[2023] KELEAT 385 (KLR)

Ndung’u v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E023 of 2023) [2023] KELEAT 385 (KLR) (7 July 2023) (Judgment)

Neutral citation: [2023] KELEAT 385 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E023 of 2023

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

July 7, 2023

Between

Karanja Kelvin Ndung’u

Appellant

and

Kenya School Of Law

Respondent

and

Council Of Legal Eduction

Interested Party

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 6th January, 2023 and 12th January 2023 rejecting admission into the Advocates Training Programme during the 2023/2024 academic year)

Judgment

A. Background 1. The Appellant who was aggrieved by the decision of the Respondent communicated vide its letters of 6th and January 12, 2023 declining him admission to the Advocates Training Programme (“ATP”) for the 2023/2024 Academic Year filed his Memorandum of Appeal dated April 19, 2023 before this Tribunal. His Appeal was accompanied by a Supporting Affidavit sworn on April 19, 2023 as well as supporting documents.1. In his Appeal, the Appellant states that he holds a Bachelor of Laws degree, 2nd Class (Upper Division) from the University of Nairobi, which degree was attained on December 16, 2022. Before studying for his Bachelor of Laws degree, he obtained a bachelor’s degree in Business Information Technology from Jomo Kenyatta University of Agriculture Science and Technology.2. The Appellant laments that the Respondent has declined his application for admission into the ATP on the basis that he does not qualify based on his Kenya Certificate of Secondary Education (“KCSE”) results. The Appellant rebuts this contention and states that he qualifies by virtue of Section 1(a) of the Second Schedule to the Kenya School of Law Act, 2012. 3.He goes ahead to state in his Appeal that he attained a Mean Grade of C+ (Plus) with Grade B- (minus) in English and C- (Minus) in Kiswahili.4. The Respondent has opposed the Appeal and filed its Replying Affidavit sworn by Mr. Fredrick Muhia, the Principal Officer Academic Services on June 9, 2023. 5.The Appellant also seeks to rely on his Supplementary Affidavit sworn on 8th June 2023. 6.The Appellant has in his Appeal set out the following reliefs and orders for consideration by the Tribunal:i.That the Tribunal issues an order declaring that the decision of the Respondent as communicated by its director on 6th and 12th January 2023 declining him admission to the ATP for the Academic Year 2023/ 2024 is set aside;ii.That the decision by of the Respondent as communicated by its director dated 6th and 12th January 2023 be quashed;iii.That the Tribunal declares the Appellant eligible for admission to the ATP;iv.That the Tribunal issues an order compelling the Respondent to grant letters of admission to the Appellant for the ATP.

8. The Interested Party did not file any response or submissions in these proceedings.

B. The Appeal by the Appellant 9. The Appellant relied on the grounds on the face of the Memorandum of Appeal dated April 19, 2023, which were inter alia:i.That the Respondent wrongly decided that the Appellant had not met the requisite qualifications to be admitted for the ATP notwithstanding the fact that the Appellant holds a Bachelor of Laws Degree Second Class Honours (Upper Division) and a Bachelor of Business Information Technology from Jomo Kenyatta University of Agriculture Science and Technology.ii.That the Respondent failed to appreciate that the Appellant had met the set qualifications for being admitted at the Advocates Training Program by virtue of Section 1(a) of the Second schedule of the Kenya School of Law Act, 2012. iii.The Appellant also states that he qualifies for admission to the ATP by virtue of the fact that his admission to the University of Nairobi on February 12, 2018, after making his application for the same on January 15, 2018, was according to him based on the Accreditation and Quality Assurance Regulations set out by the Council of Legal Education set out in 2016.

10. The first letter of January 6, 2023 impugned by the Appellant reads in part as follows:“Dear Mr. KaranjaAdmission To The Kenya School Of Law-academic YearReference is made to your application for admission to 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):You attained grade B(minus) and C(minus) in English and Kiswahili respectively which are below the stipulated minimum grades under the KSL Act 2012. Additionally, the Act has no provision for progression.Thank you…..”

11. The second letter of January 12, 2023 reads in part as follows:“Dear Mr. KaranjaAdmission To The Kenya School Of Law-academic YearReference is made to your application for admission to 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):Rejected due to the same reasons.Thank you…”

C. The Respondent’s Response the Appeal 12. The Respondent contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act 2012.

13. The Respondent further stated 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.

14. The Respondent further contends that upon the Appellant making his application to the ATP, it was discovered that he did not meet 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.

15. That under section 16 of the Kenya School of Law Act 2012, as read with Paragraph 1 of the Second Schedule, the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in KCSE with B(plain) in English or Kiswahili languages which the Appellant did not have.

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

D. The Appellants’ Submissions 17. The Appellant sets out the following issues for determination:i.Whether the Appellant qualified for admission into the University of Nairobi to pursue his Bachelor of Laws degree in 2016 and whether his Bachelor of Laws degree is valid.ii.Whether there was a legitimate expectation relied upon when he was admitted to the University of Nairobi, for the Bachelor of Laws degree based on the then set Legal Education (Accreditation and Quality Assurance) Regulations, 2016iii.Whether the Appellant meets the requirements for admission into the ATP

18. To buttress his contention that he qualified for admission into the Bachelor of Laws degree and ATP, the Appellant sought to rely on the case of Anthony Waziri Kitsao V Kenya School of Law and Another, 2021 eKLR and Mucheke V Kenya School of Law, LEAT Appeal No. E026 of 2022 where the Tribunal decided the respective appeals in favour of the Appellants in those cases.

19. On the issue of legitimate expectation, the Appellant states that he had a legitimate expectation which he relied on when he was admitted into the University of Nairobi for the Bachelor of Laws degree and relies on the Supreme Court case of Communications Commission of Kenya & 5 Others V Royal Media Services & 5 Others and the case of Republic V Principal Secretary, Ministry of Transport, Housing and Urban Development Ex-Parte Soweto Residents Forum CBO (2019) eKLR

20. The Appellant submits that Section 16 and the 2nd Schedule Paragraphs (1) (a) of the Kenya School of Law Act, 2012 provides for the criteria for admission of students for the ATP and that the Appellant is qualified under 2nd Schedule Paragraphs (1) (a).

21. He relies on the Consolidated Appeals in the case of Maina v Kenya School of Law & Another (2022) eKLR on the distinction in qualification criteria of paragraphs (a) and (b) of of Section 1 in the 2nd Schedule of the Kenya School of Law Act, 2012

22. The Appellant also submits that the prevailing legal instrument that was applicable to him at the time of his admission to the LL.B degree was the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

23. The Appellant further submits that he was admitted to the University of Nairobi for the LLB degree programme on February 12, 2018, following his application dated January 15, 2018. He cites the Court of Appeal decision in Javan Kiche Otieno & Another vs Council of Legal Education [2021] eKLR, in support of his contention of qualification under the said Regulations.

24. The Appellant contends that his action had crystallized before the said Regulations were declared invalid, and thus should not be affected by the said declaration of invalidity.

E. The Respondent’s Submissions 25. The Respondent set out the following as the issues for determination:i.Does the Tribunal have jurisdiction over the matter?ii.Is the Double standards in admission qualification discriminatory or justifiable?iii.Whether the Respondent’s decision to refuse admission to the Respondent’s Advocates Training Programme was a breach of legitimate expectations.iv.Is Academic progression applicable?

26. The Respondent further submits that the Tribunal does not have jurisdiction over the matter, they state that LEAT was created by the Legal Education Act under Part VI and its jurisdiction under that Part, is to hear appeals matters arising out of the Legal Education Act, 2012. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act, 2012.

27. The Respondent also submits that this Honourable Tribunal's jurisdiction is limited to matters that relate to the Legal Education Act 2012 which states in section 31(1) that:“31. Jurisdiction of Tribunal(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. The Respondent submits that the Tribunal is a creature of the Legal Education Act which was enacted to establish it. Thus, the Legal Education Act 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.

29. The Respondent goes ahead to submit that Section 30 flows from section 29 which established LEAT, spells out its purpose and specifies the membership and crucially, section 31 grants the Tribunal jurisdiction on any matter relating to this Act, it submits that it is clear that these sections do not expressly confer upon Tribunal power to adjudicate matters that are outside the scope of the Legal Education Act 2012.

30. As to whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable the Respondent submits inter alia that in constructing a statutory provision, the first and foremost rule is that of literal construction. If the interpretation is unambiguous and the legislative intent is clear then the meaning is applied without resort to other rules of statutory interpretation.

31. The Respondent urges the Tribunal to adopt an interpretation that will not only make the statutory provisions on admission operative and workable, but also to make them operative in a just and reasonable manner.

32. Concerning the issue of whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent quotes the Court of Appeal decision and submits that the Appellant did not meet the admission criteria.

33. On whether the procedure to refuse admission was illegal and unreasonable the Respondent submits that its hands were tied by statute and that the decision was fair, just and procedurally correct.

34. On the issue of academic progression the Respondent submits that the Appellant does not qualify to be admitted to the 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.

F. Analysis and determination 35. On the contention that the Tribunal has no jurisdiction to entertain this Appeal, we note that the primary relief sought by the Appellant is hinged on two main points:i.His entitlement to admission to the Advocates Training Programme based on section 1 (a) of the Second schedule of the Kenya School of Law Act, 2012. ii.His academic progression and in particular, his entitlement to admission to the Advocates Training Programme under the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which were formulated by the interested party pursuant to the Legal Education Act, 2012.

36. Section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the interested party 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. The Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the interested party pursuant to the Legal Education Act, 2012.

37. This function has been confirmed in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at page 21 as follows;“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.It should be noted that whereas the Council has to powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”

38. It is therefore apparent that in inquiring into the matter of applicability of academic progression, the Tribunal will be discharging its mandate under section 31 of the Legal Education Act, 2012.

39. In view of the above, the Tribunal is confident that it has the requisite jurisdiction to inquire into the appeals before it by dint of section 31 (1) of the Act which provides;

40. As regards the appeal, the appellant’s main thrust is that he is entitled to admission to the Advocates Training Programme predicated on the fact that he held a Bachelor of Laws degrees from the University of Nairobi, a recognized university in Kenya. Thus, he 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.

41. The section provides 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; 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.”

42. Indeed, in his submissions, the Appellant cited past authorities where the Tribunal had held that the conjunction ‘or’ between the two sections is an elective, and that a disjunctive interpretation was to be adopted so that the applicants to the Advocates Training Programme were to only be subjected to a singular as opposed to a conjunct criteria in consideration of their applications to the Programme.

43. The Tribunal notes that being respectful of the hierarchy of courts, this position shifted, following the pronouncement 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.”

44. Based therefore on a conjunctive interpretation, as propounded by the Court of Appeal, the Respondent’s decision declining the Appellant’s admission to the Advocates Training Programme is a correct one, since the appellant failed to meet the minimum required English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above.

45. The Appellant attained a Mean Grade of C+(plus) with Grade B- (minus) in English and C- (minus) in Kiswahili languages respectively, which are below the stipulated minimum.

46. The Appellant has explored his entitlement to benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

47. He states that he applied for admission to the Bachelor of Laws degree on January 15, 2018, and was admitted for the course on February 12, 2018, and subsequently graduated therefrom with a second class Honours (upper Division), he notes that his admission was based on his successful undertaking of a Bachelor of Business Information Technology from Jomo Kenyatta University of Agriculture Science and Technology.

48. The interested party had formulated a 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.”

49. However, the validity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, was challenged 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, on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the January 30, 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.”

50. The Court of Appeal cited with approval the declaration of invalidity of the regulations, in its judgment of December 21, 2021, in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR, and went on to add, that the declaration of invalidity would not affect actions already crystallized whilst the expunged law was still in force. Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 47 of the judgment stated;“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.”

51. The operative date of the declaration of invalidity is January 30, 2018 (being the date of the decision by the High Court as affirmed by the Court of Appeal), on this date, 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.

52. Whereas the Appellant applied for admission for his Bachelor of Laws degree course on January 15, 2018, he was not admitted until February 12, 2018. Painfully, it is noted that his admission was made after the date of the declaration of invalidity of the 2016 Regulations, and his enrolment was therefore not a crystallized action, unfortunately, he cannot therefore obtain benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

53. Whereas in the case of Mucheke -v- Kenya School of Law, Leat Appeal No E026 Of 2022, which the Appellant has extensively cited, the Tribunal held that the Court of Appeal decision of December 21, 2021 was the operative date of the declaration of invalidity of the 2016 Regulations, the Tribunal after subsequent research and discourse is persuaded that operative date is January 30, 2018, when the trial court made the declaration of invalidity, and which was later cited with approval by the Court of Appeal.

54. The principle that a Tribunal is not bound by its previous findings was expressed by the Supreme Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR, when the judges stated as follows:“In principle, matters on the agenda of an administrative tribunal will merit determination on the basis of the claims of each case, and will depend on the special factual dynamics. The relevant factors of materiality, and of urgency, will require individualized response in many cases: and in these circumstances, a strict application of standard rules of procedure or evidence may negate the fundamental policy-object. On this account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case. Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.(44)We would agree with the 1 respondent, that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject-matter before them. Matters before an administrative tribunal should be determined on a case-to- case basis, depending on the facts in place.

55. The Tribunal has considered whether the Appellant would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the interested party 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.

56. The law on progression as enacted in section 8 (3) (c) of the Legal Education Act, 2012 confines progression to the field of law. The said matter was a subject of consideration 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 at page 28;The wording in part C above is clear as it is, that prior learning and experience in law is what ought to be considered in formulating a system that would see the progression in legal education. We do not think a degree in aeronautics or a diploma in interior design for instance, can be termed as progression towards studying law. Indeed, the only closer aspect contemplated is experience and learning in law culminating in a diploma in law or related course in law. We therefore hold that such degree and diploma are not to be categorized as a progression in law of whatsoever kind and even if they were, the appellant had to consider the primary requirements in the Act first before reverting to the regulations and which is the requirement of grades in KCSE.”

g.The degree course held by the Appellant prior to his enrolment for his LL.B is not in the field of law and therefore does not fall within the realm of academic progression as contemplated under Sec 8(3) of the Legal Education Act.h.It follows that legitimate expectation cannot accrue if the action or benefit expected is not supported by the law. Discussing legitimate expectation, H. W. R. Wade & C. F. Forsyth (Administrative Law, by H.W.R. Wade, C. F. Forsyth, Oxford University Press, 2000), at pages 449 to 450 states thus: 57It is not enough that an expectation should exist; it must in addition be legitimate. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation.

58Second, clear statutory words, of course, override an expectation howsoever founded. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."

DispositionIt Is Decreeda.That the appeal by Karanja Kelvin Ndung’u as against the Respondent’s decisions declining admission to the Advocates Training Programme during the 2023/24 academic years as communicated by the respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law in the decisions dated the 6th and January 12, 2023 is dismissed.b.That each party to bear its own costs of the appeal.c.That any party aggrieved by this decision is at 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… 7th … 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 Tribunal8