Rashid v Kenya School of Law & another (Tribunal Appeal E018 of 2026) [2026] KELEAT 5 (KLR) (17 April 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E018/2026 HUSSEIN ADEEL RASHID VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION JUDGMENT # A. Introduction and Background 1. The Appellant, **HUSSEIN ADEEL RASHID,** instituted this appeal before the Tribunal against the **KENYA SCHOOL OF LAW** as the Respondent and the **COUNCIL OF LEGAL EDUCATION** as an Interested Party, vide a Memorandum of Appeal dated **26th January 2026,** seeking the following orders: - * 1. An Order certifying this matter as urgent and the appeal be fixed for interparties hearing on priority basis. 2. An order quashing the decisions of the Director of the Kenya School of Lawdated 16th December 2025 and 16th January 2026. 3. An Order and/or direction compelling the Respondent to admit the Appellantinto the Advocates Training Programme for academic year 2026/2027. 4. Any other and/or further order as the Tribunal may deem fit and just to grant inthe circumstances of this case in exercise of its jurisdiction. 5. An order for the Respondent to bear the costs of the appeal. 1. The Appeal is premised on the following grounds: - * 1. **THAT** the Respondent through its Director/ Chief Executive Officer erred in fact and in law, denying the Appellant admission, into the Advocates Training programme (ATP) for the year 2025/2026 vide letter dated 16th December 2025 and subsequently on 13th January 2026 on appeal to the Kenya School of Law Board. 2. **THAT** the Appellant having scored a Mean Grade of C (Plain) with a B(minus) in English and C-(minus) in Kiswahili in the Kenya Certificate of Secondary Education, having pursued Diploma in Law and having been conferred with a Bachelor of Laws Degree from Mount Kenya University, he is duly qualified to be enrolled to the Advocate Training Programme (ATP) at Kenya School of Law. 3. **THAT** the Appellant’s right to education has been greatly infringed upon by the Respondent’s action by denying him an opportunity to undertake the Advocate Training Programme (ATP) at Kenya School of Law for academic year 2026/2027. 4. **THAT** the decision of the Director of the Respondent was ultra-vires, unlawful and illegal as in doing so the Director of the Kenya School of Law ignored various facts. 5. **THAT** it is in the best interests of justice for the Appellant to be admitted to the Advocate Training Programme (ATP) at Kenya School of Law for academic year 2026/2027. 6. **THAT** the Director of the Kenya School of Law has no legal basis to monitor Legal Education in Kenya as this is the sole mandate of the Council for Legal Education. 7. **THAT** due to the foregoing reasons, it is in the best interests of justice that the Appellant’s appeal filed herewith be certified as urgent, be heard on priority basis and the orders sought be granted forthwith. 2. Through his Supporting Affidavit dated 26th January 2026, the Appellant contends that he sat for her Kenya Certificate of Secondary Education in 2015 and scored a mean grade of C (plain) and a grade of B-(minus) in English and C- (minus) in Kiswahili. He avers that he applied to Mount Kenya University in 2016 for his Diploma and graduated in 2018. He was admitted to Mount Kenya University on the 5th June 2018 to pursue a Bachelor of Laws (LL.B.) degree and graduated on December 2022. He contends that he applied for the Advocate Training Programme (ATP) at Kenya School of Law on 27th August 2025 and on 16th December 2025 and was rejected by the Respondent on grounds that he had not attained Bs in either of the languages and lacked the minimum grade C+ (plus) in KCSE. He claims that he appealed against the said decisions but on 13th January 2026 it was rejected. He claims that Section 16 second schedule of Kenya School of Law Act 2012 was declared unconstitutional in Stephen Otinga Nikita v Cabinet Secretary, Ministry of Education & 3 others Civil Appeal E625 2023. He avers that Section 24 of the Interpretation and General Provisions Act, Chapter 2 Laws of Kenya, the Council of Legal Education (Kenya School of Law) Regulations 2009 continued being in force after the annulment of the Legal Education (Accreditation and Quality Assurance) Regulations 2016 and Section 16 together with the second schedule of the Kenya School of Law Act. He claims that his admission falls within Section 8(3) of the Legal Education Act 2012 and Council of Legal Education (Kenya School of Law) Regulations 2009. 1. The Respondent filed its Replying Affidavit dated **9th February 2026**, sworn by **LAWRENCE NDIRANGU,** an Academic Services Officer at the Respondent institution, dated 28th February 2025. The Respondent averred that matters concerning admission to its Advocates Training Programme are exclusively governed by Section 16 of the Kenya School of Law Act, Cap 16C. The Respondent also challenged the Tribunal’s jurisdiction to adjudicate on the matter, arguing that its jurisdiction is limited to disputes arising under the Legal Education Act 2012. Additionally, the Respondent stated that upon reviewing the Appellant’s application for admission to the ATP, he was found ineligible under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, Cap 16C. The Respondent emphasized that Section 16 of the Kenya School of Law Act, 2012, as read with Paragraph 1 of the Second Schedule, sets the minimum admission requirement for the ATP as a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education, with a minimum grade of B (plain) in English or Kiswahili, which the Appellant did not meet. The Respondent further averred that the Kenya School of Law Act, Cap 16C, does not provide for academic progression as a basis for admission. 2. The Interested Party filed its Replying Affidavit dated 23rd February 2026, sworn by, a **PROF. BUSALILE, JACK MWIMALI**, Chief Executive Officer of the Interested Party, Council of Legal Education. **B. Submissions** **Appellant’s Submissions** 1. The Appellant submits that this Tribunal possesses the jurisdiction to determinethis appeal pursuant to **Section 31(1) of the Legal Education Act 2012.** He submits that the said provision empowers this Tribunal to deal with any matter relating to the Legal Education Act 2012 and that a reference to the Act includes the subsidiary legislations made thereunder. The Appellant cited the decision in the Court of Appeal decision in **Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1** where it establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein and **Republic v Kenya School of Law & 2 Others Ex-Parte Kgaborone Tsholofelo Wekesa [2019] KEHC 11107 (KLR), Wamuyu Charity -vs- Kenya School of Law and Council of Legal Education (2022)** 2. The Appellant further reiterates that the authority to make regulations for personswishing to enrol in Legal Education programmes by the Interested party as provided for by the Legal Education Act, 2012 was confirmed in **Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.** 3. The Appellant avers that the Tribunal has the mandate to inquire into the admissionprocess that will eventually lead to the Bar examinations and relies on the High Court case in **Nabulime Miriam & Others v Council of Legal Education & 5 Others, (2016) eKLR by Justice Odunga.** 4. In the second issue on the applicable Law for Admission into the AdvocatesTraining Programme (ATP), the Appellant submits that his qualifications for admission to the Legal Education Programmes including the Advocates training Programme is the mandate of the Interested Party and further anchored on academic progression. He relies rely on **Section 8 (3) (a) and (c)** of the **Legal Education Act 2012,** where he claims that the issue of mandate and academic progression is well captured. 5. The Appellant relied on the provisions of the Legal Education Act specifically, **Section 8(3)** which the Interested Party actualised to make regulations to regulate the legal education at all cadres and that the **Legal Education (Accreditation and Quality Assurance) Regulations 2016** provides for admission criteria for every cadre of the legal profession inclusive of the Advocates Training Programme specifically the **Third Schedule Part III Clause 6 (1) (a) and (c)** which the Appellant is duly qualified. He relied on the cases of **Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR and Claire Njoki Kirera v Council for Legal Education & 2 Others, (2021) eKLR.** 6. The Appellant submits that the **Legal Education (Accreditation and Quality Assurance) Regulations 2016** which were made under the Legal Education Act, 2012 were declared unconstitutional on 18th January 2018 in Petition No. 20 of 2016, **Javan Kiche Otieno & Another v Council of Legal Education & Another** and further affirmed by the Court of Appeal on 21st December, 2021. 7. The Appellant further submits that academic progression is a valid means ofadmission to the bar and refers to the Court of Appeal case in Nairobi in Civil Appeal No. E472 OF 2021-**Kenya School of Law -vs -- Otene Richard Akomo & 41 Others by Justices Asike - Makhandia, J. Mohamed and Kantai JJ. and Sidney Ogutu Peters and 2others -vs- Kenya School of Law and another consolidated appeals No's EO31 and E032 of 2022.** 8. The Appellant denies the Respondent’s claims in their replying affidavit paragraph11 that he joined the LLB programme with "a previous unrelated degree." He claims that this statement is factually incorrect and misleading. He further relies in the High Court in the case **of Kenya School of Law v Anthony Waziri Kitsao; Council for Legal Education (Interested Party) (Civil Appeal E685 of 2024) [2025] KEHC 6110 (KLR)** that confirms that progression from a diploma in law to an LLB is a legitimate pathway. 9. The Appellant avers that **Section 16 of the Kenya School of Law Act 2012** which the Respondent used as the basis of the admission criteria to the Advocates Training Programme was declared unconstitutional in the case of **Otinga -V- Cabinet Secretary, Ministry of Education and 3 Others (Civil Appeal E625 of 2023), [2025] KECA 460 (KLR) (7 March 2025) (Judgment), by Justices P. O Kiage, L.** **Achode and W. Korir.** 1. He therefore submits that since **Section 16 of the Kenya School of Law Act 2012** was invalidated, it can no longer be the basis for denying admission to the Advocates Training Programme. The Appellant claims that matters of admission to the Advocates Training Programme (ATP) have reverted to the **Council of Legal Education (Kenya School of Law) Regulations, 2009 read together with Section 8 (3) (c) of the Legal Education Act, 2012.** 2. The Appellant purports that the **Council of Legal Education (Kenya School of Law) Regulations, 2009 under the 1st Schedule, Part II, Regulation 5(c)** provides a Bachelor of Laws, Degree (LLB) from a recognized University and attainment of a minimum grade of C+(Plus) in English and a minimum aggregate of C(Plain) in the Kenya Certificate of Secondary Examination as one of the requirements for admission to the Advocate's Training Programme (ATP) which the Appellant possess. 3. The Appellant further invites this Honourable Tribunal to consider the case of**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)** where the court while explaining the net effect of annulling the Contempt of Court Act, 2016 cited the case of **MacFoy v United Africa Company Appeal No.67 of 1960 (Privy Council).** 4. The Appellant submits that the Respondent created a legitimate expectation asobserved in **Nairobi Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.** A and further retaliates the case of **Union of India -vs- Hindustan Development Corporation.** 5. The Appellant claims that the Respondent violated the provisions of **Article 47 of the Constitution of Kenya and Fair Administrative Action Act, 2015** by failing to provide the Appellant with an opportunity to be heard. 6. The Appellant avers that the Respondent will be acting ultra - vires to undertakean exercise of inquiry on minimum University eligibility grades for applicants to the Advocates Training Programme who are from the recognized Universities in Kenya. He claims that The Kenya School of Law Act 2012, has not empowered the Respondent to undertake the exercise of inquiring how one gained admission to pursue a Bachelor of Laws degree at a Kenyan University. He further avers that **Sections 8, 18 and 19 of the Legal Education Act 2012** assign the said function to the Interested Party. The respondent is a Postgraduate Institution offering the Advocates Training Programme whose minimum entry qualifications are well spelt out by Parliament in the **second schedule to the Kenya School of Law Act 2012.** 7. The Appellant submits that **section 7 (2) (a) (i)** therein while empowering the Tribunal to review the decisions of the respondent. **Respondent’s submissions** 1. The Respondent contends that the Tribunal does not have the jurisdiction over amatter that is outside the scope of the Legal Education Act as expressly conferred by Section 31 of the Act. They further submit that Section 30 flows from section 29 which established LEAT, spells out its purpose and specifies the membership and crucially, section 31 grants the Tribunal jurisdiction on any matter relating to this Act and that these sections do not expressly confer upon the Tribunal power to adjudicate matters that are outside the scope. To buttress this position, the Respondent relied on the following authorities: **Bakeries Limited vs. Rent Restriction Tribunal and Kiriti Raval Nairobi HCMCC No. 246 of 1981; and Ex Parte Mayfair Bakeries Limited vs. Rent Restriction Tribunal and Kirit Raval, Nairobi HCMCC No. 246 of1981, Law Society of Kenya v Centre for Human Rights and Democracy & 13 others [2013]; Samuel Kamau Macharia Case; Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] eKLR.** 2. The Respondent contends that the process of and admission to the Respondent’sAdvocates Training Programme (ATP) is exclusively provided for under **section 16 of the Kenya School of Law Act No. 26 of 2012** and is further required by its establishing act; the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the School which is provided in section 17 of the Kenya School of Law Act. 3. The Respondent claims that the Appellant have by their own admission compliedwith sub **section 17(1)** but have moved this tribunal to effectively arrogate the duty and powers of the respondent provided in **17(2).** 4. The Respondent claims that the Appellant’s appeal essentially asks for theTribunal to grant him admission to the school and thereby arrogate the statutory duties of the school and relies in the case of **Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR.** They further submit that the question of the jurisdiction of this Tribunal in matters of admission criteria was most recently considered by the **Honourable Justice Andayi in HCCA/E002/2023 Kenya School of Law Vs Isaiah Munoru Mucheke.** 5. On whether there was a double standard in admission qualifications and whetherthe criteria were discriminatory or justifiable, the Respondent submitted that it is a rule of practice to adhere to the ordinary meaning of words used in legal provisions. The Respondent invited the Tribunal to avoid the consequences of a literal interpretation of the wording of a statute when such an interpretation would lead to a manifest absurdity or to a result that is obnoxious to principles of public policy, in this instance, unfair discrimination. In support of this position, the Respondent cited Court of Appeal at Nairobi Civil Appeal No. E472 of 2021. 6. Additionally, the Respondent contended that no legitimate expectation had beencreated in favour of the Appellant. 7. On whether the procedure to refuse admission was illegal or unreasonable, theRespondent submitted that its actions were in line with Article 47(1) of the Constitution, which guarantees the right to fair administrative action. 8. On whether academic progression is applicable to the Appellant, the Respondentsubmitted that the **Kenya School of Law Act, 2012,** as amended by **the Statute Law (Miscellaneous Amendments) Act No. 18 of 2014,** does not provide for academic progression as a basis for admission to the ATP. 9. The Respondent cited the recent **Court of Appeal, Civil Appeal E625 of 2023: Stephen Otinga Nikita v The Cabinet Secretary, Ministry of Education & 3 Others (Supra),** and submitted that regulatory bodies set minimum standards and are obliged to comply with minimum standards established, but are not barred from setting higher standards for themselves. It invited the Tribunal to find that it could not have been the intention of the court to effectively disband the school’s programmes causing its mandate to be unachievable. 10. In conclusion, the Respondent sought the dismissal of the appeal with costs by theAppellant. **Interested Party’s Submissions** 1. On the First issue, the Interested Party submits that they acknowledge the bindingauthority of the Court of Appeal's decision in **Otinga case (supra),** which declared Section 16 and the Second Schedule of the Kenya School of Law Act CAP 16C unconstitutional. They claim that the legal effect of this nullification is precise and specific: it removed the Kenya Certificate of Secondary Education (KCSE) mean grade and specific subject grades as a mandatory qualification, a stand-alone filter for admission to the Advocates Training Programme (ATP). They submit that this nullification, however, was not a blanket invalidation of all admission criteria, nor did it constitute a positive order to admit any particular candidate. Its effect was to delete one unconstitutional barrier, not to automatically construct a bridge over all remaining regulatory requirements for every applicant. The further claim that Appellant KCSE results can no longer be cited as a lawful basis for exclusion and corrects a historical injustice in the application process and that removal of an invalid disqualifier merely returns the Appellant to the starting line of the evaluation process; it does not award her the finish line and he must still, like every other candidate, affirmatively satisfy all other valid and extant requirements prescribed by the law. 2. They contend that the Court of Appeal's Judgement addressed an unfair pretertiary academic barrier; it did not and could not touch upon the legitimate tertiarylevel curricular standards necessary to ensure a candidate possesses the foundational knowledge to succeed in the intensive ATP. 3. Interested Party argues that the legal effect of the nullification is to redirect thefocus of the inquiry from an irrelevant secondary school grade to the relevant postsecondary school curriculum. Accordingly, the issue before the Tribunal reframed from whether the Appellant attained a Grade C+ in KCSE? to whether the Appellant undertake a relevant progression Diploma in Law. The Interested Party maintains that the Appellant’s case failed on this issue, as he had not placed before the Tribunal sufficient evidence to this new, proper question in the affirmative. 4. Interested Party submits that the Appellant’s argument erroneously assumed thatthe nullification of the KCSE clause invalidated the entirety of the Respondent’s decision-making process, thereby creating a legal vacuum that ought to be resolved in the Appellant’s favour. They contend that this assumption is fundamentally misconceived. Interested Party argued that, as a matter of administrative law, where a decision is founded on multiple grounds, and one ground is subsequently found to be unlawful, the decision maker or reviewing tribunal is entitled to sustain the decision on any other lawful and evidentially supported ground. In this regard, the Interested Party maintains that a valid and independent ground existed, namely the Appellant’s failure to demonstrate sufficient compliance with the requirements for attaining a Diploma. 5. According to the Interested Party the judgment protected the Appellant's right tobe considered without reference to her KCSE and it did not guarantee her admission, nor did it absolve her of the duty to prove she meets the professional and educational standards that lawfully remain. It was submitted that the legal effect of the Court of Appeal's nullification is purely eliminative. It removed a specific, unjust obstacle, and it did not create a new entitlement, nor did it alter the fundamental architecture of legal education prerequisites. 6. They claim that the Appellant's case is fundamentally unsupported by evidence.They contend that the Appellant was inviting the Tribunal to make a finding of statutory compliance in an evidential vacuum, which the Tribunal could not lawfully do. The Interested Party maintains that the only logical, lawful, and just conclusion is that the Appellant has failed to discharge the burden of proving her Diploma meets the core curriculum requirements. On that basis, and independently of the nullified KCSE issue, the Interested Party urged that the Appeal is without merit, and should be dismissed with costs. 7. In the second issue on whether the Academic Progression is relevant to the law,the Tribunal was invited to be guided by the binding precedent of the ***Court of Appeal in Kenya School of Law v Akomo & 41 others (Civil Appeal E472 of 2021) [2022] KECA 1132 (KLR) (21 October 2022).*** In that decision, the Court of Appeal rendered an authoritative interpretation of ***Section 8(3)(c)*** of the ***Legal Education Act,*** which is central to the Appellant's case. The Court of Appeal held *that “The wording in Part C above is clear as it is, that prior learning and experience in law is what ought to be considered in formulating a system that would see the progression in legal education.”* That this case establishes the foundational principle that for any prior qualification to constitute relevant "progression" toward legal training, it must be intrinsically and substantively legal in nature. 8. The Court of Appeal further clarified this principle with definitive examples,stating: "*We do not think a degree in aeronautics or a 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 a diploma in law or related course in law."* The Interested Party submits that this pronouncement is not obiter; it is the core of the Court's reasoning, and it establishes a bright-line rule: a generic "diploma" is insufficient. To be recognized for progression, the diploma must be a "diploma in law or related course in law," meaning its curriculum must be demonstrably and predominantly legal. 9. The Interested Party submits that while the Appellant's subsequent academic andprofessional achievements, including an MBA, a BBA, a diploma in insurance, and various certifications, are undoubtedly commendable, they do not constitute the "academic progression" contemplated under the Legal Education Act CAP16B for the purposes of admission to the Advocates Training Programme. They aver that the statutory framework and binding jurisprudence, as established in **Kenya School of Law v Akomo**, are unequivocal: progression or legal experience. 10. In light of the foregoing, and guided by the binding authority in **Kenya School of Law v Akomo,** the Interested Party has urged the Tribunal to find that the Appellant had not demonstrated that her Diploma constituted the requisite "prior learning... in law." To rule otherwise would be to disregard a clear precedent of the Court of Appeal and to accept an unverified assertion in place of the substantive proof of legal learning that the law demands. 11. On the third issue, the Interested Party contended that the appeal against it wasfounded on a fundamental and legally untenable confusion between the distinct statutory mandates and legal personalities of the Interested Party and the Respondent. It was averred that the Appellant had improperly sought to attribute liability to the Interested Party for the alleged denial of admission to the Kenya School of Law, which, in the Interested Party’s view, constituted a classic case of misjoinder, arising from a fundamental misapprehension of Kenya's legal education architecture. They asserted that this error was fatal to their case. 12. The Interested Party submits that the Kenyan legal framework established theInterested Party and Respondent as separate and distinct bodies corporate, each with perpetual succession, a common seal, and independent legal personality. It was contended that this separation is statutorily grounded, with the Interested Party established under Section 4 of the Legal Education Act, Cap16B, and the Respondent established under section 3 of the of the Kenya School of Law Act, CAP 16C. 13. It was further submitted that the statutory mandates of these two entities arediametrically different and deliberately separated by Parliament. The Interested Party’s core function, under *Section 8(1) of the Legal Education Act, CAP 16B*, is to regulate legal education and training in Kenya, a regulatory and standard setting function. In contrast, the Respondent’s function, under ***Section 4 of the KSL Act,*** is the provision of professional legal training, an operational, service-delivery mandate. The interested Party asserts that this distinction was central to the reasoning of the Court of Appeal in Otinga, wherein the Court invalidated Section 16 of the Kenya School of Law Act on the basis that it encroached upon the Interested Party’s regulatory domain. It was contended that, at paragraph 43, the court held that the Legal Education Act is the framework of legal education and training in Kenya, including training in ATP, and that its provisions apply to all legal training in Kenya. The Interested Party maintains that this ruling reinforced the Interested Party’s supremacy in setting the framework, but it did not, and could not, merge the two entities or make the Interested Party the operator of the Respondent. 14. Interested Party further avers that the impugned act, the admission of theAppellant to the Advocates Training Programme, was an operational decision squarely within the purview of the Respondent’s mandate to "provide training." It was contended that decisions on when to advertise, how to admit, and who to admit is a day-to-day administrative function of the training provider, not the regulator. The Interested Party’s asserts that its role, as per Otinga, is to prescribe the standards for admission, and that it would be illogical to hold the regulator liable for an independent contractor's operational decisions, especially when their relationship is statutory, not hierarchical. 15. It is submitted that a challenge to the act of admission properly lies against theRespondent as the actor, whereas a challenge to the substance of the admission rules lies against the Interested Party as the rule maker. 16. Interested Party further contend that the doctrine of vicarious liability does notapply, as no employer-employee or analogous relationship exists between the two entities. It was averred that the Interested Party does not employ the Director of the Respondent, KSL; it does not dictate his daily operations, and that the two bodies are separate legal persons created by separate Acts of Parliament, accountable to different governance structures. The Interested Party maintains that its function is one of oversight rather than control. 17. Interested Party also submit that its ongoing process to develop new regulations,as outlined in its affidavit, constitutes the lawful exercise of its proper, post-Otinga mandate. It was contended that the Court of Appeal in Otinga directed the Interested Party to formulate the regulatory framework, and that it would be unjust to enjoin it for the alleged actions of another statutory body during the transitional period preceding the gazettement of new regulations. 18. The Interested Party asserts that its role, as affirmed by the Court of Appeal, is toformulate the system while the Respondent’s role is to function within it. It was contended that the Petition alleges a failure in the Respondent’s function. The Interested Party maintains that the constitutional and statutory scheme provides clear remedies against the Respondent for that functional failure, and that no remedy lies against the Interested Party simply because the Appellant is dissatisfied with the pace at which a new system is being formulated, especially when that process is ongoing and lawful. 19. On the fourth and final issue submitted by the Interested Party, on the issue ofcosts, they contend that the award of costs as anchored in section 27 of the Civil Procedure Act is discretional. It was averred that the statute vests the court with full power to determine by whom and to what extent costs are to be paid, and out of what property such costs shall be satisfied. 20. The Interested Party further rely on the decision **in R V Rosemary Wairimu Munene, Exparte Applicant V Ihururu Dairy Farmers Co-operative Society JR No. 6 of 2014,** wherein the court recognized that the objective of awarding costs is not to penalise the unsuccessful party nor to compensate the successful party for the inconvenience of litigation. 21. The Interested Party also cite the **English Court of Appeal decision In Scherer V Counting Instruments Ltd [1986] IWLR 615,** which set out the principles for the award of costs. It was contended that the Court held, inter alia, that the general rule is that costs follow the event, that the judge retains an unfettered discretion to make such order as to costs as justice may require; that a successful party has reasonable expectation, but no absolute right, to costs; and that such discretion must be exercised judicially, in accordance with established principles and the facts of the case. It was further contended that the discretion must be grounded on relevant considerations connected with the litigation and that where a party wholly fails to establish the necessary ingredients for the relief sought, it would be difficult to justify an order for costs in their favour. 22. The Interested Party maintains that, in exercising its discretion, the Tribunalshould be guided by the indemnity principle and the general rule that costs follow the event, and urged the Tribunal to exercise its discretion appropriately in the circumstances of the case. **C. Analysis and Determination** 1. The Tribunal has considered the issues raised by both the Parties and hasnarrowed them down to the following issues for determination: - * 1. Whether the Honourable Tribunal is clothed with jurisdiction to determinethe present appeal? 2. Whether the Appellant meets the requisite qualifications for admission tothe Advocates Training Programme? 3. Whether the Appellant's right to fair administration was violated by theRespondents * 1. **Whether the Tribunal has the jurisdiction to hear and determine thisAppeal?** 1. In the Respondent’s submissions, they extensively challenge the jurisdiction of thisTribunal to hear and determine this Appeal. 2. Referring to the well-established principles articulated in **Owners of the Motor Vessel "Lillian S" v Caltex (Kenya) Ltd [1989] eKLR,** the Tribunal concedes that Jurisdiction is the foundation of a court’s authority and without it, a court cannot lawfully proceed with a matter. Accordingly, the Tribunal must first determine its jurisdiction before adjudicating on other substantive issues in this appeal. 3. The Tribunal relies on the case of, **Kenya School of Law v Gachoki & 2 others;** **Council of Legal Education (Interested Party) (Civil Appeal E062 of 2022) [2024] KEHC 528 (KLR) (Civ) (31 January 2024) (Judgment),** where Justice Majanja held**:** ***“On my part, I do not see any reason to depart from the settled position on jurisdiction. Section 31(1) of Legal Education Act grants the Tribunal jurisdiction to inquire into, “… any matter relating to this Act,’’ which is an allencompassing clause that 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 the KSL is guided by and applies the provisions of the Legal Education Act.”*** 1. The Tribunal finds that this appeal involves a hybrid dispute arising under boththe Kenya School of Law Act, 2012 and the Legal Education Act, 2012, thereby falling within its jurisdiction as conferred by Section 31(1) of the Legal Education Act**. In Republic *v Kenya School of Law & 2 Others Ex Parte Kgaborone Tsholofelo Wekesa***, Justice Mativo held that: ***“The preamble to the Legal Education Act provides that it is an Act of Parliament to provide for the establishment of the Council of Legal Education; the establishment of the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes. Section 31 of the act provides for the jurisdiction of the Tribunal. A reading of the section leaves me with no doubt that the Tribunal's jurisdiction is to determine an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to the Act. The ex parte applicant's dispute distilled above in my view squarely falls within the Tribunal's jurisdiction.*** 1. As the Tribunal reiterates again that it has put to rest this critical matter onjurisdiction, it makes reference to its past similar decided cases; **Samuel Mbugua Ndung’u v Kenya School of Law & Council of Legal Education (Appeal No. E008 of 2024),** where it has held, ‘We therefore find that the tribunal is well vested with jurisdiction to hear and determine the present Appeal’. 2. As a result of the foregoing, and in order to save on precious judicial time, thisTribunal does not find it necessary to further deliberate on this matter. It takes the firm stand that it has the necessary jurisdiction to hear and determine this Appeal. * 1. **Whether the Appellant meets the requisite qualifications foradmission to the Advocates Training Programme?** 1. The Tribunal has considered the divergent positions advanced by the partiesregarding the eligibility criteria and the applicable law governing admission to the ATP. The Appellant contends that the **Kenya School of Law Act (CAP. 16C)2012** does not exclusively govern admission to ATP. He submits that the eligibility criteria to the ATP is set by the Council of Legal Education Act. To the appellant, by virtue of **Section 8(1)(a) of the Legal Education Act, 2012** the Interested Party is mandated to regulate legal education and training in Kenya. 2. The Appellant asserts that the applicable law for admission requirements is setout under the **Council of Legal Education (Kenya School of Law) Regulations, 2009 and Section 8(3)(c) of the Legal Education Act, 2012.** The Appellant argues that the Respondent ought to have been guided by these provisions when considering his application for admission to the ATP. 3. The Tribunal has also considered the Respondent’s and Interested Party’s positionupon the Appellant making an application to the ATP, he was found not eligible as per the criteria provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act (Cap 16C). 4. The question which presents itself to the Tribunal is what was the existing legalframework at the time the Appellant was admitted for his LLB Programme? 5. The Tribunal has also considered the Appellant's submissions in light of therelevant legal framework and the recent decision of the Court of Appeal in **Stephen Nikita Otinga v Cabinet Secretary & 3 Others (supra).** The Appellant argues that the basis for denying admission to the Advocates Training Programme (ATP) was Section 16 as read with paragraph 1 of the Second Schedule of the Kenya School of Law Act. Given that these provisions have been declared unconstitutional by the Court of Appeal, the Appellant submits that the basis for denying admission has been rendered unlawful. 6. This tribunal has in its recent decisions in the case of **Caroline Kathure Kiruki v. Kenya School of Law and Council of Legal Education (LEEA No. E003 of 2025)** and **Samuel Mbugua Ndung’u v. The Kenya School of Law and Council of Legal Education (LEEA No. E008 of 2024),** considered the cumulative effect of the Court of Appeal’s pronouncement in *Otinga case*, on admissions to ATP. In both decisions, the Tribunal affirmed the binding authority of the Court of Appeal’s judgment in *Otinga* and acknowledged the legal pathway it has created for individuals who, but for the impugned provisions of Section 16 of the Kenya School of Law Act, would have been deemed inadmissible to the ATP. 7. Considering the facts in the instant case are strikingly similar to those in the casesof ***Kiruki*** *and* ***Ndung'u (Supra),*** the Tribunal finds merit in the Appellant’s argument that the Respondent's reliance on the now-invalidated Section 16 of the Kenya School of Law Act as the sole basis for denying admission is no longer tenable. We, therefore, find that to the extent the Respondent relied on provisions that have since been declared unconstitutional, the resultant administrative decision is rendered unlawful. 8. It is the Tribunal’s considered view that the Appellant’s application now properlyfalls within the framework of Section 8(3)(c) of the Legal Education Act, 2012, and the Council of Legal Education (Kenya School of Law) Regulations, 2009. Accordingly, a reassessment under the current legal regime is warranted. 9. ***The Council of Legal Education (Kenya School of Law) Regulations,2009*** which is the applicable law to the Appellant herein stipulates the requirements for admission to the Advocates Training Programme. Regulation 4 states that a person shall not qualify for admission to a course of study at the school, unless that person has met the admission requirements, set out in the First Schedule to these regulations for that course. 10. The **First schedule** to the regulations sets out the minimum requirements for one to be admitted to the Advocates Training Programme. It states that: - *5. A person shall not be eligible for admission for the Post Graduate Diploma (Advocate* *Training Programme) unless that person has-* 1. *Passed the relevant examination of any recognized university in Kenya, she holds orhas become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university;* 2. *passed the relevant examination of a university, university college or otherinstitutions prescribed by the Council, she 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, had prior to enrolling at that university, university college or other institution-* 3. *Attained a minimum entry requirement for admission to a university in Kenya; and* 4. *A minimum grade B (plain) in English Language and a mean grade of C (plus) in the* *Kenya Certificate of Secondary Examination or its equivalent;* 1. ***a Bachelor or Laws Degree from a recognized university and attained aminimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in Kenya Certificate of Secondary Examination, holds a higher qualification e.g. “A” levels, “IB”, relevant “Diploma”, other “undergraduate degree” or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws programme; or*** 2. *a Bachelor of Laws (LLB) from recognized university and attained a minimum gradeof C- (C minus) in English and a minimum of an aggregate grade of C- (C Minus) in the Kenya Certificate of Secondary Examination sits and passes the pre- Bar Examination set by the Council of Legal Education as a precondition for admission.* 3. The Appellant having obtained a mean grade of **C(plain) and a grade B(minus) in English and C-(minus) in Kiswahili**. It is clear from the provisions **5(c)** above cited above that he had qualified to undertake the programme even at the undergraduate level or college level and for the ATP. **iii. Whether the Appellant's right to fair administration was violated by the Respondents** 1. The Appellant submits that the Respondent infringed his constitutional rightsunder Article 47 of the Constitution of Kenya, 2010, by rejecting his application for admission to the Advocates Training Programme (ATP). The Respondent, in opposition, contends that it was merely executing its statutory mandate by scrutinizing the Appellant’s academic qualifications to determine his eligibility for the ATP. The Respondent argues that its decision was made transparently and that it provided sufficient reasons and explanations for the rejection. 2. The Court of Appeal, in **Judicial Service Commission v Mbalu Mutava & Another [2014] eKLR,** stated that: - ***“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”*** 1. The Appellant contends that the Respondent’s rejection of her application wasunfair and violated her right to education, despite her claim that she met the requirements under the Council of Legal Education (Kenya School of Law) Regulations, 2009. The tribunal has reviewed these allegations, as well as the surrounding circumstances, and finds that an applicant cannot claim constitutional infringement merely because their application did not succeed. The Respondent was performing its legally mandated duty in scrutinizing the Appellant’s. 2. The Tribunal agrees that procedural impropriety is when there is failure to actfairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision. For this reason, denying the Appellant his right to legitimate expectation would be unfair and against principles of natural justice. 3. In light of the said decisions, this Tribunal finds that under the **Legal Education Act 2012,** creates a promise that **Section 8 (3) (c)** of the Legal Education Act, 2012 provides for academic progression by requiring the Council of Legal Education 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. 4. The Respondent claims that the procedure to deny the Appellant admission wasjust and fair. The Appellant claims that the Respondent’s decision declining the appellant’s application for admission to the ATP Program was unconstitutional, unfair, unreasonable, discriminative and was not supported by the Law. He claims that the Respondent acted in acting ultra - vires to undertake an exercise of inquiry on minimum University eligibility grades for applicants to the Advocates Training Programme who are from the recognized Universities in Kenya. 5. The Tribunal notes that the Respondents were executing their statutory mandateand this however was after the **Court of Appeal in Otinga Case** where Section 16 read together with Second Schedule of the Kenya School of Law Act 2012 was declared void in March 2025. The Respondents by relying on the repealed section to determine the admission criteria, then this is unfair. 6. The Tribunal agrees that procedural impropriety is when there is failure to actfairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision. For this reason, denying the Appellant his right to admission would be unfair and against principles of natural justice. **D. Disposition.** 7. That being the case, the appeal succeeds to the extent that **Section 16 and the Second Schedule of the KSL Act** that the Respondent relied upon to reject the Appellant’s application has since been rendered void, and unconstitutional by the Court of Appeal in Otinga case (**Supra**). 8. It Is hereby ordered: - 1. That the appeal by the Appellant, **HUSSEIN ADEEL RASHID** against the **Respondent's** decision contained in its letters dated **16th December 2025 and 13th January 2026** denying the Appellant admission into the ATP Programme is hereby quashed. 2. That pursuant to Section 35 of the Legal Education Act, 2012 a declarationis issued that the Appellant is eligible for admission to the Advocates Training Programme by dint of Regulation 5(c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009, and the Respondent is ordered to admit the Appellant, **HUSSEIN ADEEL RASHID** to the Advocates Training Programme forthwith. 3. That each party to bear own costs of the appeal. 4. That a party aggrieved is at liberty to appeal to the High Court undersection 38 (1) of the Legal Education Act, 2012 on a point of law. **HON. JULIANA NJIRIRI - CHAIR** # HON. JOSHUA NGULU- MEMBER **HON. FELIX OKETCH - MEMBER** **HON. MOSES MUNOKO – MEMBER** **HON. GODANA YATANI – MEMBER** **DATED AT NAIROBI THIS 17TH DAY OF APRIL, 2026** Page **1** of **17** 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: 2026-04-21 15:44:03 |