Brief Facts
The petition dated 12 th October 2021 is supported by the petitioner’s affidavit in support of even dated and Supplementary Affidavit dated 10 th December 2021.
1. The petition challenges the refusal by the 1 st respondent to accord him an opportunity to sit for the professional examination.
2. On this premise, the petitioner seeks the following reliefs: -
a) An order compelling the 1 st respondent to administer the petitioner herein with the professional examinations.
b) An order compelling the 1 st respondent to license him under the professional body within his area and scope of study, to wit; Public health Officer.
c) An order of prohibition restraining the 1 st respondent from further violating the petitioner’s rights and freedoms to join and be licensed as a Public Health Officer within the Republic of Kenya.
d) Costs of the petition.
e) Any other relief that the court deems fit to grant.
3. In opposition to the petition, the respondents filed their respective replying affidavits dated 9 th December 2021 and a Further Affidavit dated 23 rd July 2023 by the 1 st respondent and a Supplementary Affidavit dated 4 th July 2023 by the 2 nd respondent.
The Petitioner’s Case
4. According to the Petitioner, the 1 st respondent is a body corporate established under Section 3 of the Public Health Officers (Training, Registration and Licensing) Act, 2013. It is mandated to control, supervise the training, practice and employment of public health officers and technicians in Kenya.
5. The 2 nd respondent is a body corporate established as such under section 3 of the Kenyatta University Act (repealed) and Section 14 and 15 of the Universities Act No. 42 of 2012. It is mandated to admit, train and award degrees to qualified students.
6. The petitioner states that he was conferred with the Bachelor of Science degree in Environmental Health from the 2 nd respondent in the year 2017.
7. In the year 2020, the petitioner applied to the 1 st respondent to be allowed to sit the professional examination in order to be issued with a professional licence and paid the requisite charges. The 1 st respondent issued him with an index number PHOTC/B/0123/14. The Petitioner was to sit for the examinations in October 2020 but the 1 st respondent failed to include him in the examination list.
8. When the petitioner sought clarification from the 1 st respondent, he was informed that the Council was not permitting candidates who obtained their Bachelor Degree from the 2nd respondent’s City Campus as the same was neither approved nor accredited by the 1 st Respondent’s Council hence could not be permitted to sit for the professional examination until the 2 nd respondent complied with the Council’s requirements.
9. The Petitioner approached the 2 nd respondent but the 2 nd respondent sent him back to the 1 st respondent insisting that they had no role to play in professional examination certifications.
10. The petitioner avers that he has approached the 1 st respondent on numerous occasions without making any headway hence the institution of the current petition. The petitioner argues that the 1 st respondent has discriminated against him and has denied him the opportunity to sit for the professional examination.
11. He contends that the respondents have never issued him or the students suffering a similar fate a notice that the course they had paid for was not recognized by the Council for certification to the professional body of Public Health Officers.
12. The petitioner deponed that the 2 nd respondent conferred him degree confirmed he had acquired the requisite skills and qualification of Public Health and the same did not distinguish whether it was from the the Main Campus or the City campus. Further the 1 st respondent has never alerted innocent students such as him of the situation of the 2 nd respondent or caused the 2 nd respondent to stop offering the said degree from their city campus despite being mandated by Section 22 of the Public Health Officers Act, 2013 to supervise the training of Public Health Officers.
13. The petitioner contends that it is unfair that the 1 st respondent would refuse to license him and other innocent students when they have failed to carry out their supervisory role.
14. The petitioner argues that the 1 st respondent has in the past years licensed students from the 2 nd respondent’s City campus; some without examinations; who ended up holding office in the said council and it is thus prejudicial and unfair to him that they would deny him the chance to sit for professional examinations and discriminate against the said campus.
15. The petitioner contends that he has failed to progress in various aspects of his career due to the 1 st respondent refusal to give him a chance to sit for professional examinations. The petitioner contends that he stands to suffer loss and miss out on numerous opportunities due to the actions of the 1 st respondent.
The 1 st Respondent’s Case.
16. The 1 st respondent asserts that the 2 nd respondent was granted interim accreditation on 2 nd September 2016 which was to last for a period of 6 months upon which a further evaluation was to be conducted upon satisfaction of the conditions indicated in the report.
17. The 1 st respondent asserted that professional examinations are only administered to students who are registered in fully accredited training institutions which is not the position in the instant case as the petitioner was a student at the 2 nd respondent’s campus which was yet to receive full accreditation and to which they wrote a letter on 5 th September 2019, to the 2 nd respondent disengaging all graduates from unapproved campuses and it was therefore upon the 2 nd respondent to act in accordance with the said letter.
18. The 1 st respondent revealed that the 2 nd respondent wrote a letter dated 6 th November 2020 to them proposing a date for inspection for accreditation. On 11 th November 2020, the 2 nd respondent wrote a letter to them requesting for the rescheduling of the inspection date. Further on 30 th November 2020, the 2 nd respondent wrote a letter to them rescheduling yet again the date for inspection and the 1 st respondent further wrote to the 2 nd respondent on 10 th February 2021 rescheduling the date for inspection.
19. The 1 st respondent contends that they ultimately wrote to the 2 nd respondent on 20 th September 2021 advising them to notify their students to submit their applications for the professional assessment. The 1 st respondent states that on matters of accreditation; they do not deal with students directly.
The 2 nd Respondent’s Case
20. The 2 nd respondent is a public university established under Section 13 of the Universities Act Number 42 of 2012 . As a university, it enjoys academic freedom in the conduct of its internal and external affairs. The 2 nd respondent avers that it has its own bodies including the senate which are charged with the responsibility of ensuring that the programmes undertaken by its students meet the requisite academic standards and quality. Additionally, its programmes are accredited and approved by the Commission for University Education (CUE) established under section 4 of the Universities Act.
21. The 2 nd respondent asserts that the CUE has accredited it to offer the degree of Bachelor of Science (environmental Health). Thus the 2 nd respondent argues that the petitioner has no claim against it. Further, the petitioner has not demonstrated how his fundamental rights have been infringed as alleged.
22. The petitioner filed a Supplementary Affidavit dated 10 th December 2021 and depones that the 2 nd respondent never at any time between his years of study being 2013 and 2017 informed him as a student that the said campus was not accredited or had not met the various threshold expected of them by statute. The petitioner further states that he paid for his examination and was issued with an index number and exam card to sit for his emanations but the 1 st respondent declined to list him for the examinations in December 2020 thus denying him a chance to sit the examination without giving him a reason for his exclusion despite numerous enquiries only to cite much later that the 2 nd respondent was not accredited.
23. The petitioner argues that he was taken back and forth between the respondents’ offices which bore no fruit. The petitioner asserts that he is aware that the 1 st respondent has permitted other students from his year at graduation, 2017, graduates from City campus who applied in the similar manner as himself and got indexed and undertook the professional examination and are therefore currently certified.
24. The petitioner argues that the 1 st respondent failed to appreciate that he graduated in the year 2017 and the decision to act punitive and notify the 2 nd respondent that they would be disengaging all graduates from unapproved campus was a decision that was in no particular way to act retrospectively as he had already graduated. The petitioner argues that the averments made by the 1 st respondent is an admission of the violation of his rights and the letter dated 20 th September 2021 has been made four years after he graduated and one year after the 1 st respondent declined and discriminated against him to do the professional examination.
25. The1st respondent filed a Further affidavit dated 21 st July 2023 and depones that they notified the 2 nd respondent on the assessment of graduates from Kenyatta University Nairobi Campus in a letter dated 20 th September 2021. The said letter requested the 2 nd respondent to inform all their graduates about the decision and advise them to submit applications in a prescribed format for consideration for their professional assessment. The 1 st respondent avers that the said communication was made to the 2 nd respondent well before the petitioner presented the current petition. Thus, by the time the current petition was filed, the 1 st respondent states that it was already entertaining applications for examinations from students of the 2 nd respondent hence the petition was unwarranted and baseless.
26. The 1 st respondent further stresses that they have received several applications from the campus graduates for consideration and administered professional examinations to the candidates whose applications have been successfully considered.
27. The 2 nd respondent filed a Supplementary Affidavit dated 4 th July 2023 and states that the 1 st respondent wrote a letter dated 20 th September 2021 stating that their graduates were free to individually submit their application to the 1 st respondent in the prescribed format for professional assessment. Upon receipt of the applications, the 1 st respondent would consider the submitted applications with a view to processing them for professional assessment. Thus, the 2 nd respondent contends that the said letter acted as communication to the petitioner that he was free to apply for the assessment. The 2 nd respondent avers that currently their students are being registered by the 1 st respondent without any hitch.
28. The petition was disposed of by way of written submissions however the 1st respondent failed to put in any written submissions despite being given the last chance to do so.
Petitioner’s Submissions
29. The petitioner submitted that the 2 nd respondent took in students as himself and charged them fees to train for a degree course thus there was a legitimate expectation that after being awarded such decree, they would be evaluated and permitted to sit an examination to attain professional licensing. He argued that it was discriminatory that the 1 st respondent excluded him from the list of persons sitting for the professional examination citing accreditation reasons yet his colleagues who graduated in the same year, 2017, were administered with the professional examinations thus his rights to dignity, access of information and administrative function were violated. Reliance was placed in Nyagah & Another vs Egerton University & 3 Others [2024] KEHC 10024 where the learned judge deciding on a similar issue held and cited the case of Leonard Otieno vs Airtel Kenya Limited (2018) eKLR :-
The issue therefore is not that the right to education of the Petitioners was violated. Rather, my view is that the claim by the Petitioners pegged on the right to consumer protection. Article 46(1) states as follows:
Consumers have the right—
i. to goods and services of reasonable quality;
ii. to the information necessary for them to gain full benefit from goods and services;
iii. to the protection of their health, safety, and economic interests; and
iv. to compensation for loss or injury arising from defects in goods or services.
The question thus becomes, were the educational services offered to the Petitioners of reasonable quality? and they also get the necessary information for them to get the full benefit of the courses they trained for?
If the 1 st Respondent offered them educational courses that could not transit them into professional engineering skills because the body that is legally empowered to register professional engineers’ finds the training insufficient or dubious, aren’t petitioners entitled to protection as consumers?
In Leonard Otieno vs Airtel Kenya Limited (2018)eKLR , the Court made the following observation regarding consumer rights:
“46…Consumer rights litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the expanded Bill of Rights in our transformative and progressive Constitution by establishing its meaning through contested cases.
47. The general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the Petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. Differently put, the onus lies on the Petitioner to prove every element constituting his cause of action. This includes sufficient facts to justify a finding that his consumer rights were violated.
48. If, in contested proceedings, the consumer asserts that his rights have been violated, the court must make a finding whether, the consumer’s allegations are true…”
Training for years in a course that does not equip you with the relevant skills to gain professional qualifications is a matter of I find that the petitioner’s consumer protection rights were infringed for made to undergo a training that did not offer them a chance in the profession they were purportedly being trained for .
30. The petitioner argued that there existed wrangles between the 1 st and 2 nd respondent which has been demonstrated by the various letters they exchanged dated 2 nd , 5 th September 2019 and 6 th November 2020 which he has suffered in a manner that was unfair and discriminative since he had already completed his studies in 2017, two years before the problems began. Further, the graduates referred to are those of the year between 2019 – 2021, which period he was not a student of the 2 nd respondent.
31. The petitioner contended that the 2 nd respondent admitted in its supplementary affidavit that the failure to have the examination administered to them was due to their actions or inactions. The issue of accreditation was squarely in their purview thus it is liable. Further, the letter filed in court on 21/7/2023 and served upon him on 26/7/2023 shows that the respondents took 2 years to update him that he was permitted to do his examinations that he paid for in 2020 but raises the question what made him not to be considered to sit for his examinations in 2021.
32. The petitioner stressed the fact that his rights were violated by the respondents as his fellow school mates who graduated with him were permitted to carry on their exams and the same has culminated to further loss of opportunities on his end which still continues to date. The petitioner submitted that he cannot associate or seek employment as a public health officer without the 2 nd respondent issuing him with examinations and upon passing getting to be licensed with the professional body. The petitioner urged the court to award him damages based on the infringement of his rights which led to the loss of opportunities.
The 2 nd Respondent’s Submissions
33. The 2 nd respondent cited Section 5(1) of the Universities Act, 2012 and submitted that the Commission for University Education is the body that regulates universities and not the 1 st respondent. Thus it cannot bear liability for the 1 st respondent’s alleged actions in failing to allow the petitioner to sit for examinations. Furthermore, Section 5A(1) and (2) of the Universities Act, 2012 provides that where there is a conflict between the functions of the Commission for University education and those of the 1 st respondent, that conflict must be resolved in favour of the Commission for University Education.
34. The 2 nd respondent argued that the Commission for University Education had not raised any concern with the petitioner’s degree and further there is no evidence that the Commission for University Education has raised any issue with any of the academic programmes being offered by them. Pursuant to Section 24 of the Public Health Officers (Training, Registration and Licensing) Act, the 1 st respondent’s mandate is provided for which is licensing persons as public health officers. The 2 nd respondent argued that Section 24(3) of the Act requires the 1 st respondent to recognize all degrees in public health conferred by universities accredited under the Universities Act, 2012 and the same is reiterated in Section 22(6) of the same Act. The 2 nd respondent stressed that it is duly accredited under the universities Act, 2012 and hence its degrees in public health are to be recognized by the 1 st respondent automatically and as a matter of law.
35. The 2 nd respondent submitted that the 1 st respondent overreached its mandate and purported to inspect or accredit it does not clothe the 1 st respondent with a mandate outside statute. Reliance was placed in J. K. Chatrath & Another vs Shah Cedar Mart [1967] EA 93 where the Court of Appeal for Eastern Africa held:-
The doctrine that there can be no estoppel against a statute simply means that an estoppel cannot render valid something that the law makes invalid……
36. The 2 nd respondent argued that the petition is moot as the 1 st respondent wrote a letter to it dated 20 th September 2021 confirming that students from their campus were at liberty to apply for examinations and registration with the 1 st respondent, which is before the petition herein was filed. The said letter was filed in the instant court and served upon the petitioner on 9 th December 2021. Since December 2021, the petitioner has been sitting on his laurels instead of sitting for the examinations. The 2 nd respondent further submitted that its students have been sitting for examinations of the 1 st respondent before the suit was filed and throughout the life of this suit.
37. On the prayer that the petitioner be excused from examinations and other academic or professional requirements before being registered as a public health officer, the 2 nd respondent argued that the said prayer cannot be the role of the court and it ought to be left to the bodies established for that purpose. To buttress that point, reliance was placed in Daniel Ingida Aluvaala & Another vs Council of Legal Education & Another [2017] eKLR where Mativo J(as he then was) stated:-
Self-restraint adopted by the judiciary in exercising the power of review in academic matters has left certain academic decisions or regulations governing training and qualifications of professionals untouched. These areas are not disturbed by the courts unless the decisions under challenge are constitutionally so fragile and unsustainable. Academic decisions of the universities and other educational institutions requiring expertise and experience belong to this category. If the decision is legal and lawful, the reasonableness and propriety of the same may not be questioned by the courts. In other words, among the Wednesbury principles of ‘illegality’, ‘irrationality’ and ‘impropriety’, if the decision can get over the first test, it may withstand the other two tests, unless it is shockingly unreasonable, perverse or improper .
38. The court went on to say that
If this Court starts substituting its own opinion in place of opinion expressed by a body mandated and authorized by the law as discussed above, it shall not only be overstepping its mandate, but it will result in chaos. The court can only interfere if the Respondent acted outside their legal mandate or acted unreasonably.
39. The 2 nd respondent cited the decision in Dakianga Distributors (K) Ltd vs Kenya Seed Company Limited [2015] eKLR and argued that parties are bound by their pleadings and the petitioner sought in his submissions for damages or compensation which ought to be ignored.
Analysis and Determination
40. The main issues for determination are:-
a) Whether the petition meets the threshold for a constitutional petition.
b) Whether the Petition is moot
c) Whether the petitioner’s rights under Articles 19, 22, 27, 28, 35, 36, 43 and 47 of the Constitution were violated.
d) Whether the petitioner is entitled to the orders sought.
Whether the petition meets the threshold for a constitutional petition.
41. A Constitutional petition must meet threshold of specificity and precision in identifying the constitutional provisions that are alleged to have been violated or threatened and the manner in which the violation occurred. This principle was enunciated in the cerebrated case of Anarita Karimi Njeru vs Republic (1979) KLR where the court held as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.
42. The principle was articulated in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance (2014) eKLR where the court stated thus: -
We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.
The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.
43. It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. The Petitioner must set out not only the provisions of the Constitution that have been violated but the details on the description of the infringement to enable the respondent answer the allegations or complaints made against them.
44. In the instant case, the Petition was said to have been brought under Articles 19, 22(1), 27, 28, 35, 36, 43 and 47 but its substance is predicated on the rights guaranteed under Articles 27, 28, 35, 36, 43 and 47 of the Constitution of Kenya. The manner of violation was alleged to be the 1 st respondent refusal to administer examinations on him despite having satisfied the requirement of a degree from the 2 nd respondent. Further, that the 1 st Respondent has proceeded to administer the examination to other students that were similarly situated thereby discriminating against the Petitioner. I find as pleaded; the petition sufficiently satisfies the threshold of a constitutional petition.
Whether the instant Petition is moot
45. According to the deposition of the 1 st Respondent in the further affidavit dated 21/7/2023, by the time the Petitioner instituted this Petition on 12/10/21, the administration of the professional examination on the graduates of the 2 nd Respondent City Campus had ceased to be an issue as way back on 21/9/2021, the 1 st Respondent had already notified the 2 nd Respondent to advise its graduates that had been affected to submit their applications for consideration of the assessment.
46. Echoing this fact, the 2 nd Respondent in its Supplementary Affidavit of 4/7/2021 confirmed the 1 st Respondent wrote a letter to it 21/9/2021 requesting it to advise its students to submit their applications for consideration of professional assessment. Consequently, the 2 nd respondent equally contended that the petition is moot as the petition was filed long after the issue was resolved because the letter was filed in court and served upon the petitioner on 9 th December 2021 and thus since December, 2021, the Petitioner has been sitting on his laurels instead of applying to sit for the professional examinations. The 2 nd respondent further maintained that its students have been sitting for examinations of the 1 st respondent even before this suit was filed and continued to do so throughout the life of this suit.
47. The instant suit was filed on 12/10/2021. The 1 st Respondent had removed the hurdle that the students of the 2 nd Respondents City Campus students faced as at 21/9/2021. The 1 st Respondent was categorical that it does not communicate with the students directly on matters of the accreditation, but through the Training Institution, in this case, the 2 nd Respondent.
48. There is no evidence that when the 2 nd Respondent received the letter of 21/9/21 removing the disability that was placed on the Petitioner and his colleagues from sitting the professional examination that the decision was passed promptly passed to the Petitioner or the affected students by the 2 nd Respondent. The 2 nd Respondent in fact states that the letter was only brought to the Petitioner’s attention on 9/12/2021 when they served him with their response in this case.
49. The Petitioner cannot therefore fairly be blamed for filing this Petition on 12/10/21 as he was bereft of the information that the circumstances had changed. That blame squarely falls on the 2 nd Respondent for the failure to release that information to the affected students promptly.
50. However, it is apparent that the factual matrix upon which this complaint was premised had dissipated as the hurdle that obstructed the Petitioner from applying for and sitting the professional examination administered by the 1 st Respondent had been resolved administratively through the 1 st Respondent’s letter of 21/9/2021.
51. The current state of affairs thus invokes the doctrine of mootness. In Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR the Court of Appeal citing with approval the High Court decision of Daniel Kaminja & 3 others (Suing as Westland Environment Caretaker Group vs County Government of Nairobi (2019) eKLR explained the doctrine of mootness as follows:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact…
No court of law will knowingly act in vain … a Suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity…”
52. Equally, the Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 6 others [2017] eKLR stated as follows:
“… In an article entitled “Federal Jurisdiction to Decide Moot Cases” published in the University of Pennsylvania Law Review [1946] Vol. 94 – No. 2, the author, Sidney A. Diamond explains the essence of the doctrine thus:
“Common – law courts have long recognized the strict requirement that permits only cases presenting judicial controversies to be decided. This is a jurisdictional limitation. If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, the case is moot and the court is without power to render a decision.”
…. the common law is the exclusive source of the mootness doctrine in our jurisdiction. The doctrine is based on judicial policy whose main functions are to protect the functional competence of the courts to make law by ensuring adequate adversity of the parties and judicial economy – that is, rationing scarce judicial resources amongst competing claimants…”
53. In the instant case, the Court does not see the practical purpose the Petition will serve. The primary relief that the Petitioner is seeking for the 1 st Respondent to be compelled to administer the pr
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The petition dated 12 th October 2021 is supported by the petitioner’s affidavit in support of even dated and Supplementary Affidavit dated 10 th December 2021.
1. The petition challenges the refusal by the 1 st respondent to accord him an opportunity to sit for the professional examination.
2. On this premise, the petitioner seeks the following reliefs: -
a) An order compelling the 1 st respondent to administer the petitioner herein with the professional examinations.
b) An order compelling the 1 st respondent to license him under the professional body within his area and scope of study, to wit; Public health Officer.
c) An order of prohibition restraining the 1 st respondent from further violating the petitioner’s rights and freedoms to join and be licensed as a Public Health Officer within the Republic of Kenya.
d) Costs of the petition.
e) Any other relief that the court deems fit to grant.
3. In opposition to the petition, the respondents filed their respective replying affidavits dated 9 th December 2021 and a Further Affidavit dated 23 rd July 2023 by the 1 st respondent and a Supplementary Affidavit dated 4 th July 2023 by the 2 nd respondent.
The Petitioner’s Case
4. According to the Petitioner, the 1 st respondent is a body corporate established under Section 3 of the Public Health Officers (Training, Registration and Licensing) Act, 2013. It is mandated to control, supervise the training, practice and employment of public health officers and technicians in Kenya.
5. The 2 nd respondent is a body corporate established as such under section 3 of the Kenyatta University Act (repealed) and Section 14 and 15 of the Universities Act No. 42 of 2012. It is mandated to admit, train and award degrees to qualified students.
6. The petitioner states that he was conferred with the Bachelor of Science degree in Environmental Health from the 2 nd respondent in the year 2017.
7. In the year 2020, the petitioner applied to the 1 st respondent to be allowed to sit the professional examination in order to be issued with a professional licence and paid the requisite charges. The 1 st respondent issued him with an index number PHOTC/B/0123/14. The Petitioner was to sit for the examinations in October 2020 but the 1 st respondent failed to include him in the examination list.
8. When the petitioner sought clarification from the 1 st respondent, he was informed that the Council was not permitting candidates who obtained their Bachelor Degree from the 2nd respondent’s City Campus as the same was neither approved nor accredited by the 1 st Respondent’s Council hence could not be permitted to sit for the professional examination until the 2 nd respondent complied with the Council’s requirements.
9. The Petitioner approached the 2 nd respondent but the 2 nd respondent sent him back to the 1 st respondent insisting that they had no role to play in professional examination certifications.
10. The petitioner avers that he has approached the 1 st respondent on numerous occasions without making any headway hence the institution of the current petition. The petitioner argues that the 1 st respondent has discriminated against him and has denied him the opportunity to sit for the professional examination.
11. He contends that the respondents have never issued him or the students suffering a similar fate a notice that the course they had paid for was not recognized by the Council for certification to the professional body of Public Health Officers.
12. The petitioner deponed that the 2 nd respondent conferred him degree confirmed he had acquired the requisite skills and qualification of Public Health and the same did not distinguish whether it was from the the Main Campus or the City campus. Further the 1 st respondent has never alerted innocent students such as him of the situation of the 2 nd respondent or caused the 2 nd respondent to stop offering the said degree from their city campus despite being mandated by Section 22 of the Public Health Officers Act, 2013 to supervise the training of Public Health Officers.
13. The petitioner contends that it is unfair that the 1 st respondent would refuse to license him and other innocent students when they have failed to carry out their supervisory role.
14. The petitioner argues that the 1 st respondent has in the past years licensed students from the 2 nd respondent’s City campus; some without examinations; who ended up holding office in the said council and it is thus prejudicial and unfair to him that they would deny him the chance to sit for professional examinations and discriminate against the said campus.
15. The petitioner contends that he has failed to progress in various aspects of his career due to the 1 st respondent refusal to give him a chance to sit for professional examinations. The petitioner contends that he stands to suffer loss and miss out on numerous opportunities due to the actions of the 1 st respondent.
The 1 st Respondent’s Case.
16. The 1 st respondent asserts that the 2 nd respondent was granted interim accreditation on 2 nd September 2016 which was to last for a period of 6 months upon which a further evaluation was to be conducted upon satisfaction of the conditions indicated in the report.
17. The 1 st respondent asserted that professional examinations are only administered to students who are registered in fully accredited training institutions which is not the position in the instant case as the petitioner was a student at the 2 nd respondent’s campus which was yet to receive full accreditation and to which they wrote a letter on 5 th September 2019, to the 2 nd respondent disengaging all graduates from unapproved campuses and it was therefore upon the 2 nd respondent to act in accordance with the said letter.
18. The 1 st respondent revealed that the 2 nd respondent wrote a letter dated 6 th November 2020 to them proposing a date for inspection for accreditation. On 11 th November 2020, the 2 nd respondent wrote a letter to them requesting for the rescheduling of the inspection date. Further on 30 th November 2020, the 2 nd respondent wrote a letter to them rescheduling yet again the date for inspection and the 1 st respondent further wrote to the 2 nd respondent on 10 th February 2021 rescheduling the date for inspection.
19. The 1 st respondent contends that they ultimately wrote to the 2 nd respondent on 20 th September 2021 advising them to notify their students to submit their applications for the professional assessment. The 1 st respondent states that on matters of accreditation; they do not deal with students directly.
The 2 nd Respondent’s Case
20. The 2 nd respondent is a public university established under Section 13 of the Universities Act Number 42 of 2012 . As a university, it enjoys academic freedom in the conduct of its internal and external affairs. The 2 nd respondent avers that it has its own bodies including the senate which are charged with the responsibility of ensuring that the programmes undertaken by its students meet the requisite academic standards and quality. Additionally, its programmes are accredited and approved by the Commission for University Education (CUE) established under section 4 of the Universities Act.
21. The 2 nd respondent asserts that the CUE has accredited it to offer the degree of Bachelor of Science (environmental Health). Thus the 2 nd respondent argues that the petitioner has no claim against it. Further, the petitioner has not demonstrated how his fundamental rights have been infringed as alleged.
22. The petitioner filed a Supplementary Affidavit dated 10 th December 2021 and depones that the 2 nd respondent never at any time between his years of study being 2013 and 2017 informed him as a student that the said campus was not accredited or had not met the various threshold expected of them by statute. The petitioner further states that he paid for his examination and was issued with an index number and exam card to sit for his emanations but the 1 st respondent declined to list him for the examinations in December 2020 thus denying him a chance to sit the examination without giving him a reason for his exclusion despite numerous enquiries only to cite much later that the 2 nd respondent was not accredited.
23. The petitioner argues that he was taken back and forth between the respondents’ offices which bore no fruit. The petitioner asserts that he is aware that the 1 st respondent has permitted other students from his year at graduation, 2017, graduates from City campus who applied in the similar manner as himself and got indexed and undertook the professional examination and are therefore currently certified.
24. The petitioner argues that the 1 st respondent failed to appreciate that he graduated in the year 2017 and the decision to act punitive and notify the 2 nd respondent that they would be disengaging all graduates from unapproved campus was a decision that was in no particular way to act retrospectively as he had already graduated. The petitioner argues that the averments made by the 1 st respondent is an admission of the violation of his rights and the letter dated 20 th September 2021 has been made four years after he graduated and one year after the 1 st respondent declined and discriminated against him to do the professional examination.
25. The1st respondent filed a Further affidavit dated 21 st July 2023 and depones that they notified the 2 nd respondent on the assessment of graduates from Kenyatta University Nairobi Campus in a letter dated 20 th September 2021. The said letter requested the 2 nd respondent to inform all their graduates about the decision and advise them to submit applications in a prescribed format for consideration for their professional assessment. The 1 st respondent avers that the said communication was made to the 2 nd respondent well before the petitioner presented the current petition. Thus, by the time the current petition was filed, the 1 st respondent states that it was already entertaining applications for examinations from students of the 2 nd respondent hence the petition was unwarranted and baseless.
26. The 1 st respondent further stresses that they have received several applications from the campus graduates for consideration and administered professional examinations to the candidates whose applications have been successfully considered.
27. The 2 nd respondent filed a Supplementary Affidavit dated 4 th July 2023 and states that the 1 st respondent wrote a letter dated 20 th September 2021 stating that their graduates were free to individually submit their application to the 1 st respondent in the prescribed format for professional assessment. Upon receipt of the applications, the 1 st respondent would consider the submitted applications with a view to processing them for professional assessment. Thus, the 2 nd respondent contends that the said letter acted as communication to the petitioner that he was free to apply for the assessment. The 2 nd respondent avers that currently their students are being registered by the 1 st respondent without any hitch.
28. The petition was disposed of by way of written submissions however the 1st respondent failed to put in any written submissions despite being given the last chance to do so.
Petitioner’s Submissions
29. The petitioner submitted that the 2 nd respondent took in students as himself and charged them fees to train for a degree course thus there was a legitimate expectation that after being awarded such decree, they would be evaluated and permitted to sit an examination to attain professional licensing. He argued that it was discriminatory that the 1 st respondent excluded him from the list of persons sitting for the professional examination citing accreditation reasons yet his colleagues who graduated in the same year, 2017, were administered with the professional examinations thus his rights to dignity, access of information and administrative function were violated. Reliance was placed in Nyagah & Another vs Egerton University & 3 Others [2024] KEHC 10024 where the learned judge deciding on a similar issue held and cited the case of Leonard Otieno vs Airtel Kenya Limited (2018) eKLR :-
The issue therefore is not that the right to education of the Petitioners was violated. Rather, my view is that the claim by the Petitioners pegged on the right to consumer protection. Article 46(1) states as follows:
Consumers have the right—
i. to goods and services of reasonable quality;
ii. to the information necessary for them to gain full benefit from goods and services;
iii. to the protection of their health, safety, and economic interests; and
iv. to compensation for loss or injury arising from defects in goods or services.
The question thus becomes, were the educational services offered to the Petitioners of reasonable quality? and they also get the necessary information for them to get the full benefit of the courses they trained for?
If the 1 st Respondent offered them educational courses that could not transit them into professional engineering skills because the body that is legally empowered to register professional engineers’ finds the training insufficient or dubious, aren’t petitioners entitled to protection as consumers?
In Leonard Otieno vs Airtel Kenya Limited (2018)eKLR , the Court made the following observation regarding consumer rights:
“46…Consumer rights litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the expanded Bill of Rights in our transformative and progressive Constitution by establishing its meaning through contested cases.
47. The general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the Petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. Differently put, the onus lies on the Petitioner to prove every element constituting his cause of action. This includes sufficient facts to justify a finding that his consumer rights were violated.
48. If, in contested proceedings, the consumer asserts that his rights have been violated, the court must make a finding whether, the consumer’s allegations are true…”
Training for years in a course that does not equip you with the relevant skills to gain professional qualifications is a matter of I find that the petitioner’s consumer protection rights were infringed for made to undergo a training that did not offer them a chance in the profession they were purportedly being trained for .
30. The petitioner argued that there existed wrangles between the 1 st and 2 nd respondent which has been demonstrated by the various letters they exchanged dated 2 nd , 5 th September 2019 and 6 th November 2020 which he has suffered in a manner that was unfair and discriminative since he had already completed his studies in 2017, two years before the problems began. Further, the graduates referred to are those of the year between 2019 – 2021, which period he was not a student of the 2 nd respondent.
31. The petitioner contended that the 2 nd respondent admitted in its supplementary affidavit that the failure to have the examination administered to them was due to their actions or inactions. The issue of accreditation was squarely in their purview thus it is liable. Further, the letter filed in court on 21/7/2023 and served upon him on 26/7/2023 shows that the respondents took 2 years to update him that he was permitted to do his examinations that he paid for in 2020 but raises the question what made him not to be considered to sit for his examinations in 2021.
32. The petitioner stressed the fact that his rights were violated by the respondents as his fellow school mates who graduated with him were permitted to carry on their exams and the same has culminated to further loss of opportunities on his end which still continues to date. The petitioner submitted that he cannot associate or seek employment as a public health officer without the 2 nd respondent issuing him with examinations and upon passing getting to be licensed with the professional body. The petitioner urged the court to award him damages based on the infringement of his rights which led to the loss of opportunities.
The 2 nd Respondent’s Submissions
33. The 2 nd respondent cited Section 5(1) of the Universities Act, 2012 and submitted that the Commission for University Education is the body that regulates universities and not the 1 st respondent. Thus it cannot bear liability for the 1 st respondent’s alleged actions in failing to allow the petitioner to sit for examinations. Furthermore, Section 5A(1) and (2) of the Universities Act, 2012 provides that where there is a conflict between the functions of the Commission for University education and those of the 1 st respondent, that conflict must be resolved in favour of the Commission for University Education.
34. The 2 nd respondent argued that the Commission for University Education had not raised any concern with the petitioner’s degree and further there is no evidence that the Commission for University Education has raised any issue with any of the academic programmes being offered by them. Pursuant to Section 24 of the Public Health Officers (Training, Registration and Licensing) Act, the 1 st respondent’s mandate is provided for which is licensing persons as public health officers. The 2 nd respondent argued that Section 24(3) of the Act requires the 1 st respondent to recognize all degrees in public health conferred by universities accredited under the Universities Act, 2012 and the same is reiterated in Section 22(6) of the same Act. The 2 nd respondent stressed that it is duly accredited under the universities Act, 2012 and hence its degrees in public health are to be recognized by the 1 st respondent automatically and as a matter of law.
35. The 2 nd respondent submitted that the 1 st respondent overreached its mandate and purported to inspect or accredit it does not clothe the 1 st respondent with a mandate outside statute. Reliance was placed in J. K. Chatrath & Another vs Shah Cedar Mart [1967] EA 93 where the Court of Appeal for Eastern Africa held:-
The doctrine that there can be no estoppel against a statute simply means that an estoppel cannot render valid something that the law makes invalid……
36. The 2 nd respondent argued that the petition is moot as the 1 st respondent wrote a letter to it dated 20 th September 2021 confirming that students from their campus were at liberty to apply for examinations and registration with the 1 st respondent, which is before the petition herein was filed. The said letter was filed in the instant court and served upon the petitioner on 9 th December 2021. Since December 2021, the petitioner has been sitting on his laurels instead of sitting for the examinations. The 2 nd respondent further submitted that its students have been sitting for examinations of the 1 st respondent before the suit was filed and throughout the life of this suit.
37. On the prayer that the petitioner be excused from examinations and other academic or professional requirements before being registered as a public health officer, the 2 nd respondent argued that the said prayer cannot be the role of the court and it ought to be left to the bodies established for that purpose. To buttress that point, reliance was placed in Daniel Ingida Aluvaala & Another vs Council of Legal Education & Another [2017] eKLR where Mativo J(as he then was) stated:-
Self-restraint adopted by the judiciary in exercising the power of review in academic matters has left certain academic decisions or regulations governing training and qualifications of professionals untouched. These areas are not disturbed by the courts unless the decisions under challenge are constitutionally so fragile and unsustainable. Academic decisions of the universities and other educational institutions requiring expertise and experience belong to this category. If the decision is legal and lawful, the reasonableness and propriety of the same may not be questioned by the courts. In other words, among the Wednesbury principles of ‘illegality’, ‘irrationality’ and ‘impropriety’, if the decision can get over the first test, it may withstand the other two tests, unless it is shockingly unreasonable, perverse or improper .
38. The court went on to say that
If this Court starts substituting its own opinion in place of opinion expressed by a body mandated and authorized by the law as discussed above, it shall not only be overstepping its mandate, but it will result in chaos. The court can only interfere if the Respondent acted outside their legal mandate or acted unreasonably.
39. The 2 nd respondent cited the decision in Dakianga Distributors (K) Ltd vs Kenya Seed Company Limited [2015] eKLR and argued that parties are bound by their pleadings and the petitioner sought in his submissions for damages or compensation which ought to be ignored.
Analysis and Determination
40. The main issues for determination are:-
a) Whether the petition meets the threshold for a constitutional petition.
b) Whether the Petition is moot
c) Whether the petitioner’s rights under Articles 19, 22, 27, 28, 35, 36, 43 and 47 of the Constitution were violated.
d) Whether the petitioner is entitled to the orders sought.
Whether the petition meets the threshold for a constitutional petition.
41. A Constitutional petition must meet threshold of specificity and precision in identifying the constitutional provisions that are alleged to have been violated or threatened and the manner in which the violation occurred. This principle was enunciated in the cerebrated case of Anarita Karimi Njeru vs Republic (1979) KLR where the court held as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.
42. The principle was articulated in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance (2014) eKLR where the court stated thus: -
We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.
The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.
43. It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. The Petitioner must set out not only the provisions of the Constitution that have been violated but the details on the description of the infringement to enable the respondent answer the allegations or complaints made against them.
44. In the instant case, the Petition was said to have been brought under Articles 19, 22(1), 27, 28, 35, 36, 43 and 47 but its substance is predicated on the rights guaranteed under Articles 27, 28, 35, 36, 43 and 47 of the Constitution of Kenya. The manner of violation was alleged to be the 1 st respondent refusal to administer examinations on him despite having satisfied the requirement of a degree from the 2 nd respondent. Further, that the 1 st Respondent has proceeded to administer the examination to other students that were similarly situated thereby discriminating against the Petitioner. I find as pleaded; the petition sufficiently satisfies the threshold of a constitutional petition.
Whether the instant Petition is moot
45. According to the deposition of the 1 st Respondent in the further affidavit dated 21/7/2023, by the time the Petitioner instituted this Petition on 12/10/21, the administration of the professional examination on the graduates of the 2 nd Respondent City Campus had ceased to be an issue as way back on 21/9/2021, the 1 st Respondent had already notified the 2 nd Respondent to advise its graduates that had been affected to submit their applications for consideration of the assessment.
46. Echoing this fact, the 2 nd Respondent in its Supplementary Affidavit of 4/7/2021 confirmed the 1 st Respondent wrote a letter to it 21/9/2021 requesting it to advise its students to submit their applications for consideration of professional assessment. Consequently, the 2 nd respondent equally contended that the petition is moot as the petition was filed long after the issue was resolved because the letter was filed in court and served upon the petitioner on 9 th December 2021 and thus since December, 2021, the Petitioner has been sitting on his laurels instead of applying to sit for the professional examinations. The 2 nd respondent further maintained that its students have been sitting for examinations of the 1 st respondent even before this suit was filed and continued to do so throughout the life of this suit.
47. The instant suit was filed on 12/10/2021. The 1 st Respondent had removed the hurdle that the students of the 2 nd Respondents City Campus students faced as at 21/9/2021. The 1 st Respondent was categorical that it does not communicate with the students directly on matters of the accreditation, but through the Training Institution, in this case, the 2 nd Respondent.
48. There is no evidence that when the 2 nd Respondent received the letter of 21/9/21 removing the disability that was placed on the Petitioner and his colleagues from sitting the professional examination that the decision was passed promptly passed to the Petitioner or the affected students by the 2 nd Respondent. The 2 nd Respondent in fact states that the letter was only brought to the Petitioner’s attention on 9/12/2021 when they served him with their response in this case.
49. The Petitioner cannot therefore fairly be blamed for filing this Petition on 12/10/21 as he was bereft of the information that the circumstances had changed. That blame squarely falls on the 2 nd Respondent for the failure to release that information to the affected students promptly.
50. However, it is apparent that the factual matrix upon which this complaint was premised had dissipated as the hurdle that obstructed the Petitioner from applying for and sitting the professional examination administered by the 1 st Respondent had been resolved administratively through the 1 st Respondent’s letter of 21/9/2021.
51. The current state of affairs thus invokes the doctrine of mootness. In Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR the Court of Appeal citing with approval the High Court decision of Daniel Kaminja & 3 others (Suing as Westland Environment Caretaker Group vs County Government of Nairobi (2019) eKLR explained the doctrine of mootness as follows:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact…
No court of law will knowingly act in vain … a Suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity…”
52. Equally, the Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 6 others [2017] eKLR stated as follows:
“… In an article entitled “Federal Jurisdiction to Decide Moot Cases” published in the University of Pennsylvania Law Review [1946] Vol. 94 – No. 2, the author, Sidney A. Diamond explains the essence of the doctrine thus:
“Common – law courts have long recognized the strict requirement that permits only cases presenting judicial controversies to be decided. This is a jurisdictional limitation. If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, the case is moot and the court is without power to render a decision.”
…. the common law is the exclusive source of the mootness doctrine in our jurisdiction. The doctrine is based on judicial policy whose main functions are to protect the functional competence of the courts to make law by ensuring adequate adversity of the parties and judicial economy – that is, rationing scarce judicial resources amongst competing claimants…”
53. In the instant case, the Court does not see the practical purpose the Petition will serve. The primary relief that the Petitioner is seeking for the 1 st Respondent to be compelled to administer the pr
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