[2022] KELEAT 1081 (KLR)

Alex & another v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E008 & E009 of 2022 (Consolidated)) [2022] KELEAT 1081 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KELEAT 1081 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E008 & E009 of 2022 (Consolidated)

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

June 10, 2022

Between

Kamuri Gachoki Alex

1st Appellant

Boaz Kipngetich Barno

2nd Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

(Being consolidated appeals against the decisions of the Dr. H. K. Mutai - Director of the Kenya School of Law declining admission to the Advocates Training Programme during the 2022/2023 academic year)

Judgment

1. Introduction. 1. The appellants Kamuri Gachoki Alex And Boaz Kipngetich Barno by their consolidated appeals seek to challenge the decision of the respondent the Kenya School Of Law as communicated by the Director of the School declining their respective applications to the Advocates Training Programme. The appellants have also enjoined the interested party the Council Of Legal Education to the appeals. The respondent was served with the appeals and filed a replying affidavit through Mr. Fredrick Muhia it’s Academic Services Manager. The interested party was served with the appeals but did not enter appearance or file any response. The Tribunal directed that the appeals be disposed of through written submissions. The appellants filed submissions through the law firm of Biamah & Company Advocates while the respondent filed the same through Dr. Henry Mutai; Advocate. The matter proceeded with the appellant’s appearing before the Tribunal through their Advocate Ms. Adede while the respondent appeared through Ms. Pauline Mbuthu; Advocate.

2. The appeals. 2. The 1st. appellant sat for the Kenya School of Secondary Education in the year 2000. In the said examinations he attained a mean grade of a C+ (plus) with grades C (plain) in English and C - (minus) in Kiswahili. He enrolled at the Mount Kenya University for a Diploma in Law course which he successfully completed in the year 2016 with grade of Credit II. He was then admitted to pursue the Bachelor of Laws degree at the same institution which he completed in the month of December, 2021 graduating with a Second Class Honours - Lower Division.

3. He applied for admission to the Advocates Training Programme offered by the respondent in January, 2022. On the 8th February, 2022 the application was declined and a communication was done as follows;“It is regretted that your application was not successful for admission due to the following reason(s):English C (plain).Kiswahili C - (minus).Thank you.Yours sincerely,Dr. Henry K. MutaiDirector/chief Executive Officer.”

4. On the 27th. February, 2022 he appealed against the decision to the school. The outcome of the appeal has not been put forth before the Tribunal.

5. The 2nd. appellant sat for the Kenya Certificate of Secondary Education (K.C.S.E) in the year 2011. He attained a mean grade of C (plain) with a grades B - (plain) in English and C (plain) in Kiswahili. He was enrolled at the Mount Kenya University for a Diploma in Law course which he successfully completed in the year 2016 with a grade of Credit II. He secured admission in the same institution and pursued a Bachelor of Laws degree which he completed and based on his 4th. year provisional transcript issued on 10th. January, 2022 he attained a Second Class Honours - Lower Division.

6. He applied for admission to the Advocates Training Programme offered by the respondent and on the 14th. February, 2022 he received a letter declining his application in the following terms:“It is regretted that your application was not successful for admission due to the following reasons:-Applicant has not met the required threshold for KSCE grades.Thank you.Yours faithfully,Dr. Henry K. Mutai,Director/chief Executive Officer.”

7. On the 27th. February, 2022 he appealed to the School against the decision and on 4th. March, 2022 he received a response as follows:-“It is regretted that your application was not successful for admission due to the following reason(s);Reasons for earlier rejection stands.Thank you.Yours sincerely,Dr. Henry K. MutaiDirector/chief Executive Officer”.

3. The response to the appeals. 8. In response to the appeals, the respondent contends that the Tribunal is bereft of jurisdiction to entertain them as they relate to matters of admission to the Advocates Training Programme which is regulated by the Kenya School of Law Act, no. 26 of 2012 while the Tribunal is established under the Legal Education Act, no. 27 of 2012. The applications by the appellants failed to meet the required admission requirements of a mean grade of C+ (plus) and a B (plain) in English and Kiswahili in the Kenya Certificate of Secondary Education. The appellants were relying on academic progression which is not provided for in the Kenya School of Law Act, 2012. The only criteria for admission to the Programme is that set out in the Second Schedule to the Act and which guides it in considering admissions to the programme. It did notify the appellants that their applications were unsuccessful.

9. It is further contended that by allowing the appellants to rely on academic progression in gaining admission to the Advocates Training Programme it would result in application of double standards and discrimination.

4. The submissions by the parties. 10. On jurisdiction, the appellants point to sections 8 and 31 of the Legal Education Act, no. 27 of 2012 as the empowering provisions for the Tribunal to deal with the appeals. It is contended that the respondent cannot operate in sole isolation owing to the fact that the body mandated to administer examinations for persons who intend to be admitted to the Bar is the interested party and the respondent remains a delegate for purposes of admission to the Advocates Training Programme and the conduct of the examinations. Reliance is placed in the authority in Nabulime Miriam & Others v Council of Legal Education 5 Others, (2016) eKLR in which Justice Odunga held;“That the body with the legal mandate to determine the qualification for admission, registration of Applicants to the Kenya School of Law is the Council but the actual admission of students to the School is to be undertaken by the School. That the body with the legal mandate as between Kenya School of Law, and the Council for Legal Education, to set, supervise or mark Advocate Training Programme examinations is the Council though in this instance, that mandate was delegated to the School by the Council.”

11. The appellants submit that they are eligible for admission to the Programme by dint of section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 as opposed to section 1 (b) therein as they have become eligible for conferment with a Bachelor of Laws degree from the Mount Kenya University a local recognized and accredited university in Kenya. They rely in the decisions in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2021) eKLR by Justice Chacha Mwita and Republic v Kenya School of Law & Another ex-parte Kithinji Maseka Semo & Another, (2019) eKLR by Justice John Mativo. It is further submitted that the respondent based on section 5 of the Kenya School of Law Act, 2012 has no mandate to investigate how one gains admission to pursue a Bachelor of Laws degree into a Kenyan university. The said mandate is reposed upon the interested party by virtue of sections 8, 18 and 19 of the Legal Education Act, no. 27 of 2012.

12. The respondent on its part submits that the Tribunal has no jurisdiction to entertain the appeals. It is a creature of part VI of the Legal Education Act, 2012 and it ought only to hear matters arising out of the said Act. The appeal relates to the matters arising under the Kenya School of Law Act, 2012. It relies on the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, (2012) eKLR in which Justices W. M. Mutinga C. J, P. K. Tunoi, J. B. Ojwang, S. C. Wanjala and N. S. Ndungu S. JJ held;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

13. It is submitted that the appellants appeals are essentially asking the Tribunal to grant them admission to the School which will be arrogating it’s statutory duties. It relies on the decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others, (2012) eKLR in which it was stated;“Unless that restriction on the power of the court is observed, the court will ... Under the guise of preventing the abuse of power, be itself guilty of usurping power…. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

14. On double standards in considering applications to the Advocates Training Programme between applicants from local recognized universities in Kenya and foreign LLB degree holders, it is submitted that to interpret the conjunction or in a disjunctive manner will lead to discrimination. The School relies in the decision in Peter K. Waweru v Republic, (2006) eKLR. It also adopts the interpretation by Justice Chacha Mwita in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR in which he observed;“25. 25. According to the Schedule, there are two categories of persons who can be admitted to the ATP. First are those who attended local universities who fall under paragraph 1(a). The other is persons who attended universities outside Kenya who fall under paragraph 1(b) of the Schedule. Paragraph 1(a) of the Schedule does not specifically state the KCSE grades one should have. but a reading of paragraph 1(b) shows that persons who obtained LLB degrees from outside Kenya should have KCSE grades that would have enabled them join LLB programmes in universities in Kenya, and goes ahead to state those grades as a mean grade of C+ (plus),in KCSE, with B (plain) in either English or Kiswahili languages.

26. In that regard, therefore, applying the principle a holistic reading of a statute persons falling under paragraph 1(a) of the Schedule to KSL Act, must have obtained a mean grade of C+(plus) with B(plain) in English or Kiswahili languages to have qualified to join LLB programme in local universities. That is why there is reference of this requirement in paragraph 1 (b) (ii) of the Schedule. (See Adrian Kamotho Njenga v Kenya School of Law (petition No 398 of 2017).”

15. On the reliance on the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 by the appellants to advance the cause of academic progression, the respondent submits that the same are ultra - vires the criteria set in the Kenya School of Law Act, 2012. It relies on the decision in Victor Juma v Kenya School of Law & Another, (2020) eKLR in which Justice Weldon Korir held;“It is therefore my finding that the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 are not applicable in this case, and the relevant legislative instrument to be applied is the KSL Act. This means that the petitioner cannot benefit from the vertical progression recognized in the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. ”

5. Analysis and determination. a) Competence of the 1st. appellant’s appeal. 16. The 1st. appellant in his memorandum of appeal seeks relief as follows;“THAT the Tribunal be pleased to quash the decision of the Director Kenya School of Law dated the 14th February, 2022. ”

17. The Tribunal has gone through the documentation presented in support of the appeal and it is unable to find any such decision. An appeal must exist as against a decision taken up at a particular time. The appellant having not placed before the Tribunal the said decision dated the 14th February, 2022 we refrain from exercising jurisdiction in the matter. The Tribunal cannot act in the realm of speculation and quash that which does not exist. We are guided by the authority by the Court of Appeal in Republic v Mwangi S. Kimenyi ex-parte Kenya Institute for Public Policy and Research Analysis (KIPPRA), (2013) eKLR in which it was held as follows;“The learned judge in his judgment was correct in stating that the court cannot act in vain against a non-existent decision. There was no decision or letter dated 24th August, 2005 that could be called and removed into the High Court to be quashed. This being so, the learned judge erred in quashing the alleged decision of 24th August, 2004 when the said decision is non-existent. Further, the learned judge erred in issuing orders to quash the letter of 16th December, 2004 when the court had not determined that the decision made on 3rd December, 2004 was in existence. A court of law should not descend into the realm of speculation. The decision to be quashed must first be ascertained and determined to be in existence. This is the rationale for calling and removing into court a decision to be quashed. We hold that the learned Judge erred and it was not appropriate to issue the judicial review orders in this matter”.

18. Further, the 1st. appellant has confirmed that he lodged an appeal on the 27th February, 2022 against the decision declining admission to the Advocates Training Programme to the School which decision is dated the 8th February, 2022. The results of the appeal have not been placed before the Tribunal. It is therefore safe to conclude that the matter is still the subject of consideration before the School. The Tribunal is therefore unable to adjudicate upon a matter that is still the subject of consideration before the School. The 1st. appellant has in the affidavit in support of the appeal alluded to the fact that the appeal was rejected by the School however, the letter if any communicating the decision has not been placed before the Tribunal. The fact in issue is one within the appellant’s knowledge and he is bound by section 112 of the Evidence Act, Cap. 80 to place it before the Tribunal. The same provides as follows;“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 upon him.”

19. As things stand the 1st appellant has sought to use two similar processes in respect of the exercise of the same right which clearly would amount to an abuse of court process. The Tribunal invokes section 33 (3) of the Legal Education Act, 2012 which provides;“Except as is expressly provided in this Act or any Rules made thereunder, the Tribunal shall regulate its own procedures.”

20. And without determining the merits of the 1st. appellant’s appeal proceeds to strike out the appeal. The appellant will be at liberty to move the Tribunal on tendering the decision of the School on the appeal or should it not have been determined and he makes an election to abandon it by presenting a notice communicating the withdrawal duly lodged with the respondent.

b) The 2nd. Appellant’s appeal. 21. On the jurisdiction to entertain the appeal, the Tribunal notes that the appellant asserts entitlement to admission to the Advocates Training Programme by dint of academic progression. The requisite functions of the interested party in section 8 (3) (a) of the Legal Education Act, 2012 is to make regulations for persons wishing to enroll in Legal Education Programmes. The superior court has confirmed the reposition of the said function upon the interested party in the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR in which Justice Antony Mrima as follows at paragraphs 85 – 86;“85. A synopsis of the Legal Act posits that it is the Council which is at the heart of legal training and education in Kenya. The Council has powers not only to regulate and licence the legal education providers but also to supervise what and how they offer their services to the public.

86. It can, therefore, be only the case that the Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, that is a college or a university.”

22. In section 8 (3) (c) of the said Act, it provides for academic progression by requiring it to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels. The said matters are well acknowledged by both parties as having been taken up in this appeal. Accordingly, the Tribunal finds that in inquiring into the matter of applicability of progression and the mandate to set qualifications it will be discharging its mandate under section 31 of the Legal Education Act, 2012.

23. On the appeal by the 2nd appellant, it is clear that the obligation to formulate Regulations over matters of progression and qualifications for enrolling in Legal Education Programmes was reposed upon the Council of Legal Education by the Legal Education Act, 2012 since it’s enactment and based on it’s spelt-out functions as already adumbrated. The Council of Legal Education formulated the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The same in regulation 5 provided;“5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall be —(a)a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;(b)at least three Principal Passes in the Kenya Advanced Certificate of Education examination;(c)a degree from a recognised university; or(d)a Credit Pass in a diploma in law examination from an accredited institution.”

24. The Credit II grade that the 2nd appellant obtained from Mount Kenya University in his Diploma in Law was one that rendered him eligible for admission to the LLB degree and the respondent could not deny him admission to the Advocates Training Programme thereafter. It is appreciated that the state of the Regulations as it was then entitled him to pursue the said path of progression from the Diploma in Law level to the LLB degree and eventually to the Postgraduate Diploma in Law offered by the respondent. The Tribunal is well aware that the said Regulations have been declared to be unconstitutional for want of compliance with the Statutory Instruments Act, 2013 however, the court did set a rider that the declaration would not affect crystallised actions. In this appeal the crystallised action being the fact that the 2nd appellant had secured admission to the LLB degree before the declaration of invalidity was issued. The decision of the Court of Appeal is embodied in Otieno & Another v Council of Legal Education, (Civil Appeal 38 of 2018) (2021) KECA 349 (KLR) (17 December 2021) by Justices Musinga, Nambuye and Murgor JJ.A in which they held;“The record does not disclose that following gazetting of the impugned regulations, that they were thereafter laid before Parliament and adopted. In point of fact Prof. Kulundu avers; ‘16. I am aware that because Parliament was on recess at the time of the publication aforesaid, the Draft of the Regulations was never laid before Parliament in time or at all, with the consequence that the Draft became void under section 11 (4) of the Act, of course until re-published, which has not been done.’

Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above cited provision, and which shortcoming the appellants have conceded, it becomes evident that the impugned regulations were not adopted by Parliament and as a consequence, did not acquire the force of law. As such, we agree with the learned judge that they were inapplicable for want of legality, and therefore could not have been the basis upon which the appellants were denied admission to the Roll of Advocates, and we so find…Consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of the judgment. But it will not be applicable to actions already crystallised whilst the expunged law was in force.”

25. As regards the application of the Second Schedule to the Kenya School of Law Act, 2012 to the 2nd appellant, the Tribunal finds that the respondent was bound to limit itself in considering the application to the Advocates Training Programme to section 1 (a) therein. It was improper for it to seek to extend the requirements in section 1 (b) in considering the application. The conjunction ‘or’ between 1 (a) and 1 (b) can only be accorded a disjunctive interpretation. For ease of reference the said law provides;“A person shall be admitted to the School if—(a)having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or(b)having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—(i)attained a minimum entry requirement for admission to a university in Kenya; and(ii)obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and(iii)has sat and passed the pre-Bar examination set by the school.”

26. The Tribunal notes that the respondent has sought a holistic interpretation of the said law as reading the requirements in 1 (a) and 1 (b) as applying to all applicants to the Advocates Training Programme. It relies in the authority in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR. The Tribunal is unable to accede to the said position as subsequent decisions of the superior court have held that the conjunction ‘or’ creates an election and faulted the said decision. For instance in Sabrina Jelani Badawi v v Kenya School of Law (Constitutional Petition E033 of 2019) [2021] KEHC 306 (KLR) (23 November 2021) Justice John Mativo held;“Certainly, the High Court in Peter Githaiga Munyeki v Kenya School of Law contradicted not only decisions rendered by courts of coordinate jurisdiction, but also it went against the Supreme Court decision in Raila Amolo Odinga v Independent Electoral and boundaries Commission and 42 Others, which construed the word “or” as disjunctive, creating two categories. The said decision cannot be good law. Section 16 of the KSL Act bears the short title “admission requirements.” It provides that a person shall not qualify for admission to a course of study at the school, unless that person has met the admission requirements, set out in Paragraph 1 of the 2nd Schedule reproduced earlier.At the center of the Respondents refusal to admit the Petitioner is the meaning of the word “or” in legal parlance. As stated above, courts have consistently construed the word “or” to be disjunctive introducing another possibility. It would be a waste of judicial time and ink to add to what the numerous cases have decided. In this long list of decided cases on the same subject, I can usefully add Republic v Kenya School of Law & another ex parte Richard Akomo & 41 others; Council of Legal Education (Interested Party) and Republic v Kenya School of Law both of which following the Supreme Court decision and a long chain of jurisprudence on the subject held that the word “or” as used in paragraph 1 (a) is disjunctive and it creates two distinct categories.”

27. The Tribunal is further guided by the authority in Stephen Kipkemei Rutto v Kenya School of Law & Another, (2022) eKLR in which Justice J. A. Makau held;“The question then one should consider is, has the petitioner complied with the qualifications set out under (1) (a) of the second schedule to the KSL Act, 2012. In my view, the said section does not state the KCSE grades required and if indeed it was meant that the qualifications should be similar to those in (1) (b), it should have expressly stated so as discussed above. The only requirement as clearly are set is out that the Petitioner, passed the relevant examination of a recognized university in Kenya and was conferred the Bachelor of Laws degree. The Petitioner therefore qualified to be admitted to the ATP.”

28. On claims of discrimination, the Tribunal finds that the creation of the two categories for admission to the Advocates Training Programme does by dint of the sections 1 (a) and 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012 does only create a differentiation as opposed to discrimination. The legislative intention in creating the two categories is clear from the enactment. The wisdom of the legislature in enacting the law is best left to it as the Tribunal’s duty is simply to interpret the law as it is and being well guided by the doctrine of separation of powers between the judicial and legislative arms of the state. If necessity for law reform arises the legislature can be moved to effect the same.

29. Finally, as regards fair administrative action and compliance with article 47 of the Constitution of Kenya, 2010 the Tribunal finds that the respondent has run a foul the requirements therein. The communicated decision declining admission does not identify the enabling legal provision empowering the respondent to take the decision. Further, the action or decision to reject the application was materially influenced by an error of law as already discussed above. The reliance in the authority in Kenya Revenue Authority v Menginya Salim Murgani, Civil Appeal No. 108 of 2009 for the proposition that the respondent is a master of its own procedures when making decisions is improper as it is bound to make decisions within the safeguards of the Fair Administrative Action Act, 2015 and article 47 of the Constitution of Kenya, 2010 as opposed to the whims of being a master of its own procedures. In the said decision it was held;“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed.”

6. Disposition. 30. It is decreed by the Tribunal as follows:-a.that the appeal by the 1st appellant Kamuri Gachoki Alex is struck out for want of competence but without determining the merits. The appellant will be at liberty to move the Tribunal on tendering the decision of the School on the appeal before it or should it not have been determined and he makes an election to abandon it by presenting a notice communicating the withdrawal duly lodged with the respondent.b.That a declaration is issued that the 2nd appellant Boaz Kipngetich Barno is qualified for admission to the Advocates Training Programme by dint of section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 and the decision declining admission by the respondent as taken on the 14th February, 2022 and subsequently affirmed on the 4th March, 2022 is set aside.c.That an order is issued compelling the Kenya School of Law to admit the appellant to the Advocates Training Programme forthwith.d.That each party to bear own costs of the appeal.e.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 10TH OF JUNE, 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