[2023] KELEAT 180 (KLR)

Sarite & another v Kenya School of Law (Appeal E005 of 2023) [2023] KELEAT 180 (KLR) (10 March 2023) (Judgment)

Neutral citation: [2023] KELEAT 180 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E005 of 2023

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

March 10, 2023

Between

Dr Salad Kikuyu Sarite

1st Appellant

Osman Abubakar Osman

2nd Appellant

and

Kenya School Of Law

Respondent

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 29th of December 2022 rejecting admission into the Advocates Training Programme during the 2023/2024 academic year)

Judgment

A. Background 1. In view of the fact that there are two appellants in this matter, it is important to segregate their factual positions in support of the appeal. Their qualifications and academic journeys are different and we will outline them extensively as a basis for determining the appeal with these peculiarities in mind.

2. The 1st Appellant’s Casea.The 1st Appellant sat for his Kenya Certificate of Secondary Education Examination of November/ December 1996 and attained a Mean Grade of C+ (Plus) with Grade C+ (Plus) in English and C (Plain) in Kiswahili.b.Having attained the minimum aggregate university entry grade of C+ (Plus) he enrolled for a Bachelor of Business Administration- Purchasing & Supplies Management at the Presbyterian University of East Africa. He graduated on November 29, 2014. Thereafter, he applied and registered for a degree of Master of Business Administration and graduated on December 4, 2015 from the same University.c.He further applied and was admitted for a degree of Master of Science in Procurement & Logistics at Jomo Kenyatta University of Agriculture & Technology graduating on June 30, 2016 and thereafter enrolled for a degree of Doctor of Philosophy (Supply Chaim Management) graduating on November 30, 2018. d.He then applied to the University of Nairobi and was admitted for the study of a degree of Bachelor of Laws (LL.B) on December 6, 2022. e.On the strength of his prior academic qualifications and the transcripts issued from the University of Nairobi, he applied to the Respondent for admission to the Advocates Training Programme.f.On December 29, 2022, he received a regret letter. This appeal challenges the decision contained in the letter. The Respondent cited the reason for refusal as being that he did not attain Grade B (Plain) in English.

3. The 2nd Appellanta.The 2nd Appellant sat for his Kenya Certificate of Secondary Education Examination in November/December 2011 and attained a Mean Grade of B (Plain) with Grade C+ (Plus) in English and C (Plain) in Kiswahili.b.He further enrolled for a Bachelor of Economics & Finance at Kenyatta University graduating on July 17, 2015. He then applied and registered for Degree of Master of Arts (Public Policy & Administration) graduating on August 4, 2017 from the same Universityc.On May 3, 2018, he applied to the University of Nairobi and was admitted for the study of a degree of Bachelor of Laws (LLB) and on December 9, 2022, he became eligible for the conferment of the aforesaid degree.d.On the strength of his prior academic qualifications and the Transcripts issued from the University of Nairobi, he applied to the Respondent for admission to the Advocates Training Programme (ATP).e.On December 29, 2022, he received a regret letter, which letter he challenges. The Respondent cited the reason for refusal as being that the applicant was admitted to the university after December 8, 2014 and has not attained the Minimum language requirement applicable to allow him to join the Advocates Training Programme.

B. The appeal by the Appellants 4. The Appellants filed a joint appeal and relied on the grounds on the face of the Memorandum of Appeal dated January 9, 2023. They also rely on the following grounds inter alia:a.That the impugned decisions as contained in the letters dated December 29, 2022 by the Respondent to the Appellants are ultra vires, unlawful and illegal, hence it should be overturned for the following reasons:-I.The Appellants sat for their Kenya Certificate of Secondary Education in Kenya.II.The Appellants hold various degrees awarded by recognized institutions in Kenya as prequalification for admission and study leading to an award of a Bachelor of Laws (LLB).III.The Appellants have completed and become eligible for conferment of a degree of Bachelor of Laws from the University of Nairobi; an institution accredited by the Interested Party.IV.The Appellants have the right to education guaranteed under theConstitution.b.That it is in the best interest of justice for the Appellants to be admitted into the Advocate Training Programme (ATP) at Kenya School of Law for the Academic Year 2023/2024, whose registration exercise commences on January 16, 2023 and terminates on February 3, 2023, in order to realise both their education and career progression.c.That the Director of 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.d.That due to the foregoing reasons, it is in the best interests of justice that the Appellants’ appeal filed herewith be certified as urgent, be heard on a priority basis and the orders sought to be granted forthwith.

5. Reliefs sought from the Tribunal:a.That the matter be certified as urgent and the appeals be fixed for inter parties hearing on priority basis.b.That the Honourable Tribunal be pleased to quash the impugned decisions of the Respondent's Director as contained in the letters dated December 29, 2022 to each respective Appellant.c.That the Honourable Tribunal be pleased to order and or compel the Respondent to admit the Appellants into its Advocates Training Programme (ATP) for the academic year 2023/2024. d.That any other order that this Honorable Tribunal may deem just and expedient to grant.e.That the costs of this application be borne by the Respondent.

C. The Respondent’s position on the Appeal 6. The Respondent contended that its mandate is, inter alia, to train persons for purposes of the Advocates Act (Cap 16) for which the Respondent offers the Advocates Training Programme. That matters of admission to the 1st Respondent's Advocates Training Programme are exclusively provided for under section 16 of the Kenya School of Law Act No. 26 of 2012.

7. Consequently, the Respondent contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act 2012.

8. The Respondent further that it is 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.

9. The Respondent further contends that upon the Appellants making their applications to the Advocates Training Programme, they did not meet the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act 2012. Under section 16 of the Kenya School of Law Act 2012, as read with Paragraph 1 of the Second Schedule, the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in KCSE with B(plain) in English or Kiswahili languages which the Appellants did not have.

10. The Respondent further states that the Appellants are relying on academic progression to be admitted for the Advocates Training Programme, yet the Kenya School of Law Act 2012 does not have a provision for academic progression

D. The Appellants’ submissions 11. On whether the Respondent was justified in declining to admit the Appellants for the ATP programme academic year 2023/2024, the Appellants’ submit that Article 43 (1) (f) of theConstitution of Kenya provides that every person has the right to education.

12. It is submitted that even though the right to education does not fall under the category of rights and fundamental freedoms which cannot be limited under Article 25 of theConstitution, no such limitation can be lawful unless the purported limitation complies with the provisions of Article 24. It provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—a.the nature of the right or fundamental freedom;b.the importance of the purpose of the limitation;c.the nature and extent of the limitation;d.the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

13. It is the Appellants’ submission that the Respondent’s conduct, amounts to a limitation and/ or violation of the Appellants’ right to education, is illegal and ought to be set aside by this Tribunal.

14. In regards to the Appellants’ qualification to study for the LLB degree, the Appellants submit that they were admitted to study the LLB degree at the University of Nairobi in the year 2018 hence graduating in the year 2022. The law then Applicable in regards to the Appellants’ qualifications was theLegal Education (Accreditation and Quality Assurance) Regulations, 2016(enacted under the Legal Education Act, 2012), and Section 16 as read together with the 2nd Schedule Paragraphs (a) (1) of the Kenya School of Law Act, 2012. They provided as follows;5. Undergraduate Degree Programme1. The minimum admission requirements for an undergraduate degree programme in law shall be—a.a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;b.at least three Principal Passes in the Kenya Advanced Certificate of Education examination;c.a degree from a recognized university; ord.a Credit Pass in a diploma in law examination from an accredited institution.

15. It is submitted that Section 16 as read together with the 2nd Schedule Paragraphs 1 (a) Kenya School of Law Act, 2012 on the other hand provides as follows;'Admission requirementsA 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 Second Schedule for that course.2nd Schedule Paragraphs (1) (a)The Admission requirements will be as follows—Admission Requirements into the Advocates Training Programme (1) A person shall be admitted to the School if—a.having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution,Or;b.having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—i.attained a minimum entry requirement for admission to a university in Kenya; and,ii.obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; andiii.has sat and passed the pre-Bar examination set by the school. (Underlining in bold for emphasis) 16. The Appellants submit that the 2nd Schedule Paragraphs (1) (a) of the Kenya School of Law Act, 2012 provides for dual criteria for admission of students for the ATP Programme and the Appellants were qualified under 2nd Schedule Paragraphs (a) (1) (a).

17. They rely on the case of Adrian Kamotho Njenga v Kenya School of Law [2017] eKLR in which the court held that admission requirements for students who possess qualifications from Universities in Kenya are different from those required of students with qualifications from foreign universities as far as the administration of pre-bar exam was concerned hence the use of the word 'or' after paragraph (a).

18. Further, they submit that in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR, the Court held that the use of the word “or” after Paragraph (a) (1) (a) of 2nd schedule above provides an alternative to the requirements of Paragraph (a) (1) (b).

19. Finally, the Appellants rely on the case of Elizabeth Wanjiru Njeri vs Kenya School of Law & Council of Legal Education (2022) (unreported), where the learned trial judge held as follows regarding the dual criteria provided in the 2nd Schedule of the Kenya School of Law Act and harmonizing the same with the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as admission requirements to the Advocates Training Programme.

20. The court adopted the literal rule of interpretation employed by the Court in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another (Supra) in its approach. The learned trial judge held thus;'… the petition falls in the first category of persons who studied in Kenya as opposed to those that studied in foreign universities….it is clear to me that having attained the undergraduate degree in commerce, she had qualified for admission for a degree in law as provided under the 2009 regulations.To my mind, to argue that persons falling under paragraph 1(a) of the second schedule of the Kenya School of Law Act must have obtained a C+ (plus) and B (plain) in either English or Kiswahili to qualify for LL.B is to miss the point that a pre-qualification degree qualifies one to be eligible to study LL.B . this was the law under regulations of 2009 and also in the 2016 regulations.'

21. The Appellants submit that it is clear that the prevailing legal instrument that was applicable to the Appellants at the time of their admission to the LLB degree was regulation 5 of the 3rd schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

22. The Appellants were admitted to the LLB degree in 2018. This was 2. 5 years prior to the Court of Appeal decision in Javan Kiche Otieno & Another vs Council of Legal Education [2021] eKLR which declared the said regulations invalid.

23. On whether the Appellants’ legitimate Expectation has been violated, it is submitted that the legal regime at the time the Appellants were admitted to study for the LLB course allowed the Appellants to pursue the LLB degree course based on the qualifications they had.

24. The Appellants aver that they had a legitimate expectation that the benefit accorded to them by the law as then was, would not be disregarded by the Respondent and Interested Party to thwart their desire to be admitted to study for the ATP in order to complete their journey of becoming advocates.

25. Who should bear the costs of the proceedings, the Appellants submit that under Section 39 (2)(d) of the Legal Education Act, the tribunal is empowered to make a determination regarding the costs of proceedings before it. The general rule is that costs follow the event unless the court for any just reason decides otherwise. The Appellants pray that they be awarded the costs of the appeal herein.

26. The Appellants submit that the 2nd Schedule Paragraphs (1) (a) of the Kenya School of Law Act, 2012 provides for dual criteria for admission of students for the ATP Programme and the Appellants were qualified under 2nd Schedule Paragraphs (a) (1) (a).

27. They rely on the case of Adrian Kamotho Njenga v Kenya School of Law [2017] eKLR in which the court held that admission requirements for students who possess qualifications from Universities in Kenya are different from those required of students with qualifications from foreign universities as far as the administration of pre-bar exam was concerned hence the use of the word 'or' after paragraph (a).

28. Further, in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR, the Court held that the use of the word 'or' after Paragraph (a) (1) (a) of 2nd schedule above provides an alternative to the requirements of Paragraph (a) (1) (b). The court held thus;

29. Finally, the Appellants rely upon the case of Elizabeth Wanjiru Njeri vs Kenya School of Law & Council of Legal Education (2022) (unreported), where the learned trial judge held as follows regarding the dual criteria provided in the 2nd Schedule of the Kenya School of Law Act and harmonizing the same with the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as admission requirements to the ATP.

30. The court adopted the literal rule of interpretation employed by the Court in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another (Supra) in its approach. The learned trial judge held thus;'…the petition falls in the first category of persons who studied in Kenya as opposed to those that studied in foreign universities….it is clear to me that having attained the undergraduate degree in commerce, she had qualified for admission for a degree in law as provided under the 2009 regulations.To my mind, to argue that persons falling under paragraph 1(a) of the second schedule of the Kenya School of Law Act must have obtained a C+ (plus) and B (plain) in either English or Kiswahili to qualify for LL.B is to miss the point that a pre-qualification degree qualifies one to be eligible to study LL.B . this was the law under regulations of 2009 and also in the 2016 regulations.'

31. The Appellants submit that, it is clear that the prevailing legal instrument that was applicable to the Appellants at the time of their admission to the LLB degree was regulation 5 of the 3rd schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Appellants were admitted to the LLB degree in 2018. This was 2. 5 years prior to the Court of Appeal decision in Javan Kiche Otieno & Another vs Council of Legal Education [2021] eKLR which declared the said regulations invalid.

32. On whether the Appellants’ legitimate Expectation has been violated, it is submitted that the legal regime at the time the Appellants were admitted to study for the LLB course allowed the Appellants to pursue the LLB degree course based on the qualifications they had.

33. The Appellants, therefore, had a legitimate expectation that the benefit accorded to them by the law as then was, would not be disregarded by the Respondent and Interested Party to thwart their desire to be admitted to study for the ATP in order to complete their journey of becoming advocates.

34. On who should bear the costs of the proceedings, the Appellants submit that under Section 39 (2)(d) of the Legal Education Act, the tribunal is empowered to make a determination regarding costs of proceedings before it. The general rule is that costs follow the event unless the court for any just reason decides otherwise. The Appellants pray that they be awarded the costs of the appeal herein.

E. The Respondent’s submissions 35. On whether the Tribunal has jurisdiction over the matter the Respondent submits that the LEAT was created by the Legal Education Act under Part VI and its jurisdiction under that Part, is to hear appeals matters arising out of the LEA. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act.

36. The Respondent submits that this Honourable Tribunal's jurisdiction is limited to matters that relate to the Legal Education Act 2012 which states in section 31(1) that:31. Jurisdiction of Tribunal(1)The Tribunal shall, upon 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 this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.

37. The respondent submits that the Tribunal is a creature of the act which was enacted to establish it in this instance, the Legal Education Act which is an act 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.

38. The Respondent submits 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, it submits that it is clear that these sections do not expressly confer upon Tribunal power to adjudicate matters that are outside the scope of the Legal Education Act 2012.

39. On whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable the respondent submits inter alia that in constructing a statutory provision, the first and foremost rule is that of literal construction. If the interpretation is unambiguous and the legislative intent is clear then the meaning is applied without resort to other rules of statutory interpretation.

40. The respondent urges the Tribunal to adopt an interpretation that will not only make the statutory provisions on admission operative and workable, but also to make them operative in a just and reasonable manner.

41. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The respondent submits that the Appellant did not meet the admission criteria.

42. On whether the procedure to refuse admission was illegal and unreasonable the respondent submits that its hands were tied by statute and that the decision was fair and just and procedurally correct.

43. On the issue of academic progression the Respondent submits that the appellants do not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, which is the Kenya School of Law Act 2012, as amended by Statute Law Miscellaneous Amendments Act (No 18 of 2014) does not provide for academic progression.

44. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellants’ argument that because they had obtained his LLB degree, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous.

45. The Respondent submits that this could not have been the intention of Parliament, as this creates two admission criteria for local universities and foreign universities. The Respondent submits that this would create an outright absurdity.

F. Analysis and determination. 46. On the jurisdiction to entertain the appeals, the primary relief by the appellants is hinged on entitlement to admission to the Advocates Training Programme based on section 1 (a) of the Kenya School of Law Act, 2012. The respondent in the responses to the appeals however, deposed that the appellants asserted entitlement to admission to the Advocates Training Programme by dint of academic progression which it denies it is not provided for in its establishing juridical regime.

47. The Tribunal notes that the function of the interested party in section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations for persons wishing to enrol in Legal Education Programmes and which function has been confirmed in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J Mohamed and Kantai JJA at page 21 as follows;'The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.It should be noted that whereas the Council has to power to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance with such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.'

48. The Tribunal has consistently held the position above in its various pronouncements. The Tribunal also notes that section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the interested party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels. The Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the interested party pursuant to the Legal Education Act, 2012.

49. The Tribunal finds that in inquiring into the matter of applicability of progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012.

50. The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme is the main contest in this appeal. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the interested party the powers to amongst others regulate the admission criteria to legal education programmes. It provides;'In carrying out its functions under subsection (2), the Council shall—a)make Regulations in respect of requirements for the admission of persons seeking to enrol in legal education programmes;...'

51. The said position was also laid out by the Court of Appeal in Nairobi Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J Mohammed and Kantai JJA held;'The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.'

52. The interested party and the Tribunal are established under the same statute. It follows that the Tribunal has the requisite jurisdiction to inquire into the appeals before it by dint of section 31 (1) of the Act which provides;

53. In view of the many decisions on this point by the Tribunal, we are of the view that the matter of its Tribunal should be a settled matter by now. The Respondent and Interested Party are common litigants in these proceedings and have constantly raised the issue and the Tribunal has consistently ruled on the question. We would be remiss if we do not point out that this is a question that ought not to come up in every subsequent appeal from the same facts. This is especially so since the Respondent and the Interested Party have yet to challenge the Tribunal’s findings on its jurisdiction in a superior court.

54. As regards the appeals, the appellants' primary contention was that they were entitled to admission to the Advocates Training Programme predicated on the fact that they held Bachelor of Laws degrees from recognized universities in Kenya. Thus, they were only to be subjected to the scrutiny in section 1 (a) as opposed to 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012.

55. The section provides follows;'(a)Admission Requirements into the Advocates Training Programme.(1)A person shall be admitted to the School if—a.having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; orb.having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—i.attained a minimum entry requirement for admission to a university in Kenya; andii.obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; andiii.has sat and passed the pre-Bar examination set by the school.'

56. The Tribunal had previously held that the conjunction ‘or’ between the two sections is an elective and a disjunctive interpretation has been to be adopted. Hence, the applicants to the Advocates Training Programme were only to be subjected to singular as opposed to conjunct criteria in consideration of their applications to the programme.

57. The said position has however since changed based on the pronouncement of the Court of Appeal in Nairobi Civil Appeal no E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J Mohammed and Kantai JJA observed;'It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act, distinguishes applicants who hold a Bachelor of Laws degree from a Kenyan University and those from a foreign University. We are of the view that with the use of a semi-colon between 1 (a) and (b) of the Act then the conditions follow which to us means that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.'

58. Based on a conjunctive interpretation, the Respondent’s decision as taken to decline admission to the Advocates Training Programme on a cursory examination would be upheld as the 1st appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above.

59. The 1st Appellant attained Grade C+ (Plus) in English and C (Plain) in Kiswahili languages respectively which were below the stipulated minimum.

60. The 2nd Appellant attained grades C + (plus) and C (plain) in English and Kiswahili languages respectively which were below the stipulated minimum.

61. However, the Tribunal will proceed to consider the appeals on account of the extent to which the appellants may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

62. The interested party had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree, the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;'5. Undergraduate Degree Programme(1)The minimum admission requirements for an undergraduate degree programme in law shall be —a.a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;b.at least three Principal Passes in the Kenya Advanced Certificate of Education examination;c.a degree from a recognised university; ord.a Credit Pass in a diploma in law examination from an accredited institution.'

63. After careful consideration of the Appellants’ qualifications we hold that based on the decision of the superior court and as affirmed by the Court of Appeal in a Constitutional Petition lodged in the High Court at Nakuru in Petition No 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another, the Appellants do not qualify for admission to the Advocates Training Programme.

64. In the quoted case, the petitioners challenged the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the 30th January 2018 and stated as follows;'The first issue here is the legality of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The petitioners contend that the said regulations were made in contravention of article 10 of theConstitution. They further contend that the 1st respondent was not properly constituted in accordance with section 4 (5) of the Legal Education Act at the time of making the said Regulations and that the 1st respondent does not have the powers to accredit foreign institutions. However, the true position is that the Regulations have not yet become subsidiary legislation because they have not yet been adopted by Parliament as required by section 14 of the Statutory Instruments Act. Thus this provision renders the said regulations void and unenforceable.'

