Kiruki v Kenya School of Law & another (Tribunal Case E003 of 2025) [2025] KELEAT 6 (KLR) (20 March 2025) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E003/2025 CAROLINE VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION # JUDGMENT **A. Introduction and Background** 1. The Appellant **CAROLINE KATHURE KIRUKI** instituted this appeal before the Tribunal against the **KENYA SCHOOL OF LAW** as the Respondent and the **COUNCIL OF LEGAL EDUCATION** as an Interested Party, vide a Memorandum of Appeal dated 14th February 2025, seeking the following orders: - a.That the matter be certified as urgent and be heard on a priority basis. b. That the Tribunal be pleased to forthwith set aside the decisions contained in the Respondent’s letters dated 16th December 2024 and 22ndJanuary 2025, which denied her admission to the Advocates Training Program for the 2025/2026 academic year. c. A declaration be issued that the Appellant is qualified for admission into the Advocates Training program by virtue of Section 1(a) of Schedule 2 of the Kenya School of Law Act (Cap 16C) Laws of Kenya. 1. A declaration recognizing the Appellant’s prior relevant learning. 2. An order be issued compelling the Respondent to admit the Appellant tothe Advocates Training Program for the academic year 2025/2026. 3. An order for costs of this appeal be issued against the Respondent. 4. Any other orders the Tribunal may deem fit and just to grant. 2. The Appeal is premised on the following grounds: - a. That the Respondent through its Director/ Chief Executive Officer erred in fact and in law, denying the Appellant admission, into the Advocates Training program (ATP) for the year 2025/2026, on the basis that the Appellant was not eligible for admission. b. That the Respondent erred in law and in fact in failing to consider the applicability of the Applicant’s prior relevant learning and in turn, denying the Appellant admission into the Advocates Training Program (ATP) for the year 2025/2026. c. That the Respondent herein erred in law and in fact in failing to consider the Appellant’s Appeal on meritious grounds and consequently denying the Appellant admission into the Advocates Training Program (ATP) for the year 2025/2026. d. That the decision of the Director Kenya School of Law in denying the Appellant an admission to the Advocates Training program was based on misrepresentation of the law. 3. The Respondent subsequently filed its Replying Affidavit, sworn by Lawrence Ndirangu, an Academic Services Officer at the Respondent institution, dated 28th February 2025. The Respondent averred that matters concerning admission to its Advocates Training Programme are exclusively governed by Section 16 of the Kenya School of Law Act, Cap 16C. The Respondent also challenged the Tribunal’s jurisdiction to adjudicate on the matter, arguing that its jurisdiction is limited to disputes arising under the Legal Education Act, 2012. Additionally, the Respondent stated that upon reviewing the Appellant’s application for admission to the ATP, she was found ineligible under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, Cap 16C. The Respondent emphasized that Section 16 of the Kenya School of Law Act, 2012, as read with Paragraph 1 of the Second Schedule, sets the minimum admission requirement for the ATP as a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education, with a minimum grade of B (plain) in English or Kiswahili, which the Appellant did not meet. The Respondent further averred that the Kenya School of Law Act, Cap 16C, does not provide for academic progression as a basis for admission. 4. Consequently, the Appellant filed her Supplementary Affidavit dated 3rd March 2025. 5. The Interested Party, the Council of Legal Education, did not take part in this matter by filing any responses and/or submissions. Its Counsel indicated to this Honourable Tribunal that it would be in support of the Respondent’s pleadings and submissions on record. **B. The Appellant’s Submissions** 6. On the issue of the Tribunal’s jurisdiction to determine this matter, the Appellant relied on **Kenya School of Law v Wamuyu; Council of Legal Education (Interested Party) (Civil Appeal E062 of 2022) [2024] KEHC 499 (KLR)*,*** where the court held that in a dispute arising from the Kenya School of Law declining admission on the ground that the Applicant lacked the requisite secondary school qualifications, the Tribunal has jurisdiction to hear and determine the appeal. 7. Further, the Appellant cited the decisions in **Kenya School of Law v** **Wamuyu;Council of Legal Education (Supra)** and **Kenya School of Law v James Muchiri & 2 Others; Council of Legal Education (Supra)**, among other precedents, invoking the doctrine of *stare decisis* to reinforce her argument on the Tribunal’s jurisdiction. 8. On the merits of the appeal, the Appellant submitted that the Interested Party, vide Section 8(1)(a) of the Legal Education Act, is empowered to regulate legal education and training in Kenya. Consequently, it formulated the Legal Education (Accreditation and Quality Assurance) Regulations, 2009, specifically Regulation 5(c), which provides that a person is eligible for the Advocates Training Programme if they held a Bachelor of Laws (LL.B) degree from a recognized university and attained a minimum of C plus (C+) in English and a minimum aggregate of C plain (c) in the Kenya Certificate of Secondary Education (KCSE). 9. She contended that, having been admitted into the LL.B program under the applicability of the 2009 Regulations, she is entitled to derive a benefit therefrom. 10. The Appellant further argued that, in refusing to recognize the change in eligibility criteria and in failing to uphold the doctrine of crystallized action and the nonretrospective application of the declaration of invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, the Respondent acted in bad faith. She relied on the decisions in:-**Chelangat v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E005 of 2024) [2024] KELEAT 669 (KLR) (10 May 2024) (Judgment),** and **HCCA No. E053 of 2024 Mark Jermaine Syuki v Council of Legal Education & Kenya School of Law.** 11. Further the Appellant submitted that by securing admission to the LL.B program in January 2016, before the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were invalidated in 2018, she is entitled to derive a benefit from the doctrine of crystallized action.She further contended that her undertaking of the LL.B degree in 2016 constituted a crystallized action before the said regulations were invalidated. Additionally, she submitted that Paragraph 1 of the Second Schedule of the Kenya School of Law Act offered more than one interpretation prior to the Court of Appeal decisions. In this regard, she argued that she should derive a benefit from a positive interpretation of the said provision one that does not curtail her right to education under the Constitution. 12. Finally, she submitted that the Respondent should bear the costs of the appeal, as the matter would not have arisen had the Respondent followed the directions in **Chelangat (Supra).** **C. The Respondent’s Submissions** 13. On the applicable law in this matter, the Respondent contended that, prior to 2013, admissions to the Advocate Training Programme (ATP) were governed by the Council of Legal Education Act (Cap 16A) Laws of Kenya and its attendant regulations that is; Council of Legal Education (Accreditation) Regulations, 2009, and Council of Legal Education (Kenya School of Law) Regulations, 2009. 14. The Respondent submitted that Parliament enacted the Kenya School of Law Act, 2012, which came into force on 15th January 2013, without providing a transition period for students already pursuing law degrees. The Respondent relied on **Kevin Mwiti & Others v Kenya School of Law & Others [2015] eKLR,** where the court held that students admitted to an LL.B program after the Act's commencement had to comply with its provisions, while those who had begun their studies before its enactment could join the ATP based on the previous admission criteria. 15. On whether there was a double standard in admission qualifications and whether the criteria were discriminatory or justifiable, the Respondent submitted that it is a rule of practice to adhere to the ordinary meaning of words used in legal provisions. In support of this position, the Respondent cited **Court of Appeal at Nairobi Civil Appeal No. E472 of 2021**. 16. Additionally, the Respondent contended that no legitimate expectation had been created in favor of the Appellant. 17. On whether the procedure to refuse admission was illegal or unreasonable, the Respondent submitted that its actions were in line with Article 47(1) of the Constitution, which guarantees the right to fair administrative action. 18. On whether academic progression was applicable to the Appellant, the Respondent submitted that the Kenya School of Law Act, 2012, as amended by the Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, does not provide for academic progression as a basis for admission to the ATP. 19. The Respondent cited the case of **Javan Kiche v Council of Legal Education** to support its argument that the Appellant cannot rely on the Council of Legal Education (Quality Assurance) Regulations to justify her admission. The Respondent argued that the cut-off for what constitutes a crystallized action in this context had not been met and consequently, the appeal should be dismissed with costs. **D. Analysis and Determination** 20. The Tribunal has identified the following issues for determination: - **i. Whether the Tribunal has the jurisdiction to hear and determine this Appeal. ii. What was the eligibility criteria and the applicable law governing admission to the Advocate Training Program at the time the Respondent denied the Appellant admission.** **iii. Whether the Tribunal has the jurisdiction to hear and determine this Appeal.** 21. In its Replying Affidavit dated 28th January 2025, the Respondent raises the issue of jurisdiction, asserting that the Tribunal lacks the authority to hear and determine this appeal. 22. Referring to the well-established principle articulated in **Owners of the Motor Vessel "Lillian S" v Caltex (Kenya) Ltd [1989] eKLR,** the Tribunal concedes that Jurisdiction is the foundation of a court’s authority and without it, a court cannot lawfully proceed with a matter. Accordingly, the Tribunal must first determine its jurisdiction before adjudicating on other substantive issues in this appeal. 23. The legal definition of jurisdiction is well articulated in **Constantine Joseph Advocates LLP v Attorney General [2022] eKLR**, where the court, relying on *Halsbury’s Laws of England (4th Ed.) Vol. 9*, described jurisdiction as: -***“…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”*** 24. To resolve the jurisdictional question, the Tribunal must consider the facts and circumstances giving rise to this appeal. The Appellant sat for KCSE in 2011, attaining an aggregate mean grade of C (Plain) and a B- (Minus) in English. She subsequently enrolled for a Diploma in Law program at Mount Kenya University in January 2014 and subsequently graduated in July 2015. She later pursued academic progression, enrolling for an LL.B at the same instistution’s Law School via an admission letter dated 22nd January 2016 and graduated on 29th July 2022. The Appellant then applied for admission to the Advocates Training Program for the academic year 2025/2026, but her application was rejected via a letters from the Respondent dated 16th December 2024 and 22nd January 2025 respectively. 25. The Legal Education Act, 2012, under Section 8(3)(a), vests the Council of Legal Education (CLE) with the authority to make regulations governing admission to legal education programs. This provision states: ***“(3) In carrying out its functions under subsection (2), the Council*** ***shall—*** ***(a)make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes;”*** 26. Consequently, Section 31(1) of the Legal Education Act, 2012, 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.”*** 27. The Council of Legal Education, acting within its statutory mandate, formulated Regulations governing admission criteria, which are central to this dispute. The Tribunal is thus tasked with reviewing whether the Appellant meets the eligibility requirements under the applicable legal framework. This position was elaborated in **Robert Uri Dabaly Jimma v Kenya School of Law & Another (2020) eKLR**, where Justice Antony Mrima held that: ***“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.”*** 28. The Tribunal finds that this appeal involves a hybrid dispute arising under both the Kenya School of Law Act, 2012 and the Legal Education Act, 2012, thereby falling within its jurisdiction as conferred by Section 31(1) of the Legal Education Act**. In *Republic v Kenya School of Law & 2 Others Ex Parte Kgaborone Tsholofelo Wekesa***, Justice Mativo held that: ***“The preamble to the*** [***Legal Education Act***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2012/27) ***provides that it is an Act of Parliament to provide for the establishment of the Council of Legal Education; the establishment of the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes. Section 31 of the act provides for the jurisdiction of the Tribunal. A reading of the section leaves me with no doubt that the Tribunal's jurisdiction is to determine 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 the Act. The ex parte applicant's dispute distilled above in my view squarely falls within the Tribunal's jurisdiction.*** 29. Further, **in *Nairobi High Court Civil Appeal No. 166 of 2022 – Kenya School of Law v James Muchiri Gachoki & 2 Others*,** Justice Majanja upheld the Tribunal’s interpretation that it has the jurisdiction to hear appeals related to admissions to the ATP. 30. Flowing from the foregoing authorities and legal precedents, the Tribunal holds that it has jurisdiction to hear and determine this appeal, as the dispute concerns the eligibility for admission to the ATP, which is governed by both the Kenya School of Law Act, 2012 and the Legal Education Act, 2012. Given that the Legal Education Act, 2012, expressly mandates the Tribunal to handle disputes related to legal education programs, the Respondent’s jurisdictional objection is without merit. Accordingly, the Tribunal shall proceed to determine other substantive issues raised in this appeal. **What was the eligibility criteria and the applicable law governing admission to the Advocate Training Program at the time the Respondent denied the Appellant admission?** 31. The Tribunal has considered the divergent positions advanced by the parties regarding the eligibility criteria and the applicable law governing admission to the Advocate Training Programme. The Appellant contends that, by virtue of Section 8(1)(a) of the Legal Education Act, the Interested Party is mandated to regulate legal education and training in Kenya. In fulfillment of this statutory mandate, it formulated the Legal Education (Accreditation and Quality Assurance) Regulations, 2009 and subsequently, the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Appellant argues that the Respondent ought to have been guided by these provisions when considering her application for admission to the ATP for the academic year 2025/2026. The Tribunal also considered the Respondent’s position that, prior to January 2013, admission to the ATP was governed by the Council of Legal Education Act (Cap 16A, Laws of Kenya) and its attendant regulations, specifically the Council of Legal Education (Accreditation) Regulations, 2009 and the Council of Legal Education (Kenya School of Law) Regulations, 2009. The Respondent relies on the case of **Kevin Mwiti & Others v Kenya School of Law & Others (2015) eKLR** to affirm that those admitted to study for an LL.B after the enactment of the Kenya School of Law Act, 2012, were required to comply with its provisions, while those who had commenced their LL.B studies before its enactment were to be admitted to the ATP under the criteria in force before the Act was passed. 32. The Respondent contends that it is a general principle of Common Law that the statutes and judicial decisions ought not to be applied retrospectively. The Respondent further argues that the applicable law that dictated its decision of denying the appellant admission to Advocates Training Programme is section 16 and the second schedule of the KSL Act. 33. The same position that the Respondent relied on was firmed up in the Court of Appeal decision in **Kenya School of Law v Akomo & 41 others (Civil Appeal E472 of 2021) [2022] KECA 1132 (KLR)** (**Otene Case)** where the it was stated that: ***“The basic requirements for KCSE under section 16 and the second schedule to the KSL Act were for both applicants …. The section*** ***should be read as a whole and not in bits and pieces and the three conditions which were precedent had to be met before admission to KSL. Failure to meet the basic requirements of the qualifcations in KCSE as envisaged in the section rendered one’s application incompetent and hence ripe for rejection by the appellant”.*** 34. There’s no doubt that the respondent was bound by the **Otene Case (supra)** in declining to admit the appellant to the school which this Tribunal is inclined to agree with. This Tribunal for a long time has been bound by that decision as a principle of *stare decisis.* 35. It is worth noting that at the time the Respondent made its decision to decline admitting the appellant to KSL for the ATP, section 16 and the second schedule of the KSL Act was good law. Hence the respondent acted correctly as per the law that was present then. This is exhibited by annextures CCK-6 and CCK-7 being letters dated 16/12/2024 and 22/01/2025 respectively from the respondent to the appellant. 36. It is not disputed that under section 16 and the second schedule, the appellant did not meet the requisite requirement. According to annexture CCK-2, KCSE certificate, the Appellant obtained a mean grade of C(plain) and a grade B- (minus) in English and C (plain) in Kiswahili. The grades are inarguably below the minimum requirement as per section 16 as read with second schedule of the KSL Act. 37. While the Tribunal acknowledges the Appellant’s position as regards the dynamics in the eligibility criteria for admission to the ATP Programme, we find that the legal framework in force at the time of the Appellant’s ATP application is the Kenya School of Law Act, 2012. As such, the Tribunal concurs with the decision in **Kevin Mwiti & Others v Kenya School of Law & Others (supra***)*, where the court held: **"*The petitioners who were already in the LL.B class prior to the enactment of the Kenya School of Law Act are to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. For avoidance of doubt, those who had not been admitted to the LL.B class prior to the enactment of the Kenya School of Law Act are to comply with the provisions of the said Act."*** 38. Despite the Tribunal agreeing with the above precedent, a recent pronouncement of the Court of Appeal at Nairobi, which bears significant implications for the legal education framework in the country cannot be ignored. Accordingly, we take judicial notice of the precedent established in **Otinga v Cabinet Secretary, Ministry of Education & 3 others (Civil Appeal E625 of 2023) [2025] KECA 460** **(KLR**), wherein the Court annulled Section 16 and the Second Schedule of the Kenya School of Law Act, 2012, on the ground that they contravene Section 8(3) of the Legal Education Act. 39. In the exercise of its statutory mandate, the Tribunal deemed it necessary to assess the implications of the decision in the **Otinga v Cabinet Secretary, Ministry of Education & 3 others (Civil Appeal E625 of 2023) [2025] KECA 460 (KLR**) on the present appeal. Given the vertically binding nature of such decisions on this Tribunal, we have carefully considered whether our determination should be confined to the legal framework as it stood at the time the appeal was filed or whether we ought to take into account subsequent legal developments. It is well established that courts and tribunals must apply the law as it is. *In* **Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; (Petition 3 of 2018) [2021] KESC 34 (KLR),** it was affirmed that until such a statute was enacted by the legislature, courts must interpret and apply the law as it is. The law as is in the instant case is the law as it stands at the time of this judgment. On our part, to disregard such a binding pronouncement would not only be contrary to the doctrine of ***stare decisis*** but would also undermine the Tribunal’s duty to administer justice in accordance with the prevailing legal framework. Consequently, in rendering our determination, we are bound to consider the legal position as clarified by the Court of Appeal, notwithstanding the legal framework that existed at the time the appeal was instituted. 40. This Tribunals is now faced with the question; does the Court of Appeal decision apply to this appeal? Before delving into that issue, this Tribunal further takes note that the Court of Appeal decision came after the parties herein had closed their pleadings and this appeal pending judgement. Therefore, the parties did not have an advantage of amending their pleadings or submitting on the issue based on the **Otinga Case (supra).** 41. As stated earlier, there is general rule that statutes and judicial decisions ought not be applied retrospectively to prevent uncertainty of the law. This is to prevent opening gates for concluded cases under the invalidated law from being resuscitated. That notwithstanding, there are exceptional circumstances in which judicial decisions can be applied retrospectively. And therefore, no litigant should be allowed to invoke the doctrine of retrospectivity to circumvent the doctrine of *res judicata*. 42. In law, when a court invalidates a statute as being unconstitutional, then the invalidity goes back from the inception of the statute. This was enunciated by the Supreme Court in the case of **Munene v King’ara & 2 others (Petition 7 of 2014) [2014] KESC 37 (KLR)** where it stated that: **“[85]** In the South African case of ***Sias Moise v. Transitional Local Council of Greater Germiston, Case CCT 54/00, Justice Kriegler (****for the majority****) held:*** ***“If a statute enacted after the inception of the Constitution is found to be inconsistent, the inconsistency will date back to the date on which the statute came into operation in the face of the inconsistent constitutional norms. As a matter of law, therefore, an order declaring a*** ***provision in a statute such as that in question here invalid by reason of its inconsistency with the Constitution, automatically operates retrospectively to the date of inception of the Constitution.”*** ***“Because the Order of the High Court declaring the section invalid as well as the confirmatory order of this Court were silent on the question of limiting the retrospective effect of the declaration, the declaration was retrospective to the moment the Constitution came into effect. That is when the inconsistency arose. As a matter of law the provision has been a nullity since that date.”*** 43. In the **Munene Case (supra)** the Supreme Court in further affirming that no party can re-open a concluded case based on retrospectivity doctrine, it stated that: **“90……..It is our position that, in either of these scenarios, and as a matter of finality of Court processes, parties cannot reopen** **concluded causes of action. A relevant case in this regard is *A v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88***, (at paragraph 36) where Murray CJ, stated as follows: *“****Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position”****.* **[91] *We are of the view that the above principles are sound in law and applicable in this case. As a result, the apprehension that a*** ***declaration of nullity and its retrospective effect may trigger a frenzy to re-open concluded or determined election cases, should not arise or be contemplated”*** 44. In the South African Case of **S -v- Manyonyo [(CCT 36(99) [1999] ZACC14; 1999(12) BCLR 1438,** the Constitutional Court approved that a judicial decision can be applied retrospectively to matters pending before a court at the time the decision was made even if the action annulled actualized before the decision. It stated that: **“*In that event consideration would have to be given to the conditions to be attached to the order relating to its retrospective effect. Ordinarily the retrospective effect of such an order is limited to cases in which judgment has not yet been given or in which appeals and reviews are still pending”*** 45. According to the **Manyonyo case**, the condition applied for retrospectivity doctrine is limited to matters still **pending determination** in a court. It is true that at the time the decision of Otinga was delivered, this appeal was pending judgement. 46. In **Rtd Captain Amon Byarugaba and Others v Attorney General** **(Constitutional Petition No. 44 of 2015) [2022] UGCC 11** the Constitutional Court of Uganda by Majority held that: “***As for the convictions and sentences passed on civilians in Military Courts prior to the date of this decision, I observe that this Court has in the recent decision of Bob Kasango vs Attorney General lzozl- luccc 2 endorsed the principle that prospective annulment, rather than retrospective annulment should be applied in cases where there has been a finding of unconstitutionality. Prospective annulment is where an impugned act or omission is nullified from the date of the judgment in which the said act or omission is declared unconstitutional, going forward. Retrospective annulment is where an impugned act or omission is nullified from the date of the judgment, and also going back to an earlier time when the impugned act or omission was committed. Kiryabwire, JCC held in that decision, that the doctrine of prospective annulment supports a decision not to nullifyy earlier acts done by a person in exercise of a then lawful mandate which has now been declared unconstitutional. In the Kasango case (supra), this court applied the doctrine of prospective annulment. In the present case, Military Courts were exercising a lawful mandate under the UPDF Act, when they tried, convicted and sentenced several civilians for criminal offences prior to the date of this decision. Considering that this Court has only found that mandate unconstitutional in this case, it follows that applying the principle of prospective annulment, the relevant convictions and sentences rendered prior to this decision shall remain valid. However, any trial, conviction or sentencing of a civilian in a Military Court henceforth shall be rendered null and void ab initio”*** 47. In the **Byarugaba Case** (supra) while the Constitutional Court acknowledged the prospective application of annulled decisions, by ordering that: ***“any trial, conviction or sentencing of civilian in a Military Court henceforth shall be rendered null and void ab initio”*** It meant that all civilian cases pending trial, conviction or sentencing in the Military Court were to stop notwithstanding that at the time they were instituted, the UPDF Act was valid. By this the Court applied the retrospective doctrine. 48. In conclusion, the Court stated that: ***“c) I would order that criminal cases in which civilians have been charged before the Military Courts but are pending trial, or have been partly tried should immediately be transferred to a competent civilian Court of Judicature, and taken over by the Director of public prosecutions.*** ***d) I would order that the convictions and sentences of civilians which arose from criminal cases tried by Military courts prior to the date of this Judgment are valid.*** 49. But, the Tribunal is quick to point out that all decisions that have been concluded under section 16 and the second schedule of the KSL Act prior to the nullification of the said section, shall remain valid. 50. Therefore, the Court of Appeal having nullified section 16 and second schedule of the KSL Act for being inconsistent with section 8 (3) of the Legal Education Act and article 27 of the Constitution, the respondent remains exposed. Its mandate to admit students under the impugned section 16 and second schedule is no longer tenable. This Tribunal cannot close its eyes on that principle that though the action to deny admission was valid then, the same cannot be valid since the adjudicative process of the respondent’s decision was still pending when the decision in the **Otinga Case** was delivered. 51. This Tribunal therefore finds that since the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were nullified in 2018, then the Regulations applicable to the appellant are the default Council of Legal Education (Kenya School of Law) Regulations, 2009 pursuant to section 29 (2) of the KSL Act, 2012. The Tribunal declines the appellant’s invitation to analyze the nullified Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as it lacks jurisdiction so to do. And even if the Tribunal accepts the invitation, it has no powers to revivify void regulations. 52. That being the case, the appeal succeeds to the extent that section 16 and the second schedule that the respondent relied upon to reject the appellant’s application has since been rendered null and void, and unconstitutional by the Court of Appeal. The respondent is directed to admit the appellant to the Advocates Training Progamme at Kenya School of Law pursuant to section 8(3) (c) of the Council of Legal Education Act, 2012 and provisions under the Council of Legal Education (Kenya School of Law) Regulations, 2009 53. But before we pen off, we wish to ask the CLE that for long it has relinquished or failed in its mandates under section 8(a) of the Legal Education Act that has led to the current quagmire. Since nullification of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, it has done very little to actualize the Regulations. That even as we revert to section 8(3) (c) of the Legal Education Act, the Council must act with speed to ensure that there are rules or regulations to guide recognizing prior learning and experience before admission to the ATP. 54. Secondly, the Tribunal has noted that in appeals where Council of Legal Education is enjoined as an Interested party on matters to do with admission to the Advocate Training Programme, they never respond nor submit but simply rely on the Respondent’s submission. This trend is worrying as the Tribunal is denied the opportunity to tap from the wisdom of the Council. The Council, as the regulator should set the tone and take lead in the same. **E. Disposition.** 55. It Is hereby decreed: - a. That the appeal by the Appellant Caroline Kathure Kiruki against the decision dated the 16th December, 2024 and as affirmed on internal appeal on 22nd January, 2025 by Dr. Henry K. Mutai – Director of the Kenya School of Law is allowed, and the decision is quashed and set-aside. b. That pursuant to section 35 of the [*Legal Education Act*](https://new.kenyalaw.org/akn/ke/act/2012/27), 2012 a declaration is issued that the Appellant is eligible for admission to the Advocates Training Programme by dint of Regulation 5(c) of *the Council of Legal Education (Kenya School of Law) Regulations, 2009,* and the Respondent is ordered to admit the Appellant Caroline Kathure Kiruki to the Advocates Training Programme forthwith. 1. That each party to bear own costs of the appeal. 2. That a party aggrieved is at liberty to appeal to the High Courtunder section 38 (1) of the [*Legal Education Act*](https://new.kenyalaw.org/akn/ke/act/2012/27), 2012 on a point of law. HON. JULIANA NJIRIRI - **CHAIR** HON. JOSHUA NGULU- **MEMBER** HON. FELIX OKETCH - **MEMBER** HON. MOSES MUNOKO – **MEMBER** HON. GODANA YATANI - **MEMBER** It is so ordered by the Legal Education Appeals Tribunal. **DATED AT NAIROBI THIS 20TH DAY OF MARCH 2025**. SIGNED BY/FOR: HON. JULIANA WAMAITHA NJIRIRI | | | --- | | **★ 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: 2025-03-21 12:07:36 |