[2022] KEHC 9975 (KLR)

Ondieki v Attorney General & 2 others; TVET Curuiculum Development Assessment and Certification Council (Interested Party) (Petition E351 of 2022) [2022] KEHC 9975 (KLR) (Constitutional and Human Rights) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9975 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E351 of 2022

HI Ong'udi, J

July 21, 2022

Between

Charles Manasseh Mokua Ondieki

Petitioner

and

Attorney General

1st Respondent

Joseph Kinyua, Head of Public Service

2nd Respondent

Cabinet Secretary Ministry of Education

3rd Respondent

and

TVET Curuiculum Development Assessment and Certification Council

Interested Party

Ruling

1. This ruling is premised on the Notice of Motion application dated 8th July 2022 which was filed under Articles 1, 2, 3(1), 6, 10, 11(2)(b)(c), 21, 22, 23(1), 43(1)(f), 4e, 47, 116, 165 of the Constitution and all other enabling provisions of the law.

2. The application seeks the following orders that:i.Spent.ii.In the interim and pending the hearing and determination of this application, the 2nd and 3rd Respondents herein be restrained by way of a conservatory order from constituting and/ or appointing a/the steering committee and from holding meetings, deliberating and/ or recommending the transfer the functions of the Technical and Vocational Education and Training Curriculum Development, Assessment and Certification Council (also known as "TVET CDACC") to the Kenya National Education Council (KNEC) and Kenya Institute of Curriculum Development (KICD).iii.In the interim and pending the hearing and determination of this Petition, the 2nd and 3rd respondents herein be restrained by way of a conservatory order from constituting and/or appointing a/the steering committee and from holding meetings, deliberating and/ or recommending the transfer the functions of the Technical and Vocational Education and Training Curriculum Development, Assessment and Certification Council (also known as "TVET CDACC") to the Kenya National Education Council (KNEC) and Kenya Institute of Curriculum Development (KICD).iv.Costs of the application to be provided.v.The Honourable Court be pleased to grant any other relief that this court may be pleased to issue in the circumstances.

3. The application is supported by the following summarized grounds that:i.Session Paper No. 14 of 2012 on reforming education and training sectors in Kenya was envisioned, formulated and passed with the ultimate aim of enhancing and promoting the provision of education to citizens of Kenya.ii.On 17th June 2022 the 2nd respondent directed the 3rd respondent to constitute a Steering Committee to undertake the transfer of Technical and Vocational Education and Training Curriculum Development, Assessment and Certification Council (also known as "TVET CDACC") to the Kenya National Education Council (KNEC) and Kenya Institute of Curriculum Development (KICD) and requiring the Committee to complete the transfer of functions within four (4) weeks and appoint the membership of the committee.iii.The procedure of removing all functions and mandate of a Government Owned Entity (GOE), in this case TVET CDACC, which is established by an Act of Parliament - TVET Act of 2013 - is not being followed.iv.There has not been any public participation from the stakeholders in regard to the transfer of the functions.v.The organization's operations are being disrupted to the detriment of students and other stakeholders. In particular the following are affected:a)On-going assessment planning starting from 4th July 2022 (48 Assessment Centers) countrywide;b)Development of Assessment tools;c)Validation of Assessment tools;d)On-going results analysis of March/April assessments from all over the country;e)Registration and preparation of November/December assessments countrywide;f)On-going development and evaluation of Learning Guides for all courses; andg.Stakeholders' collaborations.

4. The application is supported by the averments in the petitioner’s affidavit of even date.

5. The petitioner informs that TVET CDACC which is established under the Technical and Vocational Education and Training (TVET) Act No. 29 of 2013 is mandated to undertake design and development of Curricula for the training institutions' examination, assessment and competence certification. It also advises the government on matters related thereto, which is in line with Sessional Paper No. 14 of 2012 that embraces Competency Based Education and Training (CBET) system.

6. He deposes that Sessional Paper No. 14 of 2012 informed the repealing of the Education Act (CAP 211) and replacing it with four separate statutes for the different education sectors namely: the Basic Education Act 2013,the TVET Act 2013,the University Act 2012 and the Kenya National Qualification Framework (KNQF) Act 2014.

7. He avers that Chapter 15 of the Sessional Paper No.14 gives details on how the TVET was to be promoted and implemented so that it could help Kenya achieve Vision 2030. This he deposes was the basis of the establishment of the TVET CDACC and the Technical and Vocational Education and Training Authority (TVETA).

