Kenya National Examination Council v Republic & 4 others (Civil Appeal 500 of 2019) [2025] KECA 1172 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that anyone challenging cancelled exam results must first appeal to the National Examination Appeals Tribunal before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had jurisdiction to entertain the judicial review application where the ex parte applicants had not exhausted the statutory appeal mechanism to the National Examination Appeals Tribunal under sections 40H and 40J of the Kenya National Examinations Council Act
- 2.Whether the exception in section 9(4) of the Fair Administrative Action Act was properly invoked, given that no formal application for exemption was made and the alleged constitutional violations were not the primary grievance
Key legal issues
#Whether the doctrine of exhaustion required the ex parte applicants to appeal to the National Examination Appeals Tribunal before resorting to judicial review
Yes. Sections 40H and 40J of the Kenya National Examinations Council Act provide an alternative dispute resolution mechanism, and the ex parte applicants' primary grievance - the cancellation of the 2018 KCSE results - fell squarely within the Tribunal's statutory appeal mechanism.
The court applied the exhaustion doctrine as restated by the Court of Appeal in Geoffrey Muthinja and by the Supreme Court in Benson Ambuti Adega and the Abidha Nicholus case. Section 9(2) of the Fair Administrative Action Act bars review of administrative action unless internal remedies are first exhausted. The grievance that results were cancelled without malpractice was one the Tribunal was competent to hear; the High Court was not a first port of call.
Whether the alleged breach of Article 47 (fair hearing) exempted the applicants from exhausting the Tribunal remedy
No. The failure to be heard was not the primary grievance; the primary grievance was the cancellation itself. A constitutional claim that is not the principal issue does not displace the exhaustion requirement.
The court distinguished the situation in William Odhiambo Ramogi, where fundamental rights enforcement was the primary claim. Here, the applicants' complaint was that there were no malpractices justifying cancellation; the fair-hearing complaint was ancillary. The court invoked Minister of Home Affairs v Bickle for the principle that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved.
Whether the High Court could grant the section 9(4) exemption of its own motion without a formal application
The exemption power under section 9(4) arises only in exceptional circumstances and on application by the applicant; the Judge's self-initiated exemption was erroneous because the applicants' grievance fell within the Tribunal's jurisdiction anyway.
The court noted that exceptional circumstances are undefined and left to judicial discretion, but the Supreme Court in Abidha Nicholus confined resort to alternative processes outside statutory appeal mechanisms to exceptional circumstances. Even assessing the matter, the alleged constitutional violations were not the primary issue, so the exception could not properly apply on the facts.
Legal principles established
#- Where a statutory dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked; the exhaustion doctrine applies even where the very authority of the statutory organs is challenged
- A mere invocation of a constitutional provision, however remote, does not convert a dispute into a constitutional issue exempting a litigant from exhausting alternative remedies; the constitutional violation must be the primary grievance
- Section 9(4) of the Fair Administrative Action Act permits exemption from exhausting internal remedies only in exceptional circumstances and on application by the applicant, in the interest of justice
- An appellate court reviewing a ruling on a preliminary objection should not express conclusive views on matters not determined by the trial court, and may only state prima facie views to avoid tying the hands of the trial court
Court orders
#- 1.The ruling of the High Court made on 28th June 2019 in Judicial Review Miscellaneous Application No 36 of 2016 is set aside and substituted with an order allowing the preliminary objection dated 4th March 2019
- 2.The Notice of Motion dated 20th February 2019 is struck out
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Judicial Review Miscellaneous Application No 36 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory ruling of the High Court; the judicial review application was premised on Article 47 of the Constitution and the Fair Administrative Action Act
Relief refused
#Costs against the appellant
Considering the nature of the dispute, the court declined to award costs
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked.
the mere fact that a cause of action may be traced to a constitutional provision, however remote, does not necessarily elevate the case to one which raises a constitutional issue.
The primary grievance, in our view, was the cancellation of the examination results. The failure to afiord them an opportunity of being heard was not the primary grievance.
We set aside the ruling of the High Court made on 28th June 2019 in Judicial Review Miscellaneous Application No 36 of 2019 and substitute therefor an order allowing the preliminary objection dated 4th March 2019.
Consequently, the Notice of Motion dated 20th February 2019 is struck out. Considering the nature of the dispute, we make no order as to costs.
Issues in the judgment
#The judgment refers internally to both 'Judicial Review Miscellaneous Application No 36 of 2016' and 'Judicial Review Miscellaneous Application No 36 of 2019' for the same High Court proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Examination Council v Republic & 4 others (Civil Appeal 500 of 2019) [2025] KECA 1172 (KLR)", Case Analysis (2025). Court of Appeal appeal against the ruling in Judicial Review Miscellaneous Application No 36 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1172/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.