The Petition herein seeks that the court makes a declaration that the Respondent’s decision to decline to award the Petitioner with a certificate in surgical clinical ophthamology is unconstitutional, illegal and in violation of the Petitioner’s rights; the Petitioner also sought for damages for violation of his rights; He also sought for an order of mandating the Respondent to issue him with the requisite certificate in surgical Clinical Ophthamology. The Petitioner also sought for costs of the petition.
The petition is premised on the grounds that the Petitioner was an employee of the 1st Respondent working as an Ophthalmic Clinical Officer at the New Nyanza General Hospital Kisumu on permanent and pensionable terms.
That between 1987 to 1989 the 1st Respondent selected him and 4 other colleagues from different hospitals in the country to undertake training to become a cataract surgeon certified by the 2nd Respondent.
That upon completion of the training the Petitioner was posted back to New Nyanza Provincial Hospital where he continued serving as a Surgical Ophthalmic Clinical Officer until his voluntary retirement in 1991.
That upon his retirement he learnt that apart from him all the other colleagues selected for the training had been awarded certification for the course by the 2nd Respondent. That his efforts to engage the 2nd Respondent to issue him with the certificate has not been successful and the 2nd Respondent has also ignored and / or failed to communicate and explain the reason for denial and he has never been given a chance to be heard.
That as a result of the commission/ omission has seriously impeded his socio-economic right to practice as a surgical ophthalmic Clinical Officer and earn a living and thus he has been unable to fend for himself in private since retirement.
The provisions of the Constitution, Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and Section 4(3) of the Fair Administrative Actions Act that the Petitioner alleges to have been infringed by the Respondents are listed in Part D 16 to 31 of the Petition and the Petitioner challenged the Respondent’s action of discriminating against him and refusing to issue him with a certificate in Surgical Clinical Ophthalmology like his colleagues who went through a similar program were issued with certificates.
This petition was supported by the affidavit of the Petitioner sworn on 5th October 2023
The 1 ST Respondent filed grounds of opposition dated 1 6th day of June, 2025 to oppose the Petition as follows:
THAT the Petition does not outline with precision and specificity how the 1st Respondent has violated the Petitioner's Constitutional rights as was espoused under the locus classicus case of Anarita Karimi Njeru V Republic (1979) eKLR reiterated by the. Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR.
2. THAT the 1st Respondent does not conduct any training, accreditation and/or certification for any courses offered either by the 2nd Respondent herein or any other institution of higher learning which fall within the exclusive supervision of the Ministry of Education.
3. THAT the Petition does not disclose any reasonable cause of action against the 1st Respondent that accrued either during the pendency of their employment relationship or after it was mutually extinguished.
4. THAT if at all there is any contractual dispute arising out of the Petitioner's employment relationship with the 1st Respondent, then the same is time — barred and cannot be entertained by this Court for want of jurisdiction.
5. THAT the Petitioner is guilty of laches, indolence and inordinate delay which cannot be cured by circumventing the law through a Constitutional Petition.
6. THAT the reliefs sought by the Petitioner against the 1st Respondent are misconceived, untenable and are not supported by factual evidence or the Law.
7. THAT the Petition lacks merit and amounts to a complete abuse of the Court process.
The 1st Respondent prayed that the said Petition be dismissed with costs.
Vide replying affidavit sworn by DR. KELLY OLUOCH on 27th January 2025 the 2nd Respondent opposed the petition and averred as follows:
1. THAT I am the Chief Executive Officer of the Kenya Medical Training College (KMTC), the 2nd Respondent herewith and in my capacity aforesaid fully seized with the facts of this case, competent and duly authorized by the Defendant/Applicant to swear this Affidavit.
2. THAT I have read and understood the Petition dated 5th October 2023 together with the Affidavit of Sylvester Magoe Getanyi and where necessary I have had the tenor and purport of the same explained to me by the 2nd Respondents Advocate son record, Messers Mutua
Nyongesa Muthoka Advocates and wish to respond to the same as herewith;
3. THAT from the onset, I wish to state that the Petition as filed is not only defective, but misled and an abuse of court process.
4. THAT further, the said Petition does not meet the required threshold of Constitutional petitions as aptly enunciated in the Anarita Karimi Njeru Case.
5. THAT furthermore, the allegations of violations are not adequately particularized, not well founded, vague and do not clearly and adequately show how and by whom they have been perpetrated. The Petition in its entirety seems to be a fishing exercise by the Petitioner.
6. THAT the allegations of violations of the Constitution are vague, imprecise, unfounded, lacking in particulars and do not comply with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and established case law as to the character and contents of Constitutional Petitions thereunder.
7. THAT all in all, the entire content of the Petition and the affidavit thereto is categorically denied as it raises no cause of action actionable against the 2nd Respondent herein as it seeks
the award of a certificate in a course not offered or available in the 2nd Respondents institution.
8. THAT in the circumstance, the prayers in the Petition are not capable of being granted as the 2nd Respondent cannot issue what it does not offer and on an unknown course that it has never offered especially in the year claimed by the Petitioner.
9. THAT in reply to the contents on the Supporting Affidavit, I wish to sate as hereunder;
10. THAT the 2nd Respondent is a stranger to the contents of paragraph 3 of the Supporting Affidavit as it is not privy to the places in which the Petitioner practiced between the years 1977 to the year 1989.
11. THAT in further response, the 2nd Respondent is stranger to the allegations that the Petitioner together with others were selected by the Ministry of Health for training in order to attain a higher diploma in Surgical Clinical Ophthalmology (cataract surgery) as the same is not a course offered by the 2nd Respondent and has never been offered by it. Furthermore, the minutes attached therein are clear that neither the 2nd Respondent nor its representatives were present at the said meeting as can be seen from the list of the members present. Further, the authenticity of the said minutes is questionable since the same are unknown to the 2nd Respondent and neither do they exist in its records.
12. THAT further to the above, the alleged minutes are neither signed nor dated thus rendering the same unreliable and lacking authenticity.
13. THAT in further reply, it should be noted that the 2nd Respondent, the Kenya Medical Training College only came into existence vide the Kenya Medical Training College Act of the year 1990, which act commenced on 1st April 1991. As such, the Petitioner could not have been training with the 2nd Respondent between 1987 and 1989 when the 2nd Respondent was not even in existence in its current form.
14. THAT the contents of paragraph 4 are denied in toto and the 2nd Respondent is in any event a stranger to the same as it does not and never had any such requirements for the unknown course as is being pleaded by the Petitioner. In fact, the alleged circular is not headed, does not disclose its source, neither is it dated nor signed and as such, its origin is unknown and cannot be relied upon as a basis for the Claim by the Petitioner. The said circular is thus denied as it did not originate from the 2nd Respondent and the 2nd Respondent is a stranger to the same and to the contents therein.
15. THAT the 2nd Respondent is a stranger to the contents of paragraph 5, 6 and 7 of the supporting affidavit to the Petition. The minutes thereto are also strange to it as it was not a participant in the alleged meetings leading to the said purported minutes which minutes are also not signed and as such, cannot be authenticated.
16. THAT in response to paragraph 8, the certificates attached therein are unintelligible and despite the 2nd Respondent having requested to be served with clear copies through its advocates on record, the said plea has been ignored by the Petitioner/his advocates and as such, the same cannot be authenticated by the 2nd Respondent.
17. THAT in any event, the 2nd Respondent has never offered a course titled “Surgical Clinical Ophthalmology” as is being alleged by the Petitioner.
18. THAT the contents of paragraph 9 are denied in toto and the 2nd Respondent categorically states that the same is misplaced as no infringement of any right has been perpetuated by it as the Petitioner herein is seeking certification in a course that has never existed. The same is therefore misdirected ad misguided.
19. THAT from the records available with the 2nd Respondent, the Petitioner herein has graduated twice from the 2nd Respondents predecessor in title.
20. THAT the Petitioner herein graduated in the year 1977 as a Registered Clinical Officer and was issued with a certificate serial no. 95 from the institution.
21. THAT the Petitioner again graduated in the year 1983 as a Clinical Officer (Ophthalmic) and was issued with a certificate serial number 5937.
22. THAT I wish to state that the Kenya Medical Training College (KMTC) started to offer a Higher Diploma in Clinical Medicine & Surgery (Cataract Surgery) in the year 1991. As such, the petitioner could not have benefited from this program as he alleges that he trained for Cataract Surgery between 1987 and 1989.
23. THAT the 2nd Respondent has no record of the Petitioner herein training for the Higher Diploma in Clinical Medicine & Surgery (Cataract Surgery) from the year 1991 onwards when the said course became available.
24. THAT it should be noted that prior to the year 1991, Cataract surgery training was offered through an arrangement between Hospitals, the Ministry of Health and the Kenya Society for the Blind, and not as a course at the Kenya Medical Training College (KMTC). As such, no certificate can be issued by the institution for a course it never offered nor participated in.
25. THAT on 3rd August 2022, the Petitioner herein applied to be issued with a certificate in Higher Diploma in Ophthalmic/Cataract Surgery from the 2nd Respondent. As the 2nd Respondent has never offered any programme by the name Ophthalmic/Cataract Surgery, the Petitioner was advised that a replacement certificate could only be made for his Higher Diploma in Ophthalmology which he had successfully completed in the year 1983 upon payment of replacement fees.
26. THAT the Petitioner herein paid the requisite replacement fee and he was issued with a replacement certificate which he duly collected from the 2nd Respondent.
27. THAT in the circumstance, it is clear that the Petitioners claim is misguided as he has been previously advised and he collected a replacement for the diploma that he actually trained for and as requested by himself.
28. THAT it is also clear that the Petitioner is guilty of laches as the alleged certificate of the unknown course apparently trained for between the year 1987 and 1989 is being sought for in a Petition filed in the year 2023, a period of over 38 years since the cause of action apparently arose.
29. THAT the filing of the suit herein as a constitutional Petition is thus an innovative scheme to go round the statutes of limitation for an issue that apparently arose more than 38 year ago.
30. THAT in any event, the Petition is in clear contravention of Section 3 of the Public Authorities Limitation Act, CAP 39.
31. THAT in the circumstance, I do pray that the Petition herewith be dismissed as the same is a clear case of abuse of court process and seeks for orders that are not available to the Petitioner and more specifically orders that cannot be sought as against the 2nd Respondent as the 2nd Respondent cannot and is not in a position to issue a certificate for a course that it has never offered nor has it ever provided to the Petitioner herein between the year 1987 and 1989 as sought therein.
32. THAT the Petition herein is only fit for dismissal and/or striking out as it not merited and neither is it one befitting of the prayers sought as it does not meet the threshold of a constitutional petition.
33. THAT I thus pray that the Petition herein be dismissed with costs to the 2nd Respondent.
The Petitioner filed a supplementary/ further affidavit sworn on 27th March 2025 to controvert the 2nd Respondent’s averment sin the replying affidavit.
The Petition was canvassed by way of written submissions.
The Petitioners submissions are dated 22nd November 2024 and supplementary submissions dated 24th March 2025 which have been quoted verbatim below for ease of reference as follows:
The Petitioner’s case is that he was discriminated against by the Respondents when he was without proper cause denied certification for Surgical Clinical Opthalmology by the 2nd Respondent. That he Petitioner has produced a circular showing the requisite conditions they had to attain to qualify for the certificate. The Petitioner has further produced various minutes confirming that indeed he had attained the said conditions and was posted back to the 3rd Respondent where he practiced Surgical Clinical Opthalmology till his resignation in 1991.
34. He submitted that he had been selected alongside four other colleagues, Dr. Mulatia, Mr. Maina, Mr. Binns and Mr. Abdinuur, to go through the rigorous training, however, it came as a shock when he later discovered his colleagues were awarded the certificate which he was never awarded. In support of his claim that he was discriminated the Petitioner produced a copy of the said certificate that was awarded to Dr. Mulatia.
35. Additionally, the Petitioner further submitted that, the Respondents never accorded him fair hearing in denying him the said certificate. Consequently, his socio-economic rights and fair labour practices were violated. The Petitioner submitted that he tried to follow up the case with the Respondents, however, nothing was forthcoming hence this petition. It thus, didn’t come as a shock that despite service of this petition on the Respondents as evidence by an affidavit of service dated 10th May, 2024 and filed on the CTS, none of the Respondents has even bothered to respond or defend themselves against the claims herein.
The Petitioner cited the authority in Ripples International v Attorney General & Another [2022] where the court held that where constitutional violations are brought before the court, one has to clearly identify the particular sections of the Constitution violated, illustrate how actions by a Respondent have clearly violated those constitutional provisions and clearly state the prayer they seek from the court. The court held;
“It is trite that a petitioner in a constitutional petition is required to not only cite the provisions of the Constitution which have been violated, but the manner in which they have been violated with regard to them. (see Anarita Karimi Njeru (1976-80) 1 KLR 1272). In demonstrating the manner in which there has been a violation of their rights or of the Constitution, the petitioner should present before the court evidence or a factual basis on which the court can make a determination whether or not there has been a violation.”
The Petitioner in further submissions also put reliance on the holding in John Harun Mwau & 3 others vAttorney General & 2 others [2012] eKLR (per Lenaola, Mumbi (as they then were) & Majanja JJ) while agreeing with a submission on mootness as follows:
“We also agree with the submissions of Prof Ghai that this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under article 165(3)(d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy. In this case the dispute before the court falls squarely within the province of article 258 of the…..”I respectfully agree….”
The Petitioner submitted that he has positively discharged this burden by pleading that his right to fair and equal treatment had been violated by being discriminated, right to a fair hearing and right to fair socio-economic rights and labor practices have all been violated by the Respondents. He contended that he had showcased the particular articles in the Constitution of Kenya that buttress these rights, other international conventions protecting the same rights and how the Respondents have violated these rights. Thus, the Petition is not moot and presents an actual infringement of constitutional rights.
The Petitioner also cited that holding in Nyabola v Attorney General & Another [2014] where the court discussed in depth on the right to fair and equal treatment and freedom from discrimination. That the court discussed the test of discrimination as one hinged on rationality of decision. It explained;
“50. Wilson J., in Andrews v Law Society of British Columbia [1989] I SCR 321, defined discrimination as a“distinction which whether intentional or not but based on grounds relating to personal characteristics of individual or group [which] has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.” Article 27 guarantees equality for all persons and prohibits discrimination and the term “discrimination” implies any distinction, exclusion, restriction or preference which is based 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. 51.For the purpose of this case, it refers to any distinction, exclusion, limitation or preference based on the grounds enumerated which has the purpose of nullifying or impairing equality of treatment in education. According to article 1 of the 1960 UNESCO Convention against Discrimination in Education such distinction, exclusion, limitation or preference may be manifested in depriving any person or group of persons of access to education of any type or at any level; of limiting any person or group of persons to education of inferior standard; or of establishing or maintaining separate education systems or institutions for persons or groups of persons.
52.The issue whether children in private schools may be the subject of discrimination was dealt with in the case of John Kabui Mwai & 3 others v Kenya National Examination Council Nairobi Petition No 15 of 2011 [2011] eKLR. In that case the High Court held that from a reading of article 27(4) considered in light of article 259(4)(b) of the Constitution, the framers of the Constitution did not intend to declare the categories of discrimination mentioned in article 27(4) to be closed and that children in private schools could therefore be the subject of discrimination.
53.It is now well established that inequality treatment is not per se prohibited (see Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another, NRB Petition No 102 of 2011; [2011] eKLR and Community Advocacy and Awareness Trust & 8 Others v Attorney General, NRB Petition 243 of 2011 [2012] eKLR). The question as to whether a discrimination is fair or unfair hence illegal is to be weighed against the rationality test. This is to say that the aim of the inequality should be aimed to achieve a certain legitimate governmental objective. This was clearly elucidated in RM v Attorney General [2008] 1 KLR (G & F) 574, the court stated that, “The equal protection do not in our view require things which are different in fact or in law to be treated as though they are the same. Indeed the reasonableness of a classification would depend upon the purpose for which the classification is made. There is nothing wrong in providing differently in situations that are factually different. The law does all that is needed when it does all it can, indicates a policy, applies it to all within the lines and seeks to bring within the lines all similarly situated so far and as first as its means allow.” The court further stated that, “We further hold that the principle of equality and non-discrimination does not mean that all distinctions between people are illegal. Distinctions are legitimate and hence lawful if they satisfy the following:-
(1)Pursue a legitimate aim such affirmative action to deal with factual inequalities; and(2)Are reasonable in the light of their legitimate aim. ”Although the court referred to a reasonable basis for differentiation, I think the proper test is one of rationality in the sense that all the court needs to be satisfied is that the object of differentiation bears a rational relationship to a legitimate government purpose compatible with the principles and values of the Constitution. Such a test maintains fidelity to the principle of separation of powers that is one of the pillars of the Constitution (see Political Parties Coalition Forum Coalition & others v Office of the Registrar of Political Parties and others NRB Petition No 436 of 2013; [2014] eKLR).
