant would under Order 53 have no legal basis for filing another or further affidavits. To this extent the applicant’s case is complete at leave stage and practicing advocates are cautioned that the Civil Division Procedure of filing many affidavits to counter the opponent’s case is a hangover, which is not acceptable under the Judicial Review jurisdiction.”

I would therefore agree with the respondent that the failure to comply with the mandatory provisions of the law cannot be excused and associate myself with the holding in Republic vs. Attorney General & 2 Others Ex-parte Robert Magige [2013] eKLR (supra) where it was held that:

“A party cannot be allowed to claim that failure to comply with the rules amounts to procedural technicalities which can be ignored by the court. Sometimes, the court can excuse non-compliance with technical rules but where a rule goes to the substance of the matter, the court has no option but to enforce the rule.”

There is however one issue that has bothered my mind with respect to the manner in which proceedings subsequent to the grant of leave progressed. On 5th May, 2016, Lenaola, J granted leave to the applicants to institute a judicial review application against the Respondent herein for orders of certiorari, prohibition and mandamus. Prayer 3 which sought that leave do operate as stay of proceedings in Chuka Senior Principal Magistrate’s Court Criminal Case No. 140 and 158 of 2016 was abandoned while the prayer that leave do operate as stay of the decision of the respondent was directed to be heard inter partes on 9th May, 2016. Suffice it to say that the Court did not stipulate the time within which the substantive application was to be filed. That notwithstanding, Order 53 rule 3(1) of the Civil Procedure Rules, provides that:

When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.

In my view, whereas the Court at the time of granting leave is at liberty to stipulate the period within which the substantive Motion is to be filed, if no such period is stipulated the Motion ought to be filed within twenty-one days. Accordingly, in the instant case, the Motion ought to have been filed by latest 26th May, 2016. However, on 9th May, 2016 when the matter came for the inter partes hearing of the limb for stay, Korir, J directed that the Motion be filed within 10 days from 9th May, 2016. In effect the orders of 9th May, 2016 had the effect of abridging the time deemed to have been given under Order 53 rule 3(1) aforesaid.

Whereas I appreciate the applicants ought to have applied for their already filed Motion to be deemed as duly filed, it is clear that the confusion was partly caused by the Court itself and I am not prepared to punish the applicants for this. In these circumstances I would invoke the provisions of Article 159(2)(d) of the Constitution and deem the Motion as having been properly filed.

It was the Respondent’s case that it was not served with the court summons as alleged by the applicant and that the failure to effect service is detrimental to any suit before a court of law hence the application before the court be struck out for failure of service. It must however be kept in mind that what was meant to be determined inter partes was the issue of whether the leave already granted would operate as a stay of the decision in question. Whereas in certain cases the failure to comply with the directions of the Court may call for termination of the proceedings, the Court in deciding what action to take ought to take into account the principle of proportionality. In my view where leave has already been granted and the pending issue is that of stay it would be irrational to strike out the proceedings on the basis that the respondents were never served.

It is my view that the failure to serve the respondent in those circumstances may lead to vacation of the stay if already granted or denial of the same if none had been granted. However, where the failure to serve was meant to steal the match on both the Court and the respondents, the same may be construed to have been meant to overreach in which event the same may constitute an abuse of the Court process. In Mitchell and Others vs. Director of Public Prosecutions and Another (1987) LRC (const) 128 it was held that:

“ ….in civilized society legal process is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties .It can be used properly ,it can be used improperly, and so abused. An instance of this is where it is diverted from its proper purpose, and is used with some ulterior motive, for some collateral one or to gain some collateral advantage, which the law does not recognize as legitimate use of that process. But the circumstance in which abuse of process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes extrinsic evidence only. But if and when it is shown it happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instance. Others attract the res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against the party issuing it in earlier proceedings between the parties”

Accordingly, in appropriate cases the Court may well be entitled to opt for the extreme measure of terminating the proceedings. In these circumstances, however, the stay having been vacated, I am of the view that such a course is uncalled for.

It was contended by the Respondent that the application before the court is fatally defective for failing to comply with the Civil Procedure Rules in that the application is premised on a verifying affidavit which does not contain any factual or evidential basis to support it contrary to Order 53 Rule 2 of the Civil Procedure Rules which states that:

An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

The difference between the contents of the statement and the verifying affidavit was clarified in Commissioner General, Kenya Revenue Authority Through Republic vs. Silvano Anema Owaki T/A Marenga Filing Station Civil Appeal No. 45 of 2000, the Court of Appeal expressed itself as follows:

“We are certain that the issue of the procedure used does not arise inasmuch as the applicant has not ruled out the possibility of the bulk of the products containing the chemical used only in the products meant for export. That much is clear from some of the matters in the Statement accompanying the application for leave, which the Judge in his ruling, despite the statements purportedly of facts being worthless, appear to put a lot of faith in. The learned Judge decided the application for judicial review on the basis of inadmissible matters. We would observe that it is the verifying affidavit not the Statement to be verified, which is of evidential value in an application for judicial review. That appears to be the meaning of rule 1(2) of Order LIII. This position is confirmed by the following passage from the Supreme Court Practice 1976 Vol. 1 at paragraph 53/1/7:

‘The application for leave “By a statement” – The facts relied on should be stated in the affidavit (see R v. Wandsworth JJ. ex p. Read [1942] 1 KB 281). “The statement” should contain nothing more than the name and the description of the applicant, the relief sought, and the grounds on which it is sought. It is not correct to lodge a statement of all the facts, verified by an affidavit.’

At page 283 of the report of the case of R v. Wandsworth Justices, Viscount Caldecote CJ said:

‘The Court has listened to argument on the proper procedure or remedy in the case of the exercise by an inferior court of a jurisdiction which it does not possess. It is, however, not necessary here to consider whether or not there has been a usurpation of jurisdiction, because there has been a denial of justice, and the only way in which that denial of justice can be brought to the knowledge of this court is by way of affidavit. For that reason the court is entitled, indeed, it is bound, if justice is to be done, to look at the affidavit just as it would in an ordinary case of excess of jurisdiction.’ ”

In this case, it is true that the verifying affidavit was economical in terms of the facts. In order to appreciate its substance, the same is reproduced hereinbelow:

THATI am an adult of person of sound mind, the 1st Applicant herein.

THAT I was a candidate for the post of Chairmanship for Chuka University Students Association (CUSA) in the elections conducted on 29th January 2016.

THATI have studied the Application and the supporting documents and affirm the contents stated therein to be true to the best of my knowledge and information

THAT what is stated herein is true to the best of my knowledge, information and belief.

However, there was a supporting affidavit sworn and filed with the application. In my view although the Rules talk of “affidavits verifying the facts relied on” where there is in fact an affidavit on record the Court cannot ignore the same. Accordingly, I find that the deficiency on the verifying affidavit could have been cured by the said affidavit. However, the said supporting affidavit did not incorporate the exhibits relied upon by the applicant. These exhibits were annexed to the statement which though drawn as an affidavit was not sworn. Accordingly, its evidentiary value was at best worthless.

In this case, the applicants are 36 in number. However only one applicant has sworn affidavits. In the said affidavits, the deponent does not even pretend that he was authorised by the other applicants to depose to the facts therein on their behalf. In my view where there are several applicants, they ought to verify their respective facts by way of an affidavit where their cases are not exactly the same as was in the instant case. In the absence of affidavit verifying the facts there would be no material before the Court upon which the Court would entertain the application in which case the application would be rendered incompetent and liable to be struck out.

It was further contended that the applicant’s statutory statement was also fatally defective and contrary to the provisions of rule 1(2) of Order 53 which states that the statement should set out the name and description of the applicant, the relief sought, and the grounds on which it is sought. In the case of Commissioner General, Kenya Revenue Authority Through Republic vs. Silvano Anema Owaki T/A Marenga Filing Station (supra), the Court held that:

“The application for leave was grounded on the matters set out in the statement accompanying the application and in the verifying affidavit The statement is required by rule 1(2) of Order LIII of the Civil Procedure Rules to set out the name and description of the applicant, the relief sought, and the ground on which it is sought. The facts relied on are required by the rule to be in the verifying affidavit not in the statement as largely happened in this case.”

The Respondent also relied on Bespoke Insurance Brokers vs. Philip Kisia, the Town Clerk City Council of Nairobi & Another [2013] eKLR where it was held that;

“Thirdly, the respondents argued that the statutory statement does not adhere to the provisions of Rule 1(2) of Order 53 Civil Procedure Rules. According to the said rule a statutory statement should contain the name and description of the applicant, the relief sought and the grounds upon which the relief is sought. It is the respondents’ argument that the statutory statement does not contain the grounds upon which the reliefs are sought but facts relied upon. The respondents argue that the facts are supposed to be found in the verifying affidavit(s). The respondents are correct in their submissions. The contents of a statutory statement are as they have stated. The facts to be relied upon are supposed to be found in the verifying affidavit(s).”

In this case, it is however clear that the statement filed herein did not comply with the requirements of the Rules. It has however not been contended that the Respondent was prejudiced by the failure to strictly comply with the Rules. In my view, where a legal provision requires that a process be taken or that it be undertaken in a particular form but does not provide for the consequences of the failure to take such an action, the Court would be reluctant to interpret such an omission to be fatal to the suit if the same can be cured. In this case, the procedure provides for amendment of the statement. It has been held before that rules of procedure are the handmaids and not the mistresses of justice and should not be elevated to a fetish since theirs is to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it. Where it is evident that a party has attempted to comply with the rule but has fallen short of the prescribed standards, it would be to elevate form and procedure to fetish to strike out the suit. Deviations from, or lapses in form and procedure, which do not go to jurisdiction of the court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances the court should rise to its calling to do justice by saving the proceedings in issue. See Microsoft Corporation vs. Mitsumi Garage Ltd & Another Nairobi HCCC No. 810 of 2001;[2001] 2 EA 460; Oduor vs. Afro Freight Forwarders [2002] 2 KLR 652.

In Boyes vs. Gathure [1969] EA 385 it was held that using an incorrect form of procedure which has, in fact, brought the parties before the court and has, in fact, enabled the parties to present their respective cases to the court is not an incorrect act of such a fundamental nature that it should be treated as if it, and everything consequent upon it, did not exist and never had existed. Rules of procedure are designed to give effect to rights of the parties and once parties are brought before the courts in such a way that no possible injustice is caused to either, then a mere irregularity in relation to the rules of procedure would not result in vitiation of the proceedings. It has to be made clear that this does not mean that the rules of procedure should not be complied with – indeed they should be. But non-compliance with the rules of procedure of the court, which are directory and not mandatory rules, would not normally result in the proceedings being vitiated if, in fact, no prejudice has been done to the parties. SeeBrooke Bond Liebig (T) Ltd. vs. Mallya Civil Appeal No. 18 of 1975 [1975] EA 266;Mawji vs. Arusha General Store [1970] EA 137.

It must always be remembered that the mere fact that a rule applies the word “shall” does not make the said requirement mandatory since the mere use of the word “shall” cannot oust the jurisdiction of the Court. In Standard Chartered Bank Ltd. vs. Lucton (Kenya) Ltd. Nairobi (Milimani) HCCC No. 462 of 1997Ringera, J(as he then was) held that the use of the word “shall” in a statute only signifies that the matter is prima facie mandatory and its use is not conclusive or decisive and it may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.

Therefore if the application was opposed merely because the statement did not strictly comply with Order 53 rule 1(2) the Court would be reluctant to disallow the application.

It was further submitted by the Respondent that the prayers sought in the substantive application are at variance with those sought in the leave application. To the respondent, the applicants have purported to seek prayers in the substantive application which are at variance with the prayers sought in the leave application. In the chamber summons application for leave, the applicants sought 5 prayers. The first 3 prayers relate to the leave to institute judicial review proceedings and the leave sought to operate as stay of both the respondent’s decisions contained in letters of 15th April 2016 and the criminal proceedings in Chuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016: R v Kennedy Omondi Waringa and 17 Others. Those are the main prayers in the chamber summons application. The notice of motion however contains 9 prayers which, according to the respondet, are substantially different from those in the leave application.

This Court agrees that the position in such matters is reflected in Bespoke Insurance Brokers vs. Philip Kisia, The Town Clerk City Council of Nairobi & another (supra)where the court held thus;

“The respondents also attack the applicant’s application on the ground that the main prayer in the notice of motion is different from the prayer that the applicant had placed before the court when seeking leave. I agree…For reasons unknown to the court the applicant decided to add the words ‘together with interest thereon until payment in full’ to its main prayer in the substantive notice of motion. The applicant therefore went against the leave granted. I therefore strike out the above words from the first prayer of the applicant’s notice of motion dated 22nd March, 2012. ”

Similar sentiments were expressed in Republic vs. Attorney General & 4 Others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR where it was held that:

“It is therefore my view that since no leave was sought and obtained to apply for prayers 1 and 3 in the Motion, notwithstanding the amendment of the Motion those prayers are incompetently before this Court. The same are accordingly struck out.”

It is true that in the Chamber Summons, the following were the prayers that were sought:

THAT this Honourable Court be pleased to grant leave to the Applicants to institute a judicial review application against the Respondent herein for the orders of Certiorari, Prohibition and Mandamus.

THAT the said grant of leave to the Applicant to institute these Judicial Review proceedings do operate as a stay of the decision of the Respondent taken on 21st -24th March 2016 and in the Senate on 14th April 2016 as communicated in letters dated 15th April 2016 addressed to the Applicants.

The grant of leave to the Applicants to institute these Judicial Review proceedings do operate as a stay of the proceedings in the Chuka Senior Principal Magistrates Court Criminal Case No. 140 and 158 of 2016: Republic vs. Kennedy Omondi Waringa and 17 Others.

The costs of and incidental to this application be provided for in any event.

Such further or other relief as the Honourable Court may deem fit, just and expedient to grant.

In the substantive Motion, on the other hand, the applicant sought the following orders:

An order of certiorari to remove into this court and quash the proceedings, findings and decisions of the Respondent’s Disciplinary Committee of 21st -24th March 2016 and Senate of 14th April 2016 as contained in the Respondent’s letters dated 15th April 2016 addressed to the Applicants.

An order of prohibition do issue against the Respondents and/or any of its authority, organ, body or persons from implementing the decision of the Senate communicated by the letters dated 15th April 2016 in whatever manner whatsoever or in any other matter relating to the outcome of Student elections announced on 29th January 2016 or otherwise.

An order of prohibition do issue against the Respondents and/or any of its authority, organ, body or persons from instituting disciplinary proceedings, arresting, charging or prosecuting, suing or commencing any proceedings against the Applicants in relation to any matters touching upon or related to the outcome of the Student elections announced on 29th January 2016 or arising from the said Students Elections or otherwise.

An order of prohibition do issue against the Respondent from hearing or continuing with the proceedings against the Applicants in relation to any matters touching upon or related to the outcome of the Student elections announced on 29th January 2016 or arising from the said Students Elections or otherwise.

An Order of Mandamus directed to the Respondent to transfer the cumulative academic credits and units of the Applicants to a university of the Applicants’ choice.

An Order of Mandamus directed to the Respondent to administer special final examination to the 2nd Applicant JACKSON OTAKA PASTOR, a final year Masters student who missed his final examination conducted on 3rd May 2016.

An Order of Mandamus directed to the Respondent to organize and administer special lectures to the undergraduate students of 1st and 4th year who have missed lectures conducted during the period they were purportedly expelled.

The costs of and incidental to this application be provided for in any event.

Such further or other relief as the Honourable Court may deem fit, just and expedient to grant.

When one looks at the prayers in the Chamber Summons and in the Motion, it cannot be entirely correct to state that the Motion sought different prayers from the Chamber Summons. The problem here is that whereas the Summons sought bare prayers of judicial review without specifying their nature, the Motion on the other hand dealt with the specifics. It is however my view that it not enough to simply seek leave to apply for orders of certiorari, mandamus and prohibition. The applicant ought to go further and state what decision he will be seeking to quash, what duty he will be seeking to compel and what action he will be seeking to restrain. It is these particulars and details which will inform the Court in deciding whether or not a prima facie case is disclosed for the purposes of leave.

In response to the applicant’s submissions, the respondent averred that the applicants have in their submissions introduced evidence that were never included in the affidavits in support of their application. I agree that in legal proceedings, evidence ought not to be introduced by way of submissions. As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA NO. 46 of 2007:

“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”

The same Judge in Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:

“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

Similarly in in Ngang’a & Anothervs.Owiti & Another[2008] 1KLR (EP) 749, the Court held that:

“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”

In this case, it was contended that the following paragraphs of the Applicant’s submissions contain facts that were neither pleaded nor deposed to by the Applicants.

Paragraph 13 introduces an aspect of alleged victimization that was neither pleaded nor deposed to;

Paragraph 14 introduces issues of legitimate expectation and assault that were also not pleaded or deposed to.

On my part I have considered the submissions and the supporting affidavit and it is my view that the issue of ethnic victimisation was covered in paragraph 12 (sic) of the supporting affidavit which erroneously appeared between paragraphs 24 and 25 thereof. The issue of legitimate expectation arising from violation of the right to dignity on the other hand is a matter of law.

The Respondent also took issue with the fact that there exist a right to appeal against the decision of the Disciplinary Committee and that in fact some of the applicants had exercised such right. In Republic vs. National Environment Management Authority [2011] eKLR, it was held that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted. The Court of Appeal had this to say at page 15 and 16 of its judgment:

“ The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. The Learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute with respect we agree with the judge.”

There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute. This principle was well articulated by the Court of Appeal in Speaker of National Assembly vs. NjengaKarume (supra). In Re Preston [1985] AC 835 at 825D Lord Scarmanwas of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort.

I therefore associate myself with the position adopted by Emukule, J in Revital Healthcare (Epz) Limited & another v Ministry of Health & 5 others [2015] eKLR at paragraph 10 where he cited with approval the case of Damian Belfonte v The Attorney General of Trinidad and Tobago C.A 84 of 2004 in which it was held that:-

“…where there is a parallel remedy, Constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course. As a general rule there must be some feature, which, at least arguably indicates that the means of least redress otherwise available would not be adequate. To seek constitutional relief in the absence of such feature would be a misuse, an abuse of the Court’s process.”

This position has now acquired statutory underpinning by the enactment of the Fair Administrative Action Act, No. 4 of 2015 which is an Act of Parliament enacted pursuant to Article 47 of the Constitution. Section 9(2), (3) and (4) thereof provides:

(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.

It is however my view that the onus is upon the applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. In this case the applicants have not shown why the Court ought to exempt them from the remedy provided under the Respondent’s disciplinary procedure. In fact some of the applicants had resorted to the said procedure before instituting these proceedings.

Findings

Having considered the issues raised herein, I find that whereas any one of the foregoing errors and omissions may, taken alone, be capable of being cured under the provisions of Article 159(2)(d) of the Constitution, the several errors disclosed in the application constitute a comedy of errors and omissions which without any explanation being offered cannot be excused. The decision whether or not to excuse an error is an exercise of discretion and like any other discretion must be exercised upon reason and must not be capriciously done or done on the whims. See Masefield Trading (K) Ltd. vs. Francis M Kibui Nairobi (Milimani) HCCC No. 1796 of 2000 [2001] 2 EA 431.

I have also taken into account the existence of the alternative remedy has not been shown to be less convenient, beneficial and effectual. The applicants therefore ought to pursue the said remedy and only approach this Court after the same are exhausted or if the Court is satisfied that the existing alternative remedies are inappropriate in the circumstances of this case. However the fear that such a remedy is unlikely to succeed, it has been recognised, does not constitute exceptional circumstances to warrant the Court in exempting a party from resorting thereto. This was the position adopted by Mohammed Ibrahim, JSC in Yusuf Gitau Abdallah vs. Building Centre (K) Ltd & 4 others [2014] eKLR where he held that:

“A party cannot be heard to move a Court in glaring contradiction of the judicial hierarchical system of the land on the pretext that an injustice will be perpetrated by the lower court. Courts of justice have the jurisdiction to do justice and not injustice. However, the law acknowledges that judges are human and are fallible hence the judicial remedies of appeal and review. A party cannot in total disregard of these fundamental legal redress frameworks move the apex Court”.

In the premises I will not deal with the substance of the other issues raised in this application in order not to prejudice proceedings which may be instituted after the alternative remedies are exhausted. In conducting the said proceedings, the Respondents are however directed to the provisions of Article 47 of the Constitution which mandate it to ensure that its proceedings are expeditious, efficient, lawful, reasonable and procedurally fair.

Order

In the premises the order which commend itself to me and which I hereby grant is that these proceedings be and are hereby struck out. Taking into account the relationship between the applicants and the respondents, there will be no order as to costs.

Orders accordingly.

Dated at Nairobi this 12th day of July, 2016

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Apollo Mboya for the ex parte applicants

Mr Waweru Gatonye, SC for the respondent

Cc Mwangi