[2022] KEHC 1655 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. E131 OF 2021

BETWEEN

STEPHEN KIPKEMEI RUTTO...................................................................................PETITIONER

AND

KENYA SCHOOL OF LAW................................................................................1ST RESPONDENT

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

JUDGMENT

THE PETITION

1. The Petitioner through a Petition dated 15th April 2021 seeks the following reliefs:-

a) A declaration that the 1st Respondent’s call for application is null and void to the extent that it provides the following requirement for graduates from Kenyan Universities “Attained a minimum of grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent” a requirement which is not anchored on any Act of Parliament and / or Regulations.

b) An Order of mandamus be and is hereby directed to the 1st Respondent to amend their call for Applications in accordance with the Kenya School of Law Act, No. 26 of 2012 and the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 (Revised 2016).

c) A declaration that the Petitioner’s right to legitimate expectation was violated by the 1st Respondent in the said call for Applications.

d) A declaration that the Petitioner is eligible for admission to the Advocates Training Programme (ATP) having met the requirements under the Second Schedule 1(a) for admission to the Diploma in Law (Para- Legal Studies) Programme, Second Schedule 2(d) for admission to the Undergraduate Degree Programme and Second Schedule a (1) (a) for admission to the Advocates Training Programme (ATP).

e) An Order of mandamus be and is hereby directed to the 1st Respondent compelling them to admit the Petitioner to the Advocates Training Programme (ATP) for the academic year 2021/ 2022

f) An Order of mandamus be and is hereby directed to the 2nd Respondent compelling them to administer the Bar Examinations to the Petitioner upon successful completion of the Advocates Training Programme at the Kenya School of Law.

g) A Declaration and Order that the Costs of this Petition be borne by the Respondents.

h) This Honourable Court be pleased to issue such orders as it may deem just and expedient for the ends of justice.

THE PETITIONER’S CASE

2. The Petitioner’s case is supported by his Affidavit sworn on 15th April 2021. He sat for his KCSE examinations in 2011 scored a xx (Plain). He subsequently enrolled for a Diploma in Law at Inoorero University –now International University of Professional Studies in May 2012 and was awarded a Diploma with a credit qualification upon completion. He was thereafter admitted to the Bachelor of Laws (LL.B) Programme at the University of Nairobi and conferred the said degree.

3. The 1st Respondent called for applications from both Kenyan and Foreign Universities for Admission into the Advocates Training Programme (ATP) for the 2021/2022 Academic year commencing 3rd May. 2021. Pursuant to the said call, The Petitioner submitted his application for consideration but was rejected on the basis that one of the requirements provided for under the eligibility criteria under the said call for applications which stipulates that one of the requirements that graduates from Kenyan Universities must satisfy for admission to the ATP Programme was “ Attained a minimum of grade B ( plain) in English Language or Kiswahili and a mean grade of C( plus) in the Kenya Certificate of Secondary Examination of its equivalent” (eligibility criteria).

4. The said requirement is not founded in the Kenya School of Law Act, or the Legal Education Act or any legislation and threatens to infringe on his fundamental rights and freedoms. It has further infringed on his legitimate expectation to continue in his career progression having been admitted for the programme accredited by the 2nd Respondent, the requirement for a C (Plus) in KCSE or its equivalent. Hence violated his rights guaranteed under Articles 27 and 43(1) (f) of the Constitution.

1ST RESPONDENT’S CASE

5. The 1st Respondent filed a Replying Affidavit by Fredrick Muhia sworn on 21st July 2021. He deponed that the advertisement conformed to the eligibility criteria for admission to the ATP as provided for in the Second Schedule of the KSL Act 2012 which the Petitioner’s application failed to meet. He further averred that the Petitioner is relying on their Diploma in Law qualifications to be admitted to the ATP, yet the KSL Act 2012 does not have a provision for academic Progression.

