[2022] KELEAT 803 (KLR)

Adam v Council of Legal Education (Appeal E033 of 2022) [2022] KELEAT 803 (KLR) (28 October 2022) (Judgment)

Neutral citation: [2022] KELEAT 803 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E033 of 2022

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

October 28, 2022

Between

Allaudin Adam

Appellant

and

Council of Legal Education

Respondent

(Being an appeal against the decision of the Council of Legal Education as communicated on the 1st August 2022 by the Respondent’s Secretary/ Chief Executive Officer- Dr. Wambua Kituku)

Judgment

A. Introduction. 1. The appellant, Allaudin Adam lodged an appeal dated August 5, 2022, with the Tribunal against the respondent, the Council of Legal Education. The prayers sought are:-a.The production of original answer booklets for Registration Number 1849/19 to ascertain the actual results scored in ATP 100 Civil Litigation Bar Examination.b.Special Damages:- Air Ticket - Kes 350,000/=

Visa -Kes 25,000/=

Exam Registration Fees _ -Kes 30,000/=

General Damages -Kes 2,500,000/=

Pain and Suffering from emotional and psychological distress

Costs of the Suit -Kes 250,000/=

B. Background of the appeal. The Appellant’s appeal. 2. The Appeal is grounded on the following summarized facts:-a.In November 2021, the appellant sat for a retake in ATP 100 Civil Litigation, and the transcript issued to him on January 29, 2022 by the Respondent indicated that he had a pass of 67% in the unit.b.In April 2022, he sat for examinations in another unit, conveyancing law, and results were released in July. The Respondent issued a transcript dated July 11, 2022 which did not have results for ATP 100 Civil Litigation.c.On July 20, 2022, the appellant went to inquire with the Respondent and was issued with a transcript indicating that he had a 15% in ATP 100 Civil Litigation which is a fail.d.On August 1, 2022, the appellant again went to inquire with the respondent and was issued with a transcript indicating he had a 55% and an X in ATP 100 Civil Litigation. According to the respondent’s examination procedures, an X means no written examination, which according to the appellant was a contradiction to the 55 marks.e.On the said August 1, 2022, the appellant received a letter from the respondent which stated that in November 2022, he had scored 20 out of 60 which is a 33%.f.Based on the transcript of January 29, 2022 wherein he had scored 67% he did not register for a retake of the ATP 100 Civil Litigation as his marks were above the pass mark.g.He claims that the actions of the respondent led him to doubt the credibility of the results in ATP 100 Civil Litigation after the production of several transcripts with varying results.h.The appellant further went on to state that he is a lifetime ear, nose, and throat patient due to an ear perforation and was scheduled for surgery on July 17, 2022 in India, and upon receipt of the respondent’s information he was not able to travel as scheduled to resolve the matter.

3. To buttress his arguments, the appellant annexed documents as evidence of what he had stated.

The Respondent’s Response. 4. The respondent, on the other hand, opposed the appeal and in this regard filed a Replying Affidavit dated October 6, 2022 and sworn by Emmanuel Wambua Kituku who is the Secretary/Chief Executive Officer of the Respondent. He deposes that:-a.It employs an Enterprise Resource Planning (ERP) system to assist it in its administration of the ATP examinations. The system enables candidates to download provisional transcripts upon release of the examination results.b.Upon release of the November 2021 results, the ERP system exhibited errors and some of the candidates’ marks or scores were doubled, while in other instances such as re-sits, the coursework marks were erroneously added onto written examination marks;c.In the case of the appellant, the system doubled his marks in ATP 100 Civil Litigation. The correct mark attained by the appellant in ATP 100 Civil Litigation was 20 out of 60 which is 33. 33% and due to the doubling of his, marks he was depicted as having scored 67% on that paper. The respondent annexed a copy of the cover page of the appellant’s examination booklet.d.The appellant required a minimum of 30 marks out of 60 to pass the examination.e.It is when the errors were corrected and invalid marks removed from the system that the appellant downloaded the provisional transcript that did not have marks for ATP 100 Civil Litigation.f.Upon the appellant notifying the respondent of the missing marks, the system was updated and reflected the marks of 15% obtained by the appellant in the April 2021 exams which was now reflected in the transcript of July 20, 2022. g.The provisional transcript of August 1, 2022 showed an 'X' in the results section which means an error in the results indicated in the transcript.h.On August 1, 2022, following verification of the Appellant’s mark from its manual records, the respondent informed the appellant of the correct marks he had attained in ATP 100 Civil Litigation.i.Technology is not error-free.j.Contents of provisional transcripts can be changed upon verification of automated results compared to manual records.

5. The respondent denies that it was negligent in this case and avers that the Tribunal lacks jurisdiction to grant the prayers as sought.

C. Submissions.Both parties agreed to canvass the matter by way of written submissions and directions on the filing of submissions were issued by the Tribunal accordingly.The Appellant’s Submissions. 6. The appellant through his advocate, initially filed submissions alluding to matters of admission and academic progression to the Advocates Training Programme. The submissions are dated July 13, 2022 in which he listed 3 issues for determination as follows:a.The jurisdiction of the Tribunal to entertain this appeal.b.The appeal on the applicable minimum requirements for the appellant to be admitted to the Advocates Training Program (ATP).c.Whether the appellant is entitled to the reliefs sought.

7. Concerning jurisdiction, the appellant states that the appealed administrative decision should be considered broadly in light of the Legal Education Act and the Kenya School of Law Act given that both the Kenya School of Law and the respondent jointly administer the ATP examinations. The appellant further relies on section 31 of the Legal Education Act, 2012 which determines the jurisdiction of the Tribunal. He also quotes section 8 (3) (a) and (c) which provides for academic progression in pursuit of academic excellence. Finally, he relies on the cases of Kibore Wangui Lucia & 4 Others V Kenya School of Law; Council for Legal Education (interested Party) 2021 (eKLR), Leon Kamau Kimani V Kenya School of Law; Council for Legal Education (interested Party) 2021 (eKLR), Nichodemus Okoth V Kenya School of Law; Council for Legal Education (interested Party) 2022 (eKLR) and Robert Uri Dabaly Jimma V Kenya School of Law and Another 2020 (eKLR);

8. On the minimum requirements for admission to the ATP, the appellant relies on Section 16 of the Kenya School of Law Act, 2012 as read together with Section 1(a) and (b) of the Second Schedule to the Act as amended by the Statute Law (Miscellaneous) (Amendment) Act, 2014. He submitted that he was qualified for admission to Advocates Training Programme.

9. Finally, the appellant concluded that he had demonstrated that he was entitled to the reliefs sought.

10. The appellant again filed submissions dated the September 9, 2022 in which he listed the following issues for determination as follows:-a.Whether the respondent acted negligently in issuing transcripts with varying occasions in respect of the ATP 100 Civil Litigation results for the Advocates Training Programme examinations?b.Whether the respondent as a consequence of the negligence violated the appellant’s right to article 35 of theConstitution of Kenya, 2010 to access of information?c.Whether the respondent as a result of negligence violated the appellant’s economic and social rights to education as provided for in section 43 of theConstitution of Kenya, 2010?d.Whether the appellant is entitled to the reliefs sought?e.Whether the appellant is entitled to an order for the costs of the appeal?

11. The appellant submitted that the respondent had acted negligently by issuing varying decisions in respect of the ATP 100 Civil Litigation examinations on 5 occasions.

12. Concerning whether the respondent is obligated to produce the original answer booklet of the appellant, the appellant relied on Article 31 of theConstitution of Kenya, 2010 and sections 4 and 5 of the Access to Information Act, no 31 of 2016. By way of specific interest was the fact that under article 31 (2) of theConstitution of Kenya, 2010 the appellant sought to fortify the entitlement to correct or delete; untrue or misleading information that affects the person.

The Respondent’s Submissions. 13. The Respondent summarized the issues for determination as follows:a.Whether the respondent had acted negligently in issuing transcripts severally, which had varying results in the CLE Bar examination for ATP 100 Civil Litigationb.Whether the respondent is legally obligated to produce the original answer bookletc.Whether the respondent violated the appellant’s right to education andd.Whether the appellant is entitled to the reliefs sought

14. On the first issue, which is whether the respondent was negligent in handling the appellant’s case, the respondent submitted that although it owed the appellant a duty of care, it did not breach that duty because the errors experienced in the case were system errors. It relied on the case of Anastassios Thomos V Occidental Insurance Company Limited (2017) eKLR. It also relied on the case of Pope John Paul’s Hospital and Another V Baby Kasozi (1974) EA 221where it was held that the fact that something went wrong is not in itself evidence of negligence. The respondent further relied on the Supreme Court Case of Odinga & 16 Others V Ruto and 10 Others 2022 eKLR where the court recognized that system errors can occur;

15. Concerning the prayer for the release of the answer booklet, the respondent submitted that the same is its property and in the absence of a legal duty or obligation, the Tribunal cannot compel it to produce and/or provide copies thereof. It relied on the cases of Republic V Council for Legal Education Ex-Parte Edward Onwong’a Nyakeriga 2017 eKLR and YA Suing through AAM as the guardian and next friend V the Attorney General & 4 Others 2018 eKLR where the court declined to grant similar orders

16. The respondent further submitted that the appellant had not demonstrated that his right to education has been violated.

17. Concerning whether the orders sought can be granted, the respondent submitted that:a.It has no legal obligation to produce the examination booklet.b.The appellant obtained 20 out of 60 marks which translates to 33% which is below that pass mark and therefore cannot translate to a pass.c.There was no evidence of loss and injury suffered to be entitled to damages.

D. Analysis and determination. 18. The Tribunal has analysed the appeal however, it will not address the submissions by the appellant on admission to the Advocates Training Programme as the same are not germane to the factual setting of the appeal. Thus, the matters for consideration in this judgment are as follows:-a.Whether with the varying results for ATP 100 Civil Litigation issued by the respondent to the appellant, it is possible to confirm the appellant’s accurate results for ATP 100 Civil Litigation?b.Whether the Tribunal has jurisdiction to issue the orders sought?c.What remedy is the appellant entitled to if any?

19. The Tribunal is duty-bound to raise the issue of its jurisdiction suo - moto. We do derive guidance from Arthur Gatungu Gathuna v African Orthodox Church of Kenya, (1982) eKLR; in which Justice Kneller; JJ A as he then was observed;'The record suggests the learned Judge took the point and if he did he was right to do so for it is pars judicis to raise and take into account any question of jurisdiction: see for example Uthwatt J in Attorney General v Dean and Chapter of Ripon Cathedral [1945] 1 All ER 479, E (Ch D). This is so even itheir parties in there pleadings agree the court has jurisdiction as these in this case did.Whether or not he would accede to any of the prayers of the parties is a different issue and will depend on, among other things, the consent of the parties or the evidence and law put before him and the exercise of his discretion to do so.'

20. The issue of access to information as taken up by the appellant is predicated on article 35 of theConstitution of Kenya, 2010, and sections 4 and 5 of the Access to Information Act, 2016. The Tribunal finds that it is devoid of jurisdiction to address a request made under the said law. Sections 7 - 13 of Access to Information Act, no 31 of 2016 set out a statutory process for access to information. A person aggrieved by a decision to deny him information ought to move under section 14 of the said Act which provides for the remedy of a review application made to the Commission on Administrative Justice. The same provides as follows;'(1)Subject to subsection (2), an applicant may apply in writing to the commission requesting a review of any of the following decisions of a public entity or about in relation to a request for access to information –a)A decision refusing to grant access to information applied for;(2)An application under subsection (1) shall be made within thirty days, or such further period as the commission may allow, from the day on which the decision is notified to the applicant.'

21. The Tribunal finds that it is bereft of jurisdiction to act under the law in question it being so guided by the authority in Charles Apundo Obare & Another v Clerk, County Assembly of Siaya & Another, (2020) eKLR in which Justice R Aburili held;'30. It is important to note that the preamble to Access to Information Act stipulates that it is an Act of Parliament to give effect to Article 35 of theConstitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes. The Act provides for an elaborate procedure for request for in the event that such request is not acceded to, section 14 thereof provides for the remedy in terms of review of the decision of the entity or person that has refused to provide access to the information that is requested.'

22. The appellant has also failed to demonstrate the law requiring the respondent to release the examination script for purposes of scrutiny. The Tribunal is guided by the authority in Republic v Council of Legal Education ex parte Edward Onwong’a Nyakeriga, (2017) eKLR in which Justice Odunga as he then was held;'In this case, the applicant has failed to satisfy the requirement that there is a duty imposed upon the respondent by common law or by statute by which the respondent is obliged to produce the applicant’s November, 2015 ATP 101 – Criminal Litigation answer booklet/scripts specifically identified as CLE NO 20131030 together with the relevant examination marking scheme for inspection and verification.'

23. On the issue of negligence and breach of educational and economic rights, the Tribunal finds that the explanation by the respondent that there was an error in its examination result generation system is a plausible and probable one. The fact of the appellant’s mark having been doubled as a result of an error from 33. 33% to 67% comes out clearly from the record. The respondent has placed before the Tribunal the cover page of the appellant’s examination booklet which he has not denied to be his by way of a statement made on oath as demonstration of his actual score. The appellant’s score is way below the prescribed pass mark for the course. The respondent has well established the onus of proof to a fact within its knowledge based on section 112 of the Evidence Act, Cap 80 which provides;'In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is on him.'

24. The fact that the error was on five occasions is not evidence of negligence as an erroneous fact howsoever number of times it recurs cannot be deemed to constitute a correct state of affairs as to the appellant’s mark for the ATP 100 - Civil Litigation course. The right to education cannot be said to have breached by the correction of an error that arose from the examination system that had been put in place to process marks. The appellant also did not demonstrate that the respondent was actuated by malice, spite or ill will in taking the action it did in reversing the erroneous state of affairs. The respondent being the expert reposed by the public with the mandate of the administration of the Bar examinations and the processing of results is best fit to duly discharge its statutory mandate unless and until it is so established there is a breach of the mandate. The public interest weighs against an interfere with the mandate. The Tribunal is so guided by the authority in Kenya National Examinations Council v Republic Exparte Kemunto Regina Ouru, (2010) eKLR in which Justices Bosire, Keiuwa and Nyamu JJ A as they then were held;'Considering the foregoing we come to the conclusion that balancing one thing against the other the balance tilts in favour of subordinating the right to be heard directly, in favour of the public interest of ensuring that national examinations results enjoy public confidence and integrity by letting the experts handle them as they deem best provided what they do is applied equally to all candidates with similar complaints against them. In view of the conclusion we have come to, it is our judgment that Ibrahim, J was in error to issue an order of certiorari, more so because, other than the alleged denial of a hearing as we strictly know it, there was no proper basis for him to interfere.'

25. On the prayer for damages, it is the finding of the Tribunal that the appellant having taken up the tort of negligence as against the respondent has not established a clear breach of duty of care. Even if the appellant was to rely on the aspect of a breach of contract, the same has not been established. But nonetheless even if it was to be established, issues of remoteness of damage would still arise based on the various claims raised by the appellant. As the claims raised would not be naturally arising and further it is not clear as to whether the respondent would have contemplated such damages if at all it was in breach. The Tribunal is so guided by the authority in Hadley v Baxendale, (1854) 9 Exch 341 which puts forth the criteria in which the courts should rely on when determining the remoteness of damage in a contract;1. 'The loss must have been foreseeable to any reasonable person in the Defendant’s position; or2. If it was not so foreseeable, the Defendant must have been in possession of particular information indicating its likelihood in the event.'

E. Disposition.a.That the appeal is found to be un-meritorious and is dismissed.b.That each party to bear own costs of the appeal.c.That any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 28TH OF OCTOBER, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR