[2022] KEHC 11479 (KLR)

Muguro v Kenya Medical Laboratory Technicians and Technologists Board & another (Petition 342 of 2019) [2022] KEHC 11479 (KLR) (Constitutional and Human Rights) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11479 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 342 of 2019

HI Ong'udi, J

May 17, 2022

IN THE MATTER OF ARTICLE 20, 21, 22, 23, 27, 43, 47 AND 159 OF THE CONSTITUTION OF KENYA IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

Between

Anne Wanjiku Muguro

Petitioner

and

Kenya Medical Laboratory Technicians and Technologists Board

1st Respondent

Jomo Kenyatta University of Agriculture and Technology

2nd Respondent

Judgment

1. The petitioner through her petition dated August 21, 2019 seeks the following reliefs: -a.A declaration that the actions by the 1st and 2nd respondents rendering the petitioner ineligible for registration to practice as a medical laboratory technologist (Bachelor of Science holder) is discriminatory, procedurally unfair, unlawful, unreasonable and infringes on petitioner’s legitimate expectation and petitioner’s rights to equality and education in flagrant breach of articles 27, 43 and 47 of the constitution of Kenya and section 7 of the Fair Administrative Action Act, 2015. b.Order of certiorari to remove into this Honourable Court and quash the decision by the 1st respondent declaring the petitioner ineligible for registration to practice as a medical laboratory technologist (Bachelor of Science holder).c.Order of mandamus compelling the 1st respondent to issue a certificate of registration to the petitioner as a medical laboratory technologist (Bachelor of Science holder.d.Order that the 1st and 2nd respondents compensate the petitioner for loss of career and golden opportunities and for the inconvenience caused due to their actions.e.Order be issue that the 1st and 2nd respondent be condemned to bear the cost of this petition.f.This Honourable Court be pleased to give such further order and direction as it may deem fit and just to grant.

The Petitioner’s Case 2. Her case as presented in the petition and supporting affidavit sworn on May 7, 2019, is that, after sitting for her KCSE examinations and scoring a mean grade of B-, she applied to join the 2nd respondent institution to undertake a Bachelor of Science degree in medical laboratory sciences (BScMLS). Pursuant to an admission letter from the 2nd respondent dated July 26, 2012 she was admitted to the said course after verification and was registered as a bonafide student and started her undergraduate training programme.

3. She further, submitted her admission details to the 1st respondent as part of the regulatory requirement with regards to student indexing, and they verified, approved, and authorized her admission to the 2nd respondent by assigning her index Number B301/12 issued to her on September 3, 2012. The indexing card certified that she was a bonafide 2nd respondent student, and her registration was in conformity with the provisions of the Medical Laboratory Technicians and Technologists Act, No. 10 of 1999.

4. She deponed that the indexing process confirmed that at the time of admission on September 3, 2012, she had met the minimum requirement for admission to undertake a Bachelor of Science programme in Medical Laboratory Sciences. She subsequently did the course for four years and graduated in a congregation held on 30th June 2016 having complied with all the academic requirements.

5. Upon completion, she applied to undertake the May 2017 professional licensing examination for BSc holders administered by the 1st respondent. After submitting all the required documents she paid the required Kshs.15,000/- and was issued with the examination card by the 1st respondent. She was later notified by the 1st respondent that she had not passed the examination. She again submitted all her documents and applied for a re-sit for the December 2017 examination. She paid for it and was issued with the examination card.

6. On February 9, 2018, she received an SMS notification from the 1st respondent informing her that she had passed the December 2017 professional examination, and further instructing her to visit the 1st respondent’s office in person to apply for registration to practice a BSc holder. She applied for the registration on September 13, 2018 and submitted all her academic documents and paid the assessment fees. She was issued with an official receipt by the 1st respondent.

7. She deponed that as she waited at the reception she was informed that she was not eligible for failure to meet the minimum requirements for the under graduate degree. That her score in mathematics was below the minimum C+ requirement. She was therefore allegedly not qualified to train as a Bachelor of Science student in medical laboratory science but rather as a diploma student.

8. She deponed further that having been admitted to the 2nd respondent, granted an indexing card and sat for the 1st respondent’s professional examinations for BSc Holders, the 1st respondent was estopped from declaring her ineligible to practice. After several visits to the 1st respondent offices between September 2018 and October 2018, the 1st respondent put its decision in writing. This was through a letter dated November 2, 2018 addressed to the Vice chancellor of the 2nd respondent institution. The letter stated that the petitioner was not eligible to be registered as a BSc holder and proposed that she be downgraded to diploma level and awarded a diploma certification before she could be registered by the 1st respondent as a diploma holder. (Annexture AWN.11)

9. She deponed that the 2nd respondent confirmed vide the letter dated February 5, 2019 that at the time she was admitted she met the then minimum requirement of C in Mathematics/ physics subject. It further confirmed that she had the right to be admitted to the institution at the time and indicated that the 2nd respondent did not offer a diploma in medical laboratory science (Annexture AWN-12) then. She averred that the actions by the 1st respondent contravened articles 27, 43 and 47 of the Constitution of Kenya and the provisions of the Fair Administrative Action Act, 2015.

1st respondent’s response 10. The 1st respondent filed a replying affidavit by Abdullatif Ali sworn on November 26, 2020. He deponed that the 1st respondent’s establishment and mandate is under sections 3, 5(2) of the Medical Laboratory Technicians and Technologists Act, cap 253 A. He further deposed that pursuant to section 19(5) of the said Act, the petitioner was fully aware of the repercussions of flouting any of the matters she had bound herself to. A review of her file indicated that she was admitted by the 2nd respondent to train for the BSc in 2012 and her KCSE Certificate showed that she had not obtained the minimum entry requirement of at least grade C+ in Mathematics.

11. He averred that she visited the board and was treated fairly, given an opportunity to be heard, and informed that her case was being reviewed by the education committee. Upon review, it was resolved that she be registered despite not meeting the minimum qualification in Mathematics on the basis that she had passed the Board examinations after re-sit. A certificate of registration was subsequently issued which she failed to collect from Board offices.

12. He deposed that since she was issued with her certificate of registration in court and that the 1st respondent has continued to issue her with her annual certificate without any hindrance, the matter was compromised. Further that no loss had been occasioned to the petitioner as she was registered by the board and her annual practicing certificate issued. That the board has not declined to recommend her to any prospective employer. He urged the court to mark the matter as settled.

The 2nd respondent’s response 13. The 2nd respondent filed a replying affidavit by Dr. Esther Thaara Muoria sworn on December 18, 2019. She averred that on or about July 19, 2012 the 2nd respondent received a letter from the 1st respondent informing it of the minimum requirements of indexing of students at the various levels of training. The said letter listed the subject clusters for a degree course in medical laboratory sciences as; Biology/ Chemistry C+, English/ Kiswahili C+ and Mathematics / Physics C plain.

14. She further confirmed that pursuant to an advertisement by the 2nd respondent the petitioner was admitted at the 2nd respondent’s main campus in Juja where she undertook the Bachelor of Science in Medical Laboratory Sciences and graduated on 30th day of June 2016 . She deposed that vide a letter dated 2nd November 2016, the 2nd respondent received a letter from the 1st respondent indicating that the petitioner did not meet the minimum entry requirement in BSc MLS as she had scored a C plain in Mathematics instead of C plus. That as such the petitioner could not be registered as a BSC holder, and should be downgraded to diploma level. Further it was the 1st respondent’s board recommendation that the petitioner be awarded with diploma certification before she could be registered.

15. The 2nd respondent responded vide the letter dated February 5, 2019 indicating that the petitioner was admitted into the programme in 2012 and at the time the minimum requirement was a C plain in Maths / physics. She was therefore admissible and had passed all her examinations including the board licensing examination. Hence she had complied with all requirements for admission to the programme.

16. She deponed that the role of the 2nd respondent was not to register eligible applicants to practice as medical laboratory technologists. Further that the petitioner had failed to demonstrate how her rights had been breached by the 2nd respondent to warrant the grant of the orders sought against it. She urged the court to dismiss the petition.

The petitioner’s submissions 17. The petitioner filed submissions dated December 16, 2020, through Chimei & company advocates. She has submitted that on December 16, 2019, the 1st respondent’s counsel handed over her certificate of registration and practice license. It would therefore appear that the prayers for orders of certiorari and mandamus could be marked as spent but in view of the 1st respondent’s replying affidavit the prayers still remain.

18. The petitioner identified three issues for determination. Regarding the issue of violation of article 27 of the Constitution, she submitted that she was subjected to both direct and indirect discrimination and ought to have been treated as other students admitted under similar minimum requirements in 2012. The same minimum grade and subject cluster requirements that the 1st respondent alleged she had not met were communicated by the 1st respondent to the 2nd respondent vide letter dated July 29, 2012. She relied on article 27(1) and (5) of the constitution, the book The Rule of Law (London Penguin Press, 2010), Mbona v Shepstone and Wylie [2015] ZACC11; Peter K. Waweru v Republic[2006] eKLR; Sollo Nzuki v Salaries and Remuneration Commission & 2 others [2019]eKLR, to support her argument.

19. On violation of article 43 of the constitution, she submitted that having been eligible for admission in 2012, it was an infringement on her right to education for the 1st respondent to change tune against its own standards set and applicable in 2012 and bar her from enjoying the fruits of her academic success. The result was that she was unable to practise and make an earning for herself due to being ineligible to apply for jobs. This led to delay of her certification and practice hence hindering her enjoyment of the right to education. The 1st respondent’s delay of 460 days to certify the petitioner infringed on her right to education. She relied onPaulpeter Makanda Makokha v University of Nairobi &another [2020]eKLR and Gabriel Nyabola v Attorney General & 2 others[2014]eKLR, in support.

20. Relying on Jesse Waweru Whom & 14 other vs. Kenya Engineers Registration Board & 8others [2012]eKLR, she argued that the 1st respondent contravened article 55(a) of the Constitution. She submitted that she found herself in the same predicament as the petitioners in the cited case.

21. Regarding articles 47 & 259(8) of the constitution, section 7 of the Fair Administrative Actions Act, 2015, and Republic v Cabinet Secretary for Ministry of Interior & coordination of National Government ex parte Patricia Olga Howson, she argued that the delay of 460 days on the part of the 1st respondent to issue the certificate of registration and license to the petitioner was unreasonable and not expeditious.

22. She submitted that the decision by the 1st respondent was unreasonable and infringed upon her legitimate expectation. It further flouted the basic rules of justice, equity, reason and logic and the decision was unfair and unreasonable. She relied on Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 as expounded by Lord Diplock in Council of Civil Service Unions v Minister for Civil Service [1984] UKHL, to argue this point.

23. On legitimate expectation she was sure of being registered to practice since she had passed the examinations. She relied on Nairobi H.C. Judicial Review No. 294 of 2010, Republic v Commissioner of Domestic Taxes and another, exparte Kenton college Turcot; Council of Civil Service Unions v Minister for civil Service [1984] 2 ALL ER 935; and Republic v Pharmacy and Poisons Board & 2 others Ex parte Juliet Lihemo Agifa[2015] eKLR, to support this argument.

24. On fairness and unreasonability of the decision she contends that the decision had no basis. She referred to Republic vs Attorney General& another Exparte Waswa & 2 other[2005] 1KLR and Rita Biwott v Council of Legal Education and AnotherNairobi HC Misc. Appl No. 1122 of 1994 (unreported) in support.

25. Relying on Leonard Kipkurui Sang v Council of Legal Education & another[2020] eKLR, she argued that the 1st respondent violated the legitimate expectations and express provisions of Article 47 of the constitution and section 4(3) of the Fair administrative Action Act 2015. She also urged the court to consider the case of Jane Kiongo & 15 others v Laikipia University & 6 others [2019] eKLR on legitimate expectation, among others.

26. On certiorari, it was submitted that the decision by the 1st respondent contravened the provisions of the constitution and principles of natural justice and the decision was illogical, inconsistent, ridiculous and untenable in law and should be quashed. On the orders of mandamus, she argued that based on the 1st respondents replying affidavit, this matter needs to be put to rest by the court compelling the 1st respondent to issue a fresh certificate of registration and a practicing license to the petitioner dated September 13, 2018 on the merits of the application.

27. On compensation, she argued that she needs to be compensated as she was kept in the cold for 460days. She relied on Paulpeter Makanda Makokha v University of Nairobi & Another [2020] eKLR where the court awarded Kshs. 500,000/-; Martin Wanderi & 106 others v engineers Registration Board & 10 others [2018] eKLR an award of Kshs. 200,000/- was given; and Leonard Kipkurui Sang v Council of Legal Education & another [2020] eKLR an award of Kshs. 100,000 was granted. She urged this court to award her Kshs. 1,000,000/-.

28. On costs, she urged this court to grant the costs of the petition as against the respondents with interest from the date of filing the petition.

The 1st respondent’s submissions 29. The 1st respondent filed submissions dated 14th April 2021, through Githinji Mwangi & Associates. Counsel substantively reiterated the contents of the replying affidavit maintaining that the matter was moot and compromised and that it had acted within the confines of the law.

30. Relying on Republic vs Judicial Service Commission Exparte Pareno, it argued that the sufficiency or lack of the decision to not issue registration went to the merits of the decision of the board and not the legality of the said decision. Further relying on Meixner & another v Attorney General [2005] 2KLR, it submitted that the petitioner has not demonstrated that the decision complained of was made without jurisdiction or in consequence of an error of law or that there is abuse or excess of power. No evidence has been presented before court to demonstrate that it acted illegally, irrationally or with procedural impropriety.

31. Relying on Republic v Head Teacher Kenya High School & another exparte SMY (a minor suing through her mother and next friend A B) [2012] eKLR, it argued that the orders of mandamus sought cannot issue as the petitioner had already been issued with the registration certificate and the initial non- registration of the petitioner was justified.

32. It relied on the case of Baseline Architects Limited & 2 others vs National Hospital Insurance fund Board Management [2008] eKLR for the proposition that the there were circumstances in which the public interest must be dominant over the interest of a private individual. Accordingly, health is an important public sector and regulations of proper standards of medical laboratories throughout the country ensures that the members of the public are accorded service by qualified professionals and further that the health of the public is not jeopardized by unregulated medical practice.

33. It urged the court to find that the petition is unmerited as it has demonstrated that the delay in registration was not actuated by ulterior motive. Further that the petitioner was not prejudiced in anyway during the period of her case review. Finally that she was eventually issued with her certificate and continuous to be a registered professional by the 1st respondent.

The 2nd respondent’s submissions 34. The 2nd respondent filed submissions dated February 25, 2021, through Mukele, Moni & co. advocates. Counsel raised three issues for determination. He argued that there was no pleading or allegation of any denial, violation, infringement and/ or threat of the petitioner’s rights or fundamental freedoms in the bill of rights by the 2nd respondent. That all the allegations pointed towards the 1st respondent hence the orders sought against it should not be granted. Reliance was placed on Articles 22(1), 23(1) of the constitution and the cases of Transafaris Sacco Limited & Another v Classic Luxury Shuttle & 2 others Constitutional Petition No. 591 of 2017 ( Nairobi) and Philips and others v National Director of Public Prosecutions [2005] ZACC 15; 2006(1) SA 505 (CC); 2006 (2) BCLR 274(CC).

35. Counsel argues that the petitioner failed to demonstrate that her rights or fundamental freedoms in the bill of rights were violated, and or threatened by the 2nd respondent. According to the 2nd respondent, the basis of the petition was the decision by the 1st respondent to declare her ineligible for registration to practice as a medical laboratory, technologist. That it was only involved in the registration and admission of the petitioner to undertake the undergraduate degree which was in accordance with the minimum requirements for indexing of students approved by the 1st respondent at the degree level.

36. The action as to how the 1st respondent executed its mandate in law could only be sustained against the 1st respondent and not the 2nd respondent. That the petitioner failed to disclose a reasonable cause of action against it. It relied on Unilever Tea Kenya Limited v National Land Commission & 2 others E.L.C. Petition No. 11 of 2017 (Kericho); Elisheba Muthoni Mbae v Nicholas Karani Gichohi & 2 others (2014) eKLR wherein Havelock J cited the case of Werrot & Co. Ltd & others v Andrew Douglas Gregory & others ( Milimani ) HCCC NO. 2363 of 1998 (UR) it therefore requested that the matter be settled without its participation as it was not a necessary party.

37. It was further submitted that by exercising its statutory mandate and admitting the petitioner into the programme in accordance with the requirements laid down by the 1st respondent, it did not infringe on the petitioner’s rights. It argued that the instant petition failed to meet the threshold for the grant of the orders sought against it.

38. Relying on Republic v City Council of Nairobi & Another Misc. Application No. 84 of 2011 [2013] High Court Miscellaneous Application 84 of 2011 ( Nairobi) where Odunga J cited with approval Republic v Judicial Service Commission ex parte Pareno [2004] 1 KLR 203- 209; Emmanuel Chengo Kenga v Kenya Ports Authority & 2 others; Catherine Mturi- Wairi & Another (interested Parties)Petition No. 164 of 2018 (Mombasa) it argued that by virtue of the fact that on 16th December 2019 , the 1st respondents counsel handed over the petitioner’s certificate of registration and practise licence the matter has been overtaken by events.

Analysis and determination 39. Having carefully considered the petition, the responses parties’ submissions, cited authorities and the law I find the issues for determination to be as follows: -i.Whether petitioner’s rights under Articles 27, 43 and 47 of the constitution were violatedii.Whether the 2nd respondent was a necessary partyiii.Whether the reliefs sought should be grantedi)Whether the petitioner’s rights under Article 27, 43 and 47 of the constitution were violated

40. The facts as narrated by both parties are very straight forward. The petitioner obtained a grade C in Mathematics for her KCSE. She had sat the examination in November 2011. In the replying affidavit the 2nd respondent through its registrar confirmed that it had received a letter (ETM-1) dated July 19, 2012 indicating the minimum requirements for admission for various levels of training.

41. For a degree course in Medical Laboratory Science (which the Petitioner undertook) the requirements were:-i.Mean grade C+ (Plus).Subject clusters:-Biology/Chemistry – C+English/Kiswahili – C+Mathematics / Physics – C (Plain)

42. The 1st Respondent has nowhere denied having authored that letter. It has also not indicated that the letter was recalled by it. The Petitioner’s grades as per AWN 1 are shown as:-Mean Grade B- (Minus)English - B-(minus)Kiswahili - B (plain)Mathematics - C (plain)Biology - B-(minus)Chemistry - C+ (plus)History & Government - B (plain)Christian Religious Education - B+ (plus)Business studies - B (plain)

43. The Petitioner was admitted to the 2nd respondents Institution in line with the minimum requirements set by the 1st respondent as per the letter dated July 19, 2012. She was admitted vide the letter dated July 26, 2012. If there were any later changes to the minimum requirements for the training after this were they ever communicated to, the 2nd respondent, petitioner and other students? Even if there were any such changes would they affect the Petitioner and other students who had been admitted on the basis of the communication (ETM-1)? The 1st respondent has not said anything about this.

44. Regarding article 27 of the constitution, the petitioner argued that she was subjected to both direct and indirect discrimination and should have been treated as other students admitted under similar minimum requirements in 2012. The respondents did not touch on article 27 of the constitution but the 1st respondent maintained that the petitioner had not met the minimum requirement for Mathematics while the 2nd respondent submitted that at the time of admission into the programme she had met all the requirements.

45. Discrimination was defined in Peter K. Waweru v Republic [2006] eKLR as follows;“Under section 82 (3) of the Constitution of Kenya, “discriminatory” means “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”.

46. The court in the above case further while referring to the Black’s Law dictionary11th Edition on the meaning of discrimination stated:-““Discrimination” In constitutional law the effect of a statute or established practice which confers particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between them and those not favoured no reasonable distinction can be found.Unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion. A failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”

47. In the case of Mbona v Shepstone and Wylie [2015] ZACC11, the court therein laid down the factors to be considered in determining whether the conduct complained of amounts to discrimination. It stated thus:-“(26)The first step is to establish whether the respondent’s policy differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in section 9 of the Constitution, it is presumed to be unfair… Where discrimination is alleged on an arbitrary ground, the burden is on the complainant to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair”

48. In James Nyasora Nyarangi & 3others v Attorney General [2008] eKLR Nyamu J. while discussing discrimination stated:-“Discrimination which is forbidden by the Constitution involves an element of unfavourable bias. Thus, firstly an unfavourable bias must be shown by a complainant. And secondly, the bias must be based on the grounds set out in the Constitutional definition of the word “discriminatory” in section 82 of the Constitution.Both discrimination by substantive law and by procedural law, is forbidden by the constitution. Similarly, class legislation is forbidden but the Constitution does not forbid classification. Permissible classification which is what has happened in this case through the challenged by laws must satisfy two conditions namely:-(i)it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and(ii)the differentia must have a rational relation to the object sought to be achieved by the law in question.(iii)the differentia and object are different, and it follows that the object by itself cannot be the basis of the classification.’’

49. In Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others [2019] eKLR, while declining to find that the petitioner’s right under article 27 of the Constitution was trampled upon, Okwany J, cited with approval the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR, where the court made reference to Article 27 of the Constitution, thus;“[i]t must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.”

50. Based on the above cases, it is evident that for the petitioner to succeed on the issue of discrimination, she must prove unfavourable bias and the said bias must be based on the grounds set out in the Constitution. A point to note is that discrimination does not act in isolation; to prove it, a comparison must have been made. In the case herein, the petitioner has not adduced any evidence to show that she was treated any different from other petitioners or other parties. She did not show that others who were admitted under the same circumstances were favoured or treated differently from her. I find that the right was not contravened.

51. Regarding Article 43 of the Constitution, the petitioner submitted having been eligible for admission in 2012, and that it was an infringement on her right to education for the 1st respondent to change tune against its own standards applicable in 2012 and bar her from enjoying the fruits of her academic success. She was unable to practise and make an earning for herself due to allegedly being ineligible to apply for jobs. Further that this led to her delay to practice hence a violation of her enjoyment of the right to education. The respondents still maintained their positions.

52. Article 43 (1) (f) of the constitution provides that every person has the right to education. In analyzing this right as envisaged under Article 43(1) (f) of the Constitution, the court in the case of Joseph Njuguna & 28 others v George Gitau T/A Emmaus School & another [2016] eKLR adopted the following view:“39. It is key to observe that this right is placed on the State such that, where the State does not have resources to implement a right under Article 43, the State has to either show that it does not have the resources or it will give priority to ensuring the widest possible enjoyment of the right to prevailing circumstances, including the vulnerability of particular groups or individuals. The provision under the Bill of Rights applies to all law and binds all State organs and all persons. To ensure this right, the Basic Education Act (supra) enjoins the Cabinet Secretary to implement the right to basic education as enshrined under Article 53. Also see J. K. (suing on behalf of C.K.) v. Board of Directors of R. Sch. & another 2014 eKLR. and MMM v Permanent Secretary, Ministry of Education & 2 others [2013] eKLR.

53. Based on the foregoing, and the context of the alleged violation, in my view it was impossible for the respondents to violate the petitioner’s right under Article 43(1) (f) since availability of this right is borne by the State and not learning institutions. Secondly, the petitioner was not denied admission at the 2nd respondent’s institution, which confirmed that she undertook the undergraduate programme and graduated. This provision was not contravened by the respondents.

54. In regard to article 47 of the constitution and section 7 of the Fair Administrative Action Act, 2015, the petitioner argued that, the delay of the 460 days on part of the 1st respondent in issuing the certificate of registration and license was unreasonable and not expeditious. Further that it infringed upon her legitimate expectation and section 4(3) of the Fair Administrative Action Act, 2015.

55. Article 47 of the Constitution, provides for the right to fair administrative action. Sub- Article (1) provides “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

56. In Governmental Organizations Co-ordination Board & another [2018] eKLR, the court observed that:-“35. The Constitution}} is the Supreme law of the Republic and decrees as such in Article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies..”

57. The Court of Appeal in the case of Judicial Service Commission v Mbalu Mutava & another [2014] eKLR emphasized the importance of the right to fair administrative action. It stated;“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”Also see Egal Mohammed Osman vs., Inspector General of Police & 3 others [2015] eKLR; Onyango Oloo v. Republic(1986 – 1989) E.A. 456.

58. In the case of The Management of Committee of Makondo Primary School & another vs. Uganda National Examination Board High Court Miscellaneous Civil Misc Application No. 18 of 2010 where the Supreme court of Uganda held regarding the rules of natural justice;“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

59. In Republic v Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010] eKLR the 3- judge bench cited with approval the case of Tellis vs Bombay Municipal Corporation [1987] LRC (Constitution) 351 where Chandrachand C.J. stated;“The right to be heard has two facts, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity to express their dignity as persons.”At page 375 he said;““The ordinary rule which regulates all procedures is that persons who are likely to be affected by the proposed/likely action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be show to exist, when so required, the burden being upon those who affirm their existence.”Also see Section 4 & 7 of the Fair Administrative Actions Act, 2015

60. In the instant case, it is my view that the said Article was contravened. This is because, the petitioner was not heard before the decision was taken by the 1st respondent. Neither has the 1st respondent adduced evidence to demonstrate that she was heard before denying her the license and further before suggesting to the 2nd respondent to downgrade her to diploma level even without earing her. This was despite granting her an indexing card and administering board examinations to her. The 1st respondent has also admitted in its relying affidavit that the curriculum by the 2nd respondent conformed to the requirements.

61. The petitioner has also pointed out that her legitimate expectation was infringed upon. The principles on legitimate expectation were elaborated in Royal Media Services Ltd and 5 others (Petition No. 14 of 2014);(i)there must be an express, clear and unambiguous promise given by a public authority;(ii)the expectation itself must be reasonable;(iii)the representation must be one which was competent and lawful for the decision maker to make; and there cannot be a legitimate expectation against clear provisions of the law or the Constitution.

62. I do agree that the petitioner’s legitimate expectation was breached. This is because, she was admitted into the undergraduate course by the 2nd respondent, granted an indexing card by the 1st respondent, given board examinations, paid assessment fees for registration without any objection from the 1st respondents.

63. The 2nd respondent confirmed that as per the requirements subsisting in 2012, the petitioner had met the minimum threshold in Mathematics. It is therefore a breach of her legitimate expectation that she would be registered and granted the practising license to enable her do her work. It was absurd for the 1st respondent to turn around and claim that she had not met the minimum threshold.

64. In its replying affidavit and the submissions the 1st respondent asserts that the Petitioner lost nothing as the certificate was issued to her and she can practice. The certificate is said to have been issued to her in court on December 16, 2019. According to the 1st respondent the petitioner’s case was under review by its board and it was after the said review that the certificate and practice licence were issued. How long was this after the initial application in September 2018?

65. My main question is what the review was all about. There is no denial of the instructions given to the 2nd respondent (EMT 1) and there is no presentation of further instructions to the ones in (ETM 1). The petitioner applied for a certificate on 13th September 2018 when the same was denied by the 1st respondent. On November 2, 2018 the 1st respondent did a letter to the 2nd respondent (ETM 6) alleging that the petitioner did not qualify for the degree awarded but for a diploma.

66. It was only on February 5, 2019 (ETM 7) that the said letter was responded to by the 2nd respondent yet this was a very serious and urgent matter. For sure this court would have expected the 1st respondent which has a statutory mandate and mission to protect the health of all Kenyans to explain to it the real basis of denying the Petitioner certification in the face of the instructions vide the letter (ETM-1).

ii. Whether the 2nd respondent was necessary party 67. The 2nd respondent argued that the matter could proceed without its presence and that the matter ought to be dismissed against it for the reasons that there is no reasonable cause of action against it. I have had a look at the nature of the issues raised. The genesis of this petition is mainly based on the decision by the 1st respondent. The 2nd respondent in any event supports the petitioner’s case and cannot be faulted in any way in contributing to the petitioner’s predicaments. This Court could not however assume the fact that the 2nd respondent is the institution that administered the degree course and its presence has helped the court make a determination on merit.

68. Rule 5 (b) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013(Mutunga Rules) provides that a petition shall not be defeated by reason of misjoinder of parties, and the court may in every proceeding deal with the matter in dispute. Article 23 (1) of the Constitution mandates the High court to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Sub Article (3) provides for the reliefs that the court may grant. This suit cannot therefore be defeated for the reasons advanced by the 2nd respondent.

iii. Whether the reliefs sought should be granted 69. The petitioner has sought for declarations, certiorari, mandamus orders; compensation; and costs of the petition. The petitioner has insisted on the orders being issued since the 1st respondent in its replying affidavit has insisted that she had not met the minimum qualifications in mathematics and that she was issued with the certificate and practice licence because she had re-sat and passed the board examinations. On the issue of compensation, she submitted that she had been kept in the cold for 460 days and was denied the opportunity to practise and serve humanity. She urged the court to award her Kshs. 1,000,000/-.

70. The respondents have on the other hand submitted that the said orders should not be granted as the matter has already been overtaken by events, and is therefore moot and an academic exercise. The 2nd respondent has maintained that there is no reasonable cause against it and that all the orders sought against it should be dismissed.

71. Article 23 (1) of the Constitution provides that the High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

72. Article 23(3)of the Constitution provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-

a.A declaration of rights;b.An injunction;c.A conservatory order;d.A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;e.An order for compensation; andf.An order of judicial review.

73. The Court of Appeal in the case of Attorney General v Kituo cha Sheria & 7 others [2017] eKLR stated;“Quite beyond argument then, the Bill of Rights in Kenya’s constitutional framework is not a minor peripheral or alien thing removed from the definition, essence and character of the nation. Rather, it is said to be integral to the country’s democratic state and is the framework of all the policies touching on the populace. It is the foundation on which the nation state is built. There is a duty to recognize, enhance and protect the human rights and fundamental freedoms found in the Bill of Rights …The clear message flowing from the constitutional text is that rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State...respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey.”(Emphasis)

74. On December 16, 2019, the petitioner was handed over her documents by the 1st respondent. A look at prayers (a), (b) and (c) of the petition shows that the orders sought therein by virtue of the happenings on 16th December 2019 have been overtaken by events. The issue however is that the 1st respondent insists that the petitioner did not meet the minimum qualification in mathematics and was only granted the documents because she has re-sat and passed the board examinations. By the utterances of the 1st respondent, the matter remains unsettled and the petitioner is left in a state where her future is unpredictable.

75. Regarding judicial review orders, the petitioner has sought for certiorari and mandamus orders. The court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR stated:-“…that now brings us to the question we started with, namely, the efficacy and scope of mandamus, prohibition of certiorari. These remedies are only available against public bodies such as the Council in this case…The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law ofEngland,4th Edition Volume 1 at page 111 from paragraph 89. That learned treatisesays:- “The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” At paragraph 90 headed “the mandate” it is stated:““The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

76. The Court has found that there was no good reason for the 1st respondent to treat the petitioner the way it did. There is no favour it has done to her. By stating in an affidavit that it gave her the documents because she re-sat and passed the board’s examination is a real sign of dishonesty. One may even wonder if indeed she did not make it at the first sitting. Because of that unsupported stand taken by the 1st respondent this court finds that the petitioner is deserving of the orders of mandamus and certiorari.

77. On violation of the various rights this court has found only Article 47 to have been violated.

78. As to the claim of general damages, by dint of article 23 (3) (e) of the Constitution, this court may grant appropriate relief including an order for compensation. The principles applicable to award of damages for constitutional violations under the Constitution were explained exhaustively by the Privy Council in the famous case of Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004 wherein it was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.Per Lord Nicholls at Paragraphs 18 & 19:“An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An Additional award, not necessarily of substantial size, may need to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach and deter further breaches.(emphasis) All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances.” (Emphasis)

79. In the case of Peter Mauki Kaijenja& 9 others v Chief of Defence Forces & another [2019] eKLR it was held that the issue of award of damages is discretionary and should be exercised judicially. The court stated:“96. Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Courts…”

80. When it comes to an award of general damages, the courts are guided by the principles that have been established through various authorities to guide them in determining the appropriate award in constitutional matters. The Court of Appeal while shedding light on this principle in the case of Gitobu Imanyara & 2 others v Attorney General[2016] eKLR opined as follows:“…the South African Case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 where the Constitutional Court of South Africa held that:“...The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.“…The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”Also see Peter M. Kariuki v Attorney General [2014] eKLRThe Ugandan case of Cuossens v Attorney General, (1999)1 EA 40. 81. One of the factors that should be considered while making an award of general damages, as seen in the case of Zipporah Seroney & 5 others v Attorney General [2020] eKLR is:“124. Taking into account the cited principles, and considering that the award of general damages is not a mathematical exercise, the best guide is the awards previously made to persons whose constitutional rights were violated in circumstances similar to that of the deceased. This is the only way of determining a just and reasonable compensation considering that the parties did not make any proposals in their submissions on what they think should be the appropriate damages in this case.”

82. It is onlyarticle 47 of the Constitution that was found to have been violated. It is undisputed that despite having passed her examinations and being qualified to practice the petitioner’s dreams were dampened because of the 1st respondent’s unfounded decision not to certify her. Moreso she was never given an opportunity to be heard on the matter. The decision was irrational and unreasonable in light of the 1st respondent’s letter to the 2nd respondent dated 19th July 2012 (ETM 1). On compensation for breach of Article 47 of the Constitution I am guided by the decisions in:-(i)Kenya Human Rights Commission & another vs. Non-Governmental Organizations Co-ordination Board and Another[2018] eKLR where the court awarded Kshs.2,000,000/=(ii)Maureen Angeline Okinda v. Jambo Shop Ltd [2021] eKLR where the Court awarded Kshs.1,000,000/= for violation of Articles 27, 28 & 47 of the Constitution.

83. I therefore award the petitioner compensation in the sum of Kshs.750,000/=. In conclusion I find merit in the petition and make the following orders:-(i)The claims against the 2nd respondent were not proved. The suit against it is dismissed.(ii)A declaration that the 1st respondent’s action in rendering the petitioner ineligible for registration to practice as medical laboratory technologist (Bachelor of Science holder) is procedurally unfair, unlawful, unreasonable and infringes on the Petitioner’s legitimate expectation and her right to fair administration in flagrant breach of article 47 of the Constitution and section 7 of the Fair Administrative Action Act, 2015. (iii)Order of Certiorari to remove into this Honourable Court and quash the decision by the 1st respondent declaring the petitioner ineligible for registration to practice as a medical laboratory technologist (Bachelor of Science holder).(iv)Order of mandamus compelling the 1st respondent to issue a certificate of registration to the petitioner as a medical laboratory technologist (Bachelor of Science holder) backdated to 13th September 2018 when she first applied for it.(v)An award of Khss.750,000/= to the petitioner to be paid by the 1st respondent, as compensation.(vi)Costs of the petition to be borne by the 1st respondent.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 17TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT