[2023] KELEAT 186 (KLR)

Situma v Kenya School of Law (Tribunal Case E012 of 2023) [2023] KELEAT 186 (KLR) (Civ) (24 March 2023) (Judgment)

Neutral citation: [2023] KELEAT 186 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Tribunal Case E012 of 2023

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

March 24, 2023

Between

Eliud Kubwa Situma

Appellant

and

Kenya School of Law

Respondent

Judgment

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 14th January 2023 rejecting admission into the Advocates Training Programme during the 2023/2024 academic year)Judgement of the Tribunal) A. Background 1. The Appellant’s appeal can be gleaned from the Memorandum of Appeal dated 25th January 2023. The Appellant challenges the decision of the Respondent made on 14th January 2023 relating to his application for enrolment into the Advocates Training Program based on 4 Grounds contained therein. He accuses the Respondent of arriving at the decision by considering irrelevant facts while leaving out the relevant ones, and arriving at this decision in a cursory and perfunctory manner without careful consideration of the relevant statutory provisions governing his admission.

B. The Appellant’s Case 2. The Appellant sat for his Kenya Certificate of Secondary Education Examination in the year 1999 at Malava Boys Secondary School and attained a Mean Grade of B (Minus) with Grade B (Minus) in English and B (Minus) in Kiswahili. He attached a copy of his said KCSE Certificate to support this position.

3. With the foregoing qualification, he enrolled at Kenyatta University to pursue a Bachelor of Education (Arts) degree with a bias in English and Literature where he graduated on 14th October 2005. He attached copies of his transcript and his Degree Certificate.

4. The Appellant thereafter secured admission to the University of Nairobi’s Master’s degree program in Computer Studies and graduated with a Master of Arts (in Communication Studies) on 19th December 2008.

5. The Appellant decided to pursue a degree in law, and from his academic transcripts, it is apparent that he was admitted to the University of Nairobi on the 10th of September 2018. He graduated on 16th December 2022.

6. Here, therefore, applied to the Respondent’s Advocates Training Program for the 2023/2024 Academic year.

7. The Appellant asserts that his Application to join the Advocates Training Program was rejected by the Respondent on account of not meeting the criteria for eligibility.

8. The Appellant is desirous of joining the 2023/2024 Admission to the Respondent.

C. Reliefs sought from the Tribunal: 9. The Appellant, therefore, seeks the following reliefs from this Tribunal:a.That the Respondent’s decision made on 14th January 2023 in relation to the appellant’s application referenced KSL/ATP/AAD153 for enrolment into the ATP be set aside.b.A declaration that the appellant qualifies for admission into the ATP based on the documents he presented to the Respondent via application referenced KSL/ATP/AAD153. c.An order directing the Respondent to admit the appellant forthwith in the ATP for the academic year 2023/2024. d.The costs of this appeal be borne by the Respondente.That the Honorable Tribunal grants any other orders deemed fit to be granted

D. The Respondent’s position on the Appeal 10. The Respondent opposed the Appeal, vide a Replying Affidavit sworn on 2nd February 2023 by the institution’s Principal Officer, Academic Services, 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.

11. The Respondent contended that the Tribunal did not have jurisdiction to deal with the matters that were being canvassed in the Appeal as the Tribunal’s jurisdiction is limited to matters that relate to the Legal Education Act 2012.

12. The Respondent further argued 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 contended that upon the Appellant making his application to the Advocates Training Programme, he was found not to be eligible per 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.

14. 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 Appellant did not have.

15. The Respondent further states that the Appellant is 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.

16. The Respondent insisted that it is bound by the provisions of the Kenya School of Law Act in determining the eligibility for the Advocates Training Program and thus it could not admit a student based on any other criteria.

17. That the Appellant was notified of the Appellant that his application for admission to the Advocates Training Program was not successful.

18. The Respondent further asserted that the Court of Appeal has previously supported the position they took and the Appellant could not allege that the Respondent had disregarded the law.

19. The Respondent’s position on statutory interpretation was that there is a need to adhere to the ordinary meaning of the words used and to the grammatical construction, unless this is at variance with the intention of the legislature, or leads to a manifest absurdity or repugnance.

E. The Appellant’s submissions 20. The Appellant filed submissions dated 14th February 2023.

21. He advanced his position on the appeal in three parts, namely Admission Criteria, Legal Education, and Absurdity.

22. On Admission Criteria, the Appellant submits that Regulations 5(1)(c) of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 provided that a degree from a recognised University as one of the means of gaining admission to the Bachelor of Laws degree programme. That although the regulations were declared unconstitutional on 21st December 2021, the declaration did not affect crystallized actions.

23. He urged that the declaration of invalidity was made in December 2021 which was long after he had obtained admission to the LL.B degree on 10th September 2018 and not a diploma in law as erroneously cited by the Respondent in paragraph 14 of the Respondent’s replying affidavit. He, therefore, submitted that the invalidation of the said regulations could therefore not apply retrospectively.

24. The Appellant relied on Section 16 of the Kenya School of Law Act, 2012 which highlights the admission requirements as follows:A person shall not qualify for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course.

25. That Paragraph 1 of the said Second Schedule provides as follows: A person shall be admitted to the School if—a.having passed the relevant examination of any recognized university in Kenya holds, or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university; 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; oriii.has sat and passed the pre-Bar examination set by the school

26. The Appellant submits that the real interpretation of the foregoing Paragraph was that the admission criteria are in 2 distinct categories, A and B. He states that holders of LL.B degrees from any recognized University in Kenya have an automatic right of admission by virtue of being conferred or having become eligible for the conferment of the Bachelor of Laws (LL.B) degree. That those who fall within category A do not require any other qualification to be eligible for admission.

27. That under Category B, holders of LL.B degrees from others Universities not recognised in Kenya must in addition possess qualifications under Paragraph 1 (b) (i) & (ii) & (iii) of the Second Schedule to the KSL Act.

28. The Appellant submits that the two categories are distinct and the usage of the word OR after the Paragraph a of the 2nd Schedule of the KSL Act makes it disjunctive and not conjunctive.

29. On this, the Appellant relied on the case of Adrian Kamotho Njenga v Kenya School of Law [2017] eKLR where it was held that Paragraph 1(a) did not prescribe any university entry requirements for the reason that entry requirements for LL.B programs in local universities are known and no one can be admitted to undertake this degree without meeting the basic KCSE grades.

30. The Appellant also relied on the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & others [2017] eKLR, Bernard James Ndeda & 6 others v Magistrates and Judges Vetting Board & 2 others and Edward Njoroge Mwangi –vs- Francis Muriuki Muraguri & Another where the disjunctive interpretation was given to the word “or”.

31. The Appellant submitted that by meeting the LL.B requirement, he falls in Category A and he ought to be admitted to the ATP.

32. On legal education, the Appellant submits that the Respondent is a post-graduate institution and does not offer undergraduate studies and cannot admit anyone unless they have an LL.B degree and that it is a matter of judicial notice that those who seek admission to ATP may have studied in any University in the world.

33. That the law expressly recognises the academic progression of candidates, and that consideration must be taken of the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 in locating the intention of Parliament in enacting Paragraph 1a of the2nd Schedule to the KSL Act.

34. On absurdity, the Appellant submits that he is a holder of LL.B degree, a Masters degree and a PhD and not diploma in law as alleged by the Respondent in Paragraph 14 of the Replying Affidavit, that the Court of Appeal decision referred to by the Respondent was anchored on the strength that those to be admitted to ATP should endeavour not to bastardize the legal profession.

35. He submits that as a holder of a PhD, Masters and 2 Bachelor degrees, he would only enrich the profession and not bastardize it, and there shall be value in admitting him.

36. The Appellant did not address the Tribunal on the objection to its jurisdiction.

37. He, therefore, sought that the Tribunal allows his appeal as sought.

F. The Respondent’s submissions** 38. The Respondent filed written submissions dated 20th February 2023. It submitted that the legal profession is one of the oldest and most prestigious ones, but that it has fallen into disrepute as the quality of Advocates being produced has become wanting and the Respondent and Interested Party have been held accountable for this. That in order to uphold the standards of the Training, the Respondent must comply with the provisions of the KSL Act.

39. The Respondent identified 4 main issues of determination-1. Whether the Tribunal has jurisdiction;2. Whether the Respondent’s decision to refuse the Appellant admission into ATP was a breach of legitimate expectation;3. whether academic progression is applicable; and,4. Whether the double standard on admission qualifications would be discriminatory or justifiable.

40. 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.

41. The Respondent submits that this 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.

42. The respondent submits that the Tribunal is a creature of the Act that 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.

43. 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.

44. It is therefore the Respondent’s submission that this Tribunal does not have jurisdiction over a matter that is outside the scope of the Legal Education Act.

45. That the process of admission to the ATP is exclusively provided for under Sections 16 and 17 of the KSL Act which the Appellant complied with, thus he could not invoke the jurisdiction of this Tribunal.

46. The Respondent relied on the case of Kenya Pipeline Company Limited vs Hyosung Ebara Company Limited & 2 Others where the restriction of a Court’s power was discussed.

47. 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.

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

49. That in this instance, the 2nd Schedule of the Act can be interpreted in two ways, either disjunctive or conjunctive. They relied on the case of Victor Mbeve Musinga vs Kenya School of Law.

50. The Respondent urges this Tribunal to adopt the interpretation that would make statutory provisions on admission not only operative and workable but also operative in a just and reasonable manner.

51. That the Court of Appeal in the case of Engineers Board of Kenya vs Jesse Waweru Wahome & Others held that statutory interpretation should be holistic.

52. The Respondent submits that if the provisions were to be interpreted the provisions as suggested by the Appellant, then all students who join any Kenyan University irrespective of their grades will be allowed to join ATP, and Secondary school qualifications would not matter.

53. 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 a 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.

54. The Respondent cited the case of Peter Githaiga Munyeki vs Kenya School of Law where the Court applied a holistic interpretation of the Act. They also relied on Kenya School of Law vs Akomo & 41 others 2022 where the Court of Appeal clarified that the requirements for KCSE under the Act are for both applicants in Kenyan universities and those universities outside Kenya, and thus there was no legitimate expectation.

55. 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.

56. On the issue of academic progression the Respondent submits that the appellant does 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.

57. The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellant’s argument that because he obtained his LLB degree from a University within Kenya, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous.

58. 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.

59. Finally, on academic progression, the Respondent submitted that the law does not provide for academic progression and that the decision in Kenya School of Law vs Richard Otene was for joining University to pursue legal education but not admission to ATP.

60. The Respondent thus submitted that it could not act beyond statute by admitting the Appellant.

G. Analysis and determination. 61. On the jurisdiction to entertain the appeals, the primary relief by the appellant 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 appellant asserted entitlement to admission to the Advocates Training Programme by dint of statutory interpretation and academic progression which it denies is not provided for in its establishing juridical regime.

62. 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 to 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.”

63. The Tribunal has consistently upheld this position in its various pronouncements and suggests that this argument is now settled, unless, of course, there be an order to the contrary from a superior court. 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.

64. 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.

65. The admission criteria to the two 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;...”

66. 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 Legal Education Act.

67. The Respondent and Interested Party are common litigants in proceedings of this nature before the tribunal and have constantly raised the issue of lack of jurisdiction with the Tribunal consistently ruling that it indeed has jurisdiction. We respectfully suggest that this particular issue is now settled and ought not to be raised in every subsequent appeal from the same facts, unless, of course, there is a finding to the contrary from a superior court on appeal.

68. As regards the appeals, the appellant’s primary contention was that he was 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.

69. The Tribunal had in its judgments prior to October 2022, held that the word ‘or’ between the two sections is an elective and that a disjunctive interpretation ought to be adopted. Hence, it would previously hold that 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.

70. The tribunal has had to shift its position based on a superior court’s holding in 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 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.”

71. Based on the conjunctive interpretation adopted by the Court of Appeal, the Respondent’s decision of declining admission to the Advocates Training Programme, due to failure to meet the criteria required, would be upheld as the Appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied in Section 1b of the second schedule of the KSL Act, 2012.

72. The Appellant attained Grade B-(Minus) in English and B-(Minus) in Kiswahili languages respectively which were below the stipulated minimum.

73. Tribunal will proceed to consider the appeal on account of the extent to which the appellant may derive benefit from the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

74. 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.”

75. The legality and enforceability of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were 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, 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 of January 2018 held 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.”

76. 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 admission criteria to the various legal education programmes contained therein.

77. It is noted that the court of appeal whilst affirming the declaration of invalidity of the 2016 regulations confirmed that the declaration would not apply retrospectively to crystalized actions. In the Court of Appeal decision 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 said of the regulations;“35. 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.”

78. In this appeal, for the action to have crystalized, it requires to have been performed before the declaration of the invalidity of the 2016 regulations was pronounced by the superior court on the 30th of January 2018.

79. The Appellant secured admission to the Bachelor of Laws degree on the 10th of September 2018 which was after the date of the declaration of invalidity of the regulations by the superior court.

80. The Tribunal, therefore, finds that the declaration adversely affects his eligibility for the Advocates Training Programme.

81. The tribunal takes note of the fact that the Appellant put in great effort, time and resources in pursuing various degrees to Masters and even PhD levels successfully, he makes a sound argument that with his qualifications he would certainly not bastardize the Legal profession, and we agree with him to that extent.

82. We must then ask ourselves whether the Appellant 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.

83. The Appellant has taken up the point that his commendable academic journey should be taken into consideration. The tribunal however notes that the law on progression as enacted in section 8(3)(c) of the Legal Education Act, 2012 confines it to progression in the field of law. The said issue was 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 asprogression 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.”

84. Legitimate expectation cannot accrue if the action or benefit expected would be a breach of the law. Discussing legitimate expectation, H. W. R. Wade & C. F. Forsyth (Administrative Law, byH.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.” (Emphasis added)

E. Disposition. It Is Decreed:-a. That the appeal by Dr Eliud Kubwa Situma as against the Respondent’s decisions 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 14th January 2023 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… 24th … day of … March … 2023. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSON EUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBER STEPHEN 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 TRIBUNAL

DATE: 2023-03-24 23:36:30+03The Judiciary of Kenya