[2014] KEHC 4770 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL PETITION NO. 32 OF 2014

IN THE MATTER OF: CONTRAVENTION OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: ALLEGED BREACH/INFRINGEMENT OFRIGHTS AND FUNDAMENTAL FREEDOMS

AND

IN THE MATTER OF: ARTICLE 3, 10, 19, 20, 21, 22, 23, 27, 46,47, 165, 258 & 259 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE JOMO KENYATTA UNIVERSITY OFAGRICULTURE AND TECHNOLOGY ACT

AND

IN THE MATTER OF: THE ENGINEERS ACT, 2011

AND

IN THE MATTER OF: THE MOMBASA POLYTECHNICUNIVERSITY COLLEGE ORDER, 2007

BETWEEN

DANIEL MUTHOKA MUNYAO

KIDERE MARYAM MOHAMMED

NYACHWAYA JOSEPH MARIGA

ZIRO SIMON BANDA

ATHMAN BWANAMKUU

JOSHUA ONYANGO OTIENO

KAMAU BENJAMIN

BRAMUEL MULIRO WANYONYI

FELIX KADZITU MUMBA

ERNEST KIPLANGAT (All suing for and on behalf of themselves and

on behalf of 119 others) ..........................................PETITIONERS

AND

1. TECHNICAL UNIVERSITY OF MOMBASA

2. JOMO KENYA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY

3. PROF. JOSPHAT KAZUNGU MWATELA.............RESPONDENTS

AND

ENGINEERS BOARD OF KENYA................... INTERESTED PARTY

RULING

1. The Petitioners seek by their Petition order to compel the 1st Respondent to forward to the 2nd Respondent list of their names for their inclusion in the 2nd Respondent’s list of granduants for graduation ceremony of 27th June 2014; an order to compel 2nd Respondent to include the forwarded names of the Petitioners in its graduation list and graduate them; an order that the Respondents have violated Petitioners rights to human dignity as protected under Article 28 of the Constitution, right to fair administrative action as protected by Article 49(1) and right to fair hearing as protected under Article 50 of the Constitution.

2. What provoked this Petition is the 2nd Respondents refusal to graduate the Petitioners.

3. By their interlocutory application by way of Notice of Motion dated 23rd May 2014, Petitioners seek similar relief as per the Petition. That application was on 26th May 2014 certified as urgent and fixed for inter partes hearing on 4th June 2014. When the application came up for hearing the 2nd Respondent had not filed its response and in view of the urgency of the matter and because no good reason was given for not filing the response an adjournment was denied. The 2nd Respondent simply failed to fully instruct its Counsel. It is more the pity that the application is being determined without the input of the 2nd Respondent.

4. The 1st and 3rd Respondent had filed their response and in considering the present application I have found their response most helpful. 3rd Respondent is the Vice Chancellor of 1st Respondent. I should state that the 1st and 3rd Respondent did not oppose the application save that it was submitted that the 1st Respondent had forwarded Petitioners names to the 2nd Respondent on 9th April 2014 to facilitate the Petitioners graduating on 27th June 2014.

5. 1st Respondent by the replying affidavit sworn by the 3rd Respondent confirmed that the Petitioners were students of the 2nd Respondent studying in 1st Respondent’s Institution in Mombasa from 2009 todate where they undertook Bachelor of Science in Electrical Engineering, Bachelor of Science in Mechanical Engineering and Bachelor of Science in Civil Engineering. 1st Respondent for that purpose was a constituent college of the 2nd Respondent from 2007 by virtue of Legal Notice No. 160 of 2007. As a constituent college of 2nd Respondent 1st Respondent admitted Petitioners to undertake those various Engineering Courses which were prepared, taught and examined by Lecturers from the 2nd Respondent. 2nd Respondent indeed prepared and approved the Syllabus which Petitioners were taught by its very own Lecturers.

6. According to the 3rd Respondent, 1st Respondent was granted a Charter and therefore became fully fledged University in January 2013. That although 1st Respondent obtained that Charter it has not been accredited by the Engineering Registration Board to offer Engineering Courses. That if the 1st Respondent does indeed graduate the Petitioners they then will not be registered to practice as Engineers. Petitioners had deponed and it is confirmed by 1st and 3rd Respondents that there were students who previously studied at 1st Respondents institution as a Constituent College of 2nd Respondent and had graduated at 2nd Respondents institution.

7. Petitioners complained of not having received information regarding that graduation from either of the Respondents.

8. The 2nd Respondent is stated to have refused by their letter dated 6th May 2014 to allow Petitioners graduate at its institution. The reasons given for such refusal in that letter are as follows-

That JKUAT was not involved in the admission of the saidstudents and is not in a position to ascertain performance of the students to the Engineering Board of Kenya requirements.

That the results for the students had not been presented to the relevant JKUAT Schools and Senate.

That the Engineering Board of Kenya (EBK) may have issues with JKUAT to graduate TUM (1st Respondent) students when TUM is full-fledged university.

9. The 3rd Respondent by his replying affidavit of 3rd June 2014 responded to those issues as follows-

a. On issue number (i)

The evidence so far tendered or made available to Court does support the fact that the Petitioners/Applicants have been and are still students of the Mother University, the 2nd Respondent herein.

b. On the Issue number (ii)

The syllabus(es) and/or courses were prepared and/or introduced and/or taught and/or examined by the 2nd Respondent, studying at the 1st Respondent and it Lecturers for the five years the Petitioners/Applicants have been students of the 2nd Respondent’s institution (Hosting Institution) and for all those years the results of the Petitioners/Applicants were presented to the 2nd Respondent as required.

(c) On issue Number (iii)

Though the 1st Respondent was granted a Charter and became a fully-fledged University in January, 2013, its Engineering Courses are yet to be approved and/or accredited by the Interested Party as required under the Engineers Act of 2012.

If the Petitioners/Applicants are graduated by the 1st Respondent before accreditation status is given to the 1st Respondent, the Petitioners/Applicants risk being barred from practicing their profession by the Interested Party, who would not recognize their degrees.

10. Education is power. Nelson Mandela said-

“Education is the most powerful weapon which you can use to change the World.”

The quest by the Petitioners to graduate and enter the job market will be impeded if the decision of the 2nd Respondent is allowed to stand. The 2nd Respondent’s decision will deny Petitioners the power referred to by Mandela. 2nd Respondent having made such a decision which would indeed adversely affect Petitioners’ future, treated the application before Court in a very flimsy manner by failing to file its response.

11. Having considered the documents presented by the Petitioners, 1st and 3rd Respondent I am satisfied that a prima facie case has been made out to justify the interlocutory orders sought. The word prima facie has variously been defined but for now I will consider the definition in the Blacks Law Dictionary 8th Edition as follows-

“Prima facie: At first sight; on first appearance but subject to further evidence or information.”

That is my finding, that the Petitioners at first sight, first appearance have shown they have a valid claim deserving interlocutory orders sought.

11. The Petitioners seek what is essentially mandatory orders. Such orders are only granted in the clearest of cases. In Vol. 24 Halbury’s Laws of England the learned author stated-

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the Act done is a simple and a summary one which can be easily remedied, or if the Defendant attempted to steal a match of the Plaintiff …. A mandatory injunction would be granted on an interlocutory application.”

Also in the case LOCABALL INTERNATIONAL FINANCE LTD –Vs- AGRO EXPORT AND OTHERS [1986]I ALL ER 901 at page 901 it was stated-

“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at a simple and summary act which could be easily remedied or where the Defendant had attempted to steal a match on the Plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

12. Having considered the evidence adduced by the Petitioners, 1st and 3rd Respondent on prima facie basis I find Petitioners were admitted as Students of 2nd Respondent albeit at the Institution of 1st Respondent. 2nd Respondent regulated their Syllabus and lectured them. And finally 2nd Respondent examined them. To deny them the all important opportunity to graduate cannot be condoned by this Court. The Petitioners have met the high standard required for a mandatory injunction.

13. Although the 1st Respondent argued that since it had forwarded Petitioners names to 2nd Respondent it cannot be said to have done any wrong, it has been shown that 1st Respondent did not however communicate to the Petitioner of having so forwarded their names. Having that in mind the Petitioners could not proceed with the fulfillment of various stages required of potential graduants of 2nd Respondent. 1st Respondent did fail to communicate its action of forwarding the names. It is therefore not without blame. I have seen from exhibit marked ‘B’ the Newspaper advertisement relating to the 23rd Graduation Ceremony; it shows Petitioners had a deadline of 3rd June 2014 to confirm their names were included in the Graduation list and that they were correctly spelt. How could these Petitioners have confirmed that if they did not know their names had been forwarded by 1st Respondent.

14. In view of the above I grant the following orders-

a. 1st Respondent shall submit within one (1) day from this date hereof to 2nd Respondent names of the Petitioners for their inclusion into the 2nd Respondents 23rd Graduation Ceremony of 27th June 2014, and 1st Respondent shall give to the Petitioners information of such submission.

b. The 2nd Respondent is hereby ordered to include the forwarded names of the Petitioners in its 23rd Graduation Ceremony of 27th June 2014 and in that regard shall afford Petitioners all necessary assistance to ensure their Graduation on the said date.

c. Liberty is granted to any party to seek further orders.

d. The 2nd Respondent shall pay the costs of Notice of Motion of 23rd May 2014 to the Petitioners and 1st and 3rd Respondents.

DATED and DELIVERED at MOMBASA this 6TH day of JUNE, 2014.

MARY KASANGO

JUDGE