1. The petitioners are students at the respondent institution. They all enrolled in a course called the Diploma in Supply Chain Management in 2020. According to their admission letters, the course was supposed to take two years, after which they would graduate and receive a diploma. However, contrary to their expectations, the course lasted much longer than they had anticipated, due to changes allegedly made by the respondent. These changes included making the course subject to Kenya National Examinations Council (KNEC) examinations and shifting the school calendar from semesters to trimesters. In 2024, just as they believed they were about to graduate, the petitioners found out that they would not graduate, on the grounds that they had not passed the KNEC exams. The university proposed transferring their credits to a different course, subject to their written application and payment of Kes. 72,000 within 24 hours. The petitioners were told that if they accepted, they could graduate in 2025 with a Diploma in Procurement. They argue that the notice was too short and deliberately aimed to disenfranchise them, destroy their educational aspirations, and end their pursuit of a Diploma in Supply Chain Management.
2. Aggrieved by the said decision, the petitioners filed the instant petition. Through this petition, the petitioners seek the following orders:
a) A declaration that the respondent's actions and omissions against the petitioners are unconstitutional;
b) A declaration that the petitioners are eligible for graduation;
c) An order that the respondent herein be compelled to graduate and/or include the petitioners on the graduation list slated for 5th December 2024;
d) An award of general damages in a lump sum of Kes 250,000 for each Petitioner; and
e) Costs of and/or incidental to these proceedings.
3. The petitioners state that they were admitted to the Technical University of Mombasa to pursue a diploma in Supply Chain Management through admission letters dated 23rd August 2020. They were told upon admission that the course would take two years. However, it took them four years to complete the program due to the respondent's actions, as stated above.
4. They stated in the petition that, as they were nearing the completion of their studies, the respondent, through its staff, verbally informed them that they would need to undertake KNEC examinations before graduating. They argue that such a requirement was not specified in their respective admission letters and that they were aware the respondent had its own internal examination system.
5. They stated that after writing to their heads of department and the vice chancellor, they were called for a meeting during which they were advised that the KNEC exams were optional.
6. Upon clearing their studies in August 2023, the respondent issued them recommendation letters for industrial attachment, affirming that they had cleared the final examinations. Subsequently, they were issued with provisional transcripts, "to affirm that we have cleared our studies pending final graduation."
7. They were, however, surprised to find that they were not listed on the provisional graduation list posted on the portal. Their names were absent. Upon pressing the university authorities for an explanation, they were told they would not graduate because they did not take the KNEC exams, which was surprising to them as they had been informed it was optional.
8. They argued that the university’s decision was a violation of their constitutional rights and contradicted their legitimate expectations that they would graduate after completing the course and passing the required units. The petitioners, therefore, prayed for orders compelling the University to include them on the graduation list, as they would suffer irreparably if they were not allowed to graduate. I have already listed their specific prayers above.
9. Upon being served with the application, the respondent, through its learned counsel, Mr Hamisi Mwadzogo, filed a replying affidavit sworn by Dr Samson Kitheka on 28th November 2024. In his affidavit, Dr Kitheka accused the petitioners of dishonesty and non-disclosure of material facts. He stated that the applicants approached the Court with unclean hands and were therefore undeserving of the remedies sought.
10. He deposed that the petitioners did not fulfil the university requirements and therefore could not graduate. He stated that, due to the COVID-19 pandemic, the petitioners actually reported in 2021, not 2020, as alleged. He averred that the course requirements for the diploma program the petitioners were undertaking were explained to them during their orientation.
11. He accused the petitioners of failing their examinations, and some of them of engaging in examination malpractice. Dr Kitheka stated that other classmates of the petitioners would be graduating.
12. Lastly, he deposed that allowing the applicants to graduate when they are not qualified would not be in their best interest. He, therefore, urged that the petition be dismissed.
13. The petition was heard through viva voce evidence. I will summarize the witnesses' evidence below. The petitioners had two witnesses, while the respondent called only one.
14. The first witness for the petitioners was Joel Collins Aluku. Mr Aluku testified that he was seeking justice both for himself and for the other petitioners. He relied on his written deposition and witness statement as his evidence-in-chief. He stated that he was admitted to the Technical University of Mombasa to undertake a diploma course in Supply Chain Management, as indicated by an admission letter dated 23rd August 2020. He testified that they were informed the course would take two years to complete. However, it actually took them four years due to complications caused by the respondent, who introduced a trimester system and extended holidays. In his final year, the respondent verbally required them to sit for the KNEC examinations before graduation. He argued that the admission letter did not specify such a requirement. In his opinion, the respondent had an internal examination system appropriate to the course they studied.
15. He stated that during a meeting convened after they wrote a letter, they were informed that KNEC examinations would be optional. After sitting their examinations in August 2023, the respondent issued them recommendation letters for industrial attachment, confirming that they had passed the examinations. Subsequently, a provisional transcript was issued, which, in his view, affirmed that they had completed their studies and were awaiting graduation. To their utter shock, their names were missing from a copy of the graduation list posted on the university portal.
16. Upon incessantly asking for reasons for not being allowed to graduate, they were informed that this was because they had not taken the KNEC examinations. Subsequently, they were informed via WhatsApp that they could graduate in 2025 if they filed a certain form, paid Kes 72,000.00 within 24 hours, and transferred their credits from the Diploma in Supply Chain Management to the Diploma in Procurement. He saw malice in the respondent's conduct.
17. When cross-examined by Mr Mwadzogo, Mr Aluku denied that they failed to use the internal dispute resolution mechanism. He stated that they first discussed the matter with the Department of Management Science. No assistance was provided by that unit. They then went to the Dean's office but did not receive help. The next step was to see the Deputy Vice Chancellor (DVC), Academic Research and Extension. He admitted that they had never met him. He last saw the DVC in 2021. He acknowledged that they have not seen him since then. He also admitted that they did not approach the vice chancellor and that they had not exhausted all the internal dispute resolution mechanisms.
18. When shown the minutes indicating their agreement to be examined by KNEC, he stated that the minutes were produced after they filed the petition. However, he admitted that he attempted KNEC examinations, as did other petitioners. He denied engaging in examination malpractice.
19. Upon re-examination, he stated that the respondent violated their rights. The Court was therefore best equipped to address their grievances. He testified that he took KNEC examinations because they believed it would be beneficial, as employers would recognize it. He further testified that they moved from class to class and that they passed all internal examinations. Mr Aluku affirmed that he was never subjected to any disciplinary measures for the alleged examination malpractice and that he progressed through classes without interruption, which he viewed as evidence that he passed all his examinations and was entitled to graduate.
20. Mr Aluku further testified that he wasn’t given a reason for not graduating, nor was there any formal communication, apart from a WhatsApp message. He prayed that they be allowed to graduate and be issued certificates, as they are struggling.
21. The second witness for the petitioners was Nancy Mwongeli Wambua. She relied on the witness statement dated 18th February 2026 as her evidence in chief. When cross-examined by Mr Mwadzogo, Ms Wambua stated categorically that she wasn’t interested in talking to the university. She stated that she wished to be recognised and to practice what she had studied.
22. The respondent called a witness, Dr Samson Kitheka, who is the Dean of the School of Business Administration. He stated that he had previously served as the chairman of the Department of Management Science. He relied on his replying affidavit, sworn on 28th November 2024, as his evidence in chief.
23. In the affidavit sworn on 28th November 2024, he stated that the petitioners were dishonest, guilty of material non-disclosure, and had approached the Court with unclean hands. He argued that the petitioners did not meet the requirements for graduation, and therefore, the respondent could not “illegally graduate them”. He claimed that it was not true that the petitioners had been at the Technical University of Mombasa for 4 years, as, due to COVID-19, they commenced their studies in January 2021. At the time of their admission, the requirements for a Diploma in Supply Chain Management were explained to them. Further clarification was provided during the consultative meeting held “around the 30th July 2021.”
24. He stated that the petitioners were aware all along that they would sit KNEC examinations and that they did so. He deprecated the petitioners' conduct for attempting to mislead the Court into believing they had not sat the said examinations. Mr Kitheka claimed that Mr Aluku was caught engaging in examination malpractice, leading to the cancellation of his results by KNEC. He asserted that the respondent was acting in the petitioners' best interests by seeking to have those who were unable to pass the KNEC examinations switch their course to the Diploma in Procurement Management, which is internally examined.
25. When cross-examined by Mr Wafula, he admitted that Joel Collins Aluku’s letter of admission does not mention KNEC nor the Kenya Institute of Supplies Management. However, he stated that students were informed about KNEC examinations during orientation. He could not, however, specify when exactly the orientation was conducted. He testified that the meeting held on 30th July 2021 was not initiated by the petitioners, but was a response to the need to explain the KNEC requirements to them. The outcome of the meeting was summarized in a notice sent to all students.
26. He testified that the WhatsApp message on changing course was a reminder of previous deliberations. Though conceding that the course the students were admitted to was a 2-year course, he admitted that they in fact studied for 3 years, with 3 semesters per year. The change notwithstanding, no amended letter was produced.
27. Mr Kitheka admitted that the students had transcripts. In his opinion, transcripts can be obtained even if a student has failed. He testified that passing the KNEC examination was mandatory, although this was not specified in the admission letter. The witness stated that the petitioners were prevented from graduating. However, no official letter confirming this was issued to them or their parents. He acknowledged that students were advised they could transfer their credits to a different course. This was done after they had completed their industrial attachment. The change, however, was to be made within 72 hours and was not free. Mr Kitheka conceded that they had not produced university policies.
28. When reexamined by Mr Mwadzogo, Mr Kitheka stated that students are assigned to various universities by KUCCPS. He noted that not all course details are included in the admission letter. He explained that they did not decide to have the students undertake KNEC examinations; rather, KNEC examinations were a requirement of the course. He testified that the students could progress from one class to another as they passed internal examinations. He firmly stated that a student could not graduate unless they met the course requirements.
29. Upon the conclusion of the hearing, the Court directed the parties to file written submissions on 16th July 2025. The parties also made oral submissions. The petitioners filed written submissions dated 18th April 2025. The respondent filed no written submissions; the submissions dated 22nd November 2024, filed on 12th May 2025, were in respect of HCCA NO E018 of 2024, Technical University of Mombasa v Milmar Marketing & Management.
30. In his submissions, counsel for the petitioners urged that the issues for determination were the following:
i. Whether the Respondent violated the petitioner’s constitutional rights;
ii. Whether there was a legitimate expectation on the part of the petitioners that they would graduate upon passing the internal examinations; and
iii. Whether the doctrine of exhaustion applies in this matter.
31. It was argued that the respondent made a decision affecting the petitioners but failed to communicate with them, especially by not formally amending the admission letter, adding more years of study, changing the school terms, introducing the KNEC examinations as a mandatory requirement, and omitting the petitioners' names from the graduating list, without any formal communication or constitutionally valid reasons. This violated Article 47(1) of the Constitution. Reliance was placed on the decision of Mugambi, J, in the case of Ougo v Regional Institute of Business Management & 4 others [2024] KEHC 5787 (KLR).
32. Mr Wafula submitted that the rights of the petitioners to dignity were violated insofar as they were misled about the graduation requirements, required to pay additional fees, ordered to transfer courses under duress, omitted from the graduation list and dismissed as weak students. All these amounted to a violation of their right to dignity under Article 28 of the Constitution of Kenya. In support of this, counsel relied on the Lungwe v Maseno University & another [2023] KEHC 17752 (KLR).
33. It was urged that the students were subjected to psychological torture and degrading treatment and were denied the right to education under Article 43(1)(f) of the Constitution of Kenya. The respondent’s action also breached the provisions of the Universities Act.
34. It was argued that, having passed the internal examinations, the petitioners had legitimate expectations of graduating, an expectation supported by the fact that they were issued transcripts. This expectation was breached by the respondent through its inconsistent policies and its refusal to accede to the petitioners' requests. Reliance was placed on the case of Violet Ombaka Otieno & 13 others v Moi University [2019] KEHC 4404 (KLR).
35. It was submitted that, given the conduct of the respondent, the exhaustion of the internal mechanism was not feasible.
36. Counsel therefore prayed that:-
i. I find the conduct of the respondent to be violative of Articles 27, 28, 29, 43 and 47 of the Constitution;
ii. Declare that the petitions are eligible for graduation and to graduate them or otherwise issue them with a Diploma certificate;
iii. Award the petitioners Kes. 250,000 each as general damages; and
iv. Grant them costs of the suit.
37. In his oral submissions, Mr Mwadzogo, learned counsel for the respondent, urged the Court to look at the written submissions of 5th May 2025. He urged that there were 3 issues this Court should consider. As earlier indicated, no such submissions are in the portal.
38. It was urged that the petitioners were placed in the respondent by KUCCPS. The course requirements were not dictated by it. Mr Mwadzogo submitted that the 1st Petitioners did not have the authority to plead on behalf of his co-petitioners.
39. Mr Mwadzogo argued that the petitioners did not fully utilize all available mechanisms before approaching Court, despite evidence of their awareness during the trial. Counsel, therefore, submitted that the petition be dismissed. It was emphasized that the petitioners should have exhausted all internal channels prior to seeking the court's intervention.
40. Regarding costs, Mr Mwadzogo prays that each party should bear its own costs.
41. I have reviewed the petition, the responses thereto, as well as the testimonies of the parties' witnesses and the oral and written submissions from the parties’ counsel. The petitioners are students who believe their rights were infringed by the respondent and have approached this Court seeking redress. Conversely, the respondent denies any breach of the petitioners' rights and argues that any possible breaches should have been addressed through the respondent’s internal mechanisms before the petition was filed.
42. In my view, the issues for determination are
i. Whether the rights of the petitioners were violated;
ii. Whether the petitioners had legitimate expectations which were violated by the respondent;
iii. Whether the doctrine of exhaustion bars the petitioners from approaching this Court without first exhausting all the internal dispute resolution mechanisms.
43. In the letter of admission dated 23rd August 2020, the 1st Petitioner was admitted to the respondent to study a Diploma Course in Supply Chain Management. The first paragraph of the said letter stated that:
“This is a 2-year program offered in the Department of Management Science at the main campus, Tudor, Mombasa.”
The letter in question was similar to the ones the other petitioners received. As conceded during the trial, the admissions letter did not state that the course was KNEC examinable. It is also evident that the petitioners were made to believe that their course would last 2 years.
44. I note that upon admissions, there was a meeting between the students and the respondent during which it was communicated to them that the Diploma Course in Supply Chain Management was a KNEC examinable course. The minutes of the meeting, held on 30th July 2021 at 9 am, shows that the students' concerns were addressed. The attendance sheet has the 1st petitioner’s putative signature against his name.
45. The petitioners did in fact sit for KNEC examinations as evidenced by the transcripts attached to the affidavit of Dr Kitheka. Mr Aluku testified that he sat for the said examination as he was informed that it would improve his career prospects. The transcripts show that although he did not pass some units, he was nevertheless allowed to transition from class to class. The respondent’s witness explained that this was possible because there were both internal examinations, which the petitioners had to pass to progress to the next module, and KNEC examinations, which a candidate could retake later.
46. It seems to me that the respondent failed to clearly communicate what the course involved in the admissions letter, or at least at the start of the course. Certainly, the meeting held on 30th July 2021 bespeaks requirements made on the fly, haphazard communication, and little regard for the welfare of the students involved. Their obligations were altered without notice, without proper consultation, and in a manner most detrimental to them.
47. Under Article 47 of the Constitution, every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The person affected by an administrative action must, under section 47 (2) of the Constitution, be given written reasons for the action. The wording of Article 47(2) of the Constitution is couched in mandatory terms; there can be deviation from the said requirement. It is clear, beyond peradventure, that no written reasons were given to the petitioners for the change in the length of their course, the introduction of the trimester system and the requirement that they would have to sit KNEC examinations.
48. That being the case, I am of the view that the Constitutional rights of the petitioners were violated. I am guided by the decision of LN Mugambi, J, in Ougo v Regional Institute of Business Management & 4 others [2024] KEHC 5787 (KLR). In the said case, the learned judge stated as follows:
“It is my finding that the conduct of both the 1st and 2nd Respondent towards the Petitioner violated his right to fair administrative action in that regard. It was not expeditious, efficient, reasonable and procedurally fair. In fact, the 2nd Respondent contravened Section 4(2) of the Fair Administrative Review Act as read with Article 47(2) of the Constitution for failing to give the Petitioner written reasons for the adverse administrative action it took against him. I find that the 1st and 2nd Respondents' action against the Petitioner was frustrating and utterly unjustifiable. The Petitioner’s rights under Article 47 were violated by the 1st and 2nd Respondents. I find no fault in the 3rd, 4th and 5th Respondents.”
49. The petitioners were inexplicably excluded from the graduation list, even after receiving provisional transcripts and undertaking industrial attachment. In the pleadings filed by the respondent, and during the course of the hearing, they were dismissed as weak students. The treatment they were subjected to amounts to a violation of their right to dignity. They were not treated with respect, nor was their worth and value as human beings with hopes and expectations appreciated. The perfunctory, matter-of-fact dismissal of their concerns and the oppressive suggestion that they could transfer units to a different course, pay Kes 72,000, and wait another year to graduate speak volumes about the respondent.
50. In the case of Violet Ombaka Otieno & 13 others v Moi University [2024] KEHC 4404 (KLR), P Nyamweya, J (as she then was) stated that:
“46. There is no specified role or responsibility placed on the students by the said Rules, save to present themselves for, and sit for the examinations after meeting all the necessary requirements. It is therefore evident that any lapses in the release of examination results once the students have completed their part can only be attributed to the Respondent. The Respondent’s allegations about the students not having marks was also sufficiently rebutted by the evidence of transcripts brought by the Petitioners showing allocation of marks by the Respondents to the alleged subject units.
47. As a result of the delayed entry of the Petitioners’ marks and results, this Court finds that this not only adversely impacted on their graduation and future activities, but has also had an unfair impact on the Petitioners in relation to the other students. This Court also finds that these adverse effects on the Petitioners’ lives has been caused by the inefficiencies on the part of the Respondent, and that there has been a violation of their rights to non-discrimination, dignity and freedom from psychological torture as a result.”
51. The students were denied the opportunity to graduate and receive the relevant certificate despite completing their studies, passing internal examinations, and undertaking industrial attachment. Although the respondent avers that they had to pass KNEC examinations to graduate, I am not persuaded that that was the case. The course requirements are set by the university. The university determines which institution will set the examinations.
52. The petitioners contend that they had legitimate expectations that they would graduate upon passing all the internal examinations and undertaking industrial attachments.
53. In the case of the Kenya Revenue Authority vs Universal Corporation Ltd (2020) eKLR, the Court of Appeal discussed the doctrine of legitimate expectation. It held that:
“A legitimate expectation arises where there is demonstration that: a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/ she/ it would be accorded a hearing before the decision was taken; a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of the law; the pubic authority whether by practice or promise committed itself to the legitimate expectation; the representation was clear and unambiguous; the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority; the representation was reasonable and that the claimant relied upon it to its detriment; there was no overriding interest arising from the decision maker's action and representation; the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same; the promise related either to a past or future benefit; its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.”
54. In my view, the respondent led the petitioners to believe that the Diploma in Supply Chain Management was subject to internal examinations, firstly by not communicating this requirement in the admission letters, and secondly by allowing the petitioners to move on to the next modules after they had failed the KNEC examinations, in permitting them to undertake industrial attachment, and by not communicating their decisions in a timely manner. Reasonably, given the conduct of the respondent, the students expected to graduate. The decision, at the eleventh hour, to prevent them from graduating breached their legitimate expectations. Consequently, I find and hold that the petitioners had legitimate expectations of graduating.
55. It is apparent to me that the respondent is a very hierarchical organization. The petitioners appear to have tried all possible means to obtain redress, to no avail. The doctrine of exhaustion is meant to aid justice by infusing a quasi-judicial process with efficiency. This is done by seeking to have disputants reach a resolution at the lowest possible level. That only works where there is a realistic dispute resolution mechanism. In this case, it is apparent to me that such a mechanism wouldn’t work. The petitioners were frantically trying to graduate, while the respondent was recalcitrant. The petitioners raised issues of constitutional violation, which the respondent couldn’t address. Exhaustion of internal resolution mechanisms was therefore unavailable.
56. I am therefore in agreement with the holding in the Violet Ombaka Otieno case. In the said case, the learned Judge stated that:
“31. While it is this Court’s jurisprudential policy in this regard to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for, and this is also now required by section 9(2) and (3) of the Fair Administrative Action Act, the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Where such an alternative remedy cannot be used by an applicant, this Court can exempt such an applicant from its application as provided by section 9(4) of the Fair Administrative Action Act.
32. Various considerations have been taken into account by Courts in considering whether an exception lies, and the list of exceptional circumstances is not closed. In R v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya (2017) eKLR, the High Court held as follows as regards the application of the exception:-
“[46] What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
[47]. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation, especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others [2016] eKLR. ”
57. The orders that therefore comment themselves to me are the following:
1. I declare that the petitioners’
[...truncated]
2. Aggrieved by the said decision, the petitioners filed the instant petition. Through this petition, the petitioners seek the following orders:
a) A declaration that the respondent's actions and omissions against the petitioners are unconstitutional;
b) A declaration that the petitioners are eligible for graduation;
c) An order that the respondent herein be compelled to graduate and/or include the petitioners on the graduation list slated for 5th December 2024;
d) An award of general damages in a lump sum of Kes 250,000 for each Petitioner; and
e) Costs of and/or incidental to these proceedings.
3. The petitioners state that they were admitted to the Technical University of Mombasa to pursue a diploma in Supply Chain Management through admission letters dated 23rd August 2020. They were told upon admission that the course would take two years. However, it took them four years to complete the program due to the respondent's actions, as stated above.
4. They stated in the petition that, as they were nearing the completion of their studies, the respondent, through its staff, verbally informed them that they would need to undertake KNEC examinations before graduating. They argue that such a requirement was not specified in their respective admission letters and that they were aware the respondent had its own internal examination system.
5. They stated that after writing to their heads of department and the vice chancellor, they were called for a meeting during which they were advised that the KNEC exams were optional.
6. Upon clearing their studies in August 2023, the respondent issued them recommendation letters for industrial attachment, affirming that they had cleared the final examinations. Subsequently, they were issued with provisional transcripts, "to affirm that we have cleared our studies pending final graduation."
7. They were, however, surprised to find that they were not listed on the provisional graduation list posted on the portal. Their names were absent. Upon pressing the university authorities for an explanation, they were told they would not graduate because they did not take the KNEC exams, which was surprising to them as they had been informed it was optional.
8. They argued that the university’s decision was a violation of their constitutional rights and contradicted their legitimate expectations that they would graduate after completing the course and passing the required units. The petitioners, therefore, prayed for orders compelling the University to include them on the graduation list, as they would suffer irreparably if they were not allowed to graduate. I have already listed their specific prayers above.
9. Upon being served with the application, the respondent, through its learned counsel, Mr Hamisi Mwadzogo, filed a replying affidavit sworn by Dr Samson Kitheka on 28th November 2024. In his affidavit, Dr Kitheka accused the petitioners of dishonesty and non-disclosure of material facts. He stated that the applicants approached the Court with unclean hands and were therefore undeserving of the remedies sought.
10. He deposed that the petitioners did not fulfil the university requirements and therefore could not graduate. He stated that, due to the COVID-19 pandemic, the petitioners actually reported in 2021, not 2020, as alleged. He averred that the course requirements for the diploma program the petitioners were undertaking were explained to them during their orientation.
11. He accused the petitioners of failing their examinations, and some of them of engaging in examination malpractice. Dr Kitheka stated that other classmates of the petitioners would be graduating.
12. Lastly, he deposed that allowing the applicants to graduate when they are not qualified would not be in their best interest. He, therefore, urged that the petition be dismissed.
13. The petition was heard through viva voce evidence. I will summarize the witnesses' evidence below. The petitioners had two witnesses, while the respondent called only one.
14. The first witness for the petitioners was Joel Collins Aluku. Mr Aluku testified that he was seeking justice both for himself and for the other petitioners. He relied on his written deposition and witness statement as his evidence-in-chief. He stated that he was admitted to the Technical University of Mombasa to undertake a diploma course in Supply Chain Management, as indicated by an admission letter dated 23rd August 2020. He testified that they were informed the course would take two years to complete. However, it actually took them four years due to complications caused by the respondent, who introduced a trimester system and extended holidays. In his final year, the respondent verbally required them to sit for the KNEC examinations before graduation. He argued that the admission letter did not specify such a requirement. In his opinion, the respondent had an internal examination system appropriate to the course they studied.
15. He stated that during a meeting convened after they wrote a letter, they were informed that KNEC examinations would be optional. After sitting their examinations in August 2023, the respondent issued them recommendation letters for industrial attachment, confirming that they had passed the examinations. Subsequently, a provisional transcript was issued, which, in his view, affirmed that they had completed their studies and were awaiting graduation. To their utter shock, their names were missing from a copy of the graduation list posted on the university portal.
16. Upon incessantly asking for reasons for not being allowed to graduate, they were informed that this was because they had not taken the KNEC examinations. Subsequently, they were informed via WhatsApp that they could graduate in 2025 if they filed a certain form, paid Kes 72,000.00 within 24 hours, and transferred their credits from the Diploma in Supply Chain Management to the Diploma in Procurement. He saw malice in the respondent's conduct.
17. When cross-examined by Mr Mwadzogo, Mr Aluku denied that they failed to use the internal dispute resolution mechanism. He stated that they first discussed the matter with the Department of Management Science. No assistance was provided by that unit. They then went to the Dean's office but did not receive help. The next step was to see the Deputy Vice Chancellor (DVC), Academic Research and Extension. He admitted that they had never met him. He last saw the DVC in 2021. He acknowledged that they have not seen him since then. He also admitted that they did not approach the vice chancellor and that they had not exhausted all the internal dispute resolution mechanisms.
18. When shown the minutes indicating their agreement to be examined by KNEC, he stated that the minutes were produced after they filed the petition. However, he admitted that he attempted KNEC examinations, as did other petitioners. He denied engaging in examination malpractice.
19. Upon re-examination, he stated that the respondent violated their rights. The Court was therefore best equipped to address their grievances. He testified that he took KNEC examinations because they believed it would be beneficial, as employers would recognize it. He further testified that they moved from class to class and that they passed all internal examinations. Mr Aluku affirmed that he was never subjected to any disciplinary measures for the alleged examination malpractice and that he progressed through classes without interruption, which he viewed as evidence that he passed all his examinations and was entitled to graduate.
20. Mr Aluku further testified that he wasn’t given a reason for not graduating, nor was there any formal communication, apart from a WhatsApp message. He prayed that they be allowed to graduate and be issued certificates, as they are struggling.
21. The second witness for the petitioners was Nancy Mwongeli Wambua. She relied on the witness statement dated 18th February 2026 as her evidence in chief. When cross-examined by Mr Mwadzogo, Ms Wambua stated categorically that she wasn’t interested in talking to the university. She stated that she wished to be recognised and to practice what she had studied.
22. The respondent called a witness, Dr Samson Kitheka, who is the Dean of the School of Business Administration. He stated that he had previously served as the chairman of the Department of Management Science. He relied on his replying affidavit, sworn on 28th November 2024, as his evidence in chief.
23. In the affidavit sworn on 28th November 2024, he stated that the petitioners were dishonest, guilty of material non-disclosure, and had approached the Court with unclean hands. He argued that the petitioners did not meet the requirements for graduation, and therefore, the respondent could not “illegally graduate them”. He claimed that it was not true that the petitioners had been at the Technical University of Mombasa for 4 years, as, due to COVID-19, they commenced their studies in January 2021. At the time of their admission, the requirements for a Diploma in Supply Chain Management were explained to them. Further clarification was provided during the consultative meeting held “around the 30th July 2021.”
24. He stated that the petitioners were aware all along that they would sit KNEC examinations and that they did so. He deprecated the petitioners' conduct for attempting to mislead the Court into believing they had not sat the said examinations. Mr Kitheka claimed that Mr Aluku was caught engaging in examination malpractice, leading to the cancellation of his results by KNEC. He asserted that the respondent was acting in the petitioners' best interests by seeking to have those who were unable to pass the KNEC examinations switch their course to the Diploma in Procurement Management, which is internally examined.
25. When cross-examined by Mr Wafula, he admitted that Joel Collins Aluku’s letter of admission does not mention KNEC nor the Kenya Institute of Supplies Management. However, he stated that students were informed about KNEC examinations during orientation. He could not, however, specify when exactly the orientation was conducted. He testified that the meeting held on 30th July 2021 was not initiated by the petitioners, but was a response to the need to explain the KNEC requirements to them. The outcome of the meeting was summarized in a notice sent to all students.
26. He testified that the WhatsApp message on changing course was a reminder of previous deliberations. Though conceding that the course the students were admitted to was a 2-year course, he admitted that they in fact studied for 3 years, with 3 semesters per year. The change notwithstanding, no amended letter was produced.
27. Mr Kitheka admitted that the students had transcripts. In his opinion, transcripts can be obtained even if a student has failed. He testified that passing the KNEC examination was mandatory, although this was not specified in the admission letter. The witness stated that the petitioners were prevented from graduating. However, no official letter confirming this was issued to them or their parents. He acknowledged that students were advised they could transfer their credits to a different course. This was done after they had completed their industrial attachment. The change, however, was to be made within 72 hours and was not free. Mr Kitheka conceded that they had not produced university policies.
28. When reexamined by Mr Mwadzogo, Mr Kitheka stated that students are assigned to various universities by KUCCPS. He noted that not all course details are included in the admission letter. He explained that they did not decide to have the students undertake KNEC examinations; rather, KNEC examinations were a requirement of the course. He testified that the students could progress from one class to another as they passed internal examinations. He firmly stated that a student could not graduate unless they met the course requirements.
29. Upon the conclusion of the hearing, the Court directed the parties to file written submissions on 16th July 2025. The parties also made oral submissions. The petitioners filed written submissions dated 18th April 2025. The respondent filed no written submissions; the submissions dated 22nd November 2024, filed on 12th May 2025, were in respect of HCCA NO E018 of 2024, Technical University of Mombasa v Milmar Marketing & Management.
30. In his submissions, counsel for the petitioners urged that the issues for determination were the following:
i. Whether the Respondent violated the petitioner’s constitutional rights;
ii. Whether there was a legitimate expectation on the part of the petitioners that they would graduate upon passing the internal examinations; and
iii. Whether the doctrine of exhaustion applies in this matter.
31. It was argued that the respondent made a decision affecting the petitioners but failed to communicate with them, especially by not formally amending the admission letter, adding more years of study, changing the school terms, introducing the KNEC examinations as a mandatory requirement, and omitting the petitioners' names from the graduating list, without any formal communication or constitutionally valid reasons. This violated Article 47(1) of the Constitution. Reliance was placed on the decision of Mugambi, J, in the case of Ougo v Regional Institute of Business Management & 4 others [2024] KEHC 5787 (KLR).
32. Mr Wafula submitted that the rights of the petitioners to dignity were violated insofar as they were misled about the graduation requirements, required to pay additional fees, ordered to transfer courses under duress, omitted from the graduation list and dismissed as weak students. All these amounted to a violation of their right to dignity under Article 28 of the Constitution of Kenya. In support of this, counsel relied on the Lungwe v Maseno University & another [2023] KEHC 17752 (KLR).
33. It was urged that the students were subjected to psychological torture and degrading treatment and were denied the right to education under Article 43(1)(f) of the Constitution of Kenya. The respondent’s action also breached the provisions of the Universities Act.
34. It was argued that, having passed the internal examinations, the petitioners had legitimate expectations of graduating, an expectation supported by the fact that they were issued transcripts. This expectation was breached by the respondent through its inconsistent policies and its refusal to accede to the petitioners' requests. Reliance was placed on the case of Violet Ombaka Otieno & 13 others v Moi University [2019] KEHC 4404 (KLR).
35. It was submitted that, given the conduct of the respondent, the exhaustion of the internal mechanism was not feasible.
36. Counsel therefore prayed that:-
i. I find the conduct of the respondent to be violative of Articles 27, 28, 29, 43 and 47 of the Constitution;
ii. Declare that the petitions are eligible for graduation and to graduate them or otherwise issue them with a Diploma certificate;
iii. Award the petitioners Kes. 250,000 each as general damages; and
iv. Grant them costs of the suit.
37. In his oral submissions, Mr Mwadzogo, learned counsel for the respondent, urged the Court to look at the written submissions of 5th May 2025. He urged that there were 3 issues this Court should consider. As earlier indicated, no such submissions are in the portal.
38. It was urged that the petitioners were placed in the respondent by KUCCPS. The course requirements were not dictated by it. Mr Mwadzogo submitted that the 1st Petitioners did not have the authority to plead on behalf of his co-petitioners.
39. Mr Mwadzogo argued that the petitioners did not fully utilize all available mechanisms before approaching Court, despite evidence of their awareness during the trial. Counsel, therefore, submitted that the petition be dismissed. It was emphasized that the petitioners should have exhausted all internal channels prior to seeking the court's intervention.
40. Regarding costs, Mr Mwadzogo prays that each party should bear its own costs.
41. I have reviewed the petition, the responses thereto, as well as the testimonies of the parties' witnesses and the oral and written submissions from the parties’ counsel. The petitioners are students who believe their rights were infringed by the respondent and have approached this Court seeking redress. Conversely, the respondent denies any breach of the petitioners' rights and argues that any possible breaches should have been addressed through the respondent’s internal mechanisms before the petition was filed.
42. In my view, the issues for determination are
i. Whether the rights of the petitioners were violated;
ii. Whether the petitioners had legitimate expectations which were violated by the respondent;
iii. Whether the doctrine of exhaustion bars the petitioners from approaching this Court without first exhausting all the internal dispute resolution mechanisms.
43. In the letter of admission dated 23rd August 2020, the 1st Petitioner was admitted to the respondent to study a Diploma Course in Supply Chain Management. The first paragraph of the said letter stated that:
“This is a 2-year program offered in the Department of Management Science at the main campus, Tudor, Mombasa.”
The letter in question was similar to the ones the other petitioners received. As conceded during the trial, the admissions letter did not state that the course was KNEC examinable. It is also evident that the petitioners were made to believe that their course would last 2 years.
44. I note that upon admissions, there was a meeting between the students and the respondent during which it was communicated to them that the Diploma Course in Supply Chain Management was a KNEC examinable course. The minutes of the meeting, held on 30th July 2021 at 9 am, shows that the students' concerns were addressed. The attendance sheet has the 1st petitioner’s putative signature against his name.
45. The petitioners did in fact sit for KNEC examinations as evidenced by the transcripts attached to the affidavit of Dr Kitheka. Mr Aluku testified that he sat for the said examination as he was informed that it would improve his career prospects. The transcripts show that although he did not pass some units, he was nevertheless allowed to transition from class to class. The respondent’s witness explained that this was possible because there were both internal examinations, which the petitioners had to pass to progress to the next module, and KNEC examinations, which a candidate could retake later.
46. It seems to me that the respondent failed to clearly communicate what the course involved in the admissions letter, or at least at the start of the course. Certainly, the meeting held on 30th July 2021 bespeaks requirements made on the fly, haphazard communication, and little regard for the welfare of the students involved. Their obligations were altered without notice, without proper consultation, and in a manner most detrimental to them.
47. Under Article 47 of the Constitution, every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The person affected by an administrative action must, under section 47 (2) of the Constitution, be given written reasons for the action. The wording of Article 47(2) of the Constitution is couched in mandatory terms; there can be deviation from the said requirement. It is clear, beyond peradventure, that no written reasons were given to the petitioners for the change in the length of their course, the introduction of the trimester system and the requirement that they would have to sit KNEC examinations.
48. That being the case, I am of the view that the Constitutional rights of the petitioners were violated. I am guided by the decision of LN Mugambi, J, in Ougo v Regional Institute of Business Management & 4 others [2024] KEHC 5787 (KLR). In the said case, the learned judge stated as follows:
“It is my finding that the conduct of both the 1st and 2nd Respondent towards the Petitioner violated his right to fair administrative action in that regard. It was not expeditious, efficient, reasonable and procedurally fair. In fact, the 2nd Respondent contravened Section 4(2) of the Fair Administrative Review Act as read with Article 47(2) of the Constitution for failing to give the Petitioner written reasons for the adverse administrative action it took against him. I find that the 1st and 2nd Respondents' action against the Petitioner was frustrating and utterly unjustifiable. The Petitioner’s rights under Article 47 were violated by the 1st and 2nd Respondents. I find no fault in the 3rd, 4th and 5th Respondents.”
49. The petitioners were inexplicably excluded from the graduation list, even after receiving provisional transcripts and undertaking industrial attachment. In the pleadings filed by the respondent, and during the course of the hearing, they were dismissed as weak students. The treatment they were subjected to amounts to a violation of their right to dignity. They were not treated with respect, nor was their worth and value as human beings with hopes and expectations appreciated. The perfunctory, matter-of-fact dismissal of their concerns and the oppressive suggestion that they could transfer units to a different course, pay Kes 72,000, and wait another year to graduate speak volumes about the respondent.
50. In the case of Violet Ombaka Otieno & 13 others v Moi University [2024] KEHC 4404 (KLR), P Nyamweya, J (as she then was) stated that:
“46. There is no specified role or responsibility placed on the students by the said Rules, save to present themselves for, and sit for the examinations after meeting all the necessary requirements. It is therefore evident that any lapses in the release of examination results once the students have completed their part can only be attributed to the Respondent. The Respondent’s allegations about the students not having marks was also sufficiently rebutted by the evidence of transcripts brought by the Petitioners showing allocation of marks by the Respondents to the alleged subject units.
47. As a result of the delayed entry of the Petitioners’ marks and results, this Court finds that this not only adversely impacted on their graduation and future activities, but has also had an unfair impact on the Petitioners in relation to the other students. This Court also finds that these adverse effects on the Petitioners’ lives has been caused by the inefficiencies on the part of the Respondent, and that there has been a violation of their rights to non-discrimination, dignity and freedom from psychological torture as a result.”
51. The students were denied the opportunity to graduate and receive the relevant certificate despite completing their studies, passing internal examinations, and undertaking industrial attachment. Although the respondent avers that they had to pass KNEC examinations to graduate, I am not persuaded that that was the case. The course requirements are set by the university. The university determines which institution will set the examinations.
52. The petitioners contend that they had legitimate expectations that they would graduate upon passing all the internal examinations and undertaking industrial attachments.
53. In the case of the Kenya Revenue Authority vs Universal Corporation Ltd (2020) eKLR, the Court of Appeal discussed the doctrine of legitimate expectation. It held that:
“A legitimate expectation arises where there is demonstration that: a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/ she/ it would be accorded a hearing before the decision was taken; a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of the law; the pubic authority whether by practice or promise committed itself to the legitimate expectation; the representation was clear and unambiguous; the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority; the representation was reasonable and that the claimant relied upon it to its detriment; there was no overriding interest arising from the decision maker's action and representation; the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same; the promise related either to a past or future benefit; its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.”
54. In my view, the respondent led the petitioners to believe that the Diploma in Supply Chain Management was subject to internal examinations, firstly by not communicating this requirement in the admission letters, and secondly by allowing the petitioners to move on to the next modules after they had failed the KNEC examinations, in permitting them to undertake industrial attachment, and by not communicating their decisions in a timely manner. Reasonably, given the conduct of the respondent, the students expected to graduate. The decision, at the eleventh hour, to prevent them from graduating breached their legitimate expectations. Consequently, I find and hold that the petitioners had legitimate expectations of graduating.
55. It is apparent to me that the respondent is a very hierarchical organization. The petitioners appear to have tried all possible means to obtain redress, to no avail. The doctrine of exhaustion is meant to aid justice by infusing a quasi-judicial process with efficiency. This is done by seeking to have disputants reach a resolution at the lowest possible level. That only works where there is a realistic dispute resolution mechanism. In this case, it is apparent to me that such a mechanism wouldn’t work. The petitioners were frantically trying to graduate, while the respondent was recalcitrant. The petitioners raised issues of constitutional violation, which the respondent couldn’t address. Exhaustion of internal resolution mechanisms was therefore unavailable.
56. I am therefore in agreement with the holding in the Violet Ombaka Otieno case. In the said case, the learned Judge stated that:
“31. While it is this Court’s jurisprudential policy in this regard to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for, and this is also now required by section 9(2) and (3) of the Fair Administrative Action Act, the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Where such an alternative remedy cannot be used by an applicant, this Court can exempt such an applicant from its application as provided by section 9(4) of the Fair Administrative Action Act.
32. Various considerations have been taken into account by Courts in considering whether an exception lies, and the list of exceptional circumstances is not closed. In R v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya (2017) eKLR, the High Court held as follows as regards the application of the exception:-
“[46] What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
[47]. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation, especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others [2016] eKLR. ”
57. The orders that therefore comment themselves to me are the following:
1. I declare that the petitioners’
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