8. Based on the foregoing he deposes that the operationalization of TVET CDACC has been marked by a couple of events since October 2014. To begin with a Letter by the Ministry of Education of reference MIST /DTE/ 10/4 dated 10th December, 2014 addressed to the Secretary, State Corporations Advisory Committee (SCAC) requesting for categorization of TVET CDACC. Secondly, correspondence of reference MST/DTE/10/4 dated 25th May, 2015, by the Ministry of Education to the Secretary, SCAC which conveyed the decision by the president to operationalize TVET CDACC. Thirdly a letter of Reference CDACC/ADM 1/1/ (14) and dated 7th October, 2015 addressed to the Chief of Staff and Head of Public Service and copied to the Secretary SCAC where the Ministry gave an update on the consultations over the operationalization of TVET CDACC.

9. Correspondingly following a meeting held by SCAC on 11th January 2016 on the foregoing consultations, SCAC through letter Reference OP/SCAC. 1/11/1 VOL.I (7) dated 11th January 2016, communicated its categorization of TVET CDACC at category PC 3C under the cluster of Service Corporations and assigning a remuneration package for the Chief Executive Officer. Subsequent to this the first and second Council to TVET CDACC was appointed through Gazette Notice No. 8402 dated 21st November, 2014 and Gazette Notice No.11630 dated 24th November, 2017 respectively. This was followed by the employment of 53 staff members for the Council.

10. He deposes that in its operation TVET CDACC has established several collaborations and linkages, namely Kenya Education for Employment Program (KEFEP), Young Africa Works-Kenya, Youth Employability through Technical and Vocational Education and Training, Youth Employment and TVET, Green innovations Centre's Program, Soil Protection and Rehabilitation for Food Security, Micro Enterprise Support Program Trust, Ruiru Gikonyo Memorial Institute and TVET CDACC, University of Nairobi ICT Centre, EASTRIP, OKP-KEN 103470 Project, Better Education for Africa Rise (BEAR II Project) TVET Innovation Fund, ILO PPDP Project, Skills For Prosperity and FKE.

11. With the TVET CDACC formation background in mind and the grounds of this application the petitioner avers that KICD develops only two main curricula - one for primary educationand another one for secondary education while TVET CDACC has already developed more than 470 competency-based curricula with over 1000 stand-alone units that last between one month and three months. He asserts moreover that the transfer of functions from TVET CDACC to KNEC and KICD should be effected as an amendment to the TVET Act, 2013 which he claims has not been followed in this case.

12. In addition to this, he avers that by transferring the functions through an executive decision, the respondents are undertaking an amendment to the Act without the participation of the legislature. Similarly, he contends that there has not been any public participation from stakeholders in regard to the transfer of the functions.

13. It is the petitioner’s case accordingly that the respondents’ actions will prejudice the students and render the TVET Act non-existent. In view of this he argues that allowing the respondents actions to proceed will be unreasonable, unconstitutional and an arbitrary exercise of administrative power. This in essence goes against the spirit and letter of Sessional paper No. 14 of 2012 on reforming education and training sectors in Kenya.

The Respondents and Interested Party’s case 14. In response and opposition to the application, the 3rd respondent and interested party filed their replying affidavits countering the petitioner’s averments.

The 3rd Respondent’s case 15. The 3rd respondent’s replying affidavit is dated 15th July 2022 and sworn by Dr. Julius Ouma Ojwang, the Principal Secretary, State Department for Early Learning & Basic Education. He depones that the government on 23rd July 2013 set up a presidential taskforce tasked with the responsibility of interrogating the policies on the management and governance of Kenya's parastatals with the aim of determining how best they would contribute to the pursuit of national development aspirations.

16. He deposes that the taskforce was established to address a number of concerns such as growth of the state corporations to unmanageable levels. Further that the genesis of this problem was discovered to be the duplication, overlapping and competing mandates which led to wastage of public resources. Among the recommendations made by the taskforce was dropping, merging and transferring the functions of the entities.

17. He deposes that with reference to TVET CDACC, the taskforce recommended the transfer of TVET CDACC's functions of designing and developing curricula for the training institution's examinations, assessment and competent certification, making of rules with respect to such examinations and competence assessments, issuance of certificates to candidates who satisfy national TVET examination and competence assessment requirements and promoting recognition of its qualifications in foreign systems to KICD and KNEC.

18. Based on the above the 3rd respondent rejects the petitioner’s claim that public participation was not conducted. He deposes that the stakeholders views were solicited and public participation done extensively. He informs that the public participation exercise was conducted in two phases, one preceding and the other succeeding the Presidential taskforce on Parastatal reforms.

19. Further that following the taskforce recommendations the 2nd respondent vide a letter dated 27th February 2014 to the 3rd respondent gave direction on the government's decision to transfer the mandate and function of the TVET CDACC. Subsequently, the 3rd respondent on 26th January 2021 appointed a committee which was to comprise of officers from KNEC, KICDand TVET CDACC to advise his office on the process of transferring the functions of TVET CDACC to KICDand KNEC.

20. He deposes that to finalize the process the 2nd respondent vide a letter dated 17th June 2022, appointed a Steering committee, constituted of officers drawn from the State Corporations Advisory Committee, the CEOs of KNEC, KICD and TVET CDACC, the Principal Secretary, Basic Education, the Principal Secretary, TVET, the Attorney General, the National Treasury & Planning.

21. The 3rd respondent asserts that the petitioner is deliberately misleading the court in stating that KlCD only develops curricula for primary and secondary education. Similarly that KNEC mainly deals with two curricula from KICD and at only one level of assessment.

22. He depones that KICD has developed over 262 TVET curricula for artisan, certificate, craft, diploma and higher diploma, in line with its mandate as provided under Section 4 (d)(8)of the KICD Act, No. 4 of 2013. On the other hand, KNEC currently sets 1,770 papers, which are administered in 371 institutions for business examinations and 432 for technical examinations, all over the Country based on over 262 curricula that has been developed by KICD for TVET. He avers that in the transferred functions, KICD will assume the functions related to curriculum and curriculum support materials while KNEC will assume functions related to assessment and certifications.

23. It is the 3rd respondent’s case therefore that the petitioner’s application is prejudicial and against the best interests of 3,411 TVET CDACC candidates who are currently doing the July 2022 examinations which are already being handled by KNEC. He asserts that the petitioner’s averments are misguided as they are not based on facts. For instance Sessional Paper no. 14 of 2012 was never submitted to the Parliamentary process and remains a draft as evidenced by Sessional Paper No.1 of 2019. He further avers that the matter has already been overtaken by events as the functions have already been delegated to KNEC and any injunctive orders will adversely affect the students referred to above.

24. The 3rd respondent finally depones that the petitioner has not demonstrated any imminent loss or prejudice that will be suffered by any parties and neither has he met the threshold for the granting of conservatory orders.

The Interested Party’s case 25. The interested party through its acting Chief Executive Officer,Zipporah Njoroge Messo filed its replying affidavit dated 15th July 2022. She reiterated the contents of the background of the case as espoused by the 3rd respondent.

26. She deposes that under TVET CDACC, the functions of curriculum development, assessment, and certification fell under one roof which in the end did not create an environment for quality checks and proper quality assurance. That the approved structure and establishment of TVET CDACC is too low and inadequate to deliver such a broad mandate. In addition, she deposes that the funding of KShs.271 million was inadequate to deliver on the broad mandate.

27. Considering these challenges in its internal capacity, the Council of TVET CDACC met on the 27th June 2022on its own motion pursuant to Section 46 (8) of the TVET Act of 2013 and resolved to have its functions delegated to KNEC and KICD.

28. She deposes that the inordinate delay in completion of the transfer of functions process was occasioned by the petitioner when he was the chairman of the 1st and 2nd Council of TVET CDACC between November 2014 – 2020.

29. It is the interested party’s case hence that the application is driven by personal interests meant to delay a lawful government process. She argues moreover that the injunctive orders sought if granted will negatively prejudice the candidates. On the flipside, she deposes that the petitioner has not demonstrated the prejudice that will be suffered if the said orders are not granted.

Parties submissions 30. The application was argued orally by the parties.

31. Referring to the petitioner’s application, Mr. Anzala for the petitioner submitted that the reason for the prayer for grant of conservatory orders specifically prayer (iii) was premised on a letter from the head of public service dated 17th June 2022 at (Page 51 -52 of the petitioner’s annextures) which informed of the transfer of functions of TVET CDACC to KNEC and KICD.

32. Mr. Anzala submitted that the institution is established under the TVET Act of 2013 and its functions spelt out under Section 45 of the Act. He noted that for the functions to be transferred there must be an amendment to the law. In view of this Counsel submits that the respondents actions did not have any legal basis hence ultra vires. This he contends is evidenced by the Task force report attached in the 3rd respondent’s replying affidavit which shows that the functions were delegated yet the TVET CDACC Council remains in force.

33. M/s Mwasao for the respondents relied on the 3rd respondent’s and interested party’s replying affidavits to present her case. Moreover she sought to rely of the Court of Appeal case of Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 that established the principles for grant of conservatory orders and defined what a prima facie case is.

34. Counsel submitted that the transfer of functions was brought about by a task force on parastatal entities. The taskforce resolved that the overlapping duties of parastatals ought to be separated as explained at page 204 of the Task Force report. It was submitted that the roles of the TVET CDACC, KNEC and KICD had duplicated roles hence the resolution. In essence Counsel submits that the roles of TVET CDACC can be handled by KNEC and KICD.Moreover she submits that there was public participation in the making of the decision.

35. M/s Mwasao submits that the petitioner relying on Sessional Paper No.14 of 2012 is an error as the Paper is non-existent. This is because the same was replaced by Sessional Paper No.1 of 2019.

36. She submits that there were shortfalls in TVET CDACC which are admitted to by the interested party in its replying affidavit. In the end the interested party resolved to delegate some of its functions. In essence Counsel submits that if the orders are issued the same will interfere with the examinations being carried out by the interested party and affect the relevant stakeholders. Furthermore, it is noted that the petitioner has not established a prima facie case and application lacks merit.

37. In rebuttal Mr. Anzala for the petitioner submitted that the petition is not premised on the Sessional Paper No.14 of 2012. He maintained that for the transfer of functions to be effected there is need for Section 46(8) of the Act to be amended. At the moment therefore it is argued that the Council has no power to amend its functions. To that end he submits that enforcement of the law cannot be a hindrance to the law.

38. In addition to this Counsel filed a list of authorities dated 18th July 2022 in support of the petitioner’s case.

Analysis and Determination 39. I have perused the pleadings and oral submissions of the parties and find that the only issue raised for determination is:

Whether the Conservatory Orders sought should be granted pending the hearing of the Petition. 40. Conservatory orders were defined in the case of Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] eKLR at paragraph 5 as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”

41. The guiding principles upon which the Courts make findings on issuance of conservatory orders are now well settled. The Supreme Court on the issuance of conservatory orders in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR pronounced as follows:-“(86)Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.

42. The Court in the case of Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others (2017) eKLRheld that:“A party who moves the court seeking conservatory orders must show to the satisfaction of the Court that his or her rights are under threat of violation; are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending case or Petition.”

43. The principles for consideration on whether to grant conservatory orders were summarized in the case of Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition (2016) eKLR where the Court held as follows: -“25. It therefore follows that an applicant must satisfy three key principles in order to make out a case for the grant of conservatory orders that is:a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution;b)Whether if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; andc)The public interest must be considered before grant of a conservatory order.”

44. The main question consequently is whether the petitioner has satisfied the set principles for grant of conservatory orders pending the determination of the petition. With regard to the first principle, a reading of the petitioner’s pleadings reveals that the issues raised revolve around the functions of the cited institutions with reference to their enabling statutes.

45. Guided by the cited authorities on establishing of a prima facie case, it is evident that the matter as raised does not touch on the petitioner’s fundamental rights and neither is it shown that he seeks the order on behalf of an affected group. It is reasonable to state that the petition does not highlight a ‘threat’ of fundamental rights and freedoms as envisaged in the Constitution. To that end I am inclined to find that the petitioner’s case does disclose a prima facie case, satisfying the first principle.

46. Turning to the second principle, whether the petition will be rendered nugatory.A perusal of the petitioner’s case reveals that this matter is premised on the respondents action of transferring TVET CDACC’s functions to KNEC and KICD. The legitimacy of the respondents’ actions or lack thereof can only be determined at the full hearing of the petition. It is important to note at this stage that this Court is not determining the substantive issues. As such the substratum of the petition will not be rendered ineffective if the sought orders are not granted.

47. On the final issue, public interest, the principle as established by the Supreme Court in the Gatirau Peter Munya case (supra) exhibits a unique aspect to consider in grant of conservatory orders. My interpretation of this facet is that the purpose of conservatory orders is to facilitate the orderly functioning within public agencies, as well as to uphold the adjudicatory authority of the court in public interest. This court therefore has a duty to consider the importance of proportionality in granting the desired orders.

48. An analysis of this facts of the case divulges that the respondents mandate affects a wide scope of the members of public in the republic. The 3rd respondent deponed that the impugned functions are currently ongoing with the great implication on the students affected by the respondents and interested party’s mandate.

49. On the other hand the petitioner also submits that the students stand to be affected by the respondents’ decision. Against this backdrop it is my humble view that the petitioner has not justified grant of the conservatory orders under this principle. This is because the balance of proportionality on the issuance of the conservatory orders under this principle will only be injurious to public interest and the operations of the respondents as public officers working for public bodies.

50. An appropriate balance must be maintained between any adverse effects of granting the orders and the fundamental rights and freedoms of persons as against the purpose which it intends to achieve. Grant of the conservatory orders in the manner sought would be disproportionate to the harm that is sought to be cured by such orders. The best thing for the parties to do would be to fast truck the hearing of the main petition so that a full determination is made.

51. In a nutshell I find that, the application does not satisfy the principles set out for grant of conservatory orders sought.The upshot is that the application lacks merit and is dismissed with costs.Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 21ST DAY OF JULY 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTPage 4 of 4