Kenya National Examinations Council v Republic & 2 others (Civil Appeal 355 of 2014) [2019] KECA 493 (KLR)

The Court reiterated that mandamus compels performance of public duties imposed by statute but cannot command how a discretionary duty is performed. Here, the appellant did not merely exercise its discretion one way; it refused outright, without reasons, to consider the 3rd respondent's application despite earlier correspondence undertaking to effect changes upon receipt of specified documents. Such refusal, together with the doctrine of reasonableness governing all discretionary power, justified the High Court's order of mandamus.

The Court examined Rule 9(1) of the KNEC Rules, 2009 which enumerates what a certificate shall contain. A gender mark is not among the mandatory particulars. The Court noted the inclusion of a gender mark was not itself unlawful and the appellant may have good reason for it, but since it is not a statutory requirement, the Judge did not err in ordering its omission from the replacement certificate.

Applying the Supreme Court's articulation of legitimate expectation, the Court found that the appellant had, in letters of December 2010 and February 2011, represented that it would consider and effect changes on certificates where genuine cases were supported by medical reports, deed polls and gazette notices. Armed with those documents, the 3rd respondent reasonably expected the changes; the appellant's subsequent summary refusal without reasons breached that expectation.

The Court rejected the contention that the 3rd respondent misled the appellant or that judicial review remedies cannot benefit individuals. It further held that although Parliament should comprehensively address the interests of transgender persons, as other jurisdictions have done (e.g., the UK Gender Recognition Act), the absence of such a framework cannot leave persons like the 3rd respondent without recourse to secure their constitutionally guaranteed dignity.