Omulindi Arunga Dave Harry v The University of Nairobi & 1 other

Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are unconstitutional, null and void ab initio (sic). c. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 by virtue of the operation of Clause 7.1.17 and 7.1.18 of the Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery as they are unconstitutional and ultra vires the mandatory provisions of the Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014 and in particular PROG/STD/04, PROG STD/14 and PROG/STD/15 of the 3rd Schedule of the Commission for University Educations’ Standards for Academic Programmes. d. A declaration be and is hereby issued that the Respondent’s action of concluding that the Petitioner failed the clinical and practical examinations on HSU 600 and HME 600 and excluding the Petitioner in the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 was illegal, unlawful, unreasonable, irrational, discriminatory and violated the Petitioner’s rights to non-discrimination, dignity, freedom from psychological torture and fair administrative action contrary to Articles 27, 28, 29(d) and 47 of the Constitution. e. A declaration be and is hereby issued that the 1st Respondent failed to properly mark, remark, verify, evaluate, grade and moderate the Petitioner’s examinations in the said course subjects HSU 600 and HME 600 and should have thus been cleared for graduation. f. A declaration be and is hereby issued that the 1st Respondent’s action of excluding the Petitioner from the final list of graduands for the 1st Respondent’s 72nd Graduation Ceremony scheduled for December, 2024 is a violation of the Petitioner’s legitimate expectations and right to dignity protected under Article 28 and 47 of the Constitution. g. A Judicial Review order of Mandamus compelling the 1st Respondent to undertake all the necessary internal procedures required to include the Petitioner in the next graduation list and graduation ceremony. h. General damages for infringement of the Petitioner’s rights under Articles 27, 28, 29, 46, 47 and 55 of the Constitution. i. Special damages for loss of income as an intern by the Petitioner at the rate of Ksh.150,120/per month from the month of January, 2025. j. General damages for loss of future income, employment opportunities and earning promotions. k. Exemplary damages. l. The cost of the petition to be borne by the Respondents. B. The Petitioner’s Case. 2. In support of his case, the Petitioner filed a supporting affidavit sworn on 19th August, 2025 and a supplementary affidavit sworn on 14th October, 2025. He deponed that he was a student at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 2

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University of Nairobi studying Bachelor of Medicine and Bachelor of Surgery (“the course”) at the University of Nairobi (“the University”) and registered as Student. 3. It is the Petitioner’s averment that he sat for two units (HSU 600: Surgery and HME 600: Medicine) in his final semester and was informed by the University that he failed the two units. The effect of the failure meant that the Petitioner had to re-sit his said examinations and could not, therefore, graduate in the University’ 72nd graduation ceremony in December, 2024. 4. Feeling that he had attained the pass mark of 40% in both units, the Petitioner applied for the remarking and verification of the two units and the request was granted. The University’s Faculty of Health Sciences then communicated to the Petitioner that he had, after re-mark, failed the two units, vide a letter dated 22nd April, 2025. The Petitioner took the position that no remarking and verification was done and requested to be supplied with the raw re-marked scripts but the University declined to grant the request. 5. Following the University’s refusal to supply him with the raw re-marked scripts, the Petitioner motioned proceedings before the Office of the Ombudsman in the Commission on Administrative Justice. On 5th June, 2025 and 9th June, 2025, the Commission issued orders in favour of the Petitioner directing that the University furnishes him with copies of the raw re-marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to the sought information and in his view, the scrutiny of the documents that the University supplied to him “revealed a great deal of examination irregularities and malpractices” committed by the University against him. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University. 6. The Petitioner framed his complaint to the University vide letters dated 10th July, 2025, 28th July, 2025 and 4th August, 2025 but the letters elicited no responses from the University. 7. The complaints that the Petitioner raised are reproduced as follows: a. As a result of the actions of the Respondent’s employees and lecturers jointly and severally in violating the Petitioner’s rights and violating the provisions which direct them and the law applicable, the Petitioner now lives in anxiety of the fact that he will not be allowed to graduate from his studies together with his peers in December, 2024 and now again in the next graduation ceremony of the University of Nairobi scheduled for December, 2025. b. The Petitioner will have further be made to incur tuition costs of re-siting a whole year of studies and incurring expenses arising out of accommodation and other learning related expenses. c. The action of the 1st Respondent that led to the omission of the Petitioner’s name being omitted (sic) from the 72nd graduation list has caused the Petitioner damages, losses and irreparable injury for the reason that; i. His subsequent failure to join in the medical profession and industry, initially as a medical intern he has lost earnings of about Ksh.150,120/- per month from January, 2025. ii. The Petitioner has suffered damages and lost future opportunities and benefits that may arise in promotions during employment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 3

