[2023] KELEAT 379 (KLR)

Juma v Kenya School of Law (Appeal E014 of 2023) [2023] KELEAT 379 (KLR) (14 April 2023) (Judgment)

Neutral citation: [2023] KELEAT 379 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E014 of 2023

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

April 14, 2023

Coram: Rose Njoroge – Mbanya (Mrs) – Chairperson; Members – Eunice Arwa (Mrs), Raphael Wambua Kigamwa (Mr) and Stephen Gitonga Mureithi (Mr)

Between

Vincent O Juma

Appellant

and

Kenya School of Law

Respondent

Judgment

A. Background 1. The Appellant filed this appeal against the decision of the Director of the Respondent herein, issued on December 18, 2022 declining him admission to the Advocates Training Programme during the 2023-2024 academic year.

2. Together with the Memorandum of Appeal dated February 9, 2023, the Appellant filed a Certificate of Urgency of even date and an Affidavit in Support of the Urgency sworn by himself on February 9, 2023.

3. The appeal is opposed by the Respondent through a Replying Affidavit sworn by Mr Fredrick Muhia on March 9, 2023.

B. The Appellant’s Case 4. The Appellant states that he scored a mean grade of C+(Plus) in his Kenya Certificate of Secondary Education Examination. He also scored a B – (Minus) in English as opposed to the minimum requirement of B Plain.

5. The Appellant contends that in order to attain the required qualifications at the time, he enrolled for a Diploma in Law course at the Kenya School of Professional Studies in 2004 and attained a Credit Pass.

6. Armed with these qualifications, he now enrolled for a Bachelor of Laws degree at Mount Kenya University where he obtained a Second Class Honours- Upper Division in 2022. The Appellant did not provide any evidence to show his exact date of admission for the Bachelor of Laws Degree but from the evidence submitted to the Tribunal and which fact was acknowledged by the Respondent in its letter of January 11, 2023, the Appellant seemed to have been admitted in 2016.

7. It is after his graduation with the Bachelor of Laws Degree that the Appellant sought admission to the Advocates Training Programme of the Respondent.

8. The Respondent declined to grant him admission vide a letter dated December 18, 2022 signed by its Director/Chief Executive Officer which read in part as follows:"Dear JumaAdmission to the Kenya School of Law-academic YearReference 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):Not qualifiedThank YouYours Sincerely,Dr. Henry K.MutaiDirector/Chief Executive Officer”

9. The Appellant seemed to have appealed this decision with the Respondent severally and in all occasions, the Respondent’s position as stated through the letters of January 11, 2023, January 18, 2023 and January 24, 2023 was to restate its refusal to grant the application.

10. Aggrieved by this decision, the Appellant brought his Appeal to the Tribunal for consideration.

11. He states that having attained the above qualifications, he is eligible for admission into the Advocates Training Programme (the “ATP”) under Section 1(a) of the Second Schedule to the Kenya School of Law Act, the Council of Legal Education (Kenya School of Law) Regulations, 2009 and the Legal Education Act (Accreditation and Quality Assurance) Regulations, 2016.

12. He sought the following prayers from the Tribunal:a.That the decision of the Director/Chief Executive Officer dated December 18, 2022 be quashed and set asideb.That the Appellant be forthwith admitted to the ATP for the academic year 2023/2024c.Any other relief as the Tribunal may deem fit

C. The Respondent’s Position on the Appeal 13. The Respondent contended that its mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Programme. 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 No 26 of 2012.

14. Consequently, the Respondent contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act 2012.

15. The Respondent further states that it is required by its establishing statute, the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the School.

16. The Respondent further states that upon the Appellant making his applications to the Advocates Training Programme, he did not meet the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act 2012. That Section 16 of the Kenya School of Law Act 2012, as read with Paragraph 1 of the Second Schedule provides the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in KCSE with a grade B (plain) in English or Kiswahili languages which the Appellant did not have.

17. The Respondent further states that the Appellant is relying on academic progression to be admitted to Advocates Training Programme, yet the Kenya School of Law Act 2012 does not have a provision for academic progression

D. The Appellant’s Submissions 18. The Appellant filed submissions dated March 3, 2023.

19. Concerning the jurisdiction of the Tribunal, the Appellant relied on Section 31(1) of the Legal Education Act, 2012 which empowers the Tribunal to consider any matter relating to the said Act. He relied on the case of The Owners of Motor Vessel “Lillian S”V Caltex Oil Kenya limited.

20. Concerning his qualifications for admission to the ATP, the Appellant submitted that his legal studies journey started in 2004 when the Council of Legal Education Act (Cap 16A) was in force and that its subsidiary legislation was the Council of Legal Education (Kenya School of Law) Regulations, 2009. He states that it is the Legal Education Act (Accreditation and Quality Assurance) Regulations, 2016 that led him to proceed with his degree in law as according to him, he had met the qualifications therein.

21. He proceeds to rely on Section 48 of the Legal Education Act of 2012 (which repealed the Council of Legal Education Act, 1995) being the transitional provision in stating that the 2009 provisions continued to be in force even after the repeal of the Council of Legal Education Act, 1995. This same transitional provision is replicated in Section 29 of the Kenya School of Law Act, 2012 which provides that the Act shall not affect an instrument in relation to the School before the Act.

22. According to the Appellant, the Legal Education Act (Accreditation and Quality Assurance) Regulations, 2016 recognized academic progression. He also relies on Javan Kiche Otieno & Another V Council for legal Education which stated that the declaration of the invalidity of the said Regulations was not applicable to already crystallized actions.

23. Finally, the Appellant urges the Tribunal to find that he qualifies for admission into ATP under the Kenya School of Law Act, 2012, Section 16 as read together with paragraph 1(a) of the Second Schedule. He argues for a disjunctive interpretation of the paragraph and relies on Raila Amollo Odinga & Another V Independent Boundaries and Electoral Commission & 4 Other (2017 eKLR)

E. The Respondent’s submissions 24. The Respondent did not file written submissions in the matter but had extensively explained its position in its Replying Affidavit as indicated in paragraph C above.

F. Analysis and Determination 25. The primary relief sought by the appellant herein is hinged on his entitlement to admission to the Advocates Training Programme based on academic progression. The Respondent refutes the Appellant’s assertion by stating that Academic progression is not provided for in its establishing juridical regime. The Tribunal notes that in considering this appeal, it must consider the various admission criteria, if any to the Advocates Training programme in order to reach sound determination.

26. The admission criteria to the 2 legal education programmes namely, the Bachelor of Laws degree and the Advocates Training Programme is the main contest in this appeal. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the Council for legal Education 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;...”

27. The Tribunal notes that the function of the Council For legal Education in section 8 (3) (a) of the Legal Education Act, 2012 to make regulations for persons wishing to enrol in Legal Education Programmes has been confirmed in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at page 21 as follows;“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.It should be noted that whereas the Council has to powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”

28. Indeed, the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the Council of legal Education, pursuant to the Legal Education Act, 2012.

29. There cannot be comprehensive discourse in this matter if the Tribunal were to shut its eyes to the regulations that the Council of Legal Education has proffered and which no doubt, have an effect on the Respondent in its admission exercises. The interdependence between the Respondent and the Council of Legal Education comes into play and in inquiring into the matter of applicability of progression, the Tribunal will be discharging its mandate under section 31 of the Legal Education Act, 2012.

30. For the above reasons, the Tribunal asserts that it has the requisite jurisdiction to inquire into the appeal before it by dint of section 31 (1) of the Act which provides;

31. As regards the appeal, the appellant concedes that he did not attain the Kenya Certificate of Secondary Examination grades required for admission to the Advocates Training Programme under section 1 (a) and 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012.

32. The Appellant however asserts that he relied on the Council of Legal Education (Kenya School of Law) Regulations of 2009, in embarking on his journey of academic progression. He enrolled for his diploma in law in the year 2004, in which he attained a Credit Pass, he thereafter enrolled for a bachelor of Laws degree at the Mount Kenya University in the year 2016, and graduated therefrom in 2022 with an Second Class Honours, Upper Division.

33. The Council of legal Education formulated the 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; or(d)a Credit Pass in a diploma in law examination from an accredited institution.”

34. The legality of the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was challenged on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The matter was addressed in the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, where Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 stated 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.”

35. This High Court declaration of invalidity whose operative date is 30th January 2018 was subsequently affirmed by the Court of Appeal. The said Regulations which contained the 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.

36. The Court of Appeal whilst upholding the declaration of invalidity made it clear that it does not apply to crystalized actions. The decision 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 stated;“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.”

37. In this appeal, the crystalized action, being the securing admission to the Bachelor of Laws degree program, would require to fall between 6th February 2016 and 30th January 2018, when the 2016 regulations subsisted.

38. It is not clear the exact date that the Appellant secured admission to the Bachelor of Laws degree in Mount Kenya University, He has not provided his letter of admission. It can be gleaned from his academic transcripts is that his first year was in 2016/2017, The Respondent alludes to the fact that the Appellant’s admission to the university was in the year 2016. If he was admitted to the University on or after 6th February 2016, then his admission would be a crystallized action under the 2016 Regulations.

39. In the event, that he was admitted before 6th February 2016, then he would fall under the Council of Legal Education (Kenya School of Law) 2009 regulations (Legal Notice 169 0f 2009) These CLE regulations in the second schedule prescribed the following criteria for admission to the ATP:“II—ADMISSIONS REQUIREMENTS INTO THE ADVOCATES TRAINING PROGRAMME5. 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, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university;(b)passed the relevant examinations of a university, university college or other institutions prescribed by the Council, he 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 a that university, university college or other institution –(i)attained a minimum entry requirements 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 of Laws Degree (LL.B) from a recognized university and attained a minimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in the 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 Degree (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 pre-condition for admission. 6. The Post Graduate Diploma (Advocates Training Programme)”

40. It is clear that the Appellant’s academic progression journey would find favour, as he meets the qualifications set out in the 2009 regulations, having scored a C+ (plus) main grade and a B- (minus) in his English grade in KCSE.

41. On legitimate expectation, the appellant relied on existing statutory provisions that governed his academic progression journey. He cannot be faulted for having acted in accordance with the law as it then stipulated. The Tribunal agrees with the appellant that he has a legitimate expectation to be admitted to the Advocates Training Programme as a logical conclusion of his academic progression journey in his chosen field of law.

E. Disposition. 42. It Is Decreed:-a.That the appeal is allowed.b.That the respondent’s decisions issued on the 18th declining the admission of Vincent O. Juma to the Advocates Training Programme during the 2023/24 academic year as communicated by the Respondent’s Dr. Henry K. Mutai – the Director of the Kenya School of Law is set aside.c.That the respondent is ordered to admit the appellant Vinvent O. Juma to the Advocates Training Programme.d.That each party to bear its own costs of the appeal.e.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 14TH DAY OF APRIL 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.REGISTRAR7