[2024] KELEAT 669 (KLR)

Chelangat v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E005 of 2024) [2024] KELEAT 669 (KLR) (10 May 2024) (Judgment)

Neutral citation: [2024] KELEAT 669 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E005 of 2024

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

May 10, 2024

Between

Sharon Chelangat

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

(Being an appeal against the decision rendered by the Kenya School of Law declining admission to the Advocates Training Programme for the 2023/24 academic year as communicated 21st November, 2023 and affirmed on review on 6th February 2024 by Dr. Henry K. Mutai - Director of the Kenya School of Law)

Judgment

A. Introduction and Background. 1. The Appellant, Sharon Chelangat is a graduate of Mount Kenya University having attained a Bachelor of Laws (L.L.B.) degree with Second Class Honours - Lower Division in September 2022.

2. Being dissatisfied with the decision of the Respondent, The Kenya School of Law of 6th February 2024 declining to admit her into the Advocates Training Programme, she filed her Memorandum of Appeal to this Tribunal dated 6th February 2024. Her Appeal to this Tribunal was accompanied by an application under a certificate of urgency and a supporting Affidavit.

3. The Respondent is a State Corporation established under Section 3 of the Kenya School of Law Act 2012 and the successor of the Kenya School of Law previously established under the Council of Legal Education Act, 1995 (now repealed). Its mandate is inter-alia to train persons for purposes of the Advocates Act (Cap 16) for which it offers the Advocates Training Programme (“ATP”).

4. The Interested Party, The Council of Legal Education did not take part in this matter and was indicated to be in support of the pleadings and submissions of the Respondent. This was the position taken by counsel for the Respondent who held brief for counsel for the Interested Party herein.

5. The principal challenge in this appeal is to the decision of the Respondent to deny the Appellant admission to its ATP. That decision was taken on 6th February 2024 on the grounds that the Appellant did not have the requisite qualifications.

6. The Appellant seeks several reliefs from this Tribunal including:a.That the Tribunal quashes or sets aside the decision of the Respondent of 6th February 2024b.That the Tribunal declares that the Appellant is qualified for admission to the ATP by dint of Section 1 (a) of Schedule 2 of the Kenya School of Law Act, 2012c.That the Tribunal do issue an order compelling the Respondent to admit the Appellant to the ATP for the academic year 2024/2025.

7. The Respondent opposed the Appeal through its Replying Affidavit sworn by Fredrick Muhia on 26th March 2024.

B. The Appellant’s Appeal 8. The Memorandum of Appeal sets out the following grounds:a.The Appellant having scored a mean grade C (plus) in the Kenya Certificate of Secondary Education (KCSE), having attained a Diploma in Law and an LL.B Degree from Mount Kenya University, which is an accredited University, is duly qualified for the ATP in line with Section 1 (a) of Schedule 2 of the Kenya School of Law Act, 2012. b.The Appellant’s right to education has been infringed upon by the decision of the Respondent.c.The decision of the Respondent was made ultra vires.d.The Respondent has no mandate to regulate and monitor legal education in Kenya which is the mandate of the Interested Party.

9. In support of the Appeal, she adduced into evidence before this Tribunal her KCSE Certificate wherein she scored a mean grade of C + (Plus), a B - (Minus) in English and a C - (Minus) in Kiswahili (emphasis ours). She also exhibited her Diploma in Law Certificate with Credit II attained from Mount Kenya University on 15th July 2016.

10. The Tribunal further notes that the Appellant produced a letter of admission to Mount Kenya University dated 9th May 2017 (emphasis ours), admitting her into it’s Bachelor of Laws (LL.B) degree programme. An LL.B Second Class Honours - Lower Division degree certificate dated the 9th December 2022 is also produced by the Appellant.

11. Upon attaining these academic credentials, the Appellant applied for admission to the Respondent’s ATP. She produced as evidence a letter dated 21st November 2023 from the Respondent which denied her admission for the following reasons;“Does not have a B Plain in English or Kiswahili and admission was after 8th December 2014. LL.B transcripts are not clear. Unable to verify the Units.”

12. The Appellant sought a review of that decision upon which the Respondent wrote to the Appellant on 6th February 2024 conveying its decision affirming the decision denying her admission into ATP. The decision read in part as follows:“…..it is regretted that your application was not successful for admission due to the following reason(s):Does not meet high school qualifications. Applicant has a B - (minus) in English and C - (Minus) in Swahili and admission to LL.B. was after 8th December 2014….”

C. The Respondent’s Reply 13. In its Replying Affidavit, the Respondent states as follows;a.The Respondent’s mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Program.b.Matters of admission to the Respondent’s Advocate Training programme are exclusively provided for under Section 16 of the Kenya School of Law Act No. 26 of 2012. c.The Respondent is required by its establishing Act; the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied the Applicant is qualified, admit the Applicant to the School.d.Upon the Appellant making an application to the ATP, the Appellant was found not eligible per the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, 2012. e.Under Section 16 of the Kenya School of Law Act 2012, as read with paragraph 1 of the Second Schedule, the requirements for admission to the ATP is a mean grade of C + (plus) in KCSE with B (Plain) in English or Kiswahili languages which the Appellant did not have.f.The Appellant was relying on academic progression to be admitted to the ATP, yet the Kenya School of Law Act 2012 does not have a provision for academic progression.g.Allowing people to join ATP at the school on the basis that they had a previous unrelated degree prior to joining the LL.B degree programme would be to circumvent clear provisions of a statute and explicit determination of the Court of Appeal.h.The Appellant claims that she had obtained admission to the university to commence in 2019 and consequently cannot rely on the now voided CLE Quality Assurance Regulations.i.The Appellant's diploma is not related to law and cannot consequently be interpreted to be academic progression in the field of Law.j.The question of admission has been settled by the Court of Appeal.k.The Appellant is not qualified for admission to ATP and the Respondent was right in declining to admit.

D. The Parties’ Submissions 14. The parties filed written submissions in support of their respective positions and consented to rely on the said written submissions entirely.

15. The Appellant on her part submitted that she had satisfied the legal requirements for admission to ATP. She relied on the cases of Victor Juma v Kenya School of Law; Council of Legal Education (Interested Party) 2020 eKLR, Republic v Kenya School of Law (2019) eKLR, and Republic v Kenya School of Law & Another Ex-parte Kithinji Maseka Semo & Another. To support her argument that she had qualified under Section 1 (a) of Schedule 2 of the Kenya School of Law Act, 2012, and that Sections 1(a) and (b) of Schedule 2 of the Kenya School of Law Act, 2012 should be interpreted disjunctively.

16. In addition, the Appellant curiously argued that her qualifications should not be subjected to the Legal Education (Accreditation and Quality Assurance) Regulations 2016 as the provisions of the said Regulations cannot override statutory provisions.

17. Finally, the Appellant argued that her right of legitimate expectation and the right to education guaranteed under Article 43 (1) (f) of the Constitution of Kenya, 2010 had been violated as a result of that decision.

18. The Respondent on the other hand argued that:a.Concerning whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable the Respondent 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 resorting to other rules of statutory interpretation.b.The Respondent urged the Tribunal to adopt the golden rule approach to avoid the consequences of a literal interpretation of the wording of a statute when such an interpretation would lead to a manifest absurdity or a result that is obnoxious to principles of public policy, in this instance unfair discrimination. It relied on the case of Nairobi Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo to support this argument.c.On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent, quoted from the Kenya School of Law V Otene Richard Akomo supra to support its position that the legitimate expectation doctrine was inapplicable in this case.d.On whether the procedure to refuse admission was illegal and unreasonable the Respondent submitted that the decision was fair and just and procedurally correct.e.On the issue of academic progression, the Respondent submitted that the Appellant did not qualify to be admitted to the 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) did not provide for academic progression and further cited Kenya School of Law v Otene Richard Akomo supra that prior learning ought to be prior in law.f.The Respondent also submitted that the cut-off date for relying on the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was 30th January 2018 while she was admitted to the University for her LLB degree in 2019 (emphasis ours). The Respondent submitted that this position was upheld in HCCA 062 Of 2021 Kenya School of Law v Charity Wamuyu and HCCA E166 Of 2022 Kenya School V James Muchiri Gachoki And Duncan Kyalo Muusya and Another.

E. Analysis and Determination. I. Jurisdiction of the Tribunal. 19. The Tribunal has noted that the Respondent in its penultimate submission has taken up the issue of the jurisdiction to entertain the appeal in the following terms;“In conclusion, your Honour the matter before the Tribunal is an appeal that has sought remedies that the Tribunal does not have the jurisdiction to grant which appeal is based on faulty interpretation of the law as well as blatant disregard of decisions of the High Court and Court of Appeal.”

20. The point has been raised at the tail end of the proceedings but the Tribunal nonetheless has a duty to inquire into it being a matter that is primordial. The Tribunal is well guided by the authority in Arthur Gatungu Gathuna v African Orthodox Church of Kenya (1982) eKLR in which Justice Kneller JJ. A as he then was held;“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 (ChD). This is so even if the parties in there pleadings agree that the court has jurisdiction as these in this case did.”

21. The commencement of the inquiry on jurisdiction imports the application of 31 (1) of the Legal Education Act, 2012 which confers upon the Tribunal the mandate to inquire into any matter relating to the Act. It provides as follows;“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 there upon, and notify the parties concerned.”

22. The Tribunal notes that the dispute pitting the parties before it involves inter-alia the eligibility for admission to the Advocates Training Programme based on academic progression as formulated by the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The said regulations were promulgated based on the powers conferred by section 8 (3) (a) of the Legal Education Act, 2012 as subsidiary legislation. An inquiry on the extent of the applicability of the same to the Appellant’s application to the Advocates Training Programme is a matter involving the Act. The power to make the regulations was conferred upon the Council of Legal Education in the following terms;“In carrying out it’s functions under sub section (2), the council shall: -a.Make Regulations in respect of requirement for the admission of persons seeking to enroll in legal education programmes.”

23. The said interpretation of the law has been upheld by the pronouncement in Nairobi Civil Appeal no. E472 of 2021 – Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike – Makhandia, J. Mohamed and Kantai JJ.A held;“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, be it a college or a university.” ”

24. The Respondent has relied on the decision in Nairobi High Court Civil Appeal no. E388 of 2022 – Kenya School of Law v Paul Ndichu Maina & Another in which Justice Asenath Ongeri held that the Tribunal was bereft of jurisdiction on matters involving admission to the Advocates Training Programme. She observed as follows;“On the issue as to whether the Legal Education Appeals Tribunal had jurisdiction to hear the appeal from the appellant, I find that the issue for determination was regulated by the Kenya School of Law Act, 2012 and therefore not within the province of the Legal Education Act.”

25. The Tribunal finds that the said decision is distinguishable from the current appeal under inquiry for the reason that in this appeal the Tribunal is being called upon to consider the eligibility to the Advocates Training Programme based on the subsidiary legislation made under the statute in which it is established being the Legal Education Act, 2012. As the Tribunal has held before, the issue of admission would not be resolved by a sole reference to the Kenya School of Law Act, 2012 as regulations had been made by the interested party by dint of the Legal Education Act, 2012 to deal with enrolment requirements to the various legal education programmes including the Advocates Training Programme. In finding that the Tribunal is conferred with the requisite jurisdiction to inquire into this appeal the decision in Nairobi High Court Civil Appeal no. 166 of 2022 – Kenya School of Law v James Muchiri Gachoki & 2 Others is of relevance in which Justice Majanja upheld the Tribunal’s interpretation of the scope of it’s jurisdiction to entertain appeals on matters of admission to the Advocates Training Programme as follows;“16. The Tribunal further relied on the court’s decision in Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa (Supra) where Mativo J., (as he was then) held as follows:33. 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. The ex parte applicant's dispute distilled above in my view squarely falls within the Tribunal's jurisdiction.’17. The dispute that the learned Judge was referring to above was one where the ex parte applicant was denied admission into KSL’s ATP ‘due to lack of an equation of secondary school qualifications.’ This dispute was similar to the present one where the Respondents were denied admission to KSL’s ATP for reasons that they had not met the requisite secondary school requirements. The Tribunal, being subordinate to the High Court, was bound by the aforementioned decision and thus rightly held that it had jurisdiction to determine the appeals before it.18. On my part, I do not see any reason to depart from the settled position on jurisdiction. Section 31 (1) of Legal Education Act grants the Tribunal jurisdiction to inquire into, “… any matter relating to this Act,’’ which is an all-encompassing clause that that affirms the Tribunal’s jurisdiction to deal with matters concerning legal education arising not only within the Act itself but also from the Kenya School of Law Act under which the KSL is guided by and applies the provisions of the Legal Education Act. This ground of appeal by KSL therefore fails.”

26. In this appeal the issue of to what extent the Appellant may derive a benefit from a crystalized action with regards to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as voided has been acknowledged by the Respondent in its submissions as follows;“Further and without prejudice to the aforegoing, the appellant cannot seek to rely upon the CLE Quality Assurance Regulations as the Tribunal has stated in several decisions that the cut off for what was deemed as crystalized action for purposes of being able to rely upon the regulations was set-out in Javan Kiche v Council of Legal Education as January, 30th 2018 while she obtained admission to the university in 2019. ”

27. The Tribunal accordingly finds that it has the jurisdiction to inquire into the appeal since it is being called upon to inquire into the application of regulations made under its establishing statute.

28. As regards the grant of the relief sought, the same will be predicated on an inquiry as to the inherent merit of the appeal and the power conferred upon the Tribunal by section 35 of the Legal Education Act, 2012. The same provides;“Upon hearing an appeal the Tribunal may—(a)confirm, set aside or vary the order or decision in question;(b)exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or(c)make any other order, including an order, for costs, as it may consider just.”

II. The appeal. 29. The Appellant submits that she meets the eligibility criteria in section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 by dint of holding a Bachelor of Laws degree from Mount Kenya University a recognized University in Kenya. She has quoted the decisions of the superior court in Victor Juma v Kenya School of Law & Another, (2020) eKLR and Republic v Kenya School of Law & Another ex parte Kithinji Maseka Semo & Another (2019) eKLR. From the Tribunal she has quoted LEAT Appeal no. 1 of 2020 – Bethsheba Achieng Nyamiwa v Kenya School of Law (2020) eKLR. The Tribunal finds that the position as submitted by the Appellant was the law as it existed before the decision of the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 – Kenya School of Law v Otene Richard Akomo & 41 Others was decided. In the said decision Justices Asike – Makhandia, J. Mohamed and Kantai JJ. A. adopted a conjunctive and holistic interpretation of sections 1 (a) and (b) of the second schedule to the Kenya School of Law Act, 2012 by finding that the existence of a Bachelor of Laws degree from a recognized university in Kenya was not the sole consideration to be accorded while addressing eligibility to the Advocates Training Programme. The court found that the Respondent was enjoined to also have regard to the minimum secondary school qualifications of an applicant prior to enrolling to the undergraduate LL.B degree programme. The same require an applicant to have attained a minimum of a mean grade of C + (plus) and a B (plain) in English or Kiswahili languages at the Kenya Certificate of Secondary Education examinations. In this matter, the Appellant had scored a mean grade of C+ (plus) but had grades B - (minus) in English and C - (minus) in Kiswahili languages at her Kenya Certificate of Secondary Education examinations. The Appellant failed to attain the minimum grade of B plain in either English or Kiswahili languages and to the said extent the decision of the Respondent declining her eligibility to the programme cannot be faulted. The Court of Appeal in Otene supra pronounced itself as follows;“For the avoidance of doubt, the basic requirements for KCSE under section 16 and the Second Schedule of the KSL Act are for both applicants who studied in or out of Kenyan universities. The section should be read as a whole and not in bits and pieces and the three conditions which are precedent must be met before admission to the KSL. Failure to meet the basic requirements of the qualifications in KCSE as envisaged in the above section renders one’s application incompetent and hence ripe for rejection by the appellant. The regulations cannot override the provisions of an Act of Parliament.”

30. The Appellant also contends that the decision to decline admission to the Advocates Training Programme violated his legitimate expectation and the constitutional entitlement in her view to education under article 43 (1) (f) of the Constitution of Kenya, 2010. The Tribunal finds that the Appellant’s grievance on the violation of the right to education is predicated on a misapprehension as the limitations attached to it include the having of the proper set qualifications in the law for the course. In this matter the Appellant cannot fault the decision of the Respondent finding that she had not met the minimum languages qualification at the Kenya School of Law. The Tribunal is well fortified by the decision in Otene supra in which the learned Judges of Appeal held;“Thus, the rejection of the respondents who did not meet the above requirement was not a violation of their constitutional rights or infringement of any of their rights to education provided for under article 43 (1) (f); that the decision by the appellant declining each and every individual respondent into the ATP for 2020/2021 academic year was made within the law and is upheld.”

31. On legitimate expectation as taken up by the Appellant that she was entitled to admission predicated on the fact that she held a Bachelor of Laws degree from a Kenyan University the Tribunal finds that the contention is unsound. For her call into aid the good administrative law doctrine she ought to establish that it’s application will not offend the law. In this appeal the interpretation accorded to the provisions of sections 1 (a) and (b) of second schedule to the Kenya School of Law Act, 2012 is a conjunctive and holistic one whereby the Kenya Certificate Secondary Education grades must first be in place as set by the law before reverting to an inquiry on the genesis of the applicant’s law degree and its recognition.

32. In this matter as already adumbrated by the Tribunal the Appellant’s grades in the languages were deficient to the set minimum in the statute. She could not therefore invoke the doctrine of legitimate expectation. The said position is well espoused by the decision of the court in Royal Media Services Limited & 2 Others v Attorney General & 8 Others (2014) eKLR in which it was held;“Legitimate expectation cannot prevail against statute. See Mason Hayes – Curran; 2008. ‘The Doctrine of Legitimate Expectation; Recent Developments.’ I may also add that legitimate expectation, however strong it may be, cannot prevail against express provisions of the constitution. If a person or a statutory body premises a certain relief or benefit to a claimant or undertakes to do something in favour of a claimant but in a way that offends the constitution, the claimant cannot purport to rely on the doctrine of legitimate expectation to pursue the claim or the promise.”

33. The inquiry by the Tribunal now proceeds to the final stage as to what extent the Appellant may derive benefit to the eligibility criteria set by the Council of Legal Education on academic progression as set-out in the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Tribunal notes and with due respect to the Appellant’s Advocate that the submissions made on her behalf seek to disassociate her from any consideration of eligibility based on the criteria under the regulations while adopting the path of section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 which does not at all advance her case. It is submitted as follows;“Your Honour, borrowing from the jurisprudence discussed above, it is without a doubt that the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 cannot override the express provisions of section 16 of the KSL Act which prescribe the admissions requirements to the ATP as those stipulated in the second schedule to the Act. Specifically, the Regulations cannot override the provisions of section 1 (a) of the second schedule. Had parliament desired any other qualifications to apply over and above the qualification held by the ex-parte applicant, it would have expressly provided so.”

34. The Respondent though not averse to consideration being accorded to the aspect of the extent to which the Appellant may derive benefit from a crystalized action based on the regulations in considering eligibility to the Advocates Training Programme it however, adopts the decisions of the superior court which have held that it is not bound to follow academic progression in Paul Ndichu Maina supra and James Muchiri Gachoki & Others supra. The Tribunal finds that the decisions relied by it on this account are distinguishable from the current appeal as the eminent Judges of the superior court in the said appeals did not address themselves to the issue of crystalized actions with regard to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

35. The Tribunal will proceed to undertake the inquiry although as noted the Appellant had taken a trajectory in her submissions on the application of the regulations. The Tribunal in so proceeding recognizes that it is established to do justice and not injustice under the new legal order and it borrows the words of Moseneke DCJ, in “Transformative Adjudication, the Fourth Bram Fischer Memorial Lecture” (2022) 185 AJHR 309 at 318 in which he remarked;“The new legal order liberates the judicial function from the confines of the common law, custody law, statutory law or any other law to the extent of it’s inconsistency with the constitution. This is an epoch making opportunity which only a few, in my view of the High Court Judges have cared to embrace or grasp. A substantive deliberate and speedy plan to achieve an appropriate shift of legal culture at the High Courts and Magistrates Court is necessary. After all it is the constitution that confers substantial review power on the judiciary. However, without an appropriate legal culture change the judiciary may become an instrument of social transgression. In time the Judiciary will lose its constitutionally derived legitimacy.”

36. On this account the Tribunal notes that the Appellant secured admission to the Bachelor of Laws degree on the 9th May 2017 at the Mount Kenya University and not as submitted by the Respondent in 2019. At the time of securing admission, the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were in force having not been declared as unconstitutional for want of compliance with the Statutory Instruments Act, 2013 by Justice Maureen Odero on the 30th January, 2018 in Nakuru High Court Petition no. 20 of 2016 – Javan Kiche Otieno & Another v Council of Legal Education & Another. Regulation 5 (1) (d) of the 3rd schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 provided for a credit pass in a Diploma in Law as one of the qualifications to join a Bachelor of Laws degree. It was provided;“5. Undergraduate Degree Programme;1. The minimum admission requirements for an under graduate degree programme in law shall be: -a.a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education examination or it’s 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 recognized University, ord.a credit pass in a diploma in law examination from an accredited institution.”

37. The declaration of invalidity as issued was held not to apply retrospectively to crystalized actions on appeal in Javan Kiche Otieno & Another v Council of Legal Education (2021) eKLR by Justices Musinga (P) R. N. Nambuye and A. K. Murgor; JJ. A. at paragraph 47 as follows;“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 crystalized whilst the expunged law was in force.”

38. In this appeal the Appellant had already secured admission to the Bachelor of Laws degree programme before the Regulations were invalidated thus she is entitled to derive benefit from the notion of a crystalized action. On this account alone the Tribunal finds good ground for upsetting the decision of the Respondent declining the Appellant’s application to the Advocates Training Programme and allows the appeal.

39. The Tribunal also wishes to address the Kenya School of Law (Training Programme) Regulations, 2015 in so far as the advertisement calling for admissions to the Training Programmes at the School is concerned. Regulation 4 provides;“The Director shall publish a notice in the Gazette, in at least one newspaper with a national circulation and in the school’s website which shall invite eligible persons to apply for admission to a training programme at the school.”

40. The Tribunal notes that the pronouncements by the Court of Appeal in the decisions in Javan Kiche and Otene Richard Akomo supra have had a significant change on determining the eligibility criteria to the Advocates Training Programme by invoking the application of the concept of crystalized action and the non-retrospective application of the declaration of invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. It will be necessary to reckon the same in publishing the notice. Just as the Respondent has been doing for other changes to qualifications that arise over time. The same will be a good practice in according recognition to consumer rights under article 46 of the Constitution of Kenya, 2010 which requires the giving of information beneficial to a service being offered and also reduce the propensity for unnecessary litigation on the subject of admission criteria.

F. Disposition: 41. SUBPARA 1. That the appeal by the Appellant Sharon Chelangat against the decision dated the 21st November, 2023 and affirmed on review on the 6th February, 2024 as communicated by Dr. Henry K. Mutai – Director of the Kenya School of Law declining her application for admission to the Advocates Training Programme is allowed and the decision is quashed and set-aside.2. That pursuant to section 35 of the Legal Education Act, 2012 a declaration is issued that the Appellant is eligible for admission to the Advocates Training Programme by dint of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as they were in force on the 9th May, 2017 when she secured admission to the Bachelor of Laws degree at the Mount Kenya University then and the Respondent is ordered to admit the Appellant Sharon Chelangat to the Advocates Training Programme forthwith.3. That each party to bear own costs of the appeal.4. That a 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 10TH DAY OF MAY, 2024. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBER