University of Nairobi v Anyui (Civil Appeal 606 of 2019) [2021] KECA 112 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that universities must give students a fair hearing—including cross-examining witnesses—or risk having expulsions overturned and paying heavy compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was accorded a fair hearing before the University's Disciplinary Committee
The disciplinary process was procedurally unfair and violated Articles 47 and 50 of the Constitution and the Fair Administrative Actions Act because witnesses whose written statements were relied on were not called for cross-examination, and the security officer did not disclose the sources of his information.
The only witnesses who testified were the respondent and a security officer whose sources were undisclosed. Neither the alleged attacker nor the alleged victim was called. Written statements of eight witnesses were considered without any opportunity for the respondent to challenge their authors. In a quasi-criminal disciplinary process, denial of cross-examination is fatal to procedural fairness. Inconsistency in the University's treatment of the other students further undermined the charges.
Whether courts may interfere with internal university disciplinary proceedings
Courts will interfere with decisions of domestic bodies where the decision was made without fairly and justly hearing the person concerned; internal disciplinary character does not oust the court's jurisdiction.
Following Nyongesa v Egerton University College, the Court endorsed the principle that although courts have no desire to run universities, they are the ultimate custodians of rights and will curb excesses of bodies exercising administrative or disciplinary measures. Procedural fairness in administrative action is now a constitutional requirement under Article 47, displacing the common-law ultra vires doctrine.
Whether the award of Kshs.1,000,000 was excessive
The award was fair compensation and not inordinately high; an appellate court will not disturb a damages award unless it is inordinately high or low.
The Judge was entitled under the Constitution and the Fair Administrative Actions Act to award compensation for violation of rights. Applying Butt v Khan, the Court declined to interfere absent an inordinately high or low award. The respondent, expelled in his fourth year and having lost years of education, was properly compensated.
Legal principles established
#- Procedural fairness is a constitutional requirement in administrative action; disciplinary bodies relying on written witness statements must accord the affected person the right to cross-examine the authors of those statements.
- Although courts are loathe to interfere with decisions of domestic tribunals, they will interfere where a decision is made without fairly hearing the person concerned; courts remain custodians of rights even in internal disciplinary matters.
- The Court of Appeal will not interfere with an award of damages by the High Court unless it is inordinately high or inordinately low.
- On a first appeal, the Court of Appeal re-appraises the evidence and reaches its own conclusions of fact, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Anyui (Civil Appeal 606 of 2019) [2021] KECA 112 (KLR)", Case Analysis (2021). Civil Appeal No 606 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/112/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.