[2023] KELEAT 376 (KLR)

Abdi v Kenya School of Law & 2 others (Appeal E020 of 2023) [2023] KELEAT 376 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KELEAT 376 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E020 of 2023

R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members

June 23, 2023

Between

Farah Ahmed Abdi

Appellant

and

Kenya School of Law

1st Respondent

Kenya National Qualifications Authority

2nd Respondent

Council of Legal Education

3rd Respondent

(Being an appeal against the decision of the Kenya School of Law dated the 20th day of February, 2023)

Judgment

A. Introduction. 1. By a memorandum of appeal dated March 31, 2023, the appellant Farah Ahmed Abdi being aggrieved by the decision of the 1st respondent, the Kenya School of Law dated February 20, 2023 revoking his admission to the Advocates Training Programme appealed against the said decision to this tribunal and joined the Kenya National Qualifications Authority as the 2nd respondent and the Council for Legal Education as an interested party.

2. The appellant seeks the following orders:a.…...Spentb.……Spentc.That the tribunal be pleased to quash the decision of the director of the 1st respondent issued on February 20, 2023;d.The tribunal issues an order compelling the 1st respondent to admit the appellant to the advocates training programme for the academic year 2023/2024;e.The costs of this appeal be borne by the 1st respondent;f.Any other order(s) as the tribunal deems just and expedient to grant

3. The memorandum of appeal was accompanied by a certificate of urgency dated March 31, 2023 and a supporting affidavit of the same date. The appellant also filed a further affidavit dated April 4, 2023 and a replying affidavit dated May 3, 2023.

B. The Appellant’s Case 4. The gravamen of the appellant’s case is that he graduated with a Bachelor of Laws degree from Middlesex University in the United Kingdom on June 29, 2020.

5. The appellant states that in September 2022, he applied to join the Advocates Training Programme (ATP) of the 1st respondent and that the said 1st respondent upon conducting its due diligence and establishing he was qualified offered him admission through a letter dated February 10, 2023.

6. According to the appellant, the training commenced on February 6, 2023 and that in a sudden turn of events, the 1st respondent sent him a letter revoking his admission to the ATP. The said letter dated February 20, 2023 reads in part as follows:“.....RE: Revocation of Admission Into The Advocates Training Programm (ATP)2023This is pursuant to our letter dated February 10, 2023 offering you provisional admission into the Advocates Training Programme (AT) 2023/2-24. Upon further scrutiny of your application, it has been observed that you hold a mean grade of C(plain) which is below the minimum qualification of C(plus) as prescribed under the Kenya School of Law Act, 2012. You also commenced your LLB Programme in 2016 which disqualifies you from sitting the “old” Pre-Bar examination prescribed under LN 169/2009Consequently your admission being void ab initio is hereby revoked and any monies paid by yourself in form of school fees will be refunded at the earliest opportunity.Yours Sincerely,Dr. Henry K. MutaiDirector/Chief Executive Officer

7. The appellant states that in revoking his admission, the 1st respondent relied on qualification alignment conducted by the 2nd respondent which erroneously awarded him an aggregate grade of C(plain) as. The appellant explained that his General Education (Advanced Level) results which had been issued by the Cambridge Assessment International Education, United Kingdom aligned by the 2nd respondent to a mean grade of KNQF KCSE C(plain). Upon appeal, the 2nd respondent dismissed the same and reiterated its earlier decision.

8. According to the appellant, the 2nd respondent arrived at its decision by erroneously relying on the Kenya National Qualifications Framework Regulations, 2018 (legal notice No 118 of 2018) which have not been tabled before the National Assembly as provided under section 11(1) of the Statutory Instruments Act and as such, the regulations contravene article 94(5) of the Constitution of Kenya. The appellant attached a letter from the Clerk of the National Assembly dated March 20, 2023 to affirm this position.

9. The appellant went ahead to state that sometime on March 2, 2022, the Solicitor General had advised the 1st respondent not to demand qualification of grades by the 2nd respondent as the regulations were void and that it should seek equation from the Kenya National Examination Council (KNEC) which has a similar mandate as the 2nd respondent.

10. The appellant states that the 2nd respondent’s reliance on the void regulations, has infringed on his constitutional rights. He also states that he was not accorded a hearing before his admission was revoked and thus his right to fair hearing was also infringed upon. He further states that having accepted his application for pre-bar and having passed pre-bar exams; the 1st respondent infringed and violated his legitimate expectation.

11. The appellant also states that the interested party approved his qualifications

C. The Respondents’ Responses. 12. In response to the appeal, the 1st and 2nd respondents filed replying affidavits dated April 20, 2023 and May 2, 2023 respectively.

13. On the part of the 1st respondent, it contends that upon application for admission into theATP, the appellant’s application was deemed qualified by the 1st respondent and admission issued to the said appellant. The 1st respondent however states that the admission was conditional subject to verification of the appellant’s representations in the application process. It states that it has no expertise in equating foreign qualifications.

14. The 1st respondent also states that the appellants shortcomings in qualifications cannot be cured by taking the old pre-bar as the new pre-bar is mandatory for graduates of foreign universities.

15. Finally the 1st respondent argues that if the 2nd respondent’s qualification was not lawful, then the remedy for the same is for the qualifications to be reconsidered owing to the fact that the question of whether the appellant is qualified for the ATP still stands.

16. On the 2nd respondent’s part, it states that it received an application dated November 9, 2022 from the appellant on alignment of General Certificate of Education qualification (Advanced Level) awarded by Cambridge Assessment International Education, United Kingdom.

17. It undertook alignment under section 4(d) of the Kenya National Qualifications Framework Act, No 22 of 2014 and the Kenya National Qualifications Framework and issued to the appellant a certificate whose aggregate was KCSE mean grade of C(pain). The aggregate is determined using subjects at GCEadvanced level.

18. The 2nd respondent denies that it relied on the Kenya National Qualifications Framework Regulations, 2018 LN No. 118 of 2018 (“the regulations”)as alleged by the appellant though it admits that it is in the process of reviewing and regularizing them and that the same is at an advanced stage of public participation before being transmitted to the Clerk of the National Assembly through the Cabinet Secretary for Education. It prays that the appeal be dismissed.

D. The submissions by the Appellant. 19. The appellant relied on written submissions dated May 19, 2023 which were highlighted orally on June 2, 2023.

20. The appellant submits on four(4) issues ofa.Illegality/unconstitutionalityb.Right to fair administrative actionc.Legitimate expectation andd.Right to education

21. On illegality and unconstitutionality of the respondent’s actions, the appellant maintains that decision of the 1st respondent was based on the 2nd respondent’s alignment of grades which was founded upon the regulations.

22. The appellant submits that even though the 2nd respondent denies relying on the regulations, in its letter of March 2, 2023 admits by implication to reliance on the regulations. The appellant quotes the letter of March 2, 2023 which reads in part as follows:“..the alignment of your general certificate of education qualification which was aligned to the Kenya National Qualifications Framework Level 2 (Secondary Certificate) certificate No KNQA CCEESE911 dated November 23, 2022 was in line with the KNQA Guidelines for Alignment of Qualifications…”

23. The appellant quotes that introduction of the KNQA Guidelines for Alignment for Qualifications as follows:“…The Kenya National Qualifications Authority (KNQA) undertakes equation and equation of basic education, middle level and higher education qualifications conferred or awarded by foreign institutions of learning or qualifications awarding bodies in accordance with the Kenya National Qualifications Framework Act No 22 of 2014 and section 10 of the KNQF Regulations, 2018

24. The appellant further states that section 10 of the regulations is the one that provides for recognition, equation and approval of foreign qualifications.

25. The appellant also states that section 4 (d) of the Kenya National Qualifications Framework Act No 22 of 2014 relates to qualifications obtained in Kenya and is therefore not relevant to his application.

26. In addition, the appellant disputes the contention by the 2nd respondent that it relied on the Kenya National Qualifications Framework in arriving at its decision because according to him, the Kenya Framework does not have provision for alignment of foreign qualifications.

27. The appellant quotes section 11(1) of the Statutory Instruments act that requires the Cabinet Secretary to present the regulations within seven (7) days of publication. Section 11(4) of the said Act provides that the instrument ceases to have effect if not presented as prescribed.

28. The above position was buttressed by letters from the Clerk of the National Assembly and the letter from the Solicitor General mentioned above.

29. On the right to fair administrative action, the appellant relies on articles 47 and 50 of the Constitution and section 4 of the Fair Administrative Action Act. He states that by failing to give reasons and explanations/ criteria used during the alignment awarding the appellant an aggregate grade of C (plain), his right to fair administrative action was infringed.

30. Concerning legitimate expectation, the appellant relies on the letter from the 1st respondent dated February 1, 2023 that confirms he passed the pre-bar examination thus upholding his legitimate expectation that he qualified for ATP. Also, the appellant contends that by issuing him with an admission letter, the 1st respondent affirmed his legitimate expectation to join the ATP.

31. The appellant concludes by stating that the actions of the respondents continue to deprive him of his right to education enshrined in article 43(1)(f)

E. 1st Respondent’s Submissions 32. The 1st respondent relied on its written submissions dated May 25, 2023 which were highlighted orally on June 2, 2023. The issues raised were:a.Whether the tribunal has jurisdiction over the matterb.Whether there was ambiguity in the admission qualificationsc.Whether the procedure to revoke the admission was illegal and unreasonable.

33. On the source and limitation of jurisdiction, the 1st respondent relied on the cases ofLSK v Centre for Human Rights and Democracy & 13 others, Bakeries Limited vRent Restriction Tribunal and Kiriti RavalNairobi HCMCC No 246 of 1981, Ex Parte Mayfair Bakeries Limited v Rent Restriction Tribunal and Kirit R (Kirti) Raval Nairobi HCMCC No 246 of 1981, and The Owners of the Motor Vessel “lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR.

34. The 1st respondent contends that the tribunal lacks jurisdiction to hear the matter as it is only to hear matters arising out of the Legal Education Act, 2012 which jurisdiction is conferred under section 31(1) of the Act and not matters outside the scope of the said Act.

35. The 1st respondent also contends that the appellant seeks the tribunal to arrogate the powers of the 1st respondent by seeking an order of admission toATP

36. The 1st respondent states that there is no ambiguity in the admission criteria for ATPand relies on the decision in Nairobi Court of Appeal civil appeal No E472 of 2021.

37. The 1st respondent relies further on the case above in stating that the decision to revoke the admission was not unlawful.

38. On whether the procedure to refuse admission was illegal and unreasonable, the 1st respondent relies on the case of Kevin Mwiti & others v Kenya School of Law & others (2015) eKLR which stated that those who sought admission after the Kenya School of Law Act, 2012 came into force had to comply with the law at the time they joined their LLB studies. The 1st respondent therefore states that the pre-bar examination is the one prescribed by section 1(b) of the second schedule of the Kenya School of Law Act. It concludes that its decision is neither illegal nor unreasonable.

F. 2nd Respondent’s Submissions 39. The 2nd respondent relies on its written submissions dated May 25, 2023 and highlighted orally on June 2, 2023.

40. It is the 2nd respondent’s submission that while aligning the appellant’s qualifications; it relied on the Kenya National Qualifications Framework Act. No 22 of 2014 and the Kenya National Qualifications Framework which it is currently implementing and is a requirement of the United Nations Educational, Scientific and Cultural Organization for member states.

41. The 2nd respondent denies that it relied on the regulations as alleged by the appellant.

G. Analysis and Determination. 42. The 1st respondent in its submissions has taken up the issue of the jurisdiction of tribunal to deal with the appeal. It argues that matters of admission to the ATP are governed by the Kenya School of Law Act, 2012 while the tribunal is established under the Legal Education Act, 2012. The tribunal has consistently held that section 31 (1) of the Legal Education Act, 2012 empowers it to deal with matters relating to admission to the said programme. The tribunal stands guided by the authority in Republic v Kenya School of Law, Kenya National Qualifications Authority & The Council of Legal Education Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR in which Justice Mativo as he then was held at paragraph 33 therein while declining to exercise jurisdiction in a similar matter as the appeal herein;“The preamble to the Legal Education Act provides that it is an Act of Parliament to provide for the establishment of the Council of Legal Education; the establishment of the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes. Section 31 of the act provides for the jurisdiction of the tribunal. A reading of the section leaves me with no doubt that the tribunal's jurisdiction is to determine an appeal made to it in writing by any party or a reference made to it by the council or by any committee or officer of the council, on any matter relating to the Act. Theex parte applicant's dispute distilled above in my view squarely falls within the tribunal's jurisdiction.”

43. The ex - parte appellant in the matter decided by the Hon Justice Mativo supra then instituted an appeal before this Tribunal based on the findings of the learned judge being Nairobi LEAT Appeal No 3 of 2019 -Kgaborone Tsholofelo Wekesa v Kenya School of Law, Kenya National Qualifications Authority & Council of Legal Education. An objection as to the jurisdiction of the tribunal to deal with the appeal was taken up. The tribunal in an interlocutory ruling disallowed the objection and the appeal proceeded to hearing until it was determined. Accordingly, the tribunal reiterates the position that it is well possessed of jurisdiction to hear and determine the appeal.

44. As regards this appeal, the impugned decision concerns the revocation of an admission granted to the appellant by the 1st respondent to the ATP. The reason for the revocation was that the appellant’s O’ level qualifications had been aligned by the 2nd respondent and found to have amounted to the equivalent of a grade C (plain) in terms of the Kenya Certificate of Secondary Education examination (KCSE). The appellant seeks to impugn the decision by the 1st respondent revoking his admission to the ATPthat was based on the alignment of grades by the 2nd respondent on an array of grounds amongst them the exercise of the mandate on equation by the 2nd respondent.

45. The tribunal has gone through the record and key amongst the documents which forms the evidence in this matter is a letter written by the Solicitor General to the 1st. respondent dated March 2, 2022 as regards the publication of invitations of applications to the ATP. In the said letter the Solicitor General advices the 1st respondent to indicate that applicants whose qualifications would require equation ought to be directed to have the said exercise undertaken by the Kenya National Examinations Council as opposed to the 2nd respondent. The reason advanced for the same being that the 2nd respondent’s regulations are the subject of invalidity for want of compliance with the Statutory Instruments Act, 2013. The said position is also confirmed by correspondence by the Clerk of the National Assembly requiring the 2nd respondent’s regulations to be laid before the house for purposes of complying with the said law.

46. The tribunal notes the position of the law as postulated by the Solicitor General coupled by the fact that the Clerk of National Assembly confirms the position in a letter as to the validity of the regulations. The allegation of invalidity of the regulations is not denied by the 2nd respondent. At paragraph 11 of its replying affidavit, the 2nd respondent confirms that it is in the process of regularizing the regulations. It however denies at paragraph 6 of its replying affidavit that it relied on the said regulations in aligning the appellant’s grades and states that it relied on section 4(d) of the Kenya National Qualifications Framework Act No 22 of 2014 as well as the Kenya National Qualifications Framework to carry out the alignment. The 1st respondent on the other hand states at paragraph 14 of its replying affidavit that if the 2nd respondent’s equation of the appellant’s qualification was not lawful, then the remedy is for the qualifications to be reconsidered as the question of whether the appellant is qualified for the ATP still subsists.

47. The tribunal notes that the matter of equation would resolve the issue of the appellant’s eligibility to the ATP a fact which even the 1st respondent well deposes to at paragraphs 13 - 14 of the replying affidavit of Fredrick Muhia it’s Academic Services Manager as follows;“That without equation of qualifications there is no way of making a determination whether the appellant is qualified for the ATP.That I am advised by my advocate on record which advice I verily believe to be true, that if the 2nd respondent’s equation of the appellant’s qualification was not lawful, then the remedy for the same is for the qualifications to be reconsidered owing to the fact that the question of whether the appellant is qualified for the ATP still stands.”

48. The tribunal holds that given that the question of the legality of the regulations has been raised by the appellant and conceded by the 2nd respondent, the 1st and 2nd respondents have a duty to consider the impact of the lack of validity of the regulations on the alignment process and take the necessary steps to ensure that alignment of grades is undertaken as per the law.

49. As regards the procedure adopted in revoking the admission the tribunal will say no more save to adopt the position by Justice George Odunga as he then was in Republic v Kenya School of Law & 2 others Ex-parte Juliet Wanjiru Njoroge & 5 others(2014) eKLR in which at paragraphs 51,"That the applicants were not heard before the 1st respondent rescinded its decision to admit them as students at the school is not contested. What the respondents contend is that the said letters were expressly stated to be provisional and were subject to further investigations by the interested party. It is however admitted by the interested party that the 1st respondent had no jurisdiction to provisionally admit the applicants to the school. This position is curiously admitted by the 1st respondent…Therefore, it is at that hearing that the applicants would have been afforded an opportunity to urge their case whether or not in the circumstances of the case the respondents were empowered to take the decision they took. This case must be distinguished from the decision in Republic v The Council of Legal Education ex parte Keniz Otieno Agira & 23 Others. In that case the applicants had not yet been admitted to the school. What was in contention was the decision by the respondents not to accredit the concerned university.Having concerned the issues raised herein it is my view and I so hold that the applicants ought to have been afforded an opportunity of being heard before the decision to rescind or revoke their admission to the school was made.”

G. Disposition. 50. The tribunal now decrees:-i.That the decision of the Kenya School of Law dated the February 20, 2023 revoking the admission of the appellant into the ATP during the 2023/2024 academic year is set-side.ii.That the application by the appellant to the Advocates Training Programme be and is hereby remitted to the 1st respondent for reconsideration and determination, based on a properly acquired equation of grades.iii.That each party to bear own costs of the appeal.iv.That any party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38 (1) of the Legal Education Act, 2012.

It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 23RD DAY OF JUNE, 2023. ROSE NJOROGE – MBANYA - (MRS.)CHAIR PERSONEUNICE ARWA - (MRS.)MEMBERRAPHAEL WAMBUA KIGAMWA (MR.)MEMBERSTEPHEN GITONGA MUREITHI (MR.)MEMBER