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iii. 8. The Petitioner has suffered damages and losses by the delay that will have arisen in him completing his undergraduate and pursuing further education. d. Unless the 1st Respondent is stopped the Petitioner will be exposed to further expenses, mental torture and anguish with cost of benefits and shall have been dented and damaged in their reputation and standing such that even if ultimately vindicated the damage will have been done to his detriment. e. The delay in graduating the Petitioner when he was duly justifiable to do so in December, 2024 by the 1st Respondent has violated the Petitioner’s right to join the industry and access gainful employment, hence his constitutional rights enshrined in Article 43 and 56 of the Constitution of Kenya, 2010. f. The Petitioner’s rights under Articles 27, 35, 46, 47, 50 and 55 have been violated and infringed upon by the 1st Respondents’ employees jointly and severally and shall continue to be so infringed unless the court intervenes. g. Unless the court intervenes, the Petitioner shall suffer damages and the 1st Respondent shall have flagrantly violated their obligations and the provisions of the Constitution at Articles 50, 157 and 232. h. The Petitioner has further been made to incur legal costs expenses of coming to court and engaging an Advocate to file this constitutional petition and the previous suit in Miscellaneous Civil Application No. E116 of 2025 George Arunga Sino (Suing as the parent and guardian of Arunga Dave Harry) v Professor Margaret Chesang Hutchinson (Sued as the Vice Chancellor of the University of Nairobi/Access to Information Officer). The Petitioner pleaded that pursuant to the Commission for University Education’s University Standards and Guidelines, 2014 and the Commission for University Education’s Standards for Academic Programme, the University was mandated, under PROG/STD/04, to have an academic programme structure with rules and regulations that are aligned to a standard format provided for by the Commission for University Education which must mandatorily include: “ vi. Mode of delivery; vii. Academic regulations comprising of admission requirements, regulations on credit transfer, programme requirements, student assessment policy/ criteria, grading system, examination regulations including moderation of examinations, graduation requirements, classification of degrees and regulations for thesis/dissertation/projects (where applicable); viii. Course evaluation……”. 9. The Petitioner proffered the position that the University adopted and implemented the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and the School of Surgery, which is unconstitutional, null and void. 10. In particular, the Petitioner pleaded that Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University’s Faculty of Health Science’s, Review of Revised Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery were not in line with the mandatory provisions of The Standards and Guidelines of the Commission for University Education’s Universities Standards and Guidelines, 2014, particularly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 4

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PROG/STD/04 and the third Schedule of the Commission for University Educations’ Standards for Academic Programmes, thus rendering the said clauses unconstitutional. The Clauses provide as follows: Clause 6.0 Grading System Bachelor of Medicine and Bachelor of Surgery degree shall not be classified. However, performance in each subject shall be graded as follows: 75% - 100% - Distinction 65% - 74% - Credit 50% - 64% - Pass 49% and below - Fail Clause 7.1.6 The passmark for any examinable subject shall be 50%. Clause 7.1.9 Compensation shall be granted to candidates who obtain at least 50% pass in continuous assessment tests. Clause 7.1.10 Supplementary examinations shall be held within three months, but not earlier than two months from the date results are released. A candidate who attains 50% in the supplementary examination shall be deemed to have passed the respective University Examination for the year. Maximum marks for supplementary examinations shall be recorded as 50% in the candidate’s academic transcripts. Clause 7.1.14 A candidate who is presenting for examination for the first time and either obtains less than 40% in any one subject, or fails with 40% to 49% in two (2) or more subjects shall on recommendation of the Board of Examiners and approval of Senate be permitted to repeat the whole year of study in the failed subjects. Clause 7.1.17 A candidate who fails to satisfy examiners in the clinical component of a given subject shall have failed that examination. Clause 7.1.18 A candidate who fails to satisfy examiners in the practical component of a given subject shall be considered to have failed that examination. 11. The particular guidelines that the Petitioner complained that the above Clauses contravened (PROG/ STD/04) provides that an academic programme structure shall be aligned to a standard format as provided for by the Commission for University Education and shall include background information of the university, information on the various programme facets and details of the academic resources for the support of the programme. The Petitioner added that the above Clauses further went against the 2014 Guidelines as they set the passmark for an examinable subject at 50%, yet that set by the guidelines was 40%. 12. The Petitioner further stated that the University arbitrarily applied the above clauses to reach the determination that the Petitioner failed in the two units HSU 600 and HME 600, effectively breaching https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 5

