[2022] KELEAT 854 (KLR)

Peters & 2 others v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E031 & E032 of 2022 (Consolidated)) [2022] KELEAT 854 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KELEAT 854 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E031 & E032 of 2022 (Consolidated)

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

November 9, 2022

Between

Sidney Ogutu Peters

1st Appellant

Mabaturu June Mutekhele

2nd Appellant

Beatrice Gathigia Njoroge

3rd Appellant

and

Kenya School Of Law

Respondent

and

Council Of Legal Education

Interested Party

(Being consolidated appeals against the decisions of Dr. H. K. Mutai - Director of the Kenya School of Law declining admission to the Advocates Training Programme during the 2022/2023 academic year as communicated on the 8th February, 2022, 21st March, 2022 and 24th March, 2022)

Judgment

A. Introduction. 1. The appellants Sidney Ogutu Peters, Mabaturu June Mutekhele and Beatrice Gathigia Njoroge instituted appeals against the decisions of the respondent as made on the March 24, 2022, February 8, 2022 and March 21, 2022 in respect of their applications for admission to the Advocates Training Programme. By the decisions as taken, the appellants’ respective applications were declined. The respondent and the interested parties were served with the appeals however, only the respondent entered appearance and opposed the appeals, by way of replying affidavits sworn by Mr Fredrick Muhia the principal officer – academic services of the respondent. The appellants filed a supplementary affidavit and the appeals as consolidated were canvassed through written submissions.

B. The appeals. 2. The appellants common ground of appeal is that the respondent erred in law and fact by denying them admission to Advocates Training Programme based on the their Kenya Certificate of Secondary Education (KCSE) results despite being qualified under section 1 (a) of the second schedule to the Kenya School of Law Act, 2012.

3. They also contend that the 1st and 2nd appellants had prior to undertaking the Bachelor of Laws degrees attended a Diploma in Law course at the Kenya School of Law from 2015 – 2017 while the 3rd appellant had attended the Nairobi Institute of Business Studies in the years 2014 – 2016. The 1st and 3rd the appellants were then admitted to pursue the Bachelor of Laws (LLB) degree at the University of Nairobi while the 2nd appellant was admitted to Kenyatta University.

4. They further contend that the respondent erred in the interpretation of the law and facts by denying the appellants admission and their rights to fair administrative action under article 47 of the Constitutionof Kenya, 2010 had been infringed. The reliefs sought in the appeals proceed on commonality as follows:-a.That a declaration be issued that the appellants qualify for admission to the Advocates Training Programme as provided for in section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 as amended by the Statute Law Miscellaneous (Amendment) Act, 2014. b.That an order be issued compelling the Kenya School of Law to admit the appellants to the Advocates Training Programme forthwith.c.That the honourable Tribunal be pleased to grant costs of the appeal to the appellants.d.That any other relief the honourable Tribunal deems fit and just in the circumstances.

5. By way of basic education, the 1st appellant sat for the Kenya Certificate of Secondary Education examinations at Nyabindo High School in the year 2014 and attained a mean grade of a C (plain) with grades of C + (plus) in English and Kiswahili languages, the 2nd. appellant sat for the Kenya Certificate of Secondary Education examinations at St. Cecilia Girls Misikhu in the year 2013 and attained a mean grade of a C (plain) with grades B (plain) in English and a C + (plus) in Kiswahili while the 3rd appellant sat for the Kenya Certificate of Secondary Education examinations at Murera Secondary School and attained a C (plain) with grades B (plain) in English and C (plain) in Kiswahili.

6. The evidence in support of undergraduate studies as presented by the appellants; is that the 1st appellant was admitted to the University of Nairobi in the July 28, 2017 to study the Bachelor of Laws degree, the 2nd appellant was admitted to the Kenyatta University on the October 3, 2017 to study the Bachelor of Laws degree and the 3rd appellant was admitted to the University of Nairobi on the January 3, 2017 to study the Bachelor of Laws degree. The 1st and 2nd appellants completed their undergraduate degrees and graduated on the December 17, 2021 with second class honours (lower division) while the 3rd appellant graduated with a second class honours (upper division).

7. The appellants thereafter made their respective applications to the respondent seeking admission to the Advocates Training Programme which were rejected for failure to meet the minimum admission requirements at the Kenya Certificate of Secondary Education examinations of a mean grade of a C + (plus) for all the appellants and a grade of a B (plain) in English or Kiswahili for the 1st appellant. The 3rd appellant had also written to the interested party a letter seeking clarification on admission requirements to the Advocates Training Programme and she was informed that she had qualified in-tandem with the Legal Education Act, 2012 and the regulations made thereunder but however, attention was drawn to the Kenya School of Law Act, 2012 and the Advocates Act, Cap 16.

C. Response to the appeals. 8. In response to the appeals, the respondent contended that the Tribunal was bereft of jurisdiction to entertain the same as they related to matters of admission to the Advocates Training Programme which are regulated by the Kenya School of Law Act, No 26 of 2012 while the Tribunal is established under the Legal Education Act, No 27 of 2012.

9. The respondent also contended that the applications by the appellants failed to meet the required admission requirements of a mean grade of C+ (plus) and a B (plain) in English and Kiswahili in the Kenya Certificate of Secondary Education. The appellants were seeking to rely on academic progression which was not provided for in the Kenya School of Law Act, 2012 while the only criteria for admission to the programme was that set out in the second schedule to the act and which guides it in considering admissions to the programme.

10. The respondent further contended that by allowing the appellants to rely on academic progression in gaining admission to the Advocates Training Programme it would result in application of double standards and discrimination.

D. Analysis and determination. 11. On the jurisdiction to entertain the consolidated appeals, the primary relief by the appellants 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 appellants asserted entitlement to admission to the Advocates Training Programme by dint of academic progression which it denies it is not provided for in it’s establishing juridical regime.

12. The Tribunal notes that the function of the interested party 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 & 41others, 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.”

13. The Tribunal has consistently held the afore-going position in it’s various pronouncements.The Tribunal also notes that section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the interested party 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 interested party pursuant to the Legal Education Act, 2012.

14. 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. The Tribunal is also cognizant that the Regulations as formulated by the interested party suffered the fate of a declaration of invalidity but the settled juridical position remains that such declaration does not affect crystallized actions being so fortified by the decision in Javan Kiche Otieno &another v Council of Legal Education, (2021) eKLR in which Justices DK Musinga (P), RN Nambuye and AK Murgor; JJ A held as follows in paragraphs 29, 34, 35 and 47 of the judgment;“29. Beginning with the legality of the impugned regulations, the appellants’ claim against the impugned regulations on the one hand is that they came into effect on the date they were gazetted. Conversely, they argue that the respondent was not legally empowered to enact them because section 46 (1) of the Legal Education Act, 2012, save for sub-section (f) thereof was deemed to have been repealed by section 5 of the Universities Act, No 42 of 2012 and sections 4, 8 and 29 of the Kenya National Qualifications Framework Act, 2014; that further the respondent was not properly constituted at the time of their enactment, and they were not provided an opportunity to participate in the workshops. In effect, what the appellants are contending is that the impugned regulations were improperly enacted and so could not be used as a basis for denying them admission to the Kenyan bar….

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.”

15. On the appeal by the appellants, they firmly asserted and expressly pleaded by way of relief that they qualified under section 1 (a) of the second schedule to the Kenya School of Law Act, 2012. The said law has two sections and for ease of reference it is reproduced as follows;“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 any 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.”

16. The Tribunal being guided by the literal rule of statutory interpretation has over time adopted the said cannon in addressing the said law by finding that the conjuction ‘or’ between sections (a) and (b) therein were to be read and so accorded interpretation in a disjunctive manner. However, with the recent pronouncement by the Court of Appeal in Nairobi Court of Appeal Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others, by Justices Asike - Makhandia, J Mohamed and Kantai JJA, and the Tribunal being guided with respect to adherence to the doctrine of stare – decisis, coupled with the fact that the appellants’ matters are not distinguishable it finds that since they solely pleaded and relied on section 1 (a) of the said schedule in support of their qualification, the said pronouncement of the Court of appeal on a holistic interpretation by the appellate court binds the appellants’ and as such they failed to meet the minimum Kenya Certificate of Secondary School examinations grades as prescribed in section 1 (b) of the said Schedule. The Tribunal reproduces the text of the appellate court judgment supra at page 24 therein as follows;“The contention between the two parties is the interpretation of the above provisions as to whether given the two scenarios of joining KSL, whether the first one (1) (a) does not require one to have the KCSE mandatory requirements of a mean grade C + (plus) and a grade B (plain) in English or Kiswahili. That the said KCSE requirements only apply to those making applications under 1 (b) of the said section. To us, the interpretation we discern from the above section is that the section should be read as a whole.”

17. As regards academic progression in seeking to gain admission to the respondent’s institution and the Bar eventually, the Tribunal finds that the appellants failed to expressly seek relief for a finding on the same in the appeal. The appellants only relied on section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 and which as already adumbrated they failed to meet the requirements taking into account the holistic interpretation by the Court of Appeal. The Tribunal is so guided by the decision inCaptain Harry Gandy v Casper Air Charters Limited, (1956) 23 EACA 139 in which Justice Sinclair as he then was held;“As a rule relief not founded on the pleadings will not be given.”

18. The Tribunal is also guided by the authority in Gregory Kiema Kyuma v Marietta Syokau Kiema, (1988) eKLR in which Justice Fred Kwasi Apaloo JJA whose decision was supported by Justices Gachuhi and Kwach JJA as they then were held;“I cannot help feeling some sympathy for the appellant who was driven from the judgement seat without a hearing on the merits. But my sympathy is no substitute for the law. As is well-known, an appeal is a creature of statute and any person desirous of exercising that right must bring himself squarely within the four corners of the substantive and procedural legislation. My conclusion therefore is, that this appeal fails and should be dismissed with costs.”

19. The Tribunal however, reiterates that progression as a mode of gaining admission to the Bar is still provided for in the provisions of section 8 (3) (a) and (c) of the Legal Education Act, 2012 and also based on the regulations thereto though declared to be unconstitutional but subject to establishing the rider on crystallized actions. Indeed in an appeal when it’s application is well established, the Tribunal would be inclined in finding in favour of an aggrieved party denied admission to the Advocates Training Programme. The Court of Appeal in Nairobi Court of Appeal Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41others, by Justices Asike - Makhandia, J Mohamed and Kantai JJA at pages 27 - 28 rendered itself as follows on the said matter;“We are alive to the fact that the parties relied on the said regulations as they were then in force before the Court of Appeal declared the same to be invalid for want of compliance with the Statutory Instruments Act, 2013 on December 21, 2021 in the case of Javan Kiche Otieno & another v Council of Legal Education [2021] eKLR. But hasten to add that such invalidation could not apply retrospectively.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. Progression ideally is the process of developing or moving gradually towards a more advanced state.”

20. However, the appellants in this appeal did not place before the Tribunal evidence of the application forms or letters as made to the respondent seeking admission on the basis of academic progression and also the rejection letters by the respondent did not delve into the matter as a consideration for declining the appellants admissibility. The impugned decisions were solely motivated by a consideration of the Kenya Certificate of Secondary Education examinations results. Indeed in the absence of a discourse by the appellants on progression the Tribunal is unable to find for the appellants on the same.

E. Disposition. 21It is decreed by the Tribunal as follows:-a.That the consolidated appeals by Sidney Ogutu Peters, Mabaturu June Mutekhele and Beatrice Gathigia Njoroge are hereby dismissed and the decisions of the respondent as taken on the respective applications to the Advocates Training Programme are upheld.b.That each party to bear own costs of the appeal.c.That any party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38 (1) of the Legal Education Act, 2012.

IT IS SO ORDERED BY THE LEGAL EDUCATION APPEALS TRIBUNAL. DATED AT NAIROBI THIS 9TH. DAY OF NOVEMBER, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR