[2022] KEHC 15458 (KLR)

Edward v Kenya School of Law & 2 others (Miscellaneous Application E105 of 2022) [2022] KEHC 15458 (KLR) (Constitutional and Human Rights) (18 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15458 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Miscellaneous Application E105 of 2022

HI Ong'udi, J

November 18, 2022

IN THE MATTER OF ARTICLES; 2, 3, 19, 20, 21, 22, 23, 165 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES; 10, 27, 40, 43, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE KENYA SCHOOL OF LAW ACT (ACTS NO. 26 OF 2012) LAWS OF KENYA AND IN THE MATTER OF THE COUNCIL OF LEGAL EDUCATION ACT (ACTS NO. 27 F 2012) LAWS OF KENYA AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT (ACTS NO.4 OF 2015) LAWS OF KENYA

Between

Maina Kithela Edward

Petitioner

and

Kenya School of Law

1st Respondent

Council of Legal Education

2nd Respondent

Director/Chief Executive Officer, Kenya School of Law

3rd Respondent

Judgment

1. The petition dated March 8, 2022 was filed under articles 2, 3, 19, 20, 21, 22, 23, 165 and 259 of the Constitution for the alleged contravention of the rights and freedoms under articles 10, 27, 40, 43, 47, 48 and 50 of the Constitution. Accordingly the petition seeks the following orders:i.An order directing the 1st respondent to consider the petitioner's application for admission to the ATP programme in accordance with the decision of this court for the current admission, 2022/ 2023 academic year.ii.That in the event the current admission is closed, an order be issued directing the 1st respondent to consider the petitioner's application for admission to the ATP programme in accordance with the decision of this court for the next admission.iii.A declaration that the petitioner was and is still entitled to be treated under the legal regime prevailing at the time as having met the qualifications prescribed under the Council of Legal Education (accreditation) regulations, 2009 and 2016 respectively, and therefore legible for admission into the Advocates Training Programme(ATP), Academic year 2022/2023, at the Kenya School of Law.iv.A declaration that the decision declining the petitioner/ applicants' admission into the ATP is a gross violation of the applicants' constitutionally guaranteed rights to education provided under article 43(1) (f) of the Constitution.v.Costs of this petition and interests thereon.

The Petitioner’s Case 2. The petition as supported by the petitioner’s sworn affidavit of even date is premised on the assertion that the 1st and 3rd respondents’ letter dated March 2, 2022 declined his application for admission into the Advocates Training Programme (ATP) for the academic year 2022/2023 at the Kenya School of Law.

3. The petitioner deposed that he sat for his Kenya Certificate of Secondary Education (KCSE) at St Luke’s Secondary School where he obtained a mean grade of B-(minus) with a B- (minus) in English and C+ (plus) in Kiswahili. He thereafter joined the University of Nairobi where he obtained his Bachelor of Laws (LLB) degree on December 11, 2020. Subsequently, he applied for admission into the Advocates Training Programme (ATP) on January 7, 2022 via the online portal provided by the 1st respondent.

4. He deposed that prior to making the application he had inquired on his suitability to join the ATP programme based on his qualifications. He informed that vide a letter dated January 13, 2021, the 2nd respondent informed him that he had met the qualifications prescribed under the Council of Legal Education (accreditation) Regulations, 2009 and 2016 respectively.

5. He however averred that the 1st and 3rd respondents’ through their letters dated February 10, 2022 and March 2, 2022 rejected his application to join the ATP programme. He appealed the respondents’ decision but the same was rejected. It’s his assertion that his right to the legal principle of legitimate expectation was violated.

6. He further deposed that the 1st and 3rd respondents’ actions were discriminatory as they had admitted other applicants with similar qualifications as he had. For the reasons set out, he stressed that the petition was brought against the respondents for the alleged violation of his constitutional rights under articles 23(1), 27(1), (2) 47(1), 165(3),(a),(b), and 258 of the Constitution.

7. He filed a further affidavit dated April 19, 2022 in response to the respondent’s reply. He deponed that in addition to the Bachelor of Laws degree, he has a Bachelor of Science degree in applied Biology, from Kenya Methodist University (2003). Master of Science Degree (Medical microbiology) from Jomo Kenyatta University of Agriculture and Technology in (2007). Doctor of Philosophy, PHD (Medicine) degree from Hirosaki University (2013).

The 1St & 3rd Respondent’s Case 8. The 1st and 3rd respondents in response filed their replying affidavit dated April 8, 2021 sworn by the 1st respondent’s Academic Services Manager. He deponed that the 2022/2023 ATP Programme was inaugurated on March 30, 2022 with a cohort of approximately 1200 students, and has an annual intake.

9. He deposed that the 1st respondent had published an advertisement inviting applicants to apply for admission to the ATP programme for the 2022/2023 academic year setting out the eligibility criteria for admission in line with the second schedule of the Kenya school of Law Act, 2012.

10. When the 1st respondent reviewed the petitioner’s application, it was realized that he fell short of the eligibility criteria as provided for under section 16 as read with paragraph 1 of the second schedule of the Kenya School of Law Act, 2012. This is since the provisions require a mean grade of C+ in KCSE with B (plain) in English or Kiswahili languages which the petitioner did not have. This conclusion was accordingly communicated to the petitioner. To this end it was contended that the 1st respondent had not violated the petitioner’s rights as alleged since they only applied the criteria as required by the law.

Submissions 11. The petitioner through the firm of Nchoe Jaoko & Company Advocates filed written submissions dated May 4, 2022 and further submissions dated July 8, 2022. Counsel begun by submitting that the refusal by the 1st respondent, to admit the petitioner into the ATP programme for the academic year 2022/2023, as contained in the 1st and 3rd respondent's letters dated February 10, 2022 and March 2, 2022 was in total violation of the petitioner's right to the legal principle of legitimate expectation.

12. Relying on the principles set out in the case of Republic v Kenya Revenue Authority, Ex parte Shake Distributors Limited [2012] eKLR counsel noted that a legitimate expectation arose when the respondents being the decision makers in respect of the subject matter, led the petitioner to believe that he would receive or retain a benefit or advantage from the respondents who are a public body. Further that the respondents would act in a certain manner and which promise was made within the confines of the law.

13. Counsel contends that the representation was clear and unambiguous. Similar reliance was placed on the cases ofR (Bibi) v Newham London Borough Council (2001(EWCA) 607, (2002)WLR 237, Republic v Kenya Revenue Authority &another Ex-Parte Trade Wise Agencies (2013)eKLR and Kenya Revenue Authority Universal Corporation Ltd (2020) eKLR.

14. Counsel submitted that the respondents vide their replying affidavit attempted to mislead the court by stating that section 16 of the Kenya School of Law Act, 2012 disqualifies the petitioner yet the provisions state that a person shall qualify for admission at the School if he meets the requirements set out in the second schedule. The said schedule 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 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.

15. According to counsel the wording of this schedule provides two distinct categories which means if one meets any of the qualifications then are eligible for admission which the petitioner has. In view of this he submitted that the 1st respondent had declared the petitioner unqualified without any basis and without affording the petitioner a hearing contrary to the law. As such it was submitted that the 1st respondent had failed on the duty to act fairly in the present case. In support reliance was placed on the case of Republic v Nakuru Water & Sewarage Services (Ministry of Environment & Natural Resources) & 2 others Ex- Parte Londra Ltd (2005) eKLR.

16. Counsel further submitted that the impugned decision was discriminatory and had exposed the petitioner to serious mental torture and cruel, inhuman or degrading treatment contrary to article 25(a) of the Constitution. This is because his peers are now continuing with theATP programme. He explained that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations as defined in the case of Peter K.Waweru v Republic (2006) eKLR. To buttress this point further counsel relied on the case ofGichuru v Package Insurance Brokers Ltd (petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment).

17. He further noted that the 1st respondent’s actions violated the petitioner’s rights under article 10(2) (b), 43(f) and 47 of the Constitution. Counsel submitted that the 1st respondent acted contrary to article 10(2) (b) in handling the petitioner's case by failing to conceptualize the requirement of impartiality which is one of the national values and principles of governance adopted in the Constitution as human dignity, equity, social justice. To this end it was submitted that article 23(1) of the Constitution enjoins this court to uphold and enforce the bill of rights in order to protect the rights of the vulnerable and the powerless in the society.

18. In rebuttal to the respondent’s denial of the meaning allocated to section 16 of the Kenya School of Law Act 2012as read with the second schedule, counsel submitted that the Supreme Court in the case of Raila Amolo Odinga v Independent Electoral and Boundaries Commission & 2 others (2017) eKLR had held that the word "or" as used in a statutory provision clearly makes the two limbs disjunctive. Similar reliance was placed on the case of Bernard Ndeda & 6 others v Magistrates and Judges Vetting Board & 2 others (2018) eKLR.

The 1st & 3rd Respondents Submissions 19. The 1st and 3rd respondents through their counsel, Dr Henry K. Mutai filed written submissions dated June 27, 2022. He submitted the issues for determination to be:i.Whether KCSE grades matter in admission to the ATP programme under the admission criteria under section 16 and second schedule of Kenya School of Law Act, 2012. ii.Whether academic progression is provided for in the Kenya School of Law Act 2012. iii.Whether the petitioner has a right to legitimate expectation and whether it was violated by the 1st and 3rd respondent.iv.Whether the 1st respondent’s employee should be liable for carrying out his lawful duties.

20. On the first issue counsel o submitted that it is settled in law that all applications to the ATP Programme are to be evaluated in keeping with the applicable time when applicants commenced their Bachelor of Laws as held in the case of Kevin Mwiti & others v Kenya School of Law & others (2015) eKLR. The court noted that those who had been admitted to LLB after the Kenya School of Law Act 2012 came into force were to comply with the provisions of the Act. Similarly those who commenced theirLLB studies before the enactment of the Kenya School of Law Act, 2012, could join the ATP programme on the basis of the admission criteria in force before the Act was enacted. It was thus on this basis that the application advertisement was issued.

21. Counsel moreover submitted that section 16 as read with the second schedule of the Kenya School of Law Act, 2012 under clause 1(ii) provides that a student will be admitted to the school if he/she has obtained a minimum of grade B (plain) in English or Kiswahili and a mean grade of C (plus) in KCSE certificate or its equivalent. In view of this counsel argued that the critical question that the court was to answer was whether or not secondary school qualifications matter for one who wants to join the ATP programme and what the implication would be in that context.

22. In his opinion interpretation of the provisions of the second schedule of the Kenya School of Law Act, 2012 with reference to the word 'or' has two schools of thought. It can be interpreted as either a conjunctive or a disjunctive. He argued that the same ought to be granted the plain and ordinary meaning. He urged the court 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. In his opinion the provisions of schedule 2 (1) (a) and (b) in their respective plain meaning are identical in that under l(a) before candidates are admitted to University to pursue a Bachelors of Law degree, they must have attained qualifications in b(i)(ii).

23. In support of his interpretation reliance was placed on the case of Republic v Kenya School of Law & another Ex Parte; Okoth Scarlet Susan [2022] eKLR where the court held that Parliament in its wisdom did not intend to have two standards of admission to the 1st respondent. A purposeful interpretation of the law clearly demonstrates that since the admission seeks to train the students to qualify and join the same profession, they must start on the same footing as regards the entry requirements to the institution.

24. To interpret otherwise, counsel argued would bring about discrimination as between applicants from Kenyan universities and those from foreign universities. Reliance was placed on the case of Sollo Nzuki v Salaries and Remuneration Commission & 2 others(2019) eKLR which noted that discrimination is affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to restrictions to which persons of another description are not made subject to.

25. Similar reliance was placed on the cases of Victor Juma v Kenya School of Law; Council of Legal Education (Interested Party) [2020] eKLR, Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR, R v Kenya School of Law, Ex-parte Daniel Mwaura Marai [2017] eKLR Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR, Republic v Kenya School of law & Council of Legal education Ex parte Daniel Mwaura Marai [2017] eKLR.

26. Counsel submitted therefore that a purposive interpretation should be given to statutes so as to reveal the intention of the statute as held by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court petitionNo26 of 2014 [2014] eKLR, and similarly in Raila Odinga and another v IEBC and others(2017) eKLR

27. On the second issue, he submitted that the petitioner does not qualify to be admitted to theATP programme by reason of academic progression because the Kenya School of Law Act 2012, as amended byStatute Law Miscellaneous Amendments Act (No 18 of 2014) does not provide for academic progression.

28. On the third issue, counsel submitted that according to the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others[2014] eKLR legitimate expectation would arise when a body, by representation or by past practice has aroused an expectation that is within its power to fulfil. He argued that the petitioner seeks to have the 1st respondent make an unlawful decision in admitting him into the ATP Programme while he is not qualified. Reliance was placed on the case of Victor Juma v Kenya School of Law (supra) where the court stated that the respondents could not be faulted for enforcing the applicable law which is the Kenya School of Law Act by refusing the applicant’s admission to the ATP programme. In view of this he submitted that the petitioner’s claim to legitimate expectation could not succeed.

29. On the final issue, counsel submitted that as per section 25 of the Kenya School of Law Act, the law states that no matter or thing done by a member of the board or any officer, employee or agent of the school shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the school, render the member, officer, employee or agent or any person acting by his directions personally liable to any action, claim or demand whatsoever. In light of this counsel submitted that no evidence had been presented to demonstrate that the 3rd respondent had not carried out his duties in good faith.

Analysis and Determination 30. From the foregoing account, the central issues that arise for determination are:i.Whether the petitioner met the threshold to be admitted into the ATP programme.ii.Whether the 1st and 3rd respondents violated the petitioner’s right against discrimination by denying his application.iii.Whether the 1st and 3rd respondents violated the petitioner’s right to legitimate expectation.

31. The petitioner’s main argument throughout has been that he is qualified to be admitted into the Advocates Training Programme (ATP) based on the wording and meaning of section 16 the Kenya School of Law Act 2012 as read with the second schedule. According to the petitioner the correct interpretation of the second schedule provides two options based on the interpretation of the word ‘or’ which in his view means one can fall in either category to be qualified. He contended hence that he was qualified under 1(a) which states having passed the relevant examination of any recognized university in Kenya.

32. The respondent opposed this notion stressing that such an interpretation would cause discrimination against the eligible students who had studied in foreign universities. This is since 1(b) provides that to be eligible one has to have attained a minimum entry requirement for admission to a university in Kenya and 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.

33. In answering this question this court has to bear in mind the relevant guiding principles in the interpretation of a statute. At the forefront the spirit of the Constitution must preside and permeate the process of judicial interpretation which is this court’s mandate as spelt out under article 259 of the Constitution.

34. There are a number of set principles that guide the court while interpreting a statute. The first principle is the general presumption that Acts of Parliament are enacted in conformity with the Constitution. This position was affirmed by the Court of Appeal of Tanzania in the case of Ndyanabo v Attorney General [2001] EA 495 which was a restatement of the law in the English case of Pearlberg v Varty [1972] 1 WLR 534. In the former, the court held that:“Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative”

35. Secondly, this court is required to examine the purpose and effect of the impugned statute. This principle was indicated in the case ofR v Big M Drug Mart Ltd 1985 CR 295, as cited with approval in the case ofGeoffrey Andare v Attorney General & 2 others [2016] eKLR. The court held as follows:“It has also been held that in determining the constitutionality of a statute, a court must be guided by the object and purpose of the impugned statute, which object and purpose can be discerned from the legislation itself. The Supreme Court of Canada in R v Big M Drug Mart Ltd, [1985] 1 SCR 295 enunciated this principle as follows:“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.”

36. Additionally, this court is beholden to interrogate the intention articulated while drafting the statute. This was confirmed by the Court of Appeal in the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR when it stated as follows:“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”

37. The impugned provisions are found in the Kenya School of Law Act, 2012. Part iii which deals with the requirements of admission into the school, provides as follows under section 16:“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 the second schedule for that course.”

38. The second schedule provides as follows:a.Admission requirements into the advocates training programme1. 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 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; orb)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.

39. An interpretation of the second schedule elicited two schools of thought in the High Court on the subject as rightly presented by the petitioner and the 1st and 3rd respondents in their cited authorities. This was aptly been examined by this court in the case of Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR. This court opined as follows:“106. There are two schools of thought on the interpretation of the above provision. One school fronts the position that requirements in paragraph 1(a) and 1(b) must be similar otherwise there shall be discrimination of the students falling within category paragraph 1(a) and those in 1(b). The other school of thought is of the position that the two categories are different and ought to be treated as such.107. Some of the decisions which posit that the qualifications must be similar include Nairobi High Court Petition No 20 of 2019 Victor Juma v Kenya School of Law, Bishar Adan Mohamed v Kenya School of Law (2020) eKLR,Peter Githaiga Munyeki v Kenya School of Law (2017) eKLR,R v Kenya School of Law exparte Daniel Mwaura Marai (2017) eKLR, among many others.108. The courts in judicial review application Nos 7, 8, 13, 20, 21 and 26 of 2020 Republic v Kenya School of Law & others (2020) eKLR and in Kevin K Mwiti & others v Kenya School of Law & 2 others(2015) eKLR were categorical that the qualifications for persons intending to join the ATP under 1(a) and 1(b) are different.109. I have carefully read the said decisions among others on the interpretation of paragraph 1(a) and 1(b) above. I associate myself with the school of thought that the two categories are different and ought to be treated as such.110. I must acknowledge the great detail in which the court in judicial review application Nos 7, 8, 13, 20, 21 and 26 of 2020 Republic v Kenya School of Law & others (2020) eKLR went in demonstrating the difference between the words ‘or’ and ‘and’. The discussion is highly persuasive and is a reasonable and candid exposition of the law.111. If I may add my voice to the discussion, I find the use of the word ‘or’ by the drafters was very deliberate. To me, category 1(a) dealt with those persons who joined a recognized university in Kenya and obtained or became eligible for the conferment of the Bachelor of Laws (LLB) degree of that university. Mostly, such persons would be those who studied under the 7-4-3-3 or 8-4-4 systems in Kenya and qualified to join the universities and were eligible for and were admitted to pursue studies towards the conferment of the Bachelor of Laws (LLB) degrees. Another class of those falling under category 1(a) would be such persons who may have undertaken their secondary studies on a different system, for instance, the IGCSE or the IB, but applied for and were admitted to pursue their studies towards the conferment of the Bachelor of Laws (LLB) degrees in a recognized and licensed university in Kenya. As said, for such class of persons, the issue of equation would be dealt with before their admission into the university.

40. The affirmative position on the two schools of thought was finally settled by the Court of Appeal in its recent decision in Kenya School of Law v Otene Richard Akomo & 41 others civil appeal No 472 of 2021 where it opined as follows on the interpretation of the impugned section:“The contention between the two parties is the interpretation of the above provisions as to whether given the two scenarios of joining KSL, whether the first one (1)(a) does not require one to have the KCSE mandatory requirements of a mean grade C + (plus) and a grade B (plain) in English or Kiswahili. That the said KCSE requirements only applies to those making applications under 1(b) of the said section. To us, the interpretation we discern from the above section is that the section should be read as a whole. The text is that paragraph 1(a) and (b) is separated by a semicolon, then there are the key elements mentioned after the colon on 1 (b) which means that both 1(a)(b) must meet the conditions precedent in roman i and ii. In essence, whether you obtained a degree in a Kenyan or out of a Kenyan University, the basic requirement is the score in one’s KCSE results which should correspond to those cited in the Act…In interpreting statutes, it is also a requirement that the court looks at both the text and context in order to ascertain the true legislative intent…..It would not make any sense to interpret the section as meaning that two students who score the same mean grade at KCSE and one decides to study at a university outside Kenya and another at a university in Kenya would be treated differently in considering their entry requirements to the ATP, just because one was in the local university thus does not need to prove whether he attained the required score in KCSE or not but subject to the foreign earned degree to KCSE confirmation. This ideally would be negative discrimination and against the principles of natural justice and goes beyond the spirit of the CLE Act informing the qualifications.The respondents’ main contention is that since they had obtained degrees from local Universities, they were not required to prove their entry grades at KCSE. A closer look at the provisions clearly shows that there are two parts which all are dependent on the qualifications after clause 1(b) of the Act.We have adverted to several authorities that the High Court has grappled with in the interpretation of the said section. We have no difficulty in interpreting the same as the context is very clear and the wording is that there are conditions which affect both qualifications and this is the KCSE grades which are captured at the end of the paragraph.”

41. I stand guided by the cited authority. Accordingly based on the principles of interpretation of statutes this section ought to be interpreted holistically. This means that the qualifications of students who studied both in local and international universities’ are uniform as stipulated under section 16 of the Kenya School of Law Act. In essence this means that the petitioner was required to have attained the requisite KCSE qualifications as set out in section 16 to attain entry into the ATP programme.

42. It is my considered view that the decision by the 1st and 3rd respondent rejecting the petitioner’s application to the ATP programme was supported by the law. I say so because the petitioner despite attaining a mean grade of B-, he failed to secure B (Plain) either in English or Kiswahili as required under section 16 (b) (ii) of the Act. This essentially rendered him ineligible for consideration for admission into the Kenya School of Law by virtue of this prerequisite.

Whether the 1st and 3rd Respondents’ violated the Petitioner’s right against discrimination. 43. The petitioner contended that the 1st and 3rd respondents’ action of rejecting his application were discriminatory as other applicants applications with similar qualifications had been accepted. This was disputed by the respondents.

44. Article 27 of the Constitution provides that:1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

45. The court in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another[2011] eKLR on the right to equality and freedom from discrimination opined as follows:“…what is equality and what is freedom from discrimination?’ The two terms have been largely defined under article 27(1) and (2)… in the case of Jacques Charl Hoffmann Constitution Court of South Africa it was held;“At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in the society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding, the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interests of the victim of the discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim…”

46. Accordingly discrimination is defined in the Black’s Law Dictionary 10th edition as differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.

47. It is apparent from the 1st and 3rd respondents’ correspondence to the petitioner that his application was rejected owing to the reason that he had not attained a B (plain) in either English or Kiswahili. The petitioner averred that this rejection was discriminatory as other students with similar qualifications had been accepted into the ATP programme.

48. A look at the material provided by the petitioner does not demonstrate this averment. It is imperative for one to prove a violation of a fundamental right to show how the said right was infringed upon. This requirement was emphasized by the Supreme Court in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where it was stated that:“(48) The petitioners’ case is set around the constitutional right of freedom from discrimination (Constitution of Kenya, 2010, article 27). It is already the standpoint of this court, as regards standard of proof, that this assumes a higher level in respect of constitutional safeguards, than in the case of the ordinary civil-claim balance of probability. The explanation is that, virtually all constitutional rights-safeguards bear generalities, or qualifications, which call for scrupulous individual appraisal for each case. This is the context in which the rights-claim in the instant case, founded upon racial discrimination, is to be seen.(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”[50] This court inRaila Odinga & others v Independent Electoral & Boundaries Commission & others, petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:“…a petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden….”

49. It is my considered view from the foregoing provision and authority that the petitioner in this matter bore the obligation to lay significant evidence in discharge of the evidential burden. The petitioner did not produce any material to support his claim. For instance he did not issue a list of applicants who had been accepted yet had similar qualifications to his. It is not enough to just state that a right was violated. This averment must be demonstrated by the material produced in court for it to be sustained. It is my humble finding that the petitioner did not discharge this burden and as such did not prove how the 1st and 3rd respondents violated his right to freedom against discrimination.

Whether the 1st and 3rd Respondent violated the Petitioner’s right to legitimate expectation 50. The petitioner argued that the 1st and 3rd respondents denial to admit him into the ATP violated his right to legitimate expectation. The respondents in opposing this noted that the right could not arise where the law dictated otherwise. In this case they argued that their rejection of the application was based on the law.

51. The Supreme Court in the case of Communications Commission of Kenya case(supra) explained the principle of legitimate expectation as follows:“[265]An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) SA 42 (SCA) at [paragraph 28]: the Court held as follows:“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:i.The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.(ii)The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker:De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.iii.The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council1963 (4) SA 53 (C) at 59E - G.”

52. From the foregoing analysis it is apparent that the 1st and 3rd respondents’ decision was based on the dictates of the law as espoused in the Kenya School of Law Act. It cannot therefore be said that they breached the petitioner’s legitimate expectation since the expectation was not anchored in law. Accordingly the 1st and 3rd respondents’ action of rejecting the petitioner’s application did not violate his right to legitimate expectation.

53. In view of the foregoing and the determination on the issues raised by the parties I find that the petition dated March 8, 2022 lacks merit and is hereby dismissed and the petitioner condemned to pay half of the costs to both the 1st & 3rd respondents.

Orders accordingly.

Delivered virtually, dated and signed this 18th day of November, 2022 in open court at Milimani, Nairobi.H. I. Ong’udiJudge of the High Court