[1] The petitioner, Omar Jibich Abayo, filed the Petition dated 17th May 2023 seeking the following reliefs:
[a] A declaration that the conduct of the 1st respondent evinced by frustrating the petitioner and taking him in circles during the process of supervision of the Masters Project, causing a delay in completion of his academic studies; and the conduct of the 2nd and 3rd respondents in failing to quickly respond to the plight of the petitioner, contravened, inter alia, Articles 25, 28, 43(1)(f), 47 and 48 of the Bill of Rights as enshrined in Chapter 4 of the Constitution of Kenya.
[b] A declaration that failure by the 2nd and 3rd respondents to respond to the grievances of the petitioner violated his right to fair administrative action and right to access justice as provided by Articles 47 and 48 of the Constitution.
[c] An order of judicial review in the nature of Certiorari quashing the grade issued to the petitioner for his final thesis.
[d] An order of judicial review in the nature of Mandamus compelling the 2nd and 3rd respondents to submit the petitioner’s thesis for remarking and evaluation to another examiner other than the 1st respondent.
[e] General and exemplary damages for violation of the petitioner’s rights arising from discrimination, unjust treatment injurious to his dignity and infraction of his fundamental rights.
[f] Costs of the Petition;
[g] Any other relief that this Court may deem just to grant.
[2] The facts in support of the Petition were that the petitioner joined the School of Business at the University of Nairobi (the 3rd respondent herein) for a Masters of Business Administration (MBA) Degree programme. He averred that he successfully completed his course work for the MBA programme in 2016, after which he embarked on his research and thesis to fulfil the requirements for the course. Upon filling the requisite applications, he was allocated Prof. Zachary Bolo Awino (the 1st respondent) as his supervisor and Dr. K. Ogolla as his moderator.
[3] The petitioner further averred that, for the research project, they discussed and settled on “Modernization Technology Strategy and Sustainable Competitive Advantage of Kenya Ports Authority” as the title of the final MBA thesis. He however complained that, in pursuit of his project and final thesis, he faced formidable hurdles from the conduct and demeanour of the 1st respondent. The petitioner averred that on most occasions, the 1st respondent was unavailable to discuss matters pertaining to the research as was required of him; thereby depriving him of academic supervision and proper guidance.
[4] The petitioner further alleged that, in addition to the 1st respondent’s absence, which inevitably led to unwarranted delay in the completion of his Masters studies, the 1st respondent made demeaning comments suggesting that he was academically inferior and not fit for the MBA programme. In particular, the petitioner complained that, out of spite or ill will, the 1st respondent posted a different title for the final thesis from the title submitted to the University.
[5] He further stated that, ultimately, he was awarded Grade C for the thesis, which, in his view, was not commensurate with the extensive, in-depth and quality research undertaken by him. He added that he had the legitimate expectation to earn a good grade with attendant property interests. He accused the 1st respondent of unprofessional conduct as well as bias, abuse of discretion and breach of trust bestowed on him by virtue of his employment in a public university. He blamed the 1st respondent for wastage of time, resources and opportunities in that despite successfully completing his course work for the MBA programme in 2016, he was unable to graduate until 20th December 2019. He further averred that, due to the unwarranted poor grade, he missed out on job promotions at his workplace as well as opportunities to pursue PhD programme.
[6] The petitioner anchored his Petition on Articles 2(1), 22(1), 25, 27(1) and (5), 28, 29, 47, 48(1)(f), 50(2) and 232 of the Constitution and provided, at paragraphs 33 to 37 the manner in which his rights were allegedly violated by the 1st and 2nd respondents.
[7] The respondents opposed the Petition vide the Replying Affidavit sworn on 19th June 2023 by Prof. Julius A. Ogeng’o. They confirmed that the petitioner was admitted as part of the 3rd respondent’s Master of Business Administration cohort for the Academic Year 2001/2002; and that upon his admission, the petitioner freely and voluntarily subjected himself to signing a bond governing the student’s admission, re-admission into and studentship under the 3rd respondent’s parallel programmes.
[8] The respondents further averred that the petitioner completed the course work for Master of Business Administration programme and was admitted for the project on 28th March 2017. They explained that the selection of a supervisor is governed by the Policy on Selection, Appointment and Allocation of Masters Students, UON Statute XXXIII 2.1.10 (i), and External Examiners, UON Statute XXXIII 2.1.11. They confirmed that the petitioner signed the MBA Proposal/Project Supervision Allocation Form.
