[2022] KEHC 494 (KLR)

Republic v Technology (Judicial Review E002 of 2021) [2022] KEHC 494 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 494 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review E002 of 2021

JN Njagi, J

May 12, 2022

Between

Republic

Applicant

and

Dedan Kimathi University Of Technology

Respondent

Judgment

1. The ex-parte applicant has filed a Notice of Motion dated September 21, 2021 seeking for:(1)Judicial review orders of certiorari to move into this court and quash the entire decision of the students’ General Disciplinary Committee of the Dedan Kimathi University of Technology contained in the letter dated 18th August, 2021. Expelling the exparte applicant from the Respondent University.(2)Judicial review orders of mandamus directed to the respondent compelling the respondent to allow the ex-parte applicant back to the University to continue with his normal learning and complete his University Education in the said institution.(3)The costs incidental to the application be in the cause.

2. The notice of motion is supported by the affidavit of the ex parte applicant from the facts in the verifying affidavit sworn by himself in support of the Certificate, Chamber Summons and from his Statement of facts filed in support of the notice of motion.

3. The case for the Applicant is that he is a student of the Respondent pursuing a Bachelor of Science degree in Electronic Engineering and was the Secretary General of the Respondent`s Students’ Organization. That vide a letter dated July 26, 2021, he was summoned to appear before the Students` Disciplinary Committee of the Respondent on the 12th August 2021 to face the following charges:(1)Holding and participating in an unlawful assembly and demonstrations contrary to Section 78 (1) as read with Section 79 of the Penal Code and Section 32 and 33 (f) and (k) of the Rules and Regulations Governing Conduct and Disciple of Students of the University. The facts were that on July 15, 2021, he participated by convening, organizing, and/or holding an unlawful assembly of students and demonstration within the University without permission from the University of Government authorities.(2)Incitement to violence and disobedience to the law contrary to Section 96 (a), (b) and (c) of the Penal Code and Section 32 of the Rules and Regulations governing Conduct and Discipline of Students of the University. The facts were that on July 15, 2021 while within the University, he incited other students to violence through his memos dated 30th June, 2021, 13th July, 2021 and July 14, 2021 which he shared on WhatsApp; that were calculated to bring death or physical injury to the University community; damage or destruction of the University property; or defiance or disobedience of the law or the University authority.(3)Disregarding or defying the advice or order given by the officers of the University contrary to Section II (a) and (b) as read with Section 32 of the Rules and Regulation Governing the Conduct and Discipline of Students of the University. The facts were that on 15th July, 2021, he participated by convening, organizing, and/or holding an unlawful assembly of students and demonstrations within the University in defiance of the orders issued by the Director of Students’ Welfare on 14th July, 2021 that he stops the meeting or demonstration. Further that, on 15th July, 2021 while within the University, he disregarded or defied orders of the Chief Security Officer and police to stop all unauthorized meeting, inciting other students and demonstrations.(4).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 Disciple of Students of the University. The facts were that on 15th July, 2021, he wilfully and unlawfully destroyed or damaged the University property which included damage to the University buildings’ window panes/ glasses/ louvers and plumbing works, and surveillance cameras whose total value will be determined in due course.(5)Non- adherence to the Public Health (Covid-19 Restriction of Movement of Persons and Related Measures) Rules 2020 and Ministry of Health Guidelines. The facts were that 0n July 15, 2021, he 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.

4. The applicant did appear before the Committee and defended himself against the accusations. That vide a letter dated August 13, 2021, the Committee communicated to him that he had been found guilty of the charges and it was resolved that he be expelled from the University. He was accordingly issued with an expulsion letter.

5. The applicant contends that he was not given a fair hearing by the Disciplinary Committee. That the committee failed to act in a fair, transparent, accountable and credible manner as required by Articles 10, 47 and 201 of the Constitution. That he was denied the right to legal representation and was not furnished with any investigation reports or findings with regard to any of the charges. That it was irrational for the Respondent to expel him from the University on account of failure to keep social distance and failing to wear a mask. That some of the accusations that the appellant was facing were penal in nature yet the applicant has never been charged in any criminal court over the alleged offences and therefore that the decision to find him guilty was unreasonable and arbitrary. That the Disciplinary Committee failed to determine the issues before it and acted against the laid down laws and procedures to tilt the scales so as to expel him from the University in breach of the provisions of the law. That failure to uphold the constitution and statutory imperatives that underpin the right to a fair hearing rendered the disciplinary process a nullity.

6. The notice of motion was opposed by the respondent who filed a preliminary objection dated October 4, 2021 and a replying affidavit sworn by Professor Jennifer Wanjiku Khamasi the Registrar, Academic Affairs and Research of the respondent dated September 24, 2021.

7. The respondent avers that the application dated September 21, 2021 as drawn and filed is misconceived, incompetent, bad in law, fatally defective and in violation of the provisions of Order 53, Rule 4(1) of the Civil Procedure Rules, 2010. That the application is premature and offends the doctrine of exhaustion of internal remedies and in violation of ‘Section 9 (2) of the Fair Administrative Action, 2015. That following the respondent`s decision to expel the applicant, the applicant lodged an appeal to the Respondent`s Vice Chancellor through a letter dated 18st August, 2021. That the respondent has acted unreasonably and in bad faith by filing the instant case without exhausting the respondent’s disciplinary mechanisms. That the applicant is thereby not entitled to the orders sought.

8. The Respondent avers that the applicant was charged with offences that amounted to gross disciplinary offences under the respondent’s statutes, schedule XII – the Rules and Regulations Governing the Conduct and Discipline of the students of the University (hereinafter called the Regulations) which the applicant accepted to abide by and signed on being admitted to the respondent university.

9. The Respondent also avers that vide a letter dated 26th July, 2021 the Respondent advised the applicant of his rights before and during the disciplinary hearing, including appointing two students to represent him and filing of written submissions, pursuant to which the applicant submitted names of two appointees and attended the disciplinary hearing. That the hearing process was conducted fairly and procedurally and accorded the applicant the right to fair hearing and fair administrative action as provided in Articles 47 and 50 of the constitution and Fair Administrative Action Act, 2015. That the contention that some offences were penal in nature and required conviction in a court of law is an afterthought since the applicant responded to the offences. That the committee being a quasi- judicial body was not bound to adhere to the rules of procedure as applied in a court of law. That the Respondent did not violate any of the Applicant`s rights or take into account irrelevant matters. 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.

10. In response to the respondent`s replying affidavit sworn on 24th September, 2021 the applicant filed a further affidavit on 5th October, 2021 wherein he contended that the respondent violated his right to fair hearing as their conduct amounted to breach of natural justice as they were his accusers, investigators and jurors and proceeded to convict him on grave allegations without a fair hearing, legal representation and on the basis of conjecture. That he was the first person to give his side of the story and was called to exonerate himself before the evidence against him could be led by his accuser. That he expected witnesses to be called in the case and that he would be given an opportunity to question them but this was not done.

Submissions for Applicant 11. The application was canvassed by way of written submissions by the advocates for the respective parties whereby the firm of Chege & Sang Company Advocates was appearing for the applicant and Gitibi Rukioyah Advocate was appearing for the applicant.

12. Counsel for the Applicant submitted that the Respondent`s Disciplinary Committee did not accord the applicant a fair hearing, that the suspension was made without considering relevant facts, was irrational and tainted with illegality and that the committee exceeded its jurisdiction thus ultra vires.

13. It was submitted that there is no requirement for the Notice of Motion to contain or exhibit any affidavit nor is there provision that any evidence be produced through the notice of motion. The applicant in that respect relied on the case of Republic v Kenya Revenue Authority ex parte Tom Ojienda SC t/a Prof. Tom Ojienda & Associates (2016)eKLR.

14. It was submitted that the disciplinary process employed by the respondent did not comply with the provisions of Article 47 of the Constitution and section 4(3) and (4) of the Fair Administrative Action Act that includes the right to legal representation and compliance with the rules of natural justice. That the disciplinary process was illegal since the regulations of the respondent prohibited the right to legal representation. That regulations restricting legal representation akin to the respondent`s regulations were declared unconstitutional in Gedion Omare V Machakos University Pet. No. 11 of 2019.

15. It was submitted that it was irrational for the respondent to curtail the ex parte applicant`s right to education on the ground of non-adherence to Public Health Covid-19 Restrictions and failure to wear a mask, an offence not found anywhere in the University regulations.

16. It was submitted that the court has discretion to exempt an applicant from the requirement to exhaust internal mechanisms and alternative dispute resolution mechanisms before moving to court for judicial review proceedings especially where a litigant has attempted to seek alternative dispute resolution but has not gotten a retrieve. In this respect the applicant relied on the case of Mohammed Ali Baadi & Others v The Attorney General & 11 Others (2018)eKLR. It was thus submitted in this case that the Respondent issued a notice of resumption of studies and examination timetable before the appeal of the applicant was heard. That the appellant risked missing out on his examinations and the only option left was to move to court.

17. It was submitted that the application has met the threshold for grant of the orders sought which are illegality, irrationality and impropriety as held in the case of Council for Civil Service Unions v Minister for Civil Service (1985) AC374 at 401 and in Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 303 where in the latter case it was held as follows:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...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. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...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.”

Submissions for Respondent 18. The respondent on their part submitted that the Notice of Motion dated September 21, 2021as drawn and filed was misconceived, incompetent, bad in law, fatally defective and in violation of the provisions of Order 53 Rule 4 (1) of the Civil Procedure Rules, 2010 as it was clear that the same only contains the orders sought but does not have supporting grounds or an independent supporting affidavit.

19. It was submitted that the applicant did not have justifiable reasons of filing the judicial review proceedings after having taken a step and filed the appeal without having exhausted the appeal process. Reliance was placed on the authority of Republic v Commissioner General, Kenya Revenue Authority, Ex-parte Sanofi Aventis Kenya Limited (2019)e KLR where the court held that;(24)The doctrine of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine is now of esteemed juridical lineage in Kenya. It was felicitously stated by the Court of Appeal in Speaker of National Assembly vs. Karume in the following words:-“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."(25)Even though the above case was decided before the promulgation of 2010 Constitution, many Post-2010 court decisions have found the reasoning sound and have provided justification and rationale for the doctrine under the 2010 Constitution. For example, the Court of Appeal provided the constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others. It stated that:-“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be of a last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

20. The respondent submitted that sections 9(2) and (3) of the Fair Administrative Action Act(FAA) requires a party to exhaust internal mechanisms for appeal or review and all remedies available before seeking judicial review orders which the applicant in this case has not done. That sections 9(2) and (3) are couched in mandatory terms. That section 9(4) requires a party to apply to the court showing demonstrating exceptional circumstances. That there was no application made under section 9(4) showing the existence of exceptional circumstances which could excuse the applicant from exhausting the internal remedies before coming to court. Reliance was made on the case of Republic v Commissioner General, Kenya Revenue Authority Ex parte Sanofi Aventis Kenya Limited (supra) to support of that proposition.

21. The respondent submitted that the disciplinary process that was followed in the hearing and determination of the applicant`s case complied with Article 47 of the constitution, section 4 of the FAA Act and section 63 of the Universities Act. That the applicant had failed to prove that the disciplinary committee`s decision was tainted with illegality, irrationality and /or procedural impropriety so as to warrant the orders sought.

22. The respondent submitted that judicial review proceedings are concerned with the decision-making process and not the merits of the decision. That the purpose of the remedy of judicial review is to ensure that an individual is given fair treatment by the authority to which he or she has been subjected and it is not part of that purpose to substitute the opinion of an individual judge for that of the authority constituted by the law to decide the matter in question. Reliance was made on the case of Sanofi Aventis Kenya Ltd case (supra).

23. The respondent urged the court to dismiss the application as the applicant has not proved or alleged any ingredients of malicious or illegal process or even violation of the statutes. It further submits that the respondent is vested with powers to make the decision in question and no abuse of power has been alleged or proved. That it has not been alleged or proved that the disciplinary Committee`s decision was arrived after taking into account irrelevant or extraneous matters.

Determination 24. Having carefully considered the ex-parte applicant’s Notice of Motion, the statutory statement, verifying affidavit and further affidavit and equally considered the preliminary objection, replying affidavit filed by the respondent as well as written submissions for both parties, annexures and authorities filed, the following issues emerge for determination;a.Whether the Notice of Motion offends the provisions of Order 53 rule 4(1) of the Civil Procedure Rules,2010;b.Whether the Judicial Review application is premature for offending the doctrine of exhaustion of internal remedies; andc.Whether the applicant is entitled to the Judicial Review orders sought.

Whether the Notice of Motion offends the provisions of Order 53 rule 4(1) of the Civil Procedure Rules, 2010 - 25. There is no dispute that the application dated 21st September 2021 only contains the orders that were being sought and is not accompanied by an independent affidavit in support of the Notice of Motion. The applicant only states in the Notice of Motion that:“…… application is supported by the affidavit of Muia Stephen Mutuku from the facts in the verifying affidavit sworn by himself in support of certificate, chamber summons and statement of facts thereto as if the same were set out in this affidavit in support of this application and on the grounds to be adduced at the hearing thereof.”

26. The respondent argued that the application does not comply with Order 53 rule 4(1) of the Civil Procedure Rules, 2010 which provides that:Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement.

27. Before the applicant filed the subject notice of motion, he had filed a chamber application dated 30/8/2021seeking for leave to commence judicial review proceedings against the respondent which application was accompanied by a statement of facts and a verifying affidavit. I understand the applicant to have meant in the notice of motion dated 21/9/2021 that he was adopting the averments in the documents filed at leave stage to support the notice of motion dated 21/9/2021 which averments were materially the statement of facts and the verifying affidavit. I do not see any fault in this procedure. There is actually no requirement that the statement of facts and the affidavit should be filed together with the notice of motion. In my view, a party can rely on documents filed in support of an application for leave to support the notice of motion without him/her filing fresh documents to the same effect. The material document in the notice of motion is the statement of facts as the grounds raised in the statement of facts are the ones to be relied on to prosecute the notice of motion. I would presume that that is why the section requires that it be served on the respondent. A similar argument as in this case was raised in the case of Republic v Land Disputes Tribunal Court Central Division and Another Ex-parte Nzioka (2006) 1 EA 321 where it was held that:“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 or (leave stage) 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.”

28. In this case there was no allegation that any of the documents required to be served were not so served. The notice of motion is supported by the verifying affidavit and statement of facts filed together with the Chamber Summons seeking leave. I find that the application complies with the provisions of Order 53 Rule 4 of the Civil Procedure Rules.

Whether the Judicial Review application is premature for offending the doctrine of exhaustion of internal remedies - 29. It is agreed by both sides that an aggrieved party is first required to exhaust the available remedies provided by the offending body before seeking judicial review orders as provided in sections 9 (2) and (3) of the FAA Act that:(1)…………(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).

30. There is however an exemption under sub-section 4 that provides that:(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.

31. In Mohamed Ali Baadi & Others v The Attorney General & 11 others (supra) it was held that:94. While our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute (See The Speaker of National Assembly vs James Njenga Karume), the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia, it was held that:"A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is cons,idered available only if the applicant can make use of it in the circumstances of his case."95. In the case of R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the Court held:[46]What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case, the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.[47].This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.

32. What constitutes exceptional circumstances depends on the facts and circumstances of the case. Thus, where an internal remedy would not be effective or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.

33. In Republic v Royal Nairobi Golf Club Ex parte Ooko Erick Obura & another[2021] eKLR where disciplinary proceedings were delayed as a result of which the applicant moved to court Justice Ngaah considered the exemption clause and said as follows:40. It is my view that since the Respondent is not certain as to when it will be able to accord the ex parte Applicants a hearing, and in light of the prejudice likely to be suffered by the ex parte Applicants during this period, the alternative remedy under the Respondent’s by-laws is neither effective nor available to the ex parte Applicants. Section 9 (4) of the Fair Administrative Action Actin this respect suggests an application to the court, by the aggrieved party, for exemption from the obligation to exhaust an internal remedy. While a formal application to be exempt from the provisions of section 9(2) to (4) of the Fair Administrative Action Actis advisable, it will in the circumstances of this application not only cause unnecessary and undue delay to these proceedings, but will also not add any substantive value, as the relevant factors have already been canvassed by the parties, and considered by this Court.41. This Court also has discretion under Article 159 of the Constitution and section 3A of the Civil Procedure Act to make such orders as are necessary to achieve substantive justice, and not to give undue regard to procedural technicalities in the process. The ex parte Applicants’ application is therefore found to be competently before this Court for the foregoing reasons, and they qualify to be exempt from the provisions of the Fair Administrative Action Act on exhaustion of internal dispute resolution mechanisms.

34. From the record, the disciplinary committee of the respondent sent its resolution to the applicant on the August 18, 2021 and on August 24, 2021 issued a notice of resumption of teaching. Teaching was set to commence on 30/8/2021 while examinations were to start on 6/9/2021. The applicant filed his appeal to the Vice- Chancellor on the 20/8/2021. There is no evidence that the appeal had not been heard by the time the applicant filed the notice of motion on the 21/9/2021. Going by the notice to resume classes, the appeal was not timely as the applicant was set to miss classes and examinations.

35. The Regulations governing the conduct and discipline of the students of the respondent provide the following in 36(b)(iii) –

At all proceedings of a disciplinary committee before which a student is summoned, the procedure adopted shall be determined by the committee and the student shall be entitled to representation in person and not any person or lawyer. 36. Regulation 42 requires a person aggrieved by the decision of the committee to appeal to the Vice-Chancellor within 14 days of the date of communication of the committee’s decision. It need not be said that this is without legal representation.

37. It is then clear that the disciplinary regulations of the respondent prohibit legal representation during disciplinary proceedings both before the committee and before the Vice-Chancellor. Section 4 of the FAA Act stipulates the rights of a person appearing before an administrative body. Section 4(5) of the Act guarantees the right to legal representation. The section provides that –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.

38. It is apparent that the disciplinary regulations of the respondent are in violation of the FAA Act. There is no doubt that the appellate process provided by the regulations would not be an efficacious remedy to the applicant herein as he would still be denied legal representation in the proceedings before the Vice-Chancellor. The rigid regulations of the respondent render the requirement for exhaustion futile. The respondent as a body governed by the rule of law had a constitutional duty to adhere to the provisions of Article 47 (1) and Article 50 of the Constitution that guarantees the right to fair hearing. It is futile to pursue the appeal before the Vice-Chancellor when there is no guarantee for fair hearing. I find that the resort to court in this case did not offend the doctrine of exhaustion.

Whether the applicant is entitled to the Judicial Review orders sought - 39. 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.

40. In Isaac Gathungu Wanjohi & Another v Director of City Planning of Nairobi & Another (2014)eKLR the court said that: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.”

41. It is therefore the duty of this court 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 to be 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.”

42. In this case it is contended that there was procedural impropriety in that the applicant was denied a fair hearing in violation of the law. Section 4 (3) and (5) of the FAA Act sets the following as the tenets of a fair hearing:(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 decisiona.Prior and adequate notice of the nature and reasons for the proposed administrative action;b.An opportunity to be hear and to make representations in that regard;c.Notice of the 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;g.Information, materials and evidence to be relied on 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 this choice;b.Be heard;c.Cross-examine persons who give adverse evidence against him; andd.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.

43. A perusal of the minutes of the respondent during the disciplinary proceedings, “JWK 7”, shows that the charges were read to the applicant. The Chief Security Officer then showed the applicant photographs/videos of the destruction caused by the rioting students. The applicant was then asked to respond. He responded by denying the charges. He was then questioned by members of the panel. The committee then proceeded to make a decision. They found the applicant guilty as charged and resolved that he be expelled from the university.

44. It is then clear from the proceedings that there were no witnesses called in the case. The applicant was only shown photographs/videos of the destruction and asked to respond, as if the photographs/videos were by themselves sufficient to establish a case against the applicant. Despite the fact that members of the panel cross-examined the applicant at length but they never gave him the opportunity to cross-examine his accusers. As submitted by the applicant, the panelists acted as the accusers, the investigators and the jurors, all in one. There was thereby no fairness in the whole process.

45. It is clear that the procedure adopted by the committee was for the applicant to exonerate himself from the case and his failure to do so meant he was guilty of the charges. That kind of procedure is contrary to the tenets of a fair hearing. The proceedings show that there was failure to comply with the law in that the applicant was not given the right to cross-examine his accusers on alleged offences he was charged with and he was not accorded an opportunity to mitigate before being sentenced.

46. The right to cross-examine witnesses is an inalienable right even in quasi-judicial proceeding. In Republic v Kenyatta University Exarte 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.

47. 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 applicants 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.

48. In Onjira John Anyul vs. University of Nairobi (2019)eKLR the court also decried failure of the committee to give an opportunity to the student to examine his accusers. The applicant was facing a very serious offence that was penal in nature. 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.

49. The other issue that touched on fair trial 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 of any advocate or that he did not turn up with one. The respondent cannot blame the applicant for abiding by their illegal regulation.

50. In view of the foregoing, I find that there was a violation of the right to fair hearing in the manner the Students` General Disciplinary Committee conducted its proceedings.

51. 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 a 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 Actprovides 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.

52. It is now recognized 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.

53. 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.”

54. One of the reasons for expelling the applicant from the university was failure to keep social distance and failing to wear a mask. In my considered view, it is irrational for a university to expel a student for the reason of failing to keep social distance and failing to wear a mask. COVID-19 is a novel decease yet to be understood even by scientists. Even if the charge was proved, the punishment meted out by the respondent was not proportionate to the offence.

55. Three of the charges that the applicant was facing were penal offences in which case a higher degree of proof was required than the kind of evidence adduced by the respondent.

56. 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 decision of the respondent in expelling the exparte applicant from the Respondent University is removed into this court and by an order of certiorari is quashed. Prayers sought by the applicant are deserved. 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 entire decision of the students’ General Disciplinary Committee of the Dedan Kimathi University of Technology as contained in the letter dated 13th August 2021 expelling the ex parte applicant from the Respondent University.(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 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 12TH DAY OF MAY 2022. J.N. NJAGIJUDGEIn the presence of:No appearance for the applicantNo appearance for the RespondentCourt Assistant: Kinyua30 days Right of Appeal.8 NYERI JR. NO. E002 OF 2021