Introduction
1. The Petition dated 14 th April 2025 was amended on 22 nd August 2025 and is supported by the Petitioners’ affidavit in support of similar date. Additionally, the Petition is supported by further affidavits dated 16 th June 2025 and 8 th October 2025.
2. The Petitioners are First Year (1.2), Second Year (2.2) and Third Year (3.2) Module II Evening– Undergraduate Law Students from Nairobi , Mombasa and Kisumu Campuses enrolled at the 1 st Respondent. They assert that they enrolled with the 1 st Respondent’s institution because it had an online Distance Learning Program which indicated that examinations would be offered remotely.
3. The Petitioners claim that in an unprecedented turn of events, the Respondents vide a Memo dated 28 th March 2025 notified the Petitioners that they were required, from then going forward, to undertake their examinations physically. The Petitioners argue that the Respondents’ actions are in blatant violation of their rights under Articles 27, 43(1)(f), 47 and 50 of the Constitution as well as their legitimate expectation.
4. The Petitioners seek the following relief against the Respondents:
i. A declaratory Order be issued that the Respondents’ actions of abrupt and unilateral alteration of the Petitioners’ online learning contract (coursework and administration of examination) to physical, constitutes a violation of the Petitioners’ constitutional rights under Articles 27, 43(1) (f), 46, 47, and 50 of the Constitution, and their statutory rights under the Fair Administrative Action Act, 2015 and the Consumer Protection Act, Cap 501.
ii. A declaratory Order be issued that the Respondents’ actions violated the Petitioners’ legitimate expectation arising from the representations made at the time of enrolment from year 2022 and the consistent practice of administering the Module II Evening Programme online for both coursework and examinations should continue until completion of Petitioners studies leading to graduation and award of Bachelor of Laws Degree.
iii. A Declaratory Order be issued that any action of the Respondents jointly and/or severally that is inconsistent with the online distance learning contract advertised to the Petitioners from year 2022 onwards and all other contrary actions to alter the mode of administration of examinations from online mode to any other are unconstitutional be voided to that extent.
iv. A Declaratory Order be issued that the Respondents’ conduct vide memo dated 28 th March, 2025 and all other subsequent memos negating the online distance learning mode as per the 15 th May, 2025 memo amounts to misrepresentation, unfair practice, and unconscionable conduct within the meaning of Sections 12, 13, 55, and 56 of the Consumer Protection Act, Cap 501.
v. A Declaratory Order be issued compelling the Respondents’ and specifically the 3 rd and 6 th Respondents to administer second semester online examinations to the Petitioners, before the end of December 2025, which they were unable to sit in May 2025 and August 2025.
vi. A Declaratory Order be issued that the Respondents are liable to compensate, by money refunds and /or damages, of the Petitioners who may be forced to drop out of the University because of the impugned decision.
vii. A judicial review order of certiorari removing into this Court and to quash the decision of the 3 rd Respondent together with the Memo issued pursuant to the said decision and all other subsequent memos issued after 13 th May, 2025.
viii. A Judicial review order of mandamus compelling the Respondents to maintain their advertisements for online distance learning to the public until performance of the contract through completion of studies and graduation and therefore stop the Subterfuge.
ix. An Order of mandamus be issued compelling the Respondents to continue administering the Petitioners’ coursework and examinations exclusively online under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
x. An Order of Prohibition be issued directed against the 3 rd , 4 th , 5 th , 6 th, 7 th and 8 th Respondents whether by themselves and or their servants, agents or any person acting on their instructions from interfering and or unjustly altering the Petitioners’ online distance learning contract arrangement under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
xi. An Order of Prohibition be issued directed against the Respondents and or their agents from retracting, deleting and therefore preserve the online webpage and online examination e-learning and Mtihani portal related to the advertisement of online distance learning from anywhere in the world during and after determination of this Petition.
xii. An Order of Certiorari be hereby issued to quash and set aside the decision of the 3 rd and 6 th Respondent to alter mode of examination from online to physical for Module II evening programme thus affecting the Petitioners right to education, legitimate expectation and performance of the online contract under online distance learning.
xiii. An Order of Permanent Injunction be issued restraining the Respondents, jointly and severally, from altering or interfering with the Petitioners’ online distance learning arrangement under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
xiv. An Order of Permanent Injunction be issued against the Respondents jointly and/or severally, their servants to stop interfering with the Petitioners right to the long-established legitimate expectation to have their examinations administered online from the date of determination of this Petition and until completion of their studies leading to graduation and award of a Bachelor of Laws Degree.
xv. General damages be issued against the Respondents for breach of the Petitioners’ Constitutional and Statutory rights, including but not limited to compensation for:
a. Financial loss incurred in reliance on the Respondents’ representations of online distance learning for both coursework and administration of examination as module II evening students;
b. Inconvenience, disruption, and emotional hardship caused by the ulta vires alteration of the mode of administration of examinations that has led to the Petitioners missing out on their Second Semester examinations to date;
c. Subterfuge to recruit the Petitioners under online distance learning, module II program and lock them in, then later change the program to introduce a physical component to avoid students from opting out.
d. Psychological distress, anxiety, and uncertainty suffered by the Petitioners because of the Respondents’ unlawful conduct; and
e. Psychological distress, anxiety, and uncertainty suffered by the Petitioners because of the Respondents’ unlawful conduct.
xvi. Costs of this Petition, together with interest thereon be awarded to the Petitioners.
xvii. Any other or further orders and reliefs that this Court may deem fit, just, and expedient in the circumstances.
xviii. Issue a declaration that the Respondents have threatened the Petitioners' right to education and right to employment as the Memo purports to have them out of workstations for over 2 Weeks to sit for physical examinations at the respective campuses.
Petitioners’ Case
5. The Petitioners depone that prior to enrolling at the 1 st Respondent, the 1 st Respondent, in an official advertisement on their website, invited interested persons to enroll for the Module II Evening Programme, an online course allowing students to study and undertake examinations remotely. The Petitioners claim that this commitment is etched in Clause 1.6 Common Examination Regulations,2021.
6. The Petitioners assert that on this premise, they proceeded to enroll for the Law Course, between the years 2022 – 2024 with the expectation that the learning, coursework and examinations would be conducted online until completion of their studies.
7. The Petitioners state that the Respondents have administered the coursework, assessment and examinations online via the Mtihani Portal, for the last 3 years. According to them, this mode of learning has so far been successful and allowed them to study remotely from anywhere in the world. The Petitioners assert that remote learning is not novel and that the Respondents adopted this mode of learning since 1967.
8. The Petitioners aver that the 3 rd and 6 th Respondent on 28 th March 2025 issued a Memo notifying their intention to revise the mode of conducting examinations at Faculty of Law for the undergraduate students’. As a result, the administration was directed to conduct the subsequent examinations physically at the Nairobi, Mombasa and Kisumu campuses. This was to take effect from the 2 nd Semester of the 2024/2025 academic year, being May, 2025.
9. The Petitioners allege that they only became aware of the issued Memo after the decision had been made and posted on their WhatsApp group on 1 st April 2025. In reaction, the Petitioners through their representative, issued a formal demand letter dated 4 th April, 2025 to the 3 rd , 4 th and 6 th Respondents, seeking a retraction of the impugned decision and for continuation of online examinations. This is owing to the existing learning contract and their legitimate expectation. Moreover, due to the need for balancing given the nature of their work and travel constraints considering that some work and reside outside the country.
10. It is stated that following this, the 3 rd and 6 th Respondent convened a meeting on 14 th April 2025 with the representatives of the Regular, Module II Day, and Module II Evening classes. The representatives raised issues regarding the abrupt shift. The Petitioners contend that the Respondents justified their decision by stating that they had received reports of students relying on Artificial Intelligence (AI) in their scripts, and thus needed to curb the practice through administration of examinations physically.
11. They assert however that while the Respondents claim this, their allegation does not relate to any of the Petitioners as evidenced from the Minutes of its Disciplinary Committee. Nonetheless, the Petitioners argue that the Respondents have in place administrative mechanisms to handle examination malpractice that emanate from physical and online examinations including the alleged use of AI.
12. The Petitioners depone that, a second meeting was convened on 10 th April 2025 by the 3 rd and 6 th Respondents with the class representatives. The representatives in opposition to the impugned Memo voiced their objection to the same on the basis that:
a) That administration of physical examinations to the Petitioners is impractical to them due to work, geographical location, family and time constraints. For instance, the 9 th Petitioner resides and works in United States of America while the 51 st Petitioner works and resides in Australia. As such, it was noted that a primary reason leading to Petitioners enrolling for Module II Evening Studies was based on the Online advertisement by the Respondents in their Webpages for an Online Distance Learning Module that would allow the Petitioners to study from anywhere in the World while balancing work and family life, otherwise risk dropping out of school.
b) The Petitioners did not choose either Module I day or Regular mode of study due to their inability to attend regular daytime classes. The administration of physical examinations, potentially lasts two weeks, and would require the Petitioners who are accustomed to online mode of study to significantly be present physically, have time off work, consequently obtaining exam leave days of up to 20 hours a day, which is challenging for many.
c) The Petitioner’s representatives informed the 6 th Respondent that the change of examinations mode to physical is a breach of online distance learning contract as advertised in the Respondents webpages and their legitimate expectation. That the Petitioners enrolled in the program specifically because it offered online classes and exclusively, online examinations. Accordingly, a contract was formed and established on this understanding, and a practice adopted since year 2022.
d) The Petitioners deemed the impugned decision and the directive as unreasonable in comparison to postgraduate students for the memo's distinction between undergraduate and postgraduate students, with postgraduate programs continuing with online administration of examinations uninterrupted. The Petitioners termed such actions as discriminatory, unfair and unreasonable.
e) The Petitioners raised logistical challenges due to their geographical location with some of the Petitioners working across the Country stationed in different Counties and some working and residing outside the Country. Thus the abrupt impugned decision is not only likely to cause financial harm but is also impractical and would lead the Petitioners dropping out of school effectively affecting their right to education.
f) The Petitioners questioned the rationale presented by the Respondents to justify the impugned decision to which the Respondents did not issue an explicit response but highlighted the alleged use of AI in examination scripts as was reported by their staff two years ago.
g) The Petitioners insisted that the Mtihani Portal, which is used to submit coursework and examinations lacks a copy and paste function therefore, there is a mechanism in place to curb examination cheating. Furthermore, there is a proctoring technology within the Respondents websites and online portals, which is an advanced technology that exists to detect Artificial Intelligence-generated content effectively and throughout the years; open-book online examinations naturally, involve referencing materials.
h) The Petitioners’ representatives also voiced their concerns with regards to the lack of due process and adherence to procedure in arriving at the impugned decision. It was their contention that the Petitioner’s representatives were not invited or consultated under Public Participation rules prior to the issuance of the impugned decision. They stated that as fee-paying stakeholders, the Petitioners ought to have been involved as the decision is not only significant but one that threatens their right to education and legitimate expectation to complete their studies online and have examinations administered as such until completion of their studies, graduation and award of Bachelor of Laws Degree.
i) The Petitioners through their representatives informed the 6 th Respondent that the impugned decision has far-reaching consequences including potential drop-out from Module II Evening program by the Petitioners due to the insurmountable challenges the decision poses to their work and personal lives contrary to the exclusive online contract entered into for online study and administration of examinations until completion of their studies, graduation and award of Bachelor of Laws Degree.
j) The Petitioners termed the decision by the Respondents and the announcement by the 6 th Respondent as unfair and unreasonable for they learnt of the abrupt change of decision on April 1st, 2025, which was suspicious, as Petitioners initially thought it was a prank for the day is famously known as April fool’s day. The memo was not communicated on any official school email but only on students WhatsApp groups.
13. The Petitioners assert that to their dismay after tabling these concerns at the meeting, the 6 th Respondent dismissed them and maintained that the impugned decision was final. He further advised that the students who were unable to sit for the physical examinations for various reasons to apply for special examinations. This is despite the purpose of such examinations and key grievance herein, for the following reasons:
a) Special Examinations: On Application by the Students, the University Senate approves for noble/satisfactory cause , such as sickness, bereavement for the Student who missed to take ordinary examinations to take Special examinations.
b) Supplementary Examination: On Application by the Students, Senate approves for to offer students with a beneficial opportunity to enhance their grades without having to redo an entire course or repeat an academic year. The Student must have therefore sat for the ordinary examinations at first instance.
c) Deferment of studies relate to students postponing enrolment at the university for a semester or a given academic year. The reasons for deferment are various and mostly include reasons such as competing family priorities, health reasons, or other unexpected situations beyond the control of the student.
14. The Petitioners aver that the 6 th Respondent then proceeded to affirm the impugned decision by a further Memo dated 10 th April 2025.
15. The Petitioners postulate that the Respondents’ actions have violated their right to education and legitimate expectation as it has disrupted the Module II Evening Programme. The Petitioners as well argue that the Respondents decision is discriminatory as the Master of Laws and PhD students enrolled in the distance-learning programme have continued to undertake their classes, coursework and examinations online, including the May 2025 examinations, to the exclusion of the Module II Evening students. The Petitioners also argue that the allegations of the use of AI is unfounded as the Respondents have the proctoring technology on their website which is applicable to the Mtihani Portal, thus mitigates the effects of AI.
16. The Petitioners further argue that the Respondents action is ultra vires as seeks to compel them to abandon their contractual mode of online learning and examinations as duly advertised. The Petitioners are equally aggrieved by the Respondents actions as are procedurally unreasonable, unfair and designed to cause an injustice within the meaning of Article 47 of the Constitution. They argue that being stakeholders in the Faculty of Law they ought to have been consulted prior to making the impugned decision. As such, the decision is said to be malicious, lacking in empathy and dignity to students.
17. The Petitioners contend that the Respondents actions are not only in violation of the rule of law but also in violation of their own statutory regulations and examinations guidelines under Sections 16 and 39(2) of the Universities Act and Sections 19(3) (c) of the University of Nairobi Charter. They assert that the Memo in line with these provisions affirm that the 5 th Respondent is the body mandated with governance of examinations and thus has the responsibility to direct mode of administration of examinations. As such, the Memos emanating from the 3 rd and 6 th Respondent are argued to be in breach of these provisions. Nonetheless, they argue that the decision to revert back to physical examinations cannot use the rule retrospectively otherwise such retrospective application is argued to amount to an arbitrary administrative action.
18. The Petitioners are aggrieved that they have suffered irreparable harm as they were not able to sit for the second Semester examinations administered in May 2025 and further August 2025. Considering this, they argue that they have been left stranded, confused and unable to decipher their next steps. Moreover, that the continued suspension of online administration of examinations is highly prejudicial to them.
Respondents’ Case
19. In answering the allegations in the Petition, the Respondents filed Replying Affidavits sworn by the Dean of the Faculty of Law, Prof. Winifred Wambui Kamau and the Academic Registrar, Humphrey O.D. Webuye on 16 th May 2025.The Respondents equally through Prof. Winifred Wambui Kamau and the Academic Registrar, Humphrey O.D. Webuye, filed further affidavits dated 30 th September 2025 and 6 th October 2025 respectively in view of the amended Petition.
20. The dean faculty of law stated that the 1 st Respondent’s Common Regulations for Examinations, August 2021 provide for face to face, online and blended modes of examinations. She asserted that the Bachelor of Laws programme is not an online or distance learning programme, but rather provides for a variety of modes of delivery, including face to face, online and blended modes.
21. She depones that the genesis of this matter was when the academic staff members of the Faculty of Law started raising complaints regarding the quality and integrity of online examinations. This was due to the numerous examination malpractices. Particularly, she states that there had been rampant cheating, plagiarism and use of AI in answering examination questions. She notes that due to this and in line with Clause 1.7 of the Guidelines for Online Examinations (Revised) 2021, various students were subjected to the disciplinary process. That in fact, in 2024 there were 81 examination disciplinary cases.
22. She asserts that in light of this, the Faculty’s Examination Committee was tasked to assess the sustainability of the online mode of conducting examinations and thereafter make recommendations on the appropriate mode of administering examinations. It is stated that the results of the review and survey indicated support by the academic staff for a return to physical examinations and particularly for the Undergraduate Programme. Considering this, the Committee in its Report dated 26 th March 2025, resolved that all undergraduate examinations be conducted physically in the Campus with effect from the 2 nd Semester of 2024 -2025.She asserts that this decision was solely based on the need to safeguard the integrity and quality of examinations in the Faculty as well as the quality of the graduates.
23. She avers that the University of Nairobi Statutes empowers the Board of each Faculty (Faculty Academic Committee) to regulate the conduct of examinations in courses assigned to the Faculty, and to consider and make recommendations on any question relating to the Faculty. As such, in reviewing whether the online mode of examinations was sustainable the Committee drew its mandate from Clause 1.7, Schedule II of the Common Regulations for Undergraduate Examinations, August 2021 which provides for the Guidelines for Online Examinations (Revised) 2021.
24. She depones that the Committee’s Report was communicated on 1 st April 2025 to all students and staff through the Memo dated 28 th March 2025. The Memo was further dispatched to the students via the WhatsApp groups administered by class representatives. She argues that the 47-day notice prior to the commencement of the Second Semester Examinations on 19 th May, 2025 was sufficient in the circumstances to enable the students adjust to the physical mode of examinations.
25. She depones that the Faculty gave the students an opportunity to be heard prior to implementation of the decision. This is through the consultative meeting with the class representatives on 4 th April 2025 and 8 th April 2025.Particularly in the second meeting, it was stated that students who reside outside the Country or campuses and are unable to do the examinations in May 2025, would be accommodated through the provision for special exams in August 2025.
26. Following these meetings, a final Memo dated 10 th April 2025 was issued to all the students. She avers that a number of Module II students even applied for special examinations which was approved. She opposes the allegation of discrimination to Undergraduate students stating that in arriving at its decision, the Faculty Academic Committee took into consideration the demographics of postgraduate students, especially the Master of Arts in Women, Children and Nature Rights (WCNREG), which is a regional programme, where majority of students are based outside Kenya.
27. In fact, she informs that the impugned Memo clearly indicated that online exams for postgraduate students would continue for the time being as preparations are made to accommodate foreign based students to be physically on campus. She adds that compared to the Undergraduate examinations there had not been any cases of examinations malpractice in the postgraduate examinations and also that the programme differs fundamentally from the Undergraduate programme.
28. She stresses that each student upon being admitted in the University signs an acceptance form in which they accept the terms of admission and execute a bond in which they undertake to adhere to all the University Rules and Regulations. Moreover, all students are required to report physically to register for the programme and physically undertake 8-week Clinical Attachment programme in Law Courts across the country. Similarly, she informs that the Faculty has never used e-Class for assessment.
29. Considering these factors, she contends that the 1 st Respondent has never made representations that the mode of learning or examinations would always be online as asserted by the Petitioners and neither is the same stipulated in their terms of engagement. As such, she argues that there is no breach of contract as alleged.
30. In the second affidavit, it is deponed that other than the 11 th Petitioner who was admitted in 2005, the other Petitioners were admitted on diverse dates between 25 th September 2021 and 20 th June 2024. He equally affirms that the Petitioners’ admission to the University was undertaken subject to adherence to its Rules and Regulations, payment of fees, an undertaking to abide by the Terms and Conditions and execution of the students’ bond which all the Petitioners.
31. He adds that the Petitioners having accepted this Terms, were bound by the provisions of the Common Regulations for Undergraduate Examinations, August 2021.He stresses that the online mode of administering examinations was adopted as a stop-gap measure following the onset of COVID 19 pandemic to ensure continuity of academic programmes.
32. Reiterating the stated facts herein above and regards the Petitioners contention that the Respondents failed to inform that the mode of assessment would be reviewed from online to physical, he asserts that the examination regulations provide that the University shall administer assessments in ‘various modes and platforms face-to-face, online and blended’ . Secondly that, pursuant to Article 19 (3) (c) of the University of Nairobi Charter, the 5 th Respondent is bestowed with the mandate to make regulations governing methods of assessing and examining the academic performance of students. This was done through the Common Regulations for undergraduate examinations, August 2021.
33. He avers that under Schedule II, Clause 1.7 of University of Nairobi Common Regulations for Undergraduate Examination, the 5 th Respondent delegated the power to review the online mode of conducting examinations to the Faculty Academic Committee. He states that during the making of these Regulations by the 5 th Respondent, there was student representation. Equally, it is stated that Committee carried out a survey among students to gauge their level of access to campus and discovered that majority of students were based in Kenya and most able to access the campuses.
34. In sum, he argues that the University Rules and Regulations are clear that the mode of assessment is face to face, online and blended and thus opposes the assertion that the 1 st Respondent represented that it would always offer examinations online.
35. In view of the amended Petition, he contends that there is no legal basis for the joinder of the 6 th , 7 th and 8 th Respondents being employees of the 1 st Respondent in their individual capacities and equally already sued as the 2 nd , 3 rd and 4 th Respondents. For this reason, he urges that the Court strikes out their names from the Petition.
Petitioners’ Submissions
36. The Petitioners filed three sets of submissions, one in person by the 1 st Petitioner and others filed by their Counsel, Muiruri CM and Partners Advocates. The submissions are dated 9 th and 24 th October 2025 respectively.
37. The issues identified for determination are: whether the impugned decision was made ultra vires the powers conferred upon the Respondents by law, whether the impugned decision is unlawful for want of meaningful stakeholder consultation and participation, whether the Respondents failed to give adequate and reasonable notice before implementing the decision, whether the impugned decision violated the Petitioners’ legitimate expectation arising from prior representations and established practice, whether the decision breached the Petitioners’ consumer protection rights under statute and contract, whether the impugned decision was tainted by misrepresentation or deceit in its conception and implementation, whether the decision unlawfully created barriers to the Petitioners’ constitutional right to education under Article 43(1)(f) of the Constitution and whether the cumulative effect of these violations renders the impugned decision unconstitutional and therefore liable to be quashed in its entirety.
38. In the first issue, it was submitted that the Faculty Academic Committee made its decision following the academic staff complaints. It was contended that the Committee lacks the requisite delegated authority to review the mode of examination since the same is bestowed on the 5 th Respondent by virtue of Article 19(3) (c) of the University of Nairobi Charter. He submitted that a reading of Schedule II of the Common Regulations for Undergraduate Examinations, August 2021 makes it apparent that the 3 rd Respondent’s role is limited to monitoring online examinations and the role of the Faculty Academic Commit
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1. The Petition dated 14 th April 2025 was amended on 22 nd August 2025 and is supported by the Petitioners’ affidavit in support of similar date. Additionally, the Petition is supported by further affidavits dated 16 th June 2025 and 8 th October 2025.
2. The Petitioners are First Year (1.2), Second Year (2.2) and Third Year (3.2) Module II Evening– Undergraduate Law Students from Nairobi , Mombasa and Kisumu Campuses enrolled at the 1 st Respondent. They assert that they enrolled with the 1 st Respondent’s institution because it had an online Distance Learning Program which indicated that examinations would be offered remotely.
3. The Petitioners claim that in an unprecedented turn of events, the Respondents vide a Memo dated 28 th March 2025 notified the Petitioners that they were required, from then going forward, to undertake their examinations physically. The Petitioners argue that the Respondents’ actions are in blatant violation of their rights under Articles 27, 43(1)(f), 47 and 50 of the Constitution as well as their legitimate expectation.
4. The Petitioners seek the following relief against the Respondents:
i. A declaratory Order be issued that the Respondents’ actions of abrupt and unilateral alteration of the Petitioners’ online learning contract (coursework and administration of examination) to physical, constitutes a violation of the Petitioners’ constitutional rights under Articles 27, 43(1) (f), 46, 47, and 50 of the Constitution, and their statutory rights under the Fair Administrative Action Act, 2015 and the Consumer Protection Act, Cap 501.
ii. A declaratory Order be issued that the Respondents’ actions violated the Petitioners’ legitimate expectation arising from the representations made at the time of enrolment from year 2022 and the consistent practice of administering the Module II Evening Programme online for both coursework and examinations should continue until completion of Petitioners studies leading to graduation and award of Bachelor of Laws Degree.
iii. A Declaratory Order be issued that any action of the Respondents jointly and/or severally that is inconsistent with the online distance learning contract advertised to the Petitioners from year 2022 onwards and all other contrary actions to alter the mode of administration of examinations from online mode to any other are unconstitutional be voided to that extent.
iv. A Declaratory Order be issued that the Respondents’ conduct vide memo dated 28 th March, 2025 and all other subsequent memos negating the online distance learning mode as per the 15 th May, 2025 memo amounts to misrepresentation, unfair practice, and unconscionable conduct within the meaning of Sections 12, 13, 55, and 56 of the Consumer Protection Act, Cap 501.
v. A Declaratory Order be issued compelling the Respondents’ and specifically the 3 rd and 6 th Respondents to administer second semester online examinations to the Petitioners, before the end of December 2025, which they were unable to sit in May 2025 and August 2025.
vi. A Declaratory Order be issued that the Respondents are liable to compensate, by money refunds and /or damages, of the Petitioners who may be forced to drop out of the University because of the impugned decision.
vii. A judicial review order of certiorari removing into this Court and to quash the decision of the 3 rd Respondent together with the Memo issued pursuant to the said decision and all other subsequent memos issued after 13 th May, 2025.
viii. A Judicial review order of mandamus compelling the Respondents to maintain their advertisements for online distance learning to the public until performance of the contract through completion of studies and graduation and therefore stop the Subterfuge.
ix. An Order of mandamus be issued compelling the Respondents to continue administering the Petitioners’ coursework and examinations exclusively online under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
x. An Order of Prohibition be issued directed against the 3 rd , 4 th , 5 th , 6 th, 7 th and 8 th Respondents whether by themselves and or their servants, agents or any person acting on their instructions from interfering and or unjustly altering the Petitioners’ online distance learning contract arrangement under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
xi. An Order of Prohibition be issued directed against the Respondents and or their agents from retracting, deleting and therefore preserve the online webpage and online examination e-learning and Mtihani portal related to the advertisement of online distance learning from anywhere in the world during and after determination of this Petition.
xii. An Order of Certiorari be hereby issued to quash and set aside the decision of the 3 rd and 6 th Respondent to alter mode of examination from online to physical for Module II evening programme thus affecting the Petitioners right to education, legitimate expectation and performance of the online contract under online distance learning.
xiii. An Order of Permanent Injunction be issued restraining the Respondents, jointly and severally, from altering or interfering with the Petitioners’ online distance learning arrangement under the Module II Evening Programme until completion of their studies, graduation and award of Bachelor of Laws Degree.
xiv. An Order of Permanent Injunction be issued against the Respondents jointly and/or severally, their servants to stop interfering with the Petitioners right to the long-established legitimate expectation to have their examinations administered online from the date of determination of this Petition and until completion of their studies leading to graduation and award of a Bachelor of Laws Degree.
xv. General damages be issued against the Respondents for breach of the Petitioners’ Constitutional and Statutory rights, including but not limited to compensation for:
a. Financial loss incurred in reliance on the Respondents’ representations of online distance learning for both coursework and administration of examination as module II evening students;
b. Inconvenience, disruption, and emotional hardship caused by the ulta vires alteration of the mode of administration of examinations that has led to the Petitioners missing out on their Second Semester examinations to date;
c. Subterfuge to recruit the Petitioners under online distance learning, module II program and lock them in, then later change the program to introduce a physical component to avoid students from opting out.
d. Psychological distress, anxiety, and uncertainty suffered by the Petitioners because of the Respondents’ unlawful conduct; and
e. Psychological distress, anxiety, and uncertainty suffered by the Petitioners because of the Respondents’ unlawful conduct.
xvi. Costs of this Petition, together with interest thereon be awarded to the Petitioners.
xvii. Any other or further orders and reliefs that this Court may deem fit, just, and expedient in the circumstances.
xviii. Issue a declaration that the Respondents have threatened the Petitioners' right to education and right to employment as the Memo purports to have them out of workstations for over 2 Weeks to sit for physical examinations at the respective campuses.
Petitioners’ Case
5. The Petitioners depone that prior to enrolling at the 1 st Respondent, the 1 st Respondent, in an official advertisement on their website, invited interested persons to enroll for the Module II Evening Programme, an online course allowing students to study and undertake examinations remotely. The Petitioners claim that this commitment is etched in Clause 1.6 Common Examination Regulations,2021.
6. The Petitioners assert that on this premise, they proceeded to enroll for the Law Course, between the years 2022 – 2024 with the expectation that the learning, coursework and examinations would be conducted online until completion of their studies.
7. The Petitioners state that the Respondents have administered the coursework, assessment and examinations online via the Mtihani Portal, for the last 3 years. According to them, this mode of learning has so far been successful and allowed them to study remotely from anywhere in the world. The Petitioners assert that remote learning is not novel and that the Respondents adopted this mode of learning since 1967.
8. The Petitioners aver that the 3 rd and 6 th Respondent on 28 th March 2025 issued a Memo notifying their intention to revise the mode of conducting examinations at Faculty of Law for the undergraduate students’. As a result, the administration was directed to conduct the subsequent examinations physically at the Nairobi, Mombasa and Kisumu campuses. This was to take effect from the 2 nd Semester of the 2024/2025 academic year, being May, 2025.
9. The Petitioners allege that they only became aware of the issued Memo after the decision had been made and posted on their WhatsApp group on 1 st April 2025. In reaction, the Petitioners through their representative, issued a formal demand letter dated 4 th April, 2025 to the 3 rd , 4 th and 6 th Respondents, seeking a retraction of the impugned decision and for continuation of online examinations. This is owing to the existing learning contract and their legitimate expectation. Moreover, due to the need for balancing given the nature of their work and travel constraints considering that some work and reside outside the country.
10. It is stated that following this, the 3 rd and 6 th Respondent convened a meeting on 14 th April 2025 with the representatives of the Regular, Module II Day, and Module II Evening classes. The representatives raised issues regarding the abrupt shift. The Petitioners contend that the Respondents justified their decision by stating that they had received reports of students relying on Artificial Intelligence (AI) in their scripts, and thus needed to curb the practice through administration of examinations physically.
11. They assert however that while the Respondents claim this, their allegation does not relate to any of the Petitioners as evidenced from the Minutes of its Disciplinary Committee. Nonetheless, the Petitioners argue that the Respondents have in place administrative mechanisms to handle examination malpractice that emanate from physical and online examinations including the alleged use of AI.
12. The Petitioners depone that, a second meeting was convened on 10 th April 2025 by the 3 rd and 6 th Respondents with the class representatives. The representatives in opposition to the impugned Memo voiced their objection to the same on the basis that:
a) That administration of physical examinations to the Petitioners is impractical to them due to work, geographical location, family and time constraints. For instance, the 9 th Petitioner resides and works in United States of America while the 51 st Petitioner works and resides in Australia. As such, it was noted that a primary reason leading to Petitioners enrolling for Module II Evening Studies was based on the Online advertisement by the Respondents in their Webpages for an Online Distance Learning Module that would allow the Petitioners to study from anywhere in the World while balancing work and family life, otherwise risk dropping out of school.
b) The Petitioners did not choose either Module I day or Regular mode of study due to their inability to attend regular daytime classes. The administration of physical examinations, potentially lasts two weeks, and would require the Petitioners who are accustomed to online mode of study to significantly be present physically, have time off work, consequently obtaining exam leave days of up to 20 hours a day, which is challenging for many.
c) The Petitioner’s representatives informed the 6 th Respondent that the change of examinations mode to physical is a breach of online distance learning contract as advertised in the Respondents webpages and their legitimate expectation. That the Petitioners enrolled in the program specifically because it offered online classes and exclusively, online examinations. Accordingly, a contract was formed and established on this understanding, and a practice adopted since year 2022.
d) The Petitioners deemed the impugned decision and the directive as unreasonable in comparison to postgraduate students for the memo's distinction between undergraduate and postgraduate students, with postgraduate programs continuing with online administration of examinations uninterrupted. The Petitioners termed such actions as discriminatory, unfair and unreasonable.
e) The Petitioners raised logistical challenges due to their geographical location with some of the Petitioners working across the Country stationed in different Counties and some working and residing outside the Country. Thus the abrupt impugned decision is not only likely to cause financial harm but is also impractical and would lead the Petitioners dropping out of school effectively affecting their right to education.
f) The Petitioners questioned the rationale presented by the Respondents to justify the impugned decision to which the Respondents did not issue an explicit response but highlighted the alleged use of AI in examination scripts as was reported by their staff two years ago.
g) The Petitioners insisted that the Mtihani Portal, which is used to submit coursework and examinations lacks a copy and paste function therefore, there is a mechanism in place to curb examination cheating. Furthermore, there is a proctoring technology within the Respondents websites and online portals, which is an advanced technology that exists to detect Artificial Intelligence-generated content effectively and throughout the years; open-book online examinations naturally, involve referencing materials.
h) The Petitioners’ representatives also voiced their concerns with regards to the lack of due process and adherence to procedure in arriving at the impugned decision. It was their contention that the Petitioner’s representatives were not invited or consultated under Public Participation rules prior to the issuance of the impugned decision. They stated that as fee-paying stakeholders, the Petitioners ought to have been involved as the decision is not only significant but one that threatens their right to education and legitimate expectation to complete their studies online and have examinations administered as such until completion of their studies, graduation and award of Bachelor of Laws Degree.
i) The Petitioners through their representatives informed the 6 th Respondent that the impugned decision has far-reaching consequences including potential drop-out from Module II Evening program by the Petitioners due to the insurmountable challenges the decision poses to their work and personal lives contrary to the exclusive online contract entered into for online study and administration of examinations until completion of their studies, graduation and award of Bachelor of Laws Degree.
j) The Petitioners termed the decision by the Respondents and the announcement by the 6 th Respondent as unfair and unreasonable for they learnt of the abrupt change of decision on April 1st, 2025, which was suspicious, as Petitioners initially thought it was a prank for the day is famously known as April fool’s day. The memo was not communicated on any official school email but only on students WhatsApp groups.
13. The Petitioners assert that to their dismay after tabling these concerns at the meeting, the 6 th Respondent dismissed them and maintained that the impugned decision was final. He further advised that the students who were unable to sit for the physical examinations for various reasons to apply for special examinations. This is despite the purpose of such examinations and key grievance herein, for the following reasons:
a) Special Examinations: On Application by the Students, the University Senate approves for noble/satisfactory cause , such as sickness, bereavement for the Student who missed to take ordinary examinations to take Special examinations.
b) Supplementary Examination: On Application by the Students, Senate approves for to offer students with a beneficial opportunity to enhance their grades without having to redo an entire course or repeat an academic year. The Student must have therefore sat for the ordinary examinations at first instance.
c) Deferment of studies relate to students postponing enrolment at the university for a semester or a given academic year. The reasons for deferment are various and mostly include reasons such as competing family priorities, health reasons, or other unexpected situations beyond the control of the student.
14. The Petitioners aver that the 6 th Respondent then proceeded to affirm the impugned decision by a further Memo dated 10 th April 2025.
15. The Petitioners postulate that the Respondents’ actions have violated their right to education and legitimate expectation as it has disrupted the Module II Evening Programme. The Petitioners as well argue that the Respondents decision is discriminatory as the Master of Laws and PhD students enrolled in the distance-learning programme have continued to undertake their classes, coursework and examinations online, including the May 2025 examinations, to the exclusion of the Module II Evening students. The Petitioners also argue that the allegations of the use of AI is unfounded as the Respondents have the proctoring technology on their website which is applicable to the Mtihani Portal, thus mitigates the effects of AI.
16. The Petitioners further argue that the Respondents action is ultra vires as seeks to compel them to abandon their contractual mode of online learning and examinations as duly advertised. The Petitioners are equally aggrieved by the Respondents actions as are procedurally unreasonable, unfair and designed to cause an injustice within the meaning of Article 47 of the Constitution. They argue that being stakeholders in the Faculty of Law they ought to have been consulted prior to making the impugned decision. As such, the decision is said to be malicious, lacking in empathy and dignity to students.
17. The Petitioners contend that the Respondents actions are not only in violation of the rule of law but also in violation of their own statutory regulations and examinations guidelines under Sections 16 and 39(2) of the Universities Act and Sections 19(3) (c) of the University of Nairobi Charter. They assert that the Memo in line with these provisions affirm that the 5 th Respondent is the body mandated with governance of examinations and thus has the responsibility to direct mode of administration of examinations. As such, the Memos emanating from the 3 rd and 6 th Respondent are argued to be in breach of these provisions. Nonetheless, they argue that the decision to revert back to physical examinations cannot use the rule retrospectively otherwise such retrospective application is argued to amount to an arbitrary administrative action.
18. The Petitioners are aggrieved that they have suffered irreparable harm as they were not able to sit for the second Semester examinations administered in May 2025 and further August 2025. Considering this, they argue that they have been left stranded, confused and unable to decipher their next steps. Moreover, that the continued suspension of online administration of examinations is highly prejudicial to them.
Respondents’ Case
19. In answering the allegations in the Petition, the Respondents filed Replying Affidavits sworn by the Dean of the Faculty of Law, Prof. Winifred Wambui Kamau and the Academic Registrar, Humphrey O.D. Webuye on 16 th May 2025.The Respondents equally through Prof. Winifred Wambui Kamau and the Academic Registrar, Humphrey O.D. Webuye, filed further affidavits dated 30 th September 2025 and 6 th October 2025 respectively in view of the amended Petition.
20. The dean faculty of law stated that the 1 st Respondent’s Common Regulations for Examinations, August 2021 provide for face to face, online and blended modes of examinations. She asserted that the Bachelor of Laws programme is not an online or distance learning programme, but rather provides for a variety of modes of delivery, including face to face, online and blended modes.
21. She depones that the genesis of this matter was when the academic staff members of the Faculty of Law started raising complaints regarding the quality and integrity of online examinations. This was due to the numerous examination malpractices. Particularly, she states that there had been rampant cheating, plagiarism and use of AI in answering examination questions. She notes that due to this and in line with Clause 1.7 of the Guidelines for Online Examinations (Revised) 2021, various students were subjected to the disciplinary process. That in fact, in 2024 there were 81 examination disciplinary cases.
22. She asserts that in light of this, the Faculty’s Examination Committee was tasked to assess the sustainability of the online mode of conducting examinations and thereafter make recommendations on the appropriate mode of administering examinations. It is stated that the results of the review and survey indicated support by the academic staff for a return to physical examinations and particularly for the Undergraduate Programme. Considering this, the Committee in its Report dated 26 th March 2025, resolved that all undergraduate examinations be conducted physically in the Campus with effect from the 2 nd Semester of 2024 -2025.She asserts that this decision was solely based on the need to safeguard the integrity and quality of examinations in the Faculty as well as the quality of the graduates.
23. She avers that the University of Nairobi Statutes empowers the Board of each Faculty (Faculty Academic Committee) to regulate the conduct of examinations in courses assigned to the Faculty, and to consider and make recommendations on any question relating to the Faculty. As such, in reviewing whether the online mode of examinations was sustainable the Committee drew its mandate from Clause 1.7, Schedule II of the Common Regulations for Undergraduate Examinations, August 2021 which provides for the Guidelines for Online Examinations (Revised) 2021.
24. She depones that the Committee’s Report was communicated on 1 st April 2025 to all students and staff through the Memo dated 28 th March 2025. The Memo was further dispatched to the students via the WhatsApp groups administered by class representatives. She argues that the 47-day notice prior to the commencement of the Second Semester Examinations on 19 th May, 2025 was sufficient in the circumstances to enable the students adjust to the physical mode of examinations.
25. She depones that the Faculty gave the students an opportunity to be heard prior to implementation of the decision. This is through the consultative meeting with the class representatives on 4 th April 2025 and 8 th April 2025.Particularly in the second meeting, it was stated that students who reside outside the Country or campuses and are unable to do the examinations in May 2025, would be accommodated through the provision for special exams in August 2025.
26. Following these meetings, a final Memo dated 10 th April 2025 was issued to all the students. She avers that a number of Module II students even applied for special examinations which was approved. She opposes the allegation of discrimination to Undergraduate students stating that in arriving at its decision, the Faculty Academic Committee took into consideration the demographics of postgraduate students, especially the Master of Arts in Women, Children and Nature Rights (WCNREG), which is a regional programme, where majority of students are based outside Kenya.
27. In fact, she informs that the impugned Memo clearly indicated that online exams for postgraduate students would continue for the time being as preparations are made to accommodate foreign based students to be physically on campus. She adds that compared to the Undergraduate examinations there had not been any cases of examinations malpractice in the postgraduate examinations and also that the programme differs fundamentally from the Undergraduate programme.
28. She stresses that each student upon being admitted in the University signs an acceptance form in which they accept the terms of admission and execute a bond in which they undertake to adhere to all the University Rules and Regulations. Moreover, all students are required to report physically to register for the programme and physically undertake 8-week Clinical Attachment programme in Law Courts across the country. Similarly, she informs that the Faculty has never used e-Class for assessment.
29. Considering these factors, she contends that the 1 st Respondent has never made representations that the mode of learning or examinations would always be online as asserted by the Petitioners and neither is the same stipulated in their terms of engagement. As such, she argues that there is no breach of contract as alleged.
30. In the second affidavit, it is deponed that other than the 11 th Petitioner who was admitted in 2005, the other Petitioners were admitted on diverse dates between 25 th September 2021 and 20 th June 2024. He equally affirms that the Petitioners’ admission to the University was undertaken subject to adherence to its Rules and Regulations, payment of fees, an undertaking to abide by the Terms and Conditions and execution of the students’ bond which all the Petitioners.
31. He adds that the Petitioners having accepted this Terms, were bound by the provisions of the Common Regulations for Undergraduate Examinations, August 2021.He stresses that the online mode of administering examinations was adopted as a stop-gap measure following the onset of COVID 19 pandemic to ensure continuity of academic programmes.
32. Reiterating the stated facts herein above and regards the Petitioners contention that the Respondents failed to inform that the mode of assessment would be reviewed from online to physical, he asserts that the examination regulations provide that the University shall administer assessments in ‘various modes and platforms face-to-face, online and blended’ . Secondly that, pursuant to Article 19 (3) (c) of the University of Nairobi Charter, the 5 th Respondent is bestowed with the mandate to make regulations governing methods of assessing and examining the academic performance of students. This was done through the Common Regulations for undergraduate examinations, August 2021.
33. He avers that under Schedule II, Clause 1.7 of University of Nairobi Common Regulations for Undergraduate Examination, the 5 th Respondent delegated the power to review the online mode of conducting examinations to the Faculty Academic Committee. He states that during the making of these Regulations by the 5 th Respondent, there was student representation. Equally, it is stated that Committee carried out a survey among students to gauge their level of access to campus and discovered that majority of students were based in Kenya and most able to access the campuses.
34. In sum, he argues that the University Rules and Regulations are clear that the mode of assessment is face to face, online and blended and thus opposes the assertion that the 1 st Respondent represented that it would always offer examinations online.
35. In view of the amended Petition, he contends that there is no legal basis for the joinder of the 6 th , 7 th and 8 th Respondents being employees of the 1 st Respondent in their individual capacities and equally already sued as the 2 nd , 3 rd and 4 th Respondents. For this reason, he urges that the Court strikes out their names from the Petition.
Petitioners’ Submissions
36. The Petitioners filed three sets of submissions, one in person by the 1 st Petitioner and others filed by their Counsel, Muiruri CM and Partners Advocates. The submissions are dated 9 th and 24 th October 2025 respectively.
37. The issues identified for determination are: whether the impugned decision was made ultra vires the powers conferred upon the Respondents by law, whether the impugned decision is unlawful for want of meaningful stakeholder consultation and participation, whether the Respondents failed to give adequate and reasonable notice before implementing the decision, whether the impugned decision violated the Petitioners’ legitimate expectation arising from prior representations and established practice, whether the decision breached the Petitioners’ consumer protection rights under statute and contract, whether the impugned decision was tainted by misrepresentation or deceit in its conception and implementation, whether the decision unlawfully created barriers to the Petitioners’ constitutional right to education under Article 43(1)(f) of the Constitution and whether the cumulative effect of these violations renders the impugned decision unconstitutional and therefore liable to be quashed in its entirety.
38. In the first issue, it was submitted that the Faculty Academic Committee made its decision following the academic staff complaints. It was contended that the Committee lacks the requisite delegated authority to review the mode of examination since the same is bestowed on the 5 th Respondent by virtue of Article 19(3) (c) of the University of Nairobi Charter. He submitted that a reading of Schedule II of the Common Regulations for Undergraduate Examinations, August 2021 makes it apparent that the 3 rd Respondent’s role is limited to monitoring online examinations and the role of the Faculty Academic Commit
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