John v Council of Legal Education (Tax Appeal E042 of 2026) [2026] KELEAT 19 (KLR) (21 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E042/2026 JOHN VS THE COUNCIL OF LEGAL EDUCATION JUDGMENT # A. Introduction and Background 1. The appeal, dated 7th April 2026, arises from the Respondent's constructive refusal to determine the Appellant's application dated 3rd October 2025, in which the Appellant sought confirmation on whether his foreign legal-practice qualifications satisfy, or fall within, "any other qualifications" recognised under section 13(1)(c) of the Advocates Act for admission as an Advocate of the High Court of Kenya. The Appellant contends that, despite numerous inquiries, including the most recent communication dated 4th March 2026, the Respondent failed to assess the application and communicate a decision within a reasonable time, thereby effectively constituting a refusal. 2. The Appellant avers that the Respondent’s deemed or constructive refusal wasunlawful, being unreasonable, unfair, unjust, illegal, irrational, and improperly influenced by irrelevant considerations, and further evidencing conduct that was arbitrary, capricious, and suggestive of bad faith. 3. The Appellant avers that the Respondent failed to exercise its statutory discretion under section 8(1)(e) of the Legal Education Act and section 13(1)(c) of the Advocates Act to assess and determine whether the Appellant’s foreign legal practice qualifications fall within “any other qualifications” recognised by law. 4. In the Respondent’s replying affidavit sworn on 4th May 2026, the deponer, Prof. Busalile, Jack Mwimali avers that he is the Chief Executive Officer of the Respondent. They claimed that the Appellant made an inquiry through an email to the Respondent first on 23rd September 2025 seeking guidance on his eligibility for admission to the Roll of Advocates in Kenya under section 13 (1) (e) of the Advocates Act and attached his academic certificates. 5. The Respondent further aver that they duly responded to the Appellant’s inquirythrough an email dated 24th September 2025, informing him that admission to the Roll of Advocates in Kenya under section 13 (1) (e) of the Advocates Act was under the purview of the Judiciary, and the Respondent requested the Appellant to inquire from the Judiciary for further guidance. They claim that on the 3rd October 2025, Appellant shifted the goal post from inquiring on the issue of his Admission to the Roll of Advocates under Section 13 (1) (e) to Section 13 (1)(c) of the Advocates Act CAP 16, inquiring whether his qualifications are acceptable or recognized by the Respondent under Section 13 (1) (c) of the Advocates Act, and he attached academic documents. 6. The Appellant states in his Replying Affidavit that he is a Kenyan citizen admittedto practice before the Supreme Court of Victoria, Australia, on 13th July 2022, and first contacted the Respondent on 23rd September 2025 via the Respondent’s helpdesk. He sought guidance on eligibility for admission to the Roll of Advocates in Kenya under Section 13(1)(e) of the Advocates Act, attaching his academic certificates and a Victorian court order. The Respondent responded on 24th September 2025, advising that admission under Section 13(1)(e) falls under the purview of the Judiciary and directing the Appellant to the Judiciary for further guidance. **B. Parties Submissions** # The Appellant 1. On the issue of jurisdiction, the Appellant submits that the Respondent being acreature of the Legal Education Act, performs all its function, including those under Section 13(1) (c), in that capacity. They claim that section 13(1)(c) is subordinate to and complementary to section 8(1)(e) and his application falls within the Respondent’s mandate under section 8(1)(e). He further contends that the Tribunal has full jurisdiction under Section 31(1) of the Legal Education Act. 2. On the point on ripeness, the Appellant submits that the matter is ripedetermination because his application was lodged over eight months ago and no decision has been made, no process is demonstrably underway, and the Respondent have themselves admitted the absence of any structured criteria for determining such applications. He further claims that a delay exceeding 180 working days against Respondent’s own 7 working day service charter, coupled with the admitted absence of any process to wait, confirms that the dispute has fully matured. He relies on the case of **Bengi & 2 others v Registrar of Societies & 2 others [2025] KESDT 78 (KLR).** 3. The Appellant submits that the Respondent’s claim that he ignored a prescribedprocedure is belated and unsupported afterthought raised for the first time only at the appeal stage despite the Respondent having had every opportunity to raise it earlier, and ought to be rejected as a contrived justification. He invokes Section 2 of the Fair Administrative Action Act, 2015, to submit that an “omission” is itself a reviewable administrative action. 4. On the Respondent’s alleged concessions, the Appellant submits that theRespondent is bound by its own pleadings and correspondence acknowledging receipt of his application under Section 13(1)(c) and cannot now deny its existence. He avers that the Respondent’s admission that no structured criteria exist for determining such applications establishes a continuing breach of statutory duty and undermines its exhaustion argument. 5. On the breach of statutory duty, the Appellant claims that the Respondent has forover thirteen years, failed to operationalise any framework for recognition of foreign qualifications under Section 8(1)(e) and that this continuing failure is independent of the outcome of his individual applications. He avers that the Respondent’s consistent past practice of assessing and approving qualifications before referral to the Chief Justice gave rise to a legitimate expectation of substantive consideration within a reasonable time. He adds that the Respondent’s reliance on **Arthur Mukira Gachugi v Kenya Tea Development Ltd &3 others [2017] KEHC 892 (KLR)** is misplaced as that case concerned judicial timelines in a materially different. He further contends that the standard of reasonableness fills the absence of a fixed statutory timeline under Article 47 of the Constitution and the Fair Administrative Action Act and the Respondent’s own published benchmark. 6. Regarding deemed refusal, the Appellant submits that the Respondent’scontention that no decision exists cannot shield it from the Tribunal’s jurisdiction, as a deliberate or unexplained failure to decide is itself a decision. He relies again on the **Bengi case (supra)** and avers that the Respondent has produced no documentary evidence, such as an agenda, minute, or memorandum, to substantiate its claim that the matter remains under active Council consideration. 7. On the issue of Form CLE/L/006, the Appellant submits that it is unrebutted thatthe Respondent directed him to complete a form designed for the Advocates Training Programme, not for Section 13(1)(c) applicants, and that this misdirection was unlawful, contributed to the delay, and cannot now be relied upon by the Respondent to defeat his claim. 8. On the merits, the Appellant submits that the Respondent’s procedural objectionsare deployed to avoid substantive accountability and that it has never disputed his qualifications. He avers that he holds an accredited Commonwealth LLB, was admitted to practise by a superior court and is a Kenyan citizen, and has met the threshold under Section 13(1) (c). He relies on the case of Eliakim and section 13(1)(c) threshold. The Tribunal's attention is drawn to **Eliakim Bunde Okayo v Council of Legal Education [2019] eKLR (Petition No. 36 of 2018, High Court at Mombasa, Ogola J.)**, and the Tribunal is invited to draw an adverse inference against the Respondent for its failure to verify documents already in its possession. 9. On the last issue, the Appellant has prayed for various reliefs. # The Respondent 1. The Respondent has raised 6 substantive issues for determination. 2. The Respondent contends that the Tribunal does not have jurisdiction over amatter that is outside the scope of the Legal Education Act as expressly conferred by Section 31 of the Act. It further claims that the Tribunal cannot assume jurisdiction over matters emanating from the Advocates Act, as to do so would amount to an impermissible judicial expansion of its statutory mandate. To buttress this position, the Respondent relied on the following authorities: **In Kenya School of Law v Sheila Kerubo Kennedy (Civil Appeal E1693 of 2022) [2025] KEHC 9249 (KLR).** 3. The Respondent submits that the Appellant cannot invoke the Tribunal'sjurisdiction under the Legal Education Act to resolve a dispute that fundamentally concerns the interpretation and application of Section 13(1)(c) of the Advocates Act. The Appellant's appeal is therefore incompetent ab initio. 1. The Respondent submits that even if “deemed or constructive refusal”, existed,which is denied, it cannot operate to confer jurisdiction upon the Legal Education Appeals Tribunal. 2. The Respondent submits that the very foundation of the Appellant's appeal, thealleged “deemed or constructive refusal”, is legally unsustainable because no statute imposes a timeline within which the Respondent must determine an application made under Section 13(1)(c) of the Advocates Act, Cap 16. 3. They claim that the principle that a “deemed” decision requires express statutoryauthorization is well established in Kenyan administrative law. They rely on the case of **Arthur Mukira Gachugi v Kenya Tea Development Holdings Ltd & 3 others [2017] KEHC 892 (KLR),** 4. The Respondent submits that it does not claim that they can delay theirdecision, but they aver that where no statutory timeline is prescribed, the duty is only to act within a reasonable time, which is a factual question depending on complexity, novelty, and the applicant’s own diligence. 5. The Respondent further submits that the Appellant’s application raises a novelquestion never previously determined, namely whether a foreign qualification obtained outside East Africa qualifies under Section 13(1)(c) of the Advocates Act. They rely on the case of **Council of Legal Education v Tusasirwe & 13 others (Civil Appeal 242 of 2017) [2025] KECA 459 (KLR).** 6. **The Respondent** avers that the Appellant cannot complain of delay when he himself failed to follow the prescribed procedure. They submit that on 21st October 2025, the Appellant was directed to formally apply for recognition of his foreign qualification, pay the requisite fee of Kshs. 10, 000, and submit the required documents, but the he declined and insisted in proceeding solely under Section 13(1) (c) of the Advocates Act. 7. The Respondent submits that Section 8 Legal Education Act governs recognitionof foreign qualifications and that the Appellant’s refusal to engage this framework is the true cause of delay. 8. They aver that a claim of deemed or constructive refusal presupposes a properapplication, which was never made. They further purport that the Appellant’s communications were mere inquiries, not formal applications, and that a party cannot bypass a prescribed procedure and then rely on the resulting delay to found an appeal. They submit that a party cannot benefit from their own wrong. 1. The Respond submits that Article 47 of the Constitution, the Fair administrativeAction Act, and the Access to Information Act do not create a statutory timeline where the Advocates Act provide none. They claim that timelines under the Access to Information Act apply to requests for information, not to substantive determinations of eligibility for admission and are therefore inapplicable. 2. The Respondent submits that no decision, whether actual, deemed, orconstructive exists to found an appeal, as its Council had not yet deliberated on the matter, a position communicated to the Appellant on 17th December 2025. 3. On the next issue, the Respondent submits that the appeal is an abuse of process,as the Appellant seeks the Tribunal’s intervention on a matter for which he deliberately refused to follow the proper administrative procedure, contrary to the doctrine of exhaustion of remedies. 4. The Respondent avers that it lawfully directed the Appellant to apply formallyunder Section 8(1)(e) of the Legal Education Act, and relies on the case of **Nabulime Miriam & Others v Council of Legal Education & 5 Others [2016] KEHC 7630 (KLR).** 5. The Respondent claims that the Appellant refused this lawful directive andinstead insisted on escalation under Section 13(1) (c), thereby denying the Respondent the opportunity to perform its statutory vetting function, and submits that a party cannot create an informal request, refuse the formal process and then claim a deemed refusal therefrom. 6. They submit that Legitimate expectation cannot apply to this case and cite thesupreme court case in **Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others SC Petition Nos. 14, 14A, 14B & 14C of 2014.** 7. Lastly, they submit that the Appellant is not entitled to any costs. # C. Analysis and Determination **(i) Whether the Tribunal has Jurisdiction to deal with this Appeal?** 1. It is the respondent’s argument in its replying affidavit that the Tribunal lacks thejurisdiction to hear and determine this appeal. However, the appellant in her submissions reiterates that the Tribunal’s jurisdiction emanates from section 31(1) of the LEA. Therefore, where jurisdiction is contested, this Tribunal has to decide the issue first, before anything else. 2. In this matter the question for the Tribunal’s determination is whether it hasjurisdiction to hear and determine this appeal, given that the Respondent’s alleged failure to act arises from an application invoking Section 13(1)(c) of the Advocates Act, Cap 16, rather than a provision of the Legal Education Act, Cap 16B. 3. The Tribunal begins with the governing statutory framework. Section 4(1) of theLegal Education Act establishes the Respondent as a body corporate. Section 8(1)(e) confers the Respondent the function of recognising and approving qualifications obtained outside Kenya for the purposes of admission to the Roll of Advocates. While Section 29 establishes the Tribunal and Section 31(1) gives it jurisdiction to inquire into “any matter relating to this Act” upon appeal or reference. Section 35 also sets out the Tribunal’s powers on appeal. 4. Turning to the Advocates Act, section 2 thereof defines the Council of LegalEducation as the body corporate established under Section 4 of the Legal Education Act. Section 12 of the same act sets out persons who are duly qualified to be advocates and while section 13(1)(c ) provides for other qualifications. It states: ***13. Professional and academic qualifications*** ***(1) A person shall be duly qualified if— (c) he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education;*** 1. The Respondents submits that the Tribunal’s jurisdiction under Section 31(1) isconfined strictly to matters arising under the Legal Education Act and that the Appellant’s grievance, being founded on Section 13(1)(c) of the Advocates Act, falls outside that jurisdiction. 2. The Tribunal disagrees with this submission. Under Section 13(1)(c) of theAdvocates Act does not operate as a self-contained provision. It requires, as a matter of statutory construction, that the qualification be one that is “acceptable to and recognised” by the Respondent. The determination of what is acceptable and recognised is not a function created by the Advocates Act but a function conferred upon the Respondent by Section 8(1)(e) of the Legal Education Act. Both Sections of the Acts are accordingly not independent but operate in tandem. That is the former identifies the class of qualifying person, while the latter vests in the Respondent the statutory duty and discretion to make that determination. 3. This appeal follows a complaint that the Respondent has failed, refused, ordelayed in the exercise of its function under Section 8(1)(e) is, in substance a complaint under the Legal Education Act notwithstanding that this emanates from the function under section 13(1)(c) of the Advocates act. Thus, the subject matter of the appeal is not merely the Appellant’s eligibility under Advocates act but the Respondent’s exercise, or non-exercise of its statutory mandate under the Legal Education Act. 4. Accordingly, the Tribunal finds that it has jurisdiction to hear this matter. **(ii) Whether the matter is ripe for determination** 1. The Respondent contends that no final determination has been made on theAppellant’s application and that the matter is unripe for determination. 2. The doctrine of ripeness is a prudential doctrine whose purpose is to prevent atribunal from entangling itself in a dispute before it crystallised into one capable of resolution. As held in **Chovu v Director of Criminal Investigations & 7 others; Awale Transporters Limited & 2 others (interested parties) [2022] KEHC,** the doctrine concerns the timing of judicial intervention and guards against adjudication of abstract disagreements before they have matured. 3. In a similar case, **Munga v Kenya Maritime Authority & another; Inspector General (Corporations) & another (Interested Parties) [2024] KEELRC 2740 (KLR)** the court held that the ripeness doctrine constitutes a prudential doctrine primarily designed to avoid premature adjudication of issues that might become more clearly defined later. The court went further ***“In assessing whether the court might benefit from waiting without impairing litigants’ legitimate interests in prompt dispute resolution, the court must assess the hardship to the parties from postponing addressing the substantive issue at hand.”*** 1. The Tribunal is guided by this rationale that defeats the Respondent’s objection.The doctrine exists to protect against disputes that have not yet crystallise, or that may be clarified by the passage of time or the completion of an ongoing process. Where a dispute is already clearly defined, and where nothing further remains to occur that could sharpen or resolve it, the rationale underlying the doctrine has no application. Moreover, courts usually wait for a concrete injury and specific facts. However, courts will sometimes hear a case early if the issue is a pure question of law, if waiting causes severe hardship, or if there is a threat of irreparable harm. 2. On the record before the Tribunal, the dispute is clearly defined. It is undisputedthat the Appellant’s application was lodged on 3rd October 2025 and that the application has remained undetermined for a period exceeding 180 working days, against the Respondent’s own published 7- working day service delivery benchmark. The Respondent has admitted at paragraph 18 of its replying affidavit that no structured criteria exist for the assessment of applications under section 13(1)(c). 3. This admission is fatal to the Respondent’s objection because ripenesspresupposes that further time or process would clarify or resolve the dispute. Here the Respondent cannot point to any framework awaiting completion and any assessment presently underway or any scheduled Council meeting on the record. The Sports Dispute Tribunal held in **Bengi(supra)** at paragraph 76, that a public official kicks off the process of decision-making and stalling is itself the ripened and reviewable act. The Respondent accepted the Appellant’s application in October 2025 and has since stalled and there is nothing left to mature. 4. The Tribunal also notes that an unreasonable delay of this nature causes realprejudice to the Appellant, who has been left without a determination of his eligibility for admission to the Roll of Advocates for a period far in excess of the Respondent’s own service standard and with no indication of when, if ever, a decision will be made. To require the Appellant to wait indefinitely in the face of the Respondent’s own admission that no framework exists for determining his application, would be to deny him any effective recourse. 5. Accordingly, the Tribunal finds that the matter is ripe for determination. TheRespondent's objection on this ground is dismissed. **(iii) Whether the Appellant has met the threshold under Section 13(1)(C) and Section 8(1)(e) of the Legal Education Act and is entitled to a certificate of eligibility** 1. This third issue is important to determine whether the Australian legalqualification, obtained from a jurisdiction outside East Africa, falls within “any other qualifications which are acceptable to and recognized by the Council of Legal Education” under Section 13(1)(c) of the Advocates Act 2. It is not dispute that the Appellant holds a law degree from an accreditedinstitution in a commonwealth common law jurisdiction, that he was admitted to practise by order of a superior court and that he is a Kenyan citizen. The Respondent has at no stage disputed these facts or offered any substantive reason why the Appellant’s qualifications fail to meet the threshold. 3. The Tribunal however, is unable to accept the Appellant’s invitation to substituteits own finding for that of the Respondent’s and hold, on this record, that the threshold under Section 13(1)(c) has been conclusively met. The Respondent’s own affidavit evidence confirms that recognition of a foreign qualification under the Legal Education Act requires the Respondent to equate the qualification such as the Appellant’s degree against the mandatory core courses set out under Schedule II of the act. This is an exercise of verification given to the Respondent under Section 8(1)(e) and one which on the record has not yet been taken. 4. It is important to note that the reliance placed on **Eliaki Bunder Okayo (supra)** does not assist the Appellant on this point as that case turned on a distinct procedural bar under Section 15(1) of the Advocates Act and does not establish that the Tribunal may dispense with the Respondent’s verification function altogether. 5. At the same time, the tribunal does not accept the Respondent’s position that thenovelty of the questions justifies indefinite deliberation without a determinate outcome. The Respondent has, by its own admission not yet developed a structured criterion for evaluating applications of this nature, more than thirteen years after the Legal Education Act came into force and has offered no timeline for when such deliberation will conclude. This false short of the standard of reasonableness demanded of a public body exercising a statutory mandate under Article 47 of the Constitution and Fair Administrative Action Act, 2015. 6. For these reasons, the Tribunal finds that the Appellant has demonstrated, on theuncontested facts, that he falls within the class of persons contemplated under section 13(1)(c), that is, a ‘holder of a foreign legal qualification.’ However, the determination of whether that qualification satisfies the Respondent's recognition criteria under section 8(1)(e) of the Legal Education Act has not yet been made. It would be premature, and outside the proper role of this Tribunal, to direct the outright issuance of a certificate of eligibility in the absence of that determination. 7. Moreover, the Appellant is a Kenyan citizen who has, for many months, been leftwithout any substantive response to a straightforward request for a decision on his eligibility. Having regard to the length of that delay, the absence of any explanation from the Respondent for it, and the straightforward nature of the determination sought, the Tribunal finds that the Respondent's prolonged inaction amounts to a constructive refusal to determine the Appellant's application. **(iv) Whether the Appellant's Right to Legitimate Expectation and to** **Fair Administrative Action was violated** 1. The doctrine of legitimate expectation is a recognised ground of administrativelaw protection entrenched under Article 47 of the Constitution and Section 7(2)(m) of the Fair Administrative Action Act, 2025. It is well settled, as held by the Supreme Court case in Communications Commission of Kenya & 5 others v Royal Media Services & 5 others, SC Petition, that an expectation is legitimate only where it arises from a clear, unambiguous and unqualified representation or established past practice of a public authority. 2. The Tribunal is further guided by **Paul Kipsang Kosgei vs National Industrial Training Authority & Another, Cabinet Secretary, Ministry of Labour & Social Services (2nd Respondent (CLE)) [2020]eKLR** where the court relied on a **South African case of National Director of Public Prosecutions vs Philips 2002 (4) SA 60 (W**) where the court stated that legitimate expectation only occurs where there is a representation which is clear unambiguous and devoid of relevant qualification, it went further to state that; 1. *‘That there must be a representation which is clear, unambiguous anddevoid of relevant* *qualifications;* 2. *That the expectation must be reasonable, in the sense that a reasonable* *person would act upon it; iii. That the expectation must have been induced by the decision-maker and; iv. That it must have been lawful for the decision-maker to make such representation.'* 1. The Tribunal by applying this test, finds that the Respondent made no clear,unambiguous, or unqualified representation to the Appellant specifically that his foreign qualification would be recognised, or that a determination would issue in the absence of a formal application. To the contrary, the Respondent’s correspondence of 21st October 2025 expressly directed the Appellant to the prescribed application procedure, a direction the Appellant did not fully comply with. The Appellant’s reliance on the Respondent’s general past practice of assessing and referring qualified applicants to the Chief Justice, while relevant to the reasonableness of the delay, does not amount to a specific representation capable of grounding a legitimate expectation. 2. The claim of legitimate expectation, accordingly, fails, the burden under section107 of the Evidence Act not having been discharged. 3. This however does not dispose of the Appellant’s broader claim under Article 47 of the Constitution. The right to fair administrative action is not confined to the doctrine of legitimate expectation, it independently guarantees administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. This Tribunal has already found in its determination on the reasonableness of the delay that the Respondent’s failure to develop any structured criterion for the assessment under the act for over thirteen years and delaying in responding by exceeding 180 working days against its own published benchmark, fell short of this constitutional standard. 4. Thus, the Tribunal finds that there was no legitimate expectation however, theAppellants right to fair administration was violated by the Respondent’s unreasonable and unexplained delay in determining his application. # D. Disposition In the premises, the Tribunal makes the following determinations: 1. An order directing the Respondent to consider and determine the Appellant’sapplication afresh within a time frame of sixty (60) days 2. An order directing the Respondent to determine immediately and without furtherdelay whether the Appellant has satisfied all statutory requirements for admission as an Advocate of the High Court of Kenya. 3. Each party to bear its own costs. 4. That a party aggrieved is at 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 21st DAY OF JULY 2026. **HON. JULIANA NJIRIRI - CHAIR** **HON. JOSHUA NGULU- MEMBER** **HON. FELIX OKETCH - MEMBER** **HON. MOSES MUNOKO – MEMBER** **HON. GODANA YATANI – MEMBER** SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. JULIANA WAMAITHA** **NJIRIRI** **FELIX OTIENO OKETCH** **MOSES SITATI MUNOKO JOSHUA MBINDA NGULU** Legal Education Appeals Tribunal Legal Education Appeals Tribunal Date: 2026-07-22 13:59:00 |