[2022] KEHC 12434 (KLR)

Republic v Wavinya Ndeti & 4 others; Gideon Ngewa & another (Exparte); Wiper Democratic Movement Kenya (Interested Party) (Judicial Review 3 of 2022) [2022] KEHC 12434 (KLR) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12434 (KLR)

Republic of Kenya

In the High Court at Machakos

Judicial Review 3 of 2022

GV Odunga, J

July 18, 2022

Between

Republic

Applicant

and

Wavinya Ndeti

1st Respondent

Independent Electoral Boundaries Commission

2nd Respondent

Commission for University Education

3rd Respondent

Director of Public Prosecution

4th Respondent

Kenya National Qualifications Authority

5th Respondent

and

Gideon Ngewa Kenya

Exparte

Kisilu Mutisya

Exparte

and

Wiper Democratic Movement Kenya

Interested Party

Judgment

1. The prayers the subject of this judgment are contained in the notice of motion dated June 28, 2022 in which the ex parte applicants, Gideon Ngewa Kenya and Kisilu Mutisya, seek the following orders:(a)That an order of certiorari be and is hereby issued quashing the decision of the 2nd respondent’s dispute resolution committee dated June 16, 2022 and read in open court on June 19, 2022 in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti clearing the 1st respondent to run for the position of Governor, Machakos County in the general elections scheduled for August 9, 2022. (b)That an order of mandamus be and is hereby issued compelling the 1st respondent to verify her bachelors and master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1, a link used for verification of degrees issued by any institution in the United Kingdom.(c)That an order of mandamus be and is hereby issued compelling the 2nd respondent whether by itself, servants or agents to strike out the 1st respondent’s name from the list of cleared gubernatorial candidates to vie for Governor, Machakos County in the general elections scheduled for August 9, 2022. (d)That an order of prohibition be and is hereby issued restraining the 3rd respondent, Commission of the University Education, from recognizing the academic qualifications of the 1st respondent until investigations on the 1st respondent’s academic qualifications is conducted and a determination on their authenticity made.(e)That an order of mandamus be and is hereby issued compelling the 3rd respondent, Commission of the University Education, to revoke the recognition of the 1st respondent’s bachelor’s and master’s degree obtained in 1995 and 1992 respectively as well as the 1st respondent’s graduate diploma of 1990. (f)That an order of mandamus be and is hereby issued compelling the 4th respondent, the Director of Public Prosecutions to order investigations and/or determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti.(g)That an order of mandamus be and is hereby issued compelling the 5th respondent’s Department of Recognition, Equation and Verification to verify the academic credentials of the 1st respondent.(h)That costs of this application be provided for.

Applicants’ Case 2. According to the applicants, the 1st respondent was cleared by the 2nd respondent to vie for the position of Governor, Machakos County Government in the general elections scheduled for August 9, 2022. The applicants however challenge the nomination and registration of the 1st respondent herein, Wavinya Ndeti, for the position of Governor in Machakos County for the August 9, 2022 general elections on the following grounds:a.In April 2022, Wavinya Ndeti, was given a direct ticket by the interested party to vie for the position of Governor in Machakos County and her name was subsequently submitted to IEBC on May 16, 2022. b.Thereafter, on June 4, 2022, the Machakos County Returning Officer, Nelly Illongo cleared Wavinya Ndeti to run as a gubernatorial candidate for the Wiper Democratic Movement Kenya in the August 9, 2022 elections.c.Despite the 1st respondent’s clearance, Wavinya Ndeti is not a holder of a degree recognized in Kenya as per the provisions of section 22 of the Elections Act, 2011 because on August 16, 1988, Wavinya Ndeti acquired a Diploma in Computer System Designs from the Association of Computer professionals.d.On November 9, 1989, Wavinya Ndeti acquired an Advanced Diploma in Computer Studies from the Association of Computer professionals as Wavinya Ndeti which is a proper pathway to follow.e.Surprisingly, between September 1989 to July 1990, Wavinya Ndeti studied as a full-time student at South Bank University now London South Bank University and was awarded a Graduate Diploma on July 12, 1990 without having completed a first degree yet a Graduate Diploma is a short course taken after completion of a first Degree.f.In a sudden turn of events, on November 6, 1992, Wavinya Ndeti purportedly obtained a Master of Science Degree (MSc) in Business systems analysis and design by the City University, London using the 1990 diploma in a Computer Science.g.On July 18, 1995, she claims to have obtained a bachelor’s degree (BSc) in Computing Studies from South Bank University London as Wavinya Oduwole. According to the applicants, undertaking a degree after being awarded a master’s degree in a closely related subject is impracticable.h.Later, on January 25, 1996 and July 26, 1996, the 1st respondent claims to have obtained two master’s degree in Marketing and Strategic Information Designs from Heriot-Watt University as Petti Wavinya Oduwole.

3. It was averred that from the above and taking into account the UK educational system, the 1st respondent obtained a master’s degree in 1992 and after three years obtained a bachelor’s degree in 1995 without a first degree. Further, she also obtained two Master’s Degree within 6 months of each other and after 6 months of being awarded a bachelor’s degree.

4. It was the applicants’ position that on a keen look at the 1st respondent’s academic certificates, it is hard to ascertain who Wavinya Ndeti, Wavinya Oduwole and Petti Wavinya Oduwole are because in an affidavit of names submitted to the 2nd respondent for clearance, she fails to confirm that Petti Wavinya Oduwole in her certificates is also her name.

5. It was averred that vide the letters dated May 25, 2022, the 3rd respondent confirmed that the City University London, UK and South Bank University London, UK where the 1st respondent claims to have acquired her qualifications are recognized in Kenya. However, the Commission for University Education unequivocally and expressly notified the 1st respondent that it reserved the right to revoke recognition of any award in the event it establishes that any reason makes the award in question ineligible.

6. Based on legal advice, the applicants averred that the 1st respondent has not met the general requirements for recognition and equation of qualifications of a bachelor’s degree, post graduate diploma and master’s degree.

7. They disclosed that through their previous advocates on record, they wrote to the Commission for University Education on June 15, 2022 to investigate the same and recall the recognition letters dated May 25, 2022 but to date, the 3rd respondent has failed, refused and/or declined to respond to the letter.

8. It was their position that the functions of the 3rd respondent as outlined in section 5 (1) of the Universities Act No 42 of 2012 include to promote, advance, publicize and set standards relevant in the quality of university education, 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 among other functions.

9. The applicants averred that based on legal advice, since the 3rd respondent has mandate to recognize and equate degrees, it can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation. Therefore, the 3rd respondent upon receiving the letter dated June 15, 2022 should have recalled the academic certificates of Wavinya Ndeti and probed the issue to ensure that the said certificates meet or are equivalent to the general requirement for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications. Based on the same advice, they averred that pursuant to section 8(m) & (n) of the Kenya National Qualifications Framework Act No 22 of 2022, the 5th respondent has a task of conducting research on equalization of qualifications; and establish standards for harmonization and recognition of national and foreign qualifications. As a result, the 5th respondent through the Department of Recognition, Equation and Verification (REV), KNQA evaluates qualifications so as to verify the academic credentials. They contended, based on the foregoing, that the 3rd respondent acted ultra vires and abused its power by recognizing the Masters and Degree Certificates for Wavinya Ndeti without establishing that the said certificates meet the set standards relevant in the quality of university education. It was their case that the Commission has also failed to equate the degrees and diplomas awarded by foreign universities and institutions in accordance with the standards and guidelines set by the commission from time to time that one cannot attain a master’s degree in 1992 and proceed to undertake a bachelor’s degree in 1995.

10. They averred that they challenged the 2nd respondent’s decision in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti stating that the IEBC Dispute Resolution Committee established under section 74 of the Elections Act, 2011 to settle election disputes relating to nomination and registration of candidates lacks jurisdiction to determine the authenticity of the academic qualifications of Wavinya Ndeti which complaint was on June 19, 2022, dismissed on the grounds that the tribunal lacked jurisdiction to entertain the complaint because the allegations raised disclose suspicion as to the authenticity of the academic qualifications of Wavinya Ndeti.

11. Based on legal advice, the applicants averred that though the 2nd respondent is an independent commission established under article 88 of theConstitution, when it comes to verification of the validity and authenticity of the academic qualifications in registration and nomination of candidates, the 2nd respondent claims it lacks jurisdiction to do so yet the complaint relates to academic certificates furnished to clear the 1st respondent in her nomination.

12. It was their case that no reasonable authority properly directing itself to the academic qualifications submitted could have made a decision to clear the 1st respondent to run for the position of Governor, Machakos County in the August 9, 2022 general elections. They invited the court to consider the undisputed fact that the 3rd respondent failed to recognize and equate the academic qualifications of the 1st respondent before issuing her with the letters recognizing her master’s and degree certificates which is a classic case of unreasonable exercise of power.

13. It was their view that the manner in which the 2nd and 3rd respondents have made decisions made them to question the integrity of the independent Commissions which have cleared a candidate who has problematic and questionable academic qualifications.

14. They were therefore apprehensive that unless this court intervenes the 1st respondent will proceed to vie yet the validity of her academic qualifications are in question and this will be against the rule of law in Kenya.

15. It was submitted on behalf of the applicants that this court ought to adopt a merit-based review in judicial review proceedings because judicial review is not limited to dry or formalistic examination of the process while strenuously and artificially avoiding merit. As such they urged the court to interrogate the merits too because the path only leads to intolerable superficiality. In this regard they relied on the decision of the Court of Appeal in Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR).

16. Regarding the feasibility of the prayers for an order of mandamus against the respondents to verify the academic credentials of Wavinya Ndeti, strike out the 1st respondents name from the list of cleared gubernatorial candidates, revoke the recognition of Wavinya Ndeti’s bachelor’s and master’s degree, order investigations as to the authenticity of Wavinya’s academic certificates and compel the Kenya National Qualifications Authority to verify the academic credentials, they submitted that an order of mandamus is a prerogative order meant to compel performance of a duty and relied on Republic v The Attorney General & anotherex parteJames Alfred Koroso [2013] eKLR, in which this court cited with approval the case of Shah v Attorney General (No 3) Kampala HCMC No 31 of 1969 [1970] EA 543.

17. The applicants also submitted that the circumstances under which judicial review order of mandamus are issued were discussed by the Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the Court cited with approval, Halsbury’s Law of England, 4th edition Vol 7 p 111 para 89.

18. It was appreciated that the 1st respondent complied with prayer (b) when on June 30, 2022, she provided consent forms which parties used to request for verification of her bachelor’s and master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1 in presence of the Deputy Registrar who was expected to file a report before this court and further indicate the results of the verification process. According to the applicants, the United Kingdom has a link for higher education system’s official degree verification service known as Higher Education Degree Data check (HEDD) which was used to commence the verification process.

19. Nevertheless, it was noted that the interested party questioned the said domain which the 1st respondent willingly agreed to continue with the verification and the court was urged to compel the 3rd and 4th respondents to carry out the verification process.

20. Regarding the contention by the interested party that a degree is no longer a requirement for qualification to contest in elections as a Governor in light of the High Court decision declaring section 22 (1) (b)(ii) of the Elections Act unconstitutional in County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)) [2021] KEHC 304 (KLR) (Constitutional and Human Rights) (15 October 2021) (Judgment), the applicants’ position was that the said case was in reference to the specific position of a member of the County Assembly and not the Governor position which is the issue herein. They asserted that a candidate for the position of a Governor require a degree certificate as he/she is the Chief Executive Officer of the County in accordance with article 179 (4) of theConstitution and as such will be tackled to direct the management of massive resources.

21. In respect to prayer (e) for an order of mandamus and prohibition against the Commission for University Education, it was submitted that the functions of the 3rd respondent as outlined in section 5(1) of the Universities Act No 42 of 2012 include to promote, advance, publicize and set standards relevant in the quality of university education, 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 among other functions. In addition, they relied on regulation 47 of the Election (General) Regulations 2012 and submitted that the 1st respondent’s academic certificates do not meet the general requirements for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications.

22. According to the applicants, though the 1st respondent claims to have obtained a master’s degree in Business Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree in Computer Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer Science in 1990 without undertaking a first degree. In their submissions, there is a close relationship between Computer Science and Business Systems Analysis and Design and as such it is illogical for a person who holds a master’s degree to undertake a bachelor’s degree in a similar field. In this regard reference was made to the report from Chelgate Consulting Firm in London which has detailed the inconsistencies in the 1st respondent’s academic certificates together with different names appearing on her certificates, which in their views made the ex parte applicants question the authenticity of the 1st respondent’s academic qualification. In addition, it was contended that the said report indicates that the minimum entry requirement for one to proceed with a master’s degree is a good second-class honours degree from a UK University, a recognized equivalent from an accredited international institution or an equivalent professional qualification. It was therefore their position that the 1st respondent has not met the minimum entry requirements and thus there is need to question her academic qualifications.

23. In their opinion, since the 3rd respondent has the mandate to recognize and equate degrees, it can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation. To them, it would have been reasonable for the 3rd respondent upon receiving the ex-parte applicants letter dated June 15, 2022 attaching the report from London, to recall the academic certificates of Wavinya Ndeti and probe the issue to ensure that the said certificates meet or are equivalent to the general requirement for recognition and equation of qualifications established. Nevertheless, despite the applicants writing to the 3rd respondent, no response has been received to date. As such, the ex-parte applicants invited the court to consider the undisputed fact that the 3rd respondent failed to recognize and equate the academic qualifications of the 1st respondent before issuing her with the letters recognizing her master’s and degree certificates which is a classic case of unreasonable exercise of power.

24. The applicants contended that the authenticity of the 1st respondents certificate is a factual issue which ought to be determined upon hearing the evidence of the applicants. Consequently, the 3rd respondent should be compelled to revoke the recognition of Wavinya Ndeti’s certificates and the Commission should be prohibited from recognizing the said degree until proper investigations are carried out.

25. Based on the report from Chelgate Consulting Firm in London it was contended that it is evident that a graduate diploma is generally a short course taken after completion of a first degree. In this case, there is no evidence that the 1st respondent undertook the first degree preceding the graduate diploma.

26. It was reiterated that the 3rd respondent acted ultra vires and abused its power by recognizing the masters and degree certificates for Wavinya Ndeti without establishing that the said certificates meet the set standards relevant in the quality of university education. The Commission also failed to equate the degrees and diplomas awarded by foreign universities and institutions in accordance with the standards and guidelines set out by the commission from time to time that one cannot attain a master’s degree in 1992 and proceed to undertake a bachelor’s degree in 1995.

27. Based on the foregoing, the court was urged to issue an order of mandamus restraining the 3rd respondent from recognizing the academic qualifications until the academic certificates are authenticated and as such the same will result to the commission being prohibited from recognizing the 1st respondent’s academic qualifications.

28. As regards prayer (g) seeking mandamus against the Kenya National Qualifications Authority, it was submitted that pursuant to section 8 (m) & (n) of the Kenya National Qualifications Framework Act No 22 of 2014, the 5th respondent has a task of conducting research on equalization of qualifications; and establish standards for harmonization and recognition of national and foreign qualifications. As such, the 5th respondent through the Department of Recognition, Equation and Verification (REV), KNQA evaluates qualifications so as to verify the academic credentials. In this case, the 1st respondent’s academic qualifications have not been verified by the 5th respondent which is tasked with evaluating qualifications to advise training institutions on foreign equivalent qualifications; verify academic qualifications, process applications for verifications and recognition and advise learners on registered qualifications and the Awarding body.

29. The applicants submitted that for a university degree to be recognized in Kenya, it must have been issued by an accredited institution. In addition, the 1st respondent had an obligation to get clearance from the Kenya National Qualification Authority since she is seeking an elective post in Kenya in accordance with the provisions of section 10 of the Kenya National Qualifications Framework Regulations, 2018.

30. From the foregoing, it was submitted that an order of mandamus ought to be issued compelling the 5th respondent’s department of recognition, equation and verification to verify the academic credentials of the 1st respondent and confirm whether the said certificates meet the quality standards in Kenya.

31. Regarding prayer (f) for mandamus against the Director of Public Prosecutions, it was submitted that the level of inconsistencies in the 1st respondent’s academic qualifications warrants investigations. According to the applicants, the 1st respondent did not meet the threshold to undertake the masters and bachelors degree as she lacked the requisite qualifications. In addition, it is problematic for one to undertake a master’s degree in 1992 in a closely related subject and thereafter proceed to do a Bachelors degree in a similar subject. Since it does not make any practical or legal sense, the court was invited to have a look at the report from the Consulting Firm which provides that one cannot undertake a master’s degree in 1992 with a diploma entry level.

32. In the applicants’ view, the questions regarding the authenticity of her bachelor’s degree are very substantive questions, which the Director of Public Prosecutions should probe into. They cited section 13(j) of the Election Offences Act No 37 of 2016 that makes it an election offence to knowingly or recklessly make a false statement or furnish false particulars in a document required under the Elections Act. It was also submitted that under article 10 of theConstitution this court and all institutions are bound to ensure there must be integrity of the electoral process.

33. According to the applicants, despite the fact that the 1st respondent claims that she was cleared in 2013, 2017 and 2022 to vie, it is trite to note that the question regarding the conflicting position on her degree and academic qualifications has never been raised in any proceedings before. It was thus submitted that where there is doubt and sufficient ground like in the instant case, there is a basis for any member of the public to approach this court for the orders sought.

34. As such, it was submitted that it is vital that the 4th respondent be compelled to order investigations to determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti in accordance with section 21 of the Election Offences Act.

35. It was noted that from the interested party’s replying affidavit, the 1st respondent was summoned to appear before an officer attached to the Director of Criminal Investigations but the 1st respondent failed to acknowledge the summons to attend the office as the same was not signed by herself. Therefore, it was submitted, it is necessary that the 4th respondent is compelled to order investigations of the 1st respondents academic qualifications.

36. In respect of prayers a & c seeking an order of mandamus and certiorari against the IEBC, section 22 (2) of the Elections Act, 2011 was relied upon together with regulation 47 (1) of the Elections (General) Regulations 2012 as amended by Legal Notice No 72 of 2017. In this case it was averred that the authenticity of the 1st respondents qualifications was raised with the 2nd respondent’s Dispute Resolution Committee in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti. However, the IEBC Dispute Resolution Committee established under section 74 of the Elections Act, 2011 to settle election disputes relating to nomination and registration of candidates delivered its ruling on June 19, 2022 where it held that it lacks jurisdiction to determine the authenticity of the academic qualifications of Wavinya Ndeti. It was however submitted that the 2nd respondent is an independent commission established under article 88 of theConstitution. Nevertheless, when it comes to verification of the validity and authenticity of the academic qualifications for registration and nomination of candidates, the 2nd respondent claims that it lacks jurisdiction to do so yet the complaint relates to academic certificates furnished to clear the 1st respondent in her nomination.

37. According to the applicants, pursuant to section 74 of the Elections Act 2011, the IEBC has jurisdiction to determine the authenticity of an academic degree. Being an independent Commission, it cannot pass the buck and claim that it relies on the Commission for University Education to determine the authenticity of an academic degree hence citing lack of jurisdiction is an affront to its independence.

38. The applicant’s basis for seeking an order of certiorari quashing the decision of the 2nd respondent was because no reasonable authority properly directing itself to the academic qualifications submitted and evidence adduced could have made a decision to clear the 1st respondent to run for the position of Governor, Machakos County in the August 9, 2022 General Elections.

39. In support of their submissions, the applicants relied on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3others; Ahmed Ali Muktar (Interested Party) [2019] eKLR, where the Supreme Court conferred the 2nd respondent’s Dispute Resolution Committee with huge legal responsibility to ensure all preliminary questions including the preliminary issues such as validity of the bachelor’s degree before one can move to the High Court because there are matters one cannot file or take to an election petition.

40. From the above, it was submitted that since the facts are inherently contradictory, the Dispute Resolution Committee had jurisdiction to question its validity and ascertain that the 1st respondent had valid and authentic academic qualifications in promotion of the principles and national values listed under article 10 of theConstitution inter alia: transparency, integrity and accountability.

1st Respondent’s Case 41. In opposing the application, the 1st respondent averred that that the instant application is an abuse of the court process, an afterthought and merely political witch-hunt meant to derail my campaigns and to curtail her political rights and her entitlements to protection under the law.

42. According to her, the applicants have wrongfully invoked the jurisdiction of this honourable court. Based on legal advice, she averred that whereas the applicants seek to challenge the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee, they failed to join the said Dispute Resolution Committee in this proceedings. Apart from that they introduced new issues and a new cause of action that was never before the Dispute Resolution Committee. They also introduced new parties namely; the Director of Public Prosecutions; the Kenya National Qualifications Authority; and the Wiper Democratic Movement Kenya, all of whom were not parties to the original Complaint before the Committee and no such deliberations were made by the Committee on this parties.

43. It was averred that the Application is self-defeating in that whereas on the one hand the Applicants seek to have her qualifications revoked, they on the other hand seek to have the same investigated.

44. She averred that the grant of the orders sought in the instant application will be greatly prejudicial to herself and a violation of her fundamental rights and freedoms to equal protection of the law under article 27 of theConstitution and her rights to a fair hearing; trial and fair administrative action as guaranteed under articles 47; 48 and 50 of theConstitution of Kenya, 2010 as read with the Fair Administrative Action Act.

45. The 1st respondent was of the view that the orders sought herein are meant to defeat and usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers of the Office of Director of Public Prosecutions and the Directorate of Criminal Investigations.

46. The 1st respondent averred that contrary to the applicants’ assertions, the applicants are seeking to verify her academic qualifications through an electronic internet platform, whose authenticity, source and author cannot be verified or vouched for; or whose maker or author or owner and patent/copyright owner has not been called to vouch and produce the same contrary to the provisions of the Evidence Act on the production of electronic evidence. According to her, neither the maker of the said domain https://hedd.ac.uk/enquirer-registration?execution=e1s1 or the relevant institutions are parties to this proceedings or where they parties before the dispute at the Dispute Resolution Committee and as such the same cannot be relied upon or be used as a basis for the determination and curtailment of her fundamental rights and freedoms to a fair hearing and trial and her political rights under article 38 of theConstitution.

47. The 1st respondent asserted that the applicants cannot purport to conclude that her academic qualifications are forgeries or were obtained fraudulently whereas no such investigations have been conducted and neither has she been afforded due process or any such judicial pronouncement been made on the same by the criminal court on the said allegations.

48. She disclosed that contrary to the applicants’ averments, the office of the Director of Public Prosecutions and the Office of the Inspector General of Police are already seized of the matter herein and are conducting their investigations in accordance with their respective constitutional mandates and as such, the instant application is a mere invitation by the applicant for this court to interfere with the lawful discharge of the mandates by the Inspector General of Police and the Director of Public Prosecutions.

49. According to the 1sT respondent, the applicants have diverged from their appeal and have failed to demonstrate in what way the Dispute Resolution Committee erred in any way either in law and in fact in their decision rendered on June 19, 2022 in IDRC/DRC/CRGE/56/2022; Gideon Ndegwa Kenya and another v Wavinya Ndeti. According to her, the jurisdiction of this court that has been invoked is appellate in nature and not original and hence the Applicants are limited and confined to the decision and materials that were placed before the Dispute Resolution Committee for hearing and determination.

50. It was contended that the applicants have neither demonstrated any wrong doings or illegalities perpetuated by the returning officer or the Dispute Resolution Committee in her clearance as a candidate to contest for the position of Governor Machakos County.

51. The 1st respondent asserted that she is one and the same person referred to as Wavinya Ndeti and Wavinya Petti Oduwole and explained that Oduwole is her late husband and confirmed this vide an Affidavit verifying her name. She insisted that she is duly qualified and duly attained the academic qualifications as per the institutions she attended and the same have all along been recognized by the relevant institutions and that she has at all material times since the year 2013 been cleared based on her academic credentials and qualifications to contest for elections.

52. It was her position that it is absurd that the applicants are now seeking to have her academic qualifications annulled or rendered void through the retrospective application of the law on the allegation that her academic credentials are do not meet the general requirements for recognition and equation of qualifications established under the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications and that the same are not recognized under the Elections Act, yet the Commission recognized the same in the past. In her view, it is now estopped both by conduct and representation by the doctrine of estoppel.

53. According to the 1st respondent, the applicants having failed to prove and discharge the burden of proof at the Dispute Resolution Committee on their allegations of fraud and forgery, cannot now purport to use these proceedings to attempt to fill the gaps in their case or invite this court to sit as an investigative organ. She explained that the Dispute Resolution Committee rightly dismissed the applicants’ complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. Based on legal advice, she averred that allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions as the same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. However, no such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein.

54. It was her position that the applicants have not met the threshold for the grant of the orders sought herein and she urged court to dismiss the application with costs.

55. In her submissions, the foregoing matters were reiterated and it was submitted that reliance was placed on the case of Republic v Independent Electoral and Boundaries Commission and others,exparteWavinya Ndeti, Nairobi High Court Judicial Review Application No 301 of 2017. According to the applicants, the foregoing position was affirmed by the Supreme Court in the case of Sammy Ndungu Waity v Independent Electoral and Boundaries Commission and 3 others [2019] eKLR.

56. In the premise, the 1st respondent submitted that the applicants neither demonstrated any wrong doings or illegalities perpetuated by the returning officer or the Dispute Resolution Committee in her clearance as a candidate to contest for the position of Governor Machakos County and neither have they demonstrated any errors committed by the Dispute Resolution Committee in its decision in dismissing the applicants’ complaint.

57. According to her, the applicants have not made out a case to warrant the grant of the order of mandamus and prohibition. In her submissions, the 1st respondent relied on the case of Oscar Edwin Okimaru v Republic, Criminal Case No E014 of 2021, [2021] eKLR where the court underscored the importance of due process and the right to be presumed innocent.

58. It was submitted that the 1st respondent enjoys the right to be presumed innocent of the allegations made against her pertaining to her academic qualifications and any such inference or conclusions of forgeries and fraud can only be made after due process as sanctioned by law. In her submissions, the orders sought herein are meant to defeat and usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers of the Office of Director of Public Prosecutions and the Directorate of Criminal Investigations.

59. There were also submissions regarding the verification using internet platform/domain/ algorithmic decision making but as will be shown later in this judgement the submissions thereon are nolonger decisive in this matter. She relied on the case of William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2 others, Election Petition No 2 of 2012; [2013] eKLR and submitted that the applicants cannot purport to conclude that the 1st respondent’s academic qualifications are forgeries or were obtained fraudulently whereas no such investigations have been conducted and neither has the 1st respondent been afforded due process or any such judicial pronouncement been made on the same by the criminal court on the said allegations.

60. The 1st respondent also cited on the decision of the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, Supreme Court Application No 2 of 2011 [2012] eKLR, and submitted that having so been recognized in the first instance and having obtained her academic credentials as early as in the 90s, the law cannot be applied retrospectively in order to limit her fundamental rights and freedoms under article 38 of theConstitution of Kenya, 2010 or under articles 47 and 50 of theConstitution of Kenya, 2010 with the intention of discrediting her academic credentials. Furthermore, section 9 of the Interpretation and General Provisions Act prohibits the retrospective application of the law.

61. It was submitted that the applicants having failed to prove and discharge the burden of proof at the Dispute Resolution Committee on their allegations of fraud and forgery, cannot now purport to use these proceedings to attempt to fill the gaps in their case or invite this court to sit as an investigative organ. It was reiterated that the Dispute Resolution Committee rightly dismissed the applicants’ complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. In her submissions allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions. The same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. No such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein. Reliance was placed on the case of Joseph Mutuku Mwanthi & 6 others v Aimi Ma Kilungu Company Limited, Civil Suit 67 of 2011, [2021] eKLR andit was submitted that the applicants have failed to plead with specificity and prove the allegations of fraud and forgery pertaining to her academic qualifications and therefor they have failed to prove a case to warrant the grant of the orders sought herein. Based on the foregoing, the 1st respondent urged the court to dismiss the notice of motion application dated June 28, 2022 with costs certified for two advocates.

2nd Respondent’s Case 62. The 2nd respondent, in opposition to the motion averred that the main issue which is the substratum of these proceedings is the authenticity of the academic certificates of the 1st respondent herein presented for clearance to the 2nd respondent, and which credentials were used to clear the 1st respondent herein to contest for the position of Governor, Machakos County.

63. It was averred that following the clearance of the 1st respondent, the applicants herein lodged a complaint before the 2nd respondent’s Dispute Resolution Committee alleging that the 1st Respondent’s academic certificates were not authentic and the 1st Respondent should therefore be disqualified and/or barred from contesting for the position of Governor, Machakos County. According to the 2nd respondent, its Dispute Resolution Committee considered the complaint filed by the applicants herein before it and in a decision dated June 16, 2022 and delivered on the June 19, 2022, stated that the complaint before it being one that raised suspicion on the authenticity of the 1st respondent’s academic qualifications, it is not clothed with jurisdiction to hear and determine it.

64. According to the 2nd respondent, what the instant proceedings seek to do is to ask this court to confer investigative jurisdiction on the 2nd respondent’s Dispute Resolution Committee which has not in fact been conferred upon it by the Constitution or any other written law such that should this court find in favour of the applicants, then the same would essentially mean that this court has arrogated itself legislative functions which are a preserve of Parliament.

65. It was the 2nd respondent’s position that the 2nd respondent’s mandate is specifically enshrined in theConstitution under Article 88 of the Constitution 2010as read with section 74 of the Elections Act, 2011 which mandate does not include authenticating academic certificates hence the 2nd respondent together with its Dispute Resolution Committee lacks power to investigate and/or determine the validity or otherwise of the certificates presented by intending candidates as long as on the face of it, the candidate presents a prima facie valid document.

66. It was its case that this mandate, as captured under Universities Act No 40 of 2012 under section 4 as read with section 5 is a preserve of the Commission for University Education, the 3rd respondent herein, and no single piece of legislation bestows upon the 2nd respondent or its organs and/or committees the mandate to recognize and/or fail to recognize academic certificates of candidates.

67. The 2nd respondent took the view that once presented with such certificates and especially with recognition from the Commission of University Education of the certificates in question, nothing bars the 2nd respondent from accepting the same and/or gives the 2nd respondent and its organs and/or committees the power to inquire into their authenticity or otherwise.

68. This position, according to the 2nd respondent was recognised by the applicants in when they admitted that the 3rd respondent confirmed that the institutions the 1st respondent stated she graduated from are recognized in Kenya. No evidence was tendered to indicate that this recognition was revoked and in fact, in the proceedings before the 2nd respondent’s Dispute Resolution Committee, counsel for the Complainants (applicants herein) submitted that there was no need to join the Commission for University Education since they had written a letter confirming that the impugned degree was recognized.

69. As such, it was averred, even though there exists allegations by the applicants as to the authenticity of the 1st respondent’s academic certificates, there are no criminal proceedings and/or charges that have been brought against the 1st respondent and/or any judicial or quasi-judicial body that has pronounced itself on their authenticity or lack thereof which finding would require investigations to be done by relevant authorities, the 2nd respondent and its Dispute Resolution Committee not being one of such bodies mandated with investigative powers.

70. It was noted that that the purpose of judicial review is to allow a judicial body examine the process leading to the making of the decision and this court should thus restrict itself only to considerations as to whether the 2nd respondent had jurisdiction to make the decision in question and whether the persons affected by it were heard before it was made which questions can only be answered in the affirmative. The applicants have not pleaded otherwise. It was further contended that such a decision can only be subject to judicial review if it can be established that the same is tainted with illegality, irrationality and procedural impropriety. However, a reading of the instant motion and the orders sought reveal no such illegality, irrationality or procedural impropriety and as it appears, the applicants herein have packaged these proceedings as judicial review proceedings whereas in real sense, they are imploring this court to sit as an appellate court which is against the rules of judicial review.

71. The 2nd respondent lamented that proceedings in this nature leading to the General Elections which are barely a month away are time-sensitive, the 2nd respondent having been tasked with the task of ensuring that the elections are conducted on the August 9, 2022 and barring/disqualifying the 1st respondent from contesting on unsubstantiated allegations would place the 2nd respondent in a rather precarious position as proceedings on violation of the 1st respondent’s rights under article 38 of theConstitution would arise, and if not, Judicial Review proceedings as in this case which the 2nd respondent would not be able to defend as it would fail to explain how it arrogated itself investigative powers as regards the authenticity or otherwise of the 1st respondent’s academic credentials.

72. It was therefore contended that the instant proceedings do not meet the threshold required for judicial review proceedings and for the grant of the orders sought and it is therefore in the interest of justice and fairness that the same be dismissed with costs.

4th Respondent’s Case 73. In opposing the motion, the 4th respondent relied on the following grounds of opposition:1. The application is incompetent and an abuse of the process of court.2. The Director of Public Prosecution shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions shall not be under the directions or control of any person or authority.3. On his own motion the DPP has directed the Inspector General of Police to investigate the academic documents presented to the electoral body by the 1st respondent.

74. On behalf of the 4th respondent, reliance was paced on article 157(4) of theConstitution and it was contended that the Director of Public Prosecutions has no power to order investigations, but only to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct be that as it may, the DPP cannot in the alternative, as prayed by the ex-parte applicant, arrogate to himself the power to determine the authenticity and validity of the academic certificates presented.

75. The 4th respondent further submitted this court had on June 30, 2022 ordered inter alia:a.That the Deputy Registrar of this court do carry out the verification of the 1st respondent’s bachelors and masters degrees via the website indicated in the prayer(b) of the motion dated June 28, 2022 and file a report accordingly.b.That the verification to be undertaken today at 2. 30 pm.

76. That verification was done on June 30, 2022 as ordered in the presence of the ex-parte applicant’s and 1st respondent’s advocates and the advocates present were satisfied with the verification process and the outcome thereof. It’s therefore not within the powers of the 4th respondent to do further verification.

77. Based on article 157(10) of theConstitution, it was submitted that the 4th respondent cannot be under the direction or control of any person or authority in the exercise of his duties under theConstitution.

78. Accordingly, the court was urged to dismiss the application dated June 28, 2022 with costs.

Interested Party’s Case 79. The interested party, in opposing the motion relied on the following grounds:a.That it is misconceived, incompetent, bad in law, lacks merit and is an abuse of the court processb.THat the application purporting to be a judicial review application is not a judicial review application as the facts, issues, parties and cause of action it presents before this honourable court are different from what was before the Dispute Resolution Committee of the Independent Electoral and Boundaries Commission. This is contrary to obtaining law and practice.c.That the application seeks to grant upon the court powers and jurisdiction it doesn’t have and usurp the mandate of lawful constitutional offices.d.That the application seeks to influence the lawful exercise of administrative action by awful public entities.e.That the orders sought in so far as they are in conflict with the Evidence Act cap 80 do not obtain. Electronic based websites and links whose authorship and ownership are suspect ought to be subjected to strict evidentiary rules.f.That the applicant fails to demonstrate why the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee was erroneous in any way and why it deserves to be quashed.g.That the burden of proof in any claim of violation of fundamental rights and breach of administrative law falls upon the applicants who have failed to discharge this duty.h.That the application is frivolous vexatious and scandalous.

80. The interested party also filed a replying affidavit in which it was stated that the 1st respondent is the duly nominated and duly cleared candidate of the interested party for the Governor seat Machakos County.

81. It was its position that the 1st respondent meets all the qualifications for the Office of Governor Machakos County hence the instant application is an abuse of court process, it is manifestly vexatious, and aimed at abusing the court process and is calculated to curtail the 1st respondent’s rights and in detracting the party candidate from her campaigns and ultimately aimed at costing her seat. It was disclosed that the IEBC has cleared the nominee of the party twice before in the past in the year 2013 and 2017 and found that she met all relevant qualifications and indeed was over qualified for the Governor position.

82. It was the interested party’s position that the instant application is incurably defective as what is before this court is not a judicial review application hence the applicants have wrongfully invoked the jurisdiction of this court. In its view, there is absolutely no material before this court that points to errors in the decision of the Dispute Resolution Committee of the Independent Electoral and Boundaries Commission which would found the basis of a valid judicial review application.

83. Its position was that the decision of the Dispute Resolution Committee of the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee that the interested party was not a party in the proceedings neither were either of all the Respondents. However, the Dispute Resolution Committee is not part of these proceedings as it ought to be. Apart from that this application has introduced new facts and issues that were never presented for consideration and determination before the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee.

84. Based on legal advice, the interested party contended that the applicants are limited and confined to the decision and materials that were placed before the Dispute Resolution Committee for hearing and determination. It was asserted that the grant of the orders sought in the instant application will be greatly prejudicial to the interested party and its nominee, the 1st respondent and will constitute violations of their fundamental rights and freedoms to equal protection of the law under article 27 of the Constitution of Kenya, 2010, rights to rights to a fair hearing and fair procedural action as protected in articles 47; 48 and 50 ofthe Constitution of Kenya, 2010 as read with the Fair Administrative Action Act. It was its position that the application is meant usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers vested already in other constitutional offices.

85. According to the interested party, it is not aware of any investigation results that prove without a doubt that the interested party’s nominee did not legally obtain a degree and neither has she ever been heard in such proceedings. Accordingly, in as far as this court adopts any investigatory powers that it is not clothed it under the law, it would accordingly be exceeding its mandate and jurisdiction and any orders made in excess of jurisdiction ought to be vacated as unlawful, particularly at the interim phase of the matter.

86. The interested party averred that there is a domain which has been freshly introduced before this court as follows; https://hedd.ac.uk/enquirer-registration?execution=e1s1 and that neither this domain or its maker are part of these proceedings and that its authenticity is in question and neither was it introduced before the dispute at the Dispute Resolution Committee and hence it cannot be relied upon or be used as a basis for the determination and curtailment of the interested party’s fundamental rights and those of its nominee and the people of Machakos contrary to article 38, 47 and 50 of theConstitution of Kenya, 2010. In its view, reliance on this would be contrary to evidentiary rules outlined in the law and practice of evidence and is untenable in the circumstances of this case.

87. According to the interested party’s understanding Wavinya Ndeti and Wavinya Ndeti Oduwole are one and the same person as Oduwole was her late husband. It was its view that a degree is no longer a requirement for qualification to contest in elections as a Governor in light of the High Court decision declaring section 22(1)(b)(ii) of the Elections Act unconstitutional in the case of County Assembly Forum & 6 others v Attorney General and others; Petition No E229, E226, E249 & 14 of 2021 [2021] KEHC 304 (KLR).

88. The interested party asserted that the Dispute Resolution Committee correctly applied the law in dismissing the applicants’ Complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. The applicants now wish to use this court as its investigatory arm to fill gaps in its heavily flawed case. Based on legal advice, it was contended that allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions. The same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. No such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein. It was the interested party’s case that the applicants have not met the threshold for the grant of the orders sought herein as other appropriate remedies prior to moving these court exist and have not been utilized. In this the court was reminded that it is trite law that in seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The court was therefore urged to dismiss the instant application with costs.

Determinations 89. I have considered the application, the affidavits both in support of and in opposition to the application, the grounds of opposition as well as the submissions and authorities cited.

90. The parameters of judicial review were set out by the Court of Appeal in Republic v Kenya National Examinations Councilex parteGathenji & 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 ie 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.”

91. In Municipal Council of Mombasa v 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.”

92. In Republic v Kenya Revenue Authorityex 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 England 4th Edition Vol (1)(1) para 60.

93. It must be remembered that judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected. See R v Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at p 285.

94. I also associate myself with the expressions in Republic v The Retirement Benefits Appeals Tribunalex parteAugustine 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 v 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...”

95. In JR Misc Application No 477 of 2014: Republic v Public Procurement Administrative Review Board & 2 others this court expressed itself as follows:“…the issue for judicial review is not whether the decision is right or wrong, nor whether the court agrees with it, but whether it was a decision which the authority concerned was lawfully entitled to make since a decision can be lawful without being correct. The courts must be careful not to invade the field of policy entrusted to administrative and specialized organs by substituting their own judgment for that of the administrative authority. They should judge the lawfulness and not the wisdom of the decision. If the decision was wrong, it should be remedied by an appeal which allows the appellate court to engage in an intrusive analysis of evidence by the trial tribunal and review the merit of the decision in question…In my view the respondent was entitled to find that the supplementary grounds did not contain fresh issues or otherwise. The mere fact that it made one decision and not the other does not justify this court in the exercise of its judicial review jurisdiction in interfering therewith. Similarly, the respondent’s finding that the 2nd interested party did not comply with its directions issued in the respondent’s earlier decision is a matter which would go to the merit rather that the process.”

96. Republic v Public Procurement Administrative Review Board & anotherex parteGibb Africa Ltd & another [2012] eKLR where the court set out the established reach of judicial review in Kenya thus:“In judicial review therefore, the court’s jurisdiction is limited to applying the three tests of “legality”, “rationality” and “procedural propriety” to the decision under review and once the decision passes the tests the court has no business taking any further step in respect of that decision. There is always a temptation to descend into the arena and substitute the judge’s decision with that of the public body whose decision is under attack. A judge should, however, avoid this temptation by all means lest he be accused of abusing the powers given to him to review the decisions of subordinate courts and tribunals. The Court of Appeal in Grain Bulk Handlers Limited v JB Maina & Co Ltd & 2 others [2006] eKLR summarized the purpose of judicial review by stating that:-“Judicial review jurisdiction regulates the process by which a decision making power given by the law is exercised by the person or body given the jurisdiction. The subject matter of Judicial Review is the legality of such decisions.”From the foregoing it is clear that in judicial review, the court does not exercise its appellate powers. It mainly looks at the decision-making process to ensure that the citizen who has come into contact with an administrative body or tribunal has been treated fairly. But as observed by Lord Diplock in the already cited Civil Service Unions v Minister for the Civil Service case, the court can quash the decision if the same is so unreasonable to the extent that a reasonable tribunal addressing its mind to the facts of the case would not have arrived at such a decision. In doing so, I submit, the court will have descended into the arena of decision-making. For a court to justify such action it must be clearly obvious that the decision is truly and obviously unreasonable which I submit is not the case here.”

97. Similarly, in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127 it was stated that:“Judicial review is not a fishing expedition in unchartered seas. The course had been laid down in numerous case laws. It is that this court is concerned only with reviewing, not the merits of the decision reached, but of the decision making process of the authority concerned. It would scrutinize the procedure adopted to arrive at the decisions to ascertain that it is in uniformity with all elements of fairness, reasonableness and most of all its legality. It must be borne in mind and which had been repeated many times by this court that it is not its role to substitute itself for the opinion of the authorities concerned. This court on a judicial review application does not act as a court of appeal of the decision of the body concerned and it will not interfere in any way in the exercise of the discretionary power which the statute had granted to the body concerned. However it will intervene when the body concerned had acted ultra vires its powers, reached a decision which is manifestly unreasonable in the Wednesbury sense; had acted in an unfairly manner and the applicant was not given a fair treatment.”

98. In Penina Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2015] eKLR, Supreme Court held at paragraph 28:“The well-recognized principle in such cases is that the court’s target in judicial review is always no more than the process which conveyed the ultimate decision arrived at. It is not the merits of the decision, but the compliance of the decision-making process with certain established criteria of fairness. Hence, an applicant making a case for judicial review has to show that the decision in question was illegal irrational or procedurally defective.”

99. The Code of Civil Procedure, volume III pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:“The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an appellate court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.”

100. However, the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] eKLR, expressed itself at paras 55-58 as follows:“55. An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in article 24 (1) (b) and (e) of theConstitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications.56. Analysis of Article 47 of theConstitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; section 7 (2) (j) identifies abuse of discretion as a ground for review while section 7 (2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7 (2) (i) (i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in section 7 (2) (i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in section 7 (2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.57. In Mbogo & another v Shah (1968) EA 93 at 96, this Court stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. The dictum in Mbogo v Shah (supra) and the principles of rationality, proportionality and requirement to give reasons for decision are pointers towards the implicit shift to merit review of administrative decisions in judicial review.58. The essence of merit review is the power to substitute a decision. Under the Fair Administrative Action Act, there is no power for the reviewing court to substitute the decision of the administrator with its own decision. This imposes a limit to merit review under the Act. Section 11 (1) (e) and (h) of the Fair Administrative Action Act permits the court in a judicial review petition to set aside the administrative action or decision and or to declare the rights of parties and remit the matter for reconsideration by the administrator. The power to remit means that decision making on merits is the preserve of the administrator and not the courts.”

101. The same Court (Kiage, JA) emphatically expressed itself, inter alia, in the Judicial Service Commission andanotherv The Chief Registrar of the Judiciary and Lucy Muthoni Njora Civil Appeal No 486 of 2019 as hereunder:“I think that it would be unrealistic for a court to engage in a dry and formalistic approach, steeped in process alone, while eschewing a measure of merit examination. Such merit review is asine qua non of meaningful engagement with the question of reasonableness and fairness as the antidote to the arbitrary, capricious or illegal conduct of authorities, that invite judicial review in the first place. Judicial review as an area of law is not static and its parameters have never been cast in stone. Thus, in the common law jurisdictions, there have been major developments in the field, especially in the last four decades or so. In the United States, for instance, there has been a decisive shift, with the Supreme Court there seeming to impose a heightened standard of judicial review that involves more judicial scrutiny of administrative action through “a searching and careful” engagement. This has been recognized as the “hard look doctrine”. It is much less deferential to the decision-maker as formerly encapsulated in the process-only approach. 26 I have had the advantage of perusing Prof Patrick M Garry’s article Judicial Review and the Hard Look Doctrine (originally published on 7 Nev LJ 151 2006-007) and found it to be highly persuasive. The learned author’s conclusion, which I would respectfully endorse and adopt, is that;“Prior to, and during the two decades following passage of the Administrative Procedure Act, judicial review of agency action was quite deferential. This changed on the early 1970s, when judicial review became more scrutinizing … courts began employing a ‘hard look’ review that examines agency decision-making under a more heightened standard. … The hard look doctrine has evolved from the very nature of judicial review … the courts have… become less deferential and less of a rubber stamp on agency decisions … Hard look can thus be seen as inherent in the very process of judicial review. In a way hard look represents an internal duty owed by the courts to the constitutional function of judicial review ….” (Our emphasis)In our own jurisdiction, judicial review has taken the same trajectory in recent years, spurred in large measure by the 27 Constitution of Kenya, 2010. It changed the fundamental underpinnings of judicial review from the common law as codified in the Law Reform Act, to its Article 22(3) (f), which recognizes judicial review as one of the appropriate reliefs available. This is bolstered by Article 47(1), which decrees the right to fair administrative action, given further effect by the Fair Administrative Action Act which, at Section 7(2), sets out an expansive list of circumstances in which a court may review an administrative action or decision. The superior courts of this country have spoken with near unanimity that the current constitutional and statutory landscape calls for a more robust application of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision. See, for instance, Communication Commission of Kenya v Royal Media Services & 5 others [2014] eKLR by the Supreme Court, this court’s decisions in Suchan Investment Ltd v Ministry of Natural Heritage & Culture & 3 others [2016] eKLR and Child Welfare Society of Kenya v Republic & 2 others ex parte Child in Family Focus Kenya [2017] eKLR and the High Court’s in Republic v Commissioner of Customs Services ex parte Imperial Bank Ltd [2015] eKLR (per Odunga, J). They all speak to the unmistakable sea change and approach, stated thus by this court in Super Nova Properties Ltd & anor v District Land Registrar Mombasa & 2 others, Kenya Anti Corruption Commission & 2 others (Interested Parties) [2018] eKLR;“27. On our part, we find no fault that the Judge expanded the grounds of judicial review above the conservative grounds to include the principles of proportionality, public trust, accountability by public officers, justice and equity. The test of proportionality would automatically lead to a greater intensity of review of the merits as it invites a court to evaluate the merits of the decisions by assessing the balance to make; that is whether the decision to be made is within the range of rationality or reasonableness. Secondly, the proportionality test may go deeper into examination of the interests of those affected by the said decision.”This court conducted a thorough and exhaustive review of the post-2010 jurisprudence on the evolution of judicial review into the deeper scrutiny, hard look, merit-based standard of review mode in its recent decision in Geoffrey Ajuong Okumu & anor v 29 Engineers Board of Kenya [2021] eKLR. I respectfully echo as representing the current legal position on the subject what we said there was on our way to the conclusion that;“--- we have been able to demonstrate from … the decisions we have enumerated that, by stating that he could not consider evidence presented as defence or analyze the agreements executed by the parties in the dispute because doing so would amount to a merit review, the learned Judge erred.”We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.”

102. It is now recognised that one of the grounds for grant of judicial review relief is unreasonableness of the decision being challenged. This is clearly a deviation from the traditional common law approach that what is to be considered is the process by which the decision is arrived at rather than the decision itself. An examination of whether or not a decision is unreasonable clearly calls for some measure of consideration of the merits of the decision itself though not in the manner contemplated by an appellate process.

103. According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 7th edition at paragraph 11-036 on page 602, a decision is also irrational if it lacks ostensible logic or comprehensible justification and that though the terms irrationality and unreasonableness are these days used interchangeably, irrationality is only one facet of unreasonableness, hence a decision is said to be irrational in the strict sense of that term if it is unreasoned; if it is“lacking ostensible logic or comprehensible justification”.

104. Unreasonableness, according to the same work at para 11-029, connotes decisions which have been accorded manifestly inappropriate weight; strictly “irrational” decisions, namely, decisions which are apparently illogical or arbitrary; uncertain decisions; decisions supported by inadequate or incomprehensible reasons; or by inadequate evidence or which are made on the basis of a material mistake or material disregard of fact.

105. According to De Smith’s Judicial Review (sixth edition) at page 559 that:“Although the terms irrationality and unreasonableness are these days used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification. Instances of irrational decisions include those made in an arbitrary fashion perhaps by spinning a coin or consulting an astrologer or where the decision simply fails to add up-in which in other words there is an error of reasoning which robs the decision of logic…Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decisions or where there is absence of evidence in support of the decision.”

106. Sedley, J in R v Parliamentary Commissioner for Administration,ex parteBalchin and another [1998] 1 PLR 1, states at page 11 that:“What the not very apposite term “irrationality” generally means in this branch of the law is a decision which does not add up-in which, in other words, there is an error of reasoning which robs the decision of logic.”

107. In Salim Juma Oditi v Minister for Local Government &ors [2008] eKLR, Wendoh, J referring to the case of Associated Provincial Pictures Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at p 229 held that:“It is true 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 a 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 their 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."

108. Based on Bato Star Fishing Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15 at 44,which was dealing with section 6(2)(h) of the South African Promotion of Administrative Justice Act, a legislation which squares with section 4(2)(k) of the Fair Administrative Action Act, 2015 to the extent that it forbids unreasonable administrative actions or decisions, because of the constitutionalisation of fair administrative action, an unreasonable decision is simply a decision that a reasonable decision-maker could not reach and not necessarily an egregious one per Wednesbury. In the South African case the court opined that:“42. ..It is well known that the pre-constitutional jurisprudence failed to establish reasonableness or rationality as a free-standing ground of review. Simply put, unreasonableness was only considered to be a ground of review to the extent that it could be shown that a decision was so unreasonable as to lead to a conclusion that the official failed to apply his or her mind to the decision.44. ...The subsection must be construed consistently with theConstitution and in particular section 33 which requires administrative action to be “reasonable”. Section 6(2)(h) should then be understood to require a simple test, namely, that an administrative decision will be reviewable if, in Lord Cooke’s words, it is one that a reasonable decision-maker could not reach.”

109. It is in this respect that I understand Onguto, J’s decision in Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board [2016] eKLR where the learned judge held that the court, effectively has a duty to look both into the merits and legality of the decision made due to the requirement of “reasonable” action under article 47, and also the process and procedure adopted due to the requirement of following all precepts of natural justice under both articles 47 and 50(1) of theConstitution.

110. The gist of this matter is that the 1st respondent does not have a legally acquired degree to enable her qualify as candidate for gubernatorial position for Machakos County.

111. When the parties appeared before me on June 30, 2022 I made the following order:a.That the Deputy Registrar of this court do carry out the verification of the 1st respondent’s bachelors and masters degrees via the website indicated in the prayer (b) of the motion dated June 28, 2022 and file a report accordingly.b.That the verification to be undertaken today at 2. 30 pm.

112. The Learned Deputy Registrar did carry ought that task and rendered his report in which he found inter alia that:1. The enquiry details were matching in regard to one Wavinya Ndeti having obtained Masters Degree from City University of London in Business Systems Analysis and Design.2. The enquiry details were matching in regard to one Wavinya Ndeti having done a course in Computer Science from London South Bank University.3. The enquiry details were matching in regard to one Wavinya Oduwole having qualified with bachelors degree in Computing Science from London South Bank University.

113. It follows that prayer (b) of the motion is nolonger necessary to deal with.

114. The applicants seek an order of certiorari be and is hereby issued quashing the decision of the 2nd respondent’s Dispute Resolution Committee dated June 16, 2022 and read in open court on June 19, 2022 in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti clearing the 1st respondent to run for the position of Governor, Machakos County in the General Elections scheduled for August 9, 2022. According to the Applicants the said Committee failed to deal with their complaint by stating that it had no jurisdiction to do so since the allegations raised disclosed suspicion as to the authenticity of the academic qualifications of Wavinya Ndeti. According to the 2nd respondent, its mandate as enshrined in theConstitution under article 88 thereof as read with section 74 of the Elections Act, 2011 does not include authenticating academic certificates hence the 2nd respondent together with its Dispute Resolution Committee lack power to investigate and/or determine the validity or otherwise of the certificates presented by intending candidates as long as on the face of it, the candidate presents a prima facie valid document. To them, pursuant to section 4 of the Universities Act No 40 of 2012 as read with section 5, that mandate is a preserve of the Commission for University Education, the 3rd respondent herein, hence no single piece of legislation bestows upon the 2nd respondent or its organs and/or committees the mandate to recognize and/or fail to recognize academic certificates of candidates.

115. Section 5 of the Universities Act provides as follows:(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

116. It is therefore clear that the powers to recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions rests with the 3rd respondent. In undertaking its mandate, it is required to undertake or cause to be undertaken, regular inspections, monitoring and evaluation of universities. In this case the 3rd respondent confirmed that the institutions from which the 1st respondent obtained her degrees and certifications are recognised.

117. The applicants have not cited before me any statute that compels the 2nd respondent to make a decision as regards the recognition or equation of university degrees. They have however relied on regulation 47 of the Election (General) Regulations, 2012, which in so far as the ascertainment of educational qualifications is concerned provides as follows:1. For purposes of ascertaining the educational qualification of persons for an elective post, a person seeking nomination shall submit to the Commission certified copies of certificates of the educational qualification.2. Where the body that issued the certificate is not based in Kenya, a candidate shall be required to seek authentication of that body with the Kenya National Examinations Council, in the case of form four certificates, or the Commission for University Education, in the case of university degrees.

118. With due respect I cannot read into the said regulation any power conferred upon the 2nd respondent to recognise or equate university degrees. I therefore associate myself with the decision of Mrima, J in Petition E321 of 2022 – Dennis Gakuu Wahome v The Independent Electoral and Boundaries Commission and others and find that the 2nd respondent has no power to recognise or equate university degrees and therefore cannot be compelled to investigate the authenticity of a university degree that is already recognised by the 3rd respondent.

119. To the contrary that power expressly reposes on the 3rd respondent which, being a specialised Commission, is expected to have the necessary expertise to effectively, efficiently and competently carry out its statutory mandate. It is important to set out the role of the courts in matters such as this. It is trite law that the court ought not to interfere with the decision of the 3rd respondent simply because it holds the view that the said decision was unmerited as long as the same is based on the guidelines put in place by the 3rd respondent unless it be shown that the decision was irrational or unreasonable. Where it is not shown that the decision was unreasonable, I associate myself with the decision of the Court of Appeal in Eunice Cecilia Mwikali Maema v Council of Legal Education and 2others Civil Appeal No 121 of 2013 that:“the council has the power to set standards to ensure that the highest professional standards are maintained in the profession and it is not for the court to be concerned with the efficaciousness of the decision made pursuant to the Regulations.”

120. I also wish to associate myself with the decision in Susan Mungai v The Council of Legal Education & 2 others Constitutional Petition No 152 of 2011 in which Mumbi Ngugi, J expressed herself as follows while citing with approval the case of Republic v The Council of Legal Educationex parteJames Njuguna and 14 others, Misc Civil Case No 137 of 2004 (unreported):“The Council of Legal Education followed to the letter the purpose and objects of the Act including the applicable regulations and this court has no reason to intervene in a way that interferes with the merit of the decisions clearly falling within the relevant regulations and which have been applied by the Council of Legal Education without any procedural irregularity or for an improper purpose. I decline to do so. The Council of Legal Education has the power and duty to insist on the highest professional standard for those who wish to qualify as advocates. The Regulations are aimed at achieving this. The decision was made on merit and this court has no reason to intervene. The Regulations and the policy behind the rules were properly made pursuant to the Act and it is not for the court to be concerned with the efficaciousness of the decision made pursuant to the regulations...The Council of Legal Education is the best judge of merit pertaining to academic standards and not the courts. Parliament clearly vests the power of formulating policy of training and examining of advocates on the Council of Legal Education and it would be wrong in the view of this court to intervene with the merits of the decision by the Council of Legal Education...a court of law would only be entitled to inquire into the merits of a decision in circumstances where the decision maker abused its discretion, exercised its decision for an improper purpose, acted in breach of its duty to act fairly, failed to exercise its statutory duty reasonably, acts in a manner which frustrates the purposes of the Act which gives it power to act, exercises its discretion arbitrarily or unreasonably, or where its decision is irrational or unreasonable as defined in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223. In the case before me, there is no evidence to suggest that the 1st respondent, in dealing with the application for admission by the petitioner, acted in any of the ways set out above that would justify interference by this court with its decision.”

121. The learned judge continued:“I find and hold that it would not be proper or right for the court to veto powers conferred by Parliament on a public authority or body such as the Council of Legal Education and for the court to substitute its own view from that of the Council of Legal Education to which discretion was given except where the discretion has been improperly exercised as enumerated in the ten situations above. In judicial review, the courts quash decision made by public bodies so that these same bodies remake the decisions in accordance with the law. It is not proper for the court to substitute its decision which is what this court is being asked to do by issuing a mandamus to compel a re-sit. I reiterate my earlier findings on this point in the case of R v Judicial Service Commission ex-parte Pareno Misc Civil Application No 1025 of 2003 (now reported) that it is not the function of the courts to substitute their decisions in place of those made by the targeted or challenged bodies.”

122. This was a reflection of the position taken in Maharashtra State Board of Secondary and Higher Secondary Education and another v Kumarstheth [1985] LRC in which it was held:“so long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it in the sense that the rules and regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute can best be implemented and what measures substantive as well as procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purposes of the Act. It is not for the Court to examine the merits and demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulation falls within the scope of the regulation-making power conferred on the delegate by the statute. The responsible representative entrusted to make bylaws must ordinarily be presumed to know what is necessary, reasonable, just and fair.”

123. It was therefore appreciated by Nyarangi, JA in Daniel Nyongesa and others v Egerton University College CA No 90 of 1989 that:“Courts are very loathe to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run Universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the courts are moved to do so where it is manifest that decision has been made without fairly and justly hearing the person concerned or the other side…”

124. In this case it is contended by the applicants that the 1st respondent’s academic certificates do not meet the general requirements for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications. According to the applicants, though the 1st respondent claims to have obtained a master’s degree in Business Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree in Computer Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer Science in 1990 without undertaking a first degree. In their submissions, there is a close relationship between Computer Science and Business Systems Analysis and Design and as such it is illogical for a person who holds a master’s degree to undertake a bachelor’s degree in a similar field. In this regard reference was made to the report from Chelgate Consulting Firm in London which has detailed the inconsistencies in the 1st respondent’s academic certificates together with different names appearing on her certificates, which in their views made the ex-parte applicants question the authenticity of the 1st respondent’s academic qualification. In addition, it was contended that the said report indicates that the minimum entry requirement for one to proceed with a master’s degree is a good second-class honours degree from a UK University, a recognized equivalent from an accredited international institution or an equivalent professional qualification. It was therefore their position that the 1st respondent has not met the minimum entry requirements and thus there is need to question her academic qualifications.

125. Whereas it may well be true that the 3rd respondent has the mandate to recognize and equate degrees and can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation, that decision squarely falls on the 3rd respondent and this court can only interfere where the decision made by the 3rd respondent falls afoul of the laid down parameters guiding decision making. In this case, I take it that the applicants are alleging that the decision to recognize the 1st respondent’s degree qualification is, in the circumstances, irrational. I have looked at the prayers sought in this motion and I cannot see any seeking to quash the decision by the 3rd respondent to recognize the degree certificates issued to the 1st respondent. As held in Republic v Kenya National Examinations Councilex parteGathenji & others Civil Appeal No 266 of 1996, an order of mandamus cannot quash what has already been done as this can only be done by an order of certiorari can quash a decision.

126. In this case instead of seeking an order quashing the decision of the 3rd respondent, the applicants are seeking an order of mandamus compelling the 2nd respondent to strike out the 1st respondent’s name from the list of cleared gubernatorial candidates to vie for Governor, Machakos County in the General Elections scheduled for August 9, 2022. However, as held in Republic v Kenya National Examinations Councilex parteGathenji & others Civil Appeal No 266 of 1996 the order of mandamus is 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. It lies in cases where there is a specific legal right or no specific legal remedy for enforcing that right. It must command no more than the party against whom the application is legally bound to perform. However, 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. However, if the complaint is that the duty has been wrongfully performed ie 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.

127. Accordingly, that order can only be made if there is a legal obligation placed on the 2nd or 3rd respondents to strike out the 1st respondent’s name and the said respondent have failed to do so. Where what is being sought that they do is to exercise its power in a certain way as opposed to just exercising the same, the court cannot issue an order of mandamus. In other words, the prayer ought to be an order directing them to undertake their statutory mandate as opposed to carrying it out in a pre-determined manner.

128. In my view where a party alleges that the respondent does not possess university degree, the burden would then shift to the respondent to disprove that allegation. However, where the allegation is that the decree allegedly possessed by the respondent was not properly conferred, as is the case herein, the burden remains upon the person making that allegation to prove the same.

129. This is so since section 107 (1) of the Evidence Act, cap 80 laws of Kenya provides that:Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

130. This is called the legal burden of proof. There is however evidential burden of proof which is captured in sections 109 and 112 of the same Act provides as follows:"109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him."

131. The two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107 (1) of the Evidence Act, cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in sections 109 and 112 of the Act.”

132. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (i) of the Evidence Act, chapter 80 laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

133. In this case, it is clear that the applicants’ allegations are premised on speculations. This must be the reason why they are seeking an order of mandamus be and is hereby issued compelling the 5th respondent’s Department of Recognition, Equation and Verification to verify the academic credentials of the 1st respondent. As held in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127 judicial review is not a fishing expedition in unchartered seas.

134. In my view, the mere fact that the system adopted by foreign universities is different from our own system does not necessarily mean that such foreign degrees ought not to be recognized locally. As long as the 3rd and 5th respondents are satisfied as regards the standards applied in awarding the same, this court cannot interfere with such a decision simply because the degrees were awarded in an “unusual” manner. While their decision may be challenged on the grounds of irrationality, that is not the same thing as impeaching their decision merely because of differentiation or variation in the educational systems.

135. On the issue whether the names Wavinya Ndeti and Petti Wavinya Oduwole belong to the 1st respondent, the 1st respondent has explained that Oduwole is her late husband’s name and that has not been disputed.

136. As regards the prayer for the 4th respondent, the Director of Public Prosecutions to order investigations and/or determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti, from the record, it comes out that the 1st respondent was at one point summoned to explain herself. Whatever decision arrived following that summon, if any, is not the subject of these proceedings.

137. Having considered the proceedings, I find that the applicants have failed to meet the threshold for grant of the orders sought. Accordingly, the motion fails and is dismissed but with no order as to costs considering that this is a public interest litigation.

138. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF JULY, 2022. GV ODUNGAJUDGEDelivered in the presence of:Ms Sitati for Ms Damaris Mwiti for the ex parte applicant.Mr Ochieng Oginga for the 1st respondent.Mr Amimo for Mr Muyundo the 2nd respondent.Ms Kavuivu for Ms Lumallas for the interested party.CA Kevin.