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Court of AppealAllowedCivil Appeal No. 176 of 2013· [2019] KECA 981 (KLR)

Kori Erick Ng’anga v University of Nairobi [2019] KECA 981 (KLR)

Court of Appeal
8 February 2019
2,484 words in judgment
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The bottom line

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Kenya's Court of Appeal overturned a student's expulsion because the university called him to a disciplinary hearing without first serving written charges.

What this practically means

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Executive summary

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The appellant, a civil engineering student at the University of Nairobi, was expelled after being found cheating in his final examination in FCE 526 Water Resources Engineering. He was suspended by letter in July 2009, summoned to a disciplinary hearing by telephone, and appeared before the committee on 26th October 2009 without having been served with the charges in advance. The committee recommended his expulsion, which the Vice-Chancellor approved. His judicial review application seeking certiorari to quash the expulsion and mandamus to compel readmission was dismissed by the High Court (Githua J), which held he had been given sufficient notice and that the committee observed natural justice. On appeal, the Court of Appeal (Nambuye, Warsame and Sichale JJA) framed a single issue: whether the appellant was given sufficient notice of the charges and ample time and opportunity to defend himself. The court found as a fact that no charges were served before the hearing and that the telephone call conveyed only the date and venue, not the purpose of the hearing. Relying on Articles 47 and 50 of the Constitution and adopting persuasive authority on fair administrative action, the court held that a body whose decision may cause serious prejudice must serve written charges in advance, explain them in a language the person understands, and inform him of the consequences. Following Nyongesa v Egerton University College, it confirmed courts will quash decisions of domestic bodies made without a fair hearing. The appeal was allowed, with each party bearing their own costs in the High Court and of the appeal.

Key legal issues

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01

Sufficiency of notice of charges and opportunity to be heard before a university disciplinary committee

Holding

The appeal was allowed because no charges were served on the appellant before the hearing; he was summoned only by telephone without being told the purpose or reasons for the hearing, breaching the rules of natural justice and the fair administrative action guarantee.

Reasoning

The court found as a fact that no charges were served before the scheduled hearing, so the appellant could not adequately prepare, answer or respond to the charges. Telephone notification of date and venue only was an inadequate mode of communication for a matter with the drastic outcome of expulsion. Relying on Articles 47 and 50 of the Constitution and persuasive authority on fair administrative action, the court held the respondent was obliged to serve written charges prior to the hearing, explain them in a language the appellant understands, and inform him of the consequences. The High Court's contrary conclusion was wrong and occasioned injustice.

p. 2
02

Scope of the court's intervention in decisions of domestic bodies and university tribunals

Holding

Courts are loath to interfere with decisions of domestic and college bodies but will quash decisions made without fairly hearing the person concerned; what constitutes a fair process depends on the facts of each case.

Reasoning

Adopting Nyarangi JA's pronouncement in Nyongesa & Others v Egerton University College, the court confirmed the principle of judicial restraint toward university disciplinary decisions, coupled with the established exception where the decision-maker fails to fairly hear the affected person. On the facts, the failure to serve charges and explain the purpose of the hearing placed the case within that exception, justifying quashing of the expulsion decision.

p. 3

Legal principles established

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  • A disciplinary body whose decision may result in serious prejudice must serve charges in writing before the hearing and explain them to the affected party, who must be given adequate notice of the charges, their possible outcomes, and an adequate opportunity to prepare a defence.
  • Where the outcome of administrative action carries the likelihood of prejudice or injury, the affected party must be given adequate, sufficient and reasonable opportunity to defend himself, informed of the purpose and reasons for the hearing, and served with proper notice containing the charges and the consequences of the process, in compliance with Articles 47 and 50 of the Constitution.
  • A university disciplinary committee is a quasi-judicial body whose proceedings, though not criminal, require proper procedure: charges must be read and explained, and the party must be asked how he pleads and whether he is ready to proceed.

Court orders

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  1. 1.Appeal allowed
  2. 2.Each party to bear their own costs in the High Court and of this appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Court of Appeal RulesRule 29(1)

Cases cited (8)

  • Russel vs Duke of Norfolk
    [1949] 1 ALL ER 109
  • Selle vs Associated Motor Boat Company Ltd
    [1968] EA 123
  • Geothermal Development Company Limited vs Attorney General & 3 others
    [2013] eKLR
  • Donoghue vs South Eastern Health Board
    [2005] 4 IR 217
  • Charkaoui vs Canada
    [2007] SCC 9
  • Alberta Workers' Compensation Board v Alberta Appeals Commission
    (2005) 258 DLR (4th) 29
  • Sinkovich vs Strathroy Commissioners of Police
    (1988) 51 DLR (4th) 750
  • Nyongesa & Others vs Egerton University College
    (1990) KLR 692
On appeal from
High Court of Kenya at Nairobi
Judicial Review No. 72 of 2010
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, Rule 29(1) (re-appraisal of evidence on a first appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kori Erick Ng’anga v University of Nairobi [2019] KECA 981 (KLR)", Case Analysis (2019). Civil Appeal No. 176 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/981/eng@2019-02-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.