[2022] KELEAT 853 (KLR)

Mucheke v Kenya School of Law (Appeal E026 of 2022) [2022] KELEAT 853 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KELEAT 853 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E026 of 2022

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

December 16, 2022

Between

Isaiah Munoru Mucheke

Appellant

and

Kenya School of Law

Respondent

(Being an appeal against the decision of the Kenya School of Law declining admission to the Advocates Training Programme during the 2022/23 academic year as communicated on the 25th. April, 2022 by Dr. H. K. Mutai – Director/Chief Executive Officer)

Judgment

A. Introduction 1. The appellant herein, Isaiah Munoru Mucheke filed a Memorandum of Appeal dated May 12, 2022 before this tribunal against the whole of the decision of the respondent Kenya School of Law issued on April 25, 2022. The appeal was accompanied by a certificate of urgency and an affidavit in support of the urgency sworn by the appellant on the said May 12, 2022. The appellant filed a further supporting affidavit sworn on September 7, 2022.

2. Upon being served with the appellant’s pleadings, the respondent filed a replying affidavit sworn on June 30, 2022 by Mr. Fredrick Muhia, its principal officer, academic services.

3. The appellant appeared in person, while the respondent was represented by its Director/Chief Executive Officer, Dr. Henry K. Mutai.

4. Both parties appeared for directions before the Tribunal and consented to having the matter disposed to by way of written submissions.

B. The Appeal and Appellant’s Submissions 5. The appellant appealed the decision of the respondent dated April 25, 2022, rejecting his application for admission to the Advocates Training Program (“ATP”) for the academic year 2022/2023. He challenged this decision on the grounds that:i.He was a holder of Bachelor of Laws degree from the University of Nairobi which was a recognized university in Kenyaii.He had met the minimum qualification for admission to ATP as provided in lawiii.Section 1(a) and (b) of the second schedule to the Kenya School of Law Act apply to different categories of applicants and he falls under 1(a) therefore he was qualified to be admitted to the ATPiv.The mandate of the respondent was to offer post graduate training in law and not investigate the acquisition of the law degree in Kenya which according to the appellant was the mandate of the Council for Legal Education

6. The appellant sought the following orders from the Tribunal:i.The decision of the Director/Chief Executive Officer of the respondent dated April 25, 2022 be quashedii.The appellant be forthwith admitted to the ATP for the academic year 2022/2023iii.The tribunal in exercise of its jurisdiction to make other orders as it deems fitiv.Costs of the appeal be awarded to the appellant.

7. From the evidence presented by the appellant before this Tribunal, the appellant had the following educational qualifications:i.A copy of his Kenya Certificate of Secondary Education showing that he had attained a mean grade of B-(minus), a D+(plus) in English and a B-(minus) in Kiswahili.ii.A Bachelor of Education (Arts) Second Class Honours (Lower Division) from Moi Universityiii.Certified Public Secretaries Final Examination certificateiv.Certified Public Accountants Final Examination certificate andv.Bachelor of Laws Second Class Honours (Upper Division) from Nairobi University

8. Upon graduation with the Bachelor of Laws degree, the appellant applied to the respondent for admission to the ATP. On March 25, 2022, the respondent replied to the appellant declining to admit him to the program. The letter read as follows:“Mr. Isaiah Munoru MuchekePO. Box 42748-00100, NairobiDear Mr. Mucheke,RE: 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 the high school qualifications for admission to study law.Thank you.”

9. The appellant then appealed against this decision vide a letter dated March 28, 2022 addressed to the Director/Chief Executive Officer of the respondent which appeal was responded to vide a letter dated April 3, 2022 from the respondent. The respondent informed the appellant that his application was not successful because he did not have the minimum qualification.

10. The appellant appealed again on April 3, 2022. To which the respondent replied on April 25, 2022 stating as follows:“Mr. Isaiah Munoru MuchekePO. Box 42748-00100, NairobiDear Mr. Mucheke,RE: ADMISSION TO THE KENYA SCHOOL OF LAW-ACADEMIC YEAR.Reference 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):English D+; Kiswahili B-(minus)Does not meet the high minimum KCSE gradesThank you.”

11. Thereafter, the appellant filed this appeal.

12. In his written submissions dated July 13, 2022, the appellant addressed 3 issues:i.The jurisdiction of the Tribunalii.The minimum requirements for admission to ATPiii.Whether the appellant is entitled to the reliefs sought

13. On jurisdiction, the appellant relied on the preamble to the Legal Education Act, 2012 which provides for the establishment of the Council of Legal Education, the legal education appeals tribunal, the regulation and licensing of legal education providers and for connected purposes. He submitted that section 3 of the said Act provides for its objectives one of them being promoting legal education and maintenance of the highest standards in legal education and to provide a system to guarantee the quality of legal education and legal education providers. He also relied on section 8 of the Legal Education Act, 2012 which provided one of the functions of the Council for Legal Education as the regulation of legal education and training. He also relied on section 31 (1) of Legal Education Act, 2012 that provided for the jurisdiction of the Tribunal to hear appeals from any party, or reference from the Council on any matter relating to the Act. He urged the Tribunal to consider the matter of its jurisdiction on this broad perspective. He further relied on several decisions of the Tribunal on this issue.

14. On the issue of qualifications for admission to ATP, the appellant submitted that he was qualified under section 16 of the Kenya School of Law Act, 2012 as read together with section1(a), having attained Bachelor of Laws degrees from University of Nairobi.

15. In his further submissions, the appellant addressed the impact of the decision of the Court of Appeal in Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others to his appeal. He relied on Raila Amolo Odinga &another v Independent Electoral and Boundaries Commission & 4others (2017) eKLR and submitted that the term “or” should be interpreted as disjunctive.

16. The appellant further deponed that he searched for the minimum admission requirements for a Bachelor of Law’s Degree at the University of Nairobi and found that one of the minimum requirements was “ a degree in any field from a University recognized by the senate” He therefore concluded that he was entitled to the reliefs sought.

C. The Response to the Appeal and the respondent’s Submissions 17. The respondent opposed the appeal on the grounds that its mandate related to training of persons for purposes of the Advocates Act, cap. 16 and thus it offers the Advocates Training Programme. It contends that matters of admission to the Programme are exclusively provided for in section 16 of the Kenya School of Law Act, no. 26 of 2012 and the Tribunal was bereft of jurisdiction to deal with the appeal as it is established under the Legal Education Act, 2012.

18. It contends that it considered the appellant’s application to the Programme and found that he failed to meet the eligibility criteria provided for in section 16 of its Act read together with section 1 of the second schedule to the said Act. It further contends that the minimum grades for admission to the Programme are a mean grade C+ (plus) in the Kenya Certificate of Secondary Education (KCSE) with a B plain in English or Kiswahili languages which the appellant did not possess. It takes up an exception to the grant of admission to the appellant on the basis that failure to read in the requirements in section 1 (b) of the second schedule to the Kenya School of Law Act, 2012 into section 1 (a) therein would amount to discrimination. It finally contends that the appellant was relying on academic progression which is not provided for in the Kenya School of Law Act, 2012.

19. The respondent submits that the position taken in its decision is well aligned with the findings in the authority in Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal no. 108 of 2009 in which the Court of Appeal pronounced itself as follows;“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed.”

20. respondent submits that it would be discriminatory to admit a student who does not meet the basic qualification for joining the Advocates Training Programme. The respondent then submits that the conjunction ‘or’ in sections 1 (a) and 1 (b) to the second schedule to the Kenya School of Law Act, 2012 should be read conjunctively as requiring both applicants from recognized Universities in Kenya and those from foreign Universities to hold similar qualifications. The respondent relies in the decision in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR in which Justice Mwita held;“That KSL is the institution mandated to train persons to become professional Advocates and that mandate is exercisable pursuant to the KSL Act, 2012 and regulations made there-under. The KSL Act 2012 in conferring that mandate to KSL does not make reference to any other Act in so far as admission requirements to the ATP are concerned. In that regard, section 16 of the KSL Act is clear and unequivocal that qualifications for admission to the ATP are those contained in the second schedule to the Act.”

21. The respondent finally, submits that academic progression is not provided for in the Kenya School of Law Act, 2012 thus the respondent does not qualify for admission based on the qualifications in the Act. It also contends that the respondent cannot ignore an examination of the appellant’s Kenya Certificate of Secondary Education qualifications as this was not the intention of Parliament as was this to happen, it would lead to a dual admission criteria for local Universities and foreign Universities. This would create an outright absurdity. It relies on the decision Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR where it was stated;“In that regard, therefore, applying a holistic reading of a statute persons falling under paragraphs 1 (a) of the schedule to KSL Act, must have obtained a mean grade of C+ (plus) with B (plain) in English or Kiswahili languages to have qualified to join LLB Programme in local Universities. That is why there is reference of this requirement in paragraph 1 (b) (ii) of the schedule.”

D. Supplementary submissions. 22. While the appeal was pending the Tribunal became cognizant of the pronouncement in Nairobi Court of Appeal Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A which was addressing the admission criteria to the Advocates Training Programme. Consequently, it accorded the parties an opportunity to lodge supplementary submissions as regards the implications of the decision therein vis - a vis this appeal.

23. The appellant submitted that the Court of Appeal at page 29 of the judgment had held as follows;“It is our considered view that the conjunction ‘or’ in sections 1 (a) and 1 (b) to the Second Schedule of the KSL Act, should be read disjunctively as requiring both applicants from recognized Universities in Kenya and those from foreign Universities to hold similar qualifications.”

24. The Court went on further to render itself as follows;“We are of the view that with the use of semi- colon between 1 (a) and 1 (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 and without Kenya.”

25. The appellant submitted that the pronouncement was a violation of the doctrine of separation of powers as the Court had proceeded to legislate which was a function of Parliament as opposed to the Judiciary. It was the appellant’s view that Parliament well understood the Kenyan education system and the diverse nature of the foreign education systems in setting the qualifications in section 1 (a) and 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012. He submitted that the judgment of the Court of Appeal in finding that section 1 (b) requirements were to be read into 1 (a) was based on no law. The Court itself had agreed that the said law was to be read disjunctively but failed to adopt the position of the Supreme Court of Kenya in Raila Amolo Odinga &another v Independent Boundaries and Elections Commission & 4others, (2017) eKLR. In the said decision the court while interpreting the Elections Act had held that where the word ‘or’ appears in legislation a disjunctive interpretation was to be accorded. He implored the Tribunal to ignore the Court of Appeal judgment and adopt the interpretation of the Supreme Court.

26. The appellant also sought to draw an analogy as to how the American education system required one who undertakes a Bachelor of Laws degree to have a degree in any field such as mathematics, medicine or even education. It was his view that with his 19 years experience in employment he was duly qualified to study the LL.B degree.

27. The respondent submitted that the Court of Appeal had agreed with its submissions as initially made in this appeal. Further, adherence to precedents ought to be the norm. It relied in the decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4others, (2013) eKLR in which Justices Mutunga (CJ), Rawal (DCJ), Tunoi, Ibrahim, Ojwang, Wanjala, Ndungu, (SCJJ) held;“The emerging lesson is that the decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, will stand as the binding reference-point in the norms governing the judicial process. Such a position is vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustain the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provide sanctity for the legitimate actions of the people.”

28. It also relied in the decision in Kibaki v Moi, (1999) eKLR for the proposition that the High Court and even this Tribunal was bound to follow the decision of the Court of Appeal even when it has its reservations on the same which it may express but however, unless the decision can be distinguished it is bound to follow the same. The respondent sought to reinforce the position by relying in the decision in National Bank of Kenya Ltd v Wilson Ndolo Ayah, (2009) eKLR in which Justices Tunoi, Bosire and O’Kubasu JJ.A as they then were held;“If for any reason a Judge of the High Court does not agree with any particular decision of this Court, it has been the practice that one expresses his views but at the end of the day follows the decision which is binding on that court. The High Court has no discretion in the matter.”

E. Analysis and determination. 29. The matter of jurisdiction has been taken up by the respondent contending that the dispute before the Tribunal involves a matter of admission to the Advocates Training Programme which is exclusively regulated by the Kenya School of Law Act, 2012. The respondent also contends that the Tribunal having been established under the Legal Education Act, 2012 it lacks powers to deal with the decision to exclude the appellant from admission to the Programme. The Tribunal will proceed to determine the issue in accordance with 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.”

30. The material on record to determine the matter include the appellant’s academic qualifications of an undergraduate degree from the Moi University prior to enrolling for the LL.B degree at the University of Nairobi, his admission letter to the LL.B degree and his experience in employment at a trade union. The appellant secured admission to the University of Nairobi on the February 12, 2018 to undertake the LL.B degree. The set of qualifications for admission to the undergraduate Bachelor of Laws degree by then were based on regulation 5 of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The same provided as follows;“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.”

31. The said Regulations were made under the Legal Education Act, 2012 which establishes the Council of Legal Education as well as the Tribunal. The Tribunal by section 31 of the said Act is empowered to inquire into any matter under the Act. Based on the fact that the dispute before the Tribunal involves whether the appellant was qualified to be granted admission to undertake the LL.B degree based on his degree from Moi University is a matter within the juridical mandate and province of the Tribunal to hear and determine by way of this appeal. The Tribunal stands well guided by section 31 (1) of the Legal Education Act, 2012 which provides;“The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the council or by any committee or officer of the council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”

32. The respondent has also taken up the matter of the appellant relying on academic progression to gain admission into the Advocates Training Programme. The Tribunal notes that the said progression is not provided for under the establishing law of the School. However, the issue of academic progression is well captured in the law establishing the Tribunal at section 8 (3) of the Legal Education Act, 2012. The same is provided for in the following terms;“8 (3) In carrying out its functions under subsection (2), the council shall:-a.Make regulations in respect of requirements for admission of persons, seeking to enroll in legal education programmes;b.….c.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;

33. The appellant’s application to the Advocates Training Programme was rejected on the basis that he failed to meet the minimum Kenya Certificate of Secondary Education qualifications in English and Kiswahili languages. The Tribunal finds that the decision of the respondent to the said extent is correct as the appellant failed to meet the minimum grade of a B plain in English or Kiswahili languages at the Kenya Certificate of Secondary Education.

34. The tribunal notes that the appellant met the qualification criteria set out in the law for admission to the undergraduate LL.B degree course at the University of Nairobi as it existed in 2018. The subsidiary legislation as formulated by the interested party. Regulation 5 (1) (c) of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016at section 5(c) provided for a degree from a recognized university as one of the means of gaining admission to the LL.B degree in Kenya and of which the appellant possessed when he was seeking admission to study the course. The Tribunal is well aware that the Regulations were declared unconstitutional on December 21, 2021, but the declaration was subject to crystallized actions not being affected.

35. In this matter the crystallized action based on the Regulations was the admission of the appellant to undertake the LL.B degree in 2018, before the said regulations were invalidated. The Tribunal is so guided by the decision in Javan Kiche Otieno &another v Council of Legal Education, (2021) eKLR in which Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ. A held as follows in paragraphs 29, 34, 35 and 47 of the judgment;“29. Beginning with the legality of the impugned regulations, the appellants’ claim against the impugned regulations on the one hand is that they came into effect on the date they were gazetted. Conversely, they argue that the respondent was not legally empowered to enact them because section 46 (1) of the Legal Education Act, 2012, save for sub-section (f) thereof was deemed to have been repealed by section 5 of the Universities Act, No. 42 of 2012 and sections 4, 8 and 29 of the Kenya National Qualifications Framework Act, 2014; that further the respondent was not properly constituted at the time of their enactment, and they were not provided an opportunity to participate in the workshops. In effect, what the appellants are contending is that the impugned regulations were improperly enacted and so could not be used as a basis for denying them admission to the Kenyan Bar….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.”

36. The Court of Appeal indeed held that the declaration of invalidity of the Regulations did not affect crystallized actions. As stated, the declaration of invalidity was made in December, 2021 which was long after the appellant had obtained admission to the LL.B degree. The Tribunal is guided by the decision in Nairobi Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at page 27 rendered itself as follows on the said matter;“We are alive to the fact that the parties relied on the said regulations as they were then in force before the Court of Appeal declared the same to be invalid for want of compliance with the Statutory Instruments Act, 2013 on December 21, 2021 in the case of Javan Kiche Otieno & another v Council of Legal Education [2021] eKLR. But hasten to add that such invalidation could not apply retrospectively.”

37. In this appeal, the regulations though invalidated for want of compliance with the prescriptions of the Statutory Instruments Act, 2013 accorded the appellant an opportunity to gain admission to the LL.B degree with another prior degree.

F. Disposition.a.That the decision of the Director of the Kenya School of Law dated the April 25, 2022 declining the appellant’s application to the Advocates Training Programme as communicated by Dr. H. K. Mutai Director of the Kenya School of Law is quashed.b.That the appellant be admitted to the Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.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 16th day of December, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.

____GILBERT ONYANGO - REGISTRAR