[2023] KELEAT 377 (KLR)

Munene v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E017 of 2023) [2023] KELEAT 377 (KLR) (19 May 2023) (Judgment)

Neutral citation: [2023] KELEAT 377 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E017 of 2023

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

May 19, 2023

Between

Alex Gikandi Munene

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

(Being an appeal against the decisions of Dr. H. K. Mutai – Director of the Kenya School of Law dated the 4{{^th}} January, 2023 declining admission to the Advocates Training Programme during the 2023/24 academic year and subsequently affirming the same on the 18{{^th}} January, 2023 and 24{{^th}} January, 2023)

Judgment

Introduction. 1. Alex Gikandi Munene instituted an appeal against the decisions of the respondent, the Kenya School of Law, denying him admission to the Advocates Training Programme and subsequently affirming the same. The Respondent filed a response through Mr. Fredrick Muhia – the Academic Services Manager at the Kenya School of Law. In the appeal, the Council Of Legal Education is an Interested Party. It did not file any response. The appeal was disposed of by way of written submissions. The interested party through its advocate relied on the response and submissions made by the Respondent.

The appeal. 2. The Appellant sat for the Kenya Certificate of Secondary Education in the year 2012 at the Mwakitawa Secondary School and attained a mean grade of a C (plain) with grades of C + (plus) in English language and C (plain) in Kiswahili language. He was admitted to the Mount Kenya University where he pursued a Diploma in Law and graduated on the 11th December, 2015 with a grade of Credit I. He was then admitted to the same University to pursue a Bachelor of Laws degree and graduated on the 9th December, 2022 with a Second Class Honours Upper Division. The Appellant placed an application for admission to the Advocates Training Programme (ATP) offered by the Respondent and on 4th January, 2023 a decision rejecting the same was reached in the following terms;“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 followingreason(s):Applicant has not met the minimum threshold forKCSE grades. Letter admitting applicant into LLBnot attached.Thank you.Yours Sincerely,Dr. Henry K. MutaiDIRECTOR/CHIEF EXECUTIVE OFFICER.”

3. On the 7th January, 2023, the Appellant submitted his admission letter to the LL.B degree programme dated the 5th January, 2023 to the Respondent. The Appellant was required to report to the University and register on 3rd January, 2017 and his last date to do so being the 6th January, 2017. In the letter forwarding the said admission letter, he sought to justify his eligibility to the Advocates Training Programme on the basis that he was admitted to the LL.B degree in the year 2017, he was entitled to the benefit of academic progression and he had already secured admission into the LL.B degree before the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were declared to be none compliant with the requirements of the Statutory Instruments Act, 2013.

4. On the 18th January, 2023, the Respondent once again communicated to the Appellant on similar terms as it had done 4th January, 2023. The relevant extract of the letter being as follows;“It is regretted that your application was not successful for admission due to the following reason(s):Applicant has not met the minimum threshold for KCSE grades. Letter admitting applicant into LLB not attached.Thank you.Yours Sincerely,Dr. Henry K. Mutai,DIRECTOR/CHIEF EXECUTIVE OFFICER.”

5. On the 19th January, 2023 the Appellant once again communicated to the Respondent seeking to justify his eligibility to the Advocates Training Programme on similar grounds to those contained in his letter of the 7th January, 2023 but in addition, he indicated that his journey on academic progression was well founded as he commenced on a proper footing by meeting the minimum grades for admission to the Diploma in Law Programme before proceeding to the LL.B degree.

6. The Respondent on the 24th January, 2023 declined to admit the Appellant to the Advocates Training Programme in the following terms;“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):Not qualifiedThank you.Yours Sincerely,Dr. Henry K. Mutai,DIRECTOR/CHIEF EXECUTIVE OFFICER.”

7. The Appellant then proceeded to lodge an appeal with the Tribunal. His principal grounds of challenge against the decisions as taken being that he attended a recognized University in Kenya to undertake the Bachelor of Laws degree and he ought to be subjected to the admission criteria in section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012 only and not to section 1 (b) thereof, He was admitted to the LL.B degree programme before the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were declared unconstitutional on the 21st December, 2021, he was entitled to the benefit of academic progression and he was denied the right to education.

The response to the appeal. 8. 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. The application by the Appellant failed to meet the required admission requirements of a mean grade of a C + (plus) and a B (plain) in English and Kiswahili in the Kenya Certificate of Secondary Education. 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. The Respondent further contended that by allowing the Appellant to rely on academic progression in gaining admission to the Advocates Training Programme it would result in the application of double standards and discrimination. The Respondent also contended that the Court of Appeal had upheld its interpretation of the law of admission to the Advocates Training Programme.

The submissions by the parties. 9. The Appellant submitted that he was qualified for admission to the Advocates Training Programme offered by the Respondent by dint of section 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012. He had obtained Bachelor of Laws degree from a recognized University in Kenya. He also relied on academic progression as provided for in section 8 of the Legal Education Act, 2012. He submitted the date of the declaration on the invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 applicable in consideration of the application of the said law was the 21st December 2021 when the Court of Appeal pronounced itself on the appeal.

10. The Respondent 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, of 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 in the decision in Republic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR .

11. On admission, the Respondent submits that the process of admission to the Respondent’s Advocates Training Programme (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.”

12. 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 of preventing 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.”

13. The Respondent contends that the establishment of two routes for consideration of applications to the Programme amounts to discrimination. It relies on Odunga J in Sollo Nzuki v Salaries and Remuneration Commission & 2 Others, (2019) eKLR sought to make a determination of what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination. The Respondent relied in the pronouncement by 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. Mohamed and Kantai JJ.A held;“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 the 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.”

Analysis and determination. 14. The issue of the jurisdiction of the Tribunal has been taken up severally by the respondent, and 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 never availed a contrary finding on the same from a superior court. 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 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.”

15. 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;...”

16. 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.”

17. 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.”

18. 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 interested party by the legislature. The Respondent, while acknowledging that the Appellant relies on academic progression states that 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.

19. On the appeal, 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.

20. The position of the Appellant may well have been the law then before the findings 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 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.”

21. With a conjunctive interpretation being adopted, the respondent’s decision as taken declining admission to the Advocates Training Programme of the Appellant for failure to meet the minimum requirements of the Kenya Certificate of Secondary Education examinations appears sound.

22. Nonetheless, the Appellant has extrapolated his appeal by arguing that he is entitled to the benefit of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Tribunal 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.

23. The Council of Legal Education had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree, the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;“5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall 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.”

24. Based on the said Regulations, the Appellant qualified for admission to the Bachelor of Laws degree at Mount Kenya University as he had a Diploma in Law with a grade of Credit I. However, 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.”

25. With the said pronouncement which was a declaration of invalidity of the law, the said Regulations, which contained the formulated criteria for admission which embodied a Diploma in Law with a minimum of a Credit, the same 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.”

26. The Appellant has in his grounds of appeal indicated that the date of the invalidity of the Regulations is the 21st December, 2021. The Tribunal reiterates that the date of invalidity of the Regulations in issue, is the 30th January, 2018 when the pronouncement by Honorable Justice Maureen Odero was made. The decree of the appellate court as entered was simply affirming the superior court’s declaration 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.

27. 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 ans whether 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 5th January, 2023 from Mount Kenya University. By the admission letter, the Appellant was required to report to the University and register on 3rd January, 2017 and his last date to do so being the 6th January, 2017. It is not clear as to whether the Appellant registered within the time spans stipulated in the said offer of admission. Also, it was not clear as to why if an admission was granted in the year 2017, the letter of admission is dated the 5th January, 2023. The Appellant did not present before the Tribunal his academic transcripts to enable it decipher when he commenced his studies and if it was before the declaration of invalidity. In the absence of the said material it becomes a tall order for the Tribunal to fully inquire into the matter based on the jurisdiction accorded to it under section 31 (1) of the Legal Education Act, 2012. Before the promulgation of the Constitution of Kenya, 2010, the inquiry would have terminated at that point with a finding of a dismissal of the appeal. However, the Tribunal notes that the Appellant in his letter dated the 7th January, 2023 to the Respondent indicated that he had submitted his transcripts for the LL.B degree to it. Accordingly, in the spirit of upholding the tenets on dispensation of justice under article 159 (2) (d) of the Constitution of Kenya, 2010 which ordain that justice shall be administered without undue regard to procedural technicalities, the Tribunal renders itself to the effect that substantial justice shall be achieved by remitting this matter to the Respondent for reconsideration of the appellant’s application to the Advocates Training Programme.

28. The Tribunal also directs that a serious consideration be accorded to the appellant’s application to the Advocates Training Programme as opposed to that as communicated in the letter dated the 24th January, 2023 by the Respondent simply stating;“…It is regretted that your application was not successful for admission due to the following reason(s)Not qualified.”

29. The Respondent ought to address the application based on the provisions of the law in section 17 (2) of the Kenya School of Law Act, 2012 which provides;“The School shall consider an application submitted under paragraph (1) and if it is satisfied that the applicant meets the admission criteria, admit the applicant to the School.”

30. The Tribunal finds that with the trend of the Judge made law on the application of the declaration of invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 the criteria to be considered also embodies the extent to which an applicant to the Advocates Training Programme such as the Appellant can derive benefit from the cutoff date in terms of crystalized actions in Javan Kiche Otieno & Another supra at paragraph 47 therein. In this matter, the Respondent failed to address itself in the respective communications as to the applicability of the declaration of invalidity to the appellant’s application for admission to the Advocates Training Programme or otherwise.

Disposition. 31. IT IS DECREED:-a.THAT the decisions of the Respondent declining the application for admission of ALEX GIKANDI MUNENE to the Advocates Training Programme during the 2023/24 academic year as communicated by the Respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law dated the 4th January, 2023, the 18th January, 2023 and 24th January, 2023 and dated the 9th January, 2023 are all set-aside.b.THAT in lieu of the said decisions, the application by ALEX GIKANDI MUNENE for admission to the Advocates Training Programme is remitted to the Respondent for reconsideration.c.THAT the Respondent do reconsider the application for admission to the Advocates Training Programme as made by ALEX GIKANDI MUNENE by way of determining his actual admission date to the Bachelor of Laws degree at the Mount Kenya University as against the existing eligibility criteria that existed as at 30th January, 2018. d.THAT the said exercise be undertaken within the next 14 days as of the delivery of this judgment.e.THAT should the Appellant not have submitted any requisite documentation to aid the exercise of reconsideration he is accorded the liberty to do so forthwith.f.THAT each party to bear its own costs of the appeal.g.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 19TH DAY OF MAY, 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