54.The question for my determination is not merely whether the provisions are discriminatory or amount to unequal treatment, but whether the different treatment of children in public and private schools in the circumstances of this case bears a rational connection with legitimate governmental purpose. The issue of the different treatment of public and private schools was considered in John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others (supra). The question for consideration was whether the formula used to determine the number of Kenya Certificate of Primary Education candidates to be placed in national schools from public and private primary schools of a particular district discriminated against candidates from private schools. The effect of the formula was to diminish the number of private school students proceeding to national public secondary schools compared to their public-school counterparts. The petitioners contended that the policy discriminated against private school students and that the policy did not afford them the opportunity to realize their full potential. In considering the matter the High Court observed as follows; “Rightly or wrongly, and it is not for the courts to decide, the framers of the Constitution manifestly regarded as inadequate a blanket right to equal treatment, and their intention was to remedy the perceived societal inequalities thus recognizing the necessity of corrective measures, namely those envisaged in article 27(6), which were at the same time given the status of constitutional guarantee. It was out of the realization that unequal people cannot be treated equally. Comparisons between different groups are necessary to discern the differential effect of policy and to assist the court in properly characterizing and identifying the groups that are relevant to the particular article 27 at hand. …… Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in equality or whether, on the other hand, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.”
55.In order to determine whether the policy is discriminatory, it is necessary to consider whether funding or in kind support for public schools to the exclusion of private schools is achieves a legitimate aim consistent with the constitutional values and principles…”
The Petitioner also argued that there was no rational or legitimate aim consistent with the constitutional values and principles to justify why the Respondent denied him certification and none existed. In the contrary the Petitioner said that he discovered all the colleagues who attended the same course had been given certificates.
The Petitioner submitted that the above circumstances amount to differential treatment yet our Constitution enshrines and protects the right to equality and freedom from discrimination. The Petitioner alleged that the Respondents discriminated against the him and cited the authority in Nelson Andayi Havi v Law Society of Kenya [2018] eKLR where Mativo J (as then was) describe differential treatment as;
“92. From the above definition, it is safe to state that the Constitution prohibits unfair discrimination. In my view, unfair discrimination is differential treatment that is demeaning. This happens when a law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.94. The clear message emerging from the authorities, both local and foreign, is that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason is a most reprehensible phenomenon. But where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination.95. It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.96. The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose. The rationality requirement is intended to prevent arbitrary differentiation. The authorities on equality suggest that the right to equality does not prohibit discrimination but prohibits unfair discrimination”
The Petitioner further submitted that the Respondents never informed him of any reasons let alone legitimate ones for such differentiation neither did they give him a chance to be heard. Whether the denial was an administrative decision arrived at, the 1st and 2nd Respondents ought to have informed the Petitioner in line with the provisions of Article 47 of the Constitution on fair administrative action which is inalienable.
The Petitioner submitted that the only conclusion that can be drawn from the actions of the Respondents, is that they were arbitrary and irrational and the burden is on them to show this court that they didn’t violate the Petitioner’s right to equality and didn’t discriminate against him.
It was also submitted that the Respondents despite being served with this petition severally have never filed any response. It is thus incumbent upon this court to protect and call out the Respondents for these violations.
With regard to socio-economic rights, the Petitioner submitted that Article 21(1) of the Constitution places both negative and positive obligations on the state and its agents with regard to protection of rights. That these rights were upheld by the Supreme Court in Mitu-bell Welfare Society v The Kenya Airports Authority & 2 Others [2013] eKLR where the court reiterated that the state and its agents, owe the biggest burden of protecting and ensuring implementation of these socio-economic rights. In this instance, the state through its agents the 1st and 2nd Respondents had a positive duty to promote actions that protect the Petitioner’s and other citizens’ access to socio-economic rights such as being free from hunger, having adequate food of acceptable quality and social security.
The Petitioner submitted that the denial of the certificate directly impeded his capability to fend for himself since his resignation from public service. That owing to these actions by the Respondents, he has been condemned to a life of destitution yet he is a qualified Surgical Clinical Opthalmologist.
It was the Petitioners submission that state agents such as the 1st and 2nd Respondents have a duty to protect and uphold constitutionally protected rights and freedoms and where violations are anticipated, the same must be communicated and one given an opportunity for fair administrative action and within the ambits of Article 24 of the Constitution on Limitation of Constitutional rights.
The Petitioner contended that actions by the Respondents were not justified in the circumstances and to date he has never been subjected to any administrative action let alone a fair administrative action and his right to equality and freedom against discrimination, right to fair administrative action and right to fair socio-economic rights were infringed by the Respondents.
The Petitioner prayed that this court allows the Petition and grant the orders sought as per the Petition dated 5th October, 2023.
In response to the Petitioners submissions the 2nd Respondent filed submissions dated 4thMay 2025 as follows:
The Petitioner alleges that he trained between the year 1987 a
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The petition is premised on the grounds that the Petitioner was an employee of the 1st Respondent working as an Ophthalmic Clinical Officer at the New Nyanza General Hospital Kisumu on permanent and pensionable terms.
That between 1987 to 1989 the 1st Respondent selected him and 4 other colleagues from different hospitals in the country to undertake training to become a cataract surgeon certified by the 2nd Respondent.
That upon completion of the training the Petitioner was posted back to New Nyanza Provincial Hospital where he continued serving as a Surgical Ophthalmic Clinical Officer until his voluntary retirement in 1991.
That upon his retirement he learnt that apart from him all the other colleagues selected for the training had been awarded certification for the course by the 2nd Respondent. That his efforts to engage the 2nd Respondent to issue him with the certificate has not been successful and the 2nd Respondent has also ignored and / or failed to communicate and explain the reason for denial and he has never been given a chance to be heard.
That as a result of the commission/ omission has seriously impeded his socio-economic right to practice as a surgical ophthalmic Clinical Officer and earn a living and thus he has been unable to fend for himself in private since retirement.
The provisions of the Constitution, Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and Section 4(3) of the Fair Administrative Actions Act that the Petitioner alleges to have been infringed by the Respondents are listed in Part D 16 to 31 of the Petition and the Petitioner challenged the Respondent’s action of discriminating against him and refusing to issue him with a certificate in Surgical Clinical Ophthalmology like his colleagues who went through a similar program were issued with certificates.
This petition was supported by the affidavit of the Petitioner sworn on 5th October 2023
The 1 ST Respondent filed grounds of opposition dated 1 6th day of June, 2025 to oppose the Petition as follows:
THAT the Petition does not outline with precision and specificity how the 1st Respondent has violated the Petitioner's Constitutional rights as was espoused under the locus classicus case of Anarita Karimi Njeru V Republic (1979) eKLR reiterated by the. Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR.
2. THAT the 1st Respondent does not conduct any training, accreditation and/or certification for any courses offered either by the 2nd Respondent herein or any other institution of higher learning which fall within the exclusive supervision of the Ministry of Education.
3. THAT the Petition does not disclose any reasonable cause of action against the 1st Respondent that accrued either during the pendency of their employment relationship or after it was mutually extinguished.
4. THAT if at all there is any contractual dispute arising out of the Petitioner's employment relationship with the 1st Respondent, then the same is time — barred and cannot be entertained by this Court for want of jurisdiction.
5. THAT the Petitioner is guilty of laches, indolence and inordinate delay which cannot be cured by circumventing the law through a Constitutional Petition.
6. THAT the reliefs sought by the Petitioner against the 1st Respondent are misconceived, untenable and are not supported by factual evidence or the Law.
7. THAT the Petition lacks merit and amounts to a complete abuse of the Court process.
The 1st Respondent prayed that the said Petition be dismissed with costs.
Vide replying affidavit sworn by DR. KELLY OLUOCH on 27th January 2025 the 2nd Respondent opposed the petition and averred as follows:
1. THAT I am the Chief Executive Officer of the Kenya Medical Training College (KMTC), the 2nd Respondent herewith and in my capacity aforesaid fully seized with the facts of this case, competent and duly authorized by the Defendant/Applicant to swear this Affidavit.
2. THAT I have read and understood the Petition dated 5th October 2023 together with the Affidavit of Sylvester Magoe Getanyi and where necessary I have had the tenor and purport of the same explained to me by the 2nd Respondents Advocate son record, Messers Mutua
Nyongesa Muthoka Advocates and wish to respond to the same as herewith;
3. THAT from the onset, I wish to state that the Petition as filed is not only defective, but misled and an abuse of court process.
4. THAT further, the said Petition does not meet the required threshold of Constitutional petitions as aptly enunciated in the Anarita Karimi Njeru Case.
5. THAT furthermore, the allegations of violations are not adequately particularized, not well founded, vague and do not clearly and adequately show how and by whom they have been perpetrated. The Petition in its entirety seems to be a fishing exercise by the Petitioner.
6. THAT the allegations of violations of the Constitution are vague, imprecise, unfounded, lacking in particulars and do not comply with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and established case law as to the character and contents of Constitutional Petitions thereunder.
7. THAT all in all, the entire content of the Petition and the affidavit thereto is categorically denied as it raises no cause of action actionable against the 2nd Respondent herein as it seeks
the award of a certificate in a course not offered or available in the 2nd Respondents institution.
8. THAT in the circumstance, the prayers in the Petition are not capable of being granted as the 2nd Respondent cannot issue what it does not offer and on an unknown course that it has never offered especially in the year claimed by the Petitioner.
9. THAT in reply to the contents on the Supporting Affidavit, I wish to sate as hereunder;
10. THAT the 2nd Respondent is a stranger to the contents of paragraph 3 of the Supporting Affidavit as it is not privy to the places in which the Petitioner practiced between the years 1977 to the year 1989.
11. THAT in further response, the 2nd Respondent is stranger to the allegations that the Petitioner together with others were selected by the Ministry of Health for training in order to attain a higher diploma in Surgical Clinical Ophthalmology (cataract surgery) as the same is not a course offered by the 2nd Respondent and has never been offered by it. Furthermore, the minutes attached therein are clear that neither the 2nd Respondent nor its representatives were present at the said meeting as can be seen from the list of the members present. Further, the authenticity of the said minutes is questionable since the same are unknown to the 2nd Respondent and neither do they exist in its records.
12. THAT further to the above, the alleged minutes are neither signed nor dated thus rendering the same unreliable and lacking authenticity.
13. THAT in further reply, it should be noted that the 2nd Respondent, the Kenya Medical Training College only came into existence vide the Kenya Medical Training College Act of the year 1990, which act commenced on 1st April 1991. As such, the Petitioner could not have been training with the 2nd Respondent between 1987 and 1989 when the 2nd Respondent was not even in existence in its current form.
14. THAT the contents of paragraph 4 are denied in toto and the 2nd Respondent is in any event a stranger to the same as it does not and never had any such requirements for the unknown course as is being pleaded by the Petitioner. In fact, the alleged circular is not headed, does not disclose its source, neither is it dated nor signed and as such, its origin is unknown and cannot be relied upon as a basis for the Claim by the Petitioner. The said circular is thus denied as it did not originate from the 2nd Respondent and the 2nd Respondent is a stranger to the same and to the contents therein.
15. THAT the 2nd Respondent is a stranger to the contents of paragraph 5, 6 and 7 of the supporting affidavit to the Petition. The minutes thereto are also strange to it as it was not a participant in the alleged meetings leading to the said purported minutes which minutes are also not signed and as such, cannot be authenticated.
16. THAT in response to paragraph 8, the certificates attached therein are unintelligible and despite the 2nd Respondent having requested to be served with clear copies through its advocates on record, the said plea has been ignored by the Petitioner/his advocates and as such, the same cannot be authenticated by the 2nd Respondent.
17. THAT in any event, the 2nd Respondent has never offered a course titled “Surgical Clinical Ophthalmology” as is being alleged by the Petitioner.
18. THAT the contents of paragraph 9 are denied in toto and the 2nd Respondent categorically states that the same is misplaced as no infringement of any right has been perpetuated by it as the Petitioner herein is seeking certification in a course that has never existed. The same is therefore misdirected ad misguided.
19. THAT from the records available with the 2nd Respondent, the Petitioner herein has graduated twice from the 2nd Respondents predecessor in title.
20. THAT the Petitioner herein graduated in the year 1977 as a Registered Clinical Officer and was issued with a certificate serial no. 95 from the institution.
21. THAT the Petitioner again graduated in the year 1983 as a Clinical Officer (Ophthalmic) and was issued with a certificate serial number 5937.
22. THAT I wish to state that the Kenya Medical Training College (KMTC) started to offer a Higher Diploma in Clinical Medicine & Surgery (Cataract Surgery) in the year 1991. As such, the petitioner could not have benefited from this program as he alleges that he trained for Cataract Surgery between 1987 and 1989.
23. THAT the 2nd Respondent has no record of the Petitioner herein training for the Higher Diploma in Clinical Medicine & Surgery (Cataract Surgery) from the year 1991 onwards when the said course became available.
24. THAT it should be noted that prior to the year 1991, Cataract surgery training was offered through an arrangement between Hospitals, the Ministry of Health and the Kenya Society for the Blind, and not as a course at the Kenya Medical Training College (KMTC). As such, no certificate can be issued by the institution for a course it never offered nor participated in.
25. THAT on 3rd August 2022, the Petitioner herein applied to be issued with a certificate in Higher Diploma in Ophthalmic/Cataract Surgery from the 2nd Respondent. As the 2nd Respondent has never offered any programme by the name Ophthalmic/Cataract Surgery, the Petitioner was advised that a replacement certificate could only be made for his Higher Diploma in Ophthalmology which he had successfully completed in the year 1983 upon payment of replacement fees.
26. THAT the Petitioner herein paid the requisite replacement fee and he was issued with a replacement certificate which he duly collected from the 2nd Respondent.
27. THAT in the circumstance, it is clear that the Petitioners claim is misguided as he has been previously advised and he collected a replacement for the diploma that he actually trained for and as requested by himself.
28. THAT it is also clear that the Petitioner is guilty of laches as the alleged certificate of the unknown course apparently trained for between the year 1987 and 1989 is being sought for in a Petition filed in the year 2023, a period of over 38 years since the cause of action apparently arose.
29. THAT the filing of the suit herein as a constitutional Petition is thus an innovative scheme to go round the statutes of limitation for an issue that apparently arose more than 38 year ago.
30. THAT in any event, the Petition is in clear contravention of Section 3 of the Public Authorities Limitation Act, CAP 39.
31. THAT in the circumstance, I do pray that the Petition herewith be dismissed as the same is a clear case of abuse of court process and seeks for orders that are not available to the Petitioner and more specifically orders that cannot be sought as against the 2nd Respondent as the 2nd Respondent cannot and is not in a position to issue a certificate for a course that it has never offered nor has it ever provided to the Petitioner herein between the year 1987 and 1989 as sought therein.
32. THAT the Petition herein is only fit for dismissal and/or striking out as it not merited and neither is it one befitting of the prayers sought as it does not meet the threshold of a constitutional petition.
33. THAT I thus pray that the Petition herein be dismissed with costs to the 2nd Respondent.
The Petitioner filed a supplementary/ further affidavit sworn on 27th March 2025 to controvert the 2nd Respondent’s averment sin the replying affidavit.
The Petition was canvassed by way of written submissions.
The Petitioners submissions are dated 22nd November 2024 and supplementary submissions dated 24th March 2025 which have been quoted verbatim below for ease of reference as follows:
The Petitioner’s case is that he was discriminated against by the Respondents when he was without proper cause denied certification for Surgical Clinical Opthalmology by the 2nd Respondent. That he Petitioner has produced a circular showing the requisite conditions they had to attain to qualify for the certificate. The Petitioner has further produced various minutes confirming that indeed he had attained the said conditions and was posted back to the 3rd Respondent where he practiced Surgical Clinical Opthalmology till his resignation in 1991.
34. He submitted that he had been selected alongside four other colleagues, Dr. Mulatia, Mr. Maina, Mr. Binns and Mr. Abdinuur, to go through the rigorous training, however, it came as a shock when he later discovered his colleagues were awarded the certificate which he was never awarded. In support of his claim that he was discriminated the Petitioner produced a copy of the said certificate that was awarded to Dr. Mulatia.
35. Additionally, the Petitioner further submitted that, the Respondents never accorded him fair hearing in denying him the said certificate. Consequently, his socio-economic rights and fair labour practices were violated. The Petitioner submitted that he tried to follow up the case with the Respondents, however, nothing was forthcoming hence this petition. It thus, didn’t come as a shock that despite service of this petition on the Respondents as evidence by an affidavit of service dated 10th May, 2024 and filed on the CTS, none of the Respondents has even bothered to respond or defend themselves against the claims herein.
The Petitioner cited the authority in Ripples International v Attorney General & Another [2022] where the court held that where constitutional violations are brought before the court, one has to clearly identify the particular sections of the Constitution violated, illustrate how actions by a Respondent have clearly violated those constitutional provisions and clearly state the prayer they seek from the court. The court held;
“It is trite that a petitioner in a constitutional petition is required to not only cite the provisions of the Constitution which have been violated, but the manner in which they have been violated with regard to them. (see Anarita Karimi Njeru (1976-80) 1 KLR 1272). In demonstrating the manner in which there has been a violation of their rights or of the Constitution, the petitioner should present before the court evidence or a factual basis on which the court can make a determination whether or not there has been a violation.”
The Petitioner in further submissions also put reliance on the holding in John Harun Mwau & 3 others vAttorney General & 2 others [2012] eKLR (per Lenaola, Mumbi (as they then were) & Majanja JJ) while agreeing with a submission on mootness as follows:
“We also agree with the submissions of Prof Ghai that this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under article 165(3)(d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy. In this case the dispute before the court falls squarely within the province of article 258 of the…..”I respectfully agree….”
The Petitioner submitted that he has positively discharged this burden by pleading that his right to fair and equal treatment had been violated by being discriminated, right to a fair hearing and right to fair socio-economic rights and labor practices have all been violated by the Respondents. He contended that he had showcased the particular articles in the Constitution of Kenya that buttress these rights, other international conventions protecting the same rights and how the Respondents have violated these rights. Thus, the Petition is not moot and presents an actual infringement of constitutional rights.
The Petitioner also cited that holding in Nyabola v Attorney General & Another [2014] where the court discussed in depth on the right to fair and equal treatment and freedom from discrimination. That the court discussed the test of discrimination as one hinged on rationality of decision. It explained;
“50. Wilson J., in Andrews v Law Society of British Columbia [1989] I SCR 321, defined discrimination as a“distinction which whether intentional or not but based on grounds relating to personal characteristics of individual or group [which] has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.” Article 27 guarantees equality for all persons and prohibits discrimination and the term “discrimination” implies any distinction, exclusion, restriction or preference which is based 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. 51.For the purpose of this case, it refers to any distinction, exclusion, limitation or preference based on the grounds enumerated which has the purpose of nullifying or impairing equality of treatment in education. According to article 1 of the 1960 UNESCO Convention against Discrimination in Education such distinction, exclusion, limitation or preference may be manifested in depriving any person or group of persons of access to education of any type or at any level; of limiting any person or group of persons to education of inferior standard; or of establishing or maintaining separate education systems or institutions for persons or groups of persons.
52.The issue whether children in private schools may be the subject of discrimination was dealt with in the case of John Kabui Mwai & 3 others v Kenya National Examination Council Nairobi Petition No 15 of 2011 [2011] eKLR. In that case the High Court held that from a reading of article 27(4) considered in light of article 259(4)(b) of the Constitution, the framers of the Constitution did not intend to declare the categories of discrimination mentioned in article 27(4) to be closed and that children in private schools could therefore be the subject of discrimination.
53.It is now well established that inequality treatment is not per se prohibited (see Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another, NRB Petition No 102 of 2011; [2011] eKLR and Community Advocacy and Awareness Trust & 8 Others v Attorney General, NRB Petition 243 of 2011 [2012] eKLR). The question as to whether a discrimination is fair or unfair hence illegal is to be weighed against the rationality test. This is to say that the aim of the inequality should be aimed to achieve a certain legitimate governmental objective. This was clearly elucidated in RM v Attorney General [2008] 1 KLR (G & F) 574, the court stated that, “The equal protection do not in our view require things which are different in fact or in law to be treated as though they are the same. Indeed the reasonableness of a classification would depend upon the purpose for which the classification is made. There is nothing wrong in providing differently in situations that are factually different. The law does all that is needed when it does all it can, indicates a policy, applies it to all within the lines and seeks to bring within the lines all similarly situated so far and as first as its means allow.” The court further stated that, “We further hold that the principle of equality and non-discrimination does not mean that all distinctions between people are illegal. Distinctions are legitimate and hence lawful if they satisfy the following:-
(1)Pursue a legitimate aim such affirmative action to deal with factual inequalities; and(2)Are reasonable in the light of their legitimate aim. ”Although the court referred to a reasonable basis for differentiation, I think the proper test is one of rationality in the sense that all the court needs to be satisfied is that the object of differentiation bears a rational relationship to a legitimate government purpose compatible with the principles and values of the Constitution. Such a test maintains fidelity to the principle of separation of powers that is one of the pillars of the Constitution (see Political Parties Coalition Forum Coalition & others v Office of the Registrar of Political Parties and others NRB Petition No 436 of 2013; [2014] eKLR).
54.The question for my determination is not merely whether the provisions are discriminatory or amount to unequal treatment, but whether the different treatment of children in public and private schools in the circumstances of this case bears a rational connection with legitimate governmental purpose. The issue of the different treatment of public and private schools was considered in John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others (supra). The question for consideration was whether the formula used to determine the number of Kenya Certificate of Primary Education candidates to be placed in national schools from public and private primary schools of a particular district discriminated against candidates from private schools. The effect of the formula was to diminish the number of private school students proceeding to national public secondary schools compared to their public-school counterparts. The petitioners contended that the policy discriminated against private school students and that the policy did not afford them the opportunity to realize their full potential. In considering the matter the High Court observed as follows; “Rightly or wrongly, and it is not for the courts to decide, the framers of the Constitution manifestly regarded as inadequate a blanket right to equal treatment, and their intention was to remedy the perceived societal inequalities thus recognizing the necessity of corrective measures, namely those envisaged in article 27(6), which were at the same time given the status of constitutional guarantee. It was out of the realization that unequal people cannot be treated equally. Comparisons between different groups are necessary to discern the differential effect of policy and to assist the court in properly characterizing and identifying the groups that are relevant to the particular article 27 at hand. …… Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in equality or whether, on the other hand, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.”
55.In order to determine whether the policy is discriminatory, it is necessary to consider whether funding or in kind support for public schools to the exclusion of private schools is achieves a legitimate aim consistent with the constitutional values and principles…”
The Petitioner also argued that there was no rational or legitimate aim consistent with the constitutional values and principles to justify why the Respondent denied him certification and none existed. In the contrary the Petitioner said that he discovered all the colleagues who attended the same course had been given certificates.
The Petitioner submitted that the above circumstances amount to differential treatment yet our Constitution enshrines and protects the right to equality and freedom from discrimination. The Petitioner alleged that the Respondents discriminated against the him and cited the authority in Nelson Andayi Havi v Law Society of Kenya [2018] eKLR where Mativo J (as then was) describe differential treatment as;
“92. From the above definition, it is safe to state that the Constitution prohibits unfair discrimination. In my view, unfair discrimination is differential treatment that is demeaning. This happens when a law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.94. The clear message emerging from the authorities, both local and foreign, is that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason is a most reprehensible phenomenon. But where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination.95. It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.96. The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose. The rationality requirement is intended to prevent arbitrary differentiation. The authorities on equality suggest that the right to equality does not prohibit discrimination but prohibits unfair discrimination”
The Petitioner further submitted that the Respondents never informed him of any reasons let alone legitimate ones for such differentiation neither did they give him a chance to be heard. Whether the denial was an administrative decision arrived at, the 1st and 2nd Respondents ought to have informed the Petitioner in line with the provisions of Article 47 of the Constitution on fair administrative action which is inalienable.
The Petitioner submitted that the only conclusion that can be drawn from the actions of the Respondents, is that they were arbitrary and irrational and the burden is on them to show this court that they didn’t violate the Petitioner’s right to equality and didn’t discriminate against him.
It was also submitted that the Respondents despite being served with this petition severally have never filed any response. It is thus incumbent upon this court to protect and call out the Respondents for these violations.
With regard to socio-economic rights, the Petitioner submitted that Article 21(1) of the Constitution places both negative and positive obligations on the state and its agents with regard to protection of rights. That these rights were upheld by the Supreme Court in Mitu-bell Welfare Society v The Kenya Airports Authority & 2 Others [2013] eKLR where the court reiterated that the state and its agents, owe the biggest burden of protecting and ensuring implementation of these socio-economic rights. In this instance, the state through its agents the 1st and 2nd Respondents had a positive duty to promote actions that protect the Petitioner’s and other citizens’ access to socio-economic rights such as being free from hunger, having adequate food of acceptable quality and social security.
The Petitioner submitted that the denial of the certificate directly impeded his capability to fend for himself since his resignation from public service. That owing to these actions by the Respondents, he has been condemned to a life of destitution yet he is a qualified Surgical Clinical Opthalmologist.
It was the Petitioners submission that state agents such as the 1st and 2nd Respondents have a duty to protect and uphold constitutionally protected rights and freedoms and where violations are anticipated, the same must be communicated and one given an opportunity for fair administrative action and within the ambits of Article 24 of the Constitution on Limitation of Constitutional rights.
The Petitioner contended that actions by the Respondents were not justified in the circumstances and to date he has never been subjected to any administrative action let alone a fair administrative action and his right to equality and freedom against discrimination, right to fair administrative action and right to fair socio-economic rights were infringed by the Respondents.
The Petitioner prayed that this court allows the Petition and grant the orders sought as per the Petition dated 5th October, 2023.
In response to the Petitioners submissions the 2nd Respondent filed submissions dated 4thMay 2025 as follows:
The Petitioner alleges that he trained between the year 1987 a
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