slide 1

TITLE: VITABIOTICS LIMITED & ANOTHER V RIPPLES PHARMACEUTICALS LIMITED & ANOTHER (2015) eKLR
VENUE: Milimani law courts
CASE ID: Civil case No. 118 of 2015
AUTHORING JUDGE: Olga Sawe J.
DATE OF DECISION: 9th November 2015
PLAINTIFF: Vitabiotics Limited and Harley’s Limited
DEFENDANTS: Ripples Pharmaceuticals Limited and Metro Pharmaceuticals Limited
KEYWORDS: Trademark Infringement

FACTS:
It is the further assertion of the 1st Plaintiff/Applicant's Director he was alerted by a Director of the 2nd Plaintiff to the effect that it had come to their knowledge that the Defendants were selling products bearing marks similar or confusingly similar to the vitabiotics products manufactured by the 1st Plaintiff/Applicant at various outlets within the country. Having satisfied itself that the foregoing actions by the Defendants amount to an infringement of the 1st Plaintiff/Applicant's rights aforesaid products thereby exposing them to risk as to liability that might occur to the public, authority was given by the 1st Plaintiff/Applicant for the 2nd Plaintiff to institute this suit for approriate relief, as the Defendants have no authority from them to deal with the products in question.

ISSUES:
1. Whether the Defendant’s Replying Affidavit was defective?
2. Whether or not the Plaintiff had locus standi to institute the proceedings herein?
3. If so, was the Plaintiff entitled to the orders it had sought in its application?

CASES CITED:
1. Giella v Cassman Brown and Company ltd. (1973) EA 358
2. Mrao v First American Bank (k) Ltd
3. Kanorero River Farm Ltd and 3 others v National Bank of Kenya Ltd (2002) 2 KLR 207
4. Waithaka v Industrial and Commercial Development Corporation (2001) KLR 374
5. Joseph Siro Mosioma v HFCK and 3 others Nairobi HCCC NO. 265 0f 2007 (UR).
6. Suleiman v Amboseli Resort ltd (2004) 2 KLR 589.

RULING:
1. The Application before the Court is the 1st Plaintiff’s Notice of Motion dated 22nd July 2015 and filed on 23rd July 2015. It is expressed to be brought under the provisions of Sections 1, 1A, 1B, 3, 3A, 63(c) & (e) of the Civil Procedure Act and Order 40, Rules 1, 2, 3, 4 & 10 and Order 51 Rule 1 of the Civil Procedure Rules.
2. The 1st Plaintiff sought for the following orders, some of which are already spent:-
Spent
Spent
3. The Defendant whether by themselves, agents, servants or otherwise howsoever be restrained from importing, packaging, supplying, selling or offering for sale, distributing and/or passing off or otherwise dealing with vitabiotics products owned by the First Plaintiff/Applicant herein, Vitabiotics limited, as the applicant has exclusive rights especially as the manufacturer thereof over the vitabiotics products in question pending the hearing and determination of this suit.
4. The costs of this application be provided for.
5. The application is based on the several grounds set out therein and is supported by the Affidavit of the Applicant’s Director, HARDIP SINGH sworn on 22nd July, 2015. The 1st Plaintiff/Applicant also relied on its written submissions together with its List of Authorities filed on 14th September, 2015 in support of the application.
6. The 1st Plaintiff/Applicant’s director averred that the Applicant is the manufacturer of the vitabiotics products in question and the duly registered trademark owner of thereof in the United Kingdom. He further averred that the Applicant is in the process of finalizing the registration for the trademark in the Republic of Kenya. The 1st Plaintiff/Applicant attached a copy of their said application as HS 1. He confirmed that the 2nd Plaintiff has otherwise been their exclusive agent, importer and distributor of the vitabiotics products in question having been appointed as such from 23rd May, 2013 to date.
7. It is the further assertion of the 1st Plaintiff/Applicant's Director he was alerted by a Director of the 2nd Plaintiff to the effect that it had come to their knowledge that the Defendants were selling products bearing marks similar or confusingly similar to the vitabiotics products manufactured by the 1st Plaintiff/Applicant at various outlets within the country. Having satisfied itself that the foregoing actions by the Defendants amount to an infringement of the 1st Plaintiff/Applicant's rights aforesaid products thereby exposing them to risk as to liability that might occur to the public, authority was given by the 1st Plaintiff/Applicant for the 2nd Plaintiff to institute this suit for approriate relief, as the Defendants have no authority from them to deal with the products in question.
8. The 1st Plaintiff/Applicant further averred that its decision to be joined in the current suit was informed by the Ruling of this Court delivered on 28th May, 2015 concerning the application for injunction that was filed by the 2nd Plaintiff against the Defendants/Respondents. In the said Ruling, the Court indicated that the 2nd Plaintiff could not purport to speak for the 1st Plaintiff/Applicant herein who, as the manufacturer stood to incur greater liability. It was on that basis the 1st Plaintiff/Applicant caused itself to be enjoined to these proceedings with a view of an effectual determination of the dispute between the parties.
9. It is further the case of the 1st Plaintiff/Applicant’s that, following the aforesaid Ruling and the resultant dismissal of the 2nd Plaintiff's application for injunction, the Defendants have continued to deal in its products notwithstanding the lack of authority so to do. Thus, the 1st Plaintiff/Applicant is apprehensive that the Defendants will continue with their aforesaid illegal acts and dealership in the vitabiotics products unless restrained by an order of the court.
10. In opposition to the application, the Defendants filed the Grounds of Opposition dated 28 July, 2015. The Defendants also filed their written submissions together with their list of authorities both dated 15 September, 2015 and filed on 16 September, 2015.
11. In a nutshell, it is the Defendants’ case that the current application is res judicata in so far as it raises issues that were raised or ought to have been raised in the Plaintiff’s application of 12th March, 2015. It is further the Defendants’ case that the application lacks any legal foundation for the reason that it seeks to restrain them from selling that which does not belong to the Plaintiffs. The Defendants also contend that the application is an abuse of the Court Process and therefore ought to be dismissed with costs in the interests of fairness and justice.Having considered the application, the grounds of opposition and the written submissions as well as the authorities cited by Counsel for both parties, the following are the main issues for determination:
a) Whether the current application is indeed res judicata as posited by the Defendants/Respondents; and
b) Whether the Applicant is entitled to the restraining orders against the Defendant with regard to the vitabiotic products.
c) Whether the current application is res judicata;

12. The law on res judicata is provided for under Section 7 of the Civil Procedure Act which stipulates as follows:
13. “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” (Emphasis supplied)

14. The Black’s Law Dictionary defines res judicata it as:

“...a thing adjudicated; an issue that has been definitely settled by judicial decision...”

15. In the Defendants’ submission, the 2nd Plaintiff being an agent of the 1st Plaintiff/Applicant, brought the application dated 12th March 2015 at the behest of and on instructions of the 1st Plaintiff/Applicant. That once the agent has come to court and made an application, which has been decided and dismissed on its merits, it is not open to the principal to make the same application to court. The Defendants’ submission is based on the doctrine that the principal is bound by the actions of the agent and therefore, the 2nd Plaintiff’s application having been heard and dismissed, it is not open for the 1st Plaintiff/Applicant to make a similar application. In response, the Applicant submitted that the doctrine of res judicata would not apply in the present circumstances granted that the 1st Plaintiff/Applicant was not a party to the previous application and that the circumstances of the case had changed as the Applicant had stepped in as the manufacturer of the vitabiotics products.
16. Upon a careful consideration of this issue and from the standpoint of the Section 7 of the Civil Procedure Act aforementioned it is apparent that first and foremost the 1st Plaintiff/Applicant herein was not a party to the previous application. It could very well be argued, as did Counsel for the Defendants that the parties to the first application were litigating "under the same title" on the basis of Principal/Agent principle. However, it is evident that the court, in its ruling dated 28th May, 2015 came to the conclusion that the Plaintiff was not entitled to the orders sought on the ground that it was not the owner of trademarks it was seeking to protect. At paragraphs 27 to 34 of the said Ruling the court dealt with the pertinent question of the 2nd Plaintiff's locus standi to file the first application as a preliminary issue and concluded that:
17. "...Having found that the Plaintiff had no locus standi to institute the proceedings herein, it could not therefore purport to restrain the Defendants from dealing with products in the manner it had set out in Prayers (4) and (5) of its application for the reason that it was not the manufacturer of the said products and it could not claim the trademarks..."

18. In the circumstances, the court did not have occasion to consider the issues in dispute in the instant application on the merits. Hence, the Defendants’ res judicata argument on the basis of principal-agent relationship is off the mark.

19. Whether the Applicant is entitled to the restraining orders against the Defendants with regard to the vitabiotic products.

20. The restraining orders sought against the Defendants by the Applicant are in the nature of an injunction. It is now well settled that for an injunction to be granted, the Court will consider the basic principles set out in the renowned case of Giella Vs Cassman Brown and Company Limited [1973] E.A 358. The principles are that the applicant must show a prima facie case with a probability of success; secondly that he stands to suffer irreparable harm which would not adequately be compensated by an award of damages; and thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.
21. In the present case, has the Applicant established a prima facie case with a probability of success? A prima facie case was defined by the Court of Appeal in the case of Mrao –vs- First American Bank (K) Ltd to be one in which an applicant establishes that his legal right has been infringed by a Defendant thereby calling for a rebuttal by the latter.
22. The 1st Plaintiff/Applicant herein avers that it is the manufacturer of the vitabiotics products and the duly registered trade mark owner of the said products in the United Kingdom; and further, that they are in the process of completing registration of the trademark in Kenya. The Defendants do not appear to dispute the 1st Plaintiff/Applicant’s ownership over the said products. In their Replying affidavit sworn on 13th April 2015 in response to the previous injunction application by the 2nd Plaintiff, the Defendants averred thus at paragraphs 4(vi) of the Replying Affidavit sworn by Dr. Premal A. Sangani:
23. "...the Plaintiff has not shown that the products distributed by the Defendants infringe the trademarks belonging to Vitabiotics Ltd. The products sold by the Defendants are genuine Vitabiotics products; they have not been repackaged and are from the same country and manufacturer thus there is no question of the products bearing marks similar or confusingly similar to the trademarks belonging to Vitabiotics Ltd..."

24. They further averred that Vitabiotics Limited, the 1st Plaintiff/Applicant herein, operated an online platform through which anyone could order for their products and have the same delivered internationally. In a synopsis, the Defendants admit that the 1st Plaintiff/Applicant is the owner and manufacturer of the vitabiotics products and all they do is to sell the same. In the premises, the issue of passing off or trademark infringement may not arise as the Defendants have not claimed ownership of the products as manufacturers; but then again, these are matters than can only be effectually dealt with at the hearing.

25. The 1st Plaintiff/Applicant however contends that the Defendants have no authority from it to deal with the vitabiotics products and that their continued dealership in disregard of the its exclusive rights and authority over the said products is in breach of its rights as a manufacturer. The 1st Plaintiff/Applicant recognizes only the 2nd Plaintiff as its exclusive agent, importer and distributor of the vitabiotics products in Kenya, having been appointed as such from 23rd May, 2013 to date.
26. It is not in dispute that, presently, there is no dealership agreement between the Applicant and the Defendants with regard to the sale and distribution of the vitabiotics products. The Defendants case, however, is that the said products are available in the international markets and can be shipped from the said markets for sale and distribution. It is also their submission that they are licenced wholesale dealers and have the authority under the Kenyan law to procure and supply any vitabiotics from appointed agents. The Defendants also submitted that the orders sought by the Applicant were a hindrance to competition contrary to section 21 of the Competition Act.
27. On the issue of the vitabiotics products being available in the international market, evidence is yet to be tendered as to what arrangements, if any, the Applicant may have with the said international markets to sell and distribute its vitabiotics products. However, what is clear to the Court is that the Applicant has not authorised the Defendants to import, sell or distribute the same. The Defendants may be licenced wholesale dealers as they claim but the contention of the 1st Plaintiff/Applicant herein is that authority to procure and supply the vitabiotics products can only come from the owner and manufacturer of the said products. There is evidence before the Court that, to that end, the Applicant appointed the 2nd Plaintiff as their exclusive distributor of the vitabiotics products which application was noted and accepted by the Pharmacy and Poisons Board vide its letter dated 14th June, 2013. Therefore, prima facie, a good case has been made out by the 1st Plaintiff/Applicant for the grant of the injunctive orders sought. Any arguments to the contrary, such as whether the arrangement between the Plaintiffs would amount to an infringement of Section 21 of the Competition Act, are matters that can only be canvassed and determined at the trial of this matter.
28. In view of the foregoing, the Court is satisfied that the 1st Plaintiff/Applicant has established a prima facie case by demonstrating to the Court that it is the manufacturer of the subject products and that Defendants have no authority from them to import and distribute the vitabiotics products, there being no distributorship agreement between the parties.
29. As to whether the 1st Plaintiff risks suffering irreparable harm, it was averred that the medicaments are sensitive products requiring proper handling and that in the event of the need to exercise right of recall, it is the manufacturer who runs the risk of being held liable for any harm that may occur to the general public. That is serious enough to warrant the granting of the orders sought. Besides, authorities abound that the mere fact of adequacy of damages does not oust the Court’s discretion to grant an interlocutory injunction. In Kanorero River Farm Ltd and 3 others –vs- National Bank of Kenya Ltd (2002) 2 KLR 207 for instance, Ringera J (as he then was ) held at page 216:-
30. “I would for those reasons alone accede to the Plaintiff’s prayer for interlocutory injunction in respect of the two properties on the grounds that the 1st and 2nd Plaintiffs have a very strong prima facie case with a probability of success. I would not be deterred by any argument that the National Bank could compensate them in damages if it failed at the trial. In my opinion, no party should be allowed to ride roughshod on the statutory rights of another simply because it could pay damages.”

31. Again in Waithaka –vs- Industrial and Commercial Development Corporation (2001) KLR 374 Ringera J (as he then was) once again delivered himself thus at page 381:-

32. “As regards damages, I must say that in my understanding of the law, it is not an inexorable rule that where damages maybe an appropriate remedy, an interlocutory injunction should never issue. If that were the rule, the law would unduly lean in favour of those rich enough to pay damages for all manner of trespasses.”...

33. In Joseph Siro Mosioma –vs H.F.C.K and 3 others Nairobi HCCC No. 265 of 2007 (UR) Warsame J on his part held that:-

34. “On my part, let me restate that damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be a substitute for the loss which is occasioned by a clear breach of the law. In any case, the financial strength of a party is not always a factor to refuse an injunction. More so, a party cannot be condemned to take damages in lieu of his crystallized right which can be protected by an order of injunction.”

35. On a balance of convenience, the Court in responding to prayers for injunction should always opt for the lower rather than the higher risk of injustice. If granting the applicant’s prayers will support the process towards full hearing, then the Court should grant those prayers. This was held to be so in the case of Suleiman –vs- Amboseli Resort Ltd (2004) 2 KLR 589 in which Ojwang Ag. J (as he then was) quoted Justice Hoffman in the English case of Films Rover International in which the said judge made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780 – 781:-

36. “ A fundamental principle of … that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ …"

37. 21. In the current application, it has been established that the 1st Plaintiff/Applicant is the owner and the manufacturer of the vitabiotics products and that there is no distributorship agreement between it and the Defendants. Therefore, failure to grant it the orders sought for is more likely to lead to an injustice as opposed to the Defendants, granted that the Defendants can continue trading in other products for which they are authorised so to do. The scales of justice therefore tilt in favour of ensuring that the 1st Plaintiff/Applicant’s interests are protected pending the hearing of the suit.

38. In view of the foregoing, the upshot of this Court’s ruling is that the Applicant’s Notice of Motion dated 22nd July, 2015 and filed on 23rd July, 2015 is hereby allowed and orders granted in terms of prayer 3 thereof. The costs of the application shall be in the cause.

TITLE: Republic v Kenyatta University ex-parte Haron Njoroge Njogu (2011)
VENUE: High Court of Kenya
CASE ID: Judicial Review Miscellaneous Case No. 383 of 2009
AUTHORING JUDGE: D. Musinga
DATE OF DECISION: 8th March 2011
PLAINTIFF: Republic of Kenya
DEFENDANTS: Kenyatta University, Haron Njoroge Njogu
KEYWORDS: Information Technology

FACTS:
Haron Njoroge Njogu, the ex parte applicant, (hereinafter referred to as “the applicant”) was an employee of the Respondent in its Information Technology (I.T.) department. He was engaged as Computer Systems and Communications Technologist. Shortly after his employment he enrolled as a student at its School of Pure and Applied Sciences for a Masters Degree course which he completed in March 2006.
By a letter dated 3rd March, 2009 his services were terminated by the respondent. The reason given to him for the said action were that he had tampered with University data by accessing examination results on-line and changing them to reflect grades he had not earned and to reflect courses he had not done. He was also accused of abuse of office by failing to disclose his status as a student and using his position to change his marks.

ISSUES:
1. Whether the respondent’s decision was ultra vires.
2. Whether the respondent’s act breached the fundamental principles of natural justice.

HOLDING:
There was no sufficient evidence adduced by the applicant that the said decision was actuated by malice or bad faith on the part of the respondent. It was also not sufficiently demonstrated that there was any procedural impropriety, illegality or irrationality to warrant the orders of certiorari, mandamus and prohibition as sought by the applicant.

CASES CITED:
1. Chief Constable Of North Wells Police Vs. Evans [1982] 3 All Er 141
2. De Souza Vs. Tanga Town Council [1961] Ea 377
3. Eric V.J. Makokha & 4 Others Vs. Lawrence Sagini & 2 Others [1994] Eklr.

RULING:
Being aggrieved by the respondent’s action of terminating his services, the applicant filed an application and sought the following orders:
“1. That an order of certiorari be issued to remove to this honourable court for the purpose of being quashed the decision of the respondent contained in the letter dated 3rd March, 2009.
2. That an order of mandamus be issued to compel the respondent to reinstate the applicant to employment.
3. That an order of prohibition be issued to restrain the respondent from acting on its decision contained in the letter dated 3rd March, 2009 to rescind, cancel, interfere with, or vary the applicant’s grades for course work in the Master of Computer Application (MCA) programme in the department of Information and Communication Technology.
4. That costs of this application be borne by the respondent.”

The application was made on the following grounds:
“(a) The applicant’s right to be heard was substantially negated and hollowed by the failure, refusal or negligence of the respondent to allow the applicant to face witnesses/informers whose allegations precipitated the disciplinary proceedings.
(b) The disciplinary proceedings are viciated by procedural impropriety engendered by the refusal, negligence or failure of the respondent to confront the applicant with evidence upon which the charges facing him were founded.
(c) The respondent’s senior Board of Discipline had no jurisdiction to hear and determine the charge against the applicant namely “tampering with University date” which conduct or actions constitute criminal offences under the Penal Code (Cap 63).
(d) Clause 9.4 Section (iii) (b) of the Terms of Service does not vest the respondent with powers to suspend the applicant for conduct amounting to a criminal offence.
(e) Unless and until the accused was convicted by a competent criminal court for the alleged criminal conduct, it was not available to the respondent to suspend the applicant for “Good Cause” within the meaning of Clause 9.4 Section (iii).
(f) The Kenyatta University Act Cap 210 C, the respondent’s statutes, rules and regulations governing the disciplinary organs do not confer the respondent power, authority and jurisdiction to adjudicate upon the conduct that is essentially and preponderantly criminal in nature.
(g) The respondent’s Disciplinary Board had no jurisdiction to hear and determine the charges relating to or revolving around the status of the applicant as a student of Master of Computer Applications in the respondent’s School of Pure and Applied Sciences.
(h) The jurisdiction to adjudicate upon the charges levelled against the applicant vests in the Students Disciplinary Committee of the Senate established under Statute XV, Section 4A rather than the Senior Board of Discipline.
(i) The Board was not properly constituted in that the head of the applicant’s department namely Director of Information Technology Department, Mr. Andrew Mungai or his representative did not attend/participate in the disciplinary proceedings.”

It was also argued that the respondent’s decision was ultra vires because the Senior Board of Discipline has not formulated the Code of Conduct of the University employees under its terms of reference. The applicant further contended that the respondent’s act breached fundamental principles of natural justice and was Wednesbury unreasonable.

In his affidavit in support of the application, the applicant stated that on 7th December, 2006 the respondent appointed Messrs Parity Information Systems Limited to install and commission the Uni-plus and ACCPAC Student Management System in its academic and finance departments with a view to improving efficiency and effectiveness in service delivery. The applicant was assigned the responsibility of implementing the Uni-plus/ACCPAC system while the said consultants were involved in training the staff on how to use the system and aiding students in accessing their fees statements and result slips and aiding correct any anomaly in their marks and fees.

On 20th July, 2008 the server of the aforesaid system broke down thereby paralyzing operations of the entire University especially in areas touching on student’s matters and finance. However, the system implementation team including the applicant managed to restore the system after sometime but soon thereafter the applicant’s system password was confisticated thereby rendering him jobless since his work revolved around the system.

By a letter dated 26th September, 2008 the applicant was informed that he had been suspended from duty with immediate effect on account of reports that he had tampered with his academic marks to reflect grades that he had not earned and in courses he had not done. The letter did not specify details of those allegations but stated that he would be informed in due cause when to appear before the Senior Board of Discipline. By an internal memo dated 7th November, 2008 the applicant was invited by the respondent’s Deputy Vice Chancellor – Administration, to attend a meeting of an ad hoc committee known as Server Breakdown Committee (SBC) scheduled for 24th November, 2008 at 9.00 a.m. in the University Board Room. The applicant said that he received the memo on 24th November, 2008 at 12.30 p.m. As a result of the late service of the memo the said meeting aborted. The applicant was invited to another meeting set down for 19th January, 2009 at 2.30 p.m. but he did not attend that meeting. His refusal to attend the meeting was actuated by, inter alia, his belief that the issue was connected with his suspension on allegation of tampering with the University data and so the proper organ to deal with the matter was the Senior Board of Discipline.

By a letter dated 13th February, 2009 the applicant was invited by the respondent’s registrar to appear before the respondent’s Senior Board of Discipline to defend himself against tampering with University data. The letter also invited him to send a written defence, if any, to the Deputy Vice Chancellor – Administration before the date of the meeting. Because the said letter did not specify when the offence was committed and the particulars of the offence and the evidence against him the applicant alleged that he was not able to exercise the option of forwarding a written defence. On 27th February, 2009 the applicant attended the scheduled meeting of the Board and realized that the Chairman of the ICT Department, Mr. Andrew Mungai, and one Mr. Wasike, whom he believed was his accuser, were absent. The applicant was asked whether it was true that he had tampered with the system to his advantage to which he answered in the negative. He requested for further particulars of the offences that he was alleged to have committed but they were not given.
The applicant alleged that the proceedings of the Board were distinctly unfair and irregular because its members were biased, accusatory and disposed against any possibility of his innocence. He further alleged that his efforts to have the precise charges that had been preferred against him were futile and materials supposed to be evidence against him were known to him for the first time during the said meeting. Further, the witnesses or persons who had incriminated him were not present so that he could cross examine them. Shortly thereafter the termination letter was sent to him. The applicant alleged that the decision to terminate his services was actuated by malice arising from the controversy between senior administrators over the Parity System. He further stated that the respondent abused its powers and followed the wrong procedure in dealing with his disciplinary case.

The respondent filed a replying affidavit that was sworn by Professor Paul Wainaina, the Deputy Vice Chancellor-Administration. He stated that the decision to terminate the applicant’s employment cannot be said to be ultra vires because before that action was taken, the applicant was accorded audience before the Senior Disciplinary Board which was properly constituted and which had prerequisite jurisdiction to adjudicate on the matter. The applicant was informed of the charges levelled against him. The matter with which the applicant was being charged was done in his capacity as an employee of the University and not as a student. In the circumstances therefore, it was the Senior Disciplinary Board that had the mandate to hear the matters in issue and not the Students Disciplinary Committee, Professor Wainaina stated. He further denied that the respondent’s decision offended the fundamental principles of natural justice since the applicant was informed of the charge and the particular section of the relevant rules and/or regulations that he had contravened, the venue, time and date of the Board meeting. Further, the decision of the Board was neither unreasonable nor actuated by bad faith as alleged, the respondent stated.
The parties filed their respective submissions and Mr. Kibe Mungai for the applicant and Mr. Mogere for the respondent highlighted their respective clients’ submissions. I have carefully considered all the affidavits and the submissions on record.
To begin with, I must point out that judicial review is not an appeal from a decision but a review of the manner in which the inferior body or tribunal made that decision. It was so held in CHIEF CONSTABLE OF NORTH WELLS POLICE vs. EVANS [1982] 3 All ER 141. Judicial review concerns itself with the decision making process and not the merits of the decision.

In DE SOUZA vs. TANGA TOWN COUNCIL [1961] EA 377 the general principles which should guide statutory domestic or administrative tribunals sitting in a quasi-judicial capacity were summarized as hereunder:
(a) If a statute or statutory rules or regulations binding upon the tribunal describe the procedure to be followed, that procedure must be observed.
(b) If no procedure is laid down, there must be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue
(c) The tribunal must be properly constituted, it must do its best to act justly and reach just ends by just means. The tribunal must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as if it were a trial, it need not examine witnesses and it can obtain information in any way it thinks best.
(d) The person accused must know the nature of the accusations made.
(e) A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view.
(f) The tribunal should see that the matter which has come into the existence for the purpose of quasi-lis is made available to both sides and, once the quasi-lis has started, if the tribunal receives a communication from one party or from a third party, it should give the other party the opportunity of commenting on it.
Although the applicant was both a student and an employee of the respondent the judicial review proceedings arise from matters relating to his employment and not as a student. That is why he sought to be reinstated to his employment. In my view, therefore, the proceedings which are now the subject matter of these judicial review proceedings were rightly conducted by the Senior Disciplinary Board which deals with matters of staff as opposed to the Students Disciplinary Committee which deals with students disciplinary matters.
The applicant was summoned before the Senior Disciplinary Board on a date and venue that were made known to him. He was also duly notified of the charges that he was to face. Although he alleges that he was not given detailed particulars thereof, my finding is that the letter summoning him to appear before the Board contained sufficient information to enable the applicant defend himself accordingly. The applicant was also given an opportunity to tender a written defence. It was not a legal requirement that the applicant meets the person whom he perceived to be his accuser, a Mr. Wasike. The applicant was given an opportunity to defend himself against the charge of tampering with University data and also accessing his examination results on-line. Thereafter the Senior Disciplinary Board deliberated on the matter and came to a decision that the applicant’s services had to be terminated. In reaching that decision, the Board was satisfied that the provisions of Clause 9.4 of the Terms of Service had been complied with.
There was no sufficient evidence adduced by the applicant that the said decision was actuated by malice or bad faith on the part of the respondent. It was also not sufficiently demonstrated that there was any procedural impropriety, illegality or irrationality to warrant the orders of certiorari, mandamus and prohibition as sought by the applicant.

As regards the prayer for an order of mandamus to issue to compel the respondent to reinstate the applicant to employment, such an order cannot be granted because contracts of service have mutuality of rights and obligations for both parties and this court does not have jurisdiction to impose upon an employer an employee whom it does not wish to retain in its establishment. See ERIC V.J. MAKOKHA & 4 OTHERS vs. LAWRENCE SAGINI & 2 OTHERS [1994] eKLR.
Having taken into consideration all the relevant issues, I find no merit in the applicant’s application and dismiss the same with costs to the respondent.

Newsletter

Join our newsletter for CIPIT news through subscriptions!

SEND

Social Media

Contact Us

TEL : (254) 703 034 612