Introduction
1. The petition dated 10 th June, 2025 and is supported by the petitioner’s affidavit in support of similar date and a further affidavit dated 20 th January, 2026.
2. The Petitioner’s grievance is that the Respondents failed to provide a fair, transparent and accountable academic and examination process as well as fair administrative procedures, discriminating against him in violation of his inherent rights and freedoms.
3. He contends that the respondent’s actions are in direct violation of his constitutional rights and in breach of legitimate expectation.
4. He thus prays for the grant of the following reliefs:
a) A declaration that the Respondent has contravened, denied, violated, and infringed upon the Petitioner's rights and fundamental freedoms enshrined in the Constitution, including but not limited to Articles 19, 20, 27, 28, 35, 43, and 47 of the Constitution of Kenya.
b) A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's inherent rights and freedoms guaranteed under Article 19 of the Constitution of Kenya, by failing to uphold the dignity of the Petitioner and by undermining the enjoyment of his rights that are inalienable and not subject to arbitrary limitation.
c) A declaration that the Respondent has acted in breach of Article 20 of the Constitution by failing to respect and protect the Petitioner's rights and fundamental freedoms, and by limiting their enjoyment without lawful justification or adherence to constitutional safeguards.
d) A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's right to equal treatment under Article 27 of the Constitution of Kenya by discriminating against the Petitioner.
e) A declaration that the Respondent's acts and omissions, including the arbitrary exclusion of the Petitioner from classes, unequal treatment, and denial of academic information, violated the Petitioner's inherent dignity and contravened Article 28 of the Constitution of Kenya.
f) A declaration that the Respondent violated Article 35 of the Constitution by denying the Petitioner access to information necessary for the protection and enforcement of his fundamental rights, including academic records, examination criteria, and administrative decisions affecting his education.
g) A declaration that the Respondent violated the Petitioner's socio-economic rights under Article 43 of the Constitution, specifically his right to education, by subjecting him to arbitrary academic processes and withholding access to essential learning opportunities, thereby unjustly delaying the completion of his studies.
h) A declaration that the Respondent failed to provide written reasons for its adverse decisions against the Petitioner, in contravention of Article 47(2) of the Constitution and Section 4(2) of the Fair Administrative Action Act.
i) An order for general damages for violation of the Petitioner's rights.
j) An order for specific damages amounting to Kshs 10,721,000 which is broken down as follows:
• Fees paid for two of the repeated years Kshs.905,000.
• Additional payment of rent, stationery and upkeep during the 40-month period Kshs.1,800,000.
• Lost income that would have been earned by the Petitioner during the 40-month period of delay to graduate Kshs.8,016,000.
• Costs of this Petition be awarded to the Petitioner.
• Any other relief that the Court may deem fit and just to grant in the circumstances.
Petitioner’s Case
5. The petitioner deposed that he enrolled as a student at the Respondent’s institution in 2013 to pursue a six-year Bachelor of Medicine and Bachelor of Surgery degree programme and at the time of his admission, he was employed as a Senior Dental Technologist with Machakos County Government, who granted the Petitioner study leave with expectation that he would complete his studies in 2019.
6. He deposes that upon admission, to the Respondent University, he was issued with the Respondent's the Academic Handbook and Students Code of Conduct , which outlined the Respondent's guidelines, policies and procedures .The said Academic Handbook constituted a binding contract between the Petitioner and the Respondent as it established the rights and obligations of the parties and provided a framework for their interactions.
7. The Petitioner states that he progressed well with his studies until his 5 th year of study, when he was informed that he had failed 3 units: Dermatology & STI, ENT and Orthopedics’ & Trauma and was required to sit for supplementary exams in these units and that he undertook the supplementary exams and upon receiving the results, he was informed that he had failed the Orthopedics & Trauma Unit again.
8. Dissatisfied with the outcome and believing that the result did not accurately reflect his performance. He requested for a remark under the Academic Handbook clause 5.6 which allowed a student who is dissatisfied with the marking in any examination to appeal to have such examination remarked under the following conditions Such an appeal may be made only once in respect of one paper to which the Respondent verbally declined the request for a remark on the basis that the exam was clinical in nature. The Petitioner insists the failure to reduce the decision to writing infringed his right of access to information and fair administrative action as guaranteed under Articles 35 and 47(2) of the Constitution as well as Section 4(2) of the Fair Administrative Action Act, 2015, depriving him of crucial evidence to present to his employer.
9. As a result, the Petitioners employer halted his salary and issued him with a show cause letter, which ultimately culminated in the termination of the Petitioners employment.
10. The Petitioner deposes that due to the Respondent's unjustified refusal to remark the Orthopedics and Trauma Unit, he was compelled to repeat the entire 5 th year of study, which he completed successfully and subsequently advanced to the 6 th year of study .However, the Dermatology & ST1 unit which was scheduled to be administered in the 5 th year of study was irregularly deferred and conducted in the 6 th year, contrary to the provisions of Clause 4.2(f) of the Academic Handbook in breach the provisions of the Academic Handbook and occasioned the Petitioner significant prejudice.
11. The Petitioner further deposes that, despite having registered for the Dermatology & STI unit, the said unit was conspicuously and inexplicably excluded from his teaching timetable in the 6 th year of study, while other students were taught in all the units for which they had registered. That the Respondent's failure to offer classes and instruction in a unit that he had registered for resulted in unjustifiable differential treatment and academic discrimination, thereby violating the Petitioners right to equality and freedom from discrimination under Article 27 of the Constitution, as well as my right to education under Article 43(1)(f) of the Constitution of Kenya, 2010.
12. The Petitioner deposes that he sat for the final 6th year examinations despite not the lack of classes in Dermatology & STI and upon release of the results, he was informed that he had failed three units, namely, Dermatology & STI, Senior Clerkship in Pediatrics, and Senior Clerkship in Internal Medicine. As a result, the Respondent notified the Petitioner vide a letter dated 14 th January 2021 that he was required to repeat the entire academic year on the basis that he had failed more than two clinical units. This frustrated the Petitioner who submitted a letter dated 3rd February 2021, requesting a review of the Respondent's decision on the grounds that:
i. The Dermatology & STI unit was assessed solely through an end-of-year theory examination alone, contrary to Sections 4.3 (b) and 5.1 of the Academic Handbook, which required all courses to be assessed through a combination of continuous assessment tests, end-of-year theory examinations and clinical examinations; and
ii. The criteria applied to his 6th year examination results differed from that of his 5th year examination results, where under similar circumstances, he was only required to sit for supplementary examinations rather than be compelled to repeat the entire academic year.
13. The Respondent responded vide a letter dated 29th March 2021 in which it declined the Petitioners request for review on the following grounds:
i. In the end of year examinations in the 5th year, the Petitioner had failed 3 courses however only 1 of them was clinical based thus he was allowed to sit for the supplementary examination; and
ii. In the end of year examinations in the 6 th year, he had failed 4 courses out of which 3 were clinically based which constituted a 60% failure in the clinical courses.
14. The Petitioner deposes that the Respondent's decision to decline his request for review was not lawful, reasonable and/or procedurally fair for refusal to address his query with respect to the Dermatology & STI unit and the Respondent indicated in the letter dated 29th March 2021 that he had failed 4 courses out of which 3 courses were clinically based, however, the 4th failed course remains unidentified to date. That the claim that the Petitioners failure constituted a 60% failure rate, the calculation was flawed as the Respondent arrived at this percentage by computing the three failed courses out of a total of five and not all the six courses examined (3/5=60%), with the Dermatology & STI unit being excluded in the total number of courses. Including the Dermatology & STI unit in the courses categorized as failures whilst simultaneously excluding it in the total number of courses examined constituted a mathematical error that led to a mathematical inconsistency; and the lack of clarity by the Respondent ,who claimed that he had failed 3 core courses in his 5 th year examinations, and that only 1 of those 3 courses was a clinically- based unit, read Orthopedic & Trauma-which caused the repetition of the 5 th year and now in the 6th year, the Respondent claimed that he had failed 4 courses out of which 3 were clinically based among them Dermatology & STI –a 5 th year unit. The Petitioner states that it therefore follows that the ENT and Orthopedic &Trauma units were not clinically based and thus there was no justification in denying him a remark as the Orthopedics & Trauma course lacked a clinical component.
15. The Petitioner deposes that it is evident to that the Respondent's decision was based on an incorrect set of facts and computation of marks, which caused him repeat the entire 6th year of study. Yet again, despite having duly registered for the Dermatology & STI unit, it was conspicuously and inexplicably excluded from his teaching timetable, and no classes were offered to him.
16. The Petitioner deposes that he was barred from sitting for his final year examinations in time due to increased tuition fees arising from the Respondent's irregular and unjust referrals/repetition which caused the Petitioner and his family financial hardship in breach of the Petitioners right to fair administrative action under Article 47, right to education under Article 43(1)(1), and right to equal benefit protection of the law under Article 27(1) of the Constitution, and Article 28 of the Constitution, which guarantees right to dignity, by subjecting the Petitioner to repeated academic and financial hardships stemming from arbitrary and unreasonable administrative action.
17. The Petitioner ultimately completed his studies and graduated on 19th October 2024, however, the Respondent's persistent breaches of the Academic Handbook and violations of his constitutional rights-including the right to fair administrative action (Article 47), education (Article 43(1)(1)), human dignity (Article 28), equality and freedom from discrimination (Article 27), and access to information (Article 35)-have caused him to suffer considerable loss and damage which has guided the filing of this current petition.
Respondent’s Case
18. In response, the respondents through the Legal Officer, Njeri Mbugua led a replying affidavit sworn on 13 th August, 2025.
19. She deposed that the petitioner enrolled in the respondent in 2013 under registration number BMS-1-0792. That he proceeded well with his studies despite financial hardship here and there. She admitted the chronology of events concerning year 5 but differed on the reason for referral of the Petitioner stating that the reason the Petitioner was referred to repeat the said year was because of failure of the unit –Orthopedics & Traumatology which was practical in nature and could not be remarked, the MBCHB program dictated that a failure of supplementary exam would lead to referral and its therefore not true that it is the failure to provide written communication that led to his dismissal from work. She further quoted the suit between the Petitioner and its employer ELRC CAUSE NO. 379 OF 2020-THOMAS OMBATI OIRE VS THE COUNTY GOVERNMENT OF MACHAKOS & PUBLIC SERVICE BOARD , which shows admission by the Petitioner that he failed to demonstrate proof of ongoing studies, which led to his termination.
20. The Respondent deposed that the Petitioner himself admits to failing his 6 th year exams and the Respondent is not to blame, stating further that the Dermatology & STI unit was a 5 th year unit and hence could not be contained in the year 6 timetable, that it was upon the Respondent to trace and attend classes in year 5 for the unit.
21. The Respondent further states that the Petitioner deferred his 6 th year examination before later resuming and the Respondent therefore has not violated any of the Petitioners rights as alleged ,that their actions were in accordance to the law and full compliance with the academic handbook and the petition ought to be dismissed for lack of merit.
Petitioner’s Submissions
22. In the submissions dated 27 th January,2026, Counsel for the petitioner, highlighted the issues for determination as:
i. Whether the Academic Handbook constituted a binding contract between the Petitioner and the Respondent governing the academic, examination, and appeal processes and whether the Respondent’s departure from its provisions resulted in violation of the Petitioner’s constitutional rights?
ii. Whether the Respondent violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act by arbitrarily refusing to remark the Petitioner’s failed supplementary examination?
iii. Whether the Respondent violated Articles 47 and 35 of the Constitution and Section 4 of the Fair Administrative Action Act by failing and/or refusing to provide written reasons for adverse academic decisions affecting the Petitioner?
iv. Whether the Respondent breached the Petitioner’s legitimate expectation by departing from its own assessment, examination, and academic progression procedures as set out in the Academic Handbook?
v. Whether the Respondent subjected the Petitioner to unequal and discriminatory treatment, including exclusion from teaching and inconsistent application of academic standards, in violation of Article 27 of the Constitution?
vi. Whether the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution by compelling him to sit for examinations without instruction and by unjustifiably delaying the completion of his studies?
vii. Whether the Petitioner suffered loss and damage as a result of the Respondent’s conduct, including loss of employment, delayed graduation, financial loss, and career stagnation?
viii. Whether the Petitioner is entitled to the Orders sought in the Petition?
23. The petitioner submitted on the first issue that the Academic Handbook constituted a binding contractual instrument that governed the academic relationship between the parties. In the present case, the Academic Handbook expressly governed:
(i) methods of assessment (continuous assessment, theory and clinical examinations);
(ii) supplementary examinations;
(iii) remarking and appeal procedures; and
(iv) academic progression and circumstances warranting repetition of an academic year.
24. That the Petitioner complied with the Academic Handbook at all material times, including registering for units, sitting for examinations, and formally invoking the review and remarking procedures provided therein but the Respondent failed to adhere to it and hence, the Respondent’s departure from its own Academic Handbook did not only amount to breach of contract but resulted in arbitrary and procedurally unfair decision making, denial of access to information and discriminatory treatment, thereby violating the Petitioner’s constitutional rights.
25. On the second issue, the Petitioner submitted that the Respondent’s refusal to remark the Petitioner’s failed supplementary examination was an administrative action that adversely affected his academic progression. As such, it was required to meet the constitutional threshold of lawfulness, reasonableness, and procedural fairness under Article 47(1) of the Constitution and Section 4 of the Fair Administrative Action Act.
26. He submits that the action was unconstitutional and breached Section 4 of the Fair Administrative Actions Act as:
(i) it was made without a fair and transparent process for considering the request;
(ii) it was unreasonable and arbitrary, particularly given the severe academic consequences; and
(iii) it violated the Petitioner’s entitlement to administrative conduct consistent with the Respondent’s Academic Handbook as well as transparency and accountability, which are values that underpin Article 47 of the Constitution.
27. The Petitioner insists there was no procedural fairness in the Respondent decisions and communication, citing University of Nairobi v Anyui (Civil Appeal 606 of 2019) [2021] KECA 112 (KLR) (22 October 2021).
28. On issue 3, the Petitioner submits that the Respondent’s adverse academic decisions constituted administrative actions within the meaning of Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, they were constitutionally required to be lawful, reasonable, and procedurally fair, and accompanied by written reasons where his rights are adversely affected hence the Respondent owed a duty to provide written reasons for adverse administrative action is a constitutional imperative, and not a discretionary courtesy.
29. That, by refusing and/or failing to provide the Petitioner with written reasons for declining the remark request and for other adverse academic determinations, the Respondent denied the Petitioner information necessary to understand, interrogate, and, where appropriate, even challenge those decisions. This conduct further violated the Petitioner’s right of access to information under Article 35 of the Constitution.
30. The Petitioner states that the Respondent has failed to discharge its evidentiary burden, having produced no documentary proof, such as evidence of service or acknowledgment by the Petitioner, demonstrating that the alleged written communication was ever received. In the absence of such proof, the Respondent’s allegation remains unsubstantiated and ought to be disregarded by this Honourable Court.
31. To buttress this point, he relied on Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR).
32. On whether the Respondent breached the Petitioners legitimate expectation, the Petitioner submits that he Respondent breached the doctrine of legitimate expectation by departing from its own published assessment, examination, remarking, and academic progression procedures as contained in the Academic Handbook, which had been communicated to and relied upon by the Petitioner ,stating that Kenyan Courts have recognized that where an institution sets out a process or mechanism by which decisions affecting rights will be made, a departure from that process undermines legitimate expectation and procedural fairness under Article 47 of the Constitution.
33. The Petitioner relied on the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others (Petition No. 14 of 2014) [2014] eKLR and Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR, and urges this Honourable Court to find and declare that the Respondent breached the Petitioner’s legitimate expectation.
34. On issue 5 Petitioner submits that excluding him from classes for his registered course while other students continued to receiving teaching amounted to differential treatment contrary to Article 27 of the Constitution. Further, the Respondent applied academic standards inconsistently and selectively to his detriment by:
(i) shifting the percentage thresholds and number of failed units to warrant repetition;
(ii) failing to disclose or apply a consistent formula for arriving at the alleged 60% threshold;
(iii) declining to produce the regulations governing referral or progression criteria; and
(iv) repeatedly altering the applicable standards without explanation.
35. That excluding the Petitioner from classes whilst other students registered for the same unit continued to receive teaching, amounted to differential treatment which also affected his right to dignity. He relied on Nyambura & 3 others v Independent Electoral and Boundaries Commission & 5 others [2025] KEHC 10457 (KLR) & Peter K. Waweru v Republic [2006] eKLR.
36. On whether the Respondent violated the Petitioners right to education under Article 43 (1) (f), the Petitioner submits that the Respondent violated his constitutional right to education guaranteed under Article 43(1)(f) of the Constitution, by:
(i) compelling him to sit for examinations without receiving instruction; and
(ii) unjustifiably delaying his academic progression and completion of studies through administrative inaction and inconsistent academic decisions,
Hence undermining the Petitioner’s access to meaningful education, impaired academic progression, and unjustifiably delayed the completion of studies. The Petitioner therefore respectfully urges this Honourable Court to find and declare that the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution.
37. On whether the Petitioner suffered loss and damage, the Petitioner that the Respondent’s unlawful actions and omissions directly and foreseeably occasioned substantial loss and damage to the Petitioner, including loss of employment, delayed graduation, financial loss, and prolonged career stagnation.
38. The Petitioner submits that his delayed graduation deprived him of eligibility for employment, promotion, and professional advancement in a regulated profession where graduation and certification are mandatory prerequisites. He cited Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR) (30 July 2021) (Judgment).
39. He further cites Jesse Waweru Wahome & 2 Others V Kenya Engineers Registration Board [2012] KEHC 1773 (KLR), stating that delayed graduation is not a mere inconvenience. It has far reaching professional, financial, and psychological consequences.
40. The Petitioner submits that he incurred financial loss in the form of additional tuition fees, living expenses, transport, lost income, and opportunity Career Stagnation and Loss of Prospects, all which were occasioned by the Respondent’s conduct.
41. He therefore invites this court to allow the Petition as prayed ,because he has proven the violations pleaded and is entitled to damages. He cited Mereka v Sikalieh (Petition E299 of 2022) [2025] KEHC 3467 (KLR) (Constitutional and Human Rights) (20 March 2025) (Judgment), Mboya v Kenyatta University (Petition E376 of 2022) [2024] KEHC 11853 (KLR) (Constitutional and Human Rights) (4 October 2024) (Judgment) & Lucas Omoto Wamari v Attorney General & another [2017] KECA 334 (KLR).
Respondent’s Submissions
42. The Respondent filed submissions dated 24 th April, 2026 condensing the issues for determination as follows:
A. Whether the Respondent violated the law?
B. Whether the Respondent contributed, in any way, to the delayed completion of studies and graduation of the Petitioner?
C. Whether the Respondent breached the Petitioner’s legitimate expectations?
D. Whether the Petitioner is entitled to the orders sought?
43. The Respondent on the 1 st issue largely re-produces the contents of the replying affidavit already highlighted above, it adds that during the 5th year the Petitioner failed three (3) courses one (1) of which was clinical based and the Petitioner was therefore allowed to sit for supplementary examination. During the 6th year, the Petitioner failed three (3) clinical based units and the Petitioner was therefore expected to discontinue however, the Respondent graciously allowed the Petitioner to refer the year in order for him to continue enjoying his right to education.
44. It is the Respondents submissions that in making the decision not to remark the Orthopedics and Traumatology unit and allow the Petitioner to repeat the 5th and 6 th years, it was guided by the law, rules and regulations that govern it specifically its Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, therefore they violated no law.
45. On the second issue, the Respondent submits that after enrolment, the Petitioner failed core units and as required by clause 4.2 of the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, the Petitioner repeated years 5 and 6 of his studies, he also applied to defer his studies for a year in between , it is the Respondent’s submissions that the delayed completions of studies by the Petitioner for a period of the alleged 40 months was occasioned by the Petitioner himself on account of either a repeated year for failing core units and/or a defer requested by the Petitioner.
46. On legitimate expectations ,the Respondent cites the c ase of Kenya Revenue Authority & another v Republic (Ex parte) Kenya Nut Company Limited [2020] eKLR, which states as follows;
“It has long been established that legitimate expectation can only operate within the law and it can only be relied on when the law has been complied with.”
47. The Respondent therefore submits that the legitimate expectation in this case is that all decisions that relate to the Petitioner would be made pursuant to the rules and regulations in the Academic Handbook and Students Code of Conduct, the Bachelor of Medicine and Bachelor of Surgery Curriculum and the applicable law, citing clause 4.2 of the Academic Handbook and Students Code of Conduct.
48. That the Petitioner failed critical practical units in year for which could not be remarked and hence occasioned his referral, that the Honourable Court should take judicial notice of the nature of practical examinations and that therefore, there was no legitimate expectation created that the Petitioner would be exempted from the application of the rules and regulations in the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery Curriculum.
49. The Respondent submits that it wholly complied with the clear and relevant provisions of the law and applied the law in totality in declining a request to remark a supplementary examination and requesting the Petitioner repeat year 5 and 6 of his studies.
50. On whether the Petitioner is entitled to the orders sought, the Respondent submitted as follows:
51. On whether the Respondent violated the right to access to information in article 35 of the Constitution of Kenya, the Respondent submits that the Petitioner’s concern on remarks of the failed supplementary unit was addressed in a letter dated 4th December 2018 where he was informed that the MEDC 507 Orthopedics & Traumatology being a practical examination could not be remarked and MBCHB Curriculum requires that where one fails a supplementary, they repeat the whole year and that all requests made by the Petitioner were responded to in written specifically in letters dated 4th December 2018, 14th January 2021, 29th March 2021 and 13th August 2021 which were supplied to the Petitioner in hardcopies, that the Petitioners allegations that he has never had sight of the letter dated 4th December 2018 but acknowledges letters dated 14th January 2021, 29th March 2021 and 13 th August 2021 that were served in the same manner. One cannot pick and choose which served documents to acknowledge especially when the documents denied do not favor the Petitioner’s case. The piecemeal acceptance of documents served in the same manner confirms malice on the part of the Petitioner .
52. The Respondent submits that the Petitioner had in his custody other correspondences between himself and the Respondent which he could have supplied to his employer to proof that he was still a student with the Respondent and the allegations that it was only a response to the request for remark that could have been presented to the employer to protect his rights is baseless and misconceived, the Respondent therefore states that they did not violate the Petitioners rights to information as alleged.
53. On whether the Respondent was in breach of the economic and social rights provided under article 43 of the Constitution of Kenya, specifically the right to education; the Respondent submits that it is also trite law that the right to education is not absolute but is su
[...truncated]
1. The petition dated 10 th June, 2025 and is supported by the petitioner’s affidavit in support of similar date and a further affidavit dated 20 th January, 2026.
2. The Petitioner’s grievance is that the Respondents failed to provide a fair, transparent and accountable academic and examination process as well as fair administrative procedures, discriminating against him in violation of his inherent rights and freedoms.
3. He contends that the respondent’s actions are in direct violation of his constitutional rights and in breach of legitimate expectation.
4. He thus prays for the grant of the following reliefs:
a) A declaration that the Respondent has contravened, denied, violated, and infringed upon the Petitioner's rights and fundamental freedoms enshrined in the Constitution, including but not limited to Articles 19, 20, 27, 28, 35, 43, and 47 of the Constitution of Kenya.
b) A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's inherent rights and freedoms guaranteed under Article 19 of the Constitution of Kenya, by failing to uphold the dignity of the Petitioner and by undermining the enjoyment of his rights that are inalienable and not subject to arbitrary limitation.
c) A declaration that the Respondent has acted in breach of Article 20 of the Constitution by failing to respect and protect the Petitioner's rights and fundamental freedoms, and by limiting their enjoyment without lawful justification or adherence to constitutional safeguards.
d) A declaration that the Respondent has contravened, denied, violated and infringed upon the Petitioner's right to equal treatment under Article 27 of the Constitution of Kenya by discriminating against the Petitioner.
e) A declaration that the Respondent's acts and omissions, including the arbitrary exclusion of the Petitioner from classes, unequal treatment, and denial of academic information, violated the Petitioner's inherent dignity and contravened Article 28 of the Constitution of Kenya.
f) A declaration that the Respondent violated Article 35 of the Constitution by denying the Petitioner access to information necessary for the protection and enforcement of his fundamental rights, including academic records, examination criteria, and administrative decisions affecting his education.
g) A declaration that the Respondent violated the Petitioner's socio-economic rights under Article 43 of the Constitution, specifically his right to education, by subjecting him to arbitrary academic processes and withholding access to essential learning opportunities, thereby unjustly delaying the completion of his studies.
h) A declaration that the Respondent failed to provide written reasons for its adverse decisions against the Petitioner, in contravention of Article 47(2) of the Constitution and Section 4(2) of the Fair Administrative Action Act.
i) An order for general damages for violation of the Petitioner's rights.
j) An order for specific damages amounting to Kshs 10,721,000 which is broken down as follows:
• Fees paid for two of the repeated years Kshs.905,000.
• Additional payment of rent, stationery and upkeep during the 40-month period Kshs.1,800,000.
• Lost income that would have been earned by the Petitioner during the 40-month period of delay to graduate Kshs.8,016,000.
• Costs of this Petition be awarded to the Petitioner.
• Any other relief that the Court may deem fit and just to grant in the circumstances.
Petitioner’s Case
5. The petitioner deposed that he enrolled as a student at the Respondent’s institution in 2013 to pursue a six-year Bachelor of Medicine and Bachelor of Surgery degree programme and at the time of his admission, he was employed as a Senior Dental Technologist with Machakos County Government, who granted the Petitioner study leave with expectation that he would complete his studies in 2019.
6. He deposes that upon admission, to the Respondent University, he was issued with the Respondent's the Academic Handbook and Students Code of Conduct , which outlined the Respondent's guidelines, policies and procedures .The said Academic Handbook constituted a binding contract between the Petitioner and the Respondent as it established the rights and obligations of the parties and provided a framework for their interactions.
7. The Petitioner states that he progressed well with his studies until his 5 th year of study, when he was informed that he had failed 3 units: Dermatology & STI, ENT and Orthopedics’ & Trauma and was required to sit for supplementary exams in these units and that he undertook the supplementary exams and upon receiving the results, he was informed that he had failed the Orthopedics & Trauma Unit again.
8. Dissatisfied with the outcome and believing that the result did not accurately reflect his performance. He requested for a remark under the Academic Handbook clause 5.6 which allowed a student who is dissatisfied with the marking in any examination to appeal to have such examination remarked under the following conditions Such an appeal may be made only once in respect of one paper to which the Respondent verbally declined the request for a remark on the basis that the exam was clinical in nature. The Petitioner insists the failure to reduce the decision to writing infringed his right of access to information and fair administrative action as guaranteed under Articles 35 and 47(2) of the Constitution as well as Section 4(2) of the Fair Administrative Action Act, 2015, depriving him of crucial evidence to present to his employer.
9. As a result, the Petitioners employer halted his salary and issued him with a show cause letter, which ultimately culminated in the termination of the Petitioners employment.
10. The Petitioner deposes that due to the Respondent's unjustified refusal to remark the Orthopedics and Trauma Unit, he was compelled to repeat the entire 5 th year of study, which he completed successfully and subsequently advanced to the 6 th year of study .However, the Dermatology & ST1 unit which was scheduled to be administered in the 5 th year of study was irregularly deferred and conducted in the 6 th year, contrary to the provisions of Clause 4.2(f) of the Academic Handbook in breach the provisions of the Academic Handbook and occasioned the Petitioner significant prejudice.
11. The Petitioner further deposes that, despite having registered for the Dermatology & STI unit, the said unit was conspicuously and inexplicably excluded from his teaching timetable in the 6 th year of study, while other students were taught in all the units for which they had registered. That the Respondent's failure to offer classes and instruction in a unit that he had registered for resulted in unjustifiable differential treatment and academic discrimination, thereby violating the Petitioners right to equality and freedom from discrimination under Article 27 of the Constitution, as well as my right to education under Article 43(1)(f) of the Constitution of Kenya, 2010.
12. The Petitioner deposes that he sat for the final 6th year examinations despite not the lack of classes in Dermatology & STI and upon release of the results, he was informed that he had failed three units, namely, Dermatology & STI, Senior Clerkship in Pediatrics, and Senior Clerkship in Internal Medicine. As a result, the Respondent notified the Petitioner vide a letter dated 14 th January 2021 that he was required to repeat the entire academic year on the basis that he had failed more than two clinical units. This frustrated the Petitioner who submitted a letter dated 3rd February 2021, requesting a review of the Respondent's decision on the grounds that:
i. The Dermatology & STI unit was assessed solely through an end-of-year theory examination alone, contrary to Sections 4.3 (b) and 5.1 of the Academic Handbook, which required all courses to be assessed through a combination of continuous assessment tests, end-of-year theory examinations and clinical examinations; and
ii. The criteria applied to his 6th year examination results differed from that of his 5th year examination results, where under similar circumstances, he was only required to sit for supplementary examinations rather than be compelled to repeat the entire academic year.
13. The Respondent responded vide a letter dated 29th March 2021 in which it declined the Petitioners request for review on the following grounds:
i. In the end of year examinations in the 5th year, the Petitioner had failed 3 courses however only 1 of them was clinical based thus he was allowed to sit for the supplementary examination; and
ii. In the end of year examinations in the 6 th year, he had failed 4 courses out of which 3 were clinically based which constituted a 60% failure in the clinical courses.
14. The Petitioner deposes that the Respondent's decision to decline his request for review was not lawful, reasonable and/or procedurally fair for refusal to address his query with respect to the Dermatology & STI unit and the Respondent indicated in the letter dated 29th March 2021 that he had failed 4 courses out of which 3 courses were clinically based, however, the 4th failed course remains unidentified to date. That the claim that the Petitioners failure constituted a 60% failure rate, the calculation was flawed as the Respondent arrived at this percentage by computing the three failed courses out of a total of five and not all the six courses examined (3/5=60%), with the Dermatology & STI unit being excluded in the total number of courses. Including the Dermatology & STI unit in the courses categorized as failures whilst simultaneously excluding it in the total number of courses examined constituted a mathematical error that led to a mathematical inconsistency; and the lack of clarity by the Respondent ,who claimed that he had failed 3 core courses in his 5 th year examinations, and that only 1 of those 3 courses was a clinically- based unit, read Orthopedic & Trauma-which caused the repetition of the 5 th year and now in the 6th year, the Respondent claimed that he had failed 4 courses out of which 3 were clinically based among them Dermatology & STI –a 5 th year unit. The Petitioner states that it therefore follows that the ENT and Orthopedic &Trauma units were not clinically based and thus there was no justification in denying him a remark as the Orthopedics & Trauma course lacked a clinical component.
15. The Petitioner deposes that it is evident to that the Respondent's decision was based on an incorrect set of facts and computation of marks, which caused him repeat the entire 6th year of study. Yet again, despite having duly registered for the Dermatology & STI unit, it was conspicuously and inexplicably excluded from his teaching timetable, and no classes were offered to him.
16. The Petitioner deposes that he was barred from sitting for his final year examinations in time due to increased tuition fees arising from the Respondent's irregular and unjust referrals/repetition which caused the Petitioner and his family financial hardship in breach of the Petitioners right to fair administrative action under Article 47, right to education under Article 43(1)(1), and right to equal benefit protection of the law under Article 27(1) of the Constitution, and Article 28 of the Constitution, which guarantees right to dignity, by subjecting the Petitioner to repeated academic and financial hardships stemming from arbitrary and unreasonable administrative action.
17. The Petitioner ultimately completed his studies and graduated on 19th October 2024, however, the Respondent's persistent breaches of the Academic Handbook and violations of his constitutional rights-including the right to fair administrative action (Article 47), education (Article 43(1)(1)), human dignity (Article 28), equality and freedom from discrimination (Article 27), and access to information (Article 35)-have caused him to suffer considerable loss and damage which has guided the filing of this current petition.
Respondent’s Case
18. In response, the respondents through the Legal Officer, Njeri Mbugua led a replying affidavit sworn on 13 th August, 2025.
19. She deposed that the petitioner enrolled in the respondent in 2013 under registration number BMS-1-0792. That he proceeded well with his studies despite financial hardship here and there. She admitted the chronology of events concerning year 5 but differed on the reason for referral of the Petitioner stating that the reason the Petitioner was referred to repeat the said year was because of failure of the unit –Orthopedics & Traumatology which was practical in nature and could not be remarked, the MBCHB program dictated that a failure of supplementary exam would lead to referral and its therefore not true that it is the failure to provide written communication that led to his dismissal from work. She further quoted the suit between the Petitioner and its employer ELRC CAUSE NO. 379 OF 2020-THOMAS OMBATI OIRE VS THE COUNTY GOVERNMENT OF MACHAKOS & PUBLIC SERVICE BOARD , which shows admission by the Petitioner that he failed to demonstrate proof of ongoing studies, which led to his termination.
20. The Respondent deposed that the Petitioner himself admits to failing his 6 th year exams and the Respondent is not to blame, stating further that the Dermatology & STI unit was a 5 th year unit and hence could not be contained in the year 6 timetable, that it was upon the Respondent to trace and attend classes in year 5 for the unit.
21. The Respondent further states that the Petitioner deferred his 6 th year examination before later resuming and the Respondent therefore has not violated any of the Petitioners rights as alleged ,that their actions were in accordance to the law and full compliance with the academic handbook and the petition ought to be dismissed for lack of merit.
Petitioner’s Submissions
22. In the submissions dated 27 th January,2026, Counsel for the petitioner, highlighted the issues for determination as:
i. Whether the Academic Handbook constituted a binding contract between the Petitioner and the Respondent governing the academic, examination, and appeal processes and whether the Respondent’s departure from its provisions resulted in violation of the Petitioner’s constitutional rights?
ii. Whether the Respondent violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act by arbitrarily refusing to remark the Petitioner’s failed supplementary examination?
iii. Whether the Respondent violated Articles 47 and 35 of the Constitution and Section 4 of the Fair Administrative Action Act by failing and/or refusing to provide written reasons for adverse academic decisions affecting the Petitioner?
iv. Whether the Respondent breached the Petitioner’s legitimate expectation by departing from its own assessment, examination, and academic progression procedures as set out in the Academic Handbook?
v. Whether the Respondent subjected the Petitioner to unequal and discriminatory treatment, including exclusion from teaching and inconsistent application of academic standards, in violation of Article 27 of the Constitution?
vi. Whether the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution by compelling him to sit for examinations without instruction and by unjustifiably delaying the completion of his studies?
vii. Whether the Petitioner suffered loss and damage as a result of the Respondent’s conduct, including loss of employment, delayed graduation, financial loss, and career stagnation?
viii. Whether the Petitioner is entitled to the Orders sought in the Petition?
23. The petitioner submitted on the first issue that the Academic Handbook constituted a binding contractual instrument that governed the academic relationship between the parties. In the present case, the Academic Handbook expressly governed:
(i) methods of assessment (continuous assessment, theory and clinical examinations);
(ii) supplementary examinations;
(iii) remarking and appeal procedures; and
(iv) academic progression and circumstances warranting repetition of an academic year.
24. That the Petitioner complied with the Academic Handbook at all material times, including registering for units, sitting for examinations, and formally invoking the review and remarking procedures provided therein but the Respondent failed to adhere to it and hence, the Respondent’s departure from its own Academic Handbook did not only amount to breach of contract but resulted in arbitrary and procedurally unfair decision making, denial of access to information and discriminatory treatment, thereby violating the Petitioner’s constitutional rights.
25. On the second issue, the Petitioner submitted that the Respondent’s refusal to remark the Petitioner’s failed supplementary examination was an administrative action that adversely affected his academic progression. As such, it was required to meet the constitutional threshold of lawfulness, reasonableness, and procedural fairness under Article 47(1) of the Constitution and Section 4 of the Fair Administrative Action Act.
26. He submits that the action was unconstitutional and breached Section 4 of the Fair Administrative Actions Act as:
(i) it was made without a fair and transparent process for considering the request;
(ii) it was unreasonable and arbitrary, particularly given the severe academic consequences; and
(iii) it violated the Petitioner’s entitlement to administrative conduct consistent with the Respondent’s Academic Handbook as well as transparency and accountability, which are values that underpin Article 47 of the Constitution.
27. The Petitioner insists there was no procedural fairness in the Respondent decisions and communication, citing University of Nairobi v Anyui (Civil Appeal 606 of 2019) [2021] KECA 112 (KLR) (22 October 2021).
28. On issue 3, the Petitioner submits that the Respondent’s adverse academic decisions constituted administrative actions within the meaning of Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, they were constitutionally required to be lawful, reasonable, and procedurally fair, and accompanied by written reasons where his rights are adversely affected hence the Respondent owed a duty to provide written reasons for adverse administrative action is a constitutional imperative, and not a discretionary courtesy.
29. That, by refusing and/or failing to provide the Petitioner with written reasons for declining the remark request and for other adverse academic determinations, the Respondent denied the Petitioner information necessary to understand, interrogate, and, where appropriate, even challenge those decisions. This conduct further violated the Petitioner’s right of access to information under Article 35 of the Constitution.
30. The Petitioner states that the Respondent has failed to discharge its evidentiary burden, having produced no documentary proof, such as evidence of service or acknowledgment by the Petitioner, demonstrating that the alleged written communication was ever received. In the absence of such proof, the Respondent’s allegation remains unsubstantiated and ought to be disregarded by this Honourable Court.
31. To buttress this point, he relied on Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR).
32. On whether the Respondent breached the Petitioners legitimate expectation, the Petitioner submits that he Respondent breached the doctrine of legitimate expectation by departing from its own published assessment, examination, remarking, and academic progression procedures as contained in the Academic Handbook, which had been communicated to and relied upon by the Petitioner ,stating that Kenyan Courts have recognized that where an institution sets out a process or mechanism by which decisions affecting rights will be made, a departure from that process undermines legitimate expectation and procedural fairness under Article 47 of the Constitution.
33. The Petitioner relied on the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others (Petition No. 14 of 2014) [2014] eKLR and Keroche Industries Ltd v Kenya Revenue Authority & 5 Others [2007] eKLR, and urges this Honourable Court to find and declare that the Respondent breached the Petitioner’s legitimate expectation.
34. On issue 5 Petitioner submits that excluding him from classes for his registered course while other students continued to receiving teaching amounted to differential treatment contrary to Article 27 of the Constitution. Further, the Respondent applied academic standards inconsistently and selectively to his detriment by:
(i) shifting the percentage thresholds and number of failed units to warrant repetition;
(ii) failing to disclose or apply a consistent formula for arriving at the alleged 60% threshold;
(iii) declining to produce the regulations governing referral or progression criteria; and
(iv) repeatedly altering the applicable standards without explanation.
35. That excluding the Petitioner from classes whilst other students registered for the same unit continued to receive teaching, amounted to differential treatment which also affected his right to dignity. He relied on Nyambura & 3 others v Independent Electoral and Boundaries Commission & 5 others [2025] KEHC 10457 (KLR) & Peter K. Waweru v Republic [2006] eKLR.
36. On whether the Respondent violated the Petitioners right to education under Article 43 (1) (f), the Petitioner submits that the Respondent violated his constitutional right to education guaranteed under Article 43(1)(f) of the Constitution, by:
(i) compelling him to sit for examinations without receiving instruction; and
(ii) unjustifiably delaying his academic progression and completion of studies through administrative inaction and inconsistent academic decisions,
Hence undermining the Petitioner’s access to meaningful education, impaired academic progression, and unjustifiably delayed the completion of studies. The Petitioner therefore respectfully urges this Honourable Court to find and declare that the Respondent violated the Petitioner’s right to education under Article 43(1)(f) of the Constitution.
37. On whether the Petitioner suffered loss and damage, the Petitioner that the Respondent’s unlawful actions and omissions directly and foreseeably occasioned substantial loss and damage to the Petitioner, including loss of employment, delayed graduation, financial loss, and prolonged career stagnation.
38. The Petitioner submits that his delayed graduation deprived him of eligibility for employment, promotion, and professional advancement in a regulated profession where graduation and certification are mandatory prerequisites. He cited Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR) (30 July 2021) (Judgment).
39. He further cites Jesse Waweru Wahome & 2 Others V Kenya Engineers Registration Board [2012] KEHC 1773 (KLR), stating that delayed graduation is not a mere inconvenience. It has far reaching professional, financial, and psychological consequences.
40. The Petitioner submits that he incurred financial loss in the form of additional tuition fees, living expenses, transport, lost income, and opportunity Career Stagnation and Loss of Prospects, all which were occasioned by the Respondent’s conduct.
41. He therefore invites this court to allow the Petition as prayed ,because he has proven the violations pleaded and is entitled to damages. He cited Mereka v Sikalieh (Petition E299 of 2022) [2025] KEHC 3467 (KLR) (Constitutional and Human Rights) (20 March 2025) (Judgment), Mboya v Kenyatta University (Petition E376 of 2022) [2024] KEHC 11853 (KLR) (Constitutional and Human Rights) (4 October 2024) (Judgment) & Lucas Omoto Wamari v Attorney General & another [2017] KECA 334 (KLR).
Respondent’s Submissions
42. The Respondent filed submissions dated 24 th April, 2026 condensing the issues for determination as follows:
A. Whether the Respondent violated the law?
B. Whether the Respondent contributed, in any way, to the delayed completion of studies and graduation of the Petitioner?
C. Whether the Respondent breached the Petitioner’s legitimate expectations?
D. Whether the Petitioner is entitled to the orders sought?
43. The Respondent on the 1 st issue largely re-produces the contents of the replying affidavit already highlighted above, it adds that during the 5th year the Petitioner failed three (3) courses one (1) of which was clinical based and the Petitioner was therefore allowed to sit for supplementary examination. During the 6th year, the Petitioner failed three (3) clinical based units and the Petitioner was therefore expected to discontinue however, the Respondent graciously allowed the Petitioner to refer the year in order for him to continue enjoying his right to education.
44. It is the Respondents submissions that in making the decision not to remark the Orthopedics and Traumatology unit and allow the Petitioner to repeat the 5th and 6 th years, it was guided by the law, rules and regulations that govern it specifically its Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, therefore they violated no law.
45. On the second issue, the Respondent submits that after enrolment, the Petitioner failed core units and as required by clause 4.2 of the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery (MBCHB) Curriculum, the Petitioner repeated years 5 and 6 of his studies, he also applied to defer his studies for a year in between , it is the Respondent’s submissions that the delayed completions of studies by the Petitioner for a period of the alleged 40 months was occasioned by the Petitioner himself on account of either a repeated year for failing core units and/or a defer requested by the Petitioner.
46. On legitimate expectations ,the Respondent cites the c ase of Kenya Revenue Authority & another v Republic (Ex parte) Kenya Nut Company Limited [2020] eKLR, which states as follows;
“It has long been established that legitimate expectation can only operate within the law and it can only be relied on when the law has been complied with.”
47. The Respondent therefore submits that the legitimate expectation in this case is that all decisions that relate to the Petitioner would be made pursuant to the rules and regulations in the Academic Handbook and Students Code of Conduct, the Bachelor of Medicine and Bachelor of Surgery Curriculum and the applicable law, citing clause 4.2 of the Academic Handbook and Students Code of Conduct.
48. That the Petitioner failed critical practical units in year for which could not be remarked and hence occasioned his referral, that the Honourable Court should take judicial notice of the nature of practical examinations and that therefore, there was no legitimate expectation created that the Petitioner would be exempted from the application of the rules and regulations in the Academic Handbook and Students Code of Conduct and the Bachelor of Medicine and Bachelor of Surgery Curriculum.
49. The Respondent submits that it wholly complied with the clear and relevant provisions of the law and applied the law in totality in declining a request to remark a supplementary examination and requesting the Petitioner repeat year 5 and 6 of his studies.
50. On whether the Petitioner is entitled to the orders sought, the Respondent submitted as follows:
51. On whether the Respondent violated the right to access to information in article 35 of the Constitution of Kenya, the Respondent submits that the Petitioner’s concern on remarks of the failed supplementary unit was addressed in a letter dated 4th December 2018 where he was informed that the MEDC 507 Orthopedics & Traumatology being a practical examination could not be remarked and MBCHB Curriculum requires that where one fails a supplementary, they repeat the whole year and that all requests made by the Petitioner were responded to in written specifically in letters dated 4th December 2018, 14th January 2021, 29th March 2021 and 13th August 2021 which were supplied to the Petitioner in hardcopies, that the Petitioners allegations that he has never had sight of the letter dated 4th December 2018 but acknowledges letters dated 14th January 2021, 29th March 2021 and 13 th August 2021 that were served in the same manner. One cannot pick and choose which served documents to acknowledge especially when the documents denied do not favor the Petitioner’s case. The piecemeal acceptance of documents served in the same manner confirms malice on the part of the Petitioner .
52. The Respondent submits that the Petitioner had in his custody other correspondences between himself and the Respondent which he could have supplied to his employer to proof that he was still a student with the Respondent and the allegations that it was only a response to the request for remark that could have been presented to the employer to protect his rights is baseless and misconceived, the Respondent therefore states that they did not violate the Petitioners rights to information as alleged.
53. On whether the Respondent was in breach of the economic and social rights provided under article 43 of the Constitution of Kenya, specifically the right to education; the Respondent submits that it is also trite law that the right to education is not absolute but is su
[...truncated]