Kenyatta University & 2 others v Elena D. Korir [2016] KECA 733 (KLR)
The bottom line
#Kenya's Court of Appeal ruled courts can review how universities make decisions, but cannot force them to award degrees.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review over university degree-award decisions
A court on judicial review may only examine the process, not the merit of whether a candidate qualifies for a degree; it may compel the University to make a decision but not to confer the degree
Under section 14(2)(d) of the Kenyatta University Act the University decides who attains the prescribed standards of proficiency. That judgment is for the Senate's discretion. The High Court erred by inquiring whether the respondent was qualified, which went to the merit of the decision. If the process is faulty the court may only order the process to be undertaken again, not direct the outcome.
Whether deletion of the respondent's name from the graduation list breached natural justice
No - the deletion was a deferment of graduation, an interim measure taken in urgency pending investigations, not a final decision
The suspension of graduation was necessitated by adverse reports touching on the integrity of the degree-award system, a matter of public interest. The interim action allowed all parties, including the respondent, to be heard in the investigation. Following Lewis v Heffer, where urgent interim action is needed, the rules of natural justice do not apply at that stage.
Whether the action was ultra vires because it was not made by the Senate
The action was proper; the Vice Chancellor had statutory power under University Statute IV to take interim measures to safeguard the University's interests pending the Senate's final decision
The High Court judge overlooked the University Statutes. The Senate's decision-making process is bottom-up, relying on reports from officers and committees. The letter of 5th December 2007 conveyed initiation of a process leading to a Senate decision, not a final decision, and Statute XV clause 6 empowers the Senate to revisit and even withdraw degrees for good cause. There was therefore no illegality or excess of jurisdiction.
Whether the appeal was filed out of time
The appeal was deemed filed within time as the delay was covered by a certificate of delay under the proviso to rule 82(1)
The certificate of delay signed by the Deputy Registrar of the High Court confirmed that the period 20th March 2009 to 22nd March 2013 was taken by the court in preparing proceedings. That time is excluded from computation under the proviso to rule 82(1) of the Court Rules, so the lodging of the appeal on 10th April 2013 was within time.
Legal principles established
#- Judicial review is concerned only with the propriety of the decision-making process, not with the merits or the exercise of discretion by the decision maker
- A court exercising judicial review cannot compel a statutory body to perform its statutory duty in a particular manner; mandamus can only compel the body to consider and determine the matter itself
- Where urgent interim action is taken pending investigation, the rules of natural justice are not violated by the absence of a prior hearing
- Time certified by the Deputy Registrar as necessary for preparation of proceedings is excluded from computation of time for lodging an appeal
Court orders
#- 1.The respondent's motion for striking out the appeal is dismissed
- 2.The appeal is allowed; the orders of certiorari and mandamus made by the High Court are set aside and substituted with an order dismissing the respondent's notice of motion dated 18th December 2007 and filed on 20th December 2007
- 3.Each party to meet their own costs
- On appeal from
- High Court of Kenya at Nairobi
- HC Misc. Civil Case No. 1285 of 2007
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate framework (Judicature Act/Appellate Jurisdiction Act); appeal against a judicial review judgment of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Legeus Lomosi Mudegu v Kenyatta University[2020] KEHC 7744 (KLR)27 Feb 2020followed
- Stephen Mugwanja Nyambura v Kenyatta University[2018] KEHC 6086 (KLR)26 Jun 2018
Cite this brief
#Cite this brief
Caselaw, "Kenyatta University & 2 others v Elena D. Korir [2016] KECA 733 (KLR)", Case Analysis (2016). Civil Appeal No. 72 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/733/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.