The main entrance to Kenyatta University along Thika Superhighway.
Thousands of university students have, over the years, failed to graduate on time when their lecturers failed to file their marks for computation and consideration for award of various degrees.
In effect, they miss out on opportunities in the job market and spend more money doing re-sits while some give up, altogether and never graduate. The phenomena is commonly referred to as ‘missing marks’ in the academic circles and results from a number of reasons.
Universities and lecturers who do so in future will likely find themselves on the wrong side of the law. Failure to release 30 marks from a continuous assessment test (CAT) will now cost Kenyatta University at least Sh850,000 awarded for damages for its student and include her in its next graduation list. The university will also pay for the the cost of the suit following a ruling by the High Court.
Violation of petitioner’s rights
For two years, Nyambura Kimani, has been fighting her case in court after which she convinced Justice Lawrence Mugambi to rule that the Kenyatta University and Dr Linda Kimencu’s (the concerned lecturer) actions were unfair, irrational, illegal and in violation of the Constitution. He also found that the university had violated Ms Kimani’s legitimate expectation to graduate upon completion of her studies.
"An order of mandamus compelling the respondents herein to include the petitioner in the earliest graduation list of Kenyatta University. An award of Sh850,000 for the violation of the petitioner’s rights to fair administrative action under Article 47 of the Constitution," the judge ruled.
Ms Nyambura sued Kenyatta University and Dr Kimencu in June 2023. Her grievance was that the university refused to release her continuous assessment test (CAT) marks for the UCU 104 unit, thereby barring her from graduating, despite having completed more than the required number of units.
According to court documents, Ms Nyambura enrolled in Kenyatta University in September 2009 and completed her coursework by December 2013. However, she could not graduate due to missing marks in seven units.
She later followed up and resolved six of these, except for UCU 104. In the 2020/2021 academic year, she re-registered for the unit but was unable to sit for the online CAT due to technical issues. She promptly informed Dr Kimencu, who then scheduled a sit-in CAT on February 19, 2021, which Nyambura attended.
Despite submitting her completed CAT again via email in June 2022, the university informed her that the CAT marks had not been recorded.
She was advised in December 2022 to withdraw the unit since it was no longer mandatory for her course, which she attempted to do. However, she was then summoned to a boardroom at the university, where she claims she was chastised by lecturers for taking legal action, and told that the unit would not be withdrawn due to her decision to sue.
The entrance to Kenyatta University.
"That on the same day I proceeded to the office of the Registrar Academic to deliver the said letter. On arrival, I was paraded before lecturers in a boardroom and chastised for attempting to sue the 1st institution," she said in her affidavit.
Nyambura argued that she had completed 51 units, surpassing the university's minimum requirement of 49 for graduation, and that UCU 104 was no longer a mandatory course in the Bachelor of Commerce (Marketing) curriculum.
She claimed that the refusal to graduate her, despite meeting the academic threshold, was not only unfair but had also subjected her to mental anguish, including a miscarriage.
"The respondents' actions are in direct violation of my constitutional rights and in breach of legitimate expectation," read part of her petition.
In its defence, the university, through Registrar Prof Bernard Kivunge, stated that Nyambura had not attended required classes and had failed to complete the CAT and the final exam.
They also disputed whether she had followed proper procedures in attempting to resolve the issue, arguing that some of her communication lacked official acknowledgement by the university.
Victimised for seeking justice
The university claimed that Nyambura had not attended virtual classes and only showed up for one physical class on February 19, 2021. They also argued that she had not completed group assignments or the main exam, thereby missing 30 per cent of her final marks.
However, the court found that Nyambura was indeed present on the date of the makeup CAT, and that KU had failed to provide sufficient evidence to prove she did not sit the test.
The court noted that the university did not produce a list of CAT scripts received or any documentation to show which students had sat the CAT.
"Given the petitioner’s physical presence in the classroom and the insistence that she in fact sat for the CAT, this court finds it very difficult to disregard this evidence without any credible rebuttal being offered to the contrary," said Justice Mugambi.
He criticised the university for failing to objectively investigate the matter or provide a proper forum for resolving Nyambura's grievances. Instead, the university had chosen to victimise her for seeking justice.
"It cannot be reasonable to have a student sit for a test and for reasons that only Dr Kiemcu knows, fail to release her results for the CAT and completely refuse to acknowledge the wrong and instead heap the blame squarely on the student for years on end," the judge observed.
Graduands during a past graduation ceremony Kenyatta University.
He added that Dr Kimencu could not escape responsibility by claiming to have acted in an official capacity, especially where abuse of power and potential malice were evident.
The court concluded that both KU and Dr Kimencu had violated Nyambura's constitutional right to fair administrative action under Article 47 of the Constitution. Justice Mugambi found it irrational for the university to deny her graduation despite completing more units than required.
"Taking into account that the petitioner had already completed 51 units that would enable her to graduate according to KU’s regulations, I find it irrational that the institution could still use this course UCU 104 to deny her a chance to graduate," the court stated.
With this ruling, Kenyatta University must now not only compensate Nyambura but also allow her to graduate at the earliest opportunity, effectively ending her prolonged academic ordeal.
