Republic v Wavinya Ndeti & 4 others; Gideon Ngewa & another (Exparte); Wiper Democratic Movement Kenya (Interested Party) (Judicial Review 3 of 2022) [2022] KEHC 12434 (KLR) (18 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 12434 (KLR)
Republic of Kenya
Judicial Review 3 of 2022
GV Odunga, J
July 18, 2022
Between
Republic
Applicant
and
Wavinya Ndeti
1st Respondent
Independent Electoral Boundaries Commission
2nd Respondent
Commission for University Education
3rd Respondent
Director of Public Prosecution
4th Respondent
Kenya National Qualifications Authority
5th Respondent
and
Gideon Ngewa Kenya
Exparte
Kisilu Mutisya
Exparte
and
Wiper Democratic Movement Kenya
Interested Party
Judgment
1.The prayers the subject of this judgment are contained in the notice of motion dated June 28, 2022 in which the ex parte applicants, Gideon Ngewa Kenya and Kisilu Mutisya, seek the following orders:(a)That an order of certiorari be and is hereby issued quashing the decision of the 2nd respondent’s dispute resolution committee dated June 16, 2022 and read in open court on June 19, 2022 in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti clearing the 1st respondent to run for the position of Governor, Machakos County in the general elections scheduled for August 9, 2022.(b)That an order of mandamus be and is hereby issued compelling the 1st respondent to verify her bachelors and master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1, a link used for verification of degrees issued by any institution in the United Kingdom.(c)That an order of mandamus be and is hereby issued compelling the 2nd respondent whether by itself, servants or agents to strike out the 1st respondent’s name from the list of cleared gubernatorial candidates to vie for Governor, Machakos County in the general elections scheduled for August 9, 2022.(d)That an order of prohibition be and is hereby issued restraining the 3rd respondent, Commission of the University Education, from recognizing the academic qualifications of the 1st respondent until investigations on the 1st respondent’s academic qualifications is conducted and a determination on their authenticity made.(e)That an order of mandamus be and is hereby issued compelling the 3rd respondent, Commission of the University Education, to revoke the recognition of the 1st respondent’s bachelor’s and master’s degree obtained in 1995 and 1992 respectively as well as the 1st respondent’s graduate diploma of 1990.(f)That an order of mandamus be and is hereby issued compelling the 4th respondent, the Director of Public Prosecutions to order investigations and/or determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti.(g)That an order of mandamus be and is hereby issued compelling the 5th respondent’s Department of Recognition, Equation and Verification to verify the academic credentials of the 1st respondent.(h)That costs of this application be provided for.
Applicants’ Case
2.According to the applicants, the 1st respondent was cleared by the 2nd respondent to vie for the position of Governor, Machakos County Government in the general elections scheduled for August 9, 2022. The applicants however challenge the nomination and registration of the 1st respondent herein, Wavinya Ndeti, for the position of Governor in Machakos County for the August 9, 2022 general elections on the following grounds:a.In April 2022, Wavinya Ndeti, was given a direct ticket by the interested party to vie for the position of Governor in Machakos County and her name was subsequently submitted to IEBC on May 16, 2022.b.Thereafter, on June 4, 2022, the Machakos County Returning Officer, Nelly Illongo cleared Wavinya Ndeti to run as a gubernatorial candidate for the Wiper Democratic Movement Kenya in the August 9, 2022 elections.c.Despite the 1st respondent’s clearance, Wavinya Ndeti is not a holder of a degree recognized in Kenya as per the provisions of section 22 of the Elections Act, 2011 because on August 16, 1988, Wavinya Ndeti acquired a Diploma in Computer System Designs from the Association of Computer professionals.d.On November 9, 1989, Wavinya Ndeti acquired an Advanced Diploma in Computer Studies from the Association of Computer professionals as Wavinya Ndeti which is a proper pathway to follow.e.Surprisingly, between September 1989 to July 1990, Wavinya Ndeti studied as a full-time student at South Bank University now London South Bank University and was awarded a Graduate Diploma on July 12, 1990 without having completed a first degree yet a Graduate Diploma is a short course taken after completion of a first Degree.f.In a sudden turn of events, on November 6, 1992, Wavinya Ndeti purportedly obtained a Master of Science Degree (MSc) in Business systems analysis and design by the City University, London using the 1990 diploma in a Computer Science.g.On July 18, 1995, she claims to have obtained a bachelor’s degree (BSc) in Computing Studies from South Bank University London as Wavinya Oduwole. According to the applicants, undertaking a degree after being awarded a master’s degree in a closely related subject is impracticable.h.Later, on January 25, 1996 and July 26, 1996, the 1st respondent claims to have obtained two master’s degree in Marketing and Strategic Information Designs from Heriot-Watt University as Petti Wavinya Oduwole.
3.It was averred that from the above and taking into account the UK educational system, the 1st respondent obtained a master’s degree in 1992 and after three years obtained a bachelor’s degree in 1995 without a first degree. Further, she also obtained two Master’s Degree within 6 months of each other and after 6 months of being awarded a bachelor’s degree.
4.It was the applicants’ position that on a keen look at the 1st respondent’s academic certificates, it is hard to ascertain who Wavinya Ndeti, Wavinya Oduwole and Petti Wavinya Oduwole are because in an affidavit of names submitted to the 2nd respondent for clearance, she fails to confirm that Petti Wavinya Oduwole in her certificates is also her name.
5.It was averred that vide the letters dated May 25, 2022, the 3rd respondent confirmed that the City University London, UK and South Bank University London, UK where the 1st respondent claims to have acquired her qualifications are recognized in Kenya. However, the Commission for University Education unequivocally and expressly notified the 1st respondent that it reserved the right to revoke recognition of any award in the event it establishes that any reason makes the award in question ineligible.
6.Based on legal advice, the applicants averred that the 1st respondent has not met the general requirements for recognition and equation of qualifications of a bachelor’s degree, post graduate diploma and master’s degree.
7.They disclosed that through their previous advocates on record, they wrote to the Commission for University Education on June 15, 2022 to investigate the same and recall the recognition letters dated May 25, 2022 but to date, the 3rd respondent has failed, refused and/or declined to respond to the letter.
8.It was their position that the functions of the 3rd respondent as outlined in section 5 (1) of the Universities Act No 42 of 2012 include to promote, advance, publicize and set standards relevant in the quality of university education, recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions in accordance with the standards and guidelines set by the commission from time to time among other functions.
