[2022] KELEAT 29 (KLR)

Gachoki & 2 others v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E001, E002 & E003 of 2022 (Consolidated)) [2022] KELEAT 29 (KLR) (Civ) (11 March 2022) (Judgment)

James Muchiri Gachoki & 2 others v Kenya School of Law; Council of Legal Education (Interested Party) [2022] eKLR

Neutral citation: [2022] KELEAT 29 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Appeal E001, E002 & E003 of 2022 (Consolidated)

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

March 11, 2022

Between

James Muchiri Gachoki

1st Appellant

Duncan Kyalo Muusya

2nd Appellant

Kennedy Lempate Elimlim

3rd Appellant

and

Kenya School Of Law

Respondent

and

Council Of Legal Education

Interested Party

A declaration of a legislation as unconstitutional is not applicable to actions already crystallised whilst the expunged law was in force

The appeals were against the decisions of the Director/Chief Executive Officer of the Kenya School of Law declining admission to the advocates training programme. The Tribunal reiterated that after a court declared a piece of legislation unconstitutional, that legislation became a nullity from the date of inception or enactment and not from the date of the judgment. But it would not be applicable to actions already crystallised whilst the expunged law was in force. The court further found that the Kenya School of Law lacked any statutory backing from its establishing legal regime, the Kenya School of Law Act, 2012, to scrutinize how one gained admission into a recognized university in Kenya.

Reported by Kakai Toili

Constitutional Law– constitutionality of statutes – constitutionality of the Legal Education (Accreditation and Quality Assurance) Regulations (the Regulations) – where the Regulations provided for academic progression for admission to the advocates training programme – where the Regulations had been declared unconstitutional - whether the declaration of the Regulations as unconstitutional applied to actions already crystallised whilst the Regulations were in force.Constitutional Law– fundamental rights and freedoms – right to education – right to admission to the advocates training programme - bachelor of laws degree requirement for admission to the advocates training programme – role of the Kenya School of Law - whether the Kenya School of law was entitled to scrutinize how a person seeking to join the advocates training programme gained admission into a recognized university in Kenya.

Brief facts The appellants lodged individual appeals against the decisions of the Director/Chief Executive Officer of the respondent, the Kenya School of Law, declining admission to the advocates training programme. The decisions as communicated in respect of the 1st appellant was dated February 9, 2022, for the 2nd appellant it was dated February 10, 2022, while for the 3rd appellant it was dated February 8, 2022. The respondent declined to grant the appellants admission on the grounds that they did not meet the high school requirements.The respondent stated that the appellants were relying on diploma in law qualifications to be admitted for advocates training programme and granting them admission would circumvent the clear provisions of the statute resulting in discrimination and the application of double standards.

Issues

Whether the declaration that the Legal Education (Accreditation and Quality Assurance) Regulations, which provided for academic progression, were unconstitutional applied to actions already crystallised whilst the Regulations were in force.

Whether the Kenya School of law was entitled to scrutinize how a person seeking to join the advocates training programme gained admission into a recognized university in Kenya.

Held

Whereas academic progression was not in the Kenya School of Law Act, 2012, the establishing law of the Tribunal while addressing the functions of the interested party provided for academic progression at section 8(3)(c). By dint of that law a system for recognizing prior learning and experience in law in order to facilitate progression was formulated by the interested party through the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice No. 15 of 2016. The Regulations were made pursuant to section 46(1) of the Legal Education Act, 2012.

The Legal Education (Accreditation and Quality Assurance) Regulations failed to meet the requirements of the Statutory Instruments Act, 2013 which by section 11 obligated the same to be laid before Parliament and were declared a nullity by the High Court and subsequently the decision was affirmed by the Court of Appeal. The applicable legal regime therefore reverted to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 which while addressing the issue of eligibility to a legal education programme by regulation 18 provided that a student shall not be eligible for admission to a legal education training programme under the Regulations, unless that student had attained the required minimum qualifications set out in the Second Schedule.

The 1st appellant’s entitlement to admission to the LLB programme based on the diploma in law qualification had already crystallized. The assurance that he qualified for the degree as made by the interested party would create an estoppel based on section 120 of the Evidence Act, Cap. 80. After a court declared a piece of legislation or a section of an Act unconstitutional, that Act or law became a nullity from the date of inception or enactment and not from the date of the judgment. But it would not be applicable to actions already crystallised whilst the expunged law was in force.

The inquiry by the respondent at the stage of the application to the Advocates Training Programme would be solely based on the eligibility of an applicant from a recognized university in Kenya for conferment to an LLB degree or holding the same. The argument by the respondent that it was entitled to scrutinize how one gained admission into a recognized university in Kenya lacked any statutory backing from its establishing legal regime which was the Kenya School of Law Act, 2012.

The respondent could not arrogate the functions of other regulatory bodies such as the interested party and the Commission of University Education in dealing with undergraduate legal education regulation in Kenya. It would at the very best be described as acting in an ultra-vires manner. The appellants thus qualified for admission to the Advocates Training Programme.

Given the diverse nature of the persons targeted under categories (a) and (b) of the Second Schedule to the Kenya School of Law Act, their qualifications could not be similar. Category (a) and (b) were different hence the visible use of the word ‘or’. It was improper for the respondent to subject the appellants to the qualification requirements in section 1(b) while they ought to be considered in section 1(a) of the applicable law. Parliament in its wisdom while enacting the Second Schedule to the Kenya School of Law Act, 2012 did not intend that section 1(b) requirements be applied to category 1(a) applicants to the Advocates Training Programme.

Appeal allowed.

Orders

The decisions of the Kenya School of Law dated the February 8, 2022, February 9, 2022 and February 10, 2022 declining admission of the appellants to the advocates training programme were set-side.

A declaration was made that the appellants qualified for admission to advocates training programme by dint of section 1(a) of Schedule 2 of the Kenya School of Law Act, 2012.

An order was issued compelling Kenya School of Law to admit the appellants to the advocates training programme.

Each party to bear own costs of the appeal.

Any party so aggrieved was at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38(1) of the Legal Education Act, 2012.

Citations Cases Jimma, Robert Uri Dabaly v Kenya School of Law & Kenya National Qualifications Authority (Constitutional Petition 101 of 2020; [2021] KEHC 3924 (KLR)) — Followed

Kimani, Leon Kamau v Kenya School of Law; Council of Legal Education (Interested Party) (Miscellaneous Application E028 of 2021; [2021] KEHC 708 (KLR)) — Followed

Munyeki, Peter Githaiga v Kenya School of Law (Petition 566 of 2017; [2017] KEHC 9759 (KLR)) — Explained

Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013; [2013] KESC 2 (KLR)) — Followed

Otieno & another v Council of Legal Education (Civil Appeal 38 of 2018; [2021] KECA 349 (KLR)) — Explained

Owners of Motor Vessel Lillian S (Civil Appeal 50 of 1989; [1989] eKLR; [1989] KLR 1) — Followed

Republic v Kenya School of Law, & 2 others; Exparte Kgaborone Tsholofelo Wekesa (Judicial Review Miscellaneous Application 47 of 2019; [2019] KEHC 11107 (KLR)) — Explained

Speaker of the National Assembly v Karume (Civil Application 92 of 1992; [1992] KECA 42 (KLR); [1992] KLR 22) — Followed

Statutes Advocates Act (cap 16) — Cited

Council of Legal Education (Accreditation of Legal Education Institutions) Regulations,2009 (rrepealed) (cap 16A Sub Leg) — Schedule 2 — Interpreted

Evidence Act (cap 80) — section 120 — Interpreted

Fair Administrative Action Act (cap 7L) — section 4 — Interpreted

Kenya School of Law Act (cap 16C) — section 16; Schedule 2 — Interpreted

Legal Education (Accreditation and Quality Assurance) Regulations (cap 16B Sub Leg) — Cited

Legal Education Act (cap 16B) — section 46(1) — Interpreted

Statutory Instruments Act (cap 2A) — section 11 — Interpreted

AdvocatesNone mentioned

Judgment

Introduction 1. The appellants James Muchiri Gachoki, Duncan Kyalo Muusya and Kennedy Lempate Elimlim through the law firm of Keaton & Keaton Advocates lodged individual appeals against the decisions of the Director/Chief Executive Officer of the respondent declining admission to the Advocates Training Programme.

2. The decisions as communicated in respect of the 1st appellant is dated the February 9, 2022, for the 2nd appellant it is dated the February 10, 2022, while for the 3rd appellant it is dated the February 8, 2022.

3. By the impugned decisions, the respondent declined to grant the appellants’ admission to the Advocates Training Programme during the 2022/2023 academic year.

4. The Tribunal made directions for the appeals to be heard in open court on the March 4, 2022 and service be effected upon the respondent and the interested party.

5. The appellants effected service of their individual appeals. The respondent lodged responses to the appeals while the interested party did not file any response.

6. The appeals came up for hearing as scheduled with the appellants being represented by Mr Kiprono Advocate and assisted by Ms Chebet Advocate. The respondent was represented by Ms Pauline Mbuthu Advocate while the interested party despite service of the notice of hearing did not attend.

7. Pursuant to application by the respondent for consolidation of the appeals as they involved an issue of commonality with regards to admission to the Advocates Training Programme, and following the unsuccessful objection by the appellants thereto, consolidation was allowed with appeal No E001 of 2022 as the lead file.

8. The consolidated appeals were then heard with the Advocates for the parties (save for the interested party) present advancing the course of the rival positions in respect of their clients. The Tribunal then set-down the consolidated appeals for judgment.

The appeal by the 1st appellant 9. The 1st appellant sat for the Kenya Certificate of Secondary Education in 2001 and obtained a mean grade of C – minus. He scored a grade C – minus in English and C + plus in Kiswahili. In the year 2002 he enrolled for a Certificate in Law course at the Kenafric College of Professional Studies which he completed successfully. In the January, 2015 he applied and was admitted into the Diploma in Law course offered by the respondent. He successfully completed the said course with a score of a distinction and the respondent in recognition of the splendid performance accorded him 2 awards being that of the Best Student Overall, 2015 award and that of the Best Male Student Overall, 2015 award. The said awards are signed by Dr HK Mutai – Director/Chief Executive Officer. He also applied and was appointed a Court Process Server in the year 2015. He has been renewing his annual licences which he exhibited before the Tribunal.

10. In the year 2017 he applied to the Mount Kenya University for a Bachelor of Laws degree (LLB). It is his evidence that the University as a precondition for admission into the Programme required that he got a clearance letter from the interested party. On the October 17, 2017 the interested party in a communication made through Prof. W. Kulundu Bitonye – Secretary/Chief Executive Officer that by dint of progression which was consistent with the part II of the Third Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 and was therefore eligible to pursue the LLB degree programme. He was admitted by the Mount Kenya University to pursue the degree which he successfully completed and graduated with a second class honours upper division. He then applied to be admitted to the Advocates Training Programme during the 2022/2023 academic year however, his application was declined. The respondent assigned the reason for declining the application as follows;“Does not meet high school grade requirements.”

11. The said decision provoked the current appeal before the Tribunal.

The appeal by the 2nd appellant 12. He is a staff member of the Judiciary serving as a Court Bailiff since the year 2017. He sat for the Kenya Certificate of Secondary Education in the year 2004 he obtained a mean grade of C plain and grades C plain and C plus in English and Kiswahili respectively. He was appointed as a Court Process Server in the year 2013. He has consistently renewed his annual licences. In the month of January, 2015 he was admitted by the respondent to study a Diploma in Law course pursuant to an application he made and successfully completed the same in the year 2017 attaining the grade of a credit. He applied and was admitted to pursue a Bachelor of Laws degree at the Mount Kenya University December, 2017. He successfully completed the programme and graduated with the LLB degree in the month of December, 2021.

13. In January, 2022 he applied to be admitted to the Advocates Training Programme during the 2022/2023 academic year. But however, his application was unsuccessful and in a communication by the Director of the respondent declining admissibility he was informed as follows;“It is regretted that your application was not successful for admission due to the following reason (s):Does not meet the qualifications.Scored C Plain in English and C + in Kiswahili.Further more, he joined the University in 2018 after the law had changed in 2012. ”

14. The appellant has now pursuant thereto moved the Tribunal to interrogate the decision taken.

The appeal by the 3rd appellant. 15. He completed his Kenya Certificate of Secondary Education in the year 1998 and attained a mean grade of C + plus. He scored grades C – minus and C + plus in English and Kiswahili respectively. In the year 2011 he applied for and was enrolled to pursue a Bachelor of Arts in Criminology and Security at the Egerton University which he successfully completed in the year 2015. He attained a second class honours upper division. He applied and was granted an admission by the respondent to pursue a Diploma in Law course which he successfully completed in the year 2017. He attained a grade of a distinction in the said course. He applied and was admitted by the University of Nairobi to pursue a Bachelor of Laws degree and graduated in the month of December, 2021 with a second class honours upper division.

16. He applied for admission to the Advocates Training Programme during the 2022/2023 academic year and his application was declined. In the communication by the Director he was informed as follows;“It is regretted that your application was not successful for admission due to the following reason (s):High school qualifications not adequate.”

17. . The appellant has moved the Tribunal by way of appeal to consider the decision declining admission.

The response to the appeals. 18. The respondent through Mr Fredrick Muhia – the Academic Services Manager has opposed the appeals. It contends that it is its mandate to inter-alia train persons for purposes of the Advocates Act, cap 16 and for which it offers the Advocates Training Programme. Matters of admission to the Advocates Training Programme are exclusively pro

19. vided for under section 16 of the Kenya School of Law Act, No 26 of 2012. It contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act, No 27 of 2012.

20. It further states that it is required by its establishing Act being the Kenya School of Law Act, 2012 to consider applications for admission to the Programme and once satisfied that the applicant is qualified; admit the applicant to the School. That under section 16 of the Act as read with paragraph 1 of the Second Schedule, the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education with a B (plain) in English or Kiswahili languages which the appellant did not have.

21. The Respondent further states that the appellants are relying on Diploma in Law qualifications to be admitted for Advocates Training Programme and granting them admission would circumvent the clear provisions of the statute resulting in discrimination and the application of double standards.

The Appellants Submissions. 22. On jurisdiction of the Tribunal to address the appeal, the appellants opened the address by citing the decisions of the Owners of Motor Vessel Lillian S, (1989) KLR 1 and the Speaker of the National Assembly v Njenga Karume, [1992] eKLR. They submitted that the mandate of the Tribunal is given in section 31 of the Legal Education Act, 2012 being to deal with issues touching on legal education arising under the Act. They relied on the decision in Republic v Kenya School of Law & 2 Others ex – parte Kgabarone Wekesa, [2019] eKLR in which Justice Mativo addressed the jurisdiction of the Tribunal.

23. As regards the qualifications to the Advocates Training Programme, the criteria for admission is found in section 16 as well as the 2nd schedule, of the Kenya School of Law Act, 2012. In section 1(a) of the schedule the only consideration is whether the appellants are eligible for the conferment of an LLB degree from a recognized University in Kenya. The qualifications in section 1(b) of the schedule do not apply to the appellants. The use of the conjunction ‘or’ between 1(a) and 1(b) of the schedule means that an applicant to the programme falls into one of the categories and not all. They called into aid the decision of the Supreme Court in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others (2013) eKLR.

24. It was submitted that the 1st appellant by dint of a letter written by the Secretary of the interested party invoked the doctrine of legitimate expectation and the tenet of estoppel based on section 120 of the Evidence Act, cap 80.

25. It was submitted that the right to education ought not to be impeded. The law on admission was well laid-down by Parliament to ensure that the Principal of the respondent does not act in a whimsical manner in considering applications for admission into the Advocates Training Programme. They relied in the decision of the Tribunal in Leon Kamau Kimani v Kenya School of Law & the Council of Legal Education, [2021] eKLR and Robert Uri Dabaly Jimma v Kenya School of Law & the Kenya National Qualifications Authority, [2021] eKLR.

The Respondent’s Submissions. 26. It is submitted that section 16 of the Kenya School of Law Act, 2012 and the second schedule therein are the applicable to dealing with the dispute. The appeal falls outside the scope of the Tribunal being one that is established under the Legal Education Act, 2012. The respondent is established by it’s own law and is given the mandate to consider applications to the Advocates Training Programme. Its role is an active one as opposed to a passive one. Based on the law it considered the applications by the appellants and found them to be ineligible for admission to the Programme. It exercised the statutory duty bestowed upon it in arriving at the decisions. The decisions were promptly communicated and its hands are tied based on the legislation.

27. The respondent further submitted that there were two schools of thoughts on the interpretation of the word ‘or’ as enacted in section 1 of the second schedule to the Kenya School of Law Act, 2012. It can be interpreted as either a conjunctive or a disjunctive. The point of entry in interpreting this word would be the plain and ordinary meaning of the word. If 1(a) were to be interpreted plainly and assumed to apply to universities domiciled in Kenya, and the word ‘or’ interpreted disjunctively, it would mean that all students who join any Kenyan university irrespective of the grades they hold will be allowed to join the Advocates Training Programme. Indeed, the Secondary School qualifications would not matter at all to such students when they seek to join the Programme. As an institution, it cannot look beyond the provisions of its enabling Act in admitting students to the Programme. It relies in the decision in Peter Githaiga Munyeki v Kenya School of Law, [2017] eKLR, in which it was stated that;“That KSL is the institution mandated to train persons to become professional Advocates and that mandate is exercisable pursuant to the KSL Act 2012 and regulations made thereunder. The KSL Act 2012 in conferring that mandate to KSL does not make reference to any other Act in so far as admission requirements to ATP are concerned. In that regard, section 16 of the KSL Act is clear and unequivocal that qualifications for admission to ATP are those contained in the Second Schedule to the Act.”

28. The appellants do not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, 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.

29. On the letter written by the interested party to the 1st appellant confirming that he was eligible to join the LLB degree programme, it was submitted that one statutory body cannot create a legitimate expectation for another. The interested party is a regulator and it should not dictate to the respondent how matters of admission should be undertaken. The curriculum for the programme is developed by the School and approved by the interested party. The School is an agent of the interested party for purposes of the administration of examinations only. The Legal Education Act contemplates a situation where by other players would be licenced to offer the Advocates Training Programme but the issue is what law will guide them.

Analysis and determination. 30. The appellants rely on academic progression in seeking admission to the Advocates Training Programme. The 1st appellant further relies on the communication made by the interested party on confirmation of academic progression. The Tribunal finds that since the matter of progression forms the core issue for determination in the appeals, it has jurisdiction to address the consolidated appeals. The Tribunal is well guided by the provisions of its jurisdiction as well spelt out in section 31 of the Legal Education Act, 2012 which entitles it to inquire into any matter brought before it in-respect of the Act. The Tribunal adopts the position of the superior court as relied on by the appellants in the authority of Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa [2019] eKLR in which Justice Mativo held at paragraph 33 therein;“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.”

31. As regards the appeal, the respondent has argued that academic progression is not provided for in its establishing legal regime which is the Kenya School of Law Act, 2012. The Tribunal finds that whereas academic progression is not in the said law however, the establishing law of the Tribunal while addressing the functions of the interested party provides for academic progression at section 8(3)(c) therein in the following terms;“In carrying out its functions under subsection (2), the Council shall—(a)Make regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes;(b)Establish criteria for the recognition and equation of academic qualifications in legal education;(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;…”

32. By dint of the said law a system for recognizing prior learning and experience in law in order to facilitate progression was formulated by the interested party through the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice No 15 of 2016. The said Regulations were made pursuant to section 46(1) of the Legal Education Act, 2012. In regulation 8 recognition of experiential learning was provided for in the following terms;“(1)A person who has worked in any field of law for a period of not less than ten years may apply to the Council for recognition and award of a certificate of experiential learning:Provided that—(a)an applicant who does not hold a certificate in law may be eligible for admission to a diploma in law programme or granted experiential learning equivalent to the status of a diploma in law holder; and(b)an award of a certificate of experiential learning may be used by the awardee of the certificate to transpose his or her professional orientation.(2)An application for a certificate in experiential learning shall be made in the form CLE/L/007 set out in the First Schedule to these Regulations.(3)The Council shall determine an application for experiential learning in accordance with the quality standards set out in the Third Schedule of these Regulations.”

33. The said Regulations however, failed to meet the requirements of the Statutory Instruments Act, 2013 which by section 11 obligated the same to be laid before Parliament and were declared a nullity by the High Court and subsequently the decision was affirmed by the Court of Appeal vide the findings in Otieno & another v Council of Legal Education, (Civil Appeal 38 of 2018) [2021] KECA 349 (KLR) (17 December 2021) by Justices Musinga, Nambuye and Murgor JJA The learned Judges in there rendition they pronounced themselves as follows;“32. The respondent did not dispute that the impugned regulations were gazetted. But it argued that they had not attained the force of law for the reason that they had not been adopted by Parliament as required by sections 11(1) and 11(4) of the Statutory Instrument Act, 2013. 33. In particular section 11(4) stipulates:‘If a copy of a statutory instrument that is required to be laid before the relevant House of Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void’.34. The record does not disclose that following gazetting of the impugned regulations, that they were thereafter laid before Parliament and adopted. In point of fact Prof Kulundu avers;“16. I am aware that because Parliament was on recess at the time of the publication aforesaid, the Draft of the Regulations was never laid before Parliament in time or at all, with the consequence that the Draft became void under section 11(4) of the Act, of course until re-published, which has not been done.”35. Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above cited provision, and which shortcoming the appellants have conceded, it becomes evident that the impugned regulations were not adopted by Parliament and as a consequence, did not acquire the force of law. As such, we agree with the learned judge that they were inapplicable for want of legality, and therefore could not have been the basis upon which the appellants were denied admission to the Roll of Advocates, and we so find.”

34. With the rendition of a nullity of the Regulations the applicable legal regime reverted to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 which while addressing the issue of eligibility to a legal education programme by regulation 18 provided;“A student shall not be eligible for admission to a legal education training programme under these Regulations, unless that student has attained the required minimum qualifications set out in the Second Schedule.”

35. In the second schedule of the regulations it was provided as follows;“1. Admission into the Diploma in Law (Para-Legal Studies) Programme.A student shall not be eligible for admission into the Diploma in Law (Para-Legal Studies) Programme, unless that student has —(a)a mean grade of C (C plain) in the Kenya Certificate of Secondary Education (KCSE) or its equivalent examination and a minimum grade C+ (C plus) in English;(b)at least one principal pass at the Kenya Advanced Certificate of Education (KACE) examinations; or(c)a distinction or credit pass in the Certificate in Law course conducted at the Kenya School of Law between the year 2000 to 2003 or any other Certificate or Diploma in a relevant field.2. Admission into an Undergraduate Degree Programme.A student shall not be eligible for admission into an Undergraduate Degree Programme unless that student has —(a)a degree from a recognized university;(b)at least two principal passes at an advanced level or an equivalent qualification;(c)a mean grade of C+ (C plus) in Kenya Certificate of Secondary Education (KCSE); or(d)a diploma of an institution recognized by the Commission for Higher Education and the applicant shall have obtained at least credit pass.”

36. The 1st and 2nd appellants based on the fact that they held Diploma in Law qualifications prior to admission to the LLB degree qualifications were thus qualified for admission to the said programme. For the 3rd appellant he held a degree from a recognized University in Kenya and therefore was eligible for admission to the LLB degree. The conclusion of the respondent as reached in the communication to the 2nd appellant that the Regulatory regime had changed when he joined the University is faulted and reversed by the Tribunal. The decision was taken despite the fact that the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice No 15 of 2016 had been found to be a nullity and the fact that the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 remained being in force.

37. The 1st appellant sought to rely on legitimate expectation and estoppel based on the letter by the interested party which was predicated on the Regulations of 2016. The said Regulations were found to be a nullity based on the Judgment and Decree of the High Court of Kenya at Nakuru by Justice Maureen A Odero dated the 30th. January 2018 in High Court Petition No 20 of 2016 however, the 1st appellant’s entitlement to admission to the LLB programme based on the Diploma in Law qualification had already crystallized. The assurance that he qualified for the degree as made by the interested party would create an estoppel based on section 120 of the Evidence Act, cap 80. The Tribunal stands guided by the findings in Otieno & another v Council of Legal Education, supra as follows;“47. Consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of the judgment. But it will not be applicable to actions already crystallised whilst the expunged law was in force.”

38. The Second Schedule of the Kenya School of Law Act, 2012 is divided into sections 1(a) and (b) as follows;“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; 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; andii.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; andiii.has sat and passed the pre-Bar examination set by the school.”

39. The inquiry by the respondent at the stage of the application to the Advocates Training Programme will be solely based on the eligibility of an applicant from a recognized University in Kenya for conferment to an LLB degree or holding the same. The 1st and 2nd appellants hold LLB degrees from the Mount Kenya University while the 3rd appellant holds a degree from the University of Nairobi. The argument by the respondent that it is entitled to scrutinize how one gained admission into a recognized University in Kenya lacks any statutory backing from its establishing legal regime which is the Kenya School of Law Act, 2012. The respondent cannot arrogate the functions of other regulatory bodies such as the interested party and the Commission of University Education in dealing with undergraduate legal education regulation in Kenya. It will at the very best be described as acting in an ultra-vires manner. The appellants thus qualify for admission to the Advocates Training Programme. The decisions of the respondent as taken which concluded that unspecified High School grades were not met in the communications by the respondent are not sustained by the Tribunal and are all reversed.

40. On the use of conjunction ‘or’ in the second schedule of the Kenya School of Law Act, 2012 the Tribunal adopts the position as postulated in Justice Chacha Mwita in Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR at paragraph 110 as follows;“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’.”

41. The Tribunal finds that it is improper for the respondent to subject the appellants to the qualification requirements in section 1(b) while they ought to be considered in section 1(a) of the applicable law. Parliament in its wisdom while enacting the second schedule to the Kenya School of Law Act, 2012 did not intend that section 1(b) requirements be applied to category 1(a) applicants to the Advocates Training Programme and the Tribunal has no reason to doubt and inquire as to the wisdom behind the enactment as made.

42. As regards the communication of the decisions as taken by the respondent declining the appellants’ applications to the Advocates Training Programme, the Director was bound to comply with section 4 of the Fair Administrative Action Act, 2015. The same provides;Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.”

Disposition. 43. The Tribunal now decrees: -1. That the decisions of the Kenya School of Law dated the 8th February, 2022, 9th February, 2022 and 10th February, 2022 declining admission of the Appellants to the Advocates Training Programme are set-side.(a)Thata declaration is made that the appellants qualify for admission to Advocates Training Programme by dint of section 1(a) of schedule 2 of the Kenya School of Law Act, 2012. (b)Thatan order is issued compelling Kenya School of Law to admit the appellants to the Advocates Training Programme forthwith.(c)Thateach party to bear own costs of the appeal.(d)Thatany party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38(1) of the Legal Education Act, 2012. It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 11TH DAY OF MARCH, 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