[9] The respondents confirmed that, on the 24th March 2017, approval was granted for the petitioner to be supervised by Prof. Z.B. Awino and Dr. K. Ogola; and that thereafter, the petitioner undertook his project under the assigned supervisors and submitted the project for examination. Regarding the title of his project, the respondents were categorical that the petitioner himself submitted the title to be “Strategic Response Initiative by Kenya Ports Authority Towards Achieving Vision 2030”; and that he submitted a proposal for oral defence to a panel of six (6) faculty members, was evaluated and his submission graded accordingly.
[10] That, in the course of his supervision corrections were suggested to the petitioner, which he complied with and made re-submissions without any complaint. At paragraph 39 of the Replying Affidavit, the respondents pointed out that, in the Acknowledgment page, the petitioner made special thanks to various people who assisted him during the preparation of his thesis, particularly the 1st respondent.
[11] The respondents further confirmed that the petitioner successfully completed his project on 10th December 2019 and graduated on 20th December 2019 with Master’s Degree in Business Administration at the 62nd Congregation of the University of Nairobi. They further averred that it was not until 13th January 2021 that the petitioner submitted his complaint to the Vice Chancellor of the 3rd respondent; whereupon the Vice Chancellor mandated the Deputy Vice Chancellor Academic Affairs to investigate the issues raised by the petitioner. In turn, the Deputy Vice Chancellor referred the complaint to the Chairman Department of Business Management with a copy to the Dean of the relevant Faculty to submit a brief.
[12] Upon being informed that the petitioner had been examined and had graduated, the Vice Chancellor was of the view that no action could be taken by the 3rd respondent at that juncture. Thus, the respondents contended that no constitutional questions have been raised by the petitioner to warrant the attention of the Court in this Petition.
[13] Directions were thereafter given on the 28th February 2024 for the Petition to be canvassed by way of written submissions. Counsel for the petitioner filed written submissions dated 20th March 2024 and proposed the following two issues for determination:
[a] Whether the petitioner has established a prima facie case; and,
[b] Whether the petitioner is entitled to the reliefs sought.
[14] The petitioner confined his submissions to his contention that his right to fair administrative action under Article 47 of the Constitution was violated. He relied on Article 47 as well as Sections 2 and 9 of the Fair Administrative Action Act to propound the submission that his attempts to appeal for the remarking of his thesis title were ignored by the respondents. He also relied on Republic v National Cohesion and Integration Commission; Chama Cha Mawakili Limited (Ex Parte) (Judicial Review Application E057 of 2022) [2022] KEHC 10206 (KLR) (Judicial Review) (14 July 2022) (Judgment) and Republic v Nairobi City County Ex Parte Registered Trustees of Sir Ali Muslim Club [2017] eKLR, among other authorities to support his submissions.
[15] On the reliefs sought, the petitioner placed reliance on Article 23 of the Constitution for the proposition that the Court has the jurisdiction to uphold and enforce the Bill of Rights by granting appropriate remedy such as the reliefs sought by him. He made reference to Katiba Institute v President of the Republic of Kenya & 2 others; Judicial Service Commission & 3 others (Interested Parties) (Petition 206 of 2020) [2021] KEHC 442 (KLR) (Constitutional and Human Rights) (21 October 2021) (Judgment) in support of his prayers for declaratory orders.
[16] In respect of his prayer for damages, the petitioner referred to the case of Daniel Waweru Njoroge & others v Attorney General [2015] eKLR for the proposition that awards in past decisions are mere guides and that each case depends on its own facts. He urged the Court to allow the Petition as prayed with costs.
[17] The respondents relied on their written submissions dated 26th March 2024. They reiterated their assertions as to the policy of the 3rd respondent in selecting a supervisor, the process undertaken in processing the petitioner’s Masters course and the final outcome. Thus, the respondents submitted that it would be improper for the Court to interfere with the academic decisions of the 3rd respondent. They relied on Nyongesa & 4 others v Egerton University [1990] KLR 962.
[18] It was further the submission of the respondents that the petitioner’s right to education is not absolute, but is subject to the rules and regulations governing studies in the 3rd respondent’s institution. The case of Maharashtra State Board v Kurmarsheth & others [1985] CLR 1083 was cited in support of the argument. On legitimate expectation, the respondents submitted that it would be contrary to express provisions of statute and the 3rd respondent’s policy to accede to the expectations of the petitioner as pleaded. Reliance was placed on a treatise by H. W. R. Wade & C. F. Forsyth on an exposition on legitimate expectation.
[19] The respondents also posited that there was inordinate delay on the part of the petitioner in lodging his complaint, granted that he graduated from the 3rd respondent’s university on 20th December 2019 and did not complain to the 3rd respondent until 13th January 2021. Accordingly, the respondents urged for the dismissal of the Petition, contending that it raises no constitutional issues warranting the intervention of the Court.
[20] In the light of the foregoing, the issues for consideration are:
[a] Whether the petitioners’ rights were violated as alleged, and
[b] Whether the petitioner is entitled to the reliefs sought.
[21] It is worth stating at the outset that the burden of proof is on the petitioner to prove his case to the requisite standard. In Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023), the Supreme Court held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[22] Hence, in connection with the burden of proof, Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[23] Likewise, Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[24] It is with the foregoing in mind that I now turn attention to the two issues identified above.
- On whether the petitioner’s constitutional rights and fundamental freedoms were violated as alleged:
[25] The petitioner relied alleged violation of the following rights and fundamental freedoms by the respondents:
[a] Freedom from discrimination (Article 27)
[b] Right to human dignity (Article 28)
[c] Right to personal freedom and security (Article 29)
[d] Right to Education (Article 43(1)(f))
[e] Right to fair administrative action (Article 47)
[f] Right to fair hearing (Article 50(2)
[a] On Freedom from discrimination:
[26] Article 27(4) of the Constitution provides that:
“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.”
[27] A perusal of the petition reveals that no particular allegations of discrimination were supplied by the petitioner. Discrimination, according to Black’s Law Dictionary, is defined to mean:
“Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
[28] For the specific purposes of education, Article 1 of the Convention against Discrimination in Education, 1960 by UNESCO states that:
(1) For the purposes of this Convention, the term discrimination' includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of any type or at any level;
(b) Of limiting any person or group of persons to education of an inferior standard;
(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or
(d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.
2. For the purposes of this Convention, the term `education' refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.
[29] Article 2 on the other hand provides that:
When permitted in a State, the following situations shall not be deemed to constitute discrimination, within the meaning of Article 1 of this Convention:
(a) The establishment or maintenance of separate educational systems or institutions for pupils of the two sexes, if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study;
(b) The establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil's parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level ;
(c) The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.
[30] Thus, in Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR it was held that:
“...discrimination, simply put, is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups…The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.”
[31] Accordingly, in the absence of proof, particularly as to the manner in which he was discriminated against, the mere allegation in his Petition that the 1st and 2nd respondents treated him with partiality are untenable.
[32] The same observations would apply in respect of the allegation that the petitioner’s right to have his dignity respected under Article 28 of the Constitution was violated. That Article provides that:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
[33] Human dignity connotes self-worth and respect. Hence, according to Black’s Law Dictionary, Tenth Edition, dignity is defined as:
“The quality, state, or condition of being noble; the quality, state or condition of being dignified.”
[34] It is therefore apt, to restate the expressions of Hon. Lenaola, J. (as he then was) in J W I v Standard Group Limited & Another [2013] eKLR Hon. Lenaola, J. that:
“27…the right to human dignity has been recognised as the basis of fundamental rights and the Universal Declaration of Human Rights in its Preamble states that;
“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
28. In the context of the issue under consideration, human dignity need not be pleaded as a right for it to be enforced because it is inherent and together with the right to life, they form the basis for all other rights to be enjoyed by a human being qua human being. I need not say more…”
[35] And, in the South African case of S v Makwanyane & Another (CCT3/94) [1995] ZACC 3, the right to dignity was underscored thus:
“The importance of dignity as a founding value of the new Constitution cannot be over emphasized. Recognizing a right to dignity is an acknowledgement of the intrinsic worth of human beings; human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many other rights that are specifically entrenched in the Constitution”.
[36] In this instance, there is no proof of the allegations that the 1st respondent made “passive aggressive comments to demean the petitioner” as alleged in paragraph 11 of the Petition. Therefore, I have no hesitation in holding that this aspect of the Petition has not been proved to the requisite standard. In so holding, I am in agreement with the view expressed by Hon. Okwany, J. in Andrew Laird White v Director of Criminal Investigations & 2 Others; Betty Tett & Another (Interested Parties) [2019] eKLR that:
“36…Courts have held the view that it is not enough to merely cite a violation of the constitution and maintained that there must be concrete evidence relating to the alleged breaches and real concrete and direct loss damage or injury arising out of the violation. (see Josephat Koli Nanok & Another –vs Ethics & Anti- Corruption Commission [2018] eKLR).
37. In the instant case, …I find that not only has the petitioner not furnished this court with concrete evidence pointing towards the violation of his rights but that he has also not provided cogent evidence of the loss/injury that has arisen out of the alleged violation.
[b] Right to Education (Article 43(1)(f) of the Constitution):
[37] The Court has carefully considered the Petition, the response thereto as well as the written submissions filed by the parties. The right to education is one of the socio-economic rights enshrined in Article 43 of the Constitution. Accordingly, Article 43(1) states:
(1) Every person has the right—
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
[38] Although the petitioner alleged that his right to education as provided for in Article 43(1)(f) was violated, there is no dispute that he completed his master’s programme and graduated on 20th December 2019. If, as contended in paragraph 34 of the Petition that he 1st and 2nd respondents’ violated his rights to education by failing to facilitate him to complete his studies in a timely manner, then reliance on Article 43 of the Constitution was misplaced, and I so find. Indeed, in his submissions, the petitioner did not make any reference to Article 43 at all.
[39] In the premises, the allegations of violation of the petitioner’s right to education are baseless and I so find.
[c] Right to fair administrative action (Article 47)
[40] The right to fair administrative action is provided for in Article 47 of the Constitution, which states:
“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
(2) If a right or a fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action;
(3) Parliament shall enact legislation to give effect to the right in Clause (1) …”
[41] There is no gainsaying that by dint of Article 47, the right to fair administrative action has been elevated from being a common law doctrine to a constitutional tenet. Thus, in Judicial Service Commission v Mbalu Mutava [2015] eKLR, the Court of Appeal held that:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
[42] In Baker v Canada (Minister of Citizenship & Immigration 2 S.C.R 817 6 it was held that:
“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”
[43] In accordance with Article 47(3), Parliament enacted the Fair Administrative Action Act, which provides, at Section 4 thereof, that:
(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) Every person has the right to be given written reasons for any administrative action that is taken against him.
(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6; (e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.
(4) The administrator shall accord the person against whom administrative action is taken an opportunity to-
(a) attend proceedings, in person or in the company of an expert of his choice;
(b) be heard;
(c) cross-examine persons who give adverse evidence against him; and
(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
(5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.
(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.
[44] In this regard, the petitioner’s complaint was that his attempts to appeal the remarking of his thesis title were ignored by the 1st and 2nd respondents. He also relied on Republic v National Cohesion and Integration Commission; Chama Cha Mawakili Limited (supra) in which it was held:
“The right to be heard is cardinal and cannot be derogated. This court appreciates the crucial and sensitive role that the respondent undertakes in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it, however, must be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and our laws. However well meaning, the respondent cannot get away with unilateral decisions that affect the citizenly without regard to their constitutional and legal rights topmost of which is the right to heard. This was emphasized in the case of Leiyagu v IEBC & 2 others where the court stated;
“The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law.”
[45] The petitioner also relied on Republic v Nairobi City County, Ex Parte Registered Trustees of Sir Ali Muslim Club [2017] eKLR,
[46] The question that then arises is whether an appeal was filed and whether the same was ignored, as alleged by the petitioner. I have perused the petitioner’s annexures and find no such evidence. To the contrary, the respondents averred, in great detail, that the respondent had three opportunities to raise any concern that he had before his graduation, namely:
[a] Request in writing for change of supervisor.
[b] Request in writing for remarking of his thesis by an independent examiner;
[c] To not clear for graduation until the above issues were addressed.
[47] The uncontroverted averment by the respondents was that the petitioner did not make use of any of the avenues aforementioned. Instead he purported to raise a complaint long after he had graduated and left the jurisdiction of the 3rd respondent.
[48] It is noteworthy too that both in his Petition and in his submissions, the petitioner made no reference to the 3rd respondent, the body charged with the responsibility of handling his appeal. Moreover, the contention of the respondents that the delay in the completion of his studies was attributable to the petitioners own shortcomings, and not due to any fault on the part of the 1st or 2nd respondents was not rebutted.
[49] Consequently, I would agree with the respondents that the petitioner utterly failed to prove any violation of his right to fair administrative action. Indeed, courts are hesitant to interfere with the decisions of universities unless clear proof is availed of impropriety, illegality or irrationality. In Nyongesa & 4 Others v Egerton University College [1990] eKLR, the Court of Appeal held thus (per Nyarangi, JA):
“…courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions of any bodies when the courts are moved to do so where it is manifest that decisions have been made without fairly and justly hearing the person concerned or the other side. It does not assist for anyone to question or criticise the particular posture of courts. It is the duty of courts to curb excesses of officials and bodies who exercise administrative or disciplinary measures. Courts are the ultimate custodians of the rights and liberties of people whatever the status and there is no rule of law that courts will abdicate jurisdiction merely because the proceedings or enquiry are of an internal disciplinary character…”
[d] Right to fair hearing (Article 50(2):
[50] The same findings in respect of Article 47 are applicable to the petitioner’s allegations under Article 50(2) of the Constitution.
[e] On Legitimate Expectation:
[51] On legitimate expectation, the Supreme Court of Kenya took the following view in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR:
“[263] “Legitimate expectation” is a doctrine well recognized within the realm of administrative law, as is clear from the English case, In re Westminster City Council, [1986] A.C. 668 at 692 (Lord Bridge):
“…the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation”.
[264] In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise.
[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.”
[52] Upon reviewing both local and comparative jurisprudence on the point, the Supreme Court concluded thus at paragraph [269] of its Judgment:
“The emerging principles may be succinctly set out as follows:
a. there must be an express, clear and unambiguous promise given by a public authority;
b. the expectation itself must be reasonable;
c. the representation must be one which it was competent and lawful for the decision-maker to make; and
d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
[53] On this score, the petitioner simply stated at paragraph 16 of the Petition that the grade awarded to him was not commensurate with the quality of research he conducted, thereby denying him the legitimate expectation of a fair grade. In response, the respondents averred at pargraphs 11 to .. that the petitioner was inconsistent in the pursuit of his studies in that he not only requested for deferment, but also absented himself from the University during the 2004/2005 and 2011/2012 academic years and had to be granted extension on request.
[54] The respondents produced documents in support of these assertions and therefore it was imperative for the petition present tangible evidence to prove otherwise. On that basis, it is my finding that his expectation was not at all legitimate, given the blow by blow account presented by the respondents in response to his assertions covering the entire duration of this course.
[f] Claim against fellow citizen:
[55] Questions have been raised as to whether the rights and fundamental freedoms provided for in Chapter Four of the Constitution can be claimed horizontally by citizens against fellow citizens. In this regard, I subscribe to the school of thought that such actions can only lie against the State. It would seem therefore that the petitioner’s cause of action is one that could have been brought under the civil jurisdiction of the court under statute.
[56] In Patrick Mbau Karanja v Kenyatta University [2012] eKLR Hon. Lenaola, J. (as he then was) held:
“…in Francis Waithaka -vs- Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the Constitutional interpretative mandate of this Court should not be invoked where other remedies lie. Further the Court also cited with approval, the decision in Teitinnang -vs- Ariong (1987) LRC (const.) 517 where it was held as follows: -
“Dealing now with the questions, can a private individual maintain an action for declaration against another private individual or individuals for breach of fundamental rights provisions of the Laws? The rights and duties of individuals, and between individual, are regulated by private laws. The Constitution, on the other hand, is an instrument of government. It contains rules about the government of the Country. It is my view, therefore that duties imposed by the Constitution under the fundamental rights provisions are owned by the government of the day, to the governed. I am of the opinion that an individual or group of individuals, as in this case, cannot owe a duty under the fundamental rights provisions to another individual so as to give rise to an action against the individual or group of individuals. Since no duty can be owed by an individual or group of individuals to another individual under the fundamental rights provisions of the Constitution no action for a declaration that there has been a breach of duty under that provision can lie or be maintained in the case before me, and I so hold”.
[57] Hon. Chacha, J. was of a similar view in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR. He held:
“65. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in the manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a Constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”
B. On whether the petitioner is entitled to the reliefs sought:
[58] In the light of the findings of the Court, it follows that the petitioner is not entitled to any of the reliefs sought. The Petition dated 17th May 2023 is hereby dismissed.
[59] On costs, the decision of the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR is instructive. The Court held:
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation…
…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[60] Given the circumstances of this case, it is hereby ordered that each party shall bear own costs of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF NOVEMBER 2024