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Court of AppealPartially AllowedCivil Appeal arising from JR Misc. Application No. 13 of 2019

Kenya National Examination Council v Republic; Teachers Service Commission (Interested Party) (Civil Appeal E867 of 2022) [2024] KECA 1180 (KLR)

Court of Appeal
20 September 2024
SKS. Gatembu KairuJLJ. LesiitGNG. W. Ngenye-Macharia
2,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that parents challenging cancelled KCSE results must first appeal to the Examinations Appeals Tribunal before going to court.

What this practically means

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Executive summary

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The Court of Appeal allowed the Kenya National Examinations Council's appeal against a High Court ruling of 12th July 2019 in which P. Nyamweya, J. dismissed KNEC's preliminary objection and entertained a judicial review application brought by parents challenging the cancellation of 2018 KCSE results for fourteen secondary schools in Wajir and Garissa. The High Court had held that the National Examinations Appeals Tribunal lacked jurisdiction to remedy the applicants and that exceptional circumstances justified bypassing the statutory process under section 9(4) of the Fair Administrative Action Act. Reversing that decision, the Court of Appeal held that the exhaustion doctrine applied: the KNEC Act (sections 40B and 40H) and rule 15 of the 2015 Handling of Examination Irregularities Rules provide a suitable and appropriate statutory procedure for aggrieved candidates, and the applicants had not demonstrated that the process was insufficient. Relying on established precedent including Lilian S, Geofirey Muthinja and the Karume case, the Court reaffirmed that courts are fora of last resort and that exemptions from exhaustion may be granted only in exceptional circumstances. The Court set aside the High Court ruling, upheld the preliminary objection dated 8th February 2019, struck out the petition dated 21st January 2019, and allowed the appeal with no orders as to costs, reasoning that the parents were acting in the best interests of their children. The judgment binds subordinate courts and the High Court on the mandatory exhaustion of examination-irregularity remedies before resort to judicial review.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to determine the ex-parte applicants' grievances
  2. 2.If not, whether the dispute ought to have been canvassed before the National Examinations Appeals Tribunal
  3. 3.Whether the petition ought to have been struck out

Key legal issues

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01

Jurisdiction of the High Court where a statutory dispute-resolution mechanism exists

Holding

The High Court erred in arrogating itself jurisdiction; the statutory procedure under rule 15 and the National Examinations Appeals Tribunal was suitable and had to be exhausted first.

Reasoning

The KNEC Act establishes the National Examinations Appeals Tribunal under section 40B, with jurisdiction under section 40H over appeals against decisions to withhold, nullify or cancel examinations. Rule 15 of the 2015 Handling of Examination Irregularities Rules provides a suitable review procedure. The ex-parte applicants did not demonstrate that the process was insufficient or inaccessible, so the High Court's finding of exceptional circumstances under section 9(4) of the Fair Administrative Action Act was unjustified.

p. 5
02

Doctrine of exhaustion of alternative remedies

Holding

The exhaustion doctrine is sound; courts should exercise judicial restraint where legislature-mandated institutions exist and should be fora of last resort.

Reasoning

Relying on Geofirey Muthinja and Speaker of the National Assembly v Karume, the Court reaffirmed that where alternative dispute resolution mechanisms exist, they must be pursued before invoking judicial consideration, in line with Article 159 of the Constitution. Judicial review under Order 53 cannot oust clear statutory provisions.

p. 4
03

Preliminary objection on jurisdiction

Holding

A preliminary objection raising jurisdiction is a pure point of law which must be decided at the earliest opportunity.

Reasoning

Adopting Mukisa Biscuit and the Owners of Motor Vessel Lilian S, the Court confirmed that jurisdiction is everything and a court without jurisdiction must down its tools. The appellant's preliminary objection dated 8th February 2019 was well-founded and should have been upheld.

p. 3

Legal principles established

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  • The first port of call for a candidate aggrieved by the withholding, cancellation or nullification of national examination results is the Examinations Appeals Tribunal, and judicial review is unavailable absent demonstration that the statutory review process is insufficient
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort
  • Exemption from the obligation to exhaust statutory remedies under section 9(4) of the Fair Administrative Action Act may be granted only in exceptional circumstances
  • Where a clear procedure for the redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed

Court orders

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  1. 1.The ruling and order of the High Court dated and delivered on 12th July 2019 in Misc. Application No. 13 of 2019 is set aside
  2. 2.The Preliminary Objection dated 8th February 2019 is upheld
  3. 3.The petition dated 21st January 2019 filed by the ex-parte applicants is struck out
  4. 4.The appeal is allowed as prayed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority
JL
majority
GN
majority
On appeal from
High Court of Kenya at Nairobi
JR Misc. Application No. 13 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court's decision on a preliminary objection in judicial review proceedings (Notice of Appeal dated 23rd July 2019)

Relief refused

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Costs against the appellant

The persons to bear the consequences would be parents of the affected candidates acting in the best interest of their children

p. 5

Costs

No orders as to costs; each party to bear their own costs (appeal 'allowed as prayed with no orders as to costs')

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Our final orders are that we find that the appeal dated 14th December 2022 is merited. The same is allowed as prayed with no orders as to costs.
p. 5Final orders and disposition
The ruling and order emanating from the High Court dated and delivered on 12th July 2019 in Misc. Application No. 13 of 2019 is hereby set aside. We substitute there for an order upholding the Preliminary Objection dated 8th February 2019.
p. 5Setting aside the High Court ruling and upholding the preliminary objection
Therefore, the first port of call for an aggrieved candidate whose national examination result(s) have been withheld, cancelled and/or nullified is before the Examinations Appeals Tribunal.
p. 4Binding exhaustion rule for examination-result disputes
the same should be done only in exceptional circumstances.
p. 5Limit on section 9(4) FAA Act exemptions

Issues in the judgment

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minor

Internal inconsistency in the date of the appeal: the body of the judgment states the Memorandum of Appeal is dated 14th December 2023, but the final orders refer to 'the appeal dated 14th December 2022'

minor

Inconsistent naming of the 2015 rules: the judgment refers to 'The Kenya National Examinations Council (Handling of Examination Irregularities) Rules, 2015' and elsewhere 'The Kenya National Examinations Council (Handling of Examination Results Irregularities) Rules, 2015'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Examination Council v Republic; Teachers Service Commission (Interested Party) (Civil Appeal E867 of 2022) [2024] KECA 1180 (KLR)", Case Analysis (2024). Civil Appeal arising from JR Misc. Application No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1180/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.