Kiptoo & 3 others v Vice Chancellor, Strathmore University & 5 others (Constitutional Petition E691 of 2025) [2026] KEHC 1280 (KLR) (Constitutional and Human Rights) (22 January 2026) (Judgment)
Neutral citation:
[2026] KEHC 1280 (KLR)
Republic of Kenya
Constitutional Petition E691 of 2025
B Mwamuye, J
January 22, 2026
IN THE MATTER OF: ARTICLES 22, 23, 47, 50 AND 31 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED UNDER THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW AND SUPERVISORY JURISDICTION UNDER ARTICLE 165(6) OF THE CONSTITUTION
IN THE MATTER OF: THE UNLAWFUL EXPULSION AND VIOLATION OF ACADEMIC AND POLITICAL RIGHTS OF ELCHANAN KIPTOO, EDWIN MAKORI, FRANKLINE MOCHENGO, AND MICHAEL OTIENO BY STRATHMORE UNIVERSITY
Between
Elchanan Kiptoo
1st Petitioner
Edwin Makori
2nd Petitioner
Frankline Mochengo
3rd Petitioner
Michael Otieno
4th Petitioner
and
Vice Chancellor, Strathmore University
1st Respondent
Deputy Vice Chancellor, academic & Student Affairs, Strathmore University
2nd Respondent
Dean of Students, Strathmore University
3rd Respondent
Director, Corporate & Legal Affairs, Strathmore University
4th Respondent
Student Disciplinary Committee, Strathmore University
5th Respondent
Elections Committee, Strathmore University
6th Respondent
Judgment
Introduction
1.This Petition dated 24th October, 2025 is brought pursuant to Articles 22 and 23 of the Constitution of Kenya, 2010, and invokes the constitutional and supervisory jurisdiction of this Court under Article 165. The Petitioners, who are students of Strathmore University, seek redress for alleged violations of their fundamental rights arising from disciplinary proceedings that culminated in their expulsion from the University, as well as subsequent administrative actions touching on student governance and elections. The matter raises weighty constitutional questions on fair administrative action, the right to a fair hearing, the right to privacy, and the limits of institutional power within private universities exercising public functions.
2.At the heart of the dispute is whether the Respondents’ disciplinary and electoral processes complied with constitutional standards of legality, procedural fairness, impartiality, and proportionality, and whether the impugned actions were undertaken for legitimate purposes or were instead calculated to achieve collateral objectives inconsistent with the rule of law. The Court is also called upon to determine whether conservatory and substantive reliefs are warranted to preserve academic continuity, protect electoral mandates, and vindicate the Bill of Rights.
Petitioners’ case
3.The Petitioners’ case, as pleaded and amplified in their submissions, is that the disciplinary proceedings instituted against them by Strathmore University constituted administrative action within the contemplation of Article 47 of the Constitution and the Fair Administrative Action Act, 2015, and were therefore subject to strict constitutional scrutiny as to legality, rationality, procedural propriety, and fairness. They contend that the process culminating in their expulsion by letters dated 7th October 2025 was fundamentally flawed and irredeemably tainted by bias, structural illegality, predetermination, and persistent violations of their rights under Articles 31, 47, and 50 of the Constitution. On that basis, they urge that the impugned decisions were null and void ab initio.
4.It is the Petitioners’ position that the disciplinary action was vitiated by inordinate and prejudicial delay. They contend that the Respondents unlawfully resurrected allegations relating to the 2024 Student Council elections more than a year after the alleged events, and only after the 1st Petitioner had emerged successful in the 2025 Student Council elections.
5.According to the Petitioners, this delay gravely undermined their ability to mount an effective defence, contrary to the guarantees of a fair hearing under Article 50 of the Constitution, and betrayed mala fides on the part of the Respondents. They further assert that the revival of the allegations was politically motivated, instigated by a rival candidate in the 2025 elections, and was designed not to enforce institutional discipline but to defeat a concluded democratic outcome.
6.The Petitioners further contend that the Respondents were, in law and in equity, estopped from reopening the 2024 allegations. They argue that the University, acting through its duly constituted Electoral Vetting Committee, conducted a formal vetting exercise and expressly cleared the 1st and 4th Petitioners to contest in the 2025 elections, thereby making a final and binding administrative determination as to their eligibility. By permitting the elections to proceed and recognising the outcome, the Respondents are said to have waived any antecedent objections and are consequently barred from resurrecting stale complaints to retrospectively impeach an electoral mandate already conferred by the electorate. In the Petitioners’ view, the subsequent attempt to invalidate the 2025 election on the basis of antecedent allegations was an administrative act overtaken by events and inimical to the principles of electoral finality, legal certainty, and orderly administration.
7.The Petitioners also impugn the disciplinary process on the ground of actual and apparent bias, in breach of the nemo judex in causa sua principle. They contend that the Dean of Students assumed multiple and incompatible roles as Returning Officer, investigator, interrogator, and adjudicator, while simultaneously being the subject of a confidential whistle-blower complaint lodged by the 1st Petitioner shortly before the hearings. It is their case that the Dean’s active participation in questioning the Petitioners and influencing the proceedings gave rise to an irreconcilable conflict of interest that fatally undermined the independence and impartiality of the Student Disciplinary Committee.
8.Similarly, the Petitioners challenge the conduct of the Deputy Vice-Chancellor, whom they accuse of impermissibly conflating investigative and adjudicative functions. They allege that she coerced them into making testimonial statements under threat of expulsion and withdrawal of scholarship benefits, and thereafter participated in the disciplinary process and signed the expulsion letters. They further contend that her participation in the hearings through remote means, without visual presence, offended the constitutional requirement that a decision-maker must personally hear and evaluate the evidence before rendering a determination. Taken together, the Petitioners argue that the conduct of the 2nd and 3rd Respondents extinguished any semblance of institutional neutrality.
9.The Petitioners further challenge the legality of the Student Disciplinary Committee itself, contending that it was improperly constituted and acted ultra vires its governing instruments. They assert that mandatory members charged with safeguarding academic and student welfare were absent, while unmandated persons participated, thereby distorting the composition of the tribunal. They further contend that the committee lacked a lawful quorum and that, under the University’s governance framework, effective decision-making authority vested in a single member, reducing the proceedings to a unilateral administrative act rather than a collegial determination. In their submission, the active interrogation of the Petitioners by non-voting officers further converted the proceedings into an unauthorised prosecutorial exercise.
10.It is also the Petitioners’ case that the proceedings were marred by grave violations of due process and the audi alteram partem rule. They rely, inter alia, on evidence that an expulsion letter was issued to the 4th Petitioner prior to the date scheduled for his disciplinary hearing, which they submit is conclusive proof of predetermination. They contend that a decision reached before a party is heard is void in law and constitutes a fundamental breach of natural justice. They further assert that they were systematically denied access to critical evidentiary material, including alleged confessions, audio recordings, and forensic logs, despite formal requests, thereby rendering any meaningful defence illusory.
11.The Petitioners further submit that the disciplinary findings were unlawfully grounded on evidence obtained in violation of constitutional rights. They contend that the alleged audio recordings were secretly made without consent, in breach of the right to privacy under Article 31 of the Constitution, and that any reliance on such material offended the prohibition against the use of unlawfully obtained evidence. They similarly argue that the purported confessions were involuntary, having been procured through coercion and threats of loss of scholarships and academic opportunities, and were therefore incapable of sustaining any lawful administrative sanction.
12.On the question of exhaustion of internal remedies, the Petitioners contend that although they promptly lodged appeals and correspondence with the Vice-Chancellor following their expulsion, they were met with complete administrative silence. They submit that where internal mechanisms are rendered illusory by delay, inaction, or demonstrable predetermination, the doctrine of exhaustion is inapplicable, and recourse to the Court becomes both justified and necessary to prevent injustice.
13.The Petitioners aver that the Respondents acted in disregard of the authority of the Court by proceeding with by-elections on 31st October 2025 despite having been served with pleadings challenging the validity of the alleged vacancies. They contend that this conduct was calculated to pre-empt judicial determination, render the Petition nugatory, and amounted to a violation of the sub judice principle.
14.In light of the cumulative defects alleged namely bias, structural illegality, predetermination, denial of disclosure, reliance on unlawfully obtained and coerced evidence, and contemptuous administrative conduct, the Petitioners submit that the disciplinary proceedings were constitutionally unsalvageable. They accordingly seek the following reliefs:1)A Declaration that the disciplinary proceedings culminating in the Expulsion Letters dated 7th October 2025 against the Petitioners are unconstitutional, unlawful, null, and void for violating the Petitioners' rights under Articles 31, 47, and 50 of the Constitution.2)A Mandatory Order compelling the 1st, 2nd & 3rd Respondents to forthwith reinstate all Petitioners to their academic programs at Strathmore University and allow them to proceed with their studies.3)A Prohibitory Injunction restraining the 6th Respondent (Elections Committee) or its agents from conducting, announcing, or otherwise proceeding with the by elections set to happen on 31st October 2025 and any subsequent election based on the purported vacancy created by the said unlawful expulsions.4)A Consequential Order compelling the Respondents to uphold the results of the 17th Student Council Election held on 5th September 2025, recognize and inaugurate the 1st Petitioner (Elchanan Kiptoo) as the duly elected Chair of the Student Council.5)A Declaration that the Petitioners are innocent of the charges alleged against them and a Mandatory Order compelling the 1st , 2nd and 3rd Respondents, to formally withdraw the Expulsion Notices from the Petitioners' academic records.6)A Consequential Order (Academic Continuity Waiver) that the period of approximately six (6) weeks the Petitioners have been out of school due to the unlawful expulsion shall not affect their academic progress or violate any mandatory class attendance requirement, and the University is mandated to provide necessary course waivers and accommodations for all missed academic work.7)An Order for Damages compelling the Respondents, jointly and severally, through the Finance department, to pay the Petitioners: a. Constitutional Damages for the violation of their fundamental rights, particularly the Right to Privacy (Article 31), through the recording and unauthorized communication of private conversations. b. Exemplary and Aggravated Damages suffered through their forced expulsion based on trumped-up charges, lack of evidence, and administrative bad faith.8)Costs of this petition9)Any other relief that this Honourable Court may deem just and appropriate to grant.
The Respondents’ case
15.The Respondents oppose the Petition through the Replying Affidavit and Further Affidavit sworn by the 3rd Respondent on their behalf, and what is as elaborated in their submissions, is that the disciplinary proceedings impugned in this Petition were lawful, procedurally fair, and undertaken in strict conformity with the Constitution of Kenya, 2010, the Fair Administrative Action Act, and the University’s internal governance instruments.
16.They maintain that upon receipt of complaints in August 2025 alleging electoral malpractice during the 2024 Student Council elections, the University acted promptly, responsibly, and squarely within its institutional mandate by initiating investigations and subjecting the Petitioners to disciplinary proceedings.
17.It is the Respondents’ position that the complaints received disclosed a prima facie case of serious electoral misconduct, thereby justifying the convening of disciplinary hearings under the Student Handbook, the University Regulations, and the Code of Governance. They aver that each Petitioner was duly and adequately notified of the allegations against him, the date and venue of the hearing, and his right to appear and be heard, including the opportunity to make representations, present evidence, and call witnesses. The Respondents contend that the hearings were conducted expeditiously, upon reasonable notice, and in faithful compliance with the applicable procedural framework.
18.The Respondents further assert that the Student Disciplinary Committee was properly constituted, legally competent, and duly quorate. They maintain that its composition complied with the University’s Code of Governance, that quorum requirements were met, and that all members present were entitled to participate and vote. They deny the assertion that the Committee functioned as, or was governed by the procedural rules applicable to, the Academic Council, contending that student disciplinary proceedings are regulated by a distinct and self-contained regime.
19.Allegations of bias and conflict of interest are categorically denied. In particular, the Respondents reject the claims levelled against the 3rd Respondent, the Dean of Students, asserting that he acted strictly within the mandate conferred upon him by the Student Handbook, which expressly designates him as a disciplinary officer. They also deny any prior knowledge of, or exposure to, the alleged whistle-blower complaint before the hearings and contend that no cogent evidence has been tendered to demonstrate either actual bias or a reasonable apprehension of bias. In this regard, reliance is placed on Republic v National Hospital Insurance Fund Board of Management & another Ex parte Law Society of Kenya [2019] KEHC 1105 (KLR), where the Court held that the burden lies on the party alleging bias to establish actual bias or a real likelihood thereof, and that mere suspicion must not be remote, fanciful, flimsy, or speculative.
20.The Respondents similarly deny that the 2nd Respondent impermissibly combined investigative and adjudicative roles, maintaining that her participation, including via video conferencing, was lawful, necessary, and procedurally proper.
21.According to the Respondents, each Petitioner was afforded a full and reasonable opportunity to be heard, both in writing and orally, and the decisions reached were based solely on the Petitioners’ own signed statements, oral testimony, and admissions made during the hearings. They categorically deny reliance on undisclosed material, secret evidence, or unlawfully obtained recordings. They maintain that any audio recordings referenced were neither commissioned nor procured by the University but were submitted by a third party, that such material was disclosed to the relevant Petitioner where applicable, and that, in any event, the Committee’s determinations did not turn on such recordings.
22.The Respondents contend that the disciplinary findings were amply supported by the Petitioners’ own admissions and by stark inconsistencies between their written statements and oral testimony, which the Committee reasonably construed as evidence of dishonesty and serious misconduct. They outline that the Petitioners admitted, in varying degrees, to conduct including vote rigging, illegal access to the voting system, withholding material information, and deliberate misrepresentation during investigations, which conduct was said to amount to grave breaches of the University’s electoral regulations and ethical values.
23.On sanction, the Respondents maintain that the penalties imposed were proportionate to the gravity of the misconduct and expressly sanctioned by the Student Handbook. They emphasise that electoral malpractice strikes at the heart of the University’s core values of ethical practice and integrity, and that expulsion is a prescribed sanction for serious or repeat offences. In particular, they aver that the 3rd Petitioner was a repeat offender, having previously been disciplined for financial misconduct, thereby rendering expulsion mandatory under the applicable disciplinary framework.
24.With respect to timing and delay, the Respondents assert that there exists no statutory or regulatory limitation period governing the reporting or investigation of electoral malpractice within the University. They contend that once the complaints were received in August 2025, the University acted without undue delay, and that the absence of a prescribed reporting deadline entitled it to investigate the allegations irrespective of when they were reported.
25.The Respondents also dispute the Petitioners’ assertion that the 2025 Student Council elections yielded a concluded and binding outcome in favour of the 1st Petitioner. They maintain that the results for the Chairperson position were never formally declared, having been cancelled due to ongoing investigations and reciprocal allegations of malpractice between the candidates. Consequently, they contend that the 1st Petitioner never acquired a valid electoral mandate capable of constitutional protection.
26.On the alleged infringement of the right to privacy under Article 31 of the Constitution, the Respondents deny having recorded, authorised, directed, or procured the recording of any private conversations involving the Petitioners. They assert that they were mere recipients of a dossier submitted by a third party and that no original recordings were in their possession. They submit that the Petitioners failed to discharge the burden of proof under sections 107 and 108 of the Evidence Act, relying on the Court of Appeal decision in John Mburu Gichohi v Simon Parkoyiet Mokare & others [2017] KECA, which reaffirmed the principle that he who alleges must prove. They further rely on Sturicor Kenya Limited v Kyumba Holdings Limited [2005] KLR for the proposition that an agency relationship must be proved by evidence and cannot be inferred, and contend that no such relationship was established between the Respondents and any alleged third-party recorder.
27.On the alleged violation of the right to fair administrative action under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, the Respondents submit that the disciplinary process was expeditious, lawful, reasonable, and procedurally fair. They detail that each Petitioner received prior and adequate written notice of the allegations, the date and venue of the hearing, and the right to make representations and call witnesses, with the specific allegations and reasons for each hearing expressly set out in the respective letters.
28.Regarding the right to a fair hearing under Article 50(1) of the Constitution, the Respondents submit that the disciplinary proceedings met the requisite constitutional threshold. They rely on the Supreme Court decision in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 39 (KLR), where it was affirmed that a fair hearing entails the provision of a reasonable opportunity to be heard. They further submit that the Petitioners were afforded adequate notice, sufficient time to prepare, an opportunity to present their cases, written reasons for the decisions, and a right of appeal. In support of the institutional mandate to discipline students, including through expulsion where warranted, the Respondents rely on J N N (a minor) suing through next friend v Naisula Holdings Limited t/a N School [2018] KEHC 8304 (KLR), where the Court recognised the authority and responsibility of educational institutions to maintain discipline and instil ethical values.
29.The Respondents submit that the Petition is premature for failure to exhaust internal dispute resolution mechanisms. They aver that the Petitioners were duly informed of their right to appeal to the Vice-Chancellor and that the appellate process was underway at the time the Petition was filed. They deny any allegation of contempt of court, asserting that the orders issued on 30th October 2025 did not prohibit the conduct of by-elections, and maintain that the University acted within its lawful authority in safeguarding its institutional processes. In conclusion, the Respondents contend that the disciplinary action taken was lawful, procedurally fair, and proportionate, that no constitutional rights of the Petitioners were violated, and that the Petition is devoid of merit and ought to be dismissed with costs.
Analysis and Determination
30.From the pleadings, affidavits, submissions, and the record before Court, the following issues arise for determination:i.Whether the disciplinary proceedings instituted against the Petitioners were unreasonable, stale, or actuated by mala fides arising from alleged delay relating to the 2024 Student Council elections.ii.Whether the disciplinary process was void ab initio on account of alleged bias, dating of the expulsion letters demonstrates predetermination, improper constitution of the disciplinary committee, and violation of the nemo judex in causa sua principle.iii.Whether the Petitioners’ rights under Articles 31, 47, and 50 of the Constitution were violated.iv.Whether the evidence relied upon by the Respondents was unlawfully obtained, withheld, or procured through coercion.v.Whether the participation of decision-makers through virtual means vitiated the proceedings.vi.Whether the Petition is barred by the doctrine of exhaustion of internal remedies.vii.Whether the Petitioners are entitled to the reliefs sought.
Alleged Staleness, Delay, and Mala Fides Relating to the 2024 Elections
31.The gravamen of the Petitioners’ case is that the Respondents acted unreasonably and in bad faith by resurrecting allegations relating to the 2024 Student Council elections in 2025, after the 1st Petitioner had participated in the 2025 elections.
32.This Court finds no legal or constitutional basis for that proposition.
33.First, the Petitioners did not identify any statutory, regulatory, or contractual limitation period barring the University from investigating alleged electoral malpractice after the passage of time. In the absence of an express limitation, delay alone does not invalidate administrative action unless prejudice is demonstrated. This position is consistent with the holding of the High Court in Egal v Director General of Kenya Citizens and Foreign National Services & 2 others (Petition E127 of 2023) [2024] KEHC 183, where the Court held that in determining whether administrative delay is unreasonable, the inquiry is not confined to the length of the delay but must extend to whether the delay has occasioned demonstrable prejudice to the affected party. The Court emphasised that delay, without more, does not render administrative action unlawful, and that invalidity arises only where the delay is shown to be inordinate and to have caused substantive prejudice. In the present case, no evidence was placed before the Court to show that the passage of time prejudiced the Petitioners’ rights or impaired their ability to respond to the allegations under investigation. Accordingly, the mere lapse of time, in the absence of demonstrated prejudice, cannot vitiate the impugned administrative process.
34.Beyond bare allegations, the Petitioners did not demonstrate what specific prejudice they suffered as a result of the timing of the investigations. They participated in the hearings, submitted written statements, and responded to the allegations substantively.
35.Secondly, clearance to contest an election does not amount to immunity from subsequent disciplinary proceedings. Vetting for eligibility is an administrative assessment undertaken on the basis of information available at the time; it neither confers a vested right nor extinguishes the University’s disciplinary jurisdiction should fresh complaints or material subsequently arise. Eligibility clearance is therefore provisional in nature and remains subject to the institution’s governing statutes, regulations, and disciplinary framework.
36.In Hirbo v University of Nairobi Independent Electoral Commission & another, where the court held that “pendency of disciplinary proceedings alone cannot be a reason for her disqualification from vying for the position under the relevant provisions of the UNSA Constitution.” That dictum underscores the converse principle equally applicable in the present case, that an administrative clearance to contest an election does not insulate a candidate from lawful disciplinary processes, nor does it bar the institution from revisiting eligibility where subsequent developments legitimately call such eligibility into question.
37.Accordingly, the allegation that the proceedings were unreasonable, stale, or actuated by mala fides is unproven and fails.
Alleged Bias, Predetermination, Nemo Judex in Causa Sua and Dating of Expulsion Letters
38.The Petitioners contended that the disciplinary proceedings were void ab initio on account of bias, conflict of interest, and an alleged violation of the nemo judex in causa sua principle, arising from the participation of senior University officers in the investigation and determination of the disciplinary charges. These allegations require the Court to interrogate the constitutional content of impartiality in administrative decision making and to distinguish between lawful institutional involvement and impermissible bias.
39.The principle of nemo judex in causa sua, which literally translates to the rule that no person should be a judge in his or her own cause, is a foundational tenet of natural justice and is firmly embedded in Kenya’s constitutional architecture. It is implicit in Article 47 of the Constitution, which guarantees lawful, reasonable, and procedurally fair administrative action, and expressly captured in Article 50(1), which secures the right to a fair hearing before an independent and impartial tribunal. Its purpose is to ensure that decision-makers approach disputes with an open mind, free from personal interest, animosity, or pre-commitment to a particular outcome.
40.Kenyan jurisprudence has consistently held that allegations of bias must be evaluated objectively, rather than through the subjective perceptions of the aggrieved party. The controlling test is whether a reasonable, objective, and properly informed person, apprised of all relevant facts, would conclude that there exists a real likelihood or possibility of bias. In this regard, it is well established that mere suspicion, conjecture, or unfounded apprehension is insufficient to impeach an administrative decision as was affirmed in Geoffrey Mwangi Muriuki v Republic [2020] KEHC 5382 (KLR)).
41.Bias in law is not presumed. It must be demonstrated through cogent evidence showing that the decision-maker had a personal interest in the outcome, whether pecuniary or proprietary, bore personal hostility or animus towards the affected party, or had so committed themselves to a particular outcome that the hearing was rendered a formality. As held by the Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, “the mere fact that a decision-maker had prior knowledge of a matter or performed a statutory role does not, without more, amount to bias”.
42.In administrative and disciplinary processes, particularly within educational institutions, it is neither unusual nor unlawful for certain officials to perform multiple roles, provided that such roles are contemplated by the governing legal or regulatory framework and are exercised fairly. The Court of Appeal in Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR recognised that the same body may investigate, charge, and determine a matter, and that such an arrangement does not, by itself, offend the rules of natural justice. Likewise, in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, the Court emphasised that the rules of natural justice are flexible and context-sensitive (supra).
43.Applying these principles, the Court finds that the Petitioners did not tender any evidence demonstrating that any member of the disciplinary committee had a personal or pecuniary interest in the outcome, nor was there proof of personal animosity or hostility. The participation of senior officers, including the Dean of Students, was expressly contemplated under the University’s governance instruments, and there is no evidence that their involvement exceeded or departed from the mandate conferred upon them. Institutional authority lawfully exercised cannot, without more, be equated with bias.
44.The Petitioners further alleged predetermination on the basis that certain expulsion letters were dated earlier than the scheduled hearing dates. Predetermination is a serious allegation that requires clear and cogent evidence showing that the decision-maker had closed their mind to persuasion and was unwilling to consider the affected party’s representations.
45.As recognized in law, predetermination is a grave allegation that must be established by clear and cogent evidence. It cannot be inferred from speculation, surmise, or the mere existence of an administrative irregularity. This principle was made explicit by the Supreme Court in Republic v Independent Electoral and Boundaries Commission ex parte NASA [2017] eKLR, where the Court held that
46.From the record, it is evident that while the expulsion letter for the 4th Petitioner bears a date preceding the hearing date, the contemporaneous documentary record tells a coherent story. The minutes of the disciplinary committee confirm that the hearing was conducted on 11th September 2025, deliberations followed, and the minutes were signed on 12th September 2025. The timing and substance of the minutes align with the hearing schedule communicated to the Petitioner, demonstrating that the disciplinary committee considered the matter after hearing the Petitioner.
47.Viewed holistically, the discrepancy in the dating of the expulsion letter is more reasonably explained as an administrative or clerical anomaly than evidence of a pre-decided outcome. Administrative processes, particularly those involving multiple documents and offices, are not immune from dating or typographical errors. Such errors, without more, cannot invalidate an otherwise lawful and fair process.
48.In the present case, there is no evidence that the disciplinary committee reached its decision before the hearing or was unwilling to consider the 4th Petitioner’s representations. On the contrary, the minutes demonstrate that the hearing took place as scheduled and that a decision followed thereafter. The Petitioners tendered no material showing that the outcome was fixed in advance or that the hearing was a mere formality.
49.Absent of such proof, this Court is unable to conclude that the disciplinary process was tainted by predetermination. The allegation rests solely on an isolated dating discrepancy, which, in the context of the full record, is insufficient to meet the legal threshold required to invalidate the proceedings. This ground of challenge therefore fails.
50.The objective observer, properly informed of all relevant facts, would not conclude that there was a real possibility of bias or that the proceedings were predetermined. The allegations advanced by the Petitioners amount to dissatisfaction with the outcome rather than proof of constitutional infirmity in the process. As observed in Kaplana Rawal v Judicial Service Commission & 2 others [2016] eKLR, perceptions of bias must be reasonable and grounded in established facts, not speculation or conjecture.
51.In the result, the Petitioners have failed to discharge the burden of proof required to invalidate the disciplinary process on the grounds of bias, conflict of interest, or violation of the nemo judex in causa sua principle. The disciplinary proceedings were therefore not void ab initio.
Articles 47 and 50: Fair Administrative Action and Fair Hearing
52.The Petitioners invoked Articles 47 and 50 of the Constitution, contending that the disciplinary proceedings violated their right to fair administrative action and to a fair hearing. There is no contest that student disciplinary proceedings conducted by a university constitute administrative action within the meaning of Article 47, nor that such proceedings must conform to the minimum guarantees of fairness embodied in both Article 47 and Article 50(1). The central question for determination is therefore not the applicability of these provisions, but whether the constitutional threshold of fairness was met in the circumstances of this case.
53.Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair, while Article 47(2) entitles a person whose rights or fundamental freedoms have been or are likely to be adversely affected by administrative action to be given written reasons for that action.
54.Article 50(1), on the other hand, guarantees the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before an independent and impartial tribunal or body. Although Article 50 is most commonly associated with judicial proceedings, Kenyan courts have consistently held that its core elements of fairness, particularly the right to be heard, apply with necessary adaptations to administrative and disciplinary processes.
55.From a constitutional perspective, the test under Articles 47 and 50 is not one of procedural perfection, nor does it import the full rigour of a criminal trial. The applicable inquiry is whether, viewed holistically, the process afforded the affected person a reasonable and meaningful opportunity to know the case against them and to respond to it. This position was firmly articulated by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] eKLR, where the Court held that “a fair hearing does not mean a perfect hearing. It means a reasonable opportunity to be heard.” The Court further underscored that fairness is context-specific and must be assessed in light of the nature of the decision, the statutory or regulatory framework, and the practical realities of the administrative setting.
56.The record before this Court demonstrates substantial compliance with these constitutional requirements. The Petitioners were served with letters dated 25th August 2025 inviting them to attend disciplinary hearings. Those letters clearly set out the allegations against each Petitioner, specified the dates of the respective hearings, and informed them of their right to submit written statements and to call witnesses in their defence. The hearing dates were not sprung upon the Petitioners without notice. The 1st and 4th Petitioners were scheduled to appear on 11th September 2025, while the 2nd and 3rd Petitioners were heard on 1st September 2025. This notice period was reasonable in the circumstances and afforded the Petitioners adequate time to prepare their responses.
57.It is also not in dispute that the Petitioners participated in the disciplinary process. They submitted written statements, appeared before the disciplinary committee, and responded to the allegations levelled against them. There is no evidence on record that any Petitioner was denied an opportunity to speak, to clarify their position, or to present relevant material. That the disciplinary committee ultimately reached conclusions adverse to the Petitioners does not, without more, translate into a violation of Articles 47 or 50. As has been repeatedly stated by the courts, fairness of process is distinct from correctness of outcome.
58.Crucially, the burden of demonstrating a violation of the right to fair administrative action or a fair hearing rests with the party alleging the violation. It is not for the Respondents to prove that a fair hearing occurred. Rather, it is incumbent upon the Petitioners to place before the Court evidence showing, on a balance of probabilities, that they were denied the procedural safeguards guaranteed by the Constitution. This principle flows from the general rule on the burden of proof under sections 107 and 108 of the Evidence Act and has been affirmed in constitutional litigation.
59.In Anarita Karimi Njeru v Republic [1979] eKLR, the Court emphasised that a party alleging a constitutional violation must set out with reasonable precision the manner in which the right was infringed. Bare assertions of unfairness, unsupported by specific facts, are insufficient.
60.In the present case, the Petitioners made generalized allegations that the process was unfair but failed to demonstrate, with specificity, how the notice was inadequate, how the opportunity to be heard was illusory, or how the procedure adopted fell below constitutional standards. They did not show that they were ambushed with allegations, denied time to prepare, prevented from presenting their case, or excluded from the hearings. Nor did they demonstrate that reasons for the decisions were withheld. In the absence of such proof, the Court is unable to conclude that Articles 47 or 50 were violated.
61.This Court is therefore satisfied that, viewed through the lens of constitutional law, the disciplinary proceedings met the threshold of procedural fairness required under Articles 47 and 50. The Petitioners were accorded a reasonable opportunity to be heard, and the administrative process was lawful, reasonable, and procedurally fair. The fact that the outcome was adverse to them does not convert a constitutionally compliant process into an unconstitutional one. Accordingly, this ground of the Petition fails.
Alleged Denial of Evidence and Coercion
62.The Petitioners further alleged that they were denied access to the evidence relied upon by the disciplinary committee and that they were coerced into making incriminating statements. These allegations, if proved, would undoubtedly implicate the constitutional guarantees of fair administrative action and a fair hearing. However, constitutional adjudication is not triggered by allegation alone, it is anchored on proof.
63.Sections 107 and 109 of the Evidence Act codify the fundamental principle on the burden of proof. Section 107(1) provides that “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.” Section 107(2) further states that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. Complementing this provision, section 109 stipulates that “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.” The combined effect of these provisions is that a party who alleges a violation bears the legal and evidential burden of establishing, on a balance of probabilities, the factual foundation upon which the alleged violation rests.
64.This principle applies with equal force in constitutional litigation. While the Constitution is a living instrument and rights are to be interpreted generously, it does not dispense with the requirement of proof. It is not sufficient for a litigant to merely assert that a right has been violated; the petitioner must demonstrate, with reasonable precision, how the right was violated, by whom, and through what specific acts or omissions. The Court of Appeal in Anarita Karimi supra laid down this foundational principle when it held that a party seeking redress for violation of constitutional rights must set out with reasonable precision the manner in which the alleged violation occurred. This position has been consistently reaffirmed in subsequent decisions, including Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, where the Court emphasised that constitutional claims must be pleaded and proved with sufficient particularity.
65.In the present case, the Petitioners alleged that they were denied access to evidence, but did not place before this Court any documentary proof demonstrating that formal requests for disclosure were made and subsequently refused. No correspondence, emails, or written applications seeking access to the alleged evidence were produced. More significantly, the Petitioners did not challenge the substance, authenticity, or reliability of the evidence that was relied upon by the disciplinary committee. They did not demonstrate what specific material was withheld, how that material was exculpatory, or how its alleged non-disclosure impaired their ability to mount an effective defence. In the absence of such particulars, the allegation remains a bare assertion.
66.In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 4 others (Presidential Petition No. 1 of 2017), the Supreme Court of Kenya restated the longstanding common law principle of onus probandi:
67.This dictum applies squarely to the Petitioners’ claims in this regard. Constitutional violations, however grave they may sound, must be established by evidence, not conjecture or inference.
68.The allegation of coercion similarly collapses under scrutiny. Coercion, whether physical, psychological, or economic, is a serious charge that requires clear and cogent proof. Ordinarily, such proof may take the form of evidence of threats, intimidation, contemporaneous complaints lodged with authorities, or subsequent retraction of statements made under duress. In this case, none of these indicia were present. The Petitioners did not tender evidence of threats made against them, did not show that they raised complaints of coercion at or around the time the statements were recorded, and did not demonstrate that they sought to retract or qualify the statements on the basis that they were involuntarily made. The statements, on the face of the record, were signed and submitted in the ordinary course of the disciplinary process.
69.From a constitutional standpoint, the Court must also be satisfied that any alleged violation is attributable to the Respondents. It is not enough to allege that a right was infringed. There must be a demonstrable nexus between the impugned conduct and the Respondent’s actions or omissions. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR underscored that constitutional liability arises where it is shown that a State organ or person exercising public authority is responsible for the alleged infringement. In the present matter, the Petitioners did not establish how the alleged denial of evidence or coercion was occasioned by the Respondents, as opposed to being a mere perception or inference on their part.
70.In the final analysis, this Court finds that the Petitioners failed to discharge the burden placed upon them by sections 107 and 109 of the Evidence Act and by settled constitutional jurisprudence. Their claims of denial of evidence and coercion were not supported by specific facts, documentary proof, or credible evidence demonstrating prejudice or attribution to the Respondents. As such, the allegations remain unproven, and this ground of the Petition consequently fails.
Virtual Participation of Decision-Makers
71.It is important to restate, at the outset, that university disciplinary proceedings are not criminal trials and ought not to be assessed through the prism of the criminal justice system. The Constitution does not require administrative bodies, including universities, to replicate the formalism, technicality, or evidentiary rigidity of courts of law. What is required is fairness, not forensic perfection.
72.The applicable standard of proof in disciplinary proceedings is the balance of probabilities, not proof beyond reasonable doubt. This position has been consistently affirmed by Kenyan courts. In J N N (a minor) v Naisula Holdings Limited t/a N School [2018] eKLR, the High Court stated in clear terms that:
73.This distinction is constitutionally significant. Articles 47 and 50 demand procedural fairness, not the transposition of criminal safeguards into administrative processes. Accordingly, evidentiary rules such as strict exclusion of hearsay, formal cross-examination, or proof to a criminal standard are neither required nor practical in an educational disciplinary setting.
74.Measured against this legal framework, the Respondents demonstrably complied with the governing principles of natural justice. The allegations against the Petitioners were clearly particularized, the Petitioners were notified in advance and afforded an opportunity to be heard; written statements were received; reasons for the decisions reached were communicated; and the sanctions imposed were expressly provided for under the Student Handbook. Importantly, there is no evidence that the decisions were based solely, or at all, on anonymous, secret, or undisclosed material. The Petitioners did not demonstrate that any evidence relied upon was incapable of supporting the conclusions reached on a balance of probabilities.
75.The Petitioners’ attempt to impeach the proceedings on the basis of evidentiary technicalities therefore reflects a fundamental misapprehension of the nature of disciplinary proceedings. As the Court of Appeal observed in Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR, administrative bodies are not required to adopt the trappings of a court of law, provided that the affected party is treated fairly.
76.The Petitioners also challenged the participation of a decision-maker through virtual means, contending that such participation vitiated the proceedings. This argument finds no support in the Constitution or in law. Article 50 does not prescribe the physical presence of decision-makers, nor does it outlaw the use of technology in decision-making processes. Indeed, courts themselves, including this Court, routinely conduct hearings, mentions, and even substantive proceedings through virtual platforms.
77.To hold that virtual participation renders proceedings unconstitutional would be to invalidate a vast body of judicial and administrative action conducted in the post-COVID-19 era, an outcome that would be both impractical and legally unsustainable. Fairness is not measured by physical proximity, but by the opportunity to participate meaningfully and to be heard.
78.In the absence of any demonstrated prejudice arising from the virtual participation of a decision-maker, this Court finds that the Petitioners’ objection is devoid of merit. The disciplinary process met the constitutional threshold of fairness, and neither the evidentiary approach adopted nor the mode of participation undermined its legality.
Doctrine of Exhaustion of Remedies
79.The Petition is further undermined by the doctrine of exhaustion of administrative remedies, which is now firmly entrenched in both statute and judicial precedent. The doctrine is founded on the principle that where the law provides an internal mechanism for dispute resolution, that mechanism ought to be invoked and exhausted before recourse is had to the courts. This principle serves important constitutional and institutional purposes: it respects the autonomy of administrative bodies, promotes efficiency and expertise in dispute resolution, prevents premature judicial intervention, and preserves the courts as fora of last resort.
80.The statutory anchorage of the doctrine is found in section 9(2) of the Fair Administrative Action Act, which provides in mandatory terms that a court shall not review an administrative action unless the internal mechanisms for appeal or review provided for under any written law have first been exhausted.
81.The language of the provision is deliberate and peremptory, signaling Parliament’s intention to limit judicial intervention where alternative and adequate remedies exist. While section 9(4) allows the Court, in exceptional circumstances, to exempt a party from the obligation to exhaust internal remedies, such exemption is not automatic and must be justified by cogent reasons.
82.The Court of Appeal in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR articulated the rationale for the doctrine in emphatic terms when it held that:
83.This position has been consistently reaffirmed in subsequent jurisprudence, including by the Supreme Court in United Millers Limited v Kenya Bureau of Standards [2021] eKLR, where the Court emphasised that statutory dispute resolution mechanisms must be respected unless exceptional circumstances are demonstrated.
84.In the present case, it is not disputed that the Petitioners were expressly notified of their right to appeal the disciplinary decision to the Vice-Chancellor. The appellate mechanism was therefore not speculative or illusory. It was a clear, accessible, and structured avenue for redress provided under the University’s governance framework. The Petitioners nevertheless elected to approach this Court before the conclusion of that internal process. In doing so, they effectively invited the Court to assume a supervisory role prematurely, contrary to both statute and established precedent.
85.The Petitioners sought to justify their bypassing of the prescribed internal dispute resolution mechanism on grounds of alleged bias, unfairness, and futility. However, mere allegations, without more, do not rise to the level of exceptional circumstances contemplated in law. As was observed in Ndiara Enterprises Ltd v Nairobi City County Government [2018] eKLR, the Court upheld the principle that where a statute provides an internal mechanism for redress, a party must exhaust that process unless exceptional circumstances are demonstrated, and that judicial review is inappropriate where such remedies remain available but unexhausted. The decision underscores that speculative apprehension as to the likely outcome of an internal process does not, of itself, constitute an exceptional circumstance warranting departure from the exhaustion requirement. A litigant must place before the Court cogent evidence demonstrating that the internal remedy is unavailable, ineffective, or incapable of affording adequate redress. No such evidence was tendered in the present case.
86.Moreover, the appellate process before the Vice-Chancellor was particularly suited to address many of the grievances raised by the Petitioners, including alleged procedural irregularities, proportionality of sanctions, and factual disputes. To bypass that process was to deny the University the opportunity to correct any errors internally and to deprive the Court of the benefit of a fully ventilated record. This runs counter to the principle of institutional comity that underpins judicial review and constitutional supervision of administrative action.
87.In the absence of demonstrated exceptional circumstances within the meaning of section 9(4) of the Fair Administrative Action Act, this Court has no basis upon which to exempt the Petitioners from the obligation to exhaust internal remedies. The Petition was therefore prematurely filed and is, on this ground alone, incompetent. When this finding is considered alongside the substantive failure of the constitutional claims advanced, it reinforces the conclusion that the Petition cannot succeed.
Disposition
88.Having carefully considered the Petition, the affidavits on record, the rival submissions of the parties, and the applicable constitutional, statutory, and jurisprudential framework, this Court is satisfied that the Petition is devoid of merit.
89.The Court finds, first, that the disciplinary proceedings conducted by the Respondents were undertaken within the scope of their lawful mandate, were reasonable in the circumstances, and complied with the minimum constitutional and statutory requirements of procedural fairness. The Petitioners were duly notified of the allegations against them, accorded an opportunity to be heard, and furnished with reasons for the decisions reached.
90.Secondly, the Court finds that the Petitioners failed to establish any violation of their rights under Articles 31, 47, or 50 of the Constitution. The allegations of infringement were advanced in general and conclusory terms and were not supported by evidence demonstrating how the impugned actions fell short of constitutional standards.
91.Thirdly, the claims of bias, coercion, denial of access to evidence, and predetermination were not substantiated. No cogent or credible evidence was placed before the Court to demonstrate a real likelihood of bias, involuntary statements, procedural ambush, or a closed mind on the part of the decision-makers. The mere fact that the outcome of the disciplinary process was adverse to the Petitioners does not, in law, translate into constitutional infirmity.
92.Fourthly, the Court finds that the Petitioners failed to discharge the burden of proof placed upon them by law. As the parties alleging constitutional violations, it was incumbent upon them to establish, on a balance of probabilities, the factual and legal basis of their claims. They did not do so.
93.Finally, and in any event, the Court finds that the Petition was prematurely filed. The Petitioners were notified of, and had access to, an internal appellate mechanism which they failed to exhaust before invoking the jurisdiction of this Court. No exceptional circumstances were demonstrated to justify bypassing that mechanism, rendering the Petition incompetent under section 9 of the Fair Administrative Action Act.
94.In the result, the Petition dated 24th October 2025 is hereby dismissed in its entirety. Each party shall bear its own costs.
Orders
95.Accordingly, the Court makes the following orders:1.The Petition dated 24th October 2025 is hereby dismissed in its entirety.2.Each party shall bear its own costs.Orders accordinglyFile closed accordingly
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JANUARY 2026. BAHATI MWAMUYE MBSJUDGEIn the presence of: -Counsel for the Petitioners – Mr. John MainaCounsel for the Respondents – Ms. Rpselyne MwanzaCourt Assistant – Ms. Lwambia