[2023] KELEAT 383 (KLR)

Gitau & another v Kenya School of Law (Appeal E021 of 2023) [2023] KELEAT 383 (KLR) (9 June 2023) (Judgment)

Neutral citation: [2023] KELEAT 383 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E021 of 2023

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

June 9, 2023

Between

Michael Waweru Gitau

1st Appellant

Hazel Wanjiku Kamau

2nd Appellant

and

Kenya School Of Law

Respondent

(Being appeals against the decisions of Dr. H. K. Mutai – Director of the Kenya School of Law all dated the 22nd day of February, 2023 revoking granted admissions to the Advocates Training Programme during the 2023/24 academic year)

Judgment

A. Introduction. 1. Michael Waweru Gitau and Hazel Wanjiku Kamau lodged separate memorandums of appeals however, all dated the 28th February, 2023 against the decisions of the respondent the Kenya School Of Law revoking their admissions into the Advocates Training Programme. Both appeals were supported by affidavits sworn by the Appellants. The appeals thereafter proceeded as a consolidated cause based on commonality of the issues arising therefrom.

2. The respondent filed a reply through Mr. Fredrick Muhia – the Academic Services Manager at the Kenya School of Law.

3. The appeals were directed to be disposed of by way of written submissions with the consent of the Parties. Only the appellants filed their written submissions.

4. The appeals seek the common prayers as follows:-a.That the appeals be allowed and the decisions of the Director be set aside.b.That the appellants be re-registered back into the Advocates Training Programme 2023/2024. c.That the appellants be allowed to sit for their oral exams with only the final transcripts.d.That the appellants be granted an extension to present the degree certificates.

B. The appeals. 5. The 1st appellant states that he is a former student of the University of Nairobi’s School of Law where he completed his studies in 2022 and was awarded a Second Class Honours (Lower Division). He successfully applied to be admitted at the respondent’s Advocates Training Programme (ATP) for the academic years 2023/2024. He made this application using his final transcripts and the completion letter from the said University. He then began his studies. His admission was thereafter revoked following the realization that he will not have submitted his degree certificate by 18th August 2023 following the University’s decision to extend the graduation ceremony from August to September in the year 2023. He made several requests to the respondent’s Director and the University’s School of Law Dean and Academic Registrar but the matter was not resolved.

6. Similarly, the 2nd appellant states that she is a former student of the University of Nairobi’s School of Law where she completed her studies in 2022 and was awarded a Second Class Honours (Lower Division). She then successfully applied to be admitted at the respondent’s ATP for the academic year 2023/2024. She made this application using her final transcripts and the completion letter from the said University and was given admission number 20231317. She then began her studies. Her admission was thereafter revoked by a letter of 22nd February 2023 following the realization that she will not have submitted his degree certificate by 18th August 2023 following the University’s decision to extend the graduation ceremony from August to September. She made several requests to the respondent’s director and the University’s School of Law Dean and Academic Registrar but the matter was not resolved.

7. The 1st appellant has exhibited the completion letter from the University dated 15th December 2022 which reads as follows:“To Whom It May ConcernDear Sir/Madam,RE: Gitau Michael Waweru -G34/13xxxx/ 2019This is to confirm that the above-named is a student at the Faculty of Law, University of Nairobi. He completed his studies leading to the award of the Bachelor of Laws (L.L.B.) degree and is awaiting graduation.He was admitted to the Faculty of Law in September 2019. Any assistance accorded to him will be highly appreciated.Yours faithfully,Prof. Winifred KamauDean Faculty Of Law.”

8. The 2nd appellant also exhibited an identical letter to the one issued in respect of the 1st appellant above.

9. The decision to revoke the 1st appellant’s admission into the Advocates Training Programme was communicated through a letter dated 22nd February 2023 as follows;“We make reference to our provisional admission letter dated 29th December 2022 and subsequent registration on 20th February 2023. It has come to our attention that the next graduation ceremony of the University of Nairobi will be on 23rd September 2023. This confirmation negates your commitment to provide the LL.B certificate on or before 18th August 2023. In light of the above, it is evident that your application to join the 2023 ATP class was premature as it was all along not going to meet the deadlines prescribed in the School’s academic calendar. For this reason, your registration being void ab initio is hereby revoked and any monies paid by yourself in form of school fees will be refunded at the earliest opportunity. You are advised to join the next academic year.Thank youYours sincerely,Dr. Henry K. MutaiDirector/chief Executive Officer.”

10. The 2nd appellant also received a similar letter from the respondent’s director communicating its decision to revoke her admission into the Advocates Training Programme.

11. The appellants impugn the decisions as taken on 22nd February 2023 on the basis that they had met the admission requirements for Advocates Training Programme.

C. The response to the appeals. 12. In response to the appeals, the respondent contends that the appellants applied for the Advocates Training Programme and their applications were deemed qualified and letters of admission issued to the appellants.

13. The said letter of offer, according to the respondent was an offer to take up a place in the Advocates Training Programme upon meeting the conditions stipulated in the letter including producing the original degree certificates and transcripts at the time of registration by 3rd February 2023.

14. The Respondent further contends that admission is a two-step process that involves the admission (offer) and the registration which involves the prospective student completing the formalities and joins the nominal roll and can attend classes.

15. During the admission and registration, the appellants had not graduated and the respondent allowed them to register on conditions that they would not take any component of the bar examination unless they produced their degree certificates by 14th July 2023. The respondent produced as exhibits the commitment forms by the appellants which were identical save for the names and admission numbers. They read as follows:“I Gitau Michael Waweru Admission number 202xxxxx.Do hereby commit to submit my LLB Degree certificate/Final academic transcript(s) on or before 18th August 2023. I fully acknowledge that failure to submit the said document on the date stipulated will lead to immediate de-registration from the School.I also commit to be of good conduct during my entire duration in the School and to abide with the stipulated dress code at all times.”

16. Upon noticing the predicament of the appellants and other students, the respondent on its own motion extended the deadline for producing the said documents from 14th July 2023 which is the commencement of the oral examination to 18th August 2023 which is the last week of the oral examination so that the affected students would take the examination on presenting the original degree certificates.

17. The University wrote to the respondent confirming that the appellants’ graduation was scheduled for 23rd September 2023 by a letter from its Vice - Chancellor Prof. Kiama.

18. The respondent states that the production of the original certificates before taking the oral examination is a requirement of the law and that the appellants seek preferred status that is discriminatory to other students.

D. The submissions by the appellants. 19. Only the appellants submitted in this matter on three issues as follows:a.Whether the appellants met the admission requirements for admission to the ATP?b.Whether the revocation of the appellants’ admission violated their right to legitimate expectation?c.Whether the decision was just, fair and procedural?

20. According to the appellants, the Kenya School of Law Act, 2012 sets out a one-step process of admission into ATP under sections 1(a) and (b) of the second schedule.

21. The provision above allows every student who has completed their LLB degree awaiting graduation ceremony to be admitted to the ATP according to the appellants.

22. The appellants also claim that their right to legitimate expectation was violated by the respondent’s decision and quotes the cases of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others and Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO (2019) eKLR

23. The appellants also contend that the respondent’s decision was unfair.

24. The respondent did not file submissions in this matter.

E. Analysis and determination. 25. The Second Schedule of the Kenya School of Law Act, 2012 as amended by Statute Law (Miscellaneous Amendments) Act, 2014 by sections 1 (a) and (b) provides for the admission qualifications to the School as follows;“A person shall be admitted to the School if—(a)having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or(b)having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—(i)attained a minimum entry requirement for admission to a university in Kenya; and(ii)obtained a minimum grade x (plain) in English Language or Kiswahili and a mean grade of x (plus) in the Kenya Certificate of Secondary Education or its equivalent; and(iii)has sat and passed the pre-bar examination set by the school.”

26. The applicable admission provision to the appellants in this matter in considering eligibility to the Advocates Training Programme is section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012. Each of the appellant’s contention is that they have become eligible for an award of the Bachelor of Laws degree from the University of Nairobi.

27. The Dean of the School of Law at the said University has confirmed eligibility of the appellants to the said award. Based on the law as laid - down by the legislature at section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 one who becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of a University, University College or Institution is eligible to admission to the Advocates Training Programme.

28. The appellants’ eligibility for purposes of conferment by the University of Nairobi to the Bachelor of Laws degree is not in dispute. The Dean of its School of Law and the Vice - Chancellor who is also the Secretary of the Council of the University confirms the eligibility of the appellants for conferment with the said award.

29. The Tribunal accordingly, finds that the appellants were eligible for admission to the Advocates Training Programme based on the express statutory enactment as set out by the legislature.

30. The Tribunal further finds that the fact that the respondent required the appellants to execute commitment forms to submit the original degree certificates as a pre-condition to sit the oral examinations was not backed by law.

31. The same was not substantiated before the Tribunal and runs a foul the provisions of section 1 (a) of the of the Second Schedule to the Kenya School of Law Act, 2012. The Tribunal is well fortified in its finding based on the decision in Kevin K. Mwiti & Others v Kenya School of Law & 2 Others (2015) eKLR in which Justice Odunga J as he then was held;“…The law requires applicants to the School to demonstrate that they have become eligible for conferment of Bachelor of Laws Degree and that the applicants may show this by furnishing the School with provisional transcripts. The School will, however, not accept applicants who have not completed their Bachelor of Laws Degree programme. Under the law, such applicants are not eligible to join the ATP programme.Under the Second Schedule aforesaid the criteria for admission to the ATP is inter alia that the applicant 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. There is no hard and fast rule thereunder that an applicant must possess the degree certificate since eligibility for conferment thereof is an option. The notice clearly provided for the option of eligibility for conferment. However, the petitioners are aggrieved with the requirement of final academic transcripts. To impose conditions which are not contemplated under the Act in my view amounts to acting ultra vires the powers conferred by the Act. Whereas the School is entitled to decide what amounts to proof of eligibility for conferment with a degree, such proof must be reasonable in the circumstances and I do not see why the School cannot rely on documents confirmed by the accredited Higher Institutional of Learning to admit the applicants. To the extent that the notice talked of final transcripts which the Petitioners contend are only issued upon graduation, I agree that that requirement is not only unreasonable but outside the contemplation of the Act.”

32. The Tribunal also finds that the requirement to demand the production of the original degree certificates and transcripts by the respondent was not only unlawful but unreasonable as the respondent acted ultra-vires its statutory provisions. Section 16 of the Kenya School of Law Act, 2012 provides;“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.”

33. The appellants had met the requirement of eligibility for the award of the Bachelor of Laws degree as provided for in the law. The respondent had no legal mandate to demand for the degree or to set a date to void the admission to the Advocates Training Programme for failure to comply with a condition that was not provided for in the Second Schedule to the Kenya School of Law Act, 2012. We hold the view that the actions of the respondent are unreasonable in the circumstances. The Tribunal in arriving at the said conclusion adopts the findings in Council for Civil Service Unions v The Minister for Civil Service, (1985) A.C. 324 at 401D where Lord Dipplock as he then was stated;“… By “irrationality”, I mean what can now be succinctly referred to as “Wednesbury unreasonableness”… it applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it…”

34. On the issue of fair administrative action it is clear that the respondent acted in an unfair and summary manner in revoking the admission. The basic requirements as to a hearing were clearly breached. The appellants’ admissions were revoked in breach of compliance to the requirements of fair administrative action as provided for in article 47 of the Constitution of Kenya, 2010. The appellants ought to have been presented with the specific reasons that rendered their admissions to be revocable and invited to demonstrate their reasons as to why the action of revocation ought not to have been visited upon them. The Tribunal accordingly finds that a good case to warrant judicial intervention has been established by the appellants over the decisions taken by the respondent and it so intervenes based on the authority in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others (2007) KLR 240 in which Odunga J as he then was held;“When litigants come to the courts it is the core business of the courts and the courts’ role is to define the limits of their power. It is not for the Executive to tell them when to come to court! It is the constitutional separation and balance of power that separates democracies from dictatorships. The courts should never, ever, abandon their role in maintaining the balance.”

Disposition. 35. The appeals are allowed and it is decreed:-a.The decisions revoking the admission of the appellants to the Advocates Training Programme – 2023/2024 academic year as communicated by Dr. Henry K. Mutai – Director/Chief Executive Officer of the respondent on the 22nd. February, 2023 are hereby set-aside and the appellants admissions to the Kenya School of Law are reinstated forthwith.b.The respondent is ordered to forthwith allow the appellants to return to the Advocates Training Programme during the current academic year of 2023/24. c.Each party to bear own costs of the appeal.d.Any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.

It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 9TH DAY OF JUNE , 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBER