[2023] KELEAT 398 (KLR)

Monayo v Kenya School of Law & another (Appeal E022 of 2023) [2023] KELEAT 398 (KLR) (Civ) (4 August 2023) (Judgment)

Neutral citation: [2023] KELEAT 398 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Appeal E022 of 2023

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

August 4, 2023

Between

Victor Okebiro Monayo

Appellant

and

Kenya School of Law

1st Respondent

Council of Legal Education

2nd Respondent

(Being an Appeal against the decision of the 2nd Respondent dated 16th February 2018 declining to process the Appellant’s name for gazettement)

Judgment

A. Introduction 1. The ultimate question to be decided in this Appeal is whether the decision by the 2nd Respondent dated 16th February 2018, declining to process the Appellant’s name for gazettement should be set aside by this Tribunal.

B. Background 2. The Appellant, who was aggrieved by the 2nd Respondent’s decision filed his Memorandum of Appeal dated 28th March 2023 before this Tribunal. His Appeal was accompanied by a Supporting Affidavit sworn on 28th March 2023 as well as supporting documents.

3. The Appellant states that he is a student of the 1st Respondent, having been admitted to the Advocates Training Programme (“ATP”) for the academic year 2013/2014. He further states that upon admission, he attended the ATP programme for 12 months and sat the Bar examinations in June to November 2013. He passed 5 out of 9 units. Of the 4 papers which returned a result of a FAIL, the Appellant had attained a mark of 49% in a unit known as ATP 103, Legal Writing & Drafting. He applied to have his examination paper for this unit and another one re-marked by the 1st Respondent. Upon the re-mark of the two papers, the Appellant was issued with a letter dated 22nd October 2014 informing him that he had passed the 2 units. The transcript issued thereafter showed that he had attained a mark of 50 in ATP 103, Legal Writing & Drafting. The Appellant thereafter continued with his quest to pass all his units and re-sat the remaining two units which he eventually passed.

4. The Appellant states that he underwent the compulsory pupillage programme at the Judiciary and thereafter applied to the 1st and 2nd Respondent for his name to be gazetted for admission to the Bar.

5. In response to the application by the Appellant, the 2nd Respondent issued him with the impugned letter dated 16th February 2018 declining to process the Appellant’s name for gazettement.

6. Despite several demands from the Appellant and from his advocates, the 2nd Respondent has maintained that the Appellant had obtained a score of 47. 5% which had been rounded off by the 1st Respondent to 50%. According to the 2nd Respondent, the rounding off of the Appellant’s marks had no basis. Therefore, the Appellant having performed below the pass mark of 50%, attained a FAIL and therefore cannot be cleared for gazettement.

7. The 1st Respondent did not file any response to the Appeal and sought to rely on the response and written submissions filed by the 2nd Respondent. The said 2nd Respondent filed its response by a Replying Affidavit sworn by its acting Chief Executive officer, Ms. Mary Mutungi.

8. During the course of proceedings, directions were taken to have the matter disposed of by way of written submissions.

C. The Appeal by the Appellant 9. The Appellant relied on the grounds on the face of the Memorandum of Appeal, which were, inter alia:i.That the 2nd Respondent’s decision dated 16th February 2018, was in excess of its powers and in direct confrontation to the Kenya School of Law Act and the Council of Legal Education (Kenya School of Law Regulations) 2009;ii.That the Respondents’ actions violated the Appellant’s right to be heard and the right to fair administrative actioniii.That the Respondents’ actions and omissions contravened the Appellant’s right to be treated equally and not to be discriminated.iv.That the Respondents’ actions violated the Appellant’s economic and social rights.

10. The Appellant seeks the following reliefs from the Tribunal:i.A declaration that the actions and omissions by the Respondents are contrary to and inconsistent with Articles 10, 73 and 232 of the Constitution of Kenya 2010ii.A declaration that the Respondents violated the constitutional rights of the Appellant, particularly Articles 27, 43, 47 and 48 of the Constitution of Kenya 2010iii.An order to set aside and quash the decision contained in the 2nd Respondent.iv.General damages for breach of the Appellant’s constitutional rights

D. The Response by the 2nd Respondent 11. The 2nd Respondent states that it is mandated through the Legal Education Act, 27 of 2012, at section 8 thereof, to regulate legal education and training in Kenya and to administer such professional examinations as may be prescribed under section 13 of the Advocates Act.

12. The 2nd Respondent further states that it is also mandated by the Legal Education Act, 27 of 2012 to verify and clear candidates for gazettement based on documentation received from the 1st Respondent and Bar examination records that it is in possession of.

13. It goes on to state that it received the Appellant’s re-mark results for ATP 103, Legal Writing & Drafting from the 1st Respondent and noted that the marks awarded by the said 1st Respondent was 47. 5% which amounted to a fail as it was below the 50% threshold. It therefore declined to approve the Appellant for gazettement. It relied on paragraph 3 (d) of the 1st Schedule of the Council of Legal Education (Kenya School of Law Regulations) 2009 which prescribes the 50% threshold for a pass.

14. The 2nd Respondent further states that the theory invoked by the 1st Respondent to justify its rounding off of marks from 47. 5% to 50% is unsustainable since it contradicts clear statutory provisions.

15. The 2nd Respondent concludes by stating that the only option that the Appellant has is to register to sit for ATP 103, Legal Writing & Drafting in any given series.

16. The impugned letter from the 2nd Respondent dated 16th February 2018 (“impugned decision”) reads in part as follows:“Clearance of Bar Candidates: Adm No. 20131163: Rounded off Marks ATP 103 Legal Writing And DraftingThe Council of Legal Education verifies and clears candidates for gazettement based on information received from the Kenya School of Law and Bar examination records. Records at the Council’s disposal indicate that although you cleared pupillage as stipulated by law and your pupillage completion certificate was submitted to the Council, your name cannot be processed for gazettement due to inconsistencies in the mark you attained in ATP 103- Legal Writing and Drafting.Records from the Kenya School of Law show that the mark obtained in ATP 103, Legal Writing & Drafting has been rounded off from 47. 5% to 50%.Significantly, any mark below 50% in any unit in the Bar examination is a fail since the pass mark is prescribed by law. Relatedly, no documentary evidence has been provided to demonstrate the basis of rounding off the mark.Paragraph 3(d) of the First Schedule to the Council of Legal Education (Kenya School of Law Regulations) 2009, is unequivocal that the pass mark for examinations taken under the Advocates Training Program is 50% in all the nine (9) units whether the examination is the regular sitting re-sit or in the event of a remark.Council does not clear candidates with outstanding units in the Bar examination.The theory of precedent invoked by the Kenya School of Law to justify the rounding off marks from 47. 5% to 50%, in your case, is unsustainable since it contradicts clear statutory provisions.In order to conclude this matter with finality, Council’s decision is that you apply and register for ATP 103, Legal Writing & Drafting in the forthcoming Bar examination series slated for July 2018. ..”

E. The Appellants’ Submissions 17. Though the Appellant in his written submissions dated 21st June 2023 has not outlined with precision, the issues for determination by the Tribunal, the Appellant submits that the impugned decision was issued 4 years after the re-mark. He further states that the 2nd Respondent has not provided any evidence to support its assertion of the Appellant’s failure or to dislodge the 1st Respondent’s transcript.

18. The Appellant also submits that it was not part of the decision-making process when the 1st Respondent acting as an agent of the 2nd Respondent re-marked the examinations.

19. The Appellant urged the Tribunal to find the 2nd Respondent’s actions as discriminatory since other students whose examinations were re-marked were not affected.

20. It is the further submission of the Appellant that his view was not sought before the impugned decision was made thus violating his rights under Articles 47 and 50 of the Constitution of Kenya, 2010. He cited the case of Monica Wamboi Ng’ang’a & OthersvCouncil of Legal Education & 4others (2017) eKLR

21. The Appellant also contends that the impugned decision coming 4 years after the re-mark was a gimmick by the 2nd Respondent to bring the Appellant within the purview of Council of Regulation 9(5) of the Legal Education (Kenya School of Law Regulations) 2009 which limits the number of years to complete the ATP to 3 years.

22. The Appellant alludes to the fact that having issued been with the transcript from the 1st Respondent; he had a legitimate expectation that he had passed the examination. He relies on the case of Diana Kemunto OgegavKenya School of Law & Another (2020) eKLR

23. Concerning his prayer for damages for breach of his constitutional rights, the Appellant relied on the case of Mohammed Feisal & 19othersvHenry Kandie & Others 2018 eKLR. He seeks an award of Kshs. 3million in general damages.

F. The Respondent’s Submissions 24. The Respondent set out the following as the issues for determination:i.Whether the Appellant satisfied the 2nd Respondent’s examination requirement for a pass in the ATP 103, Legal Writing & Drafting;ii.Whether there was any justification by the 1st Respondent in rounding off the marks for the Appellant and whether the impugned decision was reasonable;iii.Whether the 2nd Respondent satisfied the dictates of the principle of legality in coming up with the its decision;iv.Whether the 2nd Respondent violated the Appellant’s right to legitimate expectationv.Whether the prayers and orders sought in the Appeal ought to be awarded.

25. On the first issue, the 2nd Respondent submits that the Appellant did not satisfy the 2nd Respondent’s examination requirement for a pass in ATP 103, Legal Writing & Drafting for the reason that the Council of Legal Education (Kenya School of Law Regulations) 2009 defined a pass as 50% which the Appellant had not attained (he had attained 47. 5% rounded off to 50% according to the 2nd Respondent)

26. On whether there was any justification for the rounding off of marks by the 1st Respondent, the 2nd Respondent submitted that the 1st Respondent had not provided any justification for the same. It described the decision by the 1st Respondent as “grossly unreasonable and lacked legal basis.” The 2nd Respondent relied on the cases of Advanced Gaming Limited V Betting Control & Licensing Board & 2 Others; Safaricom Limited (Interested Party) (2019) eKLR and C R (Suing through Father and Next Friend & 130 Others V Kenya National Examination Council (2017) eKLR which explained what an unreasonable decision was.

27. To answer the question whether the 2nd Respondent had satisfied the dictates of the principle of legality in coming up with the decision, the 2nd Respondent submitted that the decision was grounded on law. On the doctrine of legality, the 2nd Respondent quoted the case of AAA Investments (Pty) Ltd V Micro Finance Regulatory Authority Council & Another

28. Concerning whether the actions of the 2nd Respondent violated the Appellant’s right to legitimate expectation, the 2nd Respondent quoted several cases including the case of National Director of Public Prosecutions V Phillips 2022 (4) SA 60 (W) where the Court listed the ingredients of legitimate expectation as (i) there must be a representation which is clear, unambiguous and devoid of relevant qualification, (ii) that the expectation must be reasonable in the sense that a reasonable person would act upon it (iii) that the expectation must have been induced by the decision-maker and (iv) that it must have been lawful for the decision-maker to make such representation. The 2nd Respondent denied that legitimate expectation would apply in this case as it would be against the law.

29. On the final issue of whether the prayers sought in the Appeal should be granted, the 2nd Respondent submitted that granting the prayers sought would be tantamount to ordering an institution to do that which is against the law. The 2nd Respondent relied on the case of Kenya National Examinations Council V Republic Ex-Parte Kemunto Regina Oura (2010) eKLR. The 2nd Respondent finally submits that no basis has been established for the Appellant’s prayer for damages.

30. The 2nd Respondent concludes by urging the Tribunal to dismiss the Appeal.

G. Analysis and determination. 31. We preface this determination by stating that the relationship between the Kenya School of Law and the Council of Legal Education must come into focus. The 1st Respondent elected not to participate in these proceedings even though they are intricately involved in the events leading to this dispute. They sought to rely on the 2nd Respondent’s position. Curiously, the 2nd Respondent departs from the 1st Respondent’s decision to “round off” the Appellant’s marks.

32. The relationship of the Respondents is one of interdependence as opposed to independence. In this matter, they seem to be in conflict but then decide that the decision must be defended by the 2nd Respond. It is a case of serious contradiction and we wish to invite both Respondents to find a position that assists the Tribunal to make decisions that are fair and based on all material available from both the Respondents as they discharge their respective statutory roles.

33. Turning to the main appeal, we are called to adjudicate a contest where the 1st Respondent has given the Appellant marks that align to his plea that he is qualified to progress to the next stage of his journey to become an Advocate, and the position of the 2nd Respondent that the marks communicated to the Appellant by the 1st Respondent are not acceptable to it.

34. We have considered the rival positions taken by the parties and the robust arguments made to illustrate that the law and facts favour their respective courses.

35. In Kenya Revenue Authority & 2 others v Darasa Investments Limited (2018) eKLR. Here, the Court of Appeal wrote:“Legitimate expectation refers to the principle of good administration or administrative fairness that, if a public authority leads a person or body to expect that the public authority will, in the future, continue to act in a way either in which it has regularly (or even always) acted in the past or on the basis of a past promise or statement which represents how it proposes to act, then, prima facie, the public authority should not, without an overriding reason in the public interest, resile from that representation and unilaterally cancel the expectation of the person or body that the state of affairs will continue. This is of particular importance if an individual has acted on the representation to his or her detriment".

36. Further in Republic v Commissioner of Domestic Taxes & another, ex-parte Kenton College Trust [2013] eKLR, the Court set out the criteria to determine whether a person has a legitimate expectation against a public authority. The criteria is set out below:a.The representation underlying the expectation is clear, unambiguous, and devoid of relevant qualification.b.The expectation is reasonable.c.The representation was made by the decision-maker; andd.The decision-maker had the competence and legal backing for making such representation. [Emphasis Ours].

