[2022] KEHC 10338 (KLR)

Anguche v Wakhungu & 3 others; Commission for University Education & 2 others (Interested Party) (Constitutional Petition E002 of 2022) [2022] KEHC 10338 (KLR) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10338 (KLR)

Republic of Kenya

In the High Court at Kakamega

Constitutional Petition E002 of 2022

PJO Otieno, J

July 15, 2022

(Formely Nairobi Constitutional Petition No. E264 of 2022) In the matter of articles 2(1), 2(4), 3(1), 10(1) & (2), 22(2)(b), 23,35,38,81(e), 88(4)(f) and 165 of the constitution of Kenya, 2010 and In the matter of chapter 6 of the constitution of Kenya, 2010 on leadership and integrity and In the matter of sections 19,22,23&29 of the public officers ethics act no. 4 of 2003 and In the matter of 22(2) of the elections act, 2012 no. 24 of 2011 and In the matter of the Gubertnatorial elections for Kakamega county

Between

Frankline Shilingi Anguche

Petitioner

and

Malala Cleophas Wakhungu

1st Respondent

United States International University

2nd Respondent

The Independent Electoral and Boundaries Commission

3rd Respondent

Joseph Ayatta -County Returning Officer Kakamega

4th Respondent

and

Commission for University Education

Interested Party

Ethics and Anti-corruption commission

Interested Party

Director of Criminal Investigations

Interested Party

Ruling

1. Before this court are two petitions namely Constitutional Petition No. E001 of 2022 and Constitutional Petition No. E002 of 2022. Both petitions raise the issue of whether or not the 1st Respondent holds a genuine and authentic academic certificates and if the 1st Respondent is qualified to vie and contest for the gubernatorial seat for Kakamega County in light of his questionable academic certificates.

2. Since both petitions are similar in substance, this court directed on 6/6/2022 that the two petitions be consolidated with Petition No. E001 of 2022 being the lead file.

3. The Petitioner initiated the lead petition as a registered voter in Kakamega County.

The Petition 4. The petition is dated 2nd June, 2022 and supported by the affidavit of Frankline Shilingi Anguche sworn on the same date. The summary of the petition is that the 1st Respondent is vying for the gubernatorial position, Kakamega County. It is a constitutional requirement that an aspirant for a gubernatorial position holds a degree certificate. The Petitioner contends that the academic certificates presented by the 1st Respondent are a sham for the reason that he attained a mean grade of C- in his KCSE and could thus not have been admitted for a degree of Bachelor of Science.

5. The petitioner further argues that the 1st Respondent had several re-sits which he re-sat in 2017 and could therefore not have graduated in 2011 as he purports. The Petitioner invites this court to interrogate the degree issued to the 1st Respondent by the 2nd Respondent and issue the following orders: -“i.A declaration be and is hereby issued that Malala Cleophas Wakhungu, the 1st Respondent herein, does not qualify to hold any state office due to lack of proper authentic academic qualifications.ii.An order of permanent injunction be and is hereby issued to restrain the Independent Electoral And Boundaries Commission, the 3rd and Joseph Ayay-county Returning Officer Kakamega, 4th Respondent herein from accepting the nomination and registering the 1st Respondent to vie for the office of Governor of Kakamega County or any other state office.iii.An order of permanent injunction be and is hereby issued to restrain the Independent Electoral And Boundaries Commission, the 3rd Respondent herein from gazetting the 1st Respondent as a contestant to vie for the office of Governor of kakamega County or any other state office.iv.Costs of this petition to be paid by the 1st Respondent.v.Any other order that this honourable court shall deem fit to grant. “

1st Respondent’s Replying Affidavit 6. Sworn by Senator Cleophas Wakhungu Malalah, the 1st Respondent herein on 27/6/2022. He avers that he is a holder of a Bachelor of Science Degree in information Systems and Technology from the 2nd Respondent. He states that although he participated in the commencement ceremony of the 2nd Respondent on 20/8/2011, he was yet to complete the degree requirements. He explains that the 2nd Respondent allowed students to participate in the commencement ceremony with their peers but only issued a degree certificate upon completion of the degree requirements.

7. In 2012 he joined politics and due to his busy schedule he took a break from his studies and resumed in 2018, re-sat units previously failed and graduated in 2019.

8. On his KCSE Certificate he states that he sat for his KCSE exams in 2003 at Friends School Kamusinga as index number 091 and attained a mean grade of B plain. The examination code for the school at the time was 602606 which code has been changing overtime for instance in 2011 it was 621106 and in 2022 it was 36600004.

2nd and 3rd Respondent’s Replying Affidavit 9. Sworn by Ruth Mwai on 24/6/2022 in her capacity as the registrar of the 2nd Respondent and with the authority of the 3rd Respondent confirming the degree certificate of the 1st Respondent from the 2nd Respondent. She stated that indeed the 1st Respondent was a student of the 2nd Respondent pursuing Bachelors of Science in Information Systems and technology and was issued with a degree in respect thereto on 11/8/2019.

10. On the appearance of the 1st Respondent’s name in the 2nd Respondent’s graduation booklet for the 33rd commencement ceremony for 20/8/201, she avers that prior to the year 2017, it was normal and a practice of the 2nd Respondent to permit students who had one semester remaining to complete their course requirement to appear in the graduation booklet not to receive the degree certificate but to participate and ‘walk’ with the years mates.

4th Respondent’s Replying Affidavit 11. Sworn by Prof. Mwenda Ntarangwi on 26/6/2022 in his capacity as the Chief Executive Officer of the 4th Respondent. It is his assertion that the 4th Respondent was not responsible to determine the authenticity of a certificate or identity of a certificate holder presented for recognition.

6th Respondent’s Replying Affidavit 12. Sworn by BeflyJemurgor Bisem on 1/7/2022 in his capacity as the corporation secretary and deputy director, legal services division of the 6th Respondent. He stated that the 6th Respondent verified and confirmed the KSCE Certificate of the 1st Respondent to be genuine.

13. He affirmed that the 1st Respondent sat for his KCSE examination at Friend’s School Kamusinga in 2003 using index number 6020606/091 and a scored a B plain. The center code for the school was 6020606 in 2003 before changing to 600004 in 2012 once it became a national school and that the prefix 36 before 600004 indicates the County which was not included in the certificates.

9th Respondent’s Replying Affidavit 14. Sworn by Daniel Ngetich No. 233624 attached to the Directorate of Criminal Investigations, Kakamega Region. He avers that he began his investigations at Friend’s School Kamusinga where he was issued with i) the school admission register showing the 1st Respondent joined the school on 17th May 2001 and was given admission number 11454 (marked DCI 1) ii) KCSE leaving certificate for the 1st Respondent dated 18. 3.2004 (DCI 2) iii) KCSE results ledger for 2003 where the 1st Respondent is listed at No. 091 with a mean grade of B (DCI 3) and iv) 1st Respondent’s result slip for the year 2003 with serial No. 602606/091 (DCI 4).

15. He then proceeded to the 2nd Respondent where he was issued with the graduation program for 20/8/2011 which included the name of the 1st Respondent (DCI 5). It was his conclusion that the records of the 1st Respondent exist in both Friends School Kamusinga and United States International University.

Replying Affidavit of Friend’s School Kamusinga 16. Sworn by Alex Kariuki Maina on 27th June, 2022 in his capacity as the principal. He stated that he had checked and confirmed from the school’s examination records from the year 2003 that the 1st Respondent was a student at the school and that he sat for his Kenya Certificate of Secondary Education in November 2003 and attained a mean grade of B plain. He produced the 1st Respondent’s result slip and a full record of examination results nominal roll from the November 2003 KCSE examinations for friends School Kamusinga to this effect.

Petitioners’ Submissions 17. No submissions have been filed by the petitioners.

1st Respondent’s Submissions 18. It is the submission of the 1st Respondent that the subject petition does not meet the constitutional threshold of a constitutional petition since the petitioners have not demonstrated which of their rights will be violated in the event the 1st Respondent is cleared to contest for the gubernatorial position, Kakamega County. To support this argument, he places reliance on the case of Anarita Karimi Njeru v AG [1979] KLR 154 and Meme v R (2004) eKLR.

19. On whether the 1st Respondent holds a valid degree certificate, he submits that it has been confirmed by the 2nd Respondent that the 1st Respondent graduated from the institution and this court should thus exercise restraint in matters academia and leave it undisturbed as observed in Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR.

20. On cost, he submits that it should follow the event as per section 27(1) of the Civil Procedure Rules, 2010.

21. For the 6th Respondent, the short submissions filed took the position that its joinder and participation in the matter was wholly unnecessary as no prayers were sought against it and in terms of the Data Protection Act, it was only the 1st and 4th Respondent who could divulge the information that it holds about the 1st Respondent and that the Petition ought to be dismissed against it.

22. Based on the prayers sought, the issue for determination in this Petition is clearly a single one; whether or not the 1st Respondent meets the statutory and constitutional qualification to contest and if elected hold the office of a Governor. Indeed the law sets different qualifications for that office but the questioned in these proceedings is the academic qualification mandate to be a holder of a decree from a University recognized in Kenya.

23. As the Petitioners were asserting a negative, that the 1st Respondent did not hold a decree from a University recognized in Kenya, both filed Notices of Motion within the Petition which sought that the 2nd Respondent, United States International University Africa provides documents to authenticate the degree qualifications issued to the 1st Respondent.

24. The interlocutory applications were however, in the interests of the time constraint not pursued to conclusion. That notwithstanding, the 2nd, 3rd, 4th, 5th and 9th Respondent did file responses and took the common position that the documents attributable as academic certificates of the 1st Respondent, being KCSE Certificate issued by the 5th Respondent and a Degree Certificate issues by the 2nd Respondent were all genuine.

25. From those Affidavits which have not been meaningfully and materially challenged, the inevitable conclusion the court must make and which it now makes is that the Petition has failed to establish its claim and allegations that the 1st Respondent does not hold a degree qualification issued by a University recognized in Kenya and therefore is ineligible to contest, and if elected hold the office of Governor.

26. Without finding, there is no basis to make the declarations sought with the consequence that even the injunctive orders thus cannot be issued.

27. In the end the Petition fails and is dismissed. Having been anchored on public spiritedness, the protection of the constitutional principles and intents, it is order that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 15TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Otsyeno for Okatch for the PetitionerMr. Malalah with Mburu for the 1st Respondent and hold brief for Atshitiva for the 2nd RespondentMr. Mulama for the 6th and 7th RespondentMr. Juma for Nyauma for 4th, 5th and 9th RespondentsNo appearance for the EACCCourt Assistant: Kulubi