9.The applicants averred that based on legal advice, since the 3rd respondent has mandate to recognize and equate degrees, it can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation. Therefore, the 3rd respondent upon receiving the letter dated June 15, 2022 should have recalled the academic certificates of Wavinya Ndeti and probed the issue to ensure that the said certificates meet or are equivalent to the general requirement for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications. Based on the same advice, they averred that pursuant to section 8(m) & (n) of the Kenya National Qualifications Framework Act No 22 of 2022, the 5th respondent has a task of conducting research on equalization of qualifications; and establish standards for harmonization and recognition of national and foreign qualifications. As a result, the 5th respondent through the Department of Recognition, Equation and Verification (REV), KNQA evaluates qualifications so as to verify the academic credentials. They contended, based on the foregoing, that the 3rd respondent acted ultra vires and abused its power by recognizing the Masters and Degree Certificates for Wavinya Ndeti without establishing that the said certificates meet the set standards relevant in the quality of university education. It was their case that the Commission has also failed to equate the degrees and diplomas awarded by foreign universities and institutions in accordance with the standards and guidelines set by the commission from time to time that one cannot attain a master’s degree in 1992 and proceed to undertake a bachelor’s degree in 1995.
10.They averred that they challenged the 2nd respondent’s decision in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti stating that the IEBC Dispute Resolution Committee established under section 74 of the Elections Act, 2011 to settle election disputes relating to nomination and registration of candidates lacks jurisdiction to determine the authenticity of the academic qualifications of Wavinya Ndeti which complaint was on June 19, 2022, dismissed on the grounds that the tribunal lacked jurisdiction to entertain the complaint because the allegations raised disclose suspicion as to the authenticity of the academic qualifications of Wavinya Ndeti.
11.Based on legal advice, the applicants averred that though the 2nd respondent is an independent commission established under article 88 of the Constitution, when it comes to verification of the validity and authenticity of the academic qualifications in registration and nomination of candidates, the 2nd respondent claims it lacks jurisdiction to do so yet the complaint relates to academic certificates furnished to clear the 1st respondent in her nomination.
12.It was their case that no reasonable authority properly directing itself to the academic qualifications submitted could have made a decision to clear the 1st respondent to run for the position of Governor, Machakos County in the August 9, 2022 general elections. They invited the court to consider the undisputed fact that the 3rd respondent failed to recognize and equate the academic qualifications of the 1st respondent before issuing her with the letters recognizing her master’s and degree certificates which is a classic case of unreasonable exercise of power.
13.It was their view that the manner in which the 2nd and 3rd respondents have made decisions made them to question the integrity of the independent Commissions which have cleared a candidate who has problematic and questionable academic qualifications.
14.They were therefore apprehensive that unless this court intervenes the 1st respondent will proceed to vie yet the validity of her academic qualifications are in question and this will be against the rule of law in Kenya.
15.It was submitted on behalf of the applicants that this court ought to adopt a merit-based review in judicial review proceedings because judicial review is not limited to dry or formalistic examination of the process while strenuously and artificially avoiding merit. As such they urged the court to interrogate the merits too because the path only leads to intolerable superficiality. In this regard they relied on the decision of the Court of Appeal in Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR).
16.Regarding the feasibility of the prayers for an order of mandamus against the respondents to verify the academic credentials of Wavinya Ndeti, strike out the 1st respondents name from the list of cleared gubernatorial candidates, revoke the recognition of Wavinya Ndeti’s bachelor’s and master’s degree, order investigations as to the authenticity of Wavinya’s academic certificates and compel the Kenya National Qualifications Authority to verify the academic credentials, they submitted that an order of mandamus is a prerogative order meant to compel performance of a duty and relied on Republic v The Attorney General & another ex parte James Alfred Koroso [2013] eKLR, in which this court cited with approval the case of Shah v Attorney General (No 3) Kampala HCMC No 31 of 1969 [1970] EA 543.
17.The applicants also submitted that the circumstances under which judicial review order of mandamus are issued were discussed by the Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the Court cited with approval, Halsbury’s Law of England, 4th edition Vol 7 p 111 para 89.
18.It was appreciated that the 1st respondent complied with prayer (b) when on June 30, 2022, she provided consent forms which parties used to request for verification of her bachelor’s and master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1 in presence of the Deputy Registrar who was expected to file a report before this court and further indicate the results of the verification process. According to the applicants, the United Kingdom has a link for higher education system’s official degree verification service known as Higher Education Degree Data check (HEDD) which was used to commence the verification process.
19.Nevertheless, it was noted that the interested party questioned the said domain which the 1st respondent willingly agreed to continue with the verification and the court was urged to compel the 3rd and 4th respondents to carry out the verification process.
20.Regarding the contention by the interested party that a degree is no longer a requirement for qualification to contest in elections as a Governor in light of the High Court decision declaring section 22 (1) (b)(ii) of the Elections Act unconstitutional in County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)) [2021] KEHC 304 (KLR) (Constitutional and Human Rights) (15 October 2021) (Judgment), the applicants’ position was that the said case was in reference to the specific position of a member of the County Assembly and not the Governor position which is the issue herein. They asserted that a candidate for the position of a Governor require a degree certificate as he/she is the Chief Executive Officer of the County in accordance with article 179 (4) of the Constitution and as such will be tackled to direct the management of massive resources.
21.In respect to prayer (e) for an order of mandamus and prohibition against the Commission for University Education, it was submitted that the functions of the 3rd respondent as outlined in section 5(1) of the Universities Act No 42 of 2012 include to promote, advance, publicize and set standards relevant in the quality of university education, recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions in accordance with the standards and guidelines set by the commission from time to time among other functions. In addition, they relied on regulation 47 of the Election (General) Regulations 2012 and submitted that the 1st respondent’s academic certificates do not meet the general requirements for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications.
22.According to the applicants, though the 1st respondent claims to have obtained a master’s degree in Business Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree in Computer Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer Science in 1990 without undertaking a first degree. In their submissions, there is a close relationship between Computer Science and Business Systems Analysis and Design and as such it is illogical for a person who holds a master’s degree to undertake a bachelor’s degree in a similar field. In this regard reference was made to the report from Chelgate Consulting Firm in London which has detailed the inconsistencies in the 1st respondent’s academic certificates together with different names appearing on her certificates, which in their views made the ex parte applicants question the authenticity of the 1st respondent’s academic qualification. In addition, it was contended that the said report indicates that the minimum entry requirement for one to proceed with a master’s degree is a good second-class honours degree from a UK University, a recognized equivalent from an accredited international institution or an equivalent professional qualification. It was therefore their position that the 1st respondent has not met the minimum entry requirements and thus there is need to question her academic qualifications.
23.In their opinion, since the 3rd respondent has the mandate to recognize and equate degrees, it can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation. To them, it would have been reasonable for the 3rd respondent upon receiving the ex-parte applicants letter dated June 15, 2022 attaching the report from London, to recall the academic certificates of Wavinya Ndeti and probe the issue to ensure that the said certificates meet or are equivalent to the general requirement for recognition and equation of qualifications established. Nevertheless, despite the applicants writing to the 3rd respondent, no response has been received to date. As such, the ex-parte applicants invited the court to consider the undisputed fact that the 3rd respondent failed to recognize and equate the academic qualifications of the 1st respondent before issuing her with the letters recognizing her master’s and degree certificates which is a classic case of unreasonable exercise of power.
24.The applicants contended that the authenticity of the 1st respondents certificate is a factual issue which ought to be determined upon hearing the evidence of the applicants. Consequently, the 3rd respondent should be compelled to revoke the recognition of Wavinya Ndeti’s certificates and the Commission should be prohibited from recognizing the said degree until proper investigations are carried out.
25.Based on the report from Chelgate Consulting Firm in London it was contended that it is evident that a graduate diploma is generally a short course taken after completion of a first degree. In this case, there is no evidence that the 1st respondent undertook the first degree preceding the graduate diploma.
26.It was reiterated that the 3rd respondent acted ultra vires and abused its power by recognizing the masters and degree certificates for Wavinya Ndeti without establishing that the said certificates meet the set standards relevant in the quality of university education. The Commission also failed to equate the degrees and diplomas awarded by foreign universities and institutions in accordance with the standards and guidelines set out by the commission from time to time that one cannot attain a master’s degree in 1992 and proceed to undertake a bachelor’s degree in 1995.
27.Based on the foregoing, the court was urged to issue an order of mandamus restraining the 3rd respondent from recognizing the academic qualifications until the academic certificates are authenticated and as such the same will result to the commission being prohibited from recognizing the 1st respondent’s academic qualifications.
28.As regards prayer (g) seeking mandamus against the Kenya National Qualifications Authority, it was submitted that pursuant to section 8 (m) & (n) of the Kenya National Qualifications Framework Act No 22 of 2014, the 5th respondent has a task of conducting research on equalization of qualifications; and establish standards for harmonization and recognition of national and foreign qualifications. As such, the 5th respondent through the Department of Recognition, Equation and Verification (REV), KNQA evaluates qualifications so as to verify the academic credentials. In this case, the 1st respondent’s academic qualifications have not been verified by the 5th respondent which is tasked with evaluating qualifications to advise training institutions on foreign equivalent qualifications; verify academic qualifications, process applications for verifications and recognition and advise learners on registered qualifications and the Awarding body.
29.The applicants submitted that for a university degree to be recognized in Kenya, it must have been issued by an accredited institution. In addition, the 1st respondent had an obligation to get clearance from the Kenya National Qualification Authority since she is seeking an elective post in Kenya in accordance with the provisions of section 10 of the Kenya National Qualifications Framework Regulations, 2018.
30.From the foregoing, it was submitted that an order of mandamus ought to be issued compelling the 5th respondent’s department of recognition, equation and verification to verify the academic credentials of the 1st respondent and confirm whether the said certificates meet the quality standards in Kenya.
31.Regarding prayer (f) for mandamus against the Director of Public Prosecutions, it was submitted that the level of inconsistencies in the 1st respondent’s academic qualifications warrants investigations. According to the applicants, the 1st respondent did not meet the threshold to undertake the masters and bachelors degree as she lacked the requisite qualifications. In addition, it is problematic for one to undertake a master’s degree in 1992 in a closely related subject and thereafter proceed to do a Bachelors degree in a similar subject. Since it does not make any practical or legal sense, the court was invited to have a look at the report from the Consulting Firm which provides that one cannot undertake a master’s degree in 1992 with a diploma entry level.
32.In the applicants’ view, the questions regarding the authenticity of her bachelor’s degree are very substantive questions, which the Director of Public Prosecutions should probe into. They cited section 13(j) of the Election Offences Act No 37 of 2016 that makes it an election offence to knowingly or recklessly make a false statement or furnish false particulars in a document required under the Elections Act. It was also submitted that under article 10 of the Constitution this court and all institutions are bound to ensure there must be integrity of the electoral process.
33.According to the applicants, despite the fact that the 1st respondent claims that she was cleared in 2013, 2017 and 2022 to vie, it is trite to note that the question regarding the conflicting position on her degree and academic qualifications has never been raised in any proceedings before. It was thus submitted that where there is doubt and sufficient ground like in the instant case, there is a basis for any member of the public to approach this court for the orders sought.
34.As such, it was submitted that it is vital that the 4th respondent be compelled to order investigations to determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti in accordance with section 21 of the Election Offences Act.
35.It was noted that from the interested party’s replying affidavit, the 1st respondent was summoned to appear before an officer attached to the Director of Criminal Investigations but the 1st respondent failed to acknowledge the summons to attend the office as the same was not signed by herself. Therefore, it was submitted, it is necessary that the 4th respondent is compelled to order investigations of the 1st respondents academic qualifications.
36.In respect of prayers a & c seeking an order of mandamus and certiorari against the IEBC, section 22 (2) of the Elections Act, 2011 was relied upon together with regulation 47 (1) of the Elections (General) Regulations 2012 as amended by Legal Notice No 72 of 2017. In this case it was averred that the authenticity of the 1st respondents qualifications was raised with the 2nd respondent’s Dispute Resolution Committee in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti. However, the IEBC Dispute Resolution Committee established under section 74 of the Elections Act, 2011 to settle election disputes relating to nomination and registration of candidates delivered its ruling on June 19, 2022 where it held that it lacks jurisdiction to determine the authenticity of the academic qualifications of Wavinya Ndeti. It was however submitted that the 2nd respondent is an independent commission established under article 88 of the Constitution. Nevertheless, when it comes to verification of the validity and authenticity of the academic qualifications for registration and nomination of candidates, the 2nd respondent claims that it lacks jurisdiction to do so yet the complaint relates to academic certificates furnished to clear the 1st respondent in her nomination.
37.According to the applicants, pursuant to section 74 of the Elections Act 2011, the IEBC has jurisdiction to determine the authenticity of an academic degree. Being an independent Commission, it cannot pass the buck and claim that it relies on the Commission for University Education to determine the authenticity of an academic degree hence citing lack of jurisdiction is an affront to its independence.
38.The applicant’s basis for seeking an order of certiorari quashing the decision of the 2nd respondent was because no reasonable authority properly directing itself to the academic qualifications submitted and evidence adduced could have made a decision to clear the 1st respondent to run for the position of Governor, Machakos County in the August 9, 2022 General Elections.
39.In support of their submissions, the applicants relied on Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR, where the Supreme Court conferred the 2nd respondent’s Dispute Resolution Committee with huge legal responsibility to ensure all preliminary questions including the preliminary issues such as validity of the bachelor’s degree before one can move to the High Court because there are matters one cannot file or take to an election petition.
40.From the above, it was submitted that since the facts are inherently contradictory, the Dispute Resolution Committee had jurisdiction to question its validity and ascertain that the 1st respondent had valid and authentic academic qualifications in promotion of the principles and national values listed under article 10 of the Constitution inter alia: transparency, integrity and accountability.
1st Respondent’s Case
41.In opposing the application, the 1st respondent averred that that the instant application is an abuse of the court process, an afterthought and merely political witch-hunt meant to derail my campaigns and to curtail her political rights and her entitlements to protection under the law.
42.According to her, the applicants have wrongfully invoked the jurisdiction of this honourable court. Based on legal advice, she averred that whereas the applicants seek to challenge the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee, they failed to join the said Dispute Resolution Committee in this proceedings. Apart from that they introduced new issues and a new cause of action that was never before the Dispute Resolution Committee. They also introduced new parties namely; the Director of Public Prosecutions; the Kenya National Qualifications Authority; and the Wiper Democratic Movement Kenya, all of whom were not parties to the original Complaint before the Committee and no such deliberations were made by the Committee on this parties.
43.It was averred that the Application is self-defeating in that whereas on the one hand the Applicants seek to have her qualifications revoked, they on the other hand seek to have the same investigated.
44.She averred that the grant of the orders sought in the instant application will be greatly prejudicial to herself and a violation of her fundamental rights and freedoms to equal protection of the law under article 27 of the Constitution and her rights to a fair hearing; trial and fair administrative action as guaranteed under articles 47; 48 and 50 of the Constitution of Kenya, 2010 as read with the Fair Administrative Action Act.
45.The 1st respondent was of the view that the orders sought herein are meant to defeat and usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers of the Office of Director of Public Prosecutions and the Directorate of Criminal Investigations.
46.The 1st respondent averred that contrary to the applicants’ assertions, the applicants are seeking to verify her academic qualifications through an electronic internet platform, whose authenticity, source and author cannot be verified or vouched for; or whose maker or author or owner and patent/copyright owner has not been called to vouch and produce the same contrary to the provisions of the Evidence Act on the production of electronic evidence. According to her, neither the maker of the said domain https://hedd.ac.uk/enquirer-registration?execution=e1s1 or the relevant institutions are parties to this proceedings or where they parties before the dispute at the Dispute Resolution Committee and as such the same cannot be relied upon or be used as a basis for the determination and curtailment of her fundamental rights and freedoms to a fair hearing and trial and her political rights under article 38 of the Constitution.
47.The 1st respondent asserted that the applicants cannot purport to conclude that her academic qualifications are forgeries or were obtained fraudulently whereas no such investigations have been conducted and neither has she been afforded due process or any such judicial pronouncement been made on the same by the criminal court on the said allegations.
48.She disclosed that contrary to the applicants’ averments, the office of the Director of Public Prosecutions and the Office of the Inspector General of Police are already seized of the matter herein and are conducting their investigations in accordance with their respective constitutional mandates and as such, the instant application is a mere invitation by the applicant for this court to interfere with the lawful discharge of the mandates by the Inspector General of Police and the Director of Public Prosecutions.
49.According to the 1sT respondent, the applicants have diverged from their appeal and have failed to demonstrate in what way the Dispute Resolution Committee erred in any way either in law and in fact in their decision rendered on June 19, 2022 in IDRC/DRC/CRGE/56/2022; Gideon Ndegwa Kenya and another v Wavinya Ndeti. According to her, the jurisdiction of this court that has been invoked is appellate in nature and not original and hence the Applicants are limited and confined to the decision and materials that were placed before the Dispute Resolution Committee for hearing and determination.
50.It was contended that the applicants have neither demonstrated any wrong doings or illegalities perpetuated by the returning officer or the Dispute Resolution Committee in her clearance as a candidate to contest for the position of Governor Machakos County.
51.The 1st respondent asserted that she is one and the same person referred to as Wavinya Ndeti and Wavinya Petti Oduwole and explained that Oduwole is her late husband and confirmed this vide an Affidavit verifying her name. She insisted that she is duly qualified and duly attained the academic qualifications as per the institutions she attended and the same have all along been recognized by the relevant institutions and that she has at all material times since the year 2013 been cleared based on her academic credentials and qualifications to contest for elections.
52.It was her position that it is absurd that the applicants are now seeking to have her academic qualifications annulled or rendered void through the retrospective application of the law on the allegation that her academic credentials are do not meet the general requirements for recognition and equation of qualifications established under the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications and that the same are not recognized under the Elections Act, yet the Commission recognized the same in the past. In her view, it is now estopped both by conduct and representation by the doctrine of estoppel.
53.According to the 1st respondent, the applicants having failed to prove and discharge the burden of proof at the Dispute Resolution Committee on their allegations of fraud and forgery, cannot now purport to use these proceedings to attempt to fill the gaps in their case or invite this court to sit as an investigative organ. She explained that the Dispute Resolution Committee rightly dismissed the applicants’ complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. Based on legal advice, she averred that allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions as the same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. However, no such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein.
54.It was her position that the applicants have not met the threshold for the grant of the orders sought herein and she urged court to dismiss the application with costs.
55.In her submissions, the foregoing matters were reiterated and it was submitted that reliance was placed on the case of Republic v Independent Electoral and Boundaries Commission and others, ex parte Wavinya Ndeti, Nairobi High Court Judicial Review Application No 301 of 2017. According to the applicants, the foregoing position was affirmed by the Supreme Court in the case of Sammy Ndungu Waity v Independent Electoral and Boundaries Commission and 3 others [2019] eKLR.
56.In the premise, the 1st respondent submitted that the applicants neither demonstrated any wrong doings or illegalities perpetuated by the returning officer or the Dispute Resolution Committee in her clearance as a candidate to contest for the position of Governor Machakos County and neither have they demonstrated any errors committed by the Dispute Resolution Committee in its decision in dismissing the applicants’ complaint.
57.According to her, the applicants have not made out a case to warrant the grant of the order of mandamus and prohibition. In her submissions, the 1st respondent relied on the case of Oscar Edwin Okimaru v Republic, Criminal Case No E014 of 2021, [2021] eKLR where the court underscored the importance of due process and the right to be presumed innocent.
58.It was submitted that the 1st respondent enjoys the right to be presumed innocent of the allegations made against her pertaining to her academic qualifications and any such inference or conclusions of forgeries and fraud can only be made after due process as sanctioned by law. In her submissions, the orders sought herein are meant to defeat and usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers of the Office of Director of Public Prosecutions and the Directorate of Criminal Investigations.
59.There were also submissions regarding the verification using internet platform/domain/ algorithmic decision making but as will be shown later in this judgement the submissions thereon are nolonger decisive in this matter. She relied on the case of William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2 others, Election Petition No 2 of 2012; [2013] eKLR and submitted that the applicants cannot purport to conclude that the 1st respondent’s academic qualifications are forgeries or were obtained fraudulently whereas no such investigations have been conducted and neither has the 1st respondent been afforded due process or any such judicial pronouncement been made on the same by the criminal court on the said allegations.
60.The 1st respondent also cited on the decision of the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others, Supreme Court Application No 2 of 2011 [2012] eKLR, and submitted that having so been recognized in the first instance and having obtained her academic credentials as early as in the 90s, the law cannot be applied retrospectively in order to limit her fundamental rights and freedoms under article 38 of the Constitution of Kenya, 2010 or under articles 47 and 50 of the Constitution of Kenya, 2010 with the intention of discrediting her academic credentials. Furthermore, section 9 of the Interpretation and General Provisions Act prohibits the retrospective application of the law.
61.It was submitted that the applicants having failed to prove and discharge the burden of proof at the Dispute Resolution Committee on their allegations of fraud and forgery, cannot now purport to use these proceedings to attempt to fill the gaps in their case or invite this court to sit as an investigative organ. It was reiterated that the Dispute Resolution Committee rightly dismissed the applicants’ complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. In her submissions allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions. The same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. No such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein. Reliance was placed on the case of Joseph Mutuku Mwanthi & 6 others v Aimi Ma Kilungu Company Limited, Civil Suit 67 of 2011, [2021] eKLR andit was submitted that the applicants have failed to plead with specificity and prove the allegations of fraud and forgery pertaining to her academic qualifications and therefor they have failed to prove a case to warrant the grant of the orders sought herein. Based on the foregoing, the 1st respondent urged the court to dismiss the notice of motion application dated June 28, 2022 with costs certified for two advocates.
2nd Respondent’s Case
62.The 2nd respondent, in opposition to the motion averred that the main issue which is the substratum of these proceedings is the authenticity of the academic certificates of the 1st respondent herein presented for clearance to the 2nd respondent, and which credentials were used to clear the 1st respondent herein to contest for the position of Governor, Machakos County.
63.It was averred that following the clearance of the 1st respondent, the applicants herein lodged a complaint before the 2nd respondent’s Dispute Resolution Committee alleging that the 1st Respondent’s academic certificates were not authentic and the 1st Respondent should therefore be disqualified and/or barred from contesting for the position of Governor, Machakos County. According to the 2nd respondent, its Dispute Resolution Committee considered the complaint filed by the applicants herein before it and in a decision dated June 16, 2022 and delivered on the June 19, 2022, stated that the complaint before it being one that raised suspicion on the authenticity of the 1st respondent’s academic qualifications, it is not clothed with jurisdiction to hear and determine it.
64.According to the 2nd respondent, what the instant proceedings seek to do is to ask this court to confer investigative jurisdiction on the 2nd respondent’s Dispute Resolution Committee which has not in fact been conferred upon it by the Constitution or any other written law such that should this court find in favour of the applicants, then the same would essentially mean that this court has arrogated itself legislative functions which are a preserve of Parliament.
65.It was the 2nd respondent’s position that the 2nd respondent’s mandate is specifically enshrined in the Constitution under Article 88 of the Constitution 2010 as read with section 74 of the Elections Act, 2011 which mandate does not include authenticating academic certificates hence the 2nd respondent together with its Dispute Resolution Committee lacks power to investigate and/or determine the validity or otherwise of the certificates presented by intending candidates as long as on the face of it, the candidate presents a prima facie valid document.
66.It was its case that this mandate, as captured under Universities Act No 40 of 2012 under section 4 as read with section 5 is a preserve of the Commission for University Education, the 3rd respondent herein, and no single piece of legislation bestows upon the 2nd respondent or its organs and/or committees the mandate to recognize and/or fail to recognize academic certificates of candidates.
67.The 2nd respondent took the view that once presented with such certificates and especially with recognition from the Commission of University Education of the certificates in question, nothing bars the 2nd respondent from accepting the same and/or gives the 2nd respondent and its organs and/or committees the power to inquire into their authenticity or otherwise.
68.This position, according to the 2nd respondent was recognised by the applicants in when they admitted that the 3rd respondent confirmed that the institutions the 1st respondent stated she graduated from are recognized in Kenya. No evidence was tendered to indicate that this recognition was revoked and in fact, in the proceedings before the 2nd respondent’s Dispute Resolution Committee, counsel for the Complainants (applicants herein) submitted that there was no need to join the Commission for University Education since they had written a letter confirming that the impugned degree was recognized.
69.As such, it was averred, even though there exists allegations by the applicants as to the authenticity of the 1st respondent’s academic certificates, there are no criminal proceedings and/or charges that have been brought against the 1st respondent and/or any judicial or quasi-judicial body that has pronounced itself on their authenticity or lack thereof which finding would require investigations to be done by relevant authorities, the 2nd respondent and its Dispute Resolution Committee not being one of such bodies mandated with investigative powers.
70.It was noted that that the purpose of judicial review is to allow a judicial body examine the process leading to the making of the decision and this court should thus restrict itself only to considerations as to whether the 2nd respondent had jurisdiction to make the decision in question and whether the persons affected by it were heard before it was made which questions can only be answered in the affirmative. The applicants have not pleaded otherwise. It was further contended that such a decision can only be subject to judicial review if it can be established that the same is tainted with illegality, irrationality and procedural impropriety. However, a reading of the instant motion and the orders sought reveal no such illegality, irrationality or procedural impropriety and as it appears, the applicants herein have packaged these proceedings as judicial review proceedings whereas in real sense, they are imploring this court to sit as an appellate court which is against the rules of judicial review.
71.The 2nd respondent lamented that proceedings in this nature leading to the General Elections which are barely a month away are time-sensitive, the 2nd respondent having been tasked with the task of ensuring that the elections are conducted on the August 9, 2022 and barring/disqualifying the 1st respondent from contesting on unsubstantiated allegations would place the 2nd respondent in a rather precarious position as proceedings on violation of the 1st respondent’s rights under article 38 of the Constitution would arise, and if not, Judicial Review proceedings as in this case which the 2nd respondent would not be able to defend as it would fail to explain how it arrogated itself investigative powers as regards the authenticity or otherwise of the 1st respondent’s academic credentials.
72.It was therefore contended that the instant proceedings do not meet the threshold required for judicial review proceedings and for the grant of the orders sought and it is therefore in the interest of justice and fairness that the same be dismissed with costs.
4th Respondent’s Case
73.In opposing the motion, the 4th respondent relied on the following grounds of opposition:1.The application is incompetent and an abuse of the process of court.2.The Director of Public Prosecution shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions shall not be under the directions or control of any person or authority.3.On his own motion the DPP has directed the Inspector General of Police to investigate the academic documents presented to the electoral body by the 1st respondent.
74.On behalf of the 4th respondent, reliance was paced on article 157(4) of the Constitution and it was contended that the Director of Public Prosecutions has no power to order investigations, but only to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct be that as it may, the DPP cannot in the alternative, as prayed by the ex-parte applicant, arrogate to himself the power to determine the authenticity and validity of the academic certificates presented.
75.The 4th respondent further submitted this court had on June 30, 2022 ordered inter alia:a.That the Deputy Registrar of this court do carry out the verification of the 1st respondent’s bachelors and masters degrees via the website indicated in the prayer(b) of the motion dated June 28, 2022 and file a report accordingly.b.That the verification to be undertaken today at 2.30 pm.
76.That verification was done on June 30, 2022 as ordered in the presence of the ex-parte applicant’s and 1st respondent’s advocates and the advocates present were satisfied with the verification process and the outcome thereof. It’s therefore not within the powers of the 4th respondent to do further verification.
77.Based on article 157(10) of the Constitution, it was submitted that the 4th respondent cannot be under the direction or control of any person or authority in the exercise of his duties under the Constitution.
78.Accordingly, the court was urged to dismiss the application dated June 28, 2022 with costs.
Interested Party’s Case
79.The interested party, in opposing the motion relied on the following grounds:a.That it is misconceived, incompetent, bad in law, lacks merit and is an abuse of the court processb.THat the application purporting to be a judicial review application is not a judicial review application as the facts, issues, parties and cause of action it presents before this honourable court are different from what was before the Dispute Resolution Committee of the Independent Electoral and Boundaries Commission. This is contrary to obtaining law and practice.c.That the application seeks to grant upon the court powers and jurisdiction it doesn’t have and usurp the mandate of lawful constitutional offices.d.That the application seeks to influence the lawful exercise of administrative action by awful public entities.e.That the orders sought in so far as they are in conflict with the Evidence Act cap 80 do not obtain. Electronic based websites and links whose authorship and ownership are suspect ought to be subjected to strict evidentiary rules.f.That the applicant fails to demonstrate why the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee was erroneous in any way and why it deserves to be quashed.g.That the burden of proof in any claim of violation of fundamental rights and breach of administrative law falls upon the applicants who have failed to discharge this duty.h.That the application is frivolous vexatious and scandalous.
80.The interested party also filed a replying affidavit in which it was stated that the 1st respondent is the duly nominated and duly cleared candidate of the interested party for the Governor seat Machakos County.
81.It was its position that the 1st respondent meets all the qualifications for the Office of Governor Machakos County hence the instant application is an abuse of court process, it is manifestly vexatious, and aimed at abusing the court process and is calculated to curtail the 1st respondent’s rights and in detracting the party candidate from her campaigns and ultimately aimed at costing her seat. It was disclosed that the IEBC has cleared the nominee of the party twice before in the past in the year 2013 and 2017 and found that she met all relevant qualifications and indeed was over qualified for the Governor position.
82.It was the interested party’s position that the instant application is incurably defective as what is before this court is not a judicial review application hence the applicants have wrongfully invoked the jurisdiction of this court. In its view, there is absolutely no material before this court that points to errors in the decision of the Dispute Resolution Committee of the Independent Electoral and Boundaries Commission which would found the basis of a valid judicial review application.
83.Its position was that the decision of the Dispute Resolution Committee of the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee that the interested party was not a party in the proceedings neither were either of all the Respondents. However, the Dispute Resolution Committee is not part of these proceedings as it ought to be. Apart from that this application has introduced new facts and issues that were never presented for consideration and determination before the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee.
84.Based on legal advice, the interested party contended that the applicants are limited and confined to the decision and materials that were placed before the Dispute Resolution Committee for hearing and determination. It was asserted that the grant of the orders sought in the instant application will be greatly prejudicial to the interested party and its nominee, the 1st respondent and will constitute violations of their fundamental rights and freedoms to equal protection of the law under article 27 of the Constitution of Kenya, 2010, rights to rights to a fair hearing and fair procedural action as protected in articles 47; 48 and 50 ofthe Constitution of Kenya, 2010 as read with the Fair Administrative Action Act. It was its position that the application is meant usurp the roles of the various investigative agencies and are an invitation of this court to usurp the investigative powers vested already in other constitutional offices.
85.According to the interested party, it is not aware of any investigation results that prove without a doubt that the interested party’s nominee did not legally obtain a degree and neither has she ever been heard in such proceedings. Accordingly, in as far as this court adopts any investigatory powers that it is not clothed it under the law, it would accordingly be exceeding its mandate and jurisdiction and any orders made in excess of jurisdiction ought to be vacated as unlawful, particularly at the interim phase of the matter.
86.The interested party averred that there is a domain which has been freshly introduced before this court as follows; https://hedd.ac.uk/enquirer-registration?execution=e1s1 and that neither this domain or its maker are part of these proceedings and that its authenticity is in question and neither was it introduced before the dispute at the Dispute Resolution Committee and hence it cannot be relied upon or be used as a basis for the determination and curtailment of the interested party’s fundamental rights and those of its nominee and the people of Machakos contrary to article 38, 47 and 50 of the Constitution of Kenya, 2010. In its view, reliance on this would be contrary to evidentiary rules outlined in the law and practice of evidence and is untenable in the circumstances of this case.
87.According to the interested party’s understanding Wavinya Ndeti and Wavinya Ndeti Oduwole are one and the same person as Oduwole was her late husband. It was its view that a degree is no longer a requirement for qualification to contest in elections as a Governor in light of the High Court decision declaring section 22(1)(b)(ii) of the Elections Act unconstitutional in the case of County Assembly Forum & 6 others v Attorney General and others; Petition No E229, E226, E249 & 14 of 2021 [2021] KEHC 304 (KLR).
88.The interested party asserted that the Dispute Resolution Committee correctly applied the law in dismissing the applicants’ Complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the burden and standard of proof in regard to the allegations of fraud and forgery. The applicants now wish to use this court as its investigatory arm to fill gaps in its heavily flawed case. Based on legal advice, it was contended that allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless aspersions. The same must be proven through cogent and concrete evidence beyond a standard of reasonable doubt to warrant a finding on the same. No such materials have been placed before this court to warrant such a finding or the grant of the orders sought herein. It was the interested party’s case that the applicants have not met the threshold for the grant of the orders sought herein as other appropriate remedies prior to moving these court exist and have not been utilized. In this the court was reminded that it is trite law that in seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The court was therefore urged to dismiss the instant application with costs.
Determinations
89.I have considered the application, the affidavits both in support of and in opposition to the application, the grounds of opposition as well as the submissions and authorities cited.
90.The parameters of judicial review were set out by the Court of Appeal in Republic v Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 as follows:
91.In Municipal Council of Mombasa v Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001 was held:
92.In Republic v Kenya Revenue Authority ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England 4th Edition Vol (1)(1) para 60.
93.It must be remembered that judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected. See R v Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at p 285.
94.I also associate myself with the expressions in Republic v The Retirement Benefits Appeals Tribunal ex parte Augustine Juma & 8 others [2013] eKLR, that:
95.In JR Misc Application No 477 of 2014: Republic v Public Procurement Administrative Review Board & 2 others this court expressed itself as follows:
96.Republic v Public Procurement Administrative Review Board & another ex parte Gibb Africa Ltd & another [2012] eKLR where the court set out the established reach of judicial review in Kenya thus:
97.Similarly, in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127 it was stated that:
98.In Penina Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2015] eKLR, Supreme Court held at paragraph 28:
99.The Code of Civil Procedure, volume III pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:
100.However, the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] eKLR, expressed itself at paras 55-58 as follows:
101.The same Court (Kiage, JA) emphatically expressed itself, inter alia, in the Judicial Service Commission and another v The Chief Registrar of the Judiciary and Lucy Muthoni Njora Civil Appeal No 486 of 2019 as hereunder:In our own jurisdiction, judicial review has taken the same trajectory in recent years, spurred in large measure by the 27 Constitution of Kenya, 2010. It changed the fundamental underpinnings of judicial review from the common law as codified in the Law Reform Act, to its Article 22(3) (f), which recognizes judicial review as one of the appropriate reliefs available. This is bolstered by Article 47(1), which decrees the right to fair administrative action, given further effect by the Fair Administrative Action Act which, at Section 7(2), sets out an expansive list of circumstances in which a court may review an administrative action or decision. The superior courts of this country have spoken with near unanimity that the current constitutional and statutory landscape calls for a more robust application of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision. See, for instance, Communication Commission of Kenya v Royal Media Services & 5 others [2014] eKLR by the Supreme Court, this court’s decisions in Suchan Investment Ltd v Ministry of Natural Heritage & Culture & 3 others [2016] eKLR and Child Welfare Society of Kenya v Republic & 2 others ex parte Child in Family Focus Kenya [2017] eKLR and the High Court’s in Republic v Commissioner of Customs Services ex parte Imperial Bank Ltd [2015] eKLR (per Odunga, J). They all speak to the unmistakable sea change and approach, stated thus by this court in Super Nova Properties Ltd & anor v District Land Registrar Mombasa & 2 others, Kenya Anti Corruption Commission & 2 others (Interested Parties) [2018] eKLR;This court conducted a thorough and exhaustive review of the post-2010 jurisprudence on the evolution of judicial review into the deeper scrutiny, hard look, merit-based standard of review mode in its recent decision in Geoffrey Ajuong Okumu & anor v 29 Engineers Board of Kenya [2021] eKLR. I respectfully echo as representing the current legal position on the subject what we said there was on our way to the conclusion that;We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.”
102.It is now recognised that one of the grounds for grant of judicial review relief is unreasonableness of the decision being challenged. This is clearly a deviation from the traditional common law approach that what is to be considered is the process by which the decision is arrived at rather than the decision itself. An examination of whether or not a decision is unreasonable clearly calls for some measure of consideration of the merits of the decision itself though not in the manner contemplated by an appellate process.
103.According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 7th edition at paragraph 11-036 on page 602, a decision is also irrational if it lacks ostensible logic or comprehensible justification and that though the terms irrationality and unreasonableness are these days used interchangeably, irrationality is only one facet of unreasonableness, hence a decision is said to be irrational in the strict sense of that term if it is unreasoned; if it is
104.Unreasonableness, according to the same work at para 11-029, connotes decisions which have been accorded manifestly inappropriate weight; strictly “irrational” decisions, namely, decisions which are apparently illogical or arbitrary; uncertain decisions; decisions supported by inadequate or incomprehensible reasons; or by inadequate evidence or which are made on the basis of a material mistake or material disregard of fact.
105.According to De Smith’s Judicial Review (sixth edition) at page 559 that:
106.Sedley, J in R v Parliamentary Commissioner for Administration, ex parte Balchin and another [1998] 1 PLR 1, states at page 11 that:
107.In Salim Juma Oditi v Minister for Local Government & ors [2008] eKLR, Wendoh, J referring to the case of Associated Provincial Pictures Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at p 229 held that:
108.Based on Bato Star Fishing Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15 at 44,which was dealing with section 6(2)(h) of the South African Promotion of Administrative Justice Act, a legislation which squares with section 4(2)(k) of the Fair Administrative Action Act, 2015 to the extent that it forbids unreasonable administrative actions or decisions, because of the constitutionalisation of fair administrative action, an unreasonable decision is simply a decision that a reasonable decision-maker could not reach and not necessarily an egregious one per Wednesbury. In the South African case the court opined that:
109.It is in this respect that I understand Onguto, J’s decision in Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board [2016] eKLR where the learned judge held that the court, effectively has a duty to look both into the merits and legality of the decision made due to the requirement of “reasonable” action under article 47, and also the process and procedure adopted due to the requirement of following all precepts of natural justice under both articles 47 and 50(1) of the Constitution.
110.The gist of this matter is that the 1st respondent does not have a legally acquired degree to enable her qualify as candidate for gubernatorial position for Machakos County.
111.When the parties appeared before me on June 30, 2022 I made the following order:a.That the Deputy Registrar of this court do carry out the verification of the 1st respondent’s bachelors and masters degrees via the website indicated in the prayer (b) of the motion dated June 28, 2022 and file a report accordingly.b.That the verification to be undertaken today at 2.30 pm.
112.The Learned Deputy Registrar did carry ought that task and rendered his report in which he found inter alia that:1.The enquiry details were matching in regard to one Wavinya Ndeti having obtained Masters Degree from City University of London in Business Systems Analysis and Design.2.The enquiry details were matching in regard to one Wavinya Ndeti having done a course in Computer Science from London South Bank University.3.The enquiry details were matching in regard to one Wavinya Oduwole having qualified with bachelors degree in Computing Science from London South Bank University.
113.It follows that prayer (b) of the motion is nolonger necessary to deal with.
114.The applicants seek an order of certiorari be and is hereby issued quashing the decision of the 2nd respondent’s Dispute Resolution Committee dated June 16, 2022 and read in open court on June 19, 2022 in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti clearing the 1st respondent to run for the position of Governor, Machakos County in the General Elections scheduled for August 9, 2022. According to the Applicants the said Committee failed to deal with their complaint by stating that it had no jurisdiction to do so since the allegations raised disclosed suspicion as to the authenticity of the academic qualifications of Wavinya Ndeti. According to the 2nd respondent, its mandate as enshrined in the Constitution under article 88 thereof as read with section 74 of the Elections Act, 2011 does not include authenticating academic certificates hence the 2nd respondent together with its Dispute Resolution Committee lack power to investigate and/or determine the validity or otherwise of the certificates presented by intending candidates as long as on the face of it, the candidate presents a prima facie valid document. To them, pursuant to section 4 of the Universities Act No 40 of 2012 as read with section 5, that mandate is a preserve of the Commission for University Education, the 3rd respondent herein, hence no single piece of legislation bestows upon the 2nd respondent or its organs and/or committees the mandate to recognize and/or fail to recognize academic certificates of candidates.
115.Section 5 of the Universities Act provides as follows:
116.It is therefore clear that the powers to recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions rests with the 3rd respondent. In undertaking its mandate, it is required to undertake or cause to be undertaken, regular inspections, monitoring and evaluation of universities. In this case the 3rd respondent confirmed that the institutions from which the 1st respondent obtained her degrees and certifications are recognised.
117.The applicants have not cited before me any statute that compels the 2nd respondent to make a decision as regards the recognition or equation of university degrees. They have however relied on regulation 47 of the Election (General) Regulations, 2012, which in so far as the ascertainment of educational qualifications is concerned provides as follows:1.For purposes of ascertaining the educational qualification of persons for an elective post, a person seeking nomination shall submit to the Commission certified copies of certificates of the educational qualification.2.Where the body that issued the certificate is not based in Kenya, a candidate shall be required to seek authentication of that body with the Kenya National Examinations Council, in the case of form four certificates, or the Commission for University Education, in the case of university degrees.
118.With due respect I cannot read into the said regulation any power conferred upon the 2nd respondent to recognise or equate university degrees. I therefore associate myself with the decision of Mrima, J in Petition E321 of 2022 – Dennis Gakuu Wahome v The Independent Electoral and Boundaries Commission and others and find that the 2nd respondent has no power to recognise or equate university degrees and therefore cannot be compelled to investigate the authenticity of a university degree that is already recognised by the 3rd respondent.
119.To the contrary that power expressly reposes on the 3rd respondent which, being a specialised Commission, is expected to have the necessary expertise to effectively, efficiently and competently carry out its statutory mandate. It is important to set out the role of the courts in matters such as this. It is trite law that the court ought not to interfere with the decision of the 3rd respondent simply because it holds the view that the said decision was unmerited as long as the same is based on the guidelines put in place by the 3rd respondent unless it be shown that the decision was irrational or unreasonable. Where it is not shown that the decision was unreasonable, I associate myself with the decision of the Court of Appeal in Eunice Cecilia Mwikali Maema v Council of Legal Education and 2 others Civil Appeal No 121 of 2013 that:
120.I also wish to associate myself with the decision in Susan Mungai v The Council of Legal Education & 2 others Constitutional Petition No 152 of 2011 in which Mumbi Ngugi, J expressed herself as follows while citing with approval the case of Republic v The Council of Legal Education ex parte James Njuguna and 14 others, Misc Civil Case No 137 of 2004 (unreported):
121.The learned judge continued:
122.This was a reflection of the position taken in Maharashtra State Board of Secondary and Higher Secondary Education and another v Kumarstheth [1985] LRC in which it was held:
123.It was therefore appreciated by Nyarangi, JA in Daniel Nyongesa and others v Egerton University College CA No 90 of 1989 that:
124.In this case it is contended by the applicants that the 1st respondent’s academic certificates do not meet the general requirements for recognition and equation of qualifications established in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications. According to the applicants, though the 1st respondent claims to have obtained a master’s degree in Business Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree in Computer Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer Science in 1990 without undertaking a first degree. In their submissions, there is a close relationship between Computer Science and Business Systems Analysis and Design and as such it is illogical for a person who holds a master’s degree to undertake a bachelor’s degree in a similar field. In this regard reference was made to the report from Chelgate Consulting Firm in London which has detailed the inconsistencies in the 1st respondent’s academic certificates together with different names appearing on her certificates, which in their views made the ex-parte applicants question the authenticity of the 1st respondent’s academic qualification. In addition, it was contended that the said report indicates that the minimum entry requirement for one to proceed with a master’s degree is a good second-class honours degree from a UK University, a recognized equivalent from an accredited international institution or an equivalent professional qualification. It was therefore their position that the 1st respondent has not met the minimum entry requirements and thus there is need to question her academic qualifications.
125.Whereas it may well be true that the 3rd respondent has the mandate to recognize and equate degrees and can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the award in question ineligible for recognition and/or equation, that decision squarely falls on the 3rd respondent and this court can only interfere where the decision made by the 3rd respondent falls afoul of the laid down parameters guiding decision making. In this case, I take it that the applicants are alleging that the decision to recognize the 1st respondent’s degree qualification is, in the circumstances, irrational. I have looked at the prayers sought in this motion and I cannot see any seeking to quash the decision by the 3rd respondent to recognize the degree certificates issued to the 1st respondent. As held in Republic v Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996, an order of mandamus cannot quash what has already been done as this can only be done by an order of certiorari can quash a decision.
126.In this case instead of seeking an order quashing the decision of the 3rd respondent, the applicants are seeking an order of mandamus compelling the 2nd respondent to strike out the 1st respondent’s name from the list of cleared gubernatorial candidates to vie for Governor, Machakos County in the General Elections scheduled for August 9, 2022. However, as held in Republic v Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 the order of mandamus is a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It lies in cases where there is a specific legal right or no specific legal remedy for enforcing that right. It must command no more than the party against whom the application is legally bound to perform. However, where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way. However, if the complaint is that the duty has been wrongfully performed ie that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done.
127.Accordingly, that order can only be made if there is a legal obligation placed on the 2nd or 3rd respondents to strike out the 1st respondent’s name and the said respondent have failed to do so. Where what is being sought that they do is to exercise its power in a certain way as opposed to just exercising the same, the court cannot issue an order of mandamus. In other words, the prayer ought to be an order directing them to undertake their statutory mandate as opposed to carrying it out in a pre-determined manner.
128.In my view where a party alleges that the respondent does not possess university degree, the burden would then shift to the respondent to disprove that allegation. However, where the allegation is that the decree allegedly possessed by the respondent was not properly conferred, as is the case herein, the burden remains upon the person making that allegation to prove the same.
129.This is so since section 107 (1) of the Evidence Act, cap 80 laws of Kenya provides that:
130.This is called the legal burden of proof. There is however evidential burden of proof which is captured in sections 109 and 112 of the same Act provides as follows:"109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112.in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him."
131.The two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, in which the Court of Appeal held that:
132.In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
133.In this case, it is clear that the applicants’ allegations are premised on speculations. This must be the reason why they are seeking an order of mandamus be and is hereby issued compelling the 5th respondent’s Department of Recognition, Equation and Verification to verify the academic credentials of the 1st respondent. As held in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127 judicial review is not a fishing expedition in unchartered seas.
134.In my view, the mere fact that the system adopted by foreign universities is different from our own system does not necessarily mean that such foreign degrees ought not to be recognized locally. As long as the 3rd and 5th respondents are satisfied as regards the standards applied in awarding the same, this court cannot interfere with such a decision simply because the degrees were awarded in an “unusual” manner. While their decision may be challenged on the grounds of irrationality, that is not the same thing as impeaching their decision merely because of differentiation or variation in the educational systems.
135.On the issue whether the names Wavinya Ndeti and Petti Wavinya Oduwole belong to the 1st respondent, the 1st respondent has explained that Oduwole is her late husband’s name and that has not been disputed.
136.As regards the prayer for the 4th respondent, the Director of Public Prosecutions to order investigations and/or determine the authenticity and validity of the academic certificates presented by Wavinya Ndeti, from the record, it comes out that the 1st respondent was at one point summoned to explain herself. Whatever decision arrived following that summon, if any, is not the subject of these proceedings.
137.Having considered the proceedings, I find that the applicants have failed to meet the threshold for grant of the orders sought. Accordingly, the motion fails and is dismissed but with no order as to costs considering that this is a public interest litigation.
138.It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF JULY, 2022.GV ODUNGAJUDGEDelivered in the presence of:Ms Sitati for Ms Damaris Mwiti for the ex parte applicant.Mr Ochieng Oginga for the 1st respondent.Mr Amimo for Mr Muyundo the 2nd respondent.Ms Kavuivu for Ms Lumallas for the interested party.CA Kevin.