'Introduction
1. The Petitioners are part of the Module II evening students at the 1st Respondent’s Faculty of Law. They filed the instant Petition dated 14thApril 2025 alleging that enrolled in the program because of the 1st Respondent representation that the Course studyand examinations will be offered online. The Petitioners affirm that for the last 3 years this has been the position.
2. However, in anunexpected twist; the 1st Respondent released a memo dated 28th March 2025 pointing out that the Petitioners would henceforth taking their examinations physically.
3. Aggrieved by this action, the 1st Petitioner on his own behalf and on behalf of the current Module II evening students wrote to the Respondents protesting this development and thereafter instituted this Petition.
4. After the issuance of interim Conservatory Orders, the Intended Interested Parties filed a Notice of Motion Application dated 14th May 2025 seeking to be joined in this suit among other orders.
5. The Petitioner also filed a Notice of Motion application seeking to amend the Petition dated 26th May 2025.
6. Moreover, there was also an undated Notice of Motion application that was filed by the Intended Petitioners seeking to be joined in the suit.
7. The aforementioned Applicationsare the subject of this ruling.
THE JOINDER APPLICATION BY INTERESTED PARTIES DATED 14TH MAY 2025.
8. The Intended Interested Parties in their Notice of Motion application dated 14thMay 2025 seek orders that:
i. Spent.
ii. The Applicants/Intended Interested Parties are and hereby made interested parties to this Petition.
iii. Pending the hearing and determination of this Application inter parties, this Court be pleased to issue an interim order suspending the conservatory orders issued on 13th May 2025 to the extent that they prevent the Respondents from administering physical examinations to evening students who are willing to undertake them.
iv. This Court be pleased to vary or set aside the conservatory orders issued on 13th May 2025 to allow the Respondents to administer physical examinations to evening students who consent to the same, without prejudice to the Petitioners’ case.
v. In the alternative, this Court be pleased to clarify that the conservatory orders issued on 13th May 2025 do not preclude the Respondent from administering physical examinations to evening students who are willing to undertake them.
vi. The Court, be pleased to issue any other Order as it may deem just, appropriate and expedient in the interest of justice.
vii. The costs of this Application be provided for.
9. The application is supported by the 1st Intended Interested Party’s affidavit, sworn on even date and the grounds on the face of the application.He is a fourth-year student pursuing the Bachelor of Laws Program at the 1st Respondent’s Parklands Campus.
10. He deponed that the Court Orders issued on 13th May 2025 related to the implementation of the Memo dated 28th March 2025 which required all students to sit for their end of semester examinations physically. He stated that these Orders were issued to Petitioners who are not in their final year of study and who thus did not face the same level of urgency as the Fourth-year students who were looking forward to finish their studies.
11. He swore that at no point were the Fourth-year students in Module II consulted or represented in these proceedings where the conservatory was sought orders neither was their authorization obtained to be constituted in the Petition.
12. He explained that the Respondents had applied the conservatory orders in a blanket manner suspending all physical examinations for all Module II evening students, including those willing and able to sit for the examination as scheduled.
13. He stated the blanket application was an unfair administrative action as no distinction wasbeing made between those who oppose and those who support the examination policy as is evident in this case. He insisted that the Petitioners and Intended Interested Parties held opposing views.
14. The reason for seeking to be enjoined in this suit was thus to protect their academic and professional future which they saw being threatened by this Petition.He contended that the joinder will allow the Court to consider their interests in the dispute before making a determination that will affect and bind all Module II evening students.
Petitioners’Case
15. In response, the Petitioners filed their Replying Affidavits by the 1st Petitioner sworn on 16th May 2025 and the 29th Petitioner sworn on 16th May 2025.
16. The 1st Respondent stated that contrary to the Intended Interested Parties claim, 6 student consultative meetings were held and these meetingsincluded the fourth-year students, who constitute the Intended Interested Parties. He explained that the decision to file the instant suit was made following these consultative meetings.
17. Hedeponed that 38 out of the 115 Module II evening students participated in the survey and all the 38 opposed the change of mode of examinations.He notesthat 7 out of 38 now falsely claim that they were not consulted.
18. The 29th Petitioner argues that the Intended Interested Parties have failed to show that they have any stake in the Petition. Equally, he points out that they were well aware of the Petition from its inception but chose not to participate until issuance of the conservatory orders, which demonstrates a lack of good faith on their part.
19. He further argues that an Intended Interested Party cannot directly seek substantive orders as those sought unless they are formally joined as a parties to the suit. Similarly, he argues that an Interested Party cannot frame new issues or seek orders that would impact the primary parties.
20. That said, he states that the Intended Interested Parties have not demonstrated any of the grounds set out for setting aside of conservatory orders. He claims that the Application is self-serving and aimed at substituting the Court’s discretion with their own preferences rather establishing a legal basis for setting the orders aside.
21. He notes that the issued conservatory orders have been misinterpreted by both the Respondents and Intended Interested Parties and thus prays that this Court clarifies whether the orders dated 13th May 2025 suspend online examinations for Module II students as per the Respondents’ Memo dated 28th March 2025 and whether the Orders suspend the physical examinations by the Respondents as alleged by the Intended Interested Parties.He claims in closing that, the Application in total lacks merit and thus should be dismissed.
Respondents’ Case
22. In support of this Application, the Respondents’ filed their Replying Affidavit sworn on 16th May 2025 by the 3rd Respondent, Prof. Winfred Wambui Kamau.
23. She depones that following the issuance of the aforesaid conservatory orders, the Respondents received petitions and dissatisfaction letters from 49 Module II evening students who constitute46 out of the 49 students who are the Intended Interested Parties herein.
24. She states that the students expressed their interest to sit for the physical examinations scheduled for May 2025. The students added that they were not part of the Petitioners and were aggrieved because any change of schedule would adversely affect them if the examinations did not take place as planned as it would unnecessarily delay their graduation and admission to the Kenya School of Law by at least a year.
25. She indicated that this Application lays bare that the 39 Petitioners misrepresented the true facts to the Court and falsely indicated that they had been granted authority to sue on behalf of all Parklands Module II Evening Students. She claims therefore that the Petitioners relied on this fraudulent misrepresentation of facts to obtain the conservatory orders to the detriment of the 585 Module II Evening Students and the Respondents in regard to the May 2025 examinations.
26. She swore that the undergraduate students are clustered in distinct cohorts of Regular, Module II Day, Module II Evening, Mombasa and Kisumu and are registered separately. She asserts that the Petitioners have not demonstratedthat they have been authorized to act on behalf of the Mombasa and Kisumu students. Nonetheless she asserts that the prayers sought in the Notice of Motion application only referred to Parklands Module II evening students.
Parties Submissions
27. The parties’ submissions are not in the Court file or Court Online Platform (CTS).
THE APPLICATION DATED 26TH MAY, 2025 FOR LEAVE TO AMEND THE PETITION
28. The Petitioners in their Notice of Motion application dated 26th May 2025 seek orders that:
i. The Court be pleased to grant leave for the Petitioners to amend the Petition dated 14th April, 2025, together with its statements, and supporting Affidavits in the manner shown in the draft filed herewith.
ii. The Court be pleased to allow the Petitioners invitation to abandon the Notice of Motion Application dated 14th April, 2025 in its entirety including the reserved date for the same has since been overtaken by events, and consequently grant leave for the Petitioners to prosecute the Amended Petition of 26th May, 2025 to its conclusion on or before the end of June, 2025, which is the end of the Applicants/Petitioners Academic calendar year.
iii. In grant of prayer 2 above, the Court be pleased to accept the Petitioners Further Affidavits and written submissions in the prosecution of the Petition as soon as possible in order to safeguard the academic rights of the Applicants/Petitioners to have their examinations administered online before the end of June, 2025 which is the end of the Applicants/Petitioners Academic calendar year.
iv. The Court be pleased to exercise its discretion to grant the Amended Petition a nearer hearing date in the absence of the Notice of Motion Application dated 14th April, 2025 in order to safeguard the academic rights of the Applicants/Petitioners to have their examinations administered online before the end of June, 2025 which is the end of the Applicants/Petitioners Academic calendar year.
v. The Court be pleased to note that the Respondents, vide a Memo dated 15th May, 2025 by the Academic Registrar Affairs, being the 3rd Respondent has indicated that they shall offer June, 2025 Online Examinations as was approved by the Senate, and it is therefore prudent for the Petitioners to pray that this Court compels and mandates the Respondent to have the Petitioners undertake their end of academic year examinations in June, 2025 and not any other later date.
vi. Upon grant of order 1 to 5 above, the Court be pleased to admit the Amended Petition together with its statements, and supporting Affidavits for directions on hearing of the Petition upon payment of requisite court filing fees.
vii. Costs of this application be in the cause.
29. The application is supported by the 2nd Petitioner’s affidavit, sworn on even date and the grounds on the face of the application.The 2nd Petitioner informs that he swears this Affidavit with the consent and authority of all the 115 affected students.
30. The 2nd Petitioner avers that the Petitioners seek to amend the Petition as crucial issues of law and facts were inadvertently left out. He notes that this omission was not deliberate but was as a result of their Counsel’s excusable oversight.
31. Specifically, he depones that the Petition missed to plead that the Memo dated 28th March, 2025 issued by the Respondents, specifically aggrieved the First Year (1.2), Second Year (2.2) and Third Year (3.2) Module II – Evening Undergraduate Law Students drawn from Nairobi, Mombasa and Kisumu Campuses. Moreover, that these students did not sit for their May 2025 examinations as the Responds declined to honour the terms of the online learning contract to administer online examinations during the same period. Additionally, that the Petitioners and affected students are completely unable to sit for their examinations physically thus the reason they enrolled in the Respondents online learning programme, terms of which are clear in the attendant contract.
32. Further, he notes that the Respondents administered physical examinations during the May, 2025 examinations from 19th May to 30th May, 2025 to the exclusion of the Petitioners. As such, some of the prayers sought in the Application dated 14th April, 2025 and the Petition have since been overtaken by events.
33. He informs that vide a Memo dated 15th May 2025 the 3rd Respondent indicated that they would offer June, 2025 Online Examinations and thus the Petitioners pray that this Court compels and mandates the Respondents to have the Petitioners undertake their end of academic year examinations in June, 2025 and not any other later date.
34. He asserts that the amendments to the Petition are necessary for the purposes of determining the real issues in controversy between the Petitionersand the Respondents herein. Equally that there is need to safeguard the Petitioners and affected students’ rights and legitimate expectation.
35. He notes that owing to the Respondents academic policy, a student is hindered from proceedings forward to the next class or judicial attachment without completing the previous years’ examinations. He stresses that the academic year for Module II evening students ends in June, 2025 and as such they are required to proceed for mandatory judicial attachment thereafter.
36. Additionally, he contends that no prejudice will be occasioned to the Respondents if the amendments are admitted as they will have the right to make a reply to the amended Petition.
Respondents’ Case
37. The Respondent’s through the 3rd Respondent, Prof. Winfred Wambui Kamau filed their Replying Affidavit sworn on 13th June 2025.
38. She states that the Petitioners’ application is incurably defective since the draft amended Petition annexture has not been marked and sealed with the seal of a Commissioner for Oaths thus offends Rule 9 of the Oaths and Statutory Declarations Rules. Furthermore, she states that the draft amended Petition is not supported by an affidavit. Equally, she avers that annextures MRW 1, 3, 4, 5, 6, 7 and 8 referred to are not attached in the Supporting affidavit while other documents are not marked and sealed thus should also be struck out.
39. She also states that the consents of the 115 students are not attached to the Supporting Affidavit and neither are the 115 students identified, indicating that they authorized the Petitioners to sue on their behalf. Correspondingly that the 2nd Petitioner is in breach of the Data Protection law for attaching some of the students’ fees statements and student identity cards without their consent. She adds that some of the affidavits attached are misleading as were already attached to the original Petition dated 14th April 2025. On this premise, he urges that the Application should be struck out.
40. She claims that the 2nd Petitioner’s allegation that the 115 students are drawn from not only Nairobi but also Mombasa and Kisumu lacks basis. This is since Mombasa and Kisumu students are registered separately and comprise of separate cohorts from Nairobi Module II evening students. She further notes that the Mombasa and Kisumu students sat for the physical examinations in May 2025. She asserts that addition of these cohorts changes the cause of action into a substantially different character. This is since the original Petition did not mention Mombasa and Kisumu students and orders sought were primarily with reference to the Parklands Module II evening students.
41. She depones that the proposed amendments seek to introduce the issue of the Memo dated 15th May 2025 which notice was not applicable to the faculty of law undergraduate examinations which were all administered physically in May. She informs that no examinations are offered in June as advanced, only special or supplementary examinations offered in August. She states that all the examinations were administered in compliance with the Court Orders that were issued on 13th and 19th May 2025.
42. It is also asserted that the Bachelor of Laws programme is not an online or distance learning programme but rather provides a variety of modes of delivery being face to face,online and blended modes. She argues thus that it is false that the 1st Respondent represented that their Module was solely online.
43. Chiefly, the Respondents oppose the Application as the draft Amended Petition is claimed to introduce new orders and new parties not contemplated in the original Petition thereby constituting a new cause of action contrary to the rules of procedure. It is argued therefore that the Application ought to be dismissed.
Petitioners’ Submissions
44. The Petitioners filed their submissions dated 7th July 2025 by their advocates Muiruri C.M. and Partners Advocates.The issues for discussion were identified as:whether the Petitioners have met the threshold for amendment of the Petition, whether the amendment of Petition changes its substance, whether the objections raised by the Respondents are procedural technicalities that can be cured and whether the doctrine of legitimate expectation applies in favour of the Petitioners and Interested Petitioners.
45. On a preliminary note, Counsel submitted that the Petition dated 14th April, 2025 was filed with the intention of suing on behalf of all current University of Nairobi Bachelor of Laws Module II Evening Students. Counsel acknowledged that the other 79 students have since filed an application to be joined in this suit as additional Petitioners.Counsel noted that the 115 students did not sit for their second semester examinations which were administered physically.
46. Counsel pointed out that the Respondents have not proved that the Mombasa and Kisumu students had sat for their exams as alleged. Counsel further noted that the examination timetables for previous academic years, including 2022/2023, 2023/2024, and 2024/2025, show that the Respondents administered evening online examinations in June 2024 to all Bachelor of Laws students from the Parklands, Kisumu, and Mombasa campuses. Counsel on this premiseopposed the Respondents allegation that the instant Application seeks to introduce new issues and parties.
47. On the first issue, Counsel submitted that the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) under Rule 18 allow a party to amend its pleadings at any stage with the leave of the Court. Counsel submitted that this principle is also echoed in Orders 8 Rule 3,5, and 8 of the Civil Procedure Rules, 2010.Relaince was placed in Central Kenya Ltd v. Trust Bank Ltd [2002] 2 EA 365 where the Court of Appeal held that:
“Amendment of pleadings should always be allowed to make such amendments as are necessary for determining the real issues in controversy or avoiding a multiplicity of suits.”
48. Like dependence was placed in Ann Muthoni Karanu v. La Nyavu Gardens Ltd[2015] eKLR and Mohammed Haji Hussein & 6 Others v Mandera Water Co. (2021) eKLR.
49. In light of this, Counsel submitted that pursuant to the set Rulesthe Petitioners had successfully argued their legal basis for amendment of their Petition. Counsel added that the amendments are not only necessary for the just determination of the issues but will also save onjudicial time. Additionally, Counsel submitted that the Petitioners had met the procedural requirements for joinder of multiple Petitioners as had attached the consents and authority of the 115 parties.
50. On the second issue, Counsel submitted that the amendments sought align with the cause of action raised in the original Petition, that is,administration of online examinations before the end of the academic year 2024/2025 to enable the Petitioners progress with their academic quest into the next academic year unhindered. Likewise, Counsel submitted that the Petitioners and Interested Petitioners through these amendments seek to clarify and amplify the existing issues not create new ones.
51. Counsel stressed that the change of position by the Respondents in their actions through the subsequent memos that are intent on coercing the Petitioners and Interested Petitioners to alter their mode of examination administration to physical has necessitated the Petitioners to seek for amendment of the Petition as they remain in abeyance and confusion.Counsel added that the Respondents had not demonstrated how the amendment of Petition would prejudice them or alter the nature of the Petition.
52. Counsel urged the Court to be guided by the case of Dominic Ombagi & 120 Others v. Kisii University & 8 Others [2020] eKLR, a constitutional petition in the Employment & Labour Relations Court, where 68 additional Petitioners were allowed to join a Petition challenging unlawful redundancies, as they were all employees affected by the same decision. Importantly, the High Court in that case directed that an Amended Petition be filed naming the new Petitioners, reinforcing that the proper procedural course is to amend the Petition to encompass the additional parties.
53. Turning to the third issue, Counsel submitted that the Respondents objections to the additional partiesjoinder based on the unmarked exhibits constitutes a technical objection that can be cured. Counsel pointed out that Order 19 Rule 7 of the Civil Procedure Rules, allows the Court to receive an affidavit despite an irregularity in form as long as an affidavit is substantially compliant. Counsel submitted that this principle is anchored in the Constitution under Article 159 (2)(d). To buttress this point reliance was placed in Nuru Ruga Ali & another v Commodity House Limited & 3 others [2021] eKLR where it was held that:
“Procedural rules are handmaidens of justice meant to facilitate, not frustrate, decision on the merits.”
54. Like dependence was placed in Mohammed Haji Hussein & 6 Others v Mandera Water Co. (2021) eKLR.
55. On the next issue, Counsel submitted that the Petitioners reasonably expected that, with the administration of online examinations to them in the past three academic years, that is 2022/2023, 2023/2024, 2024/2025 (January/February, 2025), the Respondents would administer online examinations until completion of their studies.As such, Counsel submitted that the Respondents'' intentional, abrupt and unfair reversal of this long-established practice, without consultation, violates the doctrine of legitimate expectation.
56. Reliance was placed in Constitutional Petition E213 of 2020: Kamau & another (Suing on their own behalf and on behalf of 80 University of Nairobi Law School Students) v The University of Nairobi & 2 others; Attorney General & another (Interested Parties) where the Court held that:
“The practice of distance open learning in the University of Nairobi dates back to 1967 and that the University has since then recognized and sustained that mode of learning under the Constitution, the Universities Act, 2012 and the University of Nairobi Charter, 2013- See Paragraph 29 and 30 of that decision.”
57. Comparable reliance was placed in Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR.
58. Counsel thus urged that owing to the Respondents intentional and consistent violations of the Petitioners and Interested Petitioners right to education, legitimate expectation, the time constraints and uncertainty that they are experiencing, that the Court be inclined to grant an order of status quo ante and conservatory orders, for the administration of the online examinations to all the Petitioners, which existed prior to the issuance of the memo dated 28th March 2025. This is since grant of the orders will serve to protect, safeguard and uphold the Petitioners’ constitutional right to education by enabling them to sit for their online examinations prior to the conclusion of the academic year in August 2025.
Respondent’s Submissions
59. In opposition, the Respondents filed submissions dated 31st July 2025 through their Counsel CS. Fredrick Collins Omondi.
60. Counsel commenced by submitting that the Petitioners substituted supporting Affidavit to their Application is irregularly on record and is not drawn in the form of an affidavit. Considering this, it is argued that it offends the provisions of Order 19 (4) & (5) of the Civil Procedure Rules thus should be struck out.
61. Counsel referring to the Notice of Withdrawal by the 1st Petitioner, Leonard Omondi Aluko, submitted that it was him who swore the affidavit in support of the Petitioners with their authorization.Counsel argued that in the absence of Leonard Omondi Aluko as a Petitioner, there is no Petition on record to be amended.
62. Counsel moving on to the next issue, submitted that the sought amendments should not be allowed for a number of reasons. First that no lawful basis exists to include the 6th, 7th and 8th Respondents in their individual capacities as parties in the Petition. This is because Article 3(2) of the University of Nairobi Charter, 2013 makes it clear that the 1stRespondent is a body corporate capable of suing and being sued in its name.
63. Secondly, Counsel submitted that no consents or authority to sue executed by the alleged 115 Module II evening students had been produced before this Court. According to Counsel, the Petitioners cannot claim to sue on behalf of the 115 students without procuring their consents and authority to do so.
64. Thirdly, Counsel submitted that the amendments seek to alter the nature of the Petition. Counsel pointed out that the original Petition revolved around the Module II evening students at Parklands while the Amended Petition seeks to add students from Mombasa and Kisumu. Equally, Counsel submitted that the amended Petition seeks to have the Court compel the Respondents to issue online examinations to the Petitioners by the end of June 2025 owing to the Memo dated 15th May 2025. It was noted that this was not the cause of action in the original Petition and introduces a new issue.
65. Counsel relied in Institute for Social Accountability& another v Parliament of Kenya & 2 others [2014] KEHC 7356 (KLR) where it was held that:
“The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided no new or inconsistent cause of action is introduced.”
UNDATED APPLICATION SEEKING JOINDER OF PETITIONERS
66. The proposed Petitioners filed an undated Notice of Motion application seeking to join instant Petition. They seek orders that:
i. Spent.
ii. The Applicants be granted leave to join the Petition and be admitted as Petitioners.
iii. Pending the hearing and determination of this Application inter partes, this Court be pleased to issue interim orders suspending the internal memo dated 19th May, 2025 by the 3rd Respondent to the extent that it infringes on the Applicants and the Petitioners legitimate right to administration of online examination before the end of academic year in June, 2025 in the 2024/2025 academic year of study.
iv. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the 3rd Respondent to issue an internal memo publishing the dates, time and timetable for the Applicants and Petitioners to have online examinations administered to them before the end of the academic year in June, 2025 given the time-bound nature of academic curriculum policy that prevents progression to the next academic year where one did not sit the previous academic year examinations including any supplementary examinations.
v. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the 3rd Respondent to administer online examinations via Mtihani Portal to the Applicants and Petitioners before the end of the academic calendar year in June, 2025 and provide the Court with a schedule of invigilation which is possible, given that the May, 2025 physical examinations concluded on 30th May, 2025.
vi. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the Respondents to preserve and not alter the Webpage and all online webpages and Websites that contain all advertisement for online learning programme and subsequently the Mtihani Portal that expresses administration of online examinations pending the hearing and determination of this Application and Petition.
vii. Pending the hearing and determination of this Application inter partes, this Court prohibits the Respondents from determining to defer or issue special examinations to the Applicants and Petitioners as an alternative to administration of online examinations for the same shall be in breach of the long-established legitimate practice to administer online examinations for last three years.
viii. Pending the hearing and determination of this Application inter partes, this Honourable Court takes Judicial notice that the Applicants and Petitioners are ready and willing to sit online examinations in accordance with the online learning contract entered into with the Respondents, which contract has been performed for the last three years and therefore the Applicants and Petitioners are ready and willing to abide by the terms until the completion of their studies and graduation leading to award of a Bachelor of Laws Degree.
ix. In the best interest of justice, this Court acknowledges that the Applicants and Petitioners have since compromised the Application dated 14th April, 2025, and therefore seek leave of this Court to admit the Amended Petition with the full intent to prosecute the same to full hearing and determination before the end of the academic year in June, 2025.
x. The Court be pleased to issue any other order that it may deem fit, just, appropria
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1. The Petitioners are part of the Module II evening students at the 1st Respondent’s Faculty of Law. They filed the instant Petition dated 14thApril 2025 alleging that enrolled in the program because of the 1st Respondent representation that the Course studyand examinations will be offered online. The Petitioners affirm that for the last 3 years this has been the position.
2. However, in anunexpected twist; the 1st Respondent released a memo dated 28th March 2025 pointing out that the Petitioners would henceforth taking their examinations physically.
3. Aggrieved by this action, the 1st Petitioner on his own behalf and on behalf of the current Module II evening students wrote to the Respondents protesting this development and thereafter instituted this Petition.
4. After the issuance of interim Conservatory Orders, the Intended Interested Parties filed a Notice of Motion Application dated 14th May 2025 seeking to be joined in this suit among other orders.
5. The Petitioner also filed a Notice of Motion application seeking to amend the Petition dated 26th May 2025.
6. Moreover, there was also an undated Notice of Motion application that was filed by the Intended Petitioners seeking to be joined in the suit.
7. The aforementioned Applicationsare the subject of this ruling.
THE JOINDER APPLICATION BY INTERESTED PARTIES DATED 14TH MAY 2025.
8. The Intended Interested Parties in their Notice of Motion application dated 14thMay 2025 seek orders that:
i. Spent.
ii. The Applicants/Intended Interested Parties are and hereby made interested parties to this Petition.
iii. Pending the hearing and determination of this Application inter parties, this Court be pleased to issue an interim order suspending the conservatory orders issued on 13th May 2025 to the extent that they prevent the Respondents from administering physical examinations to evening students who are willing to undertake them.
iv. This Court be pleased to vary or set aside the conservatory orders issued on 13th May 2025 to allow the Respondents to administer physical examinations to evening students who consent to the same, without prejudice to the Petitioners’ case.
v. In the alternative, this Court be pleased to clarify that the conservatory orders issued on 13th May 2025 do not preclude the Respondent from administering physical examinations to evening students who are willing to undertake them.
vi. The Court, be pleased to issue any other Order as it may deem just, appropriate and expedient in the interest of justice.
vii. The costs of this Application be provided for.
9. The application is supported by the 1st Intended Interested Party’s affidavit, sworn on even date and the grounds on the face of the application.He is a fourth-year student pursuing the Bachelor of Laws Program at the 1st Respondent’s Parklands Campus.
10. He deponed that the Court Orders issued on 13th May 2025 related to the implementation of the Memo dated 28th March 2025 which required all students to sit for their end of semester examinations physically. He stated that these Orders were issued to Petitioners who are not in their final year of study and who thus did not face the same level of urgency as the Fourth-year students who were looking forward to finish their studies.
11. He swore that at no point were the Fourth-year students in Module II consulted or represented in these proceedings where the conservatory was sought orders neither was their authorization obtained to be constituted in the Petition.
12. He explained that the Respondents had applied the conservatory orders in a blanket manner suspending all physical examinations for all Module II evening students, including those willing and able to sit for the examination as scheduled.
13. He stated the blanket application was an unfair administrative action as no distinction wasbeing made between those who oppose and those who support the examination policy as is evident in this case. He insisted that the Petitioners and Intended Interested Parties held opposing views.
14. The reason for seeking to be enjoined in this suit was thus to protect their academic and professional future which they saw being threatened by this Petition.He contended that the joinder will allow the Court to consider their interests in the dispute before making a determination that will affect and bind all Module II evening students.
Petitioners’Case
15. In response, the Petitioners filed their Replying Affidavits by the 1st Petitioner sworn on 16th May 2025 and the 29th Petitioner sworn on 16th May 2025.
16. The 1st Respondent stated that contrary to the Intended Interested Parties claim, 6 student consultative meetings were held and these meetingsincluded the fourth-year students, who constitute the Intended Interested Parties. He explained that the decision to file the instant suit was made following these consultative meetings.
17. Hedeponed that 38 out of the 115 Module II evening students participated in the survey and all the 38 opposed the change of mode of examinations.He notesthat 7 out of 38 now falsely claim that they were not consulted.
18. The 29th Petitioner argues that the Intended Interested Parties have failed to show that they have any stake in the Petition. Equally, he points out that they were well aware of the Petition from its inception but chose not to participate until issuance of the conservatory orders, which demonstrates a lack of good faith on their part.
19. He further argues that an Intended Interested Party cannot directly seek substantive orders as those sought unless they are formally joined as a parties to the suit. Similarly, he argues that an Interested Party cannot frame new issues or seek orders that would impact the primary parties.
20. That said, he states that the Intended Interested Parties have not demonstrated any of the grounds set out for setting aside of conservatory orders. He claims that the Application is self-serving and aimed at substituting the Court’s discretion with their own preferences rather establishing a legal basis for setting the orders aside.
21. He notes that the issued conservatory orders have been misinterpreted by both the Respondents and Intended Interested Parties and thus prays that this Court clarifies whether the orders dated 13th May 2025 suspend online examinations for Module II students as per the Respondents’ Memo dated 28th March 2025 and whether the Orders suspend the physical examinations by the Respondents as alleged by the Intended Interested Parties.He claims in closing that, the Application in total lacks merit and thus should be dismissed.
Respondents’ Case
22. In support of this Application, the Respondents’ filed their Replying Affidavit sworn on 16th May 2025 by the 3rd Respondent, Prof. Winfred Wambui Kamau.
23. She depones that following the issuance of the aforesaid conservatory orders, the Respondents received petitions and dissatisfaction letters from 49 Module II evening students who constitute46 out of the 49 students who are the Intended Interested Parties herein.
24. She states that the students expressed their interest to sit for the physical examinations scheduled for May 2025. The students added that they were not part of the Petitioners and were aggrieved because any change of schedule would adversely affect them if the examinations did not take place as planned as it would unnecessarily delay their graduation and admission to the Kenya School of Law by at least a year.
25. She indicated that this Application lays bare that the 39 Petitioners misrepresented the true facts to the Court and falsely indicated that they had been granted authority to sue on behalf of all Parklands Module II Evening Students. She claims therefore that the Petitioners relied on this fraudulent misrepresentation of facts to obtain the conservatory orders to the detriment of the 585 Module II Evening Students and the Respondents in regard to the May 2025 examinations.
26. She swore that the undergraduate students are clustered in distinct cohorts of Regular, Module II Day, Module II Evening, Mombasa and Kisumu and are registered separately. She asserts that the Petitioners have not demonstratedthat they have been authorized to act on behalf of the Mombasa and Kisumu students. Nonetheless she asserts that the prayers sought in the Notice of Motion application only referred to Parklands Module II evening students.
Parties Submissions
27. The parties’ submissions are not in the Court file or Court Online Platform (CTS).
THE APPLICATION DATED 26TH MAY, 2025 FOR LEAVE TO AMEND THE PETITION
28. The Petitioners in their Notice of Motion application dated 26th May 2025 seek orders that:
i. The Court be pleased to grant leave for the Petitioners to amend the Petition dated 14th April, 2025, together with its statements, and supporting Affidavits in the manner shown in the draft filed herewith.
ii. The Court be pleased to allow the Petitioners invitation to abandon the Notice of Motion Application dated 14th April, 2025 in its entirety including the reserved date for the same has since been overtaken by events, and consequently grant leave for the Petitioners to prosecute the Amended Petition of 26th May, 2025 to its conclusion on or before the end of June, 2025, which is the end of the Applicants/Petitioners Academic calendar year.
iii. In grant of prayer 2 above, the Court be pleased to accept the Petitioners Further Affidavits and written submissions in the prosecution of the Petition as soon as possible in order to safeguard the academic rights of the Applicants/Petitioners to have their examinations administered online before the end of June, 2025 which is the end of the Applicants/Petitioners Academic calendar year.
iv. The Court be pleased to exercise its discretion to grant the Amended Petition a nearer hearing date in the absence of the Notice of Motion Application dated 14th April, 2025 in order to safeguard the academic rights of the Applicants/Petitioners to have their examinations administered online before the end of June, 2025 which is the end of the Applicants/Petitioners Academic calendar year.
v. The Court be pleased to note that the Respondents, vide a Memo dated 15th May, 2025 by the Academic Registrar Affairs, being the 3rd Respondent has indicated that they shall offer June, 2025 Online Examinations as was approved by the Senate, and it is therefore prudent for the Petitioners to pray that this Court compels and mandates the Respondent to have the Petitioners undertake their end of academic year examinations in June, 2025 and not any other later date.
vi. Upon grant of order 1 to 5 above, the Court be pleased to admit the Amended Petition together with its statements, and supporting Affidavits for directions on hearing of the Petition upon payment of requisite court filing fees.
vii. Costs of this application be in the cause.
29. The application is supported by the 2nd Petitioner’s affidavit, sworn on even date and the grounds on the face of the application.The 2nd Petitioner informs that he swears this Affidavit with the consent and authority of all the 115 affected students.
30. The 2nd Petitioner avers that the Petitioners seek to amend the Petition as crucial issues of law and facts were inadvertently left out. He notes that this omission was not deliberate but was as a result of their Counsel’s excusable oversight.
31. Specifically, he depones that the Petition missed to plead that the Memo dated 28th March, 2025 issued by the Respondents, specifically aggrieved the First Year (1.2), Second Year (2.2) and Third Year (3.2) Module II – Evening Undergraduate Law Students drawn from Nairobi, Mombasa and Kisumu Campuses. Moreover, that these students did not sit for their May 2025 examinations as the Responds declined to honour the terms of the online learning contract to administer online examinations during the same period. Additionally, that the Petitioners and affected students are completely unable to sit for their examinations physically thus the reason they enrolled in the Respondents online learning programme, terms of which are clear in the attendant contract.
32. Further, he notes that the Respondents administered physical examinations during the May, 2025 examinations from 19th May to 30th May, 2025 to the exclusion of the Petitioners. As such, some of the prayers sought in the Application dated 14th April, 2025 and the Petition have since been overtaken by events.
33. He informs that vide a Memo dated 15th May 2025 the 3rd Respondent indicated that they would offer June, 2025 Online Examinations and thus the Petitioners pray that this Court compels and mandates the Respondents to have the Petitioners undertake their end of academic year examinations in June, 2025 and not any other later date.
34. He asserts that the amendments to the Petition are necessary for the purposes of determining the real issues in controversy between the Petitionersand the Respondents herein. Equally that there is need to safeguard the Petitioners and affected students’ rights and legitimate expectation.
35. He notes that owing to the Respondents academic policy, a student is hindered from proceedings forward to the next class or judicial attachment without completing the previous years’ examinations. He stresses that the academic year for Module II evening students ends in June, 2025 and as such they are required to proceed for mandatory judicial attachment thereafter.
36. Additionally, he contends that no prejudice will be occasioned to the Respondents if the amendments are admitted as they will have the right to make a reply to the amended Petition.
Respondents’ Case
37. The Respondent’s through the 3rd Respondent, Prof. Winfred Wambui Kamau filed their Replying Affidavit sworn on 13th June 2025.
38. She states that the Petitioners’ application is incurably defective since the draft amended Petition annexture has not been marked and sealed with the seal of a Commissioner for Oaths thus offends Rule 9 of the Oaths and Statutory Declarations Rules. Furthermore, she states that the draft amended Petition is not supported by an affidavit. Equally, she avers that annextures MRW 1, 3, 4, 5, 6, 7 and 8 referred to are not attached in the Supporting affidavit while other documents are not marked and sealed thus should also be struck out.
39. She also states that the consents of the 115 students are not attached to the Supporting Affidavit and neither are the 115 students identified, indicating that they authorized the Petitioners to sue on their behalf. Correspondingly that the 2nd Petitioner is in breach of the Data Protection law for attaching some of the students’ fees statements and student identity cards without their consent. She adds that some of the affidavits attached are misleading as were already attached to the original Petition dated 14th April 2025. On this premise, he urges that the Application should be struck out.
40. She claims that the 2nd Petitioner’s allegation that the 115 students are drawn from not only Nairobi but also Mombasa and Kisumu lacks basis. This is since Mombasa and Kisumu students are registered separately and comprise of separate cohorts from Nairobi Module II evening students. She further notes that the Mombasa and Kisumu students sat for the physical examinations in May 2025. She asserts that addition of these cohorts changes the cause of action into a substantially different character. This is since the original Petition did not mention Mombasa and Kisumu students and orders sought were primarily with reference to the Parklands Module II evening students.
41. She depones that the proposed amendments seek to introduce the issue of the Memo dated 15th May 2025 which notice was not applicable to the faculty of law undergraduate examinations which were all administered physically in May. She informs that no examinations are offered in June as advanced, only special or supplementary examinations offered in August. She states that all the examinations were administered in compliance with the Court Orders that were issued on 13th and 19th May 2025.
42. It is also asserted that the Bachelor of Laws programme is not an online or distance learning programme but rather provides a variety of modes of delivery being face to face,online and blended modes. She argues thus that it is false that the 1st Respondent represented that their Module was solely online.
43. Chiefly, the Respondents oppose the Application as the draft Amended Petition is claimed to introduce new orders and new parties not contemplated in the original Petition thereby constituting a new cause of action contrary to the rules of procedure. It is argued therefore that the Application ought to be dismissed.
Petitioners’ Submissions
44. The Petitioners filed their submissions dated 7th July 2025 by their advocates Muiruri C.M. and Partners Advocates.The issues for discussion were identified as:whether the Petitioners have met the threshold for amendment of the Petition, whether the amendment of Petition changes its substance, whether the objections raised by the Respondents are procedural technicalities that can be cured and whether the doctrine of legitimate expectation applies in favour of the Petitioners and Interested Petitioners.
45. On a preliminary note, Counsel submitted that the Petition dated 14th April, 2025 was filed with the intention of suing on behalf of all current University of Nairobi Bachelor of Laws Module II Evening Students. Counsel acknowledged that the other 79 students have since filed an application to be joined in this suit as additional Petitioners.Counsel noted that the 115 students did not sit for their second semester examinations which were administered physically.
46. Counsel pointed out that the Respondents have not proved that the Mombasa and Kisumu students had sat for their exams as alleged. Counsel further noted that the examination timetables for previous academic years, including 2022/2023, 2023/2024, and 2024/2025, show that the Respondents administered evening online examinations in June 2024 to all Bachelor of Laws students from the Parklands, Kisumu, and Mombasa campuses. Counsel on this premiseopposed the Respondents allegation that the instant Application seeks to introduce new issues and parties.
47. On the first issue, Counsel submitted that the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) under Rule 18 allow a party to amend its pleadings at any stage with the leave of the Court. Counsel submitted that this principle is also echoed in Orders 8 Rule 3,5, and 8 of the Civil Procedure Rules, 2010.Relaince was placed in Central Kenya Ltd v. Trust Bank Ltd [2002] 2 EA 365 where the Court of Appeal held that:
“Amendment of pleadings should always be allowed to make such amendments as are necessary for determining the real issues in controversy or avoiding a multiplicity of suits.”
48. Like dependence was placed in Ann Muthoni Karanu v. La Nyavu Gardens Ltd[2015] eKLR and Mohammed Haji Hussein & 6 Others v Mandera Water Co. (2021) eKLR.
49. In light of this, Counsel submitted that pursuant to the set Rulesthe Petitioners had successfully argued their legal basis for amendment of their Petition. Counsel added that the amendments are not only necessary for the just determination of the issues but will also save onjudicial time. Additionally, Counsel submitted that the Petitioners had met the procedural requirements for joinder of multiple Petitioners as had attached the consents and authority of the 115 parties.
50. On the second issue, Counsel submitted that the amendments sought align with the cause of action raised in the original Petition, that is,administration of online examinations before the end of the academic year 2024/2025 to enable the Petitioners progress with their academic quest into the next academic year unhindered. Likewise, Counsel submitted that the Petitioners and Interested Petitioners through these amendments seek to clarify and amplify the existing issues not create new ones.
51. Counsel stressed that the change of position by the Respondents in their actions through the subsequent memos that are intent on coercing the Petitioners and Interested Petitioners to alter their mode of examination administration to physical has necessitated the Petitioners to seek for amendment of the Petition as they remain in abeyance and confusion.Counsel added that the Respondents had not demonstrated how the amendment of Petition would prejudice them or alter the nature of the Petition.
52. Counsel urged the Court to be guided by the case of Dominic Ombagi & 120 Others v. Kisii University & 8 Others [2020] eKLR, a constitutional petition in the Employment & Labour Relations Court, where 68 additional Petitioners were allowed to join a Petition challenging unlawful redundancies, as they were all employees affected by the same decision. Importantly, the High Court in that case directed that an Amended Petition be filed naming the new Petitioners, reinforcing that the proper procedural course is to amend the Petition to encompass the additional parties.
53. Turning to the third issue, Counsel submitted that the Respondents objections to the additional partiesjoinder based on the unmarked exhibits constitutes a technical objection that can be cured. Counsel pointed out that Order 19 Rule 7 of the Civil Procedure Rules, allows the Court to receive an affidavit despite an irregularity in form as long as an affidavit is substantially compliant. Counsel submitted that this principle is anchored in the Constitution under Article 159 (2)(d). To buttress this point reliance was placed in Nuru Ruga Ali & another v Commodity House Limited & 3 others [2021] eKLR where it was held that:
“Procedural rules are handmaidens of justice meant to facilitate, not frustrate, decision on the merits.”
54. Like dependence was placed in Mohammed Haji Hussein & 6 Others v Mandera Water Co. (2021) eKLR.
55. On the next issue, Counsel submitted that the Petitioners reasonably expected that, with the administration of online examinations to them in the past three academic years, that is 2022/2023, 2023/2024, 2024/2025 (January/February, 2025), the Respondents would administer online examinations until completion of their studies.As such, Counsel submitted that the Respondents'' intentional, abrupt and unfair reversal of this long-established practice, without consultation, violates the doctrine of legitimate expectation.
56. Reliance was placed in Constitutional Petition E213 of 2020: Kamau & another (Suing on their own behalf and on behalf of 80 University of Nairobi Law School Students) v The University of Nairobi & 2 others; Attorney General & another (Interested Parties) where the Court held that:
“The practice of distance open learning in the University of Nairobi dates back to 1967 and that the University has since then recognized and sustained that mode of learning under the Constitution, the Universities Act, 2012 and the University of Nairobi Charter, 2013- See Paragraph 29 and 30 of that decision.”
57. Comparable reliance was placed in Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR.
58. Counsel thus urged that owing to the Respondents intentional and consistent violations of the Petitioners and Interested Petitioners right to education, legitimate expectation, the time constraints and uncertainty that they are experiencing, that the Court be inclined to grant an order of status quo ante and conservatory orders, for the administration of the online examinations to all the Petitioners, which existed prior to the issuance of the memo dated 28th March 2025. This is since grant of the orders will serve to protect, safeguard and uphold the Petitioners’ constitutional right to education by enabling them to sit for their online examinations prior to the conclusion of the academic year in August 2025.
Respondent’s Submissions
59. In opposition, the Respondents filed submissions dated 31st July 2025 through their Counsel CS. Fredrick Collins Omondi.
60. Counsel commenced by submitting that the Petitioners substituted supporting Affidavit to their Application is irregularly on record and is not drawn in the form of an affidavit. Considering this, it is argued that it offends the provisions of Order 19 (4) & (5) of the Civil Procedure Rules thus should be struck out.
61. Counsel referring to the Notice of Withdrawal by the 1st Petitioner, Leonard Omondi Aluko, submitted that it was him who swore the affidavit in support of the Petitioners with their authorization.Counsel argued that in the absence of Leonard Omondi Aluko as a Petitioner, there is no Petition on record to be amended.
62. Counsel moving on to the next issue, submitted that the sought amendments should not be allowed for a number of reasons. First that no lawful basis exists to include the 6th, 7th and 8th Respondents in their individual capacities as parties in the Petition. This is because Article 3(2) of the University of Nairobi Charter, 2013 makes it clear that the 1stRespondent is a body corporate capable of suing and being sued in its name.
63. Secondly, Counsel submitted that no consents or authority to sue executed by the alleged 115 Module II evening students had been produced before this Court. According to Counsel, the Petitioners cannot claim to sue on behalf of the 115 students without procuring their consents and authority to do so.
64. Thirdly, Counsel submitted that the amendments seek to alter the nature of the Petition. Counsel pointed out that the original Petition revolved around the Module II evening students at Parklands while the Amended Petition seeks to add students from Mombasa and Kisumu. Equally, Counsel submitted that the amended Petition seeks to have the Court compel the Respondents to issue online examinations to the Petitioners by the end of June 2025 owing to the Memo dated 15th May 2025. It was noted that this was not the cause of action in the original Petition and introduces a new issue.
65. Counsel relied in Institute for Social Accountability& another v Parliament of Kenya & 2 others [2014] KEHC 7356 (KLR) where it was held that:
“The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided no new or inconsistent cause of action is introduced.”
UNDATED APPLICATION SEEKING JOINDER OF PETITIONERS
66. The proposed Petitioners filed an undated Notice of Motion application seeking to join instant Petition. They seek orders that:
i. Spent.
ii. The Applicants be granted leave to join the Petition and be admitted as Petitioners.
iii. Pending the hearing and determination of this Application inter partes, this Court be pleased to issue interim orders suspending the internal memo dated 19th May, 2025 by the 3rd Respondent to the extent that it infringes on the Applicants and the Petitioners legitimate right to administration of online examination before the end of academic year in June, 2025 in the 2024/2025 academic year of study.
iv. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the 3rd Respondent to issue an internal memo publishing the dates, time and timetable for the Applicants and Petitioners to have online examinations administered to them before the end of the academic year in June, 2025 given the time-bound nature of academic curriculum policy that prevents progression to the next academic year where one did not sit the previous academic year examinations including any supplementary examinations.
v. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the 3rd Respondent to administer online examinations via Mtihani Portal to the Applicants and Petitioners before the end of the academic calendar year in June, 2025 and provide the Court with a schedule of invigilation which is possible, given that the May, 2025 physical examinations concluded on 30th May, 2025.
vi. Pending the hearing and determination of this Application inter partes, this Court be pleased to compel the Respondents to preserve and not alter the Webpage and all online webpages and Websites that contain all advertisement for online learning programme and subsequently the Mtihani Portal that expresses administration of online examinations pending the hearing and determination of this Application and Petition.
vii. Pending the hearing and determination of this Application inter partes, this Court prohibits the Respondents from determining to defer or issue special examinations to the Applicants and Petitioners as an alternative to administration of online examinations for the same shall be in breach of the long-established legitimate practice to administer online examinations for last three years.
viii. Pending the hearing and determination of this Application inter partes, this Honourable Court takes Judicial notice that the Applicants and Petitioners are ready and willing to sit online examinations in accordance with the online learning contract entered into with the Respondents, which contract has been performed for the last three years and therefore the Applicants and Petitioners are ready and willing to abide by the terms until the completion of their studies and graduation leading to award of a Bachelor of Laws Degree.
ix. In the best interest of justice, this Court acknowledges that the Applicants and Petitioners have since compromised the Application dated 14th April, 2025, and therefore seek leave of this Court to admit the Amended Petition with the full intent to prosecute the same to full hearing and determination before the end of the academic year in June, 2025.
x. The Court be pleased to issue any other order that it may deem fit, just, appropria
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