Pauline Wairimu Ngugi VS Kenya National Examination Council

                        REPUBLIC OF KENYA

                          IN THE HIGH COURT OF KENYA AT NAIROBI

                                         MILIMANI LAW COURTS

                CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

           CONSTITUTIONAL PETITION NO. E547 OF 2022

NGUGI PAULINE WAIRIMU…………….............PETITIONER

                                           VERSUS

KENYA NATIONAL EXAMINATIONS COUNCIL…………………………………………. RESPONDENT

                                             JUDGMENT

1. The petitioner, Pauline Wairimu Ngugi (Ms. Ngugi), sat for her Kenya Secondary Certificate of Education Examination (KSCE) in 2007 at Upper Matasia Secondary School. The examinations are administered by Kenya National Examinations Council (the Council). When results were released in February 2008, Ms. Ngugi’s result slip showed that she had scored a mean grade of C Plus, the minimum qualification for university entry.
2. Ms. Ngugi’s scores for individual subjects for which she was examined were; English B-; Kiswahili C; Mathematics D+; Physics D; Chemistry D History and Government C+ Christian Religious Education B and Business Studies B.
3. Relying on the mean grade in the result slip, Ms. Ngugi applied for admission and was admitted in the University of Nairobi for Bachelor of Education (Arts) degree in 2008 and graduated in September 2019. She then applied to the Teachers Service Commission (the Commission) for registration as a trained teacher. The Commission demanded production of her KCSE Certificate to facilitate registration.
4. It was then that Ms. Ngugi went to collect her certificate, but was surprised to find that the certificate had a mean grade of C Plain and not C Plus as was in the result slip. This meant that she had not attained minimum university entry grade of C Plus. The Commission declined to register her as a teacher on the basis that she had not qualified for university entry.
5. Ms. Ngugi felt aggrieved because the Council failed to bring to her attention the discrepancy in the grades in the result slip and the Certificate. Ms. Ngugi argued that she had been made to spend time and resources in pursuing university degree education yet she was deemed not to have attained qualification. Ms. Ngugi asserted that the Council acted illegally by altered her grades and without giving her reasons for doing so. This, she argued, was unconscionable, an abuse of power and a violation of her fundamental rights.
6. Ms. Ngugi filed this petition seeking declarations of violations of her rights, and an order of mandamus compelling the Council to issue her with a new certificate with the correct mean grade of C Plus she scored. Ms. Ngugi also sought special damages of Kshs. 904, 450, being the loss she had incurred in pursuing the degree in education. She also sought costs of the petition.
7. Ms. Ngugi relied on among others, Articles 35 and 47 of the Constitution to support her case. She also relied on the decision in Republic v Kenya National Examination Council & 2 others Exparte Echesa Abubakar Busalire Chairman Parents Association of Chebuyusi High School & 190 others [2018] eKLR, that cancelling results after their release in those circumstances, did not meet basic tenets of fairness.
8. Ms. Ngugi further urged the court to allow her claim of special damages and relied on the decision in JOO (also known as JM) v Attorney General & 6 others [2018] eKLR where the court awarded Kshs. 2,500, 000 damages for infringement of rights and fundamental freedoms.

Response

1. The Council filed two affidavits, both sworn by Andrew Francis Otieno, Deputy Director of Quality Assurance and attached documents in response to the petition and in support of its case.
2. The Council stated that the examination was administered to over 270,00 students in over 4, 000 education centres and results were released on 28^th February 2028. However, it was immediately noticed that mean grades for some students were incorrect. After consultations with the Ministry of Education, a committee was established to investigate the matter and the possible cause for the error. Investigations concluded that the error had been caused by a system error when rounding of mean grade to the next higher grade, which lead to erroneous mean grades for some candidates. The error affected only a small number of result slips. Grades for individual subject for all candidates were not, however, affected.
3. The findings were communicated to the Ministry and were also released to the public. The Council conducted re computation of grades for all the candidates who sat for that examination and correct result print outs and result slips for the affected schools and candidates printed. Correct result slips were then dispatched to schools by 5^th March 2008, with instructions to recall the result slips that had been released earlier.
4. The Council asserted that indeed Ms. Ngugi sat for the 2007 KSCE examinations and obtained an aggregate of 42 points equivalent to C Plain. The mean grade of C Plus in the initial result slip was due to a genuine error which was, however, immediately corrected.
5. The Council argued that the correct result slips were sent to schools by 5^th March 2008, while certificates were dispatched to schools by March 2009. The Council maintained that the result slip was not a certificate and that the grade and individual subject results of a candidate were those in the certificate. In that respect, Ms. Ngugi’s correct grade of C Plain was in her certificate which had been in her school since March 2009.
6. The Council denied violating Ms. Ngugi’s fundamental rights or any rights at all, and there was no evidence to prove violation of such rights. The Council relied on Ali Awrio Guyo v Attorney General & 3 others [2013] eKLR that in a constitutional petition, a petitioner ought to show and prove violation of his rights.
7. The Council further relied on Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR that the court would not order the Council, when carrying out the process of marking examination papers, to award any particular mark to any particular candidate as that duty lies with the council and not the court.
8. The Councli again relied on Kenya National Examination Council v Republic Exparte Kemunto Regina Oura [2010] eKLR, that the court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to education matters. The court was urged to dismiss the petition.

Determination

1. This petition was dispose of through oral testimony and written submissions. I have considered the petition, the response, evidence and submissions made on behalf of the parties as well as the decisions relied on. The question that arises for determination is whether the Council’s action of changing the overall grade in Ms. Ngugi’s certificate from C Plus to C Plain violated her rights and fundamental freedoms.
2. Ms. Ngugi pleaded and testified that the Council violated her rights when it changed her mean grade from C Plus in the result slip and which she had used to apply for university admission, to C Plain in her certificate which meant she had not attained minimum university entry grade. This, Ms. Ngugi argues, violated her rights and fundamental freedoms. She cited Articles 35 and 47 of the Constitution in this regard.

Violation of rights

1. The primary facts in this petition are undisputed. Ms. Ngugi sat for the KSCE examinations in 2007. At the point when examination results were released, her result slip showed that she had a mean grade of C plus, the minimum university entry grade. There is also no dispute that Ms. Ngugi was admitted to the Bachelor of education (Arts) decree and graduated in 2019. That grade of C Plus was however changed to C Plain, a fact that is in the certificate that was later issued to her.
2. The Council’s explanation is that there was a system error which caused as few results, including that of Ms. Ngugi, to have a wrong mean grade. The error was detected and immediately corrected. Correct results and result slips were then dispatched to the schools. The Council denied violating Ms. Ngugi’s rights and fundamental freedoms.
3. Violation of rights and fundamental freedoms is a fact that a petitioner must establish for the claim to succeed. Ms. Ngugi’s case is that the change of her mean grade from C Plus to C plain violated her rights.
4. I have considered the evidence on record and the explanation by the Council. It is not denied that there was an error that was caused by the system which affected the rounding of between a lower and higher grade leading to the erroneous grade that was in Ms. Ngugi’s initial result slip and those of other candidates. The error was detected and immediately corrected. Result slips with correct grades were dispatched to schools and the result slips with errors recalled.  Ms. Ngugi had, however, already collected the initial result slip with the error and used it to gain admission to the university. She admitted that she did not collect her KSCE certificate until after completing her Bachelor’s degree education in 2019.
5. Ms. Ngugi’s argument is that she was not informed or heard before her grade was changed. She was also not given reasons for the change of grade.  She does not deny the fact that her certificate with her correct grade had been in her school from March 2009.
6. A party alleging violation of Article 47 must show that the action complained on was not efficient, reasonable and lawful, the essence of the right to a fair hearing. In this respect, Ms. Ngugi had to show that she was entitled to a hearing before the grade/ result was changed.
7. Ms. Ngugi has not pointed any provision governing examinations that required the Council to consult or inform a candidate that it was to change the result or grade in the result slip. It must be appreciated that a result slip is not a certificate. That the Council could correct information on the result slip, was clear in Ms. Ngugi’s result slip which stated prominently at the top, thus:

“This result slip is not a certificate. The Kenya National Examination Council reserves the right to correct the information given on result slips which will be confirmed by the issue of certificates.”

1. That the result slip was not a certificate and the Council could “correct” information on the result slip was within Ms. Ngugi’s knowledge at the time she collected the result slip and even at the time when she used it to seek admission to university. Ms. Ngugi cannot, therefore, blame the Council that it changed her grade without giving her notice or a hearing.
2. Furthermore, the correction was effected following a system error that caused the problem in the grading of candidates. To make the correction, the Council did not have to contact the candidates, including Ms. Ngugi, or give reasons for it.
3. I must also point out that Ms. Ngugi stated that she scored the following grades in individual subjects, that is: English B-; Kiswahili C; Mathematics D+; Physics D; Chemistry D History and Government C+; Christian Religious Education B and Business Studies B. She admitted that these are the same subject scores in her certificate. The only change in the certificate being the overall mean grade.
4. The Council confirmed that Ms. Ngugi’s individual subject scores in the initial result slip are the same in certificate. The Council, added, however, that the subject scores had a total of 42 points which were equivalent to C Plain, which was the mean grade Ms. Ngugi was awarded. From the circumstances of this case, Ms. Ngugi had to demonstrate that she had the right to score a mean grade of C Plus and that the grade of C Plain she eventually got was not her true grade.
5. Grades are awarded according to the framework put in place by the Council. The Council’s argument that the error was caused by the system and, as already pointed out, the error was promptly corrected has not been challenged.
6. Ms. Ngugi has also not denied that the aggregate points of 42 she scored in the subjects she was examined were equivalent to a mean grade of C Plain in her Certificate. In that respect, other than the error which cannot be attributed to the Council’s willful act or negligence, there is no evidence of direct or indirect violation of Ms. Ngugi’s rights or fundamental freedoms. She has also not shown that the Council could have prevented the error, but failed to do so.
7. The issue in this petition being on grading of candidates in examinations and awarding grades achieved, this is a matter that was within the mandate of the Council which was best placed to decide what grade a candidate deserved. In Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the court observed and, correctly in my view, that the court would not order the Council, when carrying out the process of marking examination papers, to award a particular mark to a particular candidate since that duty lies with the Council and not the court.
8. Similarly, as the court observed in Kenya National Examination Council v Republic Exparte Kemunto Regina Oura [2010] eKLR, a court should be reluctant to substitute its own views as to what is wise, prudent and proper in relation to education matters. This is more particularly so, when it comes to the grades to award candidates in examinations.
9. In that respect, the issue in this petition was not about cancellation of results as argued by Ms. Ngugi, but correction of an error on the mean grade to correspond with the points she had scored. She has not demonstrated that it was possible for her to score a mean grade of C Plus with 42 points when the points making that grade (of C Plus) range from 46 to 52.

       Conclusion

1. Having considered petition, evaluated the evidence, including the report on the findings of the committee which investigated the incident, the conclusion I come to, is that Ms. Ngugi has not proved that the Council violated her rights or fundamental freedoms. The error was system based as opposed to negligence or willful and negligent act on the part of the Council. The Council acted in accordance with its mandate to correct any information in the result slips which could not be considered a violation of rights and fundamental freedoms.

Disposal

1. Consequently, and for the above reasons, I find no merit in the petition which is hereby dismissed. I make no order on costs.

Dated, Signed and Delivered at Nairobi this 29^th Day of          April 2024

E C MWITA

                                              JUDGE