[2024] KELEAT 300 (KLR)

Maina v Kenya School of Law (Appeal E028 of 2023) [2024] KELEAT 300 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KELEAT 300 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E028 of 2023

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

April 5, 2024

Between

Paul Mwambi Maina

Appellant

and

Kenya School of Law

Respondent

(Being an appeal against the decisions of the Respondent given on 21st day of November 2023 rejecting the appellant’s application for admission into the Advocates Training Programme)

Judgment

A. Introduction. 1. This is the judgment of the Tribunal given in this Appeal by the Appellant, PAUL MWAMBI MAINA instituted against the decision of the Respondent the KENYA SCHOOL OF LAW denying him admission to the Advocates Training Programme (“ATP”).

2. In this case we, as a Tribunal, are requested by the Appellant to first, set aside the Respondent’s decision of 21st November 2023 rejecting his application for admission to the ATP and, secondly, declare that the Appellant qualifies for admission to the ATP and finally order the Respondent to admit him to the ATP forthwith.

3. The nature of the challenge is firstly, that the Appellant contends that he is qualified for admission to the ATP, and secondly, that the Respondent had no right/power to inquire into the Appellant’s undergraduate entry requirements;

B. The appeal. 4. Vide an appeal dated 23rd November 2023, the Appellant sought the following reliefs from this Tribunal:a.That the Respondent’s decision made on 21st November 2023 in relation to the Appellant’s application referenced KSL/ATP/AAD939 for enrollment into the ATP be set aside;b.A declaration that the Appellant qualifies for admission into the ATP based on the documents presented to the Respondent via the application referenced KSL/ATP/AAD939c.An order directing the Respondent to admit the Appellant forthwith in the ATP for the academic year 2023/2024d.Costs of the Appeal to be borne by the Respondent.

5. To support his contention that he was qualified for admission to the ATP, the Appellant confirmed his relevant academic qualifications and provided evidence for the same among others as follows:a.Kenya Certificate of Secondary Education (KCSE) where he scored a Mean Grade of C+(Plus), C-(Minus) in English and B-(Minus) in Kiswahili;b.A Second Class Honours (Upper Division) Bachelor of Commerce (Banking & Finance option) degree from Egerton University presented on 4th December 2015;c.A Master of Business Administration (Strategic Management option) degree from Mount Kenya University presented on 9th July 2022;d.Admission letter to Riara University dated 4th June 2019 for a Bachelor of Laws degree;e.A Second Class Honours (Upper Division) Bachelor of Laws) degree from Riara University presented on 14th July 2023.

6. The Appellant then applied for admission to the ATP offered by the Respondent, and on 21st November, 2023 received an email with a decision rejecting the same that read as follows;“Dear Paul Maina,Your application referenced KSL/ATP/AAD939 for the Advocates Training Program has been rejected. This decision can only be appealed before 2023-11-26. Your application was rejected for the following reasons:THE STUDENT GOT C PLUS IN ENGLISH AND B MINUS IN KISWAHILI. HE DOESN’T QUALIFY FOR THE ATP PROGRAMMEKind Regards,..”

7. Aggrieved by this decision, the Appellant has filed this Appeal to the Tribunal.

C. The Response to the Appeal. 8. The Respondent responded to the Appeal through a Replying Affidavit sworn by Mr. Fredrick Muhia, its Principal Officer, Academic Services on 13th December 2023.

9. In response to the appeal, the Respondent contended that the Tribunal was bereft of jurisdiction to entertain the same as it related to matters of admission to the Advocates Training Programme which were regulated by the Kenya School of Law Act, no. 26 of 2012 while the Tribunal was established under the Legal Education Act, no. 27 of 2012.

10. The Respondent also faults the application by the Appellant for failing to meet the required admission requirements of a mean grade of a C + (plus) and a B (plain) in English or Kiswahili in the Kenya Certificate of Secondary Education.

11. The Respondent further contended that the Appellant was relying on academic progression which was not provided for in the Kenya School of Law Act, 2012. The only criteria for admission to the Programme was that set out in the Second Schedule to the said Act and which guided it in considering admissions to the Programme.

12. Finally, the Respondent contended that since the Appellant was admitted to study his Bachelor of Laws degree on 4th June 2019, he cannot rely on the CLE Quality Assurance Regulations;

D. The submissions by the parties. 13. The parties relied on written submissions dated 22nd February 2024 and 4th March 2024 for the Appellant and Respondent respectively.

14. In his written submissions, the Appellant argues that he is qualified for admission to the ATP by dint of Section 1(a), Second Schedule of the Kenya School of Law Act, 2012. He relies on the case of Kenya School of Law & Ano. Ex-Parte Kithinji Maseka Semo & Ano. (2019) eKLR and Stephen Kipkemei Rutto V Kenya School of Law and Ano. (2022) eKLR which held that qualifications under Section 1(a) are distinct from those of Section 1(b) of the Second Schedule of the Kenya School of Law Act.

15. The Appellant also submits that no questions were raised about his qualifications when being admitted to the university for his LLB degree. He submits that only the Council for Legal Education is mandated to object to his qualifications for admission to LLB degree as the regulator of legal education in Kenya. To support his argument, the Appellant relies on the decision of Mrima J. in Robert Uri Dabaly Jimma v Kenya School of Law & another [2020] eKLR where the Court states at follows at paragraphs 85-86:“85. A synopsis of the Legal Act posits that it is the Council which is at the heart of legal training and education in Kenya. The Council has powers not only to regulate and licence the legal education providers but also to supervise what and how they offer their services to the public.

86. It can, therefore, be the only 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.”

16. The Appellant further submits that the fact that the Respondent had no jurisdiction to inquire into the qualifications of the Appellant for LLB admission rendered its decision a nullity. He relied on section 7(2)(a)(i) of the Fair Administrative Actions Act, 2015 that he submits empowers the Tribunal to review a decision made ultra vires.

17. The Respondent on the other hand contended that the Tribunal was created by the Legal Education Act, 2012 under part VI and its jurisdiction under that Part, is to hear appeals on matters arising out of the Act. That the matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act, 2012. Its jurisdiction is limited to matters that relate to the Legal Education Act, 2012. That the Tribunal is a creature of the Act which was enacted to establish it in this instance, the Legal Education Act, 2012 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. The Respondent submitted that the law did not provide an express conferment of jurisdiction to deal with the matters taken up in the appeal. It relied on the decisions in Republic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR.

18. Furthermore, the Respondent submits that the process of admission to the Respondent’s ATP is exclusively provided for under section 16 of the Kenya School of Law Act, No. 26 of 2012 which states that;“16. Admission requirements:

A person shall not qualify for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course.”

19. The Respondent further submitted that it is required by its establishing Act; the Kenya School of Law Act, 2012 to consider applications for admission to the Programme and once satisfied that the applicant is qualified, admit the applicant to the School which is provided in section 17 of the Act. The Respondent submitted that the Appellant’s appeal essentially asks for the Tribunal to grant her admission to the School and thereby arrogate the statutory duties of the School. The Respondent relied on the decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others, (2012) eKLR it was stated that;“Unless that restriction on the power of the court is observed, the court will...under the guise ofpreventing the abuse of power, be itself guilty of usurping power...Judicial review, as the word simply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

20. Concerning whether the Appellant meets the criteria set by law for admission to the ATP, the Respondent contends that the issue of whether Section 1(a) and (b) of the Second Schedule of the Kenya School of Law Act, 2015 should be read conjunctively or disjunctively was settled in the binding decision Kenya School of Law v Otene Richard Akomo & 41 Others, Nairobi Civil Appeal no. E472 of 2021 where the judges of the Court of Appeal held that the provisions of Sections 1(a) and (b) should be read as a whole.

21. On legitimate expectation, the Respondent submitted that there was no legitimate expectation created. It relied on the Otene Case (supra).

22. On the fairness of the procedure to refuse admission, the Respondent submitted that it followed a fair and just procedure and informed the Appellant of its decision without delay.

23. On academic progression, the Respondent reiterated its earlier arguments that the Kenya School of Law Act, 2012 as amended by Statute Law Miscellaneous Amendments Acr (No. 18 of 2014) does not provide for academic progression. It quoted the Otene case (Supra) in its submission that prior learning ought to be in law and not other disciplines.

24. Finally, the Respondent submitted that the cutoff date for reliance on the CLE Quality Assurance Regulations was 30th January 2018 as set out in the Javan Kiche V Council of Legal Education Petition no. 20 of 2016 and confirmed severally by this Tribunal. The Appellant having obtained admission in 2019 could not rely on the said Regulations.

E. Analysisand determination. 25. We summarize the issues for determination as follows:a.Whether the Tribunal has jurisdiction to hear and determine this Appealb.Whether the Appellant qualifies for admission into ATP

26. The first issue of the jurisdiction of the Tribunal has been taken up severally by the Respondent of which the Tribunal has consistently and tirelessly made a finding that the same exists by dint of its establishing legal regime and nature of appellate matters presented to it. The Respondent has not yet availed a contrary finding on the same from a superior court but has consistently raised it as an issue. However, the Tribunal will not tire in discharging its mandate on inquiry of the same and informing the parties as stipulated in section 31 of the Legal Education Act, 2012

27. as a preliminary matter being so guided by the authority in Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Limited, (1989) KLR 1 in which Justice Nyarangi JA. as he then was held;“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

28. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the Council of Legal Education the powers to amongst other matters to 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 enroll in legal education programmes;...”

29. The said position has been upheld by the pronouncement of Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A held;“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.”

30. The Council of Legal Education and the Tribunal are established under the same statute thus, the Tribunal has the requisite jurisdiction to inquire into the appeal which involves the question of qualifications of entry to a legal education programme offered by a legal education provider in this case being the respondent. The Tribunal is so guided by section 31 (1) of the Act which provides;“(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.”

31. The Appellant has also sought to rely on academic progression which is a matter provided for under section 8 (c) of the Legal Education Act, 2012 as a function bestowed by upon the Council of Legal Education by the legislature. The Respondent while well acknowledging that the Appellant relies on academic progression it’s only challenge on the same is want of a provision in its establishing regime as deposed in its Replying Affidavit and fortified in its submissions. Based on the rival positions on the matter, the Tribunal finds that academic progression is a matter within its mandate to determine.

32. On the second issue arising from the Appeal, of whether the Appellant qualifies for admission to the ATP, the Appellant’s contention is that he is entitled to admission to the Advocates Training Programme based on the fact that he held a Bachelor of Laws degree from a recognized University in Kenya. Hence, he thus seeks to be subjected to the scrutiny in section 1 (a) as opposed to 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012. For ease of reference the Tribunal reproduces the same as follows;“(a)Admission Requirements into the Advocates Training Programme. 1. 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 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.

33. The Appellant’s submission would have been arguable before the judgment of the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A observed;“It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act, distinguishes applicants who hold a Bachelor of Laws degree from Kenyan University and those from a foreign University. We are of the view that with the use of semi-colon between 1 (a) and (b) of the Act then the conditions follow which to usmeans that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and areenlisted therein which are mandatory to allirrespective of whether you have a degree from within or without Kenya.”

34. The Court of Appeal in this binding decision adopted a conjunctive interpretation of Sections 1(a) and (b) of the Second Schedule of the Kenya School of Law Act, 2012.

35. Thus the Appellant not only needs to prove that he acquired or was eligible for an LLB degree from a recognized university in Kenya (as it was in his case) but that he obtained the minimum KCSE grades of C+ (Plus) and a B Plain in English or Kiswahili. The Appellant obtained a mean grade C+(Plus) and a C–(Minus) in English and a B-(Minus) in Kiswahili. The Respondent cannot therefore be faulted for rejecting the Appellant’s application.

36. Having found that the Appellant does not qualify for admission based on Sections 1(a) and (b) of the Second Schedule of the Kenya School of Law Act, 2012, we consider whether he is entitled to the benefit of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Tribunal well recognizes that the same constituted the fulcrum of academic progression as well as laid down the criteria for admission to the various legal education programmes in the field of the legal profession, before they were found to be invalid for want of compliance with the procedures for the creation of statutory instruments as laid down by Parliament.

37. The Council of Legal Education had formulated a criterion 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 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.”

38. A cursory look at the above provision leads to a conclusion that the Appellant would have qualified by dint of Regulation 5(c ) having acquired a Bachelor of Commerce Degree and a Master of Business Administration prior to his admission for an LLB degree. However, we decline to declare the Appellant as qualified by dint of this Regulation for two reasons:

39. Firstly, the Court of Appeal in the Otene case (Supra) pronounced itself that the prior learning to be considered in such situations ought to be prior learning in law. Thus the Court of Appeal held that:“The wording of part C above is clear as it is, that prior learning and experience in law is what ought to be considered in formulating a system that would see the progression in legal education. We do not think a degree in aeronautical or a diploma in interior design for instance, can be termed as progression towards studying law. Indeed, the only closer aspect contemplated is experience and learning in law is a diploma culminating in law or a related course in law. We therefore hold that such degree and diploma are not to be categorized as progression in law of whatsoever kind and even if they were, then the appellant had to consider the primary requirements of grades in KCSE. We refuse to be swayed by the respondent’s argument that even having obtained a mean grade D plain, one can still proceed and pursue law and only wave the diploma in other disciplines as a condition for admission to the ATP.”

40. Thus from the holding of the Court of Appeal, a Bachelor of Commerce Degree and a Master of Business Administration degrees do not qualify as prior learning in law.

41. Secondly, the said Regulations were found to be invalid based on the decision of the Superior Court initially 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. In the said petition a challenge as to 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 was taken up. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 rendered herself 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.”

42. With the said pronouncement which was a declaration of invalidity of law, the said Regulations which contained the formulated criteria for admission which embodied a degree from a recognized university, ceased to have any legal consequence from their inception. However, the Court of Appeal barred the retrospective application of the said declaration as not being applicable to crystalized actions 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 at paragraphs 34, 35 and 47 of the judgment while upholding the decision of the Superior Court as made on the 30th January, 2018 pronounced themselves additionally as follows;“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.”

43. The Tribunal therefore finds that the date of invalidity of the Regulations in issue stands at 30th January, 2018 when the pronouncement by the Justice Maureen Odero was made on the same. The decree of the superior court as entered was simply affirmed by the appellate court with the rendering of a negative order when it rendered its decision on appeal in the year 2021 finding the initial petition as lodged in the superior court to have been devoid of merit. Accordingly, the Tribunal finds as it has done before that the date for reckoning crystallized actions remains the 30th January, 2018.

44. Having regard to this appeal, the crystalized action would entail a consideration of the point at which the appellant secured admission to the Bachelor of Laws degree programme if it was before the time the decree of invalidity of the Regulations was entered by the Superior Court on the 30th January, 2018. In this matter, the Appellant placed before the Tribunal an admission letter dated the 4th June, 2019 from Riara University. His transcripts show the date of admission as 6th June 2019.

45. On whether the procedure to refuse admission was a breach of the Appellant’s legitimate expectation to become an advocate, we find that the Appellant has not demonstrated how the Respondent breached his legitimate expectation to become an advocate given his qualifications as stated above.

46. The upshot of the above is that the Appellant has not qualified for admission to the ATP as his KCSE grades do not meet the statutory criteria set out in Sections 1(a) and (b) of the Second Schedule of the Kenya School of Law Act, 2012 and based on the admission date for his LLB degree, being 6th June 2019, he does not benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations of 2016, as they were already invalidated by then.

F. Disposition.It Is Decreed:-a.That the Appeal dated 23rd November 2023 is hereby dismissed.b.That each party to bear its own costs of the appeal.c.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 5thday of April, 2024. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.7