REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
JUDICIAL REVIEW DIVISION
HCJR MISC NO. E109 OF 2023
IN THE MATTER OF AN APPLICATION BY JERRY WAMBANI FOR AN ORDER
OF MANDAMUS
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT,
CHAPTER 26 LAWS OF KENYA AND ORDER 53 OF THE CIVIL PROCEDURE
RULES, 2010, LAWS OF KENYA
AND
IN THE MATTER OF ARTICLES 22, 23 (3), 24, 47 AND 165 (3) (a) AND (6) OF THE
CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF
RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE
RULES, 2013
AND
IN THE MATTER OF UNIVERSITIES EDUCATION ACT, 2012
AND
IN THE MATTER OF ILLEGAL WITH-HOLDING OF JERRY WAMBANI’S
DIPLOMA CERTIFICATE
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015
-BETWEEN-
REPUBLIC APPLICANT
AND
MARIST INTERNATIONAL UNIVERSITY COLLEGE (A Constituent University College of Catholic University of Easter Africa)1STRESPONDENT
THE PRINCIPAL,
MARIST INTERNATIONAL UNIVERSITY.2NDRESPONDENT
DEPUTY PRINCIPAL ACADEMIC AFFAIRS,
MARIST INTERNATIONAL UNIVERSITY COLLEGE.............3RD RESPONDENT
THE REGISTRAR, ACADEMIC AFFAIRS
MARIST INTERNATIONAL UNIVERSITY COLLEGE4THRESPONDENT
JUDGMENT
1. The application that is before this court for determination is dated 16th October 2023.The Applicant is seeking for orders that: -
An Order of MAMDAMUS directed to the Respondents compelling the Respondents to issue the Applicant with his Diploma Certificate unconditionally;
2. The Costs of and occasioned by these proceedings be provided for.
3. It is supported by the Statutory Statement and the Verifying Affidavit sworn by the Applicant.
Brief facts
4. On 23rd August 2010 The Applicant was admitted to pursue a Diploma in Education (Arts) (Kiswahili and History) and subsequently a Degree of Bachelor of Education (Arts) in Marist International University College (MIUC), the 1st Respondent herein.
5. He started and completed his Diploma Studies and proceeded to enrol for his Degree Studies which he completed on 31st July 2019. Upon completion of the Degree he was issued with a Degree of Bachelor of Education (Arts) on 25th October 2019.However, he has never been issued with his Diploma Certificate, despite numerous follow-ups with the 1stRespondent.
6. 5. Pursuant to a letter dated 27th March 2023 the 2nd Respondent admits that the 1st Respondent awarded the Applicant a Degree of Bachelor of Education on 25th October 2019. However, it says that it cannot award the Applicant his Diploma Certificate because it does not have the power to award certificates to people who did not register and study for a particular programme.
7. Denying the Applicant his Diploma Certificate because he allegedly did not register and study for the programme is both irrational and illogical. This irrationality and unreasonableness is further compounded by other allegations such as that the Applicant was mercifully re-admitted to school and helped financially.
8. Having been admitted to the same institution to study a Diploma and thereafter a degree, and the 1stRespondent issued the Applicant with a Degree of Bachelor of Education (Arts) on 25th October 2019, he should have been issued with a Diploma.
9. The Learning System in Kenya is Sequential, and is structured into several levels, including pre-primary, primary, secondary, and tertiary education. Tertiary education in Kenya includes inter alia universities and colleges. Admission to universities and colleges can be based on KCSE exam results, and the cut-off points can vary depending on the institution and the chosen course of study. Alternatively, students who do not meet the cut-off points can enroll for diplomas or do some bridging courses to improve their academic qualifications and meet the admission requirements for degree programs. The pathway to a degree, where one did not initially get the minimum university cut-off points is clearly stratified as follows: Certificate; Diploma; Degree.
10. The above sequential learning system is clearly depicted on the 1stRespondents website being Bachelor of Education | Marist International University College - MIUC which lists the entry requirements, for any prospective student interested in pursuing a Bachelor of Education (Arts) as was the case for the Applicant:
a. Kenya Certificate of Secondary Education (KCSE) Mean Grade C+ (Plus) and C+ in the subjects of specialization or Diploma in Education or its Equivalent.
11. The 1st Respondent, admitted the Applicant to pursue a Diploma in Education (Arts) vide the Letter of Admission dated 23rd August 2010.
12. He had a legitimate expectation that on completion of his studies, he would be issued with a Diploma Certificate in Education (Arts) as he slowly but surely scaled the academic ladder.
13. After completing his Diploma Studies, he was issued with a Certificate in Pre-University Course dated 5th January 2011. When he followed up with the 1st Respondent, he was informed that his Diploma Certificate would swiftly follow the Certificate in Pre-University Course, and
14. this was the basis of him proceeding to enroll for a Degree of Bachelor of Education (Arts) at the same institution. In deed para 6 above lists the pre-requisites for doing a Degree in the 1st Respondent and a Certificate in Pre-University Course is not one of the requirements. Therefore, it goes without saying that the Applicant did not join the Degree Programme on the strength of that Certificate but on the strength of his Diploma.
15. The Respondent has been adamant in refusing to issue the Applicant with his Diploma Certificate.
16. The Applicant’s ability to secure gainful employment and move forward with his career aspirations have seriously been dampened due to the absence of his Diploma Certificate causing him untold suffering by the irrational and unreasonable actions of the Respondents with-holding his Diploma Certificate.
17. The 1st Respondent is accredited and a constituent College of the Catholic University of Eastern Africa and is responsible for conferring Diploma Certificates and Degree Certificates to students who meet its set standards.
18. It is his case that student has studied at the 1stRespondent, it is their legitimate expectation that upon completion of his studies, he would be conferred with a Diploma.
19. He is of the view that where a student has met all the set standards for the conferment of a Diploma or Degree, they should be awarded their Certificate.
20. He maintains that where an administrative action, as the one made by the Respondents to deny the Applicant his Diploma Certificate is made, it must be based on objective standards, to wit, that the Diploma Certificate has not been earned just yet.
21. Through a letter dated 27th March 2023, it is admitted that the Applicant was awarded a Degree Certificate. However the 1stRespondent purported to provide answers to the Applicant’s question as to why he has never been issued with his Diploma Certificate for the following:
a) Exam Malpractice
b) Forgery of Signature
c) Abusive messages to staff
d) Merciful re-admission to the University
e) Financial help to complete studies
f) Failure to register for a programme
22. The issues of exam malpractice; forgery of signature and Failure to register for a programme may hoodwink one to believe that the Applicant did not qualify for the Diploma Certificate, but that is quickly dispelled below. Before dispelling those issues, it is obvious that the other issues listed are all subjective issues that this Honourable Court cannot even delve into.
23. According to him, the issue of abusive messages to staff is a moral and therefore subjective issue; merciful readmission to the university is equal anchored on morality and cannot come within the purview of this Court; and finally, financial help also sounds like social responsibility and is also intertwined with morality, again these are very subjective issues that cannot be viewed using one lens and they leave a lot to be desired how they can form grounds for denying one his Diploma Certificate.
24. It is his case that the issues of exam malpractice; forgery of signature and failure to register for a programme which have been strategically placed to provide a justification for withholding the Applicant’s Diploma Certificate are not substantiated.
25. The Respondents want to have their cake and eat it and in the process they are being grossly irrational and unreasonable. Such irrationality and unreasonableness is expected when an Administrative body wants to have his cake and eat it.
26. Section 7 (2) (i) and (k) of the Fair Administrative Action Act provides that a decision is amenable to Judicial Review if it is irrational and unreasonable.
27. It is his case that without clearly stating what codes/policies the Applicant breached and what consequences ensued, then the Respondents are bound to be found to be irrational and unreasonable, considering that they have admitted that the Applicant was issued with a Degree Certificate. It seems obvious that the claimed transgressions are non-existent and if they existed (the Applicant maintains that they are non-existent), then perhaps they had been long been solved.
28. A quick look at the 1stRespondent’s websites, as above-stated shows that to study for its Degree Programme in Education, an Applicant must either possess a Kenya Certificate of Secondary Education (KCSE) Mean Grade C+ (Plus) and C+ in the subjects of specialization OR a Diploma in Education OR its Equivalent.
29. The Applicant only made the application to study for a Degree Programme on the strength of his Diploma Studies and was granted admission on that basis. He does not possess the other qualifications being a KCSE Mean Grade of C+ and C+ in the subjects of specialization. He has an admission Letter for an admission into the programme Diploma in Education and transcripts during his Diploma Studies.
30. Reliance is placed in the case of Douglas Moturi Nyairo v University of Nairobi [2018] eKLR.In that case, the Petitioner had been enlisted in the graduation list but was later removed because of a purported error during the admission process. The Respondent argued unsuccessfully that it erroneously admitted a student who had been previously expelled from the university. In similar breadth, the Respondents herein cannot purport to belatedly raise issues, real or apparent, concerning the Applicant when they admitted him for a Diploma Program, a Degree Program and even conferred him with a Degree Certificate. They must now issue him with his Diploma Certificate.
The Court held;
I find that if indeed it was a policy and/or tradition of the respondent not to admit students with past expulsion records, then nothing would have been easier than for the respondent to include a clause/requirement to that effect in the application form so as to give sufficient notice to any would-be applicants of the said policy/tradition. I further note that no material was placed before this court to support the respondent’s claim that it was their policy or commonwealth
31. 9
universities’ tradition not to admit students who had previously been expelled from the university
If anything fettered the issuance of the Diploma Certificate to the Applicant, it should have been clearly stated and clearly dealt with promptly. After all, the 1st Respondent is self-regulating.
32. It is quite unreasonable to raise unsubstantiated issues late in the day. In the Douglas Moturi Nyairo case above, the Court further held as follows at para 30:
Under the above circumstances, I find that the petitioner had the legitimate expectation that he would graduate and that he would at the end of his course be furnished with all his academic certificates and transcripts. I therefore find that it was unreasonable, unfair and unjust for the respondent to belatedly purport to ‘reject’ the petitioner’s application when he was already due to graduate on the basis that he was admitted in error following his previous expulsion.
33. The decision not to issue the Applicant with his Diploma Certificate lacks any plausible justification and is thus irrational and unreasonable. In the case of The Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designer (2018), it was stated that:
The test of Wednesbury unreasonableness has been stated to be that the impugned decision must be “objectively so devoid of any plausible justification that no reasonable body of persons could have reached it[26] and that the impugned decision had to be “verging on absurdity” in order for it to be vitiated.[27]This stringent test has been applied in Australia[28] where the Court held that in order for invalidity to be determined, the decision must be one which no reasonable person could have reached and to prove such a case required “something overwhelming.” It must have been conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt and when “looked at objectively, is so devoid of any plausible justification that no reasonable body of persons could have reached them.”
34. If the 1st Respondent admitted the Applicant for a Diploma in Education, proceeded to admit him for a Degree in Education and even conferred him with a Degree in Education, isn’t it
unreasonable to now turn around and state as it has stated in its letter dated 27th March 2023 that:
“This is all we can say about your client Mr Jerry Wambani. This university is accredited and a constituent College of the Catholic University of Eastern Africa. Like all universities worldwide, it does not have the power to award certificates to people who did not register and study for a particular programme”(Emphasis mine)
35. The Applicant humbly submits that this is the height of unreasonableness in the Wednesbury sense.
36. The Respondents do not have any valid justification for continuing to withhold his Diploma Certificate and the orders should be granted.
37. Section 27 of the Civil Procedure Act grants the Court the discretion to grant costs usually follow the events unless special circumstances present themselves.
38. This Application has been necessitated by the Respondents’ irrationality and unreasonableness. The Applicant is not a person of means, since he has never gotten gainful employment as the Respondents have withheld his Diploma Certificate for a period of more than thirteen (13) years since he completed the Diploma and more than (5) years since he completed his Degree. That he has mastered some resources to enable him approach this Honourable Court and pursue justice is testament to the fact that he is on the verge of breaking point, economically, and even mentally.
1ST, 2ND, 3RD AND 4TH RESPONDENTS case:
39. The Respondents have in response to the substantive motion field grounds of opposition together with a Replying Affidavit dated 3rdDecember, 2023 and sworn by DR. Mary Mutungi who submits that the purpose of an order of mandamus is to compel the performance of a public duty or to remedy an act contrary to or evasive of the law.
40. According to them, there is no public duty involved in this instance and the Applicant has not pointed to any statutory provision that imports a public duty for the issuance of the diploma. As such, the Applicant has not shown how any public duty has been breached.
41. They rely on the case of Republic v Jomo Kenyatta University of Agriculture and
Technology Ex parte Elijah Kamau Mwangi [2021] eKLRin which the court opined:-
It is notable that the ex parte Applicant has sought an orders of mandamus against the Respondent to compel them to accept his intent to submit his PHD Thesis for examination. The purpose of an order of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.
42. In this instance, the Applicant has not pointed to any public duty at all or any law that has been evaded by the Respondents.
43. The court in the above case of Republic v Jomo Kenyatta University of Agriculture and Technology Ex parte Elijah Kamau Mwangi [2021] eKLR did further state:-
It was noted by the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) KLR that even though Article 47 of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act, reveals an implicit shift of judicial review to include aspects of merit review of administrative action, the reviewing court has no mandate to substitute its own decision for that of the administrator.
Therefore, in granting an order of mandamus in the manner sought, this Court will also be usurping the roles of other public bodies that regulate academic programmes, which is a forbidden in judicial review. The ex parte Applicant in this respect cited various decisions including Kenya Medical Laboratory Technicians and Technologists Board & 4 others v Attorney General; Council of Legal Education
(Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties) (2020) eKLR and Council of Legal Education (Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties) (2020) eKLR where the court held that, it is the Commission for Higher Education that is tasked with ensuring that there exists uniform standards in the learning, accreditation, licencing and qualifications in the provision of university education in Kenya.
44. It is the Respondent’s case that a determination in this matter would require the court to conduct a merit-based review by looking at the substance and not the process of arriving at the decision. This should be done in a normal suit and not in a judicial review matter as the Applicant is seeking to do.
45. Since the Respondents have already decided not to issue the Applicant with a Diploma the grant of an order of Mandamus would essentially mean that the court would be substituting its own decision for that of the administrator.
46. The court will further be usurping the role of public bodies that regulate academic programmes. In this instance, the Commission of Higher Education is established under Section 3 of the universities Act, Cap 210B with Section 6 of the Act laying out the functions of the Commission.
47. Rule 18 (1) Universities (Establishment Of Universities) (Standardization, Accreditation And Supervision) Rules, 1989 provides that:-
18. Rights of accredited universities
Subject to rule 19, every university to which accreditation is granted under these Rules and the Act shall have full autonomy in the administration of its academic affairs and shall, so long as the same is not suspended or revoked, be under no obligation to accept instructions from any person or authority unless the same is expressly stipulated in its charter.
Notwithstanding the generality of paragraph (1) but subject thereto, an accredited university shall have the right—
to determine who may teach and what may be taught and how it may be taught; and(b) to decide which persons have attained such standards of proficiency as make them fit to be granted a certificate, diploma, degree or other award of the university.
48. The 1st Respondent thus has full autonomy to determine which persons have attained the requisite standards of proficiency and are fit to be granted with a Diploma and a decision has already been made by the 1st Respondent with regard to the Applicant.
ANALYSIS AND DETERMINATION
49. In the case of Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala,Miscellaneous Application Number 643 of 2005 (UR), it was decided that:
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law
before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards:
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department[1990] AC 876).”
50. The Applicant is seeking a writ of mandamus to compel the 1st and 2ndRespondents to do their public duty owed in law and in respect of which the ex parte applicant has a legally enforceable right and a legitimate expectation.
51. The case of Kenya Revenue Authority v Universal Corporation Ltd [2020] eKLR highlights the principles that guides the court on the application of the principle of legitimate expectation. A legitimate expectation arises where there is demonstration that:
a. a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/she/it would be accorded a hearing before the decision was taken;
b. a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of this e law;
c. the pubic authority whether by practice or promise committed itself to the legitimate expectation;
d. the representation was clear and unambiguous;
e. the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority;
f. the representation was reasonable and that the claimant relied upon it to its detriment;
g. there was no overriding interest arising from the decision maker’s action and representation;
h. the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same;
i. the promise related either to a past or future benefit;
j. Its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.
52. The court held that the doctrine of legitimate expectation was properly invoked and applied by the learned trial Judge in the circumstances of this appeal.
53. The principle of legitimate expectation is a tool for holding public bodies accountable for their actions.
54. The applicant tendered a lot of evidence to support his case. This called for an in depth or substantive analysis of the evidence. In the case of Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, the Court of Appeal held that:
a. “The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters? These are the kind of questions a Court hearing a matter by way of judicial review is concerned with and such Court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal Court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
55. The evidence calls for a merit analysis which I have refused to engage in.
56. In advancing his case the Applicant pointed out that through a letter dated 27th March 2023, the 1stRespondent purported to provide answers to the Applicant’s question as to why he has never been issued with his Diploma Certificate for the following:
a) Exam Malpractice
b) Forgery of Signature
c) Abusive messages to staff
d) Merciful re-admission to the University
e) Financial help to complete studies
f) Failure to register for a programme
The issues of exam malpractice; forgery of signature and Failure to register for a programme may hoodwink one to believe that the Applicant did not qualify for the Diploma Certificate, but that is quickly dispelled below. Before dispelling those issues, it is obvious that the other issues listed are all subjective issues that this Honourable Court cannot even delve into.
The Applicant’s case that “It seems obvious that the claimed transgressions are non-existent and if they existed (the Applicant maintains that they are non-existent), then perhaps they had been long been solved.”
It is quite unreasonable to raise unsubstantiated issues late in the day.
57. These are arguments issues or questions that cannot be resolved by this court without a merit analysis.
58. This court is guided by the finding of the Supreme Court in the case of Edwin Dande vs the IG where the court held Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others where it was held…
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and
justiciable right under Article 47 [see paragraph 78-page 301. The court concluded at paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
59. This court cannot delve into respondent’s realm of decision-making powers and I so hold.
60. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
61. A party who invites the court to determine whether or not a right has been violated and or been infringed in the procurement journey has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on in the heading of their suit.
62. In order to invoke the judicial review powers to do substantive or a merit analysis of his case the Applicant must demonstrate how his right was threatened or violated with precision so as to enable the Respondent to counter the allegation within Article 24 of the Constitution of Kenya.
63. The issues for determination must bear the question of whether the concerned right has been violated or not.
64. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation.
65. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice or damage.
66. An Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting a relief by way of compensation within Section 11 of the Fair Administrative Action Act. The merit analysis must not be done in vain.
67. The applicant must demonstrate through evidence that the Respondents violated the concerned rights or that the tendering process offended the law.
68. I find that the ex parte applicant has not fulfilled nor met the foregoing minimum standards that would call for a merit analysis and I so hold.
69. The Fair Administrative Action Act looks at the failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision and not the merits of the case.
70. In Judicial review focuses on finding out whether the impugned decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
71. In order to persuade the court to go beyond this scope, a litigant has to satisfy the court that its case falls within the exceptions as enunciated in The Edwin Dande Case. The Applicant has not satisfied the court that it qualifies as such.
72. This court is guided by Rule 18 (1) Universities (Establishment Of Universities) (Standardization, Accreditation And Supervision) Rules, 1989 which provides that:-
18. Rights of accredited universities
Subject to rule 19, every university to which accreditation is granted under these Rules and the Act shall have full autonomy in the administration of its academic affairs and shall, so long as the same is not suspended or revoked, be under no obligation to accept instructions from any person or authority unless the same is expressly stipulated in its charter.
Notwithstanding the generality of paragraph (1) but subject thereto, an accredited university shall have the right—
(b) to decide which persons have attained such standards of proficiency as make them fit to be granted a certificate, diploma, degree or other award of the university.
73. He also submitted that “If anything fettered the issuance of the Diploma Certificate to the Applicant, it should have been clearly stated and clearly dealt with promptly. After all, the 1st Respondent is self-regulating.”
74. It is my finding, and I so hold that the power to decide whether or not to award a diploma to the applicant rests in the hands of the respondent.
75. This court is not equipped with the tools of assessing whether or not an applicant qualifies to be awarded a diploma or not. This court cannot get into the Arena of determining or entertaining, whether or not the applicant met the standards that have been set by the respondent in assessing, whether or not, the applicant is qualified to be awarded the diploma as sought.
Disposition:
It is my finding, and I so hold that the applicant has not proven its case. This court cannot usurp the powers of the respondents nor replace the decision of the respondent with its own.
The powers of the respondents who is a statutory body are specific to it for a reason.
Order:
The application dated 16.10.23 is dismissed with costs.
Dated, signed and delivered virtually at Nairobi this 4th day of April, 2024
………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT AT NAIROBI
JUDICIAL REVIEW DIVISION
HCJR MISC NO. E109 OF 2023
IN THE MATTER OF AN APPLICATION BY JERRY WAMBANI FOR AN ORDER
OF MANDAMUS
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT,
CHAPTER 26 LAWS OF KENYA AND ORDER 53 OF THE CIVIL PROCEDURE
RULES, 2010, LAWS OF KENYA
AND
IN THE MATTER OF ARTICLES 22, 23 (3), 24, 47 AND 165 (3) (a) AND (6) OF THE
CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF
RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE
RULES, 2013
AND
IN THE MATTER OF UNIVERSITIES EDUCATION ACT, 2012
AND
IN THE MATTER OF ILLEGAL WITH-HOLDING OF JERRY WAMBANI’S
DIPLOMA CERTIFICATE
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015
-BETWEEN-
REPUBLIC APPLICANT
AND
MARIST INTERNATIONAL UNIVERSITY COLLEGE (A Constituent University College of Catholic University of Easter Africa)1STRESPONDENT
THE PRINCIPAL,
MARIST INTERNATIONAL UNIVERSITY.2NDRESPONDENT
DEPUTY PRINCIPAL ACADEMIC AFFAIRS,
MARIST INTERNATIONAL UNIVERSITY COLLEGE.............3RD RESPONDENT
THE REGISTRAR, ACADEMIC AFFAIRS
MARIST INTERNATIONAL UNIVERSITY COLLEGE4THRESPONDENT
JUDGMENT
1. The application that is before this court for determination is dated 16th October 2023.The Applicant is seeking for orders that: -
An Order of MAMDAMUS directed to the Respondents compelling the Respondents to issue the Applicant with his Diploma Certificate unconditionally;
2. The Costs of and occasioned by these proceedings be provided for.
3. It is supported by the Statutory Statement and the Verifying Affidavit sworn by the Applicant.
Brief facts
4. On 23rd August 2010 The Applicant was admitted to pursue a Diploma in Education (Arts) (Kiswahili and History) and subsequently a Degree of Bachelor of Education (Arts) in Marist International University College (MIUC), the 1st Respondent herein.
5. He started and completed his Diploma Studies and proceeded to enrol for his Degree Studies which he completed on 31st July 2019. Upon completion of the Degree he was issued with a Degree of Bachelor of Education (Arts) on 25th October 2019.However, he has never been issued with his Diploma Certificate, despite numerous follow-ups with the 1stRespondent.
6. 5. Pursuant to a letter dated 27th March 2023 the 2nd Respondent admits that the 1st Respondent awarded the Applicant a Degree of Bachelor of Education on 25th October 2019. However, it says that it cannot award the Applicant his Diploma Certificate because it does not have the power to award certificates to people who did not register and study for a particular programme.
7. Denying the Applicant his Diploma Certificate because he allegedly did not register and study for the programme is both irrational and illogical. This irrationality and unreasonableness is further compounded by other allegations such as that the Applicant was mercifully re-admitted to school and helped financially.
8. Having been admitted to the same institution to study a Diploma and thereafter a degree, and the 1stRespondent issued the Applicant with a Degree of Bachelor of Education (Arts) on 25th October 2019, he should have been issued with a Diploma.
9. The Learning System in Kenya is Sequential, and is structured into several levels, including pre-primary, primary, secondary, and tertiary education. Tertiary education in Kenya includes inter alia universities and colleges. Admission to universities and colleges can be based on KCSE exam results, and the cut-off points can vary depending on the institution and the chosen course of study. Alternatively, students who do not meet the cut-off points can enroll for diplomas or do some bridging courses to improve their academic qualifications and meet the admission requirements for degree programs. The pathway to a degree, where one did not initially get the minimum university cut-off points is clearly stratified as follows: Certificate; Diploma; Degree.
10. The above sequential learning system is clearly depicted on the 1stRespondents website being Bachelor of Education | Marist International University College - MIUC which lists the entry requirements, for any prospective student interested in pursuing a Bachelor of Education (Arts) as was the case for the Applicant:
a. Kenya Certificate of Secondary Education (KCSE) Mean Grade C+ (Plus) and C+ in the subjects of specialization or Diploma in Education or its Equivalent.
11. The 1st Respondent, admitted the Applicant to pursue a Diploma in Education (Arts) vide the Letter of Admission dated 23rd August 2010.
12. He had a legitimate expectation that on completion of his studies, he would be issued with a Diploma Certificate in Education (Arts) as he slowly but surely scaled the academic ladder.
13. After completing his Diploma Studies, he was issued with a Certificate in Pre-University Course dated 5th January 2011. When he followed up with the 1st Respondent, he was informed that his Diploma Certificate would swiftly follow the Certificate in Pre-University Course, and
14. this was the basis of him proceeding to enroll for a Degree of Bachelor of Education (Arts) at the same institution. In deed para 6 above lists the pre-requisites for doing a Degree in the 1st Respondent and a Certificate in Pre-University Course is not one of the requirements. Therefore, it goes without saying that the Applicant did not join the Degree Programme on the strength of that Certificate but on the strength of his Diploma.
15. The Respondent has been adamant in refusing to issue the Applicant with his Diploma Certificate.
16. The Applicant’s ability to secure gainful employment and move forward with his career aspirations have seriously been dampened due to the absence of his Diploma Certificate causing him untold suffering by the irrational and unreasonable actions of the Respondents with-holding his Diploma Certificate.
17. The 1st Respondent is accredited and a constituent College of the Catholic University of Eastern Africa and is responsible for conferring Diploma Certificates and Degree Certificates to students who meet its set standards.
18. It is his case that student has studied at the 1stRespondent, it is their legitimate expectation that upon completion of his studies, he would be conferred with a Diploma.
19. He is of the view that where a student has met all the set standards for the conferment of a Diploma or Degree, they should be awarded their Certificate.
20. He maintains that where an administrative action, as the one made by the Respondents to deny the Applicant his Diploma Certificate is made, it must be based on objective standards, to wit, that the Diploma Certificate has not been earned just yet.
21. Through a letter dated 27th March 2023, it is admitted that the Applicant was awarded a Degree Certificate. However the 1stRespondent purported to provide answers to the Applicant’s question as to why he has never been issued with his Diploma Certificate for the following:
a) Exam Malpractice
b) Forgery of Signature
c) Abusive messages to staff
d) Merciful re-admission to the University
e) Financial help to complete studies
f) Failure to register for a programme
22. The issues of exam malpractice; forgery of signature and Failure to register for a programme may hoodwink one to believe that the Applicant did not qualify for the Diploma Certificate, but that is quickly dispelled below. Before dispelling those issues, it is obvious that the other issues listed are all subjective issues that this Honourable Court cannot even delve into.
23. According to him, the issue of abusive messages to staff is a moral and therefore subjective issue; merciful readmission to the university is equal anchored on morality and cannot come within the purview of this Court; and finally, financial help also sounds like social responsibility and is also intertwined with morality, again these are very subjective issues that cannot be viewed using one lens and they leave a lot to be desired how they can form grounds for denying one his Diploma Certificate.
24. It is his case that the issues of exam malpractice; forgery of signature and failure to register for a programme which have been strategically placed to provide a justification for withholding the Applicant’s Diploma Certificate are not substantiated.
25. The Respondents want to have their cake and eat it and in the process they are being grossly irrational and unreasonable. Such irrationality and unreasonableness is expected when an Administrative body wants to have his cake and eat it.
26. Section 7 (2) (i) and (k) of the Fair Administrative Action Act provides that a decision is amenable to Judicial Review if it is irrational and unreasonable.
27. It is his case that without clearly stating what codes/policies the Applicant breached and what consequences ensued, then the Respondents are bound to be found to be irrational and unreasonable, considering that they have admitted that the Applicant was issued with a Degree Certificate. It seems obvious that the claimed transgressions are non-existent and if they existed (the Applicant maintains that they are non-existent), then perhaps they had been long been solved.
28. A quick look at the 1stRespondent’s websites, as above-stated shows that to study for its Degree Programme in Education, an Applicant must either possess a Kenya Certificate of Secondary Education (KCSE) Mean Grade C+ (Plus) and C+ in the subjects of specialization OR a Diploma in Education OR its Equivalent.
29. The Applicant only made the application to study for a Degree Programme on the strength of his Diploma Studies and was granted admission on that basis. He does not possess the other qualifications being a KCSE Mean Grade of C+ and C+ in the subjects of specialization. He has an admission Letter for an admission into the programme Diploma in Education and transcripts during his Diploma Studies.
30. Reliance is placed in the case of Douglas Moturi Nyairo v University of Nairobi [2018] eKLR.In that case, the Petitioner had been enlisted in the graduation list but was later removed because of a purported error during the admission process. The Respondent argued unsuccessfully that it erroneously admitted a student who had been previously expelled from the university. In similar breadth, the Respondents herein cannot purport to belatedly raise issues, real or apparent, concerning the Applicant when they admitted him for a Diploma Program, a Degree Program and even conferred him with a Degree Certificate. They must now issue him with his Diploma Certificate.
The Court held;
I find that if indeed it was a policy and/or tradition of the respondent not to admit students with past expulsion records, then nothing would have been easier than for the respondent to include a clause/requirement to that effect in the application form so as to give sufficient notice to any would-be applicants of the said policy/tradition. I further note that no material was placed before this court to support the respondent’s claim that it was their policy or commonwealth
31. 9
universities’ tradition not to admit students who had previously been expelled from the university
If anything fettered the issuance of the Diploma Certificate to the Applicant, it should have been clearly stated and clearly dealt with promptly. After all, the 1st Respondent is self-regulating.
32. It is quite unreasonable to raise unsubstantiated issues late in the day. In the Douglas Moturi Nyairo case above, the Court further held as follows at para 30:
Under the above circumstances, I find that the petitioner had the legitimate expectation that he would graduate and that he would at the end of his course be furnished with all his academic certificates and transcripts. I therefore find that it was unreasonable, unfair and unjust for the respondent to belatedly purport to ‘reject’ the petitioner’s application when he was already due to graduate on the basis that he was admitted in error following his previous expulsion.
33. The decision not to issue the Applicant with his Diploma Certificate lacks any plausible justification and is thus irrational and unreasonable. In the case of The Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designer (2018), it was stated that:
The test of Wednesbury unreasonableness has been stated to be that the impugned decision must be “objectively so devoid of any plausible justification that no reasonable body of persons could have reached it[26] and that the impugned decision had to be “verging on absurdity” in order for it to be vitiated.[27]This stringent test has been applied in Australia[28] where the Court held that in order for invalidity to be determined, the decision must be one which no reasonable person could have reached and to prove such a case required “something overwhelming.” It must have been conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt and when “looked at objectively, is so devoid of any plausible justification that no reasonable body of persons could have reached them.”
34. If the 1st Respondent admitted the Applicant for a Diploma in Education, proceeded to admit him for a Degree in Education and even conferred him with a Degree in Education, isn’t it
unreasonable to now turn around and state as it has stated in its letter dated 27th March 2023 that:
“This is all we can say about your client Mr Jerry Wambani. This university is accredited and a constituent College of the Catholic University of Eastern Africa. Like all universities worldwide, it does not have the power to award certificates to people who did not register and study for a particular programme”(Emphasis mine)
35. The Applicant humbly submits that this is the height of unreasonableness in the Wednesbury sense.
36. The Respondents do not have any valid justification for continuing to withhold his Diploma Certificate and the orders should be granted.
37. Section 27 of the Civil Procedure Act grants the Court the discretion to grant costs usually follow the events unless special circumstances present themselves.
38. This Application has been necessitated by the Respondents’ irrationality and unreasonableness. The Applicant is not a person of means, since he has never gotten gainful employment as the Respondents have withheld his Diploma Certificate for a period of more than thirteen (13) years since he completed the Diploma and more than (5) years since he completed his Degree. That he has mastered some resources to enable him approach this Honourable Court and pursue justice is testament to the fact that he is on the verge of breaking point, economically, and even mentally.
1ST, 2ND, 3RD AND 4TH RESPONDENTS case:
39. The Respondents have in response to the substantive motion field grounds of opposition together with a Replying Affidavit dated 3rdDecember, 2023 and sworn by DR. Mary Mutungi who submits that the purpose of an order of mandamus is to compel the performance of a public duty or to remedy an act contrary to or evasive of the law.
40. According to them, there is no public duty involved in this instance and the Applicant has not pointed to any statutory provision that imports a public duty for the issuance of the diploma. As such, the Applicant has not shown how any public duty has been breached.
41. They rely on the case of Republic v Jomo Kenyatta University of Agriculture and
Technology Ex parte Elijah Kamau Mwangi [2021] eKLRin which the court opined:-
It is notable that the ex parte Applicant has sought an orders of mandamus against the Respondent to compel them to accept his intent to submit his PHD Thesis for examination. The purpose of an order of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.
42. In this instance, the Applicant has not pointed to any public duty at all or any law that has been evaded by the Respondents.
43. The court in the above case of Republic v Jomo Kenyatta University of Agriculture and Technology Ex parte Elijah Kamau Mwangi [2021] eKLR did further state:-
It was noted by the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) KLR that even though Article 47 of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act, reveals an implicit shift of judicial review to include aspects of merit review of administrative action, the reviewing court has no mandate to substitute its own decision for that of the administrator.
Therefore, in granting an order of mandamus in the manner sought, this Court will also be usurping the roles of other public bodies that regulate academic programmes, which is a forbidden in judicial review. The ex parte Applicant in this respect cited various decisions including Kenya Medical Laboratory Technicians and Technologists Board & 4 others v Attorney General; Council of Legal Education
(Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties) (2020) eKLR and Council of Legal Education (Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties) (2020) eKLR where the court held that, it is the Commission for Higher Education that is tasked with ensuring that there exists uniform standards in the learning, accreditation, licencing and qualifications in the provision of university education in Kenya.
44. It is the Respondent’s case that a determination in this matter would require the court to conduct a merit-based review by looking at the substance and not the process of arriving at the decision. This should be done in a normal suit and not in a judicial review matter as the Applicant is seeking to do.
45. Since the Respondents have already decided not to issue the Applicant with a Diploma the grant of an order of Mandamus would essentially mean that the court would be substituting its own decision for that of the administrator.
46. The court will further be usurping the role of public bodies that regulate academic programmes. In this instance, the Commission of Higher Education is established under Section 3 of the universities Act, Cap 210B with Section 6 of the Act laying out the functions of the Commission.
47. Rule 18 (1) Universities (Establishment Of Universities) (Standardization, Accreditation And Supervision) Rules, 1989 provides that:-
18. Rights of accredited universities
Subject to rule 19, every university to which accreditation is granted under these Rules and the Act shall have full autonomy in the administration of its academic affairs and shall, so long as the same is not suspended or revoked, be under no obligation to accept instructions from any person or authority unless the same is expressly stipulated in its charter.
Notwithstanding the generality of paragraph (1) but subject thereto, an accredited university shall have the right—
to determine who may teach and what may be taught and how it may be taught; and(b) to decide which persons have attained such standards of proficiency as make them fit to be granted a certificate, diploma, degree or other award of the university.
48. The 1st Respondent thus has full autonomy to determine which persons have attained the requisite standards of proficiency and are fit to be granted with a Diploma and a decision has already been made by the 1st Respondent with regard to the Applicant.
ANALYSIS AND DETERMINATION
49. In the case of Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala,Miscellaneous Application Number 643 of 2005 (UR), it was decided that:
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law
before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards:
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department[1990] AC 876).”
50. The Applicant is seeking a writ of mandamus to compel the 1st and 2ndRespondents to do their public duty owed in law and in respect of which the ex parte applicant has a legally enforceable right and a legitimate expectation.
51. The case of Kenya Revenue Authority v Universal Corporation Ltd [2020] eKLR highlights the principles that guides the court on the application of the principle of legitimate expectation. A legitimate expectation arises where there is demonstration that:
a. a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/she/it would be accorded a hearing before the decision was taken;
b. a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of this e law;
c. the pubic authority whether by practice or promise committed itself to the legitimate expectation;
d. the representation was clear and unambiguous;
e. the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority;
f. the representation was reasonable and that the claimant relied upon it to its detriment;
g. there was no overriding interest arising from the decision maker’s action and representation;
h. the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same;
i. the promise related either to a past or future benefit;
j. Its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.
52. The court held that the doctrine of legitimate expectation was properly invoked and applied by the learned trial Judge in the circumstances of this appeal.
53. The principle of legitimate expectation is a tool for holding public bodies accountable for their actions.
54. The applicant tendered a lot of evidence to support his case. This called for an in depth or substantive analysis of the evidence. In the case of Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, the Court of Appeal held that:
a. “The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters? These are the kind of questions a Court hearing a matter by way of judicial review is concerned with and such Court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal Court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
55. The evidence calls for a merit analysis which I have refused to engage in.
56. In advancing his case the Applicant pointed out that through a letter dated 27th March 2023, the 1stRespondent purported to provide answers to the Applicant’s question as to why he has never been issued with his Diploma Certificate for the following:
a) Exam Malpractice
b) Forgery of Signature
c) Abusive messages to staff
d) Merciful re-admission to the University
e) Financial help to complete studies
f) Failure to register for a programme
The issues of exam malpractice; forgery of signature and Failure to register for a programme may hoodwink one to believe that the Applicant did not qualify for the Diploma Certificate, but that is quickly dispelled below. Before dispelling those issues, it is obvious that the other issues listed are all subjective issues that this Honourable Court cannot even delve into.
The Applicant’s case that “It seems obvious that the claimed transgressions are non-existent and if they existed (the Applicant maintains that they are non-existent), then perhaps they had been long been solved.”
It is quite unreasonable to raise unsubstantiated issues late in the day.
57. These are arguments issues or questions that cannot be resolved by this court without a merit analysis.
58. This court is guided by the finding of the Supreme Court in the case of Edwin Dande vs the IG where the court held Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others where it was held…
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and
justiciable right under Article 47 [see paragraph 78-page 301. The court concluded at paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
59. This court cannot delve into respondent’s realm of decision-making powers and I so hold.
60. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
61. A party who invites the court to determine whether or not a right has been violated and or been infringed in the procurement journey has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on in the heading of their suit.
62. In order to invoke the judicial review powers to do substantive or a merit analysis of his case the Applicant must demonstrate how his right was threatened or violated with precision so as to enable the Respondent to counter the allegation within Article 24 of the Constitution of Kenya.
63. The issues for determination must bear the question of whether the concerned right has been violated or not.
64. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation.
65. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice or damage.
66. An Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting a relief by way of compensation within Section 11 of the Fair Administrative Action Act. The merit analysis must not be done in vain.
67. The applicant must demonstrate through evidence that the Respondents violated the concerned rights or that the tendering process offended the law.
68. I find that the ex parte applicant has not fulfilled nor met the foregoing minimum standards that would call for a merit analysis and I so hold.
69. The Fair Administrative Action Act looks at the failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision and not the merits of the case.
70. In Judicial review focuses on finding out whether the impugned decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
71. In order to persuade the court to go beyond this scope, a litigant has to satisfy the court that its case falls within the exceptions as enunciated in The Edwin Dande Case. The Applicant has not satisfied the court that it qualifies as such.
72. This court is guided by Rule 18 (1) Universities (Establishment Of Universities) (Standardization, Accreditation And Supervision) Rules, 1989 which provides that:-
18. Rights of accredited universities
Subject to rule 19, every university to which accreditation is granted under these Rules and the Act shall have full autonomy in the administration of its academic affairs and shall, so long as the same is not suspended or revoked, be under no obligation to accept instructions from any person or authority unless the same is expressly stipulated in its charter.
Notwithstanding the generality of paragraph (1) but subject thereto, an accredited university shall have the right—
(b) to decide which persons have attained such standards of proficiency as make them fit to be granted a certificate, diploma, degree or other award of the university.
73. He also submitted that “If anything fettered the issuance of the Diploma Certificate to the Applicant, it should have been clearly stated and clearly dealt with promptly. After all, the 1st Respondent is self-regulating.”
74. It is my finding, and I so hold that the power to decide whether or not to award a diploma to the applicant rests in the hands of the respondent.
75. This court is not equipped with the tools of assessing whether or not an applicant qualifies to be awarded a diploma or not. This court cannot get into the Arena of determining or entertaining, whether or not the applicant met the standards that have been set by the respondent in assessing, whether or not, the applicant is qualified to be awarded the diploma as sought.
Disposition:
It is my finding, and I so hold that the applicant has not proven its case. This court cannot usurp the powers of the respondents nor replace the decision of the respondent with its own.
The powers of the respondents who is a statutory body are specific to it for a reason.
Order:
The application dated 16.10.23 is dismissed with costs.
Dated, signed and delivered virtually at Nairobi this 4th day of April, 2024
………………………………
J. CHIGITI (SC)
JUDGE