Republic v Kenyatta University, Students Disciplinary Committee Kenya University & Senate-Kenyatta University Ex-parte Gatetua Macharia Kennedy [2017] KEHC 914 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  618 OF 2016

IN THE MATER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS

REPUBLIC...................................................................................................................APPLICANT

VERSUS

KENYATTA UNIVERSITY.............................................................................1ST RESPONDENT

STUDENTS  DISCIPLINARY COMMITTEE KENYA  UNIVERSITY...2ND RESPONDENT

SENATE-KENYATTA  UNIVERSITY.........................................................3RD  RESPONDENT

GATETUA MACHARIA  KENNEDY...................................................EXPARTE APPLICANT

JUDGMENT

1. By a notice of motion dated 30th January 2017 and  filed in court on 1st February  2017, pursuant  to the  leave of court granted on 18th January 2017, the exparte applicant in this case Gatetua  Macharia Kennedy seeks from court Judicial Review orders of:

a) Certiorari calling into this court for purpose of being quashed the decision of the students Disciplinary Committee Kenyatta University of 26th March, 2015 and that of the Student Appeal Committee Kenyatta University of 5th October 2016 as against the exparte applicant herein.

b) Mandamus compelling the 1st and 3rd  respondents  to clear  the exparte applicant for graduation  and  issue him with his  degree certificate.

c) Costs of the application be provided for.

2. The motion is predicated on the grounds set out on the face of the application, the statutory statement and verifying affidavit accompanying the application for leave dated 13th December 2016 and  annextures  thereto.

3. The exparte  applicant’s case is that  at all material  times to these  proceedings, he  was a  student  of Kenyatta University and that he had completed his studies  awaiting  graduation .

4. However, on 11th July  2012  the applicant  was  by a letter dated  the same day summoned to appear before the Students Disciplinary Committee  on  25th July  2012  to answer charges of  influencing  the  tampering  with online  examination  grades  in eleven units.

5. The applicant appeared before the said Students Disciplinary Committee as scheduled where he was accused of paying a university employee to access online portal where students could among other things view examination results,so that the employee could interfere with the said results.  The applicant  denied  the charges and  that vide a letter dated 5th October  2012  he was informed that he had  been found guilty of influencing  tampering with online examination data  in twelve  units.

6. The applicant was discontinued from the University but given an opportunity to appeal to the Chairman of the Senate within  21  days  of the date of  receipt of the notification.  The applicant appealed to the Students Appeals Committee(the Appeals Committee) in a letter dated   25th October  2012  and vide  a  letter dated  18th February  2013, he  was  informed that his appeal was unsuccessful.

7. The applicant then commenced Judicial Review proceedings before the High Court vide JR  264/2013 in which he sought Judicial Review orders of  certiorari to bring into the court for purposes of quashing the  decision of   the Students  Disciplinary Committee  of  25th July  2012 vide its letter of 5th October 2012 and that  of the Student’s Appeal Committee of 10th January 2013 as against the exparte  applicant; and mandamus to compel the 1st  and  3rd  respondents (University and Senate) to issue the exparte applicant  with his  degree certificate and  costs.

8. The Judicial Review proceedings were heard  and determined  on merits  interpartes before Honourable W. Korir J vide his judgment dated  3rd December  2014  wherein the Learned  Korir J after hearing the exparte  applicant  and the respondents  found inter alia, that there was no University Rule or Regulation outlawing “influencing tampering  with online  examination grades” and  at page 14 of  19 of the judgment  the learned judge stated:

“ The applicant has correctly pointed out that the  particular  regulation or rule that created  the offence  with which he  was charged  was not pointed out.  No student should be  charged and convicted  for an offence  unknown to the  regulations of the University…..”

9. The learned judge further found  that there was evidence of  non-compliance  with  the rules of natural justice  by the fact that the applicant  was found  guilty of tampering  with the results of  12 units whereas he had been accused of tampering  with the results  for 11 units, and that no explanation was given to him about  the change in the number of the units he allegedly interfered with.

10. The learned Korir J in the end issued Certiorari quashing the decisions of the Student’s Disciplinary Committee  made on 25th July 2012 and the decision of the Student’s Appeal Committee  made on  10th January  2013.

11. The court further  ordered that the  applicant’s  case be  remitted back to the 1st respondent Kenyatta  University for commencement of fresh disciplinary  proceedings  not later  than 60  days from the  date of  the judgment.

12. The exparte applicant in these proceedings claims that  in blatant disregard of the court’s directions in JR 264/2013, the 2nd  respondent, The Student’s Disciplinary Committee (SDC)  Kenyatta University commenced fresh disciplinary  proceedings  after the 60 days period  had long lapsed and proceeded  in violation of cardinal  rules of natural  justice  in that:

a) They issued  the  applicant  with insufficient  notice, the  letter being  delivered  on Friday  6th March 2015  and the applicant being required to appear at the hearing on  Monday 9th March  2015;

b) Declining the applicant’s request for an adjournment to enable him prepare for the hearing.

c) Giving scanty details of the charge against the applicant without sufficient particulars to enable him mount a defence .

d) Simply detailing  the grades  attend  without  stating  whose grades by whom they were and by what means  they were tampered  with.

13. The applicant  also alleges that  at the said  fresh hearing, the   2nd respondent did not call any witnesses not adduce any material  evidence  to support of  its case  against  the applicant and eventually found him culpable and discontinued  him bases  on the bare  allegations  in the charge  without proof.

14. That the said determination by the  2nd  respondent  was  reached contrary to the cardinal principles of natural  justice  of right  of audience of an accused person and the requirement for  sufficient proof by any  person  who alleges.  It is claimed that  even  after appealing  to the students  Appeal Committee vide letter dated 15th April  2015,  it took over one year for the Appeals Committee to write to him on 3rd October 2016  communicating  its  decision received  on 7th November  2016, dismissing the appeal casually that the appeal  was  unsuccessful and that the Student’s Disciplinary Committee’s decision  discontinuing the applicant from the university was upheld, without  according  the  applicant  any formal  hearing or  at all.

15. The applicant claims that the 2nd respondent neither gave reasons for its decision nor gave explanation why it  concurred with the respondent’s   findings.

16. It is further alleged that  the applicant  having completed his studies and cleared  from the University only awaiting graduation, he could not be discontinued hence the decision of the 2nd respondent as upheld by the 3rd  respondent  is void ab initio.

17. It is  therefore claimed that the hearing   was  a sham  as it never  adhered to the court’s judgment  in JR  264/2013.  The applicant claims that the delay in giving the determination has visited great deal of stress, frustration, mental anguish, dejection, despair  and near  depression  to the applicant since four  years  have since  lapsed  since he became  eligible for graduation hence he  cannot secure  any employment.  He urges the court to quash the decision by the respondents and compel  the  1st  respondent  to allow him to graduate  and  be awarded  his lawfully hard earned degree certificate, as the respondents  will not  suffer  any loss.

18. The  above  facts  as contained  in the statutory  statement  were verified by the applicant’s verifying affidavit sworn on 13th December 2016 supported by the annextures which are: judgment  by Korir J in  11th July  2012, 5th October  2012; 17th October  2012; 18th February  2013; 4th March 2015; 26th March  2015; 15th April 2015; 3rd October 2016; and student’s  clearance  form  dated  18th November  2011.

19. The respondents through the firm of Mohammed Muigai & Company Advocates filed a replying affidavit sworn by Professor Wangari  Mwai on 23rd February  2017  and filed in court the same day contending  among others, that these proceedings are incompetent and fatally defective  having  been instituted  in a separate  suit; that the exparte applicant  is  very  familiar  with the academic  requirements  for  admission to a degree  and the facts  leading to the discontinuance of his studies at the university as captured in the respondent’s replying  affidavit filed  in JR 264/2013 sworn on 17th October  2013.

20. It  was  deposed in contention  that for  one to be admitted  to a degree other than an honorary degree, the Deputy Vice Chancellor –( academic )  must  certify such candidate as having satisfied all the conditions prescribed for such degree  including, the passing in all the required units but that  the 2nd  respondent  has a provision for  one to be classified  with one failed  unit); must meet all the financial  obligations to the  2nd respondent; must not  have any disciplinary cases pending; and  one’s online examination data must be verified against the primary examination records as held by the respective departments.

21. It was  contended  that in  this case, in the process of verifying  the exparte applicant’s  graduation  year, it  was found that there were variances  between the examination  marks  as they appeared on line and those held by the respective departments which showed irregularities that were subject of the disciplinary  proceedings. As an  example, a table  was drawn showing discrepancies  in examination marks  as per online   and  those held  by the relevant  departments  in various units  such as

Unit                Department marks      online marks

ASC 303          58                                        62

AEC  202         47                                        55

AEC  300         43                                        56

AEC  307         46                                        56

SMA 160          44                                        57

22. That upon discovery of the discrepancies, the university  appointed a committee to investigate  the cause of  variance  and the  findings were submitted to the Vice Chancellor  leading to the  disciplinary  proceedings and  that one Kevin Mwendwa, a  student  and  an ICT clerk in the  institute of Open Distance  and  Electronic Learning testified  and  revealed how the  alteration of  marks on the online system was being done and the persons involved, after he had received money to change examination marks from students and some staff members namely, Festus Karani, Dennis Bulali and Anthony  Nyaga Mwenda.

23. That the money received was channeled to Felix Nyongesa Wasike and Edwin Njoroge for purposes of changing marks.  The latter two were Systems Administrators who paid a commission to the applicant  to recruit  more students.

24. It was contended that  the  applicant  would  receive details of the students  such as  registration numbers and the units to be changed through text  messages then send  them to the Systems  Administrator who would make the changes, using enhanced passwords  of academic staff  who had either died, resigned, retired, or had their term examination coordinators expired or their passwords  were dormant.  It was deposed  that the  1st  respondent  also took  disciplinary action against the said staff involved  and that  indeed,  several students confessed  to their involvement  in the syndicate, including  the  units for which  the  exparte applicant  herein faced  disciplinary  action.

25. That it  was the  above  revelation  that students marks had  been tampered with that the graduation of those involved  including the  exparte  applicant  herein, was put on hold  and  the findings of investigations led to disciplinary proceedings culminating in their discontinuance of the applicant and others from the university.

26. That all evidence including a replying affidavit  in  JR 264/2013 were available  to the exparte applicant  to enable  him mount  a defence  in the  fresh  disciplinary  proceedings.  Further, that in the disciplinary proceedings  minutes  attached  as  WM2, the applicant   was given  an opportunity  to defend  himself  before  the 2nd respondent, in person, his representation were considered  and a decision  to discontinue him from the university made.

27. That the applicant’s challenge to the decision  of the respondents  on account  that he  had completed  his studies, cleared  with the  university  and  was only  awaiting  graduation  was dismissed by  Honourable justice  Korir  in his  judgment  in JR 264/2013  at pages  17-18 and  12-13  of the judgment  in issue.

28. The respondents urged the court to decline  to grant  the  Judicial  Review orders in the circumstances  of the case  and dismiss  the motion.

29. The parties advocates filed written  submissions which they  urged the court to adopt wholly for purposes  of  a determination of the issues  arising  in this matter.

30. It is however noteworthy that  the respondents did on 14th March 2017 file a notice of  preliminary objection  to the exparte applicant’s notice of motion contending that these proceedings  should have  been filed  in JR  264/2013  claiming  for  failure to be afforded  fair administrative action since  these proceedings are claiming that the judgment in Nairobi Miscellaneous  264/2013  was not  adhered to.

31. In the  ruling delivered  on  31st May  2017, this court  declined to  uphold  the preliminary  and  dismissed it  on the basis, among  others, that the  preliminary objection  as raised   was not a  pure  point of law meeting  the conditions established  in Mukisa  Biscuit Manufacturing Company Ltd v Nest End Distributors  Ltd [1969] EA 696in that it raised matters which  the  respondents  could adequately submit  at the hearing  of  the  main motion, so that  the  exparte applicant  can be  accorded  an opportunity  to ventilate his  grievances  and  the respondents  be at  liberty  to attack the merits   of the motion at the  substantive  hearing.

32. Having  said that,  I venture  into the  written  submissions   filed by  the parties’  advocates  to canvass  the notice of motion  as  adopted  on  10th October  2017.

33. According to the exparte applicant’s submissions  filed on  18th July  2017 and  dated  11th July  2017, his counsel  reiterated  the exparte  applicant’s  case  as summarized  herein  and  framed  two issues for determination  namely:

1) Whether the proceedings before the 2nd and 3rd respondents were procedurally fair.

2) Whether the orders sought herein  ought to be granted.

34. On the first  issue of whether  the proceedings before the  2nd  and  3rd  respondents  were  procedurally   fair, it  was submitted that the subsequent disciplinary proceedings against the  exparte applicant  were commenced  after  the court  vide JR 264/2013 had quashed   the  earlier disciplinary  proceedings which lead  to the discontinuance of the exparte applicant  from  the  1st respondent  University.  It  was  submitted that the respondents gave the applicant inadequate notice, denied him an adjournment and gave him no details of  witnesses to be called.  It was submitted that a letter dated  6th March 2015  giving the applicant only two days to appear before  the Students  Disciplinary Committee (SDC) on 9th March  2015  was not  a sufficient  notice to enable the applicant  mount a defence to the allegations and that  despite the applicant  seeking  for an adjournment, the request was turned down which  offends  Article  50(2) ( c ) of the Constitution;  and Section 7(2) (a) (v)  of the Fair Administrative Action Act, 2015 on the right to  be heard  in defence.

35. It  was  submitted that  trial  by ambush  deprives  the  applicant  accused person of the opportunity to defend oneself  meaningfully. It was submitted that albeit the respondent contends that the charges facing  the  applicant  were known to him  before hand as they were contained in the replying affidavit   filed in JR 264/2013; that replying  affidavit  was not mentioned in the letter calling the exparte applicant for disciplinary   proceedings.  In addition, it  was  submitted that the said  letter does not  disclose  the witnesses if any  that would  be called  yet from the minutes annexed to the response in these  proceedings, the  2nd  respondent called a witness and  amended the charge.

36. Reliance  was placed on the  decision by Odunga J  in  Republic  v Truth  Justice and  Reconciliation  Commission & Another  exparte Beth Wambui Mugo [2016] e KLR where the learned  judge  dealt  with the full extent  of fair  hearing  as  enshrined  in the Constitution.  It  was submitted  that the  2nd  respondent’s failure to accord  the  applicant  an  adjournment compromised  fair trial and that the fresh disciplinary  proceedings were for the sake  of  meeting  the legal  criteria  as there  was no fair hearing meeting  the constitutional  threshold.

37. It was further submitted that  the respondents considered  factors  that ought  not to have been considered  in that: In the disciplinary proceedings, the exparte applicant  was found  culpable of two irregularities namely, forgery of a letter to enable him be awarded an incomplete unit and plagiarism, which two charges were  never set out in the notice inviting  him for the  fresh hearing.  It  was  submitted that in relying  on the two charges to convict and  discontinue  the  applicant  from  the university, the respondent considered an irrelevant   consideration which two charges did not form part of the notification and which were sneaked into the  proceedings  at the hearing  to unsettle and  intimidate the applicant  to admit  all the allegations leveled  against him.

38. In addition, it  was submitted  that the  adjudication on the  two charges  negates  the respondent’s contention  that the charge in  the previous  proceedings  and the  proceedings  subject of this application  were the same.

39. It  was  further submitted that albeit  the respondents  claim that one witness  Kevin Mwenda was called  and  that he identified  several  students  involved  in the  alleged tampering of results scheme, the minutes of the  Student’s  Disciplinary Committee do not reflect this and neither   was the fact of Mr  Mwenda  being called  as  a witness  made known to the applicant   in good time  to enable  the applicant  challenge  the evidence allegedly adduced by Mwenda.

40. Further, that there  is no evidence  to show that  the  said witness  Mr Kevin  Mwenda mentioned  the  applicant  herein to be part of the  tampering  scheme.

41. It was further submitted that the respondents applied  Regulations  retrospectively  in that the minutes  of the Student’s Disciplinary  proceedings show that the University Senate  had revised the  Examination Regulations to include  “involvement in and or influencing tempering with  examination data”

42. It  was   submitted  that  the  above  revised  Regulations  are a clear  admission that the exparte applicant  had  previously  been convicted of a non-existent offence.  In addition, that the charge of the revised Regulation was never made known to the exparte applicant until the hearing.

43. Accordingly, it  was submitted that the proceedings  before the  2nd  respondent were  procedurally  unfair  and  in violation of  Section 7  of the Fair  Administrative  Action Act,  2015.

44. It  was further  submitted that  the  3rd respondent  did not give  reasons for its decision communicated vide letter  marked  WM3   which simply regurgitated the history of the matter and  pleadings and  concluded that  the applicant  did not  appear before it  and that the grounds  of appeal did not  provide  new evidence and information for upholding the 2nd respondent’s  decision.

45. It  was therefore submitted that  the 3rd respondent  never invited  the applicant for a hearing and neither  did it  provide  reasons for  them  agreeing  with the  2nd respondent’s  decision.  It  was  submitted that the Disciplinary proceedings before the  respondents were unfair  and appear to have  been conducted  just for the sake of it before reaching  a predetermined  outcome.

46. On the second  main issue of  whether  the orders sought ought  to  be  granted, it  was  submitted  that  the proceedings  by the  2nd   and  3rd  respondents were manifestly  unfair.  Reliance  was placed  on the Court of Appeal  decision of  Nyongesa  &  4 Others  vs Egerton  University   College [1990] e KLRwhere the Court dealt with the issue of fair hearing on a dispute similar to the instant case.

47. It  was submitted  that  a decision  made without  according  the  applicant  a fair hearing must  be brought  before  the  court for  quashing  and  be quashed  by certiorari.

48. On whether  mandamus  should  issue, it  was  submitted that  the respondents  having failed  to adhere to the court’s   decision in JR 264/2013 that a fresh disciplinary  process  be commenced  within 60 days in accordance with a fair procedure, the respondents  proceeded  to conduct  the proceedings in the  exact same manner  prompting  the  current   application.  That failure to hold fair  proceedings  aimed  at reaching  a predetermined  conclusion gives no assurance that even if  the  court would  once again order a fresh hearing, the  applicant  will be accorded  a fair  hearing.

49. It was further submitted that the respondent’s collective  conduct   smacks  of bad faith against  the applicant  whom  they  have presumed  to  be a  dishonest  student  and will  do anything  to have  him  discontinued  hence an order of  mandamus  is the  only relief  that can  cure this  injustice.

50. It was also submitted that the prayer for mandamus is founded on the doctrine of legitimate expectation that when the applicant cleared with the university, he expected that he would be awarded the degree certificate. That the respondents having  failed to conduct a  fresh hearing  in a procedurally  fair manner, this court  should order  the  respondents  to award the applicant  his  degree certificate  as per the  grades  reflecting  at the time  of clearance.

51. Reliance  was placed on the  case of Republic vs  Attorney General  & Another  exparte  Ongata  Works Ltd[2016]  e KLR  citing with approval Republic vs Kenya National  Examination Council exparte  Gathenji  with others.

52. On the purpose  of the remedy  of mandamus, it  was  submitted that the applicant  having undergone two  sham hearings  should now  be allowed to  graduate  and  earn his degree  certificate.

53. In  opposing  the  exparte  applicant’s notice of  motion, the respondents’  counsel filed submissions  dated  28th February  2017  reiterating  the contents of the replying affidavit sworn by Professor Wangari Mwai.

54. According to the respondents, the fact that the subsequent  current  application  was  prompted  by the  respondent’s  failure to adhere to the judgment of Honourable Korir J in JR  264/2013 between  the same  parties  is a  clear  indication that the  orders sought  herein cannot  lie.  It  was  submitted  that the applicant  should  have filed  contempt  proceedings  in the  previous  JR 264/2013 as was held  by Onguto J in Eliud Nyauma  Omwoyo vs  Kenyatta University & Others [2016] e KLR where Onguto J when called  upon to decide  a case involving  former students of the university who had  been subjected  to prior  disciplinary proceedings the students had challenged the proceedings  before Lenaola J who  quashed  the proceedings  for failure  to comply  with the  Rules  of natural justice  in a limited  respect, the learned  Judge ordered  the university  to conduct  fresh  disciplinary  proceedings in compliance  with the law.  That the  university  repeated  the exercise  after which  one of the  students went  to court and  through a new constitutional  petition, complained that the subsequent proceedings  disregarded  Lenaola J’s  directions in various aspects.

55. In dismissing  the petition, Onguto J  held that the right forum  to file the suit   was the one within  which  the orders  emanated  and that even if the petitioner was of the view that the respondents did not   follow the law by  affording  the  petitioner the  requisite  fair administrative  action then that  too ought to form or  constitute  a ground for  the  contempt  application and not  commence another  suit.

56. It  was  submitted that  albeit  the applicant herein does not  seek contempt prayers but that  the  Omwoyo(supra)  case is  applicable to  this case  as the reasoning is the  same.  Further, that this court would end up with the same orders as those made  by Korir  J in  JR 264/2013.

57. It  was submitted that the argument that  the respondents had no authority to discontinue the applicant’s studies as he had already  completed them was conclusively adjudicated upon by  Honourable   Korir J  at pages 12-13, 17-18  of the judgment in JR  264/2013.  It  was further  submitted, relying  on the case  of Alice Njeri Ngichiri  v Kenyatta University [2012] e KLR  by Mumbi Ngugi J wherein the learned judge captured the competing interests which is that the interest  of the student  who has  undergone  a course of  study  at the University  to realize  the purpose of that course  of study  in a timely  and  efficient  manner  must be  balanced  with the interests  of the University in ensuring  that  those qualifying from  its  academic  training  do so with the grades  that they deserve, and  that  there is no cheating or tampering with grades which could  undermine  the credibility and integrity of degrees awarded by the institution.

58. It  was  submitted that  a University  student   must comply/meet all conditions/requirements for conferment of degree  certificates  and that  a student  only ceases to be such  student  upon conferment of the degree, regardless of the fact that   he/she  has completed their studies.

59. It  was  submitted that the respondents  put in place a system of verifying the students’ online  examination data  against  their  primary records  as held by the  relevant  departments  and that it   was in the process of such verification that several  irregularities   were discovered   involving  students  and  staff tampering with academic  grades.

60. It  was submitted that the tampering with exam  grades  was  to the benefit of the applicant  to  qualify with a higher grade  than that  which he  actually attained  which point Honourable  Korir J made it clear that the applicant had not satisfactorily  answered on who upgraded his  online marks.

61. It was  submitted  that there were investigations  into the scandal  which led  to confession  from students  and staff  on how  they conducted  the tampering  at  a fee, to benefit  students  who  had  performed  poorly  hence  the  disciplinary  proceedings.

62. It was submitted that the charges which the applicant faced  were the same  as those which gave  rise to  proceedings  which were quashed by Korir J and that in the  subsequent  disciplinary  proceedings unlike  in the initial  proceedings, the applicant  had all the relevant  information available  in the replying  affidavit  of the respondent hence the subsequent proceedings were conducted  in accordance  with the law.

63. The respondents urged the court to adopt the holding in the  Nyongesa  & Others  v Egerton University  (supra) case  and  exercise  restraint in interfering with the respondent’s decision concerning the exparte applicant.

64. On whether mandamus would issue, the respondents urged the court to  decline to issue mandamus as declined by Korir J as it  will amount  to the  court usurping  powers  and  making  a decision that is entirely  within the  province of the respondents.

DETERMINATION

65. Having considered all the foregoing, in my  humble view, the main questions/issues  for determination  are:

1) Whether these proceedings  should have  been instituted  in JR 264/2013 and therefore whether the issues in these proceedings are the same issues which were determined by Korir J in JR  264/2013.

2) Whether applicant  is entitled  to  the  prayers sought.

3) What orders  should this court make.

4) Who should bear  costs of  these  proceedings?

66. On the first  issue of whether these proceedings should have  been instituted in JR 264/20 13 as contempt  of court proceedings  and therefore  whether the issues in these proceedings  are the  same  as  those  issues  which were determined  by Korir J  in JR  264/2013, the ancillary  question that goes with the above issue is the allegation  that the applicant having completed  his studies  and cleared with the university  was no longer  subject  to the university’s   disciplinary  process.  This  same issue  was considered by  Honourable Korir J at page  12-13  of 19 of his judgment of  3rd December 2014  in JR  264/2013.  The Learned Judge  found and held  that:

“ I am  indeed persuaded by the respondent’s argument that  only deserving students should be awarded degrees.  No student should be allowed to benefit from a study process that is tainted with examination irregularities.  No student should get grades higher than what he or she had sweated for.  I agree that  upon  discovering   the  tampering   with the grades  online, Kenyatta University had a duty to investigate and  discipline  those who  were found  to be culpable.The applicant’s argument that he ought to have been allowed to graduate based on tainted grades is untenable. His argument  that he could not  be  discontinued  therefore fails.”

67. From the above  holding, it is clear that the means  justifies  the end.  This court is not an appellate  court over the decision of another superior  court with  concurrent  jurisdiction.  I cannot therefore  be called upon to decide on the same  issue that  my learned brother Korir J conclusively determined in similar   proceedings between the same parties and over the same  subject  matter.

68. Accordingly, I decline  jurisdiction to answer  that question  and  find  and hold that  this court  lacks  the  requisite  jurisdiction to  sit  as  an appellate  court  over the  decision in JR  264/2013  on that  question of whether the  respondents could  discontinue  the  applicant  who  had  completed   his study  and  cleared  with the university only awaiting graduation.

69. The other question that I must answer in line with the first issue  above is whether the applicant was taken through a fair disciplinary process in accordance with the decision in JR  264/2013  by Honourable  Korir J.

70. The  respondents  have argued that  the applicant  having sought  in his prayer  No. 1 that the court  do grant  an order of certiorari and  having complained in his grounds  in support  thereof  that  the respondents  had failed to  adhere  to the judgment  of Korir J  in JR 264/2013  in the manner  of holding  fresh disciplinary hearings within 60  days  of the  date of judgment  with strict  adherence to rules of natural justice, any allegations of non-compliance  with the  judgment  of Korir J  could  only be  filed within the said file namely JR 264/2013 as contempt  proceedings.

71. The  exparte  applicant  disagrees  with the  above argument  and  maintains that the respondents introduced new charges of forgery  of a letter  to enable  him  be awarded  an incomplete  unit and plagiarism; that the fresh  hearing  gave him insufficient  notice to appear for disciplinary proceedings within 2 days of the notification and refused to accord him an adjournment  to enable him adequately prepare for the defence; that the University Senate revised the Examination Regulations to include the offence of involvement in and or influencing tampering with examination data which regulation never existed prior  to JR  264/2013; that no reasons were given for the  3rd respondent’s decision which upheld the  2nd respondent’s  decision; and that   the unfair  proceedings  were predetermined; that Mwenda   was never called as a witness and that there was delay in determining  his  appeal  which  was deliberate to frustrate  his bid  to pursue  his right  to graduate  with  a degree  he had  earned.

72. I have examined the above  arguments  vis a vis  the  decision  by Honourable Korir J delivered on 3rd December 2014.  Honourable Korir  at page 14/19 of  his well-reasoned  judgment  found that the offence of influencing tampering with online  examination grades  was not  existing  in the regulations  which had  nonetheless  not been placed before him.  He made  it clear that  no student should be charged  and convicted  for an offence  unknown  to the regulations  of the University.  He also  made it  clear that  even if the  offence fell under general  offences, the Regulation creating the general offence ought to have been  pointed  out to  the  applicant.

73. Further, that if the indiscretion was one unknown to the University’s  regulations, then the  applicant  ought to have been awarded  his degree, if he  had qualified, based on the marks  held by  various  departments.  Thereafter,  the  1st  respondent  could  have proceeded to amend its  regulations so as  to cover  this kind of irregularity.  From the  evidence  placed  before the court, I find that the process to which the applicant was  subjected did not  meet the  basic  standards of fairness.”

74. From the above  except  of Honourable  Korir’s  judgment, it is  clear that the applicant is complaining that the  respondents  did not   adhere  to the judgment  of Korir  J in  JR  264/2013  in the  subsequent rehearing of the disciplinary case against the   applicant  and that they even introduced  fresh charges and  went ahead to amend regulations and apply them  retrospectively.

75.  Assuming that the  above alleged actions  of the  respondents  are  as described by the exparte applicant, they would no doubt be inacceptable  in law  and  would be contrary  to the judgment  of Honourable  Korir J.  However, as  earlier  stated, this court would at the end of this hearing  end up  with the  same  decision as that of  Honourable  Korir  J in JR  264/2013  if it  entertained  the complaints separate  from JR  264/2013 proceedings.  Where  an order or  judgment of the court is flouted  like it  was alleged  in this case, the proper  way of  laying  a challenge  to the breach is by  bringing  contempt of court  proceedings  before  the same  court (proceedings) and in this  case, the relevant proceedings  are in JR 264/2013 between the same parties.  This  is so  because  the  learned judge after quashing  the  first disciplinary  proceeding directed the University to commence fresh  disciplinary  proceedings   not later   than 60 days  from the date  of the judgment.

76. The applicant laments that the fresh disciplinary proceedings   were commenced after the 60 days ordered by the Honourable  Korir J.  That  alone, in my view, would  be sufficient ground  to seek further orders of the court in JR 264/2013 and not  to institute  fresh  proceedings  complaining  that the judgment  of Korir J in JR 264/2013 had not  been adhered  to ( see  grounds Nos 2,3,4 of  the exparte applicants  submissions dated  13th December  2016  which  materially  replicates  grounds  2,3, and  4  of the  statutory statement  dated 13th December  2016.

77. It is for those reasons that  I fully  agree with the  respondent’s  argument, relying  on the decision  in Petition  408/2015   Eliud  Nyauma  Omwoyo  vs Kenyatta  University  &  3 Others  that …” the petitioner  could not simply commence  another suit.  Substantially  the parties  would  have to go through  a repeat  of the same  process  and trial  and if  vindicated  the petitioner  would end up with much the  same orders…”

78. In the instant  case,  the  exparte  applicant  also  argued  that he had not, unlike  in  the Eliud  Nyauma Omwoyo(supra) case,  alleged  contempt of court. I disagree. The provisions of Order 53   Rules are clear that the applicant can only rely on the grounds which are stipulated in the statutory statement accompanying the application for leave, in support of the substantive notice of motion.

79. In this case, the applicant sought for orders of certiorari and  mandamus and the grounds relied on  as cited  above are  clearly  spelt out in the  statutory statement  dated  13th December  2016. Nos 1-14 at ground 2, the exparte applicant says:

“The applicant filed Nairobi Miscellaneous Application  No. 264/2013; Republic vs Kenyatta University  & 2 Others  exparte  Gatetua Macharia  Kennedy where the court  in its  judgment of 3rd December, 2014  quashed  the  said  disciplinary proceedings  for failing to adhere  to rules of natural justice  and  ordering  the respondent to be held fresh disciplinary hearing within strict regard to rules of  natural justice.

With the  60 days having lapsed, the  2nd respondent  by letter dated  4th March  2015  and  received by  the applicant  on  6th March 2015, commenced fresh proceedings  in blatant  disregard  of the court’s  judgment and in gross  violation of  cardinal  rules of natural  justice to wit……

The University  has unreasonably  and  unfairly  refused to make good  its  impropriety  made decision despite  numerous requests  and demands made to it and held a sham hearing without  adherence to the courts judgment in Nairobi Miscellaneous  Application No. 264/2013 Republic vs  Kenyatta  University  & 2 Others Exparte  Gatetua Macharia  Kennedy thus necessitating  this application.

The respondent’s collective action to inordinately delay hearings  and thereafter  holding  sham hearings  with a view  of wearing  out the applicant  and  side  stepping the court’s  judgment  are their predetermined  position to  discontinue  the applicant  was  in bad faith  and  has visited a great deal  of stress, frustration, mental  anguish, dejection, despair and near depression to the  applicant since four(4) years have since lapsed since the applicant became eligible for graduation but has never graduated  nor obtained  his degree  and he cannot therefore secure any employment.”[emphasis added].

80. The above cited grounds are only but among the  grounds  relied on by the exparte applicant in support  of the  substantive  notice of motion seeking for certiorari and mandamus. Clearly, the grounds show that the applicant is attacking the respondent’s  failure to adhere  to the judgment  and  directive of Honourable Korir J  in JR  264/2013 and is in no unclear  terms, saying that  the  reasons why he is  seeking for certiorari  and mandamus  against the  respondents is  because  the  latter have  blatantly disregarded and violated the judgment of Korir J in JR  264/2013.

81. Violation or brazen disregard of court order or judgment of a court of law or tribunal is what contempt of court order is.

82. The consequences  of disobedience  of court orders, as stipulated  in law, whether  under the  Civil Procedure Rules  with  regard to Order 40 on injunctions, or applying the provisions of  Section  5  of the now  (repealed) Judicature  Act, or  the provisions  of the newly enacted Contempt  of Court  Act, 2016 which  nonetheless  became  operational in January  2017  are now well settled.

83. Certiorari and mandamus or any of the judicial review remedies are not by law, remedies for contempt of court orders or judgments.  It follows that in as much  as the applicant’s  prayer is  not to declare  the respondents to be in contempt of court  judgment of Korir  J in the earlier  JR 264/2013 as  was  the  case in the Eliud  Nyauma  Omwoyo (supra)  case,  I have no  hesitation in  finding that the applicant is improperly before  this court wherein he seeks for certiorari and mandamus  against  the respondents on the principal  grounds  that the respondents have  blatantly violated/disobeyed/disregarded the judgment of Honourable Korir J in JR 264/2013.

84. As correctly  stated by Honourable   Onguto J in Eliud Omwoyo  (supra) case, contempt  of court is  defined by Black’s  Law Dictionary as “ conduct  that defies  the  authority or dignity  of a court.  Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment……

The cardinal aim of contempt application or offences is to basically  arrest  all conduct  which are aimed  at or  reasonably  feared to be aimed at  interfering  with the proper  administration  or  cause of justice.  Contempt proceedings also ensure  that there is  compliance with  court orders  when the contemnor is  forced to purge  the  contempt.  There is  no doubt that  one  of the essential  condition for  the proper administration  of  justice is that there  should  prevail not only  discipline in court but also  subservience  and obedience  to the court process and court  orders.  This condition will certainly be undermined if any party to a case is allowed with impunity to defy court orders or simply ignore process.  How then should an application for contempt be instituted.”

85. In no uncertain words if the  respondents  failed to adhere to  the judgment  of  Korir J  in JR  264/2013 then they are said  to have  committed contempt of court and therefore whether the applicant  claims  that he is seeking  certiorari  and mandamus  based on  the  fresh outcome of the disciplinary proceedings  initiated  by the respondents  is immaterial.  This is  because  the  respondents were ordered to conduct the fresh disciplinary  proceedings in accordance with the Rules of Natural Justice  and within   the  60 days  of the date of judgment. If they proceeded to conduct the fresh disciplinary proceedings outside the 60 days stipulated by the court and or completely  ignored or failed  to adhere  to the Rules  of natural justice or fair  hearing  as espoused in Articles 47 and 50 of the Constitution  respectively and the Fair Administrative Action Act, then, whichever  way one  would wish  to look at  these proceedings, the main  complaint is  that the respondents are in contempt  of the judgment  of Korir J  in JR  264/2013 and that  therefore the remedy for such contemptuous acts is certiorari and  mandamus.

86. All other grounds in support of the motion are, in my humble view, subsidiary to the grounds of contempt of court. And contempt of court, seriously, does not give rise to a new cause of action to be remedied by certiorari or mandamus.

87. It would therefore have been appropriate, under the circumstances, for the exparte applicant to approach the court  vide JR  264/2013  and  assert  that the court’s  own judgment  of  3rd December  2014  had been  violated  or  breached  upon which  the court  would hear  and  determine whether indeed, the fresh disciplinary proceedings were conducted in the manner  directed by the court or not.

88. Even issues of new charges, retrospective regulations and delayed determination of the appeal or failure to accord the  applicant a fair  hearing, an adjournment, or giving him inadequate notice  of hearing  would all  fall into  the category  of failure to adhere to the judgment of Korir J.

89. I fully adopt Honourable Onguto J’s holding  in  the Eliud  Omwoyo (supra) case that “The essence of filing of contempt  proceedings  where the judgment or order is made is to avert filing  multiple suits  and  dissuading  litigants from  litigating  afresh.  While  it may be true that disobedience of court orders may raise  constitutional  issues like  fidelity  to the law, it is  important  to note that that would  not result  in a new  cause of action. Contempt proceedings have to be commenced to enforce the court orders and it has to be before the right forum.”

36. In the instant case, the right forum to file such a suit is the suit within which the orders emanated.  This averts the question of Resjudicata and multiplicity of suits, essentially what the doctrine   seeks to cub…

37. I would  hasten to  add that even if the petitioner  is for  the view that the respondents did not follow the law by affording  the petitioner the requisite  fair administrative  action then  that too ought to form or constitute a ground for the contempt  application. The court decreed on 12th September 2014 in Petition No.  365  of  2012  that  the  respondents  must follow the law in the reconvened  disciplinary proceedings.  In the process the court also set out clear directions  in the judgment.  Failure to follow the law or indeed the directions in the judgment would itself constitute a ground for contempt proceedings subject only to proof.”

90. The above position in the Eliud Omwoyo  case is  in parimateria  with  this case  and  it is for that  reason  that  I agree that the parties  would  have to go through  a repeat  motion or process and trial and  if vindicated, the petitioner would end up with  the same  orders, given that the exparte  applicant  still maintains  in these proceedings, as he  did before  Honourable Korir J in JR  264/2013 that  having completed  his studies  at the 1st  respondent  University  and having been  cleared  by the said  university, the university  had no power to discontinue  him from the institution and that what remained was for him to  graduate  and  be conferred  with the degree  that he had  worked so  hard to attain.

91. It is  for the above reasons  that I find and  hold that  the  judicial review  orders of  certiorari and mandamus sought  in the motion  by the  applicant  are not  available  to him as the  remedies  are sought in a manner and  on the grounds  which demonstrate  contempt of court order in JR 264/2013. The prayers are accordingly declined.

92. Having  so found, in my humble  view, the appropriate remedy  for the applicant should have been, and he still has an  opportunity  to approach  the  court in JR  264/2013 subject  to any other  written law of  limitation, to enforce  the judgment  of Honourable Korir J.

93. In the end, I find that the order that commends itself in this matter is to dismiss the exparte applicant’s notice of motion dated 30th January 2017.

94. As the exparte  applicant  has been  taken through a cycle  which was unnecessary by his legal counsel  out of desperation for  justice, I will spare  him the  costs of  these proceedings. I order that each party shall bear their own costs of these proceedings.

Dated, signed and delivered at Nairobi this 29th day of November 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Muriuki for the exparte applicant

Mr Mwangi for the Respondent

CA: George