1. The Court is asked to determine the petitioners’ Notice of Motion application dated 8 th September 2026. The application is presented under articles 22, 23, 43(1) (f), 47 and 165(3) (b) of the Constitution, sections 3, 4, 6, 7 and 11 of the Fair Administrative Action Act, 2015 and Rules 23, 24 and 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It supported by an affidavit sworn on even date and oral submissions.
2. The application is seeking for orders that:
1. Spent
2. Pending the inter partes hearing of this application, this Honourable Court be pleased to issue a conservatory order suspending and restraining the respondent from proceeding with the graduation ceremony scheduled for 26 th September 2026, pending the inter partes hearing and determination of this application, or in the alternative, the respondent does include the petitioner in the final graduation list for graduation on 26 th September 2026.
3. Pending the hearing and determination of the petition, this Honourable Court be pleased to issue a conservatory order suspending and restraining the respondent from proceeding with the graduation ceremony scheduled for 26 th September 2026, or in the alternative, the respondent does include the petitioner in the final graduation list for graduation on 26 th September 2026.
4. The costs of this application be in the cause.
5. This Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances.
3. The application is predicated upon the grounds that, the petitioner is a PhD student in International Relations at the respondent University having been admitted in September 2021, who has complied with all academic requirements, corrections and feedback communicated to him by the respondent.
4. The petitioner submitted his dissertation for examination and has continued to make submissions and corrections required to advance the dissertation to defence stage. On 16 th July 2026, the respondent’s internal supervisor acknowledged receipt of the corrected dissertation and confirmed that he, together with Professor Stig Hansen, were reviewing it before proceeding to the next step.
5. The petitioner subsequently continued to comply with the feedback received and submitted a further updated dissertation on 23 rd July 2026. He later established that the internal and external examiners reports had been received by the respondent. However, the respondent has failed to communicate the dissertation examination outcome or indicate any outstanding requirements necessary for progression to the next stage.
6. The respondent has an imminent graduation process which includes verification of academic requirements and publication of a final graduation list. Unless this court intervenes, there is a real risk that the petitioner will be excluded from consideration for graduation, thereby rendering the petition nugatory.
7. The respondent’s actions violates/threatens to violate the petitioner’s rights under article 47 of the Constitution and the Fair Administrative Action Act and legitimate expectation that his academic and examination process shall be administered fairly, transparently and expeditiously in accordance with the respondent’s applicable academic framework.
8. In the supporting affidavit, the petitioner adds that the PhD programme is scheduled to run for a period of five years and the cohort admitted in September 2021 was scheduled to complete the programme and graduate in September 2026. Further that he successfully completed the requisite coursework and examinations, following which his results were approved by the respondent’s Board of Examiners in August and he proceeded to the Dissertation stage. On 18 th January 2024, he selected his dissertation topic and was assigned Dr. Francis Khayundi as his internal supervisor.
9. The petitioner deposes that he submitted his final dissertation proposal on 30 th May 2025 and following approval on 15 th December 2025, undertook the corrections and other requirements communicated by the respondent. The corrected version was subsequently forwarded to the relevant Institution Review Boad, received the requisite approval and he thereafter undertook and completed his fieldwork.
10. On 11 th June 2026, he submitted his first draft of his dissertation to his internal supervisor and Professor Stig Hansen for review and thereafter received and addressed feedback communicated to him. On 14 th July 2026, he submitted a further corrected dissertation draft to Professor Stig Hansen, copying Dr. Francis Khayundi and requested guidance on scheduling his defence.
11. On 16 th July 2026, Dr. Khayundi acknowledged receipt of his work and informed him that he and Professor Stig Hansen were reviewing it before proceeding to the next step. He thereafter continued addressing the feedback communicated and on 23 rd July 2026, forwarded a further update version to Dr. Khayundi following his suggestions.
12. The petitioner reiterates that as at 31 st August 2026, he established that both the internal and external Examiners reports had been received by the Respondent and that it failed to communicate the outcome. On 5 th August 2026, he received from Dr. Khayundi a communication issued by the Respondent’s registrar’s department concerning the final extension for applications for the 2026 Graduation Ceremony. The said communications stated that the University’s graduation clearance process would include verification of completion of academic requirements and would culminate in publication of the final graduation list.
13. Concerned by the continued uncertainty, he sent a formal demand dated 26 th August 2026 to the respondent requiring it to address the delay and provide clarity concerning the status and next steps in his academic process. The respondent responded on 3 rd September 2026, referring to mandatory requirement and pending next steps in his academic process. It further stated that the matter had been referred to the Associate Dean, School of Graduate Studies for immediate attention.
14. The petitioner claims that despite the foregoing, the respondent did not identify the alleged mandatory requirements, communicate the outcome of the dissertation or provide a definite timeline within which his academic process would proceed. On 4 th September 2026, Dr. Khayundi informed him that his dissertation was still undergoing examination and that the outcome would determine his eligibility to proceed to the next stage. He was further informed that the process was being handled by the School of Graduate Students and that progression to the next stage would only occur upon receipt and communication of examination results to the Department.
15. It is the petitioner’s case that he has not received any further communication and he is hence faced with an unresolved academic process. Further that the graduation ceremony is schedule for 26 th September 2026, therefore urgent that the court intervenes to avoid rendering the petition nugatory.
SUMMARY OF THE RESPONDENT’S RESPONSE
16. The respondent opposed the application through replying affidavit sworn by Jeremiah Koshal on 11 th September 2026. It is contended that the application proceeds from an erroneous premise, that the receipt of dissertation examination reports from the appointed examiners is the same as the completion of the doctoral examination process and that the petitioner is thereupon entitled to be declared to have completed the programme and to be included in the final graduation list for graduation ceremony on 26 th September 2026 which is contrary to the proved structure of the programme, the respondent’s charter and the applicable regulatory framework. To wit the United States International University, African Charter 2022; the Universities Act, No. 42 of 2012 and the Standards and Guidelines issued by the Commission for University Education (CUE).
17. It is deposed that under the Charter, the University Senate is in charge of all academic matters of the University and is the organ mandated to among others, oversee all the academic programmes, quality and character of the institution and continuously review academic policy and performance to decide which persons have attained the prescribed standards of proficiency and are therefore fit to be granted a degree, and to approve the results of candidates prior to the conferment of any degree.
18. It is further deposed that the PhD in international Relations programme was approved by CUE upon application made by the University, which approval prescribed among others, the structure of the Programme, the mode of examination and the requirements to be met by a student before the award of the degree. Further that the requirements for the award of the degree under the programme entails various steps. These are, completion of coursework and the passing of comprehensive examinations; the preparation, defence and approval of a research proposal; clearance by the Institutional Review Board; the conduct of research and production of an original dissertation; the examination of the dissertation by appointed internal and external examiners; a successful public defence of the dissertation before duly constituted defence panel; the addressing of corrections directed at the defence; the publication of at least two articles from the dissertation research; processing of the grade and approval by the Senate following an audit confirming that the candidate has met all the requirements for the programme.
19. It is urged that the foregoing requirements, having been approved by the Regulator upon the University’s own application, are binding upon the University and the students and constitute conditions precedent to the conferment of the degree. It is also stated that the CUE Universities Standards and Guidelines, 2014 made pursuant to the Universities Act, prescribe the standards applicable to doctoral programmes, including the research, dissertation and examination requirements to be satisfied prior to the award of a doctoral degree.
20. Further that the respondent’s School of Graduate Studies (SGS) has a written process after examination schedule issued and communicated to the student which sets out the steps to be undertaken after the examination of a doctoral dissertation by the internal and external examiners and before a candidate may be cleared for graduation. Thus the examiners’ report, upon receipt, do not constitute results capable of release in the sense demanded by the petitioner and his Advocates, as under the University’s regulations, the results of a doctoral programme are only final upon approval by the Senate.
21. It is posited that the SGS publishes the doctoral defence dates in advance and owing to the commencement ceremony scheduled for 26 th September 2026, the first doctoral defence for the Fall 2026 Semester for the School of Humanities and Social Science under which the International Relation Programmes falls, is scheduled for 6 th October 2026 and the second for 24 th November 2026.
22. It follows that even on the most expedited track permissible under the University’s approved processes, the earliest date on which the petitioner’s public defence could take place is 6 th October 2026, after which correction, certification, printing and binding, library verification of the two publications, the grade change process and Senate approval must follow, rendering the petitioner’s demand to be in the graduation list incapable of compliance.
23. It is deposed that the petitioner was admitted into the Programme in September 2021 and whilst the respondent does not dispute that the programme is structured to run for five years, the scheduled duration of the programme is not a representation that every student in a cohort shall be conferred with the degree at the end of the stated period.
24. The respondent states that the petitioner completed the taught coursework and the comprehensive examinations, which results were approved by the respondent’s Board of Examiners in August 2023, whereafter he proceeded to the dissertation stage and on the 18 th January 2024, he selected his dissertation topic and was assigned Dr. Francis Khayundi as his internal Supervisor.
25. The petitioner submitted his final dissertation proposal on 30 th May 2025 and defended it on 15 th December 2025, undertook corrections and forwarded to the Institution Review Board which granted the request approval, whereupon he undertook and completed his fieldwork. Subsequently, he submitted the first draft of his discretion on 11 th June 2026, feedback was communicated to him by the Internal supervisor on 25 th June 2026 and by Professor Stig Hansen (External Supervisor) on 28 th June 2026. He submitted a second draft on 14 th July 2026 and a further updated draft on 23 rd July 2026.
26. Upon the petitioner’s supervisor’s being satisfied with the dissertation, on 28 th July 2026, transmitted to the SGS for onward transmission for examination by the internal and external examiners, with the Department settling on Prof. Maloba Edmond Were of Kisii University as the external examiner and proposing Dr. Joyce Muchemi and Dr. Hannah Macharia as the internal examiners.
27. Pursuant thereto, the University contracted the external examiners through an External Examiner Agreement dated 29 th July 2026 and by letters dated 3 rd August 2026 the SGS appointed two internal examiners in respect of the petitioner’s dissertation. The examination of the petitioner’s dissertation by the three examiners thereupon ensued and the reports were at the end of August 2026, received back within the University, whereupon the post examination process was triggered and is currently underway.
28. It is contended that the petitioner’s assertion that results have been released to the Department of International Relations and are being withheld confuses examiners reports with the final examination results, capable of being entered into the University’s academic records or presented to the Senate for approval. Upon receipt of the examiner’s report, the same are to be reviewed by the supervisors who then communicate to the petitioner what needs to be done, whereafter the petitioner is to address the issues raised and prepare for the public defence.
29. It is pleaded that the doctoral defence dates are published for all doctoral students for ease of planning, with allocation of faculty resources and staff with agreed dated circulated to ensure there is fair treatment for all students, with adequate time for preparations required and they are therefore not be adjusted to favour any one particular student.
30. The respondent admits to responding to the petitioner’s demand of 25 th August 2026 through letter dated 3 rd September 2026 wherein it explained that there were mandatory requirements within the Programme pending fulfilment, confirmed that the matter had been flagged for the immediate attention of the Associate Dean, School of Graduate Studies, for resolution and that the petitioner would receive formal communication on the status of his certification process with guidance on the pending next steps.
31. The states that the petitioner’s advocates wrote a further letter dated 7 th September 2026 demanding the release of the purported results by 5.00pm on 8 th September 2026 and threatening to institute proceedings, including proceedings to stop the graduation ceremony of 26 th September 2026.He thereafter filed the petition and applications herein on 8 th September 2026, barely four days after the University’s said response and before the internal process set in motion could run its full course.
32. It is pleaded that communication by the Registrar’s Department concerning applications for the 2026 graduation ceremony, informed prospective graduates that the graduation clearance process would include verification of completion of academic requirements and would culminate in the publication of a final graduation is, and encouraged them to complete any outstanding academic requirements. It cannot be construed as a representation that every applicant would graduate on 26 th September 2026 irrespective of whether the applicant had completed all academic requirements.
33. The respondent states that at the University’s Senate meeting to approve grades held on 9 th September 2026, the Vice Chancellor provided an update of the matter to the Senate, the members of the Senate, by a Resolution noted that the petitioner’s dissertation was still undergoing assessment and he had not completed the graduation requirements.
34. The respondent dismisses the claim on legitimate expectation of graduating on 26 th September 2026 on the basis that no express, clear and unambiguous promise or representation was ever made that the petitioner would graduate on that date; there cannot be legitimate expectation against clear provisions of the Charter and the approved requirements for the program.
35. According to the respondent, the petitioner is dissatisfied that the process has not moved at the pace he desires, which does not render itself to the constitutional relief sought herein. Allegations on the petitioner’s Internal Supervisor unverified, unsubstantiated and hearsay. Further that any grievance can be addressed within the University’s Supervisory reassignment and grievance mechanism.
36. It is hence urged that the proceedings have been filed prematurely and in disregard of the respondent’s Student’s Academic Grievance Process without justification and therefore the petition and application should be struck out. Concerning conservatory orders, it is pleaded that the orders sought is draconian and disproportionate to the petitioner’s individual grievance and would prejudice thousands of graduands and their families who bear no connection whatsoever to the petitioner’s complaints. It would not advance the petitioner’s completion of the programme, the earliest available doctoral defence date being 6 th October 2026.
37. In addition, the alternative prayer for the inclusion of the petitioner in technical graduation list is not conservatory in nature but mandatory order compelling the University to clear the petitioner for conferment of the degree before the conditions precedent have been satisfied and before the Senate has approved the results, thereby predetermine the petition and requiring the University to act ultra vires its Charter and the regulatory framework.
38. The respondent asserts that the balance of convenience and public interest tilts against the grant of the orders sought. The petitioner will suffer no irreparable harm as his academic process remains intact and is scheduled to proceed through the doctoral defence of 6 th October 2026 and the subsequent stages, whereas the orders sought would occasion prejudice to the respondent and the innocent third parties. It is urged that the application be dismissed with costs.
SUMMARY OF ORAL SUBMISSIONS
39. Mr Miller and Mr. Omari submitted on behalf of the petitioner. Mr. Miller substantively reiterates the facts and the grounds on the face of the application and as further deposed in the petitioner’s supporting affidavit. It was submitted that the respondent’s conduct violated the petitioner’s rights guaranteed under article 47 of the Constitution; that he had legitimate expectation of Graduating in September 2026 having been a student for five years and instead was met with silence with no explanation for his exclusion form the graduating list or requirements for him to graduate. He cited the decision in Mboya v Kenyatta University [2024] KEHC 11853 (KLR).
40. It is his position that the process undertaken by the respondent was prejudicial and unconstitutional. He add that the petitioner desires to be a member of his cohort and accordingly, seeks to stop the graduation or in the alternative that he be included in the graduation list.
41. Mr. Njoroge submitted on behalf of the respondent. He urged that the grievance raised by the petitioner does not warrant violation of University Act, University Charter and Regulation named by the CUE and that the Court was being asked to disregard the Act that govern the award of degrees/ academic performance. He further reiterated the position as stated in the respondent’s replying affidavit, that the petitioner has not met the mandatory requirement for him to graduate
42. Mr. Njoroge urged that the University had been supportive to the petitioner and that there were no complaints prior to 26 th August 2026. He has also not exhausted the Grievance handling procedure and there is no communications from him asking to be included in the graduation list. According to the counsel, no prejudice has been demonstrated, nor a prima facie case established or the issue of irreparable damages addressed. Regarding balance of convenience there are thousands of graduands who would be prejudiced. Reference to Kenyatta University & 2 Others v Elena D. Korir [2016] eKLR and Kisumu Constitutional Petition No. E022 of 2025; Omulindi Arunga Dave Harry -vs- The University of Nairobi & Another [2025] eKLR where courts have declined to stop graduation on inclusion in list at preliminary stages. It was urged that the respondents can support the petitioner but this cannot happen before the graduation.
Rejoinder
43. Counsel Omari told Court that the petitioner did not complain on before that all was on track and that there is no time to exhaust the procedures. Regarding the effect of the order to stop the graduation, he argued that every individual has legitimate expectation to fair administrative action. He further told court that damages are not appropriate as this is an issue of human dignity and the action erodes the dignity of the petitioner. He urged that the process of education must be determinable and that if orders are not granted the substratum of the petition be rendered nugatory.
ANALYSIS AND DETERMINATION
44. The issue that arises for determination is whether the Conservatory Orders should issue pending the hearing and determination of the Petition.
45. Conservatory orders were defined in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows:
“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
46. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
The public interest must be considered before grant of a conservatory order.”
47. Likewise, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the Court stated that:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.”
48. The Supreme Court discussed the nature of conservatory orders in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) as follows: -
“86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
49. For prima facie arguable case, the case of Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:
“…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.” .
50. In Dari Limited & 5 others v East African Development Bank [2023] KESC 90 (KLR) the court stated;
“32. On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not...”
51. Concerning public interest, the same was described by the Court of Appeal in Nairobi Civil Appeal No. 364 of 2017; Tom Mboya Odege vs. Edick Peter Omondi Anyanga & 2 others (2018) eKLR as follows:
“...Taken to its logical conclusion, it would mean that no costs of election petitions should be made by any court since they are matters of public interest. The appellant did not assist us with the definition of 'public interest', but Black's Law Dictionary refers to "Public Interest Litigation" as:
"a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected".
52. In Mogoa & 3 others v Kenya Methodist University & 4 others [2026] KEHC 6261 (KLR), the court stated as follows;
57.The Applicants contended that the Respondents breached their legitimate expectation to graduate by excluding their names from the graduation list without any justifiable cause.
58.In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others (supra) the Supreme Court dealt with the question of legitimate explanation. It held that: -“Legitimate expectation would arise when a body, - by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation. "
59.A legitimate expectation requires a clear promise by a public body. The University promised graduation contingent on meeting specified conditions.
60.Since the Applicants did not meet the requirements set in the Respondents’ Academic Policy and Hand Book, precisely by meeting all academic and financial obligations, no legitimate expectation to graduate arose.
53. Mrima J in the decision in Murunga Verah Odilia v Kenyatta University [2021] KEHC 13207 (KLR) noted as follows;
31. Further the twin orders sought have adverse effects on the other students and graduands who have no share in the petitioner’s tribulation. An order stopping the entire graduation ceremony at this stage is improper. Such prayer cannot be issued at this stage.
54. In Harry v University of Nairobi & another; Commission for University Education (Interested Party) [2025] KEHC 18993 (KLR) the court held;
51.Universities in Kenya are vested with statutory academic autonomy which is both substantive and purposive. This autonomy is not decorative. It is the legal and functional space within which institutions of higher learning design curricula, prescribe assessment criteria, evaluate performance and determine whether a learner has att
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2. The application is seeking for orders that:
1. Spent
2. Pending the inter partes hearing of this application, this Honourable Court be pleased to issue a conservatory order suspending and restraining the respondent from proceeding with the graduation ceremony scheduled for 26 th September 2026, pending the inter partes hearing and determination of this application, or in the alternative, the respondent does include the petitioner in the final graduation list for graduation on 26 th September 2026.
3. Pending the hearing and determination of the petition, this Honourable Court be pleased to issue a conservatory order suspending and restraining the respondent from proceeding with the graduation ceremony scheduled for 26 th September 2026, or in the alternative, the respondent does include the petitioner in the final graduation list for graduation on 26 th September 2026.
4. The costs of this application be in the cause.
5. This Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances.
3. The application is predicated upon the grounds that, the petitioner is a PhD student in International Relations at the respondent University having been admitted in September 2021, who has complied with all academic requirements, corrections and feedback communicated to him by the respondent.
4. The petitioner submitted his dissertation for examination and has continued to make submissions and corrections required to advance the dissertation to defence stage. On 16 th July 2026, the respondent’s internal supervisor acknowledged receipt of the corrected dissertation and confirmed that he, together with Professor Stig Hansen, were reviewing it before proceeding to the next step.
5. The petitioner subsequently continued to comply with the feedback received and submitted a further updated dissertation on 23 rd July 2026. He later established that the internal and external examiners reports had been received by the respondent. However, the respondent has failed to communicate the dissertation examination outcome or indicate any outstanding requirements necessary for progression to the next stage.
6. The respondent has an imminent graduation process which includes verification of academic requirements and publication of a final graduation list. Unless this court intervenes, there is a real risk that the petitioner will be excluded from consideration for graduation, thereby rendering the petition nugatory.
7. The respondent’s actions violates/threatens to violate the petitioner’s rights under article 47 of the Constitution and the Fair Administrative Action Act and legitimate expectation that his academic and examination process shall be administered fairly, transparently and expeditiously in accordance with the respondent’s applicable academic framework.
8. In the supporting affidavit, the petitioner adds that the PhD programme is scheduled to run for a period of five years and the cohort admitted in September 2021 was scheduled to complete the programme and graduate in September 2026. Further that he successfully completed the requisite coursework and examinations, following which his results were approved by the respondent’s Board of Examiners in August and he proceeded to the Dissertation stage. On 18 th January 2024, he selected his dissertation topic and was assigned Dr. Francis Khayundi as his internal supervisor.
9. The petitioner deposes that he submitted his final dissertation proposal on 30 th May 2025 and following approval on 15 th December 2025, undertook the corrections and other requirements communicated by the respondent. The corrected version was subsequently forwarded to the relevant Institution Review Boad, received the requisite approval and he thereafter undertook and completed his fieldwork.
10. On 11 th June 2026, he submitted his first draft of his dissertation to his internal supervisor and Professor Stig Hansen for review and thereafter received and addressed feedback communicated to him. On 14 th July 2026, he submitted a further corrected dissertation draft to Professor Stig Hansen, copying Dr. Francis Khayundi and requested guidance on scheduling his defence.
11. On 16 th July 2026, Dr. Khayundi acknowledged receipt of his work and informed him that he and Professor Stig Hansen were reviewing it before proceeding to the next step. He thereafter continued addressing the feedback communicated and on 23 rd July 2026, forwarded a further update version to Dr. Khayundi following his suggestions.
12. The petitioner reiterates that as at 31 st August 2026, he established that both the internal and external Examiners reports had been received by the Respondent and that it failed to communicate the outcome. On 5 th August 2026, he received from Dr. Khayundi a communication issued by the Respondent’s registrar’s department concerning the final extension for applications for the 2026 Graduation Ceremony. The said communications stated that the University’s graduation clearance process would include verification of completion of academic requirements and would culminate in publication of the final graduation list.
13. Concerned by the continued uncertainty, he sent a formal demand dated 26 th August 2026 to the respondent requiring it to address the delay and provide clarity concerning the status and next steps in his academic process. The respondent responded on 3 rd September 2026, referring to mandatory requirement and pending next steps in his academic process. It further stated that the matter had been referred to the Associate Dean, School of Graduate Studies for immediate attention.
14. The petitioner claims that despite the foregoing, the respondent did not identify the alleged mandatory requirements, communicate the outcome of the dissertation or provide a definite timeline within which his academic process would proceed. On 4 th September 2026, Dr. Khayundi informed him that his dissertation was still undergoing examination and that the outcome would determine his eligibility to proceed to the next stage. He was further informed that the process was being handled by the School of Graduate Students and that progression to the next stage would only occur upon receipt and communication of examination results to the Department.
15. It is the petitioner’s case that he has not received any further communication and he is hence faced with an unresolved academic process. Further that the graduation ceremony is schedule for 26 th September 2026, therefore urgent that the court intervenes to avoid rendering the petition nugatory.
SUMMARY OF THE RESPONDENT’S RESPONSE
16. The respondent opposed the application through replying affidavit sworn by Jeremiah Koshal on 11 th September 2026. It is contended that the application proceeds from an erroneous premise, that the receipt of dissertation examination reports from the appointed examiners is the same as the completion of the doctoral examination process and that the petitioner is thereupon entitled to be declared to have completed the programme and to be included in the final graduation list for graduation ceremony on 26 th September 2026 which is contrary to the proved structure of the programme, the respondent’s charter and the applicable regulatory framework. To wit the United States International University, African Charter 2022; the Universities Act, No. 42 of 2012 and the Standards and Guidelines issued by the Commission for University Education (CUE).
17. It is deposed that under the Charter, the University Senate is in charge of all academic matters of the University and is the organ mandated to among others, oversee all the academic programmes, quality and character of the institution and continuously review academic policy and performance to decide which persons have attained the prescribed standards of proficiency and are therefore fit to be granted a degree, and to approve the results of candidates prior to the conferment of any degree.
18. It is further deposed that the PhD in international Relations programme was approved by CUE upon application made by the University, which approval prescribed among others, the structure of the Programme, the mode of examination and the requirements to be met by a student before the award of the degree. Further that the requirements for the award of the degree under the programme entails various steps. These are, completion of coursework and the passing of comprehensive examinations; the preparation, defence and approval of a research proposal; clearance by the Institutional Review Board; the conduct of research and production of an original dissertation; the examination of the dissertation by appointed internal and external examiners; a successful public defence of the dissertation before duly constituted defence panel; the addressing of corrections directed at the defence; the publication of at least two articles from the dissertation research; processing of the grade and approval by the Senate following an audit confirming that the candidate has met all the requirements for the programme.
19. It is urged that the foregoing requirements, having been approved by the Regulator upon the University’s own application, are binding upon the University and the students and constitute conditions precedent to the conferment of the degree. It is also stated that the CUE Universities Standards and Guidelines, 2014 made pursuant to the Universities Act, prescribe the standards applicable to doctoral programmes, including the research, dissertation and examination requirements to be satisfied prior to the award of a doctoral degree.
20. Further that the respondent’s School of Graduate Studies (SGS) has a written process after examination schedule issued and communicated to the student which sets out the steps to be undertaken after the examination of a doctoral dissertation by the internal and external examiners and before a candidate may be cleared for graduation. Thus the examiners’ report, upon receipt, do not constitute results capable of release in the sense demanded by the petitioner and his Advocates, as under the University’s regulations, the results of a doctoral programme are only final upon approval by the Senate.
21. It is posited that the SGS publishes the doctoral defence dates in advance and owing to the commencement ceremony scheduled for 26 th September 2026, the first doctoral defence for the Fall 2026 Semester for the School of Humanities and Social Science under which the International Relation Programmes falls, is scheduled for 6 th October 2026 and the second for 24 th November 2026.
22. It follows that even on the most expedited track permissible under the University’s approved processes, the earliest date on which the petitioner’s public defence could take place is 6 th October 2026, after which correction, certification, printing and binding, library verification of the two publications, the grade change process and Senate approval must follow, rendering the petitioner’s demand to be in the graduation list incapable of compliance.
23. It is deposed that the petitioner was admitted into the Programme in September 2021 and whilst the respondent does not dispute that the programme is structured to run for five years, the scheduled duration of the programme is not a representation that every student in a cohort shall be conferred with the degree at the end of the stated period.
24. The respondent states that the petitioner completed the taught coursework and the comprehensive examinations, which results were approved by the respondent’s Board of Examiners in August 2023, whereafter he proceeded to the dissertation stage and on the 18 th January 2024, he selected his dissertation topic and was assigned Dr. Francis Khayundi as his internal Supervisor.
25. The petitioner submitted his final dissertation proposal on 30 th May 2025 and defended it on 15 th December 2025, undertook corrections and forwarded to the Institution Review Board which granted the request approval, whereupon he undertook and completed his fieldwork. Subsequently, he submitted the first draft of his discretion on 11 th June 2026, feedback was communicated to him by the Internal supervisor on 25 th June 2026 and by Professor Stig Hansen (External Supervisor) on 28 th June 2026. He submitted a second draft on 14 th July 2026 and a further updated draft on 23 rd July 2026.
26. Upon the petitioner’s supervisor’s being satisfied with the dissertation, on 28 th July 2026, transmitted to the SGS for onward transmission for examination by the internal and external examiners, with the Department settling on Prof. Maloba Edmond Were of Kisii University as the external examiner and proposing Dr. Joyce Muchemi and Dr. Hannah Macharia as the internal examiners.
27. Pursuant thereto, the University contracted the external examiners through an External Examiner Agreement dated 29 th July 2026 and by letters dated 3 rd August 2026 the SGS appointed two internal examiners in respect of the petitioner’s dissertation. The examination of the petitioner’s dissertation by the three examiners thereupon ensued and the reports were at the end of August 2026, received back within the University, whereupon the post examination process was triggered and is currently underway.
28. It is contended that the petitioner’s assertion that results have been released to the Department of International Relations and are being withheld confuses examiners reports with the final examination results, capable of being entered into the University’s academic records or presented to the Senate for approval. Upon receipt of the examiner’s report, the same are to be reviewed by the supervisors who then communicate to the petitioner what needs to be done, whereafter the petitioner is to address the issues raised and prepare for the public defence.
29. It is pleaded that the doctoral defence dates are published for all doctoral students for ease of planning, with allocation of faculty resources and staff with agreed dated circulated to ensure there is fair treatment for all students, with adequate time for preparations required and they are therefore not be adjusted to favour any one particular student.
30. The respondent admits to responding to the petitioner’s demand of 25 th August 2026 through letter dated 3 rd September 2026 wherein it explained that there were mandatory requirements within the Programme pending fulfilment, confirmed that the matter had been flagged for the immediate attention of the Associate Dean, School of Graduate Studies, for resolution and that the petitioner would receive formal communication on the status of his certification process with guidance on the pending next steps.
31. The states that the petitioner’s advocates wrote a further letter dated 7 th September 2026 demanding the release of the purported results by 5.00pm on 8 th September 2026 and threatening to institute proceedings, including proceedings to stop the graduation ceremony of 26 th September 2026.He thereafter filed the petition and applications herein on 8 th September 2026, barely four days after the University’s said response and before the internal process set in motion could run its full course.
32. It is pleaded that communication by the Registrar’s Department concerning applications for the 2026 graduation ceremony, informed prospective graduates that the graduation clearance process would include verification of completion of academic requirements and would culminate in the publication of a final graduation is, and encouraged them to complete any outstanding academic requirements. It cannot be construed as a representation that every applicant would graduate on 26 th September 2026 irrespective of whether the applicant had completed all academic requirements.
33. The respondent states that at the University’s Senate meeting to approve grades held on 9 th September 2026, the Vice Chancellor provided an update of the matter to the Senate, the members of the Senate, by a Resolution noted that the petitioner’s dissertation was still undergoing assessment and he had not completed the graduation requirements.
34. The respondent dismisses the claim on legitimate expectation of graduating on 26 th September 2026 on the basis that no express, clear and unambiguous promise or representation was ever made that the petitioner would graduate on that date; there cannot be legitimate expectation against clear provisions of the Charter and the approved requirements for the program.
35. According to the respondent, the petitioner is dissatisfied that the process has not moved at the pace he desires, which does not render itself to the constitutional relief sought herein. Allegations on the petitioner’s Internal Supervisor unverified, unsubstantiated and hearsay. Further that any grievance can be addressed within the University’s Supervisory reassignment and grievance mechanism.
36. It is hence urged that the proceedings have been filed prematurely and in disregard of the respondent’s Student’s Academic Grievance Process without justification and therefore the petition and application should be struck out. Concerning conservatory orders, it is pleaded that the orders sought is draconian and disproportionate to the petitioner’s individual grievance and would prejudice thousands of graduands and their families who bear no connection whatsoever to the petitioner’s complaints. It would not advance the petitioner’s completion of the programme, the earliest available doctoral defence date being 6 th October 2026.
37. In addition, the alternative prayer for the inclusion of the petitioner in technical graduation list is not conservatory in nature but mandatory order compelling the University to clear the petitioner for conferment of the degree before the conditions precedent have been satisfied and before the Senate has approved the results, thereby predetermine the petition and requiring the University to act ultra vires its Charter and the regulatory framework.
38. The respondent asserts that the balance of convenience and public interest tilts against the grant of the orders sought. The petitioner will suffer no irreparable harm as his academic process remains intact and is scheduled to proceed through the doctoral defence of 6 th October 2026 and the subsequent stages, whereas the orders sought would occasion prejudice to the respondent and the innocent third parties. It is urged that the application be dismissed with costs.
SUMMARY OF ORAL SUBMISSIONS
39. Mr Miller and Mr. Omari submitted on behalf of the petitioner. Mr. Miller substantively reiterates the facts and the grounds on the face of the application and as further deposed in the petitioner’s supporting affidavit. It was submitted that the respondent’s conduct violated the petitioner’s rights guaranteed under article 47 of the Constitution; that he had legitimate expectation of Graduating in September 2026 having been a student for five years and instead was met with silence with no explanation for his exclusion form the graduating list or requirements for him to graduate. He cited the decision in Mboya v Kenyatta University [2024] KEHC 11853 (KLR).
40. It is his position that the process undertaken by the respondent was prejudicial and unconstitutional. He add that the petitioner desires to be a member of his cohort and accordingly, seeks to stop the graduation or in the alternative that he be included in the graduation list.
41. Mr. Njoroge submitted on behalf of the respondent. He urged that the grievance raised by the petitioner does not warrant violation of University Act, University Charter and Regulation named by the CUE and that the Court was being asked to disregard the Act that govern the award of degrees/ academic performance. He further reiterated the position as stated in the respondent’s replying affidavit, that the petitioner has not met the mandatory requirement for him to graduate
42. Mr. Njoroge urged that the University had been supportive to the petitioner and that there were no complaints prior to 26 th August 2026. He has also not exhausted the Grievance handling procedure and there is no communications from him asking to be included in the graduation list. According to the counsel, no prejudice has been demonstrated, nor a prima facie case established or the issue of irreparable damages addressed. Regarding balance of convenience there are thousands of graduands who would be prejudiced. Reference to Kenyatta University & 2 Others v Elena D. Korir [2016] eKLR and Kisumu Constitutional Petition No. E022 of 2025; Omulindi Arunga Dave Harry -vs- The University of Nairobi & Another [2025] eKLR where courts have declined to stop graduation on inclusion in list at preliminary stages. It was urged that the respondents can support the petitioner but this cannot happen before the graduation.
Rejoinder
43. Counsel Omari told Court that the petitioner did not complain on before that all was on track and that there is no time to exhaust the procedures. Regarding the effect of the order to stop the graduation, he argued that every individual has legitimate expectation to fair administrative action. He further told court that damages are not appropriate as this is an issue of human dignity and the action erodes the dignity of the petitioner. He urged that the process of education must be determinable and that if orders are not granted the substratum of the petition be rendered nugatory.
ANALYSIS AND DETERMINATION
44. The issue that arises for determination is whether the Conservatory Orders should issue pending the hearing and determination of the Petition.
45. Conservatory orders were defined in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows:
“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
46. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:
“a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
The public interest must be considered before grant of a conservatory order.”
47. Likewise, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the Court stated that:
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….
30. The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.
31. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.”
48. The Supreme Court discussed the nature of conservatory orders in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) as follows: -
“86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”
49. For prima facie arguable case, the case of Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:
“…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.” .
50. In Dari Limited & 5 others v East African Development Bank [2023] KESC 90 (KLR) the court stated;
“32. On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not...”
51. Concerning public interest, the same was described by the Court of Appeal in Nairobi Civil Appeal No. 364 of 2017; Tom Mboya Odege vs. Edick Peter Omondi Anyanga & 2 others (2018) eKLR as follows:
“...Taken to its logical conclusion, it would mean that no costs of election petitions should be made by any court since they are matters of public interest. The appellant did not assist us with the definition of 'public interest', but Black's Law Dictionary refers to "Public Interest Litigation" as:
"a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected".
52. In Mogoa & 3 others v Kenya Methodist University & 4 others [2026] KEHC 6261 (KLR), the court stated as follows;
57.The Applicants contended that the Respondents breached their legitimate expectation to graduate by excluding their names from the graduation list without any justifiable cause.
58.In Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others (supra) the Supreme Court dealt with the question of legitimate explanation. It held that: -“Legitimate expectation would arise when a body, - by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation. "
59.A legitimate expectation requires a clear promise by a public body. The University promised graduation contingent on meeting specified conditions.
60.Since the Applicants did not meet the requirements set in the Respondents’ Academic Policy and Hand Book, precisely by meeting all academic and financial obligations, no legitimate expectation to graduate arose.
53. Mrima J in the decision in Murunga Verah Odilia v Kenyatta University [2021] KEHC 13207 (KLR) noted as follows;
31. Further the twin orders sought have adverse effects on the other students and graduands who have no share in the petitioner’s tribulation. An order stopping the entire graduation ceremony at this stage is improper. Such prayer cannot be issued at this stage.
54. In Harry v University of Nairobi & another; Commission for University Education (Interested Party) [2025] KEHC 18993 (KLR) the court held;
51.Universities in Kenya are vested with statutory academic autonomy which is both substantive and purposive. This autonomy is not decorative. It is the legal and functional space within which institutions of higher learning design curricula, prescribe assessment criteria, evaluate performance and determine whether a learner has att
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