[2023] KELEAT 380 (KLR)

Mwangi v Board of Management Kenya School of Law (Appeal E008 of 2023) [2023] KELEAT 380 (KLR) (14 July 2023) (Ruling)

Neutral citation: [2023] KELEAT 380 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E008 of 2023

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

July 14, 2023

Between

Dickson Macharia Mwangi

Appellant

and

Board of Management Kenya School of Law

Respondent

(Being an appeal against the decision of Dr. H. K. Mutai – Director of the Kenya School of Law dated the 9th January 2023 declining admission to the Advocates Training Programme during the 2023/24 academic year)

Ruling

A. Background 1. On the 9th of January 2023, Dickson Macharia Mwangi instituted an appeal against the decision of the respondent, the Kenya School Of Law, denying him admission to the Advocates Training Programme. The respondent filed a reply through Mr. Fredrick Muhia – the Academic Services Manager at the Kenya School of Law.

2. The Tribunal delivered its judgment on 24th March 2023 and made the following orders:a.That the decision of the respondent declining the application for admission of Dickson Macharia Mwangi 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 9th of January 2023 is set-aside.b.That in lieu of the decision dated the 9th of January 2023; the application by Dickson Macharia Mwangi for admission to the Advocates Training Programme is remitted to the respondent for reconsideration.c.That the respondent does reconsider the application for admission to the Advocates Training Programme as made by Dickson Macharia Mwangi by way of determining his actual admission date to the Bachelor of Laws degree at the University of Nairobi 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 his Bachelor of Laws degree admission letter from the University of Nairobi to the respondent he does proceed 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.

B. The Appellant’s Application. 3. By an Application dated, 3rd May 2023, the Appellant has moved the Tribunal seeking the following orders:i.That the Honourable Tribunal be pleased to issue an order of certiorari to remove and quash the Respondent’s letter dated 28th April 2023. ii.That the Honourable Tribunal be pleased to issue a committal order against the Respondent for contempt of the Tribunal orders [sic] issued on 24th March 2023. iii.That the Honourable Tribunal be pleased to issue an order of mandamus compelling the Appellant to the Advocates Training Programme (ATP) immediately and in any case for the academic yearfor the academic year 2023/2024 on the eligibility criteria as existed as at 30th January 2018. iv.That the Honourable Tribunal be pleased to issue any such order as it deems fit and expedient.v.That the costs of this application be awarded to the applicant/ Appellant.

4. The Application is based on the grounds that appear on the face of the motion as well as the Appellant’s affidavit in support. The Appellant filed submissions dated 7th June 2023.

5. His main complaint is that the orders of the Tribunal have not been complied with. In his affidavit, he states in paragraph 4 of his Supporting Affidavit sworn on 3rd May 2023 that he submitted his Bachelor of Laws Degree admission letter to the Respondent on 29th March 2023.

6. He states that he was admitted to the Bachelor of Laws degree programme at the University of Nairobi on 5th September 2016 and has produced a letter of admission from the said University dated 26th August 2016 as evidence of this fact.

7. In spite of the above decision, Dr Henry K. Mutai- the Respondent’s Chief Executive Officer declined to admit the Appellant and issued the decision that has precipitated the motion for consideration. The letter addressed to the Appellant’s advocates reads in part:“Pursuant to the judgment of the Legal Education Appeals Tribunal delivered on 24th March 2023, the Kenya School of Law has reconsidered your client’s application to the Advocates Training Programme (ATO) and regrets to inform you that he does not qualify for admission to the ATP.The determination was made based on the provisions of law and the determination of the Court of Appeal on the issue”.

8. The Appellant contends that the Respondent’s action is aimed at undermining/ ignoring this Tribunal’s decision and thus locking him out of the 2023-2024 Academic year.

9. The Application is supported by the Appellant’s Affidavit where he produced a copy of this Tribunal’s Judgment, the Respondent’s letter declining the Appellant’s admission application, as well as the correspondence where he submitted the degree for reconsideration.

C. The Respondent’s Reply to the Application. 10. The Respondent opposed the Application. The Respondent filed a Replying Affidavit sworn on 25th May 2023 by the institution’s Principal Officer- Academic Services.

11. The Respondent asserts that it is aware of the Judgment of this Tribunal requiring the reconsideration of the Appellant’s qualifications upon receipt of the Degree Certificate.

12. The Respondent further took issue with this Tribunal’s power to punish for contempt of Court, as such power is only conferred to the High Court and the Court of Appeal.

13. The Respondent further contended that the decision in Civil Appeal E472 of 2021 has a bearing on this matter and renders the Appellant unqualified to join the Advocates Training Programme.

14. He asserts that the Respondent has not acted in such a manner as to deliberately and intentionally undermine the Tribunal’s dignity, repute and authority.

15. The Respondent, therefore, urges this Tribunal to dismiss the Application.

D. The Submissions by the Parties 16. The Appellant filed submissions dated 7th June 2023.

17. He advanced his position that the Respondent’s actions amount to contempt of Court and that the requisite standard of proof to punish for contempt had been met.

18. The Appellant has taken up the twin issues of contempt and his qualifications. At paragraph 8, he states that he is “… aggrieved by the Respondent’s decision of the Respondent rejecting his application to join the Advocates Training Programme by failing to comply with the orders and/ or directive issued by this Honourable Tribunal pursuant to the said judgment”.

19. The Respondent filed its submissions dated 22nd February 2023 which also attacked the Tribunal’s powers to punish for contempt. The Respondent cited various decisions of the superior courts and also pointed out that the Contempt of Court Act was declared unconstitutional. The Respondent discussed the questions of procedure for instituting contempt of court proceedings, the threshold for committal for contempt and whether there was any “mala fide” on the Respondent’s part. The Respondent then defended its position that the Appellant is not qualified.

20. This Tribunal has considered the submissions and the authorities cited and relied upon. The Tribunal notes that the Appellant did not address the Respondent’s contention that this Tribunal lacks jurisdiction to deal with contempt of court.

21. The Tribunal also notes that both parties have discussed the issue of legitimate expectation. It is clear that both parties intended to convince the tribunal on the propriety, or otherwise, of the decision itself over and above the prayer for contempt. It is noteworthy that the motion has a prayer that the Tribunal “quashes” the letter dated 28th April 2023 as well as a prayer seeking that the Appellant be admitted based on the criteria existing as at 30th January 2018.

E. Analysis and determination. 22. This Tribunal has carefully considered the material filed by the Appellant and the corresponding averments by the Respondent with respect to the motion seeking to cite Dr Henry K. Mutai for contempt of court.

23. The issues for determination are as follows:a.Whether Dr Henry K. Mutai is guilty of Contempt of the Court’s decision delivered on 10th June 2022. b.Ancillary to this determination, is the question of this Tribunal’s jurisdiction to determine matters relating to Contempt of Court.

24. On the question of jurisdiction, we would like to preface our finding by stating that the question should be settled before anything else in keeping with the finding in E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR the Court of Appeal highlighted the importance of satisfying jurisdictional questions thus,“… Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself…”

25. The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR also had a similar rendition,“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ...”

26. This Tribunal is established under the Legal Education Act. Section 31 thereof provides as follows as to its Jurisdiction:(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.(2)For the purposes of hearing an appeal, the Tribunal shall have all the powers of the High Court to summon witnesses, to take evidence on oath or affirmation and to call for the production of books and other documents.(3)Where the Tribunal considers it desirable for the purposes of avoiding expenses, delay or for any other special reasons, it may receive evidence by affidavit and administer interrogatories within the time specified by the Tribunal.(4)When determining any matter before it, the Tribunal may take into consideration any evidence, which it considers relevant to the subject of an appeal before it, notwithstanding that such evidence, would not otherwise be admissible under the law relating to evidence.”

27. Further, the Powers of the Tribunal are prescribed under Section 35 of the Act as follows:(a)confirm, set aside or vary the order or decision in question;(b)exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or(c)make any other order, including an order, for costs, as it may consider just.

28. We have noted, that the motion brought before the court is brought “Under the Legal Education Act, the Civil Procedure Rules, and all enabling provisions of the law”.

29. We have difficulty relating the cited laws to the motion before the court. We agree with the Respondent that the Tribunal does not have powers to punish for contempt and that the procedure adopted to move the tribunal is incompetent.

30. The application is therefore incompetent and incapable of consideration of prayers 3. The prayer fails and is dismissed in limine.

31. Equally the Tribunal finds no merit in prayers 2 and 4 seeking orders of judicial review.

32. The Appellant’s application at prayer 5 seeks any other order that the Tribunal may deem fit. He has invoked the Legal Education Act which has powers as set out above.

33. The Tribunal has considered the nature of the Appellant’s application. In the judgment giving rise to this application, the Tribunal expressed itself as follows:41. In 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 at the time the initial decision on the invalidity of the Regulations was entered by the Superior Court on the 30th of January 2018. 42. In this matter, as earlier observed in this judgment, the appellant did not place before the Tribunal his admission letter to the University of Nairobi to undertake the Bachelor of Laws degree.43. The date of registration which can be gleaned from his provisional transcripts for the Bachelor of Laws degree is 5th September 2016 however, his first academic year is indicated as 2018/19 therein. The Tribunal is thus unable to decisively determine his actual date of admission to the Bachelor of Laws degree at the University of Nairobi at this point.44. The Tribunal also notes that the despite the respondent being aware of the findings in Otene Richard Akomo & 41 Others and Javan Kiche Otieno & Another supra, it failed to address itself in the communication as to the applicability of the declaration of invalidity to the appellant’s admission to the Advocates Training Programme or otherwise.45. The Tribunal nonetheless takes judicial notice of the fact that the respondent in its respective public notices inviting applications to the Advocates Training Programme (ATP) requires an applicant to submit the admission letter to the Bachelor of Laws degree programme and which would be a good pointer in resolving the issue of the application of the declaration of invalidity of the Regulations to the appellant.46. In taking judicial notice the Tribunal is guided by section 60 (1) (o) of the Evidence Act, Cap. 80 which provides;“The courts shall take judicial notice of the following facts—all matters of general or local notoriety;”47. Accordingly, the Tribunal finds that this appeal can best be disposed of and substantive justice done to the parties by the remission of the matter to the respondent to address itself as to the date of admission. In the event that the appellant had not submitted his application letter to the Bachelor of Laws degree at the University of Nairobi to the respondent, he is at liberty to do so immediately.48. On legitimate expectation, the appellant submitted that he was entitled to admission based on the law as it existed at the time of securing admission to the Bachelor of Laws degree. The Tribunal agrees with the appellant that the same is the succinct juridical position.49. However, he did not assist the Tribunal in determining his admission date to the Bachelor of Laws degree by his omission to produce the admission letter before it.50. This would have been the best instrument to determine the legitimacy of his expectation and applicability in determining his admissibility to the Advocate Training Programme. The Tribunal finds that the appellant ably sets out the law on legitimate expectation, but fails the evidential threshold. The Tribunal recognizes the same as pronounced by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others, Petition No. 14 of 2014 in which it was stated at paragraph 269 as follows;“a)there must be an express, clear and unambiguous promise given by a public authority;b)the expectation itself must be reasonable;c)the representation must be one which was competent and lawful for the decision-maker to make; andd)There cannot be a legitimate expectation against clear provisions of the law or the Constitution.”51. It is clear that the only reason the Tribunal did not consider the appeal on its merits was insufficiency of material before it. The Tribunal then gave the Respondent an opportunity to receive the Degree Certificate and reach a decision that accords with the judgment and the law.52. What is puzzling is that the Respondent has litigated before this Tribunal and has been part of decisions where the Tribunal has found that the date of invalidity of the impugned regulations [The Legal Education (Accreditation and Quality Assurance) Regulations, 2016], was 30th January 2018. 53. The Respondent has not referenced its decision to the judgment of the Tribunal for reconsideration of the Appellant’s qualifications in view of the extensive findings contained in the judgment.54. 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. 55. The Appellant was admitted to the University of Nairobi for the Bachelor of Laws degree programme on 5th September 2016. A plain reading of the Tribunal’s judgment and its reference to the Javan Kiche decision [supra], shows that if this material was available before the Tribunal when it considered the appeal, it would have reached a different decision.

34. Section 35 of the Legal Education Act gives this Tribunal powers to:(a)confirm, set aside or vary the order or decision in question;(b)exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or(c)make any other order, including an order, for costs, as it may consider just. [Emphasis added].56. We note that this motion had sought orders relating to contempt. We dismissed that prayer in limine for reasons stated above.57. However, having considered the decision made by the Respondent upon reconsideration and after gleaning through its submissions, we find that the Respondent is litigating the same points that were settled in the appeal and in other decisions it has participated in. For the avoidance of doubt, it is our finding that the Appellant is qualified for admission to the Advocates Training Programme by dint of holding qualifications that were then acceptable under the [The Legal Education (Accreditation and Quality Assurance) Regulations, 2016], was 30th January 2018. 58. These Regulations were gazetted on 6th February 2016. The appellant will derive the benefit of qualification because these rules were the law. A party cannot be punished for relying on the law then in place. The Appellant obtained admission to the university alive to the fact that the Regulations only required that one has a degree from a recognized university.59. The decision from the Court of Appeal against the High Court decision in Javan Kiche [supra] had a rider that it will not impact crystallised actions. It did not give the Respondent a carte blanche to the Respondent to violate the legitimate expectation created by the Regulations for as long as they were in place.60. Whereas the Appellant’s application and initial appeal could benefit from a little more fastidious drafting, we have no hesitation in making a finding that justice would be served by the Tribunal invoking Section 35 of the Legal Education Act and the constitutional imperatives contained in Article 159 the deficiency on the pleadings notwithstanding.61. We have come to the conclusion that the Appellant was qualified as discussed above. The orders that would commend themselves are as appear in the disposition below:

F. Disposition.1. That Prayers 2-4 of the Application dated 3rd May 2023 are hereby dismissed.2. That the Tribunal exercises its powers as provided in the Legal Education Act and as sought in Prayer 5 and pronounces itself as follows:a.That the decision communicated by the letter dated 28th April 2023 is set aside.b.That A declaration is issued that the Appellant Dickson Macharia Mwangi is qualified for admission to the Advocates Training Programme.c.That the Respondent is ordered to hereby admit the Appellant Dickson Macharia Mwangi to the Advocates Training Program forthwith.3. That each party shall bear its own costs.It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 14 TH DAY OF JULY 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