REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL PETITION NO.473 OF 2016
IN THE MATTER OF ARTICLES 1,2,3(1), 7(3) 10, 19, 20(4) (a), 21, 22,23, 25(a) 27(1)(2(4)(5) & (6, 28,29 (f), 43, 46, 48, 54, 159, 165 (3)(b), 258,259 & 260 OF CONSTITUTION OF KENYA
AND
IN THE MATTER OF RULES 3, 4,10,11 AND 20 OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 24(a), 27 (1) & (4), 28,29 (f), 43 (f), 46 (d) AND 54 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTIONS 18 (2), 21, 22, & 25 OF PERSONS WITH DISABILITY ACT, CHAPTER 133 OF THE LAWS OF KENYA
BETWEEN
GATHONI KIMANI………………………….………………..PETITIONER
AND
UNITED STATES INTERNATIONAL
UNIVERSITY-AFRICA……………………………………..RESPONDENT
COMMISSION FOR UNIVERSITY
EDUCATION…….…………………………….……..INTERESTED PARTY
JUDGMENT
INTRODUCTION
1. The Petition before the court for determination is dated 14th November 2016. The Petitioner is an adult female of sound mind, a Kenyan national and an Advocate of the High court of Kenya.
2. The Respondent is a body corporate established as a university, an institution of higher learning and granted a charter under the provisions of the Universities Act, Cap 210B of the Laws of Kenya (now repealed).
3. The interested party is a body corporate established by an Act of Parliament, Universities Act, No.42 of 2012 as the Successor to the Commission for Higher Education which was established under Universities Act Cap 210B of 1985.
4. The Petition is supported by the Affidavit of the Petitioner dated 14th November, 2016.
5. The Petitioner prays for the following Orders;
a) A declaration that failure by the Respondent to maintain functional lifts and further failure to provide a ramp and other accommodation was discriminatory to the Petitioner on the ground of disability and health status.
b) A declaration that failure by the Respondent to maintain functional lifts and further failure to provide a ramp and other accommodation leading to the Petitioner being carried up the stairs in a degrading and inhumane manner violated her right to human dignity.
c) A declaration that failure by the Respondent to maintain functional lifts and further failure to provide a ramp and other accommodation was a violation of the Petitioner’s right to access educational facilities.
d) A declaration that the Respondent’s collective negligent actions from 10th August 2016 up to the filing of this Petition violated the Petitioner’s freedom and security of person and caused both physical and physiological torture.
e) An order for compensation for the contravention of the fundamental rights and freedoms of the Petitioner and for the mental anguish, psychological and physical torture she suffered before and after exams due to the unconstitutional acts of the respondent including:
i. That the Respondent be held liable for general damages for the inhuman and degrading treatment that was suffered in more than one instance by the Petitioner and for the discrimination she endured at the hands of the Respondent
ii. The respondent be held liable for exemplary, aggravated and punitive damages for the manner in which they have purported to handle this matter and for the inconvenience caused to the Petitioner on 10th August, 2016
f. An order that costs consequent upon his Petition be borne by the Respondent in any event.
6. The 1st respondent filed a Replying Affidavit dated 15th December, 2016 sworn by Prof Paul T. Zeleza. The Petitioner filed a Further Affidavit dated 3rd October, 2017.
THE PETITIONERS’ CASE
7. The Petitioners case is that on 10th August 2016, she was to sit for an exam which was scheduled to take place at the 1st floor of the Respondent’s science Centre. The petitioner arrived 40 minutes before the exam but realized that the elevator was still grounded despite several follow ups for repair of the elevator with the Respondent through emails.
8. The Petitioner deposes with the elevator inoperative; the only way up was through the stairs yet she was using crutches and one of her hand was bandaged. The Petitioner was not able to use the stairs. The petitioner deposes further that she made calls to the Respondent’s administration, but they went unanswered.
9. According to the Petitioner, the Respondent sent two ladies to carry her to the exam room. That in the process of being carried, the Petitioner states to have gone through untold pain and suffering due to her bodily injuries and she encountered humiliating and degrading treatment before and after she sat her exams.
10. According to the Petitioner, she went through emotional distress, humiliation, psychological and physical torture when she was carried upstairs, and it was the second time she was subjected to such inhumane treatment.
11. According to the petitioner, the Respondent violated her freedom from torture, cruel, inhuman, or degrading treatment and also violated her right to equality and the equal protection and benefit of the law and that the Respondent discriminated on her based on her health status and disability contrary to Article 27(5) of the constitution. The Petitioner claims further that her right to inherent dignity was also violated. The Petitioner also claims that the action by the Respondent violated her right to access education, her right to compensation for loss or injury arising from defects in goods or services.
12. The Petitioner deposes that the Respondent through it agents and or servants in a meeting in the Chancellor’s Boardroom on 22nd September conveyed their sincere and unreserved apology for the emotional distress the petitioner went through, however, the respondent has blatantly refused to put in remedial measures.
RESPONDENT’S CASE
13. The Respondent claims that the petitioner did not disclose all material facts. The respondent states that it holds students in high esteem and maintains high standards of service to the students ensuring they are treated fairly and with dignity.
14. According to the Respondent, the petitioner was to sit her exam from 6pm to 8pm at the 1st floor of the building. About ten (10) minutes into the examination, the course instructor realized the Petitioner was not in the exam room upon which he called her and found out that she was on the ground floor. The instructor then informed two female students to carefully assist the Petitioner into the exam room.
15. The Respondent deposes that the petitioner did not arrive to the exam room at 6:30 as alleged by the petitioner.
16. The respondent deposes that contrary to the Petitioner’s allegation, the Petitioner was given enough time to write her exam, she was not compelled to hand in her exam nether was she denied extra time. The Petitioner did not ask the course instructor to give her extra time. That the petitioner voluntarily submitted her paper before other students who were still writing.
17. According to the respondent, the lifts were working well apart from that time at the end of the semester.
18. The respondent avers that when the petitioner wrote an email on 8th August, 2016 at 5:41pm complaining about the breakdown of the lift, the respondent on 9th August 2016 informed the maintenance and support team. The lifts were then fixed.
19. According to the respondent, the lifts at the Science Centre are new model lifts which are very sensitive to any power fluctuations which was what caused the malfunctioning of the lifts on the day of the incident.
20. The respondent avers that long before the incident, the institution was made safe and accessible to handicapped students by installing ramps and providing specialized bathrooms and segregated parking spaces for persons with disabilities.
21. According to the respondent, there was no negligence on the part of the respondent since the lift was not mal-functional but was in a self-preservation mode due to power interruptions.
22. The respondent deposes that they tendered an apology to the petitioner and believed that the matter had been settled but what followed was a suit and articles in the newspapers were shocking to the respondent.
23. According to the respondent, the petitioner is not a person living with a disability according to a medical report under the students’ admission forms.
PETITIONER’S RESPONSE TO THE RESPONDENT’S CASE
24. According to the Petitioner, it is untrue that she was always treated with dignity and respect contrary to the respondent’s averments. She avers that it matters not what the instructor did after noticing the Petitioner was late, all that matters is that she was late due to the actions of the Respondent.
25. The Petitioner avers that she was not granted adequate time during the exam and thus other students had an unfair advantage over her in that they had enough time to settle down and gain composure to sit the paper and the Petitioner did not. That she handed her script out of fear that it would be left behind.
26. According to the petitioner, the respondent is trying to hide under the veil of technology because the malfunction of the lift was not caused by power outage as the lift had been in-operational for some time.
27. The Petitioner states that there was a meeting where the respondent admitted liability and apologized to the Petitioner, but the issue of quantum was not addressed. The Petitioner tried to ask the respondent for quantum, but the respondent refused therefore the petitioner instituted this petition.
28. The Petitioner avers that she suffers handicap which affects her mobility and requires routine medical procedures, and this condition was discovered after she had joined the University therefore, she did not tick the disabled section when joining the university because she was not suffering from the condition.
29. The Petitioner deposes that the Science Centre has ramps for use by the disabled persons, but the ramps are only on the ground floor and do not access the 1st floor and that was why she was carried up the stairs.
EVIDENCE
30. Petitioner’s evidence, PW1 was Gathoni Kimani the Petitioner herein. She adopted her supporting Affidavit and the further Affidavit as her evidence in the court which is as per the petitioner’s case above.
31. Respondent’s witnesses were Elijah Nyaga Munyi a lecturer and Leah Gichuki. They both filed witness statements 19th March, 2018. Mr. Elijah testified that he was the Petitioner’s lecturer who was invigilating exams on 10th August, 2016. The exam began at 6:00p.m. but around 6:10pm he realized that the Petitioner was not present and so he called her when she informed him that she was down stairs as the lift was not working. Mr. Elijah testified that he sent two girls to assist the Petitioner. That when the petitioner sat for the exam, she finished before 8pm which was the expected end of exam time.
32. That the Petitioner handed over her paper like all other students and left, though she was not the last to leave. He testified that the Petitioner had attempted all the questions. Mr. Elijah further testified that the Petitioner did not make any complaints to him that she had been mishandled by the two female students who helped her up the stairs.
33. Ms. Leah testified that she works in the maintenance Department at the United States International University-Africa as the clerk of works. Ms. Leah explained how if any lift at the University malfunctions the maintenance department receives communication on the same and the message is relayed to the lift contractor immediately, in this case the lift contractor for USIU is Schindler Company Limited. She testified that the lifts are powered by Kenya Power and Lighting Company as well as a standby generator and the University has also invested in a power stabilizer.
34. However, when there is frequent intermittent on/off power the lift has inbuilt features to block off bad power which is the scenario that played out in the present case. When the lift malfunctioned in the Science Centre, Schindler Limited established the cause as bad power. The lift at the Science Centre is a new model lift that is very sensitive to any form of power fluctuation. Ms. Leah testified that the power failure on the material day was unforeseeable and was not occasioned by the University’s negligence. That the lift was thereafter restored to its full function.
35. The parties filed written submissions. The Petitioner filed written submissions dated 3rd October 2017. The respondent filed submissions dates 6th December 2017 whilst the Interested Party filed Submissions dated 10th October, 2017. The Petitioner then filed further Submissions dated 15th December 2017.
ANALYSIS AND DETERMINATION
36. I have keenly read and understood the substance of this petition. it is not in dispute that the petitioner was a student at the Respondent school, it is not disputed that the lift was temporarily out of service on the 10th August, 2016 when the Petitioner was going to sit her final exams. From the petition and the affidavits before this Court, I adduce the following issues.
i. Whether the Respondents have violated any rights of the Petitioner
ii. What damages are available to the Petitioner?
Whether the Respondents have violated any rights of the Petitioner
37. The Petitioner has raised the following violations to her rights by the Respondents.
a. Discrimination on ground of disability and health status
b. Being treated in a degrading and inhumane manner violating her right to human dignity
c. Breach of right of access to educational facilities
d. Breach of freedom and security of person by causing physical and physiological torture
38. Article 20 of the Constitution provides that the Bill of rights applies to all law and binds all State organs and all persons. The 1st Respondent is therefore bound by the Bill of Rights and obligated to act in furtherance of the Rights.
39. The petitioner submitted that she was discriminated against contrary to Articles 27(4), 41(1) and (2)(b) and 54 of the Constitution. She also pleaded violation of section 15 of the Persons with Disabilities Act.
40. Persons with Disability Act (No. 14 of 2003) define ‘disability’ to mean ‘a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.’
41. The preamble and the provisions on national values and principles contained in Article 10 lays emphasis on dignity, human rights and social justice for all persons. In giving effect to the provisions of the Constitution and the Bill of Rights, the place of persons living on the margins of society must be protected as required.
42. Article 27 of the Constitution forbids discrimination on any of the grounds including disability. It provides, ‘The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.’
43. Apart from Article 27, Article 54 makes specific provisions for the application of the rights of persons with disability and it provides as follows;
54. (1) A person with any disability is entitled –
(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
(c)To reasonable access to all access to all places, public transport and information;
44. The Petitioner argued that she was discriminated upon since she was unable to access the 1st floor of the Science Centre where the exam was being conducted. She argued that the building did not have a ramp from ground floor to 1st floor of the building and since the lift was faulty, she had no way of accessing the 1st floor.
45. A Site visit was conducted on 22nd November 2017 at the USIU with all the parties present. The findings were that;
“The science Centre at the USIU is a one floor building that has a ramp from the parking lot that allows for access of the said building for all persons including persons with disability.
At ground level of the building there is a staircase that allows for access of the 1st floor of the building where some of the lecture halls are situated
There is also a working elevator (lifts) that allows access of the 1st floor of the building
At the backside of the lift, there is a ramp that allows for access of other lecture halls situated at the backside of the building.”
The conclusion of the site visit was that
“There is a functional lift from the ground level to the 1st floor and a staircase from the ground level from the 1st floor
There is a ramp that connects both the front side and back side of the building
There is no ramp that connects from the ground floor to the first floor”
46. The respondent argued that the elevator was faulty on that day due to technological settings. The Respondent stated that the lift is powered by electricity and a standby generator and a power system that the university has invested in. The respondent argued that where there are so many power interruptions, the elevator which is modern is set to stop on its own until the power interruptions are resolved.
47. It was the Petitioner’s contention that she is disadvantaged when the lift is not operational as she does not have alternative means to access the lecture rooms on the 1st floor. Persons without her disability can access the first floor using the staircase.
48. It was evident that the institution was aware that when there was ‘bad power’ the lift would stall. The pertinent question then, is the University being aware of this and proceeding to arrange to have examinations on the 1st Floor did it make accommodation for persons with disability to have access to the 1st floor ?
49. Whereas it is acknowledged that with machines like escalators, such dysfunctions are likely to happen, there rests a responsibility on the duty bearer to ensure that the decisions it makes do not discriminate any individual impacted by the decision. In this instance, the University was obligated to pose the question, will all students/ persons be able to access the 1st Floor, especially when the lift is not working?
50. Stairs have been provided as an alternative for those who elect not to use the lift or for use when the lift is not operational. This serves those individuals who are not physically challenged. There is no alternative provided for persons with a physical disability such as the Petitioner to access the 1st Floor.
51. For this reason, I find that the Petitioners right not to be discriminated against contrary to Article 27 of the Constitution of Kenya was violated. In arriving at this conclusion I am guided by the decision in Paul Pkiach Anupa &Anor Vs The Hon. Attorney General & Anor Nairobi High Court Petition No. 93 of 2011 [2012]eKLR in which Majanja J observed:
[40]…The Constitution also provides a window for enforcement and enrichment of the rights and freedoms of persons with disabilities through the application of international law principles, treaties and conventions Kenya has ratified. This is through the provisions of Article 2(5) and (6). Article 1 of the Convention on the Rights of Persons with Disabilities states that, “Discrimination on the basis of disability means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.
52. The other issue raised by the Petitioner is that she was treated in a degrading and inhumane way by being carried to class and this caused her embarrassment and violated her right to human dignity.
53. Article 28 of the constitution provides that: -
“Every person has inherent dignity and the right to have that dignity respected and protected”
Article 1 of the Universal Declaration of Human Rights, 1949 provides: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
54. Article 28 provides no definition of dignity. However, its role and importance as a foundational constitutional value has been emphasized in several cases. In the South African case of S v Makwanyane, O'Regan J pointed out that "without dignity, human life is substantially diminished" and pronounced the prime value of dignity in the following terms:-
“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in Chapter 3.”
55. A key element of the enjoyment of human rights is the recognition of the individual’s need to live as independently and autonomously as possible. This issue was addressed by the European Court of Human Rights in the case of Enver Sahin V Turkey Application No. 23065/2012. In that case in response to the Applicants request that the University make adjustments in the physical infrastructure to enable him to have access to the buildings, the University offered him a support person. The Court observed:
It is true that the instruments of international law recognise the provision of forms of human aid as one measure to ensure the personal mobility of persons with disabilities and to facilitate access to buildings (Articles 9 & 2 (e) and 20 (b) CRPD – see paragraph 25 above). However, the solution offered by the administration does not fit into this framework
because there is nothing in the casefile to convince the Court that the support in question was offered after a genuine assessment of the applicant’s needs and sincere consideration of its potential effects on his security, dignity and autonomy.
56. The petitioner has argued that her right to human dignity was violated when she was carried up the stairs causing her embarrassment and physiological torture. The Petitioner being carried upstairs stirred up different emotions in the petitioner and even though the lecturer sending the ladies to carry the petitioner upstairs acted in good faith, it still does not alleviate the violation that the Petitioner suffered as it disregarded her need to live as independently and autonomously as possible.
57. For these reasons I conclude that the applicants right to dignity was violated.
58. Upon realising that the Petitioner was unable to access the lecture room the course instructor organized for 2 female students to carry the Petitioner up the stairs. I have already found that this act was an infringement of her dignity. I do not however find that the Petitioner’s right to access to education was infringed upon. Notwithstanding the inconvenience, she did sit her exam.
59. The Petitioner also claims that her right to freedom of the person and freedom from torture were violated. I do not find that the actions complained of meet the threshold to constitute violation of these rights. In particular the Applicant did not meet the test laid out in the locus classicus Anarita Karimi vs Republic (No.1) (1979) 1 KLR 154, which is:
We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
60. For this reason prayer ( c) and ( d) of the Petition fail.
What damages are available to the petitioner
61. Article 23(3) of the Constitution provides that ‘In any proceedings brought under Article 22, a Court may grant appropriate relief , including-
a. A declaration of rights
b. An injunction
c. A conservatory order
d. A declaration of invalidity of any law that denies, violated, infringes, or threatens a right or fundamental freedom in the Bill of rights and is not justified under Article 24
e. An order for compensation; and
f. An order for judicial review
62. The petitioner claims an order of compensation and aggravated damages because of breach of her fundamental rights.
63. Mativo J (as he then was ) observed in MWK & Anor V Attorney General & 3 others [2017] eKLR
[116]…Aggravated damages are the special and highly exceptional damages awarded on a defendant by a court, when his/her conduct amounts to tortious conduct subjecting the plaintiff to humiliating and malicious circumstances. Additional damages are also awarded in situations where a plaintiff is subjected to distress, embarrassment, or humiliation. Aggravated damages are basically compensatory in nature and they are awarded for the aggravated damage that is caused to a plaintiff. Aggravated damages are determined on the basis of the intangible injury inflicted on a plaintiff. Intangible injury includes the pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of a defendant. When compared to punitive damages aggravated damages require proof of injury. Aggravated damages can be attained as additional compensation if the injured establishes that a breach caused mental distress. (emphasis mine)
64. In the instant case the Petitioner has not placed before the Court proof of injury, therefore this matter lends itself to the award of general damages.
65. At Para 117 and 118 of the M W K Case ( supra) , Mativo J stated
It is well settled that award of compensation is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. The quantum of compensation will, however , depend upon the facts and circumstances in each case. Award of damages entails excersie of judicial discretion which should be exercised upon reason and principle and not upon caprice or personal opinion.
66. In the instant case it has been established that the Plaintiff’s rights were infringed. Having considered the nature of the violation, the applicable law, the unique circumstances of this case, I find that an award of Kshs 100,000 would be reasonable in the circumstances
ORDERS
67. A declaration issues that the failure by the 1st Respondent to make appropriate accommodation for Petitioner if the lift malfunctioned was discriminatory to the Petitioner on the ground of disability and health status.
68. A declaration issues that the carrying of the Petitioner up the stairs on 10th August 2016 constituted a violation of her right to human dignity by the 1st Respondent
69. The 1st Respondent to compensate the Petitioner the sum of Kshs 100,000
70. No order as to Costs
Orders accordingly.
Dated, Signed and Delivered Virtually at Nairobi this 3rd day of March 2023.
P. NYAUNDI
JUDGE
Judgment read and delivered in the presence of:
No Appearance by the Parties
……Karani- Court Assistant