[2023] KELEAT 384 (KLR)

Ndung’u v Council of Legal Education; Kenya School of Law (Interested Party) (Appeal E016 of 2023) [2023] KELEAT 384 (KLR) (14 July 2023) (Judgment)

Neutral citation: [2023] KELEAT 384 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E016 of 2023

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

July 14, 2023

Between

Maina Eric Ndung’u

Appellant

and

Council Of Legal Education

Respondent

and

Kenya School Of Law

Interested Party

(Being an appeal against the decision dated the 19th January, 2023 as communicated by Ms. Mary Mutugi – Ag. Chief Executive Officer of the Council of Legal Education correcting an erroneous result and requiring a resit of the Advocates Training Programme examination for ATP 100 – Civil Litigation)

Judgment

A. The appeal 1. Maina Eric Ndung’u the appellant lodged an appeal with the Tribunal seeking to impugn the decision of the Council ofLegal Educationthe respondent as communicated on the 19th January, 2023 requiring him to re-sit ATP 100 – Civil Litigation examination for the Advocates Training Programme. In his memorandum of appeal he takes up 6 grounds of appeal to wit:-a.He is aggrieved by the decision communicated vide email dated the 19th January, 2023 requiring him to re-sit ATP 100 – Civil Litigation despite having passed the unit during the November, 2021 Advocates Training Programme examinations.b.He had a pass in ATP 100 – Civil Litigation re-sit results for the November, 2021 Advocates Training Programme examinations which were released by the respondent vide General Notice no. 2 of 2022. c.Through his candidate portal which is operated by the respondent he had downloaded a provisional transcript on the same day the respondent released the November, 2021 bar examination results which was on the 28th January, 2022 and the transcript indicated that he had garnered 67% in the ATP 100 – Civil Litigation.d.He had made an enquiry on the missing ATP 100 – Civil Litigation marks in his provisional transcript on the 12th January, 2023 for purpose of clearing with the interested party and the respondent informed him that he had 33% which is a fail and he was required to re-sit the same during the March, 2023 Advocates Training Programme examinations.e.Prior to enquiring the status of the ATP 100 – Civil Litigation early in the year he had not received any notification/notice from the respondent communicating a failure and the said unit was not registrable in the April, 2022 and October, 2022 Advocates Training Programme examination sittings.f.The respondent had breached his right to fair administrative action as guaranteed by article 47 of the Constitution of Kenya, 2010 as read with section 4 (1) of the Fair Administrative Action Act, 2015 since the respondent did not provide an adequate notice and an opportunity to hear the appellant before rendering it’s decision.g.After the release of the November, 2021 bar examination results by the respondent on 28th January, 2022 he had relied entirely on the General Notice no. 2 of 2022, the provisional transcript dated 28th January, 2022 and the candidate portal controlled by the respondent to infer his legitimate expectation that he had passed ATP 100 – Civil Litigation examination.

B. The response to the appeal. 2. The respondent filed a response to the appeal through Mary M. Mutugi (Ms.) the Ag. Chief Executive Officer of the Council of Legal Education. It contended that it employs an Enterprise Resource Planning (ERP) system to enable it to fulfill it’s mandate of administering the Advocates Training Programme (ATP) examination. The system enables candidates to download provisional transcripts upon the release of examination results. The system generated errors in some instances as regards re-sits whereby the course work marks were erroneously added onto the written examination marks which affected some 20 candidates of whom the appellant was one of them.

3. In the case of the appellant, the system doubled his marks attained in the ATP 100 – Civil Litigation examination. His actual mark was 20 out of 60 which would amount to 33% which is a fail. With the erroneous doubling of the marks the appellant was indicated as having scored 67% hence a pass. In order for the appellant to pass the examination he was required to have obtained 30 out of 60 marks in the written examination which would translate to 50%. Upon the release of the results of the November, 2021 Advocates Training Program examination results, the errors were corrected and the invalid marks were removed from the system. For this reason in the appellant’s provisional transcript dated 17th January, 2023 the mark for ATP 100 – Civil Litigation is indicated as a score of 33%. Upon the verification with the manual record, the appellant was well informed of the correct position. He was not the only candidate affected. The transcript was provisional in case of an error it could be corrected by the respondent. To the response, the appellant’s examination booklet for ATP 100 – Civil Litigation cover page was annexed indicating he scored 20 marks and a provisional transcript issued on 22nd February, 2023 indicating he scored 33% in the said unit classified as a fail.

C. Pretrial compliance and interlocutory motion 4. The appellant upon the receipt of the response lodged with the Tribunal a supplementary affidavit to which he annexed a forensic hand writing expert report. In the report it was indicated that upon examination of the examination booklet compared with specimens of the appellant’s writing, the same did not tally. The appellant thus deposed that the booklet tendered by the respondent which had the 20 out of 60 marks was not his. He thus reiterated that his proper score was 67% as indicated in the initial provisional transcript.

5. With the receipt of the affidavit the respondent made an application predicated on an array of provisions of the Civil Procedure Act, Cap. 21 with the principal prayer seeking that the Tribunal does issue an order to compel the Directorate of Criminal Investigations to review the appellant’s examination booklets and issue a forensic handwriting expert report. The respondent annexed correspondence exchanged between itself and the Directorate of Criminal Investigations. The application was heard and in a ruling delivered on the 17th May, 2023 it was found to be devoid of merit.

6. The Tribunal being cognizant that the parties had exhausted the need to tender evidence or further responses gave directions on disposal of the appeal by way of written submissions. However, when the matter came up to confirm compliance it emerged that the respondent engaged the Ethics and Anti-corruption Commission on the issue of the forensic hand writing report with regards to the appellant’s booklet for ATP 100 – Civil Litigation examination. Based on correspondence between the appellant’s and respondent’s Advocates the appellant requested to be facilitated financially to travel from Nanyuki to Nairobi to submit his specimen handwriting for purposes of comparison with the booklet. The forensic analysis was carried out by the Forensic Document Examiner at the Ethics and Anti-Corruption Commission who compiled a report. The report concluded that the handwriting on the ATP 100 – Civil Litigation booklet matched the specimens submitted by the appellant.

7. Upon this report being tendered, the appellant filed a further affidavit now claiming that the respondent had ambushed him by adducing cover pages for his other past examination booklets relating to ATP 103, ATP 106, and ATP 108, the candidate’s examination attendance lists for ATP 100, ATP 103, ATP 106 and ATP 108. He claimed that he had not been accorded the benefit to scrutinize them before he closed his trial. He deposed that the production of the candidate’s examination attendance lists for ATP 100 by the respondent was cunningly adduced in a bid to establish a fact in dispute pertaining to the conflicting examination booklet numbers which therefore was caught up by the provisions of section 35 (3) of the Evidence Act, Cap. 80. He sought to have the documents expunged from the record of the Tribunal.

8. He contended that the probative value of the evidence in the new documents adduced by the respondent was outweighed by the prejudice the said evidence would occasion to him on admission which in turn would amount to a violation of his right to a fair trial under article 50 (1) of Constitution of Kenya, 2010. He raised an apprehension that the respondent had adduced the new evidence after the close of pleadings to patch up the shortcomings in it’s case after carefully deducing his entire case from his written submissions earlier filed. He now claimed that the forensic handwriting expert report prepared by the Ethics and Anti-Corruption Commission examiner Mr. Jacob Oduor had turned the Tribunal into an investigative arena since the report had findings relating to his handwriting and signatures from extraneous documents which were not originally part of the record.

9. He further contended that the Tribunal had only granted leave to the respondent to file a handwriting expert report limited to establishing the handwriting on the disputed Civil Litigation cover page produced by the respondent in it’s initial response dated 8th March, 2023. The respondent while seeking leave did not indicate it intended to file additional evidence to support it’s case. He finally deposed that the respondent was silent on the General Notice no. 2 of 2022 which nevertheless he humbly implored the Tribunal to particularly interpret it’s purpose and relevance in the declaration of the Advocates Training Programme results by the respondent.

D. The submissions on the appeal. 10. The appellant submitted that he had relied on the General Notice no. 2 of 2022 and the re-sit results of the respondent showing he had passed ATP 100 – Civil Litigation examinations. The appellant sought to justify the finality of the General Notice no. 2 of 2022 on the basis that the respondent had affixed it’s common seal in accordance with section 16 of the Legal Education Act, no. 27 of 2012 which at sub-section (2) provides;“The common seal of the council shall, when affixed to a document and duly authenticated, be judicially and officially noticed and unless and until the contrary is proved any necessary order or authorization of the council under this section shall be presumed to have been duly given.”

11. The appellant submitted that he was not promptly informed by the respondent on the ERP system erroneously doubling of his mark and the error for over one year. This in his view was a breach of the right to natural justice. He relied on the decision in Republic v Kenyatta University ex-parte Martha Waihuini Ndung’u in which Justice John Mativo as he then was held;“An administrative decision is flawed if it is illegal.”

12. He submitted that his entitlement to legitimate expectation and fair administrative action had been breached. He insisted that the cover page of his ATP 100 – Civil Litigation booklet was serial no. 83521 and not 80551 as adduced by the respondent. He submitted that the page had been falsified to defeat his rightful claim.

13. As regards fair administrative action he relied in the decision in Suchan Investement Limited v Ministry of Heritage & Culture & 3 Others [2016] eKLR in which it was held;“Under article 47 (2) of Constitution as read with the provisions of the Fair Administrative Action Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principal of law in Kenya. A shift has taken place and there is a requirement to give reasons for administrative decisions.”

14. The respondent reiterated it’s position as embodied in the response to the appeal that an error had been occasioned by the ERP system which depicted that the appellant has passed ATP 100 – Civil Litigation examination. The error was corrected upon detection and the respondent was possessed with authority to correct the error as the communication of the results was based on a provisional transcript. There was no breach of Article 47 of Constitution of Kenya, 2010.

15. It relied in the decision in C. R (Suing through the father and Next friend) & 130 others v Kenya National Examination Council [2017] eKLR in which it was stated;“An administrative decision can only be challenged for illegality, irrationality and procedural impropriety. A close look at the material presented before the court does not demonstrate any of the above. The decision has not been shown to be illegal or ultra-vires and outside the functions of the respondent.”

16. On the breach of legitimate expectation, the respondent submitted that the appellant had failed to demonstrate the existence of a representation which was clear, unambiguous and devoid of relevant qualification. It relied in the decision of the Supreme Court in Communication Commission of Kenya v Royal Media Services Ltd & 5 Others [2014] eKLR. It contended that legitimate expectation could not apply to the appellant’s case as it would be against the law. It relied in the decision in Republic v Nairobi City Council & Another ex-parte Wainaina Kigathi Mungai, HC. Judicial Review Misc. Appli. No. 356 of 2013 in which it was held;“The legal position is that legitimate expectation cannot override the law.’

17. It submitted that the Tribunal could not usurp the respondent’s functions under section 8 of the Legal Education Act, 2012. It could not also compel the respondent to exercise it’s discretion in a particular manner, especially if the same compromises the mandate of the respondent. It relied in the decision in Cherono Gladys v University of Nairobi, [2020] eKLR in which it was held;“It is true that courts have upheld the constitutional right of every citizen to choose a profession or a course of study subject to a fair, reasonable and academic requirement. But like any other right conferred on people, the same is regulated by the regulating body to safeguard general welfare of the public.”

18. It implored the Tribunal to adopt the non- interventional approach in academic decisions reached by a public body. It relied on the decision in Maharashtra State Board v Kurmarsheti & Others, [1985] CLR 1083 in which it was held;“So long as a body entrusted with the task of framing the rules and regulations act within the scope of the authority conferred on it in the sense that the rules or regulations made by it have a rational nexus with the object and purposes of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules and regulations.”

19. The respondent submitted to grant the relief sought in the appeal it would amount to ordering an institution to do that which is against the law. It relied in the authority in Kenya National Examinations v Republic ex-parte Kemunto Regina Oura, [2010] eKLR in which it was stated;“It is against the law to require an authority to do what is contrary to the law.”

20. Finally, as to damages the respondent submitted that the appellant had not established entitlement to the same. He had not shown the loss or injury he suffered as a result of the respondent’s action.

E. Analysis and determination 21. The Tribunal has considered the evidence and the lengthy submissions by the parties in this appeal coupled with the law, the many authorities and extracts from the legal treaties relied on by the parties to buttress their respective rival positions and renders itself on the respective matters that have arisen.

22. The gravamen of the appeal is that the appellant who was a Bar examination candidate in respect of the Advocates Training Programme offered by the interested party and examined by the respondent was unsuccessful in the ATP 100 - Civil Procedure examination. He re-sat the said examination during the November, 2021 examination series.

23. The respondent communicated vide a provisional transcript that he had passed the examination having attained a mark of 67% in the said unit. The respondent proceeded to prepare General Notice no. 2 of 2022 which included the appellant as one of the students that had successfully completed the Advocates Training Programme and was now to proceed for gazettement in preparation for admission to the Bar. However, subsequent thereto the respondent discovered that the appellant’s mark in the said unit was by error doubled by its system and corrected the same leading to a situation whereby the appellant now had 33. 3% marks hence a fail.

24. The respondent asserts that the appellant’s booklet for the said unit had a score of 20 out of 60 which constitutes 33. 3% thus a fail. The appellant denies that the booklet is his and raises an insinuation as against the respondent of falsifying his mark. Both parties have put-forth before the Tribunal conflicting Forensic Document Examiners reports as to the handwriting on the booklet. The Tribunal based on its powers has considered the two experts reports. It will proceed to evaluate the same based on the guidelines in the authority in Stephen Kinini Wangondu v The Ark Ltd (2016) eKLR in which Justice John Mativo as he then was observed;“Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even a provisional one.”

25. The Tribunal notes that during the preparation of the report presented by the appellant he only had the benefit of the copy of the cover page of the booklet as filed by the respondent as an exhibit to the response. The preparation of the report did not involve the respondent at all. It was his own unilateral initiative.

26. In respect of the report by the respondent, the appellant was invited to participate by the respondent. He made his demands to the respondent through his advocate as to the money he required to be facilitated to travel from Nanyuki to Nairobi in the sum of sh. 6,500 (Six Thousand Five Hundred) and he was given. He voluntarily submitted his specimen handwriting to the respondent for expert examination. He only took up issues after the report turned out to be adverse to him.

27. The Tribunal also notes that the report prepared on behalf of the respondent had the benefit of the original booklet and other materials which were used to compile it in-respect of the appellant’s other examination scripts. The report by the respondent is also more detailed compared to that done on behalf of the appellant and leads to an irresistible conclusion that the booklet placed before the Tribunal by the respondent constitutes the appellant’s examination script and the mark contained thereon of 20 out of 60 is what the appellant attained. The Tribunal has no hesitation in finding the position of the respondent that the appellant was unsuccessful in the ATP 100 - Civil Procedure examination is well established.

28. The appellant has complained about the admissibility of the report prepared on behalf of the respondent by the Forensic Document Examiner of the Ethics and Anti Corruption Commission. He alleges it is an ambush and casts aspersions over it’s probative value by seeking to invoke section 35 (3) of the Evidence Act, Cap. 80 to have the same expunged by the Tribunal. The same provides;“Nothing in this section shall render admissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

29. The appellant was not clear as to the application of the said provision to this appeal. However, the Tribunal finds that the said provision would not act as a basis for exclusion of the evidence in issue as the it is well reposed with jurisdiction to receive evidence that may not meet the strictures of the law of evidence as enacted in the Evidence Act, Cap. 80. The Tribunal is well fortified by section 31 (4) of the Legal Education Act, no. 27 of 2012 which provides;“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.”

30. The appellant also complained that the respondent went beyond the leave granted to file the further affidavit by including more documents. The Tribunal finds that the order granted did not constrain the respondent as to the extent to which it could adduce evidence of the document examiner’s report. The appellant never objected or sought to implore the Tribunal at the stage of granting the leave to fetter the respondent as to the extent of the lodging of the further affidavit. The Tribunal gave an order in-tandem with section 31 (3) of the Legal Education Act, 2012 which provides;“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.”

31. The appellant has also taken up the issue that the admissibility of the report was a breach of his right to a fair hearing as guaranteed by article 50 (1) of Constitution of Kenya, 2010. The Tribunal finds that the appellant’s complaint does not lie. The Tribunal in the first instance at an oral application made by the respondent and again subsequently upon a written application by the respondent delivered an interlocutory ruling in this matter declining an order to compel the Directorate of Criminal Investigations to compile a forensic report over the appellant’s ATP 100 - Civil Litigation booklet. The Tribunal well analysed the law and rendered itself as follows;“We would like to preface our determination by laying the legal architecture that grants the police powers to investigate crimes and generally carry out its duties under the various enabling juridical regimes relevant to the motion before us. First, Section 35 (g) of the National Police Service Act No. 11A of 2011 allows the Director of Criminal Investigation to undertake forensic analysis while undertaking investigations where a complaint has been lodged as provided by law. Secondly, Article 245 (9) (a) of Constitution states no person may give a direction to the Inspector General of Police with respect to investigations of any offence or offences. The Inspector General of Police has constitutionally guaranteed independence to ensure investigations are undertaken independently. From the organogram of the police force, as can be discerned from Section 35 (g) of the National Police Service Act, the Directorate of Criminal Investigations falls under the Inspector General of Police which is an independent institution. A plain reading of the law above leads us to a conclusion that the Inspector General of Police does not require a court order to undertake its mandate since under Section 24 of the National Police Service Act, one of its power is to investigate crimes. It is beyond peradventure that no complaint has been lodged in this matter. The response to the Applicant’s letter is guiding the Applicant on what it needs to do to invoke the process that would lead to police involvement.”

32. The Tribunal was well aware of the dictates of the adversarial system of justice in play. However, the appellant at his own behest entered into engagements with the respondent on how a report could be compiled in his matter and even accepted to receive funding by tabulating his expenses to aid the respondent in the matter. The Tribunal finds that article 50 (4) of Constitution of Kenya, 2010 cannot now be invoked in his aid to carry out an exclusionary process of the adverse report arising from a consensual process between the parties. The appellant falls outside the purview of exclusion. The same provides as follows;“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.”

33. Indeed the appellant cannot now be heard to claim a breach of article 50 (1) of Constitution of Kenya, 2010 when on his own motion he engaged in the process of compiling a report. The onus was on the appellant who alleged the breach of his right to establish the breach and the situations which would fall within the purview of legal exclusion.

34. As regards, fair administrative action and legitimate expectation, the Tribunal has noted the decision as to the error and the reversal of the result was not informed to the appellant for over one year. The delay amounts to clear breach of the right to fair administrative action however, as well stated by the respondent he did not prove damage arising from the said breach. The Tribunal well adopts the decision in Wesley Ndanda Charo v University of Nairobi, [2020] eKLR in which Justice Makau held;“On the issue of the claim for damages, the burden of proof lies with the petitioner. He has in his petition not placed evidence in respect of the claim for damages. No evidence is on record in support of the question of damages.”

35. As for legitimate expectation the appellant has been confirmed to have failed the examination. The respondent could not be compelled to act in breach of the law to allow him to obtain an erroneous advantage arising from the ERP system. Legitimate expectation cannot run afoul the law. The error in the system of the respondent howsoever held out could not create an expectation as it had no legitimate genesis.

36. On General Notice no. 2 of 2022 which the appellant implored the Tribunal to particularly interpret its purpose and relevance in the declaration of the Advocates Training Programme results by the respondent. The Tribunal finds that an erroneous entry occasioned by technological challenges of a system which had been put in place to act as a yardstick for eligibility to admission to the Bar cannot be said to constitute finality and act as an irreversible bar in the event of an error being established as in this case. The Tribunal notes that this appeal presents no novelty on the matter as a similar matter was determined by it in Nairobi LEAT Appeal no. E033 of 2002 - Allaudin Adam v Council of Legal Education. In the said matter it was held;“The fact that the error was on five occassions is not evidence of negligence as an errorenous fact howsoever number of times it recures cannot be deemed to constitute a correct state of affairs as to the appellant’s mark for the ATP 100 - Civil Litigation course. The right to education can not be said to have breached by the correction of an error that arose by an examination system which had been put in place to process marks. The appellant also did not demonstrate that the respondent was actuated by malice, spite or ill will in taking the action it did in reversing the erroneous state of affairs. The respondent being the expert reposed by the public with the mandate of the administration of the Bar examinations and the processing of results is best left to duly discharge it’s statutory mandate unless and until it is so established there is a breach of the mandate. The public interest weighs against an interference of the mandate.”

F. Dispositiona.That the appeal by Maina Eric Ndung’u against the decision dated the 19th January, 2023 as communicated by Ms. Mary Mutugi – Ag. Chief Executive Officer of the Council of Legal Education correcting an erroneous result and requiring a re-sit of the Advocates Training Programme examination for ATP 100 – Civil Litigation is dismissed and the decision of the respondent upheld.b.That each party shall bear its own costs of the appeal.c.Thatany 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 14TH DAY OF JULY, 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBER