Republic v University of Nairobi (Ex Parte Irungu Kang'ata & Others)
The bottom line
#Kenya's Court of Appeal paused fresh University of Nairobi disciplinary hearings against student leaders until a key legal question about judicial review remedies is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The point whether the Judge could in effect issue mandamus when no party sought it was clearly arguable, satisfying the first Rule 5(2)(b) test.
Both counsel agreed the Judge had jurisdiction to quash, but the applicants contended he could not order a retrial without a mandamus prayer. The court held the real point for the intended appeal was whether, in the exercise of admitted jurisdiction, the Judge could effectively issue mandamus unasked, and found that point clearly arguable.
Whether the appeal would be rendered nugatory without a stay
The appeal would be rendered nugatory without a stay because the students risked expulsion or suspension before the point of law was determined.
The University had convened disciplinary hearings in obedience to the impugned order, and the students risked expulsion or suspension. Such drastic steps ought to be taken only after the legal point in issue was determined, so a stay was necessary to preserve the substance of the appeal.
Scope of judicial review remedies - certiorari, prohibition and mandamus
Certiorari lies to quash a completed decision; prohibition is pre-emptive only; mandamus requires a wrongful refusal to perform a public duty and cannot be issued sua sponte by the court.
The court observed the applicants correctly sought certiorari to quash the completed expulsion decision, doubted prohibition could lie against acts already done, and noted mandamus was infeasible since no wrongful refusal of a public duty was alleged. The court also doubted prohibition could bar fresh disciplinary proceedings after quashing unless shown to be contrary to law.
Legal principles established
#- An appellate court will grant a stay under Rule 5(2)(b) where the intended appeal is arguable and its success would otherwise be rendered nugatory.
- A judicial review court may quash a decision but cannot, absent a prayer for mandamus, order a public body to retry the matter before it.
- The order of prohibition is pre-emptive in nature and must be directed at preventing what has not yet been done.
Court orders
#- 1.Stay of that portion of Mulwa J's order directing the Vice-Chancellor to convene disciplinary committees for the students to be tried afresh, until the hearing and determination of the intended appeal
- 2.All disciplinary proceedings still to be held pursuant to that order are stayed
- 3.Recommendations and/or decisions made in proceedings already held pursuant to the said order shall not be acted upon or carried out pending the hearing and determination of the intended appeal
- 4.Costs of the motion to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.MISC.C.C. No. 40 of 2001
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of the Court (application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v University of Nairobi (Ex Parte Irungu Kang'ata & Others)", Case Analysis (2001). Civil Application No. 73 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/374/eng@2001-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.