Fatma Adam Hussein VS United States International University-Africa

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

              CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

                   CONSTITUTIOINAL PETITION NO. E379 OF 2020

FATMA ADAM HUSSEIN……………………………….PETITIONER

                                                     VERSUS

UNITED STATES INTERNATIONAL

UNIVERSITY-AFRICA.……………………………….RESPONDENT

JUDGMENT

Petitioner’s case

1. The petitioner enrolled for a Bachelor’s degree in international relation at the respondent university and graduated on 21^st August 2010. She enrolled for a master’s degree in international relations in September 2017 and graduated on 26^th September 2020. She had applied for PhD in international relations, Semester 2020 Fall but she was not admitted. She then filed this petition challenging the respondent’s decision not to admit her for PhD.
2. The petitioner argued that having satisfied the minimum entry requirements for admission to PhD, coupled with good references from her lecturers, she had reasonable expectation that she would be admitted. She also expected that in the event her application was not successful, she would be informed and given reasons for not being admitted.
3. The petitioner averred that the respondent informed her through a letter dated 19^th August 2020, that she could not be admitted for PhD due to merit and competitiveness of the program. The petitioner sent an email to the chairperson of the department of international relations on  the same day seeking clarification on why she had not been admitted but received no response.
4. The petitioner asserted that having satisfied the requirements for admission to PhD in international relations, she had a reasonable and legitimate expectation that she would be admitted and, if not, she would be given written reasons why she was not successful.
5. The petitioner argued that although the respondent gave reasons for rejecting her application in the letter dated 19^th August 2020, the reasons were unintelligible, inadequate and amounted to no reasons at all, a violation of article 47 of the Constitution.
6. The petitioner relied on article 47(2) of the constitution, sections 4(2)  and 6(4)of the Fair administrative Action Act (No. 4 of 2015) and the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR; Republic v Retirement Benefits  Appeal Tribunal & 5 others Ex-parte Kenya Airports Authority Staff Superannuation Scheme [2015] eKLR;  Breen vs AEU [1971] 1 All ER 1148 (at 1154) and Priscillah Wanjiku Kihara v Kenya Examination Council (KNEC) [2016] eKLR, for the argument that giving reasons  is  a fundamental requirement of fairness and is necessary for the satisfaction of parties.  Failure to give any reasons is not only unconstitutional but arbitrary.
7. The petitioner again relied on the decisions in In re Poyser and Mills’ Arbitration [1964] 2 QB 467, 478; Westminster City Council v Great Portland Estates [1984] 3 All ER 744; Gideon Omare v Machakos University [2020] eKLR and Save Britain’s Heritage v Secretary of State for the Environment [1991] 2 All ER to argue that reasons given should be proper, adequate, intelligible and must deal with the substance of the issues raised.
8. The petitioner took the view, that the reasons given in the letter dated 19^th August 2020 were highly unintelligible, inadequate, contradictory and did not address the crux of the matter at hand. It can only be inferred that the respondent had no justifiable reasons for rejecting her application, a violation of article 47(2) of the constitution.
9. The petitioner further argued that in exercising its discretion to accept or reject applications, the respondent failed to give any intelligible reasons for such rejection, hence the discretion was exercised arbitrarily and unreasonably and this court should intervene. She relied on the decisions in Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others [2013] eKLR; Susan Mungai v Council of Legal Education & 2 others [2012] eKLR and Republic v Principal Secretary Ministry of Mining Ex-parte Airbus Helicopters Southern Africa (PTY) Ltd [2017] eKLR.
10. It was the petitioner’s position that by denying her an opportunity to pursue her right to education to the highest possible level without any justification, the respondent violated her right to education guaranteed under article 43(1) (f) of the constitution. The petitioner asserted that the respondent’s actions also violated her constitutional right to non-discrimination guaranteed under article 27(5) of the constitution.
11. The petitioner maintained that while in the letter dated 19^th August 2020 the respondent stated that the reasons for rejecting her application was due to merit and competitiveness of the program, the report attached as annexure RR-5 gives the reason that her application was incomplete because she did not have a master’s degree by close of the time for applications. The petitioner refuted the respondent’s allegation that it communicated the department’s academic committee’s decision on final PhD admission for the Fall 2020 meeting held on 28^th August 2020.
12. The petitioner maintained that she had completed her master’s program by the end of April 2020 and was not a student in the summer semester 2020 (May to August); that her master’s degree certificate indicates that she was awarded the degree on 18^th April 2020 and was on the graduation list dated 6^th June 2020, before she submitted her application for PhD. She argued that she completed her master’s degree at the same time with a colleague, (Patrick Ndambuki), who was however admitted to PhD yet her application was rejected.
13. It was the petitioner’s case that article 20(1) of the constitution requires courts when interpreting the Bill of Rights, to adopt an interpretation that most favours enforcement of a right or fundamental freedom. She relied on Attorney General v Kituo Cha Sheria & 7 others [2017] eKLR.
14. The petitioner again relied on article 27(5) of the constitution, Black’s Law Dictionary, 10^th Edition and the decisions in Mbona v Shepstone and Wylie [2015] ZACC11 and John Harun Mwau v Independent Electoral and Boundaries Commission & another [2013] eKLR, to argue that despite satisfying requirements for admission, the respondent rejected her application for unintelligible reasons and admitted 6 other students, including her colleague, Patrick Ndambuki.
15. The petitioner relied on articles 23 (3) (e) and the decision in Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police OCS Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR and Gilbert Mwangi Njuguna v Attorney General [2014] eKLR and urged the court to award her general damages of Kshs. 10,000,000 and exemplary damages of Kshs. 10,000,000, costs and interests.
16. Based on the above arguments, the petitioner sought several declarations and orders.

Respondent’s case

1. The respondent opposed the petition through, a replying affidavit, supplementary affidavit and written submissions. The respondent asserted that meeting minimum admission requirements does not guarantee admission to PhD.
2. According to the respondent, it invited applications from qualified applicants for admission to PhD between May and July, 2020 for the Fall 2020 semester intake. The petitioner who was then pursuing a master’s degree in international relations, also applied for admission. The academic committee in the department of international relations which has the responsibility to evaluate, consider and make decisions on the applications for both masters and PhD, met on 24^th July 2020 and considered 11 applications that had been submitted for PhD, including that of the petitioner. After deliberations and applying the criteria for admission, the committee recommended five (5) applications for admission and declined six (6) applications.  The petitioner was one of the unsuccessful applicants.
3. The respondent asserted that the committee’s decision was in line with the policy communicated to the petitioner by the admissions office in the letter dated 19^th August 2020. The petitioner was dissatisfied with the committee’s decision and complained through an email dated 19^th August 2020 expressing the view, that the decision was discriminatory and victimization.
4. Following that complaint, the Dean at the at School of Humanities requested the academic committee to assess the petitioner’s application again. After deliberations held on 28^th August 2020, the petitioner’s application was again rejected on the basis that she did not have a master’s degree by close of the deadline for applications. That decision was again communicated to the petitioner.
5. The respondent maintained that the academic committee’s decision to reject the petitioner’s application cannot be faulted since the petitioner had not completed her master’s degree by the time of evaluating applications both on 24^th July 2020 and 28^th August 2020.
6. At the time of evaluating the applications, the respondent’s Senate had also not met to consider and approve the results for the students scheduled to graduate with master’s degree in international relations where the petitioner was a student. The Senate met on 14^th September 2020. The respondent maintained that it reserves the right of admission even where all minimum requirements have been met.
7. According to the respondent, students pursuing its degree programs complete requirements for their respective courses at different times of the year after which they apply to graduate and their names are entered into the graduation list which is updated from time to time by the Registrar Academic & Students Affairs Division. The respondent’s Senate approves the graduate list after which degree certificates are issued bearing the last date when the student completed the course. This explains why the petitioner’s master’s degree certificate has the date 18^th April 2020.
8. According to the respondent, admission criteria for any program is structured to take into account various aspects, including merit, competitiveness, availability of supervisory resources, research proposals.  The academic committee took these considerations into account in evaluating the applications for the Fall 2020 international relations PhD program.
9. The respondent argued that it bears no constitutional obligation to admit the petitioner; PhD in international relations is an independent and stand-alone program with its own admission requirements and no legitimate expectation could arise that successful completion of a master’s degree would entitle the petitioner admission for PhD. At no point in its dealings with the petitioner did it promise, undertake or give assurance that could give rise to legitimate expectation that the petitioner be admitted to PhD in international relations. The respondent relied on the decision in Communications Commission of Kenya& 5 others v Royal Media Services Limited & 5 others [2014] eKLR.
10. The respondent denied allegations of discrimination, maintaining that its admission policy does not differentiate people on the basis of race, tribe, gender or any other prohibited grounds under the constitution. The allegations of discrimination and victimization have no basis bearing in mind that the petitioner had been admitted to both Bachelor’s and Master’s degree Programs in the institution.
11. Regarding admission of Patrick Ndambuki, the respondent argued that he posted the best grades in the master’s program and submitted an outstanding research proposal. Taking into account the available supervisory resources, the academic committee applied its discretion to admit him. The respondent relied on Catherine Kanana Ringera & another v Fredrick Konya, Internal Affairs Unit & 4 others [2017] eKLR for the contention that the petitioner had not demonstrated that dissimilar and non-uniform criteria was applied in assessing her application vis-a-vis those of other applicants.
12. The respondent maintained that the petitioner did not have a master’s degree at the time of applying which was one of the requirements. According to the respondent, whether the academic committee’s decision was merited or not is not a matter for this court to sit on appeal. Reliance was placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Republic v Kenya Railways Corporation Ex Parte; Flamingo Paints Limited & another [2021] eKLR.
13. The respondent also denied violating article 47(2) of the constitution since the decision was communicated to the petitioner through letter dated 19^th August 2020 and reasons given. The respondent again denied violating the petitioner’s right to education guaranteed under article 43 (1) (f) of the Constitution and relied on Kaycia Jinnah v Aga Khan Education Services, Kenya [2020] eKLR.

Determination

1. I have considered the pleadings and arguments by parties.  The issue that arises for determination is whether the respondent’s decision not to admit the petitioner for PhD violated her rights and fundamental freedoms. The petitioner argued in the affirmative, while the respondent took the contrary view.
2. The facts of this petition are not in dispute. The petitioner undertook both undergraduate and graduate studies at the respondent. She then applied for PhD admission in international relations for the fall of 2020 but her application was not successful. She then filed this petition, arguing that the respondent violated various of her rights guaranteed under articles 27; 43(1)(f) and 47 (2) of the constitution. The petitioner further argued that the respondent violated her legitimate expectation.
3. The respondent on its part, denied violating any of the petitioner’s rights. The petitioner’s application was considered but was not accepted and she was given reasons as required by article 47(2). The respondent also denied discriminating against the petitioner or violating her legitimate expectation.

Violation

1. The petitioner argued that the respondent violated her rights guaranteed under article 47 (2) of the constitution. Article 47(1) accords every person the right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) demands that if a person’s right or fundamental freedom has been, or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
2. The constitution applies to both State and non-State actors, both the government and private persons or institutions. This is because article 2(1) is clear that the constitution is the supreme law and binds “all persons” and all State organs at both levels of government. Similarly, article 3(1) casts an obligation on every person to respect, uphold and defend the constitution. That the constitution binds all persons and everyone has an obligation to respect, uphold and defend it, means every person is obliged to follow constitutional commands regardless of whether one is a natural or juristic person. This is so, because article 260 defines "person" to include “a company, association or other body of persons whether incorporated or unincorporated.” From the constitutional text, the respondent is a person; is bound by the constitution and has an obligation to respect, uphold and defend it.
3. In that respect, the respondent’s process of considering and evaluating applications for admission to PhD was an administrative action and was bound by the tenets in article 47 of the constitution.
4. The respondent called for applications for admission to PhD in international relations and the petitioner submitted her application. She was however not successful. She filed this petition complaining of violation of her rights guaranteed under article 47(2).
5. I have considered respective parties’ arguments. The respondent maintained that the petitioner was informed why her application was not successful in a letter dated 19^th August 2020. This fact was admitted by the petitioner because she averred that the reason given by the respondent was that the application did not succeed “due to merit and competitiveness of the program.”
6. The petitioner argued that she sent an email to the Dean, School of Humanities and Social Sciences, seeking clarification and assistance but it did not elicit a response. The respondent however argued that the Dean directed that the petitioner’s applications be reevaluated but the petitioner’s application was again not successful and reasons were again given.
7. Article 47(1) demands that an administrative action be expeditious, efficient, lawful, reasonable and procedurally fair. This is because article 47 was intended to bring discipline in administrative actions so that values and principles of the constitution are infused in matters of public administration. (See Judicial Service Commission v Mbalu Mutava Musyimi [2015] eKLR).
8. The petitioner did not allege violation of article 47(1). Her case was on violation of article 47(2). According to the petitioner, the reasons given in the letter dated 19^th August 2020, were unintelligible, unconvincing, contradictory thus, amounted to no reasons.
9. The petitioner admitted that she received reasons on why she was not admitted which was in compliance with article 47(2). The respondent’s reasons for not admitting the petitioner were also deposed in the affidavits filed in response to the petition. According to the respondent, although one had to meet the minimum admission requirements, that alone did not guarantee admission because admission is based on, among others, competition and merit. Applicants must also have Bachelor’s and Master’s degrees from a recognized university. The master’s degree should be of minimum 3.2 GPA on a 4-point scale.
10. The respondent argued that the petitioner did not also have a master’s degree. The petitioner however, maintained that she had completed her masters. Applications were submitted between May and July, 2020. The petitioner had not graduated then because she stated in the petition that she graduated on 26^th September 2020 while the academic committee met on 24^th July 2020 to consider 11 applications, including that of the petitioner. The committee recommended five (5) applications for admission rejecting six (6) applications, including that of the petitioner.
11. The petitioner’s application was reevaluated in August 2020 following intervention from the Dean, but her application was not accepted because she did not have a master’s degree by the time she submitted her application, a decision that was again communicated to her.
12. Whether one qualifies for admission to a particular degree is an internal matter to be decided by the institution concerned. In the petitioner’s case, it was up to the respondent to decide whether to admit her or not. It was a matter within the respondent’s internal rules and procedures which this court cannot interfere with or direct the respondent who to admit and who not to admit. The court would only come in if it was demonstrated that the internal rules were violated.
13. Similarly, whether the petitioner had a master’s degree or not is a question of fact because she admitted in her own pleadings, that she graduated on 26^th September 2020. Applications were submitted earlier than that and they were evaluated in July and August 2020.
14. Although the petitioner argued that she had a master’s degree since her certificate is dated 18^th April 2020, the respondent clarified that students complete their academic studies at different times of the year and their certificates usually indicate the dates when they completed academic programs. That was why the petitioner’s certificate indicated the date she completed her academic program.
15. As earlier stated, academic issues being internal matters for universities, are best resolved by those institutions. Courts are ill placed to direct those institutions how to manage their academic affairs including admissions to their academic programs. The respondent’s explanation that the program was competitive and that the petitioner did not have a master’s degree as some of the reasons why she was not admitted for PhD could not be considered unintelligible reasons as the petitioner argued.
16. It is also important to appreciate, that there were 11 applications and only 5 were accepted, leaving out majority of the applicants, including the petitioner. I do not agree with the petitioner that the respondent’s reasons for not admitting her were unintelligible, inadequate or unjustified.

Discrimination

1. The petitioner again argued that failure to admit her was discriminatory and victimization since one of her colleagues was admitted yet she was not. The respondent denied discriminating against the petitioner, or victimizing her. The respondent pointed out that the petitioner had been its student at both undergraduate and graduate studies and she had not been discriminated against or victimized. Regarding admission one of the petitioner’s colleagues, the respondent argued that that applicant had posted the highest grades at masters and submitted the best research proposal.
2. Article 27 (1) guarantees everyone equality before the law and the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
3. Article 27(4) prohibits the Sate from direct or indirect discrimination on any grounds, including race, sex, pregnancy, mental status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 27(5) prohibits a person from directly or indirectly discriminating against another person on any ground including those listed in article 27(4). The constitution uses the word, “including” which means the prohibited grounds of discrimination are not conclusive. The constitution thus, abhors all forms of discrimination and prohibits both the State and other persons from subjecting another person to both direct and indirect discrimination on any grounds.
4. In peter K Waweru v attorney General [2006] eKLR, the court defined discrimination to mean:

[A]ffording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

1. In Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR, the court added that:

[28]. [D]iscrimination…is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based on such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups.

Discrimination is the unjust or prejudicial treatment of different categories of people, based on the prohibited grounds of, among others, ethnicity, age, sex and disability.

1. The petitioner argued that the decision not to admit her was discriminatory and victimization, a claim the respondent denied. The petitioner did not demonstrate why she thought she was discriminated against. 11 people submitted application. 5 were accepted and 6 were not admitted. The respondent reserves the right of admission even where minimum requirements have been met this being an internal process. The respondent should not, however, violate anyone’s rights.
2. The respondent explained that admission criteria for any of its programs is structured to take into account various aspects such as merit, competitiveness, availability of supervisory resources, research proposals, among others. The academic committee considered and evaluated the applications based on the respondent’s established criteria. The petitioner did not show that the considerations applied were in any way discriminatory or had a discriminatory effect. Where a party alleges discrimination, there must be evidence that his/her treatment was constitutionally forbidden or had a discriminatory effect.
3. As the court stated in James Nyasora Nyarangi & 3 others v Attorney General [2008] eKLR, “discrimination that is forbidden by the constitution involves an element of unfavourable bias. Thus, firstly unfavourable bias must be shown by the complainant; and secondly, the bias must be based on the grounds set in the constitution.”
4. What is prohibited is unfair discrimination namely, treating people who are inherently equal in dignity differently and in a way that impairs their fundamental dignity as human beings.
5. In this petition, the petitioner did not demonstrate that she was unfairly and differently treated to amount to discrimination. In her pleadings she stated that in the letter dated 19^th August 2020, the respondent explained that the “decision (not to admit her) was not a negative assessment of her academic credibility, interest or ability.” The respondent was conscious thar its actions should not in any way cause prejudice to an applicant.  In this regard, the petitioner did not demonstrate discrimination or that she was victimized and, if so, how.

Legitimate expectation

1. The petitioner again argued that the respondent violated her legitimate expectation. She posited that having applied for admission, she legitimately expected that she would be admitted and, if not, she would be given intelligible reasons why she was not admitted. The respondent denied that the petitioner had a legitimate expectation, or that it was violated.
2. Legitimate expectation arises when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation. (See Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR)).
3. In Canada (Attorney General) v Mavi, 2011 SCC 30 [2011] 2 SCR 504, the Supreme Court of Canada stated:

[68] Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.  Proof of reliance is not a requisite…It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking.

1. The court pointed out that government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement. That means, representations made under private law, can amount to legitimate expectation thus, capable of enforcement.
2. Addressing the same issue in Keroche Industries Limited v Kenya Revenue Authority & 5 others [2007] eKLR, the court stated:

Legitimate expectation is based not only on ensuring that legitimate expectations by the parties are not thwarted, but on a higher public interest beneficial to all…which is, the value or the need of holding authorities to promises and practices they have made and acted on and by so doing upholding responsible public administration.

The court emphasised that legitimate expectation enables people affected to plan their lives with a sense of certainty, trust, reasonableness and reasonable expectation.

1. Legitimate expectation arises from an express promise given by or on behalf of a body or authority, or from existence of a regular practice which a party can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the body or authority. Legitimate expectation may also arise in private law where a contracting body has made a promise to act in a certain manner.

1. The petitioner did not argue that the respondent had made a promise that an application for admission to PhD would succeed to be deemed to give rise to legitimate expectation. The argument, as I understood it, was that she had an expectation that she would be admitted and, if not, she would be given intelligible reasons for non -admission.
2. The court has already adverted to the issue of giving reasons. At the risk of repeating, the respondent gave the petitioner reasons in the letter of 19^th August 202 which the petitioner has acknowledged. On the same day, the petitioner sent an email to the Dean, School of Humanities and Social Sciences seeking clarification and assistance. Although the petitioner argued that the email did not elicit a response, the respondent contended that the petitioner’s application was reevaluated but once again she did not make it and reasons were given to her.
3. First, there was no legitimate expectation that the petitioner would be admitted. For that reason, the respondent could not violate non-existent legitimate expectation. In any case, the respondent gave written reasons to the petitioner why she was not admitted thus, discharged its obligations as required by article 47(2) of the constitution. The petitioner may not have liked the reasons for, in her view, being unintelligible. They were reasons nonetheless. In the circumstances, I am unable to agree with the petitioner that the respondent violated her legitimate expectation.

Conclusion

1. Having considered the petition, the response and arguments by parties, and upon considering the constitution and the decisions relied on, the conclusion I come to, is that the respondent did not violate the petitioner’s rights and fundamental freedoms. The respondent gave reasons why the petitioner was not admitted. There was neither discrimination not victimisation against the petitioner. The respondent did not also violate the petitioner’s legitimate expectation.

Disposal

1. The petition is declined and dismissed. Each party to will bear their own costs.

Dated and delivered at Nairobi this 28^th Day of January 2025

                                            E C MWITA

                                              JUDGE