Why universities and colleges risk compensating students dropped from graduation lists

Universities in Kenya may face constitutional liability when they remove students from graduation lists without giving them prior notice or an opportunity to respond, following a High Court ruling that ordered the University of Nairobi to pay a graduate Sh3 million.

Justice Lawrence Mugambi found that the university violated Marceline Murono’s constitutional rights after her name was removed from the final graduation booklet on the day of her graduation ceremony in December 2023.

The court found that Murono had already been cleared for graduation, had received a graduation gown and had attended the official rehearsal on the eve of the ceremony.

The judge said the circumstances created a legitimate expectation that she would graduate as planned.

“It is crystal clear from the record that for purposes of complying with the process of graduation, the respondent (UON) and for all purposes cleared the way for the petitioner to graduate on the 15th of December 2023,” Justice Mugambi observed.

Murono only discovered that her name had been removed after a soft copy of the graduation booklet was shared in a class WhatsApp group on the morning of the ceremony.

According to the judgment, the university had not communicated the decision to her beforehand.

“There had been no prior communication of any kind as to this outcome which, to say the least, is an actual disregard of the legitimate expectation principle,” the judge said.

The university had argued that the exclusion resulted from issues during the clearance process, including Murono allegedly using the wrong form and making a payment to an incorrect university account.

The court, however, considered evidence showing that Murono had contacted a university finance officer on November 22, 2023, providing her registration details in an attempt to resolve the payment issue.

Justice Mugambi subsequently found that the manner in which the university handled the matter breached constitutional protections governing administrative action.

The court found that the university's actions violated Article 47 of the Constitution, which provides for every person's right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

Also, the judgment found violations of Murono's rights to human dignity under Article 28 and protection against psychological torture and cruel, inhuman or degrading treatment under Article 29.

The circumstances surrounding the graduation were significant to the court's assessment of the harm suffered.

Murono had invited family members, relatives, friends and colleagues to attend and celebrate her graduation.

Justice Mugambi described the consequences of the last-minute exclusion in strong terms.

“The enormous shame and embarrassment she was put through in the eyes of her own family and friends of having to meet and eat in celebration of nothing was an anticlimax that had a serious dent on her inherent dignity,” he said.

The judge added: “The totality of what the petitioner came to endure is enough to break even the strongest of spirits.”

The case also addressed the question of whether a student must first exhaust a university's internal mechanisms before going to court.

The University of Nairobi argued that Murono should have pursued available internal dispute-resolution mechanisms before filing the case.

Justice Mugambi rejected that argument in the circumstances of the dispute, finding that the mechanisms relied upon by the university had not provided meaningful redress.

“In my view, the respondents' (UON) claim to the existence of alternative remedies in the circumstances of this case only exists on paper,” he said.

The court consequently issued declarations that Murono's constitutional rights had been violated.

It ordered the University of Nairobi to pay her Sh3 million in compensation, in addition to Sh24,000 in special damages. The university was also ordered to issue Murono with an apology.

“In addition, the respondent (UON) shall issue the petitioner (Murono) an unqualified apology for the pain and loss occasioned by the respondent within 30 days from the date of this judgment; in default the amount of compensation payable shall stand increased by a further Sh1 million,” Justice Mugambi directed.

The university was granted a 30-day stay of execution after its counsel told the court that he needed instructions on whether to appeal the judgment.