6. He maintained that it is bound by the provisions of the Kenya School of Law Act 2012 in determining the eligibility criteria of the ATP and cannot admit a student on any other criteria other than that set out in the said Act. It further notified the Petitioner that his application was unsuccessful and denied infringing his rights and fundamental freedoms.

7. According to him, it was not the intention of the legislators to allow Kenyan universities offering studies leading to the award of a degree in law set their individual admission qualifications but the qualifications for admission to foreign universities be set by law. Further, the requirements to the qualifications for admission to the ATP in foreign institutions were equally applicable to admission to local universities.

2ND RESPONDENT’S RESPONSE

8. The 2nd Respondent filed Replying Affidavit by Dr. Wambua Kituku sworn on 18th January 2022. He deposed that the Petitioner has failed to show or demonstrate any actions or omissions attributed to it resulting in violations of his constitutional rights. The petitioner also failed to demonstrate how he had been discriminated against by the 2nd Respondent. As such there was no reasonable cause of action as against it and the petition should be dismissed with costs to the 2nd Respondent.

ANALYSIS AND DETERMINATION

9. Having carefully considered the petition, the respondents’ responses, and parties’ submissions, I find from the same that only one issue arise for determination: -

A. WHETHER THE ELIGIBILITY CRITERIA IN THE ADVERTISEMENT IS UNLAWFUL HENCE VIOLATED THE PETITIONER’S CONSTITUTIONAL RIGHTS?

10. The Petitioner argued that the 1st Respondent’s advertisement setting the eligibility criteria in the advertisement as a minimum and a must qualification for all applicants is unlawful, unreasonable and unfounded in any of the enabling Acts regulating the practice of law in Kenya. According to him, the 1st Respondent in view of Section 16 of the Kenya School of Law Act, 2012 has chosen to apply only one of the qualifications in the said advertisement (Section (1) (b)) yet the Second Schedule creates two categories for admission into the ATP by use of the word “or” which is construed as disjunctive. He also argued that (1) (a) applies to direct entry and (1) (b) applies to indirect entry and while relying on Kihara Mercy Wairimu & 7 others v Kenya School of Law & 4 others [2019] eKLR, submitted that he fell under category (1) (a).

11. He relied on Republic v Kenya School of Law & another Ex parte Otene Richard Akomo & 41 others; Council of Legal Education (Interested Party) [2020] eKLR; Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission and 2 others [2017] eKLR and The legal Education Appeals Tribunal at Nairobi Consolidated appeals 8- 16 of 2021 on the use of the words “or”and “and”.

12. Having sat for KCSE, awarded Diploma with credit pass and conferred with LLB degree he argued that he had complied with the requirements to join ATP falling under section 16 as read with the second schedule paragraph (1) (a) and the decision to deny him a chance was therefore unlawful, unreasonable and based on misapplication of the law. Relying on Republic v Kenya School of Law and Another Exparte Otene Richard & 41 others (supra) he dismissed the proposition by the 1st Respondent that the law does not provide for academic progression.

13. Relying on EG & 7 others v Attorney General; DKM & 9 others ( Interested Parties); Katiba Institute & another (Amicus Curiae) [2019] eKLR and Republic v Kenya School of Law & another Ex Parte Otene Richard Akomo (supra) he argued that he had been subjected to discrimination by the 1st Respondent’s discriminatory and selective application of the law contrary to Article 27. Most of the students who graduated from Inoorero had been enrolled into ATP and were either currently undertaking their training or had completed awaiting admission.

14. According to him, the 1st Respondent’s actions were a denial of the right to education and right to information under Article 43 and 35(1) of the Constitution respectively. Also relying on Republic v Kenya School of Law Exparte Victor Mbeve Musinga [2019] eKLR, he urged this court to adopt the holding in the said case that the Respondents decision therein was tainted by an error of the law. Alternatively, the Respondent acted outside its powers; hence, the decision was ultravires, hence, tainted with illegality.

15. Relying on Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014] eKLR and Kihara Mercy Wairimu & 7 others v Kenya School of Law & 4 others (supra) he argued that the 1st Respondent admitted applicants from Inoorero University with similar qualifications as his. Therefore, relying on this fact he had a legitimate expectation that upon completion of his undergraduate studies he would be admitted to ATP.

16. Further Relying on Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others [2021] eKLR and Republic v Kenya School of Law exparte Victor Mbeve Musinga, he submitted that he obtained an LL.B degree. The University confirmed that at the point of admission he met the admission requirements and that he received instructions, satisfied the examiners, passed the examinations and was awarded a degree. He therefore had legitimate expectation he would be admitted to ATP. While relying on Section 27 of the Civil Procedure Act and the case of Peter Muriuki Ngure v Equity Bank (K) Ltd [2018] eKLR, he urged the Court to award him cost.

17. The 1st Respondent maintained that it did not breach the petitioner’s legitimate expectation as he did not meet the eligibility criteria for admission into the ATP. The petitioner could also not rely on 1(a) of the second schedule as the basis for his claim as he did not meet the minimum KCSE mean grades requirement of a C (plus) as was held in Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR. Further relying on Union of India v. Hindustan Development Corporationit argued that legitimate expectation should be justifiably legitimate and protectable.

18. It submitted that its hands were tied by statutory mandate and that the procedure employed to arrive at its decision was fair and just. While relying on Kenya Revenue Authority vs. Mengiya Salim Murgani Civil Appeal No. 108 of 2009, it argued that there was also no unreasonable delay in informing the petitioner of the decision.

19. It submitted that academic progression was not applicable because the KSL Act 2012 as amended by Statute Law Miscellaneous Amendments Act (No. 18 of 2014) does not provide for academic progression. It further relied on Peter Githaiga Munyeki v Kenya School of Law [2017] eKLRandRepublic v Kenya School of Law & Council of Legal Education Exparte Daniel Maura Marai [2017] eKLR to support that argument.

20. Relying on Section 31 (b) of the Interpretation and General Provisions Act Cap. 2 Laws of Kenya and the cases of Evans Odhiambo Kidero & 4 Others vs. Ferdinand Ndungu Waititu & 4 others [2014] eKLR; Victor Juma vs Kenya School of Law and Anor; and Peter Githaiga Munyeki v Kenya School of Law (supra) it argued that the Petitioner’s reliance on paragraphs 3, 4, and 5 of the Third Schedule of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was erroneous. The said regulations purported to provide different ATP admission criteria from those set in the KSL Act.

21. Relying on Susan Rokih v Joyce Kandie & 6 others [2018] eKLR and Jonathan Munene v Attorney General & 2others; Kenya Judges Welfare Association( Interested Party)[2021] eKLR, the 2nd Respondent argued that the petition does not disclose any reasonable cause of action against it and as such should be dismissed. Further relying on Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya and the case of Peter Muriuki Ngure v Equity Bank (K) Ltd (2018)it urged the court to award it costs.

22. Section 16 of the Kenya School of Law (KSL) Act, No. 26 of 2012 is the law applicable in this scenario. It provides 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 the course.”

23. The Second schedule provides as follows:-

“The Admission requirements will be as 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; 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.”

24. The Petitioner’s main contention is that the eligibility criteria set out in the advertisement calling for applications for admission into the ATP is unlawful, unreasonable and unfounded in law. He has argued that the 1st Respondent has only taken into consideration one limb of the requirements set out in the Second Schedule and left out the other yet the Kenya School of Law Act is categorical and deliberate in using the word “or”. The 1st Respondent has argued that the eligibility criteria conforms to the KSL Act as the law in place for admission into the ATP. It has further argued that even if this court sided with the petitioner that he falls under category (1) (a), the Petitioner still does not qualify as he did not meet the minimum grade of C (plus) in KCSE.

25. Having considered the provisions of the KSL Act and the requirements for admission set out therein, I do agree with the petitioner that the language of the Act has employed the use of the word “or” which means alternative or either and which is disjunctive rather than conjunctive. This was also agreed by the learned judges in the cases of Kihara Mercy Wairimu & 7 others v Kenya School of Law & 4 others [2019] eKLR; Republic v Kenya School of Law & another Exparte Otene Richard Akomo & 41 others; Council of Legal Education (Interested Party) [2020] eKLR;and,Republic v Kenya School of Law [2019] eKLR.

