Kariuki v Kenya School of Law & another (Appeal E027 of 2026) [2026] KELEAT 13 (KLR) (8 May 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E027/2026 NEWTON KIRAGU KARIUKI VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION # JUDGMENT **REPUBLIC OF KENYA** **IN THE LEGAL EDUCATION APPEALS TRIBUNAL AT NAIROBI** **APPEAL NO. E027 OF 2026** NEWTON KIRAGU KARIUKI………..…………………………………APPELLANT # VS KENYA SCHOOL OF LAW…….................................................................RESPONDENT COUNCIL OF LEGAL EDUCATION.………………..…….……. INTERESTED PARTY **JUDGEMENT** **A. Introduction and Background** 1. Before this Tribunal for determination is the appellants appeal dated 2nd February 2026 seeking to quash the respondents’ decisions dated 16th December 2025, a declaration that he is eligible for admission to the Advocate Training Programme and an order directing the respondent to admit him to the Advocates Training Programme. 1. This appeal is founded on several grounds including: that the respondenterred in law and fact in failing to appreciate the appellant’s academic trajectory and applicable legal regime, the respondent erred in fact and law by relying on section 16 and the second schedule of the Kenya School of Law Act, which had been declared unconstitutional, null and void by the Court of Appeal, failing to assess the appellant’s eligibility criteria according to section 8(3)(c) of the Legal Education Act and Regulation 5(c) of the Council of Legal Education (Kenya School of Law) Regulations 2009. 2. The respondent’s replying affidavit is sworn on 23rd February, 2026 by its Academic Affairs officer, Lawrence Mugambi, who avers that the mandate of the respondent is to train persons for purposes of the Advocates Act by offering the ATP and that it retains the exclusive right to admit pursuant to section 16 of the KSL Act. That it only admits upon satisfaction that the applicant met the qualifications. In this case, the deponer avers that the respondent found the appellant ineligible for admission. 3. The respondent objects to the Tribunal’s jurisdiction and that in theTribunal and that the KSL Act does not provide for academic progression that the appellant is relying on and hence it was right to deny him admission. 4. The interested party filed a replying affidavit where the deponer ProfBusalile, Jack Mwimali, in a neither support nor objection of the appeal, lays down its statutory functions and regulatory mandate in accordance to sections 8 and 21 of the Legal Education Act and as laid out in the Court of Appeal decision of **Council of Legal Education v Kenya School of Law & Another [2019] eKLR**, and its guiding principles being legality, proportionality and fairness. The CEO avers that the interested party is in full compliance with **Stephen Otinga Nikita Vs Cabinet Secretary, Ministry of Education & 30 Others** in formulating the regulations and that it the recognition of diverse academic pathways should be reconciled with the overriding public interest and that it is best placed to determine and confirm candidates’ qualification. **B. PARTIES’SUBMISSIONS** **Appellants Submissions** 1. In the submissions dated 26th February 2026, the appellant’s counsel underscored the issues for discussion as: whether this Tribunal has jurisdiction to hear and determines this appeal, what the eligibility criteria and applicable laws ought to govern the respondent in considering the appellant’s admissions to the ATP and who should bear the cost of the suit 2. On the first issue, the appellant relies on **In the Matter of Interim Independent Electoral Commission (2011) eKLR** to buttress the point, where Supreme Court held that: **“Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution, by statute law and by principles laid out in judicial precedent”** 1. The appellant further placed reliance on **Kenya school of Law vs Gachoki& 2 Others Counsel of Legal Education (Civil Appeal No E062 of** **2022{2024} KEHC(KLR), Republic Vs Kenya School of Law & 2 Others Ex perte Kgaborone Tsholofelo Wekesa** and **Kitsao Vs Kenya school of law & Council of Legal Education {LEAT No E 013 of 2023} 2023 KELEAT 185 KLR.** The appellant’s counsel therefore concluded that this Tribunal has the requisite jurisdiction to hear and determine this appeal. 1. On the second issue, the appellant argues that section 16 paragraph 1(a) and (b) of the second schedule of the Kenya School of Law Act, provides for two distinct pathways for the ATP admissions and two sets of qualifications. He states that he scored C plain in KCSE and grades B(plain) in English and B(Minus) in Kiswahili before he undertook a Diploma in law and subsequently a degree in law, both from Mount Kenya University. 2. To Buttress this issue, he relies on **Republic Vs Kenya School Of Law & Another, Ex-Perte Kithinji Maseka Semo & Another{2019} eKLR, Robert Uri Dabaly Jimma Vs Kenya School of Law & Kenya National Qualifications Authority{2021}eKRL** and **Stephen Nikita Otinga v Cabinet Secretary & 3 Others,** which latter case declared section 16 as read with second schedule of the KSL Act unconstitutional. 3. The appellant further submitted that this Tribunal has upheld the findingof the **Otinga case** in its decisions including **Caroline Kithure Kiruki Vs Kenya school of law & council of legal education LEA No E003 of 2025, Samwel Mbugua Ndungu v Kenya School of Law (LEAT No E008 of 2024) and Anthony Wangila v Kenya School of law** 4. The appellant finally submits that this Tribunal should hold theunconstitutionality of section 6 and second schedule that was relied upon by the respondent in rejecting his admission to the ATP. **Respondent’s Submissions** 1. The respondent in its submissions dated 9th March, 2026, raises four issues for determination: whether the Tribunal has the jurisdiction, whether the double standard in admission qualification is discriminatory or justifiable, whether its decision to refuse appellant’s admission into the ATP was a breach of legitimate expectation and whether academic progression is applicable. 2. On the first issue, the appellant put reliance of the Black’s Law Dictionarydefinition and the Halsbury’s Law of England 4th edition volume 10 paragraph 314 and article 159 of the constitution and section 31 of LEA to lay ground. 3. To buttress the issue, the respondent relies on **Law Society of Kenya v Centre for Human Rights and Democracy & 13 Others {2013} eKLR, Bakeries Limited Vs Rent Restriction Tribunal and Kiriti Raval Nairobi HCMCC No 246 of 1981** andthe **Samuel Kamau Macharia Case,** where Supreme Court held that **“a court jurisdiction flows from either the constitution or statute or both, this a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred on it by law**” 1. Further reliance is on the **Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) eKLR, Kenya Pipeline Limited v Hyosuing Ebara Company Ltd & 2 Others (2012) eKLR** and **HCCA/E002/2023 Kenya School of Law v Isaiah Munoru Mucheke,** and thus concludes that this Tribunal Lacks Jurisdiction 2. On the second issue, the respondent submits that this Tribunal inconstruction of the statute, it should adopt ordinary meaning of words and grammar unless the same manifest absurdity or repugnancy as long as it does not offense public policy. It relies in the court of appeal case in **Nairobi civil appeal No E472 of 2021** where the court stated that: **“The text is that paragraph 1(a) and 1(b) is separated by a semicolon, then there are the key elements mentioned after the colon on 1 (b) which means both 1(a) and (b) must meet the conditions precedent in roman i and ii. In essence whether you obtained a degree in Kenyan or out of Kenyan university, the basic requirement is the score in one’s KCSE results which should correspond to those cited in the Act”** 1. On the 3rd issue, the respondent submits that there was no legitimate expectation created between it and the appellant. It relies on quote of an unnamed court of Appeal decision to buttress this issue 2. On the fourth issue, the respondent underscores that it acted within theprecincts of article 47 and that the rejection was not a violation of his right of education under article 43(1)(f) 3. And finally on the issue of academic progression respondent reiterates thatthe appellant did not qualify to be admitted to the Advocate Training Programme on account of academic progression. The respondent relies on **Stephen Otinga Nikita v Cabinet Secretary, Ministry of Education & 30 Others,** which directed the interested party to establish regulation that govern the ATP. It further argues that the court of appeal in Civil Appeal E 472 of 2021 affirmed the respondents right to determine its own admission Criteria 4. On its part the interested party in submission dated 9th march 2026 raises issues: the precise legal effect of the court of Appeal nullification of section 16 and the second schedule of the Kenya school of law Act on appellants application whether interested party should be liable for the actions of the respondent, whether academic progression is relevant to the law. 5. On the first issue the interested party acknowledges that the declaration ofsection 16 and second schedule as unconstitutional in Otinga case removed KCSE as a mandatory qualification for admission to ATP. It argues that the nullification shifts Admission process for achieving Grade C+ in KCSE to undertaking relevant progression on through Diploma in law and that it is ro upload the architecture of academic progression 6. On the second issue the interested party submits that this Tribunal isbound by clear and unequivocal court of appeal decision in which the court gave interpretation of section 8(3)(c) of LEA 7. To Buttress this issue the interested party relies on the **Kenya School Of Laws v Akomo& 41 Others (Civil Appeal E472 of 2021) {2022} KECA 1132(KLR**) 8. On the third issue the interested party submits that it cannot be held liablefor the actions of the respondent to deny the appellant admission as the two institutions are and distinct. To reinforce this argument the interested party relies on section 8(1) of LEA and section 4 of the KSL ACT. Further the interested party relies on the Otinga case where the court stated that the legal education Act is the framework of legal education and Training in Kenya including Training ATP 9. Further the interested party submits that its role is to prescribe standardsfor admission as opposed to the respondent which is an legal Education provides **C. Analysis** 1. In their submissions, the parties to the appeal raised divergent issues fordetermination by the Tribunal, and in our considered view, the issues that # a. Whether the Tribunal has Jurisdiction to deal with the appeal 1. Whether the Respondent’s decision to decline the appellant’sapplication was reasonable, valid and lawful 2. Whether the appellant qualifies for admission to the ATP on academicprogression **Whether the Tribunal has Jurisdiction to deal with this Appeal?