[2022] KELEAT 798 (KLR)

Alex v Kenya School of Law; Council of Legal Education (Interested Party) (Tribunal Appeal E030 of 2022) [2022] KELEAT 798 (KLR) (30 September 2022) (Judgment)

Neutral citation: [2022] KELEAT 798 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Tribunal Appeal E030 of 2022

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

September 30, 2022

Between

Kamuri Gachoki Alex

Appellant

and

Kenya School of Law

Appellant

and

Council of Legal Education

Interested Party

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 8th of March 2022 rejecting admission into the Advocates Training Programme during the 2022/2023 academic year)

Judgment

A. Background 1. The Appellant completed his Kenya Certificate of Secondary Education in the year 2000 and managed to score a mean grade of xx (plus) English x (plain) and Kiswahili xx (minus). In 2012 he applied for admission into the Diploma in Law programme at Mount Kenya university where he was admitted and completed the period of study for the said Diploma course and passed the exams that were offered after which he was awarded academic transcripts and later a certificate. He later applied for admission to undertake Bachelor of Law degree programme at Mount Kenya University, and was admitted for Bachelor of Law (LLB) Degree Programme. He studied for the mandatory four years, completed all the coursework, sat for and passed examination offered by the university and was issued with a completion letter together with the academic transcripts for the First, Second, Third and Fourth-year.

2. On January 31, 2022 he applied to be enrolled to the Advocates Training Programme (ATP) at Kenya School of Law for the academic year 2022/2023 and paid an application fee of Kshs 2,000/=. His application to join the Advocate Training Programme (ATP) at the Kenya School of Law was declined by the Director/Chief Executive Officer of the School vide a letter dated February 8, 2022.

3. The Appellant made an appeal to the Director Kenya School of Law citing his grounds for consideration on February 27, 2022. The director further rejected his appeal on March 8, 2022 vide a letter citing the earlier reason for rejection.

B. The Appeal by the Appellant 4. The Appeal is premised on the following grounds:-a.That the respondent through its Director/Chief Executive Officer had declined to admit the appellant into the Advocates Training Program (ATP) at Kenya School of Law vide the decision contained in its letter dated February 8, 2022. b.That the appellant having scored a mean grade of xx (plus) in KCSE Certificate and having been conferred a Bachelor's of Law Degree from Mount Kenya University, he was duly qualified to be enrolled to the Advocates Training Programme (ATP) at the Kenya School of Law in line with sec 1(a) schedule 2 of the Kenya School of Law Act 2012. c.That it was not the duty of the Director of the Kenya School of Law to check how one was admitted to the Bachelor of Laws Degree because that mandate is a reserve of the specific universities that offer Law as provided under section 14(4) of the Kenya School of Law act hence the Director of Kenya School of Law ought to restrict himself to only offering the Advocates Training Programme as enumerated under section 4 & 5 of the Kenya School of Law Act.d.That the decision of the Director of the Kenya School of Law in declining his application for admission to the advocate's training programme was unfair, unreasonable and discriminative.e.That the decision of the director Kenya School of Law in denying him an admission to the Advocates Training Programme was an infringement to the appellant’s right to education.f.That the decision of the Director Kenya School of Law in denying the appellant an admission to the Advocates Training Programme was based on a misrepresentation of the Law.g.That the decision of the director of the respondent wasultra-vires, unlawful and illegal as in doing so the director of the Kenya School of Law ignored the following facts:i.The appellant did his Kenya Certificate of secondary education in Kenya.ii.The appellant had a diploma in Law from an accredited university.iii.The appellant had completed the bachelors of Law from Mount Kenya University, which is an accredited university by the council of legal education.iv.The appellant had a constitutional right to education.h.That it is in the best interest of justice that the appellant is admitted to the Advocate Training programme (ATP) at the Kenya School of Law, academic year 2022/2023 whose registration closes on the March 25, 2022. i.That the Director Kenya School of Law had no legal basis to monitor legal Education in Kenya as this is the sole mandate of the Council of Legal Education.j.That due to the foregoing reasons, it was in the best interest of justice that the appellant’s appeal filed herewith be certified as urgent, be heard on priority basis and the orders sought be granted forthwith.

5. The appellant then prayed the tribunal to:a.Quash the decision of the director Kenya School of Law dated 14th of February 2022. b.Certify the matter as urgent and the appeal be fixed for inter party hearing on priority.c.Declare that the appellant qualifies for admission to ATP by dint of Section 1 (a) of Schedule 2 of the Kenya School of Law Act, 2012. d.Issue an order compelling the respondent to admit the appellant to the Advocates Training Program (ATP)for academic year 2022/2023. e.Order that costs of the appeal be borne by the respondent

C. The Respondent’s Position on the Appeal 6. The Respondent averred that the requirement for admission to the Advocates Training Programme is a mean grade of xx (Plus) in KCSE with B plain in English or Kiswahili languages, which the Appellant did not have.

7. The Respondent further stated that the Appellant was relying on academic progression to be admitted to the ATP programme yet the Kenya School of Law Act 2012 does not have provision for academic progression. That the Appellant was not qualified for admission and the Respondent was right in declining to admit him.

D. The Appellant’s Submissions 8. On whether the respondent has jurisdiction to investigate admission requirements. The Appellant submits that the respondent powers as stipulated in section 5 of the Kenya School of Law Act, 2012 do not include a mandate to investigate how one gains admission to pursue a Bachelor of Laws degree in a Kenyan University because that function as premised under Sections 8, 18 and 19 of the Legal Education Act, 2012 assign the said function to the interested party.

9. The Appellant submits that the Director of the respondent has no mandate to undertake a background check on how one gained admission to pursue a Bachelor of Laws degree in a Kenyan University as the functions of the said office is only limited to the mandate provided under section 14 (4) of the Kenya School of Law Act, 2012and hence he has no mandate to investigate admission criterion of an applicant.

10. On whether the Kenya School of law Act provides for academic progression. The Appellant submits that section b & c of the second schedule to the Kenya School of Law Act, 2012 allows the Kenya School to admit students for paralegal programmes who upon completion are eligible to join Universities in Kenya to pursue a Bachelor of Laws degree and the course units taught at the School are provided for in part {II}; of the second schedule to the Legal Education Act, 2012. The said law is the only law that governs academic programmes at the school and it administers the Bar examinations while the School offers tuition. The said law provides for academic progression.

11. The Appellant submits that the respondent on several occasions has misconstrued the law governing admission requirements' as established by the High Court whereby Justice John Mativo in the case of Republic v Kenya School of Law & Another ex - parte Otene Richard Akomo & Another, (2019) eKLR held that:“108. KSL has been so inconsistent in its interpretation of the same provisions. It has in the past admitted students from neighbouring countries having the same qualifications as possessed by the applicants in this case. Curiously, some of the cases ably cited by the KSL's counsel among them the Mwiti case and the Adrian Kamotho case involved similar issues as in these cases in which decisions were made and KSL admitted the applicants in the said cases. What is worrying is this habit of interpreting and applying the same provisions differently coming as it does from a Law School, an institution whose duty is to train lawyers. As earlier stated, there are two common components of the rule of law, namely, the predictability of the law and the coherence of the legal system as a whole.”

12. The Appellant submits that his incessant inconsistent interpretation and application of the same provisions by the KSL despite clear judicial pronouncements on the subject and selectively citing decisions or paragraphs which are perceived to be favorable to their position is a direct affront to the principle of the predictability of the law and the coherence of the legal system as a whole.

13. On whether the applicant is eligible for admission to the advocate-training programme. The appellant submits that the Director Kenya School of law ought to have restricted himself to the provision of section 1(a) of the second schedule which makes the appellant eligible for admission and not to discriminatively rely on the Kenya Certificate Of Secondary Education. Further inRepublic v Kenya School of Law & Another ex - parte Kithinit Maseka Semo & Another, (2019) eKLR in which Justice John Mativo while affirming the same held;“27. At the centre of this issue is section 16 of the KSL Act. The section 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 Section 1 of the Second Schedule to the KSL Act. The said section provides that 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… 48. Since no legislature ever intends to give two simultaneous inconsistent commands, every statute must if possible be reduced to a single, sensible meaning before it is applied to any case....m50. Guided by the authorities cited above and the ordinary meaning of the word "or" in the context of the provision under consideration, it is my view that the use of the word "or" immediately after the semicolon at the end of the sentence in section 1 (a) of the second schedule introduces another possibility, the first possibility being the category referred to in paragraph (a), that is:- "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." 51. The ex parte applicants hold Bachelor of Laws degrees from a recognized University in Kenya. By dint of the above provision, they qualified for admission to the ATP. To suggest otherwise, is in my view an insult to the above provision, which is framed in a simple and clear language. A contrary interpretation is misguided and unfaithful to the provision. It follows that any decision emanating from such a misguided interpretation cannot be read in a manner that is consistent with the enabling provision."

14. The appellant submits that the above findings by justice John Mativo confirms that the applicant is eligible for admission based on the requirement of section 1 (a) of the second schedule of theKSLAct.

15. The Appellant further submits that in Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR at paragraph 110;“Given the diverse nature of the persons targeted under categories (a) and (b) of the Second Schedule of the KSL Act, it is obvious that their qualifications cannot be similar. It is for those reasons that I echo the position that category (a) and (b) are different hence the visible use of the word 'or'."

16. The Appellant submits that this Honourble Tribunal be pleased to find that indeed the appellant having satisfied the requirement of Section 1(a) of the 2nd Schedule of the Kenya school of law Act qualify for admission to the advocate Training programme and consequently, the decision of the respondent be quashed and the tribunal issue an order compelling the respondent to admit the appellant to the advocate training programme by dint of Section 1(a) of the second schedule.

E. The Respondent’s Submissions 17. On whether the Tribunal has jurisdiction over the matter the Respondent submits that the LEAT was created by the Legal Education Act under Part VI and its jurisdiction under that Part, is to hear appeals matters arising out of the LEA. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act.

18. The Respondent submits that this Honourable Tribunal's jurisdiction is limited to matters that relate to the Legal Education Act 2012 which states in section 31(1) that:“31. Jurisdiction of Tribunal(1)The Tribunal shall, upon 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 this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”

19. The respondent submits that the Tribunal is a creature of the act which was enacted to establish it in this instance, the Legal Education Act which is an act 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.

20. The Respondent submits that Section 30 flows from section 29 which established LEAT, spells out its purpose and specifies the membership and crucially, section 31 grants the Tribunal jurisdiction on any matter relating to this Act, it submits that it is clear that these sections do not expressly confer upon Tribunal power to adjudicate matters that are outside the scope of theLEA2012.

21. On whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable the respondent submits inter alia that in constructing a statutory provision, the first and foremost rule is that of literal construction. If the interpretation is unambiguous and the legislative intent is clear then the meaning is applied without resort to other rules of statutory interpretation. The respondent urges the Tribunal to adopt an interpretation that will not only make the statutory provisions on admission operative and workable, but also to make them operative in a just and reasonable manner.

22. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The respondent submits that the Appellant did not meet the admission criteria.

23. On whether the procedure to refuse admission was illegal and unreasonable the respondent submits that its hands were tied by statute and that the decision was fair and just and procedurally correct.

24. On the issue of academic progression the Respondent submits that the appellant does not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, which is the Kenya School of Law Act 2012, as amended by Statute Law Miscellaneous Amendments Act(No 18 of 2014) does not provide for academic progression.

25. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellant's argument that because he had obtained his LLB degree, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous. The Respondent submits that this could not have been the intention of Parliament, as this creates two admission criteria for local universities and foreign universities. The Respondent submits that this would create an outright absurdity.

F. Analysis and Determination 26. The respondent has taken up the issue of the jurisdiction of the Tribunal to entertain the appeal by contending that the impugned decision was taken under the Kenya School of Law Act, 2012 while the Tribunal is not established therein. It is the finding of the Tribunal that the appeal involves a question of qualification to a legal education programme in this case being the Post Graduate Diploma in Law being offered by the respondent. The body reposed with the duty to make regulations on enrolment to the said Programme is the interested party. The Tribunal is so fortified by section 8 (3) (a) of the Legal Education Act, 2012 which provides;“In carrying out its functions under sub-section (2), the Council shall –a.Make regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes; ...”

27. Indeed the interested party did pursuant to the powers conferred by the statute in issue make the Regulations being the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which both the appellant and the respondent have extensively submitted on the applicability or otherwise of the same. The Tribunal is thus being called upon to inquire into the eligibility of the appellant to join a legal education programme vis-à-vis the decision taken by the respondent as a legal education service provider. The Tribunal is well guided by the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR by Justice Antony Mrimaas follows at paragraph 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.”

28. The Tribunal finds that the appeal relates to a hybrid dispute arising not only under the Kenya School of Law Act, 2012 but also under the Legal Education Act, 2012 which by dint of section 31 (1) therein empowers the Tribunal to inquire into it. The same provides;“The Tribunal shall upon 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 this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”

29. Indeed this confirms the submission of the appellant that the relationship of the interested party and the respondent is one of interdependence as opposed to independence. The respondent cannot operate in isolation as it requires the interested party which sets the Bar examinations that cover 60% of the course marks for the Advocates Training Programme.

30. Also the Tribunal finds that the matter of progression in the legal profession is one that is pitting the parties. The position of the appellant being that progression is applicable by dint of the Legal Education Act, 2012 by dint of section 8 (3) (c) therein. The same provides;“In carrying out its functions under subsection (2), the council shall ...(c)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.”

31. The position of the respondent is that progression is not embodied in the Kenya School of Law Act, 2012 and thus it cannot reckon the appellant’s Diploma in Law as part of consideration for eligibility to the Advocates Training Programme. The Tribunal finds by proceeding to determine the applicability or otherwise of progression it will be well exercising its juridical mandate to determine the appeal.

32. The Tribunal has considered the submission of the appellant on the fact that the jurisdiction of the Tribunal has been decided before having regard to the application of the doctrine of stare - decisis. The decisions of the Tribunal constitute horizontal precedents as opposed to vertical precedents and a Tribunal is not bound by it’s previous decision. The Tribunal is well guided by the authority in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, as follows (para 196), the court expressed itself as follows:“Article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this Court are binding on all other Courts in the land. The application, utility and purpose of this constitutional imperative are matters already considered in several decisions of this Court: Jasbir Singh Rai v. Tarlochan Singh Rai & Others, and quite recently, in George Mike Wanjohi v Steven Kariuki & Others Petition No 2A of 2014. “In addition to the benchmark decisions to which this Court adverted in Wanjohi v Kariuki (supra), regarding the importance of the doctrine of stare decisis, we would echo the dictum in Housen v Nikoaisen (2002) 2 SCR:‘It is fundamental to the administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced … should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationships between the courts’.”

33. On the appeal by the appellant, the decision issued on the March 8, 2022 was to the effect that he failed to meet the minimum entry grade of a mean of a B in English or Kiswahili plus in the Kenya Certificate of Secondary Education examinations as required by the Kenya School of Law Act, 2012 in order for him to be eligible for admission to the Advocates Training Programme. The Tribunal has examined the material placed before the respondent accompanying the application to the Advocates Training Programme of relevance being the Kenya Certificate of Secondary Education results, the Diploma in Law from Mount Kenya University and the Bachelor of Laws degree from Mount Kenya University.

34. On the application of the provisions of sections 1 (a) and (b) of the Second Schedule to the Kenya School of Law Act, 2012 the Tribunal finds that the appellant can only be subjected to the scrutiny in 1 (a) in considering his eligibility to the Advocates Training Programme. He cannot be simultaneously subjected to both. The provisions state;“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 x (plain) in English Language or Kiswahili and a mean grade of x (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.”

35. The holistic approach of statutory interpretation relied on by the respondent as held in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR has been faulted. The Tribunal is guided by the pronouncements in Sabrina Jelani Badarine v Kenya School of Law, (2022) eKLR in which Justice John Mativo held at paragraph 20 as follows;“20. An attempt by the applicant herein in Republic v Kenya School of Law ex parte Victor Mbeve Musinga to rely on Peter Githaiga Munyeki v Kenya School of Law was faulted by the court in the above decision on grounds that the said decision ignored the Supreme Court decision referred to above in which the Apex Court construed the meaning of the word “or” in a statutory provision. Simply put, the said decision went against Article 163 (7) of the Constitution and therefore it is bad law. By now it is manifestly clear that the provisions cited by the applicant in this case have been the subject of numerous court decisions. Even in the judgment now sought to be set aside, the court spared time, ink and paper and interpreted the same provisions following previous decisions on the same provisions. Despite the many decisions on the same subject, the applicant now pretends that the same provisions have never been interpreted.”

36. The Tribunal in further finding that the appellant ought only to be subjected to section 1 (a) of Second Schedule to the Kenya School of Law Act, 2012 is so fortified by the decision in Stephen Kipkemei Rutto v Kenya School of Law & Another(2022) eKLR in which Justice J A Makau held;“31. 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…A declaration be and is hereby issued that the Petitioner is eligible for admission to the Advocates Training Programme (ATP) having met the requirements under the Second Schedule 1 (a) for admission to the Diploma in Law (Para- Legal Studies) Programme, Second Schedule 2 (d) for admission to the Undergraduate Degree Programme and Second Schedule (1) (a) for admission to the Advocates Training Programme (ATP).”

37. The respondent has raised the issue of discrimination over the application of the law on admission to the Advocates Training Programme as between applicants from recognized universities in Kenya and those from foreign universities. The Tribunal finds that the creation of the two categories for admission to the Advocates Training Programme 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 ensuring to keep to it’s constitutional duty of judicial independence 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.

G. DispositionIt is decreed as follows:-a.That the appeal is allowed and it is declared that the appellant qualifies 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. b.That the decision of the Director of the Kenya School of Law dated March 8, 2022 declining the appellant’s application to the Advocates Training Programme as made by Dr H K Mutai Director of the Kenya School of Law is quashed and the appellant be admitted to the Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.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 30TH DAY OF SEPTEMBER, 2022. ROSE NJOROGE – MBANYA - (MRS.)CHAIR PERSONEUNICE ARWA - (MRS.)MEMBERRAPHAEL WAMBUA KIGAMWA (MR.)MEMBERSTEPHEN GITONGA MUREITHI (MR.)MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR