[2022] KELEAT 2 (KLR)

Mutichillo v Council of Legal Education (Appeal E001 of 2021) [2022] KELEAT 2 (KLR) (8 April 2022) (Ruling)

Neutral citation: [2022] KELEAT 2 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E001 of 2021

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, None

April 8, 2022

Between

Mike Mutichillo

Appellant

and

Council of Legal Education

Respondent

(appeal with the Tribunal against the decision of the respondent Council Of Legal Education)

Ruling

INTRODUCTION 1. Mike Mutichilo was the appellant in the appeal dated 20th May 2021. He instituted the appeal with the Tribunal against the decision of the respondent Council Of Legal Education which declined to grant a clearance letter to him for purpose of enabling him to make an application to the Advocates Training Programme (ATP). In declining the same, the Council gave two reasons:-a.He held a law degree from the Southern Federal University which was not within the Commonwealth jurisdiction and it resolved based on previous similar cases, it could not recognize and approve the said degree.b.He did not have an LL.B degree which was a mandatory pre-requisite for admission to the Advocates Training Programme.

2. The Tribunal upon hearing the appeal it set aside the Council’s decision in so far as it had been decided that one required to hold an LL.B degree from a Commonwealth jurisdiction in order to be eligible for admission to the Advocates Training Programme but affirmed the decision that the appellant’s degree did not amount to an LL.B degree.

3. The appellant being aggrieved by the 2nd limb of the judgment/ decree of the Tribunal has filed an application for review of the said decision. In his motion of which prayer 1 is spent having sought the disposal of the same under urgency and prayers 2, 3, 4 and 5 being available for consideration he seeks as follows:-a.That this Honourable Tribunal be pleased to review and vary the judgment delivered on 28th May, 2021 to the extent that the decision denying the appellant/applicant admission on the basis he does not hold a Bachelor of Laws (LL.B) degree as taken by the respondent is affirmed and the finding that the appellant is not entitled to a clearance letter by the respondent.b.That the appellant having qualified for admission into Kenya School of Law, the Honourable Tribunal be pleased to issue an order directing the respondent to issue to the appellant a clearance letter to have him forthwith be admitted to the Kenya School of Law with any conditions whatsoever.c.That the Honourable Tribunal be pleased to issue any subsequent or any other order deemed fit and necessary to have the appellant herein be admitted to the Kenya School of Law.d.That costs be provided for.

4. The respondent was served with the application but did not respond to it or attend before the Tribunal. The appellant filed submissions on the motion. The Tribunal wishes to render itself as hereunder.

THE GIST OF THE APPLICATION AND SUBMISSIONS 5. The gravamen of the appellant’s motion is that there is an error apparent concerning the proper translation of his qualification which mistake has been now rectified by the Commission for University Education together with the Russian Embassy. The appellant seeks to persuade the Tribunal to consider that the said proper translation had it been brought to the attention of the Tribunal it could have arrived at a different outcome. It is also his complaint that the Tribunal overlooked the fact that he held an LL.B degree but only refused to recognize and approve it on the ground that the same was obtained outside the Commonwealth. He further asserts that the Tribunal despite having found that the duty to recognize foreign qualifications was reposed upon the Commission for University Education and not the respondent, it ought not to have upheld the decision of the Council. It is alleged that the Tribunal overlooked the fact that the respondent did not in any way find that the appellant’s qualification did not amount to an LL.B degree but only declined to approve it for the reason that it was obtained outside the Commonwealth.

6. The appellant has annexed to the affidavit in support of the motion the judgment of the Tribunal, the letter by the respondent dated 21st April, 2021, a letter dated 30th September, 2020 indicated to be from the Commission for the University Education and a letter dated 15th September, 2021 indicated to be from the Embassy of the Russian Federation in the Republic of Kenya. The contents of the letters being of relevance to the motion are reproduced as hereunder. The letter of the Commission for University Education dated 30th September, 2020 is as follows:-“CUE/10/9/1/VOL.514 30th September, 2020 MUTICHILO MIKEBOX 546 LUANDA.RE: RECOGNITION OF QUALIFICATIONS MUTICHILO MIKE.Thank you for your application dated 18th September, 2020 requesting the Commission for University to recognize the following qualifications awarded by the Southern Federation University in Russian Federation: Bachelor’s Degree in Law.

Master’s Degree in International Private Law.

It is hereby confirmed that the Southern Federation University is a recognized institution in Russian Federation.The qualifications as awarded by the said institution are recognized in Russian Federation and by convention in Kenya.Kindly note, that in addition to this recognition, you may be required to meet other requirements set by Kenyan Professional Organizations.----SIGNED--- GILBERT. W. OPANGAFOR COMMISSION SECRETARY/CHIEF EXECUTIVE OFFICER…”

7. The letter by the Embassy of the Russian Federation in the Republic of Kenya dated the 15th September, 2021 is as follows:-“ Ref. No. 200 September 15, 2021TO WHOM IT MAY CONCERNThis is to clarify the legal status of Bachelor’s Degree Diploma No. 10610400253750 of July 3, 2017 of Mr. Mike Mutichilo, Passport no. AK0647512, is issued by the Federal State of Budgetary Educational Institution of Higher Professional Education ‘Southern Federal University’.This Diploma is equal to Bachelor of Laws (LL.B) in the system of most Common Law Jurisdictions.It allows to practice as a Lawyer in Russia and is requested to take the advocates exam.---SIGNED SIGNED---Head of BilateralDepartment D.Charnetskii”

8. The appellant in his written submissions seeks to invoke the provisions of section 80 of the Civil Procedure Act, Cap. 21 and order 45 rule 1 of the Civil Procedure Rules, 2010 in support of the motion for review. The appellant relies on the authority in Nasibwa Wakenya Moses v University of Nairobi &another, (2019) eKLR which set out the limits of the power of review. In the decision it was stated;“The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” .....means a reason sufficiently analogous to those specified in the rule.”

9. It is submitted that based on the test of new and important evidence the motion is merited as the Russian Embassy did clarify the legal status of the qualification that was awarded to the appellant. Based on the letter, it is allegedly clarified that the Diploma is equal to a Bachelor of Laws (LL.B) in the system of most Commonwealth jurisdictions where persons with similar qualifications are allowed to practice law in Russia.

10. It is further submitted that the Commission for University Education did recognize appellant’s qualifications as a Bachelor of Laws and Master’s Degree in International Private Law. It is submitted that had the Tribunal been furnished with the right evidence as the one before it, it would have reached a different judgment.

ANALYSIS AND DETERMINATION 11. The appellant has brought before the Tribunal a motion seeking to review its judgment. It is predicated on the grounds that there is an error apparent on the face of the record and the existence of new and important matters. The appellant on the ground of new and important matters relies on the fact that there is a letter by the Commission for University Education which confirms his undergraduate qualification as amounting to an LL.B degree. The said letter is dated 30th September, 2020. The Tribunal has gone through the initial letter filed by the appellant from the Commission for University Education which is dated the same day as the letter in the review motion being 30th September, 2020. The letter for ease of reference as filed with the appeal is hereby reproduced as follows;“ 30th September, 2020CUE/10/9/1/vol. 514 MUTICHILO MIKE,RE: RECOGNITION OF QUALIFICATIONS MUTICHILO MIKE.Thank you for your application dated 18th. September 2020 requesting the Commission for University Education to recognize the following qualification awarded by the Southern Federal University in the Russian Federation. Bachelor in legal studies.

Master in legal studies.

It is hereby confirmed that Southern Federation University is a recognized institution in the Russian Federation. The qualification awarded by the said institution is recognized in the Russian Federation by convention in Kenya.Kindly note, that in addition to this recognition you may be required to meet other requirements set by Kenyan professional organizations.GILBERT W. OPANGAFOR COMMISSION SECRETARY/ CHIEF EXECUTIVE OFFICERGWO/ON NB. The Commission is not accountable for the authenticity of the certificate or the identity of the certificate holder presented for recognition and/or equation.

The Commission retains the rights to revoke recognition of the award in the event that it establishes any reason that makes the award in question ineligible for recognition and/or equation.”

12. In the letter initially in the appeal as can be discerned, theappellant’s qualifications were found to be:-a.Bachelor in Legal Studies.b.Master in Legal Studies.

13. The Tribunal based on the said letter found that the appellant did not hold a Bachelor of Laws degree which was required inorder to obtain a clearance letter for admission to the Advocates Training Programme.

14. The Tribunal is least persuaded that the letter in the current motion meets the test of new and important matters set out in the law as it is evident that if the letter currently presented is authentic it must have been in possession of the appellant based on the date when he was lodging this appeal. If it was there, nothing would have prevented him from placing it before the Tribunal then and even presenting it to the respondent. The Tribunal finds that the motion for review fails to meet the strictures as elucidated in the authority of Tokesi Mambili &othersv Simion Litsanga, (2004) eKLR in which the Court of Appeal held;“In order to obtain a review an applicant has to show to the satisfaction of the Court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason. In the application before the Superior Court the appellant failed to prove discovery of new and important matters or mistake on the face of the record.”

15. The appellant also fails the due diligence test if at all the said letter existed when the appeal was being made initially.

16. On the ground of an error apparent on the face of the record, the appellant sought to impugn the judgment of the Tribunal on the basis that despite the respondent having acknowledged his degree as amounting to an LL.B degree in its decision and having no qualms of it being an LL.B degree the Tribunal proceeded to find it was not one. The Tribunal upholds it’s decision and refers the appellant to the contents of the penultimate paragraph of the decision of the Council which clearly indicated that the appellant required to hold an LL.B degree to be admissible to the Advocates Training Programme and also to be eligible for a clearance letter. The decision of the Council is hereby reproduced in a verbatim manner as follows and the Tribunal underlines the relevant extract;“Ref No. CLE/RA/11VOL. V/(20)Date: 21st. April, 2021. Mr. Mutichilo Mike Dear Mr. MutichiloRECOGNITION AND APPROVAL OF FOREIGN QUALIFICATIONS IN LAW – LL.B SOUTHERN FEDERAL UNIVERSITY, RUSSIAReference is made to your application for recognition and approval of the LL.B Degree of the Southern Federal University, Russia for purposes of section 8 (1) (e) of the Legal Education Act, 2012. At its meeting held on 23rd. March, 2021 Council (Board) considered the matter and resolved that based on previous similar cases, it could not recognize and approve a degree obtained in a jurisdiction outside the common wealth.The bench mark qualification recognizable by the Council of Legal Education is the Bachelor of Laws (LL.B) Degree qualification undertaken in a common wealth law jurisdiction. It is also the recognized qualification for entry to the Advocates Training Programme (ATP) at the Kenya School of Law as ordained by the second schedule to the Kenya School of Law Act No. 26 of 2012 (as amended in 2014).Relatedly, the Legal Education (Quality Assurance and Accreditation) Regulations, 2016 quality standard rule 6 complement the provisions of the Kenya School of Law Act to the extent that the admission criteria expressly requires the LL.B Degree. Regrettably, Council declines to recognize and approve your degree qualification for purposes of section 8 (1) (e) of the Legal Education Act, 2012. Council wishes you well in your endeavours. Yours sincerely,Dr. J. K. GakeriSecretary/Chief Executive Officer Council of Legal Education.”

17. The Tribunal was also well guided by the letter from the Commission for University Education which the appellant on his own initiative placed before the Tribunal at the time of institution of the appeal. No error could arise from the Tribunal examining and confirming that the appellant’s degree was one of legal studies as opposed to an LL.B degree as the said information was submitted by the appellant based on the letter from the Commission. The appellant has failed to establish to the satisfaction of the Tribunal the alleged apparent error. The Tribunal is guided by the decision in National bank of Kenya v Ndungu Njau, (1997) eKLR in which it was held;“A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter.”

18. The Tribunal is further guided by the authority in Nyamogo Nyamogo Advocates v Kogo, (2001) 1 E.A. 176 in which the Court expounded on the matter of what amounts to an error as follows;"An error which has to be established by a long drawn process of reasoning or on points where they may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

19. In this matter the Tribunal upon the delivery of its judgment eloquently informed the appellant of his right of appeal based on section 38 (1) of the Legal Education Act, 2012 to the High Court on a point of law. It was therefore a misconception for him to originate a motion for review. The Tribunal in declining this ground for review stands guided by decision in Abasi Belinda v Fredrick Kangwamu &another, (1963) E.A. 557 in which Justice Bennett as he then was held;“A point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of law is not a ground for review though it may be a good ground for appeal.”

20. The Tribunal is also curious as to how it was possible for one official of the Commission for University Education to write two letters whose contents are diametrically apart on the same day without making reference to the other over the same common issue of the appellant’s degrees.

21. Finally the appellant seeks that the Tribunal compels the Kenya School of Law to admit him to the Advocates Training Programme the Tribunal finds that such an order cannot issue as from abinitio the appellant never joined it as a party and also no such relief was ever sought in the appeal. The same would if granted amount to a violation of the right to be heard. The Tribunal is well guided by the authority in Mbaki &others v Macharia &another, (2005) 2 E.A. 206 in which it was held;“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

22. Further based on the fact that the appellant never sought any orders to compel the Kenya School of Law initially in the appeal to admit him to the Advocates Training Programme, it would amount to granting relief that was not pleaded in clear breach of the settled legal tenets. The Tribunal is well guided by the authority in Captain Harry Gandy v Casper Air Charters Limited , (1956) 23 E.A.C.A. 139 in which Justice Sinclair as he then was held;"As a rule relief not founded on the pleadings will not be given."

DISPOSITIONa.The motion dated the 18th January, 2022 is dismissed.b.The motion having not been opposed by the respondent no order as to costs is made.c.Any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on point of law.

It is so ordered by the Legal Education Appeals Tribunal. Dated at Nairobi this 8th of April, 2022. 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 ruling of the Tribunal.GILBERT ONYANGO - REGISTRAR