[2022] KELEAT 676 (KLR)

Kimani v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E028 of 2022) [2022] KELEAT 676 (KLR) (Constitutional and Judicial Review) (26 August 2022) (Judgment)

Neutral citation: [2022] KELEAT 676 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Constitutional and Judicial Review

Appeal E028 of 2022

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

August 26, 2022

Between

Pauline Wanjiku Kimani

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

(Being an appeal against the decision declining admission to the Advocates Training Programme during the 2022/2023 academic year as communicated by Dr. H. K. Mutai – Chief Executive Officer/Director of the Kenya School of Law on the 25th. March, 2022)

Judgment

Introduction. 1. The appellant Pauline Wanjiku Kimani has instituted an appeal against the decision of the respondent the Kenya School of Law dated the 25th March, 2022. By the decision as taken and communicated; her application for admission to the Advocates Training Programme was unsuccessful. She has enjoined the Council of Legal Education to the appeal as an interested party. The appeal was served upon the respondent and the interested party however, only the respondent appeared and lodged a response. The appeal was directed to be disposed of by way of written submissions which the appellant and the respondent duly lodged with the Tribunal through their Advocates namely Ngatia Wambugu & Company Advocates and Dr. Henry Mutai respectively.

The appeal. 2. The appellant sat for the Kenya Certificate of Secondary Education examinations in the year 2007 at Gachoire Secondary School and attained a mean grade of C (plain) with grades B (plain) and B - (minus) in English and Kiswahili languages respectively. She was then admitted to the Inoorero University where she pursued a Diploma in Law course which she successfully completed and attained a grade of a Credit in the year 2012.

3. In the year 2017 she was admitted to the Mount Kenya University to pursue a Bachelor of Laws degree which she successfully completed and in the month of January, 2022 based on a letter of completion issued by Dr. Ronald Maathai the Registrar – Academic Administration of the said University she was confirmed to be eligible to an award of the degree of Bachelor of Laws Second Class Honours Upper Division. She then applied for admission to the Advocates Training Programme and on the 2nd. March, 2022 she was informed as follows by the respondent;“Admission To The Kenya SchooL of Law – Academic Year.Reference is made to your application for admission into the Advocates Training Programme (ATP) at the Kenya School of Law.It is regretted that your application was not successful for admission due to the following reason (s):Attach a copy of Kcse Certificate not Result Slip.Attach final transcripts.Thank you.Yours sincerely,Dr. Henry K. Mutai,Director/Chief Executive Officer.”The appellant placed before the School the documents sought and on 25th March, 2022 the respondent communicated as follows;“Admission to the Kenya School of Law – Academic Year.Reference is made to your application for admission into the Advocates Training Programme (ATP) at the Kenya School of Law.It is regretted that your application was not successful for admission due to the following reason (s):The KCSE mean grade C (plain) falls short of the grade of C (plus) provided for under the Kenya School of Law Act, 2012. ”Thank you.Yours sincerely,Dr. Henry K. Mutai.Director/Chief Executive Officer.”

4. The appellant appealed to the respondent and on 1st April, 2022 she was informed as follows;“Admission to the Kenya School Of Law – Academic Year.Reference is made to your application for admission into the Advocates Training Programme (ATP) at the Kenya School of Law.It is regretted that your application was not successful for admission due to the following reason (s):The applicant has not attained minimum academic qualification of mean grade C plus in KCSE.Thank you.Yours sincerely,Dr. Henry K. Mutai.Director/Chief Executive Officer.”

5. The appellant now seeks to impugn the decision declining admission to the Advocates Training Programme based on her memorandum of appeal as lodged with the Tribunal.

The response to the appeal. 6. In response to the appeal the respondent deposes that it is a state corporation established under section 3 of the Kenya School of Law Act, 2012 it is also the successor of the School previously established under the Council of Legal Education Act, 1995 (repealed). The Tribunal is established under the Legal Education Act, 2012 and it thus lacks jurisdiction to deal with matters arising from the Kenya School of Law Act, 2012.

7. It contends that it is obligated by the law to consider applications to the Advocates Training Programme and based on paragraph 1 of the Second Schedule to the Kenya School of Law Act, 2012 the entry requirements are set at a mean grade of C + (plus) in the Kenya Certificate of Secondary Education examinations with a grade of a B (plain) in English or Kiswahili languages. It is deposed that the appellant has failed to meet the grades as set.

8. The appellant is claimed to be relying on academic Progression which is not provided for in the Kenya School Law Act, 2012. Thus, by allowing the appellant to join the Advocates Training Programme on the basis that she had a Diploma Law prior to joining the LLBdegree would be to circumvent the clear provisions of a statute and would result into discrimination and application of double standards.

The submissions by the parties. 9. On the jurisdiction of the Tribunal, the appellant submits that the Tribunal is vested with the same by dint of section 31 of the Legal Education Act, 2012. The provision being worded in fairly broad terms and grants the powers to deal with any matter relating to the said Act. She refers to the decisions of the Tribunal in Leon Kamau Kimani v Kenya School of Law & Another, (2021) eKLR and LEAT Appeal no. 1 of 2020 – Nyamiwa Achieng Bethsheba v Kenya School of Law & Another. It is contended that the decisions having not been appealed against, they are binding on the respondent. Further, the respondent has submitted to the jurisdiction of the Tribunal by failing to take up an exception through a preliminary objection. The Tribunal is also invited to take judicial notice that the respondent has participated in various appeals similar to the subject matter of the appeal herein and it cannot now suggest that the Tribunal is bereft jurisdiction. The respondent is accused of flip-flopping on the issue and an estopple is claimed to arise based on the findings on jurisdiction as variously rendered.

10. On her eligibility to the Advocates Training Programme it is submitted that based on the fact that she holds a Bachelor of Laws degree from Mount Kenya University, she qualifies for admission to the Advocates Training Programme by virtue of section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012. She faults the respondent for extending the qualifications in section 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012 to her. She relies in the decisions in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR, Adrian Kamotho Njenga v Kenya School of Law, (2017) eKLR, Republic v Kenya School of Law & Another Ex-parte Kithinji Maseka Semo & Another, (2019) eKLR and Republic v Kenya School of Law ex-parte Victor Mbeve Musinga, (2019) eKLR.

11. On the legal relationship between the respondent and the interested party, it is submitted that it is a relationship of interdependence as opposed to independence. The respondent cannot operate in a vacuum and equally the Kenya School of Law Act, 2012 does not contemplate that kind of a scenario. The Kenya School of Law Act, 2012 ought to be read in conjunction with the Legal Education Act, 2012. The latter law having a provision for academic progression coupled with the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 made thereunder which in regulation 5 provided for progression in accordance with paragraphs 3 and 4 of the schedule.

12. Finally, the appellant impugns the respondent’s response to the appeal based on the doctrine of estoppel. She contends that the matter of qualification to the Advocates Training Programme has been variously litigated before the Tribunal and other courts. The respondent despite the conclusions reached has refused to be guided by the said decisions. It acts in defiance of the same and thus it ought to be bound by the doctrine of issue estoppel and res-judicata. The appellant invites the Tribunal to take judicial notice of the conduct of the respondent in that regard and censure it for its actions. She relies in the decision in Trade Bank Limited v L. Z. Engineering Construction Limited, (2000)E.A. 266 at 270 in which the Court of Appeal held;“Issue estoppel and res-judicata bar the appellant from re-litigating matters already ruled on by the Court, since the point at issue in both appeals is the same and based on the same facts between the same parties and arose out of the same action, which point had been decided with certainty and it matters not whether the first decision was right or wrong.”

13. It is her humble view that by reopening issues that had already been heard and determined, the respondent is merely engaging the Tribunal in an academic exercise and taking up precious judicial time which amounts to an infringement of the right to access of justice as guaranteed by article 48 of the Constitution of Kenya, 2010, the right to equal protection of the law as guaranteed by article 27 (1) of the Constitution of Kenya, 2010 and the right to a fair hearing as guaranteed in article 50 of the Constitution of Kenya, 2010.

14. The respondent on its part submits that the Tribunal is bereft of jurisdiction to entertain the appeal as it relates to matters arising under the Kenya School of Law Act, 2012. On the appeal it is submitted that the appellant’s appeal is essentially seeking to have the Tribunal to grant to the appellant admission to the School which if allowed will lead to arrogating the statutory duties of the School. It relies in the decision in Kenya Pipeline Company Limited v Hyosung Ebora Company Limited & 2 Others, (2012) eKLR. On discrimination it is submitted that Parliament had no intention to treat applicants to the School to different criteria. It calls for a holistic interpretation on the statutory law on qualifications to the Advocates Training Programme as was held in the decision in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR by Justice Chacha Mwita. The Learned Judge rendered himself as follows;“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 KSLAct, 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. Finally, on academic progression it is submitted that the same is not taken into account in considering eligibility to the Advocates Training Programme. The respondent 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 theKSL Act. This means that the petitioner cannot benefit from the vertical progression recognized in the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. ”

16. The respondent also relies in the decision in Republic v Kenya School of Law & Another ex-parte Okoth Scarlet Susan, (2022) eKLR in which Justice Antony Ndungu held;“I do not for a moment entertain the thought that Parliament in its wisdom could have intended to have two standards of admission to the 1st. respondent. The playing ground must of necessity be level when it comes to such admission. A purposeful interpretation of the law clearly demonstrates that since the admission seeks to train the students to qualify and join the same profession, they must start on the same footing as regards the entry requirements to the institution. The rationale in the requirements, especially the requirement for high grades in English and Kiswahili, it is easy to see when one considers the major component of communication, oral and written in the legal profession.”

17. Also it is submitted that the subsidiary legislation which provides for academic progression cannot override the express provisions of a substantive Act of Parliament such as the Kenya School of Law Act, 2012. The respondent while emphasizing the provisions of section 31 (b) of the Interpretation and General Provisions Act, Cap. 2 to buttress the argument relies in the decision in Evans Odhiambo Kidero & 4 others v Ferdinard Ndungu Waititu & 4 Others, (2014) eKLRin which it was stated;“Such a position cannot, in our view be sustained; for it flies in the fact of the time – hallowed principle of the hierarchy of norms. It is well recognized that an instrument of subsidiary legislation cannot override the provisions of an Act of parliament.”

Analysis and determination. 18. The respondent has taken up the issue of the jurisdiction of the Tribunal to entertain the appeal by contending that the impugned decision was taken under the Kenya School of Law Act, 2012 while the Tribunal is not established therein. It is the finding of the Tribunal that the appeal involves a question of qualification to a legal education programme in this case being the Post Graduate Diploma in Law being offered by the respondent. The body reposed with the duty to make regulations on enrolment to the said Programme is the interested party. The Tribunal is so fortified by section 8 (3) (a) of the Legal Education Act, 2012 which provides;“In carrying out its functions under sub-section (2), the Council shall –a.Make regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes; ...”

19. Indeed the interested party did pursuant to the powers conferred by the statute in issue make the Regulations being the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which both the appellant and the respondent have extensively submitted on the applicability or otherwise of the same. The Tribunal is thus being called upon to inquire into the eligibility of the appellant to join a legal education programme vis-à-vis the decision taken by the respondent as a legal education service provider. The Tribunal is well guided by the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR by Justice Antony Mrima as follows at paragraph 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.”

20. The Tribunal finds that the appeal relates to a hybrid dispute arising not only under the Kenya School of Law Act, 2012 but also under the Legal Education Act, 2012 which by dint of section 31 (1) therein empowers the Tribunal to inquire into it. The same provides;“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.”

21. Indeed this confirms the submission of the appellant that the relationship of the interested party and the respondent is one of interdependence as opposed to independence. The respondent cannot operate in isolation as it requires the interested party which sets the Bar examinations that cover 60% of the course marks for the Advocates Training Programme.

22. Also the Tribunal finds that the matter of progression in the legal profession is one that is pitting the parties. The position of the appellant being that progression is applicable by dint of the Legal Education Act, 2012 by dint of section 8 (3) (c) therein. The same provides;“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 levels of learning to higher levels.”

23. The position of the respondent is that progression is not embthe Advocates Training Programme. The Tribunal finds by proceeding to determine the applicability or otherwise of proodied in the Kenya School of Law Act, 2012 and thus it cannot reckon the appellant’s Diploma in Law as part of consideration for eligibility to gression it will be well exercising its juridical mandate to determine the appeal.

24. The appellant has taken exception at the stage at which the point on jurisdiction has been raised being towards the tail-end of the proceedings as opposed to being taken up as a preliminary question. The practice as settled by the authorities is that the matter ought to be taken up at the earliest opportunity. However, the Tribunal is not precluded from addressing it at this stage as it has been taken up through the submissions. In any event the respondent well raised the matter in the reply well in advance. The Tribunal is well cognizant that even a point of jurisdiction can be taken up for the first time at an appellate court. The Tribunal is not aware of any bar in the law at considering the matter at this stage. The Tribunal is well guided by the authority in Southern Star Sacco Limited v Vanancio Ntwiga, (2021) eKLRin which Justice Lucy Gitari at paragraph 31 held as follows;“…Parties are, therefore, expected to raise the issue of jurisdiction at the earliest opportunity. However, since jurisdiction goes to the question of judicial authority to decide a matter on its merits, courts have been consistent that the issue of jurisdiction can be properly raised by a party at any stage including on appeal.”

25. The appellant also raised the issue that the respondent cannot take up the point of jurisdiction as it has been decided by the Tribunal in several other appeals. The Tribunal would disagree with the appellant on the said submission as the matter of jurisdiction is one to be determined on each individual appeal or case based on the facts vis-a-vis the law. Jurisdiction cannot be conferred by acquiescence or consent. The fact that the Tribunal has decided it in other appeals is not a bar. The Tribunal retains it’s power to even raise the issue suo-moto being well guided by the decision in Arthur Gatungu Gathuna v African Orthodox Church of Kenya, (1982) eKLR in which Justice Kneller Ag. JA. as he then was observed;“The question in this appeal is whether or not Gachuhi J was right when he ruled he had jurisdiction to grant the relief asked for in the suit before him. The record suggests the learned Judge took the point and if he did he was right to do so for it is par judicis to raise and take into account any question of jurisdiction: see for example Uthwatt J in Attorney General v Dean and Chapter of Ripon Cathedral [1945] 1 All ER 479, E (Ch D). This is so even if the parties in there pleadings agree the court has jurisdiction as these in this case did.”

26. The Tribunal also finds that the fact that it decided that it has jurisdiction in a different matter it does not bar it from inquiring into the question or the respondent taking it up every now and then. The Tribunal has considered the submission of the appellant on the fact that the jurisdiction of the Tribunal has been decided before having regard to the application of the doctrine of stare - decisis. The decisions of the Tribunal constitute horizontal precedents as opposed to vertical precedents and a Tribunal is not bound by it’s previous decision. The Tribunal is well guided by the authority in SGS Kenya Limited v Energy Regulatory Commission & 2 Others, (2020) eKLRin which Justices Ibrahim, Ojwang, Wanjala, Njoki Ndungu and Lenaola, SC.JJ held at paragraphs 41 - 44 as follows;“(41)So we turn to the single issue before us: are the Tribunals bound by the doctrine of stare decisis? The petitioner has contended that the Review Board failed to follow its own decision in Avante, without any explanation. According to the petitioners, stare decisis applies to quasi-judicial tribunals, to the intent that there be uniformity/consistency, predictability, and certainty in law, in general terms. The 1st respondent, quite to the contrary, has argued that tribunals are not bound by their previous decisions such being only persuasive; and that each tribunal-task is to be determined on the basis of the facts before it.(42)From the two contending propositions, it emerges, in our view, that tribunals, in their primary category, are specialized bodies charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. Membership in such tribunals generally reflects the essential skills required for the specific tasks in view. The Public Procurement Administrative Review Board falls within this category. It is endowed with requisite experience from its membership, and has access to relevant information and expertise, to enable it to dispose of matters related to procurement. The question is: whether it is bound by its previous decision, as it takes decisions on different matters lately coming up.(43)Such a variegated range of implementation scenarios, it is apparent to us, calls for flexibility in the regulatory scheme. In principle, matters on the agenda of an administrative tribunal will merit determination on the basis of the claims of each case, and will depend on the special factual dynamics. The relevant factors of materiality, and of urgency, will require individualised response in many cases: and in these circumstances, a strict application of standard rules of procedure or evidence may negate the fundamental policy-object. On this account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case. Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.(44)We would agree with the 1st respondent, that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject-matter before them. Matters before an administrative tribunal should be determined on a case-to-case basis, depending on the facts in place.”

27. On the appeal by the appellant, the decision as taken on the 25th March, 2022 was to the effect that she failed to meet the minimum entry grade of a mean of a C + plus in the Kenya Certificate of Secondary Education examinations as required by the Kenya School of Law Act, 2012 inorder for her to be eligible for admission to the Advocates Training Programme. The Tribunal has examined the material placed before the respondent accompanying the application to the Advocates Training Programme of relevance being the Kenya Certificate of Secondary Education results, the Diploma in Law from Inoorero University and the Bachelor of Laws degree from Mount Kenya University. The Tribunal finds that in the year 2017 when the appellant sought for admission to the Bachelor of Laws degree at Mount Kenya University and granted, theLegal Education (Accreditation and Quality Assurance) Regulations, Legal Notice no. 15 of 2016 were in force. The same provided on qualifications for the LL.B degree as follows in section 5 of the Third Schedule therein;“Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall be —(a)a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;(b)at least three Principal Passes in the Kenya Advanced Certificate of Education examination;(c)a degree from a recognised university; or(d)a Credit Pass in a diploma in law examination from an accredited institution.”

28. The appellant with her Diploma in Law with a Credit Pass was eligible to join a University to undertake the LLBdegree. The afore -going Regulation well provided for the same at the time of admission in the year 2017. The respondent has argued against the application of the said Regulations on the basis of being inapplicable as vertical progression is not recognized by the Kenya School of Law Act, 2012. It relies on the decision in Victor Jumasupra by Justice Weldon Korir. The Tribunal finds that the said decision may not reflect the current status of the law on admission to the Advocates Training Programme for the reason that subsequent pronouncements by other Judges of the superior court on the same issue have held that academic progression is recognized in the profession. The Tribunal in so pronouncing itself is guided by the decision in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLRin which Justice Mrima held;“…The law recognizes prior learning and experience as factors to be considered in ascertaining academic progression in legal education. Therefore, a person may start from lower levels of legal education and progressively move to higher levels…Given the diverse nature of the persons targeted under categories (a) and (b) of the Second Schedule of the KSLAct, it is obvious that their qualifications cannot be similar. It is for those reasons that I echo the position that category (a) and (b) are different hence the visible use of the word ‘or’…In this case, the Petitioner fell into category 1 (a) of the Second Schedule.”

29. The Tribunal while addressing itself to the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice no. 15 of 2016 is well aware that the same have been found to be invalid but the Court of Appeal has put a rider to the said declaration that it will not apply to crystallized actions. In this matter the crystallized action being the admission of the appellant to the undergraduate LLBdegree in 2017 before the declaration of invalidity was so issued. The Tribunal is so fortified by the authority in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLRin which Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ. A being as follows in paragraphs 29, 34, 35 and 47 of the judgment;“29. Beginning with the legality of the impugned regulations, the appellants’ claim against the impugned regulations on the one hand is that they came into effect on the date they were gazetted. Conversely, they argue that the respondent was not legally empowered to enact them because section 46 (1) of the Legal Education Act, 2012, save for sub-section (f) thereof was deemed to have been repealed by section 5 of the Universities Act, No. 42 of 2012 and sections 4, 8 and 29 of the Kenya National Qualifications Framework Act, 2014; that further the respondent was not properly constituted at the time of their enactment, and they were not provided an opportunity to participate in the workshops. In effect, what the appellants are contending is that the impugned regulations were improperly enacted and so could not be used as a basis for denying them admission to the Kenyan Bar….

34. The record does not disclose that following gazetting of the impugned regulations, that they were thereafter, laid before Parliament and adopted….

35. Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above cited provision, and which shortcomings the appellants have conceded, it becomes evident that the impugned regulations were not adopted and as a consequence, did not acquire the force of law…

47. consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.”

30. The Tribunal also finds that the respondent ought to have been guided on checking for the appellant’s eligibility to the Advocates Training Programme on the basis of the state of the law as it existed when she sought and secured admission to the LLBdegree at Mount Kenya University in the year 2017. The said qualifications at the time were well spelt-out in the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice no. 15 of 2016 which embodied the Diploma in Law that the respondent is currently rejecting. The Tribunal is so guided by the decision in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLRby Justice Antony Mrima in which he held as follows;“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.”

31. On the application of the provisions of sections 1 (a) and (b) of the Second Schedule to the Kenya School of Law Act, 2012 the Tribunal finds that the appellant can only be subjected to the scrutiny in 1 (a) in considering her eligibility to the Advocates Training Programme. She cannot be simultaneously subjected to both. The provisions state;“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; or(b)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; and(ii)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; and(iii)has sat and passed the pre-Bar examination set by the school.”

32. The holistic approach of statutory interpretation relied on by the respondent as held in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLRhas been faulted. The Tribunal is guided by the pronouncements in Sabrina Jelani Badarine v Kenya School of Law, (2022) eKLRin which Justice John Mativo held at paragraph 20 as follows;“20. An attempt by the applicant herein in Republic v Kenya School of Law ex parte Victor Mbeve Musinga to rely on Peter Githaiga Munyeki v Kenya School of Law was faulted by the court in the above decision on grounds that the said decision ignored the Supreme Court decision referred to above in which the Apex Court construed the meaning of the word “or” in a statutory provision. Simply put, the said decision went against Article 163 (7) of the Constitution and therefore it is bad law. By now it is manifestly clear that the provisions cited by the applicant in this case have been the subject of numerous court decisions. Even in the judgment now sought to be set aside, the court spared time, ink and paper and interpreted the same provisions following previous decisions on the same provisions. Despite the many decisions on the same subject, the applicant now pretends that the same provisions have never been interpreted.”

33. The Tribunal in further finding that the appellant ought only to be subjected to section 1 (a) of Second Schedule to the Kenya School of Law Act, 2012 is so fortified by the decision inStephen Kipkemei Rutto v Kenya School of Law & Another (2022) eKLRin which Justice J. A. Makau held;“31. 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 KSLAct, 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…A declaration be and is hereby issued that the Petitioner is eligible for admission to the Advocates Training Programme (ATP) having met the requirements under the Second Schedule 1 (a) for admission to the Diploma in Law (Para- Legal Studies) Programme, Second Schedule 2 (d) for admission to the Undergraduate Degree Programme and Second Schedule (1) (a) for admission to the Advocates Training Programme (ATP).”

34. The respondent has raised the issue of discrimination over the application of the law on admission to the Advocates Training Programme as between applicants from recognized universities in Kenya and those from foreign universities. 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 does only create a differentiation as opposed to discrimination. The legislative intention in creating the two categories is clear from the enactment. The wisdom of the legislature in enacting the law is best left to it as the Tribunal’s duty is simply to interpret the law as it is and ensuring to keep to it’s constitutional duty of judicial independence being well guided by the doctrine of separation of powers between the judicial and legislative arms of the state. If necessity for law reform arises the legislature can be moved to effect the same.

35. On the reliance by the respondent on the decision in Republic v Kenya School of Law & Another ex-parte Okoth Scarlet Susan, (2022) eKLR, the Tribunal finds that the Learned Judge in the said matter addressed himself on the grades required in languages for purposes of admission to the Advocates Training Programme as opposed to the mean grade issue which was the reason that led to the rejection of the application in this appeal. The said decision is therefore distinguishable from the facts in this appeal.

36. Finally, the appellant has taken up the matter of issue estopple and res-judicata as regards the respondent’s opposition to the appeal since the Tribunal and the courts have severally pronounced itself on the matter of eligibility to the Advocates Training Programme. The appellant in that regard relies in the authority in Trade Bank Limited v L. Z. Engineering Construction Limited, (2000) E.A. 266 at 270. The Tribunal finds that the doctrine of res-judicata cannot apply in this appeal for the reason that the matters taken up in this appeal have not been the subject of pronouncement by a competent court or Tribunal as between the parties herein. On issue estopple as regards the Tribunal’s pronouncements on other matters it is the finding of the Tribunal that the respondent is not estopped from raising the opposition in this appeal as it did. The parameters of issue estopple as enunciated in the L. Z. Engineering Construction Limited matter suprahave not been established to exist in this appeal by the appellant. In any event the appellant has not established that the matters being taken up herein have been determined with finality before.

Disposition. 37. It is decreed as follows:-a.That the appeal is allowed and it is declared that the appellant qualifies 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. b.That the decision of the Director of the Kenya School of Law dated 25th March, 2022 declining the appellant’s application to the Advocates Training Programme as made by Dr. H. K. Mutai Director of the Kenya School of Law is quashed and the appellant be admitted to the Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.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 26TH. DAY OF AUGUST, 2022. 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.GILBERT ONYANGO - REGISTRAR