'1. Kiprop Gideon, is the Applicant herein and vide the Notice of Motion dated
8
th April 2025, he seeks the following orders against the seven [7]
Respondents, namely, The Vice Chancellor - University of Eastern
Africa Baraton, the University Senate - University of Eastern Africa
Baraton.
The university of Eastern Africa - Baraton, the Independent Electoral
Commission Student Association of Baraton University [SABU], the
Appeal Committee – Student Association of baraton University [SABU],
the Deputy Vice Chancellor - Student Affairs and services and Naomi
Kasiva Waema: -
2. [1] That an order of certiorari be issued to the quash the outcome
of the Student Association of Baraton University [SABU] 2025/2026
elections and the subsequent swearing in of the purportedly elected
student leaders.
[2] That, an order of prohibition be issued restraining the
Respondents from effecting or enforcing the results of the impugned
SABU Election and the premature swearing in ceremony prior to
making a determination of the Election Appeals.
[3] That, an order of mandamus be issued compelling the
Respondents to reconvene a constitutionally complaint electoral
process in accordance with SABU Constitution and the Constitution of
Kenya.
3. The grounds for the application are set out in the Notice of Motion and
supported by the Applicant’s averments in the supporting affidavit filed herein
on 22
nd September 2025.
Being essentially a judicial review application for orders of certiorari,
prohibition and mandamus, the anchor enabling provisions of the law
applicable are Section 8 and Section 9 of the Law Report Act even though
the relevant provisions of the Constitution have been invoked.
4. The Respondents oppose the application on the basis of the grounds and
averments contained in the replying affidavit dated 26
th May 2025, deponed
by the Sixth [6] Respondent, Dr. Paul Wahonya, the Acting Deputy Vice
Chancellor - Academics and Lecture, Student Affairs and Services of the
University of Eastern Africa - Baraton [Third [3
rd
] Respondent who also
doubles up as the Attorney General for the Student Association of Baraton
University [SABU].
5. As directed by the court on 18
th June 2025, the application was canvassed
by way of affidavit evidence and written submissions which were filed herein
on behalf of the Applicant by Rotich Langat & Partners Advocates and on
behalf of the Respondents by Rachuonyo & Rachuonyo Advocates.
Having considered the application on the basis of the supporting grounds
and those in opposition thereto in the light of the rival submissions, it
became apparent to this court that the basic issue for determination is
whether the Appellant has demonstrated sufficient judicial review orders
against the Respondents.
6. This being the case and as noted hereinabove the applicability of the Law
Reform Act, the common law principles on the remedy of Judicial Review
would aptly apply to the circumstances of this case although it does not
escape the mind of this court that Article 47 of the Constitution provides for
the right to fair administrative action and therefore violation of such right may
attract the remedy of Judicial Review.
7. Under Article 22[1] of the Constitution every person has the right to
institute court proceedings claiming that a constitutional right has been
denied, violated or infringed, or is threatened and Under Article 23[1], the
High Court has jurisdiction in accordance with Article 165, to hear and
determine application for redress of a denial, violation or infringement of, or
three to, a right or fundamental freedom in the Bill of Rights.
8. In any proceedings brought under Article 22, a court may grant appropriate
relief including “inter-alia” on order of Judicial Review [See Article 23[3] [f]
of the Constitution]. It is therefore not in doubt that this court’s jurisdiction
to deal with this application whether under the common law or statutory law
regime or the constitutional law regime remains intact. Both regimes grant
this court the constitutional and statutory jurisdiction to deal with this matter.
9. Vide the ex-parte chamber summons dated 8
th April 2025 which was filed
contemporaneously with the present application, also dated 8
th April 2025,
the Applicant sought for and was granted leave to apply for Judicial Review
orders of certiorari, prohibition and mandamus specifically against the
decisions and actions of the Respondents culminating in the swearing in of
the Student Association of Baraton [SABU] student council for the period
2025/2026 before determination of the Election Appeals was made.
The grant of leave operated as a stay of the swearing in, assumption of
office and execution of duties by the President Elect [7
th Respondent] and
other SABU officials pending determination of this application.
10. A later application dated 28
th April 2025 filed by the Respondents
seeking orders for review of the ex-parte stay order was withdrawn in court
on 18
th June 2025.
Basically, the facts of the case as emanating from the verifying affidavit of
the Applicant dated 8
th April 2025 in support of the ex-parte chamber
summons dated 8
th April 2025 reveal that the Applicant was the outgoing
president of the Student Association of Baraton University [SABU] for
......................
For the Academic year 2024/2025 and during the student governance year
2020/2021 the constitutional Review Committee of the association
formulated a constitution to govern the student electoral process. This was
ratified by the university and remained the binding legal framework for all of
the associations elections.
11. That, prior to the Applicant being elected the President of the Student
Association an open letter drafted by “concerned students” and addressed to
the University’s Vice Chancellor [one, Prof. Msafiri Jackson] raised
concerns over justice, fairness and transparency in student elections.
Threats of students unrest were made in the letter, but the university was yet
to address them.
12. That, on the 13
th February 2025, the duly appointed chairperson for the
2025/2026 elections of the Student Association i.e. Mr. Abraham Kitur, was
irregularly removed by the University Senate [2
nd Respondent] during an
emergency meeting prompted by an anonymous letter alleging bias. The
removal was allegedly in contravention of the said chairperson’s right to a
fair hearing in terms of Article 47[1] of the Constitution and Article 16[1]
[c] of the Student’s Association Constitution which mandates a transparent
removal process.
13. That, following the removal and in contravention of the provisions of
the Associations constitution aforementioned, a Mr. Evans Odero, was
appointed, hitherto unlawfully, the new chairperson of the Independnt
Electoral Commission [IEC] [4
th Respondent] thereby creating confusion and
conflicts over the electoral process and on 16
th February 2025, the Secretary
of the commission published the 2025/2026 SABU Election Regulations.
This was followed by publication between 20
th
/ 21
st February 2025 of the
names of the candidates cleared for the upcoming elections. Later, the
acting chairperson of the Electoral Commission [Evans Odero] summoned
the Applicant’s running mate, one Ms. Scola Akinyi, for further vetting, a
process already concluded and supposed to have been undertaken by the
Deans Council, rather than the chairperson of the Electoral Commission.
14. That by a letter dated 6
th March 2025, the Applicant petitioned the
University’s Vice-Chancellor [1
st Respondent] seeking resignation of the
Electoral Commission Chairperson for unlawful vetting and breach of Ms.
Akinyi’s right to privacy and irregular use of third parties including the
chaplain, one Dr. Mumbo, in vetting her.
Six days later the chairperson of the Electoral Commission in contravention
of Article 20[2] [b] of the Association Constitution which requires complaints
against candidates be lodged within a day after publication of names of the
cleared candidates initiated a complaint against the said Ms. Akinyi citing
bias and possible third party influence.
15. That, the Applicant’s petition to the vice chancellor was ignored and on
10
th March 2025, his running mate [Ms. Akinyi] received a letter from the
Electoral Commissions Secretary questioning the authenticity of her
baptismal certificate. In the meantime, the Applicant was advised to replace
her as his running mate and on 11
th March 2025, he convened a meeting
with the Deans Council over the emerging issues, but was asked to step out
during the meeting session without later receiving the determination made
by the council in his absence.
16. That, the 2025/2026 SABU elections proceeded regardless of the
unresolved complaints and concerns, however, an appeal dated 19
th March
2025 was filed by a student called Raphael Otieno, challenging the SABU
Executive Council elections citing among other things, bias by the Electoral
Commission Chair, unfair treatment of the Applicant’s candidacy and the
unlawful clearance of the President Elect, Ms. Naomi Waema [7
th
Respondent] who was then under active suspension.
17. That, despite the limited window between 14
th and 19
th March 2025
provided for elections appeals, the Appeals Committee [5
th Respondent]
failed to determine the appeal aforementioned and also failed to respond to
a follow-up letter by the aforementioned Raphael Otieno dated 24
th March
2025. Subsequently, the Applicant received an email notification on a
handing over ceremony scheduled for 4
th April 2025, to which he responded
vide a letter dated 4
th April 2025 Addressed to the Deputy Vice Chancellor
Student Affairs Services, Dr. Paul Wahonya [6
th Respondent] in objection to
the pre-mature handover in terms of Article 21[2] of the Student
Associations Constitution which provides that a student congress serves
for a full academic year and the terms of the current administration was to
lapse on 30
th April 2025. As such, the Student Executive Council 2024/2025
was still executing official duties and overseeing ongoing project including
SABU Project 2025. Therefore, any premature handover was both
unconstitutional and impractical.
18. The Applicant contended that he was willing to facilitate a structured
transition after the completion of the official term, but the administration was
bent at enforcing the rushed and pre-mature handover. That, the actions by
the Respondents collectively subverted democracy, eroded justice and
endangered the rule of law thereby necessitating urgent judicial intervention
to forestaff irreversible harm occasioned by failure to make a determination
on the election appeals and resolve constitutional order within the university
[3
rd Respondent].
19. It was for the foregoing factores that the Applicant seeks judicial review
orders for purposes of quashing the alleged flawed electoral process,
prohibiting the pre-mature swearing in an a compelling the Respondents to
adhere to the provisions of the Constitution of Kenya and that of the Student
Association of Baraton University [SABU]. His affidavit in support of the
present application dated 8
th April 2025 is a repetition of the foregoing
allegations.
20. In opposing the application on his own behalf and that of the rest of the
Respondents, the 6
th Respondent, Dr. Paul Wahonya, averred in his
replying affidavit dated 26
th May 2025 that there was non-disclosure and
concealment of material facts at the time leave was granted to commence
these proceedings. That, the present application is replete with
misrepresentations and was filed before the Applicant exhausted the existing
internal dispute resolution mechanisms stipulated in Chapter VI of the
SABU Constitution Contrary to Section 9[2] and [3] of the Fair
Administrative Action Act 2015.
21. That, at the time leave was granted the Applicant failed to disclose that
the impugned swearing in ceremony of the elected SABU representatives
had already taken place on 25
th March 2025 in BUC Church in accordance
with the Associations Constitution. That, the inauguration and assumption of
office of the duly elected officials of the Association had taken place prior to
the filing of the Applicants application with a majority of the former officials
having handed over their duties.
22. The 6
th Respondent also averred that the Applicant had instituted an
internal dispute resolution mechanism that was still active as at the time of
the filing of this application and when leave was granted no decision had
been made by the University Council which had eight [8] weeks to resolve
issues referred to it. That, the Applicant should have waited until the 30
th
May 2025, prior to seeking redress from the court having written a letter
dated 4
th April 2025, to the University Council and being a presidential
candidate he did not contest, the outcome of the elections and neither did he
present any appeal for consideration.
23. It was further averred by the 6
th Respondent that an appeal was
presented to the appeals committee by one Raphel Otieno, Contrary to the
Association’s Constitution as he was not a candidate in the 2025 election.
Consequently, the appeals committee rightly voted to disqualify the appeal.
That, all the four appeals submitted before the Electoral Appeal, Committee
were heard and determined and the Applicant had already accepted the
results by agreeing and signing the vote tally sheet, thereby rendering his
change of time malicious and an afterthought intended to derail the
operations of the student body.
24. With regard to Mr. Abraham Kitur, the former Chairperson of the 2025
Electoral Commission, the 6
th Respondent averred that he [Kitur] had
already served his one year term for the previous year and the University
Senate therefore appointed new members of the Commission as per its
Constitutional Mandate. That, Mr. Kitur did not complain, contest or
otherwise challenge his “unlawful removal”.
25. That, Contrary to the Applicants allegations the new chairperson of the
Electoral Commission, Mr. Evans Otieno, was duly elected by the entire
commission and appointed accordingly in a lawful manner and that the duly
elected president of the Association [7
th Respondent] during the 2024/2025
semester was not under active suspension, the complaint against her by a
lecture called Ruth Nyaboke Mitaki having been withdrawn long before the
start of the election process.
26. The 6
th Respondent denied that he acted “ultra-vires” and contended
that his actions were in accordance with the Associations Constitution,
Student Handbook and/or Faculty and staff handbook.
He averred that the controversy over the Applicant’s running mate, M/S
Scola Akinyi, was promptly resolved and she was cleared to run.
27. The 6
th Respondent went on to aver that should the orders sought by
the Applicant be granted, the students would be denied their rights to
representation for the year 2025 in various university governance organs.
He contended that the present application is premature and stated that the
leadership of the university would be ready and willing to have the disputes
and concerns raised herein be resolved amicably using the university’s
dispute resolution mechanism. That, the Applicant does not stand to suffer
any irreparable harm if the impugned elections are upheld neither has he
demonstrated any infringement or violation of his fundamental rights.
28. The 6
th Respondent further contended that it would be in the interest of
justice for the application to be dismissed to allow smooth running of the
university. He emphasized that the Applicant would suffer no prejudice if the
application is dismissed. He therefore prayed for the dismissal of the
application with costs.
29. Basically, the parameters of judicial review were set out by the Court of
Appeal in the case of Municipal Council of Mombasa Vs. Republic and
Umoja Consultants Limited Civil Appeal No. 185 of 2001, in the following
terms: -
“Judicial Review is concerned with the decision making
process, not with the merits of the decision itself; the court
would concern itself with such issues as to whether the
decision makers had the jurisdiction, whether the persons
affected by the decision were heard before it was made and
whether in making the decision the decision maker took into
account relevant matters, or did take into account irrelevant
matters..............
The court should not act as a Court of Appeal over the
decider which would involve going into the merits of the
decision itself such as whether there was or there was not
sufficient evidence to support the decision.”
30. Under the common law traditions judicial review is concerned not with
private rights or the merits of the decision being challenged but with the
decision making process. Its purpose is to ensure that the individual is
given fair treatment by the authority to which he has been subjected [See,
Republic Vs. Secretary of State for Education and Science Ex-parte
Avon County Council [1991] 1 AIIER 282].
The broad grounds on which the court exercises its judicial review
jurisdiction, though not exhaustive, were restated in the Uganda Case of
Pastoli Vs. Kabale District Local Court Council and Others [2008] 2EA
30].
31. It was held in that case that: -
“In order to succeed in an application for Judicial Review,
the Applicant has to show that the decision or act
complained of is tainted with illegality, irrationality and
procedural impropriety ............... illegality is when the
decision making authority commits an error of law in the
process of taking or making the act, the subject of the
Complaint. Acting without jurisdiction or “ultra-vires,” or
contrary to the provisions of a law or its principles are
instances of illegality ................
Irrationality is when there is such gross unreasonableness
in the decision taken or act done, that no reasonable
authority addressing itself to the facts and the law before it,
would have made such a decision. Such a decision is
usually in defiance of logic and acceptable moral
standards................. Procedural impropriety is when there
is a failure to act fairly on the part of the decision making
authority in the process of taking a decision. The
unfairness may be in non-observance of the Rules of
Natural Justice or to act with procedural fairness towards
one to be affected by the decision. It may also involve
failure to adhere and observe procedural rules expressly
laid down in a statute or legislative instrument by which
such authority exercises jurisdiction to make a decision.”
32. The purpose and scope of judicial review as set out in the foregoing
decisions aligned with the common law traditions of the United Kingdom
which are linked to illegality irrationality and procedural impropriety as basic
grounds for the remedy of Judicial Review which is exercisable under
common law as a prerogative writ issued to supervise administrative
authority. However, the common law principles as was held in the South
Africa case of Pharmaceutical Manufacturers Association of South
Africa ex-parte President of the Republic of South Africa and Others
[2000] [2] SA 647 [CIC] have been subsumed under the Constitution and in
so far as they might continue to be relevant to Judicial Review, they gain
their force from the Constitution.
33. The said court stated that in the Judicial Review of public power, the
two are intertwined and do not constitute separate concepts. That, there
was only one system of the law shaped by the constitution which is the
Supreme Law, and all Law, including common law, derives its force from the
constitution and is subject to constitutional control.
The decision shows that the doctrine of judicial review is derived from the
English Common Law Traditions and the South Africa Constitutional
Principles.
34. The Supreme Court of Kenya in the case of Dande and 3 Others Vs.
Inspector General, National Police Service and 5 Others [2023] KESC
40[KLR], expanded the scope of judicial review and underscored the
protection of constitutional rights. Thus, the merits of administrative actions,
not just procedures, may be examined and where constitutional rights are
invoked a substantive inquiry is necessary to ensure justice is achieved.
The scrutiny of the substance and fairness of decisions meant that the
Supreme Court created a Judicial Review jurisdiction that balances
administrative authority with constitutional justice.
35. Administrative decisions must therefore align with constitutional/
principles and values such that administrative bodies are called upon to
ensure not only procedural compliance, but also substantive fairness in
decision making. The threshold for fairness ought to be high.
In the case of IEBC Vs Maina Kiai & 5 Others [2017] KECA 477[KLR],
the Court of Appeal underscored judicial scrutiny of administrative discretion
and in the old case of Kenya National Examination Council Vs.
Republic exparte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR,
the court emphasized fairness in the exercise of administrative actions.
36. It is clear that whereas the constitution permits judicial review of the
administrative actions of both private and public entities, the common law
permits judicial review of the administrative acts of public entities only.
The need for judicial review under both regimes of the law would therefore
arise were an individual believes that an administrative authority has acted
unlawfully and in violation of constitution rights. These are vital tools for
holding public bodies/private bodies accountable and for rectifying injustice
while ensuring that the principles enshrined in the constitution are upheld.
37. In the English decision in the case of Chief Constable of North Wales
Police Vs. Evans [1982] 1VOLR 155, it was stated that: -
“It is important to remember in every case that the purpose
of the remedy of Judicial Review is to ensure that an
individual is given fair treatment by the authority to which
he has been subjected and that it is not part of the purpose
to substitute the opinion of the judiciary or of individual
judges for that of the authority constituted by law to decide
the matters in questions.”
38. The present application both under the constitution and the Law
Reform Act is a demonstration of the Applicant’s dissatisfaction with the
electoral process undertaken by the Respondents as mandated by the
Student Association of the Baraton University [SABU] Constitution. He
believes that the process was conducted in violation of not only the SABU
Constitution, but also the Kenya Constitution, 2010, such that his
fundamental rights to equality and freedom from discrimination, privacy, fair
administrative action and fair hearing under Articles 27, 31, 47 and 50 of
the Constitution of Kenya 2010, were breached.
39. The Applicant therefore sought Firstly, an order of Certiorari, to quash
the outcome of the Students Association 2025/2026 elections and the
subsequent swearing in of the purportedly elected student leader.
Secondly, an order of Prohibition restraining the Respondents from effecting
or enforcing the results of the impugned elections and the premature
swearing in ceremony prior to making a determination for the Election
Appeals. Thirdly, an order of Mandamus compelling the Respondents to
reconvene a constitutionally compliant electoral process in accordance with
the SABU constitution and the Constitution of Kenya.
40. The big question would be whether such orders would lie against the
Respondents or any of them on the basis of the evidence and the legal
principles pertaining to the remedy of judicial review under both the
Constitution and the Law Reform Act. Looking from another angle, the
question is whether the Applicant is entitled to the orders sought in this
application/ petition.
41. In the case of Republic Vs. Judicial Service Commission Ex-parte
Pareno [2004] 1 KLR 203, it was held that: -
“Judicial Review orders are discretionary and are not
guaranteed and hence a court may refuse to grant them
even where the requisite grounds exist, since the court has
to weigh one thing against another and see whether or not
the remedy is the most efficacious in the circumstances
obtaining and since the discretion of the court is a judicial
one, it must be exercised on the evidence of sound legal
principles.”
42. It was further held in the same case that: -
“The court does not issue orders in vain even where it has
jurisdiction to issue the prayed orders. Since the court
exercises a discretionary jurisdiction in granting prerogative
orders, it can withhold the gravity of the order where among
other reasons there has been delay and where the public
body has done all that it can be expected to do to fulfil its
duty or where the remedy is not necessary or where its path
is strewn with blockage or where it would cause
administrative chaos and public inconvenience or where the
object for which application is made has already been
realized, the court would not grant the order sought even if
merited.”
43. In Suleiman Vs. Amboseli Resort Limited [2004]2KLR 989, the
court observed that what is required of the court in responding to prayers
should always be to opt for the lower rather than the higher risk of injustice.
The judicial review remedy ought not be granted where it would have the
effect of causing administrative chaos and/or public inconvenience. The
interest of an Applicant must in the circumstances be balanced against that
of the public.
44. With regards to orders of certiorari, prohibition and mandamus, the
Court of Appeal in the case of Kenya National Examination Council Vs.
Republic Ex-parte Geoffrey Gathenji Njoroge & 19 Others [Supra]
stated that an order of certiorari can only quash a decision already made
and will issue if the decision is made without or in excess of jurisdiction on
where the rules of national justice are not complied with. Herein the
material availed by the Applicant do not show or even create suspicion that
the Respondent’s acted without or in excess of their jurisdiction conferred by
the student Association Constitution. There is no demonstration to show
that he was actually denied an opportunity to be heard.
45. Given that the impugned elections were conducted in a proper and
legal manner and that new office bearers were elected and sworn into office,
an order of certiorari would not be most effactious in annulling the outcome
of the elections and the swearing in of the new office bearers. More so,
considering that there existed alternative dispute resolution mechanisms
binding both the Applicant and the Respondents.
46. In that regard, Section 9[2], [3] and [4] of the Fair Administrative
Action Act [Act No. 4 of 2015], provides that: -
“[2] The High Court or a Subordinate Court, under Sub-
Section [1] shall not review an administrative action or
decision under this Act unless the mechanisms including
internal mechanisms for appeal or review and all remedies
available under any other written law are first exhausted.
[3] The High Court or a Subordinate Court shall if it is not
satisfied that the remedies referred to it Sub-Section [2]
have been exhausted, direct that Applicant, shall first
exhaust such remedy before instituting proceedings under
Sub-Section [1].
[4] Notwithstanding Sub-Section [3], the High Court or a
Subordinate Court may, in exceptional circumstances and
on application by the Applicant, exempt such person from
the obligation to exhaust any remedy if the court considers
such exemption to be in the interest of justice.”
47. The foregoing provision alludes to the doctrine of exhaustion. The
requirement that alternative procedure be exhausted prior to resorting to
judicial review is in accord with judicial review being regarded as a remedy
of last resort. However, an Applicant would not be required to resort to some
other procedure if the procedure is less convenient or less appropriate.
Therefore, unless due to the inherent nature of the remedy provided under
the statute or otherwise to resort thereto, would be less convenient or
otherwise less appropriate, parties ought to follow the procedure provided for
under statute or otherwise. [See JFK Omanga Vs. Post Master General
Postal Corporation of Kenya & 2 Others NBI HCMA NO. 997 of 2003].
48. In the case of Speaker of the National Assembly Vs. Karume
Court of Appeal No. 92 of 1992 [NBI], the Court of Appeal held that there is
considerable merit in the submission that where there is a clear procedure
for redress of any particular grievance prescribed by the Constitution or an
Act of Parliament, that procedure should be strictly followed. Accordingly,
the special procedure provided by any law must be strictly adhered to since
there are good reasons for such special procedures.
49. In Republic Vs. National Environmental Management Authority
[2011] eKLR, the court held that: -
“The principle running through these cases is where there
was an alternative remedy and especially where parliament
had provided a statutory appeal procedure, it is only in
exceptional circumstances that an order for Judicial Review
would be granted.”
As was held in the English decision in Re- Preston [1985] AC 835, a
remedy by judicial review should not be made available where an alternative
remedy existed and should only be made as a last resort.
50. Regard being given to the legal principles enunciated in the
aforementioned decisions as against the evidence provided by the Applicant
in this case and indeed the circumstances of this case, it would follow that
the remedy of judicial review for grant of an order of certiorari is not available
to the Applicant on account of insufficient evident and the doctrine of
exhaustion.
51. With regard to the orders of prohibition and mandamus, the court in the
Ex-parte Geoffrey Gathenji Njoroge Case [supra] stated that an order of
prohibition is po
[...truncated]
8
th April 2025, he seeks the following orders against the seven [7]
Respondents, namely, The Vice Chancellor - University of Eastern
Africa Baraton, the University Senate - University of Eastern Africa
Baraton.
The university of Eastern Africa - Baraton, the Independent Electoral
Commission Student Association of Baraton University [SABU], the
Appeal Committee – Student Association of baraton University [SABU],
the Deputy Vice Chancellor - Student Affairs and services and Naomi
Kasiva Waema: -
2. [1] That an order of certiorari be issued to the quash the outcome
of the Student Association of Baraton University [SABU] 2025/2026
elections and the subsequent swearing in of the purportedly elected
student leaders.
[2] That, an order of prohibition be issued restraining the
Respondents from effecting or enforcing the results of the impugned
SABU Election and the premature swearing in ceremony prior to
making a determination of the Election Appeals.
[3] That, an order of mandamus be issued compelling the
Respondents to reconvene a constitutionally complaint electoral
process in accordance with SABU Constitution and the Constitution of
Kenya.
3. The grounds for the application are set out in the Notice of Motion and
supported by the Applicant’s averments in the supporting affidavit filed herein
on 22
nd September 2025.
Being essentially a judicial review application for orders of certiorari,
prohibition and mandamus, the anchor enabling provisions of the law
applicable are Section 8 and Section 9 of the Law Report Act even though
the relevant provisions of the Constitution have been invoked.
4. The Respondents oppose the application on the basis of the grounds and
averments contained in the replying affidavit dated 26
th May 2025, deponed
by the Sixth [6] Respondent, Dr. Paul Wahonya, the Acting Deputy Vice
Chancellor - Academics and Lecture, Student Affairs and Services of the
University of Eastern Africa - Baraton [Third [3
rd
] Respondent who also
doubles up as the Attorney General for the Student Association of Baraton
University [SABU].
5. As directed by the court on 18
th June 2025, the application was canvassed
by way of affidavit evidence and written submissions which were filed herein
on behalf of the Applicant by Rotich Langat & Partners Advocates and on
behalf of the Respondents by Rachuonyo & Rachuonyo Advocates.
Having considered the application on the basis of the supporting grounds
and those in opposition thereto in the light of the rival submissions, it
became apparent to this court that the basic issue for determination is
whether the Appellant has demonstrated sufficient judicial review orders
against the Respondents.
6. This being the case and as noted hereinabove the applicability of the Law
Reform Act, the common law principles on the remedy of Judicial Review
would aptly apply to the circumstances of this case although it does not
escape the mind of this court that Article 47 of the Constitution provides for
the right to fair administrative action and therefore violation of such right may
attract the remedy of Judicial Review.
7. Under Article 22[1] of the Constitution every person has the right to
institute court proceedings claiming that a constitutional right has been
denied, violated or infringed, or is threatened and Under Article 23[1], the
High Court has jurisdiction in accordance with Article 165, to hear and
determine application for redress of a denial, violation or infringement of, or
three to, a right or fundamental freedom in the Bill of Rights.
8. In any proceedings brought under Article 22, a court may grant appropriate
relief including “inter-alia” on order of Judicial Review [See Article 23[3] [f]
of the Constitution]. It is therefore not in doubt that this court’s jurisdiction
to deal with this application whether under the common law or statutory law
regime or the constitutional law regime remains intact. Both regimes grant
this court the constitutional and statutory jurisdiction to deal with this matter.
9. Vide the ex-parte chamber summons dated 8
th April 2025 which was filed
contemporaneously with the present application, also dated 8
th April 2025,
the Applicant sought for and was granted leave to apply for Judicial Review
orders of certiorari, prohibition and mandamus specifically against the
decisions and actions of the Respondents culminating in the swearing in of
the Student Association of Baraton [SABU] student council for the period
2025/2026 before determination of the Election Appeals was made.
The grant of leave operated as a stay of the swearing in, assumption of
office and execution of duties by the President Elect [7
th Respondent] and
other SABU officials pending determination of this application.
10. A later application dated 28
th April 2025 filed by the Respondents
seeking orders for review of the ex-parte stay order was withdrawn in court
on 18
th June 2025.
Basically, the facts of the case as emanating from the verifying affidavit of
the Applicant dated 8
th April 2025 in support of the ex-parte chamber
summons dated 8
th April 2025 reveal that the Applicant was the outgoing
president of the Student Association of Baraton University [SABU] for
......................
For the Academic year 2024/2025 and during the student governance year
2020/2021 the constitutional Review Committee of the association
formulated a constitution to govern the student electoral process. This was
ratified by the university and remained the binding legal framework for all of
the associations elections.
11. That, prior to the Applicant being elected the President of the Student
Association an open letter drafted by “concerned students” and addressed to
the University’s Vice Chancellor [one, Prof. Msafiri Jackson] raised
concerns over justice, fairness and transparency in student elections.
Threats of students unrest were made in the letter, but the university was yet
to address them.
12. That, on the 13
th February 2025, the duly appointed chairperson for the
2025/2026 elections of the Student Association i.e. Mr. Abraham Kitur, was
irregularly removed by the University Senate [2
nd Respondent] during an
emergency meeting prompted by an anonymous letter alleging bias. The
removal was allegedly in contravention of the said chairperson’s right to a
fair hearing in terms of Article 47[1] of the Constitution and Article 16[1]
[c] of the Student’s Association Constitution which mandates a transparent
removal process.
13. That, following the removal and in contravention of the provisions of
the Associations constitution aforementioned, a Mr. Evans Odero, was
appointed, hitherto unlawfully, the new chairperson of the Independnt
Electoral Commission [IEC] [4
th Respondent] thereby creating confusion and
conflicts over the electoral process and on 16
th February 2025, the Secretary
of the commission published the 2025/2026 SABU Election Regulations.
This was followed by publication between 20
th
/ 21
st February 2025 of the
names of the candidates cleared for the upcoming elections. Later, the
acting chairperson of the Electoral Commission [Evans Odero] summoned
the Applicant’s running mate, one Ms. Scola Akinyi, for further vetting, a
process already concluded and supposed to have been undertaken by the
Deans Council, rather than the chairperson of the Electoral Commission.
14. That by a letter dated 6
th March 2025, the Applicant petitioned the
University’s Vice-Chancellor [1
st Respondent] seeking resignation of the
Electoral Commission Chairperson for unlawful vetting and breach of Ms.
Akinyi’s right to privacy and irregular use of third parties including the
chaplain, one Dr. Mumbo, in vetting her.
Six days later the chairperson of the Electoral Commission in contravention
of Article 20[2] [b] of the Association Constitution which requires complaints
against candidates be lodged within a day after publication of names of the
cleared candidates initiated a complaint against the said Ms. Akinyi citing
bias and possible third party influence.
15. That, the Applicant’s petition to the vice chancellor was ignored and on
10
th March 2025, his running mate [Ms. Akinyi] received a letter from the
Electoral Commissions Secretary questioning the authenticity of her
baptismal certificate. In the meantime, the Applicant was advised to replace
her as his running mate and on 11
th March 2025, he convened a meeting
with the Deans Council over the emerging issues, but was asked to step out
during the meeting session without later receiving the determination made
by the council in his absence.
16. That, the 2025/2026 SABU elections proceeded regardless of the
unresolved complaints and concerns, however, an appeal dated 19
th March
2025 was filed by a student called Raphael Otieno, challenging the SABU
Executive Council elections citing among other things, bias by the Electoral
Commission Chair, unfair treatment of the Applicant’s candidacy and the
unlawful clearance of the President Elect, Ms. Naomi Waema [7
th
Respondent] who was then under active suspension.
17. That, despite the limited window between 14
th and 19
th March 2025
provided for elections appeals, the Appeals Committee [5
th Respondent]
failed to determine the appeal aforementioned and also failed to respond to
a follow-up letter by the aforementioned Raphael Otieno dated 24
th March
2025. Subsequently, the Applicant received an email notification on a
handing over ceremony scheduled for 4
th April 2025, to which he responded
vide a letter dated 4
th April 2025 Addressed to the Deputy Vice Chancellor
Student Affairs Services, Dr. Paul Wahonya [6
th Respondent] in objection to
the pre-mature handover in terms of Article 21[2] of the Student
Associations Constitution which provides that a student congress serves
for a full academic year and the terms of the current administration was to
lapse on 30
th April 2025. As such, the Student Executive Council 2024/2025
was still executing official duties and overseeing ongoing project including
SABU Project 2025. Therefore, any premature handover was both
unconstitutional and impractical.
18. The Applicant contended that he was willing to facilitate a structured
transition after the completion of the official term, but the administration was
bent at enforcing the rushed and pre-mature handover. That, the actions by
the Respondents collectively subverted democracy, eroded justice and
endangered the rule of law thereby necessitating urgent judicial intervention
to forestaff irreversible harm occasioned by failure to make a determination
on the election appeals and resolve constitutional order within the university
[3
rd Respondent].
19. It was for the foregoing factores that the Applicant seeks judicial review
orders for purposes of quashing the alleged flawed electoral process,
prohibiting the pre-mature swearing in an a compelling the Respondents to
adhere to the provisions of the Constitution of Kenya and that of the Student
Association of Baraton University [SABU]. His affidavit in support of the
present application dated 8
th April 2025 is a repetition of the foregoing
allegations.
20. In opposing the application on his own behalf and that of the rest of the
Respondents, the 6
th Respondent, Dr. Paul Wahonya, averred in his
replying affidavit dated 26
th May 2025 that there was non-disclosure and
concealment of material facts at the time leave was granted to commence
these proceedings. That, the present application is replete with
misrepresentations and was filed before the Applicant exhausted the existing
internal dispute resolution mechanisms stipulated in Chapter VI of the
SABU Constitution Contrary to Section 9[2] and [3] of the Fair
Administrative Action Act 2015.
21. That, at the time leave was granted the Applicant failed to disclose that
the impugned swearing in ceremony of the elected SABU representatives
had already taken place on 25
th March 2025 in BUC Church in accordance
with the Associations Constitution. That, the inauguration and assumption of
office of the duly elected officials of the Association had taken place prior to
the filing of the Applicants application with a majority of the former officials
having handed over their duties.
22. The 6
th Respondent also averred that the Applicant had instituted an
internal dispute resolution mechanism that was still active as at the time of
the filing of this application and when leave was granted no decision had
been made by the University Council which had eight [8] weeks to resolve
issues referred to it. That, the Applicant should have waited until the 30
th
May 2025, prior to seeking redress from the court having written a letter
dated 4
th April 2025, to the University Council and being a presidential
candidate he did not contest, the outcome of the elections and neither did he
present any appeal for consideration.
23. It was further averred by the 6
th Respondent that an appeal was
presented to the appeals committee by one Raphel Otieno, Contrary to the
Association’s Constitution as he was not a candidate in the 2025 election.
Consequently, the appeals committee rightly voted to disqualify the appeal.
That, all the four appeals submitted before the Electoral Appeal, Committee
were heard and determined and the Applicant had already accepted the
results by agreeing and signing the vote tally sheet, thereby rendering his
change of time malicious and an afterthought intended to derail the
operations of the student body.
24. With regard to Mr. Abraham Kitur, the former Chairperson of the 2025
Electoral Commission, the 6
th Respondent averred that he [Kitur] had
already served his one year term for the previous year and the University
Senate therefore appointed new members of the Commission as per its
Constitutional Mandate. That, Mr. Kitur did not complain, contest or
otherwise challenge his “unlawful removal”.
25. That, Contrary to the Applicants allegations the new chairperson of the
Electoral Commission, Mr. Evans Otieno, was duly elected by the entire
commission and appointed accordingly in a lawful manner and that the duly
elected president of the Association [7
th Respondent] during the 2024/2025
semester was not under active suspension, the complaint against her by a
lecture called Ruth Nyaboke Mitaki having been withdrawn long before the
start of the election process.
26. The 6
th Respondent denied that he acted “ultra-vires” and contended
that his actions were in accordance with the Associations Constitution,
Student Handbook and/or Faculty and staff handbook.
He averred that the controversy over the Applicant’s running mate, M/S
Scola Akinyi, was promptly resolved and she was cleared to run.
27. The 6
th Respondent went on to aver that should the orders sought by
the Applicant be granted, the students would be denied their rights to
representation for the year 2025 in various university governance organs.
He contended that the present application is premature and stated that the
leadership of the university would be ready and willing to have the disputes
and concerns raised herein be resolved amicably using the university’s
dispute resolution mechanism. That, the Applicant does not stand to suffer
any irreparable harm if the impugned elections are upheld neither has he
demonstrated any infringement or violation of his fundamental rights.
28. The 6
th Respondent further contended that it would be in the interest of
justice for the application to be dismissed to allow smooth running of the
university. He emphasized that the Applicant would suffer no prejudice if the
application is dismissed. He therefore prayed for the dismissal of the
application with costs.
29. Basically, the parameters of judicial review were set out by the Court of
Appeal in the case of Municipal Council of Mombasa Vs. Republic and
Umoja Consultants Limited Civil Appeal No. 185 of 2001, in the following
terms: -
“Judicial Review is concerned with the decision making
process, not with the merits of the decision itself; the court
would concern itself with such issues as to whether the
decision makers had the jurisdiction, whether the persons
affected by the decision were heard before it was made and
whether in making the decision the decision maker took into
account relevant matters, or did take into account irrelevant
matters..............
The court should not act as a Court of Appeal over the
decider which would involve going into the merits of the
decision itself such as whether there was or there was not
sufficient evidence to support the decision.”
30. Under the common law traditions judicial review is concerned not with
private rights or the merits of the decision being challenged but with the
decision making process. Its purpose is to ensure that the individual is
given fair treatment by the authority to which he has been subjected [See,
Republic Vs. Secretary of State for Education and Science Ex-parte
Avon County Council [1991] 1 AIIER 282].
The broad grounds on which the court exercises its judicial review
jurisdiction, though not exhaustive, were restated in the Uganda Case of
Pastoli Vs. Kabale District Local Court Council and Others [2008] 2EA
30].
31. It was held in that case that: -
“In order to succeed in an application for Judicial Review,
the Applicant has to show that the decision or act
complained of is tainted with illegality, irrationality and
procedural impropriety ............... illegality is when the
decision making authority commits an error of law in the
process of taking or making the act, the subject of the
Complaint. Acting without jurisdiction or “ultra-vires,” or
contrary to the provisions of a law or its principles are
instances of illegality ................
Irrationality is when there is such gross unreasonableness
in the decision taken or act done, that no reasonable
authority addressing itself to the facts and the law before it,
would have made such a decision. Such a decision is
usually in defiance of logic and acceptable moral
standards................. Procedural impropriety is when there
is a failure to act fairly on the part of the decision making
authority in the process of taking a decision. The
unfairness may be in non-observance of the Rules of
Natural Justice or to act with procedural fairness towards
one to be affected by the decision. It may also involve
failure to adhere and observe procedural rules expressly
laid down in a statute or legislative instrument by which
such authority exercises jurisdiction to make a decision.”
32. The purpose and scope of judicial review as set out in the foregoing
decisions aligned with the common law traditions of the United Kingdom
which are linked to illegality irrationality and procedural impropriety as basic
grounds for the remedy of Judicial Review which is exercisable under
common law as a prerogative writ issued to supervise administrative
authority. However, the common law principles as was held in the South
Africa case of Pharmaceutical Manufacturers Association of South
Africa ex-parte President of the Republic of South Africa and Others
[2000] [2] SA 647 [CIC] have been subsumed under the Constitution and in
so far as they might continue to be relevant to Judicial Review, they gain
their force from the Constitution.
33. The said court stated that in the Judicial Review of public power, the
two are intertwined and do not constitute separate concepts. That, there
was only one system of the law shaped by the constitution which is the
Supreme Law, and all Law, including common law, derives its force from the
constitution and is subject to constitutional control.
The decision shows that the doctrine of judicial review is derived from the
English Common Law Traditions and the South Africa Constitutional
Principles.
34. The Supreme Court of Kenya in the case of Dande and 3 Others Vs.
Inspector General, National Police Service and 5 Others [2023] KESC
40[KLR], expanded the scope of judicial review and underscored the
protection of constitutional rights. Thus, the merits of administrative actions,
not just procedures, may be examined and where constitutional rights are
invoked a substantive inquiry is necessary to ensure justice is achieved.
The scrutiny of the substance and fairness of decisions meant that the
Supreme Court created a Judicial Review jurisdiction that balances
administrative authority with constitutional justice.
35. Administrative decisions must therefore align with constitutional/
principles and values such that administrative bodies are called upon to
ensure not only procedural compliance, but also substantive fairness in
decision making. The threshold for fairness ought to be high.
In the case of IEBC Vs Maina Kiai & 5 Others [2017] KECA 477[KLR],
the Court of Appeal underscored judicial scrutiny of administrative discretion
and in the old case of Kenya National Examination Council Vs.
Republic exparte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR,
the court emphasized fairness in the exercise of administrative actions.
36. It is clear that whereas the constitution permits judicial review of the
administrative actions of both private and public entities, the common law
permits judicial review of the administrative acts of public entities only.
The need for judicial review under both regimes of the law would therefore
arise were an individual believes that an administrative authority has acted
unlawfully and in violation of constitution rights. These are vital tools for
holding public bodies/private bodies accountable and for rectifying injustice
while ensuring that the principles enshrined in the constitution are upheld.
37. In the English decision in the case of Chief Constable of North Wales
Police Vs. Evans [1982] 1VOLR 155, it was stated that: -
“It is important to remember in every case that the purpose
of the remedy of Judicial Review is to ensure that an
individual is given fair treatment by the authority to which
he has been subjected and that it is not part of the purpose
to substitute the opinion of the judiciary or of individual
judges for that of the authority constituted by law to decide
the matters in questions.”
38. The present application both under the constitution and the Law
Reform Act is a demonstration of the Applicant’s dissatisfaction with the
electoral process undertaken by the Respondents as mandated by the
Student Association of the Baraton University [SABU] Constitution. He
believes that the process was conducted in violation of not only the SABU
Constitution, but also the Kenya Constitution, 2010, such that his
fundamental rights to equality and freedom from discrimination, privacy, fair
administrative action and fair hearing under Articles 27, 31, 47 and 50 of
the Constitution of Kenya 2010, were breached.
39. The Applicant therefore sought Firstly, an order of Certiorari, to quash
the outcome of the Students Association 2025/2026 elections and the
subsequent swearing in of the purportedly elected student leader.
Secondly, an order of Prohibition restraining the Respondents from effecting
or enforcing the results of the impugned elections and the premature
swearing in ceremony prior to making a determination for the Election
Appeals. Thirdly, an order of Mandamus compelling the Respondents to
reconvene a constitutionally compliant electoral process in accordance with
the SABU constitution and the Constitution of Kenya.
40. The big question would be whether such orders would lie against the
Respondents or any of them on the basis of the evidence and the legal
principles pertaining to the remedy of judicial review under both the
Constitution and the Law Reform Act. Looking from another angle, the
question is whether the Applicant is entitled to the orders sought in this
application/ petition.
41. In the case of Republic Vs. Judicial Service Commission Ex-parte
Pareno [2004] 1 KLR 203, it was held that: -
“Judicial Review orders are discretionary and are not
guaranteed and hence a court may refuse to grant them
even where the requisite grounds exist, since the court has
to weigh one thing against another and see whether or not
the remedy is the most efficacious in the circumstances
obtaining and since the discretion of the court is a judicial
one, it must be exercised on the evidence of sound legal
principles.”
42. It was further held in the same case that: -
“The court does not issue orders in vain even where it has
jurisdiction to issue the prayed orders. Since the court
exercises a discretionary jurisdiction in granting prerogative
orders, it can withhold the gravity of the order where among
other reasons there has been delay and where the public
body has done all that it can be expected to do to fulfil its
duty or where the remedy is not necessary or where its path
is strewn with blockage or where it would cause
administrative chaos and public inconvenience or where the
object for which application is made has already been
realized, the court would not grant the order sought even if
merited.”
43. In Suleiman Vs. Amboseli Resort Limited [2004]2KLR 989, the
court observed that what is required of the court in responding to prayers
should always be to opt for the lower rather than the higher risk of injustice.
The judicial review remedy ought not be granted where it would have the
effect of causing administrative chaos and/or public inconvenience. The
interest of an Applicant must in the circumstances be balanced against that
of the public.
44. With regards to orders of certiorari, prohibition and mandamus, the
Court of Appeal in the case of Kenya National Examination Council Vs.
Republic Ex-parte Geoffrey Gathenji Njoroge & 19 Others [Supra]
stated that an order of certiorari can only quash a decision already made
and will issue if the decision is made without or in excess of jurisdiction on
where the rules of national justice are not complied with. Herein the
material availed by the Applicant do not show or even create suspicion that
the Respondent’s acted without or in excess of their jurisdiction conferred by
the student Association Constitution. There is no demonstration to show
that he was actually denied an opportunity to be heard.
45. Given that the impugned elections were conducted in a proper and
legal manner and that new office bearers were elected and sworn into office,
an order of certiorari would not be most effactious in annulling the outcome
of the elections and the swearing in of the new office bearers. More so,
considering that there existed alternative dispute resolution mechanisms
binding both the Applicant and the Respondents.
46. In that regard, Section 9[2], [3] and [4] of the Fair Administrative
Action Act [Act No. 4 of 2015], provides that: -
“[2] The High Court or a Subordinate Court, under Sub-
Section [1] shall not review an administrative action or
decision under this Act unless the mechanisms including
internal mechanisms for appeal or review and all remedies
available under any other written law are first exhausted.
[3] The High Court or a Subordinate Court shall if it is not
satisfied that the remedies referred to it Sub-Section [2]
have been exhausted, direct that Applicant, shall first
exhaust such remedy before instituting proceedings under
Sub-Section [1].
[4] Notwithstanding Sub-Section [3], the High Court or a
Subordinate Court may, in exceptional circumstances and
on application by the Applicant, exempt such person from
the obligation to exhaust any remedy if the court considers
such exemption to be in the interest of justice.”
47. The foregoing provision alludes to the doctrine of exhaustion. The
requirement that alternative procedure be exhausted prior to resorting to
judicial review is in accord with judicial review being regarded as a remedy
of last resort. However, an Applicant would not be required to resort to some
other procedure if the procedure is less convenient or less appropriate.
Therefore, unless due to the inherent nature of the remedy provided under
the statute or otherwise to resort thereto, would be less convenient or
otherwise less appropriate, parties ought to follow the procedure provided for
under statute or otherwise. [See JFK Omanga Vs. Post Master General
Postal Corporation of Kenya & 2 Others NBI HCMA NO. 997 of 2003].
48. In the case of Speaker of the National Assembly Vs. Karume
Court of Appeal No. 92 of 1992 [NBI], the Court of Appeal held that there is
considerable merit in the submission that where there is a clear procedure
for redress of any particular grievance prescribed by the Constitution or an
Act of Parliament, that procedure should be strictly followed. Accordingly,
the special procedure provided by any law must be strictly adhered to since
there are good reasons for such special procedures.
49. In Republic Vs. National Environmental Management Authority
[2011] eKLR, the court held that: -
“The principle running through these cases is where there
was an alternative remedy and especially where parliament
had provided a statutory appeal procedure, it is only in
exceptional circumstances that an order for Judicial Review
would be granted.”
As was held in the English decision in Re- Preston [1985] AC 835, a
remedy by judicial review should not be made available where an alternative
remedy existed and should only be made as a last resort.
50. Regard being given to the legal principles enunciated in the
aforementioned decisions as against the evidence provided by the Applicant
in this case and indeed the circumstances of this case, it would follow that
the remedy of judicial review for grant of an order of certiorari is not available
to the Applicant on account of insufficient evident and the doctrine of
exhaustion.
51. With regard to the orders of prohibition and mandamus, the court in the
Ex-parte Geoffrey Gathenji Njoroge Case [supra] stated that an order of
prohibition is po
[...truncated]