THE REPUBLIC OF KENYA

 IN THE HIGH COURT OF KENYA

AT NAIROBI

 CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

 PETITION NO.577 OF 2017

PHYLIS KEMUMA ONENGA…….…..……..……….………PETITIONER

VERSUS

DIMA COLLEGE LIMITED…..…………………………….RESPONDENT

JUDGMENT

1. The petition dated 24^th November 2017 was filed under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 for the alleged contravention of Articles 19, 27, 43 and 47 of the Constitution. Accordingly the petition seeks the following orders: -

a) A declaration that the respondent contravened the petitioner’s rights under Articles 19, 27, 43 and 47 of the Constitution.

b) A declaration that the deliberate refusal to submit the petitioner’s name to the Kenya National Examination Council for registration and the subsequent refusal to have her sit the November 2017 examinations was illegal and unconstitutional;

c) A declaration that the collection of school fees and examination fees from the petitioner knowingly that the respondent would fail to submit her name to Kenya National Examination Council for registration of her final examination was illegal and unlawful;

d) An order for the immediate release of Kenya Shillings seventy thousand and fifty( 70,050) paid to the respondent as fees by the petitioner;

e) An order of compensation for damages as provided for under Article 23(3) of the Constitution;

f) The costs of this petition be provided for; and

g) Any other orders that this Honourable Court may deem fit to grant.

The Petitioner’s case

2. The heart of the petition as supported by the petitioner’s sworn affidavit of even date is that following the petitioner’s enrollment as a student, the respondent collected all the required fees from her but at the completion of the course failed to submit the petitioner’s name to Kenya National Examination Council (KNEC) for registration to do her final examination. The petitioner for that reason states that the respondent’s actions violated her rights as guaranteed under Articles 27(1),(2),(5),43(1) (f) and 47 (1)(2) of the Constitution.

3. The petitioner avers that she enrolled for secretarial studies at the respondent institution on 14^th January 2016 and started her classes in February 2016. She explains that at the end of the secretarial course the respondent is required to register the names of its students with KNEC in preparation for the examinations.

4. She depones to having registration fees paid in October 2017 for upcoming examination in November 2017.  On 8^th November, 2017 when the respondent shared the list of students who would sit for the examinations her name was the only one missing from her class.  On enquiring about it on 9^th November 2017 she was told that the matter would be resolved. Nonetheless upon a further follow up on 13^th November 2017, she was informed that she was not allowed to enter the school premises. In light of this, the petitioner avers that she has suffered immense emotional stress for the respondent’s unexplained action.

5.  The Petitioner testified on 16^th December, 2021 and reiterated the contents of her supporting affidavit.  In cross-examination she explained that it is KNEC that does the assessment of the students.  Further that her name was in the Nominal roll of the previous year and that is how she was able to sit for her first year examinations.  She noted that she was not registered by KNEC because of the respondent’s failure to forward her name.  That some students who paid fees later than her, were still registered.

The Respondent’s Case

6. The respondent in response filed its replying affidavit dated 30^th January 2018 sworn by the school’s administrator Otieno Otieno who avers that the petition is a false narrative and misrepresentation of facts.  He depones that the petitioner did not submit all her previous results to facilitate registration for examinations for the next stage.  For this reason registration was not effected.   He avers that the petitioner’s rights were not violated.  Furthermore she was offered an opportunity to sit for the examinations the following year, but she did not take it up.

7. The petitioner refuted the respondent’s assertion in a further supplementary affidavit dated 15^th February 2018, where she avers that forwarding of the result slips upon successful completion of the course’s two levels has never been a requirement for registration by KNEC and neither is it provided for in the respondent’s handbook. On the contrary she depones that once a student clears the school fees and pays the registration fee, it is upon the school’s administration to forward the names of those who have complied to KNEC. She depones that having attended the classes units in the two levels, she had a legitimate expectation that she would also sit for the examinations.

The Petitioner’s Submissions

8. On behalf of the petitioner, the firm of Omongo Onenga & Co. Advocates filed written submissions dated 6^th March 2017.The the following are the issues identified for determination:

i. Whether the respondent’s conduct amounts to and is discriminatory against the petitioner under Article 27(1)(2) and (5) of the Constitution;

ii. Whether the respondent’s conducts, acts and/or omissions are unlawful, illegal and unfair for violating Articles27,43 and 47 of the Constitution; and

iii. Whether the petitioner is entitled to the reliefs sought.

