REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JR ORIGINATING MOTION APPLICATION NO. E343 OF 2025
LIZ WAKESHO MWASHORI……………………………………APPLICANT
VERSUS
THE INDEPENDENT ELECTORAL COMMISSION OF KCA UNIVERISTY (IECK)……………………………………….1 ST RESPONDENT
ELECTION PETITION PANEL…………………………....2 ND RESPONDENT
TERESIA IRURIA…………………………………………..3 RD RESPONDENT
BENSON NGOBIA………………………………………….4 TH RESPONDENT
EMILY OKOTH…………………………………………….5 TH RESPONDENT
DORA OSOK………………………………………………...6 TH RESPONDENT
MARTIN MAKASA…………………………………………7 TH RESPONDENT
KCA UNIVERSITY…………………………………………8 TH RESPONDENT
CHENUS ODIDA CHERWA………………………………9 TH RESPONDENT
JUDGMENT
1. Pursuant to leave of this court granted on 2 nd December 2025, the Applicant filed an Amended Originating Motion dated 17 th November 2025, after filing the initial Originating Motion dated 3 rd November, 2025. The Originating Motion is brought under the Fair Administrative Action Act, 2015 and Fair Administrative Action Rules, 2024 and is supported by the affidavit sworn by Liz Wakesho, the applicant herein, on 17 th November 2025. The Originating Motion seeks the following orders:
i. Spent.
ii. Spent.
iii. THAT this Honourable Court be pleased to grant an order of certiorari to remove into this Court for purposes of being quashed the decision of the Election Petition Panel dismissing the Applicant’s Election Petition .
iv. THAT this Honourable Court be pleased to grant an order of prohibition restraining the Respondents, their agents, or representatives from recognizing, acting upon, or giving effect to the said decision or any other actions flowing therefrom.
v. THAT this Honourable Court be pleased to grant an order of mandamus compelling the 1 st Respondent to conduct fresh elections of the Students Association of KCA University in strict compliance with the Constitution and regulations governing student elections.
vi. THAT the Honourable Court be pleased to issue any further or other orders deemed just and expedient in the circumstances to uphold the Applicant’s constitutional and administrative rights.
vii. THAT costs of this Application be provided for.
2. The Applicant’s case as pleaded is that she was a duly nominated candidate for Chairperson of the Students Association of KCA University (SAKU), for the 2025/2026 academic year, having satisfied all nomination requirements under Article 5.2 and 5.9 of the SAKU Constitution and that she took part in the Election. She claims that on numerous occasions, and in belief of the available systems and structures, she raised various issues pertaining to alleged procedural irregularities in the conduct of the elections, most of which were allegedly either wished away, inadequately addressed or not addressed at all.
3. She laments that the election process was marred by systemic operational failures, including missing names, login failures and absence of a pre-election systems test, the result of which was a poisoned chalice which the Applicant could not drink from and heavily disputed.
4. According to the applicant, following the allegedly flawed election, she lodged a Petition, which was heard by a Panel which was improperly constituted and tainted with conflict of interest and manifest bias, leading to dismissal of her petition, followed by the hurried swearing in of the officials which officials were, in her view, improperly elected.
5. The Applicant claims that her opponent, Mr. Chenus Odida Cherwa, the 9 th Respondent herein, together with his proxies, engaged in acts amounting to election offences, including intimidation, threats and bribery of one Angelina Ndida, an aspirant allied to the applicant’s team.
6. The applicant states that a formal complaint was lodged with the University administration and the Independent Electoral Commission of KCA University (IECK ) on 11 th October 2025 and a report recorded at Utalii Police Station under Police O.B No. 21 of 13/10/2025, however, that no substantive disciplinary or electoral sanctions were imposed against the offenders.
7. It is her further case that the Electoral Commission’s failure to enforce electoral integrity and its subsequent clearance of the offending candidate constituted a breach of Article 81(e) of the Constitution, Article 5.8.2 of the SAKU Constitution and her right to fair administrative action under Article 47.
8. Further, that the Electoral Commission curtailed the campaign period to five (5) days, contrary to Article 5.9 (7) of the SAKU Constitution, thereby disadvantaging the Applicant and violating the principle of equality and fairness under Article 27 of the Constitution.
9. According to the Applicant, the conduct of the elections was marred by significant systemic irregularities, including missing candidate names, mismatched symbols and login failures that disenfranchised numerous students, rendering the election neither free nor fair within the meaning of Article 38 of the Constitution.
10. She states that the School of I.T, where she undertakes her studies was the most affected as voting began as late as 12pm after most students had left school and that this deliberately ensured that her preferred delegates and team members were not elected.
11. That being dissatisfied with the Conduct and the results of the election, she lodged an election petition challenging the conduct and outcome of the elections before the SAKU Election Petition Panel as per Article 5.12 of the SAKU Constitution, constituted by the 3 rd to 7 th Respondents.
12. The Applicant states that the SAKU Constitution, under Article 5.11, expressly provides for the composition and membership criteria of the Election Petition Panel, designating the University Legal Counsel, the 3 rd Respondent herein as both a definitive member and the Chairperson of the Panel, as well as the appointing authority of its other members.
13. That in exercise of this power, the 3 rd Respondent appointed Mr. Benson Ngobia-Dean of Students, Ms. Emily Okoth- Manager, Career Planning and Placement, Ms. Dora Osok- Students Relations Manager and Mr. Martin Makasa-Chief Security Officer to constitute the Election Petition Panel. However, the applicant contends that Mr. Benson Ngobia and Mr. Martin Makasa were, at the material time, serving members of the Independent Electoral Commission under Article 5.4(2) of the SAKU Constitution, while the Independent Election Commission itself was properly listed as a Respondent in the very Petition they were called upon to determine under Article 5.12.
14. The Applicant contends that by sitting as members of the Election Petition Panel, both Mr. Ngobia and Mr. Makasa effectively became judges in their own cause, contrary to the cardinal rule of nemo judex in causa sua , a fundamental principle of natural justice and fair administrative action.
15. Further, that aggravating this conflict of interest, Mr. Benson Ngobia also serving as the Dean of Students and Mr. Martin Makasa as the Head of Security, had both previously sat on a disciplinary committee concerning the impugned actions of Chenus, Elvis and Alugo prior to the elections.
16. The Applicant contends that the continued participation in the Election Petition Panel by Mr. Ngobia and Mr. Makasa, despite their prior involvement in the dispute and their institutional positions, created a palpable, structural conflict of interest that rendered the proceedings tainted, biased and procedurally unfair.
17. She also contends that the impugned composition violated her right to a fair and impartial hearing guaranteed under Article 50(1) of the Constitution and the right to lawful, reasonable and procedurally fair administrative action under Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, 2015.
18. The applicant contends that during the hearing, the 3 rd Respondent, who chaired the Panel, barred the Applicant’s Advocate from participating in the proceedings, claiming that representation required prior leave despite the governing section stating that a party “may be represented,” an interpretation that is said to have unreasonably restricted the Applicant’s right to fair hearing.
19. The Applicant further contends that the Election Petition Panel failed to render a reasoned written decision , either to her or on record, contrary to the express requirements of procedural fairness and accountability under Article 47(2) of the Constitution and Section 4(2) and (3) of the Fair Administrative Action Act, 2015, thereby denying her the opportunity to understand the basis for the determination, to exercise her right of appeal or review, and to meaningfully challenge the outcome in any forum.
20. That the omission to communicate a formal written decision further exemplifies administrative arbitrariness and procedural opacity, demonstrating that the process was neither fair, transparent nor accountable, as required under Article 10 and Article 232(1)(f) of the Constitution.
21. The Applicant also filed a further affidavit sworn on 18 th November 2025 in response to the 1 st to 8 th Respondents’ and 9 th Respondent’s replying affidavits. She deposes that it is ironical that the Respondents claim that a decision is yet to be made, given that the very decision concerning her Petition is annexed to their Replying Affidavit, a decision according to her, which she had frantically requested for but was never formally communicated to her, contrary to the right to written reasons guaranteed by Article 47 of the Constitution.
22. The Applicant contends that the Panel acted with procedural unfairness and bias by striking out her rejoinder, barring Counsel, and wrongly relying on Clause 5.12.1 instead of Clause 5.12(7) of the SAKU Constitution, which permits legal representation. This according to the applicant, violated her constitutional rights under Articles 48 and 50, with the denial of counsel unjustifiably justified on “data protection” grounds, despite the non-derogable right to a fair hearing.
23. The Applicant maintained that the Panel’s composition was conflicted and biased, as the Dean of Students and Chief of Security, who are key actors in the electoral process as provided for under Article 5.4 of the SAKU Constitution sat on a Panel that reviewed matters arising from the same electoral process, particularly the enforcement of Clause 5.2(11) on candidate disqualification for disciplinary findings or pending cases. That allegations of bribery and intimidation were reported to them, yet no disciplinary action was taken, allowing candidates to run, contrary to their duty to ensure a safe and fair election, despite recorded evidence and an arrest on school premises.
24. The Applicant also highlights alleged contradictions in the Respondents’ claim of a pre-election system test, citing Paragraph 22 of the Panel’s judgment, where the IECK Chair admitted the system’s readiness was not confirmed before election day. The Applicant maintains the ICT Department acted as an integral part of the Commission, and any internal testing without candidate or agent observation lacked transparency.
25. The Applicant further contends that the 9 th Respondent’s allegation that her Petition before the Election Petition Panel was dismissed solely on technical grounds underscores, rather than negates, her case that the internal dispute resolution mechanism was applied rigidly, unfairly and in a manner that defeated substantive justice.
26. She also impugns the Election Petition Panel’s proceedings and outcome for illegality, procedural unfairness and violation of constitutional standards, which are matters squarely within the supervisory jurisdiction of this Court.
27. It is her further rejoinder that in the case of intimidation by the 9 th Respondent, the same was inadvertently admitted by the 1 st to 8 th Respondents in their collective affidavit, a claim they casually stated happened out of the school to justify their inaction. These allegations, it is urged, are captured at paragraph 61 of the said decision.
28. That the same record bears the confirmation of the IECK receiving the complaint from the Applicant, and that therefore, the absence of an affidavit by Ms. Angelina Ndinda does not negate the duty of the Respondents to investigate, prevent and address electoral misconduct once brought to their attention.
29. The Applicant contends that other than the acts of intimidation, she denies any personal wrongdoing, even though, the Application challenges not only individual conduct but also institutional actions, omissions and decisions.
Replying Affidavit by the 1 st ,2 nd , 3 rd , 4 th ,5 th ,5 th ,6 th ,7 th ,8 th Respondents
30. The 1 st ,2 nd , 3 rd , 4 th ,5 th , 6 th , 7 th and 8 th Respondents filed a replying affidavit sworn on 11 th November 2025 by the 3 rd Respondent, Ms Teresia Irura. The Respondents contend that the application before this Court is incompetent and an abuse of court process. They deny any coercion, intimidation, or harassment of the Applicant, stating that the alleged acts same occurred outside the University, and that the concerned parties reported the matter to the police, and as such the same was beyond their control.
31. They assert in contention that there was no evidence of formal complaints allegedly lodged with the Dean of Students and the Manager Security and Safety on any threats.
32. The Respondents explain that the Applicant was advised to ensure that her supporters complied with campaign rules, as it was only her team that was not compliant.
33. On the alleged dysfunctional voting system, the Respondents assert that a secure pre-election system test was conducted by the University ICT Department, and that a temporary technical glitch was promptly fixed without external interference, the voting exercise extended and that as such, no student was disenfranchised.
34. They state that the Dean of Students and the Manager Security & Safety were ex officio members of the IECK and were only present to monitor the meeting that had been called by the IECK official. That these two did not have decision making power and did not influence IECK decisions. They justify striking out the Applicant’s rejoinder pursuant to Article 5.12.1 which is said to limit petitions to candidates or SAKU members.
35. They maintain that the purported rejoinder was a demand letter disguised as a rejoinder, and that the Applicant’s counsel had a pre-determined expectation. Further, that counsel could only guide the Applicant and not file documents. It is their case that the elections and petition process were free, fair, unbiased and lawful and as such the Court ought to dismiss the Motion with costs.
The 9 th Respondent’s Replying Affidavit
36. The 9 th Respondent Chenus Odida Cherwa filed a replying affidavit sworn on 15 th December 2025. He deposes that the Applicant’s Amended Originating Summons is premature, incompetent and an abuse of process, arguing that it seeks to stay an order not yet made. He adopts the depositions of the 3 rd Respondent on behalf of the 1 st to 8 th Respondents and contends that the Applicant approached the Court with unclean hands by failing to disclose that her petition was dismissed for lack of evidence and for non-compliance with SAKU filing timelines.
37. He maintains that the Election Panel handled the matter fairly and that the Applicant is improperly attempting to overturn its decision through the Court. He denies the allegations of intimidation, police reports and any personal involvement in misconduct, putting the Applicant to strict proof. It is also his contention that the application lacks specificity and fails to meet the threshold of a constitutional pleading and asks the Court to dismiss it with costs.
Submissions
38. The application was canvassed by way of written submissions.
The Applicant’s written submissions
39. The Applicant filed written submissions dated 27 th November 2025 and further written submissions dated 18 th December 2025. She submits through her counsel maintaining that appointing the 4 th and 7 th Respondents as members of the Election Petition Panel tainted the proceedings with structural bias hence the conflict of interest alluded to is not merely speculative but is recorded, admitted and fatal to the jurisdiction of the panel, the merits of their decision notwithstanding.
40. The Applicant relies on the case of Ridge v Baldwin 1964 A.C 40 where the court is said to have identified the principles of natural justice as being the right to be heard by an un-biased Tribunal, the right to have notice of the charge of misconduct and the right to be heard in answer to these charges.
41. It is argued that the principle with regards to bias prohibits a person from deciding any case in which he or she may be, or may fairly be suspected to be, biased. The Applicant relies on the case of Barmao v G4S Kenya Limited (Cause E184 of 2021) [2024] KEELRC 1141 (KLR), on the issue of biasness in internal decision making organs.
42. The Applicant submits that although administrative bodies may impose reasonable procedural rules they cannot deploy them so as to nullify fundamental rights including representation or to deny parties a meaningful hearing.
43. She relies on the case of Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR where the court is said to have referred to the case of The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010 , in which according to the Applicant the Ugandan Supreme Court stated that no person ought to be condemned without being given a fair and just opportunity to be heard, and any law that violates this principle is invalid.
44. On the issue of legal representation, the Applicant relies on the case of Republic v Technology (Judicial Review E002 of 2021) [2022] KEHC 494 KLR where the court is said to have observed that prohibiting legal representation in disciplinary proceedings violates section 4(5) of the Fair Administrative Action Act, and therefore that the applicant’s fundamental right to a fair hearing had been breached, regardless of whether the applicant had given the name of a lawyer or he turned up without one.
45. The Applicant also relies on the case of General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 where the court is said to have observed that if a decision is reached in violation of the principles of natural justice, it is irrelevant that the same outcome might have been reached had those principles been observed, such a decision must be declared as no decision.
46. It is reiterated that Article 47(2) and Section 4(2)-(3) of the Fair Administrative Action Act requires that administrative decisions be accompanied by reasons in writing upon request, and that the right to reasons is a constitutional and statutory safeguard enabling accountability, review and appeal.
47. The Supreme Court In the Matter of the removal from office of Justice Martin Muya is said to have underscored the importance of the duty to give reasons and issue written judgment, by observing that it is only by giving reasons for their decisions that those aggrieved may appeal those decisions, and that it is transparency that builds public confidence in the judicial process and that the same will be achieved through reasoned decisions.
48. The Applicant argues that the Panel’s failure to issue a written, reasoned decision demonstrates procedural irregularity and a lack of accountability, and that this omission cannot be cured retrospectively because it prevents meaningful judicial review and denies her the ability to challenge the outcome. The Applicant contends that administrative bodies conducting elections must comply with Articles 81(e), 10, and 38 of the Constitution and the Fair Administrative Action Act, and must exercise their statutory and constitutional duties reasonably, transparently, and with due regard to equality. That a failure to investigate or enforce electoral rules in the face of credible allegations renders administrative action arbitrary, in bad faith, and unlawful.
49. It is submitted that the IECK breached its positive duties by failing to investigate and prosecute allegations of intimidation and bribery, clearing candidates despite pending police and disciplinary matters, and failing to conduct a transparent, open, and verifiable pre-election system test, thereby undermining a fair electoral environment.
50. Relying on Judicial Service Commission v Mbalu Mutava , the Applicant emphasizes that administrative and decision-making bodies are constitutionally obliged under Article 47 and common law principles to act in a procedurally fair manner. The Court is urged to evaluate not only the process but also the substantive conduct of the IECK and the Panel.
51. The Applicant invites the Court to adopt a merit-based approach to judicial review, citing Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 , where the Supreme Court is said to have held that judicial review may extend to an inquiry into the merits of administrative action.
52. On electoral integrity, the Applicant relies on Raila Odinga v IEBC [2017] e KLR and Maina Kiai & 5 Others v IEBC & 2 Others [2017] eKLR , where the Court it is urged established the “poisoned chalice” principle which is said to state that once an electoral process is compromised at any stage, the legitimacy of the outcome collapses. It is argued that the curtailed campaign period and ICT failures had predictable disenfranchising effects, and that the IECK’s inability to produce verifiable logs or audit evidence or to permit candidate observation breached the duty of verifiability, and justifying annulment of the election.
53. The Applicant further submits that she is litigating against fundamental breaches of fair administrative action and the right to a fair hearing, and seeks conventional costs and, that where the court finds egregious rights violations, she seeks damages.
54. In response to the 9 th Respondent’s objection that the Originating Motion fails the threshold of a constitutional pleading, the Applicant argues that judicial review is now a substantive constitutional right grounded in Articles 22, 23, and 47 of the Constitution, implemented through the Fair Administrative Action Act, 2015 and the Fair Administrative Action Rules, 2017. Further, that Article 47 guarantees lawful, reasonable, expeditious, efficient, and procedurally fair administrative action, while Article 23(3) empowers the High Court to grant judicial review reliefs for rights violations.
55. The Applicant contends that the Constitution does not require a leave stage for proceedings under Articles 22, 23, or 47, and that Rule 4 of the 2017 Rules permits judicial review applications by notice of motion, petition, or any form directed by the Court, departing from the rigidity of Order 53. Citing Masai Mara (SOPA) Ltd v Narok County Government [2016] eKLR , the Applicant argues that judicial review is now substantive and constitutional, and that Order 53 of the Civil procedure Rules does not govern constitutional petitions seeking judicial review remedies.
56. Further reliance is placed on Esuron v Turkana County Public Service Board & Another [2025] eKLR , where the Court is said to have affirmed that Article 159 requires courts to minimize procedural formalities in matters enforcing the Bill of Rights and on Article 159(2)(d), which mandates justice without undue regard to technicalities. Even if leave were required, the Applicant argues that failure to seek it is a curable procedural defect that cannot override the constitutional right to be heard absent demonstrated prejudice.
57. The Applicant also relies on the case of Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR , where the Supreme Court is said to have held that the 2010 Constitution has elevated judicial review beyond common-law technicalities, grounding it directly in constitutional provisions.
The 1 st to 8 th Respondents’ written submissions
58. The 1 st to 8 th Respondents filed written submissions dated 26 th November 2025 and further submissions dated 8 th December 2025. They submit that it is trite law in Kenya that the remedy of judicial review is concerned with the decision-making process and not necessarily with the merits of the decision itself. That the wider jurisprudence holds that an applicant seeking judicial review must demonstrate grounds of illegality, irrationality and/or procedural impropriety and in support of this position they rely on the case of Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300.
59. The 8 Respondents submit that no constitutional right of the Applicant was violated and that all actions undertaken by the IECK and the Election Petition Panel were procedurally fair, non-discriminatory, lawful, transparent and within their mandate.
60. They further submit that the obligation to demonstrate that their actions were unreasonable, unfair and unlawful rest with the Applicant and to support this argument they refer to Section 107 of the Evidence Act on Burden of proof.
61. The 8 Respondents argue that the Applicant has not shown any evidence of unequal or discriminatory treatment under Article 27, and that communications regarding campaign materials were purely advisory to ensure compliance with the rules. They contend that Articles 38 and 81 were fully observed, and that temporary technical issues were promptly resolved. It is also their submission that the Applicant was afforded a full, fair, and impartial hearing before the Panel, including the opportunity to file a rejoinder albeit late and consult counsel under Article 5.12.1 of the SAKU Constitution.
62. Further, that the Panel considered all material and issued a reasoned decision on 29 th October 2025 . It is also their submission that the allegations of intimidation were unsubstantiated and unsupported by evidence and that the electoral process, petition hearing and decision were conducted transparently, fairly, and lawfully , and that the Applicant’s rights under Articles 27, 38, 47, 50, and 81 were not violated.
63. The 8 Respondents rely on the case of Republic vs. Institute of Certified Public Accountants of Kenya Ex Parte Vipichandra Bhatt T/A J V Bhatt & Company Nairobi HCMA No. 285 of 2006 , where the court is said to have held that a statutory or disciplinary body can only act within the powers expressly or impliedly granted to it by law, must not exceed its terms of reference, and any exercise of its discretion must be lawful, reasonable, and free from arbitrariness or bad faith.
64. The 8 Respondents further submit that they dealt with the election process and the election in accordance with the University’s laid down procedures, policies, statutes and charter, and they pray that this Honourable Court does find so.
65. On whether the Applicant is entitled to the reliefs sought, it is submitted that the judicial review remedies sought are entirely unwarranted because the Applicant has not established any of the grounds recognized for intervention by a judicial review court. That the Applicant’s Motion rests on broad, unsubstantiated assertions, and seeks to invite the Court to reconsider the merits of the Panel’s findings, which is beyond the scope of judicial review.
66. The Respondent’s rely on Odhiambo & 2 others v Kisii University & 3 others (Constitutional Petition E004 of 2023) [2023] KEHC 24648 (KLR) (30 October 2023) where the court is said to have, while quashing an application for Judicial Review relied on the applicable principles for the grant or refusal of conservatory orders enunciated in Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eKLR .
67. According to the Respondents, the Applicant has not demonstrated the need for conservatory orders and that no substantive evidence has been received to warrant conservatory orders to the Applicant with regard to a decision she implies is yet to be rendered. It is also urged that the Applicant also seeks to prohibit the swearing in ceremony of the elected officials, however, that it is noted from the material presented herein that the elected officials were sworn in on 30 th October 2025, and in the circumstances, there is nothing to prohibit as the prayer has been overtaken by events.
68. The 8 Respondents submit that the Applicant is not entitled to the judicial review remedies sought. They urge that the prayer for certiorari is unsupported, as the Panel’s decision dismissing the election petition was lawful and procedurally fair. Further, that the request for mandamus directing fresh elections is equally untenable, since mandamus cannot compel a public body to undo a lawfully completed process, nor require performance of an act not legally due and to support this position they rely on the case of Republic v Medical Practitioners & Dentists Council ex parte Njeru [2023] KEHC 712 .
69. It is their further submission that attempting to use certiorari and mandamus simultaneously to quash and then compel action is a misconception of remedies, as mandamus only commands performance of a duty not yet executed.
70. The 8 Respondents further challenge the Applicant’s claims of IECK failures which include alleged intimidation, bribery, ICT testing, and clearance of candidates despite pending matters, emphasizing that such allegations are unsupported and require strict pr
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JR ORIGINATING MOTION APPLICATION NO. E343 OF 2025
LIZ WAKESHO MWASHORI……………………………………APPLICANT
VERSUS
THE INDEPENDENT ELECTORAL COMMISSION OF KCA UNIVERISTY (IECK)……………………………………….1 ST RESPONDENT
ELECTION PETITION PANEL…………………………....2 ND RESPONDENT
TERESIA IRURIA…………………………………………..3 RD RESPONDENT
BENSON NGOBIA………………………………………….4 TH RESPONDENT
EMILY OKOTH…………………………………………….5 TH RESPONDENT
DORA OSOK………………………………………………...6 TH RESPONDENT
MARTIN MAKASA…………………………………………7 TH RESPONDENT
KCA UNIVERSITY…………………………………………8 TH RESPONDENT
CHENUS ODIDA CHERWA………………………………9 TH RESPONDENT
JUDGMENT
1. Pursuant to leave of this court granted on 2 nd December 2025, the Applicant filed an Amended Originating Motion dated 17 th November 2025, after filing the initial Originating Motion dated 3 rd November, 2025. The Originating Motion is brought under the Fair Administrative Action Act, 2015 and Fair Administrative Action Rules, 2024 and is supported by the affidavit sworn by Liz Wakesho, the applicant herein, on 17 th November 2025. The Originating Motion seeks the following orders:
i. Spent.
ii. Spent.
iii. THAT this Honourable Court be pleased to grant an order of certiorari to remove into this Court for purposes of being quashed the decision of the Election Petition Panel dismissing the Applicant’s Election Petition .
iv. THAT this Honourable Court be pleased to grant an order of prohibition restraining the Respondents, their agents, or representatives from recognizing, acting upon, or giving effect to the said decision or any other actions flowing therefrom.
v. THAT this Honourable Court be pleased to grant an order of mandamus compelling the 1 st Respondent to conduct fresh elections of the Students Association of KCA University in strict compliance with the Constitution and regulations governing student elections.
vi. THAT the Honourable Court be pleased to issue any further or other orders deemed just and expedient in the circumstances to uphold the Applicant’s constitutional and administrative rights.
vii. THAT costs of this Application be provided for.
2. The Applicant’s case as pleaded is that she was a duly nominated candidate for Chairperson of the Students Association of KCA University (SAKU), for the 2025/2026 academic year, having satisfied all nomination requirements under Article 5.2 and 5.9 of the SAKU Constitution and that she took part in the Election. She claims that on numerous occasions, and in belief of the available systems and structures, she raised various issues pertaining to alleged procedural irregularities in the conduct of the elections, most of which were allegedly either wished away, inadequately addressed or not addressed at all.
3. She laments that the election process was marred by systemic operational failures, including missing names, login failures and absence of a pre-election systems test, the result of which was a poisoned chalice which the Applicant could not drink from and heavily disputed.
4. According to the applicant, following the allegedly flawed election, she lodged a Petition, which was heard by a Panel which was improperly constituted and tainted with conflict of interest and manifest bias, leading to dismissal of her petition, followed by the hurried swearing in of the officials which officials were, in her view, improperly elected.
5. The Applicant claims that her opponent, Mr. Chenus Odida Cherwa, the 9 th Respondent herein, together with his proxies, engaged in acts amounting to election offences, including intimidation, threats and bribery of one Angelina Ndida, an aspirant allied to the applicant’s team.
6. The applicant states that a formal complaint was lodged with the University administration and the Independent Electoral Commission of KCA University (IECK ) on 11 th October 2025 and a report recorded at Utalii Police Station under Police O.B No. 21 of 13/10/2025, however, that no substantive disciplinary or electoral sanctions were imposed against the offenders.
7. It is her further case that the Electoral Commission’s failure to enforce electoral integrity and its subsequent clearance of the offending candidate constituted a breach of Article 81(e) of the Constitution, Article 5.8.2 of the SAKU Constitution and her right to fair administrative action under Article 47.
8. Further, that the Electoral Commission curtailed the campaign period to five (5) days, contrary to Article 5.9 (7) of the SAKU Constitution, thereby disadvantaging the Applicant and violating the principle of equality and fairness under Article 27 of the Constitution.
9. According to the Applicant, the conduct of the elections was marred by significant systemic irregularities, including missing candidate names, mismatched symbols and login failures that disenfranchised numerous students, rendering the election neither free nor fair within the meaning of Article 38 of the Constitution.
10. She states that the School of I.T, where she undertakes her studies was the most affected as voting began as late as 12pm after most students had left school and that this deliberately ensured that her preferred delegates and team members were not elected.
11. That being dissatisfied with the Conduct and the results of the election, she lodged an election petition challenging the conduct and outcome of the elections before the SAKU Election Petition Panel as per Article 5.12 of the SAKU Constitution, constituted by the 3 rd to 7 th Respondents.
12. The Applicant states that the SAKU Constitution, under Article 5.11, expressly provides for the composition and membership criteria of the Election Petition Panel, designating the University Legal Counsel, the 3 rd Respondent herein as both a definitive member and the Chairperson of the Panel, as well as the appointing authority of its other members.
13. That in exercise of this power, the 3 rd Respondent appointed Mr. Benson Ngobia-Dean of Students, Ms. Emily Okoth- Manager, Career Planning and Placement, Ms. Dora Osok- Students Relations Manager and Mr. Martin Makasa-Chief Security Officer to constitute the Election Petition Panel. However, the applicant contends that Mr. Benson Ngobia and Mr. Martin Makasa were, at the material time, serving members of the Independent Electoral Commission under Article 5.4(2) of the SAKU Constitution, while the Independent Election Commission itself was properly listed as a Respondent in the very Petition they were called upon to determine under Article 5.12.
14. The Applicant contends that by sitting as members of the Election Petition Panel, both Mr. Ngobia and Mr. Makasa effectively became judges in their own cause, contrary to the cardinal rule of nemo judex in causa sua , a fundamental principle of natural justice and fair administrative action.
15. Further, that aggravating this conflict of interest, Mr. Benson Ngobia also serving as the Dean of Students and Mr. Martin Makasa as the Head of Security, had both previously sat on a disciplinary committee concerning the impugned actions of Chenus, Elvis and Alugo prior to the elections.
16. The Applicant contends that the continued participation in the Election Petition Panel by Mr. Ngobia and Mr. Makasa, despite their prior involvement in the dispute and their institutional positions, created a palpable, structural conflict of interest that rendered the proceedings tainted, biased and procedurally unfair.
17. She also contends that the impugned composition violated her right to a fair and impartial hearing guaranteed under Article 50(1) of the Constitution and the right to lawful, reasonable and procedurally fair administrative action under Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, 2015.
18. The applicant contends that during the hearing, the 3 rd Respondent, who chaired the Panel, barred the Applicant’s Advocate from participating in the proceedings, claiming that representation required prior leave despite the governing section stating that a party “may be represented,” an interpretation that is said to have unreasonably restricted the Applicant’s right to fair hearing.
19. The Applicant further contends that the Election Petition Panel failed to render a reasoned written decision , either to her or on record, contrary to the express requirements of procedural fairness and accountability under Article 47(2) of the Constitution and Section 4(2) and (3) of the Fair Administrative Action Act, 2015, thereby denying her the opportunity to understand the basis for the determination, to exercise her right of appeal or review, and to meaningfully challenge the outcome in any forum.
20. That the omission to communicate a formal written decision further exemplifies administrative arbitrariness and procedural opacity, demonstrating that the process was neither fair, transparent nor accountable, as required under Article 10 and Article 232(1)(f) of the Constitution.
21. The Applicant also filed a further affidavit sworn on 18 th November 2025 in response to the 1 st to 8 th Respondents’ and 9 th Respondent’s replying affidavits. She deposes that it is ironical that the Respondents claim that a decision is yet to be made, given that the very decision concerning her Petition is annexed to their Replying Affidavit, a decision according to her, which she had frantically requested for but was never formally communicated to her, contrary to the right to written reasons guaranteed by Article 47 of the Constitution.
22. The Applicant contends that the Panel acted with procedural unfairness and bias by striking out her rejoinder, barring Counsel, and wrongly relying on Clause 5.12.1 instead of Clause 5.12(7) of the SAKU Constitution, which permits legal representation. This according to the applicant, violated her constitutional rights under Articles 48 and 50, with the denial of counsel unjustifiably justified on “data protection” grounds, despite the non-derogable right to a fair hearing.
23. The Applicant maintained that the Panel’s composition was conflicted and biased, as the Dean of Students and Chief of Security, who are key actors in the electoral process as provided for under Article 5.4 of the SAKU Constitution sat on a Panel that reviewed matters arising from the same electoral process, particularly the enforcement of Clause 5.2(11) on candidate disqualification for disciplinary findings or pending cases. That allegations of bribery and intimidation were reported to them, yet no disciplinary action was taken, allowing candidates to run, contrary to their duty to ensure a safe and fair election, despite recorded evidence and an arrest on school premises.
24. The Applicant also highlights alleged contradictions in the Respondents’ claim of a pre-election system test, citing Paragraph 22 of the Panel’s judgment, where the IECK Chair admitted the system’s readiness was not confirmed before election day. The Applicant maintains the ICT Department acted as an integral part of the Commission, and any internal testing without candidate or agent observation lacked transparency.
25. The Applicant further contends that the 9 th Respondent’s allegation that her Petition before the Election Petition Panel was dismissed solely on technical grounds underscores, rather than negates, her case that the internal dispute resolution mechanism was applied rigidly, unfairly and in a manner that defeated substantive justice.
26. She also impugns the Election Petition Panel’s proceedings and outcome for illegality, procedural unfairness and violation of constitutional standards, which are matters squarely within the supervisory jurisdiction of this Court.
27. It is her further rejoinder that in the case of intimidation by the 9 th Respondent, the same was inadvertently admitted by the 1 st to 8 th Respondents in their collective affidavit, a claim they casually stated happened out of the school to justify their inaction. These allegations, it is urged, are captured at paragraph 61 of the said decision.
28. That the same record bears the confirmation of the IECK receiving the complaint from the Applicant, and that therefore, the absence of an affidavit by Ms. Angelina Ndinda does not negate the duty of the Respondents to investigate, prevent and address electoral misconduct once brought to their attention.
29. The Applicant contends that other than the acts of intimidation, she denies any personal wrongdoing, even though, the Application challenges not only individual conduct but also institutional actions, omissions and decisions.
Replying Affidavit by the 1 st ,2 nd , 3 rd , 4 th ,5 th ,5 th ,6 th ,7 th ,8 th Respondents
30. The 1 st ,2 nd , 3 rd , 4 th ,5 th , 6 th , 7 th and 8 th Respondents filed a replying affidavit sworn on 11 th November 2025 by the 3 rd Respondent, Ms Teresia Irura. The Respondents contend that the application before this Court is incompetent and an abuse of court process. They deny any coercion, intimidation, or harassment of the Applicant, stating that the alleged acts same occurred outside the University, and that the concerned parties reported the matter to the police, and as such the same was beyond their control.
31. They assert in contention that there was no evidence of formal complaints allegedly lodged with the Dean of Students and the Manager Security and Safety on any threats.
32. The Respondents explain that the Applicant was advised to ensure that her supporters complied with campaign rules, as it was only her team that was not compliant.
33. On the alleged dysfunctional voting system, the Respondents assert that a secure pre-election system test was conducted by the University ICT Department, and that a temporary technical glitch was promptly fixed without external interference, the voting exercise extended and that as such, no student was disenfranchised.
34. They state that the Dean of Students and the Manager Security & Safety were ex officio members of the IECK and were only present to monitor the meeting that had been called by the IECK official. That these two did not have decision making power and did not influence IECK decisions. They justify striking out the Applicant’s rejoinder pursuant to Article 5.12.1 which is said to limit petitions to candidates or SAKU members.
35. They maintain that the purported rejoinder was a demand letter disguised as a rejoinder, and that the Applicant’s counsel had a pre-determined expectation. Further, that counsel could only guide the Applicant and not file documents. It is their case that the elections and petition process were free, fair, unbiased and lawful and as such the Court ought to dismiss the Motion with costs.
The 9 th Respondent’s Replying Affidavit
36. The 9 th Respondent Chenus Odida Cherwa filed a replying affidavit sworn on 15 th December 2025. He deposes that the Applicant’s Amended Originating Summons is premature, incompetent and an abuse of process, arguing that it seeks to stay an order not yet made. He adopts the depositions of the 3 rd Respondent on behalf of the 1 st to 8 th Respondents and contends that the Applicant approached the Court with unclean hands by failing to disclose that her petition was dismissed for lack of evidence and for non-compliance with SAKU filing timelines.
37. He maintains that the Election Panel handled the matter fairly and that the Applicant is improperly attempting to overturn its decision through the Court. He denies the allegations of intimidation, police reports and any personal involvement in misconduct, putting the Applicant to strict proof. It is also his contention that the application lacks specificity and fails to meet the threshold of a constitutional pleading and asks the Court to dismiss it with costs.
Submissions
38. The application was canvassed by way of written submissions.
The Applicant’s written submissions
39. The Applicant filed written submissions dated 27 th November 2025 and further written submissions dated 18 th December 2025. She submits through her counsel maintaining that appointing the 4 th and 7 th Respondents as members of the Election Petition Panel tainted the proceedings with structural bias hence the conflict of interest alluded to is not merely speculative but is recorded, admitted and fatal to the jurisdiction of the panel, the merits of their decision notwithstanding.
40. The Applicant relies on the case of Ridge v Baldwin 1964 A.C 40 where the court is said to have identified the principles of natural justice as being the right to be heard by an un-biased Tribunal, the right to have notice of the charge of misconduct and the right to be heard in answer to these charges.
41. It is argued that the principle with regards to bias prohibits a person from deciding any case in which he or she may be, or may fairly be suspected to be, biased. The Applicant relies on the case of Barmao v G4S Kenya Limited (Cause E184 of 2021) [2024] KEELRC 1141 (KLR), on the issue of biasness in internal decision making organs.
42. The Applicant submits that although administrative bodies may impose reasonable procedural rules they cannot deploy them so as to nullify fundamental rights including representation or to deny parties a meaningful hearing.
43. She relies on the case of Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR where the court is said to have referred to the case of The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010 , in which according to the Applicant the Ugandan Supreme Court stated that no person ought to be condemned without being given a fair and just opportunity to be heard, and any law that violates this principle is invalid.
44. On the issue of legal representation, the Applicant relies on the case of Republic v Technology (Judicial Review E002 of 2021) [2022] KEHC 494 KLR where the court is said to have observed that prohibiting legal representation in disciplinary proceedings violates section 4(5) of the Fair Administrative Action Act, and therefore that the applicant’s fundamental right to a fair hearing had been breached, regardless of whether the applicant had given the name of a lawyer or he turned up without one.
45. The Applicant also relies on the case of General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 where the court is said to have observed that if a decision is reached in violation of the principles of natural justice, it is irrelevant that the same outcome might have been reached had those principles been observed, such a decision must be declared as no decision.
46. It is reiterated that Article 47(2) and Section 4(2)-(3) of the Fair Administrative Action Act requires that administrative decisions be accompanied by reasons in writing upon request, and that the right to reasons is a constitutional and statutory safeguard enabling accountability, review and appeal.
47. The Supreme Court In the Matter of the removal from office of Justice Martin Muya is said to have underscored the importance of the duty to give reasons and issue written judgment, by observing that it is only by giving reasons for their decisions that those aggrieved may appeal those decisions, and that it is transparency that builds public confidence in the judicial process and that the same will be achieved through reasoned decisions.
48. The Applicant argues that the Panel’s failure to issue a written, reasoned decision demonstrates procedural irregularity and a lack of accountability, and that this omission cannot be cured retrospectively because it prevents meaningful judicial review and denies her the ability to challenge the outcome. The Applicant contends that administrative bodies conducting elections must comply with Articles 81(e), 10, and 38 of the Constitution and the Fair Administrative Action Act, and must exercise their statutory and constitutional duties reasonably, transparently, and with due regard to equality. That a failure to investigate or enforce electoral rules in the face of credible allegations renders administrative action arbitrary, in bad faith, and unlawful.
49. It is submitted that the IECK breached its positive duties by failing to investigate and prosecute allegations of intimidation and bribery, clearing candidates despite pending police and disciplinary matters, and failing to conduct a transparent, open, and verifiable pre-election system test, thereby undermining a fair electoral environment.
50. Relying on Judicial Service Commission v Mbalu Mutava , the Applicant emphasizes that administrative and decision-making bodies are constitutionally obliged under Article 47 and common law principles to act in a procedurally fair manner. The Court is urged to evaluate not only the process but also the substantive conduct of the IECK and the Panel.
51. The Applicant invites the Court to adopt a merit-based approach to judicial review, citing Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 , where the Supreme Court is said to have held that judicial review may extend to an inquiry into the merits of administrative action.
52. On electoral integrity, the Applicant relies on Raila Odinga v IEBC [2017] e KLR and Maina Kiai & 5 Others v IEBC & 2 Others [2017] eKLR , where the Court it is urged established the “poisoned chalice” principle which is said to state that once an electoral process is compromised at any stage, the legitimacy of the outcome collapses. It is argued that the curtailed campaign period and ICT failures had predictable disenfranchising effects, and that the IECK’s inability to produce verifiable logs or audit evidence or to permit candidate observation breached the duty of verifiability, and justifying annulment of the election.
53. The Applicant further submits that she is litigating against fundamental breaches of fair administrative action and the right to a fair hearing, and seeks conventional costs and, that where the court finds egregious rights violations, she seeks damages.
54. In response to the 9 th Respondent’s objection that the Originating Motion fails the threshold of a constitutional pleading, the Applicant argues that judicial review is now a substantive constitutional right grounded in Articles 22, 23, and 47 of the Constitution, implemented through the Fair Administrative Action Act, 2015 and the Fair Administrative Action Rules, 2017. Further, that Article 47 guarantees lawful, reasonable, expeditious, efficient, and procedurally fair administrative action, while Article 23(3) empowers the High Court to grant judicial review reliefs for rights violations.
55. The Applicant contends that the Constitution does not require a leave stage for proceedings under Articles 22, 23, or 47, and that Rule 4 of the 2017 Rules permits judicial review applications by notice of motion, petition, or any form directed by the Court, departing from the rigidity of Order 53. Citing Masai Mara (SOPA) Ltd v Narok County Government [2016] eKLR , the Applicant argues that judicial review is now substantive and constitutional, and that Order 53 of the Civil procedure Rules does not govern constitutional petitions seeking judicial review remedies.
56. Further reliance is placed on Esuron v Turkana County Public Service Board & Another [2025] eKLR , where the Court is said to have affirmed that Article 159 requires courts to minimize procedural formalities in matters enforcing the Bill of Rights and on Article 159(2)(d), which mandates justice without undue regard to technicalities. Even if leave were required, the Applicant argues that failure to seek it is a curable procedural defect that cannot override the constitutional right to be heard absent demonstrated prejudice.
57. The Applicant also relies on the case of Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR , where the Supreme Court is said to have held that the 2010 Constitution has elevated judicial review beyond common-law technicalities, grounding it directly in constitutional provisions.
The 1 st to 8 th Respondents’ written submissions
58. The 1 st to 8 th Respondents filed written submissions dated 26 th November 2025 and further submissions dated 8 th December 2025. They submit that it is trite law in Kenya that the remedy of judicial review is concerned with the decision-making process and not necessarily with the merits of the decision itself. That the wider jurisprudence holds that an applicant seeking judicial review must demonstrate grounds of illegality, irrationality and/or procedural impropriety and in support of this position they rely on the case of Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300.
59. The 8 Respondents submit that no constitutional right of the Applicant was violated and that all actions undertaken by the IECK and the Election Petition Panel were procedurally fair, non-discriminatory, lawful, transparent and within their mandate.
60. They further submit that the obligation to demonstrate that their actions were unreasonable, unfair and unlawful rest with the Applicant and to support this argument they refer to Section 107 of the Evidence Act on Burden of proof.
61. The 8 Respondents argue that the Applicant has not shown any evidence of unequal or discriminatory treatment under Article 27, and that communications regarding campaign materials were purely advisory to ensure compliance with the rules. They contend that Articles 38 and 81 were fully observed, and that temporary technical issues were promptly resolved. It is also their submission that the Applicant was afforded a full, fair, and impartial hearing before the Panel, including the opportunity to file a rejoinder albeit late and consult counsel under Article 5.12.1 of the SAKU Constitution.
62. Further, that the Panel considered all material and issued a reasoned decision on 29 th October 2025 . It is also their submission that the allegations of intimidation were unsubstantiated and unsupported by evidence and that the electoral process, petition hearing and decision were conducted transparently, fairly, and lawfully , and that the Applicant’s rights under Articles 27, 38, 47, 50, and 81 were not violated.
63. The 8 Respondents rely on the case of Republic vs. Institute of Certified Public Accountants of Kenya Ex Parte Vipichandra Bhatt T/A J V Bhatt & Company Nairobi HCMA No. 285 of 2006 , where the court is said to have held that a statutory or disciplinary body can only act within the powers expressly or impliedly granted to it by law, must not exceed its terms of reference, and any exercise of its discretion must be lawful, reasonable, and free from arbitrariness or bad faith.
64. The 8 Respondents further submit that they dealt with the election process and the election in accordance with the University’s laid down procedures, policies, statutes and charter, and they pray that this Honourable Court does find so.
65. On whether the Applicant is entitled to the reliefs sought, it is submitted that the judicial review remedies sought are entirely unwarranted because the Applicant has not established any of the grounds recognized for intervention by a judicial review court. That the Applicant’s Motion rests on broad, unsubstantiated assertions, and seeks to invite the Court to reconsider the merits of the Panel’s findings, which is beyond the scope of judicial review.
66. The Respondent’s rely on Odhiambo & 2 others v Kisii University & 3 others (Constitutional Petition E004 of 2023) [2023] KEHC 24648 (KLR) (30 October 2023) where the court is said to have, while quashing an application for Judicial Review relied on the applicable principles for the grant or refusal of conservatory orders enunciated in Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eKLR .
67. According to the Respondents, the Applicant has not demonstrated the need for conservatory orders and that no substantive evidence has been received to warrant conservatory orders to the Applicant with regard to a decision she implies is yet to be rendered. It is also urged that the Applicant also seeks to prohibit the swearing in ceremony of the elected officials, however, that it is noted from the material presented herein that the elected officials were sworn in on 30 th October 2025, and in the circumstances, there is nothing to prohibit as the prayer has been overtaken by events.
68. The 8 Respondents submit that the Applicant is not entitled to the judicial review remedies sought. They urge that the prayer for certiorari is unsupported, as the Panel’s decision dismissing the election petition was lawful and procedurally fair. Further, that the request for mandamus directing fresh elections is equally untenable, since mandamus cannot compel a public body to undo a lawfully completed process, nor require performance of an act not legally due and to support this position they rely on the case of Republic v Medical Practitioners & Dentists Council ex parte Njeru [2023] KEHC 712 .
69. It is their further submission that attempting to use certiorari and mandamus simultaneously to quash and then compel action is a misconception of remedies, as mandamus only commands performance of a duty not yet executed.
70. The 8 Respondents further challenge the Applicant’s claims of IECK failures which include alleged intimidation, bribery, ICT testing, and clearance of candidates despite pending matters, emphasizing that such allegations are unsupported and require strict pr
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