Kamau & another (Suing on their own behalf and on behalf of 80 University of Nairobi Law School Students) v The University of Nairobi & 2 others; Attorney General & another (Interested Parties) (Constitutional Petition E213 of 2020)  KEHC 9221 (KLR) (Constitutional and Human Rights) (14 December 2020) (Judgment)
Neutral citation:  KEHC 9221 (KLR)
Republic of Kenya
Constitutional Petition E213 of 2020
AC Mrima, J
December 14, 2020
Daniel Chege Kamau
Kelvin Mugambi Kubai
Suing on their own behalf and on behalf of 80 University of Nairobi Law School Students
The University of Nairobi
The Vice Chancellor University of Nairobi
Commission for University Education
Hon. Attorney General
National Association of Private Universities in Kenya (NAPUK)
1.The Petitioners are duly registered students in the Faculty of Law in the University of Nairobi. Some are pursuing undergraduate studies leading to the award of Bachelor of Laws degree whereas others are post graduate students undertaking Masters of Laws degree studies.
2.In the main, the Petition challenges the decision by the 1st Respondent to commence online classes and examinations as opposed to the physical class appearances which the Petitioners were undertaking before the advent of the Covid-19 pandemic. The Petitioners contend that they were not consulted before that decision was made. They also accuse the 3rd Respondent of dereliction of its duty to safeguard quality standards in the provision of legal education offered by the 1st and 2nd Respondents.
The Petition and Submissions:
3.The Petition is dated 22nd June, 2020. It is supported by three affidavits of Daniel Chege Kamau sworn on 19th June, 2020, 24th July, 2020 and 25th August, 2020 respectively. The affidavits are a Supporting Affidavit, a Further Affidavit and a Further Further Affidavit.
4.The Petitioners contend that sometime in 2019, some of them enrolled for Masters of Laws programme while others in diverse years enrolled for a Bachelor of Law degree programme with the 1st Respondent. It is averred that all the Petitioners enrolled for physical class-based programmes and not for online and or distance learning programmes and examinations.
5.The Petitioners further contend that they settled to pursue their studies from the 1st Respondent which institution they considered as the best in the region in terms of its academic staff and experience for the physical class-based programmes and not the online and or distance learning programmes.
6.The studies were, however, interrupted as a result of the deadly COVID -19 pandemic that hit Kenya and the world at large leading to closure of all learning institutions in Kenya. The 1st Respondent was, as well, affected and the institution was closed sometimes in March 2020.
7.In April 2020, the Petitioners contend that the 1st Respondent arbitrarily and without any consultation or involvement of the Petitioners made a unilateral decision to instead offer online academic programmes and examinations (hereinafter referred to as ‘the impugned decision’). It then issued a Memo on 13th May, 2020 informing the Petitioners that online classes would commence on 18th May, 2020. It is further contended that the online programmes attracted further fees instead of a reduction and required the Petitioners to purchase internet bundles or online services, laptops, e-books, e-content, among other gadgets and materials so as to facilitate and be able to fully participate in the online programmes.
8.The Petitioners protested. They sought a cessation of the online programmes pending deliberations. The Petitioners are also apprehensive that since the 1st Respondent requires at least two-thirds class attendance before students can sit for examinations, then the change of the mode of learning coupled with the enormous costs thereon makes it almost impossible for the Petitioners to fully participate in the online programmes more so due to the challenges arising out of the COVID -19 pandemic.
9.The 1st Respondent, it is alleged, declined to deliberate the matter with the Petitioners hence the filing of the Petition subject of this judgment.
10.The Petitioners aver that the impugned decision contravenes Articles 10(2), 26, 27, 29(a) & (d),33, 43(1)f, 46(b) & (d) and 47 of the Constitution, the Fair Administrative Action Act, the Consumer Protection Act as well as the principles of the law of contract and violates their legitimate expectation and should therefore be rendered void.
11.The Petitioners, therefore, seek the following orders: -
12.The Petitioners filed submissions dated 25th August, 2020. The Petitioners submitted on five issues. The first issue is whether there was public consultation or participation in arriving at the impugned decision. It is argued that the 1st Respondent, being a public institution, and the 2nd Respondent, who is a public officer, are bound by Article 10 of the Constitution. (I will hereinafter refer to the 1st and 2nd Respondents collectively as ‘the University’).
13.It is further argued that the University did not adequately consult the Petitioners or carry out any meaningful public participation prior to coming up with the impugned decision. The decisions in Robert N. Gakuru & Others –vs- Governor Kiambu County & 3 Others  eKLR, Javan Oscar Buleemi (Suing as Secretary General Tiriki Union (EA) v Permanent Secretary, Ministry of Internal Security and Provincial Administration & 2 others  eKLR, Institute of Social Accountability & Another –vs- National Assembly & 4 others  eKLR were referred to in buttressing the submission.
14.The second issue is whether the Respondents’ actions were discriminatory to the Petitioners. Citing Article 27 of the Constitution and the Court of Appeal decision in Mohammed Abduba Dida v Debate Media Limited & Another, the Petitioners submit that the Respondents discriminated against the Petitioners on the basis of economic status. To that end, the Respondents failed to consider the fact that the students had varying economic status and that if the impugned decision was to be implemented then all the students ought to have been placed on a level playing field by at least issuing all the students with sim cards and supply sufficient internet bundles for connectivity.
15.To remedy the discrimination between the financially able students and the financially constrained students, it is submitted that the online programmes be made optional until the resumption of the face-to-face learning in the University.
16.The third issue is whether the contract between the University and the Petitioners is justiciable in constitutional law and whether fees payable to the Respondent’s institutions for online programme should be reduced by 50%. It is submitted that the contract between the Respondents and the Petitioners fall within consumer protection under Article 46 of the Constitution and Part III of the Consumer Protection Act which legal regime offers protection to consumers against unfair and unconscionable practices and therefore the matter is justiciable before Court.
17.In citing SPG (Suing as parents and guardians of students minors currently schooling at Sabis® International School – Runda) v Directors, Sabis® International School - Runda & 3 others  eKLR the Petitioners relied on the Court’s analysis on the justiciability of the consumer contracts where it was held that “in a number of respects, consumers benefit from human rights protection, being viewed in a broad context of consumer activity; for example, interest in human health and physical integrity – which indeed feed in to the right to life – one already well established in the case of protection; and then projection as consumer rights is then a matter of context.”
18.Laying a basis for the reduction of the fees by half, the Petitioners submit that the online classes do not accord the Petitioners the physical access to all the services that they used to access during the physical based programme, that the Petitioners will now bear the cost of the internet so as to access the classes and also bear the burden of securing a space and or place to conduct their studies. It is argued that it is, therefore, illogical and unreasonable for the University to charge fees for the online classes similar to physical based classes and the Petitioners submit that it can only be fair that the fees reduced by one-half.
19.The other issue is the integrity and quality of the online learning and examinations offered to the Petitioners. It is argued that to be able to offer quality online teachings and examinations, the 3rd Respondent, and not the University, has a duty to ensure that the University acquires duly qualified lecturers capable of competently offering the required services to enable the employability of the graduates as well as professional recognition of the Petitioners by their respective professional bodies for professional practice. On the strength of Kenya Medical Laboratory Technicians and Technologists Board & 4 others v Attorney General; Council of Legal Education (Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties)  eKLR, the Petitioners submit that the accreditation, licensing and recognition of university education is solely vested into the 3rd Respondent as opposed to multiple bodies manned by professional bodies.
20.The Petitioners further made a passionate case for the involvement of the professional bodies in accreditation of university qualifications and programmes. Citing the Supreme Court in Martin Wanderi & 106 others v Engineers Registration Board & 10 others  eKLR the Petitioners argued that even though the professional bodies have no mandate in accreditation of university qualifications, they still have a role in professional recognition for the purposes of professional practice and an institution of higher learning like the 1st Respondent has the responsibility to guarantee quality educational services and to ensure that the qualifications are recognized by the professional bodies in which the graduates ought to work or practice under in future.
21.The Petitioners submit that the Respondents did not ascertain the quality of the online classes and the integrity of the online examinations, so as to guarantee the professional recognition of the qualifications obtainable through the online programmes, thereby jeopardizing the academic progress of the Petitioners as well as their future careers and the utilization of the qualifications in the future in the professional practice.
22.The Petitioners also raised the issue of the Respondents limiting the Petitioner’s rights without attaining the threshold under Article 24 of the Constitution. Relying on the Supreme Court in Karen Njeri Kandie v Alassane Ba & Another  eKLR the Petitioners submit that the Court held that the test to be applied in order to determine whether a right can be limited under Article 24 of the Constitution, is the ‘reasonable and justifiable test’, that must not be conducted mechanically but on a case-by-case basis, examining the facts before it, and conduct a balancing exercise, to determine whether the limitation of the right is reasonable and justifiable in an open and democratic society.
23.The Petitioners therefore submit that the online programmes ought to be optional and students be allowed to carry on with their studies from the point they stopped at the time of closure of the institutions. It is also submitted that if the online classes are to be conducted then adequate public participation, remedial classes and examinations be offered to the Petitioners so as to protect the constitutionally-guaranteed rights of the Petitioners.
24.On whether the Petitioners have pleaded with precision the violation of their rights, the Court of Appeal in Mohammed Fugicha v Methodist Church in Kenya (suing through its registered trustees) & 3 others  eKLR was relied on for the position that the constitutional text now doubtless presents an epochal shift that would preserve informal pleadings that would otherwise have been struck out in former times.
25.The Petitioners submit that even though they pleaded with precision the violations or threatened violations of their rights under the Constitution from paragraphs 30 to 41 of the Petition, the strict insistence on formality in the particularization of the violations is an antithesis to the spirit and letter of Constitution in the promotion of human rights and fundamental freedoms.
26.The Petitioners urged that the Petition is merited and ought to be allowed as prayed.
The Responses and Submissions:
27.The Petition is opposed by the 1st and 2nd Respondents (The University) and the 2nd Interested Party. The 3rd Respondent and the 1st Interested Party did not take part in the hearing.
28.The 1st and 2nd Respondents relied on a Replying Affidavit sworn by Collins Omondi on 14th July, 2020.
29.It is deponed that the practice of distance learning in the University of Nairobi dates back to 1967 and that the University has since then recognized and sustained that mode of learning under the Constitution, the Universities Act, 2012 and the University of Nairobi Charter, 2013.
30.On the basis of Section 6 of the University of Nairobi Charter 2013 as read together with the Commission for Universities Education (Universities Regulations, Standards and Guidelines) 2014, the 1st and 2nd Respondents further aver that in fulfilling the right to education, the University recognizes e-learning/visual learning as a means of delivering education through the use of print, audio-visual, electronic or other technical medium in order to offer learning opportunities to students and educators in an online environment in all the programmes the University offers.
31.Faced with the uncertainties resulting from the effects of the COVID-19 pandemic, the University discussed the possibility of resumption of the physical class programmes in the Senate and reached the impugned decision. It is contended that the University’s Senate is the only organ under the University of Nairobi Act and the University of Nairobi Charter mandated to approve academic programmes and guidelines on classes and examination including but not limited to the delivery of classes and examination. As such, the impugned decision is both constitutional and legal.
32.On the issue of the Petitioners’ public participation towards the adoption of the impugned decision, the 1st and 2nd Respondents contend that the Petitioners were duly and fully represented by their Student Leadership and Class Representatives who sits in the Senate. That, the Senate held special online meetings on 31st March, 2020 and 8th May, 2020 where the Students Leadership and the Class Representatives duly attended, and upon meaningful deliberations, the resolution to adopt the impugned decision was arrived at.
33.The 1st and 2nd Respondents further contend that the Letters of Offer by the University to the Petitioners and other students did not in any way exclusively state that the mode of instruction will be face-to-face. It is deponed that even the University’s Standards and Guidelines 2014 PROG/STD/11 formulated by the 3rd Respondent clearly provide for various modes of instruction to the students and that the Council of Legal Education fully supports online instructions for the law programme at the University.
34.The University avers that the Senate, as its supreme organ, was well guided by the Constitution and the law and took into account all relevant considerations in arriving at the impugned decision. It is also averred that neither the University Students’ leadership nor the Class Representatives, who were part of the Senate sittings, ever raised any issue against the impugned decision.
35.The University further avers that the impugned decision calls upon all students to participate in online classes and examinations and that those who, for any reason, are not able to undertake the online classes and examinations have an option of applying to defer their studies. According to the University, the unwillingness of a few students to adopt the online system of learning and examinations should not subject the entire body of students to unnecessary inconvenience and deny them their fundamental right to education.
36.It is deponed that the Petitioners did not avail any evidence on how the impugned decision does not stand the test of the Constitution and the law. It is further deponed that the impugned decision was arrived at upon the joint recommendation of the Ministry of Health and the Ministry of Education and that due to the ravaging effects of COVID-19 pandemic it is impossible for the University to offer face-to-face lectures and/or classes and that the online mode of delivery of the content and examinations remain the only viable means of learning, and in any case, the students have access to an online library.
37.The 1st and 2nd Respondents are opposed to the demand that the online based programmes be offered at a reduced fee of 50%. The University contends that despite the fact that the proposal is without any valid basis, it is tantamount to inviting the Court to interfere with the private contract between the Petitioners and the 1st Respondent. The University is confident that even with the online mode of delivery of instructions, the students will get value for their money and shall graduate within the required period.
38.The University further avers that it has so far made tremendous steps to effect and conduct online classes and examinations and in preparing the final year candidates for a virtual graduation. It is deponed that the application and the Petition have the effect of bringing to a halt all learning processes within the 1st Respondent’s institution and which shall affect the right of education of almost 100,000 students. Accordingly, the University urges that the Petition is frivolous, without merit and only calculated to waste the Court’s time and ought to be dismissed with costs.
39.The 1st and 2nd Respondents filed submissions dated 2nd October, 2020. They submit on four issues.
40.On whether the University followed due process in coming up with the impugned decision, it is submitted that the 1st Respondent is cognizant of the significance of public participation as stated in Okiya Omtatah Okoiti v County Government of Kiambu (2018) eKLR where the Court cited with approval the case of Doctors for Life International v the Speaker of National Assembly and Others (CCT 12/05) 2006 ZACC II in which it was stated that “what matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
41.It is submitted that the resolution on the impugned decision met the threshold for public participation as required by law particularly Section 16 of the University of Nairobi Act. It is argued that there is no provision of the law or the Charter that requires the Respondent to consult all the students before making a decision since the only organ legally empowered to discharge that mandate is the Senate. The Senate therefore acted within the framework of the prescribed law.
42.The University submits that the allegation that the impugned decision did not put into consideration the preparedness of the Petitioners is not backed by any evidence and contends that the Senate was mindful of the need for continuity of learning programmes in these unprecedented times and considered all relevant factors. Accordingly, it is submitted that in reaching the decision the Senate was acting within its statutory powers under Section 16 of the University of Nairobi Act and the Charter and that in formulating the guidelines, the 1st Respondent followed the law and a reasonable opportunity was given to all the interested parties, through their representatives in the Senate, to participate in the resolution. Accordingly, the 1st Respondent complied with the provisions of Article 10 and 47 of the Constitution and the Petitioners’ allegation are not merited.
43.On whether the Petitioners are discriminated by the impugned decision, the decision in Council of Governors vs. Salaries and Remuneration Commission (2018) eKLR in which the term discrimination was defined and the Constitutional Court of South Africa in Mbona v Shepstone and Wylie (2015) ZACC II in which considerations that should be taken to determine whether an act is discriminatory were discussed, this Court was urged that “the first step is to establish whether the respondent’s policy differentiates between people. 11 The second step entails establishing whether that differentiation amounts to discrimination. 12 The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in Section 9 of the Constitution, it is presumed to be unfair”.
44.Subsequently, it is argued that the Petitioners have not tabled any evidence before this Court to show who and how one was favoured by the 1st Respondent as against the Petitioners and that the differentiation is without any merit. The Petitioners are alleging discrimination with a non-existent person. As such, there cannot be an unfair discrimination by the 1st Respondent against the Petitioners. It is vehemently argued that to prove discrimination, one has to demonstrate favorable treatment of another and/or bias against them. To buttress this argument, the University cited Nyarangi & 3 Others v Attorney General, HCCC No. 298 of 2008, which was cited with approval in Florence Amunga Omukanda & Anor v Attorney General & 2 Others (2016) eKLR and in which decision it was held that, “the law does not prohibit discrimination but rather unfair discrimination. The said Handbook defines unfair discrimination as treating people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity.”
45.The 1st and 2nd Respondents argue that the Petitioners have not tabled any evidence of how they have been discriminated from others or whether there was an unfavorable bias. On the contrary, the 1st Respondent’s decision affected each student equally and without favoritism. The Court is urged to take judicial notice that all the Petitioners are self-sponsored Master of Law students and that the 1st Respondent does not offer free Master of Law studies.
46.On whether a Court can legally alter the contractual relationship between the 1st Respondent and the Petitioners, it is submitted that the Petitioners have not shown whether there was any economic duress or undue influence or whether the decision was unconscionable and how this has affected their right under Article 46 of the Constitution. The University argued that a similar issue was considered in LTI Kisii Safari Inns Ltd & 2 others v Deutsche Investitions-Und Enwicklungsgellschaft (‘Deg’) & Others (2011) eKLR which was cited with approval in CIS v Directors, Crawford International School & 3 Others (2020) eKLR where the Court provided grounds on which a Court can interfere with consumer contract as follows: “…Firstly, the bargain must be oppressive to the extent that the very terms of the bargain reveals conduct which shocks the conscience of the court; secondly, the victim must have been suffering from certain types of bargaining weakness; and, thirdly, the stronger party must have acted unconscionably in the sense of having knowingly taken advantage of the victim to the extent that the behavior of the stronger party is morally reprehensible”.
47.The 1st and 2nd Respondents also urged the Court to be guided by the decision in Nareth Kumar Vs. Director of Education & Another W.P (C) 2993/2020 as rightly cited at paragraph 131 of CIS v Directors, Crawford International School & 3 Others (supra) where the Court stated as follows: -
48.It is argued that having voluntarily entered into a contract where the 1st Respondent will offer academic services for a degree and the Petitioners will pay, the 1st Respondent continues to offer the services, albeit due to the Covid-19 pandemic, on an online platform. Furthermore, the lecturers remain the same, there is an online library accessible to the Petitioners and the degree awarded virtually will carry the same weight as any other. In fact, it is argued that the 1st Respondent is even spending more to ensure that the Petitioners right to education is not thwarted since embracing technology within a very short span of time is not cheap as observed in CIS v Directors, Crawford International School & 3 Others case (supra). The Respondents urge the Honourable Court to find that there was no infringement of the Petitioners’ rights under Article 46 and to decline to alter the contractual relationship between the Petitioners and the 1st Respondent.
49.It is firmly argued that this Court has no power, in the circumstances given, to interfere with the private agreement between the Petitioners and the 1st Respondent. It is further argued that the Petitioners have not shown whether the classes or graduation services to be offered by the Respondents through the online classes will be of lower quality neither have they demonstrated how the Respondent has failed to avail the information necessary for them to gain full benefit from the service offered by the Respondents.
50.On the issue of whether the Petitioners’ legitimate expectation has been violated and/or infringed, it is submitted that a right to legitimate expectation flows from Article 47 of the Constitution and what is legitimate expectation can be deduced from the case of Keroche Industries Limited v Kenya Revenue Authority & 5 Others (2007) eKLR. Accordingly, it is submitted that as stated in CIS v Directors, Crawford International School & 3 Others (supra), the decision of the 1st Respondent was in line with the expectations of the Petitioners since it was aimed at ensuring that the students do not suffer in their curricular activities during the 2020-2021 academic session.
51.It is further submitted that the Petitioners’ right to legitimate expectation is not violated since the Petitioners have not availed any evidence to show that they were admitted exclusively for physical classes. The impugned decision is hence not arbitrary but rather based on the power bestowed on the Respondent by the statute and necessitated by the current pandemic. It is also submitted that it is the Respondent’s statutory duty to offer academic services to its students and to ensure that the students finish their course within the prescribed timeline and the decision therefore was meant to ensure that the 1st Respondent meets its obligations.
52.On the specificity of the Petition, the Respondents submit that it is trite law that he who alleges must prove and in a matter of allegation of a constitutional right, the violation must be particularly set out and demonstrated. This, is argued was succinctly laid out in Anarita Karimi Njeru v Republic (1979) eKLR and has been reiterated by this Honourable Court in Japheth Odeda Origa v Vice Chancellor, University of Nairobi & 2 Others (2018) eKLR where the Court stated that precision in pleading is vital in constitutional petitions because it enables the opposite party to fully understand the case they face and be in a position to adequately respond to it. It also enables the Court to decipher the issues brought before it for adjudication and helps in avoiding surprises and ambiguities in the litigation but more importantly it shows the link between the aggrieved party, the constitutional provisions at play and the possible infringement as also stated by the Supreme Court in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR.
53.The Respondents summed up their submissions in urging the Court to find that the Respondents acted within their mandate, followed the due process and in any event, the Petitioners have acknowledged that they are not opposed to the virtual classes. The Respondents pray that the Petition ought to be dismissed with costs.
54.The 2nd Interested Party also relied on a Replying Affidavit in opposing the Petition. The Affidavit is sworn by Vincent Gaitho on 21st August, 2020. The deponent is the Secretary General of National Association of Private Universities in Kenya (hereinafter referred to either as “the 2nd Interested Party” or “Napuk”).
55.Napuk contend that learning through physical classes has proved difficult due to the challenges brought by the COVID-19 pandemic and as a result, 40% of learning in the Universities has now moved to virtual and personalized teaching.
56.It is deponed that according to GSMA figures, Kenya has 83% mobile internet penetration and that electrification has improved by 75% and, as such, Napuk argues that it is important that institutions of higher learning adopt online learning in pedagogy and research to ensure the progression of University education to foster the objectives of university education as enshrined in Section 3 of the Universities Act.
57.Napuk further argues that any decision which will be rendered by this Honourable Court will affect the interests of the Private Universities as they have also adopted alternative means of delivery of curriculum as per the standards and guidelines by the 3rd Respondent. Napuk contends that since the 3rd Respondent came up with guidelines for the conduct of virtual learning, then such encompasses the aspect of public participation, and as such, there is no need of any further public participation.
58.It is also argued by Napuk that the Petitioners have failed to demonstrate any irregularity, illegality and or irrationality of the decision by the University to offer online learning and in its view, the Petitioners have not established any constitutional questions for adjudication by the Court with the requisite specificity. Accordingly, Napuk urges that the Petition be dismissed with costs.
59.The 2nd Interested Party filed written submissions dated 18th September, 2020. It submitted on three issues.
60.The first issue is the injusticiability of the matters raised in the Petition. It is submitted that the Petitioners have not demonstrated a justifiable right capable of adjudication in a constitutional petition. It is argued that the Petitioners have failed to set out in particularity how their alleged rights are being violated by the Respondents.
61.The 2nd Interested Party contend that the Petitioners position is that they are not opposed to either virtual or online study and examinations and only appear to urge the Court to stop the virtual learning and delivery of contents in order for the Respondents to carry out the public participation and or consultation among the Petitioners and stakeholders over the matter. This Court is called upon to take judicial notice that alternative mode of delivery of content is not a new phenomenon in the Universities and that the standards and guidelines by the 3rd Respondent issued explicitly provides for the same. Further, it was argued that the supervening event brought about by Covid-19 pandemic had the effect of terminating the contract between the Petitioners and the 1st Respondent and the policy framework laid out by the 3rd Respondent on alternative means of delivery of content was largely a mitigating factor. The decision in Anarita Karimi Njeru v Attorney General (supra), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others  eKLR and Joseph Ododa Origa v Vice Chancellor University of Nairobi and 2 others (supra) were variously referred to in support of the submission.
62.It is further submitted that there is no attempt by the Petitioners to demonstrate how their consumer rights have been violated. The failure to avail any fee structure in evidence and the failure by the Petitioners to demonstrate how they have come up with the 50% discount, is argued to be a self-shot by the Petitioners. The 2nd Interested Party is at a loss as to whether the Petitioners are pushing for a discount, for public participation or for the permanent injunction to stop the 1st Respondent from offering virtual learning.
63.It is also submitted that the entire Petition is devoid of good faith and seems to be a fishing expedition. In buttressing the submission, the 2nd Interested Party relied on Leonard Otieno v Airtel Kenya Limited  eKLR where the Court held that “It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional right is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”
64.On public participation, it is submitted that public participation is a constitutional imperative enshrined in Article 10 of the Constitution and the basis of the same is to create a dialogical relationship between those who make policies that affect the citizenry in that they feel that there is adequate consultation but it does not mean that every person’s view must be taken into account. It presupposes that the majority will have their way and the minority will have their say as was held in the case of Simeon Kioko Kitheka & 18 Others v County Government of Machakos & 2 Others  eKLR. In the 2nd Interested Party’s view, the question to be answered is whether public participation in offering the virtual learning was a necessity in the circumstances.
65.The 2nd Interested Party further submits that virtual learning is entrenched in the policy directives issued by the 3rd Respondent which is established under the Universities Act, No. 42 of 2012 with its mandate provided under Section 5A. Indeed, it is argued that professional bodies, like the Kenya Veterinary Board, which have declined to recognize the qualifications of online studies have no such powers in light of Section 5A of the Universities Act.
66.Further, it is submitted that the Act being an Act of Parliament enjoys the presumption of constitutionality and the powers donated to the 3rd Respondent flows from this legislation and the policy framework for alternative delivery of content are legitimate functions of the 3rd Respondent.
67.The 2nd Interested Party further submits that the accreditation of programmes at the Universities is subject to the policy guidelines and there is absolutely no need for any form of public participation given that the 3rd Respondent is manned by all the stakeholders from the University academia and develops the policy frameworks with sufficient consultation. Moreover, the alternative mode of delivery was and is a mitigation factor to the effect of force majeure created by the Covid-19 pandemic. That, in any event, was the only responsive way by the 1st Respondent and other members of the 2nd Interested Party to safeguard the right to education of the Petitioners. The contrary would actually be in breach of their rights and would be unreasonable in a just and equitable society.
68.Lastly, it is also argued that the Petitioners should be dissuaded of the notion that every dispute with the university must always end up in a litigation when there are alternative means of dispute resolution laid out by the University which ideally should be exhausted first. Be that as it may, it is submitted that the issue of quantum of fees payable is a contractual dispute should belong to a Commercial Court, if at all. The decision in Joseph Ododa Origa v Vice Chancellor University of Nairobi and 2 others (supra) was relied on for the proposition.
69.The 2nd Interested Party closed its submissions in calling for the dismissal of the Petition.
Issues for determination:
70.I have carefully considered the Petition, the responses, the submissions and the decisions thereto, and, to me the following issues are for determination: -
Analysis and Determination:
71.I will now address each of the identified issues in seriatim.
Whether the Petition meets the threshold for adjudication:
72.I recently dealt with alike issue in Nairobi Constitutional Petition No. 133 of 2020 Scion Healthcare Limited & Others vs. DCI & Others (unreported). This is what I stated: -
73.There is a difference between the form and the substance in a Petition. Form relates to how the Petition is drafted and issues framed. Substance relates to proof of the pleaded issues. In this Petition, the first issue for determination is on the form.
74.I have carefully considered the Petition. I have no doubt that the link between the Petitioners, as aggrieved parties, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement are well pleaded. The Petition, as presented, raises clear issues for consideration. I find and hold that the Petition has clarity of issues, and as such, the first issue is answered in the affirmative.Whether the impugned decision is in violation of Articles 10 and 47 of the Constitution for want of public participation, stakeholder consultations and administratively fair procedures:
75.A robust discussion on public participation and consultation under Article 10 of the Constitution was recently made by a Five-Judge Bench (Achode (Presiding), Ngugi, Nyamweya, Ogola & Mrima, JJ) in Mombasa Consolidated Constitutional Petition Nos. 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & Others vs. The Attorney General & Others (unreported).
76.The analysis was as follows: -……The more discrete and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it would be to expect the legislature to be astute to ensure that the potentially affected section of the population is given a reasonable opportunity to have a say….…. A public participation programme, must…show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.(emphasis added)
77.The University posits that the deliberations leading to the impugned decision were undertaken through the University Senate. It further posits that the University students, including the Petitioners, are well represented in the Senate through the students’ representatives and leadership. Given the nature of the impugned decision, the University contends that the participation of the students’ leadership in the Senate in arriving at the impugned decision amounted to adequate public participation and consultation.
78.The University of Nairobi Act, Cap. 210 of the Laws of Kenya (hereinafter referred to as ‘the UoN Act’) is an Act of Parliament establishing the University of Nairobi and its control, government and administration; and for connected purposes. Section 16(1) of the UoN Act provides for the composition of the University Senate.
79.The provision states as follows: -
80.The impugned decision was a shift in the manner in which the students were variously engaged in learning. Initially, the students engaged in face-to-face learning and physical examinations. The impugned decision introduced online learning and examinations.
81.The University stated that it has a student population of about 100,000 students. These students include the Petitioners. There is no dispute that the students take part in the affairs of the University through their leadership and representatives. The representatives are elected by the students and six of them sit in the University Senate.
82.I have carefully gone through the record, but did not find any disposition by the Students’ representatives who sit in the Senate to the effect that there were no meaningful discussions or at all on the impugned decision in the Senate. Further, the said students’ representatives have never raised any complaints in the manner the impugned decision was reached. In such circumstances, the only reasonable finding is that there were discussions in the Senate leading to the impugned decision and that the Students’ representatives duly participated.
83.Whereas Article 10 of the Constitution bestows a duty upon public policy decision makers to accord those affected by their decisions opportunities to participate in the processes towards making such decisions, the adequacy, mode and extent of such participation largely depends on what is reasonable in the circumstances of each case. That is what is commonly referred to as ‘the reasonability test’. As long as the necessary information is availed to the public or the class of people affected by the public policy decisions and they are afforded a forum in which they can adequately ventilate them, then the requirement of Article 10 of the Constitution is met.
84.The number of the students’ representatives who sit in the Senate are statutorily provided for. That is in Section 16(1) of the UoN Act. The provision has neither been legally challenged nor declared unconstitutional or unlawful. It is, therefore, a valid provision of the law.
85.In the unique circumstances of this matter, I find and hold that although the impugned decision affected all the students, it was not necessary on the part of the University to accord all and every student an opportunity to give their views on the issue. This is a matter in which the participation of the students’ representatives in the Senate, where the deliberations on the impugned decision took place and resolutions made, accorded the body of the students a reasonable representative opportunity to participate in the decision making process. I, therefore, further find and hold that there was adequate public participation towards arriving at the impugned decision and that the students, including the Petitioners, were adequately so, represented by their students’ representatives in the Senate.
86.Having so found, I must, as well, ascertain whether the impugned decision passed the test in Article 47 of the Constitution.
87.Article 47(1), (2) and (3) of the Constitution states that: -
88.The legislation that was contemplated under Article 47(3) is the FairAdministrative Act. Section 5(1) thereof provides that: -
89.Section 2 of the Fair Administrative Act defines an ‘administrative action’ and an ‘administrator’ as follows: -‘administrative action’ includes -
90.Addressing itself to the above provisions, the Court of Appeal in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR held that: -
91.In President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others CCT16/98) 2000 (1) SA 1, the South African Constitutional Court ring-fenced the importance of fair administrative action as a constitutional right. The Court while referring to Section 33 of the South African Constitution which is similar to Article 47 of the Kenyan Constitution stated as follows: -
92.The High Court in Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti  eKLR discussed the issue as follows: -25. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.These are: -Provincial Picture Houses Ltdvs Wednesbury Corporation: -
93.Drawing from the foregoing discussion, there is no doubt that the impugned decision was an administrative action. That is because the decision affected the legal rights and interests of the students including the Petitioners. As such, the impugned decision had to pass the constitutional and statutory tests of lawfulness, reasonableness and procedural fairness.
94.On lawfulness, Section 16(2) and (3) of the UoN Act provides as follows: -
95.Section 35(1)(b) of the Universities Act, No. 42 of 2012 provides for the Senate as under: -
96.In view of the above provisions, the University was, therefore, within its legal confines in dealing with the matters that led to the impugned decision.
97.As to whether the impugned decision was reasonable, the University and the 2nd Interested Party greatly dealt with the unique circumstances that led to the impugned decision. By and large, the decision was reached as a mitigating measure on the effects of the COVID -19 pandemic which rocked and devastated the whole world. To me, I do not have any difficulty in finding, which hereby do, that the impugned decision was and remain reasonable.
98.On procedural fairness, the students’ representatives who deliberated on the matter in the Senate did not in any way challenge the manner in which the impugned decision was reached at. I, therefore, find no basis for any proposition that the impugned decision is procedurally unfair.
99.In the end, I find and hold that the impugned decision conformed to the requirements of Article 47 of the Constitution and Fair Administrative Actions Act. The impugned decision also complied with the requirements of Article 10 of the Constitution.
100.The impugned decision is, hence, constitutionally firm.Whether the Respondent’s actions were discriminatory against the Petitioners:
101.The Black’s Law Dictionary, 10th Edition, defines discrimination as;
102.Article 1(a) of the Convention Concerning Discrimination in Respect of Employment and Occupation (1958) defines discrimination as follows: -
103.In Peter K. Waweru v Republic  eKLR, the Court defined of discrimination as follows: -
104.Discussing what discrimination entails, a Three-Judge bench of the High Court (Mwera, Warsame and Mwilu JJ., as they then were, before they were all elevated to the Court of Appeal shortly afterwards) in Federation of Women Lawyers Fida Kenya & 5 Others vs. Attorney General & Anor 2011 eKLR and in recognition that justice, fairness or reasonableness may not only permit but actually require different treatment rendered themselves as follows: -
105.The South African Constitutional Court in National Coalition for Gay and Lesbian Equality –Vs- Minister for Justice  ZAAC 15 further added its voice to the discussion as under: -
106.Further, the South African Constitutional Court in City Council of Pretoria v. Walker  ZACC 1 in considering direct and indirect discrimination made the following comment with which I respectfully agree: -
107.A common thread of reasoning flowing from the foregoing is that equal should be equally treated and unequal unequally treated as called for by the inequality.
108.In attaining that legal bar, Courts have developed guiding principles. In Mbona vs. Shepstone and Wylie (2015) ZACC 11, the South African Constitutional Court rendered itself on proof of direct discrimination. The Court stated that: -
109.The English case of The Queen on the application of Sarika Angel Watkins Singh (A child acting by Sanita Kimari Singh her mother and litigation friend) vs. The Governing Body of Aberdare Girls’ High School and Anor  EWHC 1865 (Admin) dealt with an analysis of proof of indirect discrimination. The Court developed the following four steps: -
110.I will now apply the above tests to this Petition. On whether the impugned decision directly discriminates against the Petitioners, there is evidence that the decision applied to all students. The students had enrolled in various programmes and, presumably, had paid the required fees and charges. One of the allegations put forth by the Petitioners is that the students are of different economic backgrounds and that the decision, which has financial implications, did not take such inequality into account. There is also an allegation that some students were provided with sim cards and internet bundles to access the online classes.
111.In this Petition, there is no evidence of categorization of the students into those who are from poor backgrounds and those of rich descents. There is, as well, no evidence that some students were provided with sim cards and internet bundles to access the online classes. At the risk of repetition, the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others  eKLR held that: -
112.And, the Court of Appeal in Civil Application Nai. 31 of 2016 Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 Others  eKLR stated as follows: -…. We find that the applicant is entitled in law to institute proceedings whenever there is threat of violation of his fundamental rights and freedoms or threat of violation of the Constitution. Whether there is a threat of violation is a question of fact and evidence must be adduced to support the alleged threat.
113.Having failed to prove the alleged disparity, the impugned decision cannot, therefore, be alleged to have failed to take into account the students’ different economic backgrounds or favoured an unidentified or imaginary class of students.
114.As to whether making the online classes and examinations mandatory discriminated against the Petitioners, the Respondents posits that the resolution to adapt to online classes and examinations was necessitated by the Covid-19 pandemic following the Government directives to close all learning institutions and that the impugned decision applies to all students. Further, there is evidence that any student who, for whatever reasons, is not able to undertake the online classes and examinations is at liberty to apply for deferment of studies.
115.In this Petition, I find and hold that, the Petitioners failed to render any admissible evidence on the alleged direct differentiation between the students. As such, a further analysis on the aspect of direct discrimination, must and hereby, comes to a halt.
116.Is there any evidence of indirect discrimination in the Petition? A correct answer to this question is not easily forthcoming without an analysis of whether the Petitioners have identified a category of other persons for the purpose of making a comparison of the relevant disadvantages between the categories. Further, the Petitioners must prove that the impugned decision personally disadvantages them. Respectfully, I have not, so far, found any iota of such evidence on record.
117.The Court also find that the impugned decision is objectively justified by a legitimate aim. The aim is that the students must be accorded opportunities to learn and undertake examinations even during the current challenging times resulting from the devastating COVID-19 pandemic. The implementation of the impugned decision is a proportionate means of achieving that legitimate aim. I now return a finding that the Petitioners did not prove any indirect discrimination.
118.In sum, the contention that the impugned decision and the manner it is implemented discriminates against the Petitioners fails. This issue is answered in the negative.Whether the contractual relationships between the Petitioners and the 1st Respondents are justiciable:
119.On one hand, the Petitioners contend that they enrolled for a physical based study and not online classes and as a result, the impugned decision, violates their right to consumer protection under Article 46 of the Constitution. Further, the Petitioners posit that that since the online classes are not similar to the physical learning then there should be a reduction of fees by 50%.
120.The Respondents, on the other hand, argue that the University of Nairobi Charter as read with the Universities Act and the 3rd Respondent’s Guidelines recognize online learning as a mode of delivery of university education. That, the intrusion of Covid-19 pandemic forced most institutions to adapt new ways of delivery of their services, online learning being considered one of the safest to minimize physical interactions and as a result contain the virus.
121.There are twin questions this Court is called upon to answer. They are whether by adapting online learning, the rights of the Petitioners, as consumers, are violated and whether this Court can legally interfere with the contractual relations between the parties, in the circumstances.
122.The High Court recently discussed the issues at length in CIS v Directors, Crawford International School & 3 others  eKLR. The Court, rightly so, analyzed the issues as follows: -
123.On my part, I can only add that the Constitution permeates into every corner of the land. Even transactions which are traditionally regarded as private must now stand the constitutional test. As stated in William Odhiambo Ramogi & Others vs. The Attorney General & Others case (supra): -
124.Flowing from the above, the contracts between the Petitioners and the University can be variously vitiated including on the basis that they fail to meet any constitutional expectations. In other words, the contracts should not be constitutionally infirm.
125.In this matter, the contracts between the Petitioners and the University were not produced in evidence. As such, this Court is not in a possession to interrogate the relevant contractual terms accordingly. Therefore, the Petitioners’ contention that they only contracted the University for face-to-face learning weighed against the University’s contrary position that the institution is at liberty to offer learning vide any legal means including online classes renders the Petitioners’ averments unsubstantiated.
126.Further, the Petitioners failed to adduce any evidence in support of their claim that e-learning is inferior to face-to-face teaching thereby compromising on the quality of education. They also failed to demonstrate the basis for the fee reduction of upto 50%. No fee structures were availed. There was also no expert report to back the allegation that e-learning is inferior to face-to-face teaching and also that e-learning is cheaper in comparison with face-to-face physical learning.
127.In conclusion, it is the finding of this Court that any contractual relationships, whether public or private in nature, are justiciable. Such contracts must stand to the dictates of the Constitution and the law. It is also the finding of this Court that the Petitioners did not sufficiently prove that their rights under Article 46 of the Constitution were violated and that they are entitled to a refund of upto one-half of the fees paid, or a reduction of upto one-half of the fees payable, to the University.
Conclusion and Disposition:
128.Having dealt with all the issues which I identified for determination, I now come to the end of this decision. As I do so, I remain most grateful to Counsel appearing before me for their industry in assembling jurisprudence from within the jurisdiction and further afield and for their cogent and incisive submissions which were of great assistance. If there is any authority I have not referred to, it is not for my non-consideration of it, but out of the satisfaction that the point is otherwise already amply made.
129.I must, as well, apologize for the late delivery of this judgment which was due on 10th December, 2020 but that was not possible for a technical problem on our part.
130.Flowing from the findings and conclusions, the disposition of the Petition dated 22nd June, 2020 is that the Petition is unsuccessful. It is hereby dismissed with costs to the 1st and 2nd Respondents and the 2nd Interested Party.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF DECEMBER 2020.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Chege Kamau, Learned Counsel instructed by the firm of Messrs. Chege & Sang Company Advocates for the Petitioners.Mr. Mola, Learned Counsel instructed by the firm of Messrs. Mereka & Company Advocates for the 1st and 2nd Respondents.Mr. Muturi, Learned Counsel instructed by the firm of Messrs. Muturi S. K. & Company Advocates for the 2nd Interested Party.Dominic Waweru – Court Assistant