The application before this court is the Applicant’s originating motion dated 8 th May 2025. The application is brought under Section 4, 7, 9 and 11 of the Fair Administrative Action Act, Articles 27, 47 and 50 of the Constitution, Section 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
The application seeks an order of certiorari to remove and quash the 1 st Respondent’s declarations/orders against the Applicant as per the suspension letter dated 17 th April, 2025. It also seeks an order of mandamus against the Respondents to vacate and lift the suspension letter dated 17 th April, 2025 and for them to provide a copy of their disciplinary manual/policy or its equivalent, detailing the rules and regulations pertaining to Registrars carrying out clinical rotations at KNH, the procedures undertaken in the event of breach of said rules and regulations and the timelines governing the same.
It also seeks an order or prohibition, directed against the Respondents prohibiting them from proceeding with the review by the Medical Advisory Committee (MAC), proceedings by the medical board, and any of the next steps in the ‘comprehensive process’ communicated by the Respondent via the letter dated 17 th April, 2025.
The application is supported by the affidavit of Beatrice Njeri Maina sworn on 8 th May, 2025.
The Applicant’s case is that she was duly enrolled in the Master of Medicine (Mmed) in ENT Surgery program in 2018 at the University of Nairobi, this being a five-year program in which the various subjects in the curriculum are taught by way of among other modalities, clinical rotations at the 2 nd Respondent’s facility.
That as the University of Nairobi does not have its own teaching hospital, it has an agreement with the 2 nd Respondent and so it's Registrars (postgraduate medical students) carry out their clinical rotations at the Hospital. That the terms Mmed ENT Surgery program, also known as the MMed Otorhinolaryngology, Head and Neck Surgery program (Mmed ORL-HNS), are used interchangeably in the various letters shared.
The Applicant states that she is currently in her 3 rd year of the said program and that students of the MMed ENT Surgery program are referred to as Registrars or Senior House Officers. It is the applicant’s case that she pursued her studies diligently until July 2023 when the Department of Surgery at the University of Nairobi suspended her from her clinical rotations without giving any reasons for this and without procedural fairness. That she challenged and appealed against the suspension as according to her it was unprocedural, unfair and contravened the provisions of the disciplinary procedure stipulated by the UoN Student Code of Conduct (Revised) 2021, specifically, Paragraphs 32 to 37 of the UoN Student Code of Conduct (Revised) 2021.
According to the applicant, the code provides that the disciplinary procedure at the University is delegated by the Senate to the Senate Disciplinary Committees, not to Departments. It is her case that the suspension also contravened Paragraph 32.1.9 of the same document that nobody but the Vice-Chancellor or his nominee can issue a suspension prior to a disciplinary hearing.
That by way of Paragraph 2.9.3 and 2.9.4 of the UoN document “Guidelines on Academic Progression” the University has communicated clearly that all actions taken in regard to students that are likely to affect their academic progression are to be availed to the faculty level (Dean/Associate Dean) and to the Academic Registrar.
That the Department of Surgery having not done so initially, decided to finally make the administrators at the Faculty level (Associate Dean Postgraduate Students and Research) aware of their arbitrary and unprocedural actions 2 months into her arbitrary suspension . The Department of Surgery is said to have responded to the Applicant’s appeal vide a letter dated 25 th August, 2023 with a copy to the Associate Dean.
According to the Applicant, the letter was drafted to justify their unprocedural actions on her to the Administrator. That a suspension pending a comprehensive process, that is psychosocial evaluation and fitness to practice evaluation at the Kenya Medical Practitioners and Dentists Council (KMPDC) was prescribed, in a clear departure from the Department’s earlier decision to simply seek the advice of the Faculty of Health Sciences.
It is the Applicant’s case that upon complaining about the atrociously unfair actions of the Department of Surgery to the Vice Chancellor, University of Nairobi, the suspension was lifted 3 weeks later by way of a letter dated 8 th February, 2024.
That on 12 th February, 2024, she applied for temporary withdrawal from the academic programme as her request for extension of study leave had been declined by her employer and her request was granted vide a letter dated 1 st March, 2024. It is her case that she was readmitted a year later via the Deputy Vice Chancellor’s letter dated 3 rd February, 2025.
The Applicant deposes that a letter dated 27 th March 2025 from the Vice Chancellor confirms that the readmission letter remains valid. She also states that despite her suspension from clinical rotations having been lifted over 1 year earlier, she received an email dated 12 th March, 2025 from the Chairman, Department of Surgery in which he communicated that her previous suspension had not been sufficient of a penalty and that further steps would be taken, specifically in conjunction with the 2 nd Respondent.
The Applicant’s case is that the 1 st Respondent issued her with a suspension letter dated 17 th April 2025 which forms the basis of this application before this Court. Her case is that the similarities between the 1 st Respondent’s suspension letter and the letter dated 25 th August 2023 from the Department of Surgery’s letter are undeniable, for example that the allegations made in the Department of Surgery’s are re-stated in the CEO’s letter, with virtual copy-pasting of the allegation regarding multiple meetings with her lecturers having yielded no change.
She further states that the decision to suspend her pending a “process”, communicated via the Department of Surgery’s letter of 25 th August 2023 is also reiterated in the 1 st Respondent’s letter.
The Applicant states that her letter of 14 th March 2025 to the Vice Chancellor, containing her complaint that the Department of Surgery had failed to show regard for the post-readmission procedure communicated by the University via parts e) to i) of Paragraph 3.6.2 of the Students Information Booklet on the Procedures of Academic Process, may have also likely contributed in the triggering of the forwarding of the baseless allegations that were the basis for the UoN Department of Surgery’s unprocedural suspension, to the 2 nd Respondent.
The Applicant states that via letters dated 9 th January 2025 and 20 th February 2025 from the KNH Senior Director, Clinical Services to all postgraduate medical students (registrars/SHOs), it was communicated that in order not to be barred from carrying out clinical rotations at the Hospital, registrars were required to submit a practising license and professional indemnity certificate.
That she had duly complied, and only required to be granted, by the University of Nairobi, readmission following temporary withdrawal from the Mmed ENT Surgery program, in order to go on with her clinical rotations at the KNH. It is her case that instead, she found herself being required to be “cleared” through a “comprehensive process”, even though her readmission following temporary withdrawal had already been effected.
She states that administrative action taken against her was highly unreasonable and that as a Year 3 Mmed ENT Surgery student, she has no qualification that would allow her manage ENT patients that is a Specialist Recognition, and that she is only a student, whose courses are taught by way of clinical rotations, among other teaching modalities.
That, indeed, the 9 th January and 20 th February 2025 letters from the Senior Director of Clinical Services, KNH made it clear that there is a clear distinction between registrars/Senior House Officers, and specialists. Further, that it is only the ENT specialists’ (lecturers) presence or absence, situational awareness and ability to escalate the care of the ENT patients they are managing and teaching the students how to do that should make the difference between patient safety and lack thereof. Also, that it is the competence and availability of the ENT specialists who manage ENT patients seeking care at KNH, upon which quality of care at the Facility should be pegged, not that of their students.
According to the applicant, the process through which one can become a specialist is communicated by the Kenya Medical Practitioners and Dentists Council and that without a specialist qualification, she has no qualification to manage the ENT patients seeking care at the 2 nd Respondent’s facility but can only attend lessons taught by those who do, and learn from them the various skills and knowledge to be acquired in the various courses the MMed ENT Surgery program is comprised of, including how to provide clinical care to ENT patients and when to escalate this care to other ENT specialists.
The applicant further states that her failure to acquire these skills and knowledge, should only endanger her marks in the clinical exams and other assessments of the Mmed ENT Surgery program, not the safety of KNH patients.
It is her case that the nexus between the arbitrary suspension by the Respondent, the subsequent medical board and “comprehensive process” is premised on baseless allegations and fabrications which have not undergone the scrutiny of a procedural disciplinary process. That she has not been in the KNH clinical rotations since July 2023 when she was initially suspended from clinical rotations and the allegations made against her, therefore, would date back to at the most recent, July 2023, close to 2 years ago. She argues that no evidence can be produced, by way of a signed attendance record, that she has been in the KNH clinical rotations since July 2023.
That following the lifting of her suspension on 8 th February, 2024, she went into temporary withdrawal and she has been unable to resume her studies due to circumstances beyond her control which include not yet having successfully appealed her employer’s decision to deny her extension of study leave.
It is her case that she had also commenced the Mmed ENT Surgery program back in September 2018 and the program syllabus is clear that clinical rotations are to begin in Part I of the program (the first 2 years) and this being the case, and with no specifics given to her as to when or where the supposed events are alleged to have occurred, she would have little real chance to prove her innocence of the allegations, in the upcoming medical board, as she has attended numerous clinical teaching activities in the wards, clinics, theatres and Casualties of KNH and been taught around numerous patients in her time in the program
The Respondents, it is argued, are also yet to respond to her demand letter dated 29 th April, 2025 or to share with her the materials, evidence and information that is to be considered by the alleged medical board that is currently under consideration by the Medical Advisory Committee mentioned in its letter. She states that without information such as this, or regarding the particular dates, times and places pertaining to the allegations raised, she is unable to identify what witnesses she would need to call to testify on her behalf, in order to clear her name.
It is her case that she has been denied adequate time to prepare a proper defence prior to a fair hearing to determine whether the allegations made against her are warranting of any administrative actions at all by the medical board, or whether she is deserving of any of the “next steps” in the “comprehensive process” mentioned in their letter.
That the Respondent has also failed to assure her of an impartial tribunal, giving her no information on who exactly accused her and no reassurance that they will not be sitting in any committee that will determine the next administrative actions to be taken against her, despite her requests for the same.
According to the applicant, unless there is a vacation of the suspension against her, along with the medical board and subsequent steps in the “comprehensive process” mentioned in the Respondents’ letter of 17 th April 2025, the ends of justice will be desecrated and that she will be exposed to unreasonable, illegitimate and unfair proceedings.
She also states that if the decision to suspend her is not vacated, she faces the jeopardy of having adverse actions taken against her to bar her permanently from attending clinical rotations at KNH, and thus left with no way to learn critical skills that a student surgeon can learn nowhere else, and of never meeting the Department of Surgery’s formative assessment (CAT) mark criteria for sitting exams.
According to the Applicant, the Chairman of the Department of Surgery, in his email of 12 th March 2025 communicates that the reason she is yet to sit the Year 3 exam is that she is yet to attend clinical rotations and improve on the marks quoted in the 7 th July 2025 suspension letter.
The applicant also states that having actions taken against her to bar her from her clinical rotations will leave her unable to sit any exams and lead her to being discontinued from the Mmed ENT Surgery program, on account of expiry of the stipulated course duration, which is 10 years.
She further states that she obtained by way of sponsorship, a sum of about Kshs. 14,000,000 to pursue the Mmed ENT Surgery program, a sum that must be repaid in cash or in kind. Therefore, that if the medical board and subsequent steps are allowed to proceed, she stands in jeopardy of having accrued a huge debt for nothing. That if the next steps alluded to in the 1 st Respondent’s letter are allowed to proceed, her source of income and career face jeopardy.
That, she will also be subjected to adverse administrative actions against her that put her at risk of irreparable financial damage as having failed to successfully appeal her recall to her workstation she is compelled to resign from her employment in order to go on with her studies.
In her further affidavit sworn on 10 th June 2025, the Applicant avers that UoN has stipulated via Paragraphs 32 to 34 of the Students Code of Conduct 2021 that students who have had allegations made against them are to be given a hearing at the Faculty or Halls Disciplinary Committees within approximately 1 to 1.5 months of the date the alleged events occurred, having been given a Notice of Violation (specifics pertaining to the allegations), Inquiry Report and materials, evidence and information pertaining to the allegations, and 14 days to prepare their defence. She states that none of the above timelines stipulated by the University were adhered to, and that she had a penalty imposed upon her close to 2 years after she was last in the KNH clinical rotations.
It is also her argument that the UoN at Paragraph 15.3 of the Students Code of Conduct, 2021 states that not all disciplinary offences will attract the commencement of disciplinary proceedings and thus, the taking of disciplinary actions upon it’s students, but rather only those stated within Part V of the document. According to her, the allegations that were the basis for the Respondents’ arbitrary suspension that is “missing duties/missing teaching activities”, “refusal to see KNH patients”, “inability to escalate clinical care”, “lack of situational awareness” and “failure to improve when urged to by the supervisors/lecturers” are nowhere mentioned under Part V of the Students Code of Conduct, 2021.
She reiterated that it is the Senate Disciplinary Committee that has the delegated mandate to evaluate and address concerns relating to trainee conduct. Further, that no evidence, by way of her signature acknowledging receipt of a list of allegations or a letter summoning her to appear before any disciplinary committee, or on any attendance record pertaining to a disciplinary hearing, or acknowledging receipt of a verdict letter, can be adduced to attest to her being summoned to any disciplinary hearing as from 2018 to 2024, much less her being found guilty of anything.
It is her case that no evidence in the way of her signature acknowledging receipt of a letter communicating the same, can be adduced of her suspension from clinical training pending psychiatric evaluation prior to 17 th April 2025. Also, that the letter of 17 th April 2025 from the KNH CEO indicates that she was suspended pending a “comprehensive process” and it is only upon her looking through the annexures on the Respondents’ replying affidavit that she became aware of psychiatric evaluation being part of the “comprehensive process.”
The Applicant states that at no point did the Appeals Disciplinary Committee issue her with a Notice of Violation or Inquiry Report, and no evidence, in the way of her signature acknowledging receipt of such documents, can be adduced to attest to the fact that she was given such documents. That, by 30 th September 2024 when the Appeals Disciplinary Committee meeting was held, she had no idea that the Department of Surgery had brought up once more, the allegations that were the basis for the arbitrary and unprocedural suspension they had put her on for the 7 months preceding her temporary withdrawal.
According to the Applicant, she was never given ample opportunity to respond to the allegations, as can be seen in the letter of 17 th April 2025 letter from the Respondent, the first forum that had been planned when she was declared guilty of all allegations and one that would compromise patient safety, is the Medical Board. This, according to her, being some mental health assessment, where she would have no opportunity to respond to the allegations.
That in the letter of 15 th April 2025 MAC meeting, it can be seen that it was decided that Dr A.B. “must” provide his defence but of the Applicant, which according to her, simply meant a mental health assessment to see if the indefinite suspension prescribed would ever be lifted. She states that her demand letter to the KNH CEO, demanding among other things, to be furnished with the specifics pertaining to the allegations raised in the letter of 17 th April but no response ever came.
The Applicant also filed written submissions dated 10 th June 2025. She submits reiterating her pleadings and depositions that her suspension from clinical rotations was unlawful, procedurally unfair and in violation of her constitutional rights. She contends that she was never given prior notice, a chance to be heard, or reasons for the decision, contrary to the requirements of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act.
She relies on the case of Republic v Kenyatta University ex parte Njoroge Humphrey Mbuthi [2015] eKLR where the court is said to have held that suspension of a student without affording an opportunity to be heard violates the principles of fair administrative action and is subject to quashing. Reliance is also placed on the case of Geothermal Development Company Ltd v AG 7 3 Others [2013] eKLR where according to the Applicant, the court held that administrative action without affording the affected person a hearing is liable to quashing.
The Applicant also relies on Republic v Kenya School of Law ex parte Semo and Another [2019] KEHC 11665 KLR, where the court is said to have emphasised that students are entitled to procedural fairness, legitimate expectation and protection against arbitrary administrative decisions that affect their academic progression.
She further maintains that Kenyatta National Hospital had no legal authority to suspend her, as such powers lie exclusively with the University. The Applicant also invokes the principle of legitimate expectation, pointing out that following her earlier reinstatement by the University, she had a legitimate expectation that she would be allowed to proceed with her rotations without further interference.
On this point, she relies on Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR , where the court is said to have recognized legitimate expectation where a public body’s representation leads someone to rely on a particular course of conduct.
She accuses the Respondents of acting with improper motive, bias and procedural impropriety, including failure to disclose the allegations or evidence against her, denying her the right to defend herself and attempting to retrospectively justify the process after the fact.
The Applicant emphasizes that such action by the respondents was arbitrary and irrational, drawing support from Republic v. Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd [2016] eKLR , where according to her, the court observed that judicial review remedies are aimed as a safeguard against unlawful administrative actions.
She also submits that being denied access to clinical rotations infringed on her constitutional right to education under Article 43(1)(f), and that the Respondents’ actions should be quashed for lack of legality, fairness and justification.
The Response
In response to the application, the Respondents filed a Replying Affidavit sworn by Dr. John Kinuthia on 28 th May 2025.
The Respondents’ case is that pursuant to a Memorandum of Understanding (MoU) between the University, the Hospital and the Ministry of Health, the Hospital hosts postgraduate medical students, such as the Applicant, for purposes of clinical rotations and practical exposure.
The Respondent states that despite the MoU, the Hospital retains the responsibility of upholding clinical standards, patient safety and managing all aspects of trainee conduct that directly impacts patient care within the Hospital’s premises.
According to the Respondents, the applicant enrolled in a postgraduate training program in Otorhinolaryngology and that she is a fully registered and licensed medical officer by the Kenya Medical Practitioners and Dentists Council (KMPDC).
The Respondents contend that the Applicant's participation in clinical rotations was predicated on her status as a licensed medical officer. Further, that the Hospital's requirement for the Applicant to maintain a professional indemnity cover during her postgraduate clinical rotations is a clear indication that she is regarded as a practicing clinician and not merely a student.
The Respondents argue that the Applicant’s participation in clinical rotations imposes an obligation to uphold professional and ethical standards at all times, even within a supervised training setting and that as such, she therefore cannot seek to abdicate that responsibility by invoking her ‘student’ status.
The respondents aver that the Applicant's conduct during her training is said to have been persistently marked by professional misconduct, negligence and indiscipline, posing serious threats to patient welfare. Further, that she is personally aware of these issues.
The Respondents state that the Applicant has repeatedly absented herself from clinical duties, including rotations, theatre sessions and ward rounds and has exhibited erratic behaviour when present. That she has failed to follow clinical directives, received negative feedback from senior staff, been placed on probation after a serious surgical incident, consistently failed to report for on-call duties and remained absent throughout the academic year without justification.
The Respondents also oppose the application, asserting that concerns over the Applicant’s fitness to practise date back to her undergraduate years, citing a 28 th May 2009 memo questioning her suitability after she refused to examine a patient. It is their case that medical reports from that period diagnosed her with a mood disorder and highlighted a lack of insight into her condition, requiring urgent treatment.
Further, that over time, the Applicant is said to have exhibited repeated indiscipline, including neglect of duty and insubordination, resulting in a warning letter issued by the University on 1 st June 2020. That, despite this, her conduct did not improve, prompting the Hospital to escalate the matter to the University and recommend a psychological evaluation.
The Respondents contend that the Applicant failed to meet core requirements of her Master of Medicine training, and her employer, the Nyeri County Government, expressed concern over her failure to complete the program within the granted study leave. A Special Committee is said to have been formed to assess her suitability which Committee upheld her suspension and recommended psychosocial evaluation.
It is the Respondents’ case that the applicant’s appeal was dismissed by a Consultative Ad hoc Committee and the matter was referred to the KMPDC, which sought further details. The University is said to have responded to KMPDC with a comprehensive report outlining the Applicant’s history and performance.
According to the Respondents, citing continued shortcomings, the Hospital formally suspended the Applicant on 17 th April 2025 and summoned her before the Medical Advisory Committee (MAC), a joint body responsible for clinical training oversight.
The Applicant, it is stated, was given sufficient notice and reminders but that she failed to appear, thereby forfeiting the opportunity to be heard. The Respondents maintain that all actions taken were procedurally fair, lawful and necessary to safeguard patients and that the Applicant has not exhausted internal grievance mechanisms, rendering her judicial review application premature. They urge the Court to refrain from interfering with ongoing administrative processes and argue that judicial review, where warranted, must follow exhaustion of internal remedies.
The Respondents also filed a supplementary affidavit sworn on 12 th June 2025 by Dr. John Kinuthia.
The 2 nd Respondent clarifies that it operates independently of the University of Nairobi and is not bound by its internal administrative instruments. Further, that its relationship with the University is governed by a Memorandum of Understanding (MoU) which grants the 2 nd Respondent authority over clinical standards, patient safety and trainee conduct within its facility.
That under the MoU, the Hospital has the mandate to enforce disciplinary measures and ensure compliance with its Fitness to Practice guidelines. These guidelines are said to require all trainees, including the Applicant, to maintain professional competence and ethics and to submit to assessments or investigations where necessary.
The Respondents also emphasize that the Applicant has not been suspended from her studies, but only barred from engaging in clinical activities at the Hospital due to ongoing professional misconduct. They stress that clinical privileges are contingent on compliance with hospital standards and the KMPDC license, which the Applicant holds as a medical officer. Also, that the Hospital, while serving as a training ground, prioritizes patient safety and cannot treat patients as mere learning tools.
The Respondents contend that allowing the Applicant to continue in clinical practice would expose patients to risk and the institution to potential liability, given her serious breaches including refusal to perform urgent clinical tasks, chronic absenteeism, inaccessibility during duties and reported incidents of patient harm.
The Respondents in their written submissions dated 10 th June 2025 submit that the Applicant’s application is premature for failure to exhaust internal remedies, a mandatory requirement under administrative law. They cite the case of Kenya National Examinations Council vs. Republic & Another [2017] eKLR , where the Court is said to have affirmed that internal remedies must be pursued unless exceptional circumstances are shown. They also rely on Kenya Union of Post-Primary Education Teachers ( KUPPET) vs. Teachers Service Commission [2015] eKLR and Kenya Ports Authority v Mwangale & Others [2013] eKLR for the same principle.
They assert that the 2 nd Respondent acted within its powers under Clause B(3) and B(7)(v) of the MoU and Clause 5 of the Fitness to Practice Guidelines in suspending the Applicant. They emphasize that the Medical Advisory Committee (MAC) has jurisdiction to assess postgraduate students' competence, behavior and health under Clause 6.5 of the Guidelines.
On fair administrative action, the Respondents rely on Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, which requires prior notice, reasons, an opportunity to be heard and access to a review mechanism. They also invoke Article 50 of the Constitution which is said to reinforce the right to a fair hearing, Article 10 on national values and Article 73 on leadership and integrity.
To justify proceeding in the Applicant’s absence after alleged proper notice, they rely on the Commission for the Implementation of the Constitution v Minister for Education & 2 others [2013] eKLR where court is said to have underscored the importance of procedural fairness, including proper notification, but also acknowledged that decisions can be valid even if a party fails to attend after proper notice.
They also rely on the cases of Kenya Power & Lighting Co Ltd v Attorney General & 2 others [2012] eKLR and Kenya Revenue Authority v Asset Management & Investment Ltd & 3 others [2018] eKLR for the same principle.
On reasonableness, the Respondents submit that their action met the proportionality t
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The application seeks an order of certiorari to remove and quash the 1 st Respondent’s declarations/orders against the Applicant as per the suspension letter dated 17 th April, 2025. It also seeks an order of mandamus against the Respondents to vacate and lift the suspension letter dated 17 th April, 2025 and for them to provide a copy of their disciplinary manual/policy or its equivalent, detailing the rules and regulations pertaining to Registrars carrying out clinical rotations at KNH, the procedures undertaken in the event of breach of said rules and regulations and the timelines governing the same.
It also seeks an order or prohibition, directed against the Respondents prohibiting them from proceeding with the review by the Medical Advisory Committee (MAC), proceedings by the medical board, and any of the next steps in the ‘comprehensive process’ communicated by the Respondent via the letter dated 17 th April, 2025.
The application is supported by the affidavit of Beatrice Njeri Maina sworn on 8 th May, 2025.
The Applicant’s case is that she was duly enrolled in the Master of Medicine (Mmed) in ENT Surgery program in 2018 at the University of Nairobi, this being a five-year program in which the various subjects in the curriculum are taught by way of among other modalities, clinical rotations at the 2 nd Respondent’s facility.
That as the University of Nairobi does not have its own teaching hospital, it has an agreement with the 2 nd Respondent and so it's Registrars (postgraduate medical students) carry out their clinical rotations at the Hospital. That the terms Mmed ENT Surgery program, also known as the MMed Otorhinolaryngology, Head and Neck Surgery program (Mmed ORL-HNS), are used interchangeably in the various letters shared.
The Applicant states that she is currently in her 3 rd year of the said program and that students of the MMed ENT Surgery program are referred to as Registrars or Senior House Officers. It is the applicant’s case that she pursued her studies diligently until July 2023 when the Department of Surgery at the University of Nairobi suspended her from her clinical rotations without giving any reasons for this and without procedural fairness. That she challenged and appealed against the suspension as according to her it was unprocedural, unfair and contravened the provisions of the disciplinary procedure stipulated by the UoN Student Code of Conduct (Revised) 2021, specifically, Paragraphs 32 to 37 of the UoN Student Code of Conduct (Revised) 2021.
According to the applicant, the code provides that the disciplinary procedure at the University is delegated by the Senate to the Senate Disciplinary Committees, not to Departments. It is her case that the suspension also contravened Paragraph 32.1.9 of the same document that nobody but the Vice-Chancellor or his nominee can issue a suspension prior to a disciplinary hearing.
That by way of Paragraph 2.9.3 and 2.9.4 of the UoN document “Guidelines on Academic Progression” the University has communicated clearly that all actions taken in regard to students that are likely to affect their academic progression are to be availed to the faculty level (Dean/Associate Dean) and to the Academic Registrar.
That the Department of Surgery having not done so initially, decided to finally make the administrators at the Faculty level (Associate Dean Postgraduate Students and Research) aware of their arbitrary and unprocedural actions 2 months into her arbitrary suspension . The Department of Surgery is said to have responded to the Applicant’s appeal vide a letter dated 25 th August, 2023 with a copy to the Associate Dean.
According to the Applicant, the letter was drafted to justify their unprocedural actions on her to the Administrator. That a suspension pending a comprehensive process, that is psychosocial evaluation and fitness to practice evaluation at the Kenya Medical Practitioners and Dentists Council (KMPDC) was prescribed, in a clear departure from the Department’s earlier decision to simply seek the advice of the Faculty of Health Sciences.
It is the Applicant’s case that upon complaining about the atrociously unfair actions of the Department of Surgery to the Vice Chancellor, University of Nairobi, the suspension was lifted 3 weeks later by way of a letter dated 8 th February, 2024.
That on 12 th February, 2024, she applied for temporary withdrawal from the academic programme as her request for extension of study leave had been declined by her employer and her request was granted vide a letter dated 1 st March, 2024. It is her case that she was readmitted a year later via the Deputy Vice Chancellor’s letter dated 3 rd February, 2025.
The Applicant deposes that a letter dated 27 th March 2025 from the Vice Chancellor confirms that the readmission letter remains valid. She also states that despite her suspension from clinical rotations having been lifted over 1 year earlier, she received an email dated 12 th March, 2025 from the Chairman, Department of Surgery in which he communicated that her previous suspension had not been sufficient of a penalty and that further steps would be taken, specifically in conjunction with the 2 nd Respondent.
The Applicant’s case is that the 1 st Respondent issued her with a suspension letter dated 17 th April 2025 which forms the basis of this application before this Court. Her case is that the similarities between the 1 st Respondent’s suspension letter and the letter dated 25 th August 2023 from the Department of Surgery’s letter are undeniable, for example that the allegations made in the Department of Surgery’s are re-stated in the CEO’s letter, with virtual copy-pasting of the allegation regarding multiple meetings with her lecturers having yielded no change.
She further states that the decision to suspend her pending a “process”, communicated via the Department of Surgery’s letter of 25 th August 2023 is also reiterated in the 1 st Respondent’s letter.
The Applicant states that her letter of 14 th March 2025 to the Vice Chancellor, containing her complaint that the Department of Surgery had failed to show regard for the post-readmission procedure communicated by the University via parts e) to i) of Paragraph 3.6.2 of the Students Information Booklet on the Procedures of Academic Process, may have also likely contributed in the triggering of the forwarding of the baseless allegations that were the basis for the UoN Department of Surgery’s unprocedural suspension, to the 2 nd Respondent.
The Applicant states that via letters dated 9 th January 2025 and 20 th February 2025 from the KNH Senior Director, Clinical Services to all postgraduate medical students (registrars/SHOs), it was communicated that in order not to be barred from carrying out clinical rotations at the Hospital, registrars were required to submit a practising license and professional indemnity certificate.
That she had duly complied, and only required to be granted, by the University of Nairobi, readmission following temporary withdrawal from the Mmed ENT Surgery program, in order to go on with her clinical rotations at the KNH. It is her case that instead, she found herself being required to be “cleared” through a “comprehensive process”, even though her readmission following temporary withdrawal had already been effected.
She states that administrative action taken against her was highly unreasonable and that as a Year 3 Mmed ENT Surgery student, she has no qualification that would allow her manage ENT patients that is a Specialist Recognition, and that she is only a student, whose courses are taught by way of clinical rotations, among other teaching modalities.
That, indeed, the 9 th January and 20 th February 2025 letters from the Senior Director of Clinical Services, KNH made it clear that there is a clear distinction between registrars/Senior House Officers, and specialists. Further, that it is only the ENT specialists’ (lecturers) presence or absence, situational awareness and ability to escalate the care of the ENT patients they are managing and teaching the students how to do that should make the difference between patient safety and lack thereof. Also, that it is the competence and availability of the ENT specialists who manage ENT patients seeking care at KNH, upon which quality of care at the Facility should be pegged, not that of their students.
According to the applicant, the process through which one can become a specialist is communicated by the Kenya Medical Practitioners and Dentists Council and that without a specialist qualification, she has no qualification to manage the ENT patients seeking care at the 2 nd Respondent’s facility but can only attend lessons taught by those who do, and learn from them the various skills and knowledge to be acquired in the various courses the MMed ENT Surgery program is comprised of, including how to provide clinical care to ENT patients and when to escalate this care to other ENT specialists.
The applicant further states that her failure to acquire these skills and knowledge, should only endanger her marks in the clinical exams and other assessments of the Mmed ENT Surgery program, not the safety of KNH patients.
It is her case that the nexus between the arbitrary suspension by the Respondent, the subsequent medical board and “comprehensive process” is premised on baseless allegations and fabrications which have not undergone the scrutiny of a procedural disciplinary process. That she has not been in the KNH clinical rotations since July 2023 when she was initially suspended from clinical rotations and the allegations made against her, therefore, would date back to at the most recent, July 2023, close to 2 years ago. She argues that no evidence can be produced, by way of a signed attendance record, that she has been in the KNH clinical rotations since July 2023.
That following the lifting of her suspension on 8 th February, 2024, she went into temporary withdrawal and she has been unable to resume her studies due to circumstances beyond her control which include not yet having successfully appealed her employer’s decision to deny her extension of study leave.
It is her case that she had also commenced the Mmed ENT Surgery program back in September 2018 and the program syllabus is clear that clinical rotations are to begin in Part I of the program (the first 2 years) and this being the case, and with no specifics given to her as to when or where the supposed events are alleged to have occurred, she would have little real chance to prove her innocence of the allegations, in the upcoming medical board, as she has attended numerous clinical teaching activities in the wards, clinics, theatres and Casualties of KNH and been taught around numerous patients in her time in the program
The Respondents, it is argued, are also yet to respond to her demand letter dated 29 th April, 2025 or to share with her the materials, evidence and information that is to be considered by the alleged medical board that is currently under consideration by the Medical Advisory Committee mentioned in its letter. She states that without information such as this, or regarding the particular dates, times and places pertaining to the allegations raised, she is unable to identify what witnesses she would need to call to testify on her behalf, in order to clear her name.
It is her case that she has been denied adequate time to prepare a proper defence prior to a fair hearing to determine whether the allegations made against her are warranting of any administrative actions at all by the medical board, or whether she is deserving of any of the “next steps” in the “comprehensive process” mentioned in their letter.
That the Respondent has also failed to assure her of an impartial tribunal, giving her no information on who exactly accused her and no reassurance that they will not be sitting in any committee that will determine the next administrative actions to be taken against her, despite her requests for the same.
According to the applicant, unless there is a vacation of the suspension against her, along with the medical board and subsequent steps in the “comprehensive process” mentioned in the Respondents’ letter of 17 th April 2025, the ends of justice will be desecrated and that she will be exposed to unreasonable, illegitimate and unfair proceedings.
She also states that if the decision to suspend her is not vacated, she faces the jeopardy of having adverse actions taken against her to bar her permanently from attending clinical rotations at KNH, and thus left with no way to learn critical skills that a student surgeon can learn nowhere else, and of never meeting the Department of Surgery’s formative assessment (CAT) mark criteria for sitting exams.
According to the Applicant, the Chairman of the Department of Surgery, in his email of 12 th March 2025 communicates that the reason she is yet to sit the Year 3 exam is that she is yet to attend clinical rotations and improve on the marks quoted in the 7 th July 2025 suspension letter.
The applicant also states that having actions taken against her to bar her from her clinical rotations will leave her unable to sit any exams and lead her to being discontinued from the Mmed ENT Surgery program, on account of expiry of the stipulated course duration, which is 10 years.
She further states that she obtained by way of sponsorship, a sum of about Kshs. 14,000,000 to pursue the Mmed ENT Surgery program, a sum that must be repaid in cash or in kind. Therefore, that if the medical board and subsequent steps are allowed to proceed, she stands in jeopardy of having accrued a huge debt for nothing. That if the next steps alluded to in the 1 st Respondent’s letter are allowed to proceed, her source of income and career face jeopardy.
That, she will also be subjected to adverse administrative actions against her that put her at risk of irreparable financial damage as having failed to successfully appeal her recall to her workstation she is compelled to resign from her employment in order to go on with her studies.
In her further affidavit sworn on 10 th June 2025, the Applicant avers that UoN has stipulated via Paragraphs 32 to 34 of the Students Code of Conduct 2021 that students who have had allegations made against them are to be given a hearing at the Faculty or Halls Disciplinary Committees within approximately 1 to 1.5 months of the date the alleged events occurred, having been given a Notice of Violation (specifics pertaining to the allegations), Inquiry Report and materials, evidence and information pertaining to the allegations, and 14 days to prepare their defence. She states that none of the above timelines stipulated by the University were adhered to, and that she had a penalty imposed upon her close to 2 years after she was last in the KNH clinical rotations.
It is also her argument that the UoN at Paragraph 15.3 of the Students Code of Conduct, 2021 states that not all disciplinary offences will attract the commencement of disciplinary proceedings and thus, the taking of disciplinary actions upon it’s students, but rather only those stated within Part V of the document. According to her, the allegations that were the basis for the Respondents’ arbitrary suspension that is “missing duties/missing teaching activities”, “refusal to see KNH patients”, “inability to escalate clinical care”, “lack of situational awareness” and “failure to improve when urged to by the supervisors/lecturers” are nowhere mentioned under Part V of the Students Code of Conduct, 2021.
She reiterated that it is the Senate Disciplinary Committee that has the delegated mandate to evaluate and address concerns relating to trainee conduct. Further, that no evidence, by way of her signature acknowledging receipt of a list of allegations or a letter summoning her to appear before any disciplinary committee, or on any attendance record pertaining to a disciplinary hearing, or acknowledging receipt of a verdict letter, can be adduced to attest to her being summoned to any disciplinary hearing as from 2018 to 2024, much less her being found guilty of anything.
It is her case that no evidence in the way of her signature acknowledging receipt of a letter communicating the same, can be adduced of her suspension from clinical training pending psychiatric evaluation prior to 17 th April 2025. Also, that the letter of 17 th April 2025 from the KNH CEO indicates that she was suspended pending a “comprehensive process” and it is only upon her looking through the annexures on the Respondents’ replying affidavit that she became aware of psychiatric evaluation being part of the “comprehensive process.”
The Applicant states that at no point did the Appeals Disciplinary Committee issue her with a Notice of Violation or Inquiry Report, and no evidence, in the way of her signature acknowledging receipt of such documents, can be adduced to attest to the fact that she was given such documents. That, by 30 th September 2024 when the Appeals Disciplinary Committee meeting was held, she had no idea that the Department of Surgery had brought up once more, the allegations that were the basis for the arbitrary and unprocedural suspension they had put her on for the 7 months preceding her temporary withdrawal.
According to the Applicant, she was never given ample opportunity to respond to the allegations, as can be seen in the letter of 17 th April 2025 letter from the Respondent, the first forum that had been planned when she was declared guilty of all allegations and one that would compromise patient safety, is the Medical Board. This, according to her, being some mental health assessment, where she would have no opportunity to respond to the allegations.
That in the letter of 15 th April 2025 MAC meeting, it can be seen that it was decided that Dr A.B. “must” provide his defence but of the Applicant, which according to her, simply meant a mental health assessment to see if the indefinite suspension prescribed would ever be lifted. She states that her demand letter to the KNH CEO, demanding among other things, to be furnished with the specifics pertaining to the allegations raised in the letter of 17 th April but no response ever came.
The Applicant also filed written submissions dated 10 th June 2025. She submits reiterating her pleadings and depositions that her suspension from clinical rotations was unlawful, procedurally unfair and in violation of her constitutional rights. She contends that she was never given prior notice, a chance to be heard, or reasons for the decision, contrary to the requirements of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act.
She relies on the case of Republic v Kenyatta University ex parte Njoroge Humphrey Mbuthi [2015] eKLR where the court is said to have held that suspension of a student without affording an opportunity to be heard violates the principles of fair administrative action and is subject to quashing. Reliance is also placed on the case of Geothermal Development Company Ltd v AG 7 3 Others [2013] eKLR where according to the Applicant, the court held that administrative action without affording the affected person a hearing is liable to quashing.
The Applicant also relies on Republic v Kenya School of Law ex parte Semo and Another [2019] KEHC 11665 KLR, where the court is said to have emphasised that students are entitled to procedural fairness, legitimate expectation and protection against arbitrary administrative decisions that affect their academic progression.
She further maintains that Kenyatta National Hospital had no legal authority to suspend her, as such powers lie exclusively with the University. The Applicant also invokes the principle of legitimate expectation, pointing out that following her earlier reinstatement by the University, she had a legitimate expectation that she would be allowed to proceed with her rotations without further interference.
On this point, she relies on Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR , where the court is said to have recognized legitimate expectation where a public body’s representation leads someone to rely on a particular course of conduct.
She accuses the Respondents of acting with improper motive, bias and procedural impropriety, including failure to disclose the allegations or evidence against her, denying her the right to defend herself and attempting to retrospectively justify the process after the fact.
The Applicant emphasizes that such action by the respondents was arbitrary and irrational, drawing support from Republic v. Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd [2016] eKLR , where according to her, the court observed that judicial review remedies are aimed as a safeguard against unlawful administrative actions.
She also submits that being denied access to clinical rotations infringed on her constitutional right to education under Article 43(1)(f), and that the Respondents’ actions should be quashed for lack of legality, fairness and justification.
The Response
In response to the application, the Respondents filed a Replying Affidavit sworn by Dr. John Kinuthia on 28 th May 2025.
The Respondents’ case is that pursuant to a Memorandum of Understanding (MoU) between the University, the Hospital and the Ministry of Health, the Hospital hosts postgraduate medical students, such as the Applicant, for purposes of clinical rotations and practical exposure.
The Respondent states that despite the MoU, the Hospital retains the responsibility of upholding clinical standards, patient safety and managing all aspects of trainee conduct that directly impacts patient care within the Hospital’s premises.
According to the Respondents, the applicant enrolled in a postgraduate training program in Otorhinolaryngology and that she is a fully registered and licensed medical officer by the Kenya Medical Practitioners and Dentists Council (KMPDC).
The Respondents contend that the Applicant's participation in clinical rotations was predicated on her status as a licensed medical officer. Further, that the Hospital's requirement for the Applicant to maintain a professional indemnity cover during her postgraduate clinical rotations is a clear indication that she is regarded as a practicing clinician and not merely a student.
The Respondents argue that the Applicant’s participation in clinical rotations imposes an obligation to uphold professional and ethical standards at all times, even within a supervised training setting and that as such, she therefore cannot seek to abdicate that responsibility by invoking her ‘student’ status.
The respondents aver that the Applicant's conduct during her training is said to have been persistently marked by professional misconduct, negligence and indiscipline, posing serious threats to patient welfare. Further, that she is personally aware of these issues.
The Respondents state that the Applicant has repeatedly absented herself from clinical duties, including rotations, theatre sessions and ward rounds and has exhibited erratic behaviour when present. That she has failed to follow clinical directives, received negative feedback from senior staff, been placed on probation after a serious surgical incident, consistently failed to report for on-call duties and remained absent throughout the academic year without justification.
The Respondents also oppose the application, asserting that concerns over the Applicant’s fitness to practise date back to her undergraduate years, citing a 28 th May 2009 memo questioning her suitability after she refused to examine a patient. It is their case that medical reports from that period diagnosed her with a mood disorder and highlighted a lack of insight into her condition, requiring urgent treatment.
Further, that over time, the Applicant is said to have exhibited repeated indiscipline, including neglect of duty and insubordination, resulting in a warning letter issued by the University on 1 st June 2020. That, despite this, her conduct did not improve, prompting the Hospital to escalate the matter to the University and recommend a psychological evaluation.
The Respondents contend that the Applicant failed to meet core requirements of her Master of Medicine training, and her employer, the Nyeri County Government, expressed concern over her failure to complete the program within the granted study leave. A Special Committee is said to have been formed to assess her suitability which Committee upheld her suspension and recommended psychosocial evaluation.
It is the Respondents’ case that the applicant’s appeal was dismissed by a Consultative Ad hoc Committee and the matter was referred to the KMPDC, which sought further details. The University is said to have responded to KMPDC with a comprehensive report outlining the Applicant’s history and performance.
According to the Respondents, citing continued shortcomings, the Hospital formally suspended the Applicant on 17 th April 2025 and summoned her before the Medical Advisory Committee (MAC), a joint body responsible for clinical training oversight.
The Applicant, it is stated, was given sufficient notice and reminders but that she failed to appear, thereby forfeiting the opportunity to be heard. The Respondents maintain that all actions taken were procedurally fair, lawful and necessary to safeguard patients and that the Applicant has not exhausted internal grievance mechanisms, rendering her judicial review application premature. They urge the Court to refrain from interfering with ongoing administrative processes and argue that judicial review, where warranted, must follow exhaustion of internal remedies.
The Respondents also filed a supplementary affidavit sworn on 12 th June 2025 by Dr. John Kinuthia.
The 2 nd Respondent clarifies that it operates independently of the University of Nairobi and is not bound by its internal administrative instruments. Further, that its relationship with the University is governed by a Memorandum of Understanding (MoU) which grants the 2 nd Respondent authority over clinical standards, patient safety and trainee conduct within its facility.
That under the MoU, the Hospital has the mandate to enforce disciplinary measures and ensure compliance with its Fitness to Practice guidelines. These guidelines are said to require all trainees, including the Applicant, to maintain professional competence and ethics and to submit to assessments or investigations where necessary.
The Respondents also emphasize that the Applicant has not been suspended from her studies, but only barred from engaging in clinical activities at the Hospital due to ongoing professional misconduct. They stress that clinical privileges are contingent on compliance with hospital standards and the KMPDC license, which the Applicant holds as a medical officer. Also, that the Hospital, while serving as a training ground, prioritizes patient safety and cannot treat patients as mere learning tools.
The Respondents contend that allowing the Applicant to continue in clinical practice would expose patients to risk and the institution to potential liability, given her serious breaches including refusal to perform urgent clinical tasks, chronic absenteeism, inaccessibility during duties and reported incidents of patient harm.
The Respondents in their written submissions dated 10 th June 2025 submit that the Applicant’s application is premature for failure to exhaust internal remedies, a mandatory requirement under administrative law. They cite the case of Kenya National Examinations Council vs. Republic & Another [2017] eKLR , where the Court is said to have affirmed that internal remedies must be pursued unless exceptional circumstances are shown. They also rely on Kenya Union of Post-Primary Education Teachers ( KUPPET) vs. Teachers Service Commission [2015] eKLR and Kenya Ports Authority v Mwangale & Others [2013] eKLR for the same principle.
They assert that the 2 nd Respondent acted within its powers under Clause B(3) and B(7)(v) of the MoU and Clause 5 of the Fitness to Practice Guidelines in suspending the Applicant. They emphasize that the Medical Advisory Committee (MAC) has jurisdiction to assess postgraduate students' competence, behavior and health under Clause 6.5 of the Guidelines.
On fair administrative action, the Respondents rely on Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, which requires prior notice, reasons, an opportunity to be heard and access to a review mechanism. They also invoke Article 50 of the Constitution which is said to reinforce the right to a fair hearing, Article 10 on national values and Article 73 on leadership and integrity.
To justify proceeding in the Applicant’s absence after alleged proper notice, they rely on the Commission for the Implementation of the Constitution v Minister for Education & 2 others [2013] eKLR where court is said to have underscored the importance of procedural fairness, including proper notification, but also acknowledged that decisions can be valid even if a party fails to attend after proper notice.
They also rely on the cases of Kenya Power & Lighting Co Ltd v Attorney General & 2 others [2012] eKLR and Kenya Revenue Authority v Asset Management & Investment Ltd & 3 others [2018] eKLR for the same principle.
On reasonableness, the Respondents submit that their action met the proportionality t
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