Introduction
1. The petition dated 26 th April 2024 is supported by the petitioner’s affidavit in support of even date and the Supporting Affidavit of Judith Hope Muthoni Mukora dated 26 th April 2024 and Supplementary Affidavits dated 26 th September 2024.
2. The petitioner challenges the removal of her name from the final list of graduands in the respondent’s 70 th graduation list scheduled for 15 th December 2023 which barred her from graduating despite having met all the requirements for graduation.
3. On this premise, the petitioner seeks the following relief: -
a) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th graduation list/booklet scheduled for 15 th December 2023 without following the law on fair administrative action as provided for in Article 47 of the Constitution, the Universities Act and the Fair Administrative Action Act, the respondent violated the petitioner’s right to equal protection and equal benefit of the law contrary to Article 27 of the Constitution.
b) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 without giving her reasons and having not given her prior and adequate notice of the decision to remove her name from the graduation list, the respondent violated the petitioner’s right to fair administrative action contrary to Article 47 of the Constitution.
c) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 and
effectively hindering her graduation without giving prior notice, and without offering the petitioner an opportunity to be heard or to pay the purported fees balance which caused the petitioner agony, disappointment and embarrassment, and by failing to apologise or acknowledge the pain inflicted upon the petitioner, showing indifference on the petitioner’s plight, the respondent violated the petitioner’s right to human dignity and right not to be subjected to psychological torture and cruel, inhuman or degrading treatment contrary to Articles 28 and 29 of the Constitution.
d) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 and preventing her from graduating when the petitioner had met all the requirements for graduation including the payment of fees, failing to, in good time, inform her of the purported fees balance and failing to admit liability and compensate the petitioner and otherwise remedy the damage caused, the respondent violated the petitioner’s right, who was a consumer of its services, to services of reasonable quality, to information necessary for her
to gain full benefit from the services and to compensation for loss or injury arising from defects in services contrary to Article 46 of the Constitution.
e) The respondent issues an unqualified apology to the petitioner for the pain and loss she has suffered as a consequence of the respondent’s actions or omissions.
f) The respondent pays special damages of Kshs. 24,000/- to the petitioner.
g) The respondent pays general damages to the petitioner for violating her rights and causing her agony, psychological distress and embarrassment.
h) Any other order that the court may deem fit.
i) The costs of the petition be borne by the respondent.
j) Interest on f, g and i above at court’s rate.
4. In opposition to the petition, the respondent filed five Replying Affidavit dated 22 nd July 2024 and Supplementary Affidavits dated 25 th September 2024 and 27 th January 2025.
5. The matter partly proceeded by way of affidavit evidence and viva voce evidence by Evanson Mwinzi Mbuva.
The Petitioner’s Case
6. The petitioner was enrolled at the University of Nairobi in the academic year 2021-2022 to pursue a Masters of Law degree. She avers that she completed the prescribed course work, submitted her project paper in December 2022 and successfully defended her project paper in early October 2023. She thereafter began preparing herself to graduate during the anticipated graduation that was expected to take place December 2023.
7. According to the Petitioner, she had settled the fees in full for all the semesters and at the end of each semester she sat for exams. The university policy was that one could not be allowed to sit for exams with a fee balance.
8. The petitioner averred that the respondent manages an online portal through which students can access information on academic and financial statements. The petitioner stated that upon defending her project, she accessed the online portal and noted that out of the Kshs. 210,000/- she had paid for the final semester, only Kshs. 67,750/- had been deducted leaving Kshs. 143,500/- unallocated. The petitioner thus reached out to the Finance Department of the respondent and contacted one Michael who worked in the said department who informed the Petitioner that he was on leave.
9. On 21 st and 22 nd November 2023, the petitioner contacted Michael again on his phone. Michael referred her to Linda , also a finance officer. He told the petitioner that Linda was the one in charge of fees reconciliation.
10. On 23 rd November 2023, she followed up with Michael who informed her that she had a fee balance of Kshs. 11,250/- and to graduate she needed
to settle this amount as well as pay an additional Kshs. 7,500/- as graduation fees .
11. According to the petitioner, she made the payment via mpesa and communicated the same to Michael. However, her fees were not reconciled as reflected on the portal prompting her to visit the university again on 4 th December 2023. The petitioner found Linda’s office locked.
12. Upon inquiry, the petitioner was informed by the undergraduate candidates who were also waiting to be served that Linda had locked herself inside her office. The petitioner knocked on the door the office persistently until Linda opened and rudely sent her to Zipporah , the secretary to the Post Graduate Chair with the instructions that Zipporah should take note of the matter and then forward the same to her for action. The petitioner thus went to Zipporah as directed by Linda and delivered the message by Linda. Zipporah took note of the matter and released the petitioner.
13. On 8 th December 2023, the petitioner opened her student portal where she was met with a congratulatory message for making it to the 70 th graduation. In addition, she was required to confirm if her name was correctly reflected, which she did.
14. On 11 th December 2023, the petitioner contends that a document titled “Final Booklet as AT 6PM” was shared in the class WhatsApp group and her name appeared as number 17 under the category of Masters of Laws . Upon further check of the online portal, the petitioner found that the system reflected that she had paid a total of Kshs. 651,500/- as against Kshs. 653,750/- hence there was an outstanding balance of Kshs. 2250/- . The petitioner made inquiries from a fellow candidate and friend Hope, who informed her that her portal also inexplicably indicated the same balance.
15. On 13 th December 2023 , the petitioner and her classmate, Hope went to the School of Law at Parklands for clearance and collection of graduation gowns and informed Michael about the inexplicable sum of Kshs. 2250/-. Michael instructed them to write their names and registration numbers down and assured them that it was not a problem. Michael then informed the petitioner that she had not yet paid for her graduation upon which the petitioner reminded him that she had already and forwarded the mpesa confirmation message to him.
16. Michael proceeded to clear both of them, the petitioner and her friend Hope, and released them to go and collect their graduation gowns. The
petitioner avers that she collected her gown and on 14 th December 2023. She proceeded to the University’s Graduation Square for graduation rehearsal where she also found her seat in position with her name emblazoned on it.
17. As the petitioner was leaving graduation square after participating in the rehearsals, she received a call from Zipporah informing her that she had a fee balance and that she was required to contact one, Anne .
18. The petitioner avers that she contacted Anne and gave her the information that she had paid the Kshs. 11,250/- on 23 rd November 2023 and further forwarded the mpesa confirmatory message to her. The petitioner checked the system and saw that the payment had been reflected.
19. On the graduation day , the petitioner states that she appeared and found her seat in place. At around 9.10 am the graduation booklet was shared in her class WhatsApp group. To the petitioner was utterly shocked that her name was missing from the graduation booklet. The petitioner frantically made every effort to get assistance from the management of the university without avail.
20. By the time the petitioner got hold of the phone number of the Dean School of Law, Winifred Kamau, the dean was already calling out the names of Master of Law graduates. The petitioner nevertheless sent a message to the dean but received no response. The petitioner’s name was not called out and she never graduated despite having met all the requirements and having relentlessly followed up with the management of the respondent. The petitioner avers that the disappointment and embarrassment that followed completely broke her down.
21. The petitioner reveals that she was informed by Professor Odote, the Associate Dean School of Law that her name had been removed that morning because she purportedly had a fee balance of in excess of Kshs. 5,000/- and that it was the senate/council of the university which directed her name be removed from the list. The petitioner avers that had she been informed in good time that there was a balance that would have prevented her from graduating, she would have paid the same even when the balance was erroneous and then seek an explanation and a refund after the graduation.
22. The petitioner asserts that she had invited her family and friends to attend the celebratory party at Botanical Gardens after the official graduation and the booking could not be cancelled. The petitioner’s father, aged 65 years
old travelled overnight from Mumias to witness the petitioners achieve her new milestone. The petitioner’s relatives and friends who were already in a celebratory mood. The petitioner avers that she was only able to speak to her husband even as they proceeded to Botanical Gardens where she hosted the family and friends who had arrived. She was charged Kshs. 24,000/- for the event.
23. On 15 th February 2024, the petitioner wrote to the Vice Chancellor seeking an unqualified apology in writing; a direction by the Vice Chancellor as to when she would get her degree certificate and her name included in the graduation list of 15 th December 2023 and an admission of liability to pave way for negotiations as to damages. The letter did not elicit any response.
24. The petitioner avers that as a result of the actions of the respondent, she suffered loss and damage from the breach of her legitimate expectation to graduate by the respondent; embarrassment after being left out from graduating with fellow candidate whom she was set to graduate with; embarrassed that she was left out of the list and did not graduate when her friends and relatives had travelled to Nairobi to attest the milestone; financial loss by paying Kshs. 24,000/- to Botanical gardens when her
25. graduation did not happen; the delay in her graduation and psychological distress.
26. In support of the petition, Judith Hope Muthoni Mukora filed a Supporting Affidavit dated 26 th April 2024 and states that she and the petitioner were classmates at the University of Nairobi pursuing a Masters of Law. On 11 th December 2023, the deponent reveals that she got a call from the petitioner informing her that while she had paid all the fees due from her yet her student’s portal indicated that she had unpaid fees of Kshs. 2250/-. Upon checking her student’s portal, the deponent states that she likewise a fee balance of Kshs. 2250/- as reflecting on her portal despite having paid the full fees.
27. On 13 th December 2023, she states that she and the petitioner went to the University of Nairobi School of Law Parklands for clearance and collection of gowns and at the Finance/Accounts office where they found one Michael and they raised the issue of Kshs. 2250/- balance that was reflecting on their portals. Upon checking their portals, Michael handed them a foolscap and asked them to write down their names and registration numbers which they did.
28. The deponent state’s that they cleared and proceeded to collect the graduation gowns where they were required to sign against their names on the graduation list. The following day, she and the petitioner went to the university’s graduation square for rehearsal where they located the petitioner’s seat and then hers with their names glued on them. The deponent further asserts that on 15 th December 2023, she met the petitioner at the graduation square but her name was not in the graduation list and her name was not called out during the graduation. The deponent, Judith Muthoni Mukora deposes that she graduated without any obstacles and wondered how the petitioner who had followed the same process and cleared with the university was left out during the graduation. She further avers that the petitioner was looking forward to the graduation and she was diligent in ensuring everything was in order for both of them. She was the one who kept abreast and followed up with her to ensure that she had complied.
The Respondent’s Case
29. In response, the respondent through the Acting Deputy Chancellor, Academic Affairs, Prof. Leonidah Kerubo , Faculty Accountant Anne Mutiso , Finance Officer Michael Oloo Otieno , Registrar Macharia
Waigwi and Senior Administrative Assistant Rose Linda Aduda filed their respective replying affidavits all sworn on 22 nd July 2024.
30. Prof. Leonidah Kerubo avers that the petitioner of registration number G62/40284/2021 was admitted and registered at the respondent’s Faculty of Law with effect from 9 th July 2021 to a course leading to the award of a Master of Laws. Upon admission, the petitioner freely and voluntarily subjected herself to signing a bond governing the respondent as per the applicable statute on payment of requisite fees. According to the deponent, Leonidah Kerubo, the said statute provides that all students admitted to the University for any degree, diploma, certificate or award of the University shall pay the university such registration fees, tuition fees and other fees and charges as council may from time to time determine. Further all fees and other charges due shall be paid at the commencement of the semester when they are due and in any case not beyond the third week of the semester. No students shall be allowed into lectures or examination rooms to participate in activities which have not been fully paid for. The respondent shall withhold any and all services, examination results, conferment of any degree, certificate or award until all outstanding fees are settled and further reserves the right to institute legal recovery proceedings
against students with outstanding fees and also surcharge an interest at a rate to be determined by Council from time to time.
31. The deponent avers that the respondent operates an online coded fees platform where a duly registered student is required and entitled to self execute payment platform by reference to a data subject using personal identifier student registration and admission number to effect payment relevant, limited to what is necessary in relation to the purposes for which it is processed and after payment the data payment made is processed by means of equipment operating automatically in response to self instructions given for that purpose.
32. The deponent avers that the petitioner met the academic requirements save for pending fees and then processed for graduation as per the respondent’s Senate guidelines for processing graduation. The petitioner was processed through the SMIS on 5/12/2023 and the student’s name presented to the Faculty Examiner’s Committee for ratification during a Faculty Examiners Committee meeting held on 5/12/2023 at 2pm. The respondent’s list of graduands in which the petitioner’s name appeared was forwarded to the Faculty Finance Office for verification and financial clearance on 5/12/2023.
A list of the respondent’s students cleared by the faculty accountant including the petitioner was received from the Faculty Accountant on 5/12/2023 and 6/12/2023. The list was then submitted to the Assistant Registrar, examinations for onward transmission to the University Senate on 7/12/2023.
33. She states that on the night of 13/12/2023, the Assistant Registrar Mr. Tartisio Kinyaki shared on WhatsApp the list of students who have fees balances. Further on the morning of 14/12/2023, while at the graduation square labelling graduands seats and preparing for the rehearsal, upon checking the list of students with uncleared fees shared by the Assistant Registrar, it was noted that the petitioner’s name was on the list. The faculty accountant followed up with a phone call and upon confirming that the petitioner had a fee balance of Kshs. 9,250/-, she called her. She avers that the respondent forwarded to the faculty accountant through SMS the evidence of proof of payment which had been made through mpesa. Upon checking the message forwarded to the officers by the petitioner, it was noted that the petitioner had not indicated her registration number G62/40284/2021 and hence the amount paid was suspended and could not be appropriated to the petitioner’s account.
34. She states that later in the afternoon, a follow up with the respondent’s students’ accountant Ms. Anne Ngotho of G3 on the possibility of the student being added back to the graduands roll, to which she responded that the student’s name had already been removed from the graduands roll and that the final list had already been forwarded to the Deputy Vice Chancellor, Academic Affairs Office. She avers that during the processing of the graduation list, the respondent’s Finance Department normally submits to the Academic Division a list of graduands who owe the university more than Kshs. 5,000/- which list is sent to the faculties for the defaulting students to be notified. The graduands are notified by the faculty of their fees status and are required to clear any outstanding fees before the final graduation list is submitted for approval by the Senate. The final list of graduands submitted for Senate consideration is accompanied by a duly signed consolidated mark sheet in PDF, signed Excel sheet duly reconciled and minutes of the Departmental and Faculty Examination Committee meetings.
35. The deponent argues that the delay in the petitioner clearing her contractual fees balance on time to allow her to be cleared for graduation can solely be attributed to her failure to key in the correct personal data in making the
fees payment and not because of the respondent. She further argues that no constitutional questions and principles have been raised in the petition and the petitioner has brought forth disjointed issues with no clarity at all. Additionally, she avers that the dispute herein is the petitioner’s incorrect and blunders in making fees payments under the respondent’s prescribed procedure for making fees payment, thus civil in nature and there are no constitutional issues that warrant adjudication by the court.
36. The deponent avers that the petitioner was given an equal opportunity with other candidates to pay fees and she was aware of what was expected of her since day one of her admission at the respondent’s Faculty of Law. She further avers that from the correspondence submitted by the Examination Section and the Faculty of law; it was noted that the petitioner’s name was not submitted to the Academic Division for processing for graduation.
37. The deponent avers that the respondent’s academic graduation process is undertaken without any malice and administered objectively and fairly to deserving students who have duly passed and cleared with the university before they can be presented for a graduation ceremony. Further, eligible students for graduation are those who have satisfied Examiners Senate for award of the degree specifically students who have achieved successful
completion of all the courses in the programme for which the student is registered; all the marks and grades have been submitted; payment of all required tuition fees and administrative charges; absence of any form of encumbrance and complete academic record throughout the duration of studentship. Additionally, the preparation of the graduation list, not the provisional list, and a graduation booklet are functions of the respondent’s Academic Registrar for the succeeding graduation ceremony. The names of the graduands are entered in the booklet after Senate approval. Thus, she avers that the petitioner’s name purportedly appearing in the provisional graduation list was for administrative purposes as opposed to university graduation ceremony and therefore cannot hold.
38. She asserts that the clearance of students is continually for any students who have satisfied the Examiners and Senate requirements. In the process of clearance, the petitioner will be required to provide; duly signed certificate of clearance; academic clearance from all departments; fee statement showing zero balance and full compliance with SMIS and Biometric Registration, which the petitioner did not fulfil. Thus her claim of infringement of her right to education, fair administrative act and legitimate expectation fall short of academic exceptions required of her as outlined.
39. The deponent argues that the petitioner has not demonstrated that her alleged constitutional and statutory rights have been violated over and above that which she registered, sat for and cleared before she could graduate. The petitioner has failed to establish how the respondent’s procedure for fees payment is a constitutional issue. She further avers that the Universities Act, 2012 in Section 63(3) and the University of Nairobi Charter 2013 requires a party to exhaust all available dispute resolution mechanisms provided before filing a dispute in court. Further under Section 9(2), (3) and (4) of the Fair Administrative Action Act and Article 159(2)(c) of the Constitution, one ought to exhaust all internal mechanisms and alternative dispute resolution mechanisms before moving the High Court for judicial review proceedings. She argues that the petitioner overlooked a clearly spelled out procedure without having the dispute first heard and determined through internal dispute resolution mechanisms prescribed under Section 63(3) of the Universities Act, thus the petition is bad in law for violating the doctrine of exhaustion of available remedies.
40. The deponent avers that once the faculty confirms that the petitioner has fulfilled all the requirements for graduation, her name will be processed for the 71 st graduation ceremony to be held on 20 th September 2024. Further
the petitioner can submit a request to the Deputy Vice Chancellor (Academic Affairs) to be issued with a Certificate of Completion and official academic transcripts for her use before the 71 st graduation ceremony due in September 2024.
41. Anne Mutiso states that on 14 th December 2023, at around noon Linda Aduda, their administrator called and told her one of their students had been removed from the graduation list due to fee balance. She avers that she looked for the student’s contacts and informed her of the balance whereby the petitioner told her that she had paid Kshs. 7,500/- through mpesa. The deponent avers that the amount was not reflecting on the fee statement when she opened the student portal and the petitioner forwarded the mpesa message to her, RKN445S0RKK of Kshs. 7,500/- deposited on 23/11/2023. She further avers that she discovered that the petitioner had not indicated her registration number and as a result the amount had not reflected on the portal thus showing a fee balance. She states that the place of Account Number had Module 1 Account Number 2032770838 instead of the petitioner’s registration number which was corrected to G62/40284/2023 and receipted the amount of Kshs. 7,500/- on 14/12/2023 receipt number 2200421823 as per attached statement of fees account.
42. The deponent avers that the Finance Office at parklands is open every day from Monday to Friday from 8am to 5 pm and there is no day they closed the office during graduation period due to the large number of students they had for December 2023 graduation. Further, the Finance Office has an email address account-fol@uonbi.ac.ke and office telephone line 0204919509 circulated to all law students and pinned at the door to address all financial issues.
43. The deponent asserts that her initial interaction with the petitioner was on 14/12/2023 when she called her to provide evidence of proof of payment and she was not rude to her. She further argues that no violation of constitutional rights and freedoms and legitimate expectations have been established by the petitioner and there is no justification for granting any orders sought in her favour. The petitioner has failed to prove that her fundamental freedoms and rights and legitimate expectations have been denied, violated and infringed by the respondent.
44. Michael Otieno Oloo states that he became aware of the petitioner’s case at around 9.30am on graduation day when she called him stating that someone had given her his number and she wanted to get the dean’s phone
number. Upon inquiring why the petitioner wanted the dean’s phone number, he informed her that the dean was there at the graduation ground and advised her to look for the faculty staff who were on the ground to assist her.
45. The deponent avers that he later learnt that the petitioner had paid fees via mpesa but gave the university account 20327700838 as the reference instead of her registration number G62/40284/2021 which makes it difficult for the system to pick or reconcile manually, but was eventually reconciled when the petitioner was asked to provide details upon insisting she had paid. He further avers that students do self registration and when they make mistakes the system picks what they have confirmed. To correct that the student needs to visit the postgraduate office for masters and PhD students. He adds that the petitioner’s case was to be handled by the postgraduate office since she only registered one unit instead of four resulting to under billing with the amount that she claims to be overpayment or unallocated funds.
46. The deponent asserts that Ms. Linda, the administrator’s office is ten metres away from the Finance office where he and Anne operate and thus he does not understand when they locked themselves in the office and rudely
addressed her as alleged. He further asserts that during that period they used to leave the offices after 6pm in order to cope with the large number of graduands and they handled them professionally.
47. Macharia Waigwi, reiterates that the petitioner had paid fees via mpesa but gave the university account 2032770838 as the reference number instead of her registration number G62/40284/2021 consequently, the amount paid had not been reflected on the portal. Further, the petitioner was properly informed by the accounts office at the faculty and that’s why she forwarded the mpesa message regarding fees of Kshs. 7,500/- that had not been reflected in her student’s portal.
48. The deponent avers that following clearance by the faculty, the graduands list which included her name was submitted to the Examinations Office for onward transmission to the Senate on 7 th December 2023, thus they did not hinder her graduation as a faculty. He further avers that the petitioner’s case was handled in a humane manner as evidenced by the numerous telephone communications between herself and the officers at the faculty.
49. Rose Linda Aduda avers that the petitioner having met the academic requirements for graduation, she was processed for graduation as per the
guidelines for processing graduation. The petitioner was processed through the SMIS on 5/12/2023 and her name presented to the Faculty Examiner’s Committee for ratification during a Faculty Examiners Committee meeting held on 5/12/2023 at 2pm. The list of graduands in which the petitioner’s name appeared was forwarded to the Faculty Finance Office for verification and financial clearance on 5/12/2023. A list of students cleared by the Faculty accountant including the petitioner was received from the Faculty Accountant on 5/12/2023 and 6/12/2023. Following he faculty clearance, the graduand’s list was then submitted to the Assistant Registrar Examinations for onward transmission to the University Senate on 7 th December 2023.
50. The deponent avers that on the night of 13 th December 2023, the Assistant Registrar, Mr. Tartisio Kinyaki shared with the respondent’s Accounts Officers through WhatsApp, a list of students with fee balances. On the morning of 14/12/2023 while at the graduation square labelling graduands seats and preparing for rehearsal, upon checking the list of students with uncleared fees shared by the Assistant Registr
[...truncated]
1. The petition dated 26 th April 2024 is supported by the petitioner’s affidavit in support of even date and the Supporting Affidavit of Judith Hope Muthoni Mukora dated 26 th April 2024 and Supplementary Affidavits dated 26 th September 2024.
2. The petitioner challenges the removal of her name from the final list of graduands in the respondent’s 70 th graduation list scheduled for 15 th December 2023 which barred her from graduating despite having met all the requirements for graduation.
3. On this premise, the petitioner seeks the following relief: -
a) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th graduation list/booklet scheduled for 15 th December 2023 without following the law on fair administrative action as provided for in Article 47 of the Constitution, the Universities Act and the Fair Administrative Action Act, the respondent violated the petitioner’s right to equal protection and equal benefit of the law contrary to Article 27 of the Constitution.
b) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 without giving her reasons and having not given her prior and adequate notice of the decision to remove her name from the graduation list, the respondent violated the petitioner’s right to fair administrative action contrary to Article 47 of the Constitution.
c) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 and
effectively hindering her graduation without giving prior notice, and without offering the petitioner an opportunity to be heard or to pay the purported fees balance which caused the petitioner agony, disappointment and embarrassment, and by failing to apologise or acknowledge the pain inflicted upon the petitioner, showing indifference on the petitioner’s plight, the respondent violated the petitioner’s right to human dignity and right not to be subjected to psychological torture and cruel, inhuman or degrading treatment contrary to Articles 28 and 29 of the Constitution.
d) A declaration that by removing and excluding the petitioner’s name from the final list of graduands in the respondent’s 70 th gradation list/booklet scheduled for 15 th December 2023 and preventing her from graduating when the petitioner had met all the requirements for graduation including the payment of fees, failing to, in good time, inform her of the purported fees balance and failing to admit liability and compensate the petitioner and otherwise remedy the damage caused, the respondent violated the petitioner’s right, who was a consumer of its services, to services of reasonable quality, to information necessary for her
to gain full benefit from the services and to compensation for loss or injury arising from defects in services contrary to Article 46 of the Constitution.
e) The respondent issues an unqualified apology to the petitioner for the pain and loss she has suffered as a consequence of the respondent’s actions or omissions.
f) The respondent pays special damages of Kshs. 24,000/- to the petitioner.
g) The respondent pays general damages to the petitioner for violating her rights and causing her agony, psychological distress and embarrassment.
h) Any other order that the court may deem fit.
i) The costs of the petition be borne by the respondent.
j) Interest on f, g and i above at court’s rate.
4. In opposition to the petition, the respondent filed five Replying Affidavit dated 22 nd July 2024 and Supplementary Affidavits dated 25 th September 2024 and 27 th January 2025.
5. The matter partly proceeded by way of affidavit evidence and viva voce evidence by Evanson Mwinzi Mbuva.
The Petitioner’s Case
6. The petitioner was enrolled at the University of Nairobi in the academic year 2021-2022 to pursue a Masters of Law degree. She avers that she completed the prescribed course work, submitted her project paper in December 2022 and successfully defended her project paper in early October 2023. She thereafter began preparing herself to graduate during the anticipated graduation that was expected to take place December 2023.
7. According to the Petitioner, she had settled the fees in full for all the semesters and at the end of each semester she sat for exams. The university policy was that one could not be allowed to sit for exams with a fee balance.
8. The petitioner averred that the respondent manages an online portal through which students can access information on academic and financial statements. The petitioner stated that upon defending her project, she accessed the online portal and noted that out of the Kshs. 210,000/- she had paid for the final semester, only Kshs. 67,750/- had been deducted leaving Kshs. 143,500/- unallocated. The petitioner thus reached out to the Finance Department of the respondent and contacted one Michael who worked in the said department who informed the Petitioner that he was on leave.
9. On 21 st and 22 nd November 2023, the petitioner contacted Michael again on his phone. Michael referred her to Linda , also a finance officer. He told the petitioner that Linda was the one in charge of fees reconciliation.
10. On 23 rd November 2023, she followed up with Michael who informed her that she had a fee balance of Kshs. 11,250/- and to graduate she needed
to settle this amount as well as pay an additional Kshs. 7,500/- as graduation fees .
11. According to the petitioner, she made the payment via mpesa and communicated the same to Michael. However, her fees were not reconciled as reflected on the portal prompting her to visit the university again on 4 th December 2023. The petitioner found Linda’s office locked.
12. Upon inquiry, the petitioner was informed by the undergraduate candidates who were also waiting to be served that Linda had locked herself inside her office. The petitioner knocked on the door the office persistently until Linda opened and rudely sent her to Zipporah , the secretary to the Post Graduate Chair with the instructions that Zipporah should take note of the matter and then forward the same to her for action. The petitioner thus went to Zipporah as directed by Linda and delivered the message by Linda. Zipporah took note of the matter and released the petitioner.
13. On 8 th December 2023, the petitioner opened her student portal where she was met with a congratulatory message for making it to the 70 th graduation. In addition, she was required to confirm if her name was correctly reflected, which she did.
14. On 11 th December 2023, the petitioner contends that a document titled “Final Booklet as AT 6PM” was shared in the class WhatsApp group and her name appeared as number 17 under the category of Masters of Laws . Upon further check of the online portal, the petitioner found that the system reflected that she had paid a total of Kshs. 651,500/- as against Kshs. 653,750/- hence there was an outstanding balance of Kshs. 2250/- . The petitioner made inquiries from a fellow candidate and friend Hope, who informed her that her portal also inexplicably indicated the same balance.
15. On 13 th December 2023 , the petitioner and her classmate, Hope went to the School of Law at Parklands for clearance and collection of graduation gowns and informed Michael about the inexplicable sum of Kshs. 2250/-. Michael instructed them to write their names and registration numbers down and assured them that it was not a problem. Michael then informed the petitioner that she had not yet paid for her graduation upon which the petitioner reminded him that she had already and forwarded the mpesa confirmation message to him.
16. Michael proceeded to clear both of them, the petitioner and her friend Hope, and released them to go and collect their graduation gowns. The
petitioner avers that she collected her gown and on 14 th December 2023. She proceeded to the University’s Graduation Square for graduation rehearsal where she also found her seat in position with her name emblazoned on it.
17. As the petitioner was leaving graduation square after participating in the rehearsals, she received a call from Zipporah informing her that she had a fee balance and that she was required to contact one, Anne .
18. The petitioner avers that she contacted Anne and gave her the information that she had paid the Kshs. 11,250/- on 23 rd November 2023 and further forwarded the mpesa confirmatory message to her. The petitioner checked the system and saw that the payment had been reflected.
19. On the graduation day , the petitioner states that she appeared and found her seat in place. At around 9.10 am the graduation booklet was shared in her class WhatsApp group. To the petitioner was utterly shocked that her name was missing from the graduation booklet. The petitioner frantically made every effort to get assistance from the management of the university without avail.
20. By the time the petitioner got hold of the phone number of the Dean School of Law, Winifred Kamau, the dean was already calling out the names of Master of Law graduates. The petitioner nevertheless sent a message to the dean but received no response. The petitioner’s name was not called out and she never graduated despite having met all the requirements and having relentlessly followed up with the management of the respondent. The petitioner avers that the disappointment and embarrassment that followed completely broke her down.
21. The petitioner reveals that she was informed by Professor Odote, the Associate Dean School of Law that her name had been removed that morning because she purportedly had a fee balance of in excess of Kshs. 5,000/- and that it was the senate/council of the university which directed her name be removed from the list. The petitioner avers that had she been informed in good time that there was a balance that would have prevented her from graduating, she would have paid the same even when the balance was erroneous and then seek an explanation and a refund after the graduation.
22. The petitioner asserts that she had invited her family and friends to attend the celebratory party at Botanical Gardens after the official graduation and the booking could not be cancelled. The petitioner’s father, aged 65 years
old travelled overnight from Mumias to witness the petitioners achieve her new milestone. The petitioner’s relatives and friends who were already in a celebratory mood. The petitioner avers that she was only able to speak to her husband even as they proceeded to Botanical Gardens where she hosted the family and friends who had arrived. She was charged Kshs. 24,000/- for the event.
23. On 15 th February 2024, the petitioner wrote to the Vice Chancellor seeking an unqualified apology in writing; a direction by the Vice Chancellor as to when she would get her degree certificate and her name included in the graduation list of 15 th December 2023 and an admission of liability to pave way for negotiations as to damages. The letter did not elicit any response.
24. The petitioner avers that as a result of the actions of the respondent, she suffered loss and damage from the breach of her legitimate expectation to graduate by the respondent; embarrassment after being left out from graduating with fellow candidate whom she was set to graduate with; embarrassed that she was left out of the list and did not graduate when her friends and relatives had travelled to Nairobi to attest the milestone; financial loss by paying Kshs. 24,000/- to Botanical gardens when her
25. graduation did not happen; the delay in her graduation and psychological distress.
26. In support of the petition, Judith Hope Muthoni Mukora filed a Supporting Affidavit dated 26 th April 2024 and states that she and the petitioner were classmates at the University of Nairobi pursuing a Masters of Law. On 11 th December 2023, the deponent reveals that she got a call from the petitioner informing her that while she had paid all the fees due from her yet her student’s portal indicated that she had unpaid fees of Kshs. 2250/-. Upon checking her student’s portal, the deponent states that she likewise a fee balance of Kshs. 2250/- as reflecting on her portal despite having paid the full fees.
27. On 13 th December 2023, she states that she and the petitioner went to the University of Nairobi School of Law Parklands for clearance and collection of gowns and at the Finance/Accounts office where they found one Michael and they raised the issue of Kshs. 2250/- balance that was reflecting on their portals. Upon checking their portals, Michael handed them a foolscap and asked them to write down their names and registration numbers which they did.
28. The deponent state’s that they cleared and proceeded to collect the graduation gowns where they were required to sign against their names on the graduation list. The following day, she and the petitioner went to the university’s graduation square for rehearsal where they located the petitioner’s seat and then hers with their names glued on them. The deponent further asserts that on 15 th December 2023, she met the petitioner at the graduation square but her name was not in the graduation list and her name was not called out during the graduation. The deponent, Judith Muthoni Mukora deposes that she graduated without any obstacles and wondered how the petitioner who had followed the same process and cleared with the university was left out during the graduation. She further avers that the petitioner was looking forward to the graduation and she was diligent in ensuring everything was in order for both of them. She was the one who kept abreast and followed up with her to ensure that she had complied.
The Respondent’s Case
29. In response, the respondent through the Acting Deputy Chancellor, Academic Affairs, Prof. Leonidah Kerubo , Faculty Accountant Anne Mutiso , Finance Officer Michael Oloo Otieno , Registrar Macharia
Waigwi and Senior Administrative Assistant Rose Linda Aduda filed their respective replying affidavits all sworn on 22 nd July 2024.
30. Prof. Leonidah Kerubo avers that the petitioner of registration number G62/40284/2021 was admitted and registered at the respondent’s Faculty of Law with effect from 9 th July 2021 to a course leading to the award of a Master of Laws. Upon admission, the petitioner freely and voluntarily subjected herself to signing a bond governing the respondent as per the applicable statute on payment of requisite fees. According to the deponent, Leonidah Kerubo, the said statute provides that all students admitted to the University for any degree, diploma, certificate or award of the University shall pay the university such registration fees, tuition fees and other fees and charges as council may from time to time determine. Further all fees and other charges due shall be paid at the commencement of the semester when they are due and in any case not beyond the third week of the semester. No students shall be allowed into lectures or examination rooms to participate in activities which have not been fully paid for. The respondent shall withhold any and all services, examination results, conferment of any degree, certificate or award until all outstanding fees are settled and further reserves the right to institute legal recovery proceedings
against students with outstanding fees and also surcharge an interest at a rate to be determined by Council from time to time.
31. The deponent avers that the respondent operates an online coded fees platform where a duly registered student is required and entitled to self execute payment platform by reference to a data subject using personal identifier student registration and admission number to effect payment relevant, limited to what is necessary in relation to the purposes for which it is processed and after payment the data payment made is processed by means of equipment operating automatically in response to self instructions given for that purpose.
32. The deponent avers that the petitioner met the academic requirements save for pending fees and then processed for graduation as per the respondent’s Senate guidelines for processing graduation. The petitioner was processed through the SMIS on 5/12/2023 and the student’s name presented to the Faculty Examiner’s Committee for ratification during a Faculty Examiners Committee meeting held on 5/12/2023 at 2pm. The respondent’s list of graduands in which the petitioner’s name appeared was forwarded to the Faculty Finance Office for verification and financial clearance on 5/12/2023.
A list of the respondent’s students cleared by the faculty accountant including the petitioner was received from the Faculty Accountant on 5/12/2023 and 6/12/2023. The list was then submitted to the Assistant Registrar, examinations for onward transmission to the University Senate on 7/12/2023.
33. She states that on the night of 13/12/2023, the Assistant Registrar Mr. Tartisio Kinyaki shared on WhatsApp the list of students who have fees balances. Further on the morning of 14/12/2023, while at the graduation square labelling graduands seats and preparing for the rehearsal, upon checking the list of students with uncleared fees shared by the Assistant Registrar, it was noted that the petitioner’s name was on the list. The faculty accountant followed up with a phone call and upon confirming that the petitioner had a fee balance of Kshs. 9,250/-, she called her. She avers that the respondent forwarded to the faculty accountant through SMS the evidence of proof of payment which had been made through mpesa. Upon checking the message forwarded to the officers by the petitioner, it was noted that the petitioner had not indicated her registration number G62/40284/2021 and hence the amount paid was suspended and could not be appropriated to the petitioner’s account.
34. She states that later in the afternoon, a follow up with the respondent’s students’ accountant Ms. Anne Ngotho of G3 on the possibility of the student being added back to the graduands roll, to which she responded that the student’s name had already been removed from the graduands roll and that the final list had already been forwarded to the Deputy Vice Chancellor, Academic Affairs Office. She avers that during the processing of the graduation list, the respondent’s Finance Department normally submits to the Academic Division a list of graduands who owe the university more than Kshs. 5,000/- which list is sent to the faculties for the defaulting students to be notified. The graduands are notified by the faculty of their fees status and are required to clear any outstanding fees before the final graduation list is submitted for approval by the Senate. The final list of graduands submitted for Senate consideration is accompanied by a duly signed consolidated mark sheet in PDF, signed Excel sheet duly reconciled and minutes of the Departmental and Faculty Examination Committee meetings.
35. The deponent argues that the delay in the petitioner clearing her contractual fees balance on time to allow her to be cleared for graduation can solely be attributed to her failure to key in the correct personal data in making the
fees payment and not because of the respondent. She further argues that no constitutional questions and principles have been raised in the petition and the petitioner has brought forth disjointed issues with no clarity at all. Additionally, she avers that the dispute herein is the petitioner’s incorrect and blunders in making fees payments under the respondent’s prescribed procedure for making fees payment, thus civil in nature and there are no constitutional issues that warrant adjudication by the court.
36. The deponent avers that the petitioner was given an equal opportunity with other candidates to pay fees and she was aware of what was expected of her since day one of her admission at the respondent’s Faculty of Law. She further avers that from the correspondence submitted by the Examination Section and the Faculty of law; it was noted that the petitioner’s name was not submitted to the Academic Division for processing for graduation.
37. The deponent avers that the respondent’s academic graduation process is undertaken without any malice and administered objectively and fairly to deserving students who have duly passed and cleared with the university before they can be presented for a graduation ceremony. Further, eligible students for graduation are those who have satisfied Examiners Senate for award of the degree specifically students who have achieved successful
completion of all the courses in the programme for which the student is registered; all the marks and grades have been submitted; payment of all required tuition fees and administrative charges; absence of any form of encumbrance and complete academic record throughout the duration of studentship. Additionally, the preparation of the graduation list, not the provisional list, and a graduation booklet are functions of the respondent’s Academic Registrar for the succeeding graduation ceremony. The names of the graduands are entered in the booklet after Senate approval. Thus, she avers that the petitioner’s name purportedly appearing in the provisional graduation list was for administrative purposes as opposed to university graduation ceremony and therefore cannot hold.
38. She asserts that the clearance of students is continually for any students who have satisfied the Examiners and Senate requirements. In the process of clearance, the petitioner will be required to provide; duly signed certificate of clearance; academic clearance from all departments; fee statement showing zero balance and full compliance with SMIS and Biometric Registration, which the petitioner did not fulfil. Thus her claim of infringement of her right to education, fair administrative act and legitimate expectation fall short of academic exceptions required of her as outlined.
39. The deponent argues that the petitioner has not demonstrated that her alleged constitutional and statutory rights have been violated over and above that which she registered, sat for and cleared before she could graduate. The petitioner has failed to establish how the respondent’s procedure for fees payment is a constitutional issue. She further avers that the Universities Act, 2012 in Section 63(3) and the University of Nairobi Charter 2013 requires a party to exhaust all available dispute resolution mechanisms provided before filing a dispute in court. Further under Section 9(2), (3) and (4) of the Fair Administrative Action Act and Article 159(2)(c) of the Constitution, one ought to exhaust all internal mechanisms and alternative dispute resolution mechanisms before moving the High Court for judicial review proceedings. She argues that the petitioner overlooked a clearly spelled out procedure without having the dispute first heard and determined through internal dispute resolution mechanisms prescribed under Section 63(3) of the Universities Act, thus the petition is bad in law for violating the doctrine of exhaustion of available remedies.
40. The deponent avers that once the faculty confirms that the petitioner has fulfilled all the requirements for graduation, her name will be processed for the 71 st graduation ceremony to be held on 20 th September 2024. Further
the petitioner can submit a request to the Deputy Vice Chancellor (Academic Affairs) to be issued with a Certificate of Completion and official academic transcripts for her use before the 71 st graduation ceremony due in September 2024.
41. Anne Mutiso states that on 14 th December 2023, at around noon Linda Aduda, their administrator called and told her one of their students had been removed from the graduation list due to fee balance. She avers that she looked for the student’s contacts and informed her of the balance whereby the petitioner told her that she had paid Kshs. 7,500/- through mpesa. The deponent avers that the amount was not reflecting on the fee statement when she opened the student portal and the petitioner forwarded the mpesa message to her, RKN445S0RKK of Kshs. 7,500/- deposited on 23/11/2023. She further avers that she discovered that the petitioner had not indicated her registration number and as a result the amount had not reflected on the portal thus showing a fee balance. She states that the place of Account Number had Module 1 Account Number 2032770838 instead of the petitioner’s registration number which was corrected to G62/40284/2023 and receipted the amount of Kshs. 7,500/- on 14/12/2023 receipt number 2200421823 as per attached statement of fees account.
42. The deponent avers that the Finance Office at parklands is open every day from Monday to Friday from 8am to 5 pm and there is no day they closed the office during graduation period due to the large number of students they had for December 2023 graduation. Further, the Finance Office has an email address account-fol@uonbi.ac.ke and office telephone line 0204919509 circulated to all law students and pinned at the door to address all financial issues.
43. The deponent asserts that her initial interaction with the petitioner was on 14/12/2023 when she called her to provide evidence of proof of payment and she was not rude to her. She further argues that no violation of constitutional rights and freedoms and legitimate expectations have been established by the petitioner and there is no justification for granting any orders sought in her favour. The petitioner has failed to prove that her fundamental freedoms and rights and legitimate expectations have been denied, violated and infringed by the respondent.
44. Michael Otieno Oloo states that he became aware of the petitioner’s case at around 9.30am on graduation day when she called him stating that someone had given her his number and she wanted to get the dean’s phone
number. Upon inquiring why the petitioner wanted the dean’s phone number, he informed her that the dean was there at the graduation ground and advised her to look for the faculty staff who were on the ground to assist her.
45. The deponent avers that he later learnt that the petitioner had paid fees via mpesa but gave the university account 20327700838 as the reference instead of her registration number G62/40284/2021 which makes it difficult for the system to pick or reconcile manually, but was eventually reconciled when the petitioner was asked to provide details upon insisting she had paid. He further avers that students do self registration and when they make mistakes the system picks what they have confirmed. To correct that the student needs to visit the postgraduate office for masters and PhD students. He adds that the petitioner’s case was to be handled by the postgraduate office since she only registered one unit instead of four resulting to under billing with the amount that she claims to be overpayment or unallocated funds.
46. The deponent asserts that Ms. Linda, the administrator’s office is ten metres away from the Finance office where he and Anne operate and thus he does not understand when they locked themselves in the office and rudely
addressed her as alleged. He further asserts that during that period they used to leave the offices after 6pm in order to cope with the large number of graduands and they handled them professionally.
47. Macharia Waigwi, reiterates that the petitioner had paid fees via mpesa but gave the university account 2032770838 as the reference number instead of her registration number G62/40284/2021 consequently, the amount paid had not been reflected on the portal. Further, the petitioner was properly informed by the accounts office at the faculty and that’s why she forwarded the mpesa message regarding fees of Kshs. 7,500/- that had not been reflected in her student’s portal.
48. The deponent avers that following clearance by the faculty, the graduands list which included her name was submitted to the Examinations Office for onward transmission to the Senate on 7 th December 2023, thus they did not hinder her graduation as a faculty. He further avers that the petitioner’s case was handled in a humane manner as evidenced by the numerous telephone communications between herself and the officers at the faculty.
49. Rose Linda Aduda avers that the petitioner having met the academic requirements for graduation, she was processed for graduation as per the
guidelines for processing graduation. The petitioner was processed through the SMIS on 5/12/2023 and her name presented to the Faculty Examiner’s Committee for ratification during a Faculty Examiners Committee meeting held on 5/12/2023 at 2pm. The list of graduands in which the petitioner’s name appeared was forwarded to the Faculty Finance Office for verification and financial clearance on 5/12/2023. A list of students cleared by the Faculty accountant including the petitioner was received from the Faculty Accountant on 5/12/2023 and 6/12/2023. Following he faculty clearance, the graduand’s list was then submitted to the Assistant Registrar Examinations for onward transmission to the University Senate on 7 th December 2023.
50. The deponent avers that on the night of 13 th December 2023, the Assistant Registrar, Mr. Tartisio Kinyaki shared with the respondent’s Accounts Officers through WhatsApp, a list of students with fee balances. On the morning of 14/12/2023 while at the graduation square labelling graduands seats and preparing for rehearsal, upon checking the list of students with uncleared fees shared by the Assistant Registr
[...truncated]