[2017] KEHC 9645 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO 45 OF 2017

IN THYE MATTER OF AN APPLICATION TO COMMENCE JUDICIAL PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF THE CONSTITUTION ARTICLE 47 ON FAIR ADMINISTRATIVE ACTIONS AND IN THE MATTER OF THE LEGAL EDUCATION (ACCREDITATION AND QUALITY ASSURANCE) REGULATIONS LAWS, 2016.

AND

IN THE MATTER OF LAW REFORM ACT CAP 26 READ WITH ORDER 53 CIVIL PROCEDURE RULES

AND

IN THE MATTER OF THE DECISION OF THE CATHOLIC UNIVERSITY OF EASTERN AFRICA TO DISCONTINUE THE LEGAL STUDIES OF THE APPLICANTS IN PURSUIT OF A LAW DEGREE

EDMUND KIIRU WAMBUI & 41 OTHERS...............................APPLICANT

VERSUS

CATHOLIC UNIVERSITYOF EASTERN AFRICA…...1ST RESPONDENT

COUNCIL OF LEGAL EDUCATION.............................2ND RESPONDENT

EX PARTE: EDMUND KIIRU WAMBUI & 41 OTHERS

JUDGEMENT

Introduction

1. By a Notice of Motion dated 10th February, 2017 the Applicant herein, Edmund Kiiru Wambui & 41 Others, seek the following orders:

a. Certiorari to remove into this honourable court for purposes of being quashed and to quash the decision of the institution respondent contained in the letter dated 23/12/2016 discontinuing the student’s applicants from continuing with their Bachelor of Laws (LL.B) programs.

b. Certiorari to remove into this honourable court for purposes of being quashed and to quash the decision of the 2nd respondent Council of Legal Education contained in the letter dated 20/12/2017 communicated via letter dated 23/12/2016 regarding the status of compliance to the conditions of license of the faculty of law.

c. Prohibition prohibiting the Institution respondent from implementing or pursuing its decision by subjecting the students applicants to pursue extra educational qualifications in order to attain the present set standards by the Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016.

d. Mandamus directing the Institution respondent to re-admit and or Register the discontinued students applicants and to allow them to pursue their law degrees.

e. The costs of this application be awarded to the applicant.

Applicants’ Case

2. According to the applicants who are students at the Catholic University of Eastern Africa (hereinafter referred to as “the University”), the 1st Respondent herein, upon resuming semester sessions and payment of school fees on the 9th of January 2017 for studies in accordance to the 100% fee policy of the University, ex parte Applicants assumed their roles as students in the institution in pursuit of their Bachelors of Law degree. However seven days later, the University on the 16th January 2017 issued letters dated 23rd December 2016 of discontinuance of Legal studies to some of the students in the institution pursuant to Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016 (hereinafter referred to as “the Regulations”) which Regulations, according to the applicant only came into effect in 2016 way after most of the ex parte Applicants had applied, got admitted and were in the program with some at the verge of completion.

3. It was averred by the applicants that regardless of the new set rules for qualifications into the legal studies programme, most of the students discontinued have attained the basic requirements that were required of them as per their admission letters to the institution and as such are entitled and ought to be allowed to pursue the Bachelors of Law degrees. It was contended that on admission the ex parte were duly informed of the requirements they ought to possess and have before being admitted into legal studies. The students/ex parte Applicants who are in different categories adhered to these requirements diligently and for those who didn’t live up to the basic requirements ironed out the mishaps and eventually got into the system.

4. It was contended that the 1st and 2ndRespondents have acted in excess of or way beyond their powers or jurisdiction by issuing orders of discontinuance of the students ongoing legal studies contrary to their earlier regulations of requirements for entry into the course. It was on this basis that the applicants averred that it is glaring that the 1stRespondent’s conduct and decision was founded on bad faith. Further, no formal communication or warning leading to this major change were issued to the students prior to the discontinuance letter served on 16th of January 2017 dated the 23rd of December 2016.

5. According to the Applicants, the decision by the 1st and 2nd Respondents was unreasonable, made in bad faith and tainted with uncertainty as some of the students who had been discontinued were awaiting graduation that was to take place in May while others were in their fourth year at the verge of completion and were defending and handing in their project work.

6. It was the applicants’ case that in issuing these orders the University proceeded without consultations and or engagement with the students and therefore failing to adhere to the basic rules of natural justice. They contended that this discontinuance was also gravely affecting on going students by the fact that they were not attending classes in contrast to the obligations bestowed on an ongoing student in the University. The applicants relied on Article 1. 9 of the Catholic University of Eastern Africa Students Handbook on lecture attendance which provides that:

1. 9.1 Lecture attendance is mandatory. A student who misses 1/6 (one sixth) of lectures in a unit in a semester/trimester forfeits the right to sit for examination in that unit. He/she must repeat the unit when it is next offered and pay the tuition fee again.

7. According to the applicants, the discontinued students were being subjected to the restraints highlighted in the Article by the University contrary and against their wish hence would be forced to repeat the unit when it was next offered and pay the tuition fee again upon lapse of 1/6 (one sixth) of lectures which is precisely after three weeks as classes had already resumed with the discontinued students falling back two weeks of course work already.

8. It was the applicants’ case that the 2nd Respondent acted ultra vires in that it has no powers to accredit universities or academic programmes or degree courses since the same powers are now vested in the Commission for University Education as set out under section 5A(1), (2) and (3) of the Universities (Amendment) Act 2016. Further the 1st Respondent’s decision was irrational, irregular and illegal.

9. It was disclosed that foreign students are also majorly affected by this decision as they form part of the discontinued lot yet most of them are in the country with the Students visas and passes and as such only recognized by the government as students. Accordingly, in the event a foreign student on student visa or pass is no longer in school or in the country for purposes of studies the government is at liberty to deport such persons as they are in the country unlawfully and therefore aliens. It was therefore contended that foreign students have gravely been disadvantaged with this decision as the letters of discontinuance were served on them only after their arrival in the country having paid the school fees as required by the 100% school fee policy and incurred a further non- refundable accommodation expense for the whole three month semester.

10. It was the applicants’ case that this matter is properly before this Court for hearing and determination.

11. It was submitted on behalf of the applicants that the 1st Respondent acting in breach of laws that regulate it and the students, issued discontinuance of the legal studies letters to the Applicants on the 16th of January 2017 as a means to comply with the Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016. This action, it was contended was illegal because with reference to the set out procedure in the 1st Respondent Regulations referred to as Students Handbook as to how the Applicants were supposed to be discontinued none of it was followed. It was disclosed that Article 1. 6 of the Student’s handbook on Discontinuation from the Universitystates:

To discontinue studies at the University, a student must write to the University Registrar through the Head of Department. This letter should be endorsed by the Dean of Faculty.

After approval, the student will present the note to the Registrar who will in turn issue a clearance form for discontinuation of studies. A duly filled clearance form and student ID card should be submitted to the Registrar’s Office. Upon receipt, the Registrar issues to the student a clearance letter.

Students discontinued from programmes of study for failing examinations or expulsion follow the same clearance procedure as stated above.

12. It was submitted that the said procedure was not adhered to but instead, the Students were simply ambushed with letters of discontinuation from the University. Secondly, the 2nd Respondent acted beyond its powers (ultra vires) by issuing instructions to Institutions in accordance to the Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016 while fully aware that those regulations were no longer in force as the University (Amendment) Act 2016 overruled it. According to the applicants, contrary to these explicit requirements of the law and the fact that the University (Amendment) Act 2016 is the prevailing statute that deals with accreditation of Universities or academic programs or degree courses, the 1st and 2nd Respondent being fully mindful of this, deliberately acted beyond their powers and jurisdiction in invoking the use of the Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016, a law that had been overruled hence the Respondents jurisdictional error renders its decision ultra vires hence illegal.

13. It was further submitted that it is out rightly illegal for the Respondent to make this decision while relying on a law that has been implemented retrospectively. It is a well-founded principle in law and a recommendation often made that the Court ought to frown upon such practices and reliance was placed on the decision of Lenaola, J (as then was) in The CFC Stanbic Bank Ltd vs. Kenya Revenue Authority & Another [2014] eKLR where the case of Philips vs. Eyre (1870) LR QB 1 Exchequer Chamber was cited for the proposition that:

“Retrospective laws are no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law. Accordingly, the Court will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.”

14. It was submitted that a look at the provisions as per the Legal Education (Accreditation and Quality Assurance) Regulations Laws, 2016 on the qualifications of a person wishing to pursue certificate, Diploma or Degree Programmes, there is no provision giving authorization that these provisions could be imposed on persons who were in school way before the Law was enacted. In this respect the applicants relied on section 23(3) of the Statutory Instruments Act No. 23 of 2013 that provides that:

A statutory instrument may be made to operate retrospectively to any date not being earlier than the commencement of the enactment under which it is made but no person shall be liable to a penalty in respect of any contravention of a provision in a statutory instrument required to be published in theGazettewhere the alleged contravention occurred before the publication unless the court is satisfied that before the alleged contravention the purport of the statutory instrument had been brought to that person’s notice.

15. Based on the decisions in Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation [1948] 1 KB 223, HL and Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 as well as the opinion of De Smith, Woolf and Jowell: Judicial Review6th Edition at paragraph 11-036 on page 559, it was submitted that the decision arrived at by the 1st and 2nd Respondents was utterly unreasonable for reasons that first, these students dutifully reported to school with zero information or heads up as to the looming decision of discontinuance of studies about to be served on them. The fact that they had been deliberately denied the chance to voice their opinion or concern in this life changing matter is already unreasonable. Secondly, the Students in compliance with the 100% fee policy of the Institution Respondent paid the semester’s school fees and still no communication of any form was issued to them. The Respondent went forth and unreasonably accepted school fee payments from these students profoundly aware of the actions it was about to take. To the applicants, it would have only been fair or reasonable for the 1st Respondent Institution to decline the receipts of the school fee payment and duly inform the students of its decision earlier, so as to prevent a situation where the students have to go through tedious processes to have a refund of the school fees bearing in mind that it shall be deducted as required under Article 2. 1.2 of the student’s handbook on Tuition refund on withdrawal from courses. Thirdly, it is also unreasonable that the Respondent made this decision that went forth to affect students who were way into their studies and at the verge of completion. Some of these students were in their fourth year, some were in the process of handing in their final dissertations and some were about to graduate in the Upcoming May graduation ceremony. In this respect the applicabts relied on the House of Lords decision in CCSU VS. The Minister for Civil Service 1985 1 AC 375.

16. It was further submitted that the decision was tainted with procedural impropriety in that the Respondent did not follow the laid down procedure in the student handbook for the discontinuance of students and relied on Republic vs. The Commissioner of Lands Ex ParteLake Flowers Limited Nairobi HCMISC. Application No. 1235 of 1998.

17. Based on De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell page 609, Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240 and R (Bibi) vs. Newham London Borough Council [2001] EWCA Civ. 607 [2002] 1 WLR 237 it was submitted that the Applicants herein put their trust in the 1st Respondent to deliver as per their academic contract; something the 1st Respondent failed to deliver hence the illegal suspension and discontinuance of the students contravene the legitimate expectation that they would not be discontinued save when they clear their course work and graduate. The applicants will suffer prejudice if the decisions are not granted.

18. The Applicant therefore submitted that it was an abuse of power and a breach of its legitimate expectation.

19. The Court was therefore urged to grant the orders sought with costs.

2nd Respondent’s Case

20. In response to the application the 2nd Respondent filed the following grounds of objection:

1). The opinion and recommendation borne in the Second Respondent’s letter dated 20th December 2016 is not actionable, for the reasons that:

a. The opinion of the Second Respondent carried in its letter of 20th December 2016 was solicited, it was the Regulator’s opinion on the issues raised;

b. The opinion was an exhortation to the First Respondent to adhere to provisions of the law on admission of students to the LLB programme;

c. The opinion was a recommendation to the First Respondent to take corrective action to ensure compliance with the law;

d. It did not violate any rights; the Second Respondent did not discontinue any student whereupon the demand to adhere to natural justice would have been exacted on the Council. The method of adherence with the law was left to the First Respondent, and the Second Respondent being an independent body is not liable and or responsible for the conduct of the First Respondent.

2. The opinion and recommendation borne in the Second Respondent’s letter dated 20th December 2016 is not unreasonable, it is unfair, not in bad faith:

The Second Respondent is the Regulator of legal education in Kenya, under provisions of the Legal Education Act, 2012 and the various Regulations under or imported to operate under the Act.

By dint of section 8 of the Legal Education Act, the Second Respondent has jurisdiction to conduct inspection of legal education providers in Kenya and recommend for compliance.

On occasions of such inspections, the Second Respondent noted deficiencies in admissions and recommended to the First Respondent. The First Respondent had made admissions to the LLB programme in gross violation of the law, the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations 2009. The decision of the Second Respondent had 3 parts:

A. Qualified students;

Under qualified students the Second Respondent sought certificates confirming admissibility of the named 9 students.

B. Foreign Students/High School jurisdiction;

The First Respondent has admitted students with foreign degrees without first having their qualifications equated by the Kenya National Examinations Council (KNEC), in order to satisfy the pre-admission requirement of the law, the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations 2009.

The First Respondent indicated that it was in the process of obtaining the certifications from KNEC.

The Second Respondent as Regulator, in face of this infraction advised to stand down these cohorts of students until such a time as the certifications from KNEC was received and qualifications confirmed.

C. Students to normalize their qualifications

The Second Respondent as regulator, faced with a situation of irregularly admitted students, called upon the First Respondent to take corrective action.

The recommendations and opinion of the Second Respondent borne in the letter dated 20th December 2016 are not unreasonable, not in bad faith and certainly not unfair.

3. The opinion and recommendations of the Second Respondent borne in letter dated 20th December 2016 are not ultra vires:

The Second Respondent never applied the Legal Education (Accreditation and Quality Assurance) Regulations 2016, but the Legal Education Act, 2012, the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations 2009, read with the Kenya School of Law Act, 2012 section 16 and Schedule 2.

At the time that the Ex parte Applicants enrolled for the LLB degree, the law in force was the Legal Education Act, 2012, and the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations 2009, which provided for minimum mandatory admission criteria for admission to the LLB programme at Regulation 18 read with in the following terms:

‘A student shall not be eligible for admission to a legal education training programme under these Regulations, unless that student has attained the required minimum qualifications set out in the Second Schedule.’

The Second Schedule provided as follows:

‘MINIMUM QUALIFICATIONS FOR ENTRY INTO LEGAL EDUCATION TRAINING PROGRAMME

1. …….

2. A student shall not be eligible for admission into an Undergraduate Degree Programme unless that student has –

(a) a degree from a recognized university;

(b) at least two principal passes at an advanced level or an equivalent qualification;

(c) a mean grade of C+ (C plus) in Kenya Certificate of Secondary Education (KCSE); or

(d) a diploma of an institution recognized by the Commission for Higher Education and the applicant shall have obtained at least credit pass’

These qualifications are read with section 16 and Second Schedule to the Kenya School of Law Act, 2012, because LLB degrees obtained from Kenya, earn direct admittance to the Advocates Training Programme.

4. The Ex parte Applicants needed to possess these qualifications before admission for the LLB programme;

5. The Ex parte Applicants did not possess the minimum mandatory qualifications before admission for the LLB Programme, and the admission of the Ex parte Applicants for the LLB Programme in contravention of the law did not and cannot confer any rights to the Ex parte Applicants. Such Admission did not excuse the Ex parte Applicants from compliance. The Ex parte Applicants are still required to comply with the law;

6. The Council of Legal Education is a creature of the law, established for purposes of regulation of legal education for purposes of attaining highest legal education standards in Kenya, it is thus enjoined by law to enforce the law equally without favour or inconsistency;

7. The prayer B in the Notice of Motion is un-grantable for the reasons that:

a. There is no ground advanced to quash the recommendation and opinion of the Second Respondent to enforce the law;

b. It is the Second Respondent’s professional view that the Ex parte Applicants must be subjected to the threshold of law before they can be properly admitted to the LLB programme, a decision arrived at on merits, fairly and in accordance with the law. This decision is protected by law: Court of Appeal in Eunice Cecilia MwikaliMaema v Council of Legal Education & 2 others [2013] eKLR:

‘We are also of the view that the learned judge correctly applied the principle in the decision in Susan Mungai vs. The Council for Legal Education Petition No. 152/2011 to the effect that the Council has the power to set standards to ensure that the highest professional standards are maintained in the profession and it is not for the Court to be concerned with the efficaciousness of the decision made pursuant to the Regulations.’

It is the public interest that the Honourable Court respects the law, and enforces it to ensure consistency in implementation of legal education policy in Kenya, instead of holding otherwise and therefore opening a precedent of violation of the law.

Determinations

21. I have considered the issues raised by the parties in this Application.

22. Before delving into the same, the applicants’ application was supported by a verifying affidavit sworn by Edmund Kiiru Wambui. However the only documents mentioned therein were copies of admission letters which were marked as EKW1 . The documents annexed however run into over 500 pages. These documents are neither marked nor are they referred to in the verifying affidavit. With due respect to counsel this is a very casual way of presenting a case before the Court. Parties and/or their counsel ought not to simply throw documents at the Court without explaining what they are and why the same are being exhibited. It is not the duty of the Court to rummage through the rubble of documents in order to determine their relevancy.

23. Having said that it is clear that what provoked these proceedings were letters written by the 1st Respondent which has for some reasons deemed it fit not to respond to these proceedings. By the said letters, the University informed the applicants that based on communication received from the Council for Legal Education, regarding status of compliance to the conditions of licence of the Faculty of Law, it was necessary that students who did not meet the entry requirement of the law programme as prescribed by the Legal Education Act and Regulations be discontinued with immediate effect. Further, all students with foreign qualifications who had not acquired the equation of such qualification from the Kenya National Examination Council were to be discontinued from the Law programme pending the acquisition of the said equation and the finding that they held the minimum entry requirement to the said course.

24. The students were therefore asked to discontinue their studies absolutely or to follow up on the equation of their qualification before resuming for re-registration depending on the category where they belonged. However the so called communication from the 2nd Respondent is not part of the record of these proceedings since as I have stated hereinabove the University did not respond to these proceedings.

25. It is noteworthy that the said letters did not mention whether the affected students had been found not to have met the minimum requirements or that their qualifications had not been equated. It was not required of them to give their version on such a finding assuming there was one in the first place.

26. Article 47 of the Constitution provides

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall-

(a) Provide for the review of administrative action by court or, if appropriate, an independent and impartial tribunal; and

(b) Promote efficient administration.

27. It follows that reasonableness is now a constitutional requirement in the exercise of administrative action. A similar position prevails in South Africa where in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1,at paragraphs135 -136 it was held as follows with regard to similar provisions on just administrative action in section 33 of the South African Constitution:

“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

28. In Associated Provincial Picture Houses vs. Wednesbury Corporation [1948] 1 KB 223 it was held:

“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretionsoften use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short vs. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

29. However, as this Court held in Nairobi High Court in Kevin K. Mwiti & Others vs. Council of Legal Education & Others (Nairobi JR 377 of 2015-Consolidated with Petition 395 of 2015 and JR 295 of 2015):

‘…it is not mereunreasonableness which would justify the interference with the decision of an inferior tribunal. This is so because unreasonablenessper seis largely a subjective test and therefore to base a decision merely on unreasonableness places the Court at the risk of determination of a matter on merits rather than on the process. In my view, to justify interference the decision in question must be so grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would have arrived at such a decision. In other words such a decision must be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it. Therefore, whereas the Court is entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness is met, it is only when the decision is so grossly unreasonable that it may be found to have met the test of irrationality for the purposes of Wednesbury unreasonableness. ..’

30. It is my view that in deciding on what action to take an authority ought to apply the principle of proportionality. Accordingly I associate myself with the position taken in The Indian Borough ofNewham vs. Khatun-Zeb and Iqbal [2004] EWCA Civ. 55 where it was held that:

“Clearly a public body may choose to deploy powers it enjoys under Statute in so draconian a fashion that the hardship suffered by the affected individuals in consequence will justify the court in condemning the exercise as irrational or perverse...At all events it is plain those oppressive decisions may be held to repugnant to compulsory public law standards.”

31. Like all legal remedies, judicial review continues to enlarge the categories of its sphere of influence. Proportionality for example is considered to be one of the grounds upon which judicial review relief may be granted. In my view the issue of proportionality ought to be seen in the context of rationality. This position is the one prevailing in England as was highlighted by Lord Steyn in R (Daly) vs. Secretary of State For Home Department (2001) 2 AC 532where it was held that: (1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely to see whether it is within the range of rational or reasonable decisions; (2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations; and (3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.

32. This position is now captured by the Fair Administrative Action Act under which sections 7(i) and 7(ii) recognises proportionality as a ground to challenge administrative decisions if the decision is not proportionate to the interests or rights affected. Proportionality was recognized by Lord Diplock,in Council of Civil Service Unions vs. Minister for the Civil Service 1AC, 374where he lauded the development of this ground in the Laws of the European Economic Community. Apart from that the courts have over the years developed a framework within which to conduct a proportionality analysis which is usefully summarised by De Smith, Woolf and Jowel, Judicial Review of Administrative Action, Fifth Edition (pp.594-596) that it is “a principle requiring the administrative authority, when exercising discretionary power to maintain a proper balance between any adverse effects which its decision may have on the rights, liberties, or interests of persons and the purpose which it pursues”. Therefore the principle, as reviewed by the Courts encompass any or all of the following tests:

a. The balancing test, which requires a balancing of the ends which an official decision attempts to achieve against the means applied to achieve them. This requires an identification of the ends or purposes sought by the official decisions. In addition it requires an identification of the means employed to achieve those ends, a task which frequently involves an assessment of the decision upon affected persons.

b. The necessity test which requires that where a particular objective can be achieved by more than one available means, the least harmful of these means should be adopted to achieve a particular objective. …this aspect of proportionality requires public bodies to adopt those regulatory measures which cause minimum injury to an individual or community.

c. The suitability test requires authorities to employ means which are appropriate to the accomplishment of a given law, and which are not in themselves incapable of implementation or unlawful.

33. In this case, it is my view that a decision wherein an institution of higher learning wakes up one day and purportedly based on communication from a regulatory authority, unilaterally and without recourse to the students, it itself admitted and extracted fees therefrom, discontinues them from their study without considering at what stage of their studies they are and the consequences of such action cannot be reasonable by any stretch of imagination.

34. In arriving at such a decision the institution is obliged to take into account the interests of the third parties who stand to be affected by such a decision. This position is now underpinned in sections 4(3) and 5(1) of the Fair Administrative Action Act. The later provision provides:

In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall-

a. Issue a public notice of the proposed administrative action inviting public views in that regards;

b. Consider all views submitted in relation to the matter before taking administrative action;

c. Consider all relevant and material facts;

35. That the impugned decision was likely to materially and adversely affect the legal rights or interests of a group of persons or the general public is not in doubt since the decision would have affected the rights and interests of the students and their parents/guardians.

36. It is therefore my view that the impugned decisions did not meet the fair administrative action threshold and such action is not only unlawful but amounts to a violation of the Constitution. As was held by the Court of Appeal in Judicial Service Commission vs. Mbalu Mutava & Another [2015] eKLR:

“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.”

37. In my view Article 47 of the Constitution is now emphatic on the fairness of administrative action. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilised governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems. The focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualised discretion; from social controversy to commercial self-interest; and anything in between. As a result, judicial review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.

38. In Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240 the learned Judge expressed himself as follows:

“On the issue of discretion Prof Sir William Wade in his Book Administrative Lawhas summarized the position as follows: The powers of public authorities are... essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land…regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them…Certainty of law is an important pillar in the concept of the rule of law. As is no doubt clear in the findings in this case, it is an essential prerequisite of business planning and survival as well. Yes, the rule of law is a lifeline of the economy as is illustrated in the emerging and thriving economies of the world. The courts in my view have a responsibility to uphold the rule of law for this reason. The ability of businesses to plan stems from the bedrock of the rule of law. “

39. It was in appreciation of this that judicial review was recognised in Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 as the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness.

40. It was contended that contrary to these explicit requirements of the law and the fact that the University (Amendment) Act 2016 is the prevailing statute that deals with accreditation of Universities or academic programs or degree courses, the 1st and 2nd Respondents being fully mindful of this, deliberately acted beyond their powers and jurisdiction in invoking the use of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, a law that had been overruled hence the Respondents jurisdictional error renders its decision ultra vires hence illegal. The 2nd Respondent’s position is however that its opinion and recommendation was solicited, and was an exhortation to the 1st Respondent to adhere to provisions of the law on admission of students to the LLB programme and to take corrective action to ensure compliance with the law. It did not discontinue any student whereupon the demand to adhere to natural justice would have been exacted on the Council. The method of adherence with the law was left to the 1st Respondent, and the 2nd Respondent being an independent body is not liable and or responsible for the conduct of the 1st Respondent.

41. Since the 2nd Respondent’s communication is not before me I am unable to make a determination on its contents. There is therefore no basis upon which any blameworthiness can be placed on the 2nd Respondent.

42. In my view an institution of higher learning that prides itself as a citadel of legal education must appraise itself of all the minimum requirements for admission of students to a degree programme and in this case the LLB Degree programme. To just admit all and sundry to a course with a view to raising finances for the running of an institution is, in my view improper, unethical and inhuman as it amounts to reducing students to mere money minting contraptions or devices for the sustenance of the institution.

43. In my view minimum qualification requirements serve very useful purposes. It is meant to ensure that standards are maintained within the profession. In the legal profession in particular it is geared towards ensuring that those whom the institutions offering courses in legal education unleash on the public are those who have the necessary professional and ethical qualifications necessary in carrying out their mandate as advocates. The role of an advocate in society is that of trust as between the advocate and the client as opposed to that of a businessman. He or she is expected to possess certain standards as expected from him or her by the society. The client entrusts him or her with execution of the client’s lawful instructions in accordance with certain standards and also expects him or her to be a safe repository of the client’s confidential information as well as the client’s funds. The need for proper training both theoretically and practically cannot be therefore be overemphasised.

44. It is therefore the duty of the institutions admitting students to ensure that those whom they admit meet the minimum admission qualifications and if they do not do so, the institution cannot just wake up one day and simply order the same students from whom they have extracted financial proceeds and/or benefits to simply pack up and leave. Such action in my view may call for the refund of payments made by the said students as a result of being duped by the institution that they were undertaking courses for which they were qualified.

45. In my view, no course or profession in this country has in the recent past attracted a plethora of litigation arising from admission of students either to the University or to the post degree programme as the legal profession. This in my view and with due respect can only be attributed to lack of proper and streamlined regulatory framework guiding such admissions whether deliberate or otherwise. As long as those concerned do not deem it fit to come up with proper frameworks that meet both the constitutional and statutory prescriptions this Court will continue being inundated with such litigation. I highly recommend that a task force be formed to look at the regulatory framework surrounding legal education in this country in order to bring this merry-go-round to a halt. In that regard I hereby direct the Deputy Registrar of this Court to facilitate the service this Judgement on the Attorney General to consider taking appropriate action towards that end.

46. In these proceedings, this Court is simply concerned with the manner in which the impugned decision to discontinue the applicants was arrived at as opposed to its merits. Accordingly, this Court is not concerned with the question whether the applicants did meet the minimum requirements to undertake the legal degree course.

47. It is however clear that the manner in which the University arrived at its decision to discontinue the applicants from their course fell below the threshold of fairness under the provisions of both the Constitution and the Fair Administrative Action Act. It cannot therefore stand.

Order

48. In the result I hereby issue the following orders:

a. An order of certiorari removing into this Court for purpose of quashing the decision of the respondent contained in the letterdated 23rd December 2016 discontinuing the applicants from continuing with their Bachelor of Laws (LL.B) Degree programs which decision is hereby quashed.

b. Mandamus directing the 1st Respondent Institution to re-admit and or Register the discontinued applicants and to allow them to pursue their law degrees until and unless otherwise lawfully discontinued.

c. The costs of this application be awarded to the applicants to be borne by the 1st Respondent.

49. It is so ordered.

Dated at Nairobi this 13th day of November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of the 1st Applicant in person.

CA Ooko.