REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E009 OF 2025
IN THE MATTER OF ENFORCEMENT OF THE BILL OF RIGHTS UNDER, ARTICLES 2,3,10,19,20,21,22,23,27,43(1)(f), 47, 73, and165(3(, (b) OF THE CONSTITUTION OF KENYA 2010,
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 43(1)(f), AND 47 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF; THE FAIR ADMINSTRATIVE ACTION ACT, NO 4 OF 2015
AND
IN THE MATTER OF; THE KENYA UNIVERSITIES AND COLLEGUES CENTRAL PLACEMENT SERVICE (KUCCPS), AND ITS STATUTORY MANDATE UNDER THE UNIVERITIES ACT,2012
BETWEEN
AMINA ARBE CHENGO………………..…………1 st PETITIONER
RAMADHAN MOHAMMED ADISOMO………..2 nd PETITIONER
MARIA LUKE SAMUEL………………….………3 rd PETITIONER
ABDIRAHAMAN ABDI ADAN…………….….…..4 th PETITIONER
IKRAN ADAN SHELE…………………….…….….5 th PETITIONER
RUMANA SALAT HASSAN……………………..…6 th PETITIONER
MARJAN NOOR MOHAMMED………………..…7 th PETITIONER
ABDIRAHMAN IBRAHIM SALAH……………….8 th PETITIONER
ABDIRAHMAN ADAN ABDI………………………9 th PETITIONER
JILLO BORU WARIO………………………………10 th PETITIONER
VERSUS
THE KENYA UNIVERITIES AND COLLEGES CENTRAL PLACEMENT SERVICE (KUCCPS)………………1 st RESPONDENT
THE KENYA MEDICAL TRAINING COLLEGE…………………………….………………..2 nd RESPONDENT
THE ATTORNEY GENERAL……………………….3 rd RESPONDENT
JUDGMENT
A. BACKGROUND OF THE PETITION
1. The Petitioner’s filed this petition dated 13.05.2024 seeking for the following orders;
a. A declaration that the conduct of the 1 st and 2 nd respondents in the placement and admission of students to KMTC diploma and certificate programmes for 2025 intake was arbitrary, opaque, discriminatory, and not in line with the provisions of the law and the spirit of the 2010 constitution .
b. A declaration that the Petitioners rights under Articles 27, 43(1)(f), and 47 of the Constitution have been violated.
c. An order of Madamus compelling the 1 st and 2 nd respondents to forthwith on priority basis consider, process, and place the petitioners in the currently ongoing Kenya Medical Training college (KMTC) diploma or certificate intake , in respect of the specific programmes for which they duly applied and qualified for in the 1 st instance when they made their applications by virtue of their attained grades and cluster points, and to do so fairly, transparently and without discrimination or prejudice.
d. An Order of Prohibition restraining the respondents from conducting any future KMTC placement or admission process in a manner inconsistent with the constitution, the KUCCPS Act, or the fair Administration Action Act.
e. An Order directing to publish, disclose, and make available to the petitioners the full criteria, data, and placement methodology applied in the 2025 Kneya Medical Training College (KMTC) placement cycle, including a comprehensive explanation as to why the petitioners were not placed in the programmes for which they had duly applied and qualified, notwithstanding that the same programme were subsequently re advertised and the petitioners were not accorded an opportunity to apply again.
f. General and Exemplary damages for violation of the petitioners’ constitutional rights.
g. The costs of this petition and interest thereon from the date of filing suit until payment in full.
h. Any other orders this Honourable court may deem just and expedient to grant for the ends of justice
2. The said petition is supported by the grounds advanced on the face of the said petition and the supporting Affidavit of the 1 st Applicant, Amina Arbe Chengo dated 22.08.2025, where she depones that she had been authorized by her co petitioners and had their consent to swear the said affidavit on their behalf. It was their contention that all the petitioners were successful 2024 KCSE candidates and were eligible for placement to undertake diploma and certificate programs offered by the 2 nd respondent.
3. Pursuant to its statutory mandate the 1 st respondent had opened its online application portal for the 2025/2026 placement cycle on 14 th January 2025, and invited qualified KCSE candidates to apply for admissions for the courses offered by the 2 nd respondent. As a result, thereof they had applied for the relevant courses as follows;
APPLICANT
DETAILS OF APPLICATION
1 st Petitioner (Amina Arbe Chengo)
SCORE B+
Applied for Bachelor’s Degree in Pharmacy and Bachelor Degree in clinical medicine but placed to do Bachelor of Science degree in Chemistry.
Opted to apply to KMTC in Diploma in Health Records and Information Technology & Diploma in Health Insurance Management but was unfairly denied admission.
2 nd Petitioner (Ramadhan Mohammed Adisomo)
SCORE B (Plain)
Applied for placement into Diploma in Medical Social Work at KMTC Karuri & alternative of Diploma in Nutrition and Dietetics at KMTC Lodwar.
Outcome – Denied admission and blocked from reapplying.
3 rd Petitioner (Marian Luke Samuel)
SCORE B-(Minus)
Applied for Diploma in Medical Social Work at KMTC Kapenguria and an alternative of Diploma in Health and Information Technology at KMTC Siaya.
He was unfairly excluded from placement and blocked from re-applying.
5 th Petitioner (Ikran Adan Shele)
SCORE B (PLAIN)
Applied for Diploma in Occupational Therapy at KMTC Teso and Diploma in Medical Social Work at KMTC Kapenguria.
Application was disregarded and later blocked from reapplying.
6 th Petitioner (Rumana Salat Hassan)
SCORE B+
Applied for a Diploma in Clinical Medicine at KMTC Taveta and KMTC Makindu but was denied admission.
7 th Petitioner (Marjan Noor Mohammed)
SCORE B+
Applied for Diploma in Pharmacy.
Was denied admission and blocked from re-applying.
8 th Petitioner (Abdirahman Ibrahim Salah)
SCORE B (PLAIN)
Applied for Diploma in Medical Engineering at KMTC Eldoret and KMTC Meru.
Was denied admission and access to reapply.
9 th Petitioner (Abdirahman Adan Abdi)
SCORE B+
Applied for Diploma in Physiotherapy at KMTC Machakos.
Was denied placement and blocked from reapplying.
10 th Petitioner (Jillo Boru Wario)
SCORE B(Minus)
Applied for Certificate in Community Health Assistant at KMTC.
Was denied placement and blocked for reapplying.
4. Upon closure of the said portal, since they had all qualified for the courses applied for, they had a legitimate expectation that their application would be positively considered and the placement process be handled fairly, transparently and strictly on merit but unfortunately when the feedback was given in July 2025, they had been arbitrarily placed into unrelated degree programmes that they had neither applied for and/or selected. In August 2025 the 1 st respondent again did open its portal for course revision and they reapplied for the desired courses at KMTC, but again failed to secure desired outcome.
5. Finally on 1 st October 2025, the 2 nd respondent had independently opened its own admission portal for applications running up to 14 th October 2025, re advertising the very courses they had earlier unsuccessfully applied for, and when they attempted to apply for their courses, they were denied access to KUCCPS portal, while new applicants were admitted. Their physical follow up to the respondents’ offices in Nairobi to seek clarification bore no fruit. It was thus their contention that the 1 st and 2 nd respondents conduct amounted to discrimination, administrative injustice, and amounted to violated their right to legitimate expectation of fair administrative service and unfair exclusion contrary to Articles 27,43(1)(f), 47 and 10 of the Constitution of Kenya 2010.
6. As a result, they had lost out on educational opportunities, suffered financial hardship and psychological distress by being forced to defer their studies through no fault of their own. They therefore, urged the court to find that the respondents had failed in their statutory responsibility, and that their actions constituted a travesty in law. They therefore urged the court to allow the prayers sought in the petition filed.
B. REPLY BY 1 st RESPONDENT
7. In opposing this suit, the 1 st respondent relied on the replying affidavit dated 5 th November 2025, sworn by one Prof John Olouch , their in charge of its directorate of placement Coordination and Career Services Development, who confirmed that on diverse dates within the year 2025, they had opened their online portal for Universities and Colleges placement pursuant to its statutory mandate under the Universities Act, No 42 of 2012, categorically denied that it subjected the petitioners to any arbitrary or discriminatory placement since the process was conducted above board, transparently, fairly and in accordance with the placement policy and Procedure Guidelines.
8. Further he noted that the KUCCPS online system was governed by merit-based algorithm that objectively, evaluates, approves the available programmes, placement capacities and would then place the applicant to the desired courses based on merit and affirmative action. Any applicant while applying for their preferred programme would also expressly consent and indicate that in the event that he/she did not secure any of the preferred programmes, he/she would settle for an alternative programme to be selected on her behalf by the system based similar parameters.
9. The records held indicated that the all petitioner’s did access the KUCCPS application portal and successful submitted their application’s for consideration for placement to various degree/diploma programme’s in line with their KCSC performance and were placed as follows;
PETITIONER
KUCCPS COURSE PLACEMENT
Amina Arbe Chengo ( 1 st Petitioner)
Did not secure placement in preferred programmes and placed to pursue Bachelors of Science (Chemistry) Pwani University.
She subsequently applied for Inter Institution Transfer (IIT) and was transferred to Murang’a University of Technology to pursue Bachelor of Science in Public Health.
Ramadhan Mohammmed Adisomo ( 2 nd petitioner)
Marian Luke Samuel (3 rd Petitioner )
Rumana Salat Hassan
(6 th Petitioner) &
Abdirahman Adan Abdi ( 9 th Petitioner)
Applied and were successfully placed to their preferred courses namely; Bachelor of Education (Science), Bachelor of Psychology, Bachelor of Economics and Bachelor of Science (Applied Computer Science respectively).
They thereafter applied for KMTC programme and missed out due to limited capacity.
Ikran Adan Shele
(5 th Petitioner)
Marjan Noor Mohammed (7 th Petitioner)
Abdirahman Ibrahim Salah (8 th Petitioner)
and
Jillo Boru Wario (10 th Petitioner)
All applied to join KMTC, but were unsuccessful due to limited capacity. They made the applications to various degree programmes and were successfully placed.
10. The 1 st respondent reiterated their earlier averments that securing a degree, diploma or certificate programme was therefore not guaranteed solely upon making an application in the KUCCPS portal and/or meeting the minimum requirement alone but was a competitive process determined by the approved and available programmes and capacities, number of applications received, merit and affirmative action criteria and available capacity at each higher learning institution.
11. The petitioner’s legitimate expectation was therefore not defeated nor were they unfairly excluded without reason since the placement outcomes were communicated through the online portal and massage alerts sent to the respective applicant’s phone. Their actions were therefore not based on bad faith, administrative malice or discrimination as they had acted within their statutory mandate, guided by fairness, transparency, and meritocracy and in full compliance with the constitution, the University Act, and Fair Administrative Action Act.
12. Further, contrary to the petitioners averments, they had benefited fully from the placement process, as they were placed to their preferred programme of choice and therefore had no basis of claiming that their rights had been infringed under Articles 10, 27, 43(1),(f), and 47 of the Constitution of Kenya 2010. Their grievances, if any, related to dissatisfaction with placement outcomes rather than a violation of their constitutional rights and therefore had not raised any justiciable issue within the meaning of Article 22 of the Constitution of Kenya, 2010 .
13. In the circumstance, the petition as filed, was misconceived, devoid of merit, and they urged the court to dismiss the same as no evidence had been adduced to prove a violation of the petitioner’s rights.
14. The office of the Attorney General did enter appearance for both the 2 nd and 3 rd respondent, and their counsel Ms Gumato, informed the court that they would adopt and rely on the 1 st respondents Replying affidavit and Submissions to oppose this petition.
C. SUBMISSIONS
(i) The PETITIONERS SUBMISSIONS
15. The petitioners relied on their submission’s dated 9 th December 2025, where they reiterated that the respondents’ actions were discriminatory, opaque, and procedurally unfair thus infringed on their right to equality, education, fair administrative action and access to information. While they did not dispute that the KUCCPS system operates an online selection system, it was not sufficient for the respondents to claim objectivity without evidence demonstrating that the placement process adhered to the published criteria. Reliance was placed in the Supreme court case of Samuel Kamau Macharia Vs KCB (2012) eKLR , where it was emphasized that the mere existence of a policy or system did not shield administrative action from Constitutional scrutiny; what mattered most was whether the process was transparent, consistent and fair in execution.
16. Secondly consented alternative placement could also not be used/invoked to sanitize or legitimize the respondent’s arbitrary exclusion of the petitioners off their preferred courses, yet even when the same were re advertised, they still had been discriminated against without transparent and reasoned justification. See Kenya Vs Royal Media Services (2014) Eklr. They also urged the court to note that as part of their justification to deny them admission, the 1 st respondent had claimed, “ limited capacity ”, yet ironically still reopened the portal to admit more students.
17. Reliance was placed in the Supreme court case of John Harun Mwau Vs IEBC (2013) eklr, Judical Service Commission Vs Mbalu Mutave (2015) eKLR, Dry Associates Ltd Vs Capital Markets Authority (2012), and Kenya Human rights commission Vs Communication Authority (2018) Eklr where the courts had underscored that fairness entails disclosure of criteria used in decision making, transparency, reasoning for adverse decisions, and an opportunity to be heard. Public authorities had to remain accountable, and the courts retained the jurisdiction to examine whether the automation processes were applied consistently and fairly.
18. The petitioners stressed that their exclusion could not be justified based on capacity constrains alone, particularly where other candidates with similar qualifications were allowed to reapply and got the opportunity sought for. They had therefore been discriminated against thereby unjustifiably impeding their constitutional right to educational advancement, personal development, and the realization of their full potential. Reliance was placed in Gitobu Imanyara Vs Attorney General (2016) eKLR and Gatirau Peter Munya Vs Dickson Mwenda Kithinji (2014) eKLR, where the courts emphasized that conservatory and supervisory remedies are warranted where rights are threatened with irreparable harm and administrative action is opaque.
19. In conclusion, they urged they the court to find they had established that their rights were breached and urged the court to grant the declaratory orders, mandamus and prohibition orders sought. They further sought that the respondent be compelled to provide full disclosure of placement data and methodology used in order to restore accountability, transparency and fairness in the placement process.
(ii) THE 1 st RESPONDENT SUBMISSIONS
20. The 1 st respondent relied on their submissions dated 16 th December 2025, where they rehashed the facts pleaded and synthesized the issues arising as follows;
a) Whether they acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 of the constitution of Kenya, 2010.
b) Whether the Petitioners alleged legitimate expectation was unlawfully defeated and or whether their right to information and education under Articles 35, 43(1)(f) and 47 were infringed .
21. The 1 st respondent, did submit that the petitioners had not demonstrated that they were treated in a different manner from other applicants who were similarly qualified, as the placement decision was governed by an automated system/algorithm that applied uniform criteria based on programme capacity, applicants’ choices, merit and affirmative action- across all applicants. Further the re-opening of the portal in August 2025 for unplaced candidates did not amount to discriminatory exclusion, rather it was a rational administrative measure aimed at capacity optimization, where similar parameters were applied as the main placement. Reliance was placed in the case of Gichuru Vs Package Insurance Brokers Ltd ( Petition No 36 of 2019), {2021} KESC 12 (KLR), Where it was held that not every distinction amounts to discrimination; the impugned action must be shown to be arbitrary or unfair.
22. Regarding the point as to whether their action was admiratively lawful, reasonable and procedurally fair, it was important to note that the said right did not grantee entitlement to a favorable outcome. In this case, the placement was conducted lawfully pursuant to provisions of the University Act, No 42 of 2012 and the placement policy and procedure guidelines after which the placement outcomes were communicated through the official KUCCPS poral and systems alerts, which were the designated communication channels.
23. The demand for disclosure of proprietary system algorithms and internal scoring metrics went beyond what Article 47 of the constitution envisaged and the same could thus not be granted. Reliance was placed in Judicial service commission Vs Mbalu Mutava & Another {2015} eKLR to emphasize this point. Further, they pointed out that in the present petition, the placement guidelines provide that the said process would be competitive and subject to availability of capacity. Re advertisement therefore did not constitute a promised assurance of placement and the petitioners could not legitimately expect to be guarantee a slot. Reliance was placed in Republic Vs Kenya Revenue Authority, Ex parte; Shake Distributors Ltd (2012) eKLR , where it was held that there was no legitime expectation which could arise where discretion is expressly retained by law.
24. On whether the petitioners right to education and access to information had been violated, reliance was placed in Kenya school of law Vs Akomo & 4 Others ( Civil Appeal No E472 of 2021),{2022} KECA 1132 (KLR) , where the court held that access to education must be balanced against policy, capacity and regulatory considerations , and thus rejection of candidates on the said/set criteria did not constitute a violation of their constitutional rights or infringe on their right to education as provided for under Article 43(1),(f) of the Constitution of Kenya 2010 .
25. Finally the respondent also urged the court to note that the right to access information was not absolute and it had been held in Nairobi Law Monthly Vs Kenya Electricity Generating Company Ltd (2013) Eklr that information sought must be necessary for the exercise or protection of a right and the same maybe lawfully withheld where disclosure would undermine public interest or institutional integrity. The petitioners had failed to demonstrate how disclosure of detailed scoring matric or algorithm logic was necessary in protection of their fundamental rights and had therefore not established any violation in that regard.
26. Therefore the petition as filed had not disclosed any justiciable issue, since no constitutional violation had been demonstrated and/or established. They thus urged the court to dismiss the said petition with costs to the 1 st respondents.
D. DETERMINATION
27. This court has considered the Petition, the affidavit filed in support, and in opposition thereto. The court has also read and considered the submissions filed and the citations referred to. The issues which arise for determination are;
a) Whether the 1 st and 2 nd respondent acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 and 47 of the constitution of Kenya, 2010.
b) Whether the Petitioners rights under Articles 35 and 43(1)(f) were infringed.
c) Whether the prohibition order should issue and/or whether the petitioners are entitled to General and Exemplary damages for violation of their constitutional rights.
d) Who should bear the costs of this suit?
(i) Whether the1st and 2 nd respondent acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 and 47 of the constitution of Kenya, 2010.
28. The petitioner’s main argument is that the respondents’ actions to deny them admission into their preferred courses within KMTC were discriminatory, opaque, and procedurally unfair thus infringed on their right to equality, education, fair administrative action and access to information. Even when the portal was re-opened in August 2025, they still had been denied a chance to secure the said admission to their loss and detriment.
29. In response, the 1 st respondent clarified that they had carried out the placement in a transparent and open manner pursuant to its statutory mandate as envisaged under the Universities Act, No 42 of 2012, and categorically denied that it subjected the petitioners to any arbitrary or discriminatory placement since the process was conducted above board, transparently, fairly and in accordance with the placement policy and Procedure Guidelines, after which the placement outcomes were communicated through the official KUCCPS poral and systems alerts, which were the designated communication channels.
30. Discrimination is defined in the Black’s Law Dictionary 10 th edition as differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured . Article 27 of the constitution provides that;
Equality and freedom from discrimination .
27. ( 1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) 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.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
31. The court in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR on the right to equality and freedom from discrimination opined as follows:
“…what is equality and what is freedom from discrimination?’ The two terms have been largely defined under article 27(1) and (2)… in the case of Jacques Charl Hoffmann Constitution Court of South Africa it was held ;
“ At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in the society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against . The determining factor regarding, the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interests of the victim of the discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim…”
32. Proof of discrimination under Article 27 of the Constitution of Kenya (2010) requires establishing that a person was treated differently, directly or indirectly, based on grounds such as race, sex, health, or status, resulting in unequal protection or benefit of the law . The burden lies on the claimant to produce evidence demonstrating a prima facie case of unfair treatment before the burden shifts to the respondent to justify the distinction . At the same time, it is noted that the standard of proof in constitutional petition, assumes a higher level in respect of constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. In Supreme court Petition No 12 of 2019 Dr Samson Gwer & 5 Others Vrs Kenya Medical Research Institute & 3 Others ( 2013)eKLR It was held that;
(48)The petitioners’ case is set around the constitutional right of freedom from discrimination (Constitution of Kenya, 2010, Article 27). It is already the standpoint of this Court, as regards standard of proof, that this assumes a higher level in respect of constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. The explanation is that, virtually all constitutional rights-safeguards bear generalities, or qualifications, which call for scrupulous individual appraisal for each case . This is the context in which the rights-claim in the instant case, founded upon racial discrimination, is to be seen.
(51) In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional . Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.
33. The petitioners made general averments to being discriminated against by being arbitrarily assigned unrelated degree programmes which they had neither selected nor expressed any desire to pursue despite meeting the requisite minimum qualification. It was also their case that later in October 2025, when the portal was reopened for intake for the very same courses, they had applied for at KMTC, they were excluded from the said process, which in their view was deliberate, unjustifiable and discriminatory.
34. Unfortunately the facts herein do not support the petitioner’s contention that they have been discriminated against in any manner. The 1 st respondent has a statutory mandate as provided under the Universities Act, No 42 of 2012 to handle all of the several hundreds of thousands of admission application sent by students that qualify for university, college education and applies the same standard in assessment and placing all of the said students to their respective courses of choice in accordance with the placement policy and procedures guidelines.
35. The petitioners have not in any manner impeached the said process to show that other students were favoured over them and/or were subjected to a preferential treatment. To the contrary the 1 st respondent clearly explained the due process under taken using a merit-based algorithm that provided a uniform criteria and objectively approved the placements based on; programme capacity, applicant’s choices, merit, and affirmative action-across all applicants. The subsequent reopening of the said portal also did not divert from the same procedure was therefore was not discriminatory.
36. In addition the respondents’ averments as specified in the response to the petition giving individual data of the individual courses the petitioners successfully applied for and the successful placements made to various degree programmes did demonstrate that the exercise of individual choice within a uniform system was maintained and negates any claim of arbitrary exclusion or discrimination.
37. On the petitioners claim that their right under Article 47 of the Constitution and the Fair Administrative Actions Act, 2015 by acting arbitrarily and failing to provide reason for rejection, and locking the petitioners from reapplying.
38. The Constitution of Kenya 2010 entrenched the importance of fair administrative action and Article 47 (1) provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47 (3) mandated parliament to enact legislation to give effect to the rights in Article
[...truncated]
IN THE HIGH COURT OF KENYA AT MARSABIT
IN THE CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E009 OF 2025
IN THE MATTER OF ENFORCEMENT OF THE BILL OF RIGHTS UNDER, ARTICLES 2,3,10,19,20,21,22,23,27,43(1)(f), 47, 73, and165(3(, (b) OF THE CONSTITUTION OF KENYA 2010,
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 43(1)(f), AND 47 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF; THE FAIR ADMINSTRATIVE ACTION ACT, NO 4 OF 2015
AND
IN THE MATTER OF; THE KENYA UNIVERSITIES AND COLLEGUES CENTRAL PLACEMENT SERVICE (KUCCPS), AND ITS STATUTORY MANDATE UNDER THE UNIVERITIES ACT,2012
BETWEEN
AMINA ARBE CHENGO………………..…………1 st PETITIONER
RAMADHAN MOHAMMED ADISOMO………..2 nd PETITIONER
MARIA LUKE SAMUEL………………….………3 rd PETITIONER
ABDIRAHAMAN ABDI ADAN…………….….…..4 th PETITIONER
IKRAN ADAN SHELE…………………….…….….5 th PETITIONER
RUMANA SALAT HASSAN……………………..…6 th PETITIONER
MARJAN NOOR MOHAMMED………………..…7 th PETITIONER
ABDIRAHMAN IBRAHIM SALAH……………….8 th PETITIONER
ABDIRAHMAN ADAN ABDI………………………9 th PETITIONER
JILLO BORU WARIO………………………………10 th PETITIONER
VERSUS
THE KENYA UNIVERITIES AND COLLEGES CENTRAL PLACEMENT SERVICE (KUCCPS)………………1 st RESPONDENT
THE KENYA MEDICAL TRAINING COLLEGE…………………………….………………..2 nd RESPONDENT
THE ATTORNEY GENERAL……………………….3 rd RESPONDENT
JUDGMENT
A. BACKGROUND OF THE PETITION
1. The Petitioner’s filed this petition dated 13.05.2024 seeking for the following orders;
a. A declaration that the conduct of the 1 st and 2 nd respondents in the placement and admission of students to KMTC diploma and certificate programmes for 2025 intake was arbitrary, opaque, discriminatory, and not in line with the provisions of the law and the spirit of the 2010 constitution .
b. A declaration that the Petitioners rights under Articles 27, 43(1)(f), and 47 of the Constitution have been violated.
c. An order of Madamus compelling the 1 st and 2 nd respondents to forthwith on priority basis consider, process, and place the petitioners in the currently ongoing Kenya Medical Training college (KMTC) diploma or certificate intake , in respect of the specific programmes for which they duly applied and qualified for in the 1 st instance when they made their applications by virtue of their attained grades and cluster points, and to do so fairly, transparently and without discrimination or prejudice.
d. An Order of Prohibition restraining the respondents from conducting any future KMTC placement or admission process in a manner inconsistent with the constitution, the KUCCPS Act, or the fair Administration Action Act.
e. An Order directing to publish, disclose, and make available to the petitioners the full criteria, data, and placement methodology applied in the 2025 Kneya Medical Training College (KMTC) placement cycle, including a comprehensive explanation as to why the petitioners were not placed in the programmes for which they had duly applied and qualified, notwithstanding that the same programme were subsequently re advertised and the petitioners were not accorded an opportunity to apply again.
f. General and Exemplary damages for violation of the petitioners’ constitutional rights.
g. The costs of this petition and interest thereon from the date of filing suit until payment in full.
h. Any other orders this Honourable court may deem just and expedient to grant for the ends of justice
2. The said petition is supported by the grounds advanced on the face of the said petition and the supporting Affidavit of the 1 st Applicant, Amina Arbe Chengo dated 22.08.2025, where she depones that she had been authorized by her co petitioners and had their consent to swear the said affidavit on their behalf. It was their contention that all the petitioners were successful 2024 KCSE candidates and were eligible for placement to undertake diploma and certificate programs offered by the 2 nd respondent.
3. Pursuant to its statutory mandate the 1 st respondent had opened its online application portal for the 2025/2026 placement cycle on 14 th January 2025, and invited qualified KCSE candidates to apply for admissions for the courses offered by the 2 nd respondent. As a result, thereof they had applied for the relevant courses as follows;
APPLICANT
DETAILS OF APPLICATION
1 st Petitioner (Amina Arbe Chengo)
SCORE B+
Applied for Bachelor’s Degree in Pharmacy and Bachelor Degree in clinical medicine but placed to do Bachelor of Science degree in Chemistry.
Opted to apply to KMTC in Diploma in Health Records and Information Technology & Diploma in Health Insurance Management but was unfairly denied admission.
2 nd Petitioner (Ramadhan Mohammed Adisomo)
SCORE B (Plain)
Applied for placement into Diploma in Medical Social Work at KMTC Karuri & alternative of Diploma in Nutrition and Dietetics at KMTC Lodwar.
Outcome – Denied admission and blocked from reapplying.
3 rd Petitioner (Marian Luke Samuel)
SCORE B-(Minus)
Applied for Diploma in Medical Social Work at KMTC Kapenguria and an alternative of Diploma in Health and Information Technology at KMTC Siaya.
He was unfairly excluded from placement and blocked from re-applying.
5 th Petitioner (Ikran Adan Shele)
SCORE B (PLAIN)
Applied for Diploma in Occupational Therapy at KMTC Teso and Diploma in Medical Social Work at KMTC Kapenguria.
Application was disregarded and later blocked from reapplying.
6 th Petitioner (Rumana Salat Hassan)
SCORE B+
Applied for a Diploma in Clinical Medicine at KMTC Taveta and KMTC Makindu but was denied admission.
7 th Petitioner (Marjan Noor Mohammed)
SCORE B+
Applied for Diploma in Pharmacy.
Was denied admission and blocked from re-applying.
8 th Petitioner (Abdirahman Ibrahim Salah)
SCORE B (PLAIN)
Applied for Diploma in Medical Engineering at KMTC Eldoret and KMTC Meru.
Was denied admission and access to reapply.
9 th Petitioner (Abdirahman Adan Abdi)
SCORE B+
Applied for Diploma in Physiotherapy at KMTC Machakos.
Was denied placement and blocked from reapplying.
10 th Petitioner (Jillo Boru Wario)
SCORE B(Minus)
Applied for Certificate in Community Health Assistant at KMTC.
Was denied placement and blocked for reapplying.
4. Upon closure of the said portal, since they had all qualified for the courses applied for, they had a legitimate expectation that their application would be positively considered and the placement process be handled fairly, transparently and strictly on merit but unfortunately when the feedback was given in July 2025, they had been arbitrarily placed into unrelated degree programmes that they had neither applied for and/or selected. In August 2025 the 1 st respondent again did open its portal for course revision and they reapplied for the desired courses at KMTC, but again failed to secure desired outcome.
5. Finally on 1 st October 2025, the 2 nd respondent had independently opened its own admission portal for applications running up to 14 th October 2025, re advertising the very courses they had earlier unsuccessfully applied for, and when they attempted to apply for their courses, they were denied access to KUCCPS portal, while new applicants were admitted. Their physical follow up to the respondents’ offices in Nairobi to seek clarification bore no fruit. It was thus their contention that the 1 st and 2 nd respondents conduct amounted to discrimination, administrative injustice, and amounted to violated their right to legitimate expectation of fair administrative service and unfair exclusion contrary to Articles 27,43(1)(f), 47 and 10 of the Constitution of Kenya 2010.
6. As a result, they had lost out on educational opportunities, suffered financial hardship and psychological distress by being forced to defer their studies through no fault of their own. They therefore, urged the court to find that the respondents had failed in their statutory responsibility, and that their actions constituted a travesty in law. They therefore urged the court to allow the prayers sought in the petition filed.
B. REPLY BY 1 st RESPONDENT
7. In opposing this suit, the 1 st respondent relied on the replying affidavit dated 5 th November 2025, sworn by one Prof John Olouch , their in charge of its directorate of placement Coordination and Career Services Development, who confirmed that on diverse dates within the year 2025, they had opened their online portal for Universities and Colleges placement pursuant to its statutory mandate under the Universities Act, No 42 of 2012, categorically denied that it subjected the petitioners to any arbitrary or discriminatory placement since the process was conducted above board, transparently, fairly and in accordance with the placement policy and Procedure Guidelines.
8. Further he noted that the KUCCPS online system was governed by merit-based algorithm that objectively, evaluates, approves the available programmes, placement capacities and would then place the applicant to the desired courses based on merit and affirmative action. Any applicant while applying for their preferred programme would also expressly consent and indicate that in the event that he/she did not secure any of the preferred programmes, he/she would settle for an alternative programme to be selected on her behalf by the system based similar parameters.
9. The records held indicated that the all petitioner’s did access the KUCCPS application portal and successful submitted their application’s for consideration for placement to various degree/diploma programme’s in line with their KCSC performance and were placed as follows;
PETITIONER
KUCCPS COURSE PLACEMENT
Amina Arbe Chengo ( 1 st Petitioner)
Did not secure placement in preferred programmes and placed to pursue Bachelors of Science (Chemistry) Pwani University.
She subsequently applied for Inter Institution Transfer (IIT) and was transferred to Murang’a University of Technology to pursue Bachelor of Science in Public Health.
Ramadhan Mohammmed Adisomo ( 2 nd petitioner)
Marian Luke Samuel (3 rd Petitioner )
Rumana Salat Hassan
(6 th Petitioner) &
Abdirahman Adan Abdi ( 9 th Petitioner)
Applied and were successfully placed to their preferred courses namely; Bachelor of Education (Science), Bachelor of Psychology, Bachelor of Economics and Bachelor of Science (Applied Computer Science respectively).
They thereafter applied for KMTC programme and missed out due to limited capacity.
Ikran Adan Shele
(5 th Petitioner)
Marjan Noor Mohammed (7 th Petitioner)
Abdirahman Ibrahim Salah (8 th Petitioner)
and
Jillo Boru Wario (10 th Petitioner)
All applied to join KMTC, but were unsuccessful due to limited capacity. They made the applications to various degree programmes and were successfully placed.
10. The 1 st respondent reiterated their earlier averments that securing a degree, diploma or certificate programme was therefore not guaranteed solely upon making an application in the KUCCPS portal and/or meeting the minimum requirement alone but was a competitive process determined by the approved and available programmes and capacities, number of applications received, merit and affirmative action criteria and available capacity at each higher learning institution.
11. The petitioner’s legitimate expectation was therefore not defeated nor were they unfairly excluded without reason since the placement outcomes were communicated through the online portal and massage alerts sent to the respective applicant’s phone. Their actions were therefore not based on bad faith, administrative malice or discrimination as they had acted within their statutory mandate, guided by fairness, transparency, and meritocracy and in full compliance with the constitution, the University Act, and Fair Administrative Action Act.
12. Further, contrary to the petitioners averments, they had benefited fully from the placement process, as they were placed to their preferred programme of choice and therefore had no basis of claiming that their rights had been infringed under Articles 10, 27, 43(1),(f), and 47 of the Constitution of Kenya 2010. Their grievances, if any, related to dissatisfaction with placement outcomes rather than a violation of their constitutional rights and therefore had not raised any justiciable issue within the meaning of Article 22 of the Constitution of Kenya, 2010 .
13. In the circumstance, the petition as filed, was misconceived, devoid of merit, and they urged the court to dismiss the same as no evidence had been adduced to prove a violation of the petitioner’s rights.
14. The office of the Attorney General did enter appearance for both the 2 nd and 3 rd respondent, and their counsel Ms Gumato, informed the court that they would adopt and rely on the 1 st respondents Replying affidavit and Submissions to oppose this petition.
C. SUBMISSIONS
(i) The PETITIONERS SUBMISSIONS
15. The petitioners relied on their submission’s dated 9 th December 2025, where they reiterated that the respondents’ actions were discriminatory, opaque, and procedurally unfair thus infringed on their right to equality, education, fair administrative action and access to information. While they did not dispute that the KUCCPS system operates an online selection system, it was not sufficient for the respondents to claim objectivity without evidence demonstrating that the placement process adhered to the published criteria. Reliance was placed in the Supreme court case of Samuel Kamau Macharia Vs KCB (2012) eKLR , where it was emphasized that the mere existence of a policy or system did not shield administrative action from Constitutional scrutiny; what mattered most was whether the process was transparent, consistent and fair in execution.
16. Secondly consented alternative placement could also not be used/invoked to sanitize or legitimize the respondent’s arbitrary exclusion of the petitioners off their preferred courses, yet even when the same were re advertised, they still had been discriminated against without transparent and reasoned justification. See Kenya Vs Royal Media Services (2014) Eklr. They also urged the court to note that as part of their justification to deny them admission, the 1 st respondent had claimed, “ limited capacity ”, yet ironically still reopened the portal to admit more students.
17. Reliance was placed in the Supreme court case of John Harun Mwau Vs IEBC (2013) eklr, Judical Service Commission Vs Mbalu Mutave (2015) eKLR, Dry Associates Ltd Vs Capital Markets Authority (2012), and Kenya Human rights commission Vs Communication Authority (2018) Eklr where the courts had underscored that fairness entails disclosure of criteria used in decision making, transparency, reasoning for adverse decisions, and an opportunity to be heard. Public authorities had to remain accountable, and the courts retained the jurisdiction to examine whether the automation processes were applied consistently and fairly.
18. The petitioners stressed that their exclusion could not be justified based on capacity constrains alone, particularly where other candidates with similar qualifications were allowed to reapply and got the opportunity sought for. They had therefore been discriminated against thereby unjustifiably impeding their constitutional right to educational advancement, personal development, and the realization of their full potential. Reliance was placed in Gitobu Imanyara Vs Attorney General (2016) eKLR and Gatirau Peter Munya Vs Dickson Mwenda Kithinji (2014) eKLR, where the courts emphasized that conservatory and supervisory remedies are warranted where rights are threatened with irreparable harm and administrative action is opaque.
19. In conclusion, they urged they the court to find they had established that their rights were breached and urged the court to grant the declaratory orders, mandamus and prohibition orders sought. They further sought that the respondent be compelled to provide full disclosure of placement data and methodology used in order to restore accountability, transparency and fairness in the placement process.
(ii) THE 1 st RESPONDENT SUBMISSIONS
20. The 1 st respondent relied on their submissions dated 16 th December 2025, where they rehashed the facts pleaded and synthesized the issues arising as follows;
a) Whether they acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 of the constitution of Kenya, 2010.
b) Whether the Petitioners alleged legitimate expectation was unlawfully defeated and or whether their right to information and education under Articles 35, 43(1)(f) and 47 were infringed .
21. The 1 st respondent, did submit that the petitioners had not demonstrated that they were treated in a different manner from other applicants who were similarly qualified, as the placement decision was governed by an automated system/algorithm that applied uniform criteria based on programme capacity, applicants’ choices, merit and affirmative action- across all applicants. Further the re-opening of the portal in August 2025 for unplaced candidates did not amount to discriminatory exclusion, rather it was a rational administrative measure aimed at capacity optimization, where similar parameters were applied as the main placement. Reliance was placed in the case of Gichuru Vs Package Insurance Brokers Ltd ( Petition No 36 of 2019), {2021} KESC 12 (KLR), Where it was held that not every distinction amounts to discrimination; the impugned action must be shown to be arbitrary or unfair.
22. Regarding the point as to whether their action was admiratively lawful, reasonable and procedurally fair, it was important to note that the said right did not grantee entitlement to a favorable outcome. In this case, the placement was conducted lawfully pursuant to provisions of the University Act, No 42 of 2012 and the placement policy and procedure guidelines after which the placement outcomes were communicated through the official KUCCPS poral and systems alerts, which were the designated communication channels.
23. The demand for disclosure of proprietary system algorithms and internal scoring metrics went beyond what Article 47 of the constitution envisaged and the same could thus not be granted. Reliance was placed in Judicial service commission Vs Mbalu Mutava & Another {2015} eKLR to emphasize this point. Further, they pointed out that in the present petition, the placement guidelines provide that the said process would be competitive and subject to availability of capacity. Re advertisement therefore did not constitute a promised assurance of placement and the petitioners could not legitimately expect to be guarantee a slot. Reliance was placed in Republic Vs Kenya Revenue Authority, Ex parte; Shake Distributors Ltd (2012) eKLR , where it was held that there was no legitime expectation which could arise where discretion is expressly retained by law.
24. On whether the petitioners right to education and access to information had been violated, reliance was placed in Kenya school of law Vs Akomo & 4 Others ( Civil Appeal No E472 of 2021),{2022} KECA 1132 (KLR) , where the court held that access to education must be balanced against policy, capacity and regulatory considerations , and thus rejection of candidates on the said/set criteria did not constitute a violation of their constitutional rights or infringe on their right to education as provided for under Article 43(1),(f) of the Constitution of Kenya 2010 .
25. Finally the respondent also urged the court to note that the right to access information was not absolute and it had been held in Nairobi Law Monthly Vs Kenya Electricity Generating Company Ltd (2013) Eklr that information sought must be necessary for the exercise or protection of a right and the same maybe lawfully withheld where disclosure would undermine public interest or institutional integrity. The petitioners had failed to demonstrate how disclosure of detailed scoring matric or algorithm logic was necessary in protection of their fundamental rights and had therefore not established any violation in that regard.
26. Therefore the petition as filed had not disclosed any justiciable issue, since no constitutional violation had been demonstrated and/or established. They thus urged the court to dismiss the said petition with costs to the 1 st respondents.
D. DETERMINATION
27. This court has considered the Petition, the affidavit filed in support, and in opposition thereto. The court has also read and considered the submissions filed and the citations referred to. The issues which arise for determination are;
a) Whether the 1 st and 2 nd respondent acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 and 47 of the constitution of Kenya, 2010.
b) Whether the Petitioners rights under Articles 35 and 43(1)(f) were infringed.
c) Whether the prohibition order should issue and/or whether the petitioners are entitled to General and Exemplary damages for violation of their constitutional rights.
d) Who should bear the costs of this suit?
(i) Whether the1st and 2 nd respondent acted arbitrarily and or discriminatory to deny the petitioners admission into KMTC intake of 2025/2026 in violation of Article 27 and 47 of the constitution of Kenya, 2010.
28. The petitioner’s main argument is that the respondents’ actions to deny them admission into their preferred courses within KMTC were discriminatory, opaque, and procedurally unfair thus infringed on their right to equality, education, fair administrative action and access to information. Even when the portal was re-opened in August 2025, they still had been denied a chance to secure the said admission to their loss and detriment.
29. In response, the 1 st respondent clarified that they had carried out the placement in a transparent and open manner pursuant to its statutory mandate as envisaged under the Universities Act, No 42 of 2012, and categorically denied that it subjected the petitioners to any arbitrary or discriminatory placement since the process was conducted above board, transparently, fairly and in accordance with the placement policy and Procedure Guidelines, after which the placement outcomes were communicated through the official KUCCPS poral and systems alerts, which were the designated communication channels.
30. Discrimination is defined in the Black’s Law Dictionary 10 th edition as differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured . Article 27 of the constitution provides that;
Equality and freedom from discrimination .
27. ( 1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) 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.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
31. The court in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR on the right to equality and freedom from discrimination opined as follows:
“…what is equality and what is freedom from discrimination?’ The two terms have been largely defined under article 27(1) and (2)… in the case of Jacques Charl Hoffmann Constitution Court of South Africa it was held ;
“ At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in the society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against . The determining factor regarding, the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interests of the victim of the discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim…”
32. Proof of discrimination under Article 27 of the Constitution of Kenya (2010) requires establishing that a person was treated differently, directly or indirectly, based on grounds such as race, sex, health, or status, resulting in unequal protection or benefit of the law . The burden lies on the claimant to produce evidence demonstrating a prima facie case of unfair treatment before the burden shifts to the respondent to justify the distinction . At the same time, it is noted that the standard of proof in constitutional petition, assumes a higher level in respect of constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. In Supreme court Petition No 12 of 2019 Dr Samson Gwer & 5 Others Vrs Kenya Medical Research Institute & 3 Others ( 2013)eKLR It was held that;
(48)The petitioners’ case is set around the constitutional right of freedom from discrimination (Constitution of Kenya, 2010, Article 27). It is already the standpoint of this Court, as regards standard of proof, that this assumes a higher level in respect of constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. The explanation is that, virtually all constitutional rights-safeguards bear generalities, or qualifications, which call for scrupulous individual appraisal for each case . This is the context in which the rights-claim in the instant case, founded upon racial discrimination, is to be seen.
(51) In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional . Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.
33. The petitioners made general averments to being discriminated against by being arbitrarily assigned unrelated degree programmes which they had neither selected nor expressed any desire to pursue despite meeting the requisite minimum qualification. It was also their case that later in October 2025, when the portal was reopened for intake for the very same courses, they had applied for at KMTC, they were excluded from the said process, which in their view was deliberate, unjustifiable and discriminatory.
34. Unfortunately the facts herein do not support the petitioner’s contention that they have been discriminated against in any manner. The 1 st respondent has a statutory mandate as provided under the Universities Act, No 42 of 2012 to handle all of the several hundreds of thousands of admission application sent by students that qualify for university, college education and applies the same standard in assessment and placing all of the said students to their respective courses of choice in accordance with the placement policy and procedures guidelines.
35. The petitioners have not in any manner impeached the said process to show that other students were favoured over them and/or were subjected to a preferential treatment. To the contrary the 1 st respondent clearly explained the due process under taken using a merit-based algorithm that provided a uniform criteria and objectively approved the placements based on; programme capacity, applicant’s choices, merit, and affirmative action-across all applicants. The subsequent reopening of the said portal also did not divert from the same procedure was therefore was not discriminatory.
36. In addition the respondents’ averments as specified in the response to the petition giving individual data of the individual courses the petitioners successfully applied for and the successful placements made to various degree programmes did demonstrate that the exercise of individual choice within a uniform system was maintained and negates any claim of arbitrary exclusion or discrimination.
37. On the petitioners claim that their right under Article 47 of the Constitution and the Fair Administrative Actions Act, 2015 by acting arbitrarily and failing to provide reason for rejection, and locking the petitioners from reapplying.
38. The Constitution of Kenya 2010 entrenched the importance of fair administrative action and Article 47 (1) provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47 (3) mandated parliament to enact legislation to give effect to the rights in Article
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