R U L I N G
1. The Notice Application dated 14/5/2025 seeks orders that the 46 intended interested parties be allowed to join these proceedings as interested parties in the petition and subsequent to that, this Court be pleased to clarify that the conservatory order issued on 13th May, 2025 did not preclude the Respondent from administering physical examination to evening students who are willing to undertake them.
2. Coincidentally, the Chamber Summons Application dated 14/5/2025 also seeks clarification on the effect of the conservatory order issued on 13th May, 2025 by this Court against the the Respondent (University of Nairobi) requiring it to revoke the memo that sought to administer physical examination to modelue II evening students at Parklands Campus, faculty of law.
3. This is an extemporal ruling in respect of the above applications.
4. The intended interested party/applicants state that they are evening students who are affected by the orders which were obtained by petitioners without consultation or representation on the part of the intended interested parties yet the order sought is prejudicial to them for it will result in delaying their academic progression.
5. The application is opposed by the 1st petitioner Mr. Aluko who argues that the order sought is permanent in nature as the sole intention of being enjoined is so that the court can revoke the order made on 13th May, 2025 and not anything else in the petition.
6. That they have also not demonstrated that the interest they have cannot be accommodated in the petition.
7. That the court became functus officio having found that there is prima facie case to warrant issuance of conservatory order.
8. That the interested parties have not set out the submissions they want to make neither have they provided a statement disclosing their interest.
9. M/s Muiruri of 2nd, 8th and 39th petitioners, argued that the 6th, 8th, 16th and 20th, 26th and 27th were party to survey that was conducted seeking consensus on the filing of the instant petition and cannot thus exonerate themselves from the same as they supported the filing of this petition.
10. M/s Njuguna argued that the interested parties want to change the nature of petition and what they should do instead is to file their own petition or seek to join as co-petitioners.
11. Mr. Omondi for the Respondent supports the application on the basis that the interested parties are evening students who are prejudiced by the orders in place yet they were not constituted in filing this petition and have no problem sitting for the physical exams.
12. In a rejoinder, Mr. Khalif argued that the petition is filed by 38 out of 545 evening module II students and in fact, what was carried out prior to filing the Petition was a survey that did not involve most of the students. That even then, no consent or authority to file the petition was obtained from any of them to file the suit allegedly on their behalf.
Analysis and Determination
13. “An interested party” is defined by the Constitution of Kenya (Protection of rights and fundamental procedures) Practice and Procedure Rules, 2013 as follows:
“means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”
14. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) guided as follows:
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.”
[24] We ask ourselves the following questions:
(a) what is the intended interested party’s stake and relevance in the proceedings? and
(b) will the intended interested party suffer any prejudice if denied joinder?”
18. Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
15. In the present case, there is no denial that just like the petitioners, the 46 intended interested parties are all evening module II students. The petitioners stake in the matter in relation to the decision made by the Respondent (University of Nairobi) on the mode of administering the examination is not greater than those of the rest of their colleague students in the same programme just because they have filed the petition.
16. The 46 proposed interested parties have ably and clearly shown that the existence of the conservatory orders which were sought by the petitioners is prejudicial to them as they are effectively barred from sitting exams which they have fully prepared for, hence feel the petitioners did not properly articulate their interest when they sought the conservatory order.
17. In my view, the 46 interested parties have succeeded in demonstrating an identifiable personal stake in the proceedings and the prejudice they are already suffering in the absence of joinder.
18. On this basis, I admit them as interested parties in this Petition.
19. The next issue is clarification of the orders made. The interested parties insist that the order should not be applied in a blanket manner as it is prejudicial to their interest but the petitioners insist that the order should remain. They also sought clarification on the effect of the conservatory order.
20. It has emerged that contrary to the position given by the petitioners at the time of seeking the consertory orders, the interests of the evening students/ Module II are varied hence not all were behind the petition. In any case, no written consent prior to filing this petition on behalf of all the students was obtained.
21. The other contention was by the 1st petitioner who submitted that this court having found there is a prima facie case, it is now functus officio and cannot review the conservatory order. I do not think this is the correct legal position. Nothing stops the court from reviewing its own orders in the interest of justice and this is reinforced by Rule 3 (8) of the Constitution of Kenya ( Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013 which states:
“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders, as may be necessary for the ends of justice or to prevent abuse of the powers of the court.”
22. Given the obvious divide exhibited by the petitioners and interested parties who are all evening students regarding the decision by the Respondent to administer physical examination, the court must carefully balance these two interests.
23. The petitioners’ right to sit an exam that does not breach their legitimate expectation established by the long standing practice by the respondent and, the interest of the interested parties not to have their academic programme interrupted because they are ready and willing to sit for the physical examination offered by the Respondent/ University.
24. I do not think that it would be fair to impose the will of one on the other.
25. For the petitioners who feel prejudiced by the Respondent’s decision, it is within their rights to pursue this Petition for any possible remedies against the Respondent.
26. However, in pursuit of their rights, the petitioners are not permitted to drag along the students that do not find anyting wrong with sitting the physical exams to clear their academic programmes.
27. Those are the orders of the court. The Mention dates are maintained.
Dated, signed and delivered virtually at Nairobi this 19th day of May, 2025.
…………………………………
L N MUGAMBI
JUDGE
1. The Notice Application dated 14/5/2025 seeks orders that the 46 intended interested parties be allowed to join these proceedings as interested parties in the petition and subsequent to that, this Court be pleased to clarify that the conservatory order issued on 13th May, 2025 did not preclude the Respondent from administering physical examination to evening students who are willing to undertake them.
2. Coincidentally, the Chamber Summons Application dated 14/5/2025 also seeks clarification on the effect of the conservatory order issued on 13th May, 2025 by this Court against the the Respondent (University of Nairobi) requiring it to revoke the memo that sought to administer physical examination to modelue II evening students at Parklands Campus, faculty of law.
3. This is an extemporal ruling in respect of the above applications.
4. The intended interested party/applicants state that they are evening students who are affected by the orders which were obtained by petitioners without consultation or representation on the part of the intended interested parties yet the order sought is prejudicial to them for it will result in delaying their academic progression.
5. The application is opposed by the 1st petitioner Mr. Aluko who argues that the order sought is permanent in nature as the sole intention of being enjoined is so that the court can revoke the order made on 13th May, 2025 and not anything else in the petition.
6. That they have also not demonstrated that the interest they have cannot be accommodated in the petition.
7. That the court became functus officio having found that there is prima facie case to warrant issuance of conservatory order.
8. That the interested parties have not set out the submissions they want to make neither have they provided a statement disclosing their interest.
9. M/s Muiruri of 2nd, 8th and 39th petitioners, argued that the 6th, 8th, 16th and 20th, 26th and 27th were party to survey that was conducted seeking consensus on the filing of the instant petition and cannot thus exonerate themselves from the same as they supported the filing of this petition.
10. M/s Njuguna argued that the interested parties want to change the nature of petition and what they should do instead is to file their own petition or seek to join as co-petitioners.
11. Mr. Omondi for the Respondent supports the application on the basis that the interested parties are evening students who are prejudiced by the orders in place yet they were not constituted in filing this petition and have no problem sitting for the physical exams.
12. In a rejoinder, Mr. Khalif argued that the petition is filed by 38 out of 545 evening module II students and in fact, what was carried out prior to filing the Petition was a survey that did not involve most of the students. That even then, no consent or authority to file the petition was obtained from any of them to file the suit allegedly on their behalf.
Analysis and Determination
13. “An interested party” is defined by the Constitution of Kenya (Protection of rights and fundamental procedures) Practice and Procedure Rules, 2013 as follows:
“means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”
14. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) guided as follows:
“[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.”
[24] We ask ourselves the following questions:
(a) what is the intended interested party’s stake and relevance in the proceedings? and
(b) will the intended interested party suffer any prejudice if denied joinder?”
18. Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
15. In the present case, there is no denial that just like the petitioners, the 46 intended interested parties are all evening module II students. The petitioners stake in the matter in relation to the decision made by the Respondent (University of Nairobi) on the mode of administering the examination is not greater than those of the rest of their colleague students in the same programme just because they have filed the petition.
16. The 46 proposed interested parties have ably and clearly shown that the existence of the conservatory orders which were sought by the petitioners is prejudicial to them as they are effectively barred from sitting exams which they have fully prepared for, hence feel the petitioners did not properly articulate their interest when they sought the conservatory order.
17. In my view, the 46 interested parties have succeeded in demonstrating an identifiable personal stake in the proceedings and the prejudice they are already suffering in the absence of joinder.
18. On this basis, I admit them as interested parties in this Petition.
19. The next issue is clarification of the orders made. The interested parties insist that the order should not be applied in a blanket manner as it is prejudicial to their interest but the petitioners insist that the order should remain. They also sought clarification on the effect of the conservatory order.
20. It has emerged that contrary to the position given by the petitioners at the time of seeking the consertory orders, the interests of the evening students/ Module II are varied hence not all were behind the petition. In any case, no written consent prior to filing this petition on behalf of all the students was obtained.
21. The other contention was by the 1st petitioner who submitted that this court having found there is a prima facie case, it is now functus officio and cannot review the conservatory order. I do not think this is the correct legal position. Nothing stops the court from reviewing its own orders in the interest of justice and this is reinforced by Rule 3 (8) of the Constitution of Kenya ( Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013 which states:
“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders, as may be necessary for the ends of justice or to prevent abuse of the powers of the court.”
22. Given the obvious divide exhibited by the petitioners and interested parties who are all evening students regarding the decision by the Respondent to administer physical examination, the court must carefully balance these two interests.
23. The petitioners’ right to sit an exam that does not breach their legitimate expectation established by the long standing practice by the respondent and, the interest of the interested parties not to have their academic programme interrupted because they are ready and willing to sit for the physical examination offered by the Respondent/ University.
24. I do not think that it would be fair to impose the will of one on the other.
25. For the petitioners who feel prejudiced by the Respondent’s decision, it is within their rights to pursue this Petition for any possible remedies against the Respondent.
26. However, in pursuit of their rights, the petitioners are not permitted to drag along the students that do not find anyting wrong with sitting the physical exams to clear their academic programmes.
27. Those are the orders of the court. The Mention dates are maintained.
Dated, signed and delivered virtually at Nairobi this 19th day of May, 2025.
…………………………………
L N MUGAMBI
JUDGE