65. With the declaration of invalidity whose operative date is 30th January 2018 (being the date of the decision by the High Court as affirmed by the Court of Appeal), the said regulations which contained the criteria for admission ceased to have had any legal consequence from their inception. This included the set out admission criteria to the various legal education programmes contained in them.

66. However, the court of appeal after considering the matter found that the declaration of invalidity does not apply to crystalized actions. The decision in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices DK Musinga (P), RN Nambuye and AK Murgor; JJA in paragraphs 34, 35 and 47 of the judgment stated;'34. The record does not disclose that following gazetting of the impugned regulations, they were thereafter, laid before Parliament and adopted…

43. Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above-cited provision, and which shortcomings the appellants have conceded, it becomes evident that the impugned regulations were not adopted and as a consequence, did not acquire the force of law…

47. consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.'

67. In these appeals, the crystalized actions that arise would entail a consideration of the point at which the respective appellants had secured admission to the Bachelor of Laws degree programmes at the time the initial decision on the invalidity of the regulations was entered by the superior court on the January 30, 2018.

68. The 1st appellant secured admission to the Bachelor of Laws degree on the 31st of August 2018 which was after the date of the finding of invalidity of the regulations by the superior court. The Tribunal, therefore, finds that the declaration affects his eligibility for the Advocates Training Programme.

69. The 2nd appellant secured his admission to the Bachelor of Laws degree on the 3rd of May 2018 which was after the date of the finding of invalidity of the regulations by the superior court. The Tribunal, therefore, finds that the declaration affects his eligibility for the Advocates Training Programme.

70. We would like to take up the matter of the various degrees taken by the appellants. We note that they have put in great effort, time and resources in pursuing their respective fields to advanced levels.

71. The 1st Appellant has a Doctorate in Supply Chain Management. The 2nd Appellant has a Master’s degree in Public Policy and Administration.

72. A question arises on whether they would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the interested party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels.

73. The Appellants have subtly taken up the point that their commendable academic journey should be taken into consideration. They state that the impugned section created legitimate expectations and that is why they took the journey towards academic excellence in other fields. It is on the impugned regulation that a possibility of admission would have been hinged.

74. However, the law on progression as enacted in section 8 (3) (c) of the Legal Education Act, 2012 confines progression to the field of law. The said matter has been the subject of consideration in Nairobi Civil Appeal no E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J Mohammed and Kantai JJA observed at page 28;'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. We do not think a degree in aeronautics or a diploma in interior design, for instance, can be termed as a progression towards studying law. Indeed, the only closer aspect contemplated is experience and learning in law culminating in a diploma in law or related course in law. We, therefore, hold that such degree and diploma are not to be categorized as a progression in law of whatsoever kind and even if they were, the appellant had to consider the primary requirements in the Act first before reverting to the regulations and which is the requirement of grades in KCSE.'

75. Legitimate expectation cannot accrue if the action or benefit expected would be a breach of the law. Discussing legitimate expectation, HWR Wade & CF Forsyth (Administrative Law, by HWR Wade, CF Forsyth, Oxford University Press, 2000), at pages 449 to 450 states thus:'It is not enough that an expectation should exist; it must in addition be legitimate. First of all, for an expectation to be legitimate, it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation.Second, clear statutory words, of course, override an expectation howsoever founded. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…'

76. 'An expectation whose fulfilment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation. It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises. There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.'

E. Disposition. It is decreed:- a.That the appeals by Dr Salad Kikuyu Sarite And Osman Abubakar Osman against the Respondent’s decision declining admission to the Advocates Training Programme during the 2023/24 academic years as communicated by the respondent by Dr Henry K Mutai - Director of the Kenya School of Law in the decision dated the December 29, 2022 are dismissed.

b.That each party bears its own costs of the appeal.

c.That any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.

IT IS SO ORDERED BY THE LEGAL EDUCATION APPEALS TRIBUNAL. DATED AT NAIROBI THIS 10TH DAY OF MARCH 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal. REGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)THE JUDICIARY OF KENYA. LEGAL EDUCATION APPEALS TRIBUNAL LEGAL EDUCATION APPEALS TRIBUNALDATE: 2023-03-14 07:36:24+03