[2010] KEHC 484 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 303 OF 2010

JACKLINE K. KYOKO & 104 OTHERS..................................................PLAINTIFFS

VERSUS

VANTAGE TEACHERS TRAINING COLLEGE.......................................DEFENDANT

RULING

The one hundred and five applicants(the applicants) have brought a suit against Vantage Teachers Training College Ltd (the College) and seek one prayer -

"an order of mandatory injunction compelling the Defendant College through its director JEMIMA NJUGUNA or any person acting under her to release the Plaintiffs' original KCSE certificates and all documents listed by the Defendant."

Simultaneously with the Plaint, the Applicants also filed a Notice of Motion dated 12th November, 2010 and sought three prayers -

(1)that the application be certified as urgent and service be dispensed with in the first instance.

(2) pending the hearing and determination of the suit the Defendant's Director JEMIMA NJUGUNA or any other person acting under her or the Defendant/Respondent to forthwith release to the Applicants their original KCSE certificates and all documents belonging to the Plaintiffs/Applicants in possession and custody of the Defendant.

(3) that costs of this application be provided for.

The Motion was supported by the Affidavit Masaine Jackson, the 37th Applicant, sworn on 12th November 2010 and the grounds on the face of the application. The Motion was also supported by the Supporting Supplementary Affidavits of Mbichi Monicah Wanjiru(Applicant No. 98), and Lawrence Karani Silas a former employee or commission agent of the Defendant College.

The Motion was opposed by the Replying Affidavit of JEMIMA NDUNGU sworn on 22nd November 2010, and filed on 24th November 2010.

The facts are not in dispute. The Applicants were students in the Defendant College(para. 8 of the Replying Affidavit). In that capacity, they were admitted and registered as students for the Kenya National Examination Council Primary School Teachers Diploma. This fact is admitted in paragraph 11 of the Replying Affidavit of Jemima Njuguna the Defendant's Managing Director (as per paragraph 2 of the said Affidavit). In the words of the Managing Director in said paragraph 11.

"… The Plaintiffs were long registered as candidates by the Defendant Institution on 28/04/2010 and a sum of Kshs 325,000/= was paid (under KNEC receipt No. 359692 of 28/04/2010 under Index No. 2009/2011 186 candidates)."

It is also not in dispute that the applicants moved away from the Defendant College on 28th May 2010 and joined another College called LANET TEACHERS TRAINING COLLEGE LTD which has been sued by the Defendant College in Nakuru HCCC No. 49 of 2010 (VANTAGE TEACHERS COLLEGE LTD VS. LANET TEACHERS TRAINING COLLEGE LTD). We are not concerned with this suit at all in this matter.

What is in dispute is whether the Applicants left or deposited their original Kenya Certificates of Secondary Education with the Defendant Institution. The Applicants claim in paragraphs 5 & 6 of the Supporting Affidavit of Masaine Jackson -

(5)that at the time of admission at the Defendant/Respondent institution, the Defendant's Directors insisted that we leave and/or deposit our original KCSE certificates with them.

(6) that being a requirement prior to admission we reluctantly accepted to leave our original documents with the Respondent hoping that the same would be released to us after admission.

The Applicants also claim in paragraphs 7, 8, 9, 10, 11 and 12 of the Supporting Affidavit of Masaine Jackson, that the Defendant Institution experienced serious mismanagement problems, exposing and jeopardizing their education interests, services were of poor standard, basic text books, were not provided, even basic necessities as food and water were in short supply, teachers and tutors did not attend class, all to the prejudice of the Applicants. The Applicants' appeal to the Defendant's Management, in particular, to Jemima Njuguna - the Defendant's Managing Director and her agents to release their documents was to no avail, they therefore transferred to LANET TEACHERS TRAINING COLLEGE where they are continuing with their studies.

The Replying Affidavit of Jemima Njuguna does not deny that the Defendant collected the Applicants KCSE certificates but that she herself has never received certificates from the Applicant(para. 13). The Managing Director avers in paragraph 12 of her Replying Affidavit that her duties involve the general running of the entire institution including procurement, discipline, administration and general welfare issues in the institution. However specific issues such as teaching, collection of school fees, receiving requisite students documents, transport etc are delegated to the school manager, teachers, catering and other support staff.

The Managing Director in paragraph 15-18, accuses one Lawrence Karanja Silas in the collection and possible loss of the Applicants KCSE certificates and in paragraph 22 of her Replying Affidavit avers that the Applicants owe the Defendant College Kshs 6. 22 million approximately.

Despite these denials by the Defendant's Managing Director the said Lawrence Karanja Silas has deponed in his Supplementary Affidavit that the Managing Director not only used to run the affairs of the Defendant on a day to day basis, but that to his knowledge the Managing Director Mrs Njuguna demanded original KCSE certificates, and that KNEC could not accept any student to be registered for PTC examination without original certificates for verification.

This position is supported by the Supplementary Affidavit of Mbichi Monicah Wanjiru who in paragraph 8 thereof depones that-

"when we (the Applicants) went to Lanet Teachers Training College Mrs Njuguna called students and parents alleging she was still withholding (the certificates) and she would not release the same unless we went back to her college."

These averments by Lawrence Karani Silas, and Mbichi Monicah Wanjiru have not been controverted and have a ring of conclusiveness in them; on the basis of which, Mr. Githui who appeared for the Applicants urged the court to grant the prayers of mandatory injunction at this stage. Mr. George Kimani, who appeared for the Defendant opposed the application.

Counsel submitted that the Defendant is a limited liability company with a Board of Directors, and that responsibilities are delegated. Counsel submitted that the alleged facts are presumptions and are not backed by any evidence, that there is no evidence that any of the Applicants left or deposited his KCSE certificate with the Defendant, and that the court should not run the risk of issuing orders in vain, and each of the Applicants should indicate the particulars of the institution where they obtained those certificates, nor is there any evidence that the Defendant's agents received the KCSE certificate from any of the Applicants.

Counsel submitted that mandatory injunction can only issue in the clearest of circumstances, notwithstanding the Applicants' constitutional rights to education under Article 55 of the Constitution of the Second Republic. There was need to canvass the whole suit instead of determining it through interlocutory applications.

OPINION & CONCLUSION

The remedy sought by the applicants herein is a mandatory injunction - an order of this court directing and compelling the Defendant to return to each of the applicants his or her KCSE certificate in original.

"A mandatory injunction is an order compelling a defendant to restore things to the condition in which they were at the time when the Plaintiffs' complaint was made" per Lord Westbury, L.C. in Isenberg vs. East India House Estate Co. Ltd(1863) cited in 21, Halsbury's Laws, 3rd Edition.

In this case, the Applicants applied and were admitted to the Defendant's College to study for a course leading to an award of a Diploma as a Primary School Teacher. They paid all the necessary fees as well as the fees for registration as candidates for Diploma examination set by the Kenya National Examinations Council. As a condition for such registration, KNEC demands that the particulars of each student or Applicant's Kenya Certificate of Secondary Education be produced by each student or Applicant. I did not understand either Mr. Githui or Mr. Kimani, learned counsel for the Applicants and the Defendant College respectively to suggest that such certificates be literally submitted to KNEC. What I understand both counsel to say is that each registration centre for the Primary Teachers Diploma Examination, must ascertain that each such Applicant has a genuine original KCSE certificate.

I think that is a reasonable demand and precaution to ensure that only genuinely qualified persons or students are eligible for training, registration, examination and subsequent award of the Primary School Teachers Diploma. This is indeed the demand for entry into other tertiary institutions of learning, and even job interviews and eventual intake into new jobs or job market. This summation is clearly shown in Exhibit - "JN5" of the Replying Affidavit of JEMIMAH NJUGUNA which shows the particulars of Masaine Jackson L, as holder of index No. 525109036, formerly Narok Boys High School, and holder of Form Four Index no. 516101025 in the year 2008, and holder of National ID No. 260254669, and that of Monica Wanjiru of St. John's Secondary School, Form Four Index Number 536206025 of the year 2008, and holder of National ID Number 27608880.

It goes without saying, but it is necessary to say, that both the KCSE certificate and National Identity Cards are separate documents which must be produced and shown separately to the registration authority. In the case of the Applicants, the registration authority is the Defendant College. It is the only authority which is required by KNEC to check and ensure the authenticity of the qualifications of each Applicant to its College, and subsequent registration for the necessary examination with the KNEC.

The Defendant's Managing Director, Mrs Jemimah Njuguna depones that the Defendant is a limited liability company, which is managed through a Board of Directors, and that as Managing Director she looks after the over-all management of the institution, and does not concern herself with the specific details such as students' admission or whether they paid fees, left their certificate or a teacher or tutor has been to class. All such mundane chores are delegated to her staff. Although the said Director has in another Affidavit deponed that she is ultimately concerned with the daily management of the Defendant College, it may still be true that as Managing Director she would delegate many of the functions of managing the College, and would expect her staff or managers to carry out the functions delegated to them.

All that is indeed correct. However, like in all limited liability companies, the ultimate responsibility for the total management and welfare of the institution rests with her as Managing Director, and ultimately with the Board of Directors. It does not help in the end to say, I delegated the instructions of admitting, collecting fees, allocation of accommodation in class and dormitories, or verification and safe custody of students certificates and other papers of admission. As the Americans say,"the back stops with the President." The "back here stops with the Managing Director of the Defendant College." Any differences between her and former employees, whether on temporary or permanent or on commission terms is a matter of management and does not concern the Applicants.

In this case it does not help the Managing Director to say that the Applicants owe the Defendant College Ksh 6. 2 million(approximately) of fees balances and notice moneys. Even if that was so, it is subject of a separate claim against each of the applicants, but it does not constitute a lien over the Applicants' KCSE certificates. If it were so, it would negate a fundamental constitutional right conferred upon the youth by Section 55(a) of the Constitution of the Second Republic of Kenya, that -

"the State shall take measures, including affirmative action programs to ensure that youth access relevant education and training."

It would in my humble view be a violation of that fundamental right of any youth, including the applicants for Defendant to detain the Applicants original KCSE certificates.

It is said that a mandatory injunction will only be granted in the clearest of cases, and where upon the ultimate determination of the conflicting claims, the applicants claim is likely to be upheld. A students certificate is awarded after four years of rigorous learning and subsequent examination and is of use only to that individual student or applicant as in this case. The school or college has no lien over it whether one has paid fees or otherwise. Any such claim must in my view be adjudicated upon and determined in a proper action at law.

For those reasons, I would allow the Applicants' Motion aforesaid dated 12th November 2010. I would also give costs to the Applicants.

There shall be orders accordingly.

Dated, signed and delivered at Nakuru this 3rd day of December 2010

M. J. ANYARA EMUKULE

JUDGE