REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MILIMANI LAW COURTS

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MISC.CIVIL APPLICATION NO.......................OF 2016

IN THE MATTER OF: ARTICLE 47,23 AND 51 CONSTITUTION OF

KENYA 2010.

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT

AND ORDER 53 OF THE CIVIL PROCEDURE RULE 2010

AND

IN THE MATTER OF :SECTION 4,7, AND 11 OF THE FAIR

ADMINISTRATIVE ACT OF 2015

BETWEEN

REPUBLICAPPLICANT
 VERSUS

INSTITUTION..RESPONDENT

JULIUS MANGIEX-PARTE APPLICANT

SUBMISSIONS OF THE APPLICANT

STATEMENT OF JURISDICTION.

1. Article 165 of the constitution of Kenya 2010 provides for the establishment of
the high court. This article specifies the constitutional and judicial review
jurisdiction of the high court of Kenya. This case is within the jurisdiction of this
Honorable court as (the remedies being asked) it is able to grant them to the
Applicant.

STATEMENT OF ADMISSIBILITY

2. This matter is admissible in this court as it fits the criteria of the cases that this
court is allowed to hear. This statement is made in reliance to article 165 of the
constitution of Kenya 2010 that gives the high court an exclusive jurisdiction to
hear matters whose subject matter is violation of the Principles of Natural Justice.

STATEMENT OF FACTS
 3. The applicant has been expelled by the senate from University of
Nairobi for carrying out a peaceful demonstration which is his constitutional
right as per the Constitution of Kenya 2010
4. On the 8th of September 2016, the applicant and several other students
formed a movement called FEES MUST FALL which demands for the
reduction of the exorbitant school fees.
5. In an act of protest, the Applicant filmed a video of himself naked in
front of the Vice Chancellors office and posted it on social media which
aggrieved the schools administration resulting to his expulsion and
cancellation of his grades.
6. The Applicant is alleged to have disrupted the universitys activities ,
incited violence in the university and further ruined the universitys
reputation by what the university refers to as UNBECOMING
BEHAVIOUR

SUMMARY OF ISSUES

The Applicant respectfully asks this Honorable court to determine

7. Whether the university acted in a reasonable manner by expelling the

Applicant?
8. Whether there was violation of the principles of natural justice by the
Respondent.
9. Whether the FEES MUST FALL movement was unlawful
10.Whether acts of the respondent were Reasonable?

SUMMARY OF ARGUMENTS
The Applicant as a part to this suit is of the position that:

11.There was a serious breach of the principles of natural justice by the

Respondent which includes breach of the right to:
i. Right to be heard
ii. Right to prior notice
iii. Rule against bias

12.The decision of the Respondent to cancel the Applicants results and

expelling him was very unreasonable

SUBSTANTIVE ARGUMENTS

Whether the applicant was given a fair hearing?

13.The applicant submits that he was not given a fair hearing because the
Respondent indicted and expelled him without giving him a chance to
present his case, a prior notice and disclosing the information that he
intended to use as the basis of his decision which is contrary to principles of
natural justice. The right to fair hearing is established under Article 50 of the
Constitution of Kenya 2010 which states that, Every person has the right to
have any dispute that can be resolved by the application of law decided in a
fair and public hearing before a court or, if appropriate, another independent
and impartial tribunal or body.
14. This provision was further supported by Article 47 of the Constitution,

meant to promote and protect administrative justice in regard to

administrative action that affects individuals. Article 47 of the Constitution
has various ingredients that need to be observed any time a public body or
public/state officer takes an administrative action which are that
administrative action ought to be delivered expeditiously, efficiently,
lawfully, reasonably and following fair procedure.
15. Where a fundamental right is likely to be adversely affected by an

administrative action, that person has a right to be given reasons for the
action. In this case the administrative action of the respondent fell short of
the fair administrative action as envisaged and expressly provided for by
Article 47 of the constitution.
16. This action is subject to oversight by the Court where there is

deprivation of some benefit unlike in a case where it is an administrative and

staff matter where the Court cannot intervene. The court can intervene where
an administrative decision is made either illegally, irrationally or fraught
with procedural impropriety, unfair, unconstitutional or for any other
justifiable reason that has been embraced in the rapidly developing
administrative law.

17.This right was enunciated in the landmark case of Ridge v Baldwin

1964 AC 40, in this case the Court recognised that the rules of natural justice
and in particular, the right to a fair hearing apply not only to bodies having a
duty to act judicially but also to bodies exercising administrative duties.
Lord Hudson identified three features of natural justice as the right to be
heard by an unbiased Tribunal, the right to have notice of the charge of
misconduct and the right to be heard and answer to the charges. In this case
however the Respondent did not give the Applicant any chance present his
case and there he submits that the Respondents decision is very detrimental
to him.
 18. This right is one of the non-dirigible rights under article 25 of the
constitution of Kenya which provides that the right to fair hearing shall not
be limited as it is one of the fundamental rights and freedoms guaranteed by
the Constitution of Kenya 2010. Therefore, the applicant argues that the
Respondents decision is unconstitutional and such decisions ought not to
stand in law.
Prior Notice was not granted to the Applicant.

19.The Applicant submits that the Respondent violated his right to be

informed of the charge with sufficient detail to answer it. The right to prior
notice is one of the principles of natural justice which requires that a person
charged or indicted must be given adequate notice of the allegations against
him and a reasonable period in which to consider his position and to
respond. This right is recognised, and protected under the article 50 of the
Constitution of Kenya and under section 4 of the Fair Administrative Action
Act of 2015 laws of Kenya.

20.In support of the principles of Natural Justice, the right to be informed

in advance of the case to be faced by the Applicant, article 50(2b) of the
Constitution states that a person alleged to have committed an offence must
be given a right to have adequate time and facility to answer the allegations
put against him and subsection 2(c) of the same article further provides that
the accused person must be given a right to have adequate time and facility
to prepare a defence.

21.The above position is further supported by section 4 of the Fair

Administrative Action Act of 2015, laws of Kenya which states that where
an administrative action is likely to adversely affect the rights or
fundamental freedoms of any person, the administrator shall give the person
affected by the decision a prior and adequate notice of the nature and reasons
for the proposed administrative action.

22.This above principle was also enunciated in the case of David

Onyango Oloo V The Attorney-General Civil Appeal No.152 of 1986. In
this case, it was stated that the Commissioner of Prisons ought to have
informed the appellant in writing in the language the Appellant understands
the disciplinary offence he is alleged to have committed and the particulars
of the offence. This explains that the decision of the Respondent was directly
prejudicial to the Applicant as it was passed unilaterally, without giving the
Applicant a notice of the charges that were against him hence such decision
ought not to stand in law because it is not in line with the progressive nature
of the Constitution of Kenya.
The Applicant was not granted a chance to be Heard

23.The Applicant submits that he was not given the right or opportunity
to defend himself. The decision to expel him was arrived at by only hearing
one party and in fact it was passed by the same party without giving the
Applicant a chance to defend himself or even to know of what allegations he
was facing. This amounts to the violation of principles of natural justice
particularly the right to be heard which is provided for under article 50 of the
Constitution of Kenya which provides for the right to fair hearing.

24.This provision is further supported by section 4(3b) of the Fair

Administrative Action Act, which states that the concerned person must be
given an opportunity to be heard and to make representations to the decision
making body. It is further supported by article 47 of the Constitution of
Kenya 2010 and therefore in this case the Applicant was not given a chance
to present his side of argument by the respondent, which amounts to
violation of the principles of natural justice.

25.The position above was also advanced in the case of David Onyango
Oloo v The Attorney-General Civil Suit no.152 of 1986. In this case the
Applicant (a prisoner) had been deprived of his sentence remission by the
Commissioner of Prisons to which he was entitled to under the Prisons Act.
The Applicant had not been given an opportunity to present his case. The
Commissioners decision was quashed on the grounds that the concerned
person had not been given an opportunity to be heard or to defend himself
which he ought to have been given.

26.Therefore due to the fact that the above case is still good law in
Kenya, the Applicant submits that the Respondent did not give him a chance
to defend himself and this constitutes to a violation of his constitutional right
to be heard as the decision made by the Respondent was arrived at by only
hearing one party.
The Respondent did not observe the Rule Against Bias.

27.The Applicant submits that there is very high probability of biasness

in the Respondent's decision because the Respondent was a party and a
judge to the same case which is in contrary to the principle of natural justice
particularly the rule against bias(nemo judex in causa sua) which states that
no one should be a judge in his own cause.
 28.Basically the rule against bias prohibits a party who has a direct
interest in a certain matter in contention to be the judge in that same matter.
Therefore the Applicant argues that the Respondent violated the rule against
bias because he was the investigator, one of the interested party and the
judge in the same matter hence fair hearing and fair administrative action
provided for under article 50 and 47 of the Constitution was contravened
which means the decision made by the Respondent is unconstitutional and it
ought not to be quashed.

The Applicant contend that Respondent there was procedural Ultra-Vires

29.The Applicant contend that the decision of the Respondent to expel

him was unfair and also amounts to procedural ultra-vires and therefore such
a decision ought not to hold water in law. This is because the Respondent
failed to follow the procedures prescribed by article 47 and 50 of the
constitution of Kenya and also these two provisions are further supported by
section 4 of the Fair Administrative Action Act of 2015, laws of Kenya.

30.Article 47 of the Constitution of Kenya provides that every person has

the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair. Imperatively, the decision of the
Respondent is unlawful because it contravenes the principles of natural
justice which are provided for under the Constitution of Kenya 2010.
 31.The Applicant also argues that the Respondent failed to follow the
right procedure to a fair trial. Article 47 requires that such action must be
exercised within reasonable advance notice, reasonable opportunity and the
subject party being given a chance to be heard. In this case, the Respondent
violated this right, and therefore their decision is clearly detrimental to the
Applicant and is not a good decision in the eyes of the law and it ought to be
quashed.
No information was disclosed to the Applicant.

32. The Applicant argues that no information was disclosed to him upon
making the decision to expel him contrary to section 4 of the Fair
Administrative Action Act read together with Article 47 of the Constitution
of Kenya. It is further supported by article 50 of the same Constitution.

33.The disclosure of information Rule requires that the concerned party

must be given all the information which the maker of the decision is to rely
on in making his judgement. The rule requires that all allegations and reports
bearing on a person's case must be disclosed to that person and failure to do
so amounts to a violation of the principles of natural justice.

34.This position was also advanced in the case of County Government

of Nyeri v County Assembly of Nyeri Ex-parte Dickson Mirichi Kihagi
t/a Munyaka Bar & another [2016], it was stated that the rules of natural
justice also contemplate that there must be disclosure of information; in this
instance the Respondents would be duty bound to disclose to the Applicants
any allegations or breaches in the form of a report; disclosure and
notification in the form of a report and still on the issue of fairness the
applicants are to be accorded a hearing before the decision is made.
However, in this particular case the Respondent did not disclose any
information or inform the Applicant on the information they relied on in
passing their decision and therefore such a decision ought not to stand in
law.

PRAYERS

In the light of the issues and arguments raised, the applicants humble
prayers are that the court declares:

35.The Respondent to readmit him back to the university and an order of

prohibition be granted against the Respondent nullify his expulsion from the
school.
36.Restore the Applicants grades and records so as to enable him to
graduate after completion of his course in the University
37.The university should address to the motion raised by the FEES
MUST FALL movement and actually reduce the amount of fees paid yearly
38.The applicant prays that the respondent meet the cost of this suit.
39. Any other remedy that this Honorable Court may grant to the
applicant.