Osman v Kenya School of Law & another (Appeal E029 of 2026) [2026] KELEAT 12 (KLR) (24 April 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E029/2026 ZUHEILA MOHAMED OSMAN VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION # JUDGMENT **A. Introduction and Background** 1. Before this Tribunal for determination is the Appellant’s appeal dated 3rd February, 2026 filed under certificate of urgency and supported by his affidavit of even date, seeking to overturn the decision of the Director of Kenya School of Law for declining to admit him to the Advocates Training Programme. Amongst others, the appellant seeks the following prayers: - 1. spent 2. That the Honourable Tribunal be pleased to quash the decisions ofthe Director of Kenya School of Law dated 22nd December, 2025 and 26th January 2026. 3. That this Honourable Tribunal be pleased to order and/or direct therespondent to admit the Appellant to the Advocates Training Programme (ATP)for the academic year 2026/2027. 4. That any other order as this Honourable Tribunal may deem just and expedient to grant. 1. The appeal is premised on amongst other grounds that the appellantobtained a mean grade of C + (plus) and grades C+(plus) in English and B(minus) in Kiswahili. He then enrolled in Mount Kenya University, where he graduated with a Diploma in Law passing with credit II. He subsequently joined the same institution for an LLB degree, and graduated in 2022. That his constitutional right had been infringed and that the actions of the respondent to deny him admission are ultra vires, unlawful and illegal. 1. The Respondent filed a replying affidavit sworn on 23rd February 2026 by **LAWRENCE NDIRANGU,** the Officer in charge of Academic Services, opposing the appeal claiming ATP admission exclusivity under pursuant to section 16 of the Kenya School of Law Act and challenging this Tribunal’s jurisdiction. The deponent avers that the respondent only admits upon satisfaction that an applicant is qualified for admission, and that the appellant herein was found to be ineligible as per the eligibility criteria under section 16 as read with paragraph 1 of the second schedule of the KSL Act, which requires a mean grade of C+(plus) in KCSE with a B (plain) in either English or Kiswahili languages, that the appellant lacked. The respondent further claims that the KSL Act does not provide for prior learning, which the appellant is relying on and therefore, allowing him to join ATP via unrelated course prior to joining LLB degree would be to dodge the clear provisions of the KSL Act and the explicit determination of the Court of Appeal, which settled the question of admission. Hence the appellant was not qualified. 1. The interested party, in a replying affidavit sworn on 23rd February, 2026 by the institution’s CEO, **Prof. BUSALILE JACK MWIMALI,** reiterated the institution’s mandate under sections 8 and 21 of LEA, which is not limited to quality assurance, accreditation and compliance with standards across legal education providers. In the averment, the CEO, reiterates that the institution’s role in maintaining standards is not only procedural and that it agrees with the Court of Appeal’s decision in the **Otinga case,** that affirmed its exclusivity on mandates under section 8(3) (a) of the Legal Education Act, to formulate admission requirements. That the institution has already commenced the regulations making process in compliance with **Otinga Case**, through the participatory engagement of key stakeholders. This, the CEO avers that will ensure that the final regulations are lawful, reasonable and legitimate and in line with constitutional values. The CEO further appreciates that courts have in several decisions recognized academic progression in legal education, notwithstanding that it is not automatic. That it must be reconciled with the overriding public interest and that it is the best placed entity under the statute to advise on matters relating to legal education in Kenya. **B. Submissions by Parties** **Appellant’s Submissions** 1. The appellant through her submissions dated 20/2/2026 raises three issuesfor determination. As to whether the Tribunal has jurisdiction, he relies on several cases including **Owners of the Motor Vessel "Lillian S" v Caltex Oil** **(Kenya) Ltd [1989] eKLR**, **Samuel Kamau Macharia v. Kenya Commercial Bank & 2 others (2012) eKLR, Nabulime Miriam & Others v Council of Legal Education & 5 Others, (2016) eKLR** and **Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR,** and section 31 of LEA to conclude that it is well clothed with jurisdiction. 1. On whether he meets the requisite qualifications for admission to the ATP,he submits that section 8(3)(c) of the Legal Education Act, 2012 and the Legal Education (Accreditation and Quality Assurance) Regulations 2016 work in his favour and relies on **Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR,** **Claire Njoki Kirera v Council for Legal Education & 2 Others, (2021) eKLR, Court of Appeal in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021- Kenya School of Law -vs – Otene** **Richard Akomo & 41 Others,** **Akoyo v Permanent Secretary, State Department for Devolution; Attorney General (Interested Party) (Application 440 of 2018) [2023] KEHC 23189 (KLR) (Judicial Review) (6 October 2023)** and **Otinga -V- Cabinet Secretary, Ministry of Education and 3 Others (Civil Appeal E625 of 2023), [2025] KECA 460 (KLR) (7 March 2025).** He further submits that the invalidated section 16 of the KSL Act should have been used to determine his eligibility criteria for admission to the ATP. Finally, the appellant argues that the responded violated his right under article 47(1) of the Constitution and the Fair Administrative Action Act and therefore hits actions are ultra vires. **Respondent’s Submission** 1. The respondent, in its submissions dates 9th March, 2026, submits that the Tribunal does not have Jurisdiction to hear and determine matters emanating from the Kenya School of Law Act. It justifies that by quoting various authorities: **Law Society of Kenya Vs Centre for Human Rights and Democracy & 3 Others {2013} eKLR**, **Bakeries Limited Vs Rent Restriction Tribunal** **and Kiriti Rural Nairobi HCMCC No. 246 of 1981** and **ACCA/E 002/23 Kenya School of Law v Isiah Munoru Mucheke** 1. On the issue of whether double standard in admission is justifiable ordiscriminatory, the respondent submits that the Tribunal should, in construction of statute, avoid a result that is obnoxious to principles of public policy when words carry one meaning. 2. The respondent submits that its refusal to admit the appellant did notbreach any legitimate expectation as none had been created and that its decision was both legal and reasonable pursuant to article 47(1) of the Constitution. 1. On the issues of Academic progression, the respondent insists that theappellant does not qualify to be admitted to the ATP by reason of academic progression, as the KSL Act, as amended by Statute Law Miscellaneous Amendments Act (No. 18 of 2024) does not provide for it. It argues that in the **Otinga Case**, the Court of Appeal directed the interested party to enact regulation to establish and govern ATP programs and that it is not barred from setting its minimum standards. **Interested Party’s submissions** 1. In the submissions dated 9th March, 2026, interested party submits that the nullification of section 16 and the second schedule of KSL Act by the Court of Appeal in the Otinga case removed the KCSE mean grade and specific subjects’ grades as mandatory qualification and stand-alone for determination of admission to the ATP. Thus, KCSE cannot be cited as only legal mechanism for admission, which was an unfair to pre-tertiary progression barrier that the court of appeal removed when section 16 and the second schedule of the KSL Act were declared unconstitutional. 2. It submits that due to the immense public trust in advocates, there shouldbe an assurance of verified and standardized educational pathway equivalent to those with direct qualification. It further submits that prior learning qualification ought to constitute relevant progression towards legal training as held by the Court of Appeal in **Kenya School of Laws v Akomo & 41 others (20220 KECA 1132 KLR**. it submits that the burden to prove prior learning lies with the appellant, so as to convince the Tribunal to rule in his favour. 1. Finally, the interested party argues that it should not be held liable for theactions of the respondent for refusal to admit the appellant, since its mandate and that of the respondent are different from their respective establishing statutes. **C. Analysis** 14. The parties to this appeal have raised several issues for determination in their respective submissions and the Tribunal has sieved through and narrowed them down into three, which are: # a. Whether the Tribunal has Jurisdiction to deal with the appeal 1. Whether the Respondent’s decision to decline the appellant’sapplication was reasonable, valid and lawful 2. Whether the appellant qualifies for admission to the ATP on academicprogression **Whether the Tribunal has Jurisdiction to deal with this Appeal?** 1. Jurisdiction is majorly derived from the Constitution, which can donate thesame to statutes and hence, both can equally grant jurisdiction to a court of law or tribunal as stated in the Supreme Court case of **Macharia & Another Vs Kenya commercial Bank Ltd & 2 Others,** that: **“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law”** 1. In addition to the above, in the case of **In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR)** while discussing jurisdiction, Musyoka J stated that: **“31. Jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction, the court cannot exercise power without violating the principles of rule of law and legality. It was in that context that the Court of Appeal, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR, stated:** **“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 downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”** 1. In this appeal, the respondent submits that the Tribunal’s jurisdiction isonly confined to matters arising out of the Legal Education Act, and does not extend to it, as the KSL Act has no provision for this Tribunal to determine any appeal emanating from it. 2. This Tribunal’s jurisdiction to hear and determine appeals emanating fromthe respondent and interested party is anchored in section 31 of the Legal Education Act. This was been affirmed **Majanja, J** in **Kenya School of law –Vs- Gachoki & 2 others [ civil appeal E062 of 2022(2024},** where he stated that: **“On my part I do not see any reason to depart from the settled position on jurisdiction. Section 31(1) of the Legal education act 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 under which KSL is guided by and applies the provisions of Legal Education Act”** Emphasis, ours 1. This Tribunal has consistently affirmed its jurisdiction in several of itsdecisions. See **Eric Ng’angá Wanjiru v Kenya School of Law & Another [2025]**. Accordingly, this Tribunal reiterates that it possesses the requisite jurisdiction over matters emanating from the KSL Act and the LEA by virtue of section 31 of LEA and as held ib quoted cases of superior courts. **Whether the Respondent’s decision to decline the appellant’s application was reasonable, valid and lawful;** 1. It is the appellant’s argument that the respondent’s actions to deny heradmission to the ATP was based on section 16 and the second schedule of the KSL Act, yet it had been invalidated by the Court of Appeal in **Stephen Nikita Otinga v Cabinet Secretary & 3 Others** and hence became inoperative to the extent that they contradict the parent statute. However, the respondent reiterates that it acted reasonably and within the law pursuant to article 47(1) of the Constitution. The Appellant insists that the Respondent relied on section 16 and the Second Schedule of the Kenya School of Law Act, which provisions, were invalidated by the Court of Appeal in **Stephen Nikita Otinga v Cabinet Secretary & 3 Others.** 2. Indeed, in its submissions, the respondent maintains that the issue ofadmission to the ATP is exclusively vested in it according to section 16 of the KSL Act, while knowing that the said section 16 of the KSL Act, was declared null and void by the Court of Appeal. While the respondent may have not created any legitimate expectation with the appellant through admission or otherwise, it was expected of it to take judicial notice that nullified and void provisions of the law should not be relied upon in making legal decisions. 1. It is submitted by the interested party, that the ***Otinga* case** resolved the existing confusion and that since then, admission to the Advocates Training Programme (ATP) is no longer based solely on KCSE results, but also on the progressive academic advancement from a diploma to a bachelor’s degree in law. Therefore, this Tribunal agrees that the **Otinga case,** decisively breathed life into section 8(3)(c) of LEA through the invalidation of section 16 and the second schedule of the KSL Act. We expect that the interested party takes the moment to act accordingly to bring to an end the impeding confusion that has derailed the learning of some law graduates, who desire to join the ATP. 1. The above notwithstanding, the Respondent, reiterates that its actionswere within its statutory mandate, which, to it, was not affected by the **Otinga** decision. It is of the view that it has not been precluded from maintaining higher standards for admission of students to the ATP. 2. It is not disputed that the appellant obtained a mean grade of C+ (plus) inKCSE and C+(plus) in English and B-(Minus) in Kiswahili, which grades, according to the respondent, disqualifies him for admission to the ATP as held in the **Akomo decision.** 1. This Tribunal finds that an invalidated law remains invalid to the futureuntil such invalidation is reversed by a superior court, in this case the Supreme Court for the Otinga Case. There has been no proof from the respondent that the **Otinga Case** was overturned and hence, it still remains binding to all courts and this Tribunal. 1. Therefore, the respondent’s decision to rely on section 16 and the secondschedule of the KSL Act to conclude that the appellant was not qualified, while ignoring a valid decision of the **Otinga Case**, was an act *mala fide,* not supported by the law, and now warranting this Tribunal’s intervention without hesitation. t. **Whether the appellant qualifies for admission to ATP on academic progression** 1. Academic progression is premised in section 8(3) (c) of the LegalEducation Act, which provides that: **“S 8(3) in carrying out its functions under subsection (2) the council shall-** **(c) formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower level of learning to higher levels”** 1. The Court of Appeal in the **Kenya School of Law v Akomo & 41 Others (Civil Appeal E472 of 2021 [2022] KECA,** while firming up the issue of progression under LEA, it stated that: **“Progression ideally was the process of developing or moving gradually towards a more advanced state. The wording in section 8(3)(c) of the Legal Education Act was clear that prior learning and experience in law was what ought to be considered when formulating a system that would see the progression in legal education.”.** 1. It is the appellant’s argument that since the invalidation of section 16 andthe second schedule of the KSL Act by the Court of Appeal in **Otinga -VCabinet Secretary, Ministry of Education and 3 Others (Civil Appeal E625 of 2023), [2025] KECA 460 (KLR)**, the said section cannot be the determining criteria of admitting to the Advocates Training Programme. That now, things should revert to section 8(3)(c) of LEA and the Council of Legal Education (Kenya School of Law) Regulations 2009, which recognize prior learning. 1. According to the Kenya Certificate of Secondary Examination (KCSE) attached as **“ZMO-1”,** the appellant had a mean grade of C+ (plus) and grade C+(Plus) in English and B-(Minus) in Kiswahili. A scrutiny of the respondent’s reason for declining the appellant’s application, has root cause in the grades in KCSE certificate. This was been communicated through the respondent’s two letters dated 22nd December, 2025 and 26th January, 2026 attached as **“ZMO-5**” and **“ZMO-6”** respectively. In the letter dated 22nd December, 2025, the reason for refusal was that: **“The appellant did not score a minimum of grade B plain in English or Kiswahili she got a C plus and B Minus in those subjects Her admission to the LLB Programme was past the cut of points”** 1. In the letter dated 26th January, 2026, which was a response to the appellant’s appeal against the decision of the respondent’s letter of 22/12/2025, the respondent, further stated the reason for declining the appeal as: **“Applicant does not meet the minimum KCSE requirement”** 1. It cannot be rocket science to know that the respondent’s decision wasinformed by section 16 and the second schedule of KSL Act, which required a mean grade of C+ (plus) and grade B plain either in English or Kiswahili. One wonders whether it is safe for the respondent to hinge its refusal to admit the appellant on these provisions. Of course, it is not. 1. The appellant in this case has a Diploma in Law **(ZMO-2(a))** from Mount Kenya University where he obtained credit II. He then applied to the same institution to be considered for an LLB degree, which application was allowed through the University letter dated 05/06/2018 **(ZMO-3**). The appellant later graduated with an LLB Degree in Law **(ZMO-4).** 1. In the **Otinga Case,** the Court of Appeal made it very clear that the interested party is the regulator of ATP when it stated that: **“It is evident that the Legal Education Act is the framework of legal education and training in Kenya, including training in ATP.** **Consequently, the provisions therein are the ones applicable to all legal training in Kenya including the ATP**”. 1. It uncontroverted that the Otinga Decision settled the longstandingcompetition and superiority wars between the respondent and the interested party and clarified their roles and mandates under their respective statutes with finality. 1. The decision, gave the interested party the sole mandate of regulating thelegal education providers, which include the respondent. It is therefore, upon the interested party to act with speed to ensure that the regulations are in place by following the constitutional laid down processes to avoid the fate the met the 2016 regulations. The regulations for the legal education providers are long overdue, for the nobility and novelty of this profession, that faces challenges of admission. 1. The above notwithstanding, the respondent maintains that the appellantdoes not qualify to be admitted to ATP by mere reason of academic progression, which is not provided for under the KSL Act, which is its guiding statute. However, the appellant is on record in **Akomo case**, acknowledging academic progression as to be strictly in law. At paragraph 46, the Court stated: **“On the issue of progressive academic qualifications, it is the appellant’s stand that the person who hinges on this aspect of qualification must have obtained a diploma in law and not just any other course”.** 1. By this line of argument at the Court of Appeal, it is evident that therespondent acknowledged academic progression. Its only condition was that, the progression needed to be within the legal profession. That is what is envisaged in the **Akomo case**, quoted in paragraph 40 of this judgment. 1. On its part, the interested party, submits that for the appellant to qualify for academic progression, he must demonstrate that his Diploma constitutes the **“prior learning”** if he wants the Tribunal to rule in his favour. 1. This Tribunal has previously in its decisions held that academicprogression is demonstrated through advancement in studying law from the lower level to the highest; in this case from Diploma to the LLB degree. But all these, should be in the same filed, not any other. This is well captured by the Court of Appeal in **Kenya School of Law v Akomo & 41 Others (Civil Appeal E472 of 2021 [2022] KECA 1132**, when it held that: **“We do not think a degree in aeronautics or 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 diploma in law or related course in law”** 1. As stated earlier, the appellant’s journey started at the Diploma level andsubsequently advancing to the degree in law, before his dream of joining the ATP was asphyxiated by the respondent, while relying on ‘dead’ provisions of the KSL Act. This Tribunal finds the decision of the respondent to be unsafe, warranting intervention. 1. From the foregoing, this Tribunal concludes that the academic documentspresented by the appellant to this court constitute a progressive journey of studying law. We are satisfied that the appellant’s journey is a testament of academic progression. Therefore, by possessing both a Diploma in Law and an LLB Degree from Mount Kenya University, the appellant has exhibited academic progression within the legal profession, which this Tribunal treats as progression towards studying law anticipated in section 8(3)(c) of LEA and Regulation 5(c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009. **D. Disposition** In the premises, the Tribunal makes the following determinations: 1. The respondent’s letters dated 22nd December 2025 and 26th January 2026 by Dr. Henry K. Mutai denying the appellant admission to the Advocates Training Programme are hereby set aside. 2. That appellant, **ZUHEILA MOHAMED OSMAN** is thus, eligible for admission to the Advocates Training Programme on account of academic progression. 3. Right of appeal under section 38 (1) of the Legal Education Act,2012, on points of law in 30 days. 4. Each party shall bear its own costs. **It is so ordered by the Legal Education Appeals Tribunal.** **HON. JULIANA NJIRIRI - CHAIR** **HON. JOSHUA NGULU- MEMBER** **HON. FELIX OKETCH - MEMBER** **HON. MOSES MUNOKO – MEMBER** **HON. GODANA YATANI – MEMBER** **DATED AT NAIROBI THIS 24TH DAY OF APRIL 2026.** # Page **2** of **2** SIGNED BY/FOR: | | | --- | | **★ 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: 2026-04-28 12:59:59 |