9. Counsel submits that Article 27 of the Constitution prohibits discrimination by any person directly or indirectly against another person. He submits that discrimination is the exclusion, limitation or preference with the aim of affecting equality of treatment in an education institution such as the respondent. It is submitted that the respondent failed to submit the petitioner’s name to KNEC for registration.

10.  This action he says was not justified.   Counsel further submits that the request to have the petitioner issue her result slip when it was not a requirement was discriminatory as the respondent did not show that the other students were similarly asked to submit the result slips and did indeed submit them.

11.  On the violated rights, Counsel submits that the respondent’s action of receiving the required fees then negating to submit the petitioner’s name when she had attended all the classes violated her right to education. In addition, it is argued that the respondent’s actions violated the petitioner’s right to fair administrative action as the respondent failed to issue her with notice that her name was missing and reasons why.

12.  Counsel contends that the petitioner is entitled to various reliefs since she has proved a violation of her various rights as was held in the case of Gilbert Mwangi Njuguna v The Attorney General Industrial Court Petition No.17 of 2013.

Relying on the case of Daniel Musinga T/A Musinga & CoAdvocates v Nation Newspapers Limited [2006] eKLR Counsel submits that a global sum of KShs.3000,000/- would be an appropriate compensation for the petitioner together with costs.

The Respondent’s Submissions

13.  The firm of Kinoti & Kibe Co. Advocates on behalf of the respondent filed written submissions dated 9^th April 2018. The firm identified the following as the issues for determination:

i. Whether the respondent’s conduct was discriminatory against the petitioner under Articles 27(1),(2) and (5) of the Constitution;

ii. Whether the respondent’s conduct was unlawful, illegal and unfair as per Articles 43 and 47 of the Constitution; and

iii. Whether the petitioner is entitled to the reliefs sought and further compensation in the form of damages.

 14. On the first issue counsel while citing the case of Gabriel Nyabola v Attorney General & 2 Others [2014] eKLR submits that discrimination is defined in this case as a distinction which whether intentional or not based on grounds relating to personal characteristics of an individual or group has an effect of imposing disadvantages upon others. He contends that the petitioner had to show that she was subjected to a different standard of admission than her peers, as held in the case of Ntele James Kipambi v Council of Legal Education & 2 others [2017] eKLR.

15. Counsel submits in effect that the petitioner has not demonstrated this differentiation and has further failed to distinguish in line with Article 27(4) of the Constitution the ground upon which the respondent discriminated against her.

16.  Counsel on the second issue notes that as per the respondent’s replying affidavit, students’ names cannot be submitted to KNEC for the registration without a student submitting the results from their previous stage of examinations. He argues in essence that this being the rule the student ought to have adhered to it.

17.  In support reliance was placed on the case of Ntele James Kipambi (supra) where it was held that it is not for the Court to examine the merits or demerits of a policy. That the responsible representative entrusted to make the by-laws is ordinarily presumed to know what is necessary, reasonable, just and fair. Counsel adds that this is KNEC Council’s mandate as provided in Section 10(2) of the Kenya National Examination Council, Act, 2012.

18.  Further reliance was placed on the case of Kevin K. Mwiti & others v Kenya School of Law & 2 others [2015] eKLR. He contends that the petitioner though aware of the rules and procedures failed to meet the required standard for registration. As such she cannot be deemed to have been denied the right to education and fair administrative action.

19. Lastly Counsel submits that the petitioner failed to prove that her constitutional rights were infringed.  He referred to the cases of Anarita Karimi Njeru v R [1979] I KLR 154 and Thorp v Holdsworth [1876] 3 Ch.D.637 and submits that the petitioner is entitled to the reliefs sought. In addition Counsel submits that prayer (d) in the petition is misconceived as the school fees totaling KShs.70,050/- was paid in relation to the courses undertaken by the petitioner to completion. 

The respondent elected not to call any witness.

Analysis and Determination

20.  I have carefully considered the petition, affidavits, oral evidence, submissions, cited authorities and the Law.  I find the following issues to fall for determination:

i. Whether the petitioner’s rights under Articles 27(1),(2),(5),43(1) (f) and 47 (1)(2) of the Constitution were violated; and

ii. Whether the petitioner is entitled to the reliefs sought.

Issue No.(i) Whether the petitioner’s rights under Articles 27(1),(2),(5),43(1) (f) and 47 (1)(2) of the Constitution were violated

21.  The petitioner claims that her rights to education, fair administrative action and against discrimination were violated. To determine whether the alleged rights were violated or upheld, it is necessary to consider each of the rights individually.

a) The right to freedom from discrimination

 This right is envisaged under Article 27 of the Constitution. The relevant sub-articles as referenced by the petitioner read as follows:

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) …

(4) …

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

(6) …

(7) …

(8) …

22.  The Constitutional Court of South Africa discoursing on this right in the case of Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5 opined as follows:

“17. If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by means of resort to section 33, or else constituted discrimination which had to be shown not to be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct.  As Hogg puts it:

“What is meant by a guarantee of equality?  It cannot mean that the law must treat everyone equally.  The Criminal Code imposes punishments on persons convicted of criminal offences; no similar burdens are imposed on the innocent.  Education Acts require children to attend school; no similar obligation is imposed on adults.  Manufacturers of food and drugs are subject to more stringent regulations than the manufacturers of automobile parts.  The legal profession is regulated differently from the accounting profession.  The Wills Act prescribes a different distribution of the property of a person who dies leaving a will from that of a person who dies leaving no will.  The Income Tax Act imposes a higher rate of tax on those with high incomes than on those with low incomes.  Indeed, every statute or regulation employs classifications of one kind or another for the imposition of burdens or the grant of benefits.  Laws never provide the same treatment for everyone”[21]

23.  The Court went further to state that:

 “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”[34]

24.  In the same way, the Supreme Court of Kenya in the case of Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) [22 October 2021] (Judgment) expounded and guided on this right in the following way:

 [51] In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the superior courts below, it is clear to us that, by no means, did the burden of proof shift to 1^st respondent.”

25.  The Court went on further to observe that:

 [50] In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows:

“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex .... a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”

26.  The test for determining whether the petitioner’s claim on discrimination will be successful involves showing that there was a nexus between the negative treatment she experienced as against the fellow students. Further that the discrimination was without any objective and reasonable justification.  On that the petitioner submits that she was the only one whose name was not issued for registration despite other students paying the registration fees even after her.  

27.  I have observed from the pleadings and the petitioner’s evidence that it is not clear as to the basis or ground upon which she was allegedly discriminated against. This is since for a student to be registered there are certain set requirements which must be met. One of them is payment of the registration fees. This cannot therefore suffice as a ground for discrimination.

28.  The petitioner is also required to demonstrate the manner of infringement by laying a factual basis for that allegation by way of evidence. I have perused the pleadings of the petitioner and observe that no factual or documentary evidence is attached to support the claim of discrimination as against her fellow students.

29.  In this case, I do not find the petitioner to have properly and with the required precision demonstrated how she was discriminated against. She merely quoted the discrimination clause but failed to explain with detail the facts upon which grounds for discrimination would have become discernable to the Court in this analysis.  I find this alleged violation under Article 27 (1),(2) & (5) of the Constitution not proved.

ii. Right to education  

30.  This right falls under the economic and social rights accorded under the Constitution in Article 43.The specific provision provides as follows:

(1) Every person has the right--

(a) ….

(b)…

(c)…

(d)…

(e) …

(f) to education.

31.  In analyzing this right as envisaged under Article 43(1) (f) of the Constitution, the Court in the case of Joseph Njuguna & 28 others v George Gitau T/A Emmaus School & another [2016] eKLR adopted the following view:

“39. It is key to observe that this right is placed on the State such that, where the State does not have resources to implement a right under Article 43, the State has to either show that it does not have the resources or it will give priority to ensuring the widest possible enjoyment of the right to prevailing circumstances, including the vulnerability of particular groups or individuals. The provision under the Bill of Rights applies to all law and binds all State organs and all persons….

 41. Mumbi Ngugi J., while addressing the right to education and the place of private schools in the case of J.K (Suing on Behalf of CK) v Board of Directors of R School & another [2014] e KLR, observed that:

“It is indeed correct that Article 43 guarantees to everyone the right to education. The constitutional responsibility is placed on the state to achieve the progressive realization of the rights set out in Article However, there is no obligation placed on a private entity such as the respondent school to provide such right;”….

43. I further wish to state that, the services offered by a private entity are akin to a contract, where each of the parties has an obligation. The private school in fulfilling its obligation has to ensure that it provides proper and a conducive learning environment. The parents or guardians have to ensure that they pay the requisite fee so that the child is offered the services rendered in the private school. A private school cannot be equated to a public school, where free tuition is offered and charges can only be imposed with the approval of the Cabinet Secretary.”

32.  The court in the case of MMM v Permanent Secretary, Ministry of Education & 2 others [2013] eKLR referred to the rights provided for in Article 43 of the Constitution.  This is also articulated in Article 20(5) of the Constitution which clearly sets out the principles for guidance.  In both Articles 20(5) and 21(2) of the Constitution its illustrated how the State has a duty to ensure the progressive realization of the rights guaranteed under Article 43 and as far as this case is concerned Article 43(1) (f).

33.  Taking into consideration the pronouncement in the cited cases and the context of the alleged violation, I find that it was accordingly impossible for the respondent to violate the petitioner’s right under Article 43(1)(f) since availability of this right is borne by the State not learning institutions. As such it is my view that the respondent did not violate the petitioner’s right under Article 43(1)(f) of the Constitution.

34. It is also observed that the respondent as an institution of basic education and training did indeed provide the required education in the secretarial course as contracted by the petitioner. She was able to complete her course work with the respondent in her two years of study. In fact it is undisputed that the examinations sought to be done were the final examinations to be offered in line with the Course offered by the respondent.  There was therefore no violation of her right to education 

iii) Right to a fair administrative action

35.  Article 47 of the Constitution of Kenya provides as follows:

 (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

 (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

36.  Additionally Section 4(1) & (2 of the Fair Administrative Action Act, 2015 is the same as Article 47(1) and (2).  Section 4 (3) and (4) of the Act provides:

(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to—

(a) attend proceedings, in person or in the company of an expert of his choice;

(b) be heard;

(c) cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

37.  Section 7 (2) of the Fair Administrative Action Act,2015 further provides for grounds of review by the Court which include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. The prominence of fair administrative action as a constitutional right was appreciated in the South African Constitutional Court in the case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, at paragraphs135 -136 it was held as follows:

“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

38.  Taking this into consideration, this Court is accordingly only required to conduct a procedural review of the respondent’s administrative decision in accordance with the set principles. There is no dispute that the petitioner was a student at the respondent’s institution.  It is also undisputed that based on the receipts produced the petitioner duly paid the college’s required fees throughout.  The two of the payments dated 24^th February 2017 and 5^th October 2017 respectively were made with regard to KNEC.  

39.  What is contested is the respondent’s failure to submit the petitioner’s name for registration to KNEC. The respondent in this regard has maintained that the petitioner failed to follow the required procedure of submitting her previous results slips in the registration process and that is why her name failed to appear in the nominal roll.

40. KNEC is charged with the mandate of regulating its examinations.  It is for that reason authorized to issue the rules and regulations governing registration and conduct of its examinations. That being the case the Kenya National Examinations Council Act, 2012 provides under Section 10 the functions of the Council as follows:

The Council shall have, for the furtherance of its objects and purposes, the following powers and duties—

(a) to conduct such academic, technical and other examinations within Kenya as it may consider desirable in the public interest;

(b) to award certificates or diplomas to successful candidates in such examinations;

(c) to invite any body or bodies outside Kenya, as it may think fit, to conduct academic, technical and other examinations within Kenya or to conduct these examinations jointly with the Council and to award certificates or diplomas to  successful candidates in these examinations;

(d) to advise anybody or bodies  invited under paragraph (c) upon the adaptation of examinations necessary for the requirements of Kenya and to assist any such bodies to conduct such examinations;

(e) to make rules regulating the conduct of examinations and for all purposes incidental thereto.

41.  In line with this the Council has the power to enact regulations with a view of advancing its functions under Section 14 of the Act. This is evidenced by the various regulations for each school category in which it regulates the examinations.  There are also periodic circulars that contain instructions for the registration and administration of candidates’ examinations by the various institutions, which are done by KNEC.

42. A perusal of the material relied on by the respondent shows that it did not supply the Court with KNEC’s periodic circular in particular the one for 2017.  The circulars usually contain the instructions for registration and administration of candidate examinations.  The circular is commonly sent to all the heads of the institutions, undertaking examinations.

43. What is essential to note however is that learning institutions are the ones charged with the obligation to ensure that eligible candidates fully comply with all registration requirements as required by KNEC. This means therefore that the respondent was required to ascertain that all its students had complied with the requirements to enable them forward their names to KNEC.   There is nothing on record to show any steps taken by the respondent to ensure compliance with this requirement by the petitioner.  

44.  The petitioner was its student and candidate.  What did the respondent do in demand for the result slip/slips?  Nothing. I find myself in agreement with the observations of the court in the case of Republic v Kenya National Examination Knec Ex-parte Charles Obara & 8 others [2013] eKLR   where it was opined that:

“…I agree with the Respondent that as an accredited institution by the KIE, the Institute must have been aware of the regulations and in any case it was part of their core duty to exercise due diligence by taking the necessary steps to acquaint itself on behalf of its students with the Respondent’s rules and regulations.”

45.  As is expected, the petitioner sought an explanation from the respondent when she found her name missing from the nominal roll. From the material before this Court the reasons for taking this decision were never given to her. For one to be deemed as having been accorded a fair administrative action it must be shown that the elements set out above were satisfied.

46. In light of the elements of a fair administrative action the respondent was under the obligation to make a decision that was reasonable and procedurally fair, to avoid the invocation of the grounds under Section 7 (2) of the Fair Administrative Action Act, 2015. Being acquainted with KNEC’s regulations, the respondent was aware that only students who had complied with the rules would be registered.

47. Despite having the knowledge that the petitioner had not produced the result it went ahead to receive the examination fees knowing very well she could not be registered.  There were no reasons given to justify the respondent’s action.

48. Notably the Fair Administrative Action Act, 2015 provides in Section 5 (d) (i) that:

In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall—

(d) where the administrator proceeds to take the administrative action proposed in the notice-

(i) give reasons for the decision of administrative action as taken;

49.  I am satisfied that the manner in which the respondent took out the administrative action with regard to the petitioner did not meet the standards of fairness as guaranteed under Article 47 of the Constitution. I therefore find that the respondent violated the petitioner’s right to a fair administrative action.

Issue No.(ii) Whether the petitioner is entitled to the reliefs sought.

50.  Counsel for the petitioner submitted that a global sum of KShs.3000,000/- would be an appropriate compensation for violation of her rights in addition to the other reliefs sought.  This was opposed by the respondent’s counsel.  He also objected to the refund of Shs.70,000/- since the petitioner received the required education.

51.  To begin with, I note that Counsel did not explain how the figure of a global sum of KShs.3,000,000/- was arrived at and neither was there any justification for it. Turning to the relief sought in prayer (d) in the petition ‘An order for the immediate release of Kenya Shillings seventy thousand and fifty (70,050) paid to the respondent as fees by the petitioner’. I am inclined to concur with the respondent on this one. As noted in this determination, the respondent conducted the course to completion and the petitioner had no issue with that.  The fees was therefore well spent.

52. From the analysis it is my finding that the petitioner’s right to fair administrative action as envisaged in Article 47 of the Constitution, was violated by the respondent. By virtue of this violation the petitioner is entitled to damages.  It is however noted that the respondent tried to mitigate the loss by inviting the petitioner to sit for the examinations the following season but she  declined.  This will be taken into account at the time of assessing damages.

53. The Court of Appeal while addressing the question of the nature

of constitutional damages in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR pronounced as follows:

“…the South African Case of  Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 where the Constitutional Court of South Africa held that:

“...The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.

“…The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which the plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”

54.  In the same way, the Court in the case of Peter Mauki Kaijenja & 9 others vs Chief of the Defence Forces & another [2019] eKLR held that:

“96. Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion…”

55.  The Court went on further to note that:

 “97. Arriving at the award of damages is not an exact science. No monetary sum can really erase the scarring of the soul and the deprivation of dignity that some of these violations of rights entailed. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right, which has been contravened.  A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. However, this measure is no more than a guide, because the award of compensation is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action in law.”

56.  The upshot is that the petition dated 24^th November, 2017 partially succeeds and the following orders are made:

(a) A declaration that the respondent violated the petitioner’s rights under Article 47 of the Constitution.

(b) For the above violation the petitioner is awarded a sum of KShs.300,000/- (three hundred thousand shillings) against the respondent as compensation, which includes the sum paid to the respondents as examination fees.

(c) The petitioner is awarded half (½) of the costs of the petition.

(d) All other prayers are declined.

Orders accordingly.

Delivered virtually, signed and dated this 28^th day of March, 2022 in open court at Milimani, Nairobi.

H. I. Ong’udi

Judge of the High Court