[2024] KELEAT 1267 (KLR)

Okisai v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E006 of 2024) [2024] KELEAT 1267 (KLR) (6 September 2024) (Judgment)

Neutral citation: [2024] KELEAT 1267 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E006 of 2024

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

September 6, 2024

Between

Ivan Raphael Okisai

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

Judgment

A. Introduction And Background. 1. The Appellant, Ivan Raphael Okisai is a student of the Respondent which is a State Corporation established under Section 3 of the Kenya School of Law Act 2012 and the successor of the Kenya School of Law previously established under the Council of Legal Education Act, 1995 (now repealed). Its mandate is inter-alia to train persons for purposes of the Advocates Act (Cap 16) for which it offers the Advocates Training Programme (“ATP”). The Interested Party, The Council Of Legal Education

2. The Appellant states that after the release of the Project Work for the class of 2022-2023, he realized that he had not been awarded Project Work marks in 7 out of 9 units namely, ATP 100-Civil Litigation, ATP 101-Criminal Litigation, ATP 102-Probate and Administration, ATP 104-Trial Advocacy, ATP 105-Professional Ethics and Practice, ATP 106-Legal Practice Management, ATP 107-Conveyancing.

3. Following this development, the Appellant applied to have his Project Work results reviewed, to which the Respondent responded by stating that the Appellant’s request could not be granted as he failed to participate in the Project Work as per the minutes and signing sheet.

4. There was an exchange of correspondence between the Appellant and Respondent culminating in the decisions contained in the letters dated 1st August 2023 and 6th June 2024. The former letter relayed the decision that the minutes and the final Project Work report confirmed the Appellant’s non-participation in the Project Work. He was therefore encouraged to register to undertake the Project Work with the 2024 ATP cohort. The latter letter noted the Appellant’s non-payment of the fees required to undertake the Project Work with the 2024 ATP cohort and that the Appellant’s request to formalize his self-allocation of a firm was declined. He was urged to register for the 2025 ATP cohort.

5. Being dissatisfied with the decisions of the Respondent, the Appellant filed his Memorandum of Appeal to this Tribunal dated 11th July 2024. His Appeal to this Tribunal was accompanied by a Supporting Affidavit.

6. The Appellant seeks several reliefs from this Tribunal including:a.A declaration that the actions and omissions of the Respondents are contrary to and inconsistent with Articles 10,73 and 232 of the Constitution of Kenya, 2010;b.A declaration that the Respondents violated the Constitutional rights of the Appellant, particularly, Articles 27, 43, 47 and 48 of the Constitution of Kenya, 2010;c.A declaration that the amount of fee demanded by the Respondent is excessive;d.An order to set aside and quash the decision of the Respondent denying the Appellant allocation of class and firm;e.An order directing the Respondent to award the marks for Class C Firm 31 of the Academic Year 2022-2023. f.An order directing the Respondent to issue the Appellant with the project Work assignment in the current academic year with strict timelines on completion and release of results;g.Costs of the Appeal

7. The Appellant also relied on a Further Affidavit he swore on 27th August 2024.

8. The Respondent opposed the Appeal through its Replying Affidavit sworn by Fredrick Muhia on 15th August 2024 in which it states that the Appellant failed to attend at least two thirds of the Project Work firm meetings in the 7 units and also failed to sign the signing sheet for the Project Work.

9. The Interested Party associated itself with the pleadings and submissions of the Respondent in the matter.

B. The Appellant’s Appeal 10. The Memorandum of Appeal sets out the following grounds:a.The Appellant noted that his Project Work results were missing for the 7 units mentioned above. He wrote to the Respondent on 27th March 2023 seeking a review of his results. The Respondent responded on 13th April 2023 stating that he was not awarded marks for failing to participate in Project Work.b.The Appellant states that he then perused the links for the meetings of his Firm and noted that there were discrepancies in the submitted links and that some evidencing attendance had not been included in the final Project Work report. He wrote to the Respondent on 14th July 2023 and the Respondent informed him vide its letter of 1st August 2023 that the links were not proof of participation.c.Thereafter, the Appellant through a letter of 1st February 2024 applied to join the 2024 ATP cohort as directed by the Respondent. The Respondent approved this request vide its letter of 9th February 2024 subject to the payment of Kshs. 15,000 per unit. The Appellant paid Kshs. 35,000 out of the required Kshs. 105,000. d.The Appellant sought to be allocated a class and firm which request was approved by the Respondent’s email of 21st March 2024 and was requested to seek assistance for the academic services office to be allocated a class and firm.e.Upon follow up in June 2024, the Appellant was informed vide an email of 6th June 2024 that his request to be allocated a class and firm had been declined and was advised to apply to join the 2025 ATP cohort.

C. The Respondent’s Reply 11. In its Replying Affidavit, the Respondent states as follows;a.The Respondent’s mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Program.b.Every ATP student is assigned a class and a firm for Project Work purposes which is offered in Term 1 and carried out in accordance with the Project Work Guidelines (the “Guidelines”).c.The minutes and the participation signing sheet for Class C firm 31 of the 2022-2023 ATP cohort showed that the Appellant had failed to attend at least two-thirds of the firm meetings as required by the Guidelines.d.The Appellant was therefore not qualified for awarding of Project Work marks and should retake the Project Work next offered.e.The payment of fees on 6th August well after the deadline for Project Work excluded the Appellant from participating in Project Work with the 2024 ATP cohort.

D. The Parties’ Submissions The Appellant’s Submissions: 12. The Appellant was admitted to the Advocates Training Programme (ATP) at the Kenya School of Law in 2022 but faced issues with project submission and later class and firm allocation. The Appellant contends that despite paying Kshs. 35,000 to the Respondent and his persistent efforts to secure a class and firm allocation in 2023 and 2024, the Respondent failed to allocate him a class and firm, thereby violating his legitimate expectations and constitutional rights.

13. The Appellant argues that the missing signature on his project was an honest mistake as his signature went to the spam folder of his firm leader and that the Respondent’s failure to verify the Project Work and provide timely communication compounded the procedural injustices he faced.

14. The Appellant contends that the Respondent’s lack of response violated constitutional mandates for public officers to provide responsive, transparent, and timely services. He cites legal provisions and court decisions to support his claim for fair administrative action and argues that minor procedural errors should not invalidate substantive work.

15. The Appellant states that he has provided evidence of his participation in the project work and seeks recognition of his efforts, rectification of procedural shortcomings, and allocation of a class and firm to complete his training. He believes he deserves the orders sought in the Memorandum of Appeal dated July 11, 2024.

16. The Appellant submits that he engaged in constant correspondence with the Respondent to secure a class and firm allocation. He deposited Kshs. 35,000 on March 11, 2024, and informed the respondent’s officers but received no guidance. The Director responded via email on March 27, 2024, accepting the appellant’s application for a class and firm allocation. Despite this, he submits that the Respondent did not follow through with the allocation.

17. The Appellant argues that the Respondent’s lack of response violated Articles 73 (e) and 232 of the Constitution of Kenya, 2010, which mandate public officers to provide responsive, transparent, and timely services. The Director’s directives should be followed unless they contravene the law. The appellant relies on Article 47 of the Constitution of Kenya, 2010, which mandates expeditious, efficient, lawful, reasonable, and procedurally fair administrative action. The respondent’s failure to provide written reasons for not admitting the Appellant violated these provisions.

18. The Appellant cites the Court of Appeal decision in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, emphasizing the importance of fair administrative action and national values such as the rule of law, human dignity, social justice, good governance, transparency, and accountability. He states that his application was accepted by the Director, but he was still not allocated a class and firm, hampering his quest to complete the Advocates Training Programme.

19. The Appellant argues that the respondent’s failure to act on the Director’s directions, despite several reminders, further compounded the procedural injustices he faced. He prays that the annexures included in the appeal provide sufficient evidence to persuade this tribunal. He relies on Section 31 of the Legal Education Act, 2012 which he states empowers this tribunal to consider any evidence that may not be admissible under the law of evidence.

20. Additionally, that Section 35 of the Legal Education Act, 2012, authorizes this tribunal to exercise any powers that the Council could have exercised in the proceedings related to the appeal.

21. The appellant contends that the right to education under Article 43 (1) (f) of the Constitution of Kenya, 2010, was violated due to the respondent’s failure to allocate him a firm and class. The appellant attended the project work discussions, and the missing signature on the final draft was an honest mistake due to human and technological challenges. Justice should be administered without undue regard to procedural technicalities.

22. The Appellant states that he has demonstrated that he participated in the project work and that the missing signature was an honest mistake. That the Respondent’s failure to verify the project work, provide timely communication, and allocate a class and firm in 2024 violated the appellant’s legitimate expectations and constitutional rights.

23. The appellant seeks a resolution that acknowledges his participation, addresses procedural shortcomings, and rectifies the unjust treatment he received. The Appellant merits being awarded marks for the project work done by Class C Firm 31 in the academic year 2022-2023 and should be allocated a class and firm to complete his training.

24. The Appellant submits that he deserves the orders sought in the Memorandum of Appeal dated July 11, 2024.

The Respondent’s Submissions: 25. The Respondent, in opposition to the Appeal submits that it is a State Corporation established under Section 3 of the Kenya School of Law Act Cap 16C, with a mandate to train persons for purposes of the Advocates Act (Cap 16) through the Advocates Training Programme (ATP). The ATP includes a mandatory project work component carried out in groups called “firms” with a minimum attendance requirement. The Respondent’s role is limited to setting questions, timelines, providing meeting links, and grading reports, without participating in the project work.

26. The Respondent submits that the Appellant was a member of Class C Firm 31 (2022/2023 cohort) and failed to attend at least two-thirds of the firm meetings in several units, resulting in no marks awarded for those units. Specific details provided by the Respondent indicate that the Appellant attended only one meeting for ATP 100 Civil Litigation, zero meetings for ATP 101 Criminal Litigation, three meetings each for ATP 105 Professional Ethics and ATP 104 Trial Advocacy, two meetings for ATP 102 Probate and Administration, and zero meetings each for ATP 106 Legal Practice Management and ATP 107 Conveyancing. Specifically, the Respondent lists them as follows:Specific Units and Attendancea.The Respondent provides specific details as follows:b.ATP 100 Civil Litigation: The Appellant attended 1 meeting, no marks awarded.c.ATP 101 Criminal Litigation: The Appellant attended 0 meetings, no marks awarded.d.ATP 105 Professional Ethics: The Appellant attended 3 meetings, no marks awarded.e.ATP 104 Trial Advocacy: The Appellant attended 3 meetings, no marks awarded.f.ATP 102 Probate and Administration: The Appellant attended 2 meetings, no marks awarded.g.ATP 106 Legal Practice Management: The Appellant attended 0 meetings, no marks awarded.h.ATP 107 Conveyancing: The Appellant attended 0 meetings, no marks awarded.

27. The Respondent argues that attendance was recorded through meeting minutes signed by firm members, and the determination of the Appellant’s attendance was made by his fellow firm mates, binding the Respondent to their report. The Respondent identifies issues for determination, including whether the burden of proof has been met, whether the impugned decision was illegal, irrational, unreasonable, or procedurally unfair, and whether the Respondent’s actions were justified and anchored in law.

28. The Respondent emphasizes the well-established rule of evidence that whoever asserts a fact is under an obligation to prove it. The Appellant, having made allegations in the appeal, is under an obligation to support those allegations with evidence. The Respondent cites Justice Mativo in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR, who quoted Lord Brandon in Rheir Shipping Co. SA. v Edmunds [1955] WLR 948 at 955, stating that deciding on the burden of proof is sometimes the only just course to take. Justice Mativo further stated that the legal burden of proof is the test applied when coming to a decision in any particular case, as succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR ® 855 at 59.

29. The Respondent asserts that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, as enshrined in Section 107 of the Evidence Act. The standard of proof in civil cases is the balance of probabilities, as stated by Justice Mativo, citing Lord Denning in Miller v Minister of Pensions [1947] 2 ALL ER 372. The Respondent contends that it would have been easy for the Appellant to correct the alleged omissions or errors by producing statements on oath from firm members confirming his participation.

30. Procedural impropriety is defined by the Respondent as the failure to act fairly in the decision-making process, including non-observance of the Rules of Natural Justice or procedural fairness. The Respondent argues that no evidence has been presented to show that it acted outside its legal mandate or improperly exercised its discretionary powers. It is an established principle that courts should not substitute their judgment for that of the agency.

31. The Respondent cites John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Another, emphasizing three categories of public law wrongs: illegality, fairness, and irrationality and proportionality. Illegality occurs when decision makers fail to follow the law properly, fairness demands that public bodies act impartially and follow express procedures, and irrationality and proportionality require courts to quash decisions that are demonstrably unreasonable or perverse, as established in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation.

32. The Respondent submits that the Court should not interfere with its decision simply because it holds a different view, as long as the decision is based on established guidelines. The power to review administrative actions is extraordinary and should be exercised sparingly, only in cases of proven illegality, irrationality, or procedural impropriety. The Respondent references Republic vs National Water Conservation & Pipeline Corporation & 11 Others, where it was held that judicial intervention is warranted only when there is evidence of illegality, irrationality, or procedural impropriety.

33. Based on the above, the Respondent states that they have demonstrated that the appeal should be dismissed.

E. Analysis And Determination. 34. The crux of the appeal relates to the administration of the Advocates Training Programme examinations component of the Project Work that constitutes 20% of the final Bar examination mark. The Project Work is undertaken by the students in a class being assigned by the respondent a cohort referred to as a firm. In this case the appellant who was undertaking the Advocates Training Programme during the 2022/23 academic year was in class C firm 31. The respondent declined to award the appellant the firm marks in 7 units on account of failure to meet the minimum attendance threshold of at least two-thirds of the firm meetings. The Respondent indicated that Project Work is undertaken under the Kenya School of Law Advocates Training Programme Project Work Guidelines, 2022. The conduct of firm meetings was provided for in section 5 of the Guidelines as follows;“(a)A firm will undertake the project work by holding at least six firm meetings which shall be chaired by the firm leader. The meetings may either be virtual or physical.(b)A student must attend and participate in at least two – thirds of the firm meetings in order to be eligible for awarding of marks for the project work by the course instructor.”

35. In this case, the course was undertaken via the virtual platform. The Respondent’s records of attendance tendered before the Tribunal compose of the minutes of the firm meeting attendance, the firm members signed attendance list and an indication of annextures of the dates, time and duration of attendance during the firm meetings in the 7 units. The Tribunal has reviewed the said evidence and finds that it fails short of section 5 (e) of the Guidelines which obligated the firm leader to submit the minutes and the platform generated attendance list where the meeting was virtual. The Respondent failed to place before the Tribunal the platform generated attendance list in their initial form as tendered by the firm leader to enable the Tribunal to juxtapose the same as against the Appellant’s submitted microsoft teams links showing his participation in the firm meetings. For the record of attendance to be complete and conclusive in this matter for purposes of section 19 (2) of the Kenya School of Law Act, Cap. 16C the same has to be backed up by the platform generated lists.

36. The Tribunal has also reviewed the evidence of the signing of the attendance lists and noted that the signatures of 2 of the firm members were also appended by way of pasting onto the list. The Appellant’s contention was that he had submitted his signature to the firm leader for the same to be affixed. The whatsapp conversations between the appellant and the firm leader well confirmed that the signature had been sent to his email but he claimed that he forgot to affix it as it was in his spam mail. The Tribunal finds that the conduct of the firm leader fell short of the diligence required in the discharge of his obligations to a firm member in this case being the appellant. The Appellant followed up to confirm from the firm leader if his signature had been affixed on the report only to be informed that the same had been submitted without his signature. The firm leader did not involve the Appellant in the decision to submit the report without his missing signature and also he did not submit the report to the Appellant to sign before submitting. The Kenya School of Law Student Information Handbook at page 23 provide for the firms Guidelines which provide;“Firm Leaders to acknowledge receipt of documents and emails so as to maintain clear lines of communication between Class Representatives and Firm Leaders on the aspect of disseminating relevant information to fellow colleagues.”

37. In this matter, the failure of the firm leader to acknowledge the appellant’s signature as sent was in breach of the firm guidelines embodied in the Handbook.

38. The Respondent has in it’s submissions contended that the Appellant ought to have gotten the firm leader to swear an affidavit to support his contention that he inadvertently omitted to affix his signature. The Tribunal finds that the matter was not raised in the response by the Respondent on oath and by it’s inclusion in the submissions it cannot act as a rebuttal to the Appellant’s depositions. Submissions cannot assume the place of evidence in a matter. The Tribunal is well fortified by the authority in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another (2014) eKLR in which it was held;“Submissions cannot take the place of the evidence. The 1st respondent failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties, marketing language; each side endeavoring to convince the court that its case is the better one. Submissions we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

39. In the premises, the Tribunal set-aside the decision of the respondent in so far as it found that the appellant failed to participate in the firm’s meetings.

40. The Tribunal is of the view that the matter herein may be resolved by remitting the scrutiny of the attendance issue for re-consideration by the Respondent who ought to avail to the appellant the platform generated lists for the attendance in issue and having regard to the dictates on fair administrative action reconsider the matter of his participation in the Project Work.

41. The second aspect of the appeal relates to the handling of the Appellant’s application to redo the Project Work once again for the 7 units. He did vide a letter of the 1st February 2024 apply to join the 2024 ATP cohort as directed by the Respondent. The Respondent approved this request vide it’s letter of 9th February 2024 subject to the payment of Kshs. 15,000 per unit. The Appellant paid Kshs. 35,000 out of the required Kshs. 105,000. He sought to be allocated a firm which request was approved by the email of the 21st March 2024 and was requested to seek assistance from the academic services office to be allocated a firm. In June 2024, the Appellant was informed vide an email of 6th June 2024 that his request to be allocated a firm had been declined and was advised to apply to join the 2025 Advocates Training Programme cohort. The Tribunal finds that the handling of the application by the respondent was not undertaken in accordance with the dictates of fair administrative action. There was delay in acting on the application by the respondent coupled with unjustified inertia all of which ran a foul the constitutional command in article 47 (1) of the Constitution of Kenya, 2010 which ordains;“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

42. Emphasis was placed by the Respondent on fees payment as a prerequisite to the appellant’s registration being confirmed in breach of the regulations in place which made the same mandatory only when registering for the written examinations. The Tribunal is well fortified that the precondition of full fees had a restricted application based on regulation 26 of the Kenya School of Law (Training) Regulations, 2015 which provided as follows;

43. “(1) A student shall be eligible to register and sit for a written examination if the student—(a)has attended at least two-thirds of all the lectures offered in relation to that course unit; and(b)has paid all the fees in relation to that course unit….(5)For the purposes of this regulation "written examination" shall not include coursework or any other continuing assessment test.”

44. Finally, the Tribunal once again as it has held in previous similar appeals implores upon the respondent and the interested party to formulate clear regulations to guide the conduct of the Project Work examination component. The guidelines formulated in this matter ought to be backed up or embodied in the Kenya School of Law (Training) Regulations, 2015 to avoid inconsistency. For instance a reading of regulations 26 (a) and (f) of the regulations appear to be in conflict with the guidelines on the two thirds attendance requirement. The same provide;

45. “(1) A student shall be eligible to register and sit for a written examination if the student—(a)has attended at least two-thirds of all the lectures offered in relation to that course unit; and(b)has paid all the fees in relation to that course unit….(5)For the purposes of this regulation "written examination" shall not include coursework or any other continuing assessment test.”

46. In Diana Kemunto Ogega v Kenya School of Law & Another (2020) eKLR the Tribunal held;“The Regulations have a lacuna on the mode of assessment for the Advocates Training Programme which should be cured through the formulation of Regulations on the same.”1. The same position was addressed Ian Wachira Ndegwa v Council of Legal Education & Kenya School of Law (2021) eKLR by the Tribunal as follows;The Tribunal once again notes as it did in the case of Diana Kemunto Ogega v Kenya School Of Law & Council of Legal Education, LEAT Appeal No. 2 of 2020 that the Regulations of the Interested Party do not provide for the assessment mode for the Advocates Training Programme unlike the Para – Legal and the Continuing Legal Education Programmes which are provided for in Regulations 16 and 21 of the Kenya School of Law (Training Programmes) Regulations, 2015 which provide;‘16. Assessment and issuance of certificate in the Paralegal Studies Programme(1)The School shall assess each course unit using coursework and a final written examination.(2)The Board of Directors shall determine the percentage to be allocated for each mode of assessment…21. Assessment under the Continuing Professional Development programmeThe School shall determine the mode of assessment for each course offered under the Continuing Professional Development Programme.’The Regulations have a lacuna on the mode of assessment for the Advocates Training Programme which should be cured through the making of the requisite Regulation.”

F. Disposition:i.That the decisions of the respondent as communicated on 1st August 2023 and on 6th June 2024 by Dr. Henry K. Mutai, Director and Chief Executive Officer of the Kenya School of Law are hereby reviewed and set aside based on the powers of the Tribunal under section 35 of the Legal Education Act, no. 27 of 2012 and section 7 of the Fair Administrative Act, No. 4 of 2015. ii.That the appellant’s appeal for the award of the Project Work marks, in seven out of nine units for Class C, firm C 31 for the academic year 2022/ 2023, is remitted back to the respondent, with an order that the respondent investigates and considers the apparent mishandling of the appellant’s signature sent to his team leader, as well as the evidence of his online participation in the project work.iii.That should the investigation reveal that the Appellant participated online in the project work, and that his signature was indeed sent to his team leader, then he shall be awarded the missing marks for the Project Work, for Class C, Firm 31 for the 2022/2023 class, and a refund shall be made to him for the total funds that he paid being ksh. 15,000/= per unit.iv.That in the event that he is found not to have duly participated in the Project Work, then the appellant shall be availed a class and a firm for the next cohort, being the 2024/2025 class, to enable him complete his training.v.That the carrying out of the exercises in (i) - (iii) above be undertaken within 30 days of the rendering of this judgment.vi.That each party to bear own costs of the appeal.vii.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 6TH DAY OF SEPTEMBER, 2024. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBER