[2022] KEHC 3017 (KLR)

Republic v Dedan Kimathi University of Technology; Kelvin Mwangi Wambui (Exparte) (Judicial Review E006 of 2021) [2022] KEHC 3017 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3017 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review E006 of 2021

JN Njagi, J

May 6, 2022

Between

Republic

Applicant

and

Dedan Kimathi University of Technology

Respondent

and

Kelvin Mwangi Wambui

Exparte

Judgment

1. The ex parte applicant has filed a notice of motion dated 25th November 2021 seeking for orders that:(1)Judicial review orders of certiorari to move into this court and quash the decision of the Disciplinary Committee of the Dedan Kimathi University of Technology (the Respondent herein) from expelling the ex parte applicant from the said institution vide it decision of 13th August, 2021 and subsequent decision of 13th September 2021 suspending the exparte applicant for three academic years.(2)Judicial review orders of mandamus directed to the respondent compelling the respondent to allow the ex-parte applicant back to the University to resume his normal learning at the Respondent University.(3)The costs incidental to the application be in the cause.

2. The application is supported by the statement of facts and the verifying affidavit of the ex parte applicant. The gist of the application is that the applicant is a student of Dedan Kimathi University of Technology. That on the 12th August 2021 the applicant appeared before the Respondent`s Students` Disciplinary committee where he was facing three charges of:(1)Holding and participating in unlawful assembly and demonstration contrary to section 78 as read with section 79 of the Penal Code and section 32 and 33(1) and (k) of the Rules and Regulations Governing Conduct and Discipline of Students of the University. The facts are that on 15th July, 2021, you convened, organized, held and participated in an unlawful assembly of students and demonstrations within the University without permission from the University or Government authorities.(2)Malicious damage to the university property contrary to section 339(1) of the Penal Code as read with section 32 and 33(g) of the Rules and Regulations Governing the Conduct and Discipline of Students of the University. The facts are that on 15th July, 2021, you willfully and unlawfully destroyed or damaged the University property which included damage to the University buildings’ window panes/ glasses/ louvres and plumbing works, and surveillance cameras whose total value will be determined in due course.(3)Non-adherence to the Public Health (COVD-19) Restrictions of movement of persons Rules 2020 and Ministry of Health Guidelines. The facts are that on 15th July, 2021, you participated by convening, organizing, and/ or holding an unlawful assembly of students and demonstrations within the University without keeping social distance, wearing masks, and disregarded the allowed maximum number of persons required per meeting.

3. The applicant was found guilty of four counts vide a letter dated 13th August 2021 and he was expelled from the university. The applicant thereupon made an appeal to the University`s Appeals Committee. The appeal was heard on the 13th September 2021 and vide a letter dated 15th September 2021 the sentence was reviewed to expulsion from the University for three academic years. The exparte applicant was aggrieved by the said decision and moved to this Honorable Court with the prayers stated above.

4. The applicant contends that he was not accorded a fair hearing during the hearing before the committee; that he was denied legal representation; that the decision of the Committee was irrational in that it curtailed his right to education on account of ground of failure to keep social distance and failing to wear a mask. Further that the process leading to the decision did not take into account all the relevant material information and submissions.

5. The application was opposed by the respondent through the replying affidavit of Prof. Jennifer Wanjiku Khamasi, the Registrar Academic Affairs and Research where she deposes that on the 13th July 2021, the applicant together with other leaders of students associations collectively originated and shared a post on social media (facebook) which was inciteful to the students and called for demonstrations. That the applicant actively participated in the demonstrations, destruction of property, violence and held media briefing without permission of the respondent.

6. That arising from the above the applicant was invited to appear before the Disciplinary Committee. That vide a letter dated 26th July 2021 the applicant was advised of his rights before and during the disciplinary hearing, including appointing 2 students to represent him and filing of written submissions. That pursuant to that advice the applicant filed his report and submitted names of 2 appointees. That the applicant attended the hearing with his student representatives on 12th August 2021 and the hearing was conducted fairly and procedurally as provided for in the Respondent`s statutes.

