[2023] KEHC 26493 (KLR)

Republic v Mount Kenya University; Isaac (Exparte) (Miscellaneous Application E048 of 2023) [2023] KEHC 26493 (KLR) (Judicial Review) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26493 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E048 of 2023

J Ngaah, J

December 8, 2023

Between

Republic

Applicant

and

Mount Kenya University

Respondent

and

Muturi David Isaac

Exparte

Judgment

1. The applicant’s application is a motion dated 12 May 2023 expressed to be brought under section 8 of the Law Reform Act, cap. 26; sections 1A, 1B and 3A of the Civil Procedure Act, cap. 21and Order 53 Rule 1 of the Civil Procedure Rules. The prayers have been framed thus:“(i)That, an order of mandamus be issued and directed to the Respondent ordering the said Respondent to immediately admit the Applicant for a Bachelor of Laws degree programme during the current academic period that commenced on 5th May, 2023. (ii)That, an order of certiorari to remove to the High Court for the purposes of quashing: -(a)The unlawful, illegal, exparte and oppressive decision by the RespondentM/s Mount Kenya University refusing or revoking the exparte applicant’s admission to the bachelor of laws degree programme from the current academic season.(iii)That, an order of prohibition to prohibit the Respondent from disallowing the Exparte Applicant from attending the classes for the Bachelor of Laws degree in the current academic year.(iv)That, the orders of certiorari, prohibition and mandamus so granted to the Exparte Applicant be allowed to operate as a stay of the withdrawal of a letter of offer of admission dated 5th April, 2023 admitting the Exparte Applicant to the Bachelor of Laws Degree programme.”

2. The application is based on a statutory statement dated 5 may 2023 and an affidavit sworn by the applicant on even date. The affidavit verifies the facts relied upon.

3. The applicant swears that he is a court clerk with the judiciary and that he was employed in 2016. At the time of filing this application, he was attached to the Employment and Labour Relations Court at Milimani Commercial Courts.

4. On or about 6 March 2023, he applied to join Mount Kenya University to pursue a bachelor of laws degree. He was offered admission and on or about 27 April 2023, he accepted the offer. When he reported to the university on 29 April 2023 apparently to commence his classes, he was turned away. As a result, he says that he is exposed to loss of money, amongst other losses, because he had paid the respondent Kshs. 30,000/= as admission fees.

5. Ronald Maathai swore a replying affidavit opposing the applicant’s application. He has described himself as the registrar of the respondent.

6. Maathai has sworn that admission to study law in Kenya is subject to the Legal Education Act, No. 27 of 2012. In the third schedule to the Act, there are the Legal Education (Accreditation and Quality Assurance) Regulations which spell out the minimum qualifications for admission to a bachelor of laws degree program.

7. In particular, part II of the third schedule sets the enrolment requirements as a mean grade C+ in the Kenya Certificate of Secondary Education Examination or its equivalent and a minimum of grade B plain in English or Kiswahili, amongst other educational requirements.

8. The respondent published the entry requirements on its website for the benefit of those prospective students who wished to join the law program at the institution.

9. The applicant submitted his application for admission. The application was accompanied by several certificates which included a Kenya Certificate of Secondary Education. The certificate showed that the applicant got a mean grade of C plain, C plain in English and B plain in Kiswahili.

10. These grades did not meet the minimum requirements for the applicant to study a bachelor of laws degree. However, he was issued with a letter of admission on 6 April 2023 in error. When the error was discovered, the applicant was informed accordingly and the letter of admission was withdrawn immediately.

11. It is the respondent’s case that admitting the applicant to study law contrary to the legal provisions setting the minimum requirements is tantamount to sanctioning an illegality.

12. I have considered the parties’ submissions on the positions they have adopted in this application.

13. Section 46 (1) of the Legal Education Act has empowered the Cabinet Secretary, upon recommendation of the Council of Legal Education and with the prior approval of the National Assembly, to make regulations for the purposes of giving effect to the provisions of the Act. These regulations are intended to, inter alia, develop a framework for the implementation of a program for continuing legal education aiming at the professional development and maintenance of standards in all cadres of the legal profession. (See Section 46(1) (a)).

