[2023] KELEAT 182 (KLR)

Sheikh & 3 others v Kenya School of Law (Appeal E006 of 2023) [2023] KELEAT 182 (KLR) (17 March 2023) (Judgment)

Neutral citation: [2023] KELEAT 182 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E006 of 2023

R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members

March 17, 2023

Between

Idriss Abdi Sheikh

1st Appellant

Ibrahim Hussein Abdi & 2 others

2nd Appellant

and

Kenya School of Law

Respondent

((Being an appeal against the decision of the Director/Chief Executive Officer of the Kenya School of Law dated 4th January 2023 for the 1st appellant and 5th January 2023 for the 2nd, 3rd and 4th appellants, rejecting their application for admission into the Advocates Training Programme during the 2023/2024 academic year)

Judgment

A. Background 1. The Appellants, aggrieved by decisions of the Director/ Chief Executive Officer of the Respondent dated 4th January 2023 for the first appellant and 5th January 2023 for the 2nd, 3rd and 4th Appellant filed their joint appeal dated 11th January 2023. The Appeal was served upon the Respondent and the Interested Party. The Respondent filed their Replying affidavit.

2. Directions were issued that the matter be canvassed by way of written submissions. The Interested Party indicated that it would not file any reply or submissions but that it would rely on the submissions of the Respondent.

3. There are four (4) appellants in this matter, and we shall therefore begin by separating their factual positions in the appeal. Their qualifications and academic journeys are different and we will outline them individually in order to determine the joint appeal with these differences in mind.

4. The 1st Appellant’s Casea.The 1st Appellant sat his Kenya Certificate of Secondary Education Examination in 2015 and attained a Mean Grade of C plain. This did not meet the criteria for entry into the university to study for a Bachelor of Laws (LLB) degree. The 1st Appellant enrolled for a Diploma in Law at Mount Kenya University from where he graduated on 7th December 2018. b.Based on his Post KCSE qualification, he applied for and on 21st September 2018, was admitted to study for an LLB degree the Mount Kenya University, from where he graduated on 9th December 2022. c.On the strength of his qualification the Mount Kenya University, he applied to the Respondent for admission to the Advocates Training Programme.d.On 4th January 2023, he received a regret letter. The Respondent cited the reason for refusal of admission as being that the appellant was admitted to LLB after 8th December 2014 and has not attained the threshold in his High School Grades in either English or Kiswahili.

5. The 2nd Appellant’s casea.The 2nd Appellant sat for his Kenya Certificate of Secondary Education Examination in the year 2014 and attained a Mean Grade of C Plain, which did not meet the criteria for direct entry into the university to study for a Bachelor of Laws (LLB) degree.b.He subsequently enrolled for a Diploma in Law at the Kenya School of Law (the Respondent) from where he graduated in the year 2017. Based on his Post KCSE qualification, he applied for and was admitted to study for an LLB degree at Mount Kenya University, on 28th August 2018, from where he graduated on 29th July 2022. c.On the strength of his qualifications and the Transcripts issued from Mount Kenya University, he applied to the Respondent for admission to the Advocates Training Programme (ATP).d.He received a regret letter dated 5th January 2023, which letter he challenges. The Respondent cited the reason for refusal as being that the Appellant did not have a mean grade of C+ or a grade B in either English or Kiswahili.

6. The 3rd Appellant’s Casea.The 3rd Appellant sat for her Kenya Certificate of Secondary Education Examination in November/ December 2016 and attained a Mean Grade of C plain, which did not meet the criteria for entry into the university to study for a Bachelor of Laws (LLB) degree.b.She then enrolled for a Diploma in Law at Mount Kenya University from where she graduated on 9th August 2018. Based on her Post KCSE qualification, she applied for and was admitted to study for an LLB degree at Mount Kenya University on 3rd January 2019, from where she graduated on 9th December 2022. c.On the strength of her qualification from Mount Kenya University, she applied to the Respondent for admission to the Advocates Training Programme.d.On 5th January 2023, she received a regret letter. The Respondent cited the reason for refusal as being that the appellant did not attain Grade C+ in her KCSE or grade B in either language.

7. The 4th Appellant’s casea.The 4th Appellant sat for his Kenya Certificate of Secondary Education Examination in the year 2002 and attained a Mean Grade of C minus (C-) which did not meet the criteria for direct entry into the university to study for a Bachelor of Laws (LLB) degree.b.He subsequently enrolled for a Diploma in Business Management at Mt Kenya University from where he graduated on 7th August 2015. He proceeded to enrol for a Bachelor’s Degree in Business Management (Banking and Finance Option) and graduated on 3rd August 2018. Based on his Post KCSE qualifications, he applied for and was admitted to study for an LLB degree at Mount Kenya University, on 3rd May 2018 from where he graduated on 9th November 2022. c.On the strength of his qualifications and the Transcripts issued from Mount Kenya University, he applied to the Respondent for admission to the Advocates Training Programme (ATP).d.He received a regret letter dated 5th January 2023, which letter he challenges. The Respondent cited the reason for refusal as being that the Appellant had a grade C- in KCSE.

B. The Appeal 8. The Appellants raise the following grounds in their appeal:a.That the impugned decisions as contained in the letters dated 4th and 5th January 2023 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 (LL.B).III.The Appellants have completed and become eligible for conferment of a degree of Bachelor of Laws from Mt Kenya University; an institution accredited by the Interested Party.IV.The Appellants have the right to education guaranteed under the Constitution.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 16th January 2023 and terminates on 3rd February 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.

9. The reliefs sought from the Tribunal are:a.That the matter be certified as urgent and the appeals be fixed for inter parties hearing on a 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 4th January 2023 to the 1st appellant and 5th January 2023 to the 2nd, 3rd and 4th Appellants.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 10. The Respondent contends 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 Respondent's Advocates Training Programme are exclusively provided for under section 16 of the Kenya School of Law Act No. 26 of 2012.

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

12. The Respondent states 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.

13. The Respondent further contends that upon considering the Appellants' applications to the Advocates Training Programme, it was apparent that 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. That 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.

14. 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 15. The appellants in their submissions posit the following as the issues for determination:a.Whether the Honourable Tribunal has jurisdiction to hear and determine the instant Appeal.b.Whether the Appellants are eligible for admission to the Advocates’ Training Program (ATP).c.Whether the actions of the Respondent were ultra vires its statutory mandate;d.What is the effect of the Court of Appeal Decision in Nairobi Civil Appeal No. E472 of 2021; Kenya School of Law -vs- Otieno Richard Akomo & 41 Others to this case is.e.Who should bear the costs of the Appeal?

16. On the issue of Jurisdiction, the appellants submit that Legal Education progression is a matter falling under the mandate of the Interested Party which is established under the Legal Education Act, 2012 under which law the Tribunal is also established. Therefore, it is clear that the tribunal is empowered to deal with the appeal since by dint of Section 31 (1) of the Legal Education Act, 2012; it is entitled to deal with any matter under the Act.

17. They place reliance on amongst other cases, the case of Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR in which Justice Mativo held at paragraph 33 therein;“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.”

18. On the issue of whether the Appellants are eligible for admission to the Advocates’ Training Program (ATP). The appellants submit that they qualify for admission to the ATP Programme under Section 1(a) of the Second Schedule to the Kenya School of Law Act, 2012 since they hold Bachelor of Laws degrees from Mount Kenya University, a University duly accredited to offer a law degree in Kenya. They further assert that the provisions of rule 1(b) of the Second Schedule to the Kenya School of Law Act – which provision has been solely relied upon by the Respondent to deny the Appellants admission to the Kenya School of Law; are not applicable to the Appellants at all.

19. The 2nd Schedule Paragraphs (1) (a) provides as follows: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; and’iii.has sat and passed the pre-Bar examination set by the school.

20. They argue that where the word “or” as used in the KSL Act, 2012 at Schedule 2, between Section 1a and 1b, creates two limbs that should be interpreted and regarded disjunctively and in support of this they quote the Supreme Court Election Petition No. 1 of 2017; Raila Odinga & Another -vs- IEBC & 4 Others; where the Court while interpreting Section 83 of the Elections Act No. 24 of 2011 pronounced that;“The use of the word “or” clearly makes the two limbs disjunctive under our law. It is, therefore, important that, while interpreting Section 83 of our Elections Act, this distinction is borne in mind.”

21. They submit that since it has been proven that the Appellants have a Bachelor of Laws degree from an accredited university and satisfy the Respondent that they were in fact eligible for admission to the university, the enquiry should end there and the Respondent must admit them as required by section 17(2) of the Kenya School of Law Act 2012 as amended in 2014.

22. The Appellants further argue that they were qualified to join the University to study for their LLB causes by dint of the provisions of Paragraph 4 of the Third Schedule of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which they state, provides that the eligibility criteria for one to pursue a diploma in law is a mean grade of C Plain in KCSE or its equivalent with at least a C+ in English or Kiswahili. The 1st – 3rd Appellants clearly met these requirements before enrolling for the diploma course. On the other hand, the prerequisites for pursuing a degree in law at Paragraph 5 of the Regulations are among other alternatives; either a degree from a recognized university or a credit pass in a diploma in law examination from an accredited institution. These requirements they say were duly satisfied by the Appellants.

23. The Appellants thus argue that the Respondent by refusing to admit the Appellants to the ATP Programme impugned the validity of the Appellants' Bachelor of Laws (LLB) degrees and also purported to impose criteria for admission not known to law and contra statute, that the role of the Respondent is simply to consider the application and if satisfied that the application meets the admission criteria, to admit the Applicant to the school. It is not the role of the Respondent to purport to set the criteria for admission to the school, which they fault the Respondent for having done and they conclude that this action was ultra vires the statutory mandate conferred to it by the Kenya School of Law Act and it also usurped the powers of the Interested Party herein.

24. The Appellants explore the effect of the judgment in Nairobi Civil Appeal No. E472 of 2021; Kenya School of law -vs- Otieno Richard Akomo & 41 Other where the court decided that the interpretation of Schedule 2 of the Kenya School of Law Act, 1(a) and (b) should be done conjunctively, they argue that the interpretation was adopted by the Court of Appeal, per incuriam and ought to be disregarded by the Tribunal.

25. They submit that the Court of Appeal in COA E472 of 2021 acknowledged that a decision putting into perspective the interpretation or validity of a statute could not be applied retrospectively. The Court stated thus;“We are alive to the fact that the parties relied on the said regulations as they were then in force before the Court of Appeal declared the same to be invalid for want of compliance with the Statutory Instruments Act, 2013 on December 21,2021 in the case of Javan Kiche Otieno & Another vs. Council of LegalEducation [2021] eKLR. But we hasten to add that such invalidation could not apply retrospectively.”

26. They argue therefore that even if the Tribunal were to consider the Court of Appeal decision as good law, it cannot be binding retrospectively to actions which had already crystallized. They state that by the time the decision of the Court of Appeal in Otene Richard Akomo & 41 Others was delivered on 22nd October 2022; the action of the Appellants having enrolled for an LL.B degree and having graduated or just awaiting graduation in a month’s time had crystallized and it would therefore be a would be a violation of the Appellants’ legitimate expectation to deny them a chance of pursuing their education and career progression just because the interpretation of the law changed when they had already spent five or six years trying to attain a Bachelor of Laws and were just on the verge of graduating or had graduated already as for the case of the 2nd Appellant.

27. On the issue of who should bear the costs of the proceedings, the Appellants submit that Section 27 of the Civil Procedure Act, provides that costs follow event and the same can be granted at the discretion of the Court, which discretion should be exercised judiciously and that further, under Section 35(c) of the Legal Education Act, this Honourable Tribunal has the power to make any other order including an order for costs as it may deem just. The Appellants pray that they be awarded the costs of the appeal herein.

E. The Respondent’s submissions 28. The appellants in their submissions singled out the following as the issues for determination:a.Whether the Tribunal has jurisdiction over the matter.b.Whether the Respondent’s decision to refuse the Appellants' admission to the Advocates Training Programme was a breach of legitimate expectation.c.Whether Academic Progression is applicable.d.Whether the double standard in admission qualifications is discriminatory or justifiable.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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 the 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 set out in the second schedule of the Kenya School of Law Act, 2012.

34. The respondent cites the Court of appeal judgment in Kenya School of Law -v- Richard Otene Akomo and 41 others, E474 of 2021, where the court of appeal stated as follows:“For the avoidance of doubt, the basic requirements for KCSE under Section 16 and the second schedule of the KSL Act are for both applicants who studied in or out of Kenyan universities. The section should be read as a whole and not in bits and pieces and the three conditions which are precedent must be met before admission to KSL. Failure to meet the basic requirements of the qualifications in KCSE envisaged in the above section renders one’s application incompetent and hence ripe for rejection by the appellant. The regulations cannot override the provisions of an Act of parliament.”

35. 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.

36. 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.

37. 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.

38. 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 resorting to other rules of statutory interpretation.

39. 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.

40. 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.

F. Analysis and determination. 41. On the question of whether or not the Tribunal has jurisdiction to entertain the appeal, we note that the main contention in this appeal is the admission criteria to the two legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme. 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;...”

42. The Appellants seek by their appeal admission to the Advocates Training Programme based on section 1 (a) of the Kenya School of Law Act, 2012, and based on their admission into a university within Kenya, to study for their LLB degrees pursuant to their post KCSE qualifications. The Respondent rejects the Appellants' contention by positing that the Appellants seek entitlement to admission to the Advocates Training Programme by dint of academic progression which it asserts is not provided for in its establishing juridical regime.

43. 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 JJ.A 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 powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”

44. The issue on whether the Tribunal has jurisdiction to hear an appeal such as the instant one, has been taken up several times by the Respondent in the past, with the Tribunal holding consistently that it does indeed have jurisdiction by virtue of section 8 (3) (c) of the Legal Education Act, 2012 which 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.

45. The Tribunal finds that by delving into the matter of applicability or not of academic progression, it will be discharging its mandate under section 31 of the Legal Education Act, 2012. It, therefore, follows that the Tribunal has the requisite jurisdiction to inquire into the appeals before it by dint of section 31 (1) of the Act.

46. The Appellants’ main contention in the appeal is that they are entitled to admission to the Advocates Training Programme based on the fact that they hold Bachelor of Laws degrees from recognized universities in Kenya. Thus, they should 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.

47. 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.”

48. Prior to the pronouncement of the judgment of the Court of Appeal in E472 of 2021, Kenya School of Law -v- Richard Otene Akomo and 41 others, the Tribunal consistently adopted the interpretation that the conjunction ‘or’ between the two sections was elective and disjunctive and hence would hold that applicants to the Advocates Training Programme were only to be subjected to either part 1(a) or 1(b) of the schedule as opposed to both parts in consideration of their applications to the programme.

49. The Tribunal’s position has invariably bowed to the position adopted in the judgment 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 JJ.A 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 Kenyan University and those from a foreign University. We are of the view that with the use of 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.”

50. The Tribunal cannot deem the Court of Appeal’s position to be per incuriam as submitted by the Appellants, as the interpretation of the word “or” in the second schedule of the Kenya School of Law Act, was the crux of the matter in the appeal. It, therefore, follows that based on the conjunctive interpretation by the Court of Appeal, the Respondent’s decision to decline the admission of the Appellants to the Advocates Training Programme for the reason that the Appellants failed to meet the minimum required mean grade in their Kenya Certificate of Secondary Education examinations was a proper decision that must be upheld.

51. The decision of the Court of Appeal in the Otene case, affects the Appellants’ appeal presently because their appeal has been filed after the pronouncement of the said judgement. The fact of their having been admitted to the University well before the said decision cannot be said to be any crystallized action that bars or protects them from the effect of the Court of appeal’s interpretations and binding decision.

52. It is noted that the 3rd Respondent’s educational journey was quite different from his fellow appellants. He enrolled for a Diploma in Business Management at Mt Kenya University from where he graduated on 7th August 2015. He proceeded to enrol for a Bachelor’s Degree in Business Management (Banking and Finance Option) and graduated on 3rd August 2018. Would this amount to academic progression for the purposes of admission into the Advocates Training programme?

53. 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 JJ.A 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.”

54. The Appellants have argued that they may derive protection from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

55. The Interested Party had under its mandate under section 8(3) of the Legal Education Act, 2012, formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme, vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided as follows;“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.”

56. The legality of above said regulations on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013, was challenged 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.

57. 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 the Constitution. 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.”

58. The Court of appeal in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 34, 35 and 47 of the judgment upheld the decision of the trial judge and stated as follows;“34. 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.”

59. Thus, with the declaration of invalidity whose operative date is 30th January 2018 (being the date of the decision by the High Court as subsequently 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 invariably included the set out admission criterion to the various legal education programmes contained in them. The period in which the said regulations were operational before being rendered invalid was therefore 16th February 2016 to 30th January 2018.

60. The question that begs is whether the Appellants can derive benefit from the 2016 regulations. For this to happen, their admission to the university must fall within the period when the Rules were in operation and before the date of the declaration of their invalidity.

61. The 1st appellant secured admission to the Bachelor of Laws degree on the 21st of September 2018, the 2nd Appellant secured admission on 28th August 2018, the 3rd appellant on 3rd January 2019 and the 4th Appellant on 3rd May 2018. It is apparent that all their admissions to university were after the date of 30th January 2018 when the finding of invalidity of the regulations was pronounced by the trial court. The Tribunal, therefore, is bound to find that the declaration of invalidity adversely affects their eligibility to the Advocates Training Programme. The Appellants cannot derive benefit from the 2016 regulations.

62. Based on the foregoing, the Appellants' plea that their legitimate expectation to actualise their legal career has been thwarted by the Respondent cannot be sustained. In discussing legitimate expectation, H. W. R. Wade & C. F. Forsyth (Administrative Law, by H.W.R. Wade, C. F. 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…."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.”

G. Disposition. It is decreed:-a.That the appeal by Idriss Abdi Sheikh, Ibrahim Husssein Abdi, Maleha Ibrahim Hassan And Peter Kimina Mulwa against the decision of the Director/Chief Executive Officer of the Kenya School of Law dated 4th January 2023 for the 1st appellant and 5th January 2023 for the 2nd, 3rd and 4th appellants, rejecting their application for admission into the Advocates Training Programme during the 2023/2024 academic year is dismissed.b.That each party to bear 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 17TH 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)