7. That after a full hearing and consideration of the facts the committee reached a verdict of guilty on the two offences and resolved to expel the applicant from the university. That the applicant lodged an appeal to the Respondent`s Vice-Chancellor. That on the 13th September 2021 the Appeals Committee upon considering all the facts of the case reduced the penalty to a suspension of three academic years.

8. It was contended that the applicant has acted in bad faith by filing the instant case after submitting himself to the Respondent`s disciplinary mechanisms. That the applicant was accorded a right to fair hearing and a fair administrative action as provided in Articles 47 and 50 of the Constitution and the Fair Administrative Actions Act. That the Respondent did not violate the applicant`s right to fair hearing since he did not submit the name of any advocate or bring any advocate during the hearing. That the right to legal representation was nor applicable to this case according to Regulation 36(b)(iii) of the University statute and section 4(3)(e) of the FAA Act,2015. That in any case the applicant has not sought a declaration that the said Regulation is unconstitutional. That the application does not meet the requirements of granting the orders sought as the Respondent did not act without jurisdiction, in excess of jurisdiction or in violation of the rules of natural justice and or in violation of the laid down procedure.

Submissions 9. The application was canvassed by way of written submissions of the advocates representing the parties wherein Muhoho Gichimu & Co. Advocates was appearing for the applicant and Gitibi Rukioyah Advocate represented the Respondent.

10. The Applicant submitted that Judicial Review orders are meant to safeguard the rule of law and in this respect cited the Supreme Court decision in the case of Judges & Magistrates Vetting Board v Centre for Human Rights and Democracy (2014) eKLR where it stated that:“When Courts conduct judicial review, they are in essence ensuring that the decisions made by the relevant bodies are lawful. Consequent, should they find that the decision made is unlawful, courts can set aside that decision. Judicial review, therefore, can be said to safeguard the rule of law, and individuals right; and ensures that decision makers are not above the law, but have taken responsibility for making lawful decisions, in the knowledge that they are reviewable.”

11. It was submitted that the purpose of judicial review orders is to ensure that an individual is given fair treatment by the authority to which he has been subjected. The respondent cited the case of Republic v Kenya Revenue Authority exparte Yaya Towers Limited (2008) eKLR where it was held that:“The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the JR 3 of 2021 Page 59/82 individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the Court will, under the guise of preventing abuse of power be itself, guilty of usurpation of power.”

12. Consequently, counsel for the applicant submitted that the minutes of the disciplinary proceedings JWK7 show that there was only one student representative during the hearing despite the fact that the rules of the respondent provided for two student representatives. That this was a denial of the right to fair hearing.

13. It was submitted that the applicant had denied the charges. That there was no evidence adduced that he had committed the offences. That the decision of the committee was reached unfairly and ought to be quashed.

14. Counsel for the Respondent on the other hand submitted that the issues for consideration are first, whether the Respondent`s disciplinary process violated the applicant`s constitutional rights and secondly whether the application merits the orders sought.

15. It submitted that the hearing complied with the provisions of section 63 of the Universities Act in that the applicant was given adequate notice of the charges he was facing through the letter dated 27th July 2021. That one of the representatives that he brought during the hearing did not meet the set criteria for a representative which fact was captured in the minutes. That the right to have a representative is optional.

16. It was submitted that during the hearing the applicant was given an opportunity to be heard and he made representations. That the minutes of the committee confirm that rules of natural justice were observed during the hearing. That the applicant was informed of the decision of the committee and the reasons thereof and his right of appeal. That he exercised his right of appeal where due process was followed during the hearing.

17. On the issue of legal representation, it was submitted that the applicant did not provide the name of any advocate during he hearing neither did he present or request for an advocate during the hearing. That that notwithstanding, the statute limiting the applicant`s right to legal representation is in accordance with section 63 of the Universities Act. That not all administrative actions require a party to have legal representation as section 4 (3) (e) of the FAA Act provides that the administrator shall give the persons affected by the decision – Notice of the right to legal representation where applicable.

18. That in that case the Act recognizes that there are some circumstances where the right to legal representation is not applicable, like in the instant case where the Universities Act and the statutes specifically limit the right to legal representation. That the right was not applicable to the applicant in the instant case. To support this proposition they relied on the case ofNicholas Odhiambo Awino v Machakos University (2020)Eklr and Oluoch Dan Owino & 3 Others v Kenyatta(2014)eKLR.

19. It was submitted that judicial review proceedings are concerned with the decision-making process and not the merits of the decision as held in Oluoch Dan Owino & 3 Others v Kenyatta University (supra). That the applicant has failed to prove that the disciplinary committee`s decision was tainted with illegality, irrationality and/or procedural impropriety to warrant granting the orders sought. That the challenged decision has not been shown to be unlawful or malicious. That the respondent is vested with power to make the decisions in question. That it has not been alleged or proved that the decision was arrived at after taking into account irrelevant or extraneous matters. That the evidence proved that the applicant was engaged in the activities that led to the disciplinary hearing.

Analysis and determination 20. I have considered the application, the respondent’s response and the submissions filed by the parties together with the authorities that they cited. The issues for determination are:(a)Whether the applicant`s right to hearing was violated.(b)Whether the Petitioner has made a case for grant of the orders sought.

21. The applicant alleges violation of his rights as guaranteed under Article 47 of the Constitution (the right to fair administrative action) and Article 50 (the right to fair hearing).

22. Before I proceed further it is better to define the limitations of judicial review. The parameters of judicial review were set out by the Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 as follows:“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision’s touching on violation of fundamental rights. These are issues within this court's jurisdiction, hence, on this ground, this case passes the exception requirement.

23. In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that:“… The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.”

24. The applicant complains that the Disciplinary committee failed to conduct the proceedings in a fair, transparent, accountable and credible manner. That he was denied legal representation on account of the respondent`s regulations. That the charges levelled against him were not proved and therefore that the decision to suspend him was arbitrary and unreasonable.

25. The Respondent on the other hand contends that the whole process was procedurally fair and that there was no breach of the law. That the applicant was given an opportunity to be heard and to make his presentations. That he was also heard on appeal.

26. Section 4(3) and (4) of the Fair Administrative Action Act provides the key procedural steps that are required to satisfy the requirements of fairness 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-(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to-(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and(d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing.(5)Nothing in this Section shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi –judicial proceedings.

27. Article 47 of the Constitution of Kenya 2010 provides as follows:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

28. The duty of this court is to determine whether the process followed by the respondent in disciplining and finally suspending the applicant from the respondent University was lawful, reasonable, and procedurally fair. What amounts to procedural impropriety was stated in the case of Pastoli v Kabale District Local Government Council & Others[2008] 2 EA 300,where the court stated as follows:“Procedural impropriety is when there is failure to act fairly on the part of the decision- making authority in the process of taking a decision. The unfairness may be in the process of taking a decision. The unfairness may be in the non- observance of the Rules of Natural Justice or to act with procedural fairness towards one affected d 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.”

29. The minutes of proceedings submitted by the respondent shows that charges were read to the applicant. The Chief Security Officer then showed him photographs/videos of the destruction caused by rioting students which included window panes for university bus, medical centre, student`s mess, student`s hostel, overturned guard house at Gate C among others.That the applicant then responded and denied the charges as per his letter dated 4th August 2021. He denied taking part in the riot. He claimed to have encountered with the police at Bomas but he was able to go to his hostel. He said that he had addressed the media but it was outside the university.

30. The applicant was then cross-examined by members of the panel. He admitted not keeping distance while in the crowd that was participating in the unlawful assembly. He was then showed photographs/videos of him participating in the unlawful assembly. He identified himself in the crowd. The minutes recorded the following:“At 11:22 am Kelvin is seen at the SMBE actively participating in the unlawful assembly by carrying a placard, while being calmed by policemen. This is the group that went and blocked the Nyeri-Nyahururu road before being chased away by the police. Thereafter Kelvin is seen addressing the media about the university without authority of the university management.”

31. A decision was then reached that the applicant actively organized and participated in the student riots which resulted in damage/destruction of university property. That his claim of having left for his hostel was not true as he was seen at SMBE holding a placard. That he addressed the media about the university without authority of the university management. That his claim of keeping social distance while in the crowd that was participating in the unlawful assembly was not true. He was thus found guilty as charged and a verdict was reached that he be expelled from the university.

32. It is clear from the record that no witnesses were called in the case. The applicant was the first to give his side of the story. He was then cross-examined by members of the panel after which evidence was produced in the form of photographs/videos. The committee then proceeded to make a decision without giving the opportunity to cross-examine the security officer on the photographs. In other words, the applicant was first called upon to exonerate himself before evidence was led by his accusers.

33. In my view the procedure adopted by the committee was contrary to the tenets of a fair trial in that the applicant was asked to exonerate himself before evidence was led against him. The committee failed to give him an opportunity to cross-examine the witness for the respondent.

34. The right to cross-examine witnesses is an inalienable right. InRepublic v Kenyatta University Exparte Njoroge Humphrey Mbuthi [2015 eKLR Justice Odunga faulted the college for failure to accord a student the right to cross-examine his accusers and said that:“However, the law is now clear that where adverse evidence is given about a person, the person is to be afforded an opportunity to cross-examine the said witnesses.

35. Also in another case involving the same Respondent herein in Lucy Wanjiku Gitumbi & another v Dedan Kimathi University of Technology [2016] eKLR the court stressed the importance of giving students the opportunity to cross examine their accusers and said that:There is absolutely no reason why the applicant students were never accorded an opportunity to cross examine their accusers which I consider was essential to due process as it is inevitably a factor which the court will consider in determining the overall fairness of an administrative proceeding, even though the hearing was not conducted by persons experienced in legal process.

36. Similarly in Onjira John Anyul vs. University of Nairobi (2019) eKLR the court decried failure of the committee to give an opportunity to the student to cross-examine witnesses.

37. The applicant was facing very serious offences that included penal offences. It is a well-known fact that some cases are won on cross-examination alone. It was prejudicial to the applicant for him to be denied the opportunity to cross-examine his accusers.

38. The other issue is the matter of legal representation. Regulation 36(b)(iii) of the Respondent`s Disciplinary Regulations prohibits representation by a lawyer during disciplinary proceedings. This is contrary to the clear provisions of section 4(5) of the FAA Act which provides that bodies with quasi-judicial powers should not limit the right to legal representation. I find that the respondent was in breach of the applicant`s fundamental right to legal representation in barring legal representation in their rules. It does not matter that the applicant did not give out the name any advocate or that he did not turn up with one. The respondent cannot blame the applicant for abiding by their illegal regulation.

39. I have also perused the proceedings of the Appeals Committee. The committee conducted the appeal in the absence of the applicant and only relied on his letter of appeal dated 20/8/2021 and the minutes of the Students Disciplinary committee. The Appeals Committee in doing so denied the applicant the opportunity to be heard and make representations and the right to legal representation which was contrary to the provisions of sections 3 and 4 of the FAA Act. The applicant was also denied the opportunity to offer his mitigation before the sentence was pronounced. In Republic vs. Chuka University Ex-Parte Kennedy Omondi Waringa & 16 Others [2018] eKLR where the appeal was conducted in the absence of the appellants, the court stated that: -“70. Nonetheless as the Senate was considering an appeal lodged by the applicants challenging their expulsion/ suspension by Grievance Handling Appeals Committee, it was absolutely necessary that the applicants be called upon to choose whether they wished to be present at the said hearing to present their appeals orally, in person or through legal representation or by way of written submissions. Such opportunity was never accorded to them. In my view, the failure to accord the applicants an opportunity to be heard during the Senate hearing deprived them of their constitutional right to be heard and to be accorded a fair hearing and to a fair administrative action since the decisions that were to be taken were no doubt going to adversely affect the applicants’ rights to education. A party does not lose the right to be heard on appeal simply because they were accorded a hearing at the lowest level of the dispute. Being heard on appeal is an opportunity to challenge the manner in which the inferior body or tribunal handled the matter and therefore the applicants should never have been locked out of the appeal process as the denial ousted the applicants from the fair administrative process and from the judgment seat. Had the applicants been heard on appeal to the Senate, they would have had a chance to raise serious issues such as quorum.”

40. In Gathigia vs. Kenyatta University NairobiHCMA No. 1029 of 2007 [2008] KLR 587 the Court held:“I would at this stage adopt the observations made in the Hypolito Cassiani De Souza vs. Chairman Members of Tanga Town Council 1961 EA 77 where the court set down the general principles which should guide statutory domestic or administrative tribunals sitting in a quasi-judicial capacity. P 386 – the court said;1. “.If a statute -prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed;2. If no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue;3. In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means. It must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as a trial. It need not examine witnesses; and it can obtain information in any way it thinks best…;4. The person accused must know the nature of the accusation made;5. A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement they may decide to bring forward;6. The tribunal should see to it that matter which has come into existence for the purpose of the quasi–lis is made available to both sides and once the quasi-lis has started, if the tribunal receives a communication from one party or from a third party, it should give the other party an opportunity of commenting on it.”

41. In view of the foregoing, I find that there was a violation of the right to fair hearing in the manner both the disciplinary proceedings and the appeal were conducted.

42. Though the concern of judicial review has always been the decision-making process and not the merits of the case, Article 47 of the Constitution has expanded grounds of judicial review to include reasonableness of the decision. The Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] KLR, had the following to say on the issue:“55. An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, Section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision playing a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in Article 24 (1) (b) and (e) of the Constitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications.

43. From the above citation, it is now recognised that one of the grounds for grant of judicial review relief is unreasonableness of the decision being challenged. This is clearly a deviation from the traditional common law approach that what is to be considered is the process by which the decision is arrived at rather than the decision itself. An examination of whether or not a decision is unreasonable clearly calls for some measure of consideration of the merits of the decision itself though not in the manner contemplated by an appellate process.

44. It is in this respect that in Kenya Human Rights Commission vs. Non-Governmental Organizations Co-Ordination Board [2016] eKLR the court held that the Court,“… effectively has a duty to look both into the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, and also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50(1) of the Constitution.”

45. One of the reasons that prompted the respondent to kick the applicant out of the university for a period of 3 years is failing to keep social distance and failing to wear a mask. In my considered view it is irrational for a university to suspend a student for a whole period of 3 academic years for reason of failing to wear a mask. Even if the charge were proved, the punishment meted out by the respondent was not proportionate to the offences.

46. I have also noted that the applicant was found guilty of the offence of bringing the university into disrepute, ridicule and public odium yet the offence did not form part of the charge as captured in the minutes of 12/8/2021. It was prejudicial to the applicant for him to be found guilty of an offence that did not form part of the charge.

47. The other two charges that the applicant was facing were penal offences in which case a higher degree of proof was required than the kind of evidence produced by the respondent.

48. In view of the foregoing, I find that the disciplinary process employed by the respondent was flawed and as such it denied the applicant the right to fair hearing. In the premises the decisions of the respondent in expelling and suspending the ex parte applicant from the respondent university are removed into this court and by an order of certiorari are hereby quashed. I therefore make the following orders:(1)Judicial review orders of certiorari be and are hereby issued to move into this court and quash the decision of the Respondent’s Students`General Disciplinary Committee of 13th August, 2021 expelling the applicant from the university and subsequent decision of the Students’ General Disciplinary Appeals Committee of 13th September 2021 suspending the ex-parte applicant from the University for three academic years.(2)Judicial review orders of mandamus be and are hereby issued directed to Dedan Kimathi University of Technology compelling it to allow the ex-parte applicant herein back to the Respondent university to continue with his normal learning at the institution.It is so ordered. Each party to bear its own costs.

DELIVERED, DATED AND SIGNED AT NYERI THIS 6TH DAY OF MAY 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Muhoho: for ApplicantMr. Gitibi: for RespondentCourt Assistant: Kinyua30 days Right of Appeal.