14. In exercise of the powers conferred by section 46(1) of the Legal Education Act, 2012, the Council of Legal Education, with the approval of the Cabinet Secretary, has made the Regulations which are cited as The Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

15. Under regulation 10(1) of these regulations, the quality standards to be satisfied by a legal education provider, such as the respondent, are set out in the Third Schedule to the regulations. As far as admission to a law degree program is concerned, paragraph 5 of the schedule sets out the minimum requirements. It reads as follows:5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall be —(a)a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;(b)at least three Principal Passes in the Kenya Advanced Certificate of Education examination;(c)a degree from a recognised university; or(d)a Credit Pass in a diploma in law examination from an accredited institution.

16. Central to the applicant’s application is paragraph 5(1) (a) which is clear that an applicant to a law undergraduate program must have obtained a minimum of grade C+ in the Kenya Certificate of Secondary Education examination or its equivalent.

17. The applicant obtained a mean grade of C plain in the Kenya Certificate of Secondary Education examination. He, therefore, fell short of the minimum requirements for admission to study a bachelor of laws degree in any institution in Kenya, let alone the respondent institution.

18. In his application for leave to file the substantive motion the applicant suppressed this material fact.

19. It has been held that in application for leave for judicial review, uberrimae fides is required and leave will not be granted, or may be later set aside, if there has been deliberate misrepresentation or concealment of material facts in the applicant’s affidavit or affidavits. Whether the applicant was qualified to study law is, no doubt, a material fact.

20. In R versus Kensington Income Tax Commissioner, ex parte Princess Edmond De Polignac (1917) 1KB 495, Viscount LJ addressed this point and stated as follows:“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."

21. It follows that the applicant’s application would fall on the sole ground of material nondisclosure.

22. But even if the applicant had disclosed that he did not meet the statutory requirements to undertake bachelor of laws degree, his application would still not pass because none of the reliefs of judicial review can issue to perpetuate what in effect is an illegality.

23. The Court of Appeal discussed these reliefs of prohibition, mandamus and certiorari and when they can issue in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR.

24. As far as the order of prohibition is concerned the court, citing Halsbury’s Law Of England, 4thEdition, Vol.1 at pg.37 paragraph 128, held that:“It 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 – See Halsbury’s Law Of England, 4th Edition, Vol.1 at pg.37 paragraph 128. ”

25. The court also noted:“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 ...The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.” (Emphasis added).

26. This relief would not be available to the applicant for the reason that the decision revoking his admission to the respondent institution has already been made. As the Court of Appeal has noted, prohibition cannot quash a decision that has been made. In any event, there is no evidence that in making the decision the respondent acted in excess or lack of jurisdiction or that it violated rules of natural justice.

27. On the order of mandamus, the court had this to say:What is the scope and efficacy of an Order Of Mandamus? Once again we turn to Halsbury’s Law Of England, 4th Edition Volume 1 at page 111 From Paragraph 89. That learned treatise says:-“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 and 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.”

28. It cannot be urged that the respondent has a duty to admit students who are otherwise not qualified for a particular degree course. Neither can the applicant argue that he has a specific legal right for admission to the university and that the only remedy available to him is an order compelling the respondent to admit him when it is obvious that he is not qualified to be admitted to the particular degree program he applied for.

29. As it were, an order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same. One cannot be said to have failed to perform a public duty when all he is being alleged to have failed to do is breaking the law. It is not a public duty to break the law.

30. And on the order of certiorari, the court said:“Only an order of Certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

31. Again, I need repeat that in view of the applicant’s application’s inadequacies, there is no ground of judicial review upon which he can successfully mount a case for grant of the relief of certiorari or any of the other judicial review reliefs. In other words, in revoking the applicant’s admission, there is no evidence the respondent’s decision was tainted by illegality, irrationality or procedural impropriety.

32. In the ultimate, I am inclined to conclude that the applicant’s application is deficient of any merits. It is hereby dismissed with costs. It is so ordered.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 8 DECEMBER 2023NGAAH JAIRUSJUDGE