[2023] KELEAT 1189 (KLR)

Masila v Kenya School of Law; Council of Legal Eduction (Interested Party) (Appeal E025 of 2023) [2023] KELEAT 1189 (KLR) (Civ) (18 August 2023) (Judgment)

Neutral citation: [2023] KELEAT 1189 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Appeal E025 of 2023

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

August 18, 2023

Between

Lawson Benjamin Masila

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Eduction

Interested Party

(Being an appeal against the decisions of the Respondent on 4th January 2023 and 18th January 2023)

Judgment

A. Introduction 1. The Appellant (Mr Lawson Benjamin Masila) applied to be admitted to the Respondent’s Advocates Training Programme (“ATP”). He appeals against the decisions of the Respondent on 4th January 2023 and 18th January 2023 which denied him admission into the ATP based on his high school qualifications.

B. Factual Background Chronology 2. In this Judgment, the chronology of events is important. We set out a brief chronology as follows:a.The Appellant sat for his Kenya Certificate of Secondary Education (KCSE) examinations in 2007 and attained the following grades relevant to this Appeal:Mean Grade- B-(minus)English B-(minus)Kiswahili C+(plus)b.He then enrolled for a Diploma in Criminology and Social Order at the University of Nairobi on 8th September 2008 and graduated in December 2011. c.The Appellant was then admitted to the same University of Nairobi for a Bachelor of Arts and Political Science degree which he attained on graduating in 2014 with a Second Class Honours (Upper Division).d.He then applied to the same University of Nairobi for a Bachelor of Laws degree and was admitted on 12th February 2018 and graduated with a Bachelor of Laws Second Class Honours (Upper Division) degree in December 2022. e.Armed with these qualifications, the Appellant states that he applied for admission to the ATP on 13th December 2022.

The Decision 3. The Respondent issued a decision dated 4th January 2023 which read in part as follows:“…Admission To The Kenya School Of Law-academic YearReference 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):Admitted on 2018. KCSE grades do not meet the minimum set requirements...”

4. The Appellant then goes ahead to state that he appealed against the Respondent’s aforesaid decision to which appeal, the Respondent communicated its decision vide its letter of 18th January 2023 which stated in part as follows:“…Admission To The Kenya School Of Law-academic YearReference 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):Does not meet minimum high school requirements…”

5. Aggrieved by these decisions of the Respondent dated 4th January 2023 and 18th January 2023 (“the Decisions”) the Appellant filed his Memorandum of Appeal dated 5th June 2023 before this Tribunal. His Appeal was accompanied by a Supporting Affidavit sworn on 5th June 2023 as well as supporting documents.

6. The Respondent opposed the Appeal through its Replying Affidavit sworn by Mr.Fredrick Muhia, its Principle Officer, Academic Services on 7th July 2023

C. The Appellant’s Appeal 7. In his Appeal, the Appellant sets out the grounds of appeal as summarized below:a.That having scored Mean Grade- B-(minus) in KCSE, and holding a Bachelor of Laws degree, 2nd Class Honours (Upper Division) from the University of Nairobi, he is qualified to be enrolled into ATP by the Respondent;b.The Decisions infringe on his right to education.c.The law, at section 13(1)(a) of the Advocates Act, Chapter 16 of the Laws of Kenya recognizes a Bachelor of Laws degree from a recognized university as one of the qualifications of an advocatesd.Section 8(3)(c) of the Legal Education Act, 2012 recognizes and allows academic progression in legal educatione.The Council of the Interested Party formulated the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 (the “2009 Regulations”)which acknowledged a degree from a recognized university as a qualification to admission to Bachelor of Laws under Regulation 18. f.Interested Party later formulated the Legal Education (Accreditation of and Quality Assurance) Regulations, 2016 (the “2016 Regulations”) which also recognized university as a qualification to admission to Bachelor of Laws under Part II, paragraph 5 of the 3rd Schedule.g.The Appellant asserts that he seeks admission under the 2009 Regulations after the 2016 Regulations were declared unconstitutional by the Court.

8. The Appellant thus seeks the following Reliefs from the Tribunal:i.The Tribunal quashes the decisions of the Director Kenya School of Law dated 4th January 2023 and 18th January 2023ii.The Tribunal orders/directs the Respondent to admit the Appellant to the Advocates Training programme for the academic year 2023/2024iii.Any order that the Tribunal deems fit, just and expedient to grant.

D. The Response by the Respondent 9. The Respondent in opposing the Appeal states that:a.It’s mandate is to train persons for purposes of the Advocates Act (cap 16 of the Laws of Kenya)b.Matters of admission to the ATP are exclusively provided for under Section 16 of the Kenya School of Law Act No. 26 of 2012. c.The Tribunal’s jurisdiction is limited to matters that relate to the Legal Education Act, 2012. d.The Kenya School of Law Act No. 26 of 2012 mandates the Respondent to consider applications for admission to ATP and only admit those it determines to qualify.e.The Appellant did not qualify as per the criteria set out in Section 16 as read together with paragraph 1 of the 2nd Schedule of the Kenya School of Law Act No. 26 of 2012 which sets out the criteria to include a mean grade of C+(plus) with a B(plain) in English or Kiswahili (which the Appellant did not have).f.The Kenya School of Law Act No. 26 of 2012 does not recognize academic progression which the Appellant seeks to rely on.g.The Appellant’s Diploma in Criminology and Social Order is not related to law and therefore cannot be interpreted to be academic progression.

10. The Interested Party did not file any response or submissions in these proceedings but indicated to the Tribunal that it would be relying on the submissions of the Respondent.

h. The Appellants’ Submissions 11. The Parties consented to have this matter canvassed by way of written submissions. The Appellant sought to rely on his Written Submissions dated 5th July 2023 and Supplementary Submissions dated 17th July 2023. The Appellant sets out the following issues for determination:i.Whether the Tribunal has jurisdiction to determine the Appealii.Whether the Director/Chief Executive Officer of the Respondent exceeded his mandate in declining the Appellant’s application for admission to ATPiii.Whether the Appellant’s right to education and fair administrative action were upheld by the Director/Chief Executive Officer of the Respondentiv.Whether the Appellant is eligible to study the ATP

12. On jurisdiction, the Appellant refers the Tribunal to section 31(1) of the Legal Education Act, 2012 that defines the jurisdiction of the Tribunal. The Appellant sought to rely on several authorities outlining the centrality of jurisdiction. He also relied on the case of Republic V Kenya School of Law & 2others Ex Parte Kgaborone Tsholofelo Wekesa (2019( eKLR to assert that the Tribunal ahs jurisdiction to determine this Appeal.

13. On the issue of whether the Director/Chief Executive Officer of the Respondent exceeded his mandate in making the Decisions, the Appellant submits in the negative. He quotes Section 14(3) and (4) of the Kenya School of Law Act No. 26 of 2012 which provides for the responsibilities of the said Director/Chief Executive Officer of the Respondent. The Appellant submits that Interested Party is the one clothed with the mandate to determine if he had met the criteria for admission. He relies on the case of Robert Uri Dabaly JimmavKenya School of Law & Another, 2020 eKLR.

14. As to whether the Appellant’s right to education and fair administrative action were upheld by the Director/Chief Executive Officer of the Respondent, the Appellant submits in the negative. He submits that by usurping the role of other state agencies, Respondent’s Director/Chief Executive Officer did not uphold those rights.

15. Concerning whether the Appellant qualified for admission to ATP, the Appellant asserts that (d) Section 8(3)(c) of the Legal Education Act, 2012 requires the Interested party to make regulations for admission of persons into legal education programmes and to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education. According to the Appellant, both the 2009 and 2016 regulations recognized academic progression, with the recognition of a degree from a recognized university as one of the requirements for admission to a bachelor of laws degree programme.

16. The Appellant asserts Section 24 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya provides that where an Act or part of an Act is repealed, subsidiary legislation issued or made under it remain in force so long as it is.

17. Finally the Appellant seeks that the Tribunal to adopt the interpretation of the word “or” in paragraph 1 of the 2nd Schedule of the Kenya School of Law Act No. 26 of 2012 as disjunctive and relies on several authorities for this argument.

The Respondent’s Submissions 18. The Respondent set out the following as the issues for determination:a.Does the Tribunal have jurisdiction over the matter?b.Is the Double standards in admission qualification discriminatory or justifiable?c.Whether the Respondent’s decision to refuse admission to the Respondent’s Advocates Training Programme was a breach of legitimate expectations.d.Is Academic progression applicable?

19. The Respondent submits that the Tribunal does not have jurisdiction over the matter, it states that LEAT was created by the Legal Education Act, 2012 under Part VI and its jurisdiction under that Part, is to hear appeals matters arising out of the Legal Education Act, 2012. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act, 2012.

20. The Respondent also 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) that:“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.

21. The Respondent submits that the Tribunal is a creature of the Legal Education Act, 2012 which was enacted to establish it. Thus, the Legal Education Act, 2012 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.

22. The Respondent goes ahead to submit 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 Tribunal power to adjudicate matters that are outside the scope of the Legal Education Act 2012.

23. As to 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 resort to other rules of statutory interpretation.

24. The Respondent relies on the case of the Law Society of KenyavCentre for Human Rightd and Democracy & 13 other (2013) eKLR and Bakeries LimitedvRent Restriction Tribunal and Kiriti Raval Nairobi HCMCC No. 246 of 1981 among others.

25. The Respondent further submits that the process of admission into the ATP is exclusively provided for in the Kenya School of Law Act, 2012, a process which the Appellant submitted to.

26. As to whether there is a double standard in admission qualifications, and whether it is discriminatory or justifiable, the Respondent urges the Tribunal to avoid a literal interpretation of the admission criteria that would lead to an ubsurdity or discrimination. It quotes the Court of Appeal decision in Nairobi Civil Appeal No. E472 of 2021.

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

28. Concerning the issue of whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent quotes the above Court of Appeal decision and submits that the Appellant did not meet the admission criteria.

29. On whether the procedure to refuse admission was illegal and unreasonable the Respondent submits that the procedure adopted by the Respondent in arriving at the impugned decision was fair and reasonable.

30. On the issue of academic progression the Respondent submits that the Appellant does not qualify to be admitted to the 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.

31. The Respondent further states that the Appellant cannot rely on the CLE Quality Assurance Regulations as the Tribunal has stated in various decisions that the cut-off date was 30th January 2018 for one to rely on the doctrine of crystallized actions.

Analysis and determination. 32. On the issue of the Tribunal’s jurisdiction to entertain this appeal, it is noted that the relief sought by the appellant two pronged; (1) his contention that he is entitled to admission to the Advocates Training Programme based on section 1 (a) of the Second schedule of the Kenya School of Law Act, 2012. (2) His academic progression and his entitlement to admissions to the Advocates Training Programme under the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009, which he argues remained in force when the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 regulations which were formulated by the interested party pursuant to the Legal Education Act, 2012, were declared invalid on 30th January 2018.

33. Both the Appellant and the Respondent, albeit holding different positions have made reference to, and canvassed the issue of academic progression and have brought it into the realm of consideration and determination by this tribunal.

34. Section 8 (3) (a) of the Legal Education Act, 2012 mandates the Interested party to make Regulations for persons wishing to enroll in 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;… 35. This 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 JJA 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.”

36. The Tribunal finds, as it has in its several decisions, that in inquiring into the matter of applicability of academic progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012, and has the requisite jurisdiction so to do.

37. As regards the appeal, the appellant’s primary contention is that he is entitled to admission to the Advocates Training Programme predicated on the fact that he held a Bachelor of Laws degrees from the University of Nairobi, a recognized university in Kenya. Thus, he ought 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. g.The section provides 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; and(iii)has sat and passed the pre-Bar examination set by the school.”

38. The Court of Appeal in Nairobi Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJA observed as follows;“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 us means 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 are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.”

39. Based on a conjunctive interpretation, as pronounced by the Court of Appeal, the Appellant must achieve the KCSE grades and or their equivalent as set out in Section 1(b) in order to qualify for admission to the Advocates Training Programme. The Appellant scored a mean grade B- and attained a B- in English and a C+ in Kiswahili, The Respondent’s decision to decline his admission on the ground that his KCSE marks do not meet the set criteria, would be upheld.

40. The Appellant contends that he is entitled to benefit from the provisions of the Council for Legal Education (Accreditationof Legal Education Institutions) Regulations, 2009.

41. The appellant argues that following the declaration of invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, on 30th January 2018, by the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013, the Regulations that were left in force were the Council for Legal Education (Accreditationof Legal Education Institutions) Regulations, 2009 (Legal Notice 170 0f 2009)The Second Schedule paragraph 2 of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 states as follows: -2. A student shall not be eligible for admission into an Undergraduate Degree Programme unless that student has —a.a degree from a recognized university;b.at least two principal passes at an advanced level or an equivalent qualification;c.a mean grade of C+ (C plus) in Kenya Certificate of Secondary Education (KCSE); ord.a diploma of an institution recognized by the Commission for Higher Education and the applicant shall have obtained at least credit pass.

42. The Legal Notice 170 of 2009, regulations were made pursuant to Section 14 of the Council for Legal Education Act of 1995 which was repealed by the Legal Education Act 2012. It is in the same year 2012, that the Kenya School of Law Act 2012, was promulgated.

43. The Appellant argues that the Legal Notice 170 of 2009 regulations outlived the repealed Council for Legal Education Act of 1995, by virtue of Section 24 of the Interpretations and General Provisions Act, Chapter 2 Laws of Kenya, which provides that where an Act or part of an Act is repealed, subsidiary legislation issued under or made in virtue thereof shall, unless a contrary intention appears, remain in force, so far as it is not inconsistent with the repealing Act, until it has been revoked or repealed by subsidiary legislation issued or made under the provisions of the repealing Act, and shall be deemed for all purposes to have been made thereunder.

44. Legal Notice No 169 and 170 of 2009 (the Regulations) came under scrutiny in the case of 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 JJA observed at page 32;“For the avoidance of doubt, the basic requirements for KCSE under Section 16 and the Second Schedule of the KSL Act are for both applicants who studied in or out of Kenyan universities. The section should be read as a whole and not in bits and pieces and the three conditions which are precedent must be met before admission to KSL. Failure to meet the basic requirements of the qualifications in KCSE as envisaged in the above section renders one’s application incompetent and hence ripe for rejection by the appellant. The regulations cannot override the provisions of an Act of Parliament”

45. It is evident from the pronouncement of the Court of Appeal in the Otene case (supra), that a contrary intention on the criteria of persons qualified to be admitted to the Advocates Training Programme, was provided for expressly in the Kenya School of Law Act of 2012. The Court of Appeal was emphatic that the regulations cannot override the provisions of an Act of parliament. It is notable that the appellant was admitted for his undergraduate degree course in February 2018, and seeks admission to the Advocates Training Programme well after the enactment of the Kenya School of Law Act 2012. The tribunal finds that the subsidiary legislation does not come to the aid of the appellant.

46. The Tribunal has considered whether the appellant 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.

47. The law on progression as enacted in section 8 (3) (c) of the Legal Education Act, 2012 confines progression to the field of law. The said matter was a subject of consideration 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 JJA observed at page 28;“The wording in 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 aeronautics 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 culminating in a diploma in law or related course in law. We therefore hold that such degree and diploma are not to be categorized as a progression in law of whatsoever kind and even if they were, the appellant had to consider the primary requirements in the Act first before reverting to the regulations and which is the requirement of grades in KCSE.”

48. The Appellant herein undertook a Diploma in Criminology and Social Order and an undergraduate degree in Arts & Political Science. The said Diploma course and the First undergraduate degree course undertaken by the Appellant cannot be categorized as a progression in law.

49. It follows that legitimate expectation cannot accrue if the action or benefit expected is not supported by the law. Discussing legitimate expectation, H. W. R. Wade & C. F. Forsyth (Administrative Law, by H.W.R. Wade, C. F. Forsyth, Oxford University Press, 2000), at pages 449 to 450 states thus:It is not enough that an expectation should exist; it must in addition be legitimate. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation.Second, clear statutory words, of course, override an expectation howsoever founded. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."

Disposition. 50. It Is Decreed:-a.That the appeal by Lawson Benjamin Masila as against the Respondent’s decisions declining admission to the Advocates Training Programme during the 2023/24 academic years as communicated by the respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law in the decision dated the 4th January and 18th January, 2023 is dismissed.b.That each party to bear its own costs of the appeal.c.That any party aggrieved by this decision is at 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 18TH DAY OF AUGUST 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal.REGISTRAR