| Issue 12/2011 Newsletter Archive | Friday 25th March 2011 |
COURT ISSUES INJUNCTION AGAINST UNIVERSITY IN PLAGIARISM SUIT
By Esther Nyaiyaki Onchana
Advocate – Nairobi
Anne Nang’unda Kukali v Mary A Ogola & University of Nairobi [2010] eKLR (www.kenyalaw.org)
High Court of Kenya at Bungoma
Civil Suit 94 of 2010
Lady Justice F. Muchemi
November 9, 2010
Many will recall the resignation of Germany’s popular defence minister Karl-Theodor zu Guttenberg early this month, amid a persistent scandal of plagiarism. Guttenberg resigned days after he was stripped of his university doctorate following allegations that he had copied large parts of his work from others. Although he admitted breaching standards he denied deliberately cheating.
Plagiarism is defined as the wrongful appropriation of another author's language, thoughts, ideas, or expressions, and the representation of them as one's own original work. In the fields of academia and journalism plagiarism is considered academic dishonesty or a breach of journalism ethics calling for a range of sanctions including academic censure and severe damage to one’s career. Famous incidences where plagiarism was at the centre of scrutiny have been documented in the fields of art, music and literature and can be traced to as far back as the 11th century.
Plagiarism suit in Kenya: a first of its kind
In the present day, this old age transgression continues to be fraught with moral, ethical and legal questions. In September 2010 the Bungoma High Court mulled over the legal aspects of this subject following allegations of plagiarism by Anne Nang’unda Kukali (Applicant) against Mary A. Ogola (1st Respondent) and the University of Nairobi. Lady Justice Florence Muchemi presided over the case; a first of its kind in Kenyan courts.
In her application to the court, Ms. Kukali sought for a temporary injunction to restrain the University of Nairobi from including Ms. Ogola’s name in the list of for the graduation ceremony that was to be held on September 24, 2010 or any other forthcoming graduation. Further she sought to restrain the University of Nairobi from awarding Ms. Ogola with a degree certificate for the degree of masters in Arts in Project Planning and Management pending the hearing and determination of the suit.
The facts leading to this application were that in June 2009 Ms. Ogola submitted a research proposal to the University of Nairobi for the degree of Masters in Arts in Project Planning and Management the same material that the Ms. Kukali had presented to Maseno University for the degree of Masters of Education in 2008. Ms. Kukali argued that at the time of the presentation, the Ms. Ogola was aware that the copyright to the work was held by Ms. Kukali; which work Ms. Ogola obtained through Ms. Kukali’s friend. The Applicant told the court that the 1st Respondent falsely presented the work as her original work and falsely declared that the work had been presented for the award of any degree in any other University.
The Applicant’s lawyer, Mr. Sifuna submitted that intellectual law granted Ms. Kukali a right against copyright infringement of her work. He pointed out to the court that the act of copying the work had been expressly admitted in Ms. Ogola’s replying affidavit. While submitting that the application had high chances of success having satisfied the principles set out in the often cited East African case of Giella v Cassman Brown. Mr. Sifuna contended that if the 1st Respondent was allowed to graduate using the copyright work, his client would suffer intellectual loss which could not to be compensated in monetary terms.
Ms. Ogola opposed the application through her lawyer Mr. Khakula who submitted that the document annexed to the supporting affidavit was a draft that could not prove a prima facie case in favour of the Applicant. In his view the admissions by the 1st Respondent in the replying affidavit were not sufficient to lay a basis for granting an injunction. He told the court that his client had on the advice of the University of Nairobi abandoned the work complained of and submitted fresh work. He argued that the parties conducted their research work at different places, were pursuing degrees in different universities and for that reason the issue of copyright did not arise. The University of Nairobi did not respond to the application and its stand on the matter remained unknown at the time of the ruling delivered on November 9, 2010.
In the court’s ruling Lady Justice Florence Muchemi stated that the perusal of the annexed documents presented to the court showed that the Applicant’s topic was “An Evaluation of the Implementation of Safety Policy in Girls Boarding Secondary Schools in Bungoma East District.”while thesecond annexure which was the subject of the suit showed that the 1st Respondent’s topic for research was “Factors Influencing the Implementation of Health and Safety Policy in Public Boarding Secondary Schools in Kenya: A case for Bungoma South District.”
In both cases the parties executed declarations to the effect that the research work was their original work and their respective research supervisor signalled their endorsement. After comparing the document against each other, Justice Muchemi noted that under the segment titled ‘Literature Review’ the 1st Respondent has reproduced almost word by word the Applicant’s original work save a few words, phrases and references.
The same was true under when the sub-heading “Abstract” of the Applicant’s and the 1st Respondent’s works were compared. The court concluded that same material content has been reproduced in the 1st Respondent’s work under that same sub-heading with only a few changes in some words and rephrasing of sentences. The introductory paragraphs and the objectives of the study were similar. The court further observed that the research was based on boarding schools with the Applicant giving their number as fourteen and the 1st Respondents as ten. The method of data collection was the same being through questionnaires, interviews, observations and document analysis.
The research methodology for both the Applicant’s work and that of the 1st Respondent was contained in Chapter III of the research proposal. The sub-headings and contents under the sub-headings were the same in both documents.
The comparative analysis the Applicant’s work and that of the 1st Respondent and the express admissions by the 1st Respondent, left the court with no doubt that the Applicant’s intellectual rights had been violated by the 1st Respondent.
With respect to the 1st Respondent‘s contention that she had submitted fresh work to the University which had been annexed to the replying affidavit, the court stated that the draft had not been endorsed by the supervisors to show that it has been submitted for approval. Further 1st Respondent had failed to furnish the court with any evidence to prove withdrawal of the copyrighted draft she had submitted earlier.
The court therefore assumed that the copyright work was still in the hands of the University of Nairobi and that it may be used by the 1st Respondent as partial fulfilment of the Masters Degree course at any future graduation. The court being satisfied that the Applicant had shown that she was likely to suffer substantial loss due to violation of her intellectual rights in the event of her original work being used by the 1st Respondent in her degree course approval granted the orders sought accordingly.
Internet double edge sword for plagiarism
The growth the internet has been heralded as a double edged sword with respect to plagiarism. On one hand the availability of a multitude of information websites including websites that avail term papers to students for a relatively small fee have left universities across the world scratching their heads on how to fight the vice. On the other hand it has provided a variety of free tools that help identify plagiarism.
Famous Plagiarism suits
The author of the famous novel Roots Alex Haley settled a lawsuit with Harold Courlander that cited approximately 80 passages from Courlander's novel The African. English courts dismissed two plagiarism suits against Dan Brown the author of The Da Vinci Code and in 1999 J.K. Rowling, author of the Harry Potter series of books was sued by Nancy Stouffer who for plagiarism. However the court ruled that Stouffer had fabricated evidence.
Additional information obtained from www.wikipedia.com
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Conference Focus
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THE KENYA GAZETTE Vol. CXIII—No. 28, Dated 25th March, 2011
GAZETTE NOTICE NO. 2917
THE VALUATION FOR RATING ACT
(Cap. 266)
THE MUNICIPAL COUNCIL OF LIMURU
EXTENSION OF VALUATION ROLL
IN EXERCISE of the powers conferred by section 3 of the Valuation for Rating Act, the Deputy Prime Minister and the Minister for Local Government approves the extension of Municipal Council of Limuru’s Valuation Roll, for a period of one (1) year.
Dated the 8th March, 2011.
MUSALIA MUDAVADI,
Deputy Prime Minister and Minister for Local Government.
GAZETTE NOTICE NO. 2918
THE DAIRY INDUSTRY ACT
(Cap. 336)
APPOINTMENT
IN EXERCISE of the powers conferred by section 5 (2) (c) of the Dairy Industry Act, the Minister for Livestock Development appoints—
ABDULLAHI IDRIS MAALIM YUSUF
as a member of the Kenya Dairy Board, for a period of one year and four months.
Dated the 14th February, 2011.
M. A. KUTI,
Minister for Livestock Development.
GAZETTE NOTICE NO. 2919
THE STATE CORPORATIONS ACT
(Cap. 446)
THE KENYA VETERINARY VACCINE PRODUCTION INSTITUTE
APPOINTMENT
IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Livestock Development appoints—
BERNARD SAIDUMU LENARONKOITO
to be a member of the Board of Directors of the Kenya Veterinary Vaccine Production Institute, for a period of three (3) years, with immediate effect.
Dated the 9th March, 2011.
M. A. KUTI,
Minister for Livestock Development.
GAZETTE NOTICE NO. 2921
THE LOCAL GOVERNMENT ACT
(Cap. 265)
THE WAJIR TRADE DEVELOPMENT JOINT LOAN BOARD
APPOINTMENT
IN EXERCISE of the powers conferred by paragraph 3 of the Local Government (Wajir Trade Development Joint Loan Board) Order, 1966, upon the Minister for Local Government and in pursuance of a direction given under section 38 (1) of the Interpretation and General Provision Act (Cap. 2), the Permanent Secretary, Ministry of Trade, appoints—
Mohamed Ali Mohamed—(Chairman),
District Commissioner, Wajir—(Ex officio),
District Trade Development Offficer, Wajir—(Secretary),
Batula Noor Adan (Ms.),
Chairman, Kenya National Chamber of Commerce and Industry, Wajir Branch,
to be members of the Wajir Trade Development Joint Board for a period of three (3) years.
Gazette Notice No. 5343 of 2007, is revoked.
Dated the 10th March, 2011.
ABDULRAZAQ A. ALI,
Permanent Secretary, Ministry of Trade.
MR1663081
GAZETTE NOTICE NO. 2922
THE LOCAL GOVERNMENT ACT
(Cap. 265)
THE TAITA TAVETA TRADE DEVELOPMENT JOINT BOARD
APPOINTMENT
IN EXERCISE of the powers conferred by paragraph 3 of the Local Government (Taita Taveta Trade Development Joint Board) Order, 1966, upon the Minister for Local Government and in
pursuance of a direction given under section 38 (1) of the Interpretation and General Provision Act (Cap. 2), the Permanent Secretary, Ministry of Trade, appoints—
Sylvester M. Mwamburi—(Chairman),
District Commissioner, Taita Taveta—(Ex officio),
District Trade Development Offficer, Taita Taveta—(Secretary),
Judith W. Mwamburi (Ms.),
Chairman, Kenya National Chamber of Commerce and Industry, Taita Taveta Branch,
to be members of the Taita Taveta Trade Development Joint Board for a period of three (3) years.
Gazette Notice No. 6049 of 2007, is revoked.
Dated the 10th March, 2011.
ABDULRAZAQ A. ALI,
Permanent Secretary, Ministry of Trade.
MR1663080
GAZETTE NOTICE NO. 2923
THE PUBLIC PROCUREMENT AND DISPOSAL ACT
(No. 3 of 2005)
APPOINTMENT
IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act and Second Schedule (2) of the Public Procurement and Disposal Regulations, 2006, the District Commissioner, Tharaka North District appoints—
Evans K. Ogamba—(Chairman);
Members:
Alfred N. Murango—(Secretary)
Benson Wachera,
Rosemary K. Kirambia,
Katiria Mbinda,
Mohammed M. Mukundi,
Simon Igweta,
James J. Mwongera,
to be members of Tharaka North District Tender Board.
Dated the 15th March, 2011
F.W. WATAKILA,
District Commissioner, Tharaka North District.
MR1680129
GAZETTE NOTICE NO. 2924
THE CONSTITUTION OF KENYA
THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT
(Cap. 7)
THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS
ELECTION OF MEMBER OF PARLIAMENT
IN EXERCISE of the powers conferred by section 41A of the Constitution of Kenya, section 13 of the National Assembly and Presidential Elections Act and Regulations 8 (3) and 14 of the
Presidential and Parliamentary Elections Regulations, the Interim Independent Electoral Commission gives notice that:
(a) An election is to be held of a member to serve in the National Assembly for Ikolomani Constituency.
(b) Each political party wishing to participate in the by-elections must finalize the nominations of its candidate on or before the 21st April, 2011.
(c) The days for the nomination of the candidates for the parliamentary by-elections will be on 27th April, 2011 and 28th April, 2011, and nomination papers may be delivered by candidates to the Returning Officers of the said constituencies between the hours of eight o’clock in the morning and one o’clock in the afternoon and between the hours of two o’clock and four o’clock in the afternoon of the days.
(d) If the parliamentary elections are contested, the poll will take place on the 23rd May, 2011.
NOTES:
1. The attention of candidates and persons subscribing nomination papers is drawn to the provision of Part IV of the Presidential and Parliamentary Elections Regulations (Cap. 7. Sub. Leg.).
2. A person guilty of an election offence will be liable to the penalties imposed by the Election Offences Act (Cap. 66) and to the disqualifications imposed by the National Assembly and Presidential Elections Act (Cap. 7).
Dated the 22nd March, 2011.
A. I. HASSAN,
Chairman, Interim Independent Electoral Commission.
GAZETTE NOTICE NO. 2925
THE CONSTITUTION OF KENYA
THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT
(Cap. 7)
THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS
APPOINTMENT OF RETURNING OFFICERS–IKOLOMANI BY-ELECTION
IN EXERCISE of the powers conferred by section 3 of the National Assembly and Presidential Elections Act and regulation 3 (1) of the Presidential and Parliamentary Elections Regulations, the Interim Independent Electoral Commission appoints the persons specified in the second column to be Returning Officers for the constituency specified in the first column of the schedule.
Constituency Name of Returning Officer
Ikolomani Benjamin Kipchumba Tarus
Name of Deputy Returning Officer
Henry Bahati Lumiti
Dated the 22nd March, 2011.
A. I. HASSAN,
Chairman,
Interim Independent Electoral Commission.
GAZETTE NOTICE NO. 2926
THE INDUSTRIAL PROPERTY ACT
(No. 3 of 2001)
APPOINTMENT
IN EXERCISE of the powers conferred by section 11 (1) of the Industrial Property Act, 2001, the Board of Directors of the Kenya Industrial Property appoints—\
HENRY KIBET MUTAI (DR.)
to be the Managing Director of the Kenya Industrial Property Institute, for a period of three (3) years, with effect from the 1st April, 2011.
Dated the 22nd March, 2011.
PAUL LILAN,
Chairman, Kenya Industrial Property Institute.
GAZETTE NOTICE NO. 2906
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED ATHI RIVER 81MW THERMAL POWER
PLANT ON PLOT NO. 18474/216, ATHI RIVER, MACHAKOS DISTRICT
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed Athi River 81 MW thermal power plant.
The proposed project shall compromise of an MSD power plant principally consisting of the following components:
• Power house (containing ten ZGPT/Hyundai engines).
• Waste heat recovery system.
• Medium voltage switchgear.
• Step – up transformers 11/66KV.
• High voltage switch gear.
• Transportation and delivery to site.
• Civil and structural works.
• Installation activities.
• Commissioning and start-up and
• Testing.
The proposed site is situated in the Athi River area of Mavoko in Machakos District on a 10.00 ha plot no. 6&7 located behind East African Portland Cement Company.
The anticipated impacts and proposed mitigation measures are as set out in the Kenya Gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Eastern Province.
(d) District Environment Officer, Machakos District.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR1663322
GAZETTE NOTICE NO. 3236
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED PETROL STATION ON PLOT L.R NO. GITHUNGURI/IKINU/1026, ALONG KIAMBU-GITHUNGURI ROAD
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed petrol station.
The project highlights include:
• Canopy over the pumps
• Sales office
• A store
• Underground fuel tanks
• Compressor/generator
• Tyre centre & car wash
• Drive ways, walkways, acceleration and deceleration lanes
• Interceptor Tank
• Washrooms
The proposed project site is located directly opposite the poster for P.C.E.A. Ngagoti Church. It’s a triangular shaped plot measuring 0.06 ha. The Land reference number is L.R. No. GITHUNGURI/IKINU/ 1026 along Kiambu–Githunguri Road at Ikinu Shopping Centre.
The anticipated impacts and proposed mitigation measures are set out in the Kenya Gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Central Province.
(d) District Environment Officer, Kiambu West District.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR1662057
GAZETTE NOTICE NO. 3237
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED SERVICED APARTMENTS ON PLOTS L.R NO. MN/1/3095 & MN/1/3191 IN NYALI, MOMBASA COUNTY
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed serviced apartments.
The proposed project will comprise of executive apartments: 20 two-bedroomed and 20 three-bedroomed apartment units occupying five floors, a swimming pool, basement parking for 40 cars, while the other facilities consist of executive rooms, a swimming pool, meeting rooms, Gym, Health club, salon and bar.
The proposed site is located on plots L.R. No. MN/1/3095 and MN/1/3191 in Nyali Area, Mombasa County. The parcels of land are situated along Fourth Avenue off Baobab Road which is off the main Mombasa/ Malindi Road.
The anticipated impacts and proposed mitigation measures are as set out in the Kenya Gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Coast Province.
(d) District Environment Officer, Mombasa District.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the
Director-General, NEMA, to assist the Authority in the approval process of the project.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR1662024
GAZETTE NOTICE NO. 3238
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED DEVELOPMENT OF BEACH OPERATORS TRADING STALLS ON SILVERSANDS BEACH ACCESS ROAD, MALINDI
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of beach operators trading stalls.
The proposed project will compromise of approximately 60 units. Each stall shall be 8 feet by 8 feet in area. The project comprises of two rows of stalls separated by 9m (30 feet) wide path way which shall be made of cabro works.
The proposed site is Malindi Silver Sands beach located 2.9 Kilometers southwest of Malindi town off Casuarina Road. The proposed site is located between the walls of Arabica residential beach house and Tropical Village Plan Hotel.
The anticipated impacts and proposed mitigation measures are as set out in the Kenya Gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Coast Province.
(d) District Environment Officer, Malindi District.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR16623376
GAZETTE NOTICE NO. 3239
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED DEVELOPMENT OF BEACH OPERATORS TRADING STALLS ON BLUE BAY BEACH ACCESS ROAD, WATAMU
INVITATION OF PUBLIC COMMENTS
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of beach operators trading stalls.
The proposed project will compromise of approximately 60 units. Each stall shall be 8 feet by 8 feet in area. The project comprises of two rows of stalls separated by 9m (30 feet) wide path way which shall be made of cabro works.
The proposed site is found in Gede Location neighbouring Watamu Location. The proposed site is off the Watamu shoreline and can be accessed along Gede Road towards Blue Bay Beach Hotel.
The anticipated impacts and proposed mitigation measures as set out in the Kenya Gazette.
The full report of the proposed project is available for inspection during working hours at:
(a) Director-General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Coast Province.
(d) District Environment Officer, Malindi District.
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.
B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR16623376
SUPPLEMENT No. 16
Legislative Supplement
LEGAL NOTICE NO.
24- The Industrial Training (Trade Testing) (Amendment) Rules, 2011
25- The Immigration Act- Exemption
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