https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9627

Okong'o v Public Health Officers and Technician Council Kenya & another (Petition E047 of 2024) [2026] KEHC 9627 (KLR) (Constitutional and Human Rights) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 9627 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E047 of 2024 B Mwamuye, J June 10, 2026 IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E047 OF 2024 IN THE MATTER OF ARTICLES 10(2)(b), 22(1), 27(1) AND (2), 43(1)(f) AND 259(1)(b) AND (c) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10(2)(b), 22(1), 27(1) AND (2), 43(1)(f) AND 259(1)(b) AND (c) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS AND IN THE MATTER OF THE BILL OF RIGHTS UNDER CHAPTER FOUR OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF PUBLIC HEALTH OFFICERS (TRAINING, REGISTRATION AND LICENSING) ACT NO. 12 OF 2013 Between Hilary Mutesa Okong'o Petitioner and Public Health Officers and Technician Council Kenya 1st Respondent Registrar, Public Health Officers and Technician Council Kenya 2nd Respondent Judgment Introduction 1.This Petition dated 1st February 2024 presents a profoundly troubling paradox at the intersection of professional regulation, constitutional rights, and administrative justice. The Petitioner, Hillary Mutesa Okong’o, is a career public health officer who has served in the public service since July 2013, rising through the ranks from Assistant Public Health Officer III to Assistant Public Health Officer I, a position he holds to date. He holds a Diploma in Environmental Health from the Kenya Institute of Development Studies awarded on 11th November 2012, a Higher Diploma in Community Health and HIV Care from the Kenya Medical Training College awarded on 4th December 2013, a Post Basic Course in Health Service Management and Administration from the same institution in 2014, a Bachelor of Science in Health Systems Development from the Catholic University of Eastern Africa, a Master of Science in Public Health from the University of South Wales awarded on 28th January 2021, a Certificate in Strategic Management and Leadership from the Kenya Institute of Management issued on 20th February 2021, and is currently a PhD candidate in Public Health at UNICAF University. 2.Yet, despite this impressive academic trajectory and over a decade of continuous employment as a public health officer by first the Ministry of Public Health and Sanitation and subsequently the County Government of Taita Taveta, the Petitioner has been denied registration as a Public Health Officer by the Respondents. The denial was communicated via email on 28th April 2021 on the ground that the Kenya Institute of Development Studies was not accredited by the Council, and subsequently by a formal letter dated 12th May 2021 on the ground that the Petitioner’s training at Diploma level was grossly deficient, covering only twenty-one courses against a required minimum of forty-eight core courses. The Petitioner contends that the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 came into effect on 18th September 2013, nearly a year after he had graduated with his Diploma in Environmental Health, and that the Regulations governing Training and Accreditation Standards were gazetted on 30th April 2015, almost three years after his graduation. He argues that the Respondents are impermissibly applying the law retrospectively to deny him registration, thereby violating his constitutional rights to equity, non-discrimination, and education, and further that the Respondents have been indolent in responding to his application made as early as 4th December 2015, only responding in 2021 after his complaint to the Commission on Administrative Justice. BACKGROUND 3.The Petitioner graduated with a Diploma in Environmental Health from the Kenya Institute of Development Studies on 11th November 2012, as evidenced by Certificate No. 0237. His academic transcript from the same institution shows that he undertook twenty-one courses, namely: Introduction to Environmental Health, Introduction to Community Health, Communication Skills, Introduction to Human Anatomy and Physiology, Nutrition and Health, Anatomy and Physiology of Food Animals, Disaster Management, Vector and Rodent Control, Food Hygiene and Safety, Liquid and Solid Waste Management, Health Services Management, Project Management, Social Research Methods, Environmental Epidemiology and Pollution Health, Water Systems and Sanitation, Environmental Policy and Law, Environmental Impact Assessment, Community Mobilization and Participation, Occupational Safety and Health, Information Communication Technology, and Environmental Health Education Promotion and Human Behavior. His scores ranged from 56.2% to 92.2%, with grades of Distinction in five courses, Credit in eleven courses, and Pass in five courses. 4.On 24th June 2013, the Ministry of Public Health and Sanitation offered the Petitioner appointment as a Public Health Officer, Job Group H, on a three-year contractual basis, through a letter signed by H.N. Kimemia for the Permanent Secretary. The offer was premised on his Diploma in Environmental Health from the Kenya Institute of Development Studies. He resumed work on 5th July 2013, as required by the offer letter. 5.On 30th October 2014, the County Government of Taita Taveta, through its County Public Service Board, appointed the Petitioner to the position of Assistant Public Health Officer III, Job Group H, on permanent and pensionable terms with effect from 1st October 2014. 6.On 13th September 2018, the County Public Service Board promoted the Petitioner to the grade of Assistant Public Health Officer II, Job Group J, CPSB 10, with effect from 1st October 2017. He holds that position to date. 7.On 4th December 2015, the Petitioner made an application to the Respondents for registration as a Public Health Officer, paying a requisite fee of Kshs.4,400.00 as evidenced by a bank payment slip from Cooperative Bank. He received no substantive response until 28th April 2021, when the Respondents sent an email stating that the Kenya Institute of Development Studies was not accredited by the Council and therefore, they could not register him as a Public Health Officer. 8.On 12th May 2021, the 2nd Respondent wrote a formal letter to the Petitioner declining his registration. The letter stated that a detailed evaluation of his registrable qualification had revealed that his training at Diploma level was grossly deficient in comparison with equivalent training institutions that were offering Diploma in Environmental Health at the time of his completion, specifically that his training covered a total of twenty-one courses against a required minimum of forty-eight core courses that were offered by approved training institutions at the time, and consequently he was not eligible for registration under section 24(1) of the Public Health Officers Act No. 12 of 2013. The letter further stated that to be eligible for registration under section 24(2) of the Act, he was required to cover a minimum of twenty-seven additional core courses in an institution approved by the Council. 9.On 26th November 2021, the Petitioner lodged a complaint with the Commission on Administrative Justice (Office of the Ombudsman). On 30th November 2022, the Commission wrote to the Respondents, noting that the statute came into force on 18th September 2013, well after the Petitioner had obtained his Diploma in Environmental Health on 11th November 2012, and recommended that the Respondents seek legal advice on the position of law and engage the Petitioner on resolution of the matter. On the same date, the Commission sent an email to the Petitioner advising him that the Commission could not make a determination on the merit of the Council’s decision as that would amount to acting outside the Commission’s mandate, and recommended that he seek advice from a lawyer of his choice on the available remedies. 10.On 17th April 2023, the firm of Ngao Nyangena and Company Advocates wrote a demand letter to the Respondents demanding that the Petitioner be registered as a Public Health Officer within fourteen days. On 24th April 2023, the Respondents responded, reiterating their earlier position that the Petitioner was not eligible for registration pursuant to the Public Health Officers Act No. 12 of 2013. 11.On 8th May 2023, the Petitioner appealed the decision to the Cabinet Secretary for Health, attaching all relevant documents in support of his appeal and he has received no response to his appeal to date. 12.The Petitioner further averred that the unlawful acts of the Respondents have denied him career progression opportunities, and in particular, he was denied the position of Assistant Director of Public Health, CPSB 05, for which he was shortlisted as shown in the list of shortlisted candidates dated 21st June 2022 from the County Government of Taita Taveta. His name appears third on the list for the position of Assistant Director of Public Health CPSB 05, but he was unable to proceed due to lack of registration. THE PETITIONER’S CASE 13.The Petitioner filed his Petition dated 1st February 2024, together with a Supporting Affidavit sworn on the same date, a Verifying Affidavit, a list of witnesses, a witness statement, a list of documents, and Written Submissions dated 6th March 2024. He also filed a Further Affidavit sworn on 5th May 2025 responding to the Respondents’ grounds of opposition. 14.The Petitioner contends that the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 came into effect on 18th September 2013, almost one year after he graduated with his Diploma in Environmental Health from the Kenya Institute of Development Studies. Similarly, the Regulations governing the Training and Accreditation Standards of Public Health Officers and Technicians came into force in December 2014 and were gazetted on 30th April 2015, almost three years after his graduation. He argues that these instruments cannot act retrospectively in respect to his qualification, as that would be in total violation of his rights under Article 10(2)(b) on equity and non-discrimination as national values and principles of governance. 15.The Petitioner argues that the Kenya Institute of Development Studies was accredited by the Ministry of Higher Education, Science and Technology as at 22nd March 2012, as shown in the Ministry’s list of registered training institutions where the Institute appears at number 336 with registration number MOHEST/PC/1160/2009. He is also a registered member of the Association of Public Health Officers Kenya (APHOK) with membership number 05884 by virtue of his Diploma in Environmental Health, and the Association is recognized within the meaning of section 2 of the Public Health Officers Act, 2013. 16.The Petitioner contends that section 24(1) of the Act, under which the Respondents denied his registration, does not prescribe the number of units or modules to be undertaken by a student undertaking a Diploma in Environmental Health, but rather states that a person shall be eligible for registration if he is the holder of a certificate, diploma or degree which is recognized by the Council as making him eligible for registration. He argues that his Diploma in Environmental Health should be recognized, and in the alternative, that his MSc in Public Health from the University of South Wales, a qualification successfully equated and recognized in Kenya by the Commission for University Education, should form the basis for his registration under section 24(3) of the Act, which provides that all certificates, diplomas or degrees issued by a university or accredited institution under the University Act 2012 shall be recognized by the Council. 17.The Petitioner submitted that the law always acts prospectively and not retrospectively, relying on the decision in Nicholas Mwiti & 22 Others v Pharmacy and Poisons Board & Another [2018] eKLR. In that case, the court held that the Pharmacy and Poisons Board could not decline to enroll pharmaceutical technologists on the basis that their colleges were not approved by the Board, when the relevant section of the Act required only that the applicant satisfy the Board that he holds a diploma in pharmacy approved by the Board of the college he attended. The court further held that guidelines issued in 2013 could not apply to petitioners who completed their studies before the policy was adopted. The Petitioner argues that by parity of reasoning, the Regulations and accreditation standards published after his graduation cannot be applied retrospectively to him. 18.The Petitioner further submitted that the Respondents violated his rights under Article 27(1) and (2) on equality and freedom from discrimination by selectively applying the law to him while he has been employed as a public health officer for over a decade, having been recruited by the Public Service Commission based on the very same Diploma in Environmental Health that the Respondents now refuse to recognize. He argues that it is discriminatory for the Respondents to deny him registration when the government itself deemed him qualified to serve as a public health officer and has continued to promote him based on that qualification. 19.The Petitioner contends that his right to education under Article 43(1)(f) has been violated because the Respondents’ refusal to register him has denied him career progression, including the position of Assistant Director of Public Health for which he was shortlisted. He argues that education and the consequent career advancement are economic and social rights protected by the Constitution, and that the Respondents’ actions have curtailed his right to economic and social well-being. 20.The Petitioner prays for: a declaration that there is a violation of the Constitution and an infringement of his rights under Articles 10(2)(b), 27(1)(2) and 43(1)(f) and that the Respondents’ actions are unlawful and void ab initio; a declaration that the Respondents’ act in declining to register him is unlawful and void ab initio; a mandatory injunction compelling the Respondents to register him as a Public Health Officer forthwith; compensation by way of damages for loss of employment by virtue of the illegal refusal; and costs of the Petition. THE RESPONDENTS’ CASE 21.The Respondents filed Grounds of Opposition dated 28th April 2025. They did not file a replying affidavit, and their case is therefore derived entirely from the Grounds of Opposition and their written submissions dated 17th June 2025. 22.The Respondents contend that the 1st Respondent is the regulatory authority established by the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 (“the Act”) with the mandate to oversee the training, practice, and employment of public health officers and technicians in Kenya. They rely on section 4(2)(e) of the Act which gives the 1st Respondent the mandate to approve institutions other than those established or accredited under the Universities Act for the training of public health officers and technicians. 23.The Respondents further rely on section 22(4) of the Act, which provides that if the Council is satisfied that a university or institution has failed to take measures which in the opinion of the Council are necessary to improve the standard of any course or examination, the Council may cancel or suspend any recognition of a degree, diploma, or other qualification awarded by that university or institution. They argue that the Kenya Institute of Development Studies is not among the institutions accredited by the 1st Respondent. 24.The Respondents argue that section 24(4) of the Act recognizes instances where registration of an applicant may be denied, and that they acted within the provisions of the law, specifically within section 24(4), and the reasons for rejection were duly communicated to the Petitioner. They contend that the Petitioner failed to comply with section 27 of the Act, which requires a person aggrieved by a decision of the Council to lodge an appeal to the Cabinet Secretary within sixty days of being notified of the decision. They note that the last decision by the Respondents was on 12th May 2021, yet the Petitioner wrote to the Cabinet Secretary on 8th May 2023, almost two years later, and instead of appealing, he first wrote to the Commission on Administrative Justice on 26th November 2021. They submit that the Petitioner slept on his right to appeal and should therefore not approach the High Court claiming violation of his rights. 25.The Respondents submitted that the Petitioner has not demonstrated how their actions or inactions have violated his fundamental rights and freedoms. They rely on the well-established principle in Anarita Karimi Njeru v Republic (1976-1980) 1 KLR 1272 that a party pleading violation of fundamental rights must do so with sufficient particularity to enable the other party to answer, and must state the rights with precision and how they have been infringed. 26.On the alleged discrimination, the Respondents submitted that not every differentiation amounts to discrimination, relying on the decision in Mohammed Abduba Dida v Debate Media Limited & Another [2017] eKLR where the court held that differentiation is permissible if it does not constitute unfair discrimination and must have a legitimate purpose and bear a rational connection between the differentiation and the purpose. They argue that the Respondents’ aim is to regulate professional conduct and maintain proper professional standards, and that registering the Petitioner whose training covered only twenty-one courses against a required minimum of forty-eight would be failing in the maintenance of proper professional standards. 27.On the doctrine of exhaustion, the Respondents rely on Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) for the proposition that where there are sufficient safeguards in place for a valid determination of disputes through internal mechanisms, the courts should not be approached before those mechanisms are exhausted. They argue that the Petitioner failed to exhaust the internal appeal mechanism under section 27 of the Act before approaching this Court. 28.The Respondents further submit that section 22(4) of the Act talks into the future, meaning that if the Kenya Institute of Development Studies was recognized at the time of the Petitioner’s study, nothing stops the Respondents from suspending the recognition of that qualification even after the Petitioner has been awarded the Diploma. They argue that the qualification must meet current standards for current practice, and that the purpose of regulation is to ensure that those practicing are competent by current standards. 29.The Respondents contend that the Petitioner has not proved his case to the required standard and relied on the decision in Rashid Odhiambo Allogoh & 245 Others v Haco Industries Limited [2015] eKLR for the proposition that that which is alleged must be proved and that an applicant who alleges infringement of rights must not only make allegations but also state clearly with supporting facts and instances where such rights have been infringed. They pray that the Petition be dismissed with costs. ANALYSIS AND DETERMINATION 30.Having carefully considered the Petition, the affidavits, the Grounds of Opposition, the written submissions of both parties, and the authorities relied upon, the following issues arise for determination:i.Whether the Petitioner has established that his constitutional rights under Articles 10(2)(b), 27(1) and (2), and 43(1)(f) have been violated or are threatened with violation by the Respondents.ii.Whether the Respondents acted within their statutory mandate under the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 in declining to register the Petitioner.iii.Whether the doctrine of exhaustion and the Petitioner’s alleged delay in appealing the Respondents’ decision bar this Court from granting the reliefs sought.iv.What reliefs, if any, the Petitioner is entitled to. Whether the Petitioner has established violation of his constitutional rights under Articles 10(2)(b), 27(1) and (2), and 43(1)(f). 31.The Petitioner has invoked Article 10(2)(b) of the Constitution, which provides that the national values and principles of governance include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized. He argues that the Respondents’ refusal to register him, based on standards that did not exist at the time of his training and graduation, violates the principle of equity and amounts to unjust treatment. 32.Article 27(1) and (2) guarantee the right to equality before the law and freedom from discrimination. Article 27(2) provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms. Article 27(3) provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The Petitioner argues that he has been discriminated against because the government itself deemed him qualified to be employed as a public health officer in 2013, and he has been promoted twice based on that qualification, yet the Respondents now refuse to register him on the basis that his training was deficient. 33.Article 43(1)(f) provides that every person has the right to education. The Petitioner argues that his right to education has been violated because the Respondents’ refusal to register him has denied him career progression, including the position of Assistant Director of Public Health for which he was shortlisted. He contends that education and the consequent career advancement are economic and social rights that are protected by the Constitution. 34.The threshold for establishing a constitutional violation in a petition under Article 22 of the Constitution was established in the seminal case of Anarita Karimi Njeru v Republic (supra), where the Court held that a party pleading violation of fundamental rights must do so with sufficient particularity to enable the other party to answer, and must state the rights with precision and how they have been infringed. This principle was affirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court held that the principle applies with equal force to constitutional petitions, which must be pleaded with a reasonable degree of precision. 35.The Petitioner has, with sufficient particularity, identified the constitutional provisions he alleges have been violated and has set out the factual basis for each alleged violation. He has stated that the Respondents applied a law retrospectively because the Act came into force after his graduation, that he has been discriminated against because he was deemed qualified for employment and promotion by the government but is denied registration by the Respondents, and that his career progression has been curtailed. I am satisfied that the Petitioner has met the threshold of precision required in constitutional petitions. 36.The core of the Petitioner’s case is that the Respondents are applying standards that did not exist at the time he undertook his training and obtained his Diploma in Environmental Health. This raises the fundamental question of whether a regulatory body can apply standards promulgated after a person has completed their training and obtained their qualification to deny that person registration, particularly when that person has been employed by the government on the basis of that qualification for over a decade. 37.The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held that a statute should not be construed to have retrospective effect unless the language of the statute expressly so provides or necessarily implies such retrospectivity. The apex court had the following to say: -“At the outset, it is important to note that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.” 38.The principle that legislation should not be given retrospective effect is a fundamental rule of statutory interpretation, rooted in the constitutional value of fairness and the rule of law. As the House of Lords in L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, a statute is presumed not to be intended to have retrospective effect unless a clear intention to that effect appears. 39.In the present case, the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 is stated to have come into operation on such date as the Cabinet Secretary may appoint by notice in the Gazette. The commencement date was 18th September 2013, as shown in the copy of the Act attached to the Petitioner’s further affidavit. The Act contains no express provision giving it retrospective effect. The Regulations governing Training and Accreditation Standards of Public Health Officers and Technicians were gazetted on 30th April 2015, as shown in Legal Notice No. 61 of 2015, published in Kenya Gazette Vol. CXVII—No. 44. The regulations likewise contain no provision for retrospective application. 40.The Petitioner completed his Diploma in Environmental Health on 11th November 2012. His transcript shows that his course of study covered the period before that date. He was awarded his certificate on 11th November 2012. He was employed by the Ministry of Public Health and Sanitation on 24th June 2013, with effect from 5th July 2013, based on that Diploma. The Act came into force on 18th September 2013, more than two months after he had started working as a public health officer. The regulations came into force in 2015, nearly three years after his graduation and two years after he had started working. 41.The Respondents rely on section 22(4) of the Act to argue that they can cancel or suspend recognition of a qualification even after it has been awarded. Section 22(4) provides: “If the Council, is satisfied that the university or institution referred to in subsection (3) has failed to take measures which are in the opinion of the Council necessary to improve the standard of any course or examination, the Council may cancel or suspend any recognition of a degree, diploma, or other qualification awarded by that university or institution.” This provision, properly construed, empowers the Council to withdraw recognition from an institution or from qualifications awarded by that institution going forward. It does not, however, authorize the Council to apply standards retroactively to qualifications that were lawfully obtained at a time when the institution met the applicable standards. The provision must be read together with the fundamental principle that statutes and regulations are presumed to operate prospectively unless a contrary intention is clearly expressed. 42.The decision of this Court in Nicholas Mwiti & 22 Others v Pharmacy and Poisons Board & Another (supra) is directly persuasive on this point. In that case, the petitioners had obtained diplomas in pharmacy from various colleges between 2005 and 2008 after sitting examinations administered by the Kenya National Examinations Council. When they applied for enrolment as pharmaceutical technologists under section 8(2) of the Pharmacy and Poisons Act, their applications were rejected on the ground that the colleges they attended were not recognized by the Pharmacy and Poisons Board. The Board had issued guidelines in 2013 requiring approval of institutions. The Court, held that: -“In exercising its mandate under section 8(2) therefore, the 1st respondent would have to consider whether the diploma an applicant holds was approved by the Board of the college that applicant attended. And in doing so the 1st respondent will also have to consider the position as at the time the applicant obtained his/her diploma in pharmacy. I say this because having perused the Guidelines I note that they were issued in 2013 while the petitioners completed their studies between 2005 and 2008 before the policy was adopted. Could they apply to the petitioners who completed their studies before adoption of the Guidelines?” 43.The Court answered that question in the negative, holding that the petitioners had a legitimate expectation that having attended college and passed examinations leading to the award of diploma in pharmacy, they would be enrolled to practice their profession. The Court ordered the Board to consider each petitioner’s application for enrolment within sixty days. The parallels between that case and the present one are striking. In both cases, the regulatory body sought to apply standards or guidelines promulgated after the petitioners had completed their training and obtained their qualifications. In both cases, the petitioners had sat and passed examinations administered by national bodies. In both cases, the petitioners had been employed or sought employment based on their qualifications. The principle that emerges from Nicholas Mwiti is that a regulatory body cannot apply standards retroactively to qualifications obtained before those standards came into existence, at least not without express statutory authority to do so. 44.The Respondents seek to distinguish Nicholas Mwiti on the ground that the present case involves a statutory provision, section 4(2)(e) of the Act, which gives the Council the mandate to approve institutions for training. However, this distinction is not material. The issue is not whether the Council has the power to approve institutions, but whether that power can be exercised retrospectively to invalidate qualifications obtained from an institution that was not approved at the time of training but was otherwise lawfully recognized by the relevant authorities. The evidence before the Court shows that the Kenya Institute of Development Studies was accredited by the Ministry of Higher Education, Science and Technology as at 22nd March 2012, as shown in the Ministry’s list of registered training institutions annexed to the Petitioner’s further affidavit as exhibit HMO-4(a). The Institute appears at number 336 on that list with registration number MOHEST/PC/1160/2009. At the time the Petitioner undertook his training between 2011 and 2012, the Institute was therefore recognized by the Ministry responsible for higher education. 45.The Petitioner is also a registered member of the Association of Public Health Officers Kenya (APHOK) with membership number 05884, as shown in the certificate of membership annexed as HMO-4(b). The Public Health Officers Act, 2013 defines “Association” in section 2 as the Association of Public Health Officers (Kenya). This suggests that the Association had a recognized role in the regulation of public health officers prior to the establishment of the Council under the Act. The Petitioner’s membership in the Association by virtue of his Diploma in Environmental Health further supports his contention that his qualification was recognized at the time it was obtained. 46.The Respondents’ argument that the Petitioner’s training was deficient because it covered only twenty-one courses against a required minimum of forty-eight core courses raises a more difficult question. The Respondents do not provide the source of the requirement of forty-eight core courses. No curriculum or regulations from 2011-2012 have been presented to the Court to establish what the required number of core courses was at the time the Petitioner undertook his training. The Training and Accreditation Standards of Public Health Officers and Technicians were gazetted in 2015, three years after the Petitioner’s graduation. The Respondents have not demonstrated that the forty-eight core courses requirement existed at the time the Petitioner was trained. In the absence of such evidence, the Court cannot conclude that the Petitioner’s training was deficient by the standards applicable at the time. The Respondents bear the burden of proving that the Petitioner’s qualification does not meet the requirements that existed when the qualification was obtained, not the requirements that came into existence later. 47.Article 47 of the Constitution guarantees the right to fair administrative action. Article 47(1) provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Petitioner made his first application for registration on 4th December 2015. He received no substantive response until 28th April 2021, a period of over five years. He made at least three other applications that generated no response. When the Commission on Administrative Justice wrote to the Respondents on 30th November 2022, the Commission noted that the Respondents’ substantive response was received for the first time in 2021 as a reaction to the Petitioner’s inquiry to the Commission. The Commission also noted that the Petitioner had lodged another application on 24th November 2021 and had not received communication on its status. 48.The delay in responding to the Petitioner’s applications, spanning over five years, is a clear violation of Article 47(1). The Fair Administrative Action Act, No. 4 of 2015, gives effect to Article 47 and requires administrative bodies to give reasons for their decisions and to act within a reasonable time. In Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, the Court held that Article 47(1) marks an important and transformative development of administrative justice in Kenya, and that administrative action must be subjected to constitutional scrutiny. The Court thus 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.” 49.The Respondents’ unexplained delay in responding to the Petitioner’s applications cannot be reconciled with the constitutional requirement of expeditious and efficient administrative action. 50.On the issue of discrimination under Article 27, it is important to note that the Petitioner is not an applicant seeking to enter the profession for the first time. He has been employed as a public health officer since July 2013, over eleven years as at the time of this judgment. He has been promoted twice, from Assistant Public Health Officer III to Assistant Public Health Officer II, and then to Assistant Public Health Officer I. His employer, the County Government of Taita Taveta, has consistently recognized his qualification as sufficient for the role of a public health officer. He was shortlisted for the position of Assistant Director of Public Health, CPSB 05, in June 2022, indicating that his employer considered him eligible for senior positions in the public health cadre. 51.The Constitutional Court of South Africa in Harksen v Lane NO and Others (1997) 11 BCLR 1489 (CC) established a test for determining whether differentiation amounts to discrimination. The Court held that there is discrimination when the differentiation is based on a ground listed in the equality provision or on a ground that has the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner. Once discrimination is established, the Court must consider whether it is unfair, which involves looking at the position of the complainant in society, the purpose of the impugned law or action, and the extent to which the rights of the complainant have been affected. 52.Applying this test, the differentiation between the Petitioner and other public health officers who were trained at institutions that were recognized at the time and have been registered by the Respondents, but who may have fewer years of experience or lower academic qualifications, arguably amounts to discrimination. The Petitioner has been treated differently from others who are registered, despite having been employed in the same role for over a decade. The purpose of the differentiation, to maintain professional standards, is legitimate, but the means employed must be rationally connected to that purpose. Applying standards that did not exist at the time of the Petitioner’s training to deny him registration, while he was deemed qualified by his employer, the Public Service Commission, and has been promoted, is not rationally connected to the purpose of maintaining current professional standards. A more rational approach would be to require the Petitioner to undergo continuing education or bridging courses to address any deficiencies by current standards, rather than denying registration altogether. 53.Article 27 is a key provision in the Bill of Rights that reinforces the commitment to equality and non-discrimination. Discrimination is not merely the differentiation but the unjustified differentiation. In the present case, the Respondents have not provided a justification for why the Petitioner, who has been employed and promoted as a public health officer for over a decade, should be denied registration while others with similar qualifications obtained from institutions that were not recognized by the Council at the time of their training have been registered. The Respondents have not provided any evidence that the Petitioner’s performance as a public health officer has been deficient or that he poses any risk to public health. In the absence of such evidence, the denial of registration appears arbitrary and unjustified. 54.Regarding the alleged violation of the right to education under Article 43(1)(f), it is important to distinguish between the right to education as the right to access educational institutions and the right to enjoy the fruits of education, including career progression. When a person invests time, effort, and resources in obtaining an educational qualification, they have a legitimate expectation that the qualification will be recognized for purposes of career advancement. The Respondents’ refusal to register the Petitioner has directly impacted his ability to advance in his career, as evidenced by the fact that he was shortlisted for the position of Assistant Director of Public Health but could not proceed due to lack of registration. This constitutes a violation of the Petitioner’s right to enjoy the fruits of his education. Whether the Respondents acted within their statutory mandate under the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 in declining to register the Petitioner. 55.The Respondents’ statutory mandate is derived from the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013. Section 4(2)(e) of the Act gives the Council the mandate to approve institutions other than those established or accredited under the Universities Act for the training of public health officers and technicians. Section 22(4) gives the Council power to cancel or suspend recognition of qualifications from institutions that fail to improve standards. Section 24(1) sets out the criteria for eligibility for registration, requiring that a person hold a certificate, diploma or degree recognized by the Council, has engaged in training employment under supervision for a period of not less than one year, has acquired sufficient knowledge and experience in the practice of public health, and is of good moral character and a fit and proper person. 56.The question is whether the Respondents acted within this mandate when they declined to register the Petitioner on the grounds that his training institution was not accredited by the Council and that his training was deficient in comparison with equivalent training institutions. 57.The Respondents have not produced any evidence that the Kenya Institute of Development Studies was not an approved institution within the meaning of the Act. Section 2 of the Act defines “approved institution” as the Kenya Medical Training College, a university, and such other training institution as the Council may approve for the purposes of this Act. The Council was established under the Act, which came into force on 18th September 2013. Before that date, there was no Council to approve institutions. The Petitioner completed his training in 2012, before the Council was established. It would be an absurdity to require that an institution be approved by a body that did not exist at the time of training. 58.The Respondents argue that the Kenya Institute of Development Studies is not among the accredited institutions by the 1st Respondent. This argument is circular. The Council did not exist when the Petitioner was training. It cannot hold the Petitioner to a requirement of institutional approval that did not exist at the time. The only rational interpretation of the Act is that the Council’s power to approve institutions applies prospectively to training undertaken after the Act came into force, or at least after the Council established criteria for approval and notified institutions accordingly. 59.The Supreme Court of India in Reserve Bank of India v Peerless General Finance and Investment Co Ltd [1987] SCR (2) 1 articulated the principle that statutes must be interpreted in light of their context and purpose. The purpose of the Public Health Officers Act is to regulate the training, registration, and licensing of public health officers to ensure quality in the profession. That purpose is not served by retroactively disqualifying individuals who completed their training in good faith, at institutions that were recognized by the Ministry of Higher Education at the time, and who have since been employed and gained experience in the profession. The purpose is served by ensuring that going forward, training meets established standards, and that those who do not meet current standards are required to upgrade their qualifications. 60.The Respondents’ reliance on section 22(4) as authority to cancel or suspend recognition of qualifications is misplaced. Section 22(4) empowers the Council to act against an institution that fails to improve standards. It does not empower the Council to act against individuals who obtained qualifications from that institution before the institution’s failure to improve standards was determined. Moreover, the Respondents have not demonstrated that the Kenya Institute of Development Studies has failed to take measures necessary to improve standards. They have not shown that any determination was made regarding the Institute’s standards. They simply state that the Institute is not accredited by the Council. That is not a finding under section 22(4). 61.The Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji & 9 Others [1997] eKLR undescored that a statutory body can only do that which its enabling Act and the rules made thereunder permit it to do. The Respondents have not pointed to any provision in the Public Health Officers Act that explicitly gives them power to refuse registration to a person who holds a diploma from an institution that was recognized by the Ministry of Higher Education at the time of training, who has been employed as a public health officer by the government based on that diploma, and who has acquired over a decade of experience in the profession. The Act contemplates in section 24(1)(b) that a person who has engaged in training employment under supervision for not less than one year may be registered. The Petitioner has engaged in over eleven years of employment as a public health officer. He has been supervised and evaluated by his employer. He has been promoted twice. He has acquired sufficient knowledge and experience. 62.In Republic v The Council of Legal Education Ex Parte James Njuguna & 14 Others [2007] eKLR, the Court held that in academic matters involving issues of policy, the courts are not sufficiently equipped to handle such matters, and they are better handled by the boards entrusted by statute or regulations, except where such bodies fail to directly and properly address the applicable law or are guilty of an illegality or a serious procedural impropriety. In the present case, the Respondents have not properly addressed the applicable law. They have applied standards that did not exist at the time of the Petitioner’s training. They have failed to consider the fact that the government employed the Petitioner based on the same qualification they now refuse to recognize. They have delayed for over five years in responding to his application. These failures amount to a serious procedural impropriety and an illegality, warranting the Court’s intervention. Whether the doctrine of exhaustion and the Petitioner’s alleged delay in appealing the Respondents’ decision bar this Court from granting the reliefs sought. 63.The Respondents argue that the Petitioner failed to comply with section 27 of the Act, which provides for an appeal to the Cabinet Secretary within sixty days of being notified of the Council’s decision. The Petitioner received the decision on 12th May 2021. He did not appeal to the Cabinet Secretary until 8th May 2023, nearly two years later. He instead wrote to the Commission on Administrative Justice on 26th November 2021, six months after the decision. The Respondents argue that this delay bars the Petitioner from approaching the Court, citing the maxim that equity aids the vigilant and not the indolent. 64.The doctrine of exhaustion, as articulated in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR), requires that where a statutory mechanism for dispute resolution exists, a party must exhaust that mechanism before approaching the Court. The Court of Appeal held that there were sufficient safeguards in place for a valid determination of disputes within the internal mechanisms, and that there was always the right to approach the courts after exhaustion of those mechanisms. However, the Court also recognized that there may be circumstances where the internal mechanism is not effective or where exhaustion would not serve the interests of justice. 65.The Petitioner explained in his letter to the Commission on Administrative Justice dated 26th November 2021 and in his appeal to the Cabinet Secretary dated 8th May 2023 that he was not aware of the existence of an appeal avenue in the statute. While ignorance of the law is not a defense, as the Respondents correctly point out, the circumstances of this case must be considered in context. The Petitioner is not a lawyer. He was an applicant dealing with a regulatory body that had taken over five years to respond to his initial application. He sought the assistance of the Commission on Administrative Justice, which is the body established under Article 59(4) of the Constitution to address complaints of administrative injustice. The Commission engaged with the matter, wrote to the Respondents, and ultimately advised the Petitioner to seek legal advice. He then retained advocates who wrote a demand letter and subsequently advised him to appeal to the Cabinet Secretary. The Petitioner’s actions, while not strictly compliant with the sixty-day timeline, demonstrate a genuine effort to exhaust available remedies. 66.More fundamentally, the doctrine of exhaustion is not an absolute bar to judicial intervention. In Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR, the Court held that the doctrine of exhaustion is a rule of judicial policy and not a constitutional or statutory requirement that must be strictly applied in all circumstances. The Court recognized exceptions to the doctrine, including where the statutory mechanism is not effective, where the dispute raises constitutional issues that cannot be adequately addressed by the statutory mechanism, and where the statutory mechanism would not provide an effective remedy. 67.The present Petition raises substantial constitutional issues, including the retroactive application of legislation and regulations, the right to fair administrative action, and the right to equality and freedom from discrimination. The Cabinet Secretary, as an executive officer, is not a constitutional court and cannot determine the constitutionality of the Act or the Respondents’ actions. An appeal to the Cabinet Secretary under section 27 would not provide an effective remedy for the constitutional violations alleged. The Commission on Administrative Justice itself recognized this, advising the Petitioner that it could not make a determination on the merit of the Council’s decision as that would amount to acting outside its mandate, and that the determination of whether the Council’s interpretation of the law is correct or incorrect can be made by the court. 68.Regarding delay, while delay is a factor to be considered in constitutional litigation, it is not an automatic bar. The Court must consider the nature of the rights alleged to have been violated, the explanation for the delay, and whether any third parties have acquired rights that would be adversely affected by the grant of relief. In the present case, the Petitioner has provided an explanation for his delay: he was not aware of the appeal avenue, he sought the assistance of the Commission on Administrative Justice, and he ultimately retained advocates who appealed to the Cabinet Secretary. The rights alleged to have been violated are fundamental constitutional rights. There is no evidence that any third party has acquired rights that would be adversely affected by the grant of relief. 69.In Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court held that delay in bringing a constitutional petition is not an automatic bar, and that each case must be considered on its own facts. The Court stated that the question is whether the delay is unreasonable and whether it would be just to grant the relief sought given the delay. In this case, the Petitioner’s first application for registration was made in 2015. The Respondents delayed for over five years before responding. The Petitioner then pursued the matter through the Commission on Administrative Justice, which took approximately one year, from November 2021 to November 2022. He then retained advocates who wrote a demand letter in April 2023. He appealed to the Cabinet Secretary in May 2023. He filed this Petition in February 2024. When viewed as a whole, the timeline does not demonstrate unreasonable delay on the part of the Petitioner. Much of the delay was caused by the Respondents themselves. 70.I therefore find that the doctrine of exhaustion does not bar this Petition, and that the Petitioner’s delay in appealing to the Cabinet Secretary is not a sufficient ground to deny him relief, given the constitutional nature of the issues raised and the explanations provided. What reliefs, if any, the Petitioner is entitled to. 71.Having found that the Petitioner’s constitutional rights have been violated and that the Respondents did not act within their statutory mandate in declining to register him, the Court must consider the appropriate reliefs. 72.The Petitioner seeks a declaration that there is a violation of the Constitution and an infringement of his rights under Articles 10(2)(b), 27(1)(2), and 43(1)(f) and that the Respondents’ actions are unlawful and void ab initio. Given the findings above, I am satisfied that such a declaration is warranted. The Respondents’ application of standards that did not exist at the time of the Petitioner’s training, their inordinate delay in responding to his application, and their failure to recognize his years of experience as a public health officer constitute violations of the principles of equity, fairness, and non-discrimination. 73.The Petitioner seeks a mandatory injunction compelling the Respondents to register him as a Public Health Officer forthwith. Mandatory injunctions are ordinarily granted sparingly, and only in clear cases where the Court is satisfied that the applicant has a strong case and that damages would not be an adequate remedy. In this case, the Petitioner has demonstrated that he has been employed as a public health officer for over eleven years, that he holds a Master of Science in Public Health from a recognized university, that he is currently pursuing a PhD in Public Health, and that he has been denied career progression opportunities, including the position of Assistant Director of Public Health, due to lack of registration. Damages would not adequately compensate him for the ongoing prejudice he suffers from being unregistered while performing the functions of a public health officer. 74.However, the Court must also consider that the Respondents have a statutory mandate to ensure that only qualified persons are registered as public health officers. While the Court has found that the Respondents acted improperly in applying standards retroactively and in delaying their response, it would not be appropriate for the Court to order registration without any conditions. The Respondents expressed concern that the Petitioner’s Diploma training covered only twenty-one courses against a current requirement of forty-eight core courses. Even if that requirement did not exist at the time of his training, it is relevant to his current competence. 75.In Nicholas Mwiti & 22 Others v Pharmacy and Poisons Board & another (supra), the Court did not order immediate registration. Instead, the Court ordered the Board to consider the petitioners’ applications for enrolment within sixty days. The Court held that the Board must consider the position as at the time the applicant obtained his diploma. A similar approach is appropriate in this case. The Respondents should be directed to consider the Petitioner’s application for registration afresh, taking into account all relevant factors, including: that he obtained his Diploma in Environmental Health in 2012 from an institution that was accredited by the Ministry of Higher Education at the time; that he has been employed as a public health officer since 2013; that he has been promoted twice; that he holds a Master of Science in Public Health from the University of South Wales; and that he has over eleven years of experience in the profession. The Respondents should also consider whether any deficiencies in his Diploma training, measured against current standards, can be addressed through continuing education or bridging courses rather than through denial of registration. Conclusion 76.For the reasons set out above, I am satisfied that the Petitioner has proved his case to the required standard. The Respondents’ application of the Public Health Officers (Training, Registration and Licensing) Act No. 12 of 2013 and the Regulations made thereunder to the Petitioner’s Diploma in Environmental Health, obtained in 2012 before the Act came into force and before the Council was established, constitutes a retrospective application of the law that is not authorized by the Act and violates the Petitioner’s constitutional rights to equity, fair administrative action, and equality before the law. The Respondents’ inordinate delay in responding to the Petitioner’s application for registration, spanning over five years, is a violation of the right to expeditious and efficient administrative action. The Petitioner has been employed as a public health officer for over eleven years, has been promoted twice, and has obtained advanced qualifications including a Master of Science in Public Health. It would be a grave injustice to deny him registration on the basis of standards that did not exist at the time of his training. 77.Accordingly, I make the following orders:a.A declaration be and is hereby issued that the Respondents’ refusal to register the Petitioner as a Public Health Officer based on the ground that the Kenya Institute of Development Studies was not accredited by the 1st Respondent and on the ground that the Petitioner’s Diploma in Environmental Health training was deficient by standards promulgated after the Petitioner completed his training, constitutes a violation of the Petitioner’s rights under Articles 10(2)(b), 27(1) and (2), 43(1)(f), and 47(1) of the Constitution of Kenya, 2010, and is unlawful and void ab initio.b.A declaration be and is hereby issued that the Respondents’ delay of over five years in responding to the Petitioner’s application for registration dated 4th December 2015 constitutes a violation of the Petitioner’s right to expeditious and efficient administrative action under Article 47(1) of the Constitution of Kenya, 2010.c.An order of certiorari is hereby issued quashing the Respondents’ decision conveyed by email dated 28th April 2021 and by letter dated 12th May 2021 declining to register the Petitioner as a Public Health Officer.d.A mandatory injunction is hereby issued directing the 1st and 2nd Respondents to consider the Petitioner’s application for registration as a Public Health Officer afresh within sixty (60) days from the date of this judgment.e.The Respondents shall, within sixty (60) days from the date of this judgment, communicate their decision on the Petitioner’s application for registration to the Petitioner in writing, with reasons stated.f.Each party shall bear their own costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2026.BAHATI MWAMUYE MBSJUDGE