[2017] KEHC 2724 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO 227 OF 2017

In the matter of an application under Articles 22 of the Constitution of Kenya, 2010

and

In the matter of alleged contravention of Fundamental Rights and Freedoms under article 43 (1) (f) of the constitution of Kenya, 2010

Between

Rachel Adhiambo Ogola................................1st Petitioner

Elizabeth Wanjiku Njuguna...........................2ndPetitioner

and

Council of Legal Education......................1st Respondent

Kenya School of Law...............................2nd Respondent

JUDGMENT

The petitioners' case

1. The petitioners were admitted for the Advocates Training program at the Kenya School of Law on 9th January 2012. They sat for their bar examinations in November 2012. They were unsuccessful. They sought to differ re-sitting for the exams on grounds that the first petitioner had difficulties raising the fees while the second petitioner stated that since sitting for the for the exam, she give birth to two children whom she need to attend to.

2. The Kenya School of Law in letters dated 22nd November 2011 and 25th July 2013 respectively, allowed their request to differ on the understanding that the petitioners will not be exempted from the stipulated five years school tenure from the date they registered at the school.

3. The first Respondents request to re-sit the exams was declined vide a letters dated 4th May 2017 in which the first Respondent cited the applicable Regulations which expressly provide that the Advocates Training Programme must be completed within five years from the date of registration. The second petitioner construed the said letter to mean that she too cannot be allowed to re-sit the said exams on the same grounds. Both petitioners now challenge the refusal to grant them the opportunity to re-sit for the said examinations stating that their dreams of joining the legal career has been brought to an end.

4. The petitioners invite this court to declare Regulation 9 (5) of the Council of Legal Education (Kenya School of Law) Regulations as unconstitutional. They question the computation of time and ask the court to order the Respondent to register them for the July 2017 (now past) Bar examinations.

Second Respondents Replying affidavit

5. The second Respondent, the Kenya School of Law, is a state co-corporation established under section 3 of the Kenya School of Law Act, 2012. It is the successor to the Kenya School of Law which was established under the Council of Legal Education Act. Its mandate is to train persons for the purposes of the Advocates Act,[1] hence, it mounts the Advocates Training Programme. Fredrick Muhia, its academic Manager swore the Replying Affidavit filed on 5th June 2017. He avers that Regulation 9 (5) of Legal Notice No. 169 of 2009, allowed a student five bar examination attempts within three years of registration and that on 18th November 2011, the was extended to five years, which has been applied from 2012.

6. He also avers that by dint of The Statute Law (Miscellaneous Amendment) Act, 2014, the Bar examinations were transferred to the first Respondent with effect from 8th December 2014 and insisted that the second Respondent has discharged its duties under the law.

The First Respondents Grounds of objection

7. The second Respondent filed grounds of objection stating that-

a. that the petitioners have not offered any reason or grounds to warrant the drastic and far reaching relief of striking down a statute as unconstitutional nor have they demonstrated the unconstitutionality of Regulation 9 (5) of the Council of Legal Education (Kenya School of Law) Regulations, 2009;

b. that Regulation 9 (5) cited above is not unconstitutional, but is a necessary instrument to facilitate legal education training in Kenya and that it passes the constitutional threshold of article 24 of the constitution;

c. that the petitioners were upon differing their exams in 2013 advised that their tenure at the Kenya School of Law was five years from the date of registration, hence no infringement of rights was occasioned as alleged;

d. that the five years run from the date of registration, not from the date of registering for the examinations; and that it in public interest that this court ensures consistency in law and policy.

Advocates Submissions

8. Counsel for the petitioners relied on the birth certificates exhibited in support of the argument that the first petitioner gave birth, hence had to attend to her children. From the birth certificates, the first child was born on 2nd August 2012, three months prior to the examination, while, the second child was born on 19th June 2015. Counsel argued that the petitioners rights under articles 27, 43and 55 of the constitution were violated. Counsel also submitted that the five years should be academic years and not calendar years.

9. The Respondent's counsel submitted that the five years lapsed in 2016 having commenced from the date of registration at the School in January 2012 and that the Legal Education Act enjoins the first Respondent to maintain high standards of qualifications and that the petitioners have the option of registering afresh.

Analysis of the facts, the law and authorities

10. This court has had the opportunity to consider identical issues as in the present case in the case of

Daniel Ingida Aluvaala and another vs Council of Legal Education & Another.[2] Because of the similarity of the issues presented in this petition to the said case, I will quote extensively from the said decision in which this court stated:-

"Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution.It follows that for the impugned decisions to be allowed to stand, it must be demonstrated that the decision is grounded on law.

As such, the Respondents actions must conform to the doctrine of legality. Put differently, a failure to exercise that power where the exigencies of a particular case require it, would amount to undermining the legality principle which, is inextricably linked to the rule of law. Guidance can be obtained from the South African case of AAA Investments (Pty) Ltd vs Micro Finance Regulatory Council and another where the court held as follows:-

“(t)he doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . . Public power . . . can be validly exercised only if it is clearly sourced in law"[3]

Courts are similarly constrained by the doctrine of legality, i.e to exercise only those powers bestowed upon them by the law.[4] The concomitant obligation to uphold the rule of law and, with it, the doctrine of legality, is self-evident. In this regard, the Respondent is constrained by that doctrine to enforce the law by ensuring that its decisions conform to the relevant provisions of the law governing examinations offered at the Kenya School of Law.

The respondent has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with the law and Regulations governing the examinations. It would in general be wrong to whittle away the obligation of the Respondent as a public body to uphold the law. A lenient approach could be an open invitation to the Respondent to act against its legal mandate and pose a real danger of compromising both the professional ability and competence of persons released to the public to practice law.

Section 3 of the Legal Education Act[5] stipulates the objective of the act which is to (a) promote legal education and maintenance of the highest possible standards in legal education; and (b) provide a system to guarantee the quality of legal education and legal education providers.

Section 4 of the act establishes the Council of Legal Education whose functions are stipulated in section 8 of the act. Its functions includeregulating legal education and training in Kenya offered by legal education providers, administering such professional examinations as may be prescribed under section 13 of the Advocates Act and being responsible for setting and enforcing standards relating to the mode and quality of examinations.

Section 8 (3) of the act empowers the Respondent in carrying out its functions to inter alia make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes."

Issues for determination

11. In light of the above provisions of the law the principle of legality discussed in the above cited case which requires the Respondents actions to conform with the law, the issue that falls for determination is whether the refusal by the Respondent to register the petitioners to re-sit for the examinations is grounded on the law, and if so, whether this is a proper case for this court to intervene and grant the reliefs sought. Also for consideration is the question whether or not Regulation 9 (5) challenged in these proceedings is unconstitutional.

12. In the above cited case, this court addressed the question of computation as follows:-

"On the question of computation of time, it is my view that a plain and proper construction of the above regulation clearly shows that the student must complete the course within five years from the date of registering at the school. It is my conclusion that the five years must run from the time the student enrols at the school not from the time the student sits for the first examination. This being the proper construction, the petitioners assertion that time began to run from the date they sat for the first examination is in my view incorrect..."

13. It is not in dispute that Respondent is statutorily mandated to regulate legal education and training in Kenya and to make regulations in respect of requirements for the admissions of persons seeking to enrol in the legal education program. It is also true to state that Admission to the Kenya School of Law is regulated by the law, and the regulations in question have been made to support the law. The said Regulations continue to be in force by dint of section 29 (2) (a) of the Act. I have no difficulty concluding that the Respondent decision is grounded on the law.

14. Regarding the reluctance by courts to intervene in academic decisions, in the above cited case I addressed the question in the following terms:-

"I am also alive to the fact thattruly academic decisions are to be distinguished from the administrative decisions of the academic bodies. This is because administrative decisions are subject to judicial review. Purely academic decisions are treated as beyond the courts reach though, on facts, in several cases the courts can interfere. Therefore, as demonstrated by the authorities cited below, the guiding principle and the proposition of law in so far as judicial review of academic decisions is concerned stands as at to-day undisturbed is that the court should be slow to interfere and should only seldom interfere in academic decisions of academic bodies. The reluctance for interference of the court is evident from the following decisions."

15. To buttress my above stated position, I cited the Indian case of Maharashtra State Board -VS- Kurmarsheth & Others,[6] where it was stated as follows:-

“So long as the body entrusted with the task of framing the rules and regulations acts within the scope of the authority conferred on it in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations...............”(Emphasis added)

16. In the above case, the same court emphasised the need:-

“.............to be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formatted by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and departments controlling them.”

17. Also cited in the said case is the case of University of Mysore and others v. Gopala Gowda and another[7] where the regulations framed by the Academic Council of the University prescribed that in the case of a candidate for the B. V. Sc. course failing four times in the first year examination the university can refuse to grant permission to continue the course. When the regulation was under challenge, the High Court of Mysore held that the regulation was beyond the competence of Academic Council or the University and those bodies had no power to prevent the two students from prosecuting their studies and from appearing at the subsequent examination. In the Special Leave Petition moved by the university, the Supreme Court disagreed with the view taken by the High Court and held:-

“The Academic Council is invested with the power of controlling and generally regulating teaching courses of studies to be pursued, and maintenance of the standards thereof, and for those purposes the Academic Council is competent to make regulations, amongst others, relating to the courses, schemes of examination and conditions on which students shall be admitted to the examinations, degrees, diplomas, certificates and other academic distinctions. The Academic Council is thereby invested with power to control the entire academic life of the student from the stage of admission to a course or branch of study depending upon possession of the minimum qualifications prescribed”.

18. It was further found that failure by a student to qualify for promotion or degree in four examinations is certainly a reasonable test of such inaptitude or supervening disability. If after securing admission to an institution imparting training for professional course, a student is to be held entitled to continue indefinitely to attend the institution without adequate application and to continue to offer himself for successive examinations, a lowering of academic standards would inevitably result.

19. Regarding the power granted by the law to the first Respondent I observed as follows:-

"Power to maintain standards in the course of studies confers authority not merely to prescribe minimum qualification for admission, courses of study, and minimum attendance at an institution which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners’ assessment at the final examination."

20. In the above cited decision, I also cited Jawaharlal Nehru University vs. B. S. Narwala[8] where it was ruled that the court should not interfere where qualified academic authorities decide to remove a student from the university on the basis of assessment of his academic performance. In this case a student was removed from the rolls for continuous failing in examinations and for consistent unsatisfactory academic performance. The court held that in the absence of any allegation as to bias or mala fides, there would be no basis to interfere.

21. Also relevant is the decision in R vs. Council of Legal Education[9] where the court stated thus:-

“The other reason why this court has declined to intervene is one of principle in that academic matters involving issues of policy the courts are not sufficiently equipped to handle and such matters are better handled by the Boards entrusted by statute or regulations. Except where such bodies fail to directly and properly address the applicable law or are guilty of an illegality or a serious procedural impropriety the field of academia should be largely non-justiciable.…”

22. I also observed that:-

"Self-restraint adopted by the judiciary in exercising the power of review in academic matters has left certain academic decisions or regulations governing training and qualifications of professionals untouched. These areas are not disturbed by the courts unless the decisions under challenge are constitutionally so fragile and unsustainable. Academic decisions of the universities and other educational institutions requiring expertise and experience belong to this category. If the decision is legal and lawful, the reasonableness and propriety of the same may not be questioned by the courts. In other words, among the Wednesbury principles of ‘illegality’, ‘irrationality’ and ‘impropriety’, if the decision can get over the first test, it may withstand the other two tests, unless it is shockingly unreasonable, perverse or improper.

It is true that Courts have upheld the constitutional right of every citizen to select a profession or course of study subject to a fair, reasonable, and academic requirements. But like all rights and freedoms guaranteed by the Constitution, their exercise may be so regulated pursuant to the power of the Regulating body to safeguard general welfare of the public.

Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the fields like law and medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice in these professional fields.

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the Respondent or its agents in an arbitrary, despotic, or oppressive manner. A body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights.

The Respondent cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the law. However, the Regulator can require high standards of qualifications, such as good moral character or proficiency in law, before it admits an applicant to the bar. This is done by examining the applicant. The decision complained of must have a rational connection with the desired purpose, which is to ensure high professional standards. The petitioners have not shown the decision complained of or the regulations are not connected to this purpose nor has bad faith or malice been established."

23. The question facing this Court is whether, properly construed, Regulation 9 (5) passes constitutional muster. The appropriate place to begin is with the constitutional and jurisprudential principles that govern the task of statutory interpretation before me.

The relevant statutory interpretation principles

24. Article 2 (4) of the Constitution provides that any law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid.

25. Article 259 of the Constitution provides that the Constitution shall be interpreted in a manner that promotes it's purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights and permits the development of the law; and contributes to good governance. Consistently with this, when the constitutionality of legislation or Regulations is in issue, the court is under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.[10]

26. Thus when the constitutionality of legislation is challenged, a court ought first to determine whether, through “the application of all legitimate interpretive aids,”[11] the impugned legislation is capable of being read in a manner that is constitutionally compliant.

27. Our Constitution requires a purposive approach to statutory interpretation. The technique of paying attention to context in statutory construction is now required by the Constitution.[12] As pointed out above, the constitution introduces a mandatory requirement to construe every piece of legislation in a manner that promotes the ‘spirit, purport and objects of the Bill of Rights.’”

28. The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.[13] The often quoted dissenting judgment of Schreiner JA eloquently articulates the importance of context in statutory interpretation:-

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”[14]

29. A contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute. When confronted with legislation which includes wording not capable of sustaining an interpretation that would render it constitutionally compliant, courts are required, as discussed above, to declare the legislation unconstitutional and invalid. As it stands, this exposition is generally accepted, but it must be said that context is everything in law, and obviously one needs to examine the particular statute and all the facts that gave rise to it.

30. It is indeed an important principle of the rule of law, which is a foundational value of our Constitution, that rules be articulated clearly and in a manner accessible to those governed by the rules.[15] A contextual interpretation of a statute, therefore, must be sufficiently clear to accord with the rule of law.

31. Mindful of the imperative to read legislation or Regulations in conformity with the Constitution, but only to do so when that reading would not unduly strain the legislation or Regulations, I turn to an analysis of the constitutionality of Regulation 9 (5) which I have been invited to declare as unconstitutional.

32. Regulation 9 (5) of The Council of Legal Education (Kenya School of Law Regulations), 2009 provides that " in respect of the Advocates Training Programme a candidate shall be allowed a maximum of five years within which to complete the course of study."

33. The first Respondent has not only a statutory duty but also a moral duty to uphold the law and to ensure due compliance with the law and Regulations governing the examinations. It would in general be wrong to whittle away the obligation of the Respondent as a public body to uphold the law. A lenient approach could be an open invitation to the Respondent to act against its legal mandate and pose a real danger of compromising both the professional ability and competence of persons released to the public to practice law.

34. Section 3 of the Legal Education Act[16] stipulates the objective of the act which is to (a)promote legal education and maintenance of the highest possible standards in legal education; and (b) provide a system to guarantee the quality of legal education and legal education providers.

35. Section 4 of the act establishes the Council of Legal Education whose functions are stipulated in section 8 of the act. Its functions include regulating legal education and training in Kenya offered by legal education providers; administering such professional examinations as may be prescribed under section 13 of the Advocates Act[17] and being responsible for setting and enforcing standards relating to the mode and quality of examinations.

36. Section 8 (3) of the act empowers the Respondent in carrying out its functions to inter alia make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes.

37. The crucial question which must be answered is what is the standard by which the constitutional validity of legislation or Regulation should be judged. In this regard such a question should be answered with reference to the standards of review laid down by our courts when the constitutional validity of a statute is challenged which include two main standards:-

a. The first is the “rationality” test. This is the standard that applies to all legislation under the rule of law;

b. The second, and more exacting standard, is that of “reasonableness” or “proportionality”, which applies when legislation limits a fundamental right in the Bill of Rights. Article 24 (1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”

38. It is important to mention that the regulations are "reasonably related" to a legitimate purpose, that is to enable the first Respondent fulfill its statutory mandate. In determining reasonableness, relevant factors include (a) whether there is a "valid, rational connection" between the regulation and a legitimate and public interest to justify it, which connection cannot be so remote as to render the regulation arbitraryor irrational; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to the affected person, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials' expertise.

39. It is equally important that the court should also as far as possible, avoid any decision or interpretation of a statutory provision, rule or byelaw which would bring about the result of rendering the system unworkable in practice or create a situation that will go against clear provisions of the law governing the subject in issue. In this case, the law and the Regulations in question are designed at maintaining and ensuring high professional standards and competence.

40. It is my view that the impugned regulation is reasonable and valid. The regulation is logically related to the legitimate public concerns of maintaining high professional standards. Moreover, the regulation does not deprive the petitioners the opportunity to pursue their careers. It gives them a chance to register afresh for the programme. Nor is there an obvious, easy alternative to the regulation, since monitoring standards clearly is an important statutory obligation aimed at public good.

41. The petitioners have failed to demonstrate that the impugned Regulations are unconstitutional. It is also important to point out that the rights under article 43 is not absolute. The Respondents acted in conformity with the cited provisions of the law. This satisfies the requirements set out under article 24 of the Constitution in that the limitation is provided under the law.

42. On the question of computation of time, it is my view that a plain and proper construction of the above regulation clearly shows that the student must complete the course within five years from the date of registering at the school. It is my conclusion that the five years must run from the time the student enrols at the school and not from the time the student sits for the first examination. This being the proper construction, the petitioners assertion that time began to run from the date they sat for the first examination is in my view incorrect.

43. On the prayer that I compel the first Respondent to Register the petitioners, I cannot do better than reproduce in verbatim what I stated in my earlier cited decision on the question of the rationale for court not to interfere with decisions made by academic institution where I stated:-

"I am also alive to the fact thattruly academic decisions are to be distinguished from the administrative decisions of the academic bodies. This is because administrative decisions are subject to judicial review. Purely academic decisions are treated as beyond the courts reach though, on facts, in several cases the courts can interfere. Therefore, as demonstrated by the authorities cited below, the guiding principle and the proposition of law in so far as judicial review of academic decisions is concerned stands as at to-day undisturbed is that the court should be slow to interfere and should only seldom interfere in academic decisions of academic bodies. The reluctance for interference of the court is evident from the following decisions.

In the Indian case of Maharashtra State Board -VS- Kurmarsheth & Others,[18] it was stated as follows:-

“So long as the body entrusted with the task of framing the rules and regulations acts within the scope of the authority conferred on it in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations...............”(Emphasis added)

In the above case, the court emphasised the need:-

“.............to be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formatted by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and departments controlling them.”

In University of Mysore and others v. Gopala Gowda and another[19] the regulations framed by the Academic Council of the University prescribed that in the case of a candidate for the B. V. Sc. course failing four times in the first year examination the university can refuse to grant permission to continue the course. When the regulation was under challenge, the High Court of Mysore held that the regulation was beyond the competence of Academic Council or the University and those bodies had no power to prevent the two students from prosecuting their studies and from appearing at the subsequent examination. In the Special Leave Petition moved by the university, the Supreme Court disagreed with the view taken by the High Court and held:-

“The Academic Council is invested with the power of controlling and generally regulating teaching courses of studies to be pursued, and maintenance of the standards thereof, and for those purposes the Academic Council is competent to make regulations, amongst others, relating to the courses, schemes of examination and conditions on which students shall be admitted to the examinations, degrees, diplomas, certificates and other academic distinctions. The Academic Council is thereby invested with power to control the entire academic life of the student from the stage of admission to a course or branch of study depending upon possession of the minimum qualifications prescribed”.

It was further found that failure by a student to qualify for promotion or degree in four examinations is certainly a reasonable test of such inaptitude or supervening disability. If after securing admission to an institution imparting training for professional course, a student is to be held entitled to continue indefinitely to attend the institution without adequate application and to continue to offer himself for successive examinations, a lowering of academic standards would inevitably result.

Power to maintain standards in the course of studies confers authority not merely to prescribe minimum qualification for admission, courses of study, and minimum attendance at an institution which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners’ assessment at the final examination.

In Jawaharlal Nehru University vs. B. S. Narwala[20] it was ruled that the court should not interfere where qualified academic authorities decide to remove a student from the university on the basis of assessment of his academic performance. In this case a student was removed from the rolls for continuous failing in examinations and for consistent unsatisfactory academic performance. The court held that in the absence of any allegation as to bias or mala fides, there would be no basis to interfere.

Also relevant is the decision in R vs. Council of Legal Education[21]where the court stated thus:-

“The other reason why this court has declined to intervene is one of principle in that academic matters involving issues of policy the courts are not sufficiently equipped to handle and such matters are better handled by the Boards entrusted by statute or regulations. Except where such bodies fail to directly and properly address the applicable law or are guilty of an illegality or a serious procedural impropriety the field of academia should be largely non-justiciable.…”

Self-restraint adopted by the judiciary in exercising the power of review in academic matters has left certain academic decisions or regulations governing training and qualifications of professionals untouched. These areas are not disturbed by the courts unless the decisions under challenge are constitutionally so fragile and unsustainable. Academic decisions of the universities and other educational institutions requiring expertise and experience belong to this category. If the decision is legal and lawful, the reasonableness and propriety of the same may not be questioned by the courts. In other words, among the Wednesbury principles of ‘illegality’, ‘irrationality’ and ‘impropriety’, if the decision can get over the first test, it may withstand the other two tests, unless it is shockingly unreasonable, perverse or improper.

It is true that Courts have upheld the constitutional right of every citizen to select a profession or course of study subject to a fair, reasonable, and academic requirements. But like all rights and freedoms guaranteed by the Constitution, their exercise may be so regulated pursuant to the power of the Regulating body to safeguard general welfare of the public.

Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the fields like law and medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice in these professional fields.

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the Respondent or its agents in an arbitrary, despotic, or oppressive manner. A body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights.

The Respondent cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the law. However, the Regulator can require high standards of qualifications, such as good moral character or proficiency in law, before it admits an applicant to the bar. This is done by examining the applicant. The decision complained of must have a rational connection with the desired purpose, which is to ensure high professional standards. The petitioners have not shown the decision complained of or the regulations are not connected to this purpose nor has bad faith or malice been established."

44. In conclusion, the petitioners have failed to demonstrate the unconstitutionality of the challenged Regulations nor is there any basis for this court to compute the alleged time especially so the Regulations are clear on the question of time. There is no basis for court to grant the orders sought.

45. In my aforesaid cited decision, I expression my concern over the numerous cases being filed in this court by Kenya School of Law students. I stated "This court takes judicial notice of the fact that it is in the public domain that for several years now there has been a worrying drop in the percentage of candidates passing the examinations at the Kenya School of Law. This is a truly worrying trend. Kenyans should not burry their heads in the sand and simply let it pass unnoticed. The magnitude of the problem is evidenced by the fact that this court has been flooded by a high rate of constitutional petitions filed by students challenging various decisions made by the Council of Legal Education and the Kenya School of Law. Many of these petitions are triggered by failure to pass the examinations while others touch of admissions to the Kenya School of Law."

46. In the said decision, I proposed as I hereby do, that a study be urgently undertaken to determine what might be behind this worrying trend of low pass rates in the examinations at the Kenya School of Law. I opine that the study could shed light on whether there is a need for improvements in the law school admission criteria, or education and graduation standards at the Universities, or whether it is the training at the Kenya School of Law that warrants improvement and what could be done to raise the bar exam pass rates.

47. In view of my above sentiments, and the public interest need to ensure and maintain high standards and competence in the legal profession, I direct (as I did in the earlier cited case) that the Deputy of Registrar of this court forwards a copy of this judgment to the Honorable Attorney General and the Council of the Law Society of Kenya with the hope that the issues raised herein will generate a genuine discussion on the subject with a view to ensuring that the concerns raised are addressed and resolved for the good of the law students and the general public.

48. In view of my conclusions herein above, I decline to grant the reliefs sought in this petition. Accordingly, I dismiss the petition with no orders as to costs.

Orders accordingly.

Dated at Nairobi this1stday ofNovember2017

John M. Mativo

Judge

[1] Cap 16, Laws of Kenya

[2] Pet No. 254 of 2017

[3] AAA Investments (Pty) Ltd v Micro Finance Regulatory Council [2006] ZACC 9; 2007 (1) SA 343 (CC).

[4] National Director of Public Prosecutions vs Zuma, Harms DP

[5] Act No. 27 of 2012

[6] {1985} CLR 1083

[7] A.l.R. 1965 S.C. 1932.

[8] (1980) 4 S.C.C. 480.

[9] {2007} eKLR

[10] Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001(1) SA 545; 2000 (10) BCLR 1079 (CC) at para 22.

[11] National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 24

[12] Ngcobo J while interpreting a similar provision in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others, [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).

[13] Thornton Legislative Drafting 4ed (1996) at 155 cited in JR de Ville above n 18 at 244.

[14] University of Cape Town vs Cape Bar Council and Another 1986 (4) SA 903 (AD). See also Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662-3.

[15] Dawood and Another v Minister for Home Affairs and Others; Shalabi and Another v Minister for Home Affairs and Others; Thomas and Another v Minister for Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC) ; 2000 (8) BCLR 837 (CC) at para 47.

[16] Act No. 27 of 2012

[17] Cap 16, Laws of Kenya

[18] {1985} CLR 1083

[19] A.l.R. 1965 S.C. 1932.

[20] (1980) 4 s.c.c. 480.

[21] {2007} eKLR