[2023] KELEAT 183 (KLR)

Hussein v Kenya School of law and Council of Legal Education (Tribunal Case E007 of 2023) [2023] KELEAT 183 (KLR) (17 March 2023) (Judgment)

Neutral citation: [2023] KELEAT 183 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Tribunal Case E007 of 2023

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

March 17, 2023

Between

Issa Mohamed Hussein

Appellant

and

Kenya School of law and Council of Legal Education

Respondent

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated 4th January 2023 declining admission into the Advocates Training Programme during the 2023/2024 academic__ year)

Judgment

A. Introduction. 1. Issa Mohamed Huseein instituted an appeal against the decision of the Respondent the Kenya School Of Law denying him admission to the Advocates Training Programme for the academic year 2023/2024. The impugned decision is contained in a letter dated 4th January 2023 authored by the Respondent’s Director, Dr. Henry K. Mutai. The Appellant enjoined the Council of Legal Education as an Interested Party in the matter. The Appellant’s Notice of Appeal and Memorandum of Appeal both dated 11th January 2023 were accompanied by a Certificate of Urgency of even date and a Supporting Affidavit sworn by the Appellant on 11th January 2022. The Appellant also relies on his Further Affidavit sworn on 14th February 2023.

2. The Respondent filed its response through a Replying Affidavit of Mr. Fredrick Muhia – its Academic Services Manager. The Interested Party did not file any documents but sought to rely on the documents filed by the Respondent.

3. The Parties consented to the Appeal being disposed of by way of written submissions.

4. The Appeal seeks the following prayers:-a.That the decision of the Respondent as communicated by its Director in the letter dated 4th January 2023 declining admission of the Appellant to the Advocates Training Programme for the academic year 2023/2024 is set aside and substituted thereof with a finding that the Appellant is eligible to admission based on section 1(a) of the second schedule to the Kenya School of Law Act, 2012;b.That the decision of the Director of the Kenya School of Law contained in the letter dated 4th January 2023 be quashed;c.That the Appellant be admitted to the Advocates Training Programme for the academic year 2023/2024. d.That any other order that this Honourable Tribunal may deem just and expedient be granted.e.That the costs of the appeal be awarded to the Appellant.

B. The Appeal. 5. The Appellant states that the Respondent has declined to admit him into the Advocates Training Programme for the academic year 2023/2024 yet he is qualified under section 1(a) of the second schedule to the Kenya School of Law Act, 2012. He attained a mean grade of B (Plain) with a grade of a C + (plus) in both English and Kiswahili languages in his Kenya Certificate of Secondary Education (KCSE). He possesses a Bachelor of Arts Degree from the University of Nairobi attained in 2014. The Appellant states that in 2016, he was admitted to the University of Nairobi for a Bachelor of Laws Degree that commenced on 5th September 2016. He thereafter graduated with a Bachelor of Laws Degree (Second Class Honours (Upper Division)) attained on 16th December 2022 from the same University of Nairobi. In 2019, he attained a Master’s Degree in Public Policy and Administration from Kenyatta University.

6. Having attained these qualifications, the Appellant applied for admission to the Advocates Training Programme for the academic year 2023/2024 which application was declined by the Respondent vide its letter of 4th January 2023.

7. The letter of 4th January 2023 reads in part as follows:“Reference is made to your application for admission into the Advocates Training Programme (ATP) at the Kenya School of Law.It is regretted that your application was not successful for admission due to the following reason (s): Has not met KCSE requirements English C+ Kiswahili C+Thank you Yours sincerely,Dr. Henry K. MutaiDirector/chief Executive Officer.”

8. The Appellant impugns the decision taken on 4th January, 223 on the basis that it is based on a misinterpretation of the law as he is qualified under section 1(a) of the second schedule to the Kenya School of Law Act, 2012. He also states that the decision infringes on his right to education and finally that having done his KCSE examination in Kenya, his Bachelor of Laws Degree from the University of Nairobi which is a university accredited by the Interested Party, he is qualified for admission to the Advocates Training Programme for the academic year 2023/2024. He finally states that he has a constitutional right to education.

C. The Response to the Appeal. 9. The Respondent states that its mandate is to inter-alia train persons for purposes of the Advocates Act (Cap 16) for which it offers the Advocates Training Programme. It further states that matters of admission to the Respondent’s Advocates Training Programme are exclusively provided for under Section 16 of the Kenya School of Law Act, 2012. Therefore, since according to the Respondent, the Tribunal’s jurisdiction is restricted to matters under the Legal Education Act 2012, the Tribunal lacks jurisdiction to handle the matter.

10. The Respondent further states that upon examining the application for admission to the Advocates Training Programme by the Appellant, it found him ineligible as per the eligibility criteria set out in Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, 2012. The Appellant, according to the Respondent was relying on academic progression to be admitted to the Advocates Training Programme yet the Kenya School of Law Act, 2012 does not have a provision for academic progression.

11. Finally the Respondent indicated that the Court of Appeal has supported the Respondent’s interpretation of the law on admission to the Advocates Training Programme.

D. The submissions by the Parties. 12. The Appellant submits in his written submissions dated 14th February 2023 that he qualified for admission into the University of Nairobi Bachelor of Laws Degree programme by dint of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. He states in his submissions that he was admitted to the degree programme in 2016 and it commenced on 5th September 2016.

13. He relies on the case of MuchekevKenya School of Law ( Appeal E026 of 2022) KEL EAT 853 (KLR).

14. The Appellant further submits that he meets the requirements under section 1(a) of the second schedule to the Kenya School of Law Act, 2012 and relies on the cases of Maina & AnothervKenya School of Law and Council of Legal Education ( Appeal E012 & 14 of 2022) KEL EAT 1 (KLR) and the decision of Justice Mativo as he then was in Republic v Kenya School of Law & Another ex-parte Kithinji Maseka Semo & Another(2019) eKLR.

15. Through its submissions dated 20th February 2023, the Respondent first takes issue with whether the Tribunal has jurisdiction to hear and determine the Appeal. The Respondent relies on the definition of “jurisdiction” in Black’s Law Dictionary, Sixth Edition and Halsbury’s Laws of England, 4th Edition, Volume 10, Paragraph 314. It also quoted the Constitution of Kenya, 2010, article 159. The Respondent also relies on the cases of the Law Society of Kenya V Centre for Human Rights and Democracy & 13 Others (2013) eKLR, Bakeries LimitedvRent Restriction Tribunal and Kiriti Raval Nairobi HCMCC No. 246 of 1981, Ex-Parte Mayfair Bakeries Limited V rent Restriction Tribunal and Kirit Raval, Nairobi HCMCC No 246 of 1981 and the Owners of the Motor Vessel “Lillian S” Vs Caltex Oil(Kenya Limited(1989)eKLR.

16. The Respondent contends in these submissions that the Tribunal was created by the Legal Education Act, 2012 under part VI and its jurisdiction under that Part, is to hear appeals on matters arising out of the Act. That the matter before the Tribunal relates to an appeal from a provisions of the Kenya School of Law Act, 2012. The Tribunal’s jurisdiction is limited to matters that relate to the Legal Education Act, 2012. That the Tribunal is a creature of the Act which was enacted to establish it in this instance, the Legal Education Act, 2012 which is an Act 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. The Respondent, therefore, submitted that the Tribunal does not have jurisdiction to hear and determine this appeal.) eKLR .

17. The Respondent also submits that the process of admission to the Respondent’s Advocates Training Programme (ATP) is exclusively provided for under section 16 of the Kenya School of Law Act, No. 26 of 2012 which states that;“16. Admission requirements: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.”

18. The Respondent further submitted that it is required by its establishing Act; 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 which is provided in section 17 of the Act. The Respondent submitted that the Appellant’s appeal essentially asks for the Tribunal to grant her admission to the School and thereby arrogate the statutory duties of the School. The Respondent relied on the decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others, (2012) eKLR it was stated that;“Unless that restriction on the power of the court is observed, the court will...under the guise of preventing the abuse of power, be itself guilty of usurping power...Judicial review, as the word simply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

19. The Respondent contends that the establishment of two routes for consideration of applications to the Programme amounts to discrimination. It relies on Odunga J in Sollo Nzuki v Salaries and Remuneration Commission & 2 Others, (2019) eKLR sought to make a determination of what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination.

20. On whether the Respondent’s decision to refuse admission was a breach of legitimate expectation, the Respondent relied on in the recent pronouncement by the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, in which Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A held;“For the avoidance of doubt, the basic requirements for KCSE under section 16 and the Second Schedule of the KSL Act are for both applicants who studied in or out of Kenyan universities. The section should be read as a whole and not in bits and pieces and the three conditions which are precedent must be met before admission to the KSL. Failure to meet the basic requirements of the qualifications in KCSE as envisaged in the above section renders one’s application incompetent and hence ripe for rejection by the appellant.The regulations cannot override the provisions of an Act of Parliament.”

21. On academic progression, the Respondent states that the Kenya School of Law Act, 2012 as amended by the Statute Law Miscellaneous Amendments Act (No. 18 of 2014) does not provide for academic progression.

E. Analysis and determination. 22. The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme constitute the crux of the appeal herein. The Parties have taken up the said matters. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the interested party the powers to amongst others regulate the admission criteria to legal education programmes. It provides;“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;...”

23. The said position has been upheld by the pronouncement of Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Othersin which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A held;“The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.”

24. The interested party and the Tribunal are established under the same statute thus, the Tribunal has the requisite jurisdiction to inquire into the appeal before it by dint of section 31 (1) of the Act which provides;“(1)The Tribunal shall, upon 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 this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”

25. Indeed it is clear that an express conferment of jurisdiction exists in this matter as opposed to being an implication. Hence based on the authority inRepublic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR the Tribunal is well empowered to deal with the Appeal. In the said matter it was stated;“Testing whether a statute has conferred jurisdiction on an inferior court or Tribunal … The wording must be strictly construed; it must in fact be an express conferment and not a matter of implication and that a Tribunal is a creature of statute and has only such jurisdiction as has been specifically conferred upon it by the statute.”

26. Now turning to the substantive Appeal, the Appellant’s primary contention was that he was entitled to admission to the Advocates Training Programme predicated on the fact that he held Bachelor of Laws degrees from recognized university in Kenya. Thus, they were only to be subjected to the scrutiny in section 1 (a) as opposed to 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012. For ease of reference the Tribunal reproduces the same as follows;“(a)Admission Requirements into the Advocates Training Programme.(1)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; 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.”

27. The Tribunal had in its earlier decisions adopted the literal cannon on statutory interpretation of the said law by finding that the existence of the conjunction ‘or’ between the two sections connotes an elective and a disjunctive interpretation has been to be adopted. Hence, the applicants to the Advocates Training Programme were only to be subjected to singular as opposed to conjunct criteria in consideration of their applications to the programme. The said position has however since changed based on the pronouncement of the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A observed;“It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act, distinguishes applicants who hold a Bachelor of Laws degree from Kenyan University and those from a foreign University. We are of the view that with the use of semi-colon between 1 (a) and (b) of the Act then the conditions follow which to us means that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.”

28. Based on a conjunctive interpretation, the Respondent’s decision as taken declining admission to the Advocates Training Programme on a cursory examination would be upheld as the Appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above. The Appellant attained grades C+ (plus)) in both English and Kiswahili languages which was below the stipulated minimum of a B(plain).

29. We also note that the Appellant also contended that he qualifies for admission under Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Interested Party had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;“5. Undergraduate Degree Programme

(1)The minimum admission requirements for an undergraduate degree programme in law shall be —a.a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;b.at least three Principal Passes in the Kenya Advanced Certificate of Education examination;c.a degree from a recognised university; ord.a Credit Pass in a diploma in law examination from an accredited institution.”

30. The said efforts were however, found to have been inchoate based on the decision of the superior court initially and as affirmed by the Court of Appeal in a Constitutional Petition lodged in the High Court at Nakuru in Petition no. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another. The petitioners challenged the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 rendered herself as follows;“The first issue here is the legality of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The petitioners contend that the said regulations were made in contravention of article 10 of the Constitution. They further contend that the 1st respondent was not properly constituted in accordance with section 4 (5) of the Legal Education Act at the time of making the said Regulations and that the 1st respondent does not have the powers to accredit foreign institutions. However, the true position is that the Regulations have not yet become subsidiary legislation because they have not yet been adopted by Parliament as required by section 14 of the Statutory Instruments Act. Thus this provision renders the said regulations void and unenforceable.”

31. With the said pronouncement which was a declaration of invalidity of law, the said Regulations (which had come into force on 6th February 2016) that contained the formulated criteria for admission ceased to have had any legal consequence from their inception. This included the set out admission criteria to the various legal education programmes contained in them. However, on appeal to the Court of Appeal the retrospective application of the said declaration was clarified as not being applicable to crystalized actions. The Court in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 34, 35 and 47 of the judgment while upholding the decision of the superior court as made on the 30th January, 2018 pronounced itself additionally as follows;“34. The record does not disclose that following gazetting of the impugned regulations, that they were thereafter, laid before Parliament and adopted….

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 shortcomings the appellants have conceded, it becomes evident that the impugned regulations were not adopted and as a consequence, did not acquire the force of law…

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 judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.”

32. In this appeal, the crystalized actions that arise would entail a consideration of the point at which the Appellant had secured admission to the Bachelor of Laws degree programmes at the time the initial decision on the invalidity of the Regulations was entered by the superior court on the 30th January 2018. As regards the Appellant, he secured admission to the said degree on the 5th of September 2016 accordingly, he is entitled to the benefit of a crystalized action as a saving to the effect of the declaration made on 30th January 2018.

32. On legitimate expectation, the Appellant did not raise the same though the Respondent submitted on it. We shall not make any findings on the same.

F. Disposition. It is decreed:-a.That the appeal by Issa Mohamed Hussein is allowed and the decision dated the 4th of January 2023 as communicated by Dr. Henry K. Mutai - Director of the Kenya School of Law declining admission to the Advocates Training Programme is quashed and set aside.b.That an order is issued directing the Respondent to forthwith admit the Appellant Issa Mohamed Hussein to the Advocates Training Programme.c.That each party to bear its own costs of the appeal.d.That 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 17TH DAY OF MARCH 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSON.....................................EUNICE ARWA - (MRS.) - MEMBER.....................................RAPHAEL WAMBUA KIGAMWA (MR.) – MEMBER.....................................STEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal. REGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)