[2024] KELEAT 387 (KLR)

Kennedy v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E027 of 2022) [2024] KELEAT 387 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KELEAT 387 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E027 of 2022

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

April 5, 2024

Between

Sheila Kerubo Kennedy

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

Judgment

A. Introduction 1. The appellant Sheila Kerubo Kennedyby her appeal seeks to challenge the decision of the respondent the Kenya School of Lawas communicated by the Director of the School declining her application to the Advocates Training Programme. The appellant has also enjoined the interested party the Council of Legal Educationto the appeal.

2. The respondent was served with the appeal and filed a replying affidavit through Mr. Fredrick Muhia it’s Academic Services Manager. The interested party was served with the appeal but did not enter appearance or file any response. The Tribunal directed that the appeal be disposed of through written submissions. The appellant filed submissions through the law firm of Wambui Shadrack & Associates Advocates while the respondent filed the same through Dr. Henry Mutai; Advocate.

3. The matter proceeded with the appellant appearing before the Tribunal through their Advocate Mr. Shadrack Wambui while the respondent appeared through Ms. Pauline Mbuthu; Advocate.

A. The appeal 4. The appellant sat for the Kenya Certificate of Secondary Education in the year 2012 at Nyamusi Secondary School. In the said examinations she attained a mean grade of a C+ (plus) with grades B (minus) in English and Kiswahili. She enrolled at the Mount Kenya University for a Diploma in Law course which she successfully completed in the year 2015 with grade of Credit II. She was then admitted to pursue the Bachelor of Laws degree at the same institution which she completed in the month of December, 2019 graduating with a Second Class Honours - Lower Division.

5. She applied for admission to the Advocates Training Programme offered by the respondent in during the academic year 2020/21. On the 17th December, 2019 the application was declined and a communication was done as follows;“It is regretted that your application was not successful due to the reason that you grade B - (minus) in English and B - (minus) in Kiswahili languages. Which is below the stipulated grade of a B plain. Thank you.Yours sincerely, Dr. Henry K. MutaiDirector/Chief Executive Officer.”

6. She appealed against the decision to the School which while affirming its initial decision rendered itself as follows;“We regret to inform you that as per the applicable law, i.e the Kenya School of Law Act a Diploma in Law certificate cannot be considered for admission to the Advocates Training Programme.Thank you. Yours sincerely,Dr. Henry K. MutaiDirector/Chief Executive Officer”.

7. The appellant also deposed that she was informed by the respondent that she would get an admission letter once the Court of Appeal pronounced itself in Civil Appeal no. E472 of 2021 - Kenya School of Law & Others v Richard Akomo Otene & 32 Others. She took efforts towards seeking the expediting of the said appeal by writing to the President of the Court of Appeal and received a response that the appeal was most likely to be heard in the next term of the court’s calender due to shortage of Judges and other equally urgent appeals that were pending.

8. She also contends that she has suffered loss of legitimate expectation as she was assured of her admission to the Advocates Training Programme by virtue of having met the criteria set in paragraph 5 of the 3rd schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

C. The response to the appeal 9. In response to the appeal, the respondent contends that the Tribunal is bereft of jurisdiction to entertain them as they relate to matters of admission to the Advocates Training Programme which is regulated by the Kenya School of Law Act, no. 26 of 2012 while the Tribunal is established under the Legal Education Act, no. 27 of 2012. The application by the appellant failed to meet the required admission requirements of a mean grade of C+ (plus) and a B (plain) in English and Kiswahili in the Kenya Certificate of Secondary Education. The appellant was relying on academic progression which is not provided for in the Kenya School of Law Act, 2012. The only criteria for admission to the Programme is that set out in the Second Schedule to the Act and which guides it in considering admissions to the programme. It is further contended that by allowing the appellant to rely on academic progression in gaining admission to the Advocates Training Programme it would result in application of double standards and discrimination.

10. The respondent also contends that it proceeded with the hearing of Nairobi Court of Appeal Civil Appeal no. E472 of 2021 on 6th June, 2022 and the Honourable Judges did retire to prepare the judgment and it is intended to apply the decision to all applications to the Advocates Training Programme.

D. The submissions by the parties 11. On jurisdiction, the appellant submits that the Tribunal is reposed with the jurisdiction to entertain the appeal by dint of section 31 of the Legal Education Act, no. 27 of 2012 as the empowering provision for the Tribunal to deal with the appeal. The appellant submits that she is eligible for admission to the Programme by dint of section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 as opposed to section 1 (b) therein as they have become eligible for conferment with a Bachelor of Laws degree from the Mount Kenya University a local recognized and accredited university in Kenya. On legitimate expectation the appellant relies in the decisions in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others, (2014) eKLR together with Republic v Kenya School of Law Ex - parte Victor Mbeve Musinga, (2019) eLKR. In conclusion she relies on the decision of the Tribunal in the consolidated appeals 8 - 16 all of 2021 - John Kibegwa & Others v Kenya School of Law & Another in which the Tribunal allowed the appeals of the appellants against the decisions declining admission to the Programme.

12. The respondent on its part submits that the Tribunal has no jurisdiction to entertain the appeal. It is a creature of part VI of the Legal Education Act, 2012 and it ought only to hear matters arising out of the said Act. The appeal relates to the matters arising under the Kenya School of Law Act, 2012. It relies on the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, (2012) eKLR in which Justices W. M. Mutinga C. J, K. Tunoi, J. B. Ojwang, S. C. Wanjala and N. S. Ndungu S. JJ held; “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, 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 upon it by law.”

13. It is submitted that the appellant’s appeal is essentially asking the Tribunal to grant her admission to the School which will be arrogating it’s statutory duties. It relies on the decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others, (2012) eKLR in which it was stated;“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 words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

14. On double standards in considering applications to the Advocates Training Programme between applicants from local recognized universities in Kenya and foreign LLB degree holders, it is submitted that to interpret the conjunction ‘or’ in a disjunctive manner will lead to discrimination. The School relies in the decision in Peter K. Waweru v Republic, (2006) eKLR. It also adopts the interpretation by Justice Chacha Mwita in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR in which he observed;“ 25. According to the Schedule, there are two categories of persons who can be admitted to the ATP. First are those who attended local universities who fall under paragraph 1(a). The other is persons who attended universities outside Kenya who fall under paragraph 1(b) of the Schedule. Paragraph 1(a) of the Schedule does not specifically state the KCSE grades one should have. but a reading of paragraph 1(b) shows that persons who obtained LLB degrees from outside Kenya should have KCSE grades that would have enabled them join LLB programmes in universities in Kenya, and goes ahead to state those grades as a mean grade of C+ (plus),in KCSE, with B (plain) in either English or Kiswahili languages.26. In that regard, therefore, applying the principle a holistic reading of a statute persons falling under paragraph 1(a) of the Schedule to KSL Act, must have obtained a mean grade of C+(plus) with B(plain) in English or Kiswahili languages to have qualified to join LLB programme in local universities. That is why there is reference of this requirement in paragraph 1 (b) (ii) of the Schedule. (See Adrian Kamotho Njenga v Kenya School of Law (petition No 398 of 2017).”

15. On the reliance on the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 by the appellant to advance the cause of academic progression, the respondent submits that the same are ultra - vires the criteria set in the Kenya School of Law Act, 2012. It relies on the decision in Victor Juma v Kenya School of Law & Another, (2020) eKLR in which Justice Weldon Korir held;“It is therefore my finding that the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 are not applicable in this case, and the relevant legislative instrument to be applied is the KSL Act. This means that the petitioner cannot benefit from the vertical progression recognized in the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. ”

E. Analysis and determination. 16. On the jurisdiction to entertain the appeal, the Tribunal notes that the appellant asserts entitlement to admission to the Advocates Training Programme by dint of academic progression. The requisite functions of the interested party in section 8 (3) (a) of the Legal Education Act, 2012 is to make regulations for persons wishing to enrol in Legal Education Programmes. The superior court has confirmed the reposition of the said function upon the interested party in the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR in which Justice Antony Mrima as follows at paragraphs 85 – 86;“85. A synopsis of the Legal Act posits that it is the Council which is at the heart of legal training and education in Kenya. The Council has powers not only to regulate and licence the legal education providers but also to supervise what and how they offer their services to the public.”

17. In section 8 (3) (c) of the said Act, it provides for academic progression by requiring it to 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. Both parties have extensively submitted on the applicability or otherwise of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which are a creature of the Legal Education Act, 2012. The said matters are indeed well acknowledged by both parties and have been canvassed in this appeal. Accordingly, the Tribunal finds that in inquiring into the matter of applicability of progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012.

18. On the appeal by the appellant, the respondent declined her admission to the Advocates Training Programme on the basis that she failed to meet the minimum Kenya Certificate of Secondary Education requirements of a B (plain) in English and Kiswahili languages. In affirming it’s decision the respondent went further to conclude that the Diploma in Law held by the appellant prior to enrolling to the LL.B degree was not to be taken into account as a consideration for admission to the Advocates Training Programme as it was not provided for in the Kenya School of Law Act, 2012.

19. The Tribunal has evaluated the supporting evidence in the application for admission as submitted by the appellant being her secondary school results, the Diploma in Law and the LL.B degree. On the point of checking for eligibility to a Legal Education Programme it is clear that it is at the time when seeks admission to the programme in issue for the LL.B. The Tribunal is so guided by the decision in Robert Uri Dabaly Jimma supra in which Justice Mrima held;“86. It can, therefore, be only the case that 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, that is a college or a university.”

20. The appellant was admitted to the LL.B degree at the Mount Kenya University in the year 2015. The applicable law for admission to an undergraduate degree by then was the second schedule to the Kenya School of Law Act, 2012 and the applicable subsidiary legislation in force by then was the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 being Legal Notice no. 170 of 2009 as saved by the transition provisions of the Legal Education Act, 2012 at section 48 (2) (a) of the Act. The said section provides;“Notwithstanding the repeal of the Council of Legal Education Act, 1995—a.the repeal shall not affect any instrument made or any other thing done under the former Act and every such instrument or thing shall continue in force and shall, so far as it would have been made or done under this Act, have effect as if made or done under the corresponding enactment of this Act;…”

21. The subsidiary legislation being the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 at section 2 of the second schedule had provided as follows; “Admission into an Undergraduate Degree ProgrammeA student shall not be eligible for admission into an Undergraduate Degree Programme unless that student has —a.a degree from a recognized university;b.at least two principal passes at an advanced level or an equivalent qualification;c.a mean grade of C+ (C plus) in Kenya Certificate of Secondary Education (KCSE); ord.a diploma of an institution recognized by the Commission for Higher Education and the applicant shall have obtained at least credit pass.”

22. It is clear that the appellant herein qualified to be admitted by the Mount Kenya University to pursue the LL.B degree with her Kenya Certificate of Secondary Education mean grade of a C + (plus) or with her Diploma in Law of a Credit pass from the Mount Kenya University. The decision of the respondent to deny her admission on the basis of failure to meet minimum English or Kiswahili languages grades of a B plain was arrived at by error. Indeed the said Regulations did not accord the English and Kiswahili languages any consideration as a precondition to eligibility by then. Indeed, the decision that the appellant’s Diploma in Law was not to be reckoned as an eligibility basis to the Advocates Training Programme was equally misconceived as taken by the respondent.

23. On the contention by the appellant that she was to be subjected to the criteria in the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 it is the finding of the Tribunal that she was already admitted to the Mount Kenya University before the said Regulations were formulated and the same could not form a basis of consideration of her application and admissibility to the Advocates Training Programme. The submissions by the parties on applicability or otherwise and as further backed up by several authorities are inconsequential as the Regulations of 2016 could not apply to the appellant in a retrospective manner. She had already been admitted to the University when they came into force. The Tribunal derives guidance from section 28 of the Interpretation and General Provisions Act, Cap. 2 which provides the instances of retrospective application of subsidiary legislation in the following terms; “Subsidiary legislation may be made to operate retrospectively to any date, not being a date earlier than the commencement of the written law under which the subsidiary legislation is made, but no person shall be made or become liable to any penalty whatsoever in respect of an act committed or of the failure to do anything before the day on which that subsidiary legislation is published in the Gazette.”

24. The subsidiary legislation in issue was not procedural but addressed substantive matters in so far as admission requirements to the undergraduate LL.B degree were concerned. The Tribunal derives guidance from the decision in Mistry Jadva Parbat & Company Ltd v Ameeri Kassim Lakha & 2 Others, Civil Appeal (Application) No. 296 of 2001 in which the Court of Appeal stated inter alia as follows;"It is also a rule of construction of statutes that prima facie, if a provision of legislation affects procedure only, it operates retrospectively. Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts are guided by certain rules of construction and one of these rules is that if the legislation affects substantive rights, it will not be construed to have retrospective effect unless a clear intention to that effect is manifested. Whereas, if it affects procedure only, prima facie, it operates retrospectively unless there is a good reason to the contrary. But in the last resort it is the intention behind the legislation, which has to be ascertained, and the rule of construction is only one of the factors to which regard must be had in order to ascertain that intention”.

25. On the submission that subsidiary legislation ought not to be inconsistent with the enacted law, it is the finding of the Tribunal that the submission by the respondent only constitutes a correct rendition and exposition of the legal position however, in this matter the situation is different. The subsidiary legislation in this matter cannot be said to be inconsistent with section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 as it is meant to augment the said parliamentary enacted law on qualifications to the various Legal Education Programmes as provided therein.

26. The argument on want of provision on academic progression in the Kenya School of Law Act, 2012 cannot hold as the subsidiary legislation that prevails in this appeal, as adumbrated clearly has provision on progression as read together with the Legal Education Act, 2012. If the legislature intended to obliterate progression in the legal profession it would have by express text of the law so provided. Ipso facto the lack of a provision on progression in the Kenya School of Law Act, 2012 does not render or outlaw it. An express stipulation proscribing progression ought to have been made in the said Act if it was the legislative intention to do so.

27. On the application of the Second Schedule to the Kenya School of Law Act, 2012 to the appellant, the Tribunal finds that the respondent was bound to limit itself in considering the application to the Advocates Training Programme to section 1 (a) therein. It was improper for it to seek to extend the requirements in section 1 (b) in considering the application. The conjunction ‘or’ between 1 (a) and 1 (b) could only be accorded a disjunctive interpretation as opposed to a conjunctive one. For ease of reference the said law provides;"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 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; orb.having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—i.attained a minimum entry requirement for admission to a university in Kenya; andii.obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; andiii.has sat and passed the pre-Bar examination set by the school.”

28. The Tribunal notes that the respondent has sought a holistic interpretation of the said law as reading the requirements in 1 (a) and 1 (b) as applying to all applicants to the Advocates Training Programme. It relies in the authority in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR. The Tribunal is unable to accede to the said position as subsequent decisions of the superior court have held that the conjunction ‘or’ creates an election and faulted the said decision. For instance in Sabrina Jelani Badawi v v Kenya School of Law (Constitutional Petition E033 of 2019) [2021] KEHC 306 (KLR) (23 November 2021) Justice John Mativo held;Certainly, the High Court in Peter Githaiga Munyeki v Kenya School of Law contradicted not only decisions rendered by courts of coordinate jurisdiction, but also it went against the Supreme Court decision in Raila Amolo Odinga v Independent Electoral and boundaries Commission and 42 Others, which construed the word “or” as disjunctive, creating two categories. The said decision cannot be good law. Section 16 of the KSL Act bears the short title “admission requirements.” It provides that a person shall not qualify for admission to a course of study at the school, unless that person has met the admission requirements, set out in Paragraph 1 of the 2nd Schedule reproduced earlier.At the center of the Respondents refusal to admit the Petitioner is the meaning of the word “or” in legal parlance. As stated above, courts have consistently construed the word “or” to be disjunctive introducing another possibility. It would be a waste of judicial time and ink to add to what the numerous cases have decided. In this long list of decided cases on the same subject, I can usefully add Republic v Kenya School of Law & another ex parte Richard Akomo & 41 others; Council of Legal Education (Interested Party) and Republic v Kenya School of Law both of which following the Supreme Court decision and a long chain of jurisprudence on the subject held that the word “or” as used in paragraph 1 (a) is disjunctive and it creates two distinct categories.”

29. The Tribunal is further guided by the authority in Stephen Kipkemei Rutto v Kenya School of Law & Another, (2022) eKLR in which Justice J. A. Makau held;“The question then one should consider is, has the petitioner complied with the qualifications set out under (1) (a) of the second schedule to the KSL Act, 2012. In my view, the said section does not state the KCSE grades required and if indeed it was meant that the qualifications should be similar to those in (1) (b), it should have expressly stated so as discussed above. The only requirement as clearly are set is out that the Petitioner, passed the relevant examination of a recognized university in Kenya and was conferred the Bachelor of Laws degree. The Petitioner therefore qualified to be admitted to the ATP.”

30. On claims of discrimination, the Tribunal finds that the creation of the two categories for admission to the Advocates Training Programme by dint of the sections 1 (a) and 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012 only creates a differentiation as opposed to discrimination. The legislative intention in creating the two categories is clear from the enactment. The Tribunal’s duty is to interpret the law as it is, bearing in mind the doctrine of separation of powers between the judicial and legislative arms of the state. If the necessity for law reform arises then the legislature ought to be moved to effect the same.

31. Finally, on the contention that the appellant was informed by the respondent to await the determination of the decision in the Court of Appeal in Civil Appeal no. E472 of 2021 - Kenya School of Law & Others v Richard Akomo Otene & 32 Others, though no written document was presented to support this contention, the respective depositions by the appellant and the respondent coupled with their submissions lead to an inference that a representation was made to that effect by the respondent. The Tribunal finds that it would be incorrect to have the appellant herein await the determination of the Court of Appeal in a matter where she is not a party, she is entitled to seek the legal redress that she has sought. Accordingly, the Tribunal sees no just cause to refrain from exercising its jurisdiction to vacate the respondent’s decisions as taken to decline admission at this time.

F. DispositionIt is decreedby the Tribunal as follows:-a.Thata declaration is issued that the appellant Sheila Kerubo Kennedyis qualified for admission to the Advocates Training Programme by dint of section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 and the decision declining admission by the respondent as taken on the 17th December, 2019 and subsequently affirmed on the 8th January, 2020 is set aside.b.Thatan order is issued compelling the Kenya School of Law to admit the appellant to the Advocates Training Programme forthwith.c.Thateach party to bear its own costs of the appeal.d.Thatany 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 5TH AUGUST, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR