Duncan & another v Kenya School of Law & another (Tribunal Appeal E039 of 2026) [2026] KELEAT 22 (KLR) (30 June 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E039/2026 MIKE DUNCAN AND WANJIRU NJERI VS KENYA SCHOOL OF LAW AND THE COUNCIL OF LEGAL EDUCATION JUDGMENT # A. INTRODUCTION AND BACKGROUND 1. This appeal was originally filed by two appellants, namely Mike Duncan(1st Appellant) and Wanjiru Njeri (2nd Appellant), arising from the decision of the Kenya School of Law (the Respondent) declining their respective applications for admission to the Advocates Training Programme (ATP) for the 2024/2025 and 2025/2026 academic years. The Council of Legal Education is joined as an Interested Party. 1. Prior to the delivery of this judgement, the 1st Appellant, Mike Duncan, filed a notice of withdrawal dated 19th June, 2026, seeking to withdraw from the appeal proceedings, which application was allowed by the Tribunal on 26th June, 2026. The appeal therefore proceeds solely in respect of the 2nd Appellant, Wanjiru Njeri. 2. The Appellant is a holder of a Bachelor of Laws (LLB) degree from theUniversity of Nairobi, attaining Second Class Honours (Upper Division). Her application to the ATP was rejected on the basis that she did not satisfy the minimum Kenya Certificate of Secondary Education (KCSE) language requirements, specifically a grade of B (plain) in English or Kiswahili, as prescribed under Section 16 and the Second Schedule of the Kenya School of Law Act. 3. The Appellant now challenges the Respondent's decision as unlawful,unreasonable, and inconsistent with constitutional and statutory principles. She seeks, inter alia, the setting aside of the rejection decision, a declaration that reliance on Section 16 is unlawful, and an order for her immediate admission to the ATP. 4. The Respondent, in its replying affidavit sworn by Lawrence Ndirangu, opposedthe appeal, arguing that admission to the ATP is governed strictly by Section 16 and the Second Schedule of the Kenya School of Law Act, which requires a mean grade of C+ in KCSE and a grade of B (plain) in English or Kiswahili. 5. The Respondent contended that the Kenya School of Law Act makes noprovision for academic progression as an alternative or supplementary route to admission into the ATP and that to admit candidates on the basis of prior degrees unrelated to the prescribed entry criteria would constitute a circumvention of unambiguous statutory requirements. The Respondent also raised a preliminary objection challenging this Tribunal's jurisdiction to entertain the appeal. 6. The Interested Party averred that it is in the proceedings solely in its regulatorycapacity as the statutory regulator of legal education and training in Kenya. It drew the Tribunal's attention to its statutory mandate under the Legal Education Act, Cap. 16B, encompassing the regulation, quality assurance, accreditation, and oversight of legal education across all legal education institutions in Kenya. 7. The Council acknowledged that the Legal Education Act, Cap. 16B,contemplates multiple pathways in legal education but emphasized that academic progression is not automatic and must comply with statutory and regulatory thresholds. The Council argued that the Appellant had not demonstrated relevant progression in law as required. 8. In her further reply, the Appellant maintained that both parties hadfundamentally misconstrued the gravamen of the appeal by reducing it to a narrow question of academic progression. The Appellant was emphatic that the core issue is the legality, fairness, constitutionality, and continued applicability of the admission criteria applied by the Respondent. In particular, she contended that the Respondent's continued reliance on Section 16 of the Act and Paragraph 1 of the Second Schedule thereto is unlawful in light of the decision in **Stephen Nikita Otinga v Cabinet Secretary, Ministry of Education & 3 Others (Civil Appeal E625 of 2023) [2025] (the Otinga decision),** and that the selective invocation of **Kenya School of Law v Otene Richard Akomo & 41 Others [2022] KECA 1132 (KLR)** whilst conspicuously failing to engage with the more recent and directly applicable ***Otinga*** decision is impermissible and contrary to the proper operation of the doctrine of *stare decisis.* 9. The Appellant further submitted that the insistence on a secondary schoolKCSE English grade as the determinative criterion for admission to the ATP, whilst simultaneously disregarding university-level qualifications obtained from accredited institutions, is irrational, disproportionate, and contrary to the principles of substantive justice and reasonableness enshrined in Article 47 of the Constitution of Kenya, 2010. On jurisdiction, the Appellant relied on Sections 29 and 31 of the Legal Education Act as expressly conferring upon this Tribunal the competence to hear and determine the present appeal. # B. PARTIES' SUBMISSIONS 1. The Appellant submitted that the Respondent's reliance on KCSE entryrequirements was unlawful, unconstitutional, and inconsistent with the Court of Appeal's decision in ***Otinga,*** which affirmed the principle of academic progression. The Appellant contended that having been lawfully admitted to and graduated from an accredited Bachelor of Laws programme under the regulatory oversight of the Council of Legal Education, she had a legitimate expectation of progression to professional legal training. 2. She further maintained that the rejection of her application on the basis ofsecondary school grades, notwithstanding her subsequent academic qualifications, violated her rights to fair administrative action and equal treatment. She accordingly urged the Tribunal to allow the appeal, set aside the impugned decision, direct her admission to the ATP, and award her costs. 3. The Respondent did not file any submissions. 4. The Interested Party opposed the appeal and submitted that the nullificationof the Kenya School of Law Act admission criteria by the Court of Appeal merely removed a statutory impediment and did not confer an automatic right to admission to the ATP. The Council argued that admission remained subject to compliance with the applicable academic progression requirements and contended that the Appellant's qualifications did not satisfy the requisite standard of academic progression in law, rendering the rejection of her application lawful. ## C. ANALYSIS AND DETERMINATION 1. Having regard to the pleadings, responses, and submissions by the parties, theTribunal identifies the following issues for determination: * + 1. ***Whether this Tribunal has jurisdiction to hear and determinethis appeal.*** 2. ***Whether the Respondent's denial of admission to theAppellant is lawful.*** * 1. ***Whether this Tribunal has jurisdiction to hear and determine thisappeal*** 1. The Respondent raised a preliminary objection challenging the jurisdiction ofthis Tribunal. Sections 29 and 31 of the Legal Education Act, Cap. 16B, expressly establish the Legal Education Appeals Tribunal and confer upon it jurisdiction to hear and determine appeals relating to legal education and training, including disputes concerning decisions made under the legal education framework. 2. The present appeal concerns admission into the Advocates TrainingProgramme, the interpretation and application of statutes governing legal education, and the constitutional validity of admission criteria applied within the legal education framework. It falls squarely and unambiguously within the jurisdiction conferred upon this Tribunal by the Legal Education Act. Therefore, the Tribunal is properly seized of the matter and is competent to grant the relief sought. The preliminary objection is accordingly dismissed. 1. ***Whether the Respondent's denial of admission to the Appellantis lawful*** 3. Before engaging with the question of whether the Appellant satisfied theadmission requirements under the Kenya School of Law Act, it is necessary, as a matter of both logic and judicial propriety, to first resolve a prior and more fundamental question: *whether the very provisions upon which the Respondent relies to deny the Appellant admission retain any constitutional validity*. This Tribunal holds that this anterior question is of decisive importance to the determination of this appeal. 4. The Respondent's replying affidavit proceeded entirely on the premise thatSection 16 of the Kenya School of Law Act and Paragraph 1 of the Second Schedule thereto constitute valid, subsisting, and enforceable law. The Court of Appeal's decision in ***the Otinga*** case has since its delivery fundamentally altered the legal landscape governing admission to the ATP, authoritatively declaring those provisions unconstitutional. Informed and guided by that binding pronouncement, this Tribunal has in its previous decisions consistently held that those provisions can no longer constitute a lawful basis for the denial of admission, and that any decision of the Respondent premised upon them is unsustainable in law. 5. As a matter of fact, the present appeal raises no question that has not alreadybeen settled by the ***Otinga*** decision and by this Tribunal's own consistent line of authority flowing therefrom. The Tribunal is, with respect, unable to conceive of any legally defensible basis upon which a public institution exercising a statutory mandate would persist in invoking a provision that has been judicially invalidated on constitutional grounds. The proposition that every public body is bound by, and must at all times act in conformity with, the Constitution is so firmly settled as to require no elaborate exposition and this Tribunal has had occasion to say as much in its previous decisions. That the Respondent continues to conduct itself in a manner that is inconsistent with that foundational obligation is, to say the least, a matter of profound concern to this Tribunal. 1. Be that as it may, the declaration of unconstitutionality in respect of Section16 of the Kenya School of Law Act and the Second Schedule thereto does not, in this Tribunal's view, leave the admission process to the ATP without any governing criteria. The question that then arises is not whether criteria exist, but rather, what criteria legitimately apply in the absence of the invalidated provisions? This Tribunal is firmly of the view that the striking down of a statutory provision does not create a legal vacuum, nor does it confer upon an applicant an unqualified or automatic right to admission. 1. As such in the absence of the invalidated statutory provisions, the questionthat confronts this Tribunal is; what framework legitimately steps in to govern admission to the ATP? That question finds its answer in the Council of Legal Education (Kenya School of Law) Regulations, 2009, made under Legal Notice No. 169 of 2009 pursuant to the Council of Legal Education Act, Cap. 16A (the 2009 Regulations). Those Regulations were preserved upon the repeal of Cap. 16A by the express operation of Section 48(2)(a) of the Legal Education Act, Cap. 16B, which provides that the repeal of the former Act shall not affect any instrument made thereunder, and that every such instrument shall continue in force as if made under the corresponding provision of Cap. 16B. The 2009 Regulations accordingly retain full legal force as saved subsidiary legislation and constitute the applicable framework governing admission to the ATP. 1. The eligibility criteria for admission to the ATP are prescribed underParagraph 5 of Part II of the First Schedule to the 2009 Regulations. Paragraph 5 provides that a person shall not be eligible for admission to the ATP unless that person has — * + 1. *passed the relevant examination of any recognised university inKenya and holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university;* * + 1. *passed the relevant examinations of a prescribed university orinstitution, holds or has become eligible for the conferment of the LLB, and had, prior to enrolling at that institution, attained the minimum university entry requirements and a minimum grade of B (plain) in* *English and a mean grade of C+ in KCSE or its equivalent;* * + 1. *holds an LLB from a recognised university and attained a minimumgrade of C+ in English and a minimum aggregate grade of C (plain) in KCSE, and additionally holds a higher qualification such as 'A' levels, an International Baccalaureate, a relevant Diploma, another undergraduate degree, or has attained a higher degree in law; or* * + 1. *holds an LLB from a recognised university and attained a minimumgrade of C- in English and a minimum aggregate grade of C- in KCSE, and sits and passes the Pre-Bar Examination set by the Council of Legal Education as a precondition for admission.* 1. It is against these criteria that the eligibility of the Appellant must now beassessed. Her academic profile is as follows: KCSE Mean Grade — B-; KCSE English Grade — C+; Prior Undergraduate Qualification — Degree in Education (Arts); Subsequent Qualification — LLB from the University of Nairobi, Second Class Honours (Upper Division). Assessed against each limb of Paragraph 5 of the 2009 Regulations, the Tribunal finds as follows: * + 1. Under Paragraph 5(b), a minimum grade of B (plain) in English isexpressly required. The Appellant attained C+ in English, which falls below that minimum. The Appellant does not satisfy Paragraph 5(b). * + 1. Under Paragraph 5(c), the following requirements are prescribed: aminimum grade of C+ in English; a minimum aggregate of C (plain) in KCSE; an LLB from a recognised university; and a higher qualification such as another undergraduate degree. The Tribunal finds that the Appellant satisfies each of these requirements. First, the mean grade of B- in KCSE satisfies and exceeds the minimum aggregate of C (plain). Second, the English grade of C+ precisely meets the minimum English grade prescribed under this limb. Third, the Appellant holds an LLB from the University of Nairobi, a university duly recognised and accredited by the Council. Fourth, the Degree in Education (Arts) constitutes an "other undergraduate degree" within the meaning of Paragraph 5(c) of the 2009 Regulations. 1. The Appellant therefore satisfies all the eligibility criteria prescribed underParagraph 5(c) of the 2009 Regulations. The denial of her admission to the ATP is wholly unsustainable in law and must be set aside. 1. The Tribunal further observes that whilst the doctrine of legitimateexpectation is plainly applicable to the facts of this case, it is neither necessary nor appropriate to make any independent finding on that doctrine, the matter being fully disposed of on the foregoing analysis. ## D. DISPOSITION In the circumstances, the Tribunal proceeds to make the following orders: 1. That the appeal by **WANJIRU NJERI** against the decision of the Respondent is hereby allowed and the impugned decision is quashed. 1. That pursuant to Section 35 of the Legal Education Act, 2012, a declarationis hereby issued that the Appellant, **WANJIRU NJERI**, is eligible for admission to the Advocates Training Programme by dint of Paragraph 5(c) of the First Schedule to the Council of Legal Education (Kenya School of Law) Regulations, 2009, and the Respondent is hereby ordered to admit her to the Advocates Training Programme forthwith. 1. That each party shall bear its own costs of the appeal. 1. That a party aggrieved is at liberty to appeal to the High Court underSection 38(1) of the Legal Education Act, 2012, on a point of law. It is so ordered. 1. **HON. JULIANA NJIRIRI — CHAIR** 2. **HON. JOSHUA NGULU — MEMBER** 3. **HON. FELIX OKETCH — MEMBER** 4. **HON. MOSES MUNOKO — MEMBER** 5. **HON. GODANA YATANI — MEMBER** **DATED AT NAIROBI THIS 30TH DAY OF JUNE 2026** SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. JULIANA WAMAITHA NJIRIRI** **VINCENT GODANA YATANI** **FELIX OTIENO OKETCH** **MOSES SITATI MUNOKO JOSHUA MBINDA NGULU** Legal Education Appeals Tribunal Legal Education Appeals Tribunal Date: 2026-07-03 08:16:17 |