Republic v University of Nairobi Exparte Bargorett Victor Kiprop [2017] KEHC 931 (KLR)
Full Case Text
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 454 OF 2016
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION.
AND
IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF THE UNIVERSITY OF NAIROBI ACT, 2010
AND
IN THE MATTER OF THE UNIVERSITY OF NAIROBI RULES AND REGULATIONS GOVERNING THE ORGANIZATION, CONDUCT AND DISCIPLINE OF STUDENTS
AND
IN THE MATTER OF ARTICLES 21, 22, 47, 50(1), 159(2) AND 165 OF THE CONSTITUTION OF KENYA
REPUBLIC...........................................................APPLICANT
VERSUS
THE UNIVERSITY OF NAIROBI...............RESPONDENT
EXPARTE
BARGORETT VICTOR KIPROP
JUDGMENT
1. On 28th September 2016 this court granted to the exparte applicant Bargorett Victor Kiprop, leave to institute Judicial Review proceedings against the University of Nairobiand directed that the substantive notice of motion be filed and served within 21 days of the date of the order for leave.
2. On 4th October 2016, the exparte applicant dutifully filed notice of motion dated 3rd October 2016 seeking for the following orders:
1) That the applicant be granted an order of certiorari:
i. To remove into this Honourable court and quash the decision dated 21st April 2015 and affirmed on 13th June, 2016 by the respondent which suspended the applicants for a period of two academic years from the respondent’s school of Economics;
ii. The bring into the High Court and quash the decisions of the Disciplinary Committee; Senate Disciplinary Committee which directed the applicant to keep off the precincts of the respondent for a period of two years.
2) That the applicant be granted an order of prohibition.
i. Directed to the respondent barring the respondent, its committees, members, servants and or agents from in any manner howsoever harassing the applicant, further disciplining and or suspending him from the university.
3) That the applicant be granted an order of mandamus;
i. Compelling the respondent to allow the applicant, to resume his studies and to register and sit his final year examinations in the special/supplementary examinations at the earlier opportunity as scheduled and to enable the applicant complete his studies;
ii. Ordering the respondent to unconditionally set aside the suspension by its disciplinary committee and to immediately grant the applicant access to the university.
4) That the Honourable court be pleased to give such further and other reliefs that it may deem just and expedient to grant.
5) That the cost of and incidental to the application be provided for.
3. The notice of motion is predicated on the grounds and statutory statement and verifying affidavit of Bargoretti Victor Kiprop the exparte applicant herein sworn on September 27,2016 accompanying the chamber summons for leave.
4. The exparte applicant’s case as contained in the statutory statement as verified by his sworn affidavit is that he is a University of Nairobi student, in his fourth year pursuing Bachelor of Economics. That between 8th April and 11th April 2016 during routine room inspection following student unrests at the respondent University, the exparte applicant’s room No. 342 B Hall 11, the University Management found cannabis Sativa (bhang), a prohibited substance in the said room which was allocated to THE applicant contrary to the rules Governing the conduct and discipline of students.
5. Subsequent to the alleged discovery by the respondent, the exparte applicant was on 11th April 2016 suspended from the University by the vice Chancellor on behalf of the University Council as shown by exhibit BUK1 annexed.
6. Later, the exparte applicant was invited to appear before the College Disciplinary Committee on 19th April, 2016 to answer to charges leveled against him.
7. The exparte applicant claims that the Disciplinary Committee was not properly constituted because student representatives were missing, against the requirements of the Rules and Regulations governing the Organization Conduct and Discipline of Students, specifically, clause IV c and that despite his protests, he was denied the opportunity to raise the concerns and was coerced to proceed with his answering of charges, which he reluctantly did. He annexed BUK 3 a copy of the said University Rules and Regulations.
8. At the said hearing, the exparte applicant called one witness Wilson Kamwara Wanjama and after which the respondent University, on 21st April 2016, suspended the exparte applicant for two academic years having been found guilty.
9. The applicant therefore claims that the decision of the Disciplinary Committee to suspend him was laced with illegality because the Disciplinary Committee was not properly constituted as stipulated in the Rules.
10. Following his suspension, the exparte applicant appealed on 25th April 2016 but in a letter dated 28th July 2016, the University Senate approved the applicant’s suspension from the University.
11. According to the exparte applicant, the composition of the Senate Student Disciplinary Committee was equally inappropriate because there was no student representative against the stipulation of Clause IV(c ) of the Regulations Governing the Organization, Conduct and Discipline of Students Disciplinary Procedures.
12. It is alleged that despite the respondent being informed of the above irregularities, it has refused to remedy the situation which has affected the applicant’s fundamental rights to be tried before a competent legal and properly constituted Disciplinary Committee.
13. The applicant claims that for the 4 years that he has been at the University, he has never been indisciplined or been involved in any vice. He therefore avers that the punishment meted against him of suspension from the University for two years was too harsh and that at the very least the University could have allowed him to sit for his final examinations outside the halls of resident since he was a finalist student.
14. The applicant claims that the decision to suspend him from the University for 2 years was high-handed, unconstitutional, irrational, rush and a desperate attempt to lay blame on his innocence, and meant to rob him of his opportunity to graduate at the end of 2016. He claims that he was denied fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
15. According to the exparte applicant, the admission by Mr Kamwara Wilson Wanjama that the drugs belonged to him and not the applicant should have been considered as a strong mitigating factor and defence and should have been taken into account and the decision arrived at should have been other than the verdict meted out on the applicant since he had never consumed the said prohibited drug, cannabis sativa(bhang) found in the room.
16. The respondent University opposed the exparte applicant’s notice of motion and filed replying affidavit on 12th October 2016 sworn by Professor Isaac M. Mbecheon 12th October 2016 contending, materially, that the applicant was on 24th August 2012 admitted to the University of Nairobi and he accepted to be bound by the Rules and Regulations Governing Conduct and Discipline of the Students of the University. That the act which led to the applicant’s suspension from the University was as a result of shifting of room 342B to Mr Wilson Kamwara and keeping “cannabis sativa” in the said room.
17. It was contended that cannabis sativa is a prohibited substance and contrary to the Rules governing Discipline of the respondent’s students and a serious offence under Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994 which offence under the Act carries 20 years imprisonment.
18. That the above discovery was made after students went on rampage damaging University property and stoning motorists as a result of which they were instructed to vacate the University premises and that it was upon the University management inspecting the student’s rooms that they discovered the cannabis sativa in the exparte applicant’s room which is an offence and contrary to the regulations.
19. The respondent contends that the exparte applicant was accorded a fair hearing by the Disciplinary Committee in accordance with the Rules and Regulations before the Senate approved his suspension from the University.
20. According to the respondent, the procedure adopted was in accordance with the Rules and Regulations and that it was not A mandatory requirement for there to be a student representative on the Disciplinary Committee.
21. Further, it is contended that given the circumstances of the disputed elections (sic) leading to the unrest in the University, the Disciplinary Committee did not deem it fit to accord students’ representatives presence necessary.
22. It was also contended that the respondent complied with the regulations by allowing students appearing before the Disciplinary Committee to representation either in person or by someone of their choice to call witnesses to their defence and to appeal to the Senate Disciplinary Committee as per Part IV(c) (2) (IV) of the Rules and Regulations.
23. Further, that the orders sought by the applicant seeks in effect to reverse and or annul the decision of the respondent and allow the applicant to continue being a student of the respondent as though the respondent had never made a decision to suspend him; and that reinstating the suspended student would be detrimental to the respondent and make it impossible to maintain any discipline in the University.
24. The respondent urged the court to consider the competing public interest of maintaining discipline and tranquility at the University where there are over eighty five thousand (85,000) students and decide in favour of the respondent in upholding the suspension of the applicant where the scales of justice tilt.
25. The respondent claims that the production of the certificate of analysis by Government Chemist dated September 20th, 2016 by the applicant months after charges of possession of cannabis sativa were preferred against the applicant is an afterthought and a clever way to seek sympathy from the court and a cover up to circumvent and reopen a disciplinary process which was properly conducted within the rule of law and in which he fully participated. Further, that the certificate of analysis bears a different name from that of the applicant hence it ought to be disregarded.
26. Further, the respondent claims that Kamwara Wilson is a doctored witness to exenorate the applicant from charges of indiscipline as the two swapped rooms without authority from the university hence the applicant cannot come to this court seeking for immunity from the disciplinary process contrary to the rules and regulations of the respondent and which the applicant is subject to. It was contended that the applicant’s right to fair administrative action was followed and that Articles 19 and 24 of the Constitution provide for limitation of rights hence the reliefs sought are not available and therefore the motion before this court should be dismissed.
27. Both parties’ advocates filed written submissions to canvass their respective client’s positions, which submissions and authorities were adopted by the court.
28. In the exparte applicant’s submissions dated 9th November 2016 and filed in court on the same day, the applicant reiterated the grounds in support of the chamber summons for leave as summarized above and contended that the procedure leading to his suspension was tainted with procedural impropriety and contrary to Article IV(c) of the disciplinary Rules and Regulations which require that all disciplinary offences shall in the first instance be reported to and dealt with by the committee constituted as follows:
At the college level:
I. The Principal -Chairman
II. The Dean of Faculty/Director of Institute of School
III. The Chairman of Student’s Department where appropriate
IV. One representative nominated by the college student’s organization
V. On representative from the students Hall of Residence nominated by the students Hall Chairman, The College Registrar/Secretary.
a) All disciplinary offences committed within the Halls of Resident or all such offences as relate essentially to the proper conduct of residential affairs shall be reported to the Halls Disciplinary Committee for action.
b) If any matter reported to Halls Disciplinary Committee, is, in its opinion essentially of an academic nature or involves issues extraneous to the residential affairs of the hall concerned, such a matter shall be transmitted at once to the appropriate College Disciplinary Committee for action.
All other disciplinary offences wherever committed shall be reported to the appropriate College Disciplinary Committee for action.
29. It was therefore submitted by the applicant’s counsel that the above provisions were flouted as the matter which concerned the Halls Disciplinary Committee for action was never handled by that committee and that neither was that committee given an opportunity to decide whether the matter was of academic nature or involved extraneous issues to be referred to the appropriate College Disciplinary Committee.
30. It was submitted that it was unprocedural to rush to charge the applicant before the College Disciplinary Committee when the matter of the alleged offence arose from the Halls of Residence.
31. In addition, it was submitted that the Rules mandate that a student’s representative must be present, nominated by the College of Student’s Organization yet in this case there was no student representative invited to attend the College Disciplinary Committee’s proceedings and the Senate Disciplinary proceedings as evidenced from the exhibited minutes of the Disciplinary Committee proceedings which was a departure from the procedure established by the respondent.
32. Furthermore, that there was no warden present at the Senate Disciplinary proceedings contrary to the Rules and Regulations governing discipline of students.
33. It was submitted that in view of the above, the respondent’s contention that it was not mandatory for there to be student representatives in the Disciplinary Committees at both levels is not sincere but misleading as there is no such discretion given to the respondent by the Rules and Regulations cited by the respondent in the replying affidavit of Professor Isaac Mbeche, which bind both the applicant student on admission and the University.
34. It was submitted that at the time of the Disciplinary proceedings, Elections had been conducted and new students officials sworn into office hence the respondent cannot claim that there were no student representatives and that if that were to be the case as alleged, the respondent should have stayed the Disciplinary proceedings until such time when the student representatives were available. In addition, it was submitted that the respondent cannot justify the absence of a warden from the Disciplinary proceedings contrary to the stipulation in the Regulations.
35. Accordingly, it was submitted that the decision arrived at to suspend the applicant from the university was improper and unfair. Reliance was placed on Republic vs Kirinyaga University College & 2 Others Exparte Isaya Kamau Kagwima [2015] e KLR where the court allegedly faced with the similar circumstances held;
“ I do find that the composition of the membership at the meeting lacked 3 crucial members namely the Dean of Students and two student, representatives. In view of lack of quorum, I am persuaded by the submissions by the applicant that the body that made the decision to suspend the applicant was irregular and any decision emanating there from is a nullity.”
36. It was submitted that the two Disciplinary Committees lacked quorum hence the decision to suspend the applicant was irregular and any decision emanating there from is a nullity.
37. On illegality and unfairness, the exparte applicant’s counsel submitted that although his client was served with a charge sheet containing 4 counts/ charges which he was required to respond to at the Disciplinary Committee hearing, in an interesting twist of events, when he appeared before the said Committee on 19th April 2016, the respondent maliciously introduced two more counts to the charge sheet without notice to the applicant as shown by the minutes of 19th April 2016 where six counts appear, contrary to what he had earlier been notified of, which is illegal and unfair as the applicant alleges that he did not get sufficient time to prepare himself to respond to the new set of allegations.
38. Reliance was placed on the case of Republic vs Kirinyaga University College & 2 Others Exparte Isaya Kamau Kagwima [2015] e KLR where the court held inter alia that a party must be given a fair opportunity to defend himself and that introduction of additional charges at the 11th hour subjected the applicant to unfair trial.
39. The applicant’s counsel submitted that the introduction of additional 2 charges at the hearing against the applicant contravened Article 47(1) and (2) and 50 of the Constitution, on the right to fair administrative action and the right to a fair hearing. It was further submitted that the Senate Disciplinary Committee which heard the applicants appeal simply adopted the College Disciplinary Committee. That it never accorded the applicant any hearing or at all and that neither did it give any reasons why College Disciplinary Committee decision was upheld.
40. According to the exparte applicant, reasons for the decision in a matter where a person’s right or fundamental freedom has been or is likely to be affected by the administrative action must be given especially in the instant case where the matters in issue were weighty with far reaching implications on the applicant’s right to education as guaranteed by the Constitution, career and life in general.
41. On irrationality, it was submitted that none of the six counts leading to his suspension from the University related to subletting of his University room allocated to him alone yet he was convicted for letting a different occupant live in his room hence, the applicant was found guilty of the offence that he was not charged with as shown by the proceedings of the College Disciplinary Committee. Further, that the minutes showed that the applicant was exonerated from charges levelled against him but convicted of subletting the room assigned to him to a stranger, the owner of the prohibited drugs found in the room.
42. On the parameters for Judicial Review, reliance was placed on CA 185/2001 Municipal Council of Mombasa v Republic & Umoja Consultants Ltd; Republic vs Kirinyaga University College & 2 Others Exparte Isaya Kamau Kagwima(supra); Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300; Rahab Wanjiru Njuguna v Inspector General of Police & Another [2013] e KLR.
43. The respondent’s submissions dated 18th November 2016 were filed in court on the same day. The respondent reiterated the contents of the replying affidavit sworn by Professor Mbeche.
44. According to the respondent, it conducted disciplinary proceedings against the applicant student in accordance with the stipulated rules and regulations and that the applicant submitted himself to the disciplinary process without raising any issue with the composition and mandate of the respondent’s disciplinary procedures.
45. In the respondent’s view, the purpose of the respondent’s disciplinary procedures is not for enforcing legal rights but for enforcing honourable conduct and behavior among its students as good citizens, otherwise it would be impossible for the respondent to carry out its mandate and secure discipline among its students.
46. Further, that under the Rules and Regulations Part (IV) ( c) (2), it was not a mandatory requirement for there to be a student representative on the Disciplinary Committee. It was also submitted that the circumstances prevailing then did not warrant presence of student representative. Reliance was placed on Patrick Mbau Karanja vs Kenyatta University Petition 181/2012 adding that student disciplinary proceedings cannot be conducted in the same manner as court proceedings would. Further reliance was placed on Republic vs Kenyatta University HC Miscellaneous Application 54/2009to underscore the flexibility of a disciplinary committee as to its procedures and reaching a determination.
47. It was submitted that lamentation as to the procedure adopted by the respondent in disciplining the exparte applicant are baseless since the committees could regulate its own procedures and moreso, that no evidence has been adduced to prove violation of the applicants rights to a fair hearing.
48. It was submitted that the applicant was procedurally served with the notice published in the daily nation newspaper of 15th April 2016 informing him and other suspended students to collect their individual charge sheets from office of Registrar of the respondent’s specific colleges, which notice specified the specific disciplinary panel, venue, date and time of their individual hearings before the college of Students Disciplinary Committees.
49. Further, that the applicant student appeared on 19th April 2016 and June 13th 2016 before the Disciplinary and Appeals Committees to answer particular charges specified in the charge sheet and was accorded a fair hearing upon which he was found guilty of being found in possession of cannabis sativa in room No. 342B Hall 11 and shifting of official room allocated to him to one Mr Wilson Kamwara which two acts are in violation of the Rules Governing Discipline of University of Nairobi’s Students besides possession of cannabis sativa being a criminal offence.
50. It was submitted that before suspension letters were issued to the applicant, Senate approved their suspension by adopting the disciplinary proceedings on 21st April 2016.
51. On flexibility of disciplinary proceedings, reliance was placed on Michael Fordharm in Judicial Review Handbook 4th Edition at page 1007and the decision in Kenya Revenue Authority v Menginya Salim Murgani CA 108 of 2009that decision making bodies other than the courts are masters of their own procedures provided that they achieve the degree of fairness appropriate to their task. Further reliance was placed on Republic vs Aga Khan Education Services Exparte Ali Sele & 20 Others HC Miscellaneous Application 12/2002 where the court held that“it is not in every situation that the other side must be heard and that there are situations where a hearing would be unnecessary and even in some, obstructive. Each case must be put on the scales by the court and there cannot be general requirement for hearing in all situations. There will be for example, situations when the need for expedition in decision making for outweighs the need to hear the other side and in such situations the court has to strike a balance.”
52. Further reliance was placed on the case of Republic v Judicial Service Commission exparte Pareno [2004] KLR 203-209where it was held that Judicial Review orders are discretionary and are not guaranteed and hence a court may refuse to grant them even where the requisite grounds exist since the court has to weigh one thing against another and see whether or not the remedy is the most efficacious in the circumstances obtaining and that since the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles.
53. The respondent’s counsel further relied on Russel V Duke of Norfork [1949] 1 ALL ER at 118 where the court held, inter alia that “the requirements of natural justice must depend on circumstances of the case, the inquiry, rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.”
54. Further reliance was placed on Simon Gakuo vs Kenyatta University & 2 Others Miscellaneous Civil Application 34/2009where the court held, inter alia, that the Audi Alteram Partem rule should not be interpreted to mean a full adversarial hearing or anything close to it as per the court room situation and as per Section 77 of the Constitution. Interpreting the demands of natural justice as requiring adversarial hearing or anything similar is a serious misdirection in law. There are no rigid or universal rules as to what is needed in order to be procedurally fair. What is needed is what the court considers sufficient in the context of each situation with its own unique facts with the need of good administration in view. I urge Practioners of law not rigidly import the hearing requirements in court room situation etc.”
55. On the applicant’s certificate of analysis, it was submitted that the certificate and the applicant’s witness Mr Kamwara Wilson are suspect and a cover up on the applicant’s part to circumvent and reopen a disciplinary process which was properly conducted within the rule of law and in which the fully applicant participated as the certificate of analysis bears a different name from that of the applicant and ought to be disregarded or treated with caution.
56. According to the respondent, the approach adopted by the applicant and his witness Kamwara Wilson, of swapping room No. 342B Hall 11 was a local arrangement which is not recognized by the respondent as the rooms are allocated to individual student/applicants online hence it could not be reallocated to Kamwara.
57. On enhancement of suspension of the applicant from 2 years to 20 years it was submitted that this court is vested with inherent jurisdiction to vary and or enhance the verdict of the applicant’s suspension by the respondent disciplinary committee from that of 2 years to twenty years as provided for by the Narcotic Drugs and Psychotropic substance (Control) Act No. 4 of 1994 where the penalty for such an offence is 20 years imprisonment and that this court bears special responsibility to ensure that students are natured in an environment free of drugs and where students potentials can be realized.
58. The respondent urged the court to uphold the exparte applicant’s suspension or enhance it since he was accorded ample opportunity to show why he should be disciplined hence the applicant’s constitutional rights must be weighed against those of the University and the rest of the University population including students and staff and that individual rights under the Bill of Rights are subject to rights of others and that of the public as was held in Ndanu Mutambuki & 119 Others v Minister for Education & 12 Others [2007].Further, that to allow the applicant’s behavior to take root in such a huge cosmopolitan population will bring difficulties in maintaining law and order in a learning institution of the respondent’s stature.
59. It was further submitted on behalf of the respondent that the Judicial Review order of certiorari, prohibition and mandamus cannot issue in the manner sought as it seeks direction on the manner in which the respondent ought to have discharged its mandate and that to grant the orders sought would be tantamount to the court usurping the mandate of the respondent to manage its students hence the motion filed by the exparte applicant should be dismissed as he has not demonstrated any illegality, irrationality and or procedural impropriety.
DETERMINATION
60. I have considered the exparte applicant’s notice of motion, the response by the respondent and the parties’ respective submissions supported by authorities.
61. In my humble view, the main issue for determination in this matter is whether the exparte applicant is, on the material placed before this court, entitled to the Judicial Review orders of certiorari, prohibition and mandamus sought. There are also anciliary questions that this court will endeavour to answer in due course.
62. The main questions to be answered in this case hinge around the disciplinary proceedings undertaken by the respondent University of Nairobi against the exparte applicant student Victor Bargorett Kiprop.
63. Certain matters are not in dispute including whether the applicant was a bona fide student of the respondent University admitted in the Economics Class and having been allocated University accommodation. It is also not in dispute that the respondent had the power under the Rules and Regulations governing the organization, conduct and discipline of students, to take disciplinary action against delinquent students, which issue has not been impugned by the exparte applicant student.
64. The respondent University has elaborate Rules and Regulations s and procedures which the exparte applicant subscribed to on admission to the University and this is not in dispute either.
65. The question that begs serious answers is whether the respondent in undertaking discipline of the exparte applicant, subjected him to due process and or whether it complied with the stipulated disciplinary procedures in the process of arriving at the decision that it did, that of suspending the exparte applicant who was a 4th year Bachelor of Economics Student from the University.
66. Albeit the respondent contended that the applicant is seeking to review the merits of the decision reached by the University, in my humble view, the question of whether there was compliance with procedures for disciplining the applicant is a question that falls within the jurisdiction of a Judicial Review court and therefore this court is not being asked to, and it shall resist any attempt to delve into the merits of the decision that was arrived at by the respondent. For example, it is not within the jurisdiction of this court to find whether the sentence meted out to the applicant was too harsh or too lenient calling for reduction or enhancement to the 20 years imprisonment called for by the respondent, so as to accord with the penalty provided for under the Narcotic Drugs and Substance control Act No. 4 of 1994.
67. It is also not within the jurisdiction of this court to determine whether or not there was sufficient evidence adduced by the respondent to warrant the conviction and eventual suspension of the exparte applicant from the University.
68. In the words, this court is alive to the well established principle of law that in the exercise of Judicial Review jurisdiction, it is exercising neither civil nor criminal jurisdiction and therefore it is not acting as an appellate court. That being the case, the court is prohibited from substituting the respondent’s decision with its own decision. What is expected of this court is to satisfy itself that the disciplinary procedures adopted by the respondent met the threshold of what constitutes a fair process.
69. The applicable principles which are now settled were set down be Nyaranga JA (as he then was) in Nyongesa & Others v Egerton University College (1990) KLR 692 where the learned Judge of Appeal pronounced himself as follows:
“Having this stated, as I think to be desirable, the broad nature of the important issues and proposed procedure, I shall now state that courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies.
Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the courts are moved to do so where it is manifest that decisions have been made without fairly and justify hearing the person concerned or the other side. What constitutes a fair process is dependent on the facts and circumstances of each case. Implicit in the concept of fairness is flexibility.”
A University Disciplinary committee dealing with student’s disciplinary matters must have the necessary flexibility, having regard to the college environment and the right to education, to deal with such disciplinary cases, provided that the process is fair, that the students is given a hearing and an opportunity to defend himself ( see Pearlberg vs Varty Inspector of Taxes (1972)1 WLR 534; KNEC vs Geoffrey Njoroge & Others Nairobi CA 266/1996 (UR); Commissioner General, Kenya Revenue Authority vs Vano Onema Omwaki t/a Marenga Filing Station Kisumu CA 45/2000, unreported.”
70. The parameters for judicial review remedies were set out in the Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 Court of Appeal case citing with approval Council of Civil Unions v Minister for the Civil Service [1985] AC 2 and Re Application by Bukoba Gymkhana Club[1963] EA 478 at 479that:
“ 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……..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 authorityin the process of taking a decision. The unfairness may be its none 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 legislature instrument by which such authority exercises jurisdiction to make a decision.”
71. In disciplinary matters, compliance with procedures is critical because due process has evolved over time as a way of ensuring that accusatory proceedings produce accurate and truthful results. Due process has become one of the most vital components of a free, decent, and fair society. Due process ensures the best chance of learning the truth during the trial process since the decision maker is given the best chance of getting to the bottom of sophisticated factual matters.
72. The jurisprudence of due process is heavily concerned with identifying specific procedures that are effective in discovery the truth. The case of Republic v Institute of certified Public Accountants of Kenya (ICPAK) exparte Vipichandria Bhatt t/a JV Bhatt & Company Nairobi HCC Miscellaneous Application 285/2006 ((UR) settled the issue of powers and the procedure to be adopted by disciplinary bodies thus:
“ ………An administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law…It is axiomatic that that statutory power can only be exercised validly if they are exercised reasonably. No statute can ever allow anyone on whom it confers a power to exercise such power arbitrarily and capriciously or in bad faith.”
73. In Tanganyika Mine workers Union vs The Registrar of Trade Unions [1961] EA 629, the court held that where provisions of an enactment have penal provisions, they must be construed strictly and that in such circumstances, you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express terms( see also Muini V Republic through Medical Officer of Health, Kiambu[2006] 1KLR.
74. The exparte applicant categorically complains that the respondent student Disciplinary Committee was not properly constituted in that the Student Association representative and warden were not invited to attend the disciplinary proceedings.
75. In addition, it is asserted that the respondent by passed the Halls of Residence Disciplinary Committee and subjected him to the College Students Disciplinary Committee which was improperly constituted yet the issue at hand was a Halls of Resident issue and that as there was no discretion to jump the procedure without first involving the Halls of Residence Disciplinary Committee which committee would determine whether the matters before it should be placed before the College Students Disciplinary Committee. In his view, the failure by the respondent to follow the mandatory procedure set out in the Rules and Regulations IV vitiated the proceedings and that the College Students Disciplinary Committee’s lack of quorum too vitiated the entire disciplinary process to be null and void ab initio and quash those proceedings and the decision.
76. Undoubtedly, similar issues arose in Republic vs University of Nairobi exparte Michael Jacobs Odhiambo & Others [2016] e KLRwhere Honourable Justice G.V. Odunga made several findings and which, though persuasive, are good law. The learned Judge determined the question of a properly constituted tribunal and the consequences of failure to adhere to the procedural rules and relied on several cases including Gathigia vs Kenyatta University Nairobi HCMA No. 1029/2007 [2008] KLR 587where the court held, in relation to duty of a tribunal to ensure that it is properly constituted :
“I would at this stage adopt the observations made in the DE SOUZA case (supra) where the court set down the general principles which should guide statutory domestic or administrative tribunals sitting in a quasi-judicial capacity. P. 386 – the court said;
“1. if a statute prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed;
2. if no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue;
3. In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means. It must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as a trial. It need not examine witnesses; and it can obtain information in any way it thinks best……….;
4. The person accused must know the nature of the accusation made;
5. A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement they may decide to bring forward;
6. The tribunal should see to it that matter which has come into existence for the purpose of the quasi – lis is made available to both sides and once the quasi – lis has started, if the tribunal receives a communication from one party or from a third party, it should give the other party an opportunity of commenting on it.”
77. The Learned Judge further learned relied on Pastoli v Kabale District Local Government Council & Others(supra) where it was held:
“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.”[emphasis added].
78. On the consequences of failure to adhere to the procedural rules, the case of Resley vs The City Council of Nairobi [2006] 2 EA 311 is instructive interalia:
“In this case there is an apparent disregard of statutory provisions… and it is essential that bureaucracy should be kept in its place…”
79. In adopting the decision in Pastoli vs Kabale (supra), the following paragraph is cited by Odunga J in Republic vs UON Exparte Michael Jacobs Odhiambo(supra):
“137. In my view where the action under challenge has the potential of restricting human rights and fundamental freedoms under the Bill of Rights, any procedural rule enacted with a view to ensuring the due process is adhered to before any adverse action is taken ought to be considered seriously since under Article 19 of the Constitution, the Bill of Rights is the framework for social, economic and cultural policies and the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. Our Constitution appreciates that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State. This position was restated with respect to the rules of natural justice by the Uganda Supreme Court inThe Management Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, as follows:
“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”
138. Our own High Court (Nyamu, J) inKenya Bus Services Ltd & 2 Others vs. Attorney General [2005] 1 KLR 787, eloquently asserted as follows:
“The only difference between rights and the restrictions are that the restrictions can be challenged on the grounds of reasonableness, democratic practice, proportionality and the society’s values and morals including economic and social conditions etc whereas rights are to the spiritual, God given, and inalienable and to the non-believers changeless and the eighth wonder of the World. Theex parteorder could not have been spared in any event for the reason that it would have hindered the smooth flow of the streams of justice for all by blocking the 221 persons while the rivers of Constitutional Justice or any justice at all should flow pure for all to drink from them.”
80. It cannot be disputed that as a student, the applicant is entitled to a right to education which must be promoted and protected. However this is not to say that right absolute. In the OluochDan Owino v Kenyatta University HC Petition 54/2014, case the court stated:-
“As I understand it, the right to education does not denote the right to undergo a course of education in a particular institution on one’s terms. It is my view that an educational institution has the right to set certain rules and regulations, and those who wish to study in that institution must comply with such rules. One enters an educational institution voluntarily, well aware of its rules and regulations, and in doing so commits himself or herself to abide by its rules. Unless such rules are demonstrated to be unreasonable and unconstitutional, to hold otherwise would be to invite chaos in educational institutions.”
81. In the instant case, the respondent contended that it followed the procedures for disciplining students, and that in any event, it was not duty bound to strictly follow the procedures for conducting trials before a court of law as it had the power to follow its own procedures. In addition, it was contended that the right to education can be limited under certain circumstances as in this case where students had gone on rampage and destroyed property hence the students representatives could not have been called upon to attend the disciplinary proceedings.
82. I disagree with the above contention for reasons that the cases relied on by the respondent on the procedure to be adopted in disciplinary/quasi judicial proceedings were all pre 2010 Constitution decisions.
83. After 27th August 2010, the legal position on the procedure before quasi judicial or administrative bodies changed drastically. This was with the enactment of Article 50 of the Constitution, 2010, on the right to a fair hearing which right cannot be limited, and Article 47 of the Constitution, on the right to Fair Administrative Action as implemented by the Fair Administrative Action Act, 2015.
84. The Court in Macharia vs. Wanyoike [1981] KLR 45, was of the view that experience has repeatedly shown that short-cuts invariably result in being more expensive and time-absorbing in the end. Equally, in Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 it was held that:
“The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision.”
85. The right to education is enshrined in Article19 of the Constitution which is embedded in the Chapter on the Bill of Rights. It therefore follows that the procedure to be adopted in any disciplinary proceedings that would adversely affect that right to education, like all other rights guaranteed by the Constitution must adhere to the procedural underpinnings grounded in Article 47 of the Constitution, Article 50 of the Constitution on the right to fair administrative action and the right to a fair hearing so as to preserve the dignity of individuals and to promote social justice.
86. Fundamental Human rights are inherent and are not granted as tokens or favours by the state to its subjects. The Rules governing the conduct and discipline of University students provide for various levels of disciplinary action depending on the nature of the matter being investigated into. In this case, clearly, Article IV(c) of the Rules provide that all disciplinary offences committed within the Halls of residence or all such offences as relate essentially to the proper conduct of residential affairs shall be reported to the Halls Disciplinary Committee for action.
87. And if any matter reported to the Halls Disciplinary Committee is, in its opinion essentially of an academic nature or involves issues extraneous to the residential affairs of the hall concerned, such a matter shall be transmitted at once to the appropriate College Disciplinary Committee for action. All other disciplinary offences wherever committed shall be reported to the appropriate College Disciplinary Committee for action.
88. What the above provisions espouse is that all disciplinary offences shall in the first instance be reported to and dealt with by committees constituted at the relevant stipulated levels.
89. The respondent has not denied the fact that the alleged offence was committed in the Halls of Residence for students. It has also not denied the fact that the Halls Disciplinary Committee was never constituted for purposes of hearing the case involving the exparte applicant. Similarly, there is no denial that the Halls Disciplinary Committee not having been constituted at all, had no opportunity to opine whether the matter herein was essentially of an academic nature or involved issues extraneous to the residential affairs of the Hall concerned, for transmission at once to the appropriate College Disciplinary Committee for necessary action.
90. In my humble view, therefore, the respondent by passed the Halls of Residence Disciplinary Committee in a matter that concerned offences allegedly committed within the Halls of Residence and in so doing, it violated its very own Rules and procedures for handling such matters which amounts to procedural impropriety.
91. Once the University lays down its own rules and procedures for disciplining students it is duty bound to follow or enforce those Rules and procedures whenever it is engaged in any disciplinary proceedings of students. Where the respondent fails to adhere to its own procedures relating to discipline of students, as is evident in this case, I have no hesitation in finding and holding that the entire disciplinary process meted out to the exparte applicant was unprocedural and therefore null and void. Accordingly, this court would not hesitate to find and hold that the whole disciplinary procedure adopted by the respondent was improper, null and void and ultra vires, calling for interference by this court, by way of certiorari, as shortcuts which are wrong cuts cannot be tolerated by a court of law.
92. The exparte applicant also complained that the College Disciplinary Committee was improperly constituted in that the student’s representative and warden were never invited to participate as required by the Rules.
93. This court having found clearly that the whole process of disciplining the exparte applicant was improper and violated the respondent’s own Rules and Regulations, it would not even be necessary to delve into the Constitution or quorum of the wrong forum in which the applicant was subjected for discipline. However, it is essential that I discuss that question to clear any ambiguity.
94. From the onset, an improperly constituted tribunal or administrative body has no power to preside over an administrative action. Shortcuts to very important disciplinary proceedings that would dictate a student’s future path should never be substituted with the correct procedure or due process. Accordingly, I am in agreement with Odunga J in his decision in Republic vs UON Exparte Michael Jacobs Odhiambo (supra) in its entirety. In addressing the question of Constitution of the tribunal the learned Judge was emphatic that a tribunal must be properly constituted and relied on Gathigia vs Kenyatta University [2008] KLR .
95. In Republic vs The Communications Appeal Tribunal & Others [2011] e KLRMusinga J (as he then was) stated:
“ A proper Construction of the law is that a board, committee or tribunal should be established with the numbers and qualifications as required by the relevant law for it to perform its statutory duties……But where the Minister is the law required to appoint five members of a tribunal following a given criteria and he appoints only three.. to the extent that the tribunal is lacking two members it is not properly constituted. The tribunal was not properly constituted when it heard and determined the appeal. The purported proceedings were null and void and of no legal consequences.”
96. As earlier stated, the respondent’s Rules and Regulations require that the Disciplinary Committee should have been constituted comprising among others one representative nominated by the college students organization and a warden. The minutes of the Disciplinary Committee produced herein are clear in black and white that no such representation was present. The respondents rejoinder to the issue of quorum is that Part IV (c ) 2 of the Rules and Regulations does not make it mandatory for there to be a student representative nominated to the Disciplinary Committee given the circumstances of the disputed elections that culminated in the students unrest. However, it is my humble view that as the applicant’s case involved alleged possession of cannabis sativa at the Halls of Residence, as opposed to destruction of property or being involved in the unrest, if there was no student organization representative at that time, there is nothing that prevented the respondent from waiting until the situation calmed down before initiating disciplinary proceedings against the applicant just to ensure that there was quorum as per the Rules and Regulations.
97. Furthermore, there is no reason given for non involvement of a warden. I agree with the Honourable Odunga J in the Michael Jacobs Odhiambo (supra) case that:
“ whereas it is not clear from the copy of Rules exhibited whether the Phrase “ where appropriate refers to the chairperson of the students organization, it is my view that onus was upon the respondent to show to the satisfaction of this court that it was inappropriate for the 1st applicant to be afforded the benefit of students representative at the committee. Bare averments in my view cannot suffice in disciplinary proceedings where the rights of a person as enshrined in the Constitution are at stake. I therefore find that the Disciplinary Committee that heard and determined the complaints against the 1st applicant was not procedurally constituted. In Tanganyika Mine Workers Union V The Registrar of Trade Unions [1961] EA 629, it was held that where the provisions of an enactment are penal provisions, they must be construed strictly.”
98. Whereas I am in agreement with the well established principle that courts should be cautious in interfering with internal mechanisms for administrative bodies in the exercise of their mandate under the established rules and statutes, nonetheless courts would ordinary interfere to give prudence to the procedure adopted and put on course a seemingly flawed disciplinary process as the one brought before this court, in order to prevent the blatant violation of the respondent’s own established disciplinary processes.
99. Albeit the respondent contended that disciplinary proceedings do not enforce legal rights, it is my humble opinion that taking of administrative action has serious constitutional imperatives as fair administrative action is now a fundamental human right enshrined in Article 47 of the Constitution as implemented by the Fair Administrative Action No. 4 of 2015 and therefore enforceable as such right under Articles 22 and 23 of the Constitution.
100. Further, the cases of Patrick Mbaru; Republic vs Aga Khan; Republic vs Judicial Service Commission exparte Pareno & Russel v Duke of New York and the exparte Simon Gakuo(supra) though relevant but are pre 2010 decisions before Article 47 and the Fair Administrative Action Act, 2015 were enacted.
101. In addition, the failure to form quorum of the college disciplinary proceeding in accordance with Article IV((iv)(b) of the Rules whose membership for all disciplinary matters other than academic or examination should be as stipulated below, renders the disciplinary proceedings conducted null and void. The said composition is as follows:
i. VC (student Affairs)
ii. Three Senate Representatives
iii. Three Student Representatives
iv. Principal of the College
v. Registrar Student Affairs
In attendance
i. Director, Student Welfare Authority
ii. Dean of Students
iii. Warden.
102. Notwithstanding the above provisions of the Rules and Regulations governing student disciplinary proceedings, the Senate Disciplinary Committee did not have the three student representatives or even a Warden in attendance yet the disciplinary matter was not academic or examination related but one concerning conduct in the Halls of Residence.
103. For the same reasons that the College Disciplinary Committee was improperly constituted and therefore its proceedings are a nullity ab initio, I so find and hold that the latter Senate Disciplinary Committee proceedings were void for want of quorum; as there are no rules and regulations placed before this court which expressly or by implication allow the respondent to bypass what is clearly stated in the Rules and Regulations governing student conduct and discipline which are binding on both the respondent and its or constitutive organs and the student community on the students’ admission to the University.
104. A similar situation arose in Republic vs Kirinyaga University College & 2 Others exparte Isaya Kamau Kagwima [2015] e KLRwhere the court held inter alia:
“I do find that the composition of the membership at the meeting lacked 3 crucial members to wit the Dean of Students and two student representatives. In view of lack of quorum, I am persuaded by the submissions by the applicant that the body that made the decision to suspend the applicant was irregular and any decision emanating there from is a nullity.”
105. Consequently, I am fully in agreement with the exparte applicant’s submission that as the College Disciplinary Committee and Senate Committee lacked quorum, they were improperly construed and therefore any decisions made by the respective committees were a nullity and irregular, which irregularity goes to the root of the matter as judicial review looks at the process by which the decision is arrived at and not the merits of the decision(see Municipal Council of Mombasa v Republic & Another [2002] e KLR.
106. The exparte applicant also complained that he was not accorded a fair hearing because he was served with a charge sheet dated 13th April 2016 containing four(4) counts which he was required to respond to. However, that in an interesting twist of events, when he appeared before the college disciplinary committee on 19thApril 2016, the respondent blatantly disregarded due process and fair hearing guaranteed under the Constitution and maliciously introduced 2 more counts to the charge sheet without notice to the exparte applicant as shown by the minutes of 19th April 2016.
107. I have examined the charge sheet drawn as an internal memo from Ag Chief Legal Officer Ref 73/4268/2012 13. 4.2016 dated 13th April 2016 addressed to the Registrar (Student Affairs) concerning Bargorett Kiprop Victor the applicant herein. That charge sheet which the applicant claims he was served with and which the respondent does not dispute contains four counts of:
Count 1 reads: Failure to respect and adhere strictly to the administrative and academic procedures established by the University of Nairobi Charter, 2013 for the control, governance and operations of the University contrary to Part III (1) (a) (i) of the rules governing the conduct and discipline of students(RGCDOS).
Particulars of the offence
Upon a routine University management student’s room inspection in your room No. 342B, Hall 11 there was found “cannabis sativa” (bhang). The fact that this substance was found in your allocated room is in contravention of the Rules governing the conduct and discipline of students(RGCDOS).
Count two.
Failure to respect the rights and privileges of the members of the university community at all times contrary to Part III (1) (a) (ii) of the Rules governing the conduct and Discipline of Students (RGCDOS) particulars of the offence.
As in count one (1) above
Count three
Failure to refrain from any conduct that might bring the university or any Section or programme thereof of disrepute or public odium contrary to Part III(i) (a) (iii) of the (RGCDOS)
Particulars of the offence
As in count (1) above
Count four
Failure o carry yourself in all public places and for with such humility and dignity as befits your status as a mature and responsible citizen contrary to Part III(i) 1(a) (iv) of the (RGCDOS)
Particulars of the offence
Signed
Tim A.O. Mweseli
Ag. Chief Legal Officer.
108. During the College Disciplinary Committee proceedings conducted on 19th April 2016 at 10. 15 a.m. in the Deputy Principal’s Boardroom to consider the applicant’s case and chaired by Professor Peter K’obonyo Ag Principal, at pages 2,3 and 4 are the charges with which the exparte applicant was charged and they comprise six counts. There are additional counts five and six, to which he pleaded not guilty.
Count five
Failure to refrain from all acts of hooliganism, unruly or rowdy behavior (including) fighting or conduct likely to cause annoyance or disturbance to others, within or outside University precincts contrary to Part III(3) (b) of the (RGCDOS)
Particulars as in count one (1) above
Student’s plea: Not guilty.
Count six
Exhibiting a disorderly conduct and molestation of other members of the university community contrary to Part IV (b) (ii) (b) of the (RGCDOS).
Particulars: As in count one (1) above.
Student’s plea: Not guilty.
109. In the committees’ discussion leading to the resolution and recommendation, the committees found the exparte applicant guilty of subletting the room to Mr Wilson Kamwara Wanjama.
110. This court, from the above extract proceedings of the disciplinary committee agrees with the exparte applicant that whereas the applicant was served with only four counts, he was confronted with six counts and secondly, that although the applicant was never charged with the offence of subletting his room, he was found guilty of subletting his room to the fellow student Wilson Kamwara Wanjama whose bhang (cannabis sativa) was found in the exparte applicant’s room.
111. In Geothermal Development Company Ltd v Attorney General & 3 Others [2013] e KLR the court held inter alia:
“As a component of the due process, it is important that a party has reasonable opportunity to know the basis of allegations against it.
Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to prevent a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. ( see Donoghere vs South Eastern Health Board[2005] 4 IR 217…….Article 47 of the Constitution enshrines the right of every person to fair administrative action…..Fair and reasonable administrative action demands that the tax payer would be given a clear warning on the probable consequences of non- compliance with a decision before the same is taken …..In my jurisdiction of the world. It has long been established that notice is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be ……”
112. Kasanga Mulwa J ( as he then was ) in Republic vs Registrar of Companies exparte Githongo[2001] 1 KLR 299held that natural justice requires that persons who might be affected by administrative acts, decisions or proceedings be given adequate notice of what is proposed.
113. The above position is fortified by Section 4(3) of the Fair Administrative Action Act, 2015 as enacted to implement Article 47 of the Constitution which enacts that “Where an administrative action is likely to adversely affect the rights to fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a)Prior and adequate notice of the nature and reasons for the proposed administrative action.”
114. The requirement that adequate notice of the nature and reasons for the proposed administrative action be given to the applicant is informed by the fact that the applicant is entitled to adequate notice of the specific charges levelled against him to enable him adequately prepare for the hearing by addressing the specific allegations and to enable him marshal evidence to marshal the defence.
115. In this case, whereas I agree with the respondent that the notice to appear and plead to the charges that were served upon the applicant on 13th April 2016 was not too short as to prejudice his rights to be heard or to be accorded a fair hearing as he had the opportunity to seek for more time to enable him prepare for his defence, which he did not seek, I find without hesitation that the respondent’s introduction of the two new charges on the hearing date and allowing the applicant to plead to those new charges was an act of trial by ambush and which trial would deny the exparte applicant the right to a fair trial had he been found culpable on the charges framed and read out to him at the disciplinary hearing.
116. In Republic vs Kirinyaga University College & 2 Others exparte Isaya Kamau Kagwima [2015] e KLR Honourable Limo J stated and I agree with the learned judge that:
“What the description, it is a rule of universal application that a party must be accorded a fair opportunity to defend himself. This is founded on the plain principle of natural justice. I find that the letter of suspension was too general and ambiguous unlike the specific charges that the 2nd respondent read out to the applicant when he turned up for the disciplinary hearing. The same was unfair as the exparte applicant was ambushed and could not have gotten an opportunity to fully defend himself. I am not persuaded by the respondent’s contention that the exparte applicant should have sought he particulars before attending the trial. It was incumbent upon the respondent to show with sufficient detail the charges they had preferred against the applicant to enable him defend himself sufficiently.
By introducing additional charges at the 11th hour, I find that the respondents subjected the applicant to unfair trial.”
117. However, as earlier stated, the college students Disciplinary Committee did not find the applicant guilty of any of the offences that he was charged with in all the six counts including the two new counts introduced at the hearing stage. That being the case, the question is what are the consequences of finding someone guilty of an offence that he was never charged with?
118. With outmost respect, and without delving into the merits of the decision, I find the decision of the respondent to convict the applicant with the offence of subletting the room to Mr Wilson Kamwara Wanjama irrational and absurd as no such charges were framed and levelled against the applicant in the charge sheet read to him on 19th April 2017. The decision was in my view, so irrational and unreasonable, besides being ultra vires that no rational administrative body could have arrived at such a decision, having regard to the law and circumstances of the case which then calls for interference by this court, as the administrative action was to say the least, laced with illegalities and in violation of Article 47 of the Constitution on the right to fair administrative action which is lawful, reasonable and procedurally fair.
119. In my humble view, the respondent found it quite easy to convict the applicant for the offence that never formed part of the trial thereby violating the principle of legality(see Pastoli v Kabale District Local Government Council & Others(supra)andRahab Wanjiru Njuguna v Inspector General of Police & Another [2013] e KLR.
120. An offence, it is widely acknowledged, must be clearly defined in law because an ordinary person cannot know from the conviction what the applicant was charged with, and what he expected to be culpable of. Although the disciplinary proceedings were not criminal in nature, but from the serious allegations levelled against the applicant that he was found in possession of cannabis sativa (bhang) in his room which violation is also a criminal offence under the Narcotics and Psychotropic Substance (control) Act, 1994, it is clear that the applicant could easily have been handed over to the criminal investigations agencies for prosecution in the normal criminal courts where he risked , if found guilty, of being handed a 20 year jail term.
121. It therefore follows that for the respondent to convict the applicant for the offence of subletting the university room to a third party in the absence of any specific charges being levelled or framed against the applicant has the effect of making administrative disciplinary proceedings unsettling. The applicant was subjected, in my humble view, to unwarranted conviction as there was no rule or regulation that prohibited subletting of the university allocated room to another needy student and no such rule was said to exist, as the subject student was to a continuing student who, it has not been shown was authorized to be found within the respondents University Halls of residence.
122. That being the case, it follows that the Senate Students Disciplinary Committee proceedings which were held on 13th July 2016 at 8. 00 a.m. upholding the Student College Disciplinary Committee decision were a nullity as the Senate Students Disciplinary Committee upheld a decision that was illegal ab initio.
123. In addition, the Senate Students Disciplinary Committee decision which merely adopted the decision of the College Disciplinary Committee decision, was devoid of any reasons for the decision. The decision on the face of it appears to be a ritualistic exercise where the Senate Committee simply appeared not to be seen to disappoint hence it simply upheld the decisions of the College Disciplinary Committee because “ there was need to empower College Disciplinary Committees by upholding their verdicts as there are consequences for breaking the rules and the university should be careful not to bring up a generation that does not respect the law; and that the committee found him guilty of all the offences levelled against him.”
124. In the above deliberation and finding, it is worth noting that the College Disciplinary Committee did not find the applicant guilty of all the offences levelled against the applicant but guilty of subletting his room to another student who confessed to have used and brought into that room cannabis sativa.
125. The court therefore wonders where the respondent found this record where the applicant was found guilty of all the offences as charged/levelled against him. I reiterate that there were no charges of subletting levelled against the applicant and furthermore, the respondents’ committee was improperly constituted and had no authority to discipline the applicant in the first instance as the matters in issue related to the Halls of Residence Committee which Committee was never constituted to discuss the disciplinary issues.
126. Accordingly, it is clear that the Senate Students Disciplinary Committee in upholding the decision of the College Disciplinary Committee went beyond its powers by considering an appeal against the conviction for subletting and convicting the applicant for six counts which the College Disciplinary Committee had effectively acquitted the applicant of by making no finding of wrongdoing, without according the applicant an opportunity to be reheard on the six counts and which in my humble view is tantamount to violation of the exparte applicant’s right to a fair hearing as espoused in Article 50(1) of the Constitution.
127. Therefore, albeit the respondent urged this court to uphold its decision and to enhance the penalty from suspension for 2 years and expulsion from the Halls of Residence, this court is unable to find grounds upon which it can do so.
128. The main issue that led to the applicant being subjected to unprocedural disciplinary proceedings was that of being found with bhang in his room at the university and from the proceedings of the respondents dual committees, the applicant was found to be innocent of all the six charges framed against him.
129. Nonetheless, the two disciplinary committees found him guilty of subletting which offence was never framed against him to plead to and the Senate Committee went ahead and convicted the applicant of all the charges leveled against him which this court finds obscure the true issues.
130. The applicant was subjected to disciplinary procedures that were improper and unwarranted. It therefore follows that even his expulsion from the Halls of Residence cannot stand as he was never charged with any offence relating to subletting the room to another unauthorized student and neither was he found to have possessed cannabis sativa in his university room.
131. For the above reasons I find that on the evidence availed to this court, the applicant suffered a miscarriage of justice. His conviction involving suspension and expulsion were not only unprocedural but illegal and irrational and cannot stand. They must be quashed.
132. In the end, I find the orders s sought in the motion merited. Consequently, I grant to the exparte applicant the following Judicial Review Orders:
a. Certiorari to remove into this court for purposes of quashing and I hereby remove into this court and quash the decisions reached by the respondent University of Nairobi through its disciplinary committees on 19th April 2016 suspending the applicant from the university for 2 years and expelling him from the Halls of Residence.
b. An order of mandamus compelling the respondent to forthwith and unconditionally lift and cancel the suspension of the applicant and readmit him back in the university upon receipt of this court order; and nullify and lift the expulsion of the exparte applicant from the respondent’s Halls of Residence, subject to the applicant fulfilling the laid down conditions for allocation of accommodation at the respondent’s Halls of Residence.
c. I order that each party shall bear their own costs of these proceedings.
Dated, signed and delivered in open court at Nairobi this 8th day of November, 2017.
R.E. ABURILI
JUDGE
In the presence of:
Miss Oriwo h/b for Mr Rono for the exparte applicant who is also present in court
N/A for the Respondent
CA: George