https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8200

Republic v Jomo Kenyatta University of Agriculture and Technology; Wanyonyi (Ex parte Applicant) (Judicial Review Cause E018 of 2024) [2026] KEHC 8200 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8200 (KLR) Republic of Kenya In the High Court at Thika Judicial Review Cause E018 of 2024 TW Ouya, J June 11, 2026 Between The Republic Applicant and Jomo Kenyatta University of Agriculture and Technology Respondent and Jescah Nekesa Wanyonyi Ex parte Applicant Ruling 1.The Applicant moved this honorable court vide a Notice of Motion Application dated 4th December 2024 for orders:i.That a judicial review order of Certiorari do issue directed to the Respondent, Jomo Kenyatta University Of Agriculture And Technology to bring into court and quash the resolutions of the Examination disciplinary committee dated 13th April 2023 withdrawing the award of Master of Science degree in procurement and logistics to the Applicant and 11th March 2024 expelling the Applicant from the university.ii.That a judicial review order of Prohibition do issue to prohibit the Respondent or any other Party from giving effect to the decision of the Examinations Disciplinary committee dated the 13th April 2023 withdrawing the award of Master of Science degree in Procurement and Logistics to the Applicant and 11th March 2024 expelling the Applicant from the university.iii.That a judicial review order of mandamus do issue compelling the respondent to graduate the Exparte Applicant and award her an undergraduate degree on the basis of the transcripts for examinations done and fees paid and to restore her Master of science degree in Procurement and Logistics. 2.The Application was supported by grounds on its face as well as the affidavit of Jesca Nekesa Wanyonyi of even date brought on grounds that the Respondent’s disciplinary violated the rules of natural justice by acting as both prosecutor, judge, jury and executioner. 3.The Respondent was also faulted for retroactive application of examination rules to the detriment of the Applicant as the said examination rules were not in existence at the time the Applicant completed her undergraduate degree. 4.Moreover, the Applicant contended that she was not granted a hearing prior to the decision of the Respondent’s disciplinary committee being rendered. It was also contended that the appeal that the Applicant lodged following the decision of the disciplinary committee is yet to be determined. 5.Therefore, the Applicant prayed that the Application be allowed as prayed. 6.The Respondent opposed the Application vide its Replying Affidavit sworn by Richard Wokabi Kariuki, a Chief Legal Officer of the Respondent. The Respondent deponed that investigations into the alleged misconduct by the Applicant was initiated by the Public Service Commission, which requested the Respondent to verify the Bachelor’s degree of the Applicant. Upon verification of the said degree, it was established that the same was a forgery since it had not been issued by the Respondent. 7.The Respondent further deponed that disciplinary proceedings were initiated against the Applicant where she was duly heard and a finding made to withdrawing her admission to the Master of science degree in Procurement and Logistics; and further expelling her from the university. A decision which was further confirmed on appeal by the Disciplinary Appeal Committee. 8.The Respondent maintained that the Applicant was accorded a fair hearing throughout the disciplinary proceedings and therefore her allegations that the decision to withdraw her from the Master of science degree in Procurement and Logistics and expel her from the Respondent without being heard is false. 9.While admitting that the Applicant had duly completed her course units, the fact that she had not yet completed paying the requisite school fees made her unqualified to graduate with a bachelor’s degree. Therefore, she was ineligible to be admitted to the Master of science degree in Procurement and Logistics. Notwithstanding the above, it was further deposed that the mere fact that the Applicant went ahead to pass off a forged bachelor’s degree certificate as a legitimate certificate issued by the Respondent was clear proof of intention to circumvent existing regulations on admission programs. Therefore, the Respondent was justified in making the decisions that it did. 10.The court directed that the parties file submissions. 11.The Applicant submitted that the examination rules allowed a person to be admitted to the Masters program despite not graduating with a degree as long as the person demonstrated competence. Therefore, the Respondent having admitted her to the Masters program on the basis of her competence could therefore not turn around and withdraw the admission to the Master of science degree in Procurement and Logistics or expel her from the school. 12.The Applicant submitted that the overall conduct of the Respondent violated the principles of natural justice and therefore the Application ought to be granted as prayed. 13.The Respondent on the other hand submitted that the Applicant had not met the threshold for grant of the orders sought as she was duly granted a fair hearing prior to the decision to withdraw her admission to the Master of science degree in Procurement and Logistics and to expel her from the Respondent was made. Analysis and determination 14.Having considered the pleadings, reviewed the evidence presented by the parties together with their submissions, the Court is of the view that the pertinent issues for determination in this Petition are as follows:a.Whether the disciplinary process conducted by the Respondent against the Petitioner complied with the requirements of Article 47 of the Constitution and provisions of Section 4 of the Fair Administrative Actions Act, 2015.b.Whether the Applicant is entitled to the Relief’s sought. 15.The disciplinary power of a university is derived from the statute establishing it. It is common for the statute to empower the University Council or some other body to make Disciplinary Rules or Regulations. It is uncontested that a student of the University is subject to the disciplinary provisions prescribed in the Regulations. Additionally, there is no contestation to the truism that at the time of admission, a Student executes a Bond binding himself/herself to observe the Rules and Regulations governing the conduct of the Student while at the University. 16.A university is not just a corporate body created by operation of law. It is also a community of people associated in activities related to thought, truth, and understanding. It must be a place where the broadest possible latitude is accorded to innovative ideas and experiments, where independence of thought and expression are not merely tolerated but actively encouraged. Because thought and understanding flourish in a climate of intellectual freedom; because the pursuit of truth is primarily a personal enterprise, a Code of Discipline must be strongly anchored on principles of intellectual freedom, intellectual honesty, academic honesty, personal autonomy and maintenance of high standards of integrity of academic programs. 