[2023] KELEAT 382 (KLR)

Ochieng t/a Oduwo Ochieng Paul Okello v Kenya School of Law & another (Appeal E009 of 2023) [2023] KELEAT 382 (KLR) (14 April 2023) (Judgment)

Neutral citation: [2023] KELEAT 382 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E009 of 2023

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

April 14, 2023

Between

Paul Kevin Ochieng t/a Oduwo Ochieng Paul Okello

Appellant

and

Kenya School of Law

1st Respondent

Council Of Legal Education

2nd Respondent

(Being an appeal against the decisions of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 6th and 7th January 2023 rejecting admission into the Advocates Training Programme during the 2023/2024 academic year)

Judgment

A. Background 1. The Appellant filed a Memorandum of Appeal dated January 16, 2023, wherein he challenges the decisions of the 1st Respondent through its Director and Chief Executive Officer Dr HK Mutai, made on 6th and January 7, 2023, rejecting his application for enrolment into the Advocates Training Program. His appeal is based on seven grounds contained therein.

2. The Appellant is aggrieved that the 1st Respondent contravened the provisions of Section 1a and 1b of the second schedule of the Kenya School of law Act as well as Sec 8(1), 8(2), 8(3)(a) and (b) and 8(4) of the Legal Education Act by denying him the opportunity to sit for the Pre-bar examination hence hindering him from successfully applying for the Advocates Training Programme.

3. The Appellant faults the 1st Respondent for ignoring material facts such as his Diploma in Law from an accredited college as well as his LL.B degree from a University in Kenya. He further laments that the 1st Respondent extended the provisions of sec 1(b) of the second schedule of the KSL Act to him wrongly, thus misconstruing the law of admissibility to the Advocates Training Programme.

4. The Appellant also accuses the 1st Respondent of going beyond its statutory mandate by purporting to regulate, audit and revisit his admission to the LL.B degree, yet this had already been performed and regulated by the 2nd Respondent.

5. The 1st Respondent is also accused of unfairly, unreasonably and discriminatively declining to afford the Appellant an opportunity to sit the pre-bar examination, which would have enabled him to apply for the Advocates Training Programme.

6. Finally, the Appellant states that the 1st Respondent infringed on his right to education, academic progression and the principles of legitimate expectation.

B. The Appellant’s Case 7. The Appellant sat for his Kenya Certificate of Secondary Education Examination in the year 2010 and attained a Mean Grade of C (Plain), with a Grade of D (Plain) in English and C (Plus) in Kiswahili. He attached a copy of his said KCSE Certificate to support this position.

8. That in September 2011, he enrolled for a Diploma in Law at the Nairobi Institute of Business Studies (NIBS) which he confirms was accredited by the 2nd respondent to offer the Diploma Course. In the year 2019, the Appellant was admitted to Mount Kenya University to pursue a Bachelor of Laws (LL.B) degree, from where he graduated on December 9, 2022

9. In November 2022, The Appellant requested information from the 1st Respondent on whether he would require to sit for the Pre bar examination, which he indicated that he had paid for, in order to qualify to apply for the Advocates Training programme 2023/ 2024 or whether his LL.B degree was sufficient for such admission to the ATP, he laments that he did not receive an adequate response.

10. The Appellant asserts that his application to sit the Pre bar examinations or to be admitted to the Advocates Training Program was rejected by the Respondent in a letter dated January 6, 2023 on account of not meeting the criteria for eligibility. The Appellant appealed the rejection on the same date, and vide a letter dated January 7, 2023, the 1st respondent reiterated its position on the rejection.

11. The Appellant is desirous of joining the 2023/2024 Admission to the Respondent.

C. Reliefs sought from the Tribunal: 12. The Appellant therefore seeks the following reliefs from this Tribunal:a.That the tribunal quash the decision of the Director of Kenya School of Law made on January 6, 2023. b.That the Tribunal declares that the appellant qualifies to sit for the Pre bar examinationsc.That the tribunal makes a pronouncement on when the principles of legitimate expectations should begin.d.That the tribunal makes a pronouncement on the issue of Academic Progression as far as legal education is concerned.e.That the tribunal makes a pronouncement on whether there is a conflict between Section 1(a) Schedule 2 of the Kenya School of law Act and Sec 8(3), 22 and 23 of the Legal Education Act.f.An order directing the 1st and 2nd Respondent to admit the appellant forthwith in the ATP for the academic year 2023/2024.

D. The Respondent’s Position on the Appeal 13. The Respondent opposed the Appeal, vide a Replying Affidavit sworn on February 2, 2023 by the institution’s Principal Officer, Academic Services, the Respondent contended that its mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Programme. That matters of admission to the 1st Respondent's Advocates Training Programme are exclusively provided for under section 16 of the Kenya School of Law Act No 26 of 2012.

14. The Respondent contended that the Tribunal does not have jurisdiction to deal with the matters that were being canvassed in the Appeal as the Tribunal’s jurisdiction is limited to matters that relate to the Legal Education Act 2012.

15. The Respondent further argued 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.

16. The Respondent contended that upon the Appellant making his application to the Advocates Training Programme, he was found not to be eligible per 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.

17. 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.

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

19. The Respondent insisted that it is bound by the provisions of the Kenya School of Law Act in determining the eligibility for the Advocates Training Program and thus it could not admit a student based on any other criteria.

20. That the Appellant was notified of the Appellant that his application for admission to the Advocates Training Program was not successful.

21. The Respondent further asserted that the Court of Appeal has previously supported the position they took and the Appellant could not allege that the Respondent had disregarded the law.

E. The Appellant’s submissions 22. The Appellant filed submissions dated February 8, 2023 and identified three issues for determination:i.whether the appellant has a right to claim academic progression,ii.whether the appellant’s right to legitimate expectation was denied andiii.whether the appellant met the requirements for admission to the Kenya School of Law.

23. On the first limb of academic progression, the appellant seeks refuge in Section 8(3)(c) of the Legal Education Act which mandates the Council of Legal Education 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.

24. To buttress the above legal provision further, the Appellant relied on the Court of Appeal decision being Civil Appeal No 472 of 2022 Kenya School of Law vs. Otene Richard Akomo & 41 others where the court of appeal addressed itself on the issue of academic progression by stating that the progression must be along the lines of studying law and not other disciplines. The Appellant contends that he undertook a diploma in law, and therefore he falls squarely within the description of academic progression adopted in the Court of Appeal decision.

25. On the second limb, on whether the Appellant’s right to legitimate expectation was denied. The Appellant submitted that paragraph 1(a) of the Second Schedule of the Kenya School of Law Act makes a promise that 'A person shall be admitted to the School if 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'

26. The Appellant, therefore, asserts that having obtained a degree from Mt Kenya University, a Diploma from an accredited College and prior learning experience in law, he has attained the minimum requirements for admission to the school by dint of paragraph 1(a) of the Second Schedule of Kenya School of Law Act, and that it ought to be invoked to grant him admission to the school.

27. In support of this argument, the Appellant relied on Paul Kipsang Kosgei vs National Industrial Training Authority & Another, Cabinet Secretary, Ministry of Labour & Social Services (2nd Respondent (CLE)) [2020]eKLR where the court relied on a South African case of National Director of Public Prosecutions vs Philips 2002 (4) SA 60 (W) where the court stated that legitimate expectation only occurs where there is a representation which is clear unambiguous and devoid of relevant qualification, it went further to state thati.That there must be a representation which is clear, unambiguous and devoid of relevant qualifications;ii.That the expectation must be reasonable, in the sense that a reasonable person would act upon it;iii.That the expectation must have been induced by the decision-maker and;iv.That it must have been lawful for the decision-maker to make such representation.'

28. The Appellant equally relied on Section 23 of the Legal Education Act and submitted that his academic qualification is in consonance with the provision. He thereafter submitted that his qualification to the school is hinged on Section 8(3)(c) of the Legal Education Act on academic progression. He added that he had a cumulative period of 12 years in the field of law.

29. In the end, the Appellant asserts that the Legal Education Act at Section 8(4) provides that the said section is to be upheld whenever there is a conflict between the said Act and any other written law.

30. The Appellant concluded by urging the Tribunal to grant the reliefs sought.

F. The Respondent’s Submission 31. The 1st Respondent 'hereinafter the Respondent' filed its submissions dated February 22, 2023. And identified four issues for determination. 1. Jurisdiction of this Tribunal over the matter 2. Whether its refusal to admit the Appellant to the school is in breach of his legitimate expectations 3. Applicability of academic progression and 4. Whether the double standards in admission qualifications are discriminatory or justifiable.

32. On the first issue, the Respondent quoted several texts and authorities and summed up by submitting that this Tribunal is creature of the Legal Education Act and it should therefore constrain itself to hear appeals arising from Legal Education Act and not matters emanating from the Kenya School of Law Act.

33. To buttress the above argument, the Respondent quoted Section 31(1) of the Legal Education Act 2012 which states that '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'

34. The Respondent, therefore, wishes that the Tribunal to down its tools for want of jurisdiction.

35. In addressing the issue of whether there was double standard in admission qualifications the Respondent persuaded the Tribunal to apply the literal interpretation especially in instances where legislative intent is clear and unambiguous.

36. The Respondent relied on the case of Kenya Pipeline Company Limited vs Hysung Ebara Company Limited & 2 Others [2012] eKLRto propound the position that the Court’s power must be restricted from usurping the power of the School.

37. On the question of whether the procedure to refuse admission was illegal and unreasonable, the Respondent submitted that there was no unreasonable delay in its communication to the Appellant informing him of the school’s refusal to admit him.

38. The provisions of the Second Schedule of the Kenya School of Law Act were reiterated to assert qualification requirements for admission to the Kenya School of Law’s ATP.

39. 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.

40. That in this instance, the 2nd Schedule of the Act can be interpreted in two ways, either disjunctively or conjunctively. They relied on the case of Victor Mbeve Musinga vs Kenya School of Law.

41. The Respondent urges this Tribunal to adopt the interpretation that would make statutory provisions on admission not only operative and workable but also operative in a just and reasonable manner.

42. That the Court of Appeal in the case of Engineers Board of Kenya vs Jesse Waweru Wahome & Others held that statutory interpretation should be holistic.

43. The Respondent submits that if the provisions were to be interpreted as suggested by the Appellant, then all students who join any Kenyan University irrespective of their grades will be allowed to join ATP and Secondary school would not matter.

44. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The respondent submits that the Appellant did not meet the admission criteria.

45. The Respondent cited the case of Peter Githaiga Munyeki vs Kenya School of Law where the Court applied a holistic interpretation of the Act. They also relied on Kenya School of Law vs Akomo & 41 others 2022 where the Court of Appeal clarified that the requirements for KCSE under the Act are for both applicants in Kenyan universities and those universities outside Kenya, and thus there was no legitimate expectation.

46. 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 and just and procedurally correct.

47. On the issue of academic progression the Respondent submits that the appellant does not qualify to be admitted to the Advocates Training Programme (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.

48. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellant’s argument that because they had obtained his LLB degree, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous.

49. The Respondent submits that this could not have been the intention of Parliament, as this creates two admission criteria for local universities and foreign universities. The Respondent submits that this would create an outright absurdity.

50. Finally, on academic progression, the Respondent submitted that the law does not provide for academic progression, and that the decision in Kenya School of Law vs Richard Otene was for joining University to pursue legal education but not admission to ATP.

51. The Respondent thus submitted that it could not act beyond statute by admitting the Appellant.

G. Analysis and determination. 52. On the jurisdiction to entertain the appeals, the primary relief by the appellant is hinged on entitlement to admission to the Advocates Training Programme based on section 1 (a) of the Kenya School of Law Act, 2012. The respondent in the responses to the appeals however, deposed that the appellant asserted entitlement to admission to the Advocates Training Programme by dint of statutory interpretation and academic progression which it denies it is not provided for in its establishing juridical regime.

53. The Tribunal notes that the function of the 2nd Respondent in section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations for persons wishing to enrol in Legal Education Programmes and which 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 JJA 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.'

54. The Tribunal also notes that section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the 2nd Respondent (CLE) 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 2nd Respondent (CLE) pursuant to the Legal Education Act, 2012.

55. The Tribunal finds that in inquiring into the matter of applicability of progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012.

56. The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme is the main contest in this appeal. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the 2nd Respondent (CLE) the powers to amongst others regulate the admission criteria to legal education programmes. It provides;'In carrying out its functions under subsection (2), the Council shall—a.Make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes;'

57. The said position was also laid out in by the Court of Appeal in Nairobi Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J Mohammed and Kantai JJA held;'The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.'

58. For the above reasons, the Tribunal asserts that it has the requisite jurisdiction to inquire into the appeal before it by dint of section 31 (1) of the Act which provides;

59. As regards the appeal, the appellant’s primary contention was that he was entitled to admission to the Advocates Training Programme predicated on the fact that he held Bachelor of Laws degrees from recognized universities 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.

60. The section provides 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.'

61. 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 JJA pronounced itself as follows:'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.'

62. Based on this conjunctive interpretation, propounded by the Court of Appeal, the Respondent’s decision as taken decline admission to the Advocates Training Programme is upheld as the Appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above.

63. The Appellant attained Grade C (Plain) and Grade D-(Minus) in English and C + ( Plus ) in Kiswahili languages respectively which were below the stipulated minimum.

64. The Tribunal has proceeded to consider the appeals on account of the extent to which the appellant may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

65. The 2nd Respondent (CLE) had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree, the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;'5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall 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.'

66. The legality of the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was challenged on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The matter was addressed in the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, where Hon Justice Maureen Odero in a judgment delivered on the January 30, 2018 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.'

67. This High Court declaration of invalidity whose operative date is January 30, 2018 was subsequently affirmed by the Court of Appeal. 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.

68. The court of appeal whilst upholding the declaration of invalidity made it clear that it does not apply to crystalized actions. The decision inJavan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices DK Musinga (P), RN Nambuye and AK Murgor; JJA in paragraphs 34, 35 and 47 of the judgment stated;34. The record does not disclose that following gazetting of the impugned regulations, that they were thereafter, laid before Parliament and adopted.35. Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above cited provision, and which shortcomings the appellants have conceded, it becomes evident that the impugned regulations were not adopted and as a consequence, did not acquire the force of law.47. consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.'

69. In this appeal, The crystalized action, being the securing admission to the Bachelor of Laws degree program, would require to fall between February 2016 and January 30, 2018, when the 2016 regulations subsisted.

70. The Appellant secured admission to the Bachelor of Laws degree on January 7, 2019 which was after the date of the finding of invalidity of the regulations by the superior court. The Tribunal, therefore, finds that the declaration affects his eligibility for the Advocates Training Programme.

71. With the fall of the 2016 regulations, would the Appellant find safe refuge in the CLE (Kenya School of Law) 2009 regulations (Legal Notice 169 0f 2009) which had been repealed by the impugned 2016 Regulations? The CLE regulations in its second schedule prescribed the following criteria for admission to the ATP:II—Admissions Requirements Into The Advocates Training Programme5. A person shall not be eligible for admission for the Post Graduate Diploma (Advocate Training Programme) unless that person has –(a)Passed the relevant examination of any recognized university in Kenya, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university;(b)Passed the relevant examinations of a university, university college or other 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;(c)A Bachelor of Laws Degree (LL.B) from a recognized university and attained 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(d)A Bachelor of Laws Degree (LL.B) from recognized university and attained 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. 6. The Post Graduate Diploma (Advocates Training Programme)It is clear that the Appellant would still fall short of the qualifications required in the 2009 regulations as his English grade in KCSE did not meet the mark.

20. In order to benefit from Academic Progression, the student must be possessed of the required grades and qualifications at each stage of his/ her academic journey. In the case of Jemimah Nyambura Mwangi -v- Kenya School of Law, Petition 286 of 2019, eKLR 2022, where the Petitioner had sued the Kenya School of Law, citing academic progression and seeking to be admitted under the 2009 Regulations, Justice JA Makau had this to say at para 20 and 21:20. 20. The Petitioner herein Scored a D+ (D plus) in KCSE and further attained three principal passes at 'A' Level in the Uganda Advanced Certificate of Education (UACE) before being admitted to Moi University for her undergraduate. It is clear from the provisions cited above that she had not qualified to undertake the programme even at the undergraduate level or college level. Further, the fact that the Council for Legal education cleared her did not negate the fact that she did not meet the requirements set therein.21. The legitimate expectation therefore as pleaded by the Petitioner is contrary to the provisions of Rule 4 and the First Schedule requirements on admission to the Advocates Training Programme. The argument that the respondent breached her right to fair administrative action is therefore baseless as she was informed of the reasons for rejecting her application to be admitted to the Advocates Training Programme and to undertake the pre- bar examination. In my view the orders sought by the petitioner cannot be granted.

72. The Appellant asserts that he pursued academic progression by, having graduated with a Diploma in Laws from Nairobi Institute of Business Studies, he then proceeded to Mount Kenya University where he attained his LLB Degree and from where he graduated on December 9, 2022.

73. A question arises on whether he would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the 2nd Respondent (CLE) 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.

74. In line with the Appellant’s submission, 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 has been the 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 JJA 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.'

75. Section 8(3) (c) of the Legal Education Act requires the Council of Legal Education 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.

76. The Council had formulated the Legal Education (Accreditation and Quality Assurance) Regulations of 2016 which as we have observed above, were invalidated by the Courts. What is expected of the Council is that it would honour its statutory obligation and formulate fresh regulations which would comply with all the applicable laws. Unfortunately, the Council of Legal Education has sat on its laurels for too long. From where the Tribunal sits, this ambivalence should cease. The inaction by the CLE is unacceptable as it creates a hiatus and confusion in the legal education processes. It goes against Article 10 of the Constitution of Kenya which prescribes the national values and principles of governance which bind all public officers and State organs including the Council for Legal Education. The tribunal has no hesitation in pointing out this costly inaction on the part of the Council of Legal Education.

77. It is evident that the Appellant made commendable efforts in pursuing academic progression, and were it not for the declaration of invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations of 2016 on January 30, 2018, and the current lack of clarity on how academic progression is to be achieved, his sail into the Kenya School of Law would have been smooth.

H. Disposition.It Is Decreed:-

a.'That the appeal by Paul Kevin Ochieng t/a Oduwo Ochieng Paul Okello as against the Respondent’s decision declining admission to the Advocates Training Programme as communicated by the Respondent by Dr Henry K Mutai - Director of the Kenya School of Law in the decision dated the 6th and January 7, 2023 is dismissed.'b.That each party bears its own costs of the appeal.c.That any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 14TH DAY OF APRIL 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal.REGISTRAR