[2023] KELEAT 187 (KLR)

Mwangi v Kenya School of Law (Tribunal Case E008 of 2023) [2023] KELEAT 187 (KLR) (24 March 2023) (Judgment)

Neutral citation: [2023] KELEAT 187 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Tribunal Case E008 of 2023

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

March 24, 2023

Between

Dickson Macharia Mwangi

Appellant

and

Kenya School of Law

Respondent

Judgment

A. Introduction. 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. The appeal was directed to be disposed of by way of written submissions of which the appellant and the respondent filed.

B. The appeal. 2. The appellant sat for the Kenya Certificate of Secondary Education in the year 2011 and attained a mean grade of B - (minus) with grades of B - (minus) in both English and Kiswahili languages. He was admitted to the University of Nairobi to pursue a Bachelor of Commerce (Human Resource Management Option) which he successfully completed and graduated on 4th December 2015 with a Second Class Honours (Upper Division).

3. He was then admitted to the same University to pursue a Bachelor of Laws degree. The appellant did not place before the Tribunal his admission letter but what can be gleaned from his first year provisional transcript is that the registration date is the 5th of September 2016 and his first academic year is 2018/19.

4. Based on the final provisional transcript, he completed the 4th year of the course on 15th December 2022 and was to be awarded a Bachelor of Laws Degree Second Class Honours (Upper Division).

5. The appellant applied for admission to the Advocates Training Programme (ATP) offered by the respondent and on 9th 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 following reason (s): English B - ; Kiswahili B -.Thank you.Yours Sincerely,Dr. Henry K. MutaiDirector/Chief Executive Officer.”

6. In his appeal to the Tribunal, his principal grounds of challenge against the decision are that he attended a recognized University degree 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. Further, that legitimate expectation has been breached by the respondent.

C. The response to the appeal. 7. 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.

8. That the application by the appellant failed to meet the required admission requirements of a mean grade of C + (plus) and a B (plain) in English and Kiswahili in the Kenya Certificate of Secondary Education.

9. The respondent also stated that the appellant was seeking to rely on academic progression which was not provided for in the Kenya School of Law Act, 2012 while the only criteria for admission to the Programme was that set out in the Second Schedule to the Act and which guides it in considering admissions to the Programme.

10. The respondent further contended that allowing the appellant to rely on academic progression in gaining admission to the Advocates Training Programme would result in the application of double standards and discrimination.

11. The respondent also contended that the Court of Appeal had upheld its interpretation on the law of admission to the Advocates Training Programme.

D. The submissions by the parties. 12. 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 a Bachelor of Laws degree from a recognized University in Kenya.

13. He relied on the decision in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR by Justice Antony Mrima in which he held;“…The law recognizes prior learning and experience as factors to be considered in ascertaining academic progression in legal education. Therefore, a person may start from lower levels of legal education and progressively move to higher levels. Given the diverse nature of the persons targeted under categories (a) and (b) of the Second Schedule of the KSL Act, it is obvious that their qualifications cannot be similar. It is for those reasons that I echo the position that category (a) and(b)are different hence the visible use of the word ‘or’… In his case, the Petitioner fell into category 1(a)of the Second Schedule.”

14. He also relies on the decision in Stephen Kipkemei Rutto v Kenya School of Law & Another (2022) eKLR in which Justice J. A. Makau held;“31. The question then one should consider is, has the petitioner complied with the qualifications set out under (1) (a) of the second schedule to the KSL Act, 2012. In my view, the said section does not state the KCSE grades required and if indeed it was meant that the qualifications should be similar to those in (1) (b), it should have expressly stated so as discussed above. The only requirement as clearly are set is out that the Petitioner, passed the relevant examination of a recognized university in Kenya and was conferred the Bachelor of Laws degree. The Petitioner therefore qualified to be admitted to the ATP… A declaration be and is hereby issued that the Petitioner is eligible for admission to the Advocates Training Programme (ATP) having met the requirements under the Second Schedule 1 (a) for admission to the Diploma in Law (Para- Legal Studies) Programme, Second Schedule 2 (d) for admission to the Undergraduate Degree Programme and Second Schedule(1)(a)for admission to the Advocates Training Programme (ATP).”

15. The Respondent states 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, 2012.

16. 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.

17. 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 on the decision in Republic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR.

18. 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.”

19. 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.

20. 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.

21. 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 states, is not an appeal from a decision, but a review of the manner in which the decision was made.”

22. 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.

23. The respondent relied on 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.”

E. Analysis and determination. 24. The issue of the jurisdiction of the Tribunal was taken up by the respondent. The appellant from his submissions did not submit on the said matter. However, the Tribunal is aware of its duty to address the matter as a preliminary inquiry and can even do so on its own motion being guided by the decision in Arthur Gatungu Gathuna v African Orthodox Church of Kenya, (1982) eKLR; in which Justice Kneller; JJ.A as he then was observed;“The record suggests the learned Judge took the point and if he did he was right to do so for it is pars judicis to raise and take into account any question of jurisdiction: see for example Uthwatt J in Attorney General v Dean and Chapter of Ripon Cathedral [1945] 1 All ER 479, E (Ch D). This is so even if the parties in their pleadings agree the court has jurisdiction as these in this case did.Whether or not he would accede to any of the prayers of the parties is a different issue and will depend on, among other things, the consent of the parties or the evidence and law put before him and the exercise of his discretion to do so.”

25. The admission criteria to the two legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme constitute the crux of the appeal. The parties have taken up the said matters. 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 others 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;...”

26. 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.”

27. The Council of Legal Education and the Tribunal are established under the same statute. Therefore, 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 fortified 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.”

28. As regards 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.

29. He beseeches the Tribunal to make a finding that he ought 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. 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; orb.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; andii.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.

30. The Tribunal has in a consistent manner previously adopted the literal rule on statutory interpretation of the said law by finding that the existence of the conjunction ‘or’ between the two sections connotes an elective and a disjunctive interpretation has been to be adopted.

31. Hence, the applicants to the Advocates Training Programme were only to be subjected to singular as opposed to conjunctive criteria in consideration of their applications to the programme. The Tribunal’s position was well predicated on the fact that the literal rule of statutory interpretation ought to have been the first rule applied and under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without the Tribunal seeking to put a gloss on the words or seek to make sense of the statute.

32. The said position has however since changed based on 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.”

33. Accordingly, 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 requirement of a B (plain) in English or Kiswahili languages would be upheld since he attained grades B - (minus) in the said languages in the Kenya Certificate of Secondary Education examinations.

34. However, the Tribunal will proceed to consider the appeal on account of the extent to which the appellant may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

35. 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 bea.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; ord.a Credit Pass in a diploma in law examination from an accredited institution.”

36. Based on the said Regulations, the appellant may have qualified for admission to the Bachelor of Laws degree at the University of Nairobi as he initially held a degree from the same University being a Bachelor of Commerce degree before securing admission to the Law degree.

37. 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.

38. The Hon. 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.”

39. With the said pronouncement which was a declaration of invalidity of law, the said Regulations which contained the formulated criteria for admission that embodied a degree from a recognized University ceased to have any legal consequence from their inception.

40. 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.”

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 ofLaws 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.”

F. Disposition. 51It Is Decreed: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.

IT IS SO ORDERED BY THE LEGAL EDUCATION APPEALS TRIBUNAL. DATED AT NAIROBI THIS … 24TH … DAY OF … MARCH … 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 TribunalREGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)DATE: 2023-03-25 00:19:43+03