[2023] KELEAT 25 (KLR)

Kihiu v Council for Legal Education & another (Appeal E034 of 2022) [2023] KELEAT 25 (KLR) (3 February 2023) (Judgment)

Neutral citation: [2023] KELEAT 25 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E034 of 2022

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

February 3, 2023

IN THE MATTER OF GENERAL NOTICE NO.2 OF 2021 AND IN THE MATTER OF THE ADVOCATES TRAINING PROGRAMME COMMERCIAL TRANSACTION UNIT (ATP 108)

Between

Alex Gitau Kihiu

Appellant

and

The Council for Legal Education

1st Respondent

Kenya School of Law

2nd Respondent

(Being an appeal against the decision of the Council of Legal Education (CLE) dated February 16, 2022)

Judgment

A. Introduction. 1. The Appellant was admitted to the Kenya School of Law in the year 2005/2006 programme. At that time he was required to sit examinations in respect of 13 units.

2. Out of the 13 units, he passed 12 units but failed Commercial Law unit after three (3) attempts.

3. The 1st Respondent issued a General Notice No 2 of 2021 and invited all prospective candidates who were out of the five (5) - year qualification rule to apply to re-sit their respective units out of time and that the applications would be considered on a case by case basis.

4. The Appellant appealed to be allowed to complete his ATP examinations by re-sitting the remaining unit, Commercial Law.

5. The 1st Respondent vide its letter of February 16, 2022 declined the Appellant’s request to be allowed to re-sit the ATP examination as an out of time candidate due to the fact that the syllabus changed drastically after the year 2009, hence making it impossible to accommodate him in the current examination series. He was requested to get in touch with the 2nd Respondent on the way forward.

6. The Appellant being dissatisfied with this decision has appealed to this Tribunal against the whole of the decision of the 1st Respondent.

B. The appeal by the Appellant. 7. The Appeal contained in the Memorandum of Appeal dated August 26, 2022 (supported by the Appellant’s Supporting Affidavit sworn on August 26, 2022 and Further Affidavit sworn on December 14, 2022) is based on the following grounds reproduced verbatim from the Appellant’s said Memorandum of Appeal:a.The Respondent herein erred in law and in fact by denying the Appellant an opportunity to re-sit for the Advocates Training Programme Commercial Transaction Unit based on the reasoning that the syllabus had changed drastically after the year 2009. b.The Appellant stands a disadvantage of not being recognised to re-sit for the Advocates Training Programme (ATP) examinations for November/December 2022/2023 administered by the 2nd Respondent herein.c.The Appellant attained the requisite qualifications to be admitted to the Kenya School of Law having attained a mean grade of C+ and a B (plain) in English.d.The Appellant herein is a University of Pune, India, graduate with Bachelors of Laws degree in the year 2004. e.The Appellant applied to join the Advocates Training Programme for the year 2005/2006. f.The Appellant was admitted to the Kenya School of Law in the year 2005 to 2006 admission no 17/B/2005/2006. g.The 1st Respondent issued legal notice no 2 of 2021 that stated that they would consider all requests for the ATP examination out of time on a case by case basis.h.That the 1st Respondent did in its General Notice No.19 of 2021 Advocates Training Programme (ATP) candidates barred by the 5 year qualification consider applicants for the year 2002/2003 and 2005/2006, 2007, 2008 and 2009 among others.i.That the 1st Respondent in its response to the Appellant’s request indicated that the Appellant was not considered as the syllabus changed drastically after the year 2009. j.That the 1st Respondent erred in law and in fact by denying the Appellant an opportunity to re-sit and pass the failed Advocates Training Programme (ATP-108) Commercial Transaction Unit.k.That Advocates Training Programme (ATP)- Commercial Transaction Unit is one of the units currently offered by the 2nd Respondent.l.The Appellant had a legitimate expectation to complete all the courses offered by the Kenya School of Law and be admitted to the Bar having been conferred a bachelor’s degree in law in 2004. m.The 1st respondent erred in law and in fact for not giving the Appellant an opportunity to be heard.n.The 1st Respondent erred in law and in fact in failing to provide equal opportunity fair administrative action envisaged in Article 47 (1) of the Constitution of Kenya 2010 and equality to all applicants to re-sit and pass the failed Advocates Training Programme including the applicant.

8. The Appellant seeks the following substantive orders from the Tribunal:a.That a declaration be issued that the Appellant qualify to be accepted into the Advocates Training Programme and allowed to re-sit the Commercial Transaction Unit.b.That an order be issued compelling the Kenya School of Law to allow the Appellant to re-sit the failed examination paper Advocates Training Programme- Commercial Transaction Unit forthwith.c.As a last result, the Appellant be admitted by the 2nd Respondent into the Advocates Training Programme.

C. The 1st Respondent’s position on the Appeal. 9. The 2nd Respondent opted not to respond to the Appeal

10. The 1st Respondent relies on the Replying Affidavit sworn by its Chief Executive Officer Dr Emmanuel Wambua Kituku on October 27, 2022.

11. Through its 61-paragraphed affidavit, the 1st Respondent states in summary as follows:a.That it is mandated through section 8 of the Legal Education Act to regulate legal education and training in Kenya and administer such examinations as may be prescribed under Section 13 of the Act.b.That vide General Notice No. 2 of 2021 it implemented Regulation 9(5) of the Council for Legal Education (Kenya School of Law) Regulations, 2009) applying through section 29 (3)(a) of the Kenya School of Law Act, 2012 as required under the Legal Education Act, 2012 .c.That the said General Notice advised candidates that were likely to be affected by Regulation 9(5) of the Council for Legal Education (Kenya School of Law Regulations, 2009) on the 5 year qualifications rule and desirous of taking the ATP examinations to make fresh requests and attach relevant documentation in support thereof by 26th February 2021. The notice informed the prospective candidates that there requests would be considered on a case by case basis.d.That the Second Schedule Part III of the Legal Education Act, 2012 lists Commercial Transactions as one of the core courses at Post Graduate (Professional) Diploma Level.e.That it is in the public interest that the Appellant be examined under the dictates of the Second Schedule Part III of the Legal Education Act, 2012 and in line with the existing curriculum and other examination requirements.f.That since 2006 when the Appellant was at the Kenya School of Law, the curriculum has been revised and that students who sat for Company Law or Commercial Law or the Law of Business Associations units offered before the revision of the curriculum were advised to get in touch with the Kenya School of Law as the said units are not equal to Commercial Transaction Unit.g.That the 1st Respondent’s decision is in line with its mandate to promote the highest possible standards in legal education.h.That Article 47 of the Constitution confers the right to fair administration that is expeditious, efficient, lawful, reasonable and procedurally fair.i.That there cannot be a legitimate expectation against clear provisions of a statute

D. The Appellants' submissions. 12. The Appellant filed written submissions dated December 14, 2022. In the said submissions, he reproduced Regulation 9(5) of the Council of Legal Education (Kenya School of Law Regulations) 2009. We shall reproduce them here because it forms an important part of the dispute. It states:“Unless stated in the specific programme of study, a candidate shall be allowed a maximum of five (5) examination sittings in each course of study, which shall be undertaken within a maximum period of three years”.

13. The Appellant then invokes Section 4 (3) of the Fair Administrative Action Act to support his position that he ought to have been given a chance to be heard and to make representations with regard to the decision before it was reached.The Appellant then frames the issues which he considers as the points of contest in this appeal. They are:a.Whether the provisions of Legal Notice No. 2 of 2021 obviate or supersede Regulation 9(5) Council of Legal Education (Kenya School of Law Regulation) 2009. b.Whether compelling the Applicant to re-join the Kenya School of Law afresh, and study and sit for 10 units as a new student despite his history and circumstances isn’t disproportionate, unreasonable, unfair, punitive and oppressive.c.Whether the 1st and 2nd Respondents’ act of denying the Appellant opportunity to re-sit the failed Commercial Law paper, and allowing others in similar situation to re-sit is patent discrimination contrary to the law. [sic]d.Whether General Notice No. 19 allowing 239 candidates barred by the five (5) year qualification period to register and complete the Advocates Training Programme within one (1) year starting from November 2021 examination series was discriminatory.e.Whether the Appellant had a legitimate expectation to complete his studies following Legal Notice No 2 of 2021. 1.The Appellant then argues his points sequentially under the heads above.

E. The 1st Respondent’s submissions. 15. The 1st Respondent filed written submissions dated January 12, 2023. It lay down its opposition to the appeal by framing four issues of its own. To enable the Tribunal to distil the issues as framed by both parties, we will reproduce the issues as framed by the 1st Respondent verbatim. They are:a.Whether the 1st Respondent’s act of denying the Appellant the opportunity to re-sit the failed Commercial Law paper and allowing others in similar situation to re-sit is patent discrimination contrary to the law?b.Whether General Notice No 19 allowing 239 candidates barred by the five (5) year qualification period to register and complete the Advocates Training Programme within one (1) year starting from November 2021 examination series was discriminatory.c.Whether the 1st Respondent violated the Appellant’s right to legitimate expectation?d.Whether the 1st Respondent violated the Appellant’s right to Fair Administration Action.e.Whether the 1st Respondent violated the Appellant’s right to Fair Administrative Action as envisaged in Article 47 of the Constitution of Kenya 2010

16. The 1st Respondent then argues his points sequentially under the heads above.

F. The 2nd Respondent. 17. The 2nd Respondent elected not to participate in the proceedings even though they were served with the appeal and subsequent court process.

G. Analysis and determination. 18. In view of the issues framed by both parties and the facts spreading for over a decade, we will render our analysis and determination en bloc by referring to the issues interchangeably since they all relate to the same decision. That decision is the refusal to allow the Appellant to sit for an examination that he last attempted 14 years ago. The Tribunal will also make determinations on the issue

19. There is no contest on the facts. The Appellant attempted the bar examinations and out of the 13 units, he passed 12 units but failed the Commercial Law unit after three (3) attempts. He did not attempt the paper again and pursued other interests. His last attempt was in the year 2009. He seeks to attempt an examination after 14 years.

20. The Appellant appealed to be allowed to complete his ATP examinations by re-sitting the remaining unit, Commercial Law. We would like to preface tour determination by highlighting that the course is now offered under a different name. In the curriculum annexed to the Replying Affidavit sworn by Dr Emmanuel Wambua Kituku and marked as Exhibit “EWK 3”, the course at the centre of this dispute is indicated at page 11 of 43 as requiring 66 contact hours.

21. In the same document, at page 34 of 43, the curriculum provides the requirements for “Mode of Assessment”. It provides as follows:“(i)Project work 20(ii)Oral Examination 20(iii)Final Written Examination 60Total 100

22. It is beyond peradventure that the Appellant has not attempted this course in its current structure and contents. Further, the Appellant is asking the Tribunal to make an order that he be allowed to attempt an examination for a course that is no longer being taught. This presents our first reason for disallowing the appeal.

23. The Tribunal respectfully declines the invitation to delve into the justification for the change in curriculum. 14 years is a long time. The appellant prays that to be allowed to sit for an examination that he prepared for 14 years ago. This is against the expert opinion of the bodies tasked with setting and upholding standards and developing the curriculum. We hold the view that we would be stepping into the shoes of educationists and that is not a function of judicial bodies.

24. We find support in the Court of Appeal decision inEunice Cecilia Mwikali Maema v Council of Legal Education & 2 others [2013] eKLR where the court stated as follows:“We are also of the view that the learned judge correctly applied the principle in the decision in Susan Mungai V The Council for Legal Education Petition No 152/2011 to the effect that the Council has the power to set standards to ensure that the highest professional standards are maintained in the profession and it is not for the Court to be concerned with the efficaciousness of the decision made pursuant to the Regulations. [Emphasis ours].

25. On the question of whether Legal Notice No. 2 of 2021 quashed Regulation 9 (5), we hold the view that the Appellant’s contention is factually and legally untenable in view of the powers donated to the 1st Respondent by the Legal Education Act 2012 as reinforced by the Court of Appeal in the above decision.The Appellant also alleges discrimination. He has made allegations that there were candidates that were allowed to sit the examination and he wasn’t. This allegation as contained in the pleadings and in the submissions is a serious allegation that sadly is not backed with evidence. The 1st Respondent provided evidence in its further affidavit that displaced the allegation thus:a.50B/ 2022/ 03/ (35) – The candidate did not sit for any examination.b.113B/05/06 – The candidate did not sit for any examination.c.15M/2005/06 – the candidate sat for the Conveyancing examination.

26. The Appellant provided no rebuttal to these facts as laid out in the submissions. We must deprecate the practice of introducing evidence in submissions. The fact that tribunals are not overly concerned with strictures of procedure is not a carte blanche to flout rules of orderly conduct of proceedings and availing evidence. In Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR:Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

27. That said, we find and hold that the allegations of discrimination as laid out in the pleadings and paragraph 12 of the further affidavit have not been proved. To prove discrimination, the Appellant needed to meet the test in the Botswanan case of Kamanakao and Others v Attorney-General and Another (2002) AHRLR 35 (BwHC 2001) where the court held that:“discriminatory' means affording different treatment to different persons, attributable wholly or mainly to their respective description by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

28. We now turn to the Appellant’s allegation that he had a legitimate expectation. The Appellant states that he has a legitimate expectation to complete his studies following Legal Notice No. 2 of 2021. The Notice made it clear that each case would be considered on its merits. There is a presumption of discretion. As discussed above, the Tribunal cannot delve into the decision for its efficacy. In Perry v Salt Lake City Council, 7 Utah, 143, 25 Pac. 998, 11 L R A 446, the court defined discretion as follows:“When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.”

29. We accept this definition as clothing the 1st Respondent with some latitude in considering the applications on a “case by case basis” unencumbered by expectations that they would make only favourable decisions for all the applications.

30. In Republic v Commissioner of Domestic Taxes & another, ex-parte Kenton College Trust [2013] eKLR, the Court set out the criteria to determine whether a person has a legitimate expectation against a public authority. The criteria is set out below:a.The representation underlying the expectation is clear, unambiguous, and devoid of relevant qualification.b.The expectation is reasonable.c.The representation was made by the decision-maker; andd.The decision-maker had the competence and legal backing for making such representation.

31. In the case before the Tribunal, it cannot be said that the 1st Respondent ever made a representation that the Appellant would be allowed to re-sit the examination simply by dint of publication of the Legal Notice. The decision was to be a result of the exercise of discretion. In view of the above, we find that the appellant has not made out a case for reliance on the doctrine of legitimate expectation in such a manner as to have the same held against the 1st Respondent in support of his appeal. The ground fails.

32. We have said enough to dispose of the appeal.

H. Disposition.1. That the appeal is dismissed.2. That each party to bear own costs of the appeal.3. 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 3{{^RD} DAY OF FEBRUARY 2023. ROSE NJOROGE – MBANYA - (MRS) CHAIRPERSONEUNICE ARWA (MRS) MEMBERRAPHAEL WAMBUA KIGAMWA (MR) MEMBERSTEPHEN GITONGA MUREITHI (MR) MEMBERI Certify this is a true copy of the original judgment of the Tribunal.REGISTRAR