26. The Petitioner has argued that he falls under category (1) (a) of the second schedule and therefore the said requirements apply. Chacha J. in Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR distinguished the two categories and indicated that the first category applies to students from local universities while the second category (1) (b) applies to those students who obtained LLB degrees from outside Kenya. By virtue of that interpretation I do agree that the Petitioner falls under category (1) (a).

27. The 1st Respondent has argued that if this Court agrees with the petitioner’s position, he still does not qualify. According the 1st Respondent, even though the said section is silent on the KCSE grades, it would be absurd to state that the said grades are immaterial. Further, that the criteria set out in the category (1) (b) is also applicable to the category (1) (a) and the fact that one was conferred the law degree does not mean that the KCSE qualifications are not considered. The same it argues in any case would be discriminatory against the students who obtained their LLB degrees from outside Kenya and that it was not the intention of the legislation that the Kenyan Universities should each set their own criteria for admission into the undergraduate LLB degree. This position is echoed in Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR; Republic v Kenya School of Law, Exparte Daniel Mwaura Marai [2017] eKLR and Victor Juma v Kenya School of Law; Council of Legal Education (Interested Party) [2020] eKLR.

28. The 1st Respondent has also argued that the provisions of the Council of Legal Education (Accreditation of Legal Education Institution) Regulations, 2009 (Rev. 2016) relied upon by the Petitioner to advance his case that he is qualified to be admitted into ATP is inconsistent with the Kenya School of Law Act, 2012 and therefore cannot be relied upon and cannot override the Kenya School of Law Act. I agree with the said position concerning the subsidiary legislation being inconsistent with the substantive Act. The substantive Act supersedes the regulations by virtue of the hierarchy of norms as was held in Republic v Kenya School of Law, Exparte Daniel Mwaura Marai (supra); Republic v Kenya School of Law [2019] eKLR; and Evans Odhiambo Kidero & 4 others vs Ferdinand Ndungu Waititu & 4 others [2014] eKLR.

29. Mativo J. however in agreeing with the above stated position, in Republic v Kenya School of Law and Another Exparte Otene Richard & 41 others (supra) and Republic v Kenya School of Law & another exparte Kithinji Maseka Somo & another [2019]eKLR, he held that the doctrine of implied repeal applies in this circumstance. In the said cases, he dismissed the averment that the KSL Act does not provide for academic progression. He further stated that if the said Act was intended in making the qualifications in both categories similar it should have expressly stated so. The same position was upheld by Mrima J, in Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority [2021] eKLR who agreed with the holding by Mativo. J. and further stated that:-

“the two categories are different and ought to be treated as such. He further opined that category (1) (a) dealt with those persons who joined a recognized university in Kenya and obtained or became eligible for conferment of the Bachelor of Laws (LLB) degree of that university. Mostly, such persons would be those who studied under the 7-4-3-3 or 8-4-4 systems in Kenya and qualified to join the universities and were eligible for and were admitted to pursue studies towards the conferment of the Bachelor of laws (LLB) degrees.”

30. Based on the above cited authorities, on the regulations being inconsistent with the Kenya School of Law Act, 2012 and the applicability of the second schedule (1) (a) , I agree with Mativo. J and Mrima J that the two categories are not similar and that was deliberate. The 1st Respondent’s contention is that the said regulations are inconsistent in so far as they provide for the admission qualifications into the ATP programme. Going by Mativo. J.’s holding and as supported by Mrima J. that said section is repealed only to the extent that it is inconsistent with the KSL Act. I also agree with the said learned Judges. In my view, the Petitioner herein falls under category (1) (a) of the second schedule to the KSL Act, 2012 and therefore only that section apply.

31. The question then one should consider is, has the petitioner complied with the qualifications set out under (1) (a) of the second schedule to the KSL Act, 2012. In my view, the said section does not state the KCSE grades required and if indeed it was meant that the qualifications should be similar to those in (1) (b), it should have expressly stated so as discussed above. The only requirement as clearly are set is out that the Petitioner, passed the relevant examination of a recognized university in Kenya and was conferred the Bachelor of Laws degree. The Petitioner therefore qualified to be admitted to the ATP.

32. On legitimate expectation, the Petitioner has argued that the 1st Respondent has breached his legitimate expectation as he expected that he would be admitted into the programme once he had been conferred the LLB degree like other students. Further, the Petitioner was admitted to the University of Nairobi, passed the examinations and awarded the Law degree, satisfied or complied with the qualifications set out under 1(a) of the Second Schedule of KSL Act 2012. The 1st Respondent dismissed that claim and clung onto the fact that its statutory bound to observe the provisions of the Kenya School of Law Act hence has not breached the legitimate expectation.

33. The principles on legitimate expectation were elaborated in Royal Media Services Ltd and 5 others (Petition No. 14 of 2014); in that, there must be an express, clear and unambiguous promise given by a public authority; the expectation itself must be reasonable; the representation must be one which was competent and lawful for the decision maker to make; and there cannot be a legitimate expectation against clear provisions of the law or the Constitution. I do agree that the Petitioner’s legitimate expectation has been breached.

34. The Petitioner also argued that he had been discriminated against by the 1st Respondent and that his rights under Articles 27, 43(1) (f), 35(2), 47, 48 and 50 of the Constitution were violated. Pursuant to the foregoing, I agree that his rights under Articles 27, 43(1) (f) and 47 of the Constitution have been violated.

35. The 2nd Respondent has all along maintained that the Petition should be dismissed as there is no reasonable cause of action against it. Rule 5 (b) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013(Mutunga Rules) provides that a petition shall not be defeated by reason of misjoinder of parties, and the court may in every proceeding deal with the mater in dispute. Article 23 (1) of the Constitution mandates the High court to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Sub Article (3) provides for the reliefs that the court may grant.

36. In view of the aforesaid and having found that the eligibility criteria does not conform to the requirements set out in the Kenya School of Law Act, 2012, I agree with the Petitioner’s contention that the criteria in the advertisements is unlawful, and violates Petitioner’s constitutional rights as pleaded in the Petition.

37. In view of the conclusion that I have come to, I find merit in the Petitioner’s Petition and proceed to grant the following orders:-

a) A declaration be and is hereby issued that the1st Respondent’s call for application is null and void to the extent that it provides the following requirement for graduates from Kenyan Universities “Attained a minimum of grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent” a requirement which is not anchored on any Act of Parliament and / or Regulations.

b)An Order of mandamus be and is hereby issued that the 1st Respondent to amend their call for Applications in accordance with the Kenya School of Law Act, No. 26 of 2012 and the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009 (Revised 2016).

c)A declaration be and is hereby issued that the Petitioner’s right to legitimate expectation was violated by the 1st Respondent in the said call for Applications.

d)A declaration be and is hereby issued that the Petitioner is eligible for admission to the Advocates Training Programme (ATP) having met the requirements under the Second Schedule 1(a) for admission to the Diploma in Law (Para- Legal Studies) Programme, Second Schedule 2(d) for admission to the Undergraduate Degree Programme and Second Schedule (1) (a) for admission to the Advocates Training Programme (ATP).

e)An Order of mandamus be and is hereby issued to the 1st Respondent compelling them to admit the Petitioner to the Advocates Training Programme (ATP) for the academic year 2021/ 2022

f)An Order of mandamus be and is hereby issued to the 2nd Respondent compelling them to administer the Bar Examinations to the Petitioner upon successful completion of the Advocates Training Programme at the Kenya School of Law.

g)Costs of this Petition be awarded to the Petitioner to be borne by the Respondents.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF MARCH, 2022.

......................

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA