[2024] KELEAT 375 (KLR)

Mutisya v Kenya School of Law (Appeal E002 of 2024) [2024] KELEAT 375 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KELEAT 375 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E002 of 2024

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

April 5, 2024

Between

Edith Kalimi Mutisya

Appellant

and

Kenya School of Law

Respondent

(Being an appeal against the decisions of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 28th November 2023 rejecting the appellant’s application for admission into the Advocates Training Programme during the 2024/2025 academic year)

Judgment

A. Background 1. Aggrieved by the decision dated 28th November 2013, made by the Director and Chief Executive Officer of the 1st Respondent, Dr. H. K. Mutai, wherein he rejected her application for admission to the Advocates Training program (ATP), The Appellant has filed a Memorandum of Appeal dated 11th January 2023.

2. The Appellant contends that in declining her admission to the ATP, the 1st Respondent contravened the provisions of Section 1(a) and 1(b) of the second schedule of the Kenya School of law Act as well as Sec 8(1), 8(2), 8(3)(a) and (b) and 8(4) of the Legal Education Act.

3. The Appellant takes issue with the 1st Respondent for failing to recognise her Diploma in Law from an accredited college as well as her LL.B degree from a University in Kenya. She emphasizes that her legal journey began in the year 2017, and that she therefore qualifies under the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

4. The Appellant accuses the 1st Respondent of going beyond its statutory mandate by purporting to regulate, audit and revisit her admission to the LL.B degree, yet this had already been performed and regulated by the 2nd Respondent.

5. Finally, the Appellant laments that the 1st Respondent infringed on her right to education, academic progression and the principles of legitimate expectation.

B. The Appellant’s Case 6. The Appellant sat for her Kenya Certificate of Secondary Education Examination in the year 2016 and attained a Mean Grade of C (Plain), with a Grade of C+ (Plus) in English and C+ (Plus) in Kiswahili. She attached a copy of her KCSE Certificate to confirm this position.

7. That on 15th May 2017, she enrolled for a Diploma in Law at the Mount Kenya University (MKU) where she obtained a certificate with Credit II. Vide a letter dated 15th February 2019, the Appellant was admitted to Mount Kenya University to pursue a Bachelor of Laws (LL.B) degree, with a registration date of May 2019, she graduated therefrom on 9th December 2022 with a 2nd Class lower division degree.

8. On 23rd November 2023, The Appellant applied for Admission to the Advocates training program for the year 2024/2025, however, vide a letter dated 28th November 2023, her application was declined on the grounds that she did not meet the minimum entry requirements.

9. The Appellant is desirous of joining the 2024/2025 Admission to the Respondent.C. Reliefs sought from the Tribunal:The Appellant seeks the following reliefs from this Tribunal:a.THAT the tribunal quash the decision of the Director of Kenya School of Law made on 28th November 2023. b.THAT the tribunal do order and or direct the 1st Respondent to admit the appellant forthwith in the ATP for the academic year 2024/2025.

D. The Respondent’s Position on the Appeal 10. The Respondent filed a Replying Affidavit sworn on 2nd February 2024, signed by the institution’s Principal Officer, Academic Services, the Respondent contended that its mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Programme.

11. The Respondent further argued that it is required by its establishing Act the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the school.

12. The Respondent contended that upon the Appellant making her application to the Advocates Training Programme, she was found not to be eligible per the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act 2012.

13. The Respondent further states that the Appellant is relying on academic progression to be admitted for Advocates Training Programme, yet the Kenya School of Law Act 2012 does not have a provision for academic progression.

14. The Respondent asserts that the Appellant having been admitted to the university for her LLB course in the year 2019, cannot benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations of 2016.

E. The Appellant’s submissions 15. The Appellant filed her submissions dated 2nd February 2024, and identified one issue for determination, which is: Whether the Appellant has qualified for admission to join the Respondent institution to undertake Advocates Training Programme.

16. She asserts that the 1st respondent should overlook her KCSE grades and consider that having obtained her Diploma in law from an accredited institution and thereafter an LLB degree from Mt. Kenya University, she has attained the minimum requirements for admission to the school by dint of paragraph 1(a) of the Second Schedule of Kenya School of Law Act, and that it ought to be invoked to grant him admission to the school.

17. The Appellant, emphasizes that she began her legal journey in the year 2017, when she enrolled for a Diploma in law at the Mount Kenya University and alludes to the fact that she should benefit from the cover of the 2016, CLE Quality Assurance Regulations. In support of this she cites the case of:Mucheke vs KSL (Appeal E026 of 2022)[2022] KELEAT 853KLR, where this Tribunal held that “… 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 LLB degree. The Tribunal is guided by the decision in Nairobi Civil Appeal No. E472 of 2021 – Kenya School of Law vs Otene Richard Akomo & 41 others by Justices Asike Makhandi, J. Mohamed & Kantai JJ.A at page 27 rendered itself as follows on the said matters:“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 21st December 2021 in the case of Javan Kiche Otieno& Another vs Council of Legal Education [2021] Eklr. But hasten to add that such invalidation could not apply retrospectively.

18. The Appellant concluded by urging the Tribunal to grant the reliefs she has sought.

F. The Respondent’s Submission 19. The 1st Respondent filed its submissions dated 13th march 2024 And identified the following issues for determination:i.Is the double standard in admission qualifications discriminatory or justifiableii.Whether the Respondents decision to refuse admission into its Advocates Training program was a breach of legitimate expectationiii.Is academic progression applicable.

20. In addressing the first issue of whether there was double standard in admission qualifications the Respondent persuaded the Tribunal to apply the golden rule approach to avoid the consequences of a literal interpretation of the wording of the statute when such an interpretation would lead to a manifest absurdity or to a result that is obnoxious to the principles of public policy, in this instance unfair discrimination.

21. The Respondent relied on 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;In interpreting Statutes, it is also a requirement that the court looks at both the text and context in order to ascertain the true legislative intent. In Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd., 1987 SCR (2) 1 the Supreme Court of India stated thus:“Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important… A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.”

22. On whether the procedure to refuse admission was a breach of legitimate expectation, The Respondents state that there is no legitimate expectation that has been breached, the respondent supports its position with another excerpt from the Otene case, in which the learned judges of the Court of Appeal stated: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 NRB Civil Appeal No. E472 of 2021 Judgment of the Court Page 33 of 33 admission to 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.

23. The provisions of Second Schedule of the Kenya School of Law Act were reiterated to assert qualification requirements for admission to the Kenya School of Law’s ATP. The respondent contends that the Appellant, who began her LLB degree in the year 2019, cannot benefit from the argument of a crystallized action under the CLE quality assurance regulations of 2016, as the same were declared unconstitutional on 30th January 2018.

24. On the issue of academic progression, the Respondent submits that the appellant does not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, which is the Kenya School of Law Act 2012, as amended by Statute Law Miscellaneous Amendments Act (No. 18 of 2014) does not provide for academic progression.

25. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellant’s argument that because they had obtained his LLB degree, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous.

26. The Respondent thus submitted that it could not act beyond statute by admitting the Appellant.

G. Analysis and determination. 27. The appellant’s primary contention was that she was entitled to admission to the Advocates Training Programme predicated on the fact that she held `a Bachelor of Laws degrees from a recognized university in Kenya. Thus, she was only 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.

28. The section provides 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; and(iii)has sat and passed the pre-Bar examination set by the school.”

29. 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 pronounced itself as follows:“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.”

30. Based on this conjunctive interpretation adopted by the court of appeal, and in line with the principle of hierarchical precedence, this tribunal is bound to find that the Respondent’s decision as taken decline admission to the Advocates Training Programme would be upheld as the Appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above.

31. The Appellant attained Grade C (Plain) and Grade C+(Plus) in English and C + (Plus) in Kiswahili languages respectively which were below the stipulated minimum.

32. The Tribunal has proceeded to consider the appeals on account of the extent to which the appellant may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

33. The 2nd Respondent (CLE) 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.”

34. The legality of the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was challenged on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. However, in the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, The Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 and stated 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.” 35. The Appellant cited the Muceke case (supra), wherein this tribunal had stated that the operative date for the declaration of invalidity was 21st December 2021. However, it was later clarified and thereafter held in several judgments of this tribunal, that indeed, the operative date is 30th January 2018 when the superior court made the declaration which was subsequently affirmed by the Court of Appeal. The said regulations which contained the criteria for admission ceased to have had any legal consequence from their inception. This included the set-out admission criteria to the various legal education programmes contained in them.

36. The High Court in Law Society of Kenya vs. Kenya Revenue Authority & another [2017] eKLR stated as follows:“It is trite that an unconstitutional law is not law and actions or decisions taken pursuant to the an unconstitutional law would out rightly be illegal. It follows that once a law has been declared unconstitutional, it has no business remaining in the law books.

37. The court of appeal whilst upholding the declaration of invalidity made it clear that it does not apply to crystalized actions. The decision 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 in paragraphs 34, 35 and 47 of the judgment stated;“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.”

38. The action envisaged for consideration is the admission to the Bachelor of Laws degree program, and not the enrolment for a Diploma cause. For it to be a crystallized action, the admission to the LLB degree would require to fall between February 2016 and 30th January 2018, when the 2016 rules subsisted.

39. The Appellant secured admission to the Bachelor of Laws degree on 19th February 2019 which was after the date of the declaration of invalidity of the regulations by the superior court. The Tribunal, therefore, finds that the declaration adversely affects her eligibility for the Advocates Training Programme.

40. The Appellant asserts that she pursued academic progression by, having graduated with a Diploma in Laws from MKU and subsequently proceeding to attain her LLB Degree from the same university from which she graduated on 9th December 2023.

41. A question arises on whether she would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the 2nd Respondent (CLE) to 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.

42. Section 8(3) (c) of the Legal Education Act requires the Council of Legal Education to 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.

43. The Council had formulated the Legal Education (Accreditation and Quality Assurance) Regulations of 2016 which as we have observed above, were invalidated by the Court on 30th January 2018. Unfortunately, six years later, the 2nd Respondent has not formulated new regulations in compliance with all the applicable laws. This tribunal calls out the inaction by the CLE, it is unacceptable as it continues to leave a hiatus and confusion in the legal education processes. It goes against Article 10 of the Constitution of Kenya which prescribes the national values and principles of governance which bind all public officers and State organs including the Council for Legal Education.

44. The upshot of the above is that the Appellant has not qualified for admission to the ATP as her KCSE grades do not meet the statutory criteria set out in the KSL Act, and based on the admission date for her LLB degree, being February 19, 2019, she does not benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations of 2016, as they were already invalidated by then.

H. Disposition.It Is Decreed:-

a.That the appeal by Edith Kalimi Mutisya as against the 1st Respondent’s decision declining her admission to the Advocates Training Programme, as communicated by the Respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law in the decision dated the 28th November2023 is dismissed.b.That each party bears its own costs of the appeal.c.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… 5TH … DAY OF … APRIL … 2024. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.REGISTRARPage 7 of 7