[2019] KEHC 11480 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 596 OF 2017

JANE KIONGO......................................................................1ST PETITIONER

LYNET L. KAGEHA.............................................................2ND PETITIONER

SUSAN NYAWIRA................................................................3RD PETITIONER

JANET M. YULU..................................................................4TH PETITIONER

ALICE N. KAMBI.................................................................5TH PETITIONER

GRACE N. OGETO...............................................................6TH PETITIONER

BELINDA W. CHEGE...........................................................7TH PETITIONER

SUSAN ANINDO A................................................................8TH PETITIONER

BEUTRIS NZAMBU..............................................................9TH PETITIONER

ANNE N. THIGA..................................................................10TH PETITIONER

NANCY WANJOHI..............................................................11TH PETITIONER

GRACE NJENGA.................................................................12TH PETITIONER

AGNES NJERU....................................................................13TH PETITIONER

EUNICE KARWIRA............................................................14TH PETITIONER

KIARA JULIA KENDI........................................................15TH PETITIONER

MOHAMMED MUMINA HIRBO......................................16TH PETITIONER

VERSUS

LAIKIPIA UNIVERSITY......................................................1ST RESPONDENT

COMMISSION FOR HIGHER EDUCATION...................2ND RESPONDENT

CABINET SECRETARY FOR EDUCATION....................3RD RESPONDENT

COMMISSION FOR UNIVERSITY EDUCATION..........4TH RESPONDENT

THE CHANCELLOR LAIKIPIA UNIVERSITY...............5TH RESPONDENT

THE HONOURABLE ATTORNEY GENERAL................6TH RESPONDENT

THE KENYA NATIONAL QUALIFICATION

AUTHORITY..........................................................................7TH RESPONDENT

JUDGMENT

1. The Petitioners were at all material times students of Laikipia University, the 1st Respondent, is a public university established Pursuant to section n23 of the Universities Act, 2012. The 2nd Respondent, Commission of Higher Education is also an institution established for purposes of regulating higher education, The 3rd Respondent the Cabinet Secretary for Education is a public officer responsible for education while the 4th Respondent, Commission of University Education is responsible for regulating university education in the country.

2. The Petitioners were admitted to the 1st Respondent University’s School of business in 2015 as Private sponsored students to study the Degree of Commerce. The Petitioners state that as holders of Diploma certificates, they were exempted from some course units that form part of the degree course and were given credit transfers for exempted course units which were duly recorded in their transcripts.

3. They aver that they successfully completed their degree courses and were due to graduate on 22nd December 2017, but were surprised to realize that the 1st Respondent had published a notice revoking their unit credit transfers and demanded that they undertake the units all over again. It is the Petitioners’ case that the notice that revoked their credit transfers was issued without consultation and without a hearing. They state that their attempt to reach out the 1st Respondent was not successful and that they were surprised when the 1st Respondent published the graduation list excluding them.

4. The Petitioners state that the 1st Respondent’s decision to revoke their credit transfers was a direct discrimination against them and violated their legitimate expectation, their right to education under Article 43 and the right to fair administrative action and hearing under Articles 47(1) and 50(1) of the Constitution.

5. On the basis of the above facts, they filed this petition seeking the following reliefs:

a. A DECLARATION that the respondents actions against the petitioners of compelling the petitioners to register and undertake the courses exempted in the 1st and 2nd years of study as a result of the credit transfer system whereas other students from others were not so obliged violated the petitioners’ right and freedom from discrimination as enshrined under Article 27(1) and (2) of the Constitution of Kenya 2010.

b. A DECLARATION that the Notice published on 22nd May 2017 is null and void as the petitioners’ right to fair administrative action as guaranteed under Article 47 has been infringed by the actions of the 1st respondent publishing the notice and not serving any circular upon the petitioners.

c. A DECLARATION that the 1st respondent’s actions of revoking the credit units already transferred to the petitioners infringed the petitioners right to education guaranteed under Article 45(1)(f) of the Constitution of Kenya 2010.

d. A DECLARATION that the actions of the 1st respondent of refusing to avail the petitioners information necessary for that petitioners to gain full benefit from the services offered to the petitioners by the 1st respondent violated Article 46 of the constitution of Kenya and is an infringement of the protection of the petitioners.

e. An order of MANDAMUS compelling the 1st respondent to include the names of the petitioners for the graduation ceremony slated for December, 2018.

f. An order that the 1st, 2nd and 3rd respondents pay general damages to petitioners for breach of the petitioners’ rights and fundamental freedoms enshrined in the Constitution of Kenya 2010.

g. Costs of this petition.

h. Any other relief that this court may deem fit and just to grant in the circumstances.

1st Respondent’s response

6. The 1st Respondent filed a replying affidavit to the petition by Dr. Raphael K. Kiugu, the Registrar, Academic Affairs, sworn on 22nd February 2018. He deposes that the Petition is incompetent; that thee prayers sought are moot and been overtaken by events.

7. Dr. Kiugu further deposes that the Petition could not have been brought on behalf of other Petitioners because there is no consent filed in support of such averments. He concedes that the Petitioners were admitted to the 1st Respondent in 2015 for the Degree of Bachelor of commerce at the Nairobi Campus and that indeed the Petitioners were exempted from taking certain units on the premise of credit transfer system.

8. He however contends that the credit transfer was based on an internal policy that had been in use since the 1st Respondent’s inception instead of the new universities safeguards and guidelines that came into force in 2014. He further contends that the internal policy at the time allowed credit transfers on programmes that were not similar such as credit transfers between Diploma and bachelor degree Programmes.

9. Dr. Kiugu deposes that upon discovery of the error, the 1st Respondent took initiatives to rectify the situation and informed students through a notice issued on 22nd May 2017. He contends that students were advised re take the cancelled units given that the error was rectified before the Petitioners completed their studies.

10. According to Dr. Kiugu, the guidelines permit up to 49% credit transfer of the core course units for Programmes at the same level. He states that the Petitioners were not included in the graduation list because they had not fully complied with requirements for the degree.

11. He further deposes that the 1st Respondent offered to have the Petitioners undertake those units on weekends as a way of accommodating those in employment. He denies that the 1st Respondent violated the Petitioners’ rights. He also denies that the closure of Nairobi Campus in any way affected the Petitioners’ studies since studies could be taken at the Nyahururu main campus.

2nd and 4th Respondents’ Response

12. The 2nd and 4th Respondents filed a replying affidavit by Prof. Mwende Ntarangwi, the Chief Executive Officer of the 4th Respondent, sworn on 11th April 2018. He deposes that the Petition is misconceived, frivolous, vexation and an abuse of the court process; that the Petition is defective and that the 1st Respondent’s students who were qualified, graduated on 22nd December, 2017. He also argues that the Petition has been overtaken by events; that the Petition is factually and evidentially untenable and does not disclose with precision any violations of the Constitution, fundamental rights and freedoms.

13. According to the deponent, the 4th Respondent is a body Corporate whose functions are set out in Sections 3, 5 and 5A of the Universities Act and that the Petition against the 4th Respondent is misconceived and defective. He further deposes that the 4th Respondent is mandated to regulate, coordinate and assure quality in universities; that its obligations extends to setting standards relevant in the quality of university education; that pursuant to that mandate the 4th Respondent formulated standards to guide credit transfer systems in order to ease mobility of students from one university to another through harmonizing academic programmes in different institutions of higher learning and that only validated Diplomas qualified for credit transfer where candidates obtained distinction or credit passes.

14. Prof. Ntarangwi deposes that the 4th Respondent issued a list of validated Diploma Programmes as at 2nd December 2011 and another as at February 2013; that the validation applies to specific programmes for which an institution has applied for validation and approved by the 4th Respondent after which a certificate is awarded.

15. According to the deponent, it came to the 4th Respondent’s attention that some institutions were accepting nonequivalent credit transfers for unauthorized programmes in violation of the set standards. The 4th Respondent directed the concerned institutions to revoke all credits transfers awarded in violation of the rules. It is the 4th Respondent’s case that the Petitioners joined the 1st Respondent at a time when the standards were in force and that some of the Petitioners obtained diplomas from unaccredited institutions. It is the 4th Respondent’s further case that none of the Petitioners qualified for credit transfers and, therefore, the 1st Respondent’s decision to revoke their credits transfers was in compliance with its directions.

16. Prof. Ntarangwi further contends that it is up to the 1st Respondent’s Senate to decide and prescribe the proficiency standards for purposes of award of degrees and diploma certificates under section 35 (1) (a) as read with section 29 of the Universities Act and, therefore, the court should not usurp powers of the 1st Respondent’s Senate.

Petitioners’ submissions

17. Dr. Khaminwa SC, submits on behalf of the Petitioners highlights their written submissions dated 29th May 2018, that the petitioners were admitted to the 1st respondent University and paid the required fees; that the petitioners took their studies and completed their courses but when they were about to graduate they were informed that they could not graduate on grounds that their courses had been modified. He contends that the petitioners were also told that they had to undertake more units in order to qualify for graduation.

18. Learned Senior Counsel submits that this was a violation and breach of the terms of the contract upon which the petitioners were admitted at the 1st respondent. In Senior Counsel’s view, the 1st respondent’s action amounted to a violation of the petitioners’ constitutional rights, breached their legitimate expectation and the principle of proportionality.

19. According to Senior Counsel, the petitioners had given up whatever they were doing and dedicated their time and resources to university education to further their knowledge; that the university campus they were attending was closed without their knowledge and that they were never given a hearing before the changes were made. He argues that the guidelines the respondents are relying on are not statutory; do not have the force of law and cannot be applied to the petitioners.

20. Dr. Khaminwa further argues that the rules of equity do not allow a party to take advantage of its own wrong. Doing and for that reason, the 1st respondent should not be allowed to take advantage of its own fault and visit it on the petitioners. He contends that the 1st respondent’s actions violated and infringed the petitioners’ right to education guaranteed under Article 43(f) of the Constitution. He relies on several decisions to support their case.

1st and 5th Respondents’ submissions

21. Mr. Muriithi, learned counsel for the 1st and 5th respondents, submits also highlighting their written submissions dated 31st November 2018, that those who were admitted to the 1st respondent university were irregularly given credit transfers; that credit transfers could only be from one degree to another and that the petitioners seek to rely on credit transfers which had been done irregularly but which had however since been corrected.

22. Counsel contends that the irregularity was discovered after the 4th respondent’s officials visited the 1st respondent institution; that the petitioners had not completed their studies and that the 1st respondent issued a notice informing the affected students and at that point the petitioners who had not been cleared for graduation were offered an opportunity to re-do the units.

23. Mr. Muriithi argues that there was neither violation of rights nor discrimination and that the petitioners had not stated specifically how their rights were violated. He relies on several decisions to support their position.

2nd and 4th Respondents’ submissions

24. Mrs. Gichuhi, learned counsel for the 2nd and 4th respondents, associates herself with submissions made on behalf of the 1st and 5th respondents. She also submits, highlighting their written submissions dated 13th December 2018, that the credit transfers were not done in accordance with the standard guidelines and that 1st respondent’s action to allow credit transfer was invalid as it was not validated by the 2nd and 4th respondents being the state organs charged with the mandate of regulating controlling and ensuring quality education in universities.

25. It is counsel’s submission that the diplomas the petitioners had taken did not qualify for credit transfer; that when the 2nd and 4th respondents conducted inspection, this irregularity was discovered and the 1st respondent was directed to remedy the situation. She further submits that the 2nd respondent had in December 2011 issued a list of validated Diploma Programmes and thereafter issued an updated list accrediting all universities in 2013. According to counsel, the diplomas the petitioners obtained would not lead into credit transfers in a degree programme. In their view, if the court were to allow the petition, it would amount to discrimination.

26. Counsel maintains that legitimate expectation cannot apply to this case since it would be against the law. Reliance is place on the decision in Hughes v Department of Home Security [1985] AC 776 cited inKevin K. Mwili & Others v Kenya School of Law[2015] eKLR on the doctrine of legitimate expectation.

Determination

27. I have considered the petition; the responses, submissions and the authorities relied on by the parties. The question that arises for determination is whether the 1st respondent’s decision to revoke the petitioners’ credit transfers was unlawful and violated petitioners’ rights and legitimate expectation. The facts of this petition are undisputed. The petitioners were admitted to the 1st respondent in 2015 to pursue degree courses.

28. At the time of admission, the petitioners held diploma certificates from various institutions. On being admitted, they were given credit transfers and went on pursue their studies for the degree of Bachelor of Commerce. However, when they were due to graduate in 2017, their names were omitted from the graduation list. The 1st respondent informed the petitioners through a notice issued in May 2017 that their credit transfers had been revoked and, therefore, they had to re take the concerned units in order to qualify for graduation. The reason advanced for this action was that the credit transfer had been done irregularly.

29. The petitioners have argued that this was unlawful; that it was done without giving them a hearing and that it violated their legitimate expectation. The respondents have on their part contended that they acted lawfully; that the petitioners’ rights were not violated and that the institutions they obtained diploma certificates from were not validated.

30. The 1st respondent is a Public university established under the Universities Act and whose mandate is stipulated under the Act. Under the Act, the Senate has power to decide the persons to admit for purposes of studies leading to award of degrees and certificates of that institution.

31. The petitioners applied for admission and after considering their applications, the 1st respondent admitted them to pursue the degree courses they had applied for. The 1st respondent further went ahead and allowed credit transfers in their favour. The petitioners undertook their studies to completion and were due to graduate in December 2017 but that would not be. The 1st respondent, supported by the 2nd and 4th respondents, contends that the credit transfers were irregular and that the irregularity was discovered in 2017. That would appear to be in agreement with the petitioners’ contention that that the action of revoking their credit transfers came just before they were due to graduate.

32. From the 1st and 4th respondents’ arguments, the guidelines were introduced in 2014, a year the petitioners were admitted. If that is true, it would mean the 1st respondent was aware of the guidelines at the time it admitted the petitioners and allowed credit transfers. The 1st respondent is not contending that it was not aware of the guidelines. In fact Dr. Raphael Kiugu, the Registrar, Academic Affairs states in his affidavit in response to the petition, that the credit transfers were based on an internal policy that had been in use since the 1st Respondent’s inception. This was a policy that the 1st respondent had perfected and the petitioners were not the only beneficiaries of that internal policy.

33. The 4th respondent has not stated when, if at all, the guidelines were made known to the 1st respondent given that at the time the petitioners were admitted the guidelines are said to have been in use yet the 1st respondent used internal policy which allowed credit transfer.

34. The 4th respondent’s mandate is stipulated under sections 5 and 5A of the Act. This includes (5 (c) promote, advance, publicise and set standards relevant in the quality of university education, including the promotion and support of internationally recognised standards; and (5) (f)develop policy for criteria and requirements for admission to universities.

35. The fact that the 4th Respondent has mandate to regulate university education in universities is not in dispute. However, what I find interesting is the fact that the 1st Respondent applied its internal policy on transfer of credits when according, to the 1st Respondent there were guidelines in place on the issue. Although the 4th Respondent states that the guidelines were introduced in 2014 it has not shown when those guidelines took effect and became applicable. It is one thing to have guidelines and another to have them implemented.

36. Secondly, counsel for the 4th Respondent admitted during the hearing that the guidelines were neither gazetted nor were they in form of a Legal Notice to give them the force of law. What would be the effect of relying on guidelines that were neither in form of a legal notice nor gazette notice? The 4th respondent has not demonstrated how the guidelines were disseminated for purposes of compliance yet they were to be followed by consequences in default.

37. As was observed by Ojwang, J(as he then was) in Republic v Minister for Transport and Communication & 6 others [2004] e KLR;

“In Kenya, theLegal Noticeis the Executive’s instrument of implementation of obligations under the Constitution or the statute law. Every Legal Notice will cite the Act of Parliament under the authority of which it is being made. For this reason, such an instrument becomes part of the organic framework built around the Act itself, and together they form the governing law on a given question. The use of the Legal Notice by a Minister is essential where new duties are being imposed on the public, or a framework for penalties is being instituted to which members of the public may become amenable. These ends cannot be achieved by bare information-type advertisements in daily newspapers, or general Gazette notices.”

38. The guidelines though formulated as an instrument of implementing the 4th respondent’s mandate under the statute should have been made public for purposes of compliance by not only the 1st respondent as an institution but also those to be affected including the petitioners and other members of the public. I am satisfied that without this, the petitioners would not know what was expected of them at the time they were admitted to the 1st respondent institution and should not have been applied to them at the tail end of their studies given that other students had gone through the 1st respondent in a similar process thus its action against the petitioners at that late stage of their studies amounted to unjustifiable discrimination.

Legitimate Expectation

39. The petitioners have also contended that their legitimate expectation was violated, while the respondents argue that there was no such expectation and that in any case there cannot be legitimate expectation against the law. Legitimate expectation is based on legitimate representation made by an authority which has power to make such representation that certain actions will be done in a particular way without any qualification. Such representation gives rise to legitimate expectation and the authority or institution is thus bound by that representation.

40. This principle was well stated by the Supreme Court of Canada in Canada (Attorney General) v. Mavi, [2011] 2 S.C.R. 504, thus;

“[68] Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite”

41. The court went on to observe that generally speaking, the representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.

42. In National Director of Public Prosecutions v Phillips and Others. [2002] (4) SA 60 (W) para 28, Hehe J, stated;

“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation, include the following:

(i) The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification';

(ii) The expectation must be reasonable:

(iii) The representation must have been induced by the decision-maker;

(iv) The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.”

(See also President of the Republic of South Africa and Others v South African Rugby Football Union and Others [2000] (1) SA 1 (CC) para 216, and Communications Commission of Kenya and 5 others v Royal Media Services Limited and 5 others [2014] e KLR)

43. The petitioners were admitted to study for specific degree courses at the 1st respondent University. They paid fees and attended classes up to their final year of study. They were examined and were due to graduate before the unexpected interruption. The 1st respondent admitted the petitioners on the basis of internal guidelines approved by its Senate responsible for determining those who should be admitted as students for purposes of qualifying for award of the 1st respondent’s degrees and certificates.

44. The 1st respondent further made a representation to the petitioners that they were qualified for credit transfers and indeed went ahead to do so. On that basis the petitioners proceeded with their studies to conclusion only for the credit transfers to be reversed when they were waiting to graduate which has been admitted by the 1st respondent. The 4th respondent has not demonstrated that the 1st respondent’s Senate did not have power to do what it did or that its decision violated an existing law on admission and credit transfer.

45. Moreover, the 1st respondent’s representation had been made in the context of a private contract between it and the petitioners against which they went on to pay fees and attended studies thus became capable of enforcement. That being the case it is my finding that the 1st respondent violated the petitioners’ legitimate expectation.

46. In the end, having considered the petition, the responses, submissions, the law and precedents, I am satisfied that the petition has merit and must succeed. Consequently the petition amended on 8th December 2017 is allowed as follows;

a.) A DECLARATION is hereby issued that the respondents actions against the petitioners of compelling the petitioners to register and undertake the courses exempted in the 1st and 2nd years of study as a result of the credit transfer system embraced by the 1st respondent was discriminatory and violated the petitioners’ right to freedom from discrimination and equal protection of the law guaranteed under Article 27(1) and (2) of the Constitution.

b.) A DECLARATION is hereby issued that the 1st respondent’s action of revoking the credit units already transferred to the petitioners violated the petitioners right to legitimate expectation

c.) An order of MANDAMUS is hereby issued compelling the 1st respondent to include the petitioners’ names for its next graduation ceremony.

d.) For avoidance of doubt these orders shall only apply to the petitioners named herein.

e.) Costs of this petition be borne by the 1st respondent.

Dated, Signed and Delivered at Nairobi this 5th day of July 2019.

E C MWITA

JUDGE