** 1. The issue of jurisdiction is essential in that, once it is raised by a party to acase, then it should be determined at the earliest stage. It forms the bedrock upon which judicial power is exercised by a court of law or Tribunal in adjudication of matters before it. Should any court proceed with a case without jurisdiction, then the action is a nullity *ab initio*, for want of competence. See **Phoenix of EA Company Limited v Thiga T/A Newspaper Service (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR)** 1. The Supreme Court in the case of **Macharia & Another Vs Kenya commercial Bank Ltd & 2 Others,** on the source of jurisdiction of a court, it held that: **“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law”** 1. Therefore, when the issue of jurisdiction is raised, this tribunal, must hear and settle the question first before further proceedings take off. Once it discovers that it lacks the requisite jurisdiction to adjudicate, it surrenders on that fact alone. 1. In the **Court of Appeal, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR,** while dealing with the issue of jurisdiction, it held that: **“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”** 1. In this appeal therefore, it is paramount that we settle that issue firstbefore deliberating and delving into any other matters in the appeal. The respondent has disputed the Tribunal’s jurisdiction to handle matters emanating from its decisions as the powers of the Tribunal is to solely deal with matters arising out of the Legal Education Act. 2. In many decisions before this Tribunal, we have reiterated that thejurisdiction to hear and determine appeals emanating from the respondent and interested party originates from section 31 of the Legal Education Act, that establishes this Tribunal. See **Eric Ng’angá Wanjiru v Kenya School of Law & Another [2025].** 3. In the case of Kenya **School of law –Vs- Gachoki & 2 others [ civil appeal E062 of 2022(2024}, Majanja, J** in affirming this Tribunal’s powers, he stated that: **“On my part I do not see any reason to depart from the settled position on jurisdiction. Section 31(1) of the Legal education act grants the Tribunal Jurisdiction to inquire into” ……………. any matter relating to this Act” which is an all –encompassing clause that affirms the Tribunal’s jurisdiction to deal with matters concerning legal education arising not only within the Act itself but also from the Kenya school of law Act under which KSL is guided by and applies the provisions of Legal Education Act”** Emphasis, ours 1. Therefore, from the foregoing, this Tribunal insists that it is well groundedwith authority to hear and determine this appeal, from the decided case laws. As a matter of fact, the jurisdiction of this Tribunal is appellate jurisdiction according to LEA, and that is why, appellant herein, is seeking to overturn the decision of the respondent to deny him admission to the ATP. The Tribunal is therefore competent to hear and determine this appeal. **Whether the Respondent’s decision to decline the appellant’s application was reasonable, valid and lawful;** 1. The appellant contends that the respondent’s refusal to admit him to theAdvocates Training Programme (ATP) was premised on section 16 and the Second Schedule of the Kenya School of Law Act. However, these provisions had already been annulled by the Court of Appeal in ***Stephen Nikita Otinga v Cabinet Secretary & 3 Others*,** rendering them inoperative to the extent that they conflicted with the parent statute, being the Legal Education Act. 2. that the refusal to admit him is not only illegal, unfair and unconstitutional,but is also contemptuous of the Court of Appeal. 3. The respondent, however, maintains that its actions were lawful andreasonable under Article 47(1) of the Constitution. The appellant insists that reliance on section 16 and the Second Schedule was misplaced. 4. In its submissions, the respondent asserts that admission to the ATP fallssquarely within its mandate under section 16 of the KSL Act, despite being aware that the Court of Appeal had declared that provision null and void. While the respondent may not have created any legitimate expectation for the appellant, it was nonetheless bound to take judicial notice that invalidated provisions cannot form the basis of lawful decision-making. 5. The interested party submits that the *Otinga* case resolved the prevailing confusion, clarifying that admission to the ATP is no longer determined solely by KCSE results but also by progressive academic advancement from diploma to bachelor’s degree in law. This Tribunal concurs that the *Otinga* decision effectively revived section 8(3)(c) of the Legal Education Act by invalidating section 16 and the Second Schedule of the KSL Act. The interested party has submitted that it is already engaging stakeholders so as to come up with regulations. 6. Notwithstanding the above, the respondent insists that its actions were within its statutory mandate, which it believes was unaffected by the ***Otinga* decision**. It argues that it retains the discretion to uphold higher standards for admission into the ATP. This Tribunal agrees that higher standards ought to be observed in admission of student both entry and the ATP levels, but the said standards need to be supported by the law. 1. From the appellant’s KCSE certificate, it is evident that he attained a meangrade of C(plain) in KCSE, with B (plain) in English and B– in Kiswahili. According to the respondent, these grades disqualify the appellant from admission to the ATP, as affirmed in the *Akomo* decision. While the Akomo cas e was the correct law at the time, its legal importance in terms of admission have been overtaken by the Otinga case. 2. This Tribunal emphasizes that the invalidation of section 16 and secondschedule of KSL Act has significance consequence to respondent’s decisions, since the sections therefore, have no force of law and relevance in law since the date of invalidation. 3. Consequently, the respondent’s reliance on section 16 and the SecondSchedule of the KSL Act to deny the appellant admission, is void of legal force and cannot be held as reasonable, since reasonableness is a fundamental principle in administrative decision-making process, that cannot afford to ignore an invalid law. **Whether the appellant qualifies for admission to ATP on academic progression** 1. The issue of academic progression is entrenched in our legal educationsystem pursuant to section 8(3) (c) of the Legal Education Act, which provides that: **“S 8(3) in carrying out its functions under subsection (2) the council shall-** **(c) formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower level of learning to higher levels”** 1. Academic progression, generally speaking is a structured pathway ofadvancement to a higher level of education through various channels; in this case, from a diploma all the way to the highest level one can achieve. 2. In **Kenya School of Law v Akomo & 41 Others (Civil Appeal E472 of 2021 [2022] KECA, the** Court of Appeal further stressed on what progression means by stating that: **“Progression ideally was the process of developing or moving gradually towards a more advanced state.”.** 1. Further, the court affirmed section 8(3)(c) of LEA by holding what “**The wording in section 8(3)(c) of the Legal Education Act was clear that prior learning and experience in law was what ought to be considered when formulating a system that would see the progression in legal education**” 1. The progression should be in the legal profession, and not in any othercourse before skipping to advance in law: this was reiterated by the Court of Appeal in the **Akomo Case** that: “**“We do not think a degree in aeronautics or diploma in interior design for instance can be termed as progression towards studying law. Indeed, the only closer aspect contemplated was experience and learning in law culminating in diploma in law or related course in law”** 1. It is the appellant’s argument that since the invalidation of section 16 andthe second schedule of the KSL Act by the Court of Appeal in **Otinga -VCabinet Secretary, Ministry of Education and 3 Others (Civil Appeal E625 of 2023), [2025] KECA 460 (KLR)**, the said section cannot be the determining criteria of admitting to the Advocates Training Programme. That now, things should revert to section 8(3)(c) of LEA and the Council of Legal Education (Kenya School of Law) Regulations 2009, which recognize prior learning. 2. The appellant annexed the Kenya Certificate of Secondary Examination(KCSE) attached as **“NKK-1”,** which shows that the appellant had a mean grade of C (plain) and grade B (plain) in English and B-(Minus) in Kiswahili. Through a letter dated 16th December, 2025, attached as **“NKK-5**”, the reason for refusal to admit the appellant to the ATP was captured as: **“NOT QUALIFIES THE CANDIDATE SCORED GRADE C PLAIN”** 1. Therefore, to prove that he is entitled to benefit from section 8(3)(c) of LEA, the appellant had the burden of proof that he has met the academic progression demand. 1. This Tribunal agrees with the interested Party that the process ofassessing academic progression is within its mandate as stated by the Court of Appeal in the **Otinga Case,** when the court made it very clear that the interested party is the regulator of ATP. It stated that: **“It is evident that the Legal Education Act is the framework of legal education and training in Kenya, including training in ATP. Consequently, the provisions therein are the ones applicable to all legal training in Kenya including the ATP**”. 1. Therefore, it is upon the appellant to proof his case as alleged that hequalifies for academic progression. As stated in section 107 of the evidence Act, anyone who desires the court to rely on a fact, he is duty bound to prove the existence of that fact. The appellant must dispense this burden of proof. 2. In the **Edward Akong'o Oyugi & 2 others v Attorney General [2019] KEHC 10211 (KLR)**, the court on the burden of proof stated that: “***“73. Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd [38]:-*** ***“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”*** ***74. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.”*** 1. The question this Tribunal is called upon to answer is whether theappellant in this appeal has dispensed this burden of proof so as to benefit from section 8(3)(c) of LEA. 2. It is not in dispute that the appellant has a Diploma in Law **(NNK-2)** from Mount Kenya University. He has attached transcripts to prove that he sat for the Diploma examinations and passed. 3. Subsequently, after graduating with a Diploma in Law, the appellantapplied and received an admission letter dated 28th January 2020 (NNK-3) from the same institution to pursue a degree in Law. He has produced transcripts for first year up to fourth year, and a copy of degree certificate indicating that he graduated in 2024 with an LLB Degree in Law**.** 4. The **Otinga case** has set a new level of admissions to the ATP and therefore, all parties, including the respondent, have to get used to that reality that KCSE will no longer be the only determinant of an applicant’s application, who desires to join the ATP. Academic progression has been validated by the Court of Appeal and therefore, it is our hope that this noble profession will have a clear path of qualification. 5. The **Otinga case** delineated the functions and mandates of both the respondent and the interested party as captured inn their respective statutes that establish the said institutions. The respondent, was categorized amongst the legal education providers while the interested party is a regulatory entity to ensure compliance by the legal education providers with the standards. 6. It is worth noting that this case was not meant to compromise thequalification standards for one to join a Law School or the ATP, but to reinforce the existing standards by widening the path to the apex of the profession for those who failed a direct entry. 7. It cannot be denied by the respondent that it does not recognize academicprogression, as stated in its submissions, and that the appellant cannot be admitted to the ATP on that account alone. That the KSL Act, which is its guiding statute does not provide nor recognize academic progression. 8. However, the appellant in **Akomo case**, acknowledged academic progression as long as it is strictly within the law. At paragraph 46, the Court stated: **“On the issue of progressive academic qualifications, it is the appellant’s stand that the person who hinges on this aspect of qualification must have obtained a diploma in law and not just any other course”.** 1. Therefore, a court of law is a court of record, and the respondent cannotstate one this in the Court of Appeal and come to this Tribunal to state a different thing. We respectively differ with the respondent’s argument on academic progression. 2. It is the interested party’s submissions that if at all desires this Tribunal tohold in his favour as to whether he qualifies for academic progression, he must demonstrate that his Diploma constitutes the **“prior learning”** and that he advanced in the same field of law as held in the **Akomo Case**. 3. The appellant has exhibited that he started at the Diploma level beforeadvancing to the degree in law. However, the KCSE qualification was the reason the respondent declined to admit him. The respondent failed to appreciate the shift introduced by the **Otinga case** by nullification of section 16 and the second schedule of the KSL Act. The alternative to the KCSE today, is the academic progression encapsulated in section 8(3)(c) of LEA, which mandates the interested party to determine the qualification to the ATP on that ground. The appellant has therefore, exhibited a satisfactory academic progression as entrenched in section 8(3)(c) of LEA and Regulation 5(c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009, and therefore, he deserves a day in the ATP. **D. Disposition** In the premises, the Tribunal makes the following determinations: * 1. The respondent’s letter dated 16th December 2025 denying the appellant admission to the Advocates Training Programme is hereby set aside as the decision was premised on the nullified section 16 and the second schedule of the Kenya School of Law Act. 2. That **NEWTON KIRAGU KARIUKI** is eligible for admission to the Advocates Training Programme on account of academic progression, and the respondent is hereby ordered to admit him forthwith. 3. Right of appeal under section 38 (1) of the Legal Education Act,2012, on points of law in 30 days. 4. Each party shall bear its own costs. **It is so ordered by the Legal Education Appeals Tribunal.** **HON. JULIANA NJIRIRI - CHAIR** **HON. JOSHUA NGULU- MEMBER** **HON. FELIX OKETCH - MEMBER** **HON. MOSES MUNOKO – MEMBER** **HON. GODANA YATANI – MEMBER** **DATED AT NAIROBI THIS 8TH DAY OF MAY 2026.** SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. JULIANA WAMAITHA NJIRIRI** **VINCENT GODANA YATANI** **FELIX OTIENO OKETCH** **MOSES SITATI MUNOKO JOSHUA MBINDA NGULU** Legal Education Appeals Tribunal Legal Education Appeals Tribunal Date: 2026-05-11 10:34:30 |