JUDGMENT
A. INTRODUCTION
1. The Petitioner, Dr. Jalilarah Nassozi, is challenging the decision of the 1 st Respondent, COSECSA, communicated through a letter dated 17 th July 2026, barring her from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations, scheduled to commence on 2 nd September 2026.
2. The Petition is premised on alleged violations of Articles 27, 41, 43, 47 and 50 of the Constitution of Kenya and the Fair Administrative Action Act, No. 4 of 2015. The Petitioner contends that the decision to bar her from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations was reached without notice, without affording her an opportunity to be heard, and without any assessment of her competence.
3. The 1 st , 2 nd , 5 th , 6 th , 7 th , 8 th and 9 th Respondents opposed the Petition and maintain that the decision was lawfully made following a review of the Petitioner's training record and non-compliance with mandatory programme requirements. The 3 rd and 4 th Respondents did not participate in the case.
B. BRIEF FACTS OF THE CASE
4. The Petitioner was admitted into the COSECSA Fellowship of the College of Surgeons (FCS) Neurosurgery Programme in February 2023 and was stationed at Kenyatta National Hospital under the supervision of the 3 rd Respondent, Dr. John K. Boore.
5. In the course of her training and pursuant to the programme requirements, the Petitioner undertook elective placements at CURE Children's Hospital in Uganda, Groote Schuur Hospital and Red Cross War Memorial Children's Hospital in South Africa, and subsequently attended a Paediatric Neurosurgery Observership Programme in Israel. It was her case that the Programme Director and officials of COSECSA were at all material times aware of and facilitated the said placements.
6. The Petitioner averred that despite numerous requests and correspondences addressed to the Programme Director regarding approvals, assessments and review of her electronic logbook, no substantive response was forthcoming. She further averred that whereas examination credentials were issued to other trainees in March 2026, none were issued to her. Subsequently, by communication dated 30 th March 2026, she was requested to return to Kenya for assessment and review of her logbook, notwithstanding, her position that the logbook was accessible electronically and could be reviewed remotely.
7. The dispute culminated in the issuance of a letter dated 17 th July 2026, which was received by the Petitioner on 20 th July 2026, informing her that she had been barred from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations scheduled for 2 nd September, 2026, on the grounds that certain elective placements lacked approval and that her competence could not be assessed.
8. Aggrieved by the said decision, the Petitioner instituted the present Petition together with a Notice of Motion dated 30 th July 2026, which was supported by her affidavit sworn on the same date, seeking the following reliefs: -
(a) A DECLARATION is hereby made that the purported barring of the petitioner from assessment/sitting 2026 COSECSA FCS neurosurgery examinations and/or training which is starting on or about on 2nd September 2026 or any other date which was communicated vide letters and/or documents dated 17th July 2026 on 20 th July 2026, and/or any other document/communication of any other date to the extent that, it did not follow procedure of fairness, fair administrative action,natural justice and fair hearing as enunciated in article 1, 3, 10, 47 and any other provisions of the constitution as read with fair administrative actionact and other relevant statutes, is unconstitutional, null and void.
(b) DECLARATION is hereby made that the purported barring of the petitioner from assessments/sitting of the 2026 COSECSA FCS neurosurgery examinations/assessments and/or training which is slated to start on or about 2 nd September 2026 or any other date and which was communicated vide a letters and/or document dated 17th July 2026 on 20 th July 2026, and/or any other document/communication of any other date is contrary to article 10,19, 25, 27, 29, 30, 41, 43, 47 & 50 of the constitution (2010) and relevantlaws hence illegal, unconstitutional, null and void.
(c) The court is pleased to issue an order of judicial review by way of CERTIORARI, quashing the respondent’s letter (s)/ documents/ communications dated 17 th July 2026 and/or any other document/ communication of any other date which hadan effect of purportedly barring the petitioner from sitting/ assessment of the2026 COSECSA FCS neurosurgery examinations/ assessments and/or training on or about 2nf September 2026 and/or any other date.
(d) The Honorable Court is pleased to issue an order of judicial review by way of PROHIBITION, prohibiting the Respondents Jointly and severally, from enforcing the purported barring of the petitioner from 2026 COSECSA FCS neurosurgery examinations/assessments and/or training starting on or about 2nd September 2026 or any other date.
(e) The honourable court is pleased to issue an order of judicial review by way of an order of MANDAMUS compelling the respondents to train and examine the petitioner for the 2026 academic year and allow her to continue and complete her 2026 academic studies at college of Surgeons Of East, Central And Southern Africa (COSECSA) for the course she is currently undertaking, that is 2026 FCS neurosurgery examinations scheduled to start on or about 2nd September 2026 and November/December 2026 or any other date and if successful forward her name for graduation for purposes of graduation and certification.
(f) THAT this honourable court is pleased to order that the petitioner be allowed to sit her 2026 Surgeons Of East, Central And Southern Africa (COSECSA) Page 24 of 27 Page 25 of 27 2026 and /or any other date, if she passes be allowed to graduate with FCS Neurosurgery and be certified accordingly.
(g) THAT this honourable court is pleased to issue an order that the respondents are hereby barred either by themselves, their agents and/or any other person(s) whatsoever acting/giving effect to the administrative action of barring the petitioner from sitting 2026 COSECSA FCS neurosurgery examinations and/or training starting on or about 2nd September 2026 or any other date which was communicated vide a letter and/or document dated 17th July 2026 & 20TH July 2026, and/or any other document/communication of any other date.
(h) The honourable court is pleased to grant special & general damages and allcompensations to the petitioner against the respondents for constitutional violations meted on the petitioner.
(i) That this honourable court to direct ALL respondents to follow the constitution, EAC law and international law and the law including the law on fair administrative action and all rights and fundamental freedoms of human beings.
(j) That any other order or/and modification of Petitioner's prayer(s) which thishonourable court may deem fit so as to achieve objects of justice for thepetitioner as a whole.
(k) Costs of this Petition to be borne by Respondents.
9. When the matter was first placed before the recess duty Judge on 7 th August 2026, directions were issued regarding the filing of responses and submissions. Subsequently, when the matter came up for mention on 25 th August 2026, both the Counsel for the Petitioner and Counsel for the participating Respondents confirmed their full compliance with the directions previously issued. However, owing to the urgency of the matter and the fact that the Petitioner's examinations were scheduled to commence on 2 nd September 2026, the parties urged the court to determine the substantive Petition instead of first addressing the interlocutory application.
10. The court noted that despite service, the 3 rd and 4 th Respondents neither entered appearance nor participated in the proceedings. In view of the parties' consensus and the urgency surrounding the impending examinations, the court directed that the Petition be disposed of on the basis of the pleadings, affidavits and written submissions on record and reserved judgment for delivery on 1 st September 2026, despite the court being on recess.
C. THE PETITIONER'S SUBMISSIONS
(a) The Petitioner submitted that the impugned decision was unconstitutional, illegal, irrational and procedurally unfair. She argues that she was condemned unheard and was never issued with a notice to show cause nor invited to answer allegations touching on her eligibility before the decision was reached.
(b) It was submitted that the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act by declaring her incompetent without conducting any assessment and without affording her an opportunity to respond to the allegations relied upon.
(c) The Petitioner relied on Onyango Oloo v Attorney General [1986-1989] EA 456, where the court held that:
“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to act fairly without giving an opportunity to be heard.”
(d) The Petitioner further argued that the reasons cited by the Respondents related to failures by the Programme Director and COSECSA officials and not to any misconduct or omission on her part.
(e) She therefore seeks declarations, judicial review orders of certiorari, prohibition and mandamus, compensation and costs.
D. THE RESPONDENTS' SUBMISSIONS
11. The Respondents submitted that the Petition was improperly filed in Nakuru contrary to Rule 8 of the Mutunga Rules because all material events occurred in Nairobi. They therefore sought transfer of the Petition to the Constitutional and Human Rights Division at Nairobi (Milimani).
12. The Respondents further submitted that the Petition does not meet the threshold established in Anarita Karimi Njeru vs Republic [1979] KLR 154 and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , particularly regarding the allegations of discrimination and servitude.
13. On the merits, the Respondents maintained that the Examinations and Credentials Committee reviewed the Petitioner's training record and established that the Uganda elective was approved, but the South African elective extension and Israel observership lacked Programme Director’s approval. Consequently, the Committee could not assess her performance during those periods and therefore could not certify her competence for examination.
14. The Respondents further argued that natural justice does not invariably require an oral hearing and that the Petitioner had numerous opportunities through correspondence and appeal processes to present her position.
15. The Respondents therefore prayed that the Petition be transferred to Nairobi or alternatively be dismissed with costs.
E. ISSUES FOR DETERMINATION
16. Having considered the pleadings, affidavits, annexures and submissions on record, the issues that arise for determination are:
(i) Whether the Petition meets the threshold of a constitutional petition.
(ii) Whether the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act.
(iii) Whether the Respondents could lawfully rely on failures attributable to their own officers to exclude the Petitioner from the examinations
(iv) Whether the Petitioner is entitled to the reliefs sought.
F. ANALYSIS OF THE ISSUES FOR DETERMINATION
(i) Whether the Petition meets the threshold of a Constitutional Petition
17. The law regarding constitutional pleadings is settled. In Anarita Karimi Njeru vs Republic [1979] KLR 154 , the court held that a person seeking constitutional relief must set out with a reasonable degree of precision the constitutional provisions infringed and the manner of infringement.
18. The principle was reaffirmed by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , where the court observed that precision in constitutional litigation enables the respondent to know the case it is called upon to answer.
19. In the present Petition, the Petitioner has identified the impugned administrative action, the letter dated 17 th July 2026, the constitutional provisions allegedly violated and the manner in which those violations allegedly occurred. The Respondents were able to file comprehensive responses to the Petition.
20. Accordingly, the court is satisfied that the Petition meets the threshold established in Anarita Karimi Njeru and Mumo Matemu .
(ii) Whether the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act
(21) Article 47 of the Constitution entrenches the right to fair administrative action and provides as follows:
“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
(22) The constitutional guarantee under Article 47 was operationalized through the Fair Administrative Action Act, No. 4 of 2015. Section 4(3) thereof obligates an administrator, where an administrative action is likely to adversely affect the rights or fundamental freedoms of a person, to give the affected person prior and adequate notice of the nature and reasons for the proposed action, an opportunity to be heard and make representations, notice of the right to review or appeal, a statement of reasons, and all relevant information to be relied upon in making the decision.
(23) The significance of Article 47 was underscored by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR , where the court held that Article 47 transformed the common law duty to act fairly into a constitutional obligation and that administrative bodies must act lawfully, reasonably and procedurally fairly. The court observed that administrative justice is now a constitutional imperative whose purpose is to ensure that state and public bodies exercise power in a manner consistent with the constitution. The court pronounced itself as follows;
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
(24) In the present case, the court finds that the Respondents fell far short of the standards demanded by Article 47 of the Constitution. The material placed before the court, particularly the email correspondences exhibited by the Petitioner, demonstrates that over a considerable period, she consistently sought clarification regarding her training status, approvals for her external rotations, review of her electronic logbook, assessment of her competence and confirmation of her eligibility to sit the Fellowship examinations. The correspondences further reveals that the Petitioner made several attempts to explain the circumstances surrounding the duration of her external rotations and sought guidance from the Programme Director and COSECSA officials on the steps required to regularize any concerns relating to her training record.
(25) Notwithstanding those efforts, the evidence discloses a pattern of delayed communication, non-responsiveness and administrative inertia on the part of the Respondents. The court has not been shown any timely response addressing the concerns raised by the Petitioner, nor any evidence that the Respondents communicated their reservations regarding her eligibility at the time those concerns allegedly arose. Instead, the Petitioner's requests for clarification, assessment and review of her logbook remained substantially unanswered.
(26) The court considers these omissions particularly significant because the matters relied upon by the Respondents to exclude the Petitioner from the examinations were matters wholly within the Respondents' supervisory and administrative domain. If indeed there existed concerns regarding approvals, assessment of competence, external rotations or compliance with programme requirements, the Respondents were under a constitutional and statutory duty to communicate those concerns promptly and clearly. Administrative fairness requires ongoing engagement and timely communication, especially where a decision is likely to have far-reaching consequences on a person's academic and professional future.
(27) Rather than engage the Petitioner timeously, the Respondents remained silent until when they issued two letters both dated 17th July 2026, informing her that she had not satisfied the requirements necessary to sit the 2026 FCS Neurosurgery Examinations scheduled to commence on 2nd September 2026. By that time, the Petitioner had undertaken the training programme since February 2023 and had every legitimate expectation that any deficiencies in her training would have been brought to her attention sufficiently early to enable corrective action.
(28) The court finds that the Respondents' conduct offended not only the requirement of procedural fairness but also the constitutional requirement that administrative action be expeditious and efficient . Article 47(1) does not contemplate a situation where an administrator ignores repeated requests for clarification and guidance, fails to assess a trainee during the course of training, remains silent regarding alleged deficiencies and then, at the eleventh hour, communicates an adverse decision that effectively jeopardizes years of academic and professional effort.
(29) In the above case of Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR , the Court of Appeal emphasized that the duty to act fairly includes procedural justice and the obligation to conduct administrative processes in a manner consistent with constitutional values. Similarly, courts have consistently held that public bodies must exercise their powers transparently and reasonably.
(30) The court is further persuaded that the Petitioner was denied the safeguards contemplated under Section 4(3) of the Fair Administrative Action Act. There is no evidence that before the impugned decision was made she was furnished with prior notice that her eligibility to sit the examinations was under review; informed of the specific allegations being considered against her; supplied with the material intended to be relied upon by the Examinations and Credentials Committee; or afforded a reasonable opportunity to respond to those allegations before the decision was reached.
(31) In the circumstances, the court finds that the Respondents' failure to communicate effectively and in a timely manner, their failure to respond to the Petitioner's requests for clarification and assessment, and their decision to communicate an adverse determination only weeks before the commencement of the examinations amounted to administrative action that was neither expeditious, efficient, reasonable nor procedurally fair.
(32) Consequently, this court holds that the process culminating in the letters dated 17th July 2026, violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. The impugned decision was therefore tainted by procedural impropriety, unfairness and administrative unreasonableness and cannot be allowed to stand.
(33) In the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR , the Court of Appeal emphasized that;
“The Constitution of Kenya in particular Article 47 makes provision for fair administrative action. Section 4 (3) (b) of the Fair Administrative Act stipulates that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision an opportunity to be heard and to make representations in that regard. These provisions are given effect by the Fair Administration Act. Section 4 (3) (g) of the Act requires the person affected to be given information, materials and evidence relied upon in making the decision or taking the administrative action.”
(34) In the present case, the Petitioner consistently wrote to the Respondents seeking clarification regarding her external rotations, review of her electronic logbook, assessment of her competence and confirmation of her eligibility to sit the September 2026 examinations. Despite those requests, the Respondents failed to communicate their concerns, failed to assess the Petitioner in a timely manner and failed to provide guidance on any alleged deficiencies.
(35) Instead, after prolonged silence, they issued two letters dated 17th July 2026, informing the Petitioner that she did not qualify to sit examinations scheduled to commence on 2nd September 2026. Such conduct cannot be described as expeditious, efficient or procedurally fair as contemplated under Article 47 of the Constitution and the Fair Administrative Action Act. The Respondents' failure to communicate promptly and afford the Petitioner an opportunity to address the concerns raised rendered the impugned decision constitutionally infirm.
(36) In Onyancha v College of Surgeons of East Central and Southern Africa (COSECSA) & 11 Others (Constitutional Petition E015 of 2023) [2023] KEHC 25162 (KLR), a case involving the same 1st Respondent, the High Court found that:
"The Respondents did not give the Petitioner prior notice in the intended administrative action of suspending the petitioner contrary to Article 47 of the Constitution."
(37) The court consequently quashed the impugned decision and issued orders compelling the respondents to continue training and examining the petitioner.
(38) The circumstances of the present case are substantially similar. The Petitioner persistently wrote to the Respondents seeking clarification on her training status, review of her electronic logbook, assessment of her competence and regularization of her external rotations. Despite those efforts, the Respondents failed to respond to her correspondence or communicate any concerns regarding her eligibility. Instead, they remained silent and only issued two letters dated 17th July 2026, informing her that she did not qualify to sit examinations scheduled to commence on 2nd September 2026. Like the petitioner in Onyancha case above , the Petitioner herein was not given prior notice of the intended adverse action, nor was she afforded an opportunity to address the alleged deficiencies before the decision was made. The Respondents' conduct therefore violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act and rendered the impugned decision procedurally unfair and unconstitutional.
(39) Similarly, the court, in Republic v Kenya Revenue Authority Ex Parte Stanley Mombo Amuti [2018] eKLR , held that, procedural fairness requires that a person likely to be adversely affected by an administrative decision must be given sufficient notice of the case facing him and an opportunity to respond before a decision is reached.
(40) In the present case, the decision complained of was not a routine administrative communication. It had the effect of excluding the Petitioner from sitting the 2026 FCS Neurosurgery Examinations, examinations which marked the culmination of years of specialist medical training. The decision directly affected the Petitioner's educational advancement, professional progression, career prospects and legitimate expectation to complete the programme for which she had been admitted and trained since February 2023.
(41) The Respondents justified the impugned decision on the grounds that certain elective placements undertaken by the Petitioner lacked approval and that her competence could not be assessed. However, the evidence before the court reveals that throughout her training the Petitioner continuously engaged the Programme Director and COSECSA officials regarding approvals, assessments, elective placements and review of her electronic logbook. The record further demonstrates that despite repeated requests by the Petitioner, the Programme Director failed to respond to correspondences seeking approvals and review of the electronic logbook.
(42) Notably, there is no evidence that before the decision of 17th July 2026, was made, the Petitioner was served with a notice informing her that her eligibility to sit the September 2026 examinations was under review. Neither is there evidence that she was informed of the specific allegations being considered against her, supplied with the material relied upon by the Examinations and Credentials Committee, or invited to make representations regarding the alleged lack of approvals and assessment concerns.
(43) The court is persuaded that the Petitioner first became aware of the adverse decision when she received the letters dated 17th July 2026 on 20th July 2026. By that time, the decision had already been made. The right guaranteed under Article 47 and Section 4 of the Fair Administrative Action Act is not merely the right to be informed of a decision after it has been made, but the right to participate in the decision-making process before the decision is reached.
(44) The importance of affording an affected person an opportunity to be heard before an adverse decision is taken was emphasized in Onyango Oloo v Attorney General [1986–1989] EA 456 , where the Court of Appeal held that a decision reached in breach of the rules of natural justice cannot stand regardless of whether the same decision might ultimately have been reached had the affected person been heard.
(45) Similarly, in Republic v Kenya School of Law & Another Ex Parte Kithinji Maseka Semo & Another [2019] eKLR , the court observed that where an administrative decision adversely affects a person, fairness demands prior notice, consultation, disclosure of the issues under consideration and an opportunity to respond before the decision is made.
(46) What emerges from the record is that the Respondents relied on alleged deficiencies whose occurrence was substantially linked to the actions and omissions of the Programme Director and other officers charged with supervising the Petitioner's training. The Petitioner could not approve her own electives, assess her own competence, verify her own logbook or certify completion of her training. Those obligations fell squarely upon the Respondents and their designated officers.
(47) The court finds that the Respondents cannot rely on their own administrative shortcomings, delays or failures in supervision as a basis for excluding the Petitioner from the examinations. To do so would amount to shifting the consequences of institutional failures onto the very person who was entitled to receive guidance, supervision and assessment from the Respondents.
(48) The timing of the impugned decision further compounds the unfairness. The decision was communicated barely weeks before the examinations scheduled to commence on 2nd September 2026. By that stage, the Petitioner had completed substantial training and had a legitimate expectation that any concerns regarding approvals, assessments or programme compliance would have been raised and addressed timeously.
(49) In Keroche Industries Limited v Kenya Revenue Authority & 5 Others [2007] KLR 240 , the court observed that public bodies must act fairly, consistently and transparently and should not exercise their powers in a manner that is arbitrary, capricious or oppressive. The conduct complained of herein falls short of those constitutional standards.
(50) Having considered the entirety of the evidence and the applicable law, the court is satisfied that the Respondents failed to accord the Petitioner prior notice of the allegations against her, failed to provide her with an opportunity to respond before the decision was reached, failed to involve her in a process that substantially affected her rights and legitimate expectations, and ultimately made a decision whose consequences were grave and far-reaching.
(51) The court therefore finds and holds that the process leading to the impugned decision did not comply with the requirements of procedural fairness contemplated under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, and consequently violated the Petitioner's constitutional right to fair administrative action.
(iii) Whether the Respondents could lawfully rely on failures attributable to their own officers to exclude the Petitioner from the examinations
(52) The Respondents justified their decision by asserting that the Petitioner's competence could not be assessed and that certain electives lacked approval.
(53) The court has carefully considered the record. The evidence demonstrates that throughout the course of her training, the Petitioner continuously sought guidance, approvals and assessments from the Programme Dir
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A. INTRODUCTION
1. The Petitioner, Dr. Jalilarah Nassozi, is challenging the decision of the 1 st Respondent, COSECSA, communicated through a letter dated 17 th July 2026, barring her from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations, scheduled to commence on 2 nd September 2026.
2. The Petition is premised on alleged violations of Articles 27, 41, 43, 47 and 50 of the Constitution of Kenya and the Fair Administrative Action Act, No. 4 of 2015. The Petitioner contends that the decision to bar her from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations was reached without notice, without affording her an opportunity to be heard, and without any assessment of her competence.
3. The 1 st , 2 nd , 5 th , 6 th , 7 th , 8 th and 9 th Respondents opposed the Petition and maintain that the decision was lawfully made following a review of the Petitioner's training record and non-compliance with mandatory programme requirements. The 3 rd and 4 th Respondents did not participate in the case.
B. BRIEF FACTS OF THE CASE
4. The Petitioner was admitted into the COSECSA Fellowship of the College of Surgeons (FCS) Neurosurgery Programme in February 2023 and was stationed at Kenyatta National Hospital under the supervision of the 3 rd Respondent, Dr. John K. Boore.
5. In the course of her training and pursuant to the programme requirements, the Petitioner undertook elective placements at CURE Children's Hospital in Uganda, Groote Schuur Hospital and Red Cross War Memorial Children's Hospital in South Africa, and subsequently attended a Paediatric Neurosurgery Observership Programme in Israel. It was her case that the Programme Director and officials of COSECSA were at all material times aware of and facilitated the said placements.
6. The Petitioner averred that despite numerous requests and correspondences addressed to the Programme Director regarding approvals, assessments and review of her electronic logbook, no substantive response was forthcoming. She further averred that whereas examination credentials were issued to other trainees in March 2026, none were issued to her. Subsequently, by communication dated 30 th March 2026, she was requested to return to Kenya for assessment and review of her logbook, notwithstanding, her position that the logbook was accessible electronically and could be reviewed remotely.
7. The dispute culminated in the issuance of a letter dated 17 th July 2026, which was received by the Petitioner on 20 th July 2026, informing her that she had been barred from sitting the 2026 Fellowship of the College of Surgeons (FCS) Neurosurgery Examinations scheduled for 2 nd September, 2026, on the grounds that certain elective placements lacked approval and that her competence could not be assessed.
8. Aggrieved by the said decision, the Petitioner instituted the present Petition together with a Notice of Motion dated 30 th July 2026, which was supported by her affidavit sworn on the same date, seeking the following reliefs: -
(a) A DECLARATION is hereby made that the purported barring of the petitioner from assessment/sitting 2026 COSECSA FCS neurosurgery examinations and/or training which is starting on or about on 2nd September 2026 or any other date which was communicated vide letters and/or documents dated 17th July 2026 on 20 th July 2026, and/or any other document/communication of any other date to the extent that, it did not follow procedure of fairness, fair administrative action,natural justice and fair hearing as enunciated in article 1, 3, 10, 47 and any other provisions of the constitution as read with fair administrative actionact and other relevant statutes, is unconstitutional, null and void.
(b) DECLARATION is hereby made that the purported barring of the petitioner from assessments/sitting of the 2026 COSECSA FCS neurosurgery examinations/assessments and/or training which is slated to start on or about 2 nd September 2026 or any other date and which was communicated vide a letters and/or document dated 17th July 2026 on 20 th July 2026, and/or any other document/communication of any other date is contrary to article 10,19, 25, 27, 29, 30, 41, 43, 47 & 50 of the constitution (2010) and relevantlaws hence illegal, unconstitutional, null and void.
(c) The court is pleased to issue an order of judicial review by way of CERTIORARI, quashing the respondent’s letter (s)/ documents/ communications dated 17 th July 2026 and/or any other document/ communication of any other date which hadan effect of purportedly barring the petitioner from sitting/ assessment of the2026 COSECSA FCS neurosurgery examinations/ assessments and/or training on or about 2nf September 2026 and/or any other date.
(d) The Honorable Court is pleased to issue an order of judicial review by way of PROHIBITION, prohibiting the Respondents Jointly and severally, from enforcing the purported barring of the petitioner from 2026 COSECSA FCS neurosurgery examinations/assessments and/or training starting on or about 2nd September 2026 or any other date.
(e) The honourable court is pleased to issue an order of judicial review by way of an order of MANDAMUS compelling the respondents to train and examine the petitioner for the 2026 academic year and allow her to continue and complete her 2026 academic studies at college of Surgeons Of East, Central And Southern Africa (COSECSA) for the course she is currently undertaking, that is 2026 FCS neurosurgery examinations scheduled to start on or about 2nd September 2026 and November/December 2026 or any other date and if successful forward her name for graduation for purposes of graduation and certification.
(f) THAT this honourable court is pleased to order that the petitioner be allowed to sit her 2026 Surgeons Of East, Central And Southern Africa (COSECSA) Page 24 of 27 Page 25 of 27 2026 and /or any other date, if she passes be allowed to graduate with FCS Neurosurgery and be certified accordingly.
(g) THAT this honourable court is pleased to issue an order that the respondents are hereby barred either by themselves, their agents and/or any other person(s) whatsoever acting/giving effect to the administrative action of barring the petitioner from sitting 2026 COSECSA FCS neurosurgery examinations and/or training starting on or about 2nd September 2026 or any other date which was communicated vide a letter and/or document dated 17th July 2026 & 20TH July 2026, and/or any other document/communication of any other date.
(h) The honourable court is pleased to grant special & general damages and allcompensations to the petitioner against the respondents for constitutional violations meted on the petitioner.
(i) That this honourable court to direct ALL respondents to follow the constitution, EAC law and international law and the law including the law on fair administrative action and all rights and fundamental freedoms of human beings.
(j) That any other order or/and modification of Petitioner's prayer(s) which thishonourable court may deem fit so as to achieve objects of justice for thepetitioner as a whole.
(k) Costs of this Petition to be borne by Respondents.
9. When the matter was first placed before the recess duty Judge on 7 th August 2026, directions were issued regarding the filing of responses and submissions. Subsequently, when the matter came up for mention on 25 th August 2026, both the Counsel for the Petitioner and Counsel for the participating Respondents confirmed their full compliance with the directions previously issued. However, owing to the urgency of the matter and the fact that the Petitioner's examinations were scheduled to commence on 2 nd September 2026, the parties urged the court to determine the substantive Petition instead of first addressing the interlocutory application.
10. The court noted that despite service, the 3 rd and 4 th Respondents neither entered appearance nor participated in the proceedings. In view of the parties' consensus and the urgency surrounding the impending examinations, the court directed that the Petition be disposed of on the basis of the pleadings, affidavits and written submissions on record and reserved judgment for delivery on 1 st September 2026, despite the court being on recess.
C. THE PETITIONER'S SUBMISSIONS
(a) The Petitioner submitted that the impugned decision was unconstitutional, illegal, irrational and procedurally unfair. She argues that she was condemned unheard and was never issued with a notice to show cause nor invited to answer allegations touching on her eligibility before the decision was reached.
(b) It was submitted that the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act by declaring her incompetent without conducting any assessment and without affording her an opportunity to respond to the allegations relied upon.
(c) The Petitioner relied on Onyango Oloo v Attorney General [1986-1989] EA 456, where the court held that:
“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to act fairly without giving an opportunity to be heard.”
(d) The Petitioner further argued that the reasons cited by the Respondents related to failures by the Programme Director and COSECSA officials and not to any misconduct or omission on her part.
(e) She therefore seeks declarations, judicial review orders of certiorari, prohibition and mandamus, compensation and costs.
D. THE RESPONDENTS' SUBMISSIONS
11. The Respondents submitted that the Petition was improperly filed in Nakuru contrary to Rule 8 of the Mutunga Rules because all material events occurred in Nairobi. They therefore sought transfer of the Petition to the Constitutional and Human Rights Division at Nairobi (Milimani).
12. The Respondents further submitted that the Petition does not meet the threshold established in Anarita Karimi Njeru vs Republic [1979] KLR 154 and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , particularly regarding the allegations of discrimination and servitude.
13. On the merits, the Respondents maintained that the Examinations and Credentials Committee reviewed the Petitioner's training record and established that the Uganda elective was approved, but the South African elective extension and Israel observership lacked Programme Director’s approval. Consequently, the Committee could not assess her performance during those periods and therefore could not certify her competence for examination.
14. The Respondents further argued that natural justice does not invariably require an oral hearing and that the Petitioner had numerous opportunities through correspondence and appeal processes to present her position.
15. The Respondents therefore prayed that the Petition be transferred to Nairobi or alternatively be dismissed with costs.
E. ISSUES FOR DETERMINATION
16. Having considered the pleadings, affidavits, annexures and submissions on record, the issues that arise for determination are:
(i) Whether the Petition meets the threshold of a constitutional petition.
(ii) Whether the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act.
(iii) Whether the Respondents could lawfully rely on failures attributable to their own officers to exclude the Petitioner from the examinations
(iv) Whether the Petitioner is entitled to the reliefs sought.
F. ANALYSIS OF THE ISSUES FOR DETERMINATION
(i) Whether the Petition meets the threshold of a Constitutional Petition
17. The law regarding constitutional pleadings is settled. In Anarita Karimi Njeru vs Republic [1979] KLR 154 , the court held that a person seeking constitutional relief must set out with a reasonable degree of precision the constitutional provisions infringed and the manner of infringement.
18. The principle was reaffirmed by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , where the court observed that precision in constitutional litigation enables the respondent to know the case it is called upon to answer.
19. In the present Petition, the Petitioner has identified the impugned administrative action, the letter dated 17 th July 2026, the constitutional provisions allegedly violated and the manner in which those violations allegedly occurred. The Respondents were able to file comprehensive responses to the Petition.
20. Accordingly, the court is satisfied that the Petition meets the threshold established in Anarita Karimi Njeru and Mumo Matemu .
(ii) Whether the Respondents violated Article 47 of the Constitution and the Fair Administrative Action Act
(21) Article 47 of the Constitution entrenches the right to fair administrative action and provides as follows:
“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
(22) The constitutional guarantee under Article 47 was operationalized through the Fair Administrative Action Act, No. 4 of 2015. Section 4(3) thereof obligates an administrator, where an administrative action is likely to adversely affect the rights or fundamental freedoms of a person, to give the affected person prior and adequate notice of the nature and reasons for the proposed action, an opportunity to be heard and make representations, notice of the right to review or appeal, a statement of reasons, and all relevant information to be relied upon in making the decision.
(23) The significance of Article 47 was underscored by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR , where the court held that Article 47 transformed the common law duty to act fairly into a constitutional obligation and that administrative bodies must act lawfully, reasonably and procedurally fairly. The court observed that administrative justice is now a constitutional imperative whose purpose is to ensure that state and public bodies exercise power in a manner consistent with the constitution. The court pronounced itself as follows;
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
(24) In the present case, the court finds that the Respondents fell far short of the standards demanded by Article 47 of the Constitution. The material placed before the court, particularly the email correspondences exhibited by the Petitioner, demonstrates that over a considerable period, she consistently sought clarification regarding her training status, approvals for her external rotations, review of her electronic logbook, assessment of her competence and confirmation of her eligibility to sit the Fellowship examinations. The correspondences further reveals that the Petitioner made several attempts to explain the circumstances surrounding the duration of her external rotations and sought guidance from the Programme Director and COSECSA officials on the steps required to regularize any concerns relating to her training record.
(25) Notwithstanding those efforts, the evidence discloses a pattern of delayed communication, non-responsiveness and administrative inertia on the part of the Respondents. The court has not been shown any timely response addressing the concerns raised by the Petitioner, nor any evidence that the Respondents communicated their reservations regarding her eligibility at the time those concerns allegedly arose. Instead, the Petitioner's requests for clarification, assessment and review of her logbook remained substantially unanswered.
(26) The court considers these omissions particularly significant because the matters relied upon by the Respondents to exclude the Petitioner from the examinations were matters wholly within the Respondents' supervisory and administrative domain. If indeed there existed concerns regarding approvals, assessment of competence, external rotations or compliance with programme requirements, the Respondents were under a constitutional and statutory duty to communicate those concerns promptly and clearly. Administrative fairness requires ongoing engagement and timely communication, especially where a decision is likely to have far-reaching consequences on a person's academic and professional future.
(27) Rather than engage the Petitioner timeously, the Respondents remained silent until when they issued two letters both dated 17th July 2026, informing her that she had not satisfied the requirements necessary to sit the 2026 FCS Neurosurgery Examinations scheduled to commence on 2nd September 2026. By that time, the Petitioner had undertaken the training programme since February 2023 and had every legitimate expectation that any deficiencies in her training would have been brought to her attention sufficiently early to enable corrective action.
(28) The court finds that the Respondents' conduct offended not only the requirement of procedural fairness but also the constitutional requirement that administrative action be expeditious and efficient . Article 47(1) does not contemplate a situation where an administrator ignores repeated requests for clarification and guidance, fails to assess a trainee during the course of training, remains silent regarding alleged deficiencies and then, at the eleventh hour, communicates an adverse decision that effectively jeopardizes years of academic and professional effort.
(29) In the above case of Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR , the Court of Appeal emphasized that the duty to act fairly includes procedural justice and the obligation to conduct administrative processes in a manner consistent with constitutional values. Similarly, courts have consistently held that public bodies must exercise their powers transparently and reasonably.
(30) The court is further persuaded that the Petitioner was denied the safeguards contemplated under Section 4(3) of the Fair Administrative Action Act. There is no evidence that before the impugned decision was made she was furnished with prior notice that her eligibility to sit the examinations was under review; informed of the specific allegations being considered against her; supplied with the material intended to be relied upon by the Examinations and Credentials Committee; or afforded a reasonable opportunity to respond to those allegations before the decision was reached.
(31) In the circumstances, the court finds that the Respondents' failure to communicate effectively and in a timely manner, their failure to respond to the Petitioner's requests for clarification and assessment, and their decision to communicate an adverse determination only weeks before the commencement of the examinations amounted to administrative action that was neither expeditious, efficient, reasonable nor procedurally fair.
(32) Consequently, this court holds that the process culminating in the letters dated 17th July 2026, violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. The impugned decision was therefore tainted by procedural impropriety, unfairness and administrative unreasonableness and cannot be allowed to stand.
(33) In the case of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR , the Court of Appeal emphasized that;
“The Constitution of Kenya in particular Article 47 makes provision for fair administrative action. Section 4 (3) (b) of the Fair Administrative Act stipulates that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision an opportunity to be heard and to make representations in that regard. These provisions are given effect by the Fair Administration Act. Section 4 (3) (g) of the Act requires the person affected to be given information, materials and evidence relied upon in making the decision or taking the administrative action.”
(34) In the present case, the Petitioner consistently wrote to the Respondents seeking clarification regarding her external rotations, review of her electronic logbook, assessment of her competence and confirmation of her eligibility to sit the September 2026 examinations. Despite those requests, the Respondents failed to communicate their concerns, failed to assess the Petitioner in a timely manner and failed to provide guidance on any alleged deficiencies.
(35) Instead, after prolonged silence, they issued two letters dated 17th July 2026, informing the Petitioner that she did not qualify to sit examinations scheduled to commence on 2nd September 2026. Such conduct cannot be described as expeditious, efficient or procedurally fair as contemplated under Article 47 of the Constitution and the Fair Administrative Action Act. The Respondents' failure to communicate promptly and afford the Petitioner an opportunity to address the concerns raised rendered the impugned decision constitutionally infirm.
(36) In Onyancha v College of Surgeons of East Central and Southern Africa (COSECSA) & 11 Others (Constitutional Petition E015 of 2023) [2023] KEHC 25162 (KLR), a case involving the same 1st Respondent, the High Court found that:
"The Respondents did not give the Petitioner prior notice in the intended administrative action of suspending the petitioner contrary to Article 47 of the Constitution."
(37) The court consequently quashed the impugned decision and issued orders compelling the respondents to continue training and examining the petitioner.
(38) The circumstances of the present case are substantially similar. The Petitioner persistently wrote to the Respondents seeking clarification on her training status, review of her electronic logbook, assessment of her competence and regularization of her external rotations. Despite those efforts, the Respondents failed to respond to her correspondence or communicate any concerns regarding her eligibility. Instead, they remained silent and only issued two letters dated 17th July 2026, informing her that she did not qualify to sit examinations scheduled to commence on 2nd September 2026. Like the petitioner in Onyancha case above , the Petitioner herein was not given prior notice of the intended adverse action, nor was she afforded an opportunity to address the alleged deficiencies before the decision was made. The Respondents' conduct therefore violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act and rendered the impugned decision procedurally unfair and unconstitutional.
(39) Similarly, the court, in Republic v Kenya Revenue Authority Ex Parte Stanley Mombo Amuti [2018] eKLR , held that, procedural fairness requires that a person likely to be adversely affected by an administrative decision must be given sufficient notice of the case facing him and an opportunity to respond before a decision is reached.
(40) In the present case, the decision complained of was not a routine administrative communication. It had the effect of excluding the Petitioner from sitting the 2026 FCS Neurosurgery Examinations, examinations which marked the culmination of years of specialist medical training. The decision directly affected the Petitioner's educational advancement, professional progression, career prospects and legitimate expectation to complete the programme for which she had been admitted and trained since February 2023.
(41) The Respondents justified the impugned decision on the grounds that certain elective placements undertaken by the Petitioner lacked approval and that her competence could not be assessed. However, the evidence before the court reveals that throughout her training the Petitioner continuously engaged the Programme Director and COSECSA officials regarding approvals, assessments, elective placements and review of her electronic logbook. The record further demonstrates that despite repeated requests by the Petitioner, the Programme Director failed to respond to correspondences seeking approvals and review of the electronic logbook.
(42) Notably, there is no evidence that before the decision of 17th July 2026, was made, the Petitioner was served with a notice informing her that her eligibility to sit the September 2026 examinations was under review. Neither is there evidence that she was informed of the specific allegations being considered against her, supplied with the material relied upon by the Examinations and Credentials Committee, or invited to make representations regarding the alleged lack of approvals and assessment concerns.
(43) The court is persuaded that the Petitioner first became aware of the adverse decision when she received the letters dated 17th July 2026 on 20th July 2026. By that time, the decision had already been made. The right guaranteed under Article 47 and Section 4 of the Fair Administrative Action Act is not merely the right to be informed of a decision after it has been made, but the right to participate in the decision-making process before the decision is reached.
(44) The importance of affording an affected person an opportunity to be heard before an adverse decision is taken was emphasized in Onyango Oloo v Attorney General [1986–1989] EA 456 , where the Court of Appeal held that a decision reached in breach of the rules of natural justice cannot stand regardless of whether the same decision might ultimately have been reached had the affected person been heard.
(45) Similarly, in Republic v Kenya School of Law & Another Ex Parte Kithinji Maseka Semo & Another [2019] eKLR , the court observed that where an administrative decision adversely affects a person, fairness demands prior notice, consultation, disclosure of the issues under consideration and an opportunity to respond before the decision is made.
(46) What emerges from the record is that the Respondents relied on alleged deficiencies whose occurrence was substantially linked to the actions and omissions of the Programme Director and other officers charged with supervising the Petitioner's training. The Petitioner could not approve her own electives, assess her own competence, verify her own logbook or certify completion of her training. Those obligations fell squarely upon the Respondents and their designated officers.
(47) The court finds that the Respondents cannot rely on their own administrative shortcomings, delays or failures in supervision as a basis for excluding the Petitioner from the examinations. To do so would amount to shifting the consequences of institutional failures onto the very person who was entitled to receive guidance, supervision and assessment from the Respondents.
(48) The timing of the impugned decision further compounds the unfairness. The decision was communicated barely weeks before the examinations scheduled to commence on 2nd September 2026. By that stage, the Petitioner had completed substantial training and had a legitimate expectation that any concerns regarding approvals, assessments or programme compliance would have been raised and addressed timeously.
(49) In Keroche Industries Limited v Kenya Revenue Authority & 5 Others [2007] KLR 240 , the court observed that public bodies must act fairly, consistently and transparently and should not exercise their powers in a manner that is arbitrary, capricious or oppressive. The conduct complained of herein falls short of those constitutional standards.
(50) Having considered the entirety of the evidence and the applicable law, the court is satisfied that the Respondents failed to accord the Petitioner prior notice of the allegations against her, failed to provide her with an opportunity to respond before the decision was reached, failed to involve her in a process that substantially affected her rights and legitimate expectations, and ultimately made a decision whose consequences were grave and far-reaching.
(51) The court therefore finds and holds that the process leading to the impugned decision did not comply with the requirements of procedural fairness contemplated under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, and consequently violated the Petitioner's constitutional right to fair administrative action.
(iii) Whether the Respondents could lawfully rely on failures attributable to their own officers to exclude the Petitioner from the examinations
(52) The Respondents justified their decision by asserting that the Petitioner's competence could not be assessed and that certain electives lacked approval.
(53) The court has carefully considered the record. The evidence demonstrates that throughout the course of her training, the Petitioner continuously sought guidance, approvals and assessments from the Programme Dir
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