[2023] KELEAT 648 (KLR)

Ong’uti v Council for Legal Education; Kenya School of Law (Interested Party) (Appeal E027 of 2023) [2023] KELEAT 648 (KLR) (Civ) (10 November 2023) (Judgment)

Neutral citation: [2023] KELEAT 648 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Appeal E027 of 2023

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

November 10, 2023

Between

Edwin Motari Ong’uti

Appellant

and

Council for Legal Education

Respondent

and

Kenya School of Law

Interested Party

Judgment

1. Introduction, Pleadings and Abridged Facts:a.We note that the Appellant brought this appeal in the form of the Notice of Motion dated 25th September 2023. We adopt the motion as the appeal since it is titled as such.b.The Appellant filed an application dated 25th September 2023 seeking the following orders:i.That the matter be certified as urgent and service be dispensed with in the first instance. [Spent].ii.That the Respondents by themselves jointly and severally, their servants or those claiming under them be restrained from varying marks awarded to Appellant Registration Number 20172049 for ATP 108 that was 58 (pass) for three years ago and now it has been varied to his detriment to 42 (42 pending the hearing and determination of this application. [Sic].iii.That the Respondents by themselves jointly and severally, their servants or agents or those claiming under them be directed to adopt project mark for student Registration Number 20172049 done in the year 2023 and be reflected on the transcript all units done in the event the same will vary the marks to his advantage. [Sic].iv.That the 1st and 2nd Defendant/ Respondents by themselves jointly and severally, their servants or agents or those claiming under them be restrained varying marks of ATP 20172049 having issued a grade for ATP 108 AS PASS of 58 for the same and later varying the same creating doubt on the credibility of the institution. [Sic.]v.That conservatory orders be issued against the Respondent by themselves jointly and severally, their servants or agents or those claiming under them from varying marks for ATP 20172049 especially ATP 108 until his admission for there has been constant alteration of marks with an ulterior motive. [Sic.]vi.That project marks for all Class A firm 14 be reflected on the transcript of ATP 20172049 in the event the same do not disadvantage the Applicant who pursued the project marks again in the academic year 2023. vii.Costs be provided for.c.The motion is based on the grounds on the face of the application and further supported by the affidavit sworn by the Appellant on 25th September 2023 together with written submissions dated the same day.d.The motion is premised on the grounds on the face of the application. We will reproduce the grounds verbatim for ease of reference as they make claims that we will adjudicate on and determine later in this ruling:i.That the Respondent has altered marks for ATP 108 for the student herein denying him an opportunity of being certain on his admission for the careless uncertainty of the Respondent creates doubt of the prospect of admission as advocate of the High court of Kenya which is dependent on the marks that keep changing.ii.That the aspects of marks being altered makes the institution opaque and frustrating to the Applicant who has meagre resources to keep in a suspense account for such eventuality when the marks are altered for his subject to subject to either remarking or retake.iii.That the Applicant has been very accommodative of all the unprofessional conduct of marks alteration taking in consideration that these are civil servants receiving money from the consolidated fund who have been recruited on merit to mitigate such kind of eventualities.iv.That the aspect of marks being varied to the detriment of the Applicant will be challenged before judicial authority for until we get appropriate relief which is marks ought not to be varied to the detriment of the student.v.That we are persuaded that staff at the Council of Legal Education are recruited on merit and measures are put in place to verify and audit to donors, guardians and the registered students.vi.That the aspect of varying for ATP 20172049 is total impunity, careless and disregard of the rules of natural justice.e.The Supporting Affidavit paraphrases the above points but also includes a request to send the transcript to the Directorate of Criminal Investigations for investigation “on who signed the same”. Paragraph 16 introduces a plea that if the Tribunal was to allow the Respondent to “vary marks at its whim, it will open a Pandora’s box for corruption, extortion of money from potential advocates”.f.The affidavit mentions the following documents as exhibits:i.EMO 1 – A bundle of correspondence – Not attached.ii.EMO 2 – Document titled Provisional Bar Examination Transcript issued on 15th January 2021. iii.EMO 3 – Document titled Provisional Transcript issued on 18th September 2023. g.The Appellant’s submissions framed 5 issues for determination:i.Whether the Respondent is entitled to alter examination results in ATP 108 Commercial Transaction examination paper after it has been released and issued to the Applicant.ii.Whether the Respondent who varied the marks in question 5 of ATP 103 countersigned for the alteration of the same.iii.Whether the prayers and orders sought in the Notice of Motion dated 25th September 2023 should be granted.iv.Whether adopting the marks in the project done in Class A, Firm 14 will grant the Applicant a pass or fail for according to the record, Examination in ATP 103 is 24, Project Marks is 18 and Orals marks is 8, making the pass of 50. v.Whether the Applicant satisfies the Respondent’s examination pass requirements in ATP 103 when the Project marks for the academic year 2023 Class A, Firm 14 are reflected on his transcript.g.The Respondent filed a Replying Affidavit sworn by Jennifer Gitiri, the Respondent’s Acting Chief Executive Officer sworn on 19th October 2023 together with written submissions dated the same day. She states that the Respondent has an Enterprise Resource Planning System to “enable it to effectively fulfil its mandate of administering the Advocates Training Programme (ATP) examination that involves a number of activities which include issuance of transcripts to candidates who have sat the ATP examination. The system enables candidates to download provisional transcripts upon the release of the examination results.h.The deponent of the affidavit concedes that the system is susceptible to failure like any other Information and Communication System and further states that the Respondent verifies a candidate’s marks from their actual examination booklets. She also stated that the results are a reflection of the candidate’s marks.i.There was an explanation given for the events and facts that have precipitated the filing of this appeal. That in the Appellant’s case, the system doubled his marks in ATP 108 Commercial Transactions. However, the Respondent through its various verification processes, realised that the marks awarded to the Appellant were incorrect.j.That the Respondent corrected and verified the same and placed the correct marks on the candidate’s transcript. The correct and verified actual marks attained by the Appellant in ATP 108 Commercial Transactions was 24 out of 60 marks totalling 42 %. Due to the doubling of marks or scores, the ERP system erroneously depicted that the Appellant had passed ATP 108 Commercial Transactions, which was not the factual position.k.The deponent annexed the cover pages of the examination booklet that was marked as Exhibit JG1. She stated that the marks the booklet contained the true and correct marks for Edwin Motari Ong’uti.l.At paragraph 9 of the affidavit, the deponent stated that to pass the examination, the Appellant was required to obtain an overall of 50% computed as a total of the final written examination, in which the Appellant scored 24 out of 60 in his project. That the Appellant scored 10 out of 20, and in the oral assessment, the Appellant scored 08 out of 20. For the main examination, a candidate is required to attain 50% of the pass mark for the three (3) assessments that is written examination, Project work and oral assessment. The Appellant did not attain 50% overall marks in the main examination and therefore failed the examination.m.She annexed to her affidavit a document she titled as the “latest downloaded Provisional Transcript from the ERP system dated 18th October 2023 for Candidate No. CLE 20172049 showing the correct and actual marks obtained by the Appellant in ATP 108 Commercial Transactions as well as the oral marks and project marks as received from Kenya School of Law.n.At paragraphs 10 to 15, she sets out the protocol followed after issuance of the provisional transcript. Altogether, she states that the provisional transcripts were subject to a verification process and she states at paragraph 15 that the Appellant was issued with a final transcript. Specifically, at paragraph 12, she averred that upon release of the July 2018 examination which concerned the Appellant and is the subject of these proceedings, the candidate did not follow up on the results until January 2021. o.Paragraph 19 states that the Appellant was not the only person affected by the error. She further indicated that the final and actual marks of the candidate are only confirmed from their original examination booklet of any given examination paper.p.The deponent further explained at paragraph 21 of the affidavit that the provisional transcripts are system generated to facilitate expediency of the gazettement notice. That the Respondent did not vary or alter the marks. She also specifically denied the allegations of negligence and unprofessional conduct. Paragraph 26 denied that there was any factual underpinning to the allegations that there was alteration of the Appellant’s marks.q.Paragraph 28 pleaded the doctrine of legality and the rest of the affidavit spoke about the Respondent’s duty to the public and their statutory mandate to ensure the highest standards and compliance with the law and regulations governing examinations.r.Paragraph 48 stated that the deponent believed that the regulation, management and control of examinations should best be left to the discretion of those who are entrusted with the responsibility. She attached the following documents to the affidavit:i.Exhibit JG 1 – A cover page of the examination booklet for Edwin Motari Ong’uti.ii.Exhibit JG 2 – A copy of the latest downloaded Provisional Transcript from the ERP dated 18th October 2023 for Candidate No. CLE. 20172049 showing the correct and actual marks obtained by the Appellant in ATP 108 Commercial Transactions as well as the oral marks and project marks as received from Kenya School of Law.a.The Respondent’s submissions have extensively discussed the issues framed, supported by a list of 21 authorities, as follows:i.Whether the Appellant satisfied the Respondent’s examination pass requirements in the ATP 108 Commercial Transaction examination paper.ii.Whether the Respondent is justified under Article 24 of the Constitution, the Access to Information Act and the Data Protection Act 2019 to release or submit the Applicant’s Answer Sheets.iii.Whether the Respondent violated the Appellant’s right to legitimate expectation.iv.Whether the prayers and orders sought in the Appeal should be granted.

2. Analysis and determination.a.The Tribunal has considered the rival positions taken by the parties. It is the Respondent’s position that there was a problem with the Enterprise Resource Planning System (the ERP). It affected the marks as entered and caused a discrepancy between the marks appearing in the system and the hard copies of the examination booklets.b.The Respondent availed the cover pages of the examination booklet vide a Replying Affidavit sworn by Jennifer Gitiri, the Respondent’s Acting Chief Executive Officer. The cover pages belonged to the Appellant.c.We have noted from the Supporting Affidavit sworn by the Appellant herein has attached the transcripts clearly titled “Provisional Bar Examination Transcript” (issued on 15th January 2021) and a “Provisional Transcript” (issued on 18th September 2023).d.In the latter document there is a rider at the foot of the document as follows:“NB: This is a system generated transcript. Generated on: 9/18/2023 11:41:52 A.M.These are provisional results which are subject to verification and are subject to confirmation by issuance of final transcripts and compliance certificate.e.We preface our finding by defining the word “Provisional”. A literal definition from the Black’s Law Dictionary defines it as a “temporary, preliminary, tentative, taken, or done by way of precaution or ad interim.” We, therefore, are unable to accept the reliance on the Provisional Bar Examination Transcript as the final results because there is clearly an expectation that it is subject to another process to make the results final. The provisional transcript is part of a decision-making making process that is incomplete until such time as the results are verified.f.We accept the Respondent’s explanation that the results are subject to verification and correction in the event of an error. We also note that the Appellant does not dispute that the results as they appear on the cover of the booklets belongs to him. The dearth of correspondence disputing this is also noted. The Appellant referred to correspondence between him and the Respondent in his affidavit but the same was not annexed. As such, there is no dispute addressed to the Respondent about the result’s correctness or otherwise. There is also no challenge placed before this Tribunal disputing the contents of the cover page.g.The submission that the results must, in the event of rejection of the Appellant’s plea, be verified by the Directorate of Criminal Investigations, is rejected summarily. It is contained in paragraph 12 of the affidavit in support of the motion. This in view of the powers vested by the following sections of the law.h.First, Section 35 (G) of the National Police Service Act No. 11A of 2011 allows the Director of Criminal Investigation to undertake forensic analysis only while undertaking investigations where a complaint has been lodged as provided by law. Secondly, Article 245 (4) (a) of the Constitution states no person may give a direction to the Inspector General of Police with respect to investigations of any offence or offences.i.The Inspector General of Police has constitutionally guaranteed independence to ensure investigations are undertaken independently. From the organogram of the police force, as can be discerned from Section 35 (G) of the National Police Service Act, the Directorate of Criminal Investigations falls under the Inspector General of Police which is an independent institution.j.This is the position that accords with the law and precedents of the superior courts. In Francis Kirimi Nkarichia v David Nkanata Magiri & 7 others [2022] eKLR, the court analysed the law above and declined to involve the police in advancing evidentiary pursuit on behalf of the parties.k.This position gets further support in Partick Kinyua Munyito v Francis Muriuki Muraguri & 2 others [2014] eKLR. While dismissing a request for police involvement in a matter before her, Justice Ougo stated as follows:“On the 1st defendant’s application, it is my view that if he wants the police to investigate the plaintiff’s documents then he should report the matter to the police and pursue the issue of forensic examination with the police. The court cannot be asked to get involved in investigating documents the plaintiff intends to rely on.”l.Further, in Bakari Juma Diwani & 296 others v Charity Wangui Mwangi [2020] eKLR, Justice Yano also dismissed a similar application and stated as follows:“11. The other issue for determination is whether the respondents’ documents should be subjected to forensic examination. Evidently, this is not a criminal court and pre-trial discovery and gathering of evidence must be managed by the parties. The Applicant has doubts as to the authenticity of the Authority to Appear, Act and plead and the respondents’ identity card numbers.The Applicant is entitled to do so. However, in expressing her doubts over the authenticity of the said documents, the Applicant cannot be allowed to turn the court into an investigative agency. By ordering forensic examination of the disputed documents, the court will, in my view, be descending into the parties’ arena of availing evidence in support of their respective cases. In my view, parties must be left to present evidence in support of their respective cases.”m.A plain reading of the law above leads us to a conclusion that the Inspector General of Police does not require a court order to undertake its mandate since under Section 24 of the National Police Service Act, one of its power is to investigate crimes. No complaint has been lodged in this matter.n.The Appellant also makes very bold claims about the Respondent. He has used strong language to make his point. It is why we have toiled to reproduce his prayers and grounds verbatim in the recital to this ruling. He alleges that the Respondent’s examination system is unreliable, clumsy, unprofessional, unreliable, unverifiable and even uses the word “corrupt”. This is in his quest to make a point that the Respondent’s actions are illegal. He imputes improper motive and incompetence in the Respondent’s actions.o.The Respondents contend that the results were subject to verification. They allege that incorrect results would create a legal absurdity. The reliance on the constitution and statute must be weighed against an interpretation that promotes public good and avoids a pedantic approach that a person given results that are clearly titled “provisional” should be allowed to keep them whether or not a mistake has been discovered.p.We agree and hold that the argument would result in a legal absurdity. We cannot oust the Respondent’s powers to audit and correct mistake especially when they have such an unequivocal rider on their transcripts on the import of provisional transcripts. Any other interpretation would be absurd and legally untenable. The Appellant cannot be allowed to keep marks he did not earn simply because the system made a mistake.q.In Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 others [2012] eKLR the Court of Appeal summarized the various principles of constitutional interpretation as follows:(21)…. Before the High Court embarked on the interpretation of the contentious provisions of the Constitution, it restated the relevant principles of interpretation of the Constitution as extracted from case law thus: -“that the Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism”……These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statues which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise”.r.In view of the above, we find that in applying the principles of interpretation of statutes (as pleaded in paragraph 3 of the Appellant’s Supporting Affidavit) on the presumption against absurdity, the presumption against unworkable or impracticable result, presumption against the anomalous or illogical result, the presumption against the artificial result and the principle that the law should serve the public interest, we find and hold that the orders as sought cannot be granted.s.We have said enough about the difficulty we have with allowing incorrect marks to accrue to the Appellant only because he disputes their correctness, but is then unable to impugn the marks on the cover pages of the examination booklet. This would not be in the public interest and would result in the absurdity described above.t.We share the view that it would be imprudent to grant the prayers sought in the application (now adopted as the appeal) as this would have the effect of substituting the correct marks with demonstrably incorrect marks. It would undermine the Respondent’s role as a regulator. We reiterate that this would also be against the absurdity test discussed above.u.In Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others [2013] eKLR, the Court of Appeal stated as follows:“We are also of the view that the learned judge correctly applied the principle in the decision in Susan Mungai V The Council for Legal Education Petition No. 152/2011 to the effect that the Council has the power to set standards to ensure that the highest professional standards are maintained in the profession and it is not for the Court to be concerned with the efficaciousness of the decision made pursuant to the Regulations”.v.Substituting the decision to correct the marks obtained by the Appellant would vitiate public interest and place us in a position of micromanaging the Respondent’s internal academic affairs.w.Before we make our disposition, we must make a comment about the pleadings filed by the Appellant. They are not the product of fastidious drafting but what caught the Tribunal’s eye is the strong, almost unpleasant, language. The legal profession he seeks to join is steeped in deep traditions of formal politeness, respect and courtesy. Strong words do not make a point stronger. In the fullness of time, the Appellant may need to interact with the Respondent in his sojourn to become an advocate. This ought to have been a normal contest on the issues. The reproduction of the Appellant prayers and grounds in support of the application in the recital above was deliberate and meant to demonstrate this point. We say no more.

3. Disposition.a.That the appeal is dismissed.b.That each party bears its 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 10THDAY OF NOVEMBER 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.