[2022] KEHC 26952 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 286 OF 2019

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF ARTICLES 2, 3, 19, 20, 22, 23, 24, 25, 28,

29, 35, AND 47 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

BETWEEN

JEMIMAH NYAMBURA MWANGI.............................PETITIONER

VERSUS

KENYA SCHOOL OF LAW........................................RESPONDENT

JUDGMENT

THE PETITION

1. The Petitioner through an Amended Petition dated 24th November 2020 seeks the following reliefs:-

a) A declaration that statute law (miscellaneous) No. 18 of 2014 Act and Kenya School of Law Act 2012 cannot operate retrogressively and retroactively as relates to the petitioner who was already admitted to the degree programme prior to the change in law.

b) A declaration that the Petitioner’s right to legitimate expectation has been infringed by the Respondent institution.

c) A declaration that the Respondent’s action in denying the Petitioner admission to the advocate practice are in violation of Articles 27, 35 and 47 of the Constitution of Kenya.

d) An order of mandamus compelling the respondent institution to admit the Petitioner based on the criterion in statute before coming into force of the Kenya School of Law Act.

e) An order of certiorari be hereby issued to remove into this Court and quash the decision of the 1st Respondent contained in the letters of 23rd October 2017, 10th November 2017 and 14th December 2017 rejecting the Exparte Applicant’s application for admission to the 1st Respondent, sitting the pre bar exams and the subsequent appeal respectively.

f) That an order of mandamus do issue directed at the 1st Respondent to compel the 1st Respondent to admit the Exparte Applicant to the Keya School of Law.

g) That the respondent be compelled to forthwith admit the Petitioner to the Advocates Training Programme.

h) General damages.

i) Costs of the Petition.

THE PETITIONER’S CASE

2. The Petitioner was admitted to Moi University on 18th May 2012 to pursue a Degree of Bachelor of Laws and graduated on the 21st day of December 2017. She applied to the Council of Legal Education for clearance in order to apply to the Kenya School of Law, which clearance was granted. Her applications for admission to the Kenya School of Law and to sit for pre- bar examination in order to join the Advocates Training Programme at the respondent’s institution for the 2018/2019 academic year were rejected on the basis that she scored a D+ (D plus) in Kenya Certificate of Secondary Education.

3. Her case as presented in the petition and supporting affidavit sworn by herself is that, the respondent has barred her from undertaking the Advocates Training Programme for purposes of qualifying for enrolment to the Kenya Bar as an Advocate despite meeting the qualifications for admission to the programmes and being cleared by the Council of Legal Education. Hence it has violated her rights guaranteed under Articles 27, 28, 43(1) (f) and 47 of the Constitution.

RESPONDENT’S CASE

4. The Respondent filed a replying affidavit by Fredrick Muhia sworn on 17th September 2021. He deponed that the Respondent considered the Petitioner’s application according to the Council of Legal Education (Kenya School of Law) Regulation 2009, Legal Notice 169 of 2009 which does not have provision for academic progression as contemplated by the Petitioner.

5. It contends that it did not consider the application under the Kenya School of Law Act, 2012and any such impression was due to a mistake, error or miscommunication.

ANALYSIS AND DETERMINATION

6. Having carefully considered the Amended Petition, the Respondent’s response, and parties’ submissions I find that only one single issue arise for determination:-

a) Whether the Petitioner’s rights were violated.

A. WHETHER THE PETITIONER’S RIGHTS WERE VIOLATED.

7. The Petitioner argues that the decision by the 1st Respondent was unfair for the reason that it rejected her application twice despite having created a legitimate expectation that the Kenya School of Law Act, 2012 would not be applicable to the students who were admitted before coming into force of the said Act, and considering that it is discriminatory to afford different treatment to students whose circumstances are materially the same.

8. The decision by the Respondent to subject the Petitioner to the provisions of the new Act in determining her qualification to join the Advocates Training Programme, when those qualifications were obtained during a regime which deemed them suitable for admission to the program was unreasonable and a breach of Article 47(1) of the Constitution. Reliance is placed in the case of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, Judicial Service Commission v Mbalu Mutava Musyimi [2015] eKLR.

9. The Petitioner argues that she has been subjected to irreparable loss of time, ridicule and a standstill in her intended career as to date she is yet to be enrolled in the Kenya School of Law program because of applying the law retroactively which was unjustified. Reliance in support is placed in Associated Provincial Picture Houses v Wednesbury Corporation (supra)andKelvin K. Mwiti & others v Kenya School of Law & 2 others [2015] eKLR.

10. The Petitioner further submits that she has the mandate to enforce the bill of rights under Article 22 of the Constitution being that her right to equality and freedom from discrimination and right to inherent dignity and the right to have that dignity respected and protected have been violated. Further that this court is mandated to uphold and enforce the Bill of rights as envisaged under Article 165and Article 22 of the Constitution to issue the reliefs sought. She urges the court to grant the prayers as prayed in the Amended Petition.

11. The Respondent argues that its decision on the Petitioner’s admission was done in consideration of the relevant law, was lawful, rational, proportionate and fair. It relied on the case of John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs County Government of Nyeri & Ano.

12. The Respondent additionally argues that its actions were justified as after considering the Petitioner’s application and the law applicable then; the provisions of the Legal Education Act, Cap 16 A and L.N. 169/2009 her application was unresponsive under the First Schedule, Paragraph 5 of L.N. 169/2009 as she scored a D+ in KSCE which could not even qualify for pre-bar examinations under 5(d). Reliance is placed in the case of Kelvin Mwiti & others v Kenya School of Law & others [2015] eKLR.

13. The Respondent argues that the only legitimate expectation available for the Petitioner is that it consider the Petitioner’s application which it did. Legitimate expectation it is argued that it cannot subsist where there are clear contrary statutory provisions as such a decision would be illegal. The Respondent relied on Communication Commission of Kenya & 5 others vs Royal media Services & 5 others (SC Petition Nos 14, 14A, 14B & 14C of 2014)andH.W.R. Wade & C.F. Forsyth (Administrative Law, by HWR Wade F Forsyth, Oxford University Press, 2000).

14. Upon perusal of the letter addressed to the petitioner by the Council of Legal education clearing her to be admitted to the Kenya School of Law and the letter addressed to her from the respondent, it is clear that both the Council of Legal Education and the respondent made reference to the Kenya School of Law Act, 2012. The respondent has however indicated that this was a mistake and miscommunication on its part and that it did not use the said Act. I do agree that the law applicable in this matter should have been the law before the enactment of the Kenya School of Law Act, 2012 as the law does not operate retrospectively as provided for under Section 23(3) of the Interpretation and General Provisions Act. The case of Kevin Mwiti & others v Kenya School of Law, Council of Legal Education & Attorney General (Petition No. 377 of 2015) affirmed that position.

15. The Petitioner has argued that her legitimate expectation was violated being that she was conferred a degree programme from Moi University and was accepted by the Council of Legal Education, that she qualified admission into the Advocates Training Programme at the Kenya School of Law and that all the new regulations and amendments would not apply to her. While I do agree that by the said actions taking place, she had a legitimate expectation, that she would be admitted into the Advocates Training Programme, the question I would ask is;- whether the said actions were lawful? Was the letter of acceptance by the Council of Legal Education lawful? Was it lawful for the Moi University to admit her to the LLB programme knowing very well her qualifications at the time and the law that was in operation at the time?

16. The principles on legitimate expectation have been elaborated in Royal Media Services Ltd and 5 others (Petition No. 14 of 2014); there must be an express, clear and unambiguous promise given by a public authority; the expectation itself must be reasonable; the representation must be one which was competent and lawful for the decision maker to make; and there cannot be a legitimate expectation against clear provisions of the law or the Constitution.

17. The principle of legitimate expectation was well stated by the Supreme Court of Canada in Canada (Attorney General) v. Mavi, [2011] 2 S.C.R. 504, thus;-

“[68] Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite…”

18. The Council of Legal Education (Kenya School of Law) Regulations, 2009 which is the applicable law to the Petitioner herein stipulates the requirements for admission to the Advocates Training Programme. Regulation 4 states that 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 First Schedule to these regulations for that course.

19. The first schedule to the regulations sets out the minimum requirements for one to be admitted to the Advocates Training Programme. It states that:-

5. A person shall not be eligible for admission for the Post Graduate Diploma (Advocate Training Programme) unless that person has-

a) Passed the relevant examination of any recognized university in Kenya, she holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university;

b) passed the relevant examination of a university, university college or other institutions prescribed by the Council, she holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) in the grant of that university, university college or other institution, had prior to enrolling at that university, university college or other institution-

i) Attained a minimum entry requirement for admission to a university in Kenya; and

ii) A minimum grade B (plain) in English Language and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent;

c) a Bachelor or Laws Degree from a recognized university and attained a minimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in Kenya Certificate of Secondary Examination, holds a higher qualification e.g. “ A” levels, “IB” , relevant “Diploma”, other “undergraduate degree” or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws programme; or

d) a Bachelor of Laws ( LL.B) from recognized university and attained a minimum grade of C- ( C minus) in English and a minimum of an aggregate grade of C- ( C Minus) in the Kenya Certificate of Secondary Examination sits and passes the pre- Bar Examination set by the Council of Legal Education as a precondition for admission.

20. The Petitioner herein Scored a D+ (D plus) in KCSE and further attained three principal passes at “A” Level in the Uganda Advanced Certificate of Education (UACE) before being admitted to Moi University for her undergraduate. It is clear from the provisions cited above that she had not qualified to undertake the programme even at the undergraduate level or college level. Further, the fact that the Council for Legal education cleared her did not negate the fact that she did not meet the requirements set therein.

21. The legitimate expectation therefore as pleaded by the Petitioner is contrary to the provisions of Rule 4 and the First Schedule requirements on admission to the Advocates Training Programme. The argument that the respondent breached her right to fair administrative action is therefore baseless as she was informed of the reasons for rejecting her application to be admitted to the Advocates Training Programme and to undertake the pre- bar examination. In my view the orders sought by the petitioner cannot be granted.

22. In view of the aforesaid I find the Petitioner’s Amended Petition dated 24th November 2020 without merits. The same is dismissed. I direct each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 3RD DAY OF MARCH, 2022.

..............................

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA