A. BACKGROUND
1. The Petitioner herein Oyolla Moses Juma commenced the present proceedings vide the petition dated 17th August, 2023 where he sought the following reliefs;
a. A declaration that the Respondent has breached and/or violated the Petitioner’s fundamental rights under Articles 10, 25, 26, 27, 28, 29(d), 35(2), 43 and 47 of the Constitution of Kenya.
b. A declaration that the decision to deny the Petitioner an opportunity to graduate and the award of a Bachelor of Laws degree certificate is unconstitutional, illegal, unreasonable, irrational, oppressive and procedurally unfair.
c. A declaration that the actions of the Respondent denying the Petitioner an opportunity to graduate on the basis of new additional courses which were neither applicable nor offered at the time of admission or during the period of his studies were retrospective, illegal and violated the Petitioner’s right to legitimate expectation.
d. A declaration that the Petitioner’s qualifications for graduation are only subject to the provisions of the law, regulations and/or the curriculum and/or courses applicable and/or offered at the time of his admission at the Respondent university.
e. A declaration that the Petitioner having completed the prescribed course within the prescribed time is qualified and eligible for graduation and the award of a Bachelor of Laws degree certificate from the Respondent university.
f. An order prohibiting the Respondent from compelling the Petitioner to take and/or sit for any other additional courses otherwise not applicable and/or offered at the time of his admission at the Respondent university.
g. An order prohibiting the Respondent from compelling the Petitioner to pay any other additional fees otherwise not provided for in the fee schedule at the time of admission at the Respondent university.
h. An order of mandamus compelling the Respondent to award the Petitioner with a Bachelor of Laws degree certificate, academic transcripts and the certificate of completion from the university using the 48 courses prescribed and offered by the university, and taken and passed by the Petitioner during the period of studies.
i. An order of general damages as against the Respondent for the breaches of the Petitioner’s fundamental rights and freedoms and for lost opportunities on jobs, promotions and career development.
j. An order of exemplary damages as a deterrence from similar violations in the future and encourage diligence.
k. Orders of aggravated damages for the continued breaches even after the missing results were released by the Respondent.
l. An order of costs incidental to the proceedings.
m. Such other costs, reliefs and/or remedies the Honourable Court shall deem just and expedient to grant.
B. THE PETITIONER’S SUPPORTING AFFIDAVIT.
2. In support of his case, the Petitioner filed a supporting affidavit that he swore on 17th August, 2023.
3. In his affidavit in support of the petition, the Petitioner deposes that he was admitted to the University of Nairobi School of Law, Kisumu Campus in October, 2010 to pursue a Bachelor of Laws (LL.B) degree under the Module II programme, pursuant to an admission letter dated 3rd September, 2010.
4. He avers that at the time of his admission, the curriculum offered at the Kisumu Campus was identical to that offered at Parklands Campus, and that he was enrolled under the existing “old curriculum” then in force.
5. The Petitioner states that the programme comprised 67 course units, including 26 core units and 41 electives, out of which a student was only required to take and pass 48 units, being 12 units in each academic year, including all core units, in order to qualify for the award of the degree.
6. He further deposes that the total cost of the programme for the 48 units was Ksh.690,480/- and that the course was to be undertaken on a full-time basis over a minimum of eight semesters and a maximum of twelve semesters, subject to extension by the University Senate.
7. The Petitioner avers that although he deferred his studies for one academic year (2011/2012), his expected completion date remained December, 2015, and not later than December, 2017, subject only to formal extension.
8. The Petitioner states in his affidavit that he accepted the offer of admission on the basis of the prescribed curriculum, course requirements and representations made by the University, and undertook to diligently pursue his studies in accordance with the University’s statutes, rules and regulations.
9. The Petitioner deposes that he attended all required lectures, tutorials and academic activities, and was assured that upon successful completion of the prescribed 48 course units within the stipulated time, he would be awarded a Bachelor of Laws degree.
10. He avers that in reliance on that assurance, he undertook, sat for and successfully passed all the required 48 course units – 12 in each academic yeay – completing his course of study by October, 2015 and thereby qualifying for graduation in December, 2015.
11. The Petitioner states that despite fulfilling all academic requirements, he was not cleared for graduation in December, 2015 due to the absence of marks for four units, namely International Human Rights Law, Insurance Law, HIV/AIDS and East African Community Law, which he had duly undertaken and completed.
12. He deposes that the failure to graduate was not due to any academic deficiency on his part, but was solely occasioned by the University’s failure to process and release the said results in time.
13. The Petitioner avers that he made numerous efforts to have the missing marks traced and posted, including frequent visits to the University offices and sustained email correspondence with various examinations officers from 2016, onwards.
14. He states that on 3rd May, 2017, he formally wrote to the then examinations officer and copied the Associate Dean, explaining his predicament and the impact of the missing marks on his graduation and career progression, but received no response.
15. He further deposes that upon a change in the examinations office, he wrote again on 20th, May 2017 to the new examinations officer, who requested additional details regarding the examinations, which he duly provided, including dates, the names of the concerned lecturers and other supporting information.
16. The Petitioner avers that despite furnishing the requested information, the examinations officer failed to act or respond further, and his efforts to follow up were unsuccessful.
17. The Petitioner contends that following another change in the examinations office, he renewed his efforts in the year 2019 by writing to the new officer, who instructed a clerk to trace the missing marks from available records.
18. The Petitioner deposes that the clerk subsequently confirmed that most of the missing marks had been located, and requested him to provide the missing Continuous Assessment Test (CAT) mark for Insurance Law, which he supplied.
19. He further avers that despite the retrieval of the marks by mid-2019, the University still failed and/or refused to update his records or clear him for graduation in December, 2019.
20. The Petitioner states that he continued to follow up, including writing again in July, 2020, but received no response.
21. The Petitioner deposes that in November, 2020, the examinations officer contacted him and requested him to forward details of the missing units to facilitate clearance for graduation, which he promptly did. He avers that shortly thereafter, all the missing marks were finally posted to his student portal, confirming that his academic record was complete.
22. The Petitioner states that notwithstanding the posting of all marks in November, 2020, the University still failed and/or refused to clear him for graduation in December, 2020 or at any time thereafter, without giving any reasons. He deposes that to date, no proper or justifiable explanation has been provided for the continued refusal to award him his degree.
23. The Petitioner avers that on 20th February, 2023, the University issued him with an academic transcript which he describes as defective, inaccurate, and misleading. He states that although the transcript reflects all the 48 units he undertook between 2010 and 2015, it incorrectly indicates that he failed in all academic years and that he took fewer or was missing required courses.
24. The Petitioner further deposes that the transcript alleges that he failed to undertake 22 additional courses, identified by specific course codes, which he asserts were never part of the curriculum at the time of his admission or during his period of study. He avers that he is a complete stranger to those alleged additional courses and was never notified at any time that such courses were required for graduation.
25. The Petitioner states that the implication of the transcript is that he was required to undertake approximately 70 courses, contrary to the original requirement of 48 units, which was never communicated to him. He contends that other students in his cohort who undertook the same number of units under the same curriculum were cleared, graduated and awarded degrees, thereby demonstrating unequal and discriminatory treatment.
26. The Petitioner further avers that a comparison between his transcript and that of a fellow student reveals that both undertook similar course loads and attained comparable grades, yet the University recommended a “pass” for the other student while indicating “fail” and “missing courses” in his case.
27. The Petitioner states that all the grades reflected in his transcript fall within passing categories and that he never failed any course, nor did he undertake any resits or supplementary examinations. He asserts that under the University’s regulations, progression from one academic year to another is only permitted upon passing all required courses, and that his progression to the fourth year confirms that he met all academic requirements.
28. The Petitioner avers that had he failed any courses or missed a significant number of units, he would have been discontinued from the programme, which never occurred. He states that he was never issued with any notice of failure, discontinuation or requirement to undertake additional courses at any point during his studies.
29. The Petitioner contends that upon identifying the errors in the transcript, he formally requested the University to correct the inaccuracies and issue him with a proper transcript, but the University failed and/or refused to do so. He avers that the true reason for his failure to graduate in the year 2015 was the University’s delay in releasing his results, and not any alleged academic deficiency.
30. The Petitioner takes the position that upon eventual release of the results in 2020, the University was under an obligation to clear him for graduation without imposing any further conditions and that the imposition of additional courses after completion of his studies is unlawful, retrospective, unreasonable and intended to frustrate his graduation.
31. The Petitioner avers that he had a legitimate expectation that upon fulfilling the requirements at the time of admission, he would graduate without being subjected to new or additional conditions. He further states that he was never informed of any adverse decision or given an opportunity to be heard prior to the University making decisions affecting his graduation status.
32. The Petitioner contends that the University’s actions violate the rules of natural justice, amount to procedural unfairness and constitute an abuse of administrative power. He deposes that the University acted in bad faith by withholding his results, failing to rectify its errors and subsequently attempting to justify its actions through the imposition of new requirements.
33. The Petitioner avers that the actions of the University are discriminatory, selective and inconsistent with the treatment accorded to other similarly situated students.
34. The Petitioner states that as a consequence of the failure to graduate, he has been unable to enrol at the Kenya School of Law, secure gainful employment or advance his professional career. He avers that the prolonged delay has created the false impression that he took an excessive period to complete his studies, to his detriment and that the defective transcript portrays him as an academic failure, thereby damaging his reputation and undermining his employment prospects. He further deposes that he has suffered financial hardship, including difficulty in repaying his Higher Education Loans Board (HELB) loan, thereby exposing him to adverse credit consequences.
35. The Petitioner expresses apprehension that the University may continue to deny him graduation, deregister him for overstaying or compel him to undertake additional courses at great personal cost. He further contends that compliance with the alleged additional requirements would impose an unreasonable financial and psychological burden on him.
36. The Petitioner deposes that the University has failed to honour its contractual and statutory obligations, and has abandoned its promise to award him a degree upon completion of the prescribed programme. He states that the University’s actions are unlawful, irrational, procedurally unfair, discriminatory and in violation of his rights and legitimate expectations.
37. The Petitioner concludes that the Respondent’s actions are tainted by bad faith, bias and abuse of discretion, and prays for the intervention of the Court to grant appropriate reliefs, including his clearance for graduation and award of the Bachelor of Laws degree.
C. THE RESPONDENT’S REPLYING AFFIDAVIT.
38. In the replying affidavit sworn on 8th February, 2024 by Michael Peter Otieno Okello, the Respondent’s Examinations Officer at its Faculty of Law, Kisumu Campus, the said deponent admits that the Petitioner was enrolled to the University of Nairobi Bachelor of Laws (LL.B) Module II programme at Kisumu Campus in the 2010/2011 academic year.
39. The deponent states that the Petitioner belonged to the second cohort of students admitted to Kisumu Campus and that the curriculum under which he was admitted (2009–2013) was subject to periodic review, having expired in 2013 and subsequently replaced by newer curricula, including the 2013–2018, 2018–2022 and the current curriculum.
40. He contends that the Petitioner has not demonstrated that he completed his studies in October, 2015, and avers that as at the end of the 2014/2015 academic year, the Petitioner’s records indicated missing Continuous Assessment Test (CAT) marks for certain courses, including Tax Law, International Trade Law and Energy Law.
41. The deponent further avers that the said missing CAT marks were only uploaded in the 2015/2016 academic year, thereby rendering the Petitioner academically incomplete as at December, 2015 and ineligible for graduation at that time.
42. The deponent admits the existence of the 67-course structure under the old curriculum but states that graduation is subject not merely to completion of units, but also to satisfaction of all academic, administrative, and financial requirements, including submission and approval of all marks, absence of encumbrances and approval by the University Senate.
43. The deponent outlines the internal examination and graduation process, including administration and marking of exams, collation and approval of results by departmental and faculty boards and final approval by the Senate, after which the Academic Registrar prepares the graduation list. He avers that inclusion in the graduation list is contingent upon Senate approval and that only students duly cleared through this process are invited to verify their details and proceed with graduation clearance.
44. The deponent contends that the Petitioner’s assertions regarding fees are inaccurate, noting that fees are subject to review and that penalties may apply where a student exceeds the prescribed maximum duration of study. He confirms that the LLB programme must be completed within a minimum of eight and a maximum of twelve semesters (six years), and avers that the Petitioner’s maximum permissible period, inclusive of deferment, lapsed in the 2015/2016 academic year.
45. The deponent denies that the Petitioner qualified for graduation in 2015 or thereafter, and maintains that the Petitioner’s academic eligibility expired upon lapse of the maximum study period without completion of all requirements. He further denies the Petitioner’s claims regarding efforts to trace missing marks and qualification for graduation in 2019 or 2020, asserting that any communication from University staff during that period was merely exploratory and did not amount to confirmation of eligibility for graduation.
46. The deponent avers that the Petitioner has not demonstrated that his name was ever included in any graduation list presented to or approved by the Senate. He contends that the Petitioner was informed through various engagements with University officials that he had not been cleared for graduation because the curriculum under which he was admitted had been phased out and he had not undertaken additional required courses under the current curriculum.
47. The deponent specifies that the Petitioner is required to undertake at least nine additional compulsory courses under the current curriculum, which he has not done, and which are necessary to align his training with prevailing academic and professional standards. He further avers that the said additional courses are relevant and necessary to the training of a competent legal professional and are not arbitrary impositions.
48. The deponent explains that changes in curriculum entail corresponding changes in course codes and structures, including consolidation or splitting of units, and that the University’s system automatically flags unmatched or unconverted courses as missing or failed. He states that students who undertook the old curriculum are required to align and convert their course units to the current curriculum codes as part of the graduation clearance process.
49. The deponent avers that the Petitioner has failed or refused to initiate or cooperate in this alignment process and has erroneously insisted that he is not subject to the current curriculum. He contends that the Petitioner’s failure to cooperate with the University’s processes is the primary cause of his delayed graduation and any resulting prejudice.
50. The deponent denies allegations of discrimination and states that the Petitioner’s peer who graduated in 2015 did so because he had fulfilled all requirements, unlike the Petitioner whose records were incomplete at the time. He further avers that other students in a similar position to the Petitioner successfully sought readmission, undertook the required additional courses under the current curriculum and were subsequently cleared for graduation.
51. The deponent cites examples of such students who resumed studies after expiry of their study period and graduated upon satisfying the updated curriculum requirements.
52. The deponent further contends that the present petition is similar to a previously dismissed petition in the High Court involving other students under the old curriculum, thereby rendering the current petition unmeritorious.
53. The deponent asserts that the Respondent is statutorily mandated to regulate academic programmes, including curricula, examinations and graduation requirements, and that it acted within its lawful authority in its dealings with the Petitioner. He maintains that the Petitioner was aware, or ought to have been aware, of the six-year maximum duration for completion of the programme and the consequences of failing to complete within that period.
54. The deponent reiterates that the curriculum under which the Petitioner was admitted expired in 2013 and that continued eligibility for graduation required compliance with the updated curriculum. He states that the Petitioner has not undertaken the necessary additional courses and has therefore not satisfied the academic requirements for graduation as determined by the Faculty, Senate, and Council.
55. The deponent avers that the University is nonetheless willing, in line with its policies, to allow the Petitioner to complete his studies upon application for readmission, registration for the required courses, payment of applicable fees, and compliance with University regulations.
56. The deponent explains that curriculum changes were necessitated in part by the requirements of the Legal Education Act, 2012, which mandates inclusion of certain core courses and oversight by the Council of Legal Education.
57. The deponent further states that the applicable regulations governing the LL.B programme, including duration and course requirements, are contained in the University Almanac and were made available to students upon admission. He avers that under the law and University regulations, students who fail to complete their studies within the prescribed time must comply with the prevailing curriculum to qualify for graduation.
58. The deponent contends that the Petitioner’s reliance on provisional transcripts is misplaced, as such documents are subject to review and approval by the Senate and do not confer enforceable rights.
59. The deponent asserts that the Petition is premature and based on inchoate rights, as the Petitioner has not completed the necessary academic processes required for graduation.
60. The deponent attributes the Petitioner’s prolonged stay at the University to his own academic shortcomings, including alleged lack of diligence, unexplained breaks in study and deferment of courses. He denies that the Respondent violated any of the Petitioner’s constitutional rights, including rights to equality, dignity, fair administrative action or legitimate expectation. He asserts that failure to meet academic requirements cannot be converted into a constitutional claim or basis for alleging violation of rights.
61. The deponent concludes that the Petition is devoid of merit, vexatious and an abuse of the court process, and urges the Court to dismiss it with costs to the Respondent.
D. THE PETITIONER’S SUPPLEMENTARY AFFIDAVIT
62. In his supplementary affidavit sworn on 14th October, 2024, the Petitioner asserts that it is not true, as alleged by the Respondent, that the 2009 curriculum expired in 2013, and contends that the Respondent continued to teach and examine students under that curriculum up to at least 2018, as evidenced by lecture timetables from the relevant period.
63. The Petitioner states, in response to the Respondent’s claim regarding missing Continuous Assessment Test (CAT) marks for certain courses, that the courses listed by the Respondent were never missing and were not the subject of his complaints regarding missing marks. He deposes that, to his knowledge and based on the Respondent’s own records, he fully complied with all the requirements for graduation, save for the issue of missing marks which were in the Respondent’s custody and which the Respondent failed to release in time.
64. The Petitioner asserts that the processes and stages of examination approval and graduation outlined by the Respondent are internal administrative procedures solely within the Respondent’s control, and that he, as a student, had no role in their execution.
65. The Petitioner avers that while the Respondent may have discretion to review fees, such discretion must be exercised lawfully and reasonably, and cannot be applied arbitrarily without regard to existing circumstances, particularly where the delay in completion was caused by the Respondent.
66. The Petitioner contends that any alleged overstaying beyond the maximum six-year period cannot be attributed to him, as it was occasioned by the Respondent’s failure to release his results in a timely manner. He states that he should not be penalized for the Respondent’s omissions, inaction, or administrative failures, which directly contributed to the delay in his graduation.
67. The Petitioner further avers that there exist other students who were allowed to graduate under the 2009 curriculum well beyond the alleged six-year limit, citing an example of a student who graduated after approximately nine years, thereby demonstrating inconsistency in the Respondent’s application of its rules.
68. The Petitioner denies the Respondent’s assertion that the Student Management Information System (SMIS) automatically flagged unmatched course codes as failed or missing, maintaining that such an explanation is inaccurate and misleading.
69. The Petitioner deposes that he diligently applied himself throughout the programme and successfully completed all prescribed courses within the stipulated time without any resits or supplementary examinations. He further states that an audit report conducted by the Respondent in November, 2014 confirmed that he had completed all his examinations and had no pending or outstanding assessments, thereby evidencing his academic compliance and commitment.
70. The Petitioner concludes by asserting that he is innocent of the allegations made against him in the Respondent’s replying affidavit and maintains that the Respondent’s claims are unfounded and contrary to the true facts.
E. THE RESPONDENT’S FURTHER AFFIDAVIT.
71. In his further affidavit sworn on 15th January, 2025, Michael Peter Otieno Okelloh states that the timetable annexed by the Petitioner to his supplementary affidavit was not a regular timetable but a “Special/Supplementary timetable” intended for students retaking or resitting units they had previously failed, or who had missed units due to unavoidable circumstances such as sickness. The deponent states that the timetable is irrelevant to the Petitioner’s claims, as it only relates to special or supplementary examinations offered during the 2014/2015 academic year.
72. The deponent asserts that the matters relied upon by the Petitioner are transitional in nature, and given that he was admitted in 2010, he ought to have graduated by the 2013-2014 academic year. He states that the Petitioner’s overstay as a student was entirely his responsibility and compounded by the periodic curriculum changes affecting legal education, as explained in the Respondent’s replying affidavit.
73. In further response to the Petitioner’s supplementary affidavit, the Respondent clarifies that the academic record of the student who was admitted in 2009, is not comparable to the Petitioner’s situation, as the Petitioner was admitted in 2010, and the phasing out of the 2009 curriculum included a transitional period.
74. The deponent asserts that the transcripts annexed to the Petitioner’s supplementary affidavit were “provisional result slips” issued on 29th November, 2018 solely for purposes such as employment or sponsorship, and not for compliance with the 2009 Law Degree curriculum and were still subject to approval by the University Senate.
75. In response to the Petitioner’s claim that he had taken all examinations with no pending special or supplementary exams by 6th November, 2014, the deponent states that this confirmation applied only to units the Petitioner had sat and passed, and did not account for requirements imposed by the Legal Education regulator. He states that clearance of units under the 2009 curriculum without compliance with the standards and requirements of the Council of Legal Education is insufficient for graduation.
76. The Respondent, through the deponent’s further affidavit reiterates that one of the students who followed a similar path as the Petitioner in this case by filing a similar petition failed in his quest as the Court directed that student to undertake the compulsory units following the curriculum change.
77. Consequently, the deponent maintains that the petition is premature, as the Petitioner has yet to satisfy the academic standards and regulatory requirements necessary for clearance and graduation with a Bachelor of Laws degree.
F. THE PETITIONER’S SUBMISSIONS.
78. The Petitioner argues in his submissions that the Respondent acted unreasonably, irrationally and with malice in delaying the completion of his Bachelor of Laws program. He contends that the delay in graduation and withholding of his results were motivated by extraneous considerations, including his prior role as a student leader, rather than any legitimate academic concern.
79. The Petitioner submits that the Respondent deliberately imposed additional requirements, including extra courses and fees, which were never applied to other students admitted under the same program. This conduct, he submits, constitutes an abuse of power and a departure from the principles of fairness, reasonableness and impartiality expected in the administration of public institutions.
80. The Petitioner further contends that the respondent violated his right to fair administrative action as guaranteed under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. He submits that he was never notified of the proposed administrative action, was denied the opportunity to be heard, was not informed of his right to internal review, and was deprived of the right to representation or cross-examination.
81. The Petitioner emphasizes that the Respondent also failed to provide reasons for withholding his results or imposing additional requirements, thereby contravening the fundamental principles of natural justice.
82. In support of this argument, the Petitioner cites the case of Kevin K. Mwiti & Others v Kenya School of Law & 2 Others [2015] eKLR, which underscores the need for fairness, reasonableness and acco
[...truncated]
1. The Petitioner herein Oyolla Moses Juma commenced the present proceedings vide the petition dated 17th August, 2023 where he sought the following reliefs;
a. A declaration that the Respondent has breached and/or violated the Petitioner’s fundamental rights under Articles 10, 25, 26, 27, 28, 29(d), 35(2), 43 and 47 of the Constitution of Kenya.
b. A declaration that the decision to deny the Petitioner an opportunity to graduate and the award of a Bachelor of Laws degree certificate is unconstitutional, illegal, unreasonable, irrational, oppressive and procedurally unfair.
c. A declaration that the actions of the Respondent denying the Petitioner an opportunity to graduate on the basis of new additional courses which were neither applicable nor offered at the time of admission or during the period of his studies were retrospective, illegal and violated the Petitioner’s right to legitimate expectation.
d. A declaration that the Petitioner’s qualifications for graduation are only subject to the provisions of the law, regulations and/or the curriculum and/or courses applicable and/or offered at the time of his admission at the Respondent university.
e. A declaration that the Petitioner having completed the prescribed course within the prescribed time is qualified and eligible for graduation and the award of a Bachelor of Laws degree certificate from the Respondent university.
f. An order prohibiting the Respondent from compelling the Petitioner to take and/or sit for any other additional courses otherwise not applicable and/or offered at the time of his admission at the Respondent university.
g. An order prohibiting the Respondent from compelling the Petitioner to pay any other additional fees otherwise not provided for in the fee schedule at the time of admission at the Respondent university.
h. An order of mandamus compelling the Respondent to award the Petitioner with a Bachelor of Laws degree certificate, academic transcripts and the certificate of completion from the university using the 48 courses prescribed and offered by the university, and taken and passed by the Petitioner during the period of studies.
i. An order of general damages as against the Respondent for the breaches of the Petitioner’s fundamental rights and freedoms and for lost opportunities on jobs, promotions and career development.
j. An order of exemplary damages as a deterrence from similar violations in the future and encourage diligence.
k. Orders of aggravated damages for the continued breaches even after the missing results were released by the Respondent.
l. An order of costs incidental to the proceedings.
m. Such other costs, reliefs and/or remedies the Honourable Court shall deem just and expedient to grant.
B. THE PETITIONER’S SUPPORTING AFFIDAVIT.
2. In support of his case, the Petitioner filed a supporting affidavit that he swore on 17th August, 2023.
3. In his affidavit in support of the petition, the Petitioner deposes that he was admitted to the University of Nairobi School of Law, Kisumu Campus in October, 2010 to pursue a Bachelor of Laws (LL.B) degree under the Module II programme, pursuant to an admission letter dated 3rd September, 2010.
4. He avers that at the time of his admission, the curriculum offered at the Kisumu Campus was identical to that offered at Parklands Campus, and that he was enrolled under the existing “old curriculum” then in force.
5. The Petitioner states that the programme comprised 67 course units, including 26 core units and 41 electives, out of which a student was only required to take and pass 48 units, being 12 units in each academic year, including all core units, in order to qualify for the award of the degree.
6. He further deposes that the total cost of the programme for the 48 units was Ksh.690,480/- and that the course was to be undertaken on a full-time basis over a minimum of eight semesters and a maximum of twelve semesters, subject to extension by the University Senate.
7. The Petitioner avers that although he deferred his studies for one academic year (2011/2012), his expected completion date remained December, 2015, and not later than December, 2017, subject only to formal extension.
8. The Petitioner states in his affidavit that he accepted the offer of admission on the basis of the prescribed curriculum, course requirements and representations made by the University, and undertook to diligently pursue his studies in accordance with the University’s statutes, rules and regulations.
9. The Petitioner deposes that he attended all required lectures, tutorials and academic activities, and was assured that upon successful completion of the prescribed 48 course units within the stipulated time, he would be awarded a Bachelor of Laws degree.
10. He avers that in reliance on that assurance, he undertook, sat for and successfully passed all the required 48 course units – 12 in each academic yeay – completing his course of study by October, 2015 and thereby qualifying for graduation in December, 2015.
11. The Petitioner states that despite fulfilling all academic requirements, he was not cleared for graduation in December, 2015 due to the absence of marks for four units, namely International Human Rights Law, Insurance Law, HIV/AIDS and East African Community Law, which he had duly undertaken and completed.
12. He deposes that the failure to graduate was not due to any academic deficiency on his part, but was solely occasioned by the University’s failure to process and release the said results in time.
13. The Petitioner avers that he made numerous efforts to have the missing marks traced and posted, including frequent visits to the University offices and sustained email correspondence with various examinations officers from 2016, onwards.
14. He states that on 3rd May, 2017, he formally wrote to the then examinations officer and copied the Associate Dean, explaining his predicament and the impact of the missing marks on his graduation and career progression, but received no response.
15. He further deposes that upon a change in the examinations office, he wrote again on 20th, May 2017 to the new examinations officer, who requested additional details regarding the examinations, which he duly provided, including dates, the names of the concerned lecturers and other supporting information.
16. The Petitioner avers that despite furnishing the requested information, the examinations officer failed to act or respond further, and his efforts to follow up were unsuccessful.
17. The Petitioner contends that following another change in the examinations office, he renewed his efforts in the year 2019 by writing to the new officer, who instructed a clerk to trace the missing marks from available records.
18. The Petitioner deposes that the clerk subsequently confirmed that most of the missing marks had been located, and requested him to provide the missing Continuous Assessment Test (CAT) mark for Insurance Law, which he supplied.
19. He further avers that despite the retrieval of the marks by mid-2019, the University still failed and/or refused to update his records or clear him for graduation in December, 2019.
20. The Petitioner states that he continued to follow up, including writing again in July, 2020, but received no response.
21. The Petitioner deposes that in November, 2020, the examinations officer contacted him and requested him to forward details of the missing units to facilitate clearance for graduation, which he promptly did. He avers that shortly thereafter, all the missing marks were finally posted to his student portal, confirming that his academic record was complete.
22. The Petitioner states that notwithstanding the posting of all marks in November, 2020, the University still failed and/or refused to clear him for graduation in December, 2020 or at any time thereafter, without giving any reasons. He deposes that to date, no proper or justifiable explanation has been provided for the continued refusal to award him his degree.
23. The Petitioner avers that on 20th February, 2023, the University issued him with an academic transcript which he describes as defective, inaccurate, and misleading. He states that although the transcript reflects all the 48 units he undertook between 2010 and 2015, it incorrectly indicates that he failed in all academic years and that he took fewer or was missing required courses.
24. The Petitioner further deposes that the transcript alleges that he failed to undertake 22 additional courses, identified by specific course codes, which he asserts were never part of the curriculum at the time of his admission or during his period of study. He avers that he is a complete stranger to those alleged additional courses and was never notified at any time that such courses were required for graduation.
25. The Petitioner states that the implication of the transcript is that he was required to undertake approximately 70 courses, contrary to the original requirement of 48 units, which was never communicated to him. He contends that other students in his cohort who undertook the same number of units under the same curriculum were cleared, graduated and awarded degrees, thereby demonstrating unequal and discriminatory treatment.
26. The Petitioner further avers that a comparison between his transcript and that of a fellow student reveals that both undertook similar course loads and attained comparable grades, yet the University recommended a “pass” for the other student while indicating “fail” and “missing courses” in his case.
27. The Petitioner states that all the grades reflected in his transcript fall within passing categories and that he never failed any course, nor did he undertake any resits or supplementary examinations. He asserts that under the University’s regulations, progression from one academic year to another is only permitted upon passing all required courses, and that his progression to the fourth year confirms that he met all academic requirements.
28. The Petitioner avers that had he failed any courses or missed a significant number of units, he would have been discontinued from the programme, which never occurred. He states that he was never issued with any notice of failure, discontinuation or requirement to undertake additional courses at any point during his studies.
29. The Petitioner contends that upon identifying the errors in the transcript, he formally requested the University to correct the inaccuracies and issue him with a proper transcript, but the University failed and/or refused to do so. He avers that the true reason for his failure to graduate in the year 2015 was the University’s delay in releasing his results, and not any alleged academic deficiency.
30. The Petitioner takes the position that upon eventual release of the results in 2020, the University was under an obligation to clear him for graduation without imposing any further conditions and that the imposition of additional courses after completion of his studies is unlawful, retrospective, unreasonable and intended to frustrate his graduation.
31. The Petitioner avers that he had a legitimate expectation that upon fulfilling the requirements at the time of admission, he would graduate without being subjected to new or additional conditions. He further states that he was never informed of any adverse decision or given an opportunity to be heard prior to the University making decisions affecting his graduation status.
32. The Petitioner contends that the University’s actions violate the rules of natural justice, amount to procedural unfairness and constitute an abuse of administrative power. He deposes that the University acted in bad faith by withholding his results, failing to rectify its errors and subsequently attempting to justify its actions through the imposition of new requirements.
33. The Petitioner avers that the actions of the University are discriminatory, selective and inconsistent with the treatment accorded to other similarly situated students.
34. The Petitioner states that as a consequence of the failure to graduate, he has been unable to enrol at the Kenya School of Law, secure gainful employment or advance his professional career. He avers that the prolonged delay has created the false impression that he took an excessive period to complete his studies, to his detriment and that the defective transcript portrays him as an academic failure, thereby damaging his reputation and undermining his employment prospects. He further deposes that he has suffered financial hardship, including difficulty in repaying his Higher Education Loans Board (HELB) loan, thereby exposing him to adverse credit consequences.
35. The Petitioner expresses apprehension that the University may continue to deny him graduation, deregister him for overstaying or compel him to undertake additional courses at great personal cost. He further contends that compliance with the alleged additional requirements would impose an unreasonable financial and psychological burden on him.
36. The Petitioner deposes that the University has failed to honour its contractual and statutory obligations, and has abandoned its promise to award him a degree upon completion of the prescribed programme. He states that the University’s actions are unlawful, irrational, procedurally unfair, discriminatory and in violation of his rights and legitimate expectations.
37. The Petitioner concludes that the Respondent’s actions are tainted by bad faith, bias and abuse of discretion, and prays for the intervention of the Court to grant appropriate reliefs, including his clearance for graduation and award of the Bachelor of Laws degree.
C. THE RESPONDENT’S REPLYING AFFIDAVIT.
38. In the replying affidavit sworn on 8th February, 2024 by Michael Peter Otieno Okello, the Respondent’s Examinations Officer at its Faculty of Law, Kisumu Campus, the said deponent admits that the Petitioner was enrolled to the University of Nairobi Bachelor of Laws (LL.B) Module II programme at Kisumu Campus in the 2010/2011 academic year.
39. The deponent states that the Petitioner belonged to the second cohort of students admitted to Kisumu Campus and that the curriculum under which he was admitted (2009–2013) was subject to periodic review, having expired in 2013 and subsequently replaced by newer curricula, including the 2013–2018, 2018–2022 and the current curriculum.
40. He contends that the Petitioner has not demonstrated that he completed his studies in October, 2015, and avers that as at the end of the 2014/2015 academic year, the Petitioner’s records indicated missing Continuous Assessment Test (CAT) marks for certain courses, including Tax Law, International Trade Law and Energy Law.
41. The deponent further avers that the said missing CAT marks were only uploaded in the 2015/2016 academic year, thereby rendering the Petitioner academically incomplete as at December, 2015 and ineligible for graduation at that time.
42. The deponent admits the existence of the 67-course structure under the old curriculum but states that graduation is subject not merely to completion of units, but also to satisfaction of all academic, administrative, and financial requirements, including submission and approval of all marks, absence of encumbrances and approval by the University Senate.
43. The deponent outlines the internal examination and graduation process, including administration and marking of exams, collation and approval of results by departmental and faculty boards and final approval by the Senate, after which the Academic Registrar prepares the graduation list. He avers that inclusion in the graduation list is contingent upon Senate approval and that only students duly cleared through this process are invited to verify their details and proceed with graduation clearance.
44. The deponent contends that the Petitioner’s assertions regarding fees are inaccurate, noting that fees are subject to review and that penalties may apply where a student exceeds the prescribed maximum duration of study. He confirms that the LLB programme must be completed within a minimum of eight and a maximum of twelve semesters (six years), and avers that the Petitioner’s maximum permissible period, inclusive of deferment, lapsed in the 2015/2016 academic year.
45. The deponent denies that the Petitioner qualified for graduation in 2015 or thereafter, and maintains that the Petitioner’s academic eligibility expired upon lapse of the maximum study period without completion of all requirements. He further denies the Petitioner’s claims regarding efforts to trace missing marks and qualification for graduation in 2019 or 2020, asserting that any communication from University staff during that period was merely exploratory and did not amount to confirmation of eligibility for graduation.
46. The deponent avers that the Petitioner has not demonstrated that his name was ever included in any graduation list presented to or approved by the Senate. He contends that the Petitioner was informed through various engagements with University officials that he had not been cleared for graduation because the curriculum under which he was admitted had been phased out and he had not undertaken additional required courses under the current curriculum.
47. The deponent specifies that the Petitioner is required to undertake at least nine additional compulsory courses under the current curriculum, which he has not done, and which are necessary to align his training with prevailing academic and professional standards. He further avers that the said additional courses are relevant and necessary to the training of a competent legal professional and are not arbitrary impositions.
48. The deponent explains that changes in curriculum entail corresponding changes in course codes and structures, including consolidation or splitting of units, and that the University’s system automatically flags unmatched or unconverted courses as missing or failed. He states that students who undertook the old curriculum are required to align and convert their course units to the current curriculum codes as part of the graduation clearance process.
49. The deponent avers that the Petitioner has failed or refused to initiate or cooperate in this alignment process and has erroneously insisted that he is not subject to the current curriculum. He contends that the Petitioner’s failure to cooperate with the University’s processes is the primary cause of his delayed graduation and any resulting prejudice.
50. The deponent denies allegations of discrimination and states that the Petitioner’s peer who graduated in 2015 did so because he had fulfilled all requirements, unlike the Petitioner whose records were incomplete at the time. He further avers that other students in a similar position to the Petitioner successfully sought readmission, undertook the required additional courses under the current curriculum and were subsequently cleared for graduation.
51. The deponent cites examples of such students who resumed studies after expiry of their study period and graduated upon satisfying the updated curriculum requirements.
52. The deponent further contends that the present petition is similar to a previously dismissed petition in the High Court involving other students under the old curriculum, thereby rendering the current petition unmeritorious.
53. The deponent asserts that the Respondent is statutorily mandated to regulate academic programmes, including curricula, examinations and graduation requirements, and that it acted within its lawful authority in its dealings with the Petitioner. He maintains that the Petitioner was aware, or ought to have been aware, of the six-year maximum duration for completion of the programme and the consequences of failing to complete within that period.
54. The deponent reiterates that the curriculum under which the Petitioner was admitted expired in 2013 and that continued eligibility for graduation required compliance with the updated curriculum. He states that the Petitioner has not undertaken the necessary additional courses and has therefore not satisfied the academic requirements for graduation as determined by the Faculty, Senate, and Council.
55. The deponent avers that the University is nonetheless willing, in line with its policies, to allow the Petitioner to complete his studies upon application for readmission, registration for the required courses, payment of applicable fees, and compliance with University regulations.
56. The deponent explains that curriculum changes were necessitated in part by the requirements of the Legal Education Act, 2012, which mandates inclusion of certain core courses and oversight by the Council of Legal Education.
57. The deponent further states that the applicable regulations governing the LL.B programme, including duration and course requirements, are contained in the University Almanac and were made available to students upon admission. He avers that under the law and University regulations, students who fail to complete their studies within the prescribed time must comply with the prevailing curriculum to qualify for graduation.
58. The deponent contends that the Petitioner’s reliance on provisional transcripts is misplaced, as such documents are subject to review and approval by the Senate and do not confer enforceable rights.
59. The deponent asserts that the Petition is premature and based on inchoate rights, as the Petitioner has not completed the necessary academic processes required for graduation.
60. The deponent attributes the Petitioner’s prolonged stay at the University to his own academic shortcomings, including alleged lack of diligence, unexplained breaks in study and deferment of courses. He denies that the Respondent violated any of the Petitioner’s constitutional rights, including rights to equality, dignity, fair administrative action or legitimate expectation. He asserts that failure to meet academic requirements cannot be converted into a constitutional claim or basis for alleging violation of rights.
61. The deponent concludes that the Petition is devoid of merit, vexatious and an abuse of the court process, and urges the Court to dismiss it with costs to the Respondent.
D. THE PETITIONER’S SUPPLEMENTARY AFFIDAVIT
62. In his supplementary affidavit sworn on 14th October, 2024, the Petitioner asserts that it is not true, as alleged by the Respondent, that the 2009 curriculum expired in 2013, and contends that the Respondent continued to teach and examine students under that curriculum up to at least 2018, as evidenced by lecture timetables from the relevant period.
63. The Petitioner states, in response to the Respondent’s claim regarding missing Continuous Assessment Test (CAT) marks for certain courses, that the courses listed by the Respondent were never missing and were not the subject of his complaints regarding missing marks. He deposes that, to his knowledge and based on the Respondent’s own records, he fully complied with all the requirements for graduation, save for the issue of missing marks which were in the Respondent’s custody and which the Respondent failed to release in time.
64. The Petitioner asserts that the processes and stages of examination approval and graduation outlined by the Respondent are internal administrative procedures solely within the Respondent’s control, and that he, as a student, had no role in their execution.
65. The Petitioner avers that while the Respondent may have discretion to review fees, such discretion must be exercised lawfully and reasonably, and cannot be applied arbitrarily without regard to existing circumstances, particularly where the delay in completion was caused by the Respondent.
66. The Petitioner contends that any alleged overstaying beyond the maximum six-year period cannot be attributed to him, as it was occasioned by the Respondent’s failure to release his results in a timely manner. He states that he should not be penalized for the Respondent’s omissions, inaction, or administrative failures, which directly contributed to the delay in his graduation.
67. The Petitioner further avers that there exist other students who were allowed to graduate under the 2009 curriculum well beyond the alleged six-year limit, citing an example of a student who graduated after approximately nine years, thereby demonstrating inconsistency in the Respondent’s application of its rules.
68. The Petitioner denies the Respondent’s assertion that the Student Management Information System (SMIS) automatically flagged unmatched course codes as failed or missing, maintaining that such an explanation is inaccurate and misleading.
69. The Petitioner deposes that he diligently applied himself throughout the programme and successfully completed all prescribed courses within the stipulated time without any resits or supplementary examinations. He further states that an audit report conducted by the Respondent in November, 2014 confirmed that he had completed all his examinations and had no pending or outstanding assessments, thereby evidencing his academic compliance and commitment.
70. The Petitioner concludes by asserting that he is innocent of the allegations made against him in the Respondent’s replying affidavit and maintains that the Respondent’s claims are unfounded and contrary to the true facts.
E. THE RESPONDENT’S FURTHER AFFIDAVIT.
71. In his further affidavit sworn on 15th January, 2025, Michael Peter Otieno Okelloh states that the timetable annexed by the Petitioner to his supplementary affidavit was not a regular timetable but a “Special/Supplementary timetable” intended for students retaking or resitting units they had previously failed, or who had missed units due to unavoidable circumstances such as sickness. The deponent states that the timetable is irrelevant to the Petitioner’s claims, as it only relates to special or supplementary examinations offered during the 2014/2015 academic year.
72. The deponent asserts that the matters relied upon by the Petitioner are transitional in nature, and given that he was admitted in 2010, he ought to have graduated by the 2013-2014 academic year. He states that the Petitioner’s overstay as a student was entirely his responsibility and compounded by the periodic curriculum changes affecting legal education, as explained in the Respondent’s replying affidavit.
73. In further response to the Petitioner’s supplementary affidavit, the Respondent clarifies that the academic record of the student who was admitted in 2009, is not comparable to the Petitioner’s situation, as the Petitioner was admitted in 2010, and the phasing out of the 2009 curriculum included a transitional period.
74. The deponent asserts that the transcripts annexed to the Petitioner’s supplementary affidavit were “provisional result slips” issued on 29th November, 2018 solely for purposes such as employment or sponsorship, and not for compliance with the 2009 Law Degree curriculum and were still subject to approval by the University Senate.
75. In response to the Petitioner’s claim that he had taken all examinations with no pending special or supplementary exams by 6th November, 2014, the deponent states that this confirmation applied only to units the Petitioner had sat and passed, and did not account for requirements imposed by the Legal Education regulator. He states that clearance of units under the 2009 curriculum without compliance with the standards and requirements of the Council of Legal Education is insufficient for graduation.
76. The Respondent, through the deponent’s further affidavit reiterates that one of the students who followed a similar path as the Petitioner in this case by filing a similar petition failed in his quest as the Court directed that student to undertake the compulsory units following the curriculum change.
77. Consequently, the deponent maintains that the petition is premature, as the Petitioner has yet to satisfy the academic standards and regulatory requirements necessary for clearance and graduation with a Bachelor of Laws degree.
F. THE PETITIONER’S SUBMISSIONS.
78. The Petitioner argues in his submissions that the Respondent acted unreasonably, irrationally and with malice in delaying the completion of his Bachelor of Laws program. He contends that the delay in graduation and withholding of his results were motivated by extraneous considerations, including his prior role as a student leader, rather than any legitimate academic concern.
79. The Petitioner submits that the Respondent deliberately imposed additional requirements, including extra courses and fees, which were never applied to other students admitted under the same program. This conduct, he submits, constitutes an abuse of power and a departure from the principles of fairness, reasonableness and impartiality expected in the administration of public institutions.
80. The Petitioner further contends that the respondent violated his right to fair administrative action as guaranteed under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. He submits that he was never notified of the proposed administrative action, was denied the opportunity to be heard, was not informed of his right to internal review, and was deprived of the right to representation or cross-examination.
81. The Petitioner emphasizes that the Respondent also failed to provide reasons for withholding his results or imposing additional requirements, thereby contravening the fundamental principles of natural justice.
82. In support of this argument, the Petitioner cites the case of Kevin K. Mwiti & Others v Kenya School of Law & 2 Others [2015] eKLR, which underscores the need for fairness, reasonableness and acco
[...truncated]