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Articles 47 and 55 of the Constitution by condemning the Petitioner to re-sit the academic year, hence incurring enormous expenses. 13. In the present petition, the Petitioner states that his rights were violated by the University, i.e.: i. His right to fair administrative action under Article 47 of the Constitution. ii. His freedom not to be subjected to torture whether physical or psychological under Article 29(d) of the Constitution. iii. His right to dignity under Article 28 of the Constitution. iv. His legitimate expectation that he would graduate in December, 2024 in the University’s 72nd graduation ceremony. 14. In his affidavit in support of the petition, the Petitioner, who described himself as a student who is exceptionally gifted academically and who had hitherto never failed any examination, expounded on his petition and stated that he was offered admission to the University on 12th September, 2017 and joined the University’s School of Medicine for a course leading to the award of bachelor’s degree in medicine and surgery under Module II programmes which commenced on 4th September, 2017, at a cost of Ksh.467,500/- tuition fees. 15. The Petitioner averred that in his final semester, he was informed by the University that he had failed in two units – HSU 600: Surgery and HME 600 Medicine – and that the failure meant that he would not graduate in the University’s 72nd graduation in December, 2024 and that he was required to resit the whole year. 16. The Petitioner stated in his affidavit that he applied for re-marking and verification of his scripts in the two units and that the request was granted, pursuant to which the University, without verifying the examination scripts and/or re-marking the same, merely communicated to him vide a letter dated 22nd April, 2025 that he had failed the two units. The contents of the letter are as follows: Dear Arunga, Remark/verification – HME 600 and HSU 600 Reference is made to the Academic Registrar’s letter dated 24th March, 2025 and your letter dated 17th April, 2025. This is to inform you that you attained the following grades during the 2022 2023 Bachelor of Medicine and Bachelor of Surgery Year VI Examinations. Course/Subject name Code Grade Remarks Surgery HSE 600 D Fail Medicine HME 600 D Fail Yours sincerely, DR. ZIPPORAH MAGAKI REGISTRAR/SECRETARY FACULTY OF HEALTH SCIENCES 17. The Petitioner stated that he requested the University to supply him with the with the raw re-marked scripts which the University failed to do. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 6

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18. It was the Petitioner’s further averment that following the refusal by the University to supply him with the scripts, he commenced proceedings before the Office of the Ombudsman in the Commission on Administrative Justice and that on 5th June, 2025 and 9th June, 2025, the Commission issued orders in his favour and directed that the University furnishes him with copies of the raw marked scripts. The orders of the Commission were adopted by this court as a decree on 27th June, 2025 whereafter the University availed to the Petitioner access to some of the sought information. 19. The Petitioner stated that in his view, the scrutiny of the documents that the University supplied to him revealed a magnitude of examination malpractice by the examiners which included the following: In HSU 600: Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.The original examination script in HME 600 Medicine Essay examination was not marked at all.The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court. In HME 600: The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.The original examination script in HME 600 Medicine Essay was not marked at all.The marked photocopy of the Medical Essay Examination HME 600 was not re-marked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court. 20. The Petitioner complained that the University deliberately failed him in the two units as a result of which he could not graduate in the 72nd graduation ceremony of the University. He stated that it was his belief that had the two units been objectively marked and fairly awarded, his score in both units would have been well above the minimum pass mark required. C. The 1St Respondent’s Case. 21. The 1st Respondent resisted the petition by filing a replying affidavit sworn on 7th October, 2025 by Prof. Daniel Kinyuru Ojuka, Dean Faculty of Health Sciences at the University in which the said deponent stated that the Petitioner’s right to education is not absolute but is subject to the rules and regulations governing education in the University. 22. The Respondent stated that the petition is vexatious as the same was a replica of the unsuccessful HCCMISC E116 of 2015, George Arunga Sino v Prof. Margaret Chesang Hutchinson, PhD. 23. The deponent of the replying affidavit stated that the Petitioner had been struggling in his studies and was an average student who scored 50% - 60% in most of his examinable units and with a general downward trend in performance over the years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 7

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24. The deponent stated that the Petitioner wrote to the University to request for the re-mark of two units (HSU 600 and HME 600), both being core units, which request the University approved. The outcome of the re-mark was that he failed the two units and could therefore not graduate. The explanation that the deponent made on the failure to provide the re-marked clinical practicals was that the same involved students in hospital and that the outcome was reached upon deliberations being made by board examiners and that scripts were therefore not available. 25. The deponent explained that the marks that were awarded to the Petitioner and other students were collective and not individual components and that any student who failed in the clinical and/ or practical aspects failed the entire unit, notwithstanding what the student got in the written examination, in line with Clauses 7.1.17 and 7.1.18. That in accordance with examination regulations, the Petitioner was therefore recommended to repeat the year in HSU 600 Surgery and HME 600 Medicine and was duly notified on 18th November, 2024. 26. The deponent stated that when the Petitioner applied for a re-mark of the two units, the same was granted by the University but still returned a verdict of failure in both and the University invited him for academic mentorship, which he declined. 27. The University’s responses to the Petitioner’s itemized complaints were as follows: In HSU 600: Complaint: Cancellation and reduction of the Petitioner’s marks from 50 to 41 without reasonable cause in the History Taking examination at Station 1.University’s response: There indeed was a cancellation and alteration from 50 to 41 but the same was countersigned by the examiner Dr. Mark Awori. There was no requirement that such a cancellation or alteration be countersigned by any other person.That in any event, even if the score were to be retained at 50, the Petitioner would still fail, having failed the clinical examination.Complaint: The original examination script in HME 600 Medicine Essay examination was not marked at all.University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.Complaint: The Petitioner was not awarded the full marks for the final examination as question 7 was not marked at all.University’s response: Question 7 was properly graded by the examiner and the score that was awarded was 4 out of 10 and 3 out of 10 for question 8 that partially appeared on the same page. The 7 out of 10 that appeared on the said page was therefore the total score on that page and not a score for question 7.Complaint: The Petitioner was awarded 48.5% by the second marker, yet he scored 51% in the main examination.University’s response: The University stood by its calculation after the re-mark and verification, which, as per its calculation, yielded a figure of 3 out of 10 for question 1; 4 out of 10 for question 2; 5 out of 10 for question 3; 5 out of 10 for question 4; 3.5 out of 10 for question 5; 4.5 out of 10 for question 6; 7 out of 10 for question 7; 4.5 out of 10 for question 8; 5.5 out of 10 for question 9; and 6.5 out of 10 for question 10. That made a total of 48.5 out of 100.Complaint: The University failed to provide the scoresheet for Clinical/Practicals Objective Structured Clinical Examination.University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition. Clinical/Practicals are physically assessed by a team of board examiners and there are no scripts available.Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 8

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as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition. In HME 600: Complaint: The marksheets in the Clinical/Practicals HME 600 cannot be authenticated as the one provided showed that the Petitioner was awarded low marks of 4 out of 25 in a marksheet dated 25th October, 2025, yet the examination was undertaken in the year 2024. The Petitioner urged the court to find the provided marksheet as having been fabricated with a deliberate intention of showing that he had failed. The logo or letterhead of the University does not appear. The Petitioner’s handwriting and signature do not appear. The marksheets do not have a description of the “Case General Examination and Comments”.University’s response: The issue should not be re-litigated as the same was dealt with and settled in HCCC MISC E116 of 2025. The date 25th October, 2025 as appearing was an inadvertent error on dating by the examiner and that the same did not, in any event, impact on the Petitioner’s results. The University logo on marking sheets is not a requirement under the Regulations. There is also no requirement that the student signs on the score sheets as the students do not write anything thereon as they give only oral responses.Complaint: There is no certainty as to the marks scored by the Petitioner in the clinical results of OSCE of HME 600 as the same kept moving from 44, 45 to above 47.University’s response: The University’s calculations are correct. I station 1, the Petitioner scored 10 out of 25; 4 out of 25 in station 2; and 19 out of 25 in station 3, which made a total of 33 out of 75, equivalent to 44 out 0f 100. In station 4, he scored 12 out of 25, equivalent to 48 out of 100.Complaint: The original examination script in HME 600 Medicine Essay was not marked at all.University’s response: The Petitioner was graded. There is no requirement that in a grading examination, an examiner must apply a mark such as a tick or a cross to demonstrate that the script was marked. A marking scheme had been provided and the examiner properly graded the Petitioner as may be confirmed from the marking scheme. During the subsequent re-mark, the examiner put ticks on the script.Complaint: The marked photocopy of the Medical Essay Examination HME 600 was not remarked and showed glaring irregularities as the Petitioner was cumulatively awarded 117 out of 200 instead of 120 out of 200.University’s response: The scoring was proper. The first examiner awarded 117 out of 200 and the second examiner 120 out of 200. The Petitioner mixed up the marks that were awarded by the two examiners.Complaint: The Continuous Assessment Test (CAT) examination scripts were not supplied, in disobedience of the orders/decree of this court.University’s response: The University provided all the information that the court ordered. The matter of access to information is res judicata as the same was dealt with and settled in HCCC MISC E116 of 2025 and cannot be reopened vide the instant petition. 28. The University’s deponent stated that as the Petitioner had not qualified to graduate, having failed to pass the two units, he had no legitimate expectation to graduate and there was no loss of dignity occasioned by the University. 29. The University stated through the replying affidavit that the Petitioner failed to particularize the manner in which Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the University of Nairobi’s Faculty of Health Science’s, Review of Regulations and Syllabus for the degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery are in breach of PROG/STD/04, PROG/STD/14 and PROG/STD/15 and the 3rd Schedule of the Commission for University Education Standards and Guidelines 2014. 30. The University’s view was that there are no constitutional issues that are discernible in the instant petition as none has been identified with reasonable precision and that the dispute presented by the Petitioner is academic and therefore civil in nature. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 9

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D. The 2nd Respondent’s & The Interested Parties Case. 31. The Attorney General appeared for the 2nd Respondent and the Interested Party and filed grounds of opposition dated 26th September, 2025. The first point raised in the grounds was that the 2nd Respondent was wrongly joined in the instant proceedings as the dispute relates to the conduct, remarking and verification of examinations, which is the sole mandate of the 1st Respondent. The 2nd Respondent had no constitutional role to play in that exercise. 32. The second point that was raised in the grounds of opposition was that the petition did not disclose any fault or failure on the part of the 2nd Respondent. 33. Thirdly, the 2nd Respondent stated in its grounds that the Petition did not disclose with specificity which constitutional right was violated, the manner of such violation and the 2nd Respondent’s nexus to such violation. 34. In conclusion, the 2nd Respondent stated that the petition is misconceived, incompetent and an abuse of the court process. E. The Petitioner’s Rejoinder. 35. The Petitioner filed a supplementary affidavit that he swore on 14th October, 2025 and stated that in the marksheet dated 14th November, 2024 that related to HME 600, his CAT marks is stated as 18 while examination marks as 31, making a total of 49 marks. 36. The Petitioner took issue with the Review of Regulations and Syllabus for the Degree of Bachelor of Medicine and Bachelor of Surgery (MBChB) 2018 for the School of Medicine and School of Surgery which he said illegally and unlawfully stated that the pass mark is above 50%; yet the Standards and Guidelines of the Commissions for University Education 2014, 3rd Schedule of the Standards and Guidelines for an Academic Programme, 2014, PROG/STD/04, PROG/STD/14 and PROG/ STD/15 provided that a pass-mark is between 40%-49%, which the Petitioner, in any event, achieved in the two units. The Petitioner took the position that the University applied an illegal and unlawful grading system. 37. The Petitioner further stated in his supplementary affidavit that it was wrong for the University to apply the standard that a student who had failed in the clinical or practical component of the examination automatically failed the entire unit and that the University ought to have applied a “summative formula” in ascertaining the Petitioner’s marks in the two units, which, if done, the Petitioner would have been in the pass list and qualified for graduation. 38. The Petitioner stated that the 2nd Respondent was joined to the petition as the matter is one of great public importance as the same relates to teaching, training and management of examinations at the University. 39. The Petition was canvassed by way of written submissions and the parties herein filed their respective submissions. I have had occasion of going through the submissions and the record. F. Issues For Determination 40. The Petitioner, challenges the University of Nairobi’s determination that he failed two core MBChB units (HSU 600 and HME 600) and seeks wide-ranging reliefs including declarations of unconstitutionality, certiorari, mandamus to compel graduation, damages and quashing of university regulations. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 10

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41. The Petitioner alleges violation of Articles 27, 28, 29(d), 47 and 55 of the Constitution. The Respondents oppose the petition. 42. I have carefully considered the pleadings filed by the parties, the affidavits sworn in support of and in opposition to the Petition, the annexures attached thereto and the written submissions together with the authorities cited. 43. I have equally considered the relevant constitutional provisions, the Universities Act, the Fair Administrative Action Act and the regulatory framework governing university education in Kenya. Having done so, I am satisfied that the matters requiring determination by this Court are as follows: a. The constitutionality and legality of the impugned MBChB Regulations. b. The propriety of the academic and examination decisions made by the University. c. The alleged examination irregularities. d. The alleged violation of the Petitioner’s constitutional right e. Whether any legitimate expectation arose in favour of the Petitioner. f. Whether the remedies sought are available in law. G. Analysis And Findings. 44. The first issue for determination is whether Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 of the MBChB Regulations, 2018 are unconstitutional or ultra vires the Standards and Guidelines issued by the Commission for University Education. 45. The gravamen of the Petitioner’s case is that these clauses impose a higher pass mark than that contemplated by the CUE Standards and that they provide that failure in the clinical or practical component automatically results in failure of the entire unit, which the Petitioner contends is unlawful and unconstitutional. 46. The legal principles governing constitutional pleadings are well settled. A party who alleges violation of the Constitution bears the burden of pleading the alleged violation with reasonable precision. 47. This principle, articulated in Anarita Karimi Njeru v Republic [1979] eKLR, has stood the test of time and continues to guide constitutional adjudication. It serves to ensure that constitutional litigation is not reduced to generalized grievance but remains anchored on clearly articulated legal and factual foundations. In that case, the Court observed as follows: “ If a person is seeking redress… on a matter which involves a reference to the Constitution,… he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 48. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR clarified that precision in constitutional pleadings does not demand technical perfection or formulaic drafting. Rather, it requires sufficient clarity to enable the Court to understand the complaint and to permit the respondent to meaningfully respond. The requirement is therefore substantive rather than cosmetic. “ We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 11

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and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated.… to demand exactitude ex ante is to miss the point.” 49. When the Petition is examined against that legal standard, it becomes apparent that the Petitioner did not discharge the burden placed upon him. He did not place before the Court a clear comparative analysis demonstrating that the impugned clauses directly contradict mandatory provisions of the CUE Standards. 50. The Petition did not identify the precise text of the impugned clauses, juxtapose it with the precise text of the relevant CUE provisions, and then demonstrate an irreconcilable inconsistency. A general assertion that the CUE framework contemplates a lower pass mark does not, without more, establish unconstitutionality or illegality. 51. Universities in Kenya are vested with statutory academic autonomy which is both substantive and purposive. This autonomy is not decorative. It is the legal and functional space within which institutions of higher learning design curricula, prescribe assessment criteria, evaluate performance and determine whether a learner has attained the requisite competence to be certified. 52. Section 20 of the Universities Act recognises this autonomy, subject only to the overarching regulatory oversight of the Commission for University Education. Courts have consistently affirmed that this autonomy must be respected, particularly in matters touching on academic judgment, unless a clear case of illegality, irrationality or procedural impropriety is established. 53. In the case of Oluoch Dan Owino & 3 others v Kenyatta University [2014] KEHC 8577 (KLR), the Court emphasized that universities have the right to set and enforce their own academic rules and that a student must comply with those rules. The Court stated: “ …an educational institution has the right to set certain rules and regulations, and those who wish to study in that institution must comply with its rules. One enters an educational institution voluntarily, well aware of its rules and regulations, and in doing so commits himself or herself to abide by its rules. Unless such rules are demonstrated to be unreasonable and unconstitutional, to hold otherwise would be to invite chaos in educational institutions.” 54. This pronouncement underscores the principle that academic evaluation is not a mechanical exercise susceptible to judicial substitution, but a professional determination grounded in expertise. Academic bodies are best equipped to determine matters touching on standards, assessment and qualifications, and courts must be slow to interfere unless there is a clear violation of the law. 55. The reasoning applies with even greater force to medical training, where assessment standards are not merely academic but are intertwined with public health and safety. 56. The Petitioner’s argument that the Commission for University Education Standards fixed the pass mark at 40% misconceives the nature and purpose of those standards. The role of CUE is in my view, to prescribe minimum thresholds for accreditation and quality assurance. Those standards establish a regulatory floor below which institutions may not fall. They do not impose a uniform grading system nor do they prohibit universities from adopting higher or more rigorous internal standards, particularly for professional programmes. CUE sets the floor, not the ceiling. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 12

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57. Accreditation by CUE is therefore not a declaration that all programmes must be identical in assessment philosophy or grading thresholds. Rather, it is a confirmation that minimum requirements have been met. Universities remain at liberty to enhance academic rigour, provided they do not derogate from mandatory statutory provisions. To construe CUE standards as capping academic standards would be to undermine institutional differentiation and erode academic excellence. 58. This understanding is consistent with judicial authority. In Republic v University of Nairobi ex parte Jackan Mwanyika Mwasi [2018] eKLR, the High Court cautioned against judicial interference that could dilute academic standards, stating: “ The court should as far as possible, avoid any decision or interpretation which would bring about the result of rendering the system of managing discipline in universities unworkable in practice or compromise the credibility or quality of examination standards and results…” 59. This Court associates itself with that caution. 60. Medical education, by its very nature, places a premium on clinical competence. Clinical and practical components are designed to test not theoretical recall, but applied skill, judgment, ethical conduct and patient safety. A regulatory regime that treats failure in clinical or practical assessment as failure of the entire unit is neither novel nor arbitrary. It reflects a pedagogical judgment that a medical graduate who cannot demonstrate minimum clinical competence cannot safely progress or be certified. 61. In the case of Daniel Ingida Aluvaala & Another v Council of Legal Education & Another [2017] KEHC 2775 (KLR), the Court stated: “ Power to maintain standards in the course of studies confers authority not merely to prescribe minimum qualification for admission, courses of study, and minimum attendance at an institution which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners’ assessment at the final examination.” 62. My considered view is that this principle applies squarely to the present petition. 63. More recently, in Kimani v Kenyatta University [2025] KEHC 6602, the Court reaffirmed the statutory mandate of universities in academic evaluation, which I find no basis to depart from, by holding that Universities have the sole mandate to regulate academic programmes and to evaluate student performance through continuous assessment tests, practicals and final examinations. 64. Against that jurisprudential backdrop, the Petitioner has failed to demonstrate that the impugned MBChB Regulations offend the Constitution or exceed the regulatory framework established by CUE. I accordingly find that the challenge to the constitutionality and legality of Clauses 6.0, 7.1.6, 7.1.9, 7.1.10, 7.1.14, 7.1.17 and 7.1.18 must fail. 65. The second issue concerns whether the University lawfully, reasonably and fairly determined that the Petitioner failed HSU 600 and HME 600. The Petitioner alleged that re-marking was illusory and that procedural fairness was not observed. The evidentiary record, however, tells a different story. 66. It is not in dispute that the Petitioner applied for re-marking and verification of his results and that the request was granted. The outcome of that process was formally communicated to him. The University explained, with some detail, that clinical and practical examinations are conducted through direct observation by a panel of examiners and that the results are reached through collective deliberation rather than through conventional scripts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 13

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67. The limits of judicial intervention in such matters were succinctly articulated by the Court of Appeal in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, where the Court observed as follows: “ Judicial review is concerned with the decision-making process, not with the merits of the decision itself.” 68. This principle is foundational and continues to guide courts when confronted with disputes seeking to invite judicial re-evaluation of expert determinations. 69. In the case of Republic v Kenyatta University ex parte Ochieng Orwa Domino [2019] eKLR, the Court reinforced this restraint, holding that it cannot second-guess academic judgment unless it is shown that the decision was “arbitrary, malicious or actuated by bad faith.” No such evidence was placed before this Court. 70. The Petitioner’s dissatisfaction with the outcome of the re-marking process, without more, does not translate into illegality or unfairness. Courts do not inquire whether an academic decision was correct, but whether it was lawful. 71. The third issue is whether the alleged examination irregularities or malpractice were proved. The Petitioner alleged multiple examination irregularities, including altered marks, missing signatures, dating anomalies, unmarked scripts, missing Continuous Assessment Tests (CATs), inconsistent Objective Structured Clinical Examination (OSCE) scores and unauthenticated marksheets. These allegations, if true, could potentially amount to procedural unfairness or even malpractice. 72. However, the law is well settled that allegations of irregularities or malpractice in academic assessments must be substantiated with credible evidence, and mere assertions or suspicion are insufficient to impugn the integrity of examination processes. 73. That observation was made in the case of Republic v Kenya National Examinations Council ex parte Gathenji & others [1997] eKLR, where the Court of Appeal held that it is not enough for a petitioner to assert, without proof, that irregularities occurred. There must be cogent, credible and specific evidence to establish that an examination process was flawed or manipulated. 74. In other words, the Court emphasized that judicial intervention in academic assessments must be predicated on demonstrable irregularities, and the burden of proof lies squarely on the Petitioner. The Court cannot act merely on the basis of conjecture, speculation or dissatisfaction with the results. 75. In this case, the University provided specific, unit-level explanations to address each of the alleged irregularities. For instance, the purported “altered marks” were shown to have been countersigned by the responsible examiners and any variations were explained as part of the standard re-marking and moderation procedures. 76. The University clarified that clinical and practical assessments are evaluated collectively by multiple examiners, and marksheets may not carry student signatures for technical reasons. 77. Regarding the missing CATs and OSCE discrepancies, the University demonstrated that CAT access had been addressed administratively and judicially in the previous matter, rendering any claim res judicata. 78. Date inconsistencies and perceived missing signatures were explained as clerical errors, which did not affect the integrity of the grading. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 14

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79. The University’s explanations were detailed, unit-specific and supported by contemporaneous documentation, making them credible and persuasive. 80. Allegations of examination malpractice or irregularity must be substantiated by credible evidence, which may include examiner testimony, independent expert reports or authenticated records demonstrating a breach of procedure or error. Where a Petitioner alleges unmarked scripts or irregularities, it is incumbent upon him to provide evidence which is tangible, specific and verifiable. Allegations without corroborative proof are inadequate to impugn the integrity of the examination process. 81. In the instant matter, the Petitioner did not produce any expert evidence, examiner testimony or verified records to counter the University’s detailed explanations. His allegations were largely based on suspicion and inference, which, in line with the authorities, cannot form a basis for judicial interference. 82. In evaluating whether the alleged irregularities were sufficient to warrant judicial intervention, this Court considers the distinction between procedural irregularities that affect the outcome and technical or administrative errors that do not. 83. My persuasion is that Judicial oversight of examinations is limited to ensuring procedural propriety. Courts will not substitute their judgment for that of examiners, except where there is evidence of bad faith, bias, or manifest error. 84. Allegations of examination malpractice must be proved by cogent and credible evidence. A cannot substitute its judgment for that of examiners in the absence of clear proof of irregularity. Courts are not forensic auditors of examination processes. 85. Applying this standard, it is evident that the alleged irregularities in the present petition, even if accepted in part, did not demonstrate bias, bad faith, or a substantive flaw in the examination process that could have affected the Petitioner’s final results. 86. Having considered the Petitioner’s claims alongside the University’s documentary evidence, and in line with established jurisprudence, the Court finds that the Petitioner failed to discharge the burden of proof required to establish examination irregularities or malpractice. There was no expert testimony, examiner affidavit, or authenticated counter-documentation presented to show that any alleged anomaly materially affected the outcome of the assessments. 87. Accordingly, none of the Petitioner’s allegations of malpractice or irregularity have been proven to the requisite standard. 88. In conclusion, the Court finds that the Petitioner has not substantiated any claim of examination irregularity or malpractice. The University acted within its statutory and regulatory mandate, applied established academic procedures and provided evidence addressing each of the Petitioner’s allegations. 89. The Petitioner’s dissatisfaction with the results, in the absence of credible evidence of procedural error or malfeasance, does not amount to a violation of law or procedural unfairness. The Court therefore finds no basis to interfere with the University’s academic evaluation or results. 90. The University responded to each allegation with specific explanations. It explained that alterations were duly countersigned, that grading may lawfully be done without ticks, that OSCE scores were mathematically reconciled, that the dating anomaly was clerical, that students are not required to sign clinical scoresheets, and that issues relating to CAT access had already been addressed through lawful processes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 15

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91. The fourth issue for determination is whether the Petitioner’s constitutional rights under Articles 27, 28, 29(d), 47 and 55 of the Constitution were violated by the University’s academic processes and outcomes. 92. Upon careful review of the record, it is evident that the Petitioner was afforded access to the remarking process, was provided with reasons for the decision reached by the examiners, and, following the intervention of the Commission on Administrative Justice, received copies of his examination materials. These steps demonstrate that the principles of procedural fairness, as contemplated in our jurisprudence, were substantially observed. 93. Procedural fairness does not demand perfection or a multiplicity of hearings. Rather, it requires that the process be fair, transparent and afford an opportunity for affected parties to be heard in a meaningful manner. In this context, the Petitioner had avenues to present grievances, which were appropriately facilitated, thereby ensuring that the procedural safeguards inherent in administrative and academic decision-making were respected. 94. In the case of Dry Associates Ltd v Capital Markets Authority [2012] eKLR, the Court emphasized that the concept of procedural fairness is inherently contextual and must be applied with practical realism. The Court observed as follows: “ Fairness, however, does not necessarily require a plurality of hearings or representations and counter‑representations. If there were too much elaboration of procedural safeguards nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too easily sacrificed.” 95. What I get the Court to be saying is that procedural fairness does not require a plethora of hearings, representations and counter-representations, and that it would be unreasonable for one to demand such multiplicity as the same would render administrative processes unduly cumbersome and impractical. 96. This statement underscores the principle that procedural fairness should be assessed in light of the specific circumstances of each case, rather than according to an abstract or excessively formalistic standard. Applying this reasoning, the processes followed by the University, including the opportunity for re-marking and provision of reasons, satisfied the constitutional requirement of fair administrative action. 97. The Petitioner also alleged that the University’s conduct amounted to psychological torture or inhuman treatment, invoking Articles 28 and 29(d) of the Constitution. It is imperative to note, however, that the Constitution protects against deliberate infliction of suffering, cruelty or degrading treatment. My view is that distress arising from academic failure, while regrettable and capable of causing emotional discomfort, does not constitute the severe, deliberate or systemic infliction of suffering contemplated under these constitutional provisions. There was no evidence before the Court to suggest that any officer of the University acted with deliberate intent to cause suffering or humiliation or that the procedures were administered in a manner intended to degrade or traumatize the Petitioner. 98. Regarding the claim under Article 27 on non-discrimination, the Petitioner provided no evidence that he was treated differently from other students similarly situated. Mere subjective perception of unfair treatment does not establish a violation of equality rights. There must be demonstrable evidence of differential treatment on prohibited grounds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 16

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99. Similarly, with respect to Article 55, which relates to the rights of youth, the Petitioner did not establish any link between the University’s academic decisions and any infringement of the protections or entitlements envisaged under this constitutional provision. 100. As such, there is no factual or legal basis to conclude that the Petitioner’s rights under Articles 27 or 55 were infringed. 101. The fifth issue concerns the doctrine of legitimate expectation. Legitimate expectation arises only from a clear, lawful and unambiguous representation, promise or consistent practice upon which a person relies to their detriment. 102. In the case of Keroche Industries Ltd v Kenya Revenue Authority [2007] eKLR, the Court held that legitimate expectation cannot be invoked to require the performance of an act that is in contradiction with the law or existing legal requirements. 103. Applying this principle, the Petitioner’s expectation to graduate was inherently contingent upon fulfilling the prescribed academic requirements, including passing all core and clinical units. There can be no legitimate expectation to graduate where statutory or regulatory conditions for graduation have not been satisfied. A student cannot acquire a right to graduation in the absence of compliance with the academic regulations and requirements set by the University, which are binding and enforceable. 104. The Petitioner, having failed the core units HSU 600 and HME 600, did not satisfy the conditions precedent for graduation. His expectation, therefore, was conditional and unenforceable under the doctrine of legitimate expectation and no legal remedy arises merely from the disappointment of personal anticipation. 105. The sixth issue relates to the availability of the remedies sought. It is a well-established principle that courts cannot compel a university to award marks, amend academic judgments or confer degrees in the absence of a demonstrated illegality, procedural impropriety or violation of a protected right. 106. Judicial intervention cannot and should not be used as a tool to usurp the autonomy of academic institutions, nor to second-guess the exercise of academic discretion, except where there is manifest illegality or breach of natural justice. 107. In the present case, the Petitioner has not established that any of the University’s academic decisions were affected by illegality, bias or procedural impropriety. Consequently, the Court is precluded from granting the reliefs that would compel the University to alter its academic determinations or confer the degree. 108. Finally, the Petitioner’s claims for damages, both special and general, fail on the evidence. As stated in Hahn v Singh [1985] KLR 716, special damages must be specifically pleaded, particularized, and strictly proved, a burden which the Petitioner has not discharged. 109. General or exemplary damages are equally unsustainable where there is no established violation of rights or illegality. In the absence of any proven breach of constitutional or statutory rights, there can be no entitlement to compensation. 110. The Court finds, therefore, that the Petitioner’s claims for relief are unsustainable and that the University’s actions were both lawful and procedurally fair. H. Disposition. 111. The inevitable conclusion is that the Petition lacks merit and fails in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 17

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112. Bearing in mind that the Petitioner remains a student of the University and the need to preserve a workable academic relationship between the parties, each party shall bear its own costs. 113. This file is hereby closed. DELIVERED (VIRTUALLY) DATED & SIGNED THIS 27TH DAY OF NOVEMBER, 2025. JOE M. OMIDO JUDGE For The Petitioner: Mr. Maube. For The 1St Respondent: Mr. Omondi. For The 2Nd Respondent: No appearance. For The Interested Party: No appearance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18993/eng@2025-11-27 18

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