Michael Mutinda Mutemi & 1 other v Vice Chancellor Technical University of Kenya (tuk) & 4 others

Mr Ebenezer Shalom Mutinda sit the Second Year, Semester 2 exams, was overtaken by events, as the said examinations were administered. 3. The Petitioners/Applicants thus seek the following orders:4. That pending the hearing of the Petition, the Honourable Court be and is hereby pleased to order the 1st Respondent; the Vice Chancellor, Technical University of Kenya, and the 2nd Respondent, the Senate, Technical University of Kenya, to file in court a sworn affidavit with the relevant supporting documentation showing how the 2nd Petitioner’s Nominal Roll changed from the status of “signed successfully,” on the 16th April 2026, to “not signed” soon thereafter, and further the affidavit should contain details of the relevant offices and officers liable in effecting such changes; 5. That pending the hearing of the Petition, the Honourable Court be and is hereby pleased to order the 1st Respondent, the Vice Chancellor, Technical University of Kenya, and the 2nd Respondent, the Senate, Technical University of Kenya, to file in court a sworn affidavit to demonstrate if or not there is any missing marks for the 2nd Petitioner’s end of Semester 1, Academic Year 2 exams; 6. That pending the hearing of the Petition, the Honourable Court be and is hereby pleased to order the 1st Respondent, the Vice Chancellor, Technical University of Kenya, and the 2nd Respondent, the Senate, Technical University of Kenya (TUK), to file in Court a sworn affidavit to demonstrate if or not there is indeed in existence a circular from the Academic Registrar’s Office TUK directing the lecturers not to allow the 2nd Petitioner attend classes or sit for exams; and 7. That the costs of the application be borne by the Respondents. 4. As stated above, the Petitioners contend that the Respondents have been dishonest about what constitutes a “household” contribution under HELB and about the fee payable by a household. They further aver that the Respondents maliciously changed the 2nd Petitioner’s status on the nominal roll from “signed” to “not signed” with a view to preventing the 2nd Petitioner from sitting for examinations. They state that the 2nd Petitioner did, in fact, sign the nominal roll on 16th April 2026. 5. The application is opposed. Ms Ruth Kirwa, the Chief Legal Officer of the 1st Respondent, made a sworn deposition on 19th June 2026, averring that the Motion before the court was brought in bad faith and ought to be dismissed with costs. She stated that the relevant examinations had been concluded. 6. Regarding the alleged exclusion of the 2nd Petitioner from sitting the examinations, she averred that he couldn’t do so because he had not signed the nominal roll, due to the fact that he owed a fee balance of Kes 47,181/40, which sum was in respect of the mandatory household contribution for his second year of study. She contended that the petitioners had not paid over Kes 200,000/- as alleged; the said payment was made by the government as either a scholarship or a HELB loan, which payments did not amount to a “household” contribution. 7. Ms Kirwa stated that the Petitioners/Applicants did not deserve the orders they were seeking as they had come to court with unclean hands. This was on the alleged ground that the firm of advocates who had acted for them was not registered with the Law Society of Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13152/eng@2026-08-07 2

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8. She denied that the 2nd Petitioner/Applicant had been discriminated against. Ms Kirwa averred that, of the 17 students in the BSc in Counselling Psychology, only 13 signed the nominal roll and were therefore eligible and did sit for the examinations. She reiterated her denial that the 2nd Petitioner/ Applicant had signed the nominal roll. To counter his point, she produced the examination attendance list, which does not include the name of the 2nd Petitioner/Applicant. 9. The Principal Secretary of Higher Education made sworn deposition dated 19th June 2026 in which Dr Beatrice Muganda Inyangala, CBS, stated that the Ministry of Education was not involved in the day-to-day running of the universities. She averred that the Ministry was not involved in denying the 1st Petitioner/Applicant’s son an opportunity to sit the examinations in question. She averred that universities have the exclusive control of how to run their programs and that the dispute as to payment of fees was a contractual dispute which the Constitutional Court should not wade into. On the right to education, it was stated in the said deposition that Article 43(1)(f) of the Constitution did not envisage higher education being free. Dr Inyangala averred that higher education ought to be affordable and accessible and based on merit. 10. On the funding of university education, Dr Inyangala averred that the High Court’s judgment was stayed by the Court of Appeal on 26th March 2025. She further averred that eligibility for government assistance under the Variable Scholarship and Loan Funding Model was publicized, and that any person aggrieved by a decision regarding university funding could lodge a Funds Appeal through the Higher Education Financing Portal and provide new, verifiable documentation to substantiate his/her financial need. 11. She contended that the Petitioners/Applicants had not demonstrated that they had lodged a funding appeal or had otherwise exhausted all available remedies before filing the constitutional petition. 12. The Petitioners/Applicants filed a Supplementary Affidavit sworn by them jointly on 22nd June 2026 in which they reiterated their previous averments that the nominal roll was not a physical document but rather an electronic log. They reiterated that the status of the 2nd Petitioner/Applicant changed from “signed” to “not signed”, inexplicably, which action was blamed on the Respondents. 13. The application was canvassed through both written and oral submissions. The Petitioners/ Applicants’ submissions are dated 11th June 2026 and 25th June 2026. In those submissions, they reiterated that the 2nd Petitioner’s status in the nominal roll changed and that this was done to force the Petitioners/Applicants to “accept an unofficial and unsanctioned fee schedule which the Respondents have jointly and severally introduced to the students contrary to the Court of Appeal orders issued in March 2025”. 14. The Respondents did not file written submissions. Their counsel, Mr Thande Kuria, made oral submissions on 26th June 2026, urging this court to dismiss the application. He contended that the 2nd Petitioner/Applicant did not sign the nominal roll. He challenged the screenshot and averred that it was a forgery to be disregarded. He further submitted that the 2nd Petitioner/Applicant couldn’t have signed the nominal roll because he had fee balances, and that, without signing it, he was ineligible to sit for the examination. 15. Mr Kuria further submitted that the student didn’t exhaust all available remedies as there was an appeal mechanism that he hadn’t used. He therefore prayed that the application be dismissed. 16. I have considered the Petition and the Motion vide which conservatory orders are sought as well as the responses of the Respondents. What is sought at this point is the issuance of conservatory https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13152/eng@2026-08-07 3

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orders pending the hearing and determination of the Petition on the merits. Should this Court grant conservatory orders? If so, on what terms? 17. The guiding principles that the courts use when deciding whether to grant conservatory orders were determined by the Supreme Court in the case of Munya v Kithinji & 2 others [2014] KESC 30 (KLR). At paragraph 86, the Apex Court stated that: “ Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” 18. In the Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the High Court summarized the principles as being:i. Whether there is an arguable prima facie case with probability of success; ii. Whether the grant of conservatory orders will enhance constitutional values and objects; iii. Whether, if conservatory orders are not issued, the substratum of the case will be rendered nugatory; and iv. Where the public interest lies. 19. I have considered the matter before the court. The dispute concerns the university funding model and its application by the Respondents. The Petitioners/Applicants appear to be of the view that the way the current funding model is being implemented has the effect of denying the 2nd Petitioner/ Applicant his right to education, to fair administrative action and to access to information. These points aren’t idle; they merit further scrutiny by the court. I am satisfied that the first test has been met. 20. The right of the 2nd Petitioner/Applicant to access education is in issue. Whether the current funding model for university education is in accordance with Article 43(1)(f) of the Constitution is a matter for the court to determine. I am satisfied that the second test has likewise been met. Granting conservatory orders will, in my view, therefore, enhance constitutionalism. 21. In my view, the denial of education to a student creates a situation that may be irreversible. Time lost in litigation will not be recovered. The emotional cost of exclusion may not be quantifiable. In my view therefore, the third test has been met. 22. Lastly, public interest lies in enabling the student to continue his education. 23. It is clear from the foregoing that I am persuaded that conservatory orders should issue. I must now consider what those orders should be. The Petitioners/Applicant’s seek to have the Vice Chancellor and the Senate of the University file affidavits containing information as to whether the nominal roll was changed, whether there is a circular that bars the 2nd Petitioner/Applicant from accessing classes or sitting for examinations and whether there are any missing marks. Whereas this court is inclined to issue a conservatory order, it will do so in a way that protects the integrity of proceedings. Compelling the making of sworn depositions may not accord with this court’s role as a neutral arbiter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13152/eng@2026-08-07 4

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of the Contestation between the Petitioners/Applicants and the Respondents. Thus, the court will, however, make orders that promote the integrity of its proceedings. The question as to whether the 2nd Petitioner/Applicant signed the nominal roll is central to the question before me. 24. I issue the following orders:1. I order and direct the Vice Chancellor, Technical University of Kenya, to file with the court a complete electronic log of the nominal roll of the BSC Counselling Psychology in respect of the Second Semester, Second Year examinations, within 14 days of the date hereof; and 2. I order and direct the Vice Chancellor, Technical University of Kenya, to file all the 2nd Petitioner/Applicant’s examination transcripts, from the time he joined the Technical University of Kenya, to the date of this ruling, within 14 days of the date hereof. I decline to issue any other orders besides these. 25. In the interest of justice, the hearing of the Petition will be fast-tracked. 26. It is so ordered. DATED AND SIGNED AT NAIROBI, THIS 7TH DAY OF AUGUST 2026. GREGORY MUTAI JUDGE In the presence of: Mr Thande Kuria, for the Respondents; Mr Michael Mutemi (1st Petitioner) (pro se litigant); and Ms Neema Lwambia - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13152/eng@2026-08-07 5

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