Ngoa v Kenya School of Law & another (Tribunal Appeal E016 of 2026) [2026] KELEAT 3 (KLR) (24 March 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E016/2026 ADAM NYAE NGOA VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION # JUDGMENT **A. Introduction and Background** 1. The Appellant, **ADAM NYAE NGOA**, through a Memorandum of Appeal, dated 23rd January 2026, instituted this Appeal against the **KENYA SCHOOL OF LAW** as the 1st Respondent and the **COUNCIL OF LEGAL EDUCATION**, as the Interested Party; 1. The Appellant challenges the decision of the 1st Respondent rejecting his application of admission to the Advocates Training Programme (ATP) on the ground that he did not meet the minimum Kenya Certificate of Secondary Education (KCSE) requirements as prescribed under Section 16 as read with the Second Schedule of the Kenya School of Law Act, 2012; 1. The Appellant seeks the following orders: - 1. Spent. 2. That this Honourable Tribunal be pleased to quash the decisions of theDirector of the Kenya School of Law Dr. Henry K. Mutai dated 22nd December 2025 and 14th January 2026; * 1. That this Honourable Tribunal be pleased to order and/or direct the Respondent to admit the Appellant to the ATP for the academic year 2026/2027; * 1. That any other order that this Honourable Tribunal may deem just and expedient to grant; and * 1. That the costs of this Appeal be borne by the Respondent. 1. The Appeal is premised on the following grounds: - * 1. In 2013, the Appellant attained a mean grade of C+ (plus), a B-(minus) inEnglish and a B-(minus) in Kiswahili, in his Kenya Certificate of Secondary Education (KCSE); * + 1. In 2016, he enrolled for a Diploma in Law Programme at Mount Kenya University and graduated in December 2018 with Credit II; * + 1. On 3rd September 2018, the Appellant, on the strength of the Diploma in Law, was admitted at Mount Kenya University, to pursue a Bachelor of Laws (LLB) Degree, graduating on 29th July 2022, with Second Class, Upper Division; * + 1. Subsequently, on 28th November, 2025, the Appellant applied for admission to the ATP with the Respondent. On 28th December, 2025, his application was declined on the ground that he did not score the minimum grade of B (Plain) in either English or Kiswahili. On appeal against this decision, the Respondent, in its decision rendered on 14th January 2026, affirmed the same decision, for the reason that the Appellant was admitted into LLB after 8th December, 2014; 2. That the Appellant, by holding a Diploma in Law prior to his application foradmission to the ATP, he is qualified for admission on the basis of academic progression; 3. That by the nullification of Section 16 and the Second Schedule of theKenya School of Law Act, 2012 (which provided for minimum KCSE qualifications of a mean grade of C+ (plus) and a grade of B (Plain) in either English or Kiswahili), in the recent decision of **Stephen Nikita Otinga v Cabinet Secretary, Ministry of Education & 3 Others, Civil Appeal No. E625 of 2023**, **(Otinga decision)**, it can no longer be a basis of relying on these provisions to deny the Appellant admission to thew ATP; and 4. That the Appellant’s admission to the ATP properly falls within theframework of Section 8 (3) (c) of the Legal Education Act, 2012, and Regulation 5 (c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009. 1. The Appeal is accompanied by a Supporting Affidavit sworn by the Appellanton 23rd January 2026 which regurgitates the grounds set on the face of the Memorandum of Appeal. 2. The Respondent filed its Replying Affidavit dated 9th February 2026, sworn by **Lawrence Ndirangu**, the Officer, Academic Services, at the Respondent institution, and avers the following: * 1. That the Respondent is a state corporation established under Section 3 ofthe Kenya School of Law Act, 2012 (Cap 16C) for training persons for the purpose of the Advocates Act (Cap 16); He further contended that admission into the Respondent’s ATP is exclusively governed by Section 16 of the Kenya School of Law Act, 2012; * + 1. That this Tribunal lacks jurisdiction to entertain the present appeal, as itsjurisdiction is limited to matters arising under the Legal Education Act, 2012; 2. That the Appellant was found ineligible for admission based on theeligibility criteria prescribed under Section 16 of the Kenya School of Law Act, 2012, read together with Paragraph 1 of the Second Schedule of the Act, as interpreted by the Court of Appeal. Paragraph 1 of the Second Schedule of the Kenya School of Law Act, 2012, read with Section 16 of the Act, expressly provides that the minimum admission requirement for the ATP is a KCSE mean grade of C+ (plus) with a minimum grade of B (plain) in either English or Kiswahili, which the Appellant did not attain; and * + 1. That the Kenya School of Law Act, 2012 does not provide for academicprogression and prior experience as a basis for admission into the ATP, and that allowing people to join ATP at the school on the basis that they had a previous unrelated degree prior to joining LLB degree programme would be to circumvent clear provisions of a statute and explicit determination of the Court of Appeal. 1. The Interested Party filed its response through a Replying Affidavit dated23rd February 2026. The deponent, Prof Busalile Jack Mwimali, the Interested Party’s Chief Executive Officer, averred the following: * + - 1. That the Interested Party makes the response solely in its capacity asthe regulator of legal education and training in Kenya, with no direct interest in the outcome other than the proper application of the law and the maintenance of professional standards; 2. That it is governed by the Legal Education Act, CAP 16B, which outlinesits statutory mandate which includes establishing and upholding standards for all legal education, including the ATP, and the Kenya School of Law Act , CAP 16C, is one of the frameworks used to carry out this objective; * + - * 1. Its mandate under Sections 8 and 21 of the Legal Education Act, CAP16B, includes the responsibility to ensure quality assurance, accreditation, and compliance with prescribed standards across all institutions offering legal education and professional training in Kenya; 2. That its regulatory authority has been affirmed by the Kenyan courts inmatters of legal education and training, including admission and progression standards. That it acknowledges pathways in law education as stipulated under Section 22 of the Legal Education Act, CAP 16B on legal education at certificate, diploma, and degree level, with specific requirements under the Second Schedule outlining core courses to be undertaken, and respects the jurisprudence on academic progression and relies on the case of **Republic v Council of Legal Education & Another ex parte Sabiha Kassamia & Another [2018] eKLR**; 3. It underscores that academic progression in legal education is notautomatic but must comply with statutory and regulatory thresholds; 4. That although Section 22 of the Legal Education Act, CAP 16B, providesfor multiple pathways in legal education, however, it does not abrogate its power to determine equivalency, recognition, and suitability of qualifications for purposes of progression to the ATP; and 5. Lastly, that in exercising its mandate under Section 8 (3) (a) of the LegalEducation Act, CAP 16B, it is in the process of developing regulations to formulate admission requirements to the ATP and the same is undergoing stakeholders’ engagement/participation. **B. Submissions** **Appellant’s submissions** 1. The Appellant filed his submissions dated 12th February 2026 setting out three issues it commends the Tribunal for determination: whether the Honourable Tribunal is clothed with the prerequisite jurisdiction to hear and determine the Appeal; whether the Appellant meets the requisite qualifications for admission to the ATP; and, whether the Appellant’s right to fair administration was violated by the Respondent; 1. On jurisdiction, the Appellant maintains that the Tribunal has the necessaryjurisdiction and underscores the critical place of jurisdiction in any judicial proceedings by relying on the celebrated case of, **Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1.** He further relies on Section 31 of the Legal Education Act, 2012, and submits that it confers jurisdiction on the tribunal and relies on the case of **In Republic v Kenya School of Law & 2 Others Ex Parte Kgaborone Tsholofelo Wekesa [2019] eKL.** On the argument that the Tribunal has the mandate to inquire into the admission process that will eventually lead to the bar examinations, the Appellant relies on the case of **Nabulime Miriam & Others v Council of Legal Education & 5 Others (2016) eKLR.** 2. On eligibility criteria and the applicable law governing admission to theATP, the Appellant’s core argument is that Section 16 and the Second Schedule of the Kenya School of Law Act, upon which his application to the ATP was rejected by the 1st Respondent, have since been declared unconstitutional, null and void by the Court of Appeal in the **Otinga case (Supra). He relies on the case of Akoyo v Permanent Secretary, State Department for Devolution, Attorney General (Application 440 of 2018) [2023] KEHC, which case explained the net effect of annulling an Act, that it is void, and is in law a nullity; it is not only bad, but incurably bad.** 3. Consequently, it is submitted that the 1st Respondent defied binding judicial authority by relying on nullified provisions of the law; thus it renders its decision void *ab initio*; 4. As at the time of his admission into the LLB Programme, the CLEregulations relied upon were the Council of Legal Education (Kenya School of Law) Regulations 2009, particularly Regulation 5 (c) and he met the qualifications as set out therein. He relies on the case of **Robert Uri Dabaly Jimma v Kenya School of Law & Another (2020) eKLR**, to buttress this point; 5. He further contended that he is eligible for admission on the basis ofacademic progression as a recognized pathway, as has been provided for under Section 8 (3) (a) and (c) of the Legal Education Act, 2012, having attained a Diploma in Law as a prerequisite of admission to the LLB Programme. He relied on the case of **Sidney Ogutu Peters & 2 Others v Kenya School of Law &** **Another (Consolidated Appeals Nos. E031 and E032 of 2022);** * 1. He invites the Honourable Tribunal to examine his documents and ascertainthat he holds an LLB Degree from Mount Kenya University, a Diploma in Law from the same university, and scored a mean grade of C+ (plus) and a B(minus) in English and a B-(minus) in Kiswahili in his KCSE. Consequently, he submits that the Tribunal should conclude that he is qualified for admission to ATP by dint of section 5 (c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009; * 1. As to whether the Respondent violated the Appellant’s right to fairadministrative action, he argues that the Respondent violated Article 47 of the Constitution and the Fair Administrative Action Act, 2015. He argued that the Respondent acted ultra vires by purporting to carry out the functions of the Interested Party; that of inquiring on the minimum admission requirements to the LLB programe. Consequently, the Appellant relies on the provisions of section 7 (2) (a) (i) of the Fair Administrative Action Act, 2015 in requesting the Tribunal to review the Respondent’s decision for the ground that the person who made the decision was not authorized to do so by the empowering provision. **Respondent’s Submissions** 1. The Respondent filed its submissions dated 19th February 2026, raising four issues for determination by this Tribunal; 2. On jurisdiction, the Respondent submitted, citing the late Justice Nyarangi in**Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd**, thatthe question of jurisdiction ought to be raised at the earliest opportunity and the court is then obliged to decide the issue right away on the material before it. Where the court lacks jurisdiction, it has no option but to down its tools; 3. The Respondent argued that the denial of the Applicant's admission to the ATPwas based on the provisions of the Kenya School of Law Act, 2012 and since the Tribunal is established under the Legal Education Act, 2012 and derives its jurisdiction solely from Section 31 of the same Act, it lacks jurisdiction over disputes emanating from the Kenya School of Law Act, 2012. It relies on the case of, **Kenya School of Law v Isaiah Munoru Mucheke, HCCA No. E002/2023.** It further quotes **Law Society of Kenya v Centre for Human Rights and Democracy & 13 Others [2012] eKLR; Bakeries Limited v Rent Restriction Tribunal and Kiriti Raval, HCMCC No. 246 of 1981**; to amplify its assertion on the consequences if a Tribunal lacks jurisdiction to hear and determine a matter; 13. On the applicable law in admissions to the ATP, the Respondent submitted that the process of admission to the ATP is provided for under Section 16 of the Kenya School of Law Act, No. 26 of 2012 and its required by the law to consider applications for admission to the ATP and once satisfied that the applicant is satisfied, admit the applicant to the School. It further submitted that the Appeal essentially asks for the Tribunal to grant her admission to the ATP and thereby arrogate the statutory duties of the school. It relies on the case of **Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] eKLR;** 4. On whether there is a double standard in ATP admission qualifications andwhether such a standard is discriminatory or justifiable, the Respondent argued that statutory interpretation must adhere to the ordinary meaning of words and grammatical construction of the statute. The Respondent urged the Tribunal to adopt the golden rule approach to avoid an absurd or unjust outcome. It cited the Court of Appeal in **Nairobi Civil Appeal No. E472 of 2022**, which emphasized that statutory interpretation requires courts to consider both text and context to ascertain true legislative intent; 5. The Respondent also submitted that it created no legitimate expectation forthe Appellant regarding his admission to the ATP; 6. On whether the procedure used to deny the Appellant’s admission was illegaland unreasonable, the Respondent argued that the process used to determine that the Appellant did not qualify for ATP admission was fair and just, guided by Article 47(1) of the Constitution; 7. The Respondent further submitted that the applicable law governingadmission to the ATP, being the Kenya School of Law Act 2012, as amended by Statute Law Miscellaneous Amendment Act (No. 18 of 2014) does not provide for academic progression; 8. It also relied on the **Otinga Case (Supra)** to highlight the position that regulatory bodies set minimum standards and the regulated bodies are obliged to comply with the minimum standards established, but are not barred from setting higher standards themselves; and 9. Consequently, it prayed that the Tribunal dismisses the appeal with costs, andalso emphasized that the Tribunal’s lack of jurisdiction over the matter. **The Interested Party’s Submissions** 10. The Interested Party filed it submissions dated 16th March 2026. It summarized five issues it considered critical for determination: 11. On what is the precise legal effect of the Court of Appeal’s nullification ofSection 16 of the Kenya School of Law Act by the **Otinga decision (supra)**, it submits that it acknowledges the binding effect of this decision in doing away with the KCSE qualifications as a mandatory qualification as a stand-alone filter for admission to the ATP. However, the authority did not bar it from considering all (other) remaining regulatory requirements for every applicant, and therefore an applicant to the ATP should satisfy all other valid and extant requirements prescribed by law; 12. It submits that the Tribunal’s concern should be whether the Appellantundertook a relevant progression Diploma in Law. It faults the Appellant for not providing the evidence necessary to answer this requirement; 13. It maintains that the Appellant’s legitimate expectation, if any, extended onlyto being assessed without regard to his KCSE and that the expectation has been fulfilled by the very fact that of this Appeal being heard on its merits, postnullification; 14. It asserts that the question before this Tribunal is transformed from, ‘Did theAppellant achieve Grade C+ in KCSE?’ to the more substantive question: ‘Did the Appellant undertake a relevant progression in Diploma in Law?’ It asserts that the Appellant has not provided evidence which responds to the second question in the affirmative; 15. The legal effect of the Court of Appeal’s nullification is purely eliminativeremoving a specific, unjust obstacle but it did not create a new entitlement, nor did it alter the fundamental architecture of legal prerequisites; 16. On whether academic progression is relevant to the law, the Interested Partysubmits that the Honourable Tribunal is bound by the clear and unequivocal of interpretation of Section 8 (3) ( c) of the Legal Education Act, in **Kenya School of Law v Otene Richard Akomo & 41 Others [2021] KECA 608 (KLR) (Otene case),**which establishes the foundational principle that for any prior qualification to constitute relevant ‘progression’ toward legal training, it must be intrinsically and substantively be legal in nature; progression in legal education requires prior legal learning or legal experience; 17. On whether the Interested Party bears any constitutional or statutory liabilityfor the liability actions of the 1st Respondent, it distances itself with the actions of the 1st Respondent and states that the two parties are distinct statutory bodies; and it is only the 1st Respondent which should be challenged on matters of admission to the ATP and therefore the suit against it is fatally defective for misjoinder; 18. On whether the Appellant is entitled to costs, the Interested Party submits thatcosts shall be in the discretion of the court; and 19. In conclusion, it submits that the Appeal is fundamentally unsound, resting onan evidential vacuum and consequently, the Honourable Tribunal should find that it has no merit and dismiss it in its entirety, with costs. **C. Analysis and Determination** 1. Having considered all the facts, the evidence and the submissions of theparties, the Tribunal has narrowed down the following issues for determination in this Appeal: - * + 1. **Whether this Tribunal has jurisdiction to hear and determine thisappeal.** 2. **Does the Otinga decision (supra) have any impact on thisAppeal?** 3. **What is the governing legal framework and whether theAppellant is qualified for admission to the ATP on the basis of academic progression?** 4. **Has the Appellant’s right to education been violated?** 5. **Can the Appellant benefit from the doctrine of legitimateexpectation?** 6. **Whether the Appellant is entitled to the Prayers sought?** * 1. **Whether this Tribunal has jurisdiction to hear and determine thisappeal.** 1. The Respondent challenges the jurisdiction of this Honourable Tribunal. Itasserts that ATP admission is guided exclusively by the Kenya School of Law Act, 2012 and thus, this Tribunal lacks jurisdiction as it derives its powers from the Legal Education Act, 2012. In this regard, the Tribunal concedes to the famous sentiments of Nyarangi JA in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR** that***:***- ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. Therefore, the Tribunal is obligated to determine its jurisdiction beforeproceeding to consider any other issue. 2. In determining the issue of jurisdiction, the Tribunal considers the roots of thisappeal which undoubtedly arises from the Appellant’s denial of admission to the Respondent’s ATP on the grounds that he did not meet the eligibility criteria under the Kenya School of Law Act, 2012. 3. This Tribunal derives its authority and jurisdiction from Section 31(1) of theLegal Education Act, 2012, which confers upon the Tribunal the mandate to inquire into any matter relating to the Act. It provides as follows: - ***“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 there upon, and notify the parties concerned.”*** 1. Further, Section 8(3) of the Legal Education Act, 2012 mandates the Councilas follows: ***“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;*** ***(b)establish criteria for the recognition and equation of academic qualifications in legal education;*** ***(c)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;…”*** 1. It is therefore not wrong to say that the issue at hand involves a blend ofdisputes arising from both the Kenya School of Law Act, 2012 and the Legal Education Act, 2012. The Tribunal takes note that the Interested Party, established under Section 4 of the Legal Education Act, 2012, has a supervisory role over the Respondent, including oversight of its ATP. In **Nabulime Miriam & Others v Council of Legal Education & 5 Others (2016) eKLR**, Justice Odunga held: **“*That the body with the legal mandate to determine the qualification for Admission, registration of Applicants to the Kenya School of Law is the Council but the actual admission of students to the School is to be undertaken by the school. That the body with the legal mandate as between Kenya School of Law, and the Council for Legal Education, to set, supervise or mark Advocate Training Programme examinations is the Council though in this instance, that mandate was delegated to the School by the Council.”*** 1. The Honourable Tribunal finds refuge in the case: **Kenya School of Law v Gachoki & 2 others; Council of Legal Education (Interested Party) (Civil Appeal E062 of 2022) [2024] KEHC 528 (KLR) (Civ) (31 January 2024) (Judgment),** where Justice Majanja(as he then was)held**:** ***“On my part, I do not see any reason to depart from the settled position on jurisdiction. Section 31(1) of*** [***Legal Education Act***](https://new.kenyalaw.org/akn/ke/act/2012/27) ***grants the Tribunal jurisdiction to inquire into, “… any matter relating to this Act,’’ which is an all-encompassing clause that affirms the Tribunal’s jurisdiction to deal with matters concerning legal education arising not only within the Act itself but also from the*** [***Kenya School of Law Act***](https://new.kenyalaw.org/akn/ke/act/2012/26) ***under which the*** ***KSL is guided by and applies the provisions of the*** [***Legal Education Act***](https://new.kenyalaw.org/akn/ke/act/2012/27)***.”*** 1. From the foregoing, it follows that, the law governing legal education in thecountry places the Respondent under the oversight of the Interested Party. Any decision made by the Respondent can be a subject of review within the established legal regime, including an appeal to this Tribunal. This Tribunal, therefore, does not arrogate itself jurisdiction, as has been submitted by the Respondent, but exercises it as conferred by statute and binding judicial decisions. 2. We therefore find that the Respondent’s challenge on jurisdiction is withoutmerit and is hereby dismissed. Consequently, we hold that this Honourable Tribunal is well vested with jurisdiction to hear and determine the present appeal. * 1. **Does the Otinga decision (supra) have any impact on this Appeal?** 1. The Appellant submits that Section 16 and the Second Schedule of the KenyaSchool of Law Act, 2012, which provided for the minimum KCSE qualifications have since been nullified by the **Otinga case (supra)**. However, the Respondent maintains that these provisions are applicable and in fact relied on them to deny the Appellant admission to the ATP. 2. We do acknowledge at the outset that this Tribunal has consistently held thatadmission to the ATP is predicated upon the provisions of Section 16 and the Second Schedule of the Kenya School of Law Act as affirmed in the ***Otene Case* (Supra),** which firmed up the KCSE qualifications to be considered into the ATP. 42. However, while the ***Otene Case* (Supra)** had established a precedent requiring strict compliance with statutory admission criteria, this Honourable Tribunal is bound by the Court of Appeal decision in the **Otinga case** (**Supra**)whichannulled Section 16 and the Second Schedule of the Kenya School of Law Act, 2012. In considering this case, this Honourable Tribunal in **Caroline Case (Supra),** had this to say: **“50… the Court of Appeal having nullified section 16 and second schedule of the KSL Act for being inconsistent with Section 8 (3) of the Legal Education Act and article 27 of the Constitution, the respondent remains exposed. Its mandate to admit students under the impugned Section 16 and Second Schedule is no longer tenable. This Tribunal cannot close its eyes on that principle that though the action to deny admission was valid then, the same cannot be valid since the adjudicative process of the Respondent’s decision was still pending when the decision in the Otinga Case was delivered.”** 43. In light of the decision in the **Otinga Case (Supra)** we hold that the Respondent was manifestly wrong by purporting to rely on nullified statutory provisions while assessing whether the Appellant was eligible for admission to the ATP. **III What is the Governing Legal Framework and whether the Appellant is qualified for admission to the Advocate Training Program on the basis of academic progression.** 1. The Tribunal has duly considered the arguments and counter-argumentsadvanced by the parties concerning the eligibility criteria for admission to the ATP, on the basis of academic progression. 2. It is not in contention that the Appellant attained a mean grade of C+ (plus) with a B- (minus) in English and a B- (minus) in Kiswahili in her KCSE in 2013 **(Annexture ANN-1)**. Subsequently, in 2016, he enrolled for a Diploma in Law at the Mount Kenya University, graduating in 2018 with Credit II **(Annexture ANN-2(a), (b) and (c))**. Subsequently, on the strength of the Diploma in Law, on 3rd September 2018, he was admitted at the Mount Kenya University to pursue LLB Degree **(Annexture ANN-3)** graduating on 29th July 2022 with a LLB Degree, Second Class Honours, Upper Division **(Annexture ANN-4 (a) and (b)).** 3. In their pleadings and submissions, the parties advance divergentpositions; the Appellant contends that he meets this criteria and that it was wrong for the Respondent to have subjected his qualifications against Section 16C of the Kenya School of Law Act which has been declared unconstitutional in the **Otinga Case (Supra)**. On the other hand, the Respondent submits that the Appellant does not qualify for admission to the ATP by reason of academic progression because the applicable law, 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. The Interested Party, while appreciating the binding effect of the **Otinga decision (supra)** nullifying Section 16 and the Second Schedule of the Kenya School of Law Act, still faults the Appellant for failing to demonstrate, with clear and verifiable evidence, whether he has pursued a Diploma in Law. 4. The question which begs for an answer is whether the Appellant meets thethreshold to be considered for admission to the ATP on the basis of academic progression and which legal framework should have been applied? 5. This Tribunal considers the period of operation of the Legal Education(Accreditation and Quality Assurance) Regulations, 2016, Legal Notice No. 15 of 2016. The regulations were gazetted on 6th February 2016 and subsequently declared unconstitutional on 30th January 2018, by the High Court at Nakuru in **Petition No. 20 of 2016 – Javan Kiche Otieno & Another v Council of Legal Education & Another.** 6. The Tribunal stands guided by the Court of Appeal decision in **Javan Kiche Case (Supra)** where at paragraph 47 it was held;- ***“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"*** 1. Guided by the **Javan Kiche Case (supra**) the Tribunal holds that in applying the doctrine of crystallized action, one must have been admitted into an LLB program based on certain regulations and if those regulations are subsequently declared legally invalid, the actions of individuals who relied on them would be deemed to have crystallized and should not be undone. 2. The Tribunal has taken time to review the Offer Letter of the Appellant to theLLB programme, which states, **‘that the reporting date will be on 3rd September 2018 and the last date of registration is on 7th September 2018…’** 3. This Honourable Tribunal therefore finds that as at the time the Appellant wasapplying for admission into the LLB Programme in September, 2018, it is clear that the same was based on **Council of Legal Education (Kenya School of Law) Regulations 2009 Laws of Kenya as applicable then specifically Schedule II Section 5 (c).** 4. In considering the regulations applicable, this Honourable Tribunal in the**Caroline Case (Supra)** stated at para 51 that : ***“This Tribunal therefore finds that since the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were nullified in 2018, then the Regulations applicable to the appellant are the default Council of Legal Education (Kenya School of Law) Regulations, 2009 pursuant to section 29 (2) of the KSL Act, 2012…….”*** 1. The Appellant, having joined the LLB Programme around September, 2018, wearrive at the conclusion that the applicable regulations then were the Council of Legal Education (Kenya School of Law) Regulations, 2009. Regulation 5 states as follows: ***A person shall not be eligible for admission for the Post Graduate Diploma*** ***(Advocate Training Programme) unless that person has –*** 1. ***passed the relevant examination of any recognized university inKenya, he holds or has become eligible for the conferment of the*** ***Bachelor of Laws Degree (LL.B) of that university;*** 1. ***passed the relevant examinations of a university, university college orother institutions prescribed by the Council, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) in the grant of that university, university college or other institution, had prior to enrolling a that university, university college or other institution –*** ***i. attained a minimum entry requirements for admission to a*** ***university in Kenya; and ii. a minimum grade B (plain) in English Language and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent;*** 1. ***a Bachelor of Laws Degree (LL.B) from a recognized university andattained a minimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in the Kenya Certificate of Secondary Examination, holds a higher qualification e.g. "A" levels, "IB", relevant "Diploma", other "undergraduate degree" or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws Programme; or*** 2. ***a Bachelor of Laws Degree (LL.B) from recognized university andattained a minimum grade of C- (C minus) in English and a minimum of an aggregate grade of C- (C minus) in the Kenya Certificate of Secondary Examination sits and passes the Pre-Bar Examination set by the Council of Legal Education as a pre-condition for admission.*** 3. This Tribunal is tasked with the responsibility of interpreting the Section 5 (c) of these Regulations. 4. It is not in dispute that the Appellant pursued a Diploma in Law, prior to thecommencement of his LLB Degree. Is a Diploma in Law contemplated under Regulation 5 (c) of these Regulations? That is, **"A" levels, "IB", relevant "Diploma", other "undergraduate degree" or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws** **Programme’.** The Tribunal is of the considered view that it is. 1. This has been fortified in the Court of Appeal in the **Otene Case (Supra)**, which held, **‘…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.’** 1. The Court further held, **‘…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 was experience and learning in law culminating in a diploma in law or related course in law.’** 1. In the circumstances and given the unequivocal nullification of Section 16 andthe Second Schedule of the Kenya School of Law Act, 2012, the operative legal framework governing the Appellant's case is, without ambiguity, the Legal Education Act, 2012, and attendant default Council of Legal Education (Kenya School of Law) Regulations, 2009 as saved under section 48(2)(a) of the Legal Education Act 2012, and section 29 (2) of the KSL Act, 2012. 1. To this extent, we arrive at the conclusion that the above legal regimeprovides for career progression based on prior learning and it is our finding therefore that the Appellant’s application to the ATP ought to have been assessed in accordance with Section 8(3)(c) of the Legal Education Act, 2012, and the Council of Legal Education (Kenya School of Law) Regulations, 2009. 2. This being the case, for the reasons stated above, and considering the materialplaced before us, and reliance on binding decided authorities, we hold that the Appellant qualifies for admission to the ATP, on basis of academic progression pathway, for meeting the minimum qualifications set out under Section 5 (c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009. 2. **Has the Appellant’s right to education been violated?** 1. The Appellant has further submitted that the Respondents’ actions wereintended to curtail his constitutional right to education encapsulated in article 43(1)(f) of the Constitution. 2. We hold that while everyone has a right to education, that right is notabsolute, especially in cases where specific grading requirements are mandatory for some courses. 3. This position has been fortified by the case of **Rakesh D. Madavia –vsKenya Universities and Colleges Placement Services & Another** **[2019] eKLR**, T.W. Cherere, J, on the non-absolute right to education stated that: **“In any case, it is trite law that the right to education is not absolute, but is subject to the rules and regulations governing studies/education in a given institution.”** 1. **Can the Appellant benefit from the doctrine of legitimate expectation?** 1. We have considered the facts and the evidence relied upon in this Appeal todetermine if the same substantiate how this doctrine has been violated to the disadvantage of the Appellant. Having arrived at the conclusion that the Appellant was qualified for admission into the LLB Programme based on the Council of Legal Education (Kenya School of Law) Regulations, 2009, it is our considered view that he should benefit from the doctrine of legitimate expectation. 2. The Court of Appeal in **Kenya Revenue Authority v Universal Corporation Ltd (2020) eKLR** defined legitimate expectation in the following words: **“a legitimate expectation arises where there is demonstration that: a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/ she/ it would be accorded a hearing before the decision was taken; a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of the law; the pubic authority whether by practice or promise committed itself to the legitimate expectation; the representation was clear and unambiguous; the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority; the representation was reasonable and that the claimant relied upon it to its detriment; there was no overriding interest arising from the decision maker's action and representation; the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same; the promise related either to a past or future benefit; its main purpose is to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.”** * 1. We therefore hold that the application of the doctrine of legitimate expectationtilts in favour of the Appellant. **D. Disposition.** * 1. That being the case, the appeal succeeds to the extent that Section 16 and theSecond Schedule of the KSL Act that the Respondent relied upon to reject the Appellant’s application has since been rendered null and void, and unconstitutional by the Court of Appeal in **Otinga case** (**Supra**). 2. It is hereby ordered: - 1. That the appeal by the Appellant, **ADAM NYAE NGOA**, against the decision dated **22nd December 2025** and as affirmed in an internal appeal on **14th January 2026** by Dr. Henry K. Mutai – Director of the Kenya School of Law is allowed, and the decision is hereby quashed. 2. That pursuant to **Section 35 of the Legal Education Act, 2012** a declaration is issued that the Appellant is eligible for admission to the Advocates Training Programme by dint of Regulation 5(c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009, and the Respondent is ordered to admit the Appellant, ADAM NYAE NGOA, to the Advocates Training Programme forthwith. 3. That each party to bear own costs of the appeal. 4. That a party aggrieved is at liberty to appeal to the High Court under**Section 38 (1) of the Legal Education Act, 2012** on a point of law. # HON. JULIANA NJIRIRI - **CHAIR** HON. JOSHUA NGULU- **MEMBER** HON. FELIX OKETCH - **MEMBER** HON. MOSES MUNOKO – **MEMBER** HON. GODANA YATANI - **MEMBER** It is so ordered by the Legal Education Appeals Tribunal. **DATED AT NAIROBI THIS 24TH DAY OF MARCH 2026**. Page **2** of **2** # SIGNED BY/FOR: HON. JULIANA WAMAITHA NJIRIRI | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. JULIANA WAMAITHA NJIRIRI** **VINCENT GODANA YATANI** **FELIX OTIENO OKETCH** **MOSES SITATI MUNOKO JOSHUA MBINDA NGULU** Legal Education Appeals Tribunal Legal Education Appeals Tribunal Date: 2026-03-25 10:35:40 |