In the Farid case
the Applicants sought order to quash the decision of KNEC from cancelling the
results of 48 of its candidates this cancellation was communicated to the
applicants by a letter dated 25th February 2010 to the respective
head teacher of the students whose results were cancelled, as KNEC in the said
letter alleged collusion in the mathematics and business papers respectively. A
further order of certiorari to quash the decision that KNEC had come to of
barring the students from participating in the exams for the next two years,
this decision was rescinded, the applicants further pleaded for an order of mandamus
to compel the council to release the
results of the business and mathematics paper and if possible produce the
transcripts in court for the courts assessment.
Mr. Adan contested that the respondents had violated an
enshrined principle of law which is the non- retrospective application of the
law, this is enshrined under Art.50 (n) of the Kenyan constitution. It is
stated that the cancellation of the results as well as the later rescinded 2
year ban were enshrined in Rule 26 in the Kenya Certificate of Secondary
Education Examinations Rules 2009[1].
Came into force on of 4th December, 2009.whereas the exams were
conducted on October and September 2009, thereby when the students sat for the
exams the only penalties they were aware of where the penalties enshrined in
rule 28 of the 1998 rules[2]. This is a clear contravention of the doctrine.
This undermines the rule of law. Mrs. Kiarie learned counsel for respondent in
replying silently noted that they had rescinded the two year ban which is
enshrined under the 2009 rules but what about the cancellation? I am of the
view that it wasn’t worthy as the 1998 provided for withholding of the results
until the end of investigations upon which the meritable action to do would
suffice which in this scenario was to cancel the results as evidence of
collusion emerged.
Mr Adan Argued that the decision was ultra vires due to not
according the affected students a hearing before the cancellation, he relied on
the 1998 rules which state that “The Council reserves the right to withhold the
results of the examination for any candidate or group of candidates or
examination center suspected of having been involved in examination irregularity
or misconduct pending completion of investigations and the final disposal of
any consequent disciplinary or other proceedings”[3].
His construction of this was that a party must be accorded
fair hearing before the cancellation of the results, in supporting this he
relied on general decisions[4]
that really don’t support decision making of such a body as KNEC which due to
confidentiality upholds the integrity of the national examinations. KNEC cannot
be expected to accord the 1000 and something students whose results were
cancelled a fair hearing further counsel Kiarie was of the view that the right
to a fair hearing is not absolute and is subject only to a promise[5],
of which is absent even in rule 28 of the1998 rules. Her point stood. As the
public interest in the examination process superseded the individual interests
of the students affected, some things must be taken in trust and good faith as
there is no evidence as to why KNEC would be malicious towards the ex parte applicants. further it was held
that KNEC had the requisite discretion to do things in a manner that seems fair
to them vis a vis upholding integrity and that they were not under an order to
carry out the process in a particular meaning that accords fair hearing. If the
clause of the statute is silent as to a particular manner then it is for KNEC
to conduct themselves in a manner they see fit[6].
This was fair as government departments are not expected to conduct their
businesses as Courts of law and therefore could act according to their routine[7].
If this rule was to be applied literally hen we will have put a spoke in the
wheels of justice thereby bringing it to a grinding halt[8].
The Applicants further contested that the rules strictly
state that evidence of collusion must be detected during the exam period and
that it is the invigilator to detect the collusion and write a letter but it
was submitted that the stages of detecting exam collusion is a tow tier
process.1st is during the actual examination process and 2nd
is during the marking process.[9]
A futile ground that the respondents acted capriciously,
maliciously towards the applicants result of not according a fair hearing was
pursued but it was submitted that there is no evidence as to why out of 600000.students
that did the exam why would the 48 be targeted specifically, according them a
fair hearing would be too heavy a burden to bear[10].
Where there is a necessity for speed then K.N.E.C in its own
discretion should have accorded the applicants a post decisional hearing for
the simple reason of maintaining administrational efficiency as well as
fairness to the individuals.[11]
They need not worry that this will affect the finality of their decisions as
the authority who proceeds to post decisional hearing will have a closed mind
and there is hardly any chance of getting a proper consideration by the
representation at such post-decisional opportunity[12],
only in very exceptional circumstances which of course are in KNEC’s discretion
to decide as they please. Only is such a way will the principle of
proportionality be balanced between the public interest, the goal being sought
and the interests of the Applicants.
Order of mandamus was not applicable as the matter of
examination involved discretion and compelling he body to produce the
examination results and transcripts or to assess them in a particular way would
hinder the future integrity and security of the examination process. Mandamus in
discretionary and the court are not obligated to grant it further It naturally
flows from when the certiorari is granted which in this scenario was not. I
agree with the Court in this regard as Mandamus to produce the transcripts in
court is not a right[13]
and backed by no statute[14]
as it falls under the Respondents discretion.
Accordingly the orders sought were denied and the Applicants
were slapped with the Respondents costs, as they had impliedly wasted the
courts precious time.
The Busara decision: this
decision was decided earlier that the Farid
case, it was decided in 2009. Kibe Mungai was the learned counsel for the
applicants and Mr Ngatia as well as Mrs. Kiarie for the respondents. Here the
results of 96 students were cancelled after it was found that they had cheated
in the English exam, the applicants
moved to court to ask for an order of certiorari to quash the decision of the
council for cancelling results, an order of mandamus directing the respondents
to release the English results, upon granting the first two prayers a further
mandamus to direct the respondent to issue the 96 students with certificates
and order of prohibition restraining the second Respondent from filling 96
vacancies in the relevant secondary schools. This is a major difference from
the Farid case to this in that what
was being asked here was not asked for in Farid
.lastly that an order of mandamus be issued to compel the 2nd
respondent to admit the 96 students in the relevant secondary schools. The
applicants in asking for these rare instances of the order such as the
prohibition of filling 96 vacancies and admitting the 96 students to the
vacancies sought inspiration from the decision of GilGil Milimani Academy Ltd & 17 others v KNEC and 2 others.
Similarly the Applicants contested that the decision to
cancel the results of the 96 students was capricious, malicious, baseless
because no evidence of collusion had been provided that the rules of natural
justice specifically no person can be condemned unheard were flouted by KNEC.
KNEC submitted that it could not produce results that it did not have as it had
already obliterated the cancelled results.
The Applicants submitted that the decision to cancel the
results was beyond their jurisdiction as no evidence of collusion had been
established post the computer flagging, the collusion was detected by a
computer software progress that detected collusion through certain answer
patterns Vis a vis calculations of probability. And that it had detected errors
in the business as well as English papers.
The applicants contended that KNEC cannot hide behind rules of
examinational conduct and integrity and ought to accord the students a right to
fair hearing. Respondents assured the Court that the same scientific method
that they use is used all over the world and that it ability to act fairly or
make mistakes cannot be questioned as it would greatly undermine future
conduct. The courts if allowed this would be too heavy a burden to bear and
that it would be absurd to expect the students to inspect the examination
marking process as it would undermine the process and hinder on the finality of
decisions[15]
that needs to stem from it, this specifically applies to the claim the
applicants in the Farid case sought
to bring the relevant exam sheets in court for the court assessment.
On the issue of a legitimate expectation to be heard it was
argued that the students had clearly been warned from the circulated circulars,
media and even during the rehearsal day. And that the power to cancel examinations
vested in the reg. 15 and that the school attempted to arm twist the law when
they attempted to contact the permanent secretary of the ministry to intercede
on their behalf and it was submitted that this is a further examination
irregularity.
Counsel Ombwayo for the second respondent also submitted his
case after Mr. Ngatia and the court decided to summarize the issue to be tried.
The first issue was whether there was a misjoinder of
parties to the case as the Respondents contended that Order 1 (a) of the civil
procedure rules did not apply to the present case as a prima facie construction
of it states that any parties who are affected by as a result may sue as a
group in a matter where if sued individually then there would arise the same
matters of issue and facts of law. But what was the problem was that the
applicants did not seek court leave to file, but this being a matter of public
interest the judge adopted the judicial Restrain approach, where procedural
technicalities are ignored for the greater good.
The next question was whether the issue was justiciable,
meaning the decision to cancel the results of the said students. KNEC being a
statutory body established under the KNEC act is a governmental public body and
thus any decision it makes can be subject to a judicial review. Ad that the
right s of the Applicants (1st and 2nd) has been
infringed. The courts held that it was subject to review sir John Donaldson
said in R v Panel on Takeovers and
Mergers ex p. Datafin plc (1987) Q.B 815 that statutory and non -statutory
bodies can be subject to judicial review on the same basis in defense of the
citizenry.
Whether the decision of the council was ultra-vires- the
council was created by s.3 (1) and (2) of the KNEC Act as a separate legal entity.
The council had power not only to conduct but to also cancel the results of
students who are found to have cheated, the applicants submitted that the
respondents had not produced evidence to that effect they relied on the
affidavits of the invigilators who claimed to be no collusion but the
respondents claimed that they detect collusion using a software known as the
Optical marker readers[16]
and it is based on a balance of probabilities where it detects anomalous
deviation o not right but wrong answers and that this system was trustworthy
and had been adopted internationally by many institutions for its rate of
success. The courts adopted a purposive approach to oversee why the council had
cancelled the results of 96 whereas regulation 15 of the KNEC act provided for
a cancellation of all the results at the center if there is evidence to prove
that he collusion was widespread the courts noted also that purposively the
power of the council to facilitate examinations carried a tail-right to cancel[17]
results if misconduct is found. It was found while seeking inspiration from
some case law[18]
that the council was within its jurisdiction when making the decision to cancel
the results.
Whether they had a right to a fair hearing? On the
allegation of non-production of collusion evidence then he court was of the
view that in judicial review they are only concerned with the process that was
followed in coming to the decision but not to the decision’s efficacious
nature.[19]
The courts found that as a general right there is no right to
a fair hearing when it comes to education bodies as this would inter alia mess
up with the integrity of the conduct of exam, it would be time consuming, lay a
heavy burden on the council etc. however as I had already dealt with this right
in the previous case then it is of advice that its time KNEC consider the post
decisional hearing so as to avoid the floodgate of cases that are coming to
court against them for a literal construction of the rule of fair hearing. Keeping
in mind that as a general rule the post decisional hearing should make no
difference[20]
to the decision except in special circumstances
Whether the council could release the composition paper? The
applicants futile plea was that they be released the results of the composition
paper which had been cancelled alongside the English paper as both marks are
normally added together then presented as one mark in the transcript of
results. The respondents urged that they could not produce results that they do
not have as they had already cancelled it after evidence of collusion was
found: all in the spirit of upholding the integrity of the examination process.
Whether they had a legitimate expectation to be heard? As I
had argued in Farid here there was no
promise and thus there was no legitimate expectation to be heard as the matter
herein consists of a public interest of which supersedes the interest of the
individuals concerned as this would undermine the countrywide examination
process in terms of security, confidentiality and integrity.
The Applicants further contended that the decision to cancel
the results was unreasonable and thus carried out in bad faith, since they only
cancelled 96 and not all the candidates as the rules stated with regard to
massive evidence of collusion, the degree of unreasonability is very high and
thus the respondents failed to satisfy the threshold.
Further they argued that it was in bad faith as also the
composition results were cancelled however it was held that English and the
exam paper are normally later combined to make one grade as a such when one
misses then the other loses meaning. [21]
Duty of Candor: duty of disclosure of all the relevant
material facts as has been stated in very wise words that judicial review must
be approached with all the cards facing upwards for all to see[22].
Respondents established that all evidence of collusion was accurate according
to the recognized software, Applicants contended that the exams were done in
strict conditions giving no room for collusion however from the affidavits
submitted; the students had not sat 1.22 meters apart instead it was one and
that it was unclear who frisked the girls and boys in some rooms as those rooms
only contained one invigilator of a specific gender whereas the rooms contained
students of a mixed sex. It was found that the respondents had not breached any
duty of candor equally the applicants hadn’t as this duty applies to both
sides.
The applicants considered the Children’s Act and
claimed a violation of the right to
education however the court found that they were underserving as when they came
to court they violated the Clean hand doctrine, which states that he who seeks
equity cannot come in hands covered in blood, the Applicants came with dirty
hands as they had tried to contact the
permanent secretary for education to
intervene in the matter, the irregularities that were observed during the exam
came from the affidavits in support of the applicants thus they didn’t have
clean hands. The court must have held this because a breach of the clean hands
doctrine amounts to willful misconduct that is unfair, dishonest, and
fraudulent and any action the state takes will have been performed in bad
faith.[23]
[1]
Legal Notice No. 176
[2]
Legal Notice No. 18 of 1998
[3]
Rule 28
[4]
The Commissioner of Lands v. Kunste Hotel Limited Civ. App. No. 234 of 1995
[1997] e KLR: Republic v. The Kenya National Examinations Council, ex parte
Kemunto Regina Ouru, Eldoret Misc. Civ. Application No. 1 of 2009 [2009] eKLR.
[5]
R.V.P Wendoh-Republic v. The Kenya National Examinations Council & Another,
ex parte Busara Forest View Academy Limited & 94 Others.
[6]
University of Ceylon v. Fernando [1960] 1 All E.R. 631
[7]Lord
Shaw - Local Government Board v Arlidge 1915 A.C 120
[8]
Page 256
[9]
Busara decision; Lord Pearson-Pearlberg v. Varty (Inspector of Taxes) [1972] 1
WLR 534
[10]
Kenya National Examinations Council v.
Republic, Civil Appeal No. 266
of1996,
[11]
Maneka Gandhi v Union of India 1978 1
SCCC 248
[12]
H.L Tehran v Union of India 1989 1
SCC 764
[13]
S.P Manocha v the State of M.P AIR
1973 MP 84: Court could not compel a school to admit a student as they failed
to establish a right of admission.
[14] Union of India v Orient Enterprises
1998 3 SCC 501
[15]
Maharashtra State Board of Secondary and
Higher Education v Kurmasheth 1985 LRC 1083
[16]
Page 35 of the judgment (Busara)
[17]
Page 37 of the judgment ibid
[18]
Anisminic Case ; Ex Parte Saitoti case
[19]
Page 40 of the ruling.
[20]
John v Rees 1970 Ch 345
[21]
Page 55 of the ruling
[22]
R v Lancashire County Council ex parte Huddleston 1986 2 All ER 941
[23]
Precision Investment v Auto Maintenance 324 U.S. 806 (1945)
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