[2017] KEHC 9675 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW AND CONSTITUTIONAL DIVISION

J.R. NO. 601 OF 2017

IN THE MATTER OF SECTION 8 & 9 OF THE LAW

REFORMACT CAP 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE

RULES 2010, CAP 21, LAWS OF KENYA

AND

IN THE MATTER OF THE MEDICAL LABORATORY TECHNICIANS

AND TECHNOLOGISTS ACT, 1999, NO. 10 OF 1999

AND

IN THE MATTER OF THE MEDICAL LABORATORY TECHNICIANS AND

TECHNOLOGISTS (CURRICULUM AND COURSE CONTENT) REGULATIONS, 2006

AND

IN THE MATTER OF THE KENYA MEDICAL LABORATORY

TECHNICIANS AND TECHNOLOGIST BOARD

AND

IN THE MATTER OF THE APPLICATION FOR NICKY ODONGO LUBANGA

(INDEX NO. B182/12) TO SIT FOR THE NOVEMBER, 2017 EXAMINATIONS

AND

IN THE MATTER OF THE APPLICATION FOR ORDERS OF

CERTIORARI, PROHIBITION AND MANDAMUS

BETWEEN

REPUBLIC..................................................APPLICANT

-VERSUS-

THE KENYA MDICAL LABORATORY TECHNICIANS

AND TECHNOLOGIST BOARD...1ST RESPONDENT

ABEL ONYANGO..........................2ND RESPONDENT

EX-PARTE: NICKY ODONGO LUBANGA

JUDGEMENT

Introduction

1. In his Motion brought on Notice dated 4th October, 2017 the ex parte applicant herein, Nicky Odongo Lubanga, seeks the following orders:

a. This Honourable Court be pleased to grant an order of certiorari to remove into this court for the purposes of being quashed the decision of the Respondents to deny the Applicant the requisite permission to sit for the November, 2017 examinations administered by the 1st Respondent.

b. This Honourable Court be pleased to grant an order of prohibition to prevent the Respondents from barring the Applicant from sitting for the aforementioned November, 2017 examinations.

c. This Honourable Court be pleased to grant an order of mandamus to compel the Respondents to allow the Applicant to sit for the November, 2017 examinations.

d. This Honourable Court be pleased to grant an order restraining the Respondents from acting or continuing to act in breach of the duty imposed by them under the provisions of the Medical Laboratory Technicians And Technologists Act, 1999 and the Medical Laboratory Technicians And Technologists (Curriculum And Course Content) Regulations, 2006.

e. This Honourable Court be pleased to grant a declaratory Order that the Applicant has a right to sit for the November, 2017 examinations.

f. The costs of this application be provided for.

Ex Parte Applicant’s Case

2. According to the ex parte applicant, he sat for her KCSE examinations in 2005 and attained a mean grade of C+ (Plus) and subsequently enrolled for and completed a diploma in Applied Sciences from Kisumu Polytechnic. The applicant however averred that he was keen on pursuing a Bachelor of Science degree (Medical Laboratory Sciences) at Maseno University. However, when he presented himself for registration for the course, he was advised that the Respondent had issued a directive that those wishing to pursue the course and who had not attained the requisite grade in one subject were to undergo a bridging course.

3. It was deposed by the applicant that based on this information, he proceeded to register and sit for a bridging course in Mathematics with the Kenya National Examination Council, a course which he completed in the year 2011 and attained a B- (Minus). Based on the said results, the applicant was admitted at Maseno University in 2012 and was subsequently indexed by the Respondent in the same year and issued with an indexing card on 27th August, 2017.

4. It was the applicant’s case that he comes from a humble background and his Father took out a loan to finance his studies at the University. However, the same was not enough and he was forced to seek further financial assistance from the Higher Education Loans Board (HELB). He however successfully graduated from Maseno University on 16th December, 2017 and was issued with a Degree Certificate of Bachelor of Science (Medical Laboratory Sciences, with IT). Consequently, the applicant was under impression that the only further requirement he needed to comply with was to sit for the Board issued exams. He accordingly registered for the Board Examinations on 9th January, 2017 and paid Kshs. 15,000/= on account of Examination Fees and was issued with a Receipt number 2755435. It was his case that he had satisfied all the requirements of the 1st Respondent and was confident that he would be allowed to sit for the May, 2017 examinations. However, the Respondent and/or its agents or employees denied him the opportunity to do so on the grounds that he was not qualified to sit for the same.

5. It was averred by the applicant that he wrote a letter dated 12th May, 2017 to the 1st Respondent through the 2nd Respondent requesting reasons as to why he was declined from sitting for the KMLTTB exams which were scheduled to take place on 22nd May, 2017 but never received a response thereto and was therefore unaware as to the reasons relied upon by the Respondent in locking him out of the Examinations.

6. The applicant averred that after the May, 2017 examinations, he followed up with the Respondent regarding his status and whether he would be allowed to sit for the examinations in November, 2017 but no response was forthcoming. Accordingly he is to date un aware as to the reasons why he was prevented from sitting for the examinations in May, 2017 and has never been furnished with any proceedings (if any) where the Board made its decision to prevent him from sitting for the May, 2017 and subsequently the November, 2017 Examinations.

7. It was the applicant’s lamentation that is now due to start repaying his HELB loan and has already started receiving messages from HELB directing him to start paying to avoid penalties, yet he is unable to secure employment as he requires to be registered by the 1st Respondent, which registration will only be achieved once he sit for, and passes the Board examinations.

8. It was the applicant’s case that the 1st and 2nd Respondents are in breach of the provision of Article 47 of the Constitution, the provisions of section 3 & 4 of the Fair Administrative Action Act, 2015 and the laws of natural justice. It was further the applicant’s case that the 2nd Respondent’s Actions were procedurally unfair they failed to take into considerations the relevant considerations.

9. It was therefore his contention that unless the Orders sought herein are granted, he would be unable to secure employment which he requires to enable him to support his family and to repay the said HELB loan.

10. It was submitted on behalf of the applicant that was never accorded an opportunity to be heard or to defend his case and the Board’s decision was made without his knowledge. In support of his case the applicant relied on the Provisions of the Second Schedule of the Medical Laboratory Technicians and Technologists (Curriculum And Course Content) Regulations, 2006(hereinafter referred to as “the Regulations”) relating to Diploma Courses under the Act, and contended that he satisfied all the requirements save for one, a C (plain) in Mathematics or Physics. Contrary to the averments in the Replying Affidavit, it was submitted that the Ex-Parte Applicant attained a Mean Grade of C+ (plus), a C+ (plus) in Biology and Kiswahili and a C (Plain) in Chemistry and English while the requirement in the Act was for a C (plain) grade in the above subjects.

11. The applicant also referred to the Admission Requirements in paragraph 4. 4 of the Regulations and Syllabus.

12. Based on the foregoing, it was submitted that as a diploma certificate holder, the Ex-parte with the directives issued by the 1st Respondents through Maseno University and proceeded to successfully undergo a bridging course in Mathematics and attained a B- (minus) grade. In his submissions, at the point of indexing and issuance of an indexing card by the 1st Respondent, the Ex-parte applicant submitted all his academic credentials and following a scrutiny of the same, he was issued with an indexing card and an index number- B182/12. Further,the 1st Respondent oversaw his training including his attachment. It was therefore submitted that the closure of Maseno University is non-consequential to the Applicant’s case as the same was done on 23rd October, 2017, long after the Ex-parte applicant graduated from the institution therefore any contravention by the institution at the time of closure does not affect the credibility of the Ex-parte’s degree.

13. In support of his submissions the applicant relied on Nyang’au Erick Nyakundi vs. Secretary Teachers Service Commission [2016] eKLRwhere the court found that the Respondent therein had failed to establish that the Claimant did not meet the relevant qualifications and submitted that similarly since 2012 when the Ex-parte applicant first submitted his academic documents, the Respondents never communicated to him that he had failed to meet the relevant academic qualifications.

14. It was therefore submitted that all factors considered, the Ex-parte applicant did indeed meet the requirements to sit for the examinations issued by the 1st Respondent.

15. According to the applicant, he was never informed of a hearing and he was never accorded the right to defend his case which goes against the principles of natural justice and on the authority of Republic vs. Kenya Medical Laboratory Technicians & Technologists Board & 2 Others Ex-Parte Victor Odhiambo Dinda [2015] eKLRandRepublic vs. Kenya School of Law & 2 Others Ex-parte Julient Wanjiru Njoroge & 5 Others [2014] eKLR,it was submitted that the Respondents herein acted Ultra-Viresas to the laws governing the Registration of Medical Laboratory and Technologists under the Act in barring the Ex-parte applicant from sitting for the Board examinations with no reasons advanced to him for the Respondents’ actions despite having been duly indexed as per the provisions of the Act.

16. It was further submitted that the Respondents herein acted in breach of the Principle of proportionality by failing to strike a fair balance between the adverse effects of their decision upon the Ex-parte applicant vis-à-vis the decision to bar him from sitting for the Examinations herein. Further, the Applicant submitted that the Respondents acted in breach of the Principle of Legitimate Expectation, like any individual who had paid for the KMLTTB examination and who had been duly indexed legitimately expected that the 1st Respondent would comply with the Regulations governing the conduct of its business and to fairness and principle of law and honour its assurance to the effect and that the applicant would be allowed to sit for the examinations which he duly registered for.

17. It was therefore submitted that based on the foregoing, the Respondents herein acted in breach of the Principles of Natural justice, the principles of proportionality and the Principle of Legitimate expectation.

Respondent’s Case

18. The application was opposed by the Respondents.

19. According to the Respondents, the 1st Respondent is established pursuant to the provisions of section 3 ofMedical Laboratory Technicians and Technologists ActCAP 253A (hereinafter referred to as “the Act”) as a body corporate with perpetual succession mandated by the said provision to be capable of doing or performing all such other acts necessary for the proper performance of the 1st Respondent’s functions under the Act whose section 5 provides the object and purpose for which the Board is established as being to exercise general supervision and control over the training, business, practice and employment of Laboratory Technicians and Technologists in Kenya and to advise the Government in relation to all aspects thereof.

20. According to the Respondents, the 1st Respondent performs very important functions as provided under section 5(2) of the Act which include prescribing in consultation with Kenya medical Training College and such approved training institutions as the 1st Respondent deems appropriate, the courses of instruction for Laboratory Technicians and Technologists considering and approving the qualification of Laboratory Technicians and Technologists for the purpose of registration under the Act, approving institutions for the training of Laboratory Technicians and Technologists licensing and regulating the business and practice of registered Laboratory Technicians and Technologists and regulating the professional conduct of registered Laboratory Technicians and Technologists and to taking such disciplinary measures as are appropriate to maintain proper professional standards.

21. It was averred that pursuant to its statutory mandate aforesaid the 1st Respondent developed a curriculum for Bachelor Degree programme in Medical Laboratory Sciences to serve and guide universities wishing to offer this degree programme. It was disclosed that in consultation with the 1st Respondent and pursuant to the 1st Respondent’s Statutory mandate, Maseno University developed a degree programme in Bachelor of Science Medical Laboratory Science (with information technology) modelled and aligned with the approved programme of the said degree programme developed by the 1st Respondent as hereinabove referred.

22. According to the Respondents, for one to be considered for registration as a general practitioner in Medical Laboratory Science in addition to passing the Board examinations, one is required to have undertaken a degree course in Bachelor of science, medical laboratory sciences as approved by the 1st Respondent as the said course contains fundamental core units for one to be considered to practice as a general practitioner and which core units are set out in the annexed approved degree programme for the said course. Further, before admission to the training institution, it is obligatory that the training institution confirms that the student has attained the minimum requirement for admission to pursue the said degree course which minimum entry requirements are set out in the approved degree programme developed by the 1st Respondent and also the approved programme developed by Maseno University with the approval of the 1st Respondent.

23. It was averred that the entry requirements for a candidate to pursue Bachelor of Science Degree; (Medical Laboratory Science) are clearly set out in the model curriculum formulated by the Respondent at clause 5. It was deposed that Maseno University has incorporated this entry requirements in its programme. It was therefore the Respondents’ case that the ex parte applicant did not meet the Minimum requirements for admission to pursue degree programme in Bachelor of Science (Medical Laboratory Sciences).

24. The Respondent denied that they issued a directive that those wishing to pursue the course and who had not attained the requisite grade in one subject were to undergo a bridging course. To them, the degree programme developed by the Board is clear that the qualifications must be attained in one sitting and the Board has never changed and/or altered this entry requirement. In any event, the ex parte Applicant failed to meet the minimum entry requirement in other core subjects besides mathematics.

25. It was deposed that as further evidence that entry requirements must be attained in one sitting, the criteria for any candidate to qualifying for training for diploma in medical laboratory sciences is statutory fixed and provided for in the Medical Laboratory Technicians and Technologists (Curriculum And Course Content) Regulations 2006which provides in paragraph 2 of that for purposes of registration as a laboratory technicians and technologists under the Act,the curriculum and course content set out in the second schedule applies to Diploma courses and the curriculum and course content set out in the third schedule applies to Higher Diploma courses and the requirements that qualifications must be attained in one sitting also applies for certificates and diploma and the Regulations is provided in the second schedule to the said regulations and paragraph 6. 0.

26. It was the Respondents’ case that from the matters aforesaid, it is manifestly clear that the minimum entry requirements for the degree course are well laid out in the degree programme and the Ex parte Applicant failed to attain the same a fact the applicant is fully aware of. By attempting, unprocedurally to do a bridging course in Mathematics, the ex parte Applicant must have been aware of the minimum requirements which he was attempting to unsuccessfully attain. In any event, he still did not attain the minimum entry requirements in the other core subjects.

27. It was contended that pursuant to its statutory mandate the Respondent in exercising its function of supervising and controlling the training of laboratory technicians and technologists works closely with the training institutions and indexes the candidates who have been admitted to various training institutions to pursue courses in various fields of medical laboratory sciences and upon completion of their studies, the Board administers Board examination to all candidates who apply and are eligible for registration as a condition precedent to such registration. Pursuant to its regulatory mandate and in furtherance of its mission to protect the health of Kenyan, the Respondent conducts thorough audit all the documents submitted by the candidate to ensure that such a candidate meets the minimum entry requirements for pursuing such a course and is eligible to sit for board examinations. Accordingly, the Registrar is, pursuant to section 17 of the Act mandated to remove from the register, inter alia, any entries fraudulently or erroneously made. Further pursuant to section 19 (5) of the Act any person who in an application for registration, wilfully makes a false or misleading statement or utters a false certificate, commits an offence and shall be liable on conviction to a fine not exceeding one million shilling, or to imprisonment for a term not exceeding five years or, to both. In this case, it was contended that the ex-parte Applicant is fully aware of the provisions of section 19 (5) of the Act as when submitting the documents for indexing the general indexing form clearly stated the Board may deny registration for legitimate reasons.

28. It was reiterated that a review of the Exparte applicant’s documents clearly showed that he failed to meet the minimum entry requirements and he was ineligible to sit for Board examinations and the Respondent has a statutory mandate and mission to protect the health of all Kenyans by ensuring compliance with standards in training in medical laboratory sciences and the Respondent is not permitted by law to compromise this standard by varying the set criteria for registration for a particular candidate.

29. The Respondents’ case was that to allow the Ex-parte Applicant to continue to sit for Board examination inspite of him having met the minimum entry requirements the Respondent would not only be abdicating its statutory mandate of regulation of standards of training of technicians and technologists but would also be exposing the health of Kenyan public to a great risk.

30. It was disclosed that the 1st Respondent regularly audits all training institutions to ensure that they are adhering to all components to ensure quality studies in Medical Laboratory Sciences and recently, the 1st Respondent was compelled to issue a closure notice to Maseno University which institution upon inspection was found to have contravened, interalia, requirement to admit students that meet minimum entry requirements. Therefore it was contended that to allow the exparte Applicant to sit for the Board examination inspite of having not met the minimum entry requirements would be to open a Pandora’s box and grant an avenue for all students who did not similarly meet minimum entry requirements to apply for registration therefore seriously lowering entry qualification for Medical Laboratory Science studies and rendering the regulatory mandate of the 1st Respondent irrelevant.

31. The Respondents averred that the role of the 1st Respondent is also recognized in the scheme of service for Medical Laboratory personnel approved by the Public Service Commission and the 1st Respondent would be abdicating its statutory mandate of regulation were it is to dilute the entry requirements and allow unqualified candidates to sit for Board examination and thereafter apply for registration.

32. The Respondent was of the view that the application as drawn and filed is bad in law and fundamentally incompetent as the 1st Respondent is a body corporate and no cause of action lies against the 2nd Respondent in his individual capacity.

33. In their submissions, the Respondents, while reiterating the foregoing contended relied on Republic vs. Judicial Service Commission ExpartePareno Misc Civil Application No.1025 of 2003, where the Court expounded the scope of judicial review remedies. In their view, the decision not to allow the ex parte applicant to sit for the Board examinations for registration as a duly registered medical laboratory technician was made in accordance with the law, without any contravention with any of the required procedures and the Ex parte Applicant’s Application seeks to merely circumvent the law and seek to retain registration unlawfully without meeting the requisite qualifications.

34. It was submitted that the applicant acknowledged that he was informed by the First Respondent that he did not meet the minimum qualifications and as such could not sit for the exam scheduled for 22nd of May 2017 and that he admitted that he was summoned by the officers of the Respondent to explain how he obtained his degree Certificate registration despite having failed to meet the minimum qualifications to enroll to study for the Bachelor’s Degree in Bachelor of Science Medical Laboratory Sciences.

35. It was the Respondent’s position the exparte applicant did not meet the Minimum requirements for admission to pursue degree programme in Bachelor of Science (Medical Laboratory Sciences) hence was accorded fair treatment having been given an opportunity to heard and make his case which he failed. It was their case that the Ex- parte Applicant has been treated fairly and the decision not to allow him to sit for the Board examination was made without any iota of prejudice against the ex parte Applicant he was accorded a fair hearing and the decision to decline and/or refuse to allow him to sit for the said examination was made after due regard to the required procedure and the law. The Respondents submitted that these proceedings are founded on the merits of the failure to allow the Ex parte Applicant sit for Board examinations on ground of ineligibility while the grounds raised in the Notice of Motion Application, including paragraphs 1 to 15 the supporting Affidavit are founded on the sufficiency or lack of, of the decision not to allow the exparte applicant to sit for the Board examination. It was therefore submitted that this application goes against the laid out principles on the purpose of Judicial Review, yet this Court deals with legality of decisions of bodies and not the merits of the decision itself. In the Respondents’ view, the sufficiency or lack of it of the evidence to show that he bridged his examination and properly and was allowed to undertake the Bachelors Degree by Maseno University at a very high cost and had taken a loan to study which are not issues to be dealt with by this Court .

36. The Respondents’ case was that the process for registration of a medical laboratory technologist is regulated by the Kenya Medical laboratory Technicians and Technologists Board Act, CAP 253A Laws of Kenya. In particular the Act under section 17 mandates the Registrar to remove from the register, inter alia any names erroneously or fraudulently made. The Respondent made the decision not to allow the ex parte applicant sit for the board examination as he did not have the required qualifications and as such the Ex parte applicant’s degree certificate from Maseno University was obtained fraudulently. This was based on the fact that the Health of millions of Kenyans is at the core of any certificate and / or license that is issued to medical laboratory technician and /or technologist to practice as such and it is important that the said certificates be issued to persons that have met the basic qualifications and successfully passed their examination as is required.

37. In support of the position that the Ex parte Applicant seeks that this Honorable Court embarks upon an examination and appraisal of all evidence with a view to show his innocence, the Respondents relied on Meixner & Another vs. Attorney General [2005] 2KLR 189and averred that in order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. However in this case no evidence has been presented before this Honourable Court to demonstrate that the Respondents herein acted illegally, irrationally or with at any procedural impropriety and that all the allegations contained in the Application for Judicial Review are unfounded and without any proof. In that regard the Respondents relied on Republic vs. Chief Magistrate's Court at Kibera Law Courts Nairobi & 2 others Ex-parte QianGuo Jun & 2 others [2013] eKLR.opined that :

38. According to the Respondents, the application as drawn and filed is bad in law and fundamentally incompetent as the 1st Respondent is a body corporate and no cause of action lies against the 2nd Respondent in his individual capacity. Indeed, section 12 of the Medical Laboratory Technicians and Technologists act specifically insulates Board Members from liability for undertaking their official dutieshatore submitted t.

39. It was therefore submitted that the application has not met the prerequisite requirements for the grant of the orders sought as the matters raised by the Applicant in the pleadings filed herein .We pray that the Ex parte Applicants Application has no merit and the same ought to be dismissed with costs to the Respondents.

Determinations

40. I have considered the application, the affidavits, the submissions and authorities cited herein.

41. The parameters of judicial review were set out by the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 as follows:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision...Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done...Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

42. In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 was held:

“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”

43. In Republic vs. Kenya Revenue Authority Ex parteYaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England4th Edition Vol (1)(1) Para 60.

44. The broad grounds on which the Court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In that case the Court cited with approval Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 andAn Application by Bukoba Gymkhana Club [1963] EA 478 at479and held:

“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

45. It is therefore clear that, where a decision is arrived at based on complete lack of evidence and out of the blue as it were, unless the same is based on the application of the evidential doctrine of judicial notice, if such a finding is so outrageous, it may amount to gross unreasonableness as to justify the grant of judicial review orders. However mere allegation of sufficiency of evidence will not suffice. Similarly, the mere fact that the evidence favourable to a party was not considered will not be a ground for quashing a decision if there was material on record which would have warranted a finding to the contrary.

46. In this case the applicant’s case is that he was not given reasons why the Respondent made a decision. However from his own affidavit, it is clear that his case was based on the fact that the Respondent and/or its agents or employees denied him the opportunity to sit for the Board issued exams on the grounds that he was not qualified to sit for the same. It is therefore clear that the applicant’s contention that he was not aware of the reasons which informed the Respondents’ decision to bar him from sitting the exams cannot be correct. He was not only aware that the Respondent had made a decision, but was even aware of the reasons that led to that decision. Whereas that decision may be wrong, as was held in Republic vs. The Retirement Benefits Appeals Tribunal Ex Parte Augustine Juma & 8 others [2013] eKLR,that:

“...it must be remembered that the function of this court sitting in judicial review is not concerned with the merits of the decision…I will add that judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. Once a body is vested with the power to do so something under the law, then there is room for it to make that decision, wrongly as it is rightly. That is why there is the appellate procedure to test and examine the substance of the decision itself. It follows, therefore, that the correctness or ‘wrongness’ or error in interpretation or application of the law is not appropriately tested in judicial review forum. In simple terms, a ‘wrong’ decision done within the law and in adherence to the correct procedure can seldom be said to be ultra vires as to attract remedy for the prerogative writs. The Court of Appeal in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others, CA Civil Appeal 145 of 2011 [2012] eKLR expressed this view as follows; Moreover, where the proceedings are regular upon their face and the inferior tribunal has jurisdiction in the original narrow sense (that is, to say, it has power to adjudicate upon the dispute) and does not commit any of the errors which go to jurisdiction in the wider sense, the quashing order (certiorari) will not be ordinarily granted on the ground that its decision is considered to be wrong either because it misconceived a point of law or misconstrued a statute (except a misconstruction of a statute relating to its own jurisdiction) or that its decision is wrong in matters of fact or that it misdirects itself in some matter...”

47. The other issue that was raised by the Respondents was that the Respondents’ decision was unreasonable as it was based on misapprehension of the facts. As was held by Warsame, J (as he then was) in Re: Kisumu Muslim Association Kisumu HCMISC. Application No. 280 of 2003, where an officer is exercising statutory power he must direct himself properly in law and procedure and must consider all matters which are relevant and avoid extraneous matters. The learned Judge further held that the High Court has powers to keep the administrative excess on check and supervise public bodies through the control and restrain abuse of powers. Concerning irrelevant considerations, where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful. Unlawful behaviour might be constituted by (i) an outright refusal to consider the relevant matter; (ii) a misdirection on a point of law; (iii) taking into account some wholly irrelevant or extraneous consideration; and (iv) wholly omitting to take into account a relevant consideration. See Padfield vs. Minister of Agriculture and Fisheries [1968] HL.

48. In Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [1948] 1 KB 223 in which Lord Greene stated (at page 229)that:

“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ inShort vs. Poole Corporation[1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

49. In this case the applicant’s case was that he was never accorded an opportunity to be heard or to defend his case and the Board’s decision was made without his knowledge. In support of his case the applicant relied on the Provisions of the Second Schedule of the Medical Laboratory Technicians and Technologists (Curriculum and Course Content) Regulations, 2006relating to Diploma Courses under the Act, and contended that he satisfied all the requirements save for one, a C (plain) in Mathematics or Physics. Contrary to the averments in the Replying Affidavit, it was submitted that the Ex-Parte Applicant attained a Mean Grade of C+ (plus), a C+ (plus) in Biology and Kiswahili and a C (Plain) in Chemistry and English while the requirement in the Act was for a C (plain) grade in the above subjects.

50. The applicant also referred to the Admission Requirements in paragraph 4. 4 of the Regulations and Syllabus which indicates as follows:

“Students with ordinary diploma certificate holders from Maseno University or other Universities or colleges recognized by Maseno University senate provided they do all the prerequisite courses relevant to the degree program and get relevant credit transfers as advised and approved by the Faculty Board and senate.”

51. On their part, the Respondents contended that the entry requirements for a candidate to pursue Bachelor of Science Degree; (Medical Laboratory Science) are clearly set out in the model curriculum formulated by the Respondent at clause 5 which specifies as follows;

5. Entry Requirements

5. 1 A candidate pursuing B. SC. (Medical Laboratory Science) must meet the minimum university –entry requirements of C+ (Plus).

5. 2 In addition, the candidate must have acquired the following grades in one sitting in the subjects indicated below:

Alternative A: Biology, C+, Chemistry, C+ and Mathematics or Physics C+.

Alternative B: Biological Sciences, C+ and Physical Sciences C+.

52. It was deposed that Maseno University has incorporated this entry requirements in its programme which at paragraph 4 specifies as follows;

4. Admission Requirements

4. (4. 1) To be admitted into the Medical Laboratory Science with IT degree program at Maseno University, the student must satisfy the minimum University entry requirements of C+ in Kenya Certificate of Secondary Education (KCSE) with at least C+ in Biology, C+ in Chemistry, C+ in Mathematics or Physics and C+ in English.

53. It was therefore the Respondents’ case that the exparte applicant did not meet the Minimum requirements for admission to pursue degree programme in Bachelor of Science (Medical Laboratory Sciences) for the following reasons;

1) He failed to meet the minimum admission grade in the mandatory core subjects. He attained a grade D in mathematics, instead of the required grade C+ (plus), grade D in Physics instead of the required grade C+, grade D+ in Biology instead of the required grade C+ (plus), and grade C (plain) in Chemistry instead of the required C+ (PLUS).

2) He states to have done a bridging course in Mathematics subsequently attaining a B-(Minus). The programme of the Board clearly specifies that the qualifications of a candidate must be attained in one sitting and there is no exemption for bridging. Further, though the requirement is mandatory that the qualifications must be attained in one sitting, the Ex-parte applicant still fails to meet the minimum entry requirements in the core subjects of Biology, Physics and Chemistry.

54. In this case however, the Respondents have confirmed that in consultation with the 1st Respondent and pursuant to the 1st Respondent’s Statutory mandate, Maseno University developed a degree programme in Bachelor of Science Medical Laboratory Science (with information technology) modelled and aligned with the approved programme of the said degree programme developed by the 1st Respondent. It is therefore clear that the Respondents were satisfied that the curriculum developed by the said University was in accordance with their requirements. If the University developed a half-baked curriculum with the Respondents’ approval, can the Respondent’s now purport to disown a curriculum which was developed by their approval? I don’t think so.

55. By approving the course content developed by Maseno University the Respondents inculcated into those undertaking the said course at Maseno University an expectation that they would be considered as duly qualified. They cannot therefore fall back on their own qualifications in order to disown the degree certificates issued by a University pursuant to their approved curriculum. To do so is a clear violation of the students’ legitimate expectations.

56. As was held in Republic vs. Kenya Revenue Authority ex parte Shake Distributors Limited HCMISC. Civil Application No. 359 of 2012:

“…the cornerstone of legitimate expectation is a promise made to a party by a public body that it will act or not act in a particular manner.”

57. The High Court of Australia in Haoucher vs. Minister for Immigration and Ethnic Affairs Reference [1990] 169 CLR 648 while dealing with the doctrine stated that:

“…. in all the circumstances, the promise to follow a certain procedure having been made, or the practice of consultation having been established, fairness may require that the public authority should be held to its promise or previous practice. It adds nothing to say that there was a legitimate expectation, engendered by the promise or practice, that a certain procedure would be followed”.

58. In Attorney General of Hong Kong vs. Ng Yuen Shiu [1983] 2 All ER 346the court stated that:

“the expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.’ and ‘The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty”.

59. In KerocheIndustriesLimited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240 it was held that:

“…….legitimate expectation is based not only on ensuring that legitimate expectations by the parties are not thwarted, but on a higher public interest beneficial to all including the respondents, which is, the value or the need of holding authorities to promises and practices they have made and acted on and by so doing upholding responsible public administration. This in turn enables people affected to plan their lives with a sense of certainty, trust, reasonableness and reasonable expectation. An abrupt change as was intended in this case, targeted at a particular company or industry is certainly abuse of power. Stated simply legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way…Public authorities must be held to their practices and promises by the courts and the only exception is where a public authority has a sufficient overriding interest to justify a departure from what has been previously promised…In order to ascertain whether or not the respondents decision and the intended action is an abuse of power the court has taken a fairly broad view of the major factors such as the abruptness, arbitrariness, oppressiveness and the quantumof the amount of tax imposed retrospectively and its potential to irretrievably ruin the applicant. All these are traits of abuse of power. Thus I hold that the frustration of the applicants’ legitimate expectation based on the application of tariff amounts to abuse of power.”

60. Laws,LJ in R (Bhatt Murphy) vs.Independent Assessor [2008] EWCA Civ 755 in paragraph 50 of the Judgement expressed himself as follows:

“A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”

61. According to De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell page 609 to the effect that:

“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”

62. In R (Bibi) vs. Newham London Borough Council 2001 EWCA CIV 607, it was held:

“Unless there are reasons recognised by law for not giving effect to those legitimate expectations then effect should be given to them. In circumstances as the present where the conduct of the Authority has given rise to a legitimate expectation then fairness requires that, if the Authority decides not to give effect to that expectation, the Authority articulates its reasons so that their propriety may be tested by the court if that is what the disappointed person requires.”

63. In this case it is clear that the respondents’ conduct gave rise to a legitimate expectation that the students who were admitted to undertake Bachelor of Science Degree (Medical Laboratory Sciences) at Maseno University would be deemed to have been properly qualified for the same. In would be unfair to them for the Respondents to make an about-turn after they have completed their courses when the Respondent remained quiet when the said courses were being undertaken.

64. In the premises I do find merit in the applicant’s case.

Order

65. In the premises I hereby issue the following orders:

a. An order of certiorari removing into this court for the purposes of being quashed the decision of the Respondents to deny the Applicant the requisite permission to sit for the November, 2017 examinations administered by the 1st Respondent.

b. An order of prohibition preventing the Respondents from barring the Applicant from sitting for the aforementioned November, 2017 examinations.

c. An order of mandamus to compel the Respondents to allow the Applicant to sit for the November, 2017 examinations.

66. The costs of this application are awarded to the Applicant to be borne by the 1st Respondent.

67. Orders accordingly.

Dated at Nairobi this 6th day of December, 2017

G V ODUNGA

JUDGE

Delivered In the presence of:

Miss Kimiti for the applicant

Mr Ocheng for Mr Githinji for Mwangi for the Respondent

CA Ooko