[2023] KELEAT 185 (KLR)

Kitsao v Kenya School of Law and Council of Legal Education (Tribunal Case 13 of 2023) [2023] KELEAT 185 (KLR) (Civ) (5 April 2023) (Judgment)

Neutral citation: [2023] KELEAT 185 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Tribunal Case 13 of 2023

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

April 5, 2023

Between

Anthony Waziri Kitsao

Appellant

and

Kenya School of Law and Council of Legal Education

Respondent

Judgment

A. Background 1. The Appellant filed this appeal against the decisions of the Director of Kenya School of Law (the Respondent herein) issued on 4th January 2023 and 10th January 2023. He also seeks an order compelling the Respondent to admit him to the Advocates Training Programme.

2. The appeal is opposed by the Respondent but the Interested Party elected not to participate in the proceedings.

B. The Appellant’s Case 3. The Appellant sat for his Kenya Certificate of Secondary Education Examination and attained a Mean Grade of B- (Minus).The Appellant also scored a B – (Minus) in English and a C + in Kiswahili. He thereafter pursued a degree in law from Mount Kenya University.

4. He states that having attained the above qualifications, he is eligible for admission into the Advocates Training Programme (the “ATP”). He also states that the denial of admission for the academic year 2023/2024 is an infringement of his right to education.

5. It is important to trace his academic journey as a first step in considering his appeal:i.The Appellant sat for his Kenya Certificate of Secondary Education examination in the year 2010. ii.He then pursued and obtained a Diploma in Law from Mount Kenya University. He states that this was an institution accredited by the Council of Legal Education (the Interested Party).iii.He then registered and completed a Bachelor of Laws degree from Mount Kenya University.

6. In the grounds appearing on the face of the Memorandum of Appeal, he relies on Section 8 (3) of the Legal Education Act, 2012. He states that the Section “recognises and allows” academic progression in legal education from lower levels of learning to higher levels.

7. He also states that his admission to the Bachelor of Laws degree was based on Part II, Paragraph 5 of the 3rd Schedule of the Legal Education (Accreditation and Quality Assurance) Regulations 2016. He further states that the Regulations provide for the minimum requirements for admission to the Advocates Training Programme as a degree from a recognised university inter alia.

8. He relies on the recent decision of the Court of Appeal in Nairobi Civil Appeal No. E472 of 2021 – Kenya School of Law V Otene Richard Akomo & 41 Others to support his contention that the “Kenya School of Law admitted that the aspect of academic progression ought to be based on a Diploma in Law and in which the Court of Appeal Respondent in the affirmative.” [Sic].

9. The Appellant also stated that the Director of the Kenya School of Law (who communicated the impugned decisions) has no legal basis to monitor legal education in Kenya since this is the sole mandate of the Council for Legal Education.

10. He also prayed for disposal on priority in view of the ongoing admission to the school.

C. The Respondent’s Position on the Appeal 11. The Respondent contended that its mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Programme. That matters of admission to the Respondent's Advocates Training Programme are exclusively provided for under Section 16 of the Kenya School of Law Act No. 26 of 2012.

12. Consequently, the Respondent contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act 2012.

13. The Respondent further states that it is required by its establishing statute, the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the School.

14. The Respondent further states that upon the Appellant making his applications to the Advocates Training Programme, he did not meet the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act 2012. That Section 16 of the Kenya School of Law Act 2012, as read with Paragraph 1 of the Second Schedule provides the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in KCSE with a grade B (plain) in English or Kiswahili languages which the Appellant did not have.

15. The Respondent further states that the Appellant is relying on academic progression to be admitted to Advocates Training Programme, yet the Kenya School of Law Act 2012 does not have a provision for academic progression

D. The Appellant’s submissions 16. The Appellant filed submissions dated 23rd February 2023 where he identified and expanded the following grounds for determination:i.Whether the Tribunal has jurisdiction.ii.Whether the Appellant meets the requisite qualifications for admission to the Advocates Training Programme.iii.Whether the Appellant’s right to fair administrative action was violated by the Respondent.

17. The Appellant submitted extensively on jurisdiction and relied on the decision in Republic V Kenya School of Law & 2 Others Ex parte Kgaborone Tsholofelo Wekesa (2012) eKLR. The relevant passage is reproduced in the said submissions and elsewhere in this judgment.

18. It is the Appellant’s submission that the Respondent’s conduct amounts to a limitation and/ or violation of the Appellant’s right to education, is illegal and ought to be set aside by this Tribunal.

19. He paraphrased the grounds appearing on the face of the Memorandum of Appeal, and reproduced both Section 8 (3) of the Legal Education Act, 2012 which he submitted “recognises and allows” academic progression in legal education from lower levels of learning to higher levels.

20. He also submitted that his admission to the Bachelor of Laws degree was based on Part II, Paragraph 5 of the 3rd Schedule of the Legal Education (Accreditation and Quality Assurance) Regulations 2016.

21. He further states that the Regulations provide for the minimum requirements for admission to the Advocates Training Programme as a degree from a recognised university inter alia.

22. He relies on the recent decision of the Court of Appeal in Nairobi Civil Appeal No. E472 of 2021 – Kenya School of Law V Otene Richard Akomo & 41 Others to support his contention that the law supports academic progression.

23. The Appellant also relies on the decision in Robert Uri Dabaly Jimma V Kenya School of Law (2020) eKLR to support his submission that the duty of vetting qualifications is at the point of entry of the student at the institution offering such courses.

24. The Appellant also stated that the Director of the Kenya School of Law (who communicated the impugned decisions) has no legal basis to monitor legal education in Kenya since this is the sole mandate of the Council for Legal Education.

E. The Respondent’s submissions 25. On whether the Tribunal has jurisdiction over the matter, the Respondent submits that the LEAT was created by the Legal Education Act under Part VI and its jurisdiction under that Part, is to hear appeals on matters arising out of the Legal Education Act. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act.

26. The Respondent submits that this Honourable Tribunal's jurisdiction is limited to matters that relate to the Legal Education Act 2012 which states in Section 31(1):“31. Jurisdiction of Tribunal(1)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 Respondent submits that the Tribunal is a creature of the Act which was enacted to establish it in this instance, the Legal Education Act which is an Act 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.

28. The Respondent submits that Section 30 flows from Section 29 which established LEAT, spells out its purpose and specifies the membership and crucially, Section 31 grants the Tribunal jurisdiction on any matter relating to this Act, it submits that it is clear that these sections do not expressly confer upon the Tribunal power to adjudicate matters that are outside the scope of the Legal Education Act 2012.

29. On whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable, the Respondent submits, inter alia, that in constructing a statutory provision, the first and foremost rule is that of literal construction. If the interpretation is unambiguous and the legislative intent is clear then the meaning is applied without resorting to other rules of statutory interpretation.

30. The Respondent urges the Tribunal to adopt an interpretation that will not only make the statutory provisions on admission operative and workable but also make them operative in a just and reasonable manner.

31. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The Respondent submits that the Appellant did not meet the admission criteria.

32. On whether the procedure to refuse admission was illegal and unreasonable, the Respondent submits that its hands were tied by statute and that the decision was fair and just and procedurally correct.

33. On the issue of academic progression, the Respondent submits that the Appellant does not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, which is the Kenya School of Law Act 2012, as amended by Statute Law Miscellaneous Amendments Act (No. 18 of 2014) does not provide for academic progression.

34. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellant’s argument that because he had obtained his LLB degree, the Respondent should shut its eyes to his KCSE qualifications, is gravely erroneous.

35. The Respondent submits that this could not have been the intention of Parliament, as this creates two admission criteria for local universities and foreign universities. The Respondent submits that this would create an outright absurdity.

F. Analysis and determination. 36. On the jurisdiction to entertain the appeal, the primary relief by the Appellant is hinged on entitlement to admission to the Advocates Training Programme based on Section 1 (a) of the Kenya School of Law Act, 2012. The Respondent stated that the Appellant’s asserted entitlement to admission to the Advocates Training Programme by dint of academic progression, it is not provided for in its establishing juridical regime.

37. The Tribunal notes that the function of the Interested Party in Section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations for persons wishing to enrol in Legal Education Programmes and which function has been confirmed in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at page 21 as follows;“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, be it a college or a university.It should be noted that whereas the Council has powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”

38. The Tribunal has consistently held the position above in its various pronouncements. The Tribunal also notes that Section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the Interested Party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels. The Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the Interested Party pursuant to the Legal Education Act, 2012.

39. The Tribunal finds that in inquiring into the matter of applicability of progression it will be discharging its mandate under Section 31 of the Legal Education Act, 2012.

40. The admission criteria to the two legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme is the main contest in this appeal. The legislature has enacted the Legal Education Act, 2012 which by Section 8 (3) (a) therein confers upon the Interested Party the powers to amongst others regulate the admission criteria to legal education programmes. It provides;“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 enrol in legal education programmes;...”

41. The Interested Party and the Tribunal are established under the same statute. It follows that the Tribunal has the requisite jurisdiction to inquire into the appeals before it by dint of Section 31 (1) of the Legal Education Act.

42. In view of the many decisions on this point by the Tribunal, we are of the view that the matter of its jurisdiction should be a settled matter by now. The Respondent and Interested Party are common litigants in these proceedings and have constantly raised the issue and the Tribunal has consistently ruled on the question. We would be remiss if we do not point out that this is a question that ought not to come up in every subsequent appeal from the same facts. This is especially so since the Respondent and the Interested Party have yet to challenge the Tribunal’s findings on its jurisdiction in a superior court. There is also a decision on the matter by the Hon. Justice Mativo as held in Republic V Kenya School of Law & 2 Others Ex parte Kgaborone Tsholofelo Wekesa (2012) eKLR as follows:“The preamble to the Legal Education Act 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.”

43. As regards the appeal, the Appellant’s primary contention was that he was entitled to admission to the Advocates Training Programme predicated on the fact that he held a Bachelor of Laws degree from a recognized university in Kenya.

44. The Tribunal will proceed to consider the appeal on account of the extent to which the Appellant may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which are applicable to the instant case. The Appellant gained admission to the university on 5th September 2016 which is the date appearing on his admission letter as the date of “reporting and registration” with the window closing on 9th September 2016.

45. The Interested Party had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under Section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree, the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;“5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall bea.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; ord.a Credit Pass in a diploma in law examination from an accredited institution.”

46. After careful consideration of the Appellant’s qualifications we hold that based on the decision of the superior court and as affirmed by the Court of Appeal in a Constitutional Petition lodged in the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, the Appellant qualifies for admission to the Advocates Training Programme.

47. In the quoted case, the petitioners challenged the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 and stated as follows;“The first issue here is the legality of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The petitioners contend that the said regulations were made in contravention of article 10 of the Constitution. They further contend that the 1st Respondent was not properly constituted in accordance with Section 4 (5) of the Legal Education Act at the time of making the said Regulations and that the 1st Respondent does not have the powers to accredit foreign institutions. However, the true position is that the Regulations have not yet become subsidiary legislation because they have not yet been adopted by Parliament as required by Section 14 of the Statutory Instruments Act. Thus this provision renders the said regulations void and unenforceable.”

48. With the declaration of invalidity whose operative date is 30th January 2018 (being the date of the decision by the High Court as affirmed by the Court of Appeal), the said regulations which contained the criteria for admission ceased to have any legal consequence from their inception. This included the set out admission criteria to the various legal education programmes contained in them.

49. However, the Court of Appeal after considering the matter found that the declaration of invalidity does not apply to crystalized actions. The decision in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 34, 35 and 47 of the judgment stated;“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.”

50. In this appeal, the crystalized action that arises would entail a consideration of the point at which the Appellant had secured admission to the Bachelor of Laws degree programmes at the time the initial decision on the invalidity of the regulations was entered by the superior court on the 30th January 2018.

50. The Appellant secured admission to the Bachelor of Laws degree on the 5th of September 2016 which was before the date of the finding of invalidity of the regulations by the superior court. The Tribunal, therefore, finds that the declaration does not affect his eligibility to the Advocates Training Programme.

50. A question arises on whether he would be eligible under Section 8 (3) (c) of the Legal Education Act, 2012 which empowers the Interested Party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels.

50. The Appellant has robustly taken up the point that his academic journey should be taken into consideration. He states that the impugned Section created a right that accrues to him as affirmed by the Court of Appeal. It is on the section of the law that a possibility of admission through progression would have been hinged.

50. However, the law on progression as enacted in Section 8 (3) (c) of the Legal Education Act, 2012 created an obligation on the Interested Party to formulate regulations and a system for progression. This has not happened and there is a vacuum that falls squarely in the hands of the Interested Party. We say no more on the issue save to state that the Appellant’s reliance on academic progression would have failed on account of the lack of regulations/ system envisaged by Section 8 (3) (c).

50. We also would like to point out the following with regard to the impugned decisions:i.The decision dated 4th January 2023 indicated that the Appellant had not attached his letter of admission to the LLB programme. The decision is exhibited on page 16 of the Appellant’s supporting affidavit and marked “Annexture 8”.ii.The Appellant responded to the decision and attached the letter of admission exhibited on page 26 and marked “Annexture 9”.iii.The Respondent then responded on 10th January 2023 rejecting the appeal and only removing the requirement for the degree certificate.

50. It is easily apparent, and we find as much, that upon a reconsideration of the application with the letter of admission, the law supports the Appellant’s position that at the time, the law had a promise that he could undertake the degree with the result being admission to the Advocates Training Programme. All decisions in the superior courts support the proposition that the Appellant succeeds because his application is not caught by the decisions that have since changed the law.

G. Disposition.IT IS DECREED:a.THAT the appeal is allowed.b.THAT the Respondent’s decisions issued on the 4th January 2023 and 10th January 2023 declining the application for admission of ANTHONY WAZIRI KITSAO to the Advocates Training Programme during the 2023/24 academic year as communicated by the Respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law are set aside.c.THAT the Respondent is ordered to admit the Appellant ANTHONY WAZIRI KITSAO to the Advocates Training Programme.d.THAT each party bears its own costs of the appeal.e.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 ON THIS… 5TH DAY OF APRIL 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSON EUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBER STEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal. REGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)THE JUDICIARY OF KENYA. LEGAL EDUCATION APPEALS TRIBUNAL LEGAL EDUCATION APPEALS TRIBUNAL