A. BACKGROUND
1. The Petitioner herein Omulindi Arunga Dave Harry commenced the present proceedings vide the petition dated 19th August, 2025 where he sought the following orders;
a. A declaration that Clauses 6.0, 7.16, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are unconstitutional, null and void ab initio for the reasons that they are not in line with the mandatory provisions of the Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014, and in particular PROG/STD/04, PROG/STD/14 and PROG/STD/15 of the 3rd Schedule of the Commission for University Educations’ Standards for Academic Programmes.
b. A Judicial Review order of Certiorari to bring into the High Court for purposes of being quashed, Clauses 6.0, 7.16, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are unconstitutional, null and void ab initio (sic).
c. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 by virtue of the operation of Clause 7.1.17 and 7.1.18 of the Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery as they are unconstitutional and ultra vires the mandatory provisions of the Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014 and in particular PROG/STD/04, PROG STD/14 and PROG/STD/15 of the 3rd Schedule of the Commission for University Educations’ Standards for Academic Programmes.
d. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 and excluding the Petitioner in the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 was illegal, unlawful, unreasonable, irrational, discriminatory and violated the Petitioner’s rights to non-discrimination, dignity, freedom from psychological torture and fair administrative action contrary to Articles 27, 28, 29(d) and 47 of the Constitution.
e. A declaration be and is hereby issued that the 1st Respondent failed to properly mark, remark, verify, evaluate, grade and moderate the Petitioner’s examinations in the said course subjects HSU 600 and HME 600 and should have thus been cleared for graduation.
f. A declaration be and is hereby issued that the 1st Respondent’s action of excluding the Petitioner from the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 is a violation of the Petitioner’s legitimate expectations and right to dignity protected under Article 28 and 47 of the Constitution.
g. A Judicial Review order of Mandamus compelling the 1st Respondent to undertake all the necessary internal procedures required to include the Petitioner in the next graduation list and graduation ceremony.
h. General damages for infringement of the Petitioner’s rights under Articles 27, 28, 29, 46, 47 and 55 of the Constitution.
i. Special damages for loss of income as an intern by the Petitioner at the rate of Ksh.150,120/- per month from the month of January, 2025.
j. General damages for loss of future income, employment opportunities and earning promotions.
k. Exemplary damages.
l. The cost of the petition to be borne by the Respondents.
B. THE PETITIONER’S CASE.
2. In support of his case, the Petitioner filed a supporting affidavit sworn on 19th August, 2025 and a supplementary affidavit sworn on 14th October, 2025. He deponed that he was a student at the University of Nairobi studying Bachelor of Medicine and Bachelor of Surgery (“the course”) at the University of Nairobi (“the University”) and registered as Student.
3. It is the Petitioner’s averment that he sat for two units (HSU 600: Surgery and HME 600: Medicine) in his final semester and was informed by the University that he failed the two units. The effect of the failure meant that the Petitioner had to re-sit his said examinations and could not, therefore, graduate in the University’ 72nd graduation ceremony in December, 2024.
4. Feeling that he had attained the pass mark of 40% in both units, the Petitioner applied for the remarking and verification of the two units and the request was granted. The University’s Faculty of Health Sciences then communicated to the Petitioner that he had, after re-mark, failed the two units, vide a letter dated 22nd April, 2025. The Petitioner took the position that no remarking and verification was done and requested to be supplied with the raw re-marked scripts but the University declined to grant the request.
5. Following the University’s refusal to supply him with the raw re-marked scripts, the Petitioner motioned proceedings before the Office of the Ombudsman in the Commission on Administrative Justice. On 5th June, 2025 and 9th June, 2025, the Commission issued orders in favour of the Petitioner directing that the University furnishes him with copies of the raw re-marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to the sought information and in his view, the scrutiny of the documents that the University supplied to him “revealed a great deal of examination irregularities and malpractices” committed by the University against him. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University.
6. The Petitioner framed his complaint to the University vide letters dated 10th July, 2025, 28th July, 2025 and 4th August, 2025 but the letters elicited no responses from the University.
7. The complaints that the Petitioner raised are reproduced as follows:
a. As a result of the actions of the Respondent’s employees and lecturers jointly and severally in violating the Petitioner’s rights and violating the provisions which direct them and the law applicable, the Petitioner now lives in anxiety of the fact that he will not be allowed to graduate from his studies together with his peers in December, 2024 and now again in the next graduation ceremony of the University of Nairobi scheduled for December, 2025.
b. The Petitioner will have further be made to incur tuition costs of re-siting a whole year of studies and incurring expenses arising out of accommodation and other learning related expenses.
c. The action of the 1st Respondent that led to the omission of the Petitioner’s name being omitted (sic) from the 72nd graduation list has caused the Petitioner damages, losses and irreparable injury for the reason that;
i. His subsequent failure to join in the medical profession and industry, initially as a medical intern he has lost earnings of about Ksh.150,120/- per month from January, 2025.
ii. The Petitioner has suffered damages and lost future opportunities and benefits that may arise in promotions during employment.
iii. The Petitioner has suffered damages and losses by the delay that will have arisen in him completing his undergraduate and pursuing further education.
d. Unless the 1st Respondent is stopped the Petitioner will be exposed to further expenses, mental torture and anguish with cost of benefits and shall have been dented and damaged in their reputation and standing such that even if ultimately vindicated the damage will have been done to his detriment.
e. The delay in graduating the Petitioner when he was duly justifiable to do so in December, 2024 by the 1st Respondent has violated the Petitioner’s right to join the industry and access gainful employment, hence his constitutional rights enshrined in Article 43 and 56 of the Constitution of Kenya, 2010.
f. The Petitioner’s rights under Articles 27, 35, 46, 47, 50 and 55 have been violated and infringed upon by the 1st Respondents’ employees jointly and severally and shall continue to be so infringed unless the court intervenes.
g. Unless the court intervenes, the Petitioner shall suffer damages and the 1st Respondent shall have flagrantly violated their obligations and the provisions of the Constitution at Articles 50, 157 and 232.
h. The Petitioner has further been made to incur legal costs expenses of coming to court and engaging an Advocate to file this constitutional petition and the previous suit in Miscellaneous Civil Application No. E116 of 2025 George Arunga Sino (Suing as the parent and guardian of Arunga Dave Harry) v Professor Margaret Chesang Hutchinson (Sued as the Vice Chancellor of the University of Nairobi/Access to Information Officer).
8. The Petitioner pleaded that pursuant to the Commission for University Education’s University Standards and Guidelines, 2014 and the Commission for University Education’s Standards for Academic Programme, the University was mandated, under PROG/STD/04, to have an academic programme structure with rules and regulations that are aligned to a standard format provided for by the Commission for University Education which must mandatorily include:
“vi. Mode of delivery;
vii. Academic regulations comprising of admission requirements, regulations on credit transfer, programme requirements, student assessment policy/criteria, grading system, examination regulations including moderation of examinations, graduation requirements, classification of degrees and regulations for thesis/dissertation/projects (where applicable);
viii. Course evaluation……”.
9. The Petitioner proffered the position that the University adopted and implemented the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and the School of Surgery, which is unconstitutional, null and void.
10. In particular, the Petitioner pleaded that Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University’s Faculty of Health Science’s, Review of Revised Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery were not in line with the mandatory provisions of The Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014, particularly PROG/STD/04 and the third Schedule of the Commission for University Educations’ Standards for Academic Programmes, thus rendering the said clauses unconstitutional. The Clauses provide as follows:
Clause 6.0 Grading System
Bachelor of Medicine and Bachelor of Surgery degree shall not be classified. However, performance in each subject shall be graded as follows:
75% - 100% - Distinction
65% - 74% - Credit
50% - 64% - Pass
49% and below - Fail
Clause 7.1.6
The passmark for any examinable subject shall be 50%.
Clause 7.1.9
Compensation shall be granted to candidates who obtain at least 50% pass in continuous assessment tests.
Clause 7.1.10
Supplementary examinations shall be held within three months, but not earlier than two months from the date results are released. A candidate who attains 50% in the supplementary examination shall be deemed to have passed the respective University Examination for the year. Maximum marks for supplementary examinations shall be recorded as 50% in the candidate’s academic transcripts.
Clause 7.1.14
A candidate who is presenting for examination for the first time and either obtains less than 40% in any one subject, or fails with 40% to 49% in two (2) or more subjects shall on recommendation of the Board of Examiners and approval of Senate be permitted to repeat the whole year of study in the failed subjects.
Clause 7.1.17
A candidate who fails to satisfy examiners in the clinical component of a given subject shall have failed that examination.
Clause 7.1.18
A candidate who fails to satisfy examiners in the practical component of a given subject shall be considered to have failed that examination.
11. The particular guidelines that the Petitioner complained that the above Clauses contravened (PROG/STD/04) provides that an academic programme structure shall be aligned to a standard format as provided for by the Commission for University Education and shall include background information of the university, information on the various programme facets and details of the academic resources for the support of the programme. The Petitioner added that the above Clauses further went against the 2014 Guidelines as they set the passmark for an examinable subject at 50%, yet that set by the guidelines was 40%.
12. The Petitioner further stated that the University arbitrarily applied the above clauses to reach the determination that the Petitioner failed in the two units HSU 600 and HME 600, effectively breaching Articles 47 and 55 of the Constitution by condemning the Petitioner to re-sit the academic year, hence incurring enormous expenses.
13. In the present petition, the Petitioner states that his rights were violated by the University, i.e.:
i. His right to fair administrative action under Article 47 of the Constitution.
ii. His freedom not to be subjected to torture whether physical or psychological under Article 29(d) of the Constitution.
iii. His right to dignity under Article 28 of the Constitution.
iv. His legitimate expectation that he would graduate in December, 2024 in the University’s 72nd graduation ceremony.
14. In his affidavit in support of the petition, the Petitioner, who described himself as a student who is exceptionally gifted academically and who had hitherto never failed any examination, expounded on his petition and stated that he was offered admission to the University on 12th September, 2017 and joined the University’s School of Medicine for a course leading to the award of bachelor’s degree in medicine and surgery under Module II programmes which commenced on 4th September, 2017, at a cost of Ksh.467,500/- tuition fees.
15. The Petitioner averred that in his final semester, he was informed by the University that he had failed in two units – HSU 600: Surgery and HME 600 Medicine – and that the failure meant that he would not graduate in the University’s 72nd graduation in December, 2024 and that he was required to re-sit the whole year.
16. The Petitioner stated in his affidavit that he applied for re-marking and verification of his scripts in the two units and that the request was granted, pursuant to which the University, without verifying the examination scripts and/or re-marking the same, merely communicated to him vide a letter dated 22nd April, 2025 that he had failed the two units. The contents of the letter are as follows:
Dear Arunga,
REMARK/VERIFICATION – HME 600 AND HSU 600
Reference is made to the Academic Registrar’s letter dated 24th March, 2025 and your letter dated 17th April, 2025.
This is to inform you that you attained the following grades during the 2022 2023 Bachelor of Medicine and Bachelor of Surgery Year VI Examinations.
Course/Subject name Code Grade Remarks
Surgery HSE 600 D Fail
Medicine HME 600 D Fail
Yours sincerely,
DR. ZIPPORAH MAGAKI
REGISTRAR/SECRETARY
FACULTY OF HEALTH SCIENCES
17. The Petitioner stated that he requested the University to supply him with the with the raw re-marked scripts which the University failed to do.
18. It was the Petitioner’s further averment that following the refusal by the University to supply him with the scripts, he commenced proceedings before the Office of the Ombudsman in the Commission on Administrative Justice and that on 5th June, 2025 and 9th June, 2025, the Commission issued orders in his favour and directed that the University furnishes him with copies of the raw marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to some of the sought information.
19. The Petitioner stated that in his view, the scrutiny of the documents that the University supplied to him revealed a magnitude of examination malpractice by the examiners which included the following:
In HSU 600:
- Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.
- The original examination script in HME 600 Medicine Essay examination was not marked at all.
- The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.
- The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.
- The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.
- The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
In HME 600:
- The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.
- There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.
- The original examination script in HME 600 Medicine Essay was not marked at all.
- The marked photocopy of the Medical Essay Examination HME 600 was not re-marked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.
- The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
20. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University. He stated that it was his belief that had the two units been objectively marked and fairly awarded, his score in both units would have been well above the minimum pass mark required.
C. THE 1ST RESPONDENT’S CASE.
21. The 1st Respondent resisted the petition by filing a replying affidavit sworn on 7th October, 2025 by Prof. Daniel Kinyuru Ojuka, Dean Faculty of Health Sciences at the University in which the said deponent stated that the Petitioner’s right to education is not absolute but is subject to the rules and regulations governing education in the University.
22. The Respondent stated that the petition is vexatious as the same was a replica of the unsuccessful HCCMISC E116 of 2015, George Arunga Sino v Prof. Margaret Chesang Hutchinson, PhD.
23. The deponent of the replying affidavit stated that the Petitioner had been struggling in his studies and was an average student who scored 50% - 60% in most of his examinable units and with a general downward trend in performance over the years.
24. The deponent stated that the Petitioner wrote to the University to request for the re-mark of two units (HSU 600 and HME 600), both being core units, which request the University approved. The outcome of the re-mark was that he failed the two units and could therefore not graduate. The explanation that the deponent made on the failure to provide the re-marked clinical practicals was that the same involved students in hospital and that the outcome was reached upon deliberations being made by board examiners and that scripts were therefore not available.
25. The deponent explained that the marks that were awarded to the Petitioner and other students were collective and not individual components and that any student who failed in the clinical and/or practical aspects failed the entire unit, notwithstanding what the student got in the written examination, in line with Clauses 7.1.17 and 7.1.18. That in accordance with examination regulations, the Petitioner was therefore recommended to repeat the year in HSU 600 Surgery and HME 600 Medicine and was duly notified on 18th November, 2024.
26. The deponent stated that when the Petitioner applied for a re-mark of the two units, the same was granted by the University but still returned a verdict of failure in both and the University invited him for academic mentorship, which he declined.
27. The University’s responses to the Petitioner’s itemized complaints were as follows:
In HSU 600:
- Complaint: Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.
- University’s response: There indeed was a cancellation and alteration from 50 to 41 but the same was countersigned by the examiner Dr. Mark Awori. There was no requirement that such a cancellation or alteration be countersigned by any other person.
- That in any event, even if the score were to be retained at 50, the Petitioner would still fail, having failed the clinical examination.
- Complaint: The original examination script in HME 600 Medicine Essay examination was not marked at all.
- University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.
- Complaint: The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.
- University’s response: Question 7 was properly graded by the examiner and the score that was awarded was 4 out of 10 and 3 out of 10 for question 8 that partially appeared on the same page. The 7 out of 10 that appeared on the said page was therefore the total score on that page and not a score for question 7.
- Complaint: The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.
- University’s response: The University stood by its calculation after the re-mark and verification, which, as per its calculation, yielded a figure of 3 out of 10 for question 1; 4 out of 10 for question 2; 5 out of 10 for question 3; 5 out of 10 for question 4; 3.5 out of 10 for question 5; 4.5 out of 10 for question 6; 7 out of 10 for question 7; 4.5 out of 10 for question 8; 5.5 out of 10 for question 9; and 6.5 out of 10 for question 10. That made a total of 48.5 out of 100.
- Complaint: The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition. Clinical/Practicals are physically assessed by a team of board examiners and there are no scripts available.
- Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition.
In HME 600:
- Complaint: The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.
- University’s response: The issue should not be re-litigated as the same was dealt with and settled in HCCC MISC E116 of 2025. The date 25th October, 2025 as appearing was an inadvertent error on dating by the examiner and that the same did not, in any event, impact on the Petitioner’s results. The University logo on marking sheets is not a requirement under the Regulations. There is also no requirement that the student signs on the score sheets as the students do not write anything thereon as they give only oral responses.
- Complaint: There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.
- University’s response: The University’s calculations are correct. I station 1, the Petitioner scored 10 out of 25; 4 out of 25 in station 2; and 19 out of 25 in station 3, which made a total of 33 out of 75, equivalent to 44 out 0f 100. In station 4, he scored 12 out of 25, equivalent to 48 out of 100.
- Complaint: The original examination script in HME 600 Medicine Essay was not marked at all.
- University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.
- Complaint: The marked photocopy of the Medical Essay Examination HME 600 was not remarked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.
- University’s response: The scoring was proper. The first examiner awarded 117 out of 200 and the second examiner 120 out of 200. The Petitioner mixed up the marks that were awarded by the two examiners.
- Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition.
28. The University’s deponent stated that as the Petitioner had not qualified to graduate, having failed to pass the two units, he had no legitimate expectation to graduate and there was no loss of dignity occasioned by the University.
29. The University stated through the replying affidavit that the Petitioner failed to particularize the manner in which Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are in breach of PROG/STD/04, PROG/STD/14 and PROG/STD/15 and the 3rd Schedule of the Commission for University Education Standards and Guidelines 2014.
30. The University’s view was that there are no constitutional issues that are discernible in the instant petition as none has been identified with reasonable precision and that the dispute presented by the Petitioner is academic and therefore civil in nature.
D. THE 2ND RESPONDENT’S & THE INTERESTED PARTIES CASE.
31. The Attorney General appeared for the 2nd Respondent and the Interested Party and filed grounds of opposition dated 26th September, 2025. The first point raised in the grounds was that the 2nd Respondent was wrongly joined in the instant proceedings as the dispute relates to the conduct, remarking and verification of examinations, which is the sole mandate of the 1st Respondent. The 2nd Respondent had no constitutional role to play in that exercise.
32. The second point that was raised in the grounds of opposition was that the petition did not disclose any fault or failure on the part of the 2nd Respondent.
33. Thirdly, the 2nd Respondent stated in its grounds that the Petition did not disclose with specificity which constitutional right was violated, the manner of such violation and the 2nd Respondent’s nexus to such violation.
34. In conclusion, the 2nd Respondent stated that the petition is misconceived, incompetent and an abuse of the court process.
E. THE PETITIONER’S REJOINDER.
35. The Petitioner filed a supplementary affidavit that he swore on 14th October, 2025 and stated that in the marksheet dated 14th November, 2024 that related to HME 600, his CAT marks is stated as 18 while examination marks as 31, making a total of 49 marks.
36. The Petitioner took issue with the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery which he said illegally and unlawfully stated that the pass mark is above 50%; yet the Standards and Guidelines of the Commissions for University Education 2014, 3rd Schedule of the Standards and Guidelines for an A
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1. The Petitioner herein Omulindi Arunga Dave Harry commenced the present proceedings vide the petition dated 19th August, 2025 where he sought the following orders;
a. A declaration that Clauses 6.0, 7.16, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are unconstitutional, null and void ab initio for the reasons that they are not in line with the mandatory provisions of the Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014, and in particular PROG/STD/04, PROG/STD/14 and PROG/STD/15 of the 3rd Schedule of the Commission for University Educations’ Standards for Academic Programmes.
b. A Judicial Review order of Certiorari to bring into the High Court for purposes of being quashed, Clauses 6.0, 7.16, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are unconstitutional, null and void ab initio (sic).
c. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 by virtue of the operation of Clause 7.1.17 and 7.1.18 of the Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery as they are unconstitutional and ultra vires the mandatory provisions of the Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014 and in particular PROG/STD/04, PROG STD/14 and PROG/STD/15 of the 3rd Schedule of the Commission for University Educations’ Standards for Academic Programmes.
d. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 and excluding the Petitioner in the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 was illegal, unlawful, unreasonable, irrational, discriminatory and violated the Petitioner’s rights to non-discrimination, dignity, freedom from psychological torture and fair administrative action contrary to Articles 27, 28, 29(d) and 47 of the Constitution.
e. A declaration be and is hereby issued that the 1st Respondent failed to properly mark, remark, verify, evaluate, grade and moderate the Petitioner’s examinations in the said course subjects HSU 600 and HME 600 and should have thus been cleared for graduation.
f. A declaration be and is hereby issued that the 1st Respondent’s action of excluding the Petitioner from the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 is a violation of the Petitioner’s legitimate expectations and right to dignity protected under Article 28 and 47 of the Constitution.
g. A Judicial Review order of Mandamus compelling the 1st Respondent to undertake all the necessary internal procedures required to include the Petitioner in the next graduation list and graduation ceremony.
h. General damages for infringement of the Petitioner’s rights under Articles 27, 28, 29, 46, 47 and 55 of the Constitution.
i. Special damages for loss of income as an intern by the Petitioner at the rate of Ksh.150,120/- per month from the month of January, 2025.
j. General damages for loss of future income, employment opportunities and earning promotions.
k. Exemplary damages.
l. The cost of the petition to be borne by the Respondents.
B. THE PETITIONER’S CASE.
2. In support of his case, the Petitioner filed a supporting affidavit sworn on 19th August, 2025 and a supplementary affidavit sworn on 14th October, 2025. He deponed that he was a student at the University of Nairobi studying Bachelor of Medicine and Bachelor of Surgery (“the course”) at the University of Nairobi (“the University”) and registered as Student.
3. It is the Petitioner’s averment that he sat for two units (HSU 600: Surgery and HME 600: Medicine) in his final semester and was informed by the University that he failed the two units. The effect of the failure meant that the Petitioner had to re-sit his said examinations and could not, therefore, graduate in the University’ 72nd graduation ceremony in December, 2024.
4. Feeling that he had attained the pass mark of 40% in both units, the Petitioner applied for the remarking and verification of the two units and the request was granted. The University’s Faculty of Health Sciences then communicated to the Petitioner that he had, after re-mark, failed the two units, vide a letter dated 22nd April, 2025. The Petitioner took the position that no remarking and verification was done and requested to be supplied with the raw re-marked scripts but the University declined to grant the request.
5. Following the University’s refusal to supply him with the raw re-marked scripts, the Petitioner motioned proceedings before the Office of the Ombudsman in the Commission on Administrative Justice. On 5th June, 2025 and 9th June, 2025, the Commission issued orders in favour of the Petitioner directing that the University furnishes him with copies of the raw re-marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to the sought information and in his view, the scrutiny of the documents that the University supplied to him “revealed a great deal of examination irregularities and malpractices” committed by the University against him. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University.
6. The Petitioner framed his complaint to the University vide letters dated 10th July, 2025, 28th July, 2025 and 4th August, 2025 but the letters elicited no responses from the University.
7. The complaints that the Petitioner raised are reproduced as follows:
a. As a result of the actions of the Respondent’s employees and lecturers jointly and severally in violating the Petitioner’s rights and violating the provisions which direct them and the law applicable, the Petitioner now lives in anxiety of the fact that he will not be allowed to graduate from his studies together with his peers in December, 2024 and now again in the next graduation ceremony of the University of Nairobi scheduled for December, 2025.
b. The Petitioner will have further be made to incur tuition costs of re-siting a whole year of studies and incurring expenses arising out of accommodation and other learning related expenses.
c. The action of the 1st Respondent that led to the omission of the Petitioner’s name being omitted (sic) from the 72nd graduation list has caused the Petitioner damages, losses and irreparable injury for the reason that;
i. His subsequent failure to join in the medical profession and industry, initially as a medical intern he has lost earnings of about Ksh.150,120/- per month from January, 2025.
ii. The Petitioner has suffered damages and lost future opportunities and benefits that may arise in promotions during employment.
iii. The Petitioner has suffered damages and losses by the delay that will have arisen in him completing his undergraduate and pursuing further education.
d. Unless the 1st Respondent is stopped the Petitioner will be exposed to further expenses, mental torture and anguish with cost of benefits and shall have been dented and damaged in their reputation and standing such that even if ultimately vindicated the damage will have been done to his detriment.
e. The delay in graduating the Petitioner when he was duly justifiable to do so in December, 2024 by the 1st Respondent has violated the Petitioner’s right to join the industry and access gainful employment, hence his constitutional rights enshrined in Article 43 and 56 of the Constitution of Kenya, 2010.
f. The Petitioner’s rights under Articles 27, 35, 46, 47, 50 and 55 have been violated and infringed upon by the 1st Respondents’ employees jointly and severally and shall continue to be so infringed unless the court intervenes.
g. Unless the court intervenes, the Petitioner shall suffer damages and the 1st Respondent shall have flagrantly violated their obligations and the provisions of the Constitution at Articles 50, 157 and 232.
h. The Petitioner has further been made to incur legal costs expenses of coming to court and engaging an Advocate to file this constitutional petition and the previous suit in Miscellaneous Civil Application No. E116 of 2025 George Arunga Sino (Suing as the parent and guardian of Arunga Dave Harry) v Professor Margaret Chesang Hutchinson (Sued as the Vice Chancellor of the University of Nairobi/Access to Information Officer).
8. The Petitioner pleaded that pursuant to the Commission for University Education’s University Standards and Guidelines, 2014 and the Commission for University Education’s Standards for Academic Programme, the University was mandated, under PROG/STD/04, to have an academic programme structure with rules and regulations that are aligned to a standard format provided for by the Commission for University Education which must mandatorily include:
“vi. Mode of delivery;
vii. Academic regulations comprising of admission requirements, regulations on credit transfer, programme requirements, student assessment policy/criteria, grading system, examination regulations including moderation of examinations, graduation requirements, classification of degrees and regulations for thesis/dissertation/projects (where applicable);
viii. Course evaluation……”.
9. The Petitioner proffered the position that the University adopted and implemented the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and the School of Surgery, which is unconstitutional, null and void.
10. In particular, the Petitioner pleaded that Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University’s Faculty of Health Science’s, Review of Revised Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery were not in line with the mandatory provisions of The Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014, particularly PROG/STD/04 and the third Schedule of the Commission for University Educations’ Standards for Academic Programmes, thus rendering the said clauses unconstitutional. The Clauses provide as follows:
Clause 6.0 Grading System
Bachelor of Medicine and Bachelor of Surgery degree shall not be classified. However, performance in each subject shall be graded as follows:
75% - 100% - Distinction
65% - 74% - Credit
50% - 64% - Pass
49% and below - Fail
Clause 7.1.6
The passmark for any examinable subject shall be 50%.
Clause 7.1.9
Compensation shall be granted to candidates who obtain at least 50% pass in continuous assessment tests.
Clause 7.1.10
Supplementary examinations shall be held within three months, but not earlier than two months from the date results are released. A candidate who attains 50% in the supplementary examination shall be deemed to have passed the respective University Examination for the year. Maximum marks for supplementary examinations shall be recorded as 50% in the candidate’s academic transcripts.
Clause 7.1.14
A candidate who is presenting for examination for the first time and either obtains less than 40% in any one subject, or fails with 40% to 49% in two (2) or more subjects shall on recommendation of the Board of Examiners and approval of Senate be permitted to repeat the whole year of study in the failed subjects.
Clause 7.1.17
A candidate who fails to satisfy examiners in the clinical component of a given subject shall have failed that examination.
Clause 7.1.18
A candidate who fails to satisfy examiners in the practical component of a given subject shall be considered to have failed that examination.
11. The particular guidelines that the Petitioner complained that the above Clauses contravened (PROG/STD/04) provides that an academic programme structure shall be aligned to a standard format as provided for by the Commission for University Education and shall include background information of the university, information on the various programme facets and details of the academic resources for the support of the programme. The Petitioner added that the above Clauses further went against the 2014 Guidelines as they set the passmark for an examinable subject at 50%, yet that set by the guidelines was 40%.
12. The Petitioner further stated that the University arbitrarily applied the above clauses to reach the determination that the Petitioner failed in the two units HSU 600 and HME 600, effectively breaching Articles 47 and 55 of the Constitution by condemning the Petitioner to re-sit the academic year, hence incurring enormous expenses.
13. In the present petition, the Petitioner states that his rights were violated by the University, i.e.:
i. His right to fair administrative action under Article 47 of the Constitution.
ii. His freedom not to be subjected to torture whether physical or psychological under Article 29(d) of the Constitution.
iii. His right to dignity under Article 28 of the Constitution.
iv. His legitimate expectation that he would graduate in December, 2024 in the University’s 72nd graduation ceremony.
14. In his affidavit in support of the petition, the Petitioner, who described himself as a student who is exceptionally gifted academically and who had hitherto never failed any examination, expounded on his petition and stated that he was offered admission to the University on 12th September, 2017 and joined the University’s School of Medicine for a course leading to the award of bachelor’s degree in medicine and surgery under Module II programmes which commenced on 4th September, 2017, at a cost of Ksh.467,500/- tuition fees.
15. The Petitioner averred that in his final semester, he was informed by the University that he had failed in two units – HSU 600: Surgery and HME 600 Medicine – and that the failure meant that he would not graduate in the University’s 72nd graduation in December, 2024 and that he was required to re-sit the whole year.
16. The Petitioner stated in his affidavit that he applied for re-marking and verification of his scripts in the two units and that the request was granted, pursuant to which the University, without verifying the examination scripts and/or re-marking the same, merely communicated to him vide a letter dated 22nd April, 2025 that he had failed the two units. The contents of the letter are as follows:
Dear Arunga,
REMARK/VERIFICATION – HME 600 AND HSU 600
Reference is made to the Academic Registrar’s letter dated 24th March, 2025 and your letter dated 17th April, 2025.
This is to inform you that you attained the following grades during the 2022 2023 Bachelor of Medicine and Bachelor of Surgery Year VI Examinations.
Course/Subject name Code Grade Remarks
Surgery HSE 600 D Fail
Medicine HME 600 D Fail
Yours sincerely,
DR. ZIPPORAH MAGAKI
REGISTRAR/SECRETARY
FACULTY OF HEALTH SCIENCES
17. The Petitioner stated that he requested the University to supply him with the with the raw re-marked scripts which the University failed to do.
18. It was the Petitioner’s further averment that following the refusal by the University to supply him with the scripts, he commenced proceedings before the Office of the Ombudsman in the Commission on Administrative Justice and that on 5th June, 2025 and 9th June, 2025, the Commission issued orders in his favour and directed that the University furnishes him with copies of the raw marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to some of the sought information.
19. The Petitioner stated that in his view, the scrutiny of the documents that the University supplied to him revealed a magnitude of examination malpractice by the examiners which included the following:
In HSU 600:
- Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.
- The original examination script in HME 600 Medicine Essay examination was not marked at all.
- The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.
- The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.
- The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.
- The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
In HME 600:
- The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.
- There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.
- The original examination script in HME 600 Medicine Essay was not marked at all.
- The marked photocopy of the Medical Essay Examination HME 600 was not re-marked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.
- The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
20. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University. He stated that it was his belief that had the two units been objectively marked and fairly awarded, his score in both units would have been well above the minimum pass mark required.
C. THE 1ST RESPONDENT’S CASE.
21. The 1st Respondent resisted the petition by filing a replying affidavit sworn on 7th October, 2025 by Prof. Daniel Kinyuru Ojuka, Dean Faculty of Health Sciences at the University in which the said deponent stated that the Petitioner’s right to education is not absolute but is subject to the rules and regulations governing education in the University.
22. The Respondent stated that the petition is vexatious as the same was a replica of the unsuccessful HCCMISC E116 of 2015, George Arunga Sino v Prof. Margaret Chesang Hutchinson, PhD.
23. The deponent of the replying affidavit stated that the Petitioner had been struggling in his studies and was an average student who scored 50% - 60% in most of his examinable units and with a general downward trend in performance over the years.
24. The deponent stated that the Petitioner wrote to the University to request for the re-mark of two units (HSU 600 and HME 600), both being core units, which request the University approved. The outcome of the re-mark was that he failed the two units and could therefore not graduate. The explanation that the deponent made on the failure to provide the re-marked clinical practicals was that the same involved students in hospital and that the outcome was reached upon deliberations being made by board examiners and that scripts were therefore not available.
25. The deponent explained that the marks that were awarded to the Petitioner and other students were collective and not individual components and that any student who failed in the clinical and/or practical aspects failed the entire unit, notwithstanding what the student got in the written examination, in line with Clauses 7.1.17 and 7.1.18. That in accordance with examination regulations, the Petitioner was therefore recommended to repeat the year in HSU 600 Surgery and HME 600 Medicine and was duly notified on 18th November, 2024.
26. The deponent stated that when the Petitioner applied for a re-mark of the two units, the same was granted by the University but still returned a verdict of failure in both and the University invited him for academic mentorship, which he declined.
27. The University’s responses to the Petitioner’s itemized complaints were as follows:
In HSU 600:
- Complaint: Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.
- University’s response: There indeed was a cancellation and alteration from 50 to 41 but the same was countersigned by the examiner Dr. Mark Awori. There was no requirement that such a cancellation or alteration be countersigned by any other person.
- That in any event, even if the score were to be retained at 50, the Petitioner would still fail, having failed the clinical examination.
- Complaint: The original examination script in HME 600 Medicine Essay examination was not marked at all.
- University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.
- Complaint: The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.
- University’s response: Question 7 was properly graded by the examiner and the score that was awarded was 4 out of 10 and 3 out of 10 for question 8 that partially appeared on the same page. The 7 out of 10 that appeared on the said page was therefore the total score on that page and not a score for question 7.
- Complaint: The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.
- University’s response: The University stood by its calculation after the re-mark and verification, which, as per its calculation, yielded a figure of 3 out of 10 for question 1; 4 out of 10 for question 2; 5 out of 10 for question 3; 5 out of 10 for question 4; 3.5 out of 10 for question 5; 4.5 out of 10 for question 6; 7 out of 10 for question 7; 4.5 out of 10 for question 8; 5.5 out of 10 for question 9; and 6.5 out of 10 for question 10. That made a total of 48.5 out of 100.
- Complaint: The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition. Clinical/Practicals are physically assessed by a team of board examiners and there are no scripts available.
- Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition.
In HME 600:
- Complaint: The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.
- University’s response: The issue should not be re-litigated as the same was dealt with and settled in HCCC MISC E116 of 2025. The date 25th October, 2025 as appearing was an inadvertent error on dating by the examiner and that the same did not, in any event, impact on the Petitioner’s results. The University logo on marking sheets is not a requirement under the Regulations. There is also no requirement that the student signs on the score sheets as the students do not write anything thereon as they give only oral responses.
- Complaint: There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.
- University’s response: The University’s calculations are correct. I station 1, the Petitioner scored 10 out of 25; 4 out of 25 in station 2; and 19 out of 25 in station 3, which made a total of 33 out of 75, equivalent to 44 out 0f 100. In station 4, he scored 12 out of 25, equivalent to 48 out of 100.
- Complaint: The original examination script in HME 600 Medicine Essay was not marked at all.
- University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.
- Complaint: The marked photocopy of the Medical Essay Examination HME 600 was not remarked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.
- University’s response: The scoring was proper. The first examiner awarded 117 out of 200 and the second examiner 120 out of 200. The Petitioner mixed up the marks that were awarded by the two examiners.
- Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.
- University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition.
28. The University’s deponent stated that as the Petitioner had not qualified to graduate, having failed to pass the two units, he had no legitimate expectation to graduate and there was no loss of dignity occasioned by the University.
29. The University stated through the replying affidavit that the Petitioner failed to particularize the manner in which Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are in breach of PROG/STD/04, PROG/STD/14 and PROG/STD/15 and the 3rd Schedule of the Commission for University Education Standards and Guidelines 2014.
30. The University’s view was that there are no constitutional issues that are discernible in the instant petition as none has been identified with reasonable precision and that the dispute presented by the Petitioner is academic and therefore civil in nature.
D. THE 2ND RESPONDENT’S & THE INTERESTED PARTIES CASE.
31. The Attorney General appeared for the 2nd Respondent and the Interested Party and filed grounds of opposition dated 26th September, 2025. The first point raised in the grounds was that the 2nd Respondent was wrongly joined in the instant proceedings as the dispute relates to the conduct, remarking and verification of examinations, which is the sole mandate of the 1st Respondent. The 2nd Respondent had no constitutional role to play in that exercise.
32. The second point that was raised in the grounds of opposition was that the petition did not disclose any fault or failure on the part of the 2nd Respondent.
33. Thirdly, the 2nd Respondent stated in its grounds that the Petition did not disclose with specificity which constitutional right was violated, the manner of such violation and the 2nd Respondent’s nexus to such violation.
34. In conclusion, the 2nd Respondent stated that the petition is misconceived, incompetent and an abuse of the court process.
E. THE PETITIONER’S REJOINDER.
35. The Petitioner filed a supplementary affidavit that he swore on 14th October, 2025 and stated that in the marksheet dated 14th November, 2024 that related to HME 600, his CAT marks is stated as 18 while examination marks as 31, making a total of 49 marks.
36. The Petitioner took issue with the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery which he said illegally and unlawfully stated that the pass mark is above 50%; yet the Standards and Guidelines of the Commissions for University Education 2014, 3rd Schedule of the Standards and Guidelines for an A
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