Kanyiri Gitonga v Zetech University

2. It is his case that on 10th October 2024 the Disciplinary Committee of Zetech University issued a decision suspending him from the university for one academic year on allegations of examination malpractice. 3. He argues that the system used by the university requires a 360-degree environment scan and supervision through a camera to detect any unauthorized materials before allowing a student to proceed with the exams. 4. The issues that inform this suit began during the DHR 220 online examination wherein he argues that he complied with all the stipulated procedures, and no unauthorized materials were in his environment. 5. He argues that the Disciplinary Committee failed to show how he committed the alleged malpractice and that the suspension decision was arbitrary and disproportionate. 6. He argues that he was not given a fair opportunity to defend himself, contrary to the principles of natural justice and that the suspension will result in significant prejudice to him including: i. Missing the graduation list. ii. Incurring unnecessary financial costs amounting. iii. Suffering emotional distress and reputational damage. Applicant’s Submissions; 7. He buttresses his case with the Supreme Court’s decision in Communications Commission of Kenya & 5 others (supra) as follows: “ (349) …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…” 8. He also relies on the case of Munene vs Director of Public Prosecutions & 3 others [2023] KEHC 25900 (KLR) observed as follows: “ 27. The jurisdiction of the High Court in dealing with Constitutional Petitions is properly invoked once a Petition that complies with the constitutional and legal requirements is lodged. The Court must, therefore, decline any invitation by a Petitioner to deal with an alleged Petition which falls short of the laid down parameters on Constitutional Petitions.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 2

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9. In Japheth Ododa Origa v Vice Chancellor University of Nairobi, Academic Registrar, University of Nairobi & B.M Waweru [2018] KEHC 48G1 (KLR) the Court discussed as follows: “ 15. Precision in pleading is vital in Constitutional petitions because it enables the opposite party to fully understand the case they face and be in a position to adequately respond to it. It also enables the Court to decipher the issues brought before it for adjudication. It helps in avoiding surprises and ambiguities in the litigation but more importantly it shows the link between the aggrieved party, the constitutional provisions at play and the possible infringement. This was well stated by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR” 10. In the instant suit the Applicant submits that Articles 28, 33, 43(1)(f), 47 and 48 of the Constitution have been violated. 11. It is submitted that 107 of The Evidence Act provides that a. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. b. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. 12. Reliance is placed in the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] KEHC 13098 (KLR) the Court explained the difference between the legal and evidential burden of proof as follows: “ 22. I also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus: “The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 3

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by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?” 13. In Edward Akong'o Oyugi & 2 others v Attorney General [2019] KEHC 10211 (KLR) held that: “ 73. Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd [38]: “The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him” It is submitted that it is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.” 14. The Applicants’ submits that despite meeting the online examinations regularities the Respondent, in violation of fair administrative action they wrongfully and unfairly suspended the petitioner through issuance of a suspension letter dated 27th August 2024 thereby her right to education under Article 43(1)(f) of the Constitution has been infringed. 15. It is submitted that the University failed to consider crucial evidence exonerating her. These proceedings challenge the decision of the University’s Disciplinary Committee on grounds of procedural impropriety, irrationality, and violation of legitimate expectation. 16. The Applicant submits that she was not afforded a fair hearing within the meaning of Article 47 and Article 50(1) of the Constitution. 17. Further, she argues that the punishment is disproportionate and excessive. 18. She submits that there was no fair and transparent review of the examination footage or environment scan. The process was shrouded in opacity, and no objective proof was presented to show that she referred to unauthorized materials. 19. The importance of this right was captured in Mutimba Creser Masayi Joseph vs Masinde Muliro University of Science and Technology [2020] KEHC 7950 (KLR) as follows: “ 31 The Court of Appeal, in Judicial Service Commission vs. Mbalu Mutava & another [2015] eKLR, stated as follows, with regard to Article 47: “Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 4

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administrative action is a retraction of some of the national values in Article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability…. The court in Kenyan Human Rights Commission & another v. NonGovernmental Organization Co-ordination Board & another (2018) eKLR, stated: “40. … Administrative actions that Row from statutes, must now meet the constitutional test of legality, reasonableness and procedural fairness. Accordingly, a party, a hearing before taking action against him is no longer discretionary. It is 1rmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation…” 20. It is submitted that in carrying out their duties, the Respondent was bound by Article 47 of the Constitution. 21. The Respondent refused to acknowledge the wrong and instead heap the blame squarely on the student. 22. Instead of the Respondent carrying out an objective and impartial investigation by examining the relevant material with a view to resolving this matter, it resolved to unfairly suspend the Applicant instead of providing her an appropriate forum to ventilate and resolve her grievance. 23. The Applicant further submits that the Respondents violated the petitioner’s right to a legitimate expectation. 24. Reliance is placed in the Court of Appeal in Kenya Revenue Authority v Universal Corporation Ltd [2020] KECA 395 (KLR) guided as follows: “ a legitimate expectation arises where there is demonstration that: a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he she it would be accorded a hearing before the decision was taken; a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the con1nes of the law; the pubic authority whether by practice or promise committed itself to the legitimate expectation; the representation was clear and unambiguous; the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority; the representation was reasonable and that the claimant relied upon it to its detriment; there was no overriding interest arising from the decision maker's action and representation; the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same; the promise related either to a past or future benefit; its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 5

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25. In addition, the Court in Republic v Kenya Revenue Authority Exparte KSC International Limited (In Receivership) [201G] KEHC 73G9 (KLR) speaking to this expectation observed as follows: “ My view on this issue is informed by the need to achieve certainty in economic sphere. As was appreciated by Nyamu, J in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others HCMA No. 743 of 200G [2007] KLR 240 at 295: “...legitimate expectation is based not only on ensuring that legitimate expectations by the parties are not thwarted, but on a higher public interest beneficial to all including the Respondents, which is, the value or the need of holding authorities to promises and practices they have made and acted on and by so doing upholding responsible public administration. This in turn enables people to plan their lives with a sense of certainty, trust, reasonableness and reasonable expectation. An abrupt change as was intended in this case, targeted at a particular company or industry is certainly abuse of power. Certainty of law is a major requirement to business and investment...certainty of law is an important pillar in the concept of the rule of law.” 26. The same principle was re-asserted in Republic vs. Attorney General & Another Exparte Waswa & 2 Others [2005] 1 KLR 280 where it was held that: “ The principle of a legitimate expectation to a hearing should not be connected only to past advantage or bene1t but should be extended to a future promise or benefit yet to be enjoyed. It is a principle, which should not be restricted because it has its roots in what is gradually becoming a universal but fundamental principle of law namely the rule of law with its offshoot principle of legal certainty. If the reason for the principle is for the challenged bodies or decision makers to demonstrate regularity, predictability and certainty in their dealings, this is, in turn enables the affected parties to plan their affairs, lives and businesses with some measure of regularity, predictability, certainty and confidence. The principle has been very ably de1ned in public law in the last century but it is clear that it has its cousins in private law of honoring trusts and con1dences. It is a principle, which has its origins in nearly every continent. Trusts and con1dences must be honoured in public law and therefore the situations where the expectations shall be recognized and protected must of necessity defy restrictions in the years ahead. The strengths and weaknesses of the expectations must remain a central role for the public law courts to weigh and determine.” 27. She further states that during the DHR 220 online examination she complied with all the stipulated procedures and the Disciplinary Committee failed to show any evidence of the alleged unauthorized materials or demonstrate how she committed the alleged malpractice. 28. The Court in Khelef Khalifa & 2 others v Independent Electoral and Boundaries Commission & another [2017] KEHC 4303 (KLR) observed as follows: “ 43. Statutory bodies derive their authority or jurisdiction from a legal instrument establishing them, and may only do what the law authorizes them to so. This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights. Their decisions must conform to the Constitution; legislation; and the common law.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 6

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29. Taking into account that the petitioner had already taken the 360-degree environment scan and supervision through a camera to detect any unauthorized materials before proceeding with her exams it is irrational that the Respondent suspended the Applicant denying her a chance to graduate on time when she had abided by the online examination regularities. 30. Evidently, this is a clear violation of the petitioner’s legitimate expectation by the Respondent. 31. In determining the nature of the reliefs to award, she relies on The Supreme Court decision of Charles Muturi Macharia & G Others v Standard-Group & 4 Others (SC) Petition No.13 (E015) of 2022) stated as follows: “ (91) By the provisions of Articles 22 and 23 of the Constitution, the High Court has the power and authority to enforce and uphold the Bill of Rights in claims of infringements. In proceedings brought by any person claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened, the court may, under Article 23 grant appropriate relief, including: “(a) a declaration of rights 32. (b) an injunction (c) a conservatory order (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24. (e) an order for compensation (f) an order of judicial review.” This Court in the case of Gitobu Imanyara & 2 Others v. Attorney General, SC Petition No. 15 of 2017, described Article 23 as; “ the launching pad of any analysis on remedies for Constitutional violations” … the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awardable are broadly compensatory or vindicatory, as should be apparent from the list of examples of reliefs in Article While it is not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy. In deserving cases, the redress may be in the form of an award of damages to compensate the victim. In some cases, a suitable declaration, an injunctive or conservatory order, or an order of judicial review will suffice to vindicate the right. In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum will afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation will take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. We stress that the purpose of constitutional relief of an award of compensation is not necessarily intended to punish the violator, but only to vindicate the right of the victim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 7

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It is submitted that once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and arm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. For these reasons, it can be said that the approach in awarding damages or compensation in constitutional rights violation cases is different from that in tortious claims….” 33. Further, the Court of Appeal in Peter Ndegwa Kiai ta Pema Wines & Spirits v Attorney General & 2 others [2021] KECA 328 (KLR) further noted as follows: “ 15. The relevant principles applicable to award of damages for constitutional violations under the Constitution were also explained by the Privy Council in the case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No 13 of 2004. It was held by Lord Nicholls at Paragraphs 18 & 19 that a monetary award for constitutional violations was not con1ned to an award of compensatory damages in the traditional sense as follows: “When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under Section 14 is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action at law…” The Respondent’s Case; 34. One of the online examination requirements is that a student should undertake a 360-degree scan of their examination environment mandatory to ensure integrity of the examination process. 35. All students, including the Applicant, were clearly instructed, oriented and trained on the requirement for online examinations. 36. It maintains that the Applicant was given full notice of the allegations of examination malpractice, was availed the opportunity to respond to the charges, and appeared before the relevant disciplinary committee. 37. The Respondent argues that the Applicant was suspended for examination malpractice specifically for failing comply with the organizational behaviour conducted on 30th July, 2024. 38. The failure to conduct the required scan and referring from unauthorized sources constituted a violation of the examination guidelines and regulations as outlined in the academic policy ZU/PD/2 led to the disciplinary action. 39. The Respondent argues that the Applicant was subjected to a fair and lawful disciplinary process in accordance with the University’s rules and regulations governing academic integrity and conduct. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 8

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40. The Disciplinary Committee, after reviewing the evidence, determined that the Applicant had engaged in examination malpractice and recommended suspension for a period of one Academic Year from 27th August 2024 to 29th April, 2025. 41. The Applicant was informed of the disciplinary decision through a letter dated 27th August, 2024 which clearly outlined the appeal process and the applicable timelines. 42. The Applicant appealed accordingly and her case was heard by the appeals committee who upheld the decision of the disciplinary committee. 43. According to Respondent, the Applicant’s claim of procedural impropriety and/or bias is unfounded, speculative, and unsupported by any material evidence. 44. The Respondent submits that the suspension was both procedural and warranted, being based on clear evidence of examination malpractice and conducted in full compliance with the principles of natural justice and fair administrative action and in line with Article 47 of the Constitution and the Fair Administrative Action Act 45. It submits that the Applicant was accorded due process through the established disciplinary procedure as provided in the Student Code of Conduct, provided with a fair hearing before the Disciplinary Committee, informed of the decision and his right to appeal with clear timelines and had his appeal considered. 46. The Respondent reviewed the evidence and made a determination based on established facts of examination malpractice in accordance with academic policy ZU/PD/2. 47. In addition, every right has a corresponding responsibility, with every person being granted the right to education with the corresponding responsibility to abide by the school regulation. 48. In Nkatha Joy Faridah Mbaabu v Kenyatta University [2016] KEHC 7968 (KLR) the court stated that: 49. “ 43. The court must thus be loath to interfere with any decision of such institution unless it is evident that it was undertaken outside of legal provisions and contrary to constitutional provisions. The institution is enjoined to perform such disciplinary tasks through such bodies are legally and properly constituted as dictated by such relevant laws as the Universities Act, No 42 of20/2 and the institution 's own statutes. 44. I must additionally afro point out that even where the court finds it appropriate to interrogate any disciplinary process by an educational institution a dear balance ought and must always be struck out between the need to ensure that the private rights of a student to education of the one hand and the wider public and societal interest which expects the institution to avail graduates at whatever level. whose credentials both academically, ethically and integrity- wise are unblemished and spotless. It is truly not for a party outside of the educational institution including the court to chaperon and nurture the student. Such nurturing which includes discipline is best left to the institution, including the punishment meted out.” The Respondent submits that granting the orders sought will severely undermine and erode the Respondent's disciplinary standards and code of conduct in the eyes of the public and other students. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 9

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50. It submits that Universities exist to maintain and uphold academic standards and integrity. Allowing a student found guilty of examination malpractice to continue studies pending the determination of their challenge sends a wrong message about the institution's commitment to academic excellence. 51. The Respondent has a duty to all its students, the public, and employers who rely on its qualifications to ensure that degrees and certificates issued represent genuine academic achievement unmarred by malpractice. 52. Granting the orders sought would create a dangerous precedent where students can engage in examination malpractice and then seek judicial intervention to continue their studies while challenging disciplinary action. 53. This would essentially render the institution's disciplinary mechanisms toothless and encourage other students to engage in similar conduct. knowing they can circumvent consequences through litigation. 54. It submits that Universities should be allowed to exercise their disciplinary functions without undue interference from courts, particularly where proper procedures have been followed and decisions are based on established facts. 55. The principle of judicial restraint in academic matters was firmly established in Daniel Inginda Aluvaala & Anor v Council of Legal Education & Anor (2017) eKLR where the court remarked: “ Self-restraint adopted by Judiciary in exercising the power of review in academic matters has left certain academic decisions or regulations governing training and qualifications untouched. These areas are not disturbed by the Courts unless the decisions under challenge are constitutionally so fragile and unsustainable. Academic decisions of the Universities and other educational institutions requiring expertise and experience belong to this category. If the decision is legal and lawful, the reasonableness and propriety of the same may not be questioned by courts. In other words. among the Wednesbury principles of illegality, irrationality. and impropriety, if the decision can get over the first, it may withstand the other two tests, unless it is shockingly unreasonable, perverse or improper... If this Court is substituting its own opinion in place of opinion expressed by a body mandated and authorized by law as discussed above, it shall not only be overstepping its mandate but it will result in chaos. The Court can only interfere if the Respondent acted outside their legal mandate or acted unreasonably...” Analysis and Determination; Upon perusing the application, the supporting affidavit, the replying affidavit and the rival submissions, as well as the authorities that parties relied upon the following are; The issue for determination; 1. Whether the application has merit. 2. Who should buy the cost of the suit? 56. I have considered the arguments made by the parties herein, and am alive to the broad grounds on which the Court exercises its judicial review jurisdiction as stated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 as follows: “ In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 10

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impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” 57. The Supreme Court in the case of Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) held that under Article 50(2) of the Constitution procedural fairness in the administration of justice involved the fair hearing rule that required a decision maker to inter alia afford a person an opportunity to be heard before making any decision affecting his/her interests. 58. The high court in Britam General Insurance Limited v Ukwale Agnes Ndungu [2019] eKLR applied the dicta of the Supreme Court of India in Sangram Singh v Election Tribunal Koteh 1955 AIR 425 that emphasized that the principle of natural justice requires; ‘‘that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.’’ 59. The consequence of breach of the rules of naturel justice Nancy Musili v Joyce Mbete Katisi [2018] eKLR is the denial of the right to be heard that renders any decision made null and void ab initio. 60. Justice Odunga (as he then was) explained in the case of Republic v Commission on Administrative Justice & 2 others Exparte Michael Kamau Mubea [2017] eKLR the importance of an affected party being accorded an opportunity to be heard as follows: ‘‘112. In my view, reference to hearing the other side must have been with respect to oral representation since I do not see how a decision affecting a person can be made without affording that person an opportunity to present his case either orally or by in writing in light of the provisions of Article 47 and 50 of the Constitution. However, the law is clear that where a tribunal decides to hear one party then it must hear all the parties.’’ 61. Article 47 (1) of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 62. Article 47 (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. In the instant, suit this court is satisfied that the Applicant was granted a fair hearing within the framework of Article 47. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 11

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63. I say so, because I take note of the fact that the Applicant was notified of what he was accused of doing via a Notice. The Applicant was subsequently given affair opportunity to be hard and present his case. 64. The hearing was conducted in a manner that was in the assessment of the court legal. There is no accusation that the seating committee went beyond its mandate. 65. The Applicant admits that he was given notice of the allegations of examination malpractice, and he was also accorded an opportunity to respond to the charges. 66. He does not deny the fact that he appeared before the disciplinary committee. He does deny the fact that minutes of the Disciplinary Committee. The court is satisfied that the process was fair to the Applicant given that he has not raised any issues with the hearing process. The Applicant has failed to prove that there was any procedural impropriety. 67. He admits that he was subjected to the system used by the university which required a 360-degree environment scan and supervision through a camera to detect any unauthorized materials before allowing a student to proceed with the examined. 68. He did not argue that he was unaware of this structure. He did not protest nor refuse to Subject himself to this test. The Applicant has not demonstrated that there was an illegality in the use of the camera. He voluntarily subjected himself to the process and he cannot now turn around and attack a process that he embraced consciously and I so hold. 69. The court finds no reason to interfere with the finding of the committee which in the court’s view arrived by the committee in exercise of its discretion. 70. Further the court is satisfied that the hearing was conducted within the parameters of the institution’s code of conduct which the Applicant submitted and subjected himself to when he joined the college. 71. The applicable regulatory framework that was administered by the Respondent was sound, fair and reasonable. The Applicant was aware of same. 72. In a further demonstration of how the process ensured the rules of natural justice can be inferred from the fact that the Applicant was even given an opportunity to lodge and pursue an appeal which facility he embraced. 73. This in the court’s view accords with Article 50 of the Constitution. Having made the above findings, this court holds that the Judicial Review court does not have jurisdiction to dig into or interfere with the finding of the tribunal on merits. 74. The court finds that there was no procedure impropriety, no illegality or irregularity in the manner in which the case was handled by the Respondent. 75. The Applicant argued that the punishment was disproportionate and excessive in that suspension for one year, cancellation of an entire semester, mandatory counselling, repetition of the year, and a ban from online exams, all of which lack justification were punitive beyond reason. not into that issue for it calls for an analysis and merit-based approach that would mean opening up the exercise of its discretionary power which the court declines to do. 76. On the claim for legitimate expectation, this court is guided by the case of Republic v Principal Secretary Ministry of Mining Exparte Airbus Helicopters Southern Africa (PTY) Ltd [2017] eKLR paragraph 55. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 12

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77. It is a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation must in the first place be legitimate “in the sense of an expectation which will be protected by law”. 78. It is this Court finding that the Applicant knew but chose to disobey the exam security framework and the code of conduct of the college which she had subjected herself to and then turn around and raise a claim of breach of her legitimate expectation space. 79. Finally, given that the Applicant did not prove her case on a balance of probabilities, the court cannot award damages. Costs; 80. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed: “ …whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 81. The Applicant shall bear the costs of the suit. Disposition; 82. The Applicant has not made out a case that can warrant the grant of the orders thought. Order; The application is dismissed with cost. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF OCTOBER, 2025. ……………………………………………. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16548/eng@2025-10-31 13

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