37. The impugned letter dated 16th February 2018 (“the impugned decision”) reads in part as follows:“CLEARANCE OF BAR CANDIDATES: ADM NO. 20131163: ROUNDED OFF MARKS ATP 103 LEGAL WRITING AND DRAFTING…Records from the Kenya School of Law show that the mark obtained in ATP 103, Legal Writing & Drafting has been rounded off from 47. 5% to 50%...Council does not clear candidates with outstanding units in the Bar examination…

38. The decision by the 1st Respondent is clear and unequivocal. It enjoys a presumption of validity. The 2nd Respondent has not attacked the powers vested in the 1st Respondent to make that decision. Upon the re-mark of the two papers, the Appellant was issued with a letter dated 22nd October 2014 informing him that he had passed the 2 units.

39. The transcript issued thereafter showed that he had attained a mark of 50 in ATP 103, Legal Writing & Drafting. The Appellant thereafter continued with his quest to pass all his units and re-sat the remaining two units which he eventually passed. He relies, rightly so, on this decision to make his case that the refusal to allow him to proceed on his quest is unreasonable and illegal.

40. The law prohibits the taking of actions such as the one taken jointly by the Respondents without introspection about the repercussions of their conduct. It is apparent that the contradictory positions taken by the Respondents, the failure by the 1st Respondent to defend its position and the 2nd Respondent’s departure from the 1st Respondent’s position, coupled with the 1st Respondent’s decision not to participate in the adjudication of this dispute has put the Appellant in a most awkward position. In Msagha vs. Chief Justice & 7 Others Nairobi HCMCA No. 1062 of 2004 [2006] 2 KLR 553 the High Court expressed itself as follows:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonisation of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision.” [Emphasis Ours].

41. The Appellant’s legitimate expectations have clearly been breached, in line with the cited excerpt above, as pronounced by the Curt of Appeal in Kenya Revenue Authority & 2 others v Darasa Investments Limited (2018) eKLR.

42. Further, it is our finding that by dint of the 1st Respondent’s decision, acquiesced by their failure to depart from it in these proceedings, the Respondents have jointly breached the Appellant’s legitimate expectations. In Republic v Commissioner of Domestic Taxes & another, ex-parte Kenton College Trust [2013] eKLR, the Court set out the criteria to determine whether a person has a legitimate expectation against a public authority. The criteria is set out below:I.The representation underlying the expectation is clear, unambiguous, and devoid of relevant qualification.II.The expectation is reasonable.III.The representation was made by the decision-maker; andIV.The decision-maker had the competence and legal backing for making such representation. [Emphasis Ours].

43. Today, we must speak on the apparent lack of harmony between the Respondents. We make a finding that they need to harmonise their relationship for the benefit of legal education in Kenya. Publicly taking contrary positions, undermines confidence in both institutions and their ability to deliver on their statutory mandate. We deprecate the treatment accorded to the Appellant in this matter. The Appellant has elaborately laid out his quest to have the decision-makers make a decision that is fair, timely and legal.

44. The Appellant has been treated in a capricious and unfair manner. We must, as dictated by constitutional imperatives, stature and ideals of fairness, censure any litigant who comes before us and rationalises a decision that is arrived at in a manner that offends constitutional and statutory imperatives. The Appellant has had to wait for resolution of the issue for years yet one body has cleared him and the other refuses to accept and own that decision. We reiterate that there is no contest to the 1st Respondent’s decision. Only a loud silence.

45. Again, with tremendous respect, these bodies embody apogees of teachings in equity and fairness, they must be asked to administer them as the first steps and lessons in unleashing persons expected to be proponents of these same ideals, to the world. We have said enough to show that the impugned decision, must be frowned upon. A frown is inadequate in the circumstances. The decision fails every test of constitutional, and statutory scrutiny.

46. Section 35 of the Legal Education Act provides:Powers of Tribunal on appealUpon hearing an appeal the Tribunal may—(a)confirm, set aside or vary the order or decision in question;(b)exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or(c)make any other order, including an order, for costs, as it may consider just.

47. Prayers A, B and C as couched by the Appellant in his appeal cannot be granted by the tribunal as they are outside its jurisdiction.

48. This was an unnecessary dispute. The Respondents have acted unfairly and illegally. We consider this an appropriate matter to make an order on costs against the Respondents.

Disposition. IT IS DECREED:-a.THAT the appeal is allowed.b.THAT the decision contained in the letter dated 16th February 2018, declining to process the Appellant’s name for gazettement should is set aside.c.THAT the Respondents are ordered to gazette, or take such steps to process the Appellant’s gazettement forthwith.d.THAT the Respondents are ordered to pay costs to the Appellant assessed at the sum of Kshs. 50,000. 00. e.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.

49. It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 4TH 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