Martha Kerubo Moracha v University of Nairobi [2021] eKLR

Kenya Law

Automated Summary

Key Facts

Martha Kerubo Moracha was suspended from the University of Nairobi in June 2013 after allegedly possessing unauthorized materials during an examination in May 2013. The disciplinary committees (Disciplinary and Senate Committees) were improperly constituted, lacking required members such as student representatives. The Petitioner was denied the opportunity to cross-examine key witnesses, including Prof. J.A.M. Otieno who found her with the materials. The court ruled the expulsion unlawful due to violations of Articles 47 (fair administrative procedures) and 50 (fair hearing) of the Kenyan Constitution, but the suspension was deemed lawful except for its indefinite duration. The court ordered the university to re-hear the matter with proper procedures.

Issues

  • Whether the decisions by the Respondent to suspend and expel the Petitioner from the University are in violation of Article 47 of the Constitution for want of fair administrative procedures.
  • Whether the Petitioner's right to livelihood under Article 26 of the Constitution was infringed.
  • What remedies, if any, should be granted for the alleged violations of constitutional rights.
  • Whether the Petitioner's right to a fair hearing under Article 50 of the Constitution was infringed.
  • Whether the University of Nairobi Regulations Governing the Organization, Conduct and Discipline of Students contravene Section 21 of the Statutory Instruments Act.

Holdings

  • Regulation 2(vi) of Part IV(C) of the University of Nairobi Regulations Governing the Organization, Conduct and Discipline of Students infringes Article 50(2)(g) of the Constitution by denying legal representation for students facing disciplinary processes and is hereby declared unconstitutional.
  • The Respondent is ordered to convene its Disciplinary Committee to re-hear the matter in line with this judgment within 30 days. If this fails, the suspension decision will be quashed and the Petitioner's academic documents must be released.
  • The decision to expel the Petitioner from the University is quashed for violating Articles 47 and 50 of the Constitution due to lack of fair administrative procedures and a fair trial.
  • The University of Nairobi Regulations Governing the Organization, Conduct and Discipline of Students do not contravene Section 21 of the Statutory Instruments Act.
  • The decision to suspend the Petitioner from the University is lawful except for the lack of a specified time frame within which the suspension lasts.

Remedies

  • An Order that the Respondent shall forthwith release the Petitioner's Bachelor's degree certificate, the academic transcripts and all other necessary documents as requested for by the Petitioner.
  • The Respondent shall, within 30 days of this judgment, convene its Disciplinary Committee and re-hear the matter in line with this judgment. If the Respondent fails to convene the Disciplinary Committee, the following orders shall issue: (i) The suspension decision is quashed; (ii) The Respondent must release the Petitioner's degree certificate, academic transcripts, and other necessary documents.
  • A declaration hereby issues that Regulation 2(vi) of Part IV(C) of the University of Nairobi Regulations Governing the Organization, Conduct and Discipline of Students infringes Article 50(2)(g) of the Constitution to the extent that it denies legal representation for students facing disciplinary processes. The provision is hereby declared unconstitutional.
  • A declaration hereby issues that the decision to expel the Petitioner from the University is in violation of Articles 47 and 50 of the Constitution for want of fair administrative procedures and a fair trial. The decision is hereby quashed.
  • A declaration hereby issues that the decision by the Respondent to suspend the Petitioner from the University communicated vide the Respondent's letter dated 4th June, 2013, save for want of a time frame within which the suspension lasts, is lawful.

Legal Principles

  • The court applied judicial review principles to determine that the University's disciplinary procedures were ultra vires the Constitution, particularly Article 47. The Wednesbury case's 'reasonableness' standard was invoked to assess the irrationality of the expulsion decision made without witness cross-examination.
  • The court emphasized that the Petitioner's right to cross-examine witnesses (Prof. J.A.M. Otieno and others) was a fundamental aspect of natural justice under Article 47 and 50 of the Constitution. The failure to provide this opportunity rendered the disciplinary process procedurally unfair.
  • The court held that Regulation 2(vi) of the University's disciplinary rules violated the constitutional right to legal representation (Article 50(2)(g)), affirming the supremacy of the Constitution as the 'rule of law' under Article 2.

Precedent Name

  • Doucet-Boudreau v. Nova Scotia (Minister of Education)
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
  • Republic v Kenyatta University Ex-parte Njoroge Humphrey Mbuthi
  • Alphie Subiah v The Attorney General of Trinidad and Tobago
  • In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Supreme Court Advisory Opinion Application No. 2 of 2012
  • Republic v. Betting Control and Licensing Board & another ex-parte Outdoor Advertising Association of Kenya
  • In the Matter of the Kenya National Commission on Human Rights; Supreme Court Advisory Opinion Reference No. 1 of 2012
  • Republic vs. Chuka University ex parte Kennedy Omondi Waringa & 16 Others
  • Tamara Merson v Drexel Cartwright and Ag (Bahamas)
  • Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
  • Siewchand Ramanoop v The AG of T&T
  • Dendy v University of Witwatersrand, Johannesburg & Others
  • Council of Governors vs. Attorney General & Another

Cited Statute

  • Constitution of Kenya, 2010
  • Statutory Instruments Act, No. 23 of 2013
  • Fair Administrative Actions Act, No. 4 of 2015
  • Universities Act, No. 42 of 2012

Judge Name

A. C. Mrima

Passage Text

  • The Petitioner further submits that the Vice-chancellor suspended the Petitioner without any evidence or valid reasons... and it contravened the Petitioner's right under Article 47 of the Constitution.
  • A declaration hereby issues that Regulation 2(vi) of Part IV(C) of the University of Nairobi Regulations Governing the Organization, Conduct and Discipline of Students infringes Article 50(2)(g) of the Constitution to the extent that it denies legal representation for students facing disciplinary processes. The provision is hereby declared unconstitutional.
  • A declaration hereby issues that the decision to expel the Petitioner from the University is in violation of Articles 47 and 50 of the Constitution for want of fair administrative procedures and a fair trial. The decision is hereby quashed.