[2022] KEHC 11289 (KLR)

Mutembei v EAPC Bible College (Thro’ Its Board Of Management & another (Civil Suit 20 of 2019) [2022] KEHC 11289 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11289 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Suit 20 of 2019

TW Cherere, J

May 5, 2022

Between

Dorcas Ntinyari Mutembei

Plaintiff

and

EAPC Bible College (Thro’ Its Board Of Management

1st Defendant

John Koome

2nd Defendant

Judgment

1. EAPC Bible College (1st Defendant) is a learning institution and John Koome (2nd Defendant) is its principal.

2. Dorcas Ntinyari Mutembei (Plaintiff) applied to train with the 1st Defendant and was admitted on 17th April, 2017 to study a diploma course in theology. Plaintiff went through a two-year training, passed her exams and was due for graduation on 17th July, 2019 but did not graduate on the grounds that her ex-husband Eric Mutembei had informed the 2nd Defendant that the two had separated.

3. PW2 Daniel Munugu Gatua a friend of the family and Plaintiff’s mother PW3 Susan Mukiri Thuranira confirmed that Plaintiff had successfully completed her two-year diploma course and were surprised that she could not graduate on the basis that her ex-husband had told the 2nd defendant that he would not recommend her for graduation. The stated that Plaintiff’s attempt to resolve the matter amicably failed after they accompanied the Plaintiff to a meeting with the Defendants on 26th June 2019 but they were dismissed and informed that the Plaintiff would not graduate.

4. Aggrieved by the Defendants’ actions, Plaintiff filed this suit by way of a plaint dated 17th July 2019 which was subsequently amended on 27th August 2020, in which she seeks the following orders: -a.A declaration that acts of the 1st Defendant of rejecting and/or non-allowing the plaintiff to graduate on 17th July 2019 despite having qualified in terms of passing the exams and equally finishing the college fees contravened the Petitioners fundamental rights and freedoms under Article 2(1), 3(1), 10(1)(2), 19(2), 20(2),22,23,24,27(1), 28 and 47 of the Constitution and therefore such violation and/or infringement was unconstitutional, unlawful, illegal, null and void in consequence the Honorable Court intervenes to quash, set aside and/or put a stop to the same forthwith.b.A declaration to issue to the effect that the provisions of Article 21 of the EAPC to the extent that the same applies dissimilar treatment exclusively to the plaintiff is discriminatory, irrational, unreasonable, arbitrary, abuse of discretion, exercise of discretion for improper purposes, unlawful, acting unfairly, unreasonable and amounted to exercising of the arbitrarily and had violated the right and fundamental freedom of the petitioner.c.A declaration that the 1st defendant conduct above amounted to acting unfairly, acing in violation of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act 2015 to the extent that the Petitioner was not afforded the benefit of the rules of natural justice and was not heard before the decision to bar or reject her from graduating therefore the whole process leading to the non-graduating was in expeditious, inefficient, unlawful, unreasonable, procedurally unfair, unconstitutional, nullity, null and void ab initio and accordingly quashed and/or set aside in its entirety.d.An order directing the 1st and 2nd defendants to organize and forthwith graduate the plaintiff herein without any condition.e.Costs.f.Any other orders that this Honorable Court deems fit and just to grant in the circumstances of this plaint in the interest of justice.

5. By a joint statement of defence amended on 24th May 2021, Defendants deny all allegations and aver that the Plaintiffs name had not been included in the graduation list for 17th July 2019 for reasons that were known and communicated to her. Defendants also urge that this suit be dismissed with costs as the court lacks jurisdiction to hear and determine this suit for non-exhaustion of the Dispute Resolution Mechanisms provided for by the church constitution under Article 21 of the EAPC Constitution 1999 and further that the 2nd Defendant ought not to be sued in his personal capacity.

6. In his evidence, 2nd Defendant conceded that Plaintiff was a disciplined student, had paid all fees and passed all her exams. He conceded that the Defendants’ action of denying the Plaintiff an opportunity to graduate on the basis of an SMS message sent to him by Plaintiff’s ex-husband Eric Mutembei was not supported by the 1st Defendant’s regulations since it did not bar divorced or separated couples from training with the 1st Defendant. He similarly conceded that the Plaintiff was not given an opportunity to confirm or deny the allegations made against her by her ex-husband Eric Mutembei and that by a report dated 18th June, 2019, he wrote to the BOM informing them his decision to bar the Plaintiff from graduating which decision the BOM sanctioned.

Submissions 7. The Plaintiff via submissions dated 7th February 2022 submitted that that the court has been conferred with the jurisdiction to deal with this matters of violation of constitutional rights and freedoms. She urged the court to find that Defendants had violated her constitutional rights as enshrined in Article 27, 28, 31, 35, 47 and 50. She contends that were it not for the breach on the part of the Defendants, she was due to graduate on 17th July 2019. She urged the court to find that she is entitled to compensation and prayed for damages in the sum of Kshs. 5,000,000. Reliance was placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, In the matter of the Interim Independent Electoral Commission Constitutional Appl. No 2 of 2011, Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR, Peter Muiruri V Credit Bank Limited & Others, Jacqueline Okeyo Manani & 5 others V AG 7 another [2018] eKLR andJW1 V Standard Group Limited & Another [2013] eKLR.

8. The defendants via submissions dated 29th March 2022, contended that constitutional reliefs should only be sought by way of a petition and urged that the plaint be struck out as it violates the Mutunga rules. They fault the Plaintiff for not exhausting the laid down dispute resolution mechanisms before coming to court and for suing the 2nd defendant who is an employee of the 1st defendant in his personal capacity and urge that the suit against him be struck out. Reliance was placed on Geoffrey Muthinja & Another V Samuel Muguna Henry & 1765 Others [2015] eKLR, JN & Others V BOM St. G. School Nairbi & Another [2017] eKLR, Githunguri Dairy Farmers Society Ltd V Attorney General & 2 Others[2016] eKLR, Mary Jemutai Tonje V Raphael Chebii & 5 Others[2018] eKLR, Leonard Otieno V Airtel Kenya Ltd[2018] eKLR.

Analysis and Determination 9. I have considered the evidence on record, submission by the parties and the cited authorities and I have deduced the issues for determination as follows: -a)Whether this court has jurisdiction to hear and determine this suitb)Whether the suit is properly filedc)Whether Plaintiff was under a duty to employ the 1st Defendant’s dispute resolution mechanismsd)Whether the Defendants violated the Plaintiff’s constitutional rightse)Is Plaintiff entitled to any remedy/remediesf)Who bears the costs of this suit

(a) Whether this court has jurisdiction to hear and determine this suit 10. In Re the Matter of the Interim Independent Electoral Commission Constitutional Appl. No 2 of 2011, the Supreme Court of Kenya stated as follows: -

“(29)Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lilian S' v Caltex Oil Kenya Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.” 11. In yet another case of Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the Supreme Court pronounced itself on jurisdiction thus [paragraph 68]:“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

12. Article 23 as read with Article 165 of the Constitution has given the High Court the exclusive jurisdiction to deal with matters of violations of fundamental rights (Protus Buliba Shikuku v R, Constitutional Reference No. 3 of 2011, [2012] eKLR.). Consequently, I find that the Defendants’ contention that this court has no jurisdiction to determine this suit where Plaintiff claims that her constitutional rights and freedoms have been violated is misguided.

(b) Whether the suit is properly filed 13. I concur with the Defendants’ contention that the practice and procedure generally with regard to institution and prosecution of Constitutional matters is clearly guided by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, otherwise referred to as (Mutunga Rules).

14. Rule 10 (1) on form of the claim provides that an application under Rule 4 shall be made by way of a Petition as set out in Form A in the Schedule with such alterations as may be necessary. Rule 10(3) of the Rules on the other hand provides, that subject to Rule 9 and 10, the Court may accept an oral application, a letter or any other informal document which discloses denial, violation, infringement or threat to right or fundamental freedom.

15. A reading of the foregoing provisions demonstrates that Mutunga Rules are drawn in such a matter as to accommodate an application that is not brought to Court by way of a Petition as long as it discloses a denial, violation, infringement or threat to a right or fundamental freedom. I therefore find, that the commencement of the Plaintiff’s claim by way of a plaint is not fatal to the claim. In any case, Article 159 (2) (d) of the Constitution obliges that justice shall be administered without undue regard to procedural technicalities. Accordingly, I find that the Plaintiff’s claim is properly drawn.

(c) Whether Plaintiff was under a duty to employ the 1st Defendant’s dispute resolution mechanisms 16. On this issue, Defendants relied on Article 22 of EAPC constitution which states as follows; -a)No dispute concerning the affairs of the Society shall be referred to or instituted in a court of law by a member or members of the society but shall be dealt with by the following church organs, namely, the board of elders, the parish council, the district executive committee and the national committee….

17. The Plaintiff’s admission form submitted by the Defendants demonstrates that Plaintiff applied and was admitted to train with EAPC Bible College (1st Defendant herein). It has not been demonstrated that EAPC as a society and EAPC Bible College are one and the same but the constitution before the court discloses that EAPC is a different entity and thus its constitution is not binding on the 1st Defendant. Having said that, I have come to the conclusion that the Plaintiff was not subject to the EAPC Constitution and was under no obligation to employ its internal dispute mechanisms.

(d) Whether Defendants violated the Plaintiff’s constitutional rights 18. The Constitution 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. (See Kenya Human Rights Commission & another v Non-Governmental Organizaztions Co-ordination Board & another [2018] eKLR).

19. In Dry Associates Ltd v Capital Markets Authority and Another, [2012] eKLR the Court observed;“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law or judicial review under the Law Reform Act (Cap 26 of the Laws of Kenya) but is to be measured against the standards established by the Constitution…….”

20. The importance of this right to fair administrative action as a constitutional right in Article 47 cannot be over emphasized. The Court of Appeal stated in the case of Judicial Service Commission v Mbalu Mutava & another [2014] eKLR that;“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.”

21. In considering whether the Plaintiff has demonstrated a legitimate expectation that this court can protect, I have considered the case of National Director of Public Prosecutions v Phillips and Others. [2002] (4) SA 60 (W) para 28 where 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)

22. It is not disputed that Plaintiff undertook a 2-year diploma course, paid all her fees and passed all examinations and was set to graduate on 17th July 2019. 2nd Defendant concedes that five days to the graduation day and more particularly on 12th March 2019, he sent a text message to the Plaintiff informing her that her graduation had been put on hold pending investigations into her marital affairs. It has been disclosed from the evidence by 2nd Defendant and Plaintiff that the alleged marital affairs was contained in a text message sent to 2nd Defendant by the Plaintiff’s ex-husband Eric Mutembei alleging that him and the Plaintiff had separated.

23. 2nd Defendant concedes that he neither verified the information from Eric Mutembei that he had separated with the Plaintiff nor granted the Plaintiff an opportunity to be heard before barring her from graduating. In any case, Defendants have not demonstrated that 1st Defendant’s regulations excluded divorced or separated couples from training with the 1st Defendant.

24. The explanation by the 2nd Respondent for the exclusion of the Plaintiff from graduating whereas she had met all the requisite requirements was in the circumstances of this case unreasonable, unjustified, procedurally unfair and deliberately contravened Plaintiff’s rights to equality and freedom from discrimination, human dignity and fair administrative action guaranteed under Articles 27, 28 and 47 of the Constitutionand her legitimate expectation that she would become a Pastor after her graduation.

25. That the decision was made by the 2nd Defendant and subsequently sanctioned by the 1st Defendant squarely places the 2nd Defendant in the mix for the reason that ii was him that set in motion the actions that led to the violation of the Plaintiff’s rights. 2nd Defendant cannot therefore escape blameworthiness and the fact of suing him in his personal capacity is appropriate.

(e) What remedy/remedies is Plaintiff entitled to 26. From the foregoing analysis, it is apparent that Plaintiff has demonstrated that Defendants actions contravened her constitutional rights, I find that that a declaration of violation of rights would is an appropriate remedy.

27. Article 23 (3) of the Constitutionempowers this court to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as this one. What amounts to "appropriate relief" was discussed by the South African Constitutional Court in Minister of Health & Others vs. Treatment Action Campaign & Others(2002) 5 LRC 216 at page 249 as follows: -“...appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the court may even have to fashion new remedies to secure the protection and enforcement of these all important rights...the courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if need be to achieve this goal."

28. The Privy Council in the famous case of Siewchand Ramanoop vs. The AG of T&T, PC Appeal No 13 of 2004 exhaustively discussed the principles applicable to award of damages for constitutional violations under the Constitution wherein it was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.Lord Nicholls at Paragraphs 18 & 19 stated as follows:“When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.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 be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches.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. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.”

29. In Peters v. Marksman & Another [2001] 1 LRC the Eastern Caribbean Supreme Court quoted with approval the words of Patterson JA in Fuller v A-G of Jamaica (Civil Appeal 91/1995, unreported), where the Court held that:“It is incumbent on the courts to develop appropriate principles and guidelines as to the quantum of awards of compensation where applicable…Where an award of monetary compensation is appropriate the crucial question must be what is a reasonable amount in the circumstances of the particular case. The infringement should be viewed in its true perspective as an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the supreme law of the land by the state itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized. In like manner the award should not be so large as to be a windfall nor should it be so small as to be nugatory.”

30. The Supreme Court of Canada established a consideration on when a remedy in a Constitutional violation case is “just and appropriate” in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 to include, a remedy that will:(1)meaningfully vindicate the rights and freedoms of the claimants;(2)employ means that are legitimate within the framework of our constitutional democracy;(3)be a judicial remedy which vindicates the right while invoking the function and powers of a court; and(4)be fair to the party against whom the order is made.

31. From the foregoing precedents, it is apparent that monetary compensation for violation of fundamental rights is now an acknowledged remedy in public law for enforcement and protection of fundamental rights. The damages are at the discretion the court is limited by what is “appropriate and just” according to the facts and circumstances of a particular case in view of the fact that the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringement.

32. That Plaintiff rights were violated cannot be gainsaid. Consequently, I find that her failure to graduate after successfully training for two years has caused her pain and suffering and a lifelong stigma which cannot be undone. I have considered the case ofEdward Akong'o Oyugi & 2 others v Attorney General [2019] Eklr where the Petitioners were detained for a prolonged period without trial and I find that it is not comparable to this case. The foregoing notwithstanding, I find that this is an appropriate case for an award of damages and hereby award Kshs. 200,000/-.f.Who bears the costs of this suit

33. Section 27(1) of the Civil Procedure Act gives courts unfettered discretion to determine by whom costs are to be paid. It is trite that costs follow the event and a successful litigant ought to be fairly reimbursed for the costs that he has had to incur. Section 3A of the Act on the other hand gives this court inherent power to make such orders as may be necessary for the ends of justice to be met. Ends of justice cannot, in my humble view be met or seen to be met if the Plaintiff being the successful litigant is denied costs.

34. From the foregoing analysis, the orders that commend to this court, and which I hereby issue are that:a.A declaration be and is hereby issued that the acts of the Defendants of rejecting and/or denying the plaintiff an opportunity to graduate on 17th July 2019 despite having qualified in terms of having fully paid fees and passed her exams contravened her fundamental rights and freedoms under Article 27(1), and 28 of the Constitutionb.A declaration be and is hereby issued that the conduct of the Defendants of not affording the Plaintiff an opportunity to be heard before the decision to bar or reject her from graduating amounted to acting unfairly and in violation of Article 47 of the Constitutionand Section 4(3) of the Fair Administrative Action Act 2015c.An order be and is hereby issued directing the 1st and 2nd defendants to organize and forthwith unconditionally graduate the Plaintiff in the next scheduled graduationd.An order of damages in the sum of Kshs. 200,000/- is hereby made against the Defendants jointly and severallye.Defendants shall bear the costs of this suit

DATED AND DELIVERED IN MERU THIS 05TH DAY OF MAY 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Plaintiff - Ms. Aketch for Vivian Loice Aketch & Co. AdvocatesFor Defendants - Mr. Muthomi for John Muthomi & Co. Advocates