Topher v Chief Registrar Academics Kenyatta Univeristy & another [2023] KEHC 26298 (KLR)

Topher v Chief Registrar Academics Kenyatta Univeristy & another (Application E066 of 2023) [2023] KEHC 26298 (KLR) (Judicial Review) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26298 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E066 of 2023

J Ngaah, J

December 8, 2023

Between

Byamukama Topher

Applicant

and

Chief Registrar Academics Kenyatta Univeristy

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The applicant filed a chamber summons dated 25 May 2023 in which, amongst other prayers, he prayed that:“2. That leave be granted to the ex parte applicant to apply for an order of certiorari to remove into this court for purposes of being quashed the decision of the registrar academics either directly or by subordinate persons acting with accordance with the general or specific instructions to discontinue the applicant from studying at Kenyatta University.3. That leave be granted to the ex parte applicant to apply for an order of certiorari to quash all the proceedings and processes which are going on and until the matter here is determined on merit.4. That leave be granted to the ex parte applicant to apply for an order of prohibition do issue prohibiting the respondents from proceeding with the said intentions of discontinuing the applicant and subsequently stopping him from graduating despite having met all the requirements to graduate.5. That leave be granted to the ex parte applicants to apply for an order of mandamus directed to the 1st and 2nd respondents to act in accordance with the law and the Constitution of Kenya and allow the applicant to graduate after fulfilling all the requirements to do so.6. That leave be granted to the ex parte applicants to apply for an order of prohibition to prohibit the institution from discontinuing the applicant.7. That leave to apply for judicial review orders of certiorari, prohibition and mandamus do (sic) operate as stay of the discontinuing process from proceeding pending the hearing and determination of the intended notice of motion to be filed consequent upon grant of leave and pending further orders of this honourable court.”

2. When I considered the application in the first instance under a certificate of urgency, I noted the prayers sought in the chamber summons application were inconsistent with the reliefs sought in the statutory statement.The relief sought in the statement were follows:

B. The relief sought1. An order of such certiorari to issue to remove into this court for purposes of being quashed the decision of the registrar academics Kenyatta University to discontinue the applicant herein.2. An order of certiorari do issue to quashing the decisions of the 1st respondent. The applicant from graduating having completed his studies and the graduation process.3. Any other relief that this honourable court may grant.” 3. It is obvious that what the applicant presented in the statutory statement as the reliefs he would be seeking in the substantive motion, in the event leave is granted, and the reliefs which he sought leave for in the chamber summons are inconsistent. For this reason, when this application was brought to my attention on 29 May 2023, I directed that it be served for inter-partes hearing on this particular aspect of inconsistency between the chamber summons and is the statutory statement.When the parties appeared before me on 12 June 2023, Mr. Odegi, the learned counsel for the applicant informed the court that he wished to withdraw the statement and file a proper one. He was granted that leave and the court specifically directed that:The applicant is granted leave to file a statement of facts in place of the one on record.”

4. But the record shows that the applicant did not just file a statement of facts in terms of the order granted by this court. He, instead, filed a fresh chamber summons dated 4 July 2023. As things stand now, the applicant has two applications for leave on record; the one dated 25 May 2023 and the subsequent one which is dated 4 July 2023. In judicial review proceedings, there is nothing wrong in an applicant withdrawing an application for leave and filing a fresh one for that purpose.

5. But he certainly cannot file two applications for leave as the applicant has done in this case. To be precise, the applicant ought not to have filed new application for leave when the previous one was still on record as pending for determination. He ought to have withdrawn the 1st application first and filed a fresh application in a separate file. To the extent that he has filed a second application when the initial application is still on record, the applicant’s application is not viable.But even if it was viable, it would still be incompetent for the reason that the application is framed in such a manner that if leave is granted, the applicant would be seeking, not for the substantive judicial review orders, but for leave for such orders. The reliefs that would be sought if leave is granted have been captured as follows:“B. The Relief Sought3. That leave be granted to the ex parte applicant to apply for an order of mandamus directed to the respondent ordering the 2nd respondent to immediately include the applicant in the upcoming graduation list, slated for July 2023. 4. That leave be granted to the ex parte applicant to apply for an order of certiorari to remove to the High Court for purposes of quashing:-a)the unlawful illegal, oppressive decision by the respondent the m/s the registrar of academics Kenyatta University, discontinuing the ex parte applicant just at the point of graduation, irregularities he never initiated actually, he reported it.5. That the ex parte applicant be granted leave to apply for an order of mandamus to quash the respondent decision of discontinuing the applicant from graduating with a Ph. D of Doctor of Philosophy in Reproductive Health.”

6. This is contrary to Order 53 rule 1(2) of the Civil Procedure Rules which states that the statutory statement must specify the reliefs sought. It is understood better read with Order 53 rule1(1). The two sub-rules read as follows:1. (1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

7. The “relief sought” to which reference has been made in sub-rule 1(2) is any, some or all of the reliefs specified in sub-rule (3) of the rules. The relief cannot be the leave to apply for judicial review orders. The search for leave is restricted to the chamber summons.

8. Even then, assuming the applicant’s application was properly before court, he has repeated the same mistakes he made in the initial application. There are inconsistencies in what he would be asking in the substantive motion and what he is seeking leave for in the summons.

9. I have already quoted what has been presented as the reliefs sought in the statutory statement. For comparison purposes, I quote the prayers in the chamber summons. They have been framed as follows:“2. That leave be granted to the ex parte applicant to apply for an order of mandamus to remove into this court for purposes of being quashed the decision of the registrar academics either directly or by subordinate persons acting with the accordance with the general or specific instructions to discontinue the applicant from graduating at Kenyatta University.3. That leave be granted to the expert applicant to apply for an order of mandamus to quash all the decisions of the 1st and 2nd respondents suspending and subsequently discontinuing the ex parte applicant until the matter here is determined on merit.4. That leave be granted to the ex parte applicant to apply for an order of certiorari to issue to the respondents quashing the decision to discontinue the applicant and subsequently stopping him from graduating despite having met all the requirements to graduate.5. That leave be granted to the ex parte applicants to apply for an order of mandamus directed to the 1st and 2nd respondents to act in accordance with the laws governing the institution and the Constitution of Kenya and allow the applicant to graduate after fulfilling all the requirements to do so.6. That leave be granted to the ex parte applicants to apply for an order of certiorari directing the institution from discontinuing the applicant.”

10. From whichever angle one looks at the applicant’s application it is bound to fail because it incompetent and fatally defective. It is therefore dismissed but considering that it is dismissed at the leave stage, I make no orders as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 8 DECEMBER 2023NGAAH JAIRUSJUDGE