[2023] KELEAT 456 (KLR)

Gitau & another v Kenya School of Law (Appeal E021 of 2023) [2023] KELEAT 456 (KLR) (9 August 2023) (Ruling)

Neutral citation: [2023] KELEAT 456 (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

August 9, 2023

Between

Michael Waweru Gitau

1st Appellant

Hazel Wanjiku Kamau

2nd Appellant

and

Kenya School Of Law

Respondent

(Being an application for contempt of court in-respect of the judgment of the Tribunal dated the 8th June, 2023 setting aside the decisions of Dr. H. K. Mutai – Director of the Kenya School of Law revoking gran .ted admissions to the Advocates Training Programme during the 2023/24 academic yea)

Ruling

Ruling of The Tribunal Introduction and background. 1. On the June 9, 2023 the Tribunal delivered judgment in this appeal in which it decreed inter-alia as follows:-a.The decisions revoking the admission of the appellants to the Advocates Training Programme during the 2023/2024 academic year as communicated by Dr Henry K Mutai Director/Chief Executive Officer of the respondent on the February 22, 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 unconditionally.On the June 26, 2023 the respondent in seeking to comply with the judgment wrote to the appellants as follows;“… following the judgment delivered on June 9, 2023, the school will comply with the orders. Pursuant to order (a) and (b) you may resume classes. You will be expected to comply with the relevant laws and regulations governing the programme. Kindly do take notice that the school shall not grant any extensions on any set timelines for the programme and your compliance with the said timelines will be mandatory.Yours Sincerely,Dr Henry K MutaiDirector/chief Executive Officer.”The appellants have now filed an application dated the July 8, 2023 complaining about non - compliance on the part of the respondent with the terms of the judgment. The appellants in the application seek for prayers as follows:-a.Thatthe Tribunal be pleased to issue summons against the respondent herein to appear before this Tribunal Court and show cause why they should not be committed to civil jail for such term as the Tribunal, may deem just for contempt for disobedience of the judgment or order issued by this Tribunal on June 9, 2023. b.That the respondent be cited for contempt of court and be committed to civil jail for a term of six (6) months until they purge their contempt and comply with the order of this Honourable Tribunal issued on June 9, 2023. c.Thatfurther to prayer (b) above this Tribunal orders and/or directs the respondent to:-i.Re - admit the applicants back into the ATP Programme during the 2023/24 academic year.ii.Approves and confirms the applicants for receipt of their project marks.iii.Clears the applicants for the oral examinations.Directions as to service of the application were given and the respondent filed a response through it’s Principal Officer – Academic Services Mr Fredrick Muhia.

The Response To The Application. 2. In response it was stated that the respondent’s duty is to verify that persons presented to take the bar examination have indeed met the requisite qualifications by examining and verifying the original documents including transcripts and the degree certificate. In the exercise of the duty, the respondent requires the original documents to be produced by candidates prior to their being cleared to sit any component of the bar examination. Following the judgment of the Tribunal, the respondent complied with the orders by re-admitting the applicants vide a letter dated the June 26, 2023 which the appellants had and it was false that it had been non-responsive to the applicants. It was contended that the respondent at the time of registration, had set the deadline for producing the original documents to be before the oral examinations and all students were expected to comply with the requirements of producing the original documents before sitting for the bar examination.The applicants were requesting to be granted a waiver to the Regulations which act as a check and balance to ensure only persons who have actually graduated sit for examinations. In the respondent’s view, according the appellants a waiver and special extensions would be unfair and it would grant them an undue advantage. It contends that allowing people to ignore the provisions on the basis that they do not have an original degree certificate would be to amend the Regulations thus effectively legislating. Thus, the appellants ought to comply with the provisions of the Act and Regulations as is expected of all other students in the ATP Programme and special treatment was not warranted or justifiable in law and consequently the prayers ought to be rejected.

Submissions on The Application. 3. The motion proceeded by way of oral submissions. Prior to the taking of the same, the 1st appellant withdrew from the application indicating that he would defer his registration to the Advocates Training Programme to the next academic year. The 2nd appellant however, proceeded to prosecute the motion. She reiterated the grounds of the motion and the contents of the supporting affidavit.In a nutshell she submitted that the Director of the respondent had still maintained that she had to adhere to the commitment forms and produce the original degree certificate before she could be cleared for project marks and oral examinations. The Director had maintained that the judgment of the Tribunal had only directed that the appellants were to be allowed to only attend classes and that the school retained the liberty to deny clearance for oral examinations and project marks. The Director had insisted that she will sit for oral examinations and will redo the project work for the ATP Programme during the 2024/25 academic year scheduled to commence in the year 2024. In her view the respondent was subjecting her to an injustice by deliberately interpreting the orders with a view to evade or avoid their implementation.The respondent in response relied on it’s replying affidavit as filed and reiterated that it had complied with the judgment and was still willing to comply with the directions to be given by the Tribunal.

Analysis and determination 4. The Tribunal pronounced itself in unequivocal terms in a judgment delivered on the June 9, 2023 over the issue of the production of the original LLB degree certificate by the appellants. It was appreciated that the law on admission had not prescribed the original degree certificate as a precondition for enrolment to the Advocates Training Programme. Indeed, for the respondent to set the same as a condition for the sitting of any examinations would be misconstruing the judgment of the Tribunal and the law in force.

5. Section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 was well analyzed in the judgment of the Tribunal and it was concluded that the appellants were only bound to establish eligibility for conferment with the LLB degree from a recognized university, which they did. The said finding was well buttressed by case law from the superior court as settled in Kevin K Mwiti & Others v Kenya School of Law & 2 Others [2015] eKLR in which Justice Odunga as he then was had arrived at a conclusion consistent with that of the Tribunal.

6. The issue of the commitment form was also argued by the respondent in the appeal, the form, it said, had set a timeline for the appellants to avail the original degree certificate based on a deadline. This argument did not find favour with the Tribunal. The commitment form could not override what Parliament had legislated on in section 1 (a) of the Kenya School of Law Act, 2012 as read with section 16 of the said Act. No appeal has been proffered to the superior court by the respondent over the findings of the Tribunal in this matter.

7. It is improper for the respondent to continue insisting that the applicant produces a document that it is well aware she does not have as the graduation ceremony of the University of Nairobi has not been held. The applicant properly established her eligibility for conferment with the degree. The respondent is in error to insist that the applicant complies with what the Tribunal in its judgment found as not applicable. The judgment of the Tribunal as rendered was to the effect that the reinstated admission of the appellants to the Advocates Training Programme was unconditional after the Tribunal set aside the revocation. The status ante revocation was immediately resumed upon the Tribunal pronouncing itself in its judgment. The Tribunal is well fortified in this matter based on the decision in Republic v Kenya School of Law & 2 Others ex-parte Juliet Wanjiru Njoroge & 5 Others, [2015] eKLR in which Justice George Odinga held at paragraph 29 as follows;“Therefore the effect of quashing the decision revoking the ex-parte applicant’s admission to the school was that the status ante the impunged decision was restored with the effect that the ex parte applicants were restored to their positions before the said decision and that status was that they were students at the school. Court orders, it is appreciated are serious matters that ought not to be evaded by legal ingenuity or innovations. By deliberately interpreting court orders with a view to evading or avoiding their implementation can only be deemed to be contemptuous of the court. Where a party is for some reason unable to properly understand the court order one ought to come back to court for interpretation or clarification.”

8. In this matter the Tribunal by way of clarification directs that the decree was explicit that the admission was unconditional. The respondent cannot impose conditions on eligibility of the applicant to the Advocates Training Programme post admission. The insistence that the applicant avails the original degree certificate would run a foul the decree of the Tribunal. Accordingly, the respondent ought to allow the applicant to sit for examinations and if she successfully satisfies the examiners, grant her the requisite clearance to enable her advance her career to admission to the Bar.

9. In this matter though it involves contempt proceedings, the Tribunal has well noted that the respondent has expressed willingness to comply with the decree of the Tribunal and its directions. In such case the respondent would not be categorized as a recalcitrant litigant for contempt proceedings. The Tribunal is well guided by the decision in Directline Assurance Company Ltd v Jamii Bora Bank Ltd & 5 Others (2015) eKLR in which at paragraph 13 Justice Eric Ogola held;“... A civil court has no interest in punishing a litigant, unless a litigant leaves the court with no option but to resort to quasi-criminal proceedings to punish a litigant. When court orders are disobeyed, or are about to be disobeyed and the contemnor comes down and purges the contempt, either out of his own free will or at the prompt of the court, the court will accept the purge of the contempt unless circumstances exist to suggest that the coming down or the alleged purging of the contempt is not genuine or is done in bad faith or is in itself a continuation of the original contempt. In accepting the coming down of the contemnor, the court will assess the reasons given for the disobedience, the time taken to come down and the cost incurred in the process.”

Disposition.a. That the respondent is ordered to comply unconditionally with the judgment/decree of the Tribunal in this matter without according any qualifications to its terms by way of demanding the production of the original LL.B degree certificate from the University of Nairobi from the applicant and to allow the applicant to sit for examinations.b. That each party to bear own costs of the application.c. That any party so 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 OF AUGUST, 2023ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBER