[2015] KEHC 7896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.139 OF 2014

BETWEEN

LINUS SIMIYU WAMALWA…………………..……………………........……...PETITIONER

AND

THE UNIVERSITY OF NAIROBI………..……………...…...……………. 1ST RESPONDENT

THE VICE CHANCELLOR(ACADEMIC AFFAIRS) ….............…………..2ND RESPONDENT

JUDGMENT

Introduction

The Petitioner, Linus Simiyu Wamalwa, joined the University of Nairobi as a student to pursue a Bachelor of Science degree in Agriculture during the academic year 2001/2002. He graduated on 7th September, 2007 and he claims that upon graduation, he was awarded a degree which had an error because the original and correct transcripts reflected that he had attained a Second Class Honors Upper Division but he was instead awarded a Second Class Honors Lower Division. He also stated that there was an error in the computation of his results for the 1st, 2nd and 4th years of study.

The Petitioner further claims that the failure of the Respondents to correct his academic transcripts and degree certificate is a violation of Article 35(2)of theConstitution which grants him the right to have misleading information that affects him deleted or corrected. In addition, he claims that the Respondent has failed to expeditiously, efficiently and reasonably respond to his complaints, amend the transcripts and degree certificate in violation of his right to fair administrative action as provided for under Article 47of theConstitution.

In his Amended Petition dated 2nd May 2014, he has therefore sought the following orders;

“(a) A declaration that the Petitioner had a right to have his transcript and degree certificate corrected and that the Respondents failure and or refusal to correct the said documents violated the Petitioner’s Constitutional Rights as anchored in Article 35(2).

(b) A declaration that the Petitioner had a right to be given the primary source of information relied upon by the Respondents to change the marks and list the courses in his academic transcript they allege he pursued in the University, the failure and or refusal by the 1st and 2nd Respondents to give the Petitioner this information violated his Constitutional right as provided in Article 35(1).

(c) A declaration that the Petitioner had a right to have his complaint that he has been awarded a wrong degree, to the Respondents addressed in an expeditious, efficient, lawful, reasonable and procedurally fair manner. Further, the failure and or refusal by the Respondents to expeditiously, efficiently, lawfully, reasonably and procedurally fair manner administer the Petitioner’s complaint, violated his Constitutional Right as provided in Article 47(1) and (2).

(d) An order compelling the 1st and 2nd Respondent to issue the Petitioner with an original set of undergraduate academic transcripts with their contents of courses and respective grades remaining the same as they were issued on the following dates;

i. 5th September 2013 for the 2nd and 3rd year academic transcripts; dated 18th March 2011.

ii. 9th December 2013 for the 4th year academic transcript; dated 18th March 2011 with a recommendation of an award of the degree of Bachelor of Science in Agriculture at Second Class Honours, Upper Division.

(e) An order for the 1st Respondent to compensate the Petitioner in the form of General damages to be computed as Court will direct, for the following;

I. Loss of fitting/merited employment opportunities and income.

II. Loss of opportunities in career growth.

III. Loss of opportunities to further education.

IV. Anxiety, mental anguish, distress.

V. Loss of reputation among his peers, family and society at large.

(f) The costs of this Petition be borne jointly and severally by the Respondents.”

Factual Background

The facts of this Petition are that there was an alleged error in the Petitioner’s 1st year results as he was awarded a FAIL in AVP 101-Animal Physiology and CCS-001 Communication Skills. He contested the grade and there was a review of his answer booklets as a result of which it was discovered that he had scored a D and a B, respectively, and not a FAIL in those subjects. The Petitioner’s 2nd academic year results were also allegedly erroneously entered and a recommendation that he repeats studies for that year was made by the Respondent again in error. He allegedly contested the recommendation and he was subsequently allowed to proceed to the 3rd academic year, although he was required to re-sit the courses he had failed, in a Special Exam. He was however unwell and he suspended seating for the special exams until after the end of 4th year when he stated that he attended to them and passed. Thereafter, he alleged that he also resat the 2nd year suspended exams and passed and therefore completed his regular studies in June 2005. He graduated on 7th September 2007 and he was awarded a degree of BSC Agriculture 2nd Class Honors Lower Division.

He alleged that on 10th September, 2007, he drew the existence of an error in his degree to the attention of the Deputy Vice Chancellor, Finance and Administration, explaining the error and asking if he could proceed with his application for a Masters degree as he awaited rectification of the error. On the same day, he also made an application for a Masters degree. He was later advised to proceed with the application for a Masters degree pending review of the alleged error in the Bachelor’s degree.

On 19th August, 2008, after a year of waiting without any correspondence from the University, he went to pick his undergraduate degree certificate and he alleged that he was forced to pay for storage fee which he claimed was irregular and he was also given a degree certificate with the error stated elsewhere above but the Respondent nonetheless assured him that the error would be corrected. He claims that despite a number of visits to the University to follow up on the correction, the Respondent failed to do so and he therefore approached the Christian Legal Education and Research (CLEAR) entity for legal help which then communicated to the University.

Thereafter, on 17th March, 2011, he went to the University and he was asked to take his original degree certificate and transcripts to aid the correction of the error, which he did on 18th March, 2011. Later on 21st March, 2011 he was informed that the University had found errors in his transcripts and lowered his grade so as to fit a 2nd Class Honors Lower Division. As a result he was given a second set of transcripts which he disagreed with and demanded a rectification of the grades and the degree certificate.

He contends that the transcripts that were corrected had some units appearing twice and others were omitted while grades with respect to other course units were downgraded. That he thereafter spoke to one Mr. Mbuya, Assistant Registrar Examinations, in regard to addressing the errors in the 2nd set of transcripts. In his letter of 19th March, 2013 he wrote to the Respondents seeking a correction of the outstanding errors and the University wrote to him vide a letter dated 25th March 2013 proposing an amicable settlement of the matter but by a letter dated 19th July, 2013 the 2nd Respondent stated that he had failed ASS 102, Soil Chemistry. He disagreed and stated that addition of soil Chemistry as a subject was an error as he had not been examined in the said course. The University in a letter dated 12th August, 2013 stated that its position “remains as put forth”.

The Petitioner now claims that from the above facts and despite his many attempts to have the erroneous degree certificate amended the Respondents have failed and or refused to act upon his demands hence the Petition herein.

The Petitioner’s case

The Petitioner’s case is contained in his Amended-Petition, Supporting Affidavit thereof sworn on 25th May 2014 and a Further Replying Affidavit sworn on 4th December 2014.

It is his contention that his rights under Article 35(2)of theConstitution have been violated because his efforts of access to rightful and correct information regarding his degree have been frustrated and defeated by the Respondents. That the Respondents have also unlawfully concealed any information in relation to his transcripts and degree certificate and in contravention of his right to information. He relies on the case of Charles Omanga and Another vs Attorney General and Another (2014) e KLR for that position; where the Court held that it was upon the Court to examine whether a party had requested for certain information and where it had been denied, the same, whether the reasons for that denial accord to the Constitution.

It is his further case therefore that under the provisions of Article 35(2)of theConstitution, he has a right to have the correction or deletion of untrue and misleading information that affects him. That the initial transcripts awarded to him indicate that he had attained a 2nd Class Honors Upper Division but he was awarded a degree with a 2nd Class Honors Lower Division degree in under unjustified circumstances that had not been explained to date.

He also claims that he had been maliciously awarded wrong grades in the subsequent attempts by the University to reduce his degree to a Second Class Lower Division. He particularly states that there is a possibility that his results were swopped with those of one Waigua M.M. and therefore that he deserves to have his degree certificate amended to match his original transcripts dated 9th September, 2008 thus leading to the award of a Second Class Honors Upper Division.

It is his further position that his right to fair administrative action as provided for under Article 47of theConstitution had been violated and that the process of changing his degree had taken seven years and to date no change had been made to it. That the University has continually failed to respond to his letters and when they did it was not done in an expeditious, lawful reasonable and procedural manner. That the Deputy Vice Chancellor of the University had advised him to apply for a Masters degree course with the understanding that his degree certificate would be rectified but instead the University had acted unreasonably in changing his grades and had therefore misled him on an a number of occasions.

It is therefore his case that as a result of the above inconsistence actions, he has lost many opportunities to advance his education on scholarships when he was aged 31 years old and, today being 38 years old, he has lost seven years that would have been spent in active employment. He also alleges that he has lost job offers, with to wit Barclays Bank, Pioneer Assurance and Soni Sugar Company Ltd because he had no degree certificate to authenticate his educational qualifications.

He therefore urges the Court to inter-alia compensate him for the violation of his fundamental rights and freedoms and grant all the orders reproduced elsewhere above.

The Respondents’ case

The Respondents oppose the Petition through the affidavit of Henry Wangutsi Mutoro, the 1st Respondent’s Deputy Vice Chancellor (Academic Affairs), sworn on 27th October, 2014.

He states that the results for the 1st year of the Petitioner’s studies were released to all students at the right time and the Petitioner passed all subjects in his examinations. In his 2nd year however, he failed five units namely; ACR 207, ASC 204 (he did not sit for the exam), AEC 205, AAP 202, AGL 201 and AAE 202. As a result of failure to sit for one unit of examination the Board of Examiners requested that he repeat the said year but he appealed against the said recommendation on the basis that he undertook the examination while he was unwell. He however proceeded to his third year while awaiting the determination of his appeal and he sat for and passed all his 3rd year examination papers in the 2003/2004 academic year was recommended to proceed to his 4th year of study and later he sat for his 4th year examinations but failed in one course. The board of Examiners recommended that he be allowed to sit for a supplementary exam.

He claims that due to the six pending supplementary exam (2nd year) the one special exam (4th year) he did not graduate in the 2004/2005 academic year. Having failed to graduate he applied to sit for two units being APP 202 and ASC 204 and passed. Subsequently, in the year 2005/2006 he enrolled and sat for the supplementary exams and passed.

He contends thereafter that the Petitioner’s degree certificate was computed as provided by the 1st Respondent’s University Examination Regulations which provide that the final award of any degree is based on the average score of all the papers taken in the 2nd, 3rd and 4th year of study.

That after successfully completing his course, the Petitioner’s results were approved by the University Senate and his graduation ceremony was held on 6th September, 2007. On 5th September 2008, he was issued with his 1st, 2nd and 3rd year transcripts according to his request but because the 4th year transcripts for most of the candidates had errors they were recalled by the 1st Respondent for rectification. That the Petitioner’s transcripts similarly had an error which indicated that his degree classification was Second Class Honours, Upper Division contrary to his aggregate results and his degree certificate.

He avers that the complaints made by the Petitioner regarding the rectification of his transcripts were dealt with by the 1st Respondent and he received his duly amended transcripts on 13th August, 2012. He therefore contends that the Petitioner was awarded the correct degree contrary to his assertions.

In their submissions, the Respondents admit that there were two sets of transcripts presented to the Petitioner and they explained that this was because he had failed six units and had a supplementary exam and therefore first set of transcripts did not contain the results of the supplementary and special exams but the second set had the correct and inclusive results which were given to the Petitioner in 2012. They therefore claim that the Petitioner is estopped from claiming that his 2nd year results were swopped with those of another student named Waigwa as he was indeed given the correct transcripts.

They further submit that the Petitioner had failed to take into account the fact that even if the 4th Year transcript was made in error, the total marks for his results would not have amounted to an award of a Second Class Honours Upper Division degree.

It is the Respondents’ contention that in any event, it is the true custodian of the records and marks attained by the Petitioner and that the errors complained of were human errors and they were finally corrected although it took long to do so due to the fact that it took the Petitioner two years to set and pass his supplementary exams.

They further claim that the Court’s powers are limited as to the extent to which it can interfere with decisions of the 1st Respondent and that the Court can only interfere where there is a manifest reason to do so. They rely in that regard on the decision in Nyongesa & 4 Others vs Egerton University (1990) KLR 962 where the Court held that it could not interfere with decisions of bodies such as a university.

In conclusion, they claim that the Petitioner had failed to prove that the 1st Respondent’s decision was unfair and unjust to the Petitioner and urge the Court to dismiss the Petition as the Petitioner had not proved that the Respondents jointly and/or severally had violated any of his fundamental rights and freedoms.

Determination

From the pleadings and submissions before me, I am of the view that the only issue for determination in this matter is whether based on the facts above and which are largely agreed upon, any of the rights enshrined in Articles 35(2)and 47of theConstitution have been violated and whether the Petitioner is entitled to any of the declarations and orders that he has sought.

Rights under Article 35(2) of the Constitution

It is the Petitioner’s case that his right to have the rightful and correct information regarding his degree has been continually frustrated by the Respondents. His complaint against the Respondents is further that he was awarded a degree which had an error because the original and correct transcripts reflected that he had attained a Second Class Honors Upper Division and not a Second Class Honors Lower Division as awarded to him. He also claims that there was an error in the computation of his results for the 1st, 2nd and 4th years of his study.

In the above context,Article 35(2) (b)of the Constitution states that;

“Every person has the right to the correction or deletion of untrue or misleading information that affects the person.”

The normative content of the above right is clear and it requires no more than a literal interpretation. It comprises two elements; firstly, for one to enforce the above right, there must be untrue or misleading information. Secondly, the untrue or misleading information affects that person and I dare add that it affects him in a prejudicial manner.

In addition to the above, as I understand the jurisprudence on the subject, for a person to enforce the provisions of Article 35(2)of theConstitution, he must have requested for the deletion of the untrue and misleading information and the same had been denied. Further where the request has been denied, the Court will further have to interrogate the reasons and evaluate whether the reasons accord with the Constitution - See Andrew Omtatah Okoiti vs Attorney General & 2 others (2012) eKLR and Kenya Society for the Mentally Handicapped (KSMH) vs Attorney General and Others Nairobi Petition No. 155A of 2011.

Having said so, I will start by examining the record to ascertain whether the Petitioner has proved that there exists untrue and misleading information in regard to his degree certificate and academic transcripts. Thereafter, I will determine whether his rights under Article 35(2)of theConstitution has thereby been violated.

It is not contested that there exist three set of transcripts with regard to the Petitioner’s four academic years of study. According to the Petitioner, the errors in his grades started in the first year of study when his general grade was indicated as FAIL and it was recommended that he should sit for the supplementary examinations in AVP 101 and CCS 001 course units but that position has been controverted by the Respondent. Mr. Mutoro depones that the Petitioner passed all subjects in his first year of study. To that end, I have seen the transcripts produced as annexture ‘LSW 6A’, ‘LSW 17’ and ‘LSW 19’ and all bear that the Petitioner in AVP 101 scored a grade D and in CCS 001 scored a grade B. Mr. Mutwo is therefore right in his deposition.

In the Petitioner’s second year of study, Mr. Mutoro deponed that the Petitioner failed five course units and that he did not sit for one unit and as a result, the Board of Examiners recommended that should repeat the said year and resit all six course units. The Petitioner contested the decision of the Board of Examiners through an appeal but pending that appeal, he proceeded to the third year of study. On his part, the Petitioner contends that the University allowed him to proceed to his third year of study his appeal having been successful and what was indicated as fail was specified as special exams.

On the above issue, I have seen the Examination Regulations produced in the Petitioner’s supporting documents. It is indeed true that a student who fails more than five course units is required to repeat the whole of the academic year in issue. The Petitioner failed five units and the University directed him to repeat the 2nd year of study but he contested the decision. In the letter of 18th August 2003 and produced in the affidavit of Mr. Mutoro and marked as ‘HWM 7’, it is indicted the Petitioner appealed against the Board of Examiners’ recommendation on the basis that he was unwell during the examination period. On this Court’s record, there is no response from the Respondent on that appeal and what I can gather from the pleadings and annexture before me is that the Petitioner undertook all the five subjects that had initially been classified as both resits and supplementary examination sometimes in the 2005/2006 academic year. That issue cannot be contested and so again Mr. Mutoro is right.

None of the parties have a problem with the third year results and as regards the 4th year examination results, both parties are in agreement that the Petitioner failed one course unit and it was recommended by the Board of Examiners that he should sit supplementary examination which he did and passed. In a nutshell, the Respondents’ facts as reproduced above are true and there is nothing to be made of the Petitioner‘s position.

What of the Petitioners problem with the Respondent’ that he was categorized to have graduated with a 2nd Class Honours Lower Division degree as opposed to a Class Honours Upper Division degree? The Respondents on that issue contend that the 4th Year transcripts for most of the candidates including the Petitioner had errors and they were recalled by the 1st Respondent for rectification. Mr. Muturo adds that the error was indeed rectified and the Petitioner received his transcripts which revealed that he had obtained a 2nd Class Honours Lower Division and not a 2nd Class Upper Division degree. I have seen the rectified transcripts for the Petitioner in that regard which have been produced as annextures in the affidavit of Mr. Mutoro and marked as ‘HWM12’.

Despite the rectification, the Petitioner now claims that there are errors in his academic transcripts and degree for two reasons; firstly, his marks were most likely awarded to another student named Waigwa and the Respondents lowered the Petitioner’s grade so that they could fit a 2nd Class Honours Lower Division. Secondly, that his transcripts are not correct because he was awarded grades in a strange course, Principles of Soil, that he did not take and which was not in his syllabus. He therefore believes that he had qualified to be awarded a degree classified as 2nd Class Honours Upper Division.

Mr. Mutoro in his affidavit has admitted that there were errors in the transcripts of all the 4th year students including the Petitioner and that indeed that there was a mix up of the Petitioner’s results with those of Waigwa and that explained why the Petitioner’s degree was classified as a Second Class Honours, Upper Division. Further that the 1st Respondent rectified the errors and no untruth lies in the transcripts. In that context I have seen the annexture marked ‘HWM 12’ annexed to Mr Mutoro’s Affidavit and which contains the amended mark sheets of the Petitioner’s 4th year examination results. I am satisfied with the explanation given by Mr. Mutoro on that issue and so gain there is nothing untrue about the information complained of.

In addition, on the issue of the alleged errors and lowering his grades to fit the classification of the 2nd Class Honours Upper Division, Mr. Mutoro states that the University Examination Regulations provide that the final award of the degree is based on the average score of all papers taken in the 2nd, 3rd and 4th years of study and for one to graduate with a Second Class Upper Division, one must have had an aggregate of 60% and above, while the average score for a Second Class Honours Lower Division is 50% or above but less than 60%.

In that regard, I have seen the computation the Petitioner’s final score. In his 2nd year of study, his aggregate was 47%, in 3rd year it was 51% and in 4th year it was 56%. His overall mean was therefore 51. 3% and therefore his degree classification of Second Class Honours Lower Division is correct. I say so based on what is before me and no more. The issue whether or not he sat a principles of soil paper is not for this Court to determine as it has no material to make that determination.

In a nutshell, Article 35(2)of theConstitution grants the Petitioner the right to have any untrue or misleading information from his transcript deleted. Elsewhere above, I have stated the normative content of that fundamental right. It will be seen that the approach I have laid out earlier empowers the custodian of information to make the necessary judgment regarding the information. I have accepted the reasons advanced by the Respondent as to why they had to rectify the Petitioner’s transcripts. That being the case I see no grounds for finding that the rights under Article 35(2) have been violated as alleged.

Fair Administrative action

I now turn to consider the issue regarding violation of the right to fair administrative action and in that regard it is the Petitioner’s contention that the Respondents failed to expeditiously and efficiently respond to his complaints, amend his transcripts and thereafter award him the correct degree classification.

Article 47 of the Constitution provides for the right to fair administrative action in the following terms;

“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

The Petitioner contends that he started requesting the university to correct his academic transcripts and degree certificate from 7th September, 2007 and that thereafter he made several visits to the University in addition to the fact that he wrote a number of letters to Respondents on the same issue.

It is not in doubt that the issuance of the Petitioner’s transcripts and degree certificate was an administrative action by the Respondents. The Respondents were therefore under a duty to ensure that their actions were expeditious, efficient, lawful, reasonable and procedurally fair. Mr. Mutoro depones that the Petitioner received his transcripts on 13th August, 2012, a period of close to five years since the Petitioner graduated. That may well be so but what caused the delay? He was issued with his 1st, 2nd and 3rd year transcripts in September 2008. His 4th year transcripts were recalled and reissued alongside all other students but he only collected all his rectified transcripts in August 2012. I am unable to tell why this was so but from the record I am satisfied that the Respondents did not go to sleep neither did they resolutely refuse to deal with the Petitioner’s problem. As shown elsewhere above, action was taken on each of his complaints over that period of time. In the circumstances it is difficult for me to find that Article 47(1)and(2) of the Constitution was breached as alleged.

Whether the Prayers sought can issue

Elsewhere above, I have reproduced the prayers that the Petitioner seeks. As regards prayer (a), I have found that while the Petitioner had a right to have his transcripts corrected, I have also found that the Court cannot make an order as to the correction of his degree certificate because it is not the right body to do so and to purport to do so would mean usurpation of a function not bestowed on it by any law.

As regards prayer (b), the Petitioner sought an order that he is entitled to be given the primary source of information relied upon by the Respondents to change the marks. This prayer cannot be issued at this stage of the proceedings. I say so because Article 35(1) (b)of theConstitutionthat entitles a citizen the right of access to information held by another person required for the exercise or protection of any right or fundamental freedom is not self-propelling. A person cannot apply directly to the Court for the enforcement of this right. He must have requested for and has been denied the information first - See Nairobi Law Monthly vs Kenya Electricity Generating Company & 3 Others (2013) e KLR.

In that context I have no evidence that the Petitioner requested for that information and he was denied the same. The evidence on record in fact shows that he did request for the correction of his academic transcripts and degree and the same was done. Whether he is happy with that action or not is another matter.

In prayer (c) the Petitioner sought an order that his right to fair administrative action had been violated. I have started elsewhere above why this prayer cannot be granted and I need not repeat my reasons for so finding.

In prayer (d), the Petitioner seeks an order compelling the Respondents to issue him with an original set of undergraduate academic transcripts. Those transcripts were issued on 5th September, 2013 for the 2nd and 3rd years and on 9th December 2013 for 4th year. That being, so it follows that this prayer cannot be granted.

Prayer (e) seeks an order that the 1st Respondent does compensate the Petitioner for the loss of merited opportunities and income, career growth, loss of opportunities to further education, loss of reputation among his peers and anxiety and mental anguish. The Petitioner in that regard claimed that he had missed job opportunities due to the errors in his academic transcripts and degree certificate. I have seen the various job advertisements and the advertisement for postgraduate application at the 1st Respondent as annexed in the Petitioner’s affidavit. I do not have the probative value of these advertisements as regards the Petitioner’s case. It is not enough for the Petitioner to claim compensation. He must plead and specify why he deserves compensation which he has failed to do. The said prayer cannot be granted in the circumstances.

Conclusion

Having held as above, it follows that I see no merit in the Petition and the same is dismissed. As to costs, let each Party bear its own costs.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 13TH DAY OF NOVEMBER, 2015

ISAAC LENAOLA

JUDGE

In the presence of:

Muriuki – Court clerk

Mr. Biketi for Petitioner

No appearance for 1st and 2nd Respondent

Order

Judgement duly delivered.

ISAAC LENAOLA

JUDGE