Whether the Petitioner’s rights under Articles 19, 20, 24, 27, 43 (f) of the Constitution of Kenya, 2010 were violated by the Respondents.
31.A party who seeks relief under the Constitution must state with specificity the right which he alleges had been violated and how it has been violated in respect to him (See Anarita Karimi Njeru v Republic (No.1)  KLR 154 as affirmed by the Court of Appeal in Mumo Matemu v Trusted Society for Human Rights Alliance & 5 Others NRB CA Civil Appeal 290 of 2012  eKLR). In the instant case, the Petitioner was categorical that his rights under Articles 19, 20, 24, 27, 43 (f) of the Constitution of Kenya, 2010 were violated by the Respondents.
32.The Petitioner claims that his rights and fundamental freedoms, right to equality and freedom from discrimination and right to education were violated by the Respondents.
33.The Petitioner however save mentioning the violation of his Constitutional rights under Articles 19, 20, 24 and 27 have been violated. He did not demonstrate to the Court how the said rights were violated and the manner in which the Respondents herein violated the said rights.
34.Article 43(1) of the Constitution expressly provides for economic and social rights as follows:
35.Article 13 of the International Covenant on Economic, Social and Cultural Rights expenses the primacy of the Right to Education in the following terms: -
36.The gist of the Petitioner’s case pegged on the violation of his right to education as provided for under Article 43(f) of the Constitution. The Petitioner submitted that while applying to join the 1st Respondent’s institution he believed that the 1st and 2nd Respondents have a Memorandum of Understanding to offer the courses in questions. The Petitioner contends having completed the course work he had the legitimate expectation of graduating from the 2nd Respondent’s institution a desire that has never materialised as he has never been given his certificate for the Business Management course and his Diploma Certificate in Public Administration. The Petitioner further submitted that as result of the actions by the Respondents, he has been unable to pursue further studies due to the lack of the issuance of the original transcripts and certificates by the Respondents. In doing so the Petitioner contends that the Respondents have breached his right to education as envisaged by the Kenyan Constitution.
37.The Petitioner on his part has attached copies of provisional transcripts as proof that he was in fact admitted at the 1st Respondent’s institution to pursue both a certificate course in Business Management and a Diploma course in Public Administration.
38.The 1st Respondent on the other hand does not dispute that the Petitioner was admitted as a student in Eldoret College of Professional Studies to pursue a certificate course in Business Management. The 1st Respondent admits to have admitted the Petitioner in its institution in the year 2017 to pursue a certificate course in Business Management. The 1st Respondent however denies having admitted the Petitioner for a Diploma Course at the said institution. The 1st Respondent’s case is that it had a Memorandum of Understanding with 2nd Respondent to offer courses of its behalf. the 1st Respondent maintains that it was the business of the 2nd Respondent to offer academic and certificates transcripts if any to the Petitioner.
39.The 2nd Respondent on its part has however denied the averments by the Petitioner. The 2nd Respondent submitted that it has no directed agreements with students from collaborating colleges including the Petitioner herein but rather had a Memorandum of understanding with 1st Respondent which was effectively brought to a conclusion by operation of law.
40.The 2nd Respondent submitted that in view of the revised regulations by the Commission on University Education published under the Universities Act No.42 of 2012 and revised in 2016 and the subsequent Quality Inspection Audit by the Commission on University Education, all collaborating institutions including the 1st Respondent were directed to cease admission of new students based on the former circular that was KNEC equivalent.
41.The 2nd Respondent further submitted that 2nd Respondent did not participate in the admission, training nor examining of the Petitioner and thus cannot be compelled to graduate and award academic certificates as this could amount to sacrificing the quality of graduates being released to unsuspecting public which is against the provisions of Article 46(1) and (3) of the Constitution of Kenya, the University of Eldoret Charter and the Universities Act, 2012.
42.The 2nd Respondent argued that the Petitioner was admitted to the 1st Respondent’s institution in 2017, which period was truly outside the collaboration period which ceased in 2015. The 2nd Respondents contends that power of approving graduation having been trained, examined and qualified is only vested with its Senate and the same can only be challenged by way of judicial review.
43.It is without a doubt that the Petitioner herein was at some point a student at the 1st Respondent’s institution. The 1st Respondent admits that the Petitioner was enrolled at its institution to pursue a certificate course in Business Management but had denied the fact that the Petitioner pursued a Diploma course in Public Administration at the said institution.
44.Regarding the Diploma course, I have keenly perused the Petitioner’s transcripts on record and note that the same are uncertified and thus the Court cannot verify their authenticity at this juncture. To my mind an admission letter perhaps would have aided this Court in making an informed decision as to when the Petitioner was in fact admitted and was a student at the 1st Respondent’s institution and the courses that were undertaken during the said period.
45.Regarding the Memorandum of Understanding between the 1st and Respondent, it is in deed true that the 1st and 2nd Respondent’s enter into a Memorandum of Understanding in the year 2014, in which parties were to collaborated in the following areas;a.Collaborate in carrying out research in fields of mutual interestb.Jointly perform outreach activities geared towards improving income and livelihoods especially for the people within Kenya and the region.c.Collaborate in the training of Kenyans and others at Certificate and Diploma levels in the fields specified in the MOU.d.Establish mentorship programmes between the two institutions where possiblee.Collaborate on professional development and field research programmes as appropriate andf.The UOE reserves the right to reject the physical environment of ECPS in accordance with the Physical Planning Act of 1996 and the Environmental Management and Co-ordination Act of 1999 and any other relevant law.
46.From the MOU on record, some of the 2nd Respondent’s obligations entailed; moderating and producing the final examinations for administration, awarding upon successful completion of courses, the respective UOE’s certificates and preparing academic transcripts showing grades obtained in each unit. The 1st Respondent on the other hand was charged with; admitting students to the programmes they qualify as specified by UOE admission criteria, teach, set and submit marked examinations together with scripts, mark-sheets, marking scheme and question paper of students admitted and registered under this joint MOU and entered into the data base of both institutions.
47.However, in light of the directive from Commission on University Education, all collaborating institutions including the 1st Respondent were directed to cease admission of new students based on the former curricular that was not KNEC equivalent.
48.The 1st Respondent case is that Memorandum of Understanding between the 1st and 2nd Respondent’s was to last for a period of (5) years and would run from the year 2014 to 2019.
49.A perusal of the copy of letter dated 18th August, 2016 from the 2nd Respondent to the 1st Respondent however reveals that 1st Respondent was fully aware and informed of the new directive by the Commission for University Education that ultimately brought to a conclusion the collaboration between it and the 2nd Respondent. From the letter it is further evident that the 2nd Respondent would only continue working the 1st Respondent with regard to students who had been admitted before the expiry of the duration given by the Commission for University Education. A reading of the said letter further reveals that 2nd Respondent cautions the 1st Respondent against advertising programmes in the media which was contrary to the directives given by the Commission for University Education.
50.The 1st Respondent however on its own motion decided to admit the Petitioner for a certificate course in Business Management in 2017, this is even after the collaboration period between it and the 2nd Respondent had been effectively brought to a conclusion by operation of law.
51.From the record, it is evident that the Petitioner herein, truly believed that he was a legitimate student at the 1st Respondent’s institution and that there was a Memorandum of Understanding between the 1st and 2nd Respondents allowing him to pursue his studies therein. He did whatever needed to be done with the hope that in end he would be furnished with his academic transcripts and certificates. The 1st Respondent on the other hand, all along knew that this was in fact a futile cause on the part of the Petitioner but yet still admitted him to its institution.
52.Having said so, it is my finding that that the 1st Respondent breached the Petitioner’s right to education. The 1st Respondent violated his legitimate expectation that he would in the end graduate and be furnished with his academic transcripts and certificate.
Whether the Petitioner is entitled to the reliefs sought
53.De Smith, Woolf & Jowell, in “Judicial Review of Administrative Action” 6thEdtion, Sweet & Maxwell at page 609 state as follows: -
54.The award of damages for constitutional violations of an individual's right are reliefs under public law remedies lies within the discretion of a trial court and that such discretion is limited by what is “appropriate and just” based on the facts and circumstances of each case.
55.The Privy Council in Alphie Subiah v The Attorney General of Trinidad and Tobago Privy Council Appeal No. 39 of 2007 pronounced itself on the same point stating that:
56.Similarly, in the South African Case of Dendy v University of Witwatersrand, Johannesburg & Others -  1 LRC 291 the Constitutional Court of South Africa held that:
57.It is therefore clear that the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. What this means is that in certain instances an award of reasonable damages may be called for in addition to the declaration taking into account not only the Petitioner’s interests but also the public policy considerations and the wider interests of the society.
58.In the present case, I am of the considered view that in light of the breach by 1st Respondent, the Petitioner is at a great loss because he has nothing to show for years spent at the 1st Respondents institution. His time there can never ever be redeemed. Although, the Petitioner was led to believe that he was pursuing a legitimate course at the 1st Respondent’s institution. The collaboration between the 1st and 2nd Respondent was no longer in force and thus rendering his pursuit for education a totally nullity. The Court cannot therefore compel the 2nd Respondent to issue academic certificates in vain whereas there was a clear directive barring any new student admissions at the time.
59.The conduct of the 1st Respondent in the circumstances, calls for the exercise of this court’s discretion to award damages for the aforesaid constitutional violation.
60.I therefore, find that an award of compensation is merited in this case so as to give effect and meaning to the Petitioner’s constitutional rights. Consequently, I award the Petitioner Kshs.1,000,000/=as general damages for violation of his right to education.
61.In view of my findings above, I am satisfied that the Petition has merit, and I therefore grant the following orders:i.A declaration hereby issued that the 1st Respondent breached the Petitioner’s rights and fundamental freedoms guaranteed under Article 43(f) of the Constitution of Kenya.ii.I hereby award the Petitioner Kshs1,000,000/- as general damages with interest thereon at Court rates from the date of this judgment until payment in full. For clarity purposes the damages to be paid by the 1st Respondent herein.iii.The 1st Respondent shall bear the costs of the Petition.
62.It is ordered so.