[2023] KELEAT 646 (KLR)

Munene v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E017 of 2023) [2023] KELEAT 646 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KELEAT 646 (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

October 13, 2023

Between

Alex Gikandi Munene

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

Ruling

(Being an application seeking to set-aside the decision dated 3rd August 2023 declining admission to the Advocates Training Programme after the application was remitted by the Tribunal to Kenya School of Law for reconsideration) A. Introduction and background. 1. The appellant, Alex Gikandi Munenehas filed a Notice of Motion application dated 17th August 2023 seeking the following orders from the Tribunal:a.The decision of the Chief Executive Officer of the Respondent dated 3rd August 2023 be set aside and quashed;b.The Honourable Tribunal be pleased to compel the Respondent to admit the Applicant to the Advocates Training Programme for the academic year 2023/2024;c.The Applicant be forthwith admitted to the ATP for the academic year 2023/2024;d.The Tribunal in exercise of its jurisdiction makes other orders as it deems fit and expedient.

2. Together with the above application, the Appellant filed a Supporting Affidavit sworn by him on 17th August 2023 together with supporting documents.

3. The Respondent in reply filed a Replying Affidavit sworn by Mr. Fredrick Muhia the Principal Officer of Academic Services on 5th September 2023.

4. The Interested Party did not file any documents in the matter nor participate in the proceedings.

B. The Motion. 5. The Appellant contends that he submitted his application for admission into the Advocates Training Programme of the Respondent on 26th November 2022. The said application was rejected by the Respondent because he had not met the minimum Kenya Certificate of Secondary Education grades as prescribed in the Second Schedule of the Kenya School of Law Act.

6. The Appellant appealed this decision severally to the Respondent who rejected his appeals.

7. The Appellant then filed an appeal before this Tribunal and on 19th May 2023, the Tribunal delivered its judgment as follows:a.The decision of the Respondent declining the application of Alex Gikandi Munene for admission into the Advocates Training Programme is hereby set aside;b.In lieu of the said decisions, the application by Alex Gikandi Munene is remitted to the Respondent for reconsideration;c.The Respondent to reconsider the application for admission by Alex Gikandi Munene by way of determining his actual admission date to the Bachelor of Laws degree at Mount Kenya University as against the eligibility criteria that existed as at 30th January 2018;d.The said exercise be undertaken within the next 14 days of the delivery of this judgment;e.Should the Appellant not have submitted any requisite documentation to aid the exercise of reconsideration, he is at liberty to do so forthwith.

8. Upon the delivery of the said judgment, the Appellant wrote to the Respondent on 26th May 2023 providing copies of his KCSE certificate, his Diploma in Law certificate, his LL.B Admission Letter dated 16th January 2017 from Mount Kenya University, his academic transcripts and his LL.B degree certificate for consideration.

9. The Respondent responded to the Appellant on 3rd August 2023 declining to admit him to the Advocates Training Programme. The Respondent’s letter read in part as follows;“…..Following the judgment of the Tribunal in LEAA 017 of 2023 requiring the School to reconsider your application, we wish to state as follows:In reconsidering your application, the following were taken into account:1. The Court of Appeal in deciding the appeal COA E472 of 2021, did not distinguish between the Applicants based on admission dates;2. The Court of Appeal determination, did not consider any progression and declared all the respondents to be unqualified to join the Advocates Training Programme regardless; and3. That the Regulations do not override the provisions of statute.Consequently, we regret that after reviewing your application as informed by our understanding of the Court of Appeal decision and the laws, it is our finding that you are not qualified for admission to the Advocates Training Programme….”

10. The Appellant thus filed the current motion with this Tribunal against the said decision.

C. The Response to the Motion. 11. The Respondent contends that as a result of the judgment of the Tribunal of 19th May 2023, it reconsidered the Appellant’s application for admission into the Advocates Training Programme. It considered all the facts and the law.

12. The Respondent further contends that the Appellant cannot join the 2023/2024 cohort as the admission window closed in February 2023.

13. The Respondent also contends that the threshold for contempt proceedings has not been met.

14. Finally the Respondent states that the Appellant is not qualified for admission to Advocates Training Programme and that the Respondent was right in declining to admit him.

D. The Submissions. 15. The Appellant relied on its written submission dated 22nd September 2023. The Tribunal did not find any written submissions filed by the Respondent in the matter.

16. In his Submissions, the Appellant isolated two issues for determination:a.Whether the Tribunal has jurisdiction to hear the matter; andb.Whether the Respondent’s decision dated 3rd August 2023 denying the Appellant admission into the Advocates Training Programme is in disregard of the judgment of the Tribunal dated 19th May 2023.

17. With due respect to the Appellant, the jurisdiction of the Tribunal was not in contention in the matter.

18. The Tribunal finds that the following issues for determination stand out in this matter:a.Whether the Appellant is qualified for admission into Advocates Training Programme?b.Whether the orders sought by the Appellant should be granted by this Honourable Tribunal?

E. Analysis and determination. 19. The judgment of the Tribunal as delivered in this matter remitted the appellant’s application to the Advocates Training Programme for reconsideration and obligated the respondent undertake the exercise while having regard to the existing admission criteria as at 30th January, 2018 to the Programme. In undertaking the said exercise the respondent was to establish the appellant’s admission date to the undergraduate LL.B degree course at the Mount Kenya University. The appellant placed before the respondent his admission letter to the LL.B degree course at the Mount Kenya University dated the 16th January, 2017.

20. The Tribunal notes that the respondent’s decision as taken rejecting the admission failed to accord consideration to the germane findings of the Tribunal in this appeal and the Court of Appeal in Javan Kiche Otieno & another v Council of Legal Education, [2021] eKLR. Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJA at paragraph 47 which held;“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"The Tribunal pursuant to the doctrine of stare - decisis adopted the above position and rendered itself as follows;Having regard to this appeal, the crystalized action would entail a consideration of the point at which the appellant secured admission to the Bachelor of Laws degree programme if it was before the time the decree of invalidity of the Regulations was entered by the Superior Court on the 30th January, 2018. In this matter, the appellant placed before the Tribunal an admission letter dated the 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 date of admission was 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. ”

21. The respondent did not accord consideration to the aspect of a crystallized action and retrospective application of the declaration of invalidity, as directed by the Tribunal. In the Tribunal’s respectful view the respondent opted to isolate the parts of the judgment of the Court of Appeal in Nairobi Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 others by Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A which according to it’s view would have rendered the appellant in admissible to the Advocates Training Programme devoid of any consideration to the finding of the appellate court in two decisions that barred the application of the invalidity to crystallized actions being the Javan Kiche decision and Otene decisions supra. In the Otene decision, the appellate court addressed the aspect of retrospective application of the invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 to crystallized actions and held that it could not apply retrospectively.

22. The Tribunal accordingly finds that the respondent failed to accord consideration to the aspect of a crystallized action and retrospective application of the declaration of invalidity to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as intially held by the superior court by Justice Maureen Odero on the 30th January, 2018 in the authority in Javan Kiche and affirmed by the Court of Appeal and subsequently in the Otene decision.

F. Disposition*. 23. The Tribunal now orders as follows:-a.The decision of the Chief Executive Officer of the Respondent dated 3rd August 2023 is hereby set aside and quashed.b.The Tribunal orders the Respondent to admit the Applicant to the Advocates Training Programme for the academic year 2023/2024 and if not available to the subsequent academic year.c.Each party to bear own costs of the application.d.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 13TH DAY OF OCTOBER, 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBER