Wavinya Deti Case

Republic v Wavinya Ndeti & 4 others; Gideon Ngewa & another (Exparte);
Wiper Democratic Movement Kenya (Interested Party) (Judicial Review

3 of 2022) [2022] KEHC 12434 (KLR) (18 July 2022) (Judgment)
Neutral citation: [2022] KEHC 12434 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
JUDICIAL REVIEW 3 OF 2022
GV ODUNGA, J
JULY 18, 2022
BETWEEN
REPUBLIC ................................................................................................. APPLICANT
AND
WAVINYA NDETI .......................................................................... 1ST RESPONDENT
INDEPENDENT ELECTORAL BOUNDARIES COMMISSION .... 2ND
RESPONDENT
COMMISSION FOR UNIVERSITY EDUCATION .................. 3RD RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION ................................ 4TH RESPONDENT
KENYA NATIONAL QUALIFICATIONS AUTHORITY ........ 5TH RESPONDENT
AND
GIDEON NGEWA KENYA ........................................................................... EXPARTE
KISILU MUTISYA ......................................................................................... EXPARTE
AND
WIPER DEMOCRATIC MOVEMENT KENYA .................. INTERESTED PARTY
JUDGMENT
1. The prayers the subject of this judgment are contained in the notice of motion dated June 28, 2022 in
which the ex parte applicants, Gideon Ngewa Kenya and Kisilu Mutisya, seek the following orders:
(a) That an order of certiorari be and is hereby issued quashing the decision of the 2nd respondent’s
dispute resolution committee dated June 16, 2022 and read in open court on June 19, 2022
in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti
clearing the 1st respondent to run for the position of Governor, Machakos County in the
general elections scheduled for August 9, 2022.
kenyalaw.org/caselaw/cases/view/239895/ 1
(b) That an order of mandamus be and is hereby issued compelling the 1st respondent to verify her
bachelors and master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1,
a link used for verication of degrees issued by any institution in the United Kingdom.
(c) That an order of mandamus be and is hereby issued compelling the 2nd respondent whether
by itself, servants or agents to strike out the 1st respondent’s name from the list of cleared
gubernatorial candidates to vie for Governor, Machakos County in the general elections
scheduled for August 9, 2022.
(d) That an order of prohibition be and is hereby issued restraining the 3rd respondent,
Commission of the University Education, from recognizing the academic qualications of the
1st respondent until investigations on the 1st respondent’s academic qualications is conducted
and a determination on their authenticity made.
(e) That an order of mandamus be and is hereby issued compelling the 3rd respondent,
Commission of the University Education, to revoke the recognition of the 1st respondent’s
bachelor’s and master’s degree obtained in 1995 and 1992 respectively as well as the 1st
respondent’s graduate diploma of 1990.
(f) That an order of mandamus be and is hereby issued compelling the 4th respondent, the
Director of Public Prosecutions to order investigations and/or determine the authenticity and
validity of the academic certicates presented by Wavinya Ndeti.
(g) That an order of mandamus be and is hereby issued compelling the 5th respondent’s
Department of Recognition, Equation and Verication to verify the academic credentials of
the 1st respondent.
(h) That costs of this application be provided for.
Applicants’ Case
2. According to the applicants, the 1st respondent was cleared by the 2nd respondent to vie for the
position of Governor, Machakos County Government in the general elections scheduled for August 9,
2022. The applicants however challenge the nomination and registration of the 1st respondent herein,
Wavinya Ndeti, for the position of Governor in Machakos County for the August 9, 2022 general
elections on the following grounds:
a. In April 2022, Wavinya Ndeti, was given a direct ticket by the interested party to vie for the
position of Governor in Machakos County and her name was subsequently submitted to IEBC
on May 16, 2022.
b. Thereafter, on June 4, 2022, the Machakos County Returning Ocer, Nelly Illongo cleared
Wavinya Ndeti to run as a gubernatorial candidate for the Wiper Democratic Movement Kenya
in the August 9, 2022 elections.
c. Despite the 1st respondent’s clearance, Wavinya Ndeti is not a holder of a degree recognized
in Kenya as per the provisions of section 22 of the Elections Act, 2011 because on August 16,
1988, Wavinya Ndeti acquired a Diploma in Computer System Designs from the Association
of Computer professionals.
d. On November 9, 1989, Wavinya Ndeti acquired an Advanced Diploma in Computer Studies

from the Association of Computer professionals as Wavinya Ndeti which is a proper pathway
to follow.
e. Surprisingly, between September 1989 to July 1990, Wavinya Ndeti studied as a full-time
student at South Bank University now London South Bank University and was awarded a
Graduate Diploma on July 12, 1990 without having completed a rst degree yet a Graduate
Diploma is a short course taken after completion of a rst Degree.
f. In a sudden turn of events, on November 6, 1992, Wavinya Ndeti purportedly obtained a

Master of Science Degree (MSc) in Business systems analysis and design by the City University,
London using the 1990 diploma in a Computer Science.
g. On July 18, 1995, she claims to have obtained a bachelor’s degree (BSc) in Computing Studies
from South Bank University London as Wavinya Oduwole. According to the applicants,
undertaking a degree after being awarded a master’s degree in a closely related subject is
impracticable.
h. Later, on January 25, 1996 and July 26, 1996, the 1st respondent claims to have obtained two
master’s degree in Marketing and Strategic Information Designs from Heriot-Watt University
as Petti Wavinya Oduwole.
3. It was averred that from the above and taking into account the UK educational system, the 1st
respondent obtained a master’s degree in 1992 and after three years obtained a bachelor’s degree in
1995 without a rst degree. Further, she also obtained two Master’s Degree within 6 months of each
other and after 6 months of being awarded a bachelor’s degree.
4. It was the applicants’ position that on a keen look at the 1st respondent’s academic certicates, it is
hard to ascertain who Wavinya Ndeti, Wavinya Oduwole and Petti Wavinya Oduwole are because in an
adavit of names submitted to the 2nd respondent for clearance, she fails to conrm that Petti Wavinya
Oduwole in her certicates is also her name.
5. It was averred that vide the letters dated May 25, 2022, the 3rd respondent conrmed that the City
University London, UK and South Bank University London, UK where the 1st respondent claims to
have acquired her qualications are recognized in Kenya. However, the Commission for University
Education unequivocally and expressly notied the 1st respondent that it reserved the right to revoke
recognition of any award in the event it establishes that any reason makes the award in question
ineligible.
6. Based on legal advice, the applicants averred that the 1st respondent has not met the general
requirements for recognition and equation of qualications of a bachelor’s degree, post graduate
diploma and master’s degree.
7. They disclosed that through their previous advocates on record, they wrote to the Commission for
University Education on June 15, 2022 to investigate the same and recall the recognition letters dated
May 25, 2022 but to date, the 3rd respondent has failed, refused and/or declined to respond to the letter.
8. It was their position that the functions of the 3rd respondent as outlined in section 5 (1) of the
Universities Act No 42 of 2012 include to promote, advance, publicize and set standards relevant in
the quality of university education, recognize and equate degrees, diplomas and certicates conferred
or awarded by foreign universities and institutions in accordance with the standards and guidelines set
by the commission from time to time among other functions.
9. The applicants averred that based on legal advice, since the 3rd respondent has mandate to recognize
and equate degrees, it can recall, revoke and/or cancel the recognition of any award in the event it
establishes any reason that makes the award in question ineligible for recognition and/or equation.
Therefore, the 3rd respondent upon receiving the letter dated June 15, 2022 should have recalled the
academic certicates of Wavinya Ndeti and probed the issue to ensure that the said certicates meet
or are equivalent to the general requirement for recognition and equation of qualications established
in the Universities Standards and Guidelines, 2014; Standards for Recognition and Equation of
Qualications. Based on the same advice, they averred that pursuant to section 8(m) & (n) of the Kenya
National Qualifications Framework Act No 22 of 2022, the 5th respondent has a task of conducting
research on equalization of qualications; and establish standards for harmonization and recognition
of national and foreign qualications. As a result, the 5th respondent through the Department of
Recognition, Equation and Verication (REV), KNQA evaluates qualications so as to verify the
academic credentials. They contended, based on the foregoing, that the 3rd respondent acted ultra
vires and abused its power by recognizing the Masters and Degree Certicates for Wavinya Ndeti
without establishing that the said certicates meet the set standards relevant in the quality of university
education. It was their case that the Commission has also failed to equate the degrees and diplomas
awarded by foreign universities and institutions in accordance with the standards and guidelines set
by the commission from time to time that one cannot attain a master’s degree in 1992 and proceed to
undertake a bachelor’s degree in 1995.
10. They averred that they challenged the 2nd respondent’s decision in IEBC/DRC/CRGE/56/2022:
Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti stating that the IEBC Dispute Resolution
Committee established under section 74 of the Elections Act, 2011 to settle election disputes relating
to nomination and registration of candidates lacks jurisdiction to determine the authenticity of the
academic qualications of Wavinya Ndeti which complaint was on June 19, 2022, dismissed on the
grounds that the tribunal lacked jurisdiction to entertain the complaint because the allegations raised
disclose suspicion as to the authenticity of the academic qualications of Wavinya Ndeti.
11. Based on legal advice, the applicants averred that though the 2nd respondent is an independent
commission established under article 88 of the Constitution, when it comes to verication of the
validity and authenticity of the academic qualications in registration and nomination of candidates,
the 2nd respondent claims it lacks jurisdiction to do so yet the complaint relates to academic certicates
furnished to clear the 1st respondent in her nomination.
12. It was their case that no reasonable authority properly directing itself to the academic qualications
submitted could have made a decision to clear the 1st respondent to run for the position of Governor,
Machakos County in the August 9, 2022 general elections. They invited the court to consider the
undisputed fact that the 3rd respondent failed to recognize and equate the academic qualications of
the 1st respondent before issuing her with the letters recognizing her master’s and degree certicates
which is a classic case of unreasonable exercise of power.
13. It was their view that the manner in which the 2nd and 3rd respondents have made decisions made them
to question the integrity of the independent Commissions which have cleared a candidate who has
problematic and questionable academic qualications.
14. They were therefore apprehensive that unless this court intervenes the 1st respondent will proceed to
vie yet the validity of her academic qualications are in question and this will be against the rule of
law in Kenya.
15. It was submitted on behalf of the applicants that this court ought to adopt a merit-based review in
judicial review proceedings because judicial review is not limited to dry or formalistic examination of
the process while strenuously and articially avoiding merit. As such they urged the court to interrogate
the merits too because the path only leads to intolerable superciality. In this regard they relied on the
decision of the Court of Appeal in Judicial Service Commission & another v Njora (Civil Appeal 486
of 2019) [2021] KECA 366 (KLR).
16. Regarding the feasibility of the prayers for an order of mandamus against the respondents to verify
the academic credentials of Wavinya Ndeti, strike out the 1st respondents name from the list of cleared
gubernatorial candidates, revoke the recognition of Wavinya Ndeti’s bachelor’s and master’s degree,
order investigations as to the authenticity of Wavinya’s academic certicates and compel the Kenya
National Qualications Authority to verify the academic credentials, they submitted that an order of
mandamus is a prerogative order meant to compel performance of a duty and relied on Republic v The
Attorney General & another ex parte James Alfred Koroso [2013] eKLR, in which this court cited with
approval the case of Shah v Attorney General (No 3) Kampala HCMC No 31 of 1969 [1970] EA 543.
17. The applicants also submitted that the circumstances under which judicial review order of mandamus
are issued were discussed by the Court of Appeal in Kenya National Examination Council v Republic
Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the Court cited with approval,
Halsbury’s Law of England, 4th edition Vol 7 p 111 para 89.
18. It was appreciated that the 1st respondent complied with prayer (b) when on June 30, 2022,
she provided consent forms which parties used to request for verication of her bachelor’s and
master’s degrees via https://hedd.ac.uk/enquirer-registration?execution=e1s1 in presence of the
Deputy Registrar who was expected to le a report before this court and further indicate the results
of the verication process. According to the applicants, the United Kingdom has a link for higher
education system’s ocial degree verication service known as Higher Education Degree Data check
(HEDD) which was used to commence the verication process.
19. Nevertheless, it was noted that the interested party questioned the said domain which the 1st
respondent willingly agreed to continue with the verication and the court was urged to compel the
3rd and 4th respondents to carry out the verication process.
20. Regarding the contention by the interested party that a degree is no longer a requirement for
qualication to contest in elections as a Governor in light of the High Court decision declaring section
22 (1) (b)(ii) of the Elections Act unconstitutional in County Assembly Forum & 6 others v Attorney
General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229,
E225, E226, E249 & 14 of 2021 (Consolidated)) [2021] KEHC 304 (KLR) (Constitutional and
Human Rights) (15 October 2021) (Judgment), the applicants’ position was that the said case was in
reference to the specic position of a member of the County Assembly and not the Governor position
which is the issue herein. They asserted that a candidate for the position of a Governor require a degree
certicate as he/she is the Chief Executive Ocer of the County in accordance with article 179 (4) of
the Constitution and as such will be tackled to direct the management of massive resources.
21. In respect to prayer (e) for an order of mandamus and prohibition against the Commission for
University Education, it was submitted that the functions of the 3rd respondent as outlined in
section 5(1) of the Universities Act No 42 of 2012 include to promote, advance, publicize and set
standards relevant in the quality of university education, recognize and equate degrees, diplomas
and certicates conferred or awarded by foreign universities and institutions in accordance with
the standards and guidelines set by the commission from time to time among other functions. In
addition, they relied on regulation 47 of the Election (General) Regulations 2012 and submitted that
the 1st respondent’s academic certicates do not meet the general requirements for recognition and
equation of qualications established in the Universities Standards and Guidelines, 2014; Standards
for Recognition and Equation of Qualications.
22. According to the applicants, though the 1st respondent claims to have obtained a master’s degree in
Business Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree
in Computer Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer
Science in 1990 without undertaking a rst degree. In their submissions, there is a close relationship
between Computer Science and Business Systems Analysis and Design and as such it is illogical for a
person who holds a master’s degree to undertake a bachelor’s degree in a similar eld. In this regard
reference was made to the report from Chelgate Consulting Firm in London which has detailed the
inconsistencies in the 1st respondent’s academic certicates together with dierent names appearing
on her certicates, which in their views made the ex parte applicants question the authenticity of the
1st respondent’s academic qualication. In addition, it was contended that the said report indicates
that the minimum entry requirement for one to proceed with a master’s degree is a good second-
class honours degree from a UK University, a recognized equivalent from an accredited international
institution or an equivalent professional qualication. It was therefore their position that the 1st
respondent has not met the minimum entry requirements and thus there is need to question her
academic qualications.
23. In their opinion, since the 3rd respondent has the mandate to recognize and equate degrees, it can recall,
revoke and/or cancel the recognition of any award in the event it establishes any reason that makes the
award in question ineligible for recognition and/or equation. To them, it would have been reasonable
for the 3rd respondent upon receiving the ex-parte applicants letter dated June 15, 2022 attaching the
report from London, to recall the academic certicates of Wavinya Ndeti and probe the issue to ensure
that the said certicates meet or are equivalent to the general requirement for recognition and equation
of qualications established. Nevertheless, despite the applicants writing to the 3rd respondent, no
response has been received to date. As such, the ex-parte applicants invited the court to consider the
undisputed fact that the 3rd respondent failed to recognize and equate the academic qualications of
the 1st respondent before issuing her with the letters recognizing her master’s and degree certicates
which is a classic case of unreasonable exercise of power.
24. The applicants contended that the authenticity of the 1st respondents certicate is a factual issue which
ought to be determined upon hearing the evidence of the applicants. Consequently, the 3rd respondent
should be compelled to revoke the recognition of Wavinya Ndeti’s certicates and the Commission
should be prohibited from recognizing the said degree until proper investigations are carried out.
25. Based on the report from Chelgate Consulting Firm in London it was contended that it is evident that
a graduate diploma is generally a short course taken after completion of a rst degree. In this case, there
is no evidence that the 1st respondent undertook the rst degree preceding the graduate diploma.
26. It was reiterated that the 3rd respondent acted ultra vires and abused its power by recognizing the
masters and degree certicates for Wavinya Ndeti without establishing that the said certicates meet the
set standards relevant in the quality of university education. The Commission also failed to equate the
degrees and diplomas awarded by foreign universities and institutions in accordance with the standards
and guidelines set out by the commission from time to time that one cannot attain a master’s degree
in 1992 and proceed to undertake a bachelor’s degree in 1995.
27. Based on the foregoing, the court was urged to issue an order of mandamus restraining the
3rd respondent from recognizing the academic qualications until the academic certicates are
authenticated and as such the same will result to the commission being prohibited from recognizing
the 1st respondent’s academic qualications.
28. As regards prayer (g) seeking mandamus against the Kenya National Qualications Authority, it was
submitted that pursuant to section 8 (m) & (n) of the Kenya National Qualifications Framework Act
No 22 of 2014, the 5th respondent has a task of conducting research on equalization of qualications;
and establish standards for harmonization and recognition of national and foreign qualications. As
such, the 5th respondent through the Department of Recognition, Equation and Verication (REV),
KNQA evaluates qualications so as to verify the academic credentials. In this case, the 1st respondent’s
academic qualications have not been veried by the 5th respondent which is tasked with evaluating
qualications to advise training institutions on foreign equivalent qualications; verify academic
qualications, process applications for verications and recognition and advise learners on registered
qualications and the Awarding body.
29. The applicants submitted that for a university degree to be recognized in Kenya, it must have been
issued by an accredited institution. In addition, the 1st respondent had an obligation to get clearance
from the Kenya National Qualication Authority since she is seeking an elective post in Kenya
in accordance with the provisions of section 10 of the Kenya National Qualifications Framework
Regulations, 2018.
30. From the foregoing, it was submitted that an order of mandamus ought to be issued compelling the 5th
respondent’s department of recognition, equation and verication to verify the academic credentials
of the 1st respondent and conrm whether the said certicates meet the quality standards in Kenya.
31. Regarding prayer (f) for mandamus against the Director of Public Prosecutions, it was submitted
that the level of inconsistencies in the 1st respondent’s academic qualications warrants investigations.
According to the applicants, the 1st respondent did not meet the threshold to undertake the masters
and bachelors degree as she lacked the requisite qualications. In addition, it is problematic for one to
undertake a master’s degree in 1992 in a closely related subject and thereafter proceed to do a Bachelors
degree in a similar subject. Since it does not make any practical or legal sense, the court was invited
to have a look at the report from the Consulting Firm which provides that one cannot undertake a
master’s degree in 1992 with a diploma entry level.
32. In the applicants’ view, the questions regarding the authenticity of her bachelor’s degree are very
substantive questions, which the Director of Public Prosecutions should probe into. They cited section
13(j) of the Election Offences Act No 37 of 2016 that makes it an election oence to knowingly or
recklessly make a false statement or furnish false particulars in a document required under the Elections
Act. It was also submitted that under article 10 of the Constitution this court and all institutions are
bound to ensure there must be integrity of the electoral process.
33. According to the applicants, despite the fact that the 1st respondent claims that she was cleared in 2013,
2017 and 2022 to vie, it is trite to note that the question regarding the conicting position on her degree
and academic qualications has never been raised in any proceedings before. It was thus submitted that
where there is doubt and sucient ground like in the instant case, there is a basis for any member of
the public to approach this court for the orders sought.
34. As such, it was submitted that it is vital that the 4th respondent be compelled to order investigations
to determine the authenticity and validity of the academic certicates presented by Wavinya Ndeti in
accordance with section 21 of the Election Offences Act.
35. It was noted that from the interested party’s replying adavit, the 1st respondent was summoned to
appear before an ocer attached to the Director of Criminal Investigations but the 1st respondent failed
to acknowledge the summons to attend the oce as the same was not signed by herself. Therefore,
it was submitted, it is necessary that the 4th respondent is compelled to order investigations of the 1st
respondents academic qualications.
36. In respect of prayers a & c seeking an order of mandamus and certiorari against the IEBC, section
22 (2) of the Elections Act, 2011 was relied upon together with regulation 47 (1) of the Elections
(General) Regulations 2012 as amended by Legal Notice No 72 of 2017. In this case it was averred
that the authenticity of the 1st respondents qualications was raised with the 2nd respondent’s Dispute
Resolution Committee in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon
Wavinya Ndeti. However, the IEBC Dispute Resolution Committee established under section 74 of
the Elections Act, 2011 to settle election disputes relating to nomination and registration of candidates
delivered its ruling on June 19, 2022 where it held that it lacks jurisdiction to determine the authenticity
of the academic qualications of Wavinya Ndeti. It was however submitted that the 2nd respondent
is an independent commission established under article 88 of the Constitution. Nevertheless, when it
comes to verication of the validity and authenticity of the academic qualications for registration and
nomination of candidates, the 2nd respondent claims that it lacks jurisdiction to do so yet the complaint
relates to academic certicates furnished to clear the 1st respondent in her nomination.
37. According to the applicants, pursuant to section 74 of the Elections Act 2011, the IEBC has jurisdiction
to determine the authenticity of an academic degree. Being an independent Commission, it cannot
pass the buck and claim that it relies on the Commission for University Education to determine the
authenticity of an academic degree hence citing lack of jurisdiction is an aront to its independence.
38. The applicant’s basis for seeking an order of certiorari quashing the decision of the 2nd respondent was
because no reasonable authority properly directing itself to the academic qualications submitted and
evidence adduced could have made a decision to clear the 1st respondent to run for the position of
Governor, Machakos County in the August 9, 2022 General Elections.
39. In support of their submissions, the applicants relied on Mohamed Abdi Mahamud v Ahmed
Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR, where the
Supreme Court conferred the 2nd respondent’s Dispute Resolution Committee with huge legal
responsibility to ensure all preliminary questions including the preliminary issues such as validity of
the bachelor’s degree before one can move to the High Court because there are matters one cannot le
or take to an election petition.
40. From the above, it was submitted that since the facts are inherently contradictory, the Dispute
Resolution Committee had jurisdiction to question its validity and ascertain that the 1st respondent
had valid and authentic academic qualications in promotion of the principles and national values
listed under article 10 of the Constitution inter alia: transparency, integrity and accountability.
1st Respondent’s Case

41. In opposing the application, the 1st respondent averred that that the instant application is an abuse of
the court process, an afterthought and merely political witch-hunt meant to derail my campaigns and
to curtail her political rights and her entitlements to protection under the law.
42. According to her, the applicants have wrongfully invoked the jurisdiction of this honourable court.
Based on legal advice, she averred that whereas the applicants seek to challenge the decision of the
Independent Electoral and Boundaries Commission Dispute Resolution Committee, they failed to
join the said Dispute Resolution Committee in this proceedings. Apart from that they introduced
new issues and a new cause of action that was never before the Dispute Resolution Committee.
They also introduced new parties namely; the Director of Public Prosecutions; the Kenya National
Qualications Authority; and the Wiper Democratic Movement Kenya, all of whom were not parties
to the original Complaint before the Committee and no such deliberations were made by the
Committee on this parties.
43. It was averred that the Application is self-defeating in that whereas on the one hand the Applicants
seek to have her qualications revoked, they on the other hand seek to have the same investigated.
44. She averred that the grant of the orders sought in the instant application will be greatly prejudicial to
herself and a violation of her fundamental rights and freedoms to equal protection of the law under
article 27 of the Constitution and her rights to a fair hearing; trial and fair administrative action as
guaranteed under articles 47; 48 and 50 of the Constitution of Kenya, 2010 as read with the Fair
Administrative Action Act.
45. The 1st respondent was of the view that the orders sought herein are meant to defeat and usurp the roles
of the various investigative agencies and are an invitation of this court to usurp the investigative powers
of the Oce of Director of Public Prosecutions and the Directorate of Criminal Investigations.
46. The 1st respondent averred that contrary to the applicants’ assertions, the applicants are seeking to verify
her academic qualications through an electronic internet platform, whose authenticity, source and
author cannot be veried or vouched for; or whose maker or author or owner and patent/copyright
owner has not been called to vouch and produce the same contrary to the provisions of the Evidence
Act on the production of electronic evidence. According to her, neither the maker of the said domain
https://hedd.ac.uk/enquirer-registration?execution=e1s1 or the relevant institutions are parties to this
proceedings or where they parties before the dispute at the Dispute Resolution Committee and as
such the same cannot be relied upon or be used as a basis for the determination and curtailment of
her fundamental rights and freedoms to a fair hearing and trial and her political rights under article
38 of the Constitution.
47. The 1st respondent asserted that the applicants cannot purport to conclude that her academic
qualications are forgeries or were obtained fraudulently whereas no such investigations have been
conducted and neither has she been aorded due process or any such judicial pronouncement been
made on the same by the criminal court on the said allegations.
48. She disclosed that contrary to the applicants’ averments, the oce of the Director of Public
Prosecutions and the Oce of the Inspector General of Police are already seized of the matter herein
and are conducting their investigations in accordance with their respective constitutional mandates
and as such, the instant application is a mere invitation by the applicant for this court to interfere with
the lawful discharge of the mandates by the Inspector General of Police and the Director of Public
Prosecutions.
49. According to the 1sT respondent, the applicants have diverged from their appeal and have failed to
demonstrate in what way the Dispute Resolution Committee erred in any way either in law and in
fact in their decision rendered on June 19, 2022 in IDRC/DRC/CRGE/56/2022; Gideon Ndegwa
Kenya and another v Wavinya Ndeti. According to her, the jurisdiction of this court that has been
invoked is appellate in nature and not original and hence the Applicants are limited and conned to
the decision and materials that were placed before the Dispute Resolution Committee for hearing and
determination.
50. It was contended that the applicants have neither demonstrated any wrong doings or illegalities
perpetuated by the returning ocer or the Dispute Resolution Committee in her clearance as a
candidate to contest for the position of Governor Machakos County.
51. The 1st respondent asserted that she is one and the same person referred to as Wavinya Ndeti and
Wavinya Petti Oduwole and explained that Oduwole is her late husband and conrmed this vide an
Adavit verifying her name. She insisted that she is duly qualied and duly attained the academic
qualications as per the institutions she attended and the same have all along been recognized by the
relevant institutions and that she has at all material times since the year 2013 been cleared based on her
academic credentials and qualications to contest for elections.
52. It was her position that it is absurd that the applicants are now seeking to have her academic
qualications annulled or rendered void through the retrospective application of the law on the
allegation that her academic credentials are do not meet the general requirements for recognition
and equation of qualications established under the Universities Standards and Guidelines, 2014;
Standards for Recognition and Equation of Qualications and that the same are not recognized under
the Elections Act, yet the Commission recognized the same in the past. In her view, it is now estopped
both by conduct and representation by the doctrine of estoppel.
53. According to the 1st respondent, the applicants having failed to prove and discharge the burden of
proof at the Dispute Resolution Committee on their allegations of fraud and forgery, cannot now
purport to use these proceedings to attempt to ll the gaps in their case or invite this court to sit
as an investigative organ. She explained that the Dispute Resolution Committee rightly dismissed
the applicants’ complaints for not only want of jurisdiction but lack of merit as the applicants never
discharged the burden and standard of proof in regard to the allegations of fraud and forgery. Based
on legal advice, she averred that allegations of fraud and forgery cannot be proven on the basis of
circumstantial evidence or baseless aspersions as the same must be proven through cogent and concrete
evidence beyond a standard of reasonable doubt to warrant a nding on the same. However, no such
materials have been placed before this court to warrant such a nding or the grant of the orders sought
herein.
54. It was her position that the applicants have not met the threshold for the grant of the orders sought
herein and she urged court to dismiss the application with costs.
55. In her submissions, the foregoing matters were reiterated and it was submitted that reliance was
placed on the case of Republic v Independent Electoral and Boundaries Commission and others, ex parte
Wavinya Ndeti, Nairobi High Court Judicial Review Application No 301 of 2017. According to the
applicants, the foregoing position was armed by the Supreme Court in the case of Sammy Ndungu
Waity v Independent Electoral and Boundaries Commission and 3 others [2019] eKLR.
56. In the premise, the 1st respondent submitted that the applicants neither demonstrated any wrong
doings or illegalities perpetuated by the returning ocer or the Dispute Resolution Committee in
her clearance as a candidate to contest for the position of Governor Machakos County and neither
have they demonstrated any errors committed by the Dispute Resolution Committee in its decision
in dismissing the applicants’ complaint.
57. According to her, the applicants have not made out a case to warrant the grant of the order of
mandamus and prohibition. In her submissions, the 1st respondent relied on the case of Oscar Edwin
Okimaru v Republic, Criminal Case No E014 of 2021, [2021] eKLR where the court underscored the
importance of due process and the right to be presumed innocent.
58. It was submitted that the 1st respondent enjoys the right to be presumed innocent of the allegations
made against her pertaining to her academic qualications and any such inference or conclusions of
forgeries and fraud can only be made after due process as sanctioned by law. In her submissions, the
orders sought herein are meant to defeat and usurp the roles of the various investigative agencies and
are an invitation of this court to usurp the investigative powers of the Oce of Director of Public
Prosecutions and the Directorate of Criminal Investigations.
59. There were also submissions regarding the verication using internet platform/domain/ algorithmic
decision making but as will be shown later in this judgement the submissions thereon are nolonger
decisive in this matter. She relied on the case of William Odhiambo Oduol v Independent Electoral
& Boundaries Commission & 2 others, Election Petition No 2 of 2012; [2013] eKLR and submitted
that the applicants cannot purport to conclude that the 1st respondent’s academic qualications are
forgeries or were obtained fraudulently whereas no such investigations have been conducted and
neither has the 1st respondent been aorded due process or any such judicial pronouncement been
made on the same by the criminal court on the said allegations.
60. The 1st respondent also cited on the decision of the Supreme Court in Samuel Kamau Macharia &
another v Kenya Commercial Bank Limited & 2 others, Supreme Court Application No 2 of 2011
[2012] eKLR, and submitted that having so been recognized in the rst instance and having obtained
her academic credentials as early as in the 90s, the law cannot be applied retrospectively in order to
limit her fundamental rights and freedoms under article 38 of the Constitution of Kenya, 2010 or
under articles 47 and 50 of the Constitution of Kenya, 2010 with the intention of discrediting her
academic credentials. Furthermore, section 9 of the Interpretation and General Provisions Act prohibits
the retrospective application of the law.
61. It was submitted that the applicants having failed to prove and discharge the burden of proof at the
Dispute Resolution Committee on their allegations of fraud and forgery, cannot now purport to use
these proceedings to attempt to ll the gaps in their case or invite this court to sit as an investigative
organ. It was reiterated that the Dispute Resolution Committee rightly dismissed the applicants’
complaints for not only want of jurisdiction but lack of merit as the applicants never discharged the
burden and standard of proof in regard to the allegations of fraud and forgery. In her submissions
allegations of fraud and forgery cannot be proven on the basis of circumstantial evidence or baseless
aspersions. The same must be proven through cogent and concrete evidence beyond a standard of
reasonable doubt to warrant a nding on the same. No such materials have been placed before this
court to warrant such a nding or the grant of the orders sought herein. Reliance was placed on the
case of Joseph Mutuku Mwanthi & 6 others v Aimi Ma Kilungu Company Limited, Civil Suit 67 of
2011, [2021] eKLR andit was submitted that the applicants have failed to plead with specicity and
prove the allegations of fraud and forgery pertaining to her academic qualications and therefor they
have failed to prove a case to warrant the grant of the orders sought herein. Based on the foregoing, the
1st respondent urged the court to dismiss the notice of motion application dated June 28, 2022 with
costs certied for two advocates.
2nd Respondent’s Case

62. The 2nd respondent, in opposition to the motion averred that the main issue which is the substratum of
these proceedings is the authenticity of the academic certicates of the 1st respondent herein presented
for clearance to the 2nd respondent, and which credentials were used to clear the 1st respondent herein
to contest for the position of Governor, Machakos County.
63. It was averred that following the clearance of the 1st respondent, the applicants herein lodged
a complaint before the 2nd respondent’s Dispute Resolution Committee alleging that the 1st
Respondent’s academic certicates were not authentic and the 1st Respondent should therefore
be disqualied and/or barred from contesting for the position of Governor, Machakos County.
According to the 2nd respondent, its Dispute Resolution Committee considered the complaint led
by the applicants herein before it and in a decision dated June 16, 2022 and delivered on the June 19,
2022, stated that the complaint before it being one that raised suspicion on the authenticity of the 1st
respondent’s academic qualications, it is not clothed with jurisdiction to hear and determine it.
64. According to the 2nd respondent, what the instant proceedings seek to do is to ask this court to confer
investigative jurisdiction on the 2nd respondent’s Dispute Resolution Committee which has not in fact
been conferred upon it by the Constitution or any other written law such that should this court nd
in favour of the applicants, then the same would essentially mean that this court has arrogated itself
legislative functions which are a preserve of Parliament.
65. It was the 2nd respondent’s position that the 2nd respondent’s mandate is specically enshrined in the
Constitution under Article 88 of the Constitution 2010 as read with section 74 of the Elections Act, 2011
which mandate does not include authenticating academic certicates hence the 2nd respondent together
with its Dispute Resolution Committee lacks power to investigate and/or determine the validity or
otherwise of the certicates presented by intending candidates as long as on the face of it, the candidate
presents a prima facie valid document.
66. It was its case that this mandate, as captured under Universities Act No 40 of 2012 under section 4 as
read with section 5 is a preserve of the Commission for University Education, the 3rd respondent herein,
and no single piece of legislation bestows upon the 2nd respondent or its organs and/or committees the
mandate to recognize and/or fail to recognize academic certicates of candidates.
67. The 2nd respondent took the view that once presented with such certicates and especially with
recognition from the Commission of University Education of the certicates in question, nothing bars
the 2nd respondent from accepting the same and/or gives the 2nd respondent and its organs and/or
committees the power to inquire into their authenticity or otherwise.
68. This position, according to the 2nd respondent was recognised by the applicants in when they admitted
that the 3rd respondent conrmed that the institutions the 1st respondent stated she graduated from
are recognized in Kenya. No evidence was tendered to indicate that this recognition was revoked
and in fact, in the proceedings before the 2nd respondent’s Dispute Resolution Committee, counsel
for the Complainants (applicants herein) submitted that there was no need to join the Commission
for University Education since they had written a letter conrming that the impugned degree was
recognized.
69. As such, it was averred, even though there exists allegations by the applicants as to the authenticity of
the 1st respondent’s academic certicates, there are no criminal proceedings and/or charges that have
been brought against the 1st respondent and/or any judicial or quasi-judicial body that has pronounced
itself on their authenticity or lack thereof which nding would require investigations to be done by
relevant authorities, the 2nd respondent and its Dispute Resolution Committee not being one of such
bodies mandated with investigative powers.
70. It was noted that that the purpose of judicial review is to allow a judicial body examine the process
leading to the making of the decision and this court should thus restrict itself only to considerations
as to whether the 2nd respondent had jurisdiction to make the decision in question and whether the
persons aected by it were heard before it was made which questions can only be answered in the
armative. The applicants have not pleaded otherwise. It was further contended that such a decision
can only be subject to judicial review if it can be established that the same is tainted with illegality,
irrationality and procedural impropriety. However, a reading of the instant motion and the orders
sought reveal no such illegality, irrationality or procedural impropriety and as it appears, the applicants
herein have packaged these proceedings as judicial review proceedings whereas in real sense, they are
imploring this court to sit as an appellate court which is against the rules of judicial review.
71. The 2nd respondent lamented that proceedings in this nature leading to the General Elections which are
barely a month away are time-sensitive, the 2nd respondent having been tasked with the task of ensuring
that the elections are conducted on the August 9, 2022 and barring/disqualifying the 1st respondent
from contesting on unsubstantiated allegations would place the 2nd respondent in a rather precarious
position as proceedings on violation of the 1st respondent’s rights under article 38 of the Constitution
would arise, and if not, Judicial Review proceedings as in this case which the 2nd respondent would not
be able to defend as it would fail to explain how it arrogated itself investigative powers as regards the
authenticity or otherwise of the 1st respondent’s academic credentials.
72. It was therefore contended that the instant proceedings do not meet the threshold required for judicial
review proceedings and for the grant of the orders sought and it is therefore in the interest of justice
and fairness that the same be dismissed with costs.
4th Respondent’s Case

73. In opposing the motion, the 4th respondent relied on the following grounds of opposition:
1. The application is incompetent and an abuse of the process of court.
2. The Director of Public Prosecution shall not require the consent of any person or authority
for the commencement of criminal proceedings and in the exercise of his powers or functions
shall not be under the directions or control of any person or authority.
3. On his own motion the DPP has directed the Inspector General of Police to investigate the
academic documents presented to the electoral body by the 1st respondent.
74. On behalf of the 4th respondent, reliance was paced on article 157(4) of the Constitution and it was
contended that the Director of Public Prosecutions has no power to order investigations, but only to
direct the Inspector General of the National Police Service to investigate any information or allegation
of criminal conduct be that as it may, the DPP cannot in the alternative, as prayed by the ex-parte
applicant, arrogate to himself the power to determine the authenticity and validity of the academic
certicates presented.
75. The 4th respondent further submitted this court had on June 30, 2022 ordered inter alia:
a. That the Deputy Registrar of this court do carry out the verication of the 1st respondent’s
bachelors and masters degrees via the website indicated in the prayer(b) of the motion dated
June 28, 2022 and le a report accordingly.
b. That the verication to be undertaken today at 2.30 pm.
76. That verication was done on June 30, 2022 as ordered in the presence of the ex-parte applicant’s and
1st respondent’s advocates and the advocates present were satised with the verication process and the
outcome thereof. It’s therefore not within the powers of the 4th respondent to do further verication.
77. Based on article 157(10) of the Constitution, it was submitted that the 4th respondent cannot be under
the direction or control of any person or authority in the exercise of his duties under the Constitution.
78. Accordingly, the court was urged to dismiss the application dated June 28, 2022 with costs.
Interested Party’s Case
79. The interested party, in opposing the motion relied on the following grounds:
a. That it is misconceived, incompetent, bad in law, lacks merit and is an abuse of the court process
b. THat the application purporting to be a judicial review application is not a judicial

review application as the facts, issues, parties and cause of action it presents before this
honourable court are dierent from what was before the Dispute Resolution Committee of
the Independent Electoral and Boundaries Commission. This is contrary to obtaining law and
practice.
c. That the application seeks to grant upon the court powers and jurisdiction it doesn’t have and
usurp the mandate of lawful constitutional oces.
d. That the application seeks to inuence the lawful exercise of administrative action by awful
public entities.
e. That the orders sought in so far as they are in conict with the Evidence Act cap 80 do not
obtain. Electronic based websites and links whose authorship and ownership are suspect ought
to be subjected to strict evidentiary rules.
f. That the applicant fails to demonstrate why the decision of the Independent Electoral and
Boundaries Commission Dispute Resolution Committee was erroneous in any way and why
it deserves to be quashed.
g. That the burden of proof in any claim of violation of fundamental rights and breach of
administrative law falls upon the applicants who have failed to discharge this duty.
h. That the application is frivolous vexatious and scandalous.
80. The interested party also led a replying adavit in which it was stated that the 1st respondent is the
duly nominated and duly cleared candidate of the interested party for the Governor seat Machakos
County.
81. It was its position that the 1st respondent meets all the qualications for the Oce of Governor
Machakos County hence the instant application is an abuse of court process, it is manifestly vexatious,
and aimed at abusing the court process and is calculated to curtail the 1st respondent’s rights and in
detracting the party candidate from her campaigns and ultimately aimed at costing her seat. It was
disclosed that the IEBC has cleared the nominee of the party twice before in the past in the year 2013
and 2017 and found that she met all relevant qualications and indeed was over qualied for the
Governor position.
82. It was the interested party’s position that the instant application is incurably defective as what is
before this court is not a judicial review application hence the applicants have wrongfully invoked
the jurisdiction of this court. In its view, there is absolutely no material before this court that points
to errors in the decision of the Dispute Resolution Committee of the Independent Electoral and
Boundaries Commission which would found the basis of a valid judicial review application.
83. Its position was that the decision of the Dispute Resolution Committee of the decision of
the Independent Electoral and Boundaries Commission Dispute Resolution Committee that the
interested party was not a party in the proceedings neither were either of all the Respondents. However,
the Dispute Resolution Committee is not part of these proceedings as it ought to be. Apart from that
this application has introduced new facts and issues that were never presented for consideration and
determination before the Independent Electoral and Boundaries Commission’s Dispute Resolution
Committee.
84. Based on legal advice, the interested party contended that the applicants are limited and conned to
the decision and materials that were placed before the Dispute Resolution Committee for hearing
and determination. It was asserted that the grant of the orders sought in the instant application will
be greatly prejudicial to the interested party and its nominee, the 1st respondent and will constitute
violations of their fundamental rights and freedoms to equal protection of the law under article 27 of
the Constitution of Kenya, 2010, rights to rights to a fair hearing and fair procedural action as protected
in articles 47; 48 and 50 ofthe Constitution of Kenya, 2010 as read with the Fair Administrative
Action Act. It was its position that the application is meant usurp the roles of the various investigative
agencies and are an invitation of this court to usurp the investigative powers vested already in other
constitutional oces.
85. According to the interested party, it is not aware of any investigation results that prove without a doubt
that the interested party’s nominee did not legally obtain a degree and neither has she ever been heard
in such proceedings. Accordingly, in as far as this court adopts any investigatory powers that it is not
clothed it under the law, it would accordingly be exceeding its mandate and jurisdiction and any orders
made in excess of jurisdiction ought to be vacated as unlawful, particularly at the interim phase of the
matter.
86. The interested party averred that there is a domain which has been freshly introduced before this court
as follows; https://hedd.ac.uk/enquirer-registration?execution=e1s1 and that neither this domain or
its maker are part of these proceedings and that its authenticity is in question and neither was it
introduced before the dispute at the Dispute Resolution Committee and hence it cannot be relied
upon or be used as a basis for the determination and curtailment of the interested party’s fundamental
rights and those of its nominee and the people of Machakos contrary to article 38, 47 and 50 of the
Constitution of Kenya, 2010. In its view, reliance on this would be contrary to evidentiary rules outlined
in the law and practice of evidence and is untenable in the circumstances of this case.
87. According to the interested party’s understanding Wavinya Ndeti and Wavinya Ndeti Oduwole are
one and the same person as Oduwole was her late husband. It was its view that a degree is no longer a
requirement for qualication to contest in elections as a Governor in light of the High Court decision
declaring section 22(1)(b)(ii) of the Elections Act unconstitutional in the case of County Assembly
Forum & 6 others v Attorney General and others; Petition No E229, E226, E249 & 14 of 2021 [2021]
KEHC 304 (KLR).
88. The interested party asserted that the Dispute Resolution Committee correctly applied the law in
dismissing the applicants’ Complaints for not only want of jurisdiction but lack of merit as the
applicants never discharged the burden and standard of proof in regard to the allegations of fraud and
forgery. The applicants now wish to use this court as its investigatory arm to ll gaps in its heavily awed
case. Based on legal advice, it was contended that allegations of fraud and forgery cannot be proven
on the basis of circumstantial evidence or baseless aspersions. The same must be proven through
cogent and concrete evidence beyond a standard of reasonable doubt to warrant a nding on the same.
No such materials have been placed before this court to warrant such a nding or the grant of the
orders sought herein. It was the interested party’s case that the applicants have not met the threshold
for the grant of the orders sought herein as other appropriate remedies prior to moving these court
exist and have not been utilized. In this the court was reminded that it is trite law that in seeking
an order for mandamus the applicant is seeking, not relief against the Government, but to compel a
Government ocial to do what the Government, through Parliament, has directed him to do. The
court was therefore urged to dismiss the instant application with costs.
Determinations
89. I have considered the application, the adavits both in support of and in opposition to the application,
the grounds of opposition as well as the submissions and authorities cited.
90. The parameters of judicial review were set out by the Court of Appeal in Republic v Kenya National
Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 as follows:
“ Prohibition looks to the future so that if a tribunal were to announce in advance that it
would consider itself not bound by the rules of natural justice the High Court would be
obliged to prohibit it from acting contrary to the rules of natural justice. However, where
a decision has been made, whether in excess or lack of jurisdiction or whether in violation
of the rules of natural justice, an order of prohibition would not be ecacious against
the decision so made. Prohibition cannot quash a decision which has already been made;
it can only prevent the making of a contemplated decision...Prohibition is an order from
the High Court directed to an inferior tribunal or body which forbids that tribunal or
body to continue proceedings therein in excess of its jurisdiction or in contravention of
the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also
for a departure from the rules of natural justice. It does not, however, lie to correct the
course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the
proceedings...The order of mandamus is of a most extensive remedial nature, and is, in form,
a command issuing from the High Court of Justice, directed to any person, corporation or
inferior tribunal, requiring him or them to do some particular thing therein specied which
appertains to his or their oce and is in the nature of a public duty. Its purpose is to remedy
the defects of justice and accordingly it will issue, to the end that justice may be done, in all
cases where there is a specic legal right or no specic legal remedy for enforcing that right;
and it may issue in cases where, although there is an alternative legal remedy, yet that mode of
redress is less convenient, benecial and eectual. The order must command no more than
the party against whom the application is legally bound to perform. Where a general duty is
imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes
a duty, leaves discretion as to the mode of performing the duty in the hands of the party
on whom the obligation is laid, a mandamus cannot command the duty in question to be
carried out in a specic way...These principles mean that an order of mandamus compels the
performance of a public duty which is imposed on a person or body of persons by a statute
and where that person or body of persons has failed to perform the duty to the detriment
of a party who has a legal right to expect the duty to be performed. An order of mandamus
compels the performance of a duty imposed by statute where the person or body on whom
the duty is imposed fails or refuses to perform the same but if the complaint is that the duty
has been wrongfully performed ie that the duty has not been performed according to the law,
then mandamus is wrong remedy to apply for because, like an order of prohibition, an order
of mandamus cannot quash what has already been done...Only an order of certiorari can
quash a decision already made and an order of certiorari will issue if the decision is without
jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied
with or for such like reasons.”
91. In Municipal Council of Mombasa v Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001
was held:
“ Judicial review is concerned with the decision making process, not with the merits of the
decision itself: the court would concern itself with such issues as to whether the decision
makers had the jurisdiction, whether the persons aected by the decision were heard before it
was made and whether in making the decision the decision maker took into account relevant
matters or did take into account irrelevant matters…The court should not act as a Court
of Appeal over the decider which would involve going into the merits of the decision itself-
such as whether there was or there was not sucient evidence to support the decision.”
92. In Republic v Kenya Revenue Authority ex parte Yaya Towers Limited [2008] eKLR it was held that
the remedy of judicial review is concerned with reviewing not the merits of the decision of which
the application for judicial review is made, but the decision making process itself. It is important to
remember in every case that the purpose of the remedy of judicial review is to ensure that the individual
is given fair treatment by the authority to which he has been subjected and that it is no part of that
purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority
constituted by law to decide the matter in question. Unless that restriction on the power of the court
is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation
of power. See Halsbury’s Laws of England 4th Edition Vol (1)(1) para 60.
93. It must be remembered that judicial review is concerned not with private rights or the merits of the
decision being challenged but with the decision making process. Its purpose is to ensure that the
individual is given fair treatment by the authority to which he has been subjected. See R v Secretary of
State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at p 285.
94. I also associate myself with the expressions in Republic v The Retirement Benefits Appeals Tribunal ex
parte Augustine Juma & 8 others [2013] eKLR, that:
“ ...it must be remembered that the function of this court sitting in judicial review is not
concerned with the merits of the decision…I will add that judicial review is not an appeal
from a decision, but a review of the manner in which the decision was made. Once a body
is vested with the power to do so something under the law, then there is room for it to make
that decision, wrongly as it is rightly. That is why there is the appellate procedure to test
and examine the substance of the decision itself. It follows, therefore, that the correctness or
‘wrongness’ or error in interpretation or application of the law is not appropriately tested
in judicial review forum. In simple terms, a ‘wrong’ decision done within the law and in
adherence to the correct procedure can seldom be said to be ultra vires as to attract remedy
for the prerogative writs. The Court of Appeal in Kenya Pipeline Company Limited v
Hyosung Ebara Company Limited & 2 others, CA Civil Appeal 145 of 2011 [2012] eKLR
expressed this view as follows; Moreover, where the proceedings are regular upon their face
and the inferior tribunal has jurisdiction in the original narrow sense (that is, to say, it has
power to adjudicate upon the dispute) and does not commit any of the errors which go to
jurisdiction in the wider sense, the quashing order (certiorari) will not be ordinarily granted
on the ground that its decision is considered to be wrong either because it misconceived a
point of law or misconstrued a statute (except a misconstruction of a statute relating to its
own jurisdiction) or that its decision is wrong in matters of fact or that it misdirects itself
in some matter...”
95. In JR Misc Application No 477 of 2014: Republic v Public Procurement Administrative Review Board
& 2 others this court expressed itself as follows:
“ …the issue for judicial review is not whether the decision is right or wrong, nor whether
the court agrees with it, but whether it was a decision which the authority concerned was
lawfully entitled to make since a decision can be lawful without being correct. The courts
must be careful not to invade the eld of policy entrusted to administrative and specialized
organs by substituting their own judgment for that of the administrative authority. They
should judge the lawfulness and not the wisdom of the decision. If the decision was wrong,
it should be remedied by an appeal which allows the appellate court to engage in an intrusive
analysis of evidence by the trial tribunal and review the merit of the decision in question…
In my view the respondent was entitled to nd that the supplementary grounds did not
contain fresh issues or otherwise. The mere fact that it made one decision and not the other
does not justify this court in the exercise of its judicial review jurisdiction in interfering
therewith. Similarly, the respondent’s nding that the 2nd interested party did not comply
with its directions issued in the respondent’s earlier decision is a matter which would go to
the merit rather that the process.”
96. Republic v Public Procurement Administrative Review Board & another ex parte Gibb Africa Ltd &
another [2012] eKLR where the court set out the established reach of judicial review in Kenya thus:
“ In judicial review therefore, the court’s jurisdiction is limited to applying the three tests of
“legality”, “rationality” and “procedural propriety” to the decision under review and once
the decision passes the tests the court has no business taking any further step in respect of
that decision. There is always a temptation to descend into the arena and substitute the
judge’s decision with that of the public body whose decision is under attack. A judge should,
however, avoid this temptation by all means lest he be accused of abusing the powers given
to him to review the decisions of subordinate courts and tribunals. The Court of Appeal in
Grain Bulk Handlers Limited v JB Maina & Co Ltd & 2 others [2006] eKLR summarized
the purpose of judicial review by stating that:-
“Judicial review jurisdiction regulates the process by which a decision making

power given by the law is exercised by the person or body given the jurisdiction.
The subject matter of Judicial Review is the legality of such decisions.”
From the foregoing it is clear that in judicial review, the court does not exercise its appellate
powers. It mainly looks at the decision-making process to ensure that the citizen who has
come into contact with an administrative body or tribunal has been treated fairly. But as
observed by Lord Diplock in the already cited Civil Service Unions v Minister for the Civil
Service case, the court can quash the decision if the same is so unreasonable to the extent
that a reasonable tribunal addressing its mind to the facts of the case would not have arrived
at such a decision. In doing so, I submit, the court will have descended into the arena
of decision-making. For a court to justify such action it must be clearly obvious that the
decision is truly and obviously unreasonable which I submit is not the case here.”
97. Similarly, in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127 it was stated that:
“ Judicial review is not a shing expedition in unchartered seas. The course had been laid
down in numerous case laws. It is that this court is concerned only with reviewing, not
the merits of the decision reached, but of the decision making process of the authority
concerned. It would scrutinize the procedure adopted to arrive at the decisions to ascertain
that it is in uniformity with all elements of fairness, reasonableness and most of all its legality.
It must be borne in mind and which had been repeated many times by this court that it is
not its role to substitute itself for the opinion of the authorities concerned. This court on
a judicial review application does not act as a court of appeal of the decision of the body
concerned and it will not interfere in any way in the exercise of the discretionary power
which the statute had granted to the body concerned. However it will intervene when the
body concerned had acted ultra vires its powers, reached a decision which is manifestly
unreasonable in the Wednesbury sense; had acted in an unfairly manner and the applicant
was not given a fair treatment.”
98. In Penina Nadako Kiliswa v Independent Electoral & Boundaries Commission (IEBC) & 2 others
[2015] eKLR, Supreme Court held at paragraph 28:
“ The well-recognized principle in such cases is that the court’s target in judicial review is
always no more than the process which conveyed the ultimate decision arrived at. It is not
the merits of the decision, but the compliance of the decision-making process with certain
established criteria of fairness. Hence, an applicant making a case for judicial review has to
show that the decision in question was illegal irrational or procedurally defective.”
99. The Code of Civil Procedure, volume III pages 3652-3653 by Sir Dinshaw Fardunji Mulla states:
“ The power of review can be exercised for correction of a mistake and not to substitute a view.
Such powers should be exercised within the limits of the statute dealing with the exercise of
power. The review cannot be treated as an appeal in disguise. The mere possibility of two
views on the subject is not ground for review. The review proceedings are not by way of an
appeal and have to be strictly conned to the scope and ambit of order 47, rule 1, Code of
Civil Procedure…The review court cannot sit as an appellate court. Mere possibility of two
views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the
order of the court is not proper.”
100. However, the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage &
Culture & 3 others [2016] eKLR, expressed itself at paras 55-58 as follows:
“ 55. An issue that was strenuously urged by the respondents is that the appellant’s
appeal is bad in law to the extent that it seeks to review the merits of
the Minister’s decision while judicial review is not concerned with merits
but propriety of the process and procedure in arriving at the decision.
Traditionally, judicial review is not concerned with the merits of the case.
However, section 7 (2) (l) of the Fair Administrative Action Act provides
proportionality as a ground for statutory judicial review. Proportionality was
rst adopted in England as an independent ground of judicial review in R v
Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality
leads to a “greater intensity of review” than the traditional grounds. What
this means in practice is that consideration of the substantive merits of a
decision play a much greater role. Proportionality invites the court to evaluate
the merits of the decision; rst, proportionality may require the reviewing
court to assess the balance which the decision maker has struck, not merely
whether it is within the range of rational or reasonable decisions; secondly,
the proportionality test may go further than the traditional grounds of review
inasmuch as it may require attention to be directed to the relative weight
accorded to interests and considerations; thirdly, the intensity of the review
is guaranteed by the twin requirements in article 24 (1) (b) and (e) of the
Constitution to wit that the limitation of the right is necessary in an open and
democratic society, in the sense of meeting a pressing social need and whether
interference vide administrative action is proportionate to the legitimate aim
being pursued. In our view, consideration of proportionality is an indication of
the shift towards merit consideration in statutory judicial review applications.
56. Analysis of Article 47 of the Constitution as read with the Fair Administrative
Action Act reveals the implicit shift of judicial review to include aspects of
merit review of administrative action. Section 7 (2) (f) of the Act identies
one of the grounds for review to be a determination if relevant considerations
were not taken into account in making the administrative decision; section 7
(2) (j) identies abuse of discretion as a ground for review while section 7 (2)
(k) stipulates that an administrative action can be reviewed if the impugned
decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles
in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp
[1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7
(2) (i) (i) and (iv) deals with rationality of the decision as a ground for review. In
our view, whether relevant considerations were taken into account in making
the impugned decision invites aspects of merit review. The grounds for review
in section 7 (2) (i) that require consideration if the administrative action was
authorized by the empowering provision or not connected with the purpose
for which it was take and the evaluation of the reasons given for the decision
implicitly require assessment of facts and to that extent merits of the decision.
It must be noted that the even if the merits of the decision is undertaken
pursuant to the grounds in section 7 (2) of the Act, the reviewing court has no
mandate to substitute its own decision for that of the administrator. The court
can only remit the matter to the administrator and or make orders stipulated
in section 11 of the Act. On a case by case basis, future judicial decisions
shall delineate the extent of merit review under the provisions of the Fair
Administrative Action Act.
57. In Mbogo & another v Shah (1968) EA 93 at 96, this Court stated that an
appellate court will not interfere with the exercise of discretion by a trial court
unless the discretion was exercised in a manner that is clearly wrong because the
judge misdirected himself or acted on matters which it should not have acted
upon or failed to take into consideration matters which it should have taken
into consideration and in doing so arrived at a wrong conclusion. The dictum
in Mbogo v Shah (supra) and the principles of rationality, proportionality and
requirement to give reasons for decision are pointers towards the implicit shift
to merit review of administrative decisions in judicial review.
58. The essence of merit review is the power to substitute a decision. Under the
Fair Administrative Action Act, there is no power for the reviewing court
to substitute the decision of the administrator with its own decision. This
imposes a limit to merit review under the Act. Section 11 (1) (e) and (h) of the
Fair Administrative Action Act permits the court in a judicial review petition
to set aside the administrative action or decision and or to declare the rights
of parties and remit the matter for reconsideration by the administrator. The
power to remit means that decision making on merits is the preserve of the
administrator and not the courts.”
101. The same Court (Kiage, JA) emphatically expressed itself, inter alia, in the Judicial Service Commission
and another v The Chief Registrar of the Judiciary and Lucy Muthoni Njora Civil Appeal No 486 of
2019 as hereunder:
“ I think that it would be unrealistic for a court to engage in a dry and formalistic approach,
steeped in process alone, while eschewing a measure of merit examination. Such merit review
is a sine qua non of meaningful engagement with the question of reasonableness and fairness
as the antidote to the arbitrary, capricious or illegal conduct of authorities, that invite judicial
review in the rst place. Judicial review as an area of law is not static and its parameters
have never been cast in stone. Thus, in the common law jurisdictions, there have been major
developments in the eld, especially in the last four decades or so. In the United States, for
instance, there has been a decisive shift, with the Supreme Court there seeming to impose a
heightened standard of judicial review that involves more judicial scrutiny of administrative
action through “a searching and careful” engagement. This has been recognized as the “hard
look doctrine”. It is much less deferential to the decision-maker as formerly encapsulated in
the process-only approach. 26 I have had the advantage of perusing Prof Patrick M Garry’s
article Judicial Review and the Hard Look Doctrine (originally published on 7 Nev LJ 151
2006-007) and found it to be highly persuasive. The learned author’s conclusion, which I
would respectfully endorse and adopt, is that;
“Prior to, and during the two decades following passage of the Administrative
Procedure Act, judicial review of agency action was quite deferential. This
changed on the early 1970s, when judicial review became more scrutinizing …
courts began employing a ‘hard look’ review that examines agency decision-
making under a more heightened standard. … The hard look doctrine has evolved
from the very nature of judicial review … the courts have… become less deferential
and less of a rubber stamp on agency decisions … Hard look can thus be seen as
inherent in the very process of judicial review. In a way hard look represents an
internal duty owed by the courts to the constitutional function of judicial review
….” (Our emphasis)
In our own jurisdiction, judicial review has taken the same trajectory in recent years, spurred in large
measure by the 27 Constitution of Kenya, 2010. It changed the fundamental underpinnings of judicial
review from the common law as codied in the Law Reform Act, to its Article 22(3) (f), which
recognizes judicial review as one of the appropriate reliefs available. This is bolstered by Article 47(1),
which decrees the right to fair administrative action, given further eect by the Fair Administrative
Action Act which, at Section 7(2), sets out an expansive list of circumstances in which a court may
review an administrative action or decision. The superior courts of this country have spoken with near
unanimity that the current constitutional and statutory landscape calls for a more robust application
of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision.
See, for instance, Communication Commission of Kenya v Royal Media Services & 5 others [2014]
eKLR by the Supreme Court, this court’s decisions in Suchan Investment Ltd v Ministry of Natural
Heritage & Culture & 3 others [2016] eKLR and Child Welfare Society of Kenya v Republic & 2 others
ex parte Child in Family Focus Kenya [2017] eKLR and the High Court’s in Republic v Commissioner
of Customs Services ex parte Imperial Bank Ltd [2015] eKLR (per Odunga, J). They all speak to the
unmistakable sea change and approach, stated thus by this court in Super Nova Properties Ltd &
anor v District Land Registrar Mombasa & 2 others, Kenya Anti Corruption Commission & 2 others
(Interested Parties) [2018] eKLR;
“ 27. On our part, we nd no fault that the Judge expanded the grounds of
judicial review above the conservative grounds to include the principles of
proportionality, public trust, accountability by public ocers, justice and
equity. The test of proportionality would automatically lead to a greater
intensity of review of the merits as it invites a court to evaluate the merits of
the decisions by assessing the balance to make; that is whether the decision
to be made is within the range of rationality or reasonableness. Secondly, the
proportionality test may go deeper into examination of the interests of those
aected by the said decision.”
This court conducted a thorough and exhaustive review of the post-2010 jurisprudence on the
evolution of judicial review into the deeper scrutiny, hard look, merit-based standard of review mode
in its recent decision in Georey Ajuong Okumu & anor v 29 Engineers Board of Kenya [2021] eKLR.
I respectfully echo as representing the current legal position on the subject what we said there was on
our way to the conclusion that;
“ --- we have been able to demonstrate from … the decisions we have enumerated that, by
stating that he could not consider evidence presented as defence or analyze the agreements
executed by the parties in the dispute because doing so would amount to a merit review, the
learned Judge erred.”
We emphatically nd and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous
in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would
lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic
examination of the process while strenuously and articially avoiding merit. That path only leads to
intolerable superciality.”
102. It is now recognised that one of the grounds for grant of judicial review relief is unreasonableness of
the decision being challenged. This is clearly a deviation from the traditional common law approach
that what is to be considered is the process by which the decision is arrived at rather than the decision
itself. An examination of whether or not a decision is unreasonable clearly calls for some measure
of consideration of the merits of the decision itself though not in the manner contemplated by an
appellate process.
103. According to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 7th edition at
paragraph 11-036 on page 602, a decision is also irrational if it lacks ostensible logic or comprehensible
justication and that though the terms irrationality and unreasonableness are these days used
interchangeably, irrationality is only one facet of unreasonableness, hence a decision is said to be
irrational in the strict sense of that term if it is unreasoned; if it is
“lacking ostensible logic or comprehensible justication”.
104. Unreasonableness, according to the same work at para 11-029, connotes decisions which have been
accorded manifestly inappropriate weight; strictly “irrational” decisions, namely, decisions which
are apparently illogical or arbitrary; uncertain decisions; decisions supported by inadequate or
incomprehensible reasons; or by inadequate evidence or which are made on the basis of a material
mistake or material disregard of fact.
105. According to De Smith’s Judicial Review (sixth edition) at page 559 that:
“ Although the terms irrationality and unreasonableness are these days used interchangeably,
irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense
of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justication.
Instances of irrational decisions include those made in an arbitrary fashion perhaps by
spinning a coin or consulting an astrologer or where the decision simply fails to add up-in
which in other words there is an error of reasoning which robs the decision of logic…Less
extreme examples of the irrational decision include those in which there is an absence of
logical connection between the evidence and the ostensible reasons for the decision, where
the reasons display no adequate justication for the decisions or where there is absence of
evidence in support of the decision.”
106. Sedley, J in R v Parliamentary Commissioner for Administration, ex parte Balchin and another [1998]
1 PLR 1, states at page 11 that:
“ What the not very apposite term “irrationality” generally means in this branch of the law is
a decision which does not add up-in which, in other words, there is an error of reasoning
which robs the decision of logic.”
107. In Salim Juma Oditi v Minister for Local Government & ors [2008] eKLR, Wendoh, J referring to the
case of Associated Provincial Pictures Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at p 229
held that:
“ It is true discretion must be exercised reasonably. Now what does that mean? Lawyers
familiar with the phraseology commonly used in relation to exercise of statutory discretions
often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been
used and is frequently used as a general description of the things that must not be done. For
instance, a person entrusted with a discretion must, so to speak, direct himself properly in
law. He must call his own attention to the matters which he is bound to consider. He must
exclude from his consideration matters which are irrelevant to what he has to consider. If he
does not obey their rules, he may truly be said and often is said to be acting unreasonably
similarly there may be something so absurd that no sensible person could ever dream that
it lay within the powers of the authority."
108. Based on Bato Star Fishing Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC
15 at 44,which was dealing with section 6(2)(h) of the South African Promotion of Administrative
Justice Act, a legislation which squares with section 4(2)(k) of the Fair Administrative Action Act,
2015 to the extent that it forbids unreasonable administrative actions or decisions, because of the
constitutionalisation of fair administrative action, an unreasonable decision is simply a decision that
a reasonable decision-maker could not reach and not necessarily an egregious one per Wednesbury. In
the South African case the court opined that:
“ 42. ..It is well known that the pre-constitutional jurisprudence failed to establish
reasonableness or rationality as a free-standing ground of review. Simply put,
unreasonableness was only considered to be a ground of review to the extent
that it could be shown that a decision was so unreasonable as to lead to a
conclusion that the ocial failed to apply his or her mind to the decision.
44. ...The subsection must be construed consistently with the Constitution and in
particular section 33 which requires administrative action to be “reasonable”.
Section 6(2)(h) should then be understood to require a simple test, namely,
that an administrative decision will be reviewable if, in Lord Cooke’s words, it
is one that a reasonable decision-maker could not reach.”
109. It is in this respect that I understand Onguto, J’s decision in Kenya Human Rights Commission v Non-
Governmental Organisations Co-Ordination Board [2016] eKLR where the learned judge held that
the court, eectively has a duty to look both into the merits and legality of the decision made due to
the requirement of “reasonable” action under article 47, and also the process and procedure adopted
due to the requirement of following all precepts of natural justice under both articles 47 and 50(1) of
the Constitution.
110. The gist of this matter is that the 1st respondent does not have a legally acquired degree to enable her
qualify as candidate for gubernatorial position for Machakos County.
111. When the parties appeared before me on June 30, 2022 I made the following order:
a. That the Deputy Registrar of this court do carry out the verication of the 1st respondent’s
bachelors and masters degrees via the website indicated in the prayer (b) of the motion dated
June 28, 2022 and le a report accordingly.
b. That the verication to be undertaken today at 2.30 pm.
112. The Learned Deputy Registrar did carry ought that task and rendered his report in which he found
inter alia that:
1. The enquiry details were matching in regard to one Wavinya Ndeti having obtained Masters
Degree from City University of London in Business Systems Analysis and Design.
2. The enquiry details were matching in regard to one Wavinya Ndeti having done a course in
Computer Science from London South Bank University.
3. The enquiry details were matching in regard to one Wavinya Oduwole having qualied with
bachelors degree in Computing Science from London South Bank University.
113. It follows that prayer (b) of the motion is nolonger necessary to deal with.
114. The applicants seek an order of certiorari be and is hereby issued quashing the decision of the 2nd
respondent’s Dispute Resolution Committee dated June 16, 2022 and read in open court on June
19, 2022 in IEBC/DRC/CRGE/56/2022: Gideon Ndegwa Kenya & another v Hon Wavinya Ndeti
clearing the 1st respondent to run for the position of Governor, Machakos County in the General
Elections scheduled for August 9, 2022. According to the Applicants the said Committee failed to
deal with their complaint by stating that it had no jurisdiction to do so since the allegations raised
disclosed suspicion as to the authenticity of the academic qualications of Wavinya Ndeti. According
to the 2nd respondent, its mandate as enshrined in the Constitution under article 88 thereof as read
with section 74 of the Elections Act, 2011 does not include authenticating academic certicates hence
the 2nd respondent together with its Dispute Resolution Committee lack power to investigate and/or
determine the validity or otherwise of the certicates presented by intending candidates as long as on
the face of it, the candidate presents a prima facie valid document. To them, pursuant to section 4 of
the Universities Act No 40 of 2012 as read with section 5, that mandate is a preserve of the Commission
for University Education, the 3rd respondent herein, hence no single piece of legislation bestows upon
the 2nd respondent or its organs and/or committees the mandate to recognize and/or fail to recognize
academic certicates of candidates.
115. Section 5 of the Universities Act provides as follows:
(1) The functions of the Commission shall be to—
(a) promote the objectives of university education;
(b) advise the Cabinet Secretary on policy relating to university

education;
(c) promote, advance, publicise and set standards relevant in the

quality of university education, including the promotion and
support of internationally recognised standards;
(d) monitor and evaluate the state of university education systems in

relation to the national development goals;
(e) licence any student recruitment agencies operating in Kenya and

any activities by foreign institutions;
(f) develop policy for criteria and requirements for admission to

universities;
(g) recognize and equate degrees, diplomas and certicates conferred

or awarded by foreign universities and institutions in accordance
with the standards and guidelines set by the Commission from
time to time;
(h) undertake or cause to be undertaken, regular inspections,

monitoring and evaluation of universities to ensure compliance
with the provisions of this Act or any regulations made under
section 70;
(i) collect, disseminate and maintain data on university

education;
(j) accredit universities in Kenya;
(k) regulate university education in Kenya;
(l) on regular basis, inspect universities in Kenya;
(m) promote quality research and innovation; and
116. It is therefore clear that the powers to recognize and equate degrees, diplomas and certicates conferred
or awarded by foreign universities and institutions rests with the 3rd respondent. In undertaking its
mandate, it is required to undertake or cause to be undertaken, regular inspections, monitoring and
evaluation of universities. In this case the 3rd respondent conrmed that the institutions from which
the 1st respondent obtained her degrees and certications are recognised.
117. The applicants have not cited before me any statute that compels the 2nd respondent to make a decision
as regards the recognition or equation of university degrees. They have however relied on regulation
47 of the Election (General) Regulations, 2012, which in so far as the ascertainment of educational
qualications is concerned provides as follows:
1. For purposes of ascertaining the educational qualication of persons for an elective post, a
person seeking nomination shall submit to the Commission certied copies of certicates of
the educational qualication.
2. Where the body that issued the certicate is not based in Kenya, a candidate shall be required to
seek authentication of that body with the Kenya National Examinations Council, in the case
of form four certicates, or the Commission for University Education, in the case of university
degrees.
118. With due respect I cannot read into the said regulation any power conferred upon the 2nd respondent
to recognise or equate university degrees. I therefore associate myself with the decision of Mrima,
J in Petition E321 of 2022 – Dennis Gakuu Wahome v The Independent Electoral and Boundaries
Commission and others and nd that the 2nd respondent has no power to recognise or equate university
degrees and therefore cannot be compelled to investigate the authenticity of a university degree that is
already recognised by the 3rd respondent.
119. To the contrary that power expressly reposes on the 3rd respondent which, being a specialised
Commission, is expected to have the necessary expertise to eectively, eciently and competently carry
out its statutory mandate. It is important to set out the role of the courts in matters such as this. It is
trite law that the court ought not to interfere with the decision of the 3rd respondent simply because
it holds the view that the said decision was unmerited as long as the same is based on the guidelines
put in place by the 3rd respondent unless it be shown that the decision was irrational or unreasonable.
Where it is not shown that the decision was unreasonable, I associate myself with the decision of the
Court of Appeal in Eunice Cecilia Mwikali Maema v Council of Legal Education and 2 others Civil
Appeal No 121 of 2013 that:
“ the council has the power to set standards to ensure that the highest professional standards
are maintained in the profession and it is not for the court to be concerned with the
ecaciousness of the decision made pursuant to the Regulations.”
120. I also wish to associate myself with the decision in Susan Mungai v The Council of Legal Education &
2 others Constitutional Petition No 152 of 2011 in which Mumbi Ngugi, J expressed herself as follows
while citing with approval the case of Republic v The Council of Legal Education ex parte James Njuguna
and 14 others, Misc Civil Case No 137 of 2004 (unreported):
“ The Council of Legal Education followed to the letter the purpose and objects of the Act
including the applicable regulations and this court has no reason to intervene in a way
that interferes with the merit of the decisions clearly falling within the relevant regulations
and which have been applied by the Council of Legal Education without any procedural
irregularity or for an improper purpose. I decline to do so. The Council of Legal Education
has the power and duty to insist on the highest professional standard for those who wish to
qualify as advocates. The Regulations are aimed at achieving this. The decision was made
on merit and this court has no reason to intervene. The Regulations and the policy behind
the rules were properly made pursuant to the Act and it is not for the court to be concerned
with the ecaciousness of the decision made pursuant to the regulations...The Council of
Legal Education is the best judge of merit pertaining to academic standards and not the
courts. Parliament clearly vests the power of formulating policy of training and examining of
advocates on the Council of Legal Education and it would be wrong in the view of this court
to intervene with the merits of the decision by the Council of Legal Education...a court of
law would only be entitled to inquire into the merits of a decision in circumstances where the
decision maker abused its discretion, exercised its decision for an improper purpose, acted in
breach of its duty to act fairly, failed to exercise its statutory duty reasonably, acts in a manner
which frustrates the purposes of the Act which gives it power to act, exercises its discretion
arbitrarily or unreasonably, or where its decision is irrational or unreasonable as dened in
the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1
KB 223. In the case before me, there is no evidence to suggest that the 1st respondent, in
dealing with the application for admission by the petitioner, acted in any of the ways set out
above that would justify interference by this court with its decision.”
121. The learned judge continued:
“ I nd and hold that it would not be proper or right for the court to veto powers conferred
by Parliament on a public authority or body such as the Council of Legal Education and
for the court to substitute its own view from that of the Council of Legal Education to
which discretion was given except where the discretion has been improperly exercised as
enumerated in the ten situations above. In judicial review, the courts quash decision made
by public bodies so that these same bodies remake the decisions in accordance with the law.
It is not proper for the court to substitute its decision which is what this court is being asked
to do by issuing a mandamus to compel a re-sit. I reiterate my earlier ndings on this point
in the case of R v Judicial Service Commission ex-parte Pareno Misc Civil Application No
1025 of 2003 (now reported) that it is not the function of the courts to substitute their
decisions in place of those made by the targeted or challenged bodies.”
122. This was a reection of the position taken in Maharashtra State Board of Secondary and Higher
Secondary Education and another v Kumarstheth [1985] LRC in which it was held:
“ so long as the body entrusted with the task of framing the rules or regulations acts within
the scope of the authority conferred on it in the sense that the rules and regulations made
by it have a rational nexus with the object and purpose of the statute, the court should
not concern itself with the wisdom of the ecaciousness of such rules and regulations.
It is exclusively within the province of the Legislature and its delegate to determine, as
a matter of policy, how the provision of the statute can best be implemented and what
measures substantive as well as procedural would have to be incorporated in the rules and
regulations for the ecacious achievement of the object and purposes of the Act. It is not
for the Court to examine the merits and demerits of such a policy because its scrutiny has
to be limited to the question as to whether the impugned regulation falls within the scope
of the regulation-making power conferred on the delegate by the statute. The responsible
representative entrusted to make bylaws must ordinarily be presumed to know what is
necessary, reasonable, just and fair.”
123. It was therefore appreciated by Nyarangi, JA in Daniel Nyongesa and others v Egerton University
College CA No 90 of 1989 that:
“ Courts are very loathe to interfere with decisions of domestic bodies and tribunals including
college bodies. Courts in Kenya have no desire to run Universities or indeed any other bodies.
However, courts will interfere to quash decisions of any bodies when the courts are moved
to do so where it is manifest that decision has been made without fairly and justly hearing
the person concerned or the other side…”
124. In this case it is contended by the applicants that the 1st respondent’s academic certicates do not meet
the general requirements for recognition and equation of qualications established in the Universities
Standards and Guidelines, 2014; Standards for Recognition and Equation of Qualifications. According
to the applicants, though the 1st respondent claims to have obtained a master’s degree in Business
Systems Analysis and Design in 1992 and later in 1995, she obtained a bachelor’s degree in Computer
Science, earlier on, the 1st respondent had obtained a graduate diploma in Computer Science in
1990 without undertaking a rst degree. In their submissions, there is a close relationship between
Computer Science and Business Systems Analysis and Design and as such it is illogical for a person who
holds a master’s degree to undertake a bachelor’s degree in a similar eld. In this regard reference was
made to the report from Chelgate Consulting Firm in London which has detailed the inconsistencies
in the 1st respondent’s academic certicates together with dierent names appearing on her certicates,
which in their views made the ex-parte applicants question the authenticity of the 1st respondent’s
academic qualication. In addition, it was contended that the said report indicates that the minimum
entry requirement for one to proceed with a master’s degree is a good second-class honours degree
from a UK University, a recognized equivalent from an accredited international institution or an
equivalent professional qualication. It was therefore their position that the 1st respondent has not met
the minimum entry requirements and thus there is need to question her academic qualications.
125. Whereas it may well be true that the 3rd respondent has the mandate to recognize and equate degrees and
can recall, revoke and/or cancel the recognition of any award in the event it establishes any reason that
makes the award in question ineligible for recognition and/or equation, that decision squarely falls on
the 3rd respondent and this court can only interfere where the decision made by the 3rd respondent falls
afoul of the laid down parameters guiding decision making. In this case, I take it that the applicants are
alleging that the decision to recognize the 1st respondent’s degree qualication is, in the circumstances,
irrational. I have looked at the prayers sought in this motion and I cannot see any seeking to quash the
decision by the 3rd respondent to recognize the degree certicates issued to the 1st respondent. As held
in Republic v Kenya National Examinations Council ex parte Gathenji & others Civil Appeal No 266
of 1996, an order of mandamus cannot quash what has already been done as this can only be done by
an order of certiorari can quash a decision.
126. In this case instead of seeking an order quashing the decision of the 3rd respondent, the applicants
are seeking an order of mandamus compelling the 2nd respondent to strike out the 1st respondent’s
name from the list of cleared gubernatorial candidates to vie for Governor, Machakos County in
the General Elections scheduled for August 9, 2022. However, as held in Republic v Kenya National
Examinations Council ex parte Gathenji & others Civil Appeal No 266 of 1996 the order of mandamus
is a command issuing from the High Court of Justice, directed to any person, corporation or inferior
tribunal, requiring him or them to do some particular thing therein specied which appertains to
his or their oce and is in the nature of a public duty. It lies in cases where there is a specic legal
right or no specic legal remedy for enforcing that right. It must command no more than the party
against whom the application is legally bound to perform. However, where a statute, which imposes a
duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the
obligation is laid, a mandamus cannot command the duty in question to be carried out in a specic
way. However, if the complaint is that the duty has been wrongfully performed ie that the duty has
not been performed according to the law, then mandamus is wrong remedy to apply for because, like
an order of prohibition, an order of mandamus cannot quash what has already been done.
127. Accordingly, that order can only be made if there is a legal obligation placed on the 2nd or 3rd respondents
to strike out the 1st respondent’s name and the said respondent have failed to do so. Where what is being
sought that they do is to exercise its power in a certain way as opposed to just exercising the same, the
court cannot issue an order of mandamus. In other words, the prayer ought to be an order directing
them to undertake their statutory mandate as opposed to carrying it out in a pre-determined manner.
128. In my view where a party alleges that the respondent does not possess university degree, the burden
would then shift to the respondent to disprove that allegation. However, where the allegation is that
the decree allegedly possessed by the respondent was not properly conferred, as is the case herein, the
burden remains upon the person making that allegation to prove the same.
129. This is so since section 107 (1) of the Evidence Act, cap 80 laws of Kenya provides that:
Whoever desires any court to give judgment as to any legal right or liability dependant on
the existence of facts which he asserts must prove that those facts exist.
130. This is called the legal burden of proof. There is however evidential burden of proof which is captured
in sections 109 and 112 of the same Act provides as follows:
"109. The burden of proof as to any particular fact lies on the person who wishes the court to believe
in its existence, unless it is provided by any law that the proof of the fact shall lie on any
particular person.
112. in civil proceedings, when any fact is especially within the knowledge of any party to those
proceedings, the burden of proving or disproving the fact is upon him."
131. The two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another
[2005] 1 EA 334, in which the Court of Appeal held that:
“ As a general proposition under section 107 (1) of the Evidence Act, cap 80, the legal burden
of proof lies upon the party who invokes the aid of the law and substantially asserts the
armative of the issue. There is however the evidential burden that is case upon any party
the burden of proving any particular fact which he desires the court to believe in its existence
which is captured in sections 109 and 112 of the Act.”
132. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
“ As a general preposition the legal burden of proof lies upon the party who invokes the aid
of the law and substantially asserts the armative of the issue. That is the purport of section
107 (i) of the Evidence Act, chapter 80 laws of Kenya. Furthermore, the evidential burden…
is cast upon any party, the burden of proving any particular fact which he desires the court
to believe in its existence. That is captured in section 109 and 112 of law that proof of that
fact shall lie on any particular person…The appellant did not discharge that burden and as
section 108 of the Evidence Act provides the burden lies in that person who would fail if no
evidence at all were given as either side.”
133. In this case, it is clear that the applicants’ allegations are premised on speculations. This must be
the reason why they are seeking an order of mandamus be and is hereby issued compelling the 5th
respondent’s Department of Recognition, Equation and Verication to verify the academic credentials
of the 1st respondent. As held in Hangsraz Mahatma Gandhi Institute & 2 others [2008] MR 127
judicial review is not a shing expedition in unchartered seas.
134. In my view, the mere fact that the system adopted by foreign universities is dierent from our own
system does not necessarily mean that such foreign degrees ought not to be recognized locally. As long
as the 3rd and 5th respondents are satised as regards the standards applied in awarding the same, this
court cannot interfere with such a decision simply because the degrees were awarded in an “unusual”
manner. While their decision may be challenged on the grounds of irrationality, that is not the same
thing as impeaching their decision merely because of dierentiation or variation in the educational
systems.
135. On the issue whether the names Wavinya Ndeti and Petti Wavinya Oduwole belong to the 1st
respondent, the 1st respondent has explained that Oduwole is her late husband’s name and that has
not been disputed.
136. As regards the prayer for the 4th respondent, the Director of Public Prosecutions to order investigations
and/or determine the authenticity and validity of the academic certicates presented by Wavinya Ndeti,
from the record, it comes out that the 1st respondent was at one point summoned to explain herself.
Whatever decision arrived following that summon, if any, is not the subject of these proceedings.
137. Having considered the proceedings, I nd that the applicants have failed to meet the threshold for
grant of the orders sought. Accordingly, the motion fails and is dismissed but with no order as to costs
considering that this is a public interest litigation.
138. It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF
JULY, 2022.
GV ODUNGA
JUDGE
Delivered in the presence of:
Ms Sitati for Ms Damaris Mwiti for the ex parte applicant.
Mr Ochieng Oginga for the 1st respondent.
Mr Amimo for Mr Muyundo the 2nd respondent.
Ms Kavuivu for Ms Lumallas for the interested party.
CA Kevin.

Wavinya Deti Case

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Republic v Wavinya Ndeti & 4 others; Gideon Ngewa & another (Exparte);

Wiper Democratic Movement Kenya (Interested Party) (Judicial Review

(h) That costs of this application be provided for.

d. On November 9, 1989, Wavinya Ndeti acquired an Advanced Diploma in Computer Studies

f. In a sudden turn of events, on November 6, 1992, Wavinya Ndeti purportedly obtained a

1st Respondent’s Case

2nd Respondent’s Case

4th Respondent’s Case

1. The application is incompetent and an abuse of the process of court.

b. That the verication to be undertaken today at 2.30 pm.

b. THat the application purporting to be a judicial review application is not a judicial

h. That the application is frivolous vexatious and scandalous.

“Judicial review jurisdiction regulates the process by which a decision making

“lacking ostensible logic or comprehensible justication”.

b. That the verication to be undertaken today at 2.30 pm.

115. Section 5 of the Universities Act provides as follows:

(1) The functions of the Commission shall be to—

(a) promote the objectives of university education;

(b) advise the Cabinet Secretary on policy relating to university

(c) promote, advance, publicise and set standards relevant in the

(d) monitor and evaluate the state of university education systems in

(e) licence any student recruitment agencies operating in Kenya and

(f) develop policy for criteria and requirements for admission to

(g) recognize and equate degrees, diplomas and certicates conferred

(h) undertake or cause to be undertaken, regular inspections,

(i) collect, disseminate and maintain data on university

(j) accredit universities in Kenya;

(k) regulate university education in Kenya;

(l) on regular basis, inspect universities in Kenya;

(m) promote quality research and innovation; and

121. The learned judge continued:

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