Zaippeline & 39 others v Karatina University & another (Civil Appeal 52 of 2014) [2015] KECA 799 (KLR)
The bottom line
#Kenya's Court of Appeal ordered Moi University to award its degree to a student whose campus was converted into a new university before he graduated.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was a student of Moi University or Karatina University
The appellant was never a student of Karatina University College or Karatina University; his status as a Moi University student was preserved by paragraph 5 of Legal Notice No. 163 of 2010.
The appellant was admitted by Moi University in 2009 when Karatina University did not exist in fact or law. Paragraph 5 of Legal Notice No. 163 of 2010 preserved the entitlement of students admitted by Moi University and placed at Karatina to be conferred Moi University degrees. Paragraph 33 of the Charter applied only to former students of Karatina University College, i.e. those admitted by the College after it became a body corporate. Registration at the campus was not determinative since Moi University's Senate continued to administer examinations.
Whether the appellant has an enforceable legitimate expectation to a Moi University degree
Yes. Admission by Moi University was a clear, unambiguous and lawful promise by conduct giving rise to a vested legitimate expectation, and the respondents are estopped from reneging on it.
Applying the principles in the Communications Commission of Kenya case, the court found an express, clear and unambiguous promise by a public authority (Moi University), made by conduct upon admission, which it was competent and lawful for the university to make under the repealed Moi University Act. The promise was fortified by paragraph 5 of Legal Notice No. 163 of 2010. Fair administrative action demanded that Moi University be estopped from reneging.
Whether the Universities Act and the grant of the Karatina University Charter frustrated the contractual relationship between the appellant and Moi University
No. There was no supervening event, illegality, dissolution or incapacity rendering performance radically different; what was performed in 2013 remains possible under the same legal framework.
Frustration requires an intervening event striking at the root of the agreement and beyond contemplation of the parties, as explained in Davis Contractors Ltd v Fareham U.D.C. The subject matter of the contract still existed; there was no dissolution, supervening illegality, or change in the law rendering performance impossible. The court noted Moi University had in fact conferred degrees on students registered at Karatina in 2013, showing no impossibility.
Effect of revocation of Legal Notice No. 163 of 2010 by paragraph 32 of the Charter
The revocation did not affect the appellant's acquired right and vested legitimate expectation to a Moi University degree, per Section 23(3) of the Interpretation and General Provisions Act.
Section 23(3)(c) and (e) of the Interpretation and General Provisions Act provides that a repeal does not affect rights, privileges, obligations or liabilities acquired, accrued or incurred, or remedies in respect thereof, unless a contrary intention appears. The appellant's right accrued under paragraph 5 of the Legal Notice and under the Moi University Act pursuant to which he was admitted in 2009; the Charter contained no express provision converting Moi University students into Karatina University students.
Status of a university Charter and whether it could revoke a Legal Notice
A Charter granted under the Universities Act is subsidiary legislation made pursuant to Sections 19 and 21 of the Act, not a mere agreement, and its revocation of the Legal Notice was legally effective but subject to savings for accrued rights.
Section 19 of the Universities Act requires the Cabinet Secretary to recommend to the President the grant of a Charter and Section 21 requires publication by Gazette notice. Section 33 of the Interpretation and General Provisions Act deems acts done under subsidiary legislation to be done under the authorizing Act. The contention that the Charter was a mere agreement incapable of revoking a legal notice was rejected.
Whether the appellant's constitutional right to education was violated and whether the trial Judge was biased
No. No constitutional provision was cited in support of the right to university education and there was no evidence of bias.
The court found no merit in the contention: the appellant cited no constitutional provision establishing a right to university education, and there was no evidence on the record justifying an inference of bias on the part of the trial court.
Interpretation of transitional provisions where a constituent college becomes a full university mid-study
The entitlement of a student transiting from a constituent college to a new university is determined by the transitional provisions in the transforming instrument; a Charter should craft dual phase-out and phase-in mechanisms to transit all categories of students.
Paragraph 33 of the Charter captured only students admitted by Karatina University College after it became a body corporate and failed to transit students of Moi University studying at the College. The quandary arose from fast-tracking the transformation in less than four academic years; the court recommended a minimum of four academic years to enable practical phase out and phase in of all students.
Legal principles established
#- Students are neither assets nor liabilities capable of transfer to a successor corporate entity absent an express provision; a constituent college's becoming a full university does not convert students admitted by the parent university into students of the new university.
- Except for honorary or posthumous degrees, a university cannot confer a degree on a student it has neither admitted, taught nor examined; such conferment offends public policy and academic honesty.
- Admission to a university by conduct constitutes a clear and unambiguous promise giving rise to a vested legitimate expectation that the admitting university will confer its degree upon successful completion, and the university is estopped from reneging on it.
- Revocation of subsidiary legislation does not affect rights, privileges, obligations or liabilities acquired, accrued or incurred under it.
- A Charter granted under the Universities Act is subsidiary legislation, not a mere agreement, and revocation of a legal notice by a Charter does not affect accrued rights under it.
- A university's relationship with a student it has admitted is contractual, and establishing a separate Senate in a newly chartered university neither transfers students nor changes their legal status.
Court orders
#- 1.The appeal is allowed and the judgment of the High Court dated 5th September 2014 is set aside in entirety
- 2.A mandatory order be and is hereby issued against the 2nd respondent to award and confer its degree to the appellant
- 3.The appellant shall have the costs of the suit before the High Court and in this appeal
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C No. 13 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate jurisdiction (first appeal) - the judgment does not cite a specific provision; it treats the matter as a first appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zaippeline & 39 others v Karatina University & another (Civil Appeal 52 of 2014) [2015] KECA 799 (KLR)", Case Analysis (2015). Civil Appeal No. 52 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/799/eng@2015-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.