[2022] KELEAT 1088 (KLR)

Kamote v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E016 of 2022) [2022] KELEAT 1088 (KLR) (3 June 2022) (Judgment)

Neutral citation: [2022] KELEAT 1088 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E016 of 2022

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

June 3, 2022

Between

Patience Kathambi Kamote

Appellant

and

Kenya School of Law

Respondent

and

Council Of Legal Education

Interested Party

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 22nd March, 2022 cancelling admission into the Advocates Training Programme during the 2021/2022 academic year)

Judgment

A. Introduction. 1. The appellant Patience Kathambi Kamote has lodged an appeal against the decision of the Director/Chief Executive Officer of the respondent dated the 22nd March 2022 with regards to the Advocates Training Programme.

2. On 2nd March 2022, she got a provisional admission into the Advocates Training Programme by the Respondent. The registration was to take place between 7th March 2022 and 25th March 2022 and tuition fees was to be paid up front.

3. On 21st March 2022 the appellant paid a substantial sum of the tuition fees amounting to ksh. 110,000 in compliance with the admission letter and was issued with an official receipt by the respondent and she was allocated a student number.

4. On 22nd March 2022 the appellant received a letter of revocation of admission to the Advocates Training Programme issued by the Director of the respondent citing the reason;“Upon scrutiny of your documents we have established that you scored a mean grade of C plain which falls short of the minimum requirement of the grade of C+. In light of the above, the admission letter was issued in error and is hereby revoked.”

5. By way of a background the appellant was initially admitted by the respondent to pursue a Diploma in Law course which she successfully completed with a grade of a credit. She sought admission to the University of Nairobi and by an admission letter dated 26th July 2017 she was admitted into the Faculty of Law, to pursue an LLB degree. On 17th December 2021, she graduated with a Second-Class Honours Upper Division and was awarded her LLB degree.

6. The respondent entered appearance to the appeal through Dr. Henry K. Mutai Advocate and filed a Replying affidavit sworn by Fredrick Muhia its Academic Services Manager. The interested party though served neither appeared nor filed a response.

7. The Tribunal gave directions for the hearing of the appeal on written submissions.

B. The appeal by the appellant. 8. It is her appeal that the revocation of her admission was erroneous, illegal and contrary to the law for the following reasons;i.She is eligible for admission to the Programme pursuant to section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 as amended in 2014. ii.That various decisions of the High Court and this Tribunal have on similar issues held that applicants to the Programme from local universities qualify for admission under the section 1 (a) of the second schedule to the Kenya School of Law Act, 2012. iii.That in light of the degree certificate from a locally accredited university the respondent need not enquire into the grades attained at the Kenya Certificate of Secondary Education.iv.That the revocation was not well founded in law and was contrary to the Fair Administrative Action Act, 2015. v.That the decision was unreasonable, discriminatory, irregular in law and against the appellant’s legitimate expectation.vi.That the revocation was premised on a wrong interpretation of the law and judicial precedent applicable to the issue at hand.vii.That the respondent’s imposition to the appellant qualifications under section 1 (b) of the second schedule to the Kenya School of Law Act, 2012 was improper.viii.That the appellant passed the mandatory 16 core subjects stipulated in the second schedule of the Legal Education Act, 2012 and holds a degree from a recognized Kenyan University.

9. The appellant invokes section 31 of the Legal Education Act, 2012 to seek a finding from this Tribunal on the determination as regards the respondent’s interpretation of the second schedule of the Kenya School of Law Act, 2012.

C. The Respondent’s position on the appeal. 10. The Respondent in response to the appeal contends that its mandate is inter-alia to train persons for purposes of the Advocates Act, Cap. 16 and for which it offers the Advocates Training Programme. That matters of admission to the Advocates Training Programme are exclusively provided for under section 16 of the Kenya School of Law Act, No. 26 of 2012. It contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act, No. 27 of 2012. It further states that the respondent is required by its establishing Act being 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.

11. The Respondent further contends that upon the appellant making her application to the Advocates Training Programme, she 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 under section 16 of the Act as read with paragraph 1 of the Second Schedule, the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education with a B (plain) in English or Kiswahili languages which the appellant did not have. The Respondent further states that the appellant was relying on her Diploma in Law qualifications to be admitted for Advocates Training Programme, yet the Kenya School of Law Act, 2012 does not have a provision for academic progression.

D. The Appellant’s submissions. 12. On whether the appellant is eligible for admission to the Advocates Training Programme the appellant contends that by dint of sections 4, 16 and 17 as well as the 2nd schedule, of the Kenya School of Law Act, 2012 she has met the admission requirements of the respondent. She contends that it is not in dispute that she was awarded a Diploma in Law and thereafter passed her exams and was awarded a Bachelor of Laws Degree from a Kenyan University. Further, she submits that it is not in dispute that she applied for admission for the Advocates Training Programme as required under sections 16 and 17 of the Kenya School of Law Act, 2012 as read with schedule 1 (a) of the same Act and she was granted. She submits that despite this, the Respondent by a letter dated 22nd March 2022 revoked the admission immediately after she paid the fees for the Programme.

13. She submits that the actions are illegal and asks the Tribunal to nullify the decision. She further submits that contrary to the assertion by the Respondent that she had not met the minimum qualifications for admission to the Advocates Training Programme, she had indeed satisfied the requirements under paragraph 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 on admission which provision states;“Second {{^}} Schedule:-The Admission requirements will be 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;...”

14. The appellant submits that she had passed the relevant examinations of the university leading to the award of a degree for the Bachelor of Laws and therefore satisfying the requirement under paragraph 1 (a) of the 2nd Schedule to the Kenya School of Law Act, 2012 and therefore she is eligible for admission. She further submits that she acquired her Bachelor of Laws Degree at a Kenyan university which is an institution licensed by the interested party to offer courses within the meaning of sections 18 and 19 of the Legal Education Act, 2012.

15. The appellant contends that she is eligible for admission to the Programme pursuant to section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 as amended in 2014. The University of Nairobi is a recognized university in Kenya and she possesses an LLB Degree from it. It is submitted that the statute has two optional criteria for qualification into the Advocates Training Programme for which the respondent is legally mandated to use either. That the proper legal interpretation of the intention by the drafters of the statute is a conjunctive intentional use of the word OR. The respondent is to use the requirements of either paragraphs 1 (a) OR 1 (b) of the second schedule of the Kenya School of Law Act, 2012 as read together with section 16 of the same Act. The word ‘or’ was introduced in place of the traditional academic progression principle which was deleted in the amendment and instead an alternative provided.

16. The decision to deny the appellant admission to the Programme on account of the respondent’s disjunctive interpretation of paragraph 1 of the second schedule is not well founded in law. It is an unfair administrative action, is manifestly unreasonable and thwarts the appellant’s legitimate expectation of the respondent.

17. The appellant relies on the authority of Republic v Kenya School of Law & Another exparte Kithinji Maseka Semo & Another, (2019) eKLR in which Justice Mativo confirmed admissibility of the ex parte applicants to the Programme based on the conjunctive interpretation of the said provision of the law. The appellant draws the Tribunal’s attention to the holding in Adrian Kamotho Njenga v Kenya School of Law, (2017) eKLR, Republic v Kenya School of Law, (2019) eKLR, Kihara Mercy Wairimu & 7 Others v Kenya School of Law and 4 Others, (2019) eKLR and Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR in which Justice Mrima held that the use of the word ‘or’ by the drafters of the provision of section 1 (a) of the second schedule was deliberate.

18. Finally, the appellant relies on John Kibegwa & 8 Others v Kenya School of Law; Council of Legal Education, (2021) eKLR. In the appeal this Tribunal after consideration of similar issues arising herein considered the rival submissions of the appellant’s and the respondent and at the end issued a declaration that the appellant’s qualified for admission to the Advocates Training Programme as provided by section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 as amended by the Statute Law Miscellaneous (Amendment) Act, 2014.

19. The appellant avers that this Tribunal has jurisdiction to hear and determine this appeal and order the appellant registered and admitted into the Programme with costs of the appeal being met by the respondent. She avers that she had already paid school fees and taken a hostel. She is ready to commence classes immediately.

20. The appellant acknowledges that an emerging issue arises in an appeal where the provisions of paragraph 1 (a) to the second schedule of the Kenya School of Law Act, 2012 is invoked on the implications of the word "or" at the end of the statutory provision. She submits that this issue has been settled in the case of Republic v Kenya School of Law Ex parte Victor Mbeve Musinga, NRB. High Court Judicial Review Miscellaneous Application No. 32 of 2019 where the Learned Judge stated that the use of the word "or" provides exclusiveness between choices. She submits that the fact that she has satisfied the criteria provided under paragraph 1 (a) to the second Schedule of the Kenya School of Law Act, 2012 the standards set at paragraph 1 (b) to the second schedule of the Kenya School of Law Act, 2012 do not apply to her thus making her eligible for admission. She also calls attention to section 8 (3) of the Legal Education Act, 2012 that provides for the functions of the interested party’s Council to be;“Functions of the Council:1)......2)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;b.establish Criteria for the recognition and equation of academic qualifications in legal education;c.formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels;d.establish a system of equivalencies of legal educational qualifications and credit transfers;e.advise and make recommendations to the Government and any other relevant authority on matters relating to legal education and training that require the consideration of the Government;f.collect, analyze and publish information relating to legal education and training;g.advise the Government on the standardization, recognition and equation of legal education qualifications awarded by foreign institutions;h.carry out regular visits and inspections of legal education providers; andi.perform and exercise any other functions conferred on it by this Act.”

21. On the jurisdiction of the Tribunal the appellant contends that she has moved pursuant to the provisions of section 31 the Legal Education Act, 2012 which states as follows;“31. Jurisdiction of Tribunal:(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.”

E. The Respondent’s submissions. 22. The Respondent filed submissions and laid out its case in opposition to the appeal. The Respondent has asked this Tribunal to determine the following issues:i.Does the Tribunal have jurisdiction over the matter?ii.Whether the Respondent’s decision to refuse admission into the Respondent’s Advocates Training Programme was a breach of legitimate expectation?iii.Is academic progression applicable?iv.Is the double standard in admission qualifications discriminatory or justifiable?

23. The Respondent contends 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 provision of the Kenya School of Law Act, 2012. That this Honourable 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.

24. On admission, the Respondent 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.”

25. 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. This is provided in section17 of the Act.“Application for admission1. Any person who wishes to be admitted to any course of study at the School shall apply in the prescribed form and pay the prescribed application fees.2. The School shall consider an application submitted under paragraph (1) and if it is satisfied that the applicant meets the admission criteria, admit the applicant to the School.”

26. The Respondent states 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 relies on 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.”

27. 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.

28. The respondent contends that it has complied with the requirements of Fair Administrative Action in taking its decision and that legitimate expectation is not applicable to the appellant as the same would be a transgression of the express law.

F. Analysis and determination. 29. The Tribunal has considered the objection taken up on its jurisdiction to deal with the appeal and finds that based on section 31 (1) of the Legal Education Act, 2012 it had the requisite jurisdiction to deal with the appeal. A matter of academic progression is one that arises under the establishing law of the Tribunal.

30. As regards the appeal, the appellant made an application for admission to the Advocates Training Programme and was granted an admission letter, an admission number and paid fees to the respondent based on the admission. The respondent revoked the admission upon the appellant reporting to the institution. The Tribunal finds that the admission albeit provisional as christened in the letter was considered on the basis of the same documents that were subsequently presented for verification by the appellant to the respondent upon reporting. The respondent could not depart from it’s intial decision to admit the appellant unless novel circumstances arose as regards the fact that the initial documents presented were not the same.

31. In this instance once the respondent had addressed itself to the provisions of section 17 of the Kenya School of Law Act, 2012 and granted an admission its mandate to reverse the decision became spent as the said legislation only contemplated that it could only act once on the question of considering eligibility to admission to the Advocates Training Programme.

32. The respondent clearly acted in utter disregard on the provisions of Fair Administrative Action, 2015 and more specifically by taking a decision to revoke an admission that was not expressly legally accorded to it by law. The same provides at section 7 (2) (a) (i) therein while empowering the Tribunal to review the decision of the respondent in the following terms;“A court or tribunal under subsection (1) may review an administrative action or decision, if –a.The person who made the decision ---Was not authorized to do so by the empowering provision; …”The intial decision to grant admission to the appellant is well supported by the law as it exists as regards eligibility to the Advocates Training Programme as held by the Tribunal and the High Court in its various decisions. The Tribunal is fortified by the decision in Republic v Kenya School of Law & Another ex – parte Kithinji Maseka Semo & Another, (2019) eKLR by Justice Mativo as follows;“48. Since no legislature ever intends to give two simultaneous inconsistent commands, every statute must if possible be reduced to a single, sensible meaning before it is applied to any case….49. From the dictionary and judicial precedents discussed above, it is clear that the word ''or'' is ordinarily used to introduce another possibility or alternative, that is either or. Depending on context, it can also be used interchangeably with the word "and." It follows that in construing statutory provisions, the context is important so as to get the real intention of the legislature.50. Guided by the authorities cited above and the ordinary meaning of the word “or” in the context of the provision under consideration, it is my view that the use of the word “or” immediately after the semi-colon at the end of the sentence in section 1 (a) of the second schedule introduces another possibility, the first possibility being the category referred to in paragraph (a), that is:-“having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any 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.”51. The ex parte applicants hold Bachelor of Laws degrees from a recognized University in Kenya. By dint of the above provision, they qualified for admission to the ATP. To suggest otherwise, is in my view an insult to the above provision, which is framed in a simple and clear language. A contrary interpretation is misguided and unfaithful to the provision. It follows that any decision emanating from such a misguided interpretation cannot be read in a manner that is consistent with the enabling provision.”

33. The allegations of discrimination and application of double standards as taken up by the respondent remain unsubstantiated. It is the finding of the Tribunal that the law on admission to the Advocates Training Programme by creating a distinction between the applicants from local universities and from foreign universities has simply created a situation of a differentiation as opposed to discrimination. The Tribunal is fortified in its finding based on the decision in Federation of Women Lawyers Fida Kenya & 5 Others vs Attorney General & Another, (2011) eKLR in which it was stated thus;“In our view, mere differentiation or inequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which the Constitution had in view. An equal protection is not violated if the exception which is made is required to be made by some other provisions of the Constitution. We think and state here that it is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for classification in all cases.”

34. On legitimate expectation, the Tribunal finds that the appellant’s appeal creates a clear case for the application of the doctrine. The conduct of the respondent in granting the admission letter, the issuance of an admission number and receipt of school fees made an express representation to the appellant that he had an accrued right to pursue the Advocates Training Programme. The said expectation could not be taken aware in a spurious manner by the summary administration of a revocation letter that was not based on any juridical mandate on the part of the respondent. The Tribunal is so guided by the decision in Republic v Council of Legal Education & 2 others Ex Parte Mitchelle Njeri Thiongo Nduati, (2019) eKLR in which Justice John Mativo Held;59. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims, the court follows a two-step approach. First, it asks whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party. Second, if the answer to this question is affirmative, the second question is whether that expectation is legitimate. If the answer to the second question is equally affirmative, then the court will hold the administrator to the representation, and enforce the legitimate expectation.”

G. Disposition. 35. The Tribunal now decrees:-a.That the decision of the Kenya School of Law dated the 22nd March, 2022 cancelling admission into the Advocates Training Programme during the 2021/2022 academic year is set-side and admission granted to the appellant is restored.b.That an order is issued compelling Kenya School of Law to complete the admission formalities that were pending prior to taking its decision to revoke the admission of the appellant to the Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.That any party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38 (1) of the Legal Education Act, 2012. It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 3RD DAY OF JUNE, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIR PERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) - MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR