https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7597

Oral Health Association of Kenya v Cabinet Secretary, Ministry of Health & another; Commission for University Education (Interested Party) (Judicial Review E067 of 2026) [2026] KEHC 7597 (KLR) (Judicial Review) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7597 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E067 of 2026 WM Musyoka, J May 28, 2026 Between Oral Health Association Of Kenya Applicant and The Cabinet Secretary, Ministry of Health 1st Respondent The Attorney General 2nd Respondent and The Commission for University Education Interested Party Judgment 1.These proceedings were initiated by way of an originating motion, dated 11th March 2026. 3 orders are sought, a conservatory order, to stay implementation of an alleged directive, contained in a letter, dated 3rd February 2026; an order of certiorari, to quash the decision and directive in that letter; an order of prohibition, to restrain the 1st respondent, from interfering with, suspending or discontinuing the Bachelor of Science degree programme in oral health; a declaration that that programme is valid and lawful, and should be allowed to continue uninterrupted; and a mandamus order, to compel the 1st respondent to withdraw the said directive and recognise the statutory supremacy of the interested party. 2.The grounds, on the face of the application, are that the interested party has the exclusive statutory mandate, from the Universities Act, Cap. 210, Laws of Kenya, section 5A(2), to accredit and recognise academic programmes, and the 1st respondent is not vested with legal capacity to cancel an accredited university degree programme; the attempt by the 1st respondent to govern university education by executive fiat is a direct assault on the separation of statutory powers, and amounts to executive overreach; the decree, contained in that purported directive, is arbitrary and lacking in foundation, and is unreasonable; the purported directive is an ambush and a violation of section 47 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, as it does not give prior notice to the students affected, and it jeopardises their future; among others. 3.The factual background is given in the affidavit, sworn by Ndunu Chege, described as the treasurer of the applicant, on 11th March 2026. He avers that the proceedings are brought in public interest, as the applicant is a registered association. It is averred that the Mount Kenya University offers a Bachelor of Science degree in oral health, an academic programme that was approved and accredited by the interested party in 2016. It is averred that on 3rd February 2026, the 1st respondent allegedly issued an abrupt unilateral decree, to the Vice Chancellor of Mount Kenya University, directing the immediate discontinuation of the oral health programme, justifying the order with an explanation that the programme is "not aligned with the prevailing oral health population needs," and that there is "no clearly established service delivery gap." 4.It is averred that the said allegations, by the 1st respondent, contained in that letter, are misinformed, arbitrary and bereft of any empirical data, research mapping, or scientific backing, and that it is capricious for a Cabinet Secretary to issue sweeping declarations about the oral health needs of the country, without referencing a single health sector survey or human resource audit. It is further averred that the 1st respondent issued a 21-day ultimatum, demanding that the Mount Kenya University develop a "transition plan," for all students currently enrolled in the programme. 5.It is asserted that the said directive is a classic case of ultra vires, and a blatant usurpation of statutory power, for under Section 5A (2) of the Universities Act, as introduced by the Universities Amendment Act, No. 48 of 2016, the recognition, licensing, approval, or accreditation of any academic programme is the "exclusive mandate of the Commission for University Education at the exclusion of any other person or body." Hence, it is argued, that the 1st respondent, has absolutely no statutory authority, jurisdiction, or legal capacity to de-register, suspend, or order the discontinuation of a university academic programme. His actions are said to be an illegal attempt to rule by fiat rather than by the law. The purported directive is said to constitute a direct and frontal attack on the constitutional order in Kenya, by illegally bypassing the statutorily mandated regulator, the interested party herein, to shut down a lawful programme, by which act the 1st respondent has flagrantly violated Article 10 of the Constitution, specifically subverting the national values of the rule of law, good governance, transparency, and accountability. 6.It is also said that the directive offends Article 47 of the Constitution and the Fair Administrative Action Act, for the validly accredited programme, that houses 225 active students, cannot be extinguished via a solitary letter drafted in an office, devoid of any prior notice, stakeholder engagement, public participation, or the right to be heard. 7.It is averred that the directive has thrown the dental health training sector into a state of paralysis, unlawfully prejudiced hundreds of students currently enrolled, questioned the validity of their current studies mid-semester, and violated their constitutional right to education. The court is urged to assert the supremacy of the Constitution and the law, for, if the arbitrary directive is not suspended immediately by way of a conservatory order, the Executive will be emboldened to dismantle statutory bodies, paralyze the education sector, and operate outside the confines of their legal mandates. It is submitted that, in the interest of justice, the protection of the dental profession, and the preservation of the rule of law, the said directive should be halted in limine and, upon the hearing of this application, be quashed entirely by an order of certiorari. 8.The applicant has attached 2 documents, to the affidavit. There is a list of accredited universities in Kenya, indicating the degree programmes that the interested party has approved, for each of the accredited universities. There is also a copy of the impugned letter, dated 3rd February 2026, from the 1st respondent, addressed to the Vice Chancellor of Mount Kenya University. 9.Directions were given, on the disposal of the originating motion, on 12th March 2026, for filing of responses, and written submissions. 10.The only response, to the application, was by the 2nd respondent, who filed a notice of preliminary objection, dated 13th April 2026. The issues raised, in that notice, are that the impugned directive was addressed to Mount Kenya University, and not to the applicant; the applicant is a stranger to the communication between the 1st respondent and Mount Kenya University, and there is no privity of contract or interest between the applicant and the said directive; under section 7(1) of the Fair Administrative Action Act, only a "person who is aggrieved" by an administrative action may apply for judicial review; the applicant has not demonstrated that it is directly and personally aggrieved by the directive; the correct and proper party to challenge the directive, if any, is Mount Kenya University, which is not even made a party in the proceedings; the presence of the applicant, in the matter, is unnecessary, superfluous and vexatious; the applicant purports to be an association or society, but has not produced or exhibited any Certificate of Registration under the Societies Act (Cap. 108) to demonstrate that it is a body corporate with perpetual succession capable of suing or being sued in its own name; the deponent of the affidavit has not exhibited a board resolution, or a committee resolution, or an extract from the Constitution of the applicant authorizing him to swear an affidavit to institute these proceedings on behalf of the applicant Association; without such written authority, the deponent of that affidavit is a stranger to these proceedings, and the affidavit is incompetent, fatally defective, and incapable of supporting the application; and the affiant herein, as treasurer of the applicant, has not demonstrated any personal knowledge of the facts giving rise to the application, nor any direct involvement in the decision-making process of the applicant to institute these proceedings. 11.The applicant reacted to that preliminary objection, by way of an affidavit, sworn by Ndunu Chege, on 21st April 2026, essentially to provide evidence of registration, and to exhibit proof of authorisation to him, to swear the affidavit in support. He has attached a copy of a certificate of registration of the applicant, and a letter, dated 10th March 2026, from the applicant, being a resolution allowing him to swear affidavits, and to sign documents relating to all legal actions and proceedings relating to the applicant. 12.Both sides have filed written submissions. The applicant has submitted on the preliminary objection, on the standing to bring the proceedings and on the substance of the originating motion itself. The submissions by the 2nd respondent are restricted to the preliminary objection. 13.On the preliminary objection, it is argued, by the applicant, that the same does not reach the threshold set in Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] EA 696, Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR, Independent Electoral & Boundaries Commission vs. Jane Cheperenger & 2 Others [2015] eKLR and Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR. It is submitted that none of the issues raised could be determined without reference to evidence. East African Safari Air Limited vs. Anthony Ambaka Kegode & Elizabeth Ann Kegode [2011] KECA 160 (KLR), Otieno vs. Nyanuaya (Chairman Kisumu Centre Juakali Artisans Association) & 2 others; Registrar of Societies (Interested Party) [2023] KEHC 26939 (KLR) are cited in support. 14.On its standing or capacity to commence the proceedings, the applicant argues that locus standi is no longer founded on the common law, for the Constitution 2010 has expanded it, through Article 22(1), to allow every person the right to initiate court proceedings, alleging denial, infringement, violation or threats to constitutional rights and freedoms in the Bill of Rights. It is further argued that rights and freedoms are violated, infringed or threatened, by the action of the 1st respondent. It is submitted that Article 22(2)(d) confers express standing upon "an association acting in the interest of one or more of its members," while Article 258 extends the same to constitutional claims beyond the Bill of Rights. Article 260 is said to define “person,” to include any body of persons “whether incorporated or unincorporated.” It is argued that the applicant was covered by Articles 22(2)(d) and 260 of the Constitution, as it is a professional body, whose membership consists of dental health practitioners and trainees, the very class of persons whose academic pipeline has been targeted by the impugned directive. 15.On locus standi, the applicant cites Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR), Mitu-Bell Welfare Society vs. Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), Randu Nzai Ruwa & 2 others vs. Secretary, IEBC & 9 others [2016] KECA 371 (KLR), Kenya Bankers Association vs. Minister for Finance & Another [2002] 1 KLR 61, among others. 16.It is submitted that the Fair Administrative Action Act was enacted to operationalise Article 47 of the Constitution, and it ought to be read in harmony with the Constitution, and in particular Articles 22 and 258. Reliance is placed on Judicial Service Commission vs. Mbalu Mutava & another [2015] eKLR, Republic vs. Kilifi Land Control Board & 9 others Ex Parte Owen Yaa Baya [2015] eKLR, among others. 17.On the substance of the application, section 5A (2) of the Universities Act is cited, to submit that the interested party is clothed with exclusive mandate to recognise, authorise, approve and accredit academic programmes, including degrees, diplomas and certificates, offered at any university. It is argued that, under section 5A (3), the Cabinet Secretary may be consulted by the interested party before a programme is approved. It is submitted that a statutory body can only do what the statute expressly or by necessary implication authorises, and that everything else would-be ultra vires. Attorney General vs. Fulham Corporation [1921] 1 Ch 440, Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, Padfield vs. Minister of Agriculture, Fisheries and Food [1968] AC 997, Republic vs. Council of Legal Education & Another Ex-Parte Mount Kenya University [2016] eKLR and Okiya Omtatah Okoiti vs. Cabinet Secretary, Ministry of Education & Another [2019] KEELR 677 (KLR) are cited. 18.It is submitted that the 1st respondent has no authority, under the Universities Act, to do what he has purportedly done, for his role is limited to being consulted by the interested party on any programme. It is asserted that there is no authority to purport to command a university to discontinue an academic programme. It is submitted that Article 47 guarantees fair administrative action, that is lawful, reasonable and procedurally fair, while section 4(2)(3) of the Fair Administrative Action Act requires prior notice and reasonable opportunity for a hearing, before an adverse decision is made. 19.On its part, the 2nd respondent has identified 7 issues for determination, and these are whether the preliminary objection meets the threshold of a pure point of law, the matter is a justiciable administrative action, the applicant has the requisite locus standi to maintain this application, the applicant possesses the legal capacity and representative authority to sue, the Supporting Affidavit is fatally defective for lack of personal knowledge and for containing inadmissible hearsay evidence, the "Further Affidavit" filed by the applicant can cure the fundamental defects in the suit, which are incurable as a matter of law, and the applicant is abusing the liberal standing provisions of Article 22 of the Constitution. 20.It is asserted, based on Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 and Owners of Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] eKLR, the preliminary objection is properly before the court, because it challenges the jurisdiction of the court to handle the matter as framed. On justiciability, it is argued that the court should first consider whether there is an existing actual and justiciable administrative action, capable of being reviewed under the Fair Administrative Action Act, as it is predicated on a single letter that has not been authenticated, as a foundation has not been laid, under section 68 of the Evidence Act, Cap. 80, Laws of Kenya, for its admissibility as secondary evidence, as was ruled in Peter Njau Kang’ethe vs. Bic East Africa Limited [2021] KEELRC 329 (KLR). It is asserted that the applicant, as a third party, has not explained how it got possession of a letter not addressed to it, and which was meant to be confidential. Section 2 of the Fair Administrative Action Act is cited on the definition of what qualifies to be an administrative action, to argue that the impugned action does not impose an obligation, and the existence of the letter bearing the decision has not been demonstrated. 21.On locus standi, it is submitted that the impugned letter was not addressed to the applicant, but to another, and, as the applicant was not party to the communication, it would be a stranger to the correspondence. Section 7(1) of the Fair Administrative Action Act, which defines who may bring judicial review proceedings under that Act, to mean a person who is aggrieved of the impugned administrative action, is cited, to make the point that the applicant cannot be aggrieved by a directive that was not addressed to it. 22.It is acknowledged, based on Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, that the Constitution, 2010, has liberalised the concept of standing, but it is asserted that an applicant must still anchor their claim on some real or threatened legal wrong, and sufficient interest cannot be stretched to cover a phantom directive. It is submitted, founded on Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR, that the liberal nature of Article 22 does not mean that every person can bring any claim without any connection whatsoever to the subject-matter. It is argued that the applicant can only claim to be "aggrieved," or "acting in the public interest," when there exists an actual administrative action or decision. In the present case, it is argued, without proof that the directive was ever written, and served upon Mount Kenya University, and in the absence of Mount Kenya University in these proceedings, who ought to be the proper primary party, to verify the status of the communication, the applicant has no locus standi. More fundamentally, the applicant has not demonstrated that its members, or the public at large, stands to suffer any concrete harm from the alleged directive, assuming it exists. 23.The other issue is around the legal capacity of the applicant, and it is argued that, even if the court were to find that an administrative action exists, and that the applicant has some interest in it, which is denied, the suit would still be fatally defective, because the applicant lacks the legal capacity to sue, for, although the applicant purports to be a registered association, at paragraph 2 of the supporting affidavit, at the time of filing its originating motion, it failed to exhibit a certificate of registration, and that defect could not be cured by filing a further affidavit, to exhibit the certificate. It is submitted that an unlawful society could not sue or be sued in its name. Shadrack Mwamuu Nzioka & 2 others (suing as officials of Crescent Self Help Group) vs. Tropical Blooms Limited [2020] eKLR, is cited in that regard. It is submitted that the requirements of Order 1 rule 8 of the Civil Procedure Rules have not been met. 24.There are submissions around the supporting affidavit, the argument being that the same is fatally defective, for lack of personal knowledge and for containing inadmissible evidence, and for not complying with Order 19 rule 3(1) of the Civil Procedure Rules. It is submitted that that affidavit contains allegations, which the deponent cannot prove, as a matter of his own personal knowledge, and which is essentially hearsay evidence. 25.There are also submissions around the further affidavit, as to whether it can cure the fundamental defects in the suit. It is argued that the said affidavit was filed to cure the defects raised in the preliminary objection, to introduce documents to show that the applicant is a registered society, and authorisation had been given for the filing of the application. It is submitted that preliminary objections are determined on the basis of the material filed initially, and a suit, which is a nullity ab initio, cannot be cured by subsequent filings. 26.The final submissions are around abuse of the liberal standing provisions of Article 22 of the Constitution. It is acknowledged that that provision has liberalised the concept of standing in Kenya, but it is argued that that is not an excuse for procedural defect, nor a licence to file speculative suits. Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR is cited, for the argument that the liberalization of standing, under Article 22, does not mean that any person can bring any claim without any connection to the subject-matter. It is submitted that the court must still be satisfied that the applicant has a genuine grievance, and that the suit is not frivolous, vexatious, or an abuse of the court process. 27.There are 2 principle issues for determination; and the determination of the second issue may well depend on the outcome of the first. The first is technical, whether the proceedings are properly before the court; while the second is substantive, whether the application should be granted on its merits. I will start with the first, as it goes to jurisdiction, and a determination in the affirmative would render moot the consideration of the second. 28.The first issue rides exclusively on the preliminary objection, which raises technical issues around the competence of the originating motion, around justiciability, locus standi, legal capacity to sue, the validity of the affidavits, and Article 22 of the Constitution. 29.Let me start with the justiciability issue, which essentially determines whether a matter is suitable for a court to decide. It refers to the types of matters that a court can properly adjudicate, so that where a matter is adjudged to be non-justiciable, the court ought to dismiss it. In the broad scheme of things, relating to governance, it is a legal principle based on the doctrine of separation of powers, where the courts have to be careful not to overstep into the role of the other branches of government. A matter, that ought to be within the exclusive province of either the legislature or the executive, would not be justiciable, and the courts do not have to deal with it. 30.Justiciability is raised here in the sense of whether the issues raised are suitable for this court to handle. To assess justiciability, there would be 4 key considerations. The first would be on standing, answering the question whether the party bringing or commencing the matter has suffered a direct injury. The second would relate to whether the matter is ready for review by the court, in terms of whether the same has matured or if the issues are still speculative. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR). The third would be whether the issues have already been resolved, which would make determination by the court unnecessary; or if the resolution by the court would be of academic value only, resulting in orders being made in vain. See Shadrack Kinyanjui Wambui vs. Independent Electoral and Boundaries Commission & 2 others [2017] KEHC 9133 (KLR). The last would be whether the dispute should be resolved by the court, or through a different specialised process. 31.The cause herein is founded on an alleged decision by the 1st respondent, that a degree programme, in oral health, run by the Mount Kenya University, be discontinued, which decision is then communicated to the said university, by a letter dated 3rd February 2026. The applicant principally seeks the quashing of that alleged decision; the other prayers are largely ancillary to that. Let me examine the justiciability of that cause, based on the 4 considerations that I have discussed above. 32.On standing, that is the matter as to whether the applicant has suffered a direct injury, the answer would be it has not. The decision was not made with respect to it, neither was it addressed to it, but to another party, which is not even named as a party to these proceedings. Sections 7(1) and 9(1) of the Fair Administrative Action Act, contemplate action by a person who is aggrieved. That would suggest that the person aggrieved ought to demonstrate that the administrative action complained about has affected his legal rights or interests, in a direct and substantial way. That would appear to exclude the applicant herein, meaning that the applicant would not be clothed with adequate standing, to commence the cause, to challenge a decision which does not affect its legal rights or interests, or which does not affect it directly. 33.However, there is an exception, when it comes to public interest litigation, and a person without a direct personal interest may still have a standing. That is made possible by Article 22 of the Constitution of Kenya, which falls under the Bill of Rights, and which permits any person to act in public interest, to enforce the rights and freedoms in the Bill of Rights. The Fair Administrative Action Act was passed specifically to operationalise Article 47 of the Constitution, which also falls under the Bill of Rights, and the proceedings under it are for enforcement of rights, which links or connects the instant process to Article 22. Therefore, based on Articles 22 and 47, the applicant need not be directly affected by the process or decision complained about, for it is allowed to bring public interest litigation, to challenge administrative actions that violate constitutional rights. Article 22 is reinforced by Article 258 of the Constitution, which carries complementary provisions, which touch on constitutional issues that may fall outside the Bill of Rights. See Mwabalahe & 5 others vs. Bamahriz & another [2024] KEELC 13280 (KLR). 34.The second consideration is on whether the claim has matured, or whether it is largely speculative. The impugned letter, of 3rd February 2026, which is the basis for commencement of these proceedings, at relevant portions, reads as follows:“… you are advised to discontinue the programme and ensure that all health-related programmes offered at the university respond to identified health population health needs and service delivery gaps.Additionally, in consultation with KMPDC, you are required to develop a transition plan for all students who have completed or are currently enrolled in the programme, outlining clear transition arrangements in line with applicable regulatory requirement.The transition plan should be forwarded to this Office within 21 days of this letter for information and record purposes.” 35.My understanding, from the language of the first paragraph of the portion of the letter that I have recited above, is that the letter is advising the Vice Chancellor to discontinue the programme, based on the opinion of the Ministry of Health, that it was “not aligned with the prevailing oral health population needs of the country,” that there was no clearly established service delivery gap that it was seeking to address, and that the students enrolled in the programme risked spending their resources without an available pathway to professional practice. The language is seemingly advisory, not directory. It does not direct the discontinuation of the programme, but, rather, advises the discontinuation. It seemingly offers advice, rather than direct or command action. There is apparently, that is on the face of it, no order to discontinue the programme, and, therefore, it could be argued that no decision has been made, by the 1st respondent, to discontinue the programme. 36.Based on the foregoing, there is a suggestion that there is no case for review, because the case herein has not matured for that. It would have matured, in that context, if a decision had been made, and the Mount Kenya University was being directed or instructed to discontinue the programme. The issues appear, in that context, to be still speculative, so long as no decision has been made. It would, then, in the circumstances, be premature and speculative to go to court, seeking to quash a decision or a directive which is yet to be made. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR). 37.The 2nd respondent has been ambivalent, on the status of the impugned letter, at once speaking as if the letter does not exist, and, in the same breath, stating that it is confidential communication, which the applicant should not have accessed. It is a classic case of speaking from both sides of the mouth. I note that the 1st respondent, the purported author of that letter, has not appeared, and has not filed any response. A response, by the 1st respondent, would have cleared the air, on the authenticity of the letter. I find it curious, that the office of the Attorney General, who is named as the 2nd respondent, and who should have come on record for the 1st respondent, for it is the constitutional duty of the 2nd respondent to act for the State and its officers, by dint of Article 156(4)(b) of the Constitution, has, for some undisclosed reason, been careful not to come on record, as appearing for the 1st respondent, and has chosen to go on record exclusively for itself. That act or conduct says something. I shall treat the impugned letter as authentic. 38.The impugned letter has been placed before the court by way of an affidavit. It is affidavit evidence, founded on statements made on oath. Any challenge, to its genuineness or authenticity, can only be raised through another affidavit, sworn by the alleged maker of the letter, denouncing it. Its authenticity cannot be countered or challenged through grounds of opposition or written submissions. It is evidence presented through an affidavit, which can only be cancelled by counter-evidence presented through another affidavit, sworn and filed by the opposing party. The failure to do that can only mean that the evidence, that the 1st respondent wrote the impugned letter, has not been controverted, and that that letter is authentic. 39.The 2nd respondent has argued that the letter was not meant for consumption by the applicant. That is quite so. However, this is public litigation. These are matters touching on public interest. The degree programme is mounted by a private university, but that university is accredited to run the subject academic programme by the interested party, which is a public entity, responsible for governance of the university education space in Kenya. The academic programme, although run by a private entity, is meant for consumption by the public, hence there is public interest, which draws in the 1st respondent and the interested party, both of whom are public entities, albeit executing different mandates. 40.Whatever happens, at the public space, should be of interest to the general public, for it affects them. Correspondence, purportedly done in public interest, conveying a decision that would impact the public, cannot be said to be private or confidential. The fact that it is not addressed to the public-spirited individual or association, behind the public interest litigation, cannot shield the correspondence from scrutiny by the court, in the cause. To allow or envisage such a shield would be to blunt or undermine the effect and spirit of Article 22 of the Constitution. Of course, there are limitations, under Article 24 of the Constitution, of rights and freedoms under the Bill of Rights, but it has not been demonstrated that the said letter falls under any of the limitations set out in that Article. 41.The language, in the last 2 paragraphs of the impugned letter, which I have recited above, portray a different picture, from that discussed in paragraphs 35 and 36 above. Contrary to appearing to merely advise the Vice Chancellor, to consider abandoning the academic programme, these latter 2 paragraphs are in commanding language. They are directory. The Vice Chancellor is required to do something, to consult KMPDC, and to develop a transition plan, for the students in the programme, outlining clear exit arrangements. To be required to do something is to be commanded to do it, or to be ordered or directed. That command, or direction, or order, in the impugned letter, is then followed up with a demand, to submit that plan, to the 1st respondent, within 21 days. 42.The language, in these last 2 paragraphs of the impugned letter, convey a message that the said letter is not, by all means, advisory, but that, in reality, it is communicating that a decision has been made, by the 1st respondent, to end the said degree programme, and it carries or conveys an order or command to wind it up, within given timelines. The phrase, “you are advised,” is deceptively polite, intended to soften the otherwise blunt message that is being conveyed, that the university should close shop, so far as that programme is concerned. The intention of the entire letter should be gathered from a reading of the whole document, that is from all the paragraphs of the letter, rather than the sole paragraph appearing to advise discontinuance of the programme. 43.Based on these last 2 paragraphs of the letter, it would be my conclusion, contrary to what I have discussed above, at paragraphs 35 and 36, that, although the letter initially appears to be merely advisory, it is actually directory, for the Vice Chancellor is being ordered to make exit arrangements for the students that are in the degree programme. These directions are given consequent to the discontinuation of the programme. The argument is that, as the programme is being discontinued, the university should arrange for how the students in it are to exit. It is being commanded to work out an exit plan, within certain timelines, and to report the plan to the 1st respondent. That would effectively cancel out the apparent advice in the initial paragraph, elevating it to a command to close the programme. 44.In that sense, therefore, it should be clear that a decision has been made, by the 1st respondent, to close or end the degree programme, and the impugned letter, dated 3rd February 2026, is communicating that decision, and demanding compliance, within timelines. That would mean that there is a decision, whose implementation is supposed to be underway. The existence of the decision, and the directions on its implementation, portends maturity of a cause, capable of review by the court. The cause herein, therefore, is not speculative, in the context of the latter 2 paragraphs of the impugned letter, and this matter is properly before the court. 45.On mootness, that consideration or issue should not arise, for the respondents have not demonstrated that the decision or directive to discontinue the programme has been resolved, neither have they pointed to alternative avenues for resolution of the arising dispute. So, the question of the issue having been resolved through other means or fora would not arise. See Shadrack Kinyanjui Wambui vs. Independent Electoral and Boundaries Commission & 2 others [2017] KEHC 9133 (KLR) and Elms & another vs. Director of Public Prosecutions & 2 others [2022] KECA 582 (KLR). 46.The foregoing discussion, on justiciability, has largely disposed of the issues around locus standi and Article 22 of the Constitution, leaving the court to deal with the matters or issues around lack of legal capacity to sue and the validity of the affidavits. 47.On capacity to sue, the principal argument is that the applicant is an unregistered society, given that it had not exhibited its certificate of registration and an authority to sue on behalf of those directly affected, at the initial stage, when the cause was filed. Aspects of the issues raised, under this heading, are addressed above, under justiciability, with respect to locus standi and Article 22 of the Constitution. Without prejudice to what I may say later, on the impugned affidavits, there is material which indicates that the applicant is a registered society, and that would envelope it with mandate to agitate causes relating to oral health. 48.There are arguments about non-compliance with Order 1 rule 8 of the Civil Procedure Rules, with respect to representative suits, where there may be need for authority to sue. The answer to that would be that the Civil Procedure Rules would not apply here, for these proceedings are not premised on the Civil Procedure Act, Cap 21, Laws of Kenya, and the Civil Procedure Rules, but on the Fair Administrative Action Act and the rules of procedure made under it, and the provisions of the Civil Procedure Act would only apply where expressly provided for under the Fair Administrative Action Act, and, similarly, the provisions of the Civil Procedure Rules would only apply to the extent permitted under the Rules made under the Fair Administrative Action Act. 49.On the affidavits, filed in support of the originating motion, it is argued that the same are not compliant with Order 19 rule 3(1) of the Civil Procedure Rules, for the deponent, in them, deposes to matters that are not within his knowledge. The short answer to that contention is that these proceedings can only be subject to the Civil Procedure Rules to the extent permitted by the Fair Administrative Action Act and the Fair Administrative Action Rules. Both the Fair Administrative Action Act and the Fair Administrative Action Rules provide for filing of affidavits, but none of them makes any reference to Order 19 rule 3(1) of the Civil Procedure Rules. The restrictions, imposed by Order 19 rule 3(1) of the Civil Procedure Rules, would not apply in public interest litigation, where action may be by persons who have no personal interest in the matter, hence lacking the sort of personal knowledge, of the matters the subject of litigation, envisaged under Order 19 rule 3(1) of the Civil Procedure Rules. 50.Order 19 rule 3(1) of the Civil Procedure Rules is meant for proceedings mounted under the Civil Procedure Act and the Civil Procedure Rules, and not for proceedings governed by other pieces of legislation, which provide for a separate mode of procedure, unless there is express provision for their application. Order 19 of the Civil Procedure Rules is not the general law on affidavits, for it is mere procedural law on affidavits filed in matters that are initiated in accordance with the procedure governed by the Civil Procedure Act and the Civil Procedure Rules. The Civil Procedure Act and the Civil Procedure Rules are designed for proceedings where the parties have a direct or personal interest in the matter the subject of the litigation, hence the 2 pieces of legislation are not suitable for public interest litigation. 51.The law of affidavits is set out in the Oaths and Statutory Declarations Act, Cap. 15, Laws of Kenya. Any piece of legislation, which sets out a special procedure, also sets out what the substance and content of the affidavits to be filed in those proceedings ought to be, whether under the Law of Succession Act, Cap 160, Laws of Kenya, and the Probate and Administration Rules; the Fair Administrative Action Act and the Fair Administrative Action Rules; the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules; the Small Claims Court Act, Cap 10A, Laws of Kenya, and the Small Claims Court Rules; the Law Reform Act, Cap. 26, Laws of Kenya, and Order 53 of the Civil Procedure Rules, among others. See, generally, Ls.. I should, perhaps, point out that, although Order 53 is housed within the Civil Procedure Rules, the special procedure it prescribes, for judicial review proceedings, is independent of what is prescribed in the rest of the Civil Procedure Rules. 52.The other argument around affidavits is around sections 67, 68 and 69 of the Evidence Act, which dwell on production of documents. The argument is that the applicant was not the maker of the letter relied upon, nor was it addressed to him. It is argued that he could not possibly produce it. With respect, sections 67, 68 and 69 of the Evidence Act would not apply here. No documents have been produced in evidence. The issue of production does not arise, as there has been no oral hearing, where witnesses testified, referred to documents, were examined in chief and cross-examined on them, before they formally produced the documents. Presentation of documents in court, by way of affidavit evidence, does not amount to production, for there would be no trial of the documents before they are produced formally as exhibits, in the way the same plays out in oral or viva voce hearings. The challenge with affidavit evidence was discussed in Saisi & 7 others vs. Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR). 53.The conclusion, to the first broad matter, based on the issues raised in the preliminary objection, would be that the instant matter is justiciable, for it is ripe, for an actionable decision has been made, which would be amenable to judicial review, under the Fair Administrative Action Act. 54.I will now move on to address the only substantive matter or issue, on merits, in the application itself, and that is whether the 1st respondent would have jurisdiction to approve and accredit academic programmes of universities accredited by the interested party. The applicant argues that he would not. 55.The law, governing operations of universities in Kenya, is the Universities Act, which commenced in 2012, and was enacted to provide for development of university education, and the establishment, accreditation and governance of universities in Kenya. 56.The Universities Act establishes the interested party, at section 4. The functions of the interested party are set out in section 5(1) of the Universities Act, in the following terms:“Functions of the Commission(1)The functions of the Commission shall be to—(a)promote the objectives of university education;(b)advise the Cabinet Secretary on policy relating to university education;(c)promote, advance, publicise and set standards relevant in the quality of university education, including the promotion and support of internationally recognised standards;(d)monitor and evaluate the state of university education systems in relation to the national development goals;(e)licence any student recruitment agencies operating in Kenya and any activities by foreign institutions;(f)develop policy for criteria and requirements for admission to universities;(g)recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions in accordance with the standards and guidelines set by the Commission from time to time;(h)undertake or cause to be undertaken, regular inspections, monitoring and evaluation of universities to ensure compliance with the provisions of this Act or any regulations made under section 70;(i)collect, disseminate and maintain data on university education;(j)accredit universities in Kenya;(k)regulate university education in Kenya;(l)on regular basis, inspect universities in Kenya;(m)promote quality research and innovation; and (n) deleted by Act No. 18 of 2014, Sch.” 57.Section 5(2B) of the Act carries provisions on the approval and inspection of universities academic programmes and statutes, and states as follows:“(2B) (1) The Commission shall, in approving and inspecting university academic programmes—(a)analyse and consider the following factors—(i)learning content of a programme;(ii)purpose and objectives of a programme;(iii)structure of a programme;(iv)delivery mode of a programme;(v)availability of academic resources to implement a programme;(vi)mode of assessment of the programme;(vii)learning environment of a university;(viii)learning facilities of a university; and(ix)extra-curricular activities offered by a university;(b)ensure openness, maintain objectivity and consistency in arriving at its decision.” 58.The cause herein is about an academic programme of a university accredited by the interested party. From the provisions, in section 5 of the Universities Act, it would be clear that it is the exclusive function and mandate of the interested party to accredit universities, and to approve their academic programmes. It is equally the role and function of the interested party to monitor and evaluate university education in Kenya, through inspecting the universities. I reiterate that that mandate is exclusive to the interested party. 59.Section 2 of the Universities Act carries a definition of Cabinet Secretary in the following terms: ““Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters related to university education.” The roles assigned to the Cabinet Secretary, under the Universities Act, include receiving advice, under section 5(1)(b), on policy relating to university education; contribution to the constitution of the interested party, under section 6(1)(d); receiving resignations of members of the interested party, under section 8(1)(a), and appointing their replacement, under section 8(2); appointing the Secretary of the interested party, under section 9(1); revocation of a letter of interim authority, on advice of the interested party, under section 17; receipt of an accreditation report from the interested party, under section 18(2), and to consider recommendation of grant of charter or letter of interim authority, or reject the application, under section 19; publish the charter, under section 21; recommend to the President to have the charter revoked, under section 22, or varied, under section 22A; recommend to the President, under section 25(1), for declaration of technical universities; appointment of some members of the council of a public university, under section 36(1)(d); among others. 60.All the roles and functions, enumerated in the foregoing paragraph, are assigned to the Cabinet Secretary for education. None of them are assigned to the 1st respondent. Indeed, there is no mention of the 1st respondent in any of the provisions of the Universities Act. That should mean that the 1st respondent has no role of any kind or character, with respect to the matters that are the subject of the Universities Act. Consequently, the 1st respondent has no power, under the Universities Act, to order discontinuance of a degree programme of a university in Kenya. 61.There could, as a matter of course, be overlap and conflict between the provisions of the Universities Act and other statutes, that may regulate education and training in the medical field, whether at college or university, and which empower and assign roles to the 1st respondent in that regard. Section 5A of the Universities Act is alive to such overlap and conflict, particularly around approval of academic programmes, and provides as follows, with respect to that:“5A. Conflicts with other Acts in approval of programmes(1)If there is a conflict between the provisions of this Act and the provisions of any other Act in matters relating to approval or accreditation of academic programmes offered by universities, the provisions of this Act shall prevail.(2)Despite the provisions of any other law, the recognition, licensing, student indexing, approval or accreditation of any academic programme including postgraduate degrees, diplomas including postgraduate diplomas and other academic certificates offered at a university shall be the exclusive mandate of the Commission to be exercised in accordance with this section at the exclusion of any other person or body.(3)The Commission may, before approving any academic programme consult with any relevant body established by written law to regulate the profession to which the academic programme relates where such law empowers the professional body to approve or accredit courses offered at any university or colleges.(4)Pursuant to section 5(2), the Commission may engage—(a)professional bodies and associations to carry out inspection of universities on its behalf;(b)the Auditor-General to offer the Commission professional opinion on management and financial positions of a particular university.(5)A person who without the authority of the Commission under this Act purports to license, accredit, recognise, audit, inspect, index students or collect a fee or a charge from a university or a student commits an offence and shall be liable on conviction to a fine not exceeding two million shillings or imprisonment for a term not exceeding two years or both.” 62.Let me break down section 5A of the Universities Act. Section 5A(1) states that where any such conflict arises, the same shall be resolved in favour of the Universities Act, by providing that the provisions of the Universities Act shall prevail. Under section 5A(2), the interested party has exclusive mandate, with respect to the recognition, licensing, student indexing, approval or accreditation of any academic programme including postgraduate degrees, diplomas including postgraduate diplomas and other academic certificates offered at a university, which overrides any similar mandate vested in any other person or body under any other law. Section 5A(3) gives the interested party discretion to consult, before approving any academic programme, with any relevant body, established by written law to regulate the profession to which the academic programme relates, where such law empowers the professional body to approve or accredit courses offered at any university or college. 63.Section 5A(4) grants discretion to the interested party to engage professional bodies and associations, with respect to inspection of universities; and the Auditor-General with respect to getting professional opinion on management and financial positions of a particular university. Section 5A(5) criminalises the licensing, accreditation, recognition, auditing, inspection, indexing of students or collection of a fee or a charge from a university or a student, without the authority of the interested party, making such offence punishable by a fine, imprisonment or both. 64.None of the provisions, in section 5A, grant authority, power, function or role of any kind to the 1st respondent, and even to the Cabinet Secretary responsible for education. Neither of the 2 Cabinet Secretaries would have power and authority to do any of the things set out in section 5A. Section 5A grants discretion to the interested party to consult stakeholders in the profession to which the academic programme relates. That consultation does not extend to the 1st respondent, with respect to academic programmes relevant to the health ministry, for that consultation is limited to “any relevant body established by written law to regulate the profession to which the academic programme relates where such law empowers the professional body to approve or accredit courses offered at any university or colleges.” 65.That, of course, does not bar the 1st respondent from expressing views on any academic programmes undertaken by the universities, which are relevant to the ministry of health. However, any such views, if official, can only be channelled through the Ministry of Education, on a Cabinet Secretary-to-Cabinet Secretary basis, and there should be no occasion for the 1st respondent to address a university directly, on its academic programmes, bypassing the Cabinet Secretary for education, for doing so would run afoul of the Universities Act. Any orders made or directions given by the 1st respondent to any university on its academic programmes, would be a nullity, for being made in exercise of power or authority that the 1st respondent is not possessed of. Equally, any direct official communication, by the 1st respondent, with a university on an academic programme it runs, without reference to the Cabinet Secretary responsible for education, would be improper, unreasonable, irresponsible and in bad faith, and it would amount to intermeddling in the affairs of another ministry, over which the 1st respondent has no authority. There would be statutory overreach, ultra vires exercise of authority and usurpation of mandate. 66.In the end, based on what I have discussed hereabove, it is my finding and holding that the application herein is merited, for the 1st respondent has no power to make the decision that he purported to make, to have the academic programme in question discontinued. Consequently, I hereby allow the originating motion, dated 3rd February 2026, in terms of prayers 3, 4 and 5 thereof, with costs. Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, THIS 28TH DAY OF MAY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Manyara, instructed by Osoro Onyiego & Manyara, the Advocates for the applicant.Ms. Wamuyu, instructed by the Attorney General, for the 2nd respondent.