17.There is a long-established and fundamental distinction between appeal and review. A court of appeal makes a finding on the merits of the case before it; if it decides that the decision of the lower court or tribunal was wrong, then it sets that decision aside and hands down what it believes to be the correct judgment. By contrast, in judicial review the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on the merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process was flawed in certain defined and limited respects. 18.This position was succinctly outlined by the court in Republic vs Attorney General & 4 others Exparte Diamond Hashim Lalji and Ahmed Hasham Lalji thus:“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines 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. It follows that where an Applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the Applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the Applicant.” 19.Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. 20.An administrative decision is flawed if it is illegal. A decision is illegal if it: -(a)contravenes or exceeds the terms of the power which authorizes the making of the decision;(b)pursues an objective other than that for which the power to make the decision was conferred;(c)is not authorized by any power;(d)contravenes or fails to implement a public duty. 21.The duty to act fairly towards a person whose rights or interests are likely to be affected by an administrative decision is a fundamental right enshrined under Article 47 of the Constitution. Therefore, the Respondent’s Disciplinary Committee, a body performing a quasi-judicial function was mandated to comply with the provisions of Article 47 and the relevant provisions of the Fair Administration Actions Act 2015 without exception. 22.Mativo J (as he then was) in Republic v Kenyatta University Exparte Martha Waihuini JR Application 111 of 2018 stated thus:“ 48.There are five mandatory procedures that must be followed when performing an administrative action that has a particular impact on a person or persons. These are that the affected person must be given, before the decision is taken, Adequate notice of the nature and purpose of the proposed administrative action, A reasonable opportunity to make representations; After the decision is taken, A clear statement of the administrative action; Adequate notice of any right of review or internal appeal; and Adequate notice of the right to request for reasons.” 23.Although the Applicant alleges that the decision subject of this application was made without according her an opportunity to be heard, the Respondent has demonstrated that indeed the Applicant was heard and even afforded an opportunity to appeal but the said appeal was also dismissed. There is no evidence that the Respondents version regarding the manner in which the decision subject of this Application has been controverted. 24.It is trite that the burden of proof lies on the person who wants the court to believe the existence of a certain fact in issue. Accordingly, the Applicant bore the burden of proving and demonstrating that indeed there was no hearing accorded to her before the decision to withdraw her Master of science degree in procurement and logistics was made. 25.Justice Odunga in Republic v Mount Kenya University & another [2017] eKLR quoting from Halsbury’s Laws of England 4th Edition Vol (1)(1) Para 60 aptly stated thus regarding judicial review:“…The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems. The focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self-interest; and anything in between. As a result, judicial review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable…” 26.It is evident that the instant case relates to a university seeking to enforce disciplinary over a student on the basis of obtaining admission to a Masters program through irregular means. Courts have ordinarily given deference to decisions of Academic Institutions in matters pertaining to student discipline and academic affairs, it is the duty of the court to intervene where there is manifest injustice particularly if it is demonstrated that there was departure from procedures set out in the statute. 27.In the case of Nkatha Joy Faridan Mbabu v Kenyatta University (2016) eKLR the Court stated:“…The University has jurisdiction to conduct its own disciplinary proceedings…The Courts must loath to interfere with any decision of such Institution unless it is evident that it was undertaken outside of legal provision and contrary to constitutional provisions…” 28.Broadly, in order to succeed in a Judicial Review proceeding, the Applicant will need to show either (a) the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or (b) a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it. 29.The Exparte Applicant seeks an order of Certiorari quash the decision. A decision can only be quashed if the body acted without jurisdiction or in excess of its powers or if the decision is so perverse or unreasonable that it would be against the sense of justice to allow it to stand. 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. Perhaps I should add that the Respondent is vested with powers to make the decision in question. No abuse of such powers has been alleged or proved. It has not been proved or even alleged that the Respondent acted outside its powers or the decision was arrived at after taking into account irrelevant or extraneous matters. 30.It is my view that the nature and circumstances of the decision fall into the category of areas, which are not disturbed by the courts unless the decision under challenge is illegal, irrational, or un-procedural. 31.The Applicant also seeks an order of Mandamus. Mandamus is a judicial command requiring the performance of a specified duty, which has not been performed. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It is also employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either. 32.Mandamus, Certiorari and Prohibition are discretionary remedies, which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised based on evidence and sound legal principles. Therefore, the court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought. 33.It is important the court should as far as possible, avoid any decision or interpretation which would bring about the result of rendering the system of managing Discipline in Universities unworkable. Additionally, a court of law should be conscious not to render a decision that would compromise the credibility or quality of examination standards and results or create a situation that will go against clear provisions of the law and Regulations governing the conduct of university examinations. Such laws and the Regulations aim at the good of the society by maintaining discipline in universities and credibility of university examinations. In this regard, the impugned decision meets the proportionality test. 34.Applying the law to the facts and circumstances of this case, I find and hold that the Exparte Applicant has not satisfied any of the conditions for the court to grant the orders of Certiorari, prohibition and Mandamus. To hold otherwise would in my view be an affront to the basic and elementary principles of law governing the grant of such orders and the exercise of courts discretion. In view of my analysis, determination and findings herein above, it is my conclusion that the Exparte Applicant’s application is fit for dismissal. 35.In the upshot, the Application is dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGE