[2023] KELEAT 378 (KLR)

Tarcius v Kenya School of Law & another (Appeal E019 of 2023) [2023] KELEAT 378 (KLR) (9 June 2023) (Judgment)

Neutral citation: [2023] KELEAT 378 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E019 of 2023

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

June 9, 2023

Between

Nduru Louis Tarcius M

Appellant

and

Kenya School of Law

1st Respondent

Council of Legal Education

2nd Respondent

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 22nd of February 2023 rejecting admission into the Advocates Training Programme during the 2023/2024 academic year)

Judgment

A. Background 1. The Appellant undertook both an undergraduate and Master’s degree in law. He studied, qualified and obtained a Bachelor of Laws from Busoga University and a Master’s degree from The Nairobi of University.

2. He applied for admission to the Kenya School of Law, the 1st Respondent, to undertake the Advocates Training programme. Consequently, he was admitted for the 2022/2023 academic year.

3. The Appellant paid the requisite fees and was issued with an identification card. He attended classes and other academic programmes offered by the 1st Respondent.

4. Vide a letter dated 22/2/2023, and at the behest and advise of the 2nd Respondent, the 1st Respondent informed the Appellant that he did not meet the admission criteria for the Advocates Training Programme and revoked his admission to the programme.

B. The Appeal 5. The Appellant filed an Appeal dated 27th February 2023, the Appeal is premised on the following grounds:

6. That the impugned decision was administrative in nature and that it was contrary to the Constitution, the Fair Administrative Action Act and principles of natural justice.

7. That no prior communication or notice was given.

8. That the Appellant was not heard nor provided with materials, evidence or information the Respondent used to make the decision.

9. That the said letter was final and never gave the Appellant an option for Appeal.

10. That the Appellant was not given a chance for cross-examination.

11. That the 1st Respondent unlawfully delegated its mandate to the 2nd Respondent.

12. That the decision was unreasonable.

13. That the decision violated the Appellant’s right to legitimate expectation.

14. Reliefs sought:An order to set aside the 1st Respondent’s decision contained in the letter dated 22nd February 2023. a.Admission to Kenya School of Law be reinstated forthwith.b.Costs of the appeal

C. The 1st Respondent’s position on the Appeal 15. The 1st Respondent contends that its primary responsibility is to provide training for individuals in accordance with the Advocates Act (Cap 16), through the Advocates Training Programme. That matters relating to admission into the 1st Respondent's Advocates Training Programme are exclusively governed by section 16 of the Kenya School of Law Act No. 26 of 2012.

16. That similarly, the jurisdiction of the Honourable Tribunal is limited to matters concerning the Legal Education Act 2012.

17. Further, that as per the establishing Act, the Kenya School of Law Act, the 1st Respondent is obligated to review applications for admission to the Advocates Training Programme and, upon confirming the applicant's qualification, admit them to the School.

18. That when the Appellant applied for the Advocates Training Programme, they were deemed eligible under the Council of Legal Education Act of 1995, provided they took and passed the Pre-bar examination.

19. That the Council of Legal Education explained the Appellant's pathway to the Advocates Training Programme vide a letter dated 13th January 2022.

20. That the Appellant received an automated letter of admission in error.

21. That despite not presenting their pre-bar results, the Appellant proceeded to register and erroneously claimed to be a student of the 1st Respondent.

22. That the Appellant has not provided an explanation for their failure to sit for the pre-bar examination upon discovering the error, the 1st Respondent notified the Appellant that his admission was revoked because it was void ab initio.

23. The 1st Respondent believes that the Appellant is attempting to benefit from deliberately withholding a crucial fact, thus lacking integrity. That the Appellant, having received legal education, cannot claim ignorance regarding the requirement to comply with statutory provisions. Further, that the Appellant had a duty to disclose the error or oversight in their admission.

24. That allowing the Appellant to sit for the Bar examination would violate the 1st Respondent's mandate. That it is widely known that the 1st Respondent diligently screens candidates for the Advocates Training Programme, ensuring that only qualified individuals are admitted. Therefore, the Appellant had no reason to assume that the rules would not apply to them.

D. The 2nd Respondent’s position on the Appeal 25. The 2nd Respondent contends that it is statutorily mandated through the Legal Education Act, No. 27 of 2012, at Section 8, to regulate legal education and training in Kenya and to administer such professional examinations as may be prescribed under Section 13 of the Advocates Act.

26. That the 2nd Respondent is further mandated under Section 8 (3) (g) of the Legal Education Act, No. 27 of 2012 to advise the Government on the standardization, recognition, and equation of legal education qualifications awarded by foreign institutions.

27. Further, the 2nd Respondent's obligation is to issue clearance certificates to students who have obtained their Law Degree qualification from foreign universities.

28. The 2nd Respondent contends that it advised the Appellant that the requirement to undertake the Pre- Bar is a mandatory requirement for all persons with foreign LL.B qualifications seeking admission to the ATP as per Adrian Kamotho Njenga vs Kenya School of Law Petition 398 of 2017.

29. That the Appellant having been advised accordingly was required to undertake the Pre-Bar examination as advised before getting enrolled for the Advocates Training Programme.

30. That in any event where the 2nd Respondent requires a student to undertake a Pre-Bar examination, it expressly indicates in their letter to the candidate as was rightfully done to the Appellant. That it is in the public interest that the Appellant complies with the dictates of the Legal Education Act, 2012.

31. The 2nd Respondent further contends that the Courts are constrained by the doctrine of legality, that is, to exercise only those powers bestowed upon them by the law. That the concomitant obligation to uphold the rule of law and, with it, the doctrine of legality, is self-evident. In this regard, the 2nd Respondent is constrained by that doctrine to enforce the law by ensuring that its decisions conform to the relevant provisions of the law governing examinations and which candidates qualify to sit for what examination. That the 2nd Respondent's actions conform to the doctrine of legality.

32. That the 2nd Respondent has not only a statutory duty but also a moral duty to uphold the law and to ensure due compliance with the Regulations governing the examinations. It would in general, be wrong to whittle away the obligation of the 2nd Respondent as a public body to uphold Section 3 of the Legal Education Act, 2012.

33. The 2nd Respondent believes that the Appellant's request for a lenient approach could be an open invitation to the 2nd Respondent to act against its legal mandate which poses a real danger of compromising both the professional ability and competence of persons released to the public to practice law.

34. The 2nd Respondent contends that academic decisions are to be distinguished from the administrative decisions of the academic bodies. That the court should be slow to interfere and should only seldom interfere in academic decisions of academic bodies as was decided in the Indian case of Maharashtra State Board - VS- Kurmarsheth & Others (1985) CLR 1083

35. That the decision by the 2nd Respondent has a rational connection with the desired purpose, which is to ensure high professional standards.

36. That it will be wholly wrong for the court to make a pedantic, and purely idealistic approach to problems of this nature, isolated from the actual realities and grassroots problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one, were to be propounded.

37. The 2nd Respondent contends that Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. That these Articles were not breached as it was noted that action was taken to communicate to the Appellant on time as demonstrated.

38. The 2nd Respondent argues that it follows that statutory words override an expectation howsoever founded. Thus, a decision maker cannot be required to act against clear provisions of a statute just to meet one's expectations otherwise his decision would be illegal and a violation of the principle of legality, a key principle in the rule of law. There cannot be legitimate expectations against the clear provisions of a statute. The 2nd Respondent argues that the relevant provisions of the law cited clearly show that the 2nd Respondent's decision is grounded on the relevant statutory provisions.

39. The 2nd Respondent argues that if the prayers sought are granted it will dilute the quality of legal training in Kenya leading to the production of half-baked Advocates.

E. The Appellant’s Supplementary Affidavit 40. The Appellant wished to clarify to the Tribunal on some facts he stated were pertinent to the present petition, as follows:

41. On 13th January 2022, he received a recognition and approval of foreign qualifications letter Ref No. CLE/RA/12 Vol.V (26) from the 2nd Respondent, commonly referred to as the "Clearance Letter".

42. That the clearance letter's concluding paragraph specified that "in respect to the pre-bar, the final decision rests with the Kenya School of Law, which is the sole authority on admission to the Advocate Training Program (ATP) and guided by the cited decision."

43. That upon receiving the clearance letter from the 2nd Respondent, the following day, 14th January 2022, he approached the 1st Respondent and had a fruitful discussion in the academic office a few minutes before noon.

44. He also presented his original academic certificates, namely, secondary certificate, undergraduate university transcript, undergraduate university certificate, Master of Laws transcript, Master of Laws Certificates and the CLE clearance letter. The 1st Respondent recommended that he proceed and apply for ATP before the application window closes on 30/01/2022.

45. That on 26th January 2022, he submitted an online application with reference KSL/ATP/AAB037 for the Advocate Training Program and on 11th February 2022, he received an email stating that his application has been approved.

46. That on 5th April 2022, he began the academic calendar for the ATP course year 2022/2023 as stipulated in his admission letter. Throughout this period, he attended lectures, undertook coursework, and completed project work. That before his admission and registration he paid Kshs 110,000/= which is about 75% of the total amount of 145,000/= school fees and later additional Kshs of 35,000/= in installments.

47. The Appellant further contends that as part of the ATP curriculum requirements, he sat for oral and project work exams, which accounted for 40% of the final mark. He obtained a score of 26% out of 40% in the oral and project work component. The remaining 60% of the final mark would be determined by the Bar Examinations scheduled for March 2023.

48. That on 1st February 2023, he lodged his application to the 2nd Respondent for registration to sit for the Bar Examinations, a prerequisite for admission to the Roll of Advocates. The Appellant contends that surprisingly, without providing any discernible reason, his application for registration was rejected.

49. The Appellant argues that the decision to demand a pre-bar examination exemption letter as a condition precedent to registration is ultra vires the authority of the 2nd Respondent. That such a requirement infringes upon the exclusive jurisdiction vested in the 1st Respondent to admit ATP students.

50. That the revocation of his admission by the 1st Respondent on 22nd February 2023 was not only arbitrary but also in flagrant violation of the principles of natural justice, fair administrative action, and my right to a fair hearing.

51. The Appellant argues that he has perused the relevant legal framework and applicable legislation governing legal education and admission to the Bar. That nowhere in these enactments is it provided that candidates must sit for pre-bar examinations as a prerequisite to taking the Bar Examinations. That, therefore, the actions and decisions of both Respondents, as narrated, contravene his constitutional rights enshrined in Articles 24, 27, 43(f), and 47 of the Constitution of Kenya 2010.

52. Consequently, his rights have been abrogated, restricted, and wantonly taken away in an arbitrary and whimsical manner.

53. It is his prayer to this honorable Tribunal that the revocation of his admission by the 1st Respondent be declared unlawful and his status as a bona fide student be affirmed forthwith.

F. The 1st Respondent’s submissions 54. On whether the Tribunal has jurisdiction over the matter the 1st Respondent submits that the Legal Education Appeals Tribunal 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 Act. It contends that the matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act.

55. The 1st 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.

56. The 1st 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.

57. The Respondent submits that Section 30 flows from section 29 which established the Legal Education Appeals Tribunal, 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.

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

59. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The 1st Respondent submits that the Appellant did not meet the admission criteria.

60. 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.

61. 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.

62. The 1st Respondent submits that the above provisions are clear and do not provide for academic progression.

63. For the reasons stated above, the 1st Respondent prays that the Appeal be dismissed with costs. That the matter before the Tribunal is an Appeal that has sought remedies that the Tribunal does not have jurisdiction to grant which appeals are based on faulty interpretation of the law as well as in blatant disregard of decisions of the High Courts and Court of Appeal.

G. The 2nd Respondent’s submissions 64. On whether the 2nd Respondent violated the Appellant’s legitimate expectation, the 2nd Respondent argues that the Appellant did not qualify to enroll in the Advocate Training Program without undertaking the mandatory Pre-Bar examination. The 2nd Respondent points out that the requirement for the Pre-Bar examination was communicated to the Appellant through a letter and is in accordance with the law.

65. The 2nd Respondent submits that it will be a tall order for it to be expected to issue an examination to a candidate that did not in the first place meet the minimum requirement to enroll for the Advocates Training Programme (ATP) as the law required. That such demands, if adhered to, are likely to cause confusion in the functioning of the 2nd Respondent. That the Appellant's request to sit the Bar examination will be in breach of the Law.

66. The 2nd Respondent further argues that there can be no legitimate expectation against the law and that the Appellant cannot claim a legitimate expectation in this case. That legitimate expectation arises from clear and unambiguous promise or practice made by an authority that has the power to make such representation. The representation must be reasonable, induced by the decision-maker, and lawful.

67. The 2nd Respondent asserts that the Appellant was well advised of the requirement for the Pre-Bar examination, and no misrepresentation occurred. The 2nd Respondent argues that it adhered to the requirements that ensure the quality of lawyers released into the market, which is its responsibility.

68. The 2nd Respondent relies on the following cases: Adrian Kamotho Njenga vs Kenya School of Law Petition 398 of 2017, National Director of Public Prosecutions v Phillips and Others. [2002] (4) SA 60 (W) para 28, Communication Commission of Kenya v Royal Media Services Ltd & 5 others [2014] eKLR and Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR, to support the argument that legitimate expectation cannot override the law. It emphasizes that it diligently followed the necessary steps and procedures in making the decision on the Appellant's application.

69. Additionally, the 2nd Respondent argues that statutory words override an expectation howsoever founded. Thus, a decision maker cannot be required to act against clear provisions of a statute just to meet one's expectations otherwise his decision would be illegal, and a violation of the principle of legality, a key principle in the rule of law. There cannot be legitimate expectations against the clear provisions of a statute. The 2nd Respondent submits that legitimate expectation cannot apply to this case since it would be against the law. The Respondent relies on the case of Republic -v- Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review Misc. Case No. 356 of 2013; [2014] eKLR.

70. Furthermore, the 2nd Respondent submits that the Legal Education Appeals Tribunal cannot compel them to exercise their discretion in a particular manner. The 2nd Respondent relies on the case of Republic v Public Procurement Administrative Review Board & 2 others ex parte Pelt Security Services Limited and Cherono Gladys v University of Nairobi in support of its case.

71. The 2nd Respondent submits that in many instances, the courts have held that academic decisions are to be distinguished from the administrative decisions of the academic bodies. This is because administrative actions are subject to judicial review while purely academic decisions are treated as beyond the court's reach though in some cases the court can interfere. The Respondent relies on the case of Penina Wothaya Wachira Vs. Methodist University (2018) eKLR.

72. On whether the Appellant is entitled to the orders sought the 2nd Respondent submits that since the Appellant has not met the requirement qualification of having undertaken Pre- Bar examination, he is not entitled to be granted any order sought in his application and appeal.

73. In conclusion, the 2nd Respondent argues that the Appellant's claim for legitimate expectation collapses, as they were informed of the requirements from the beginning. It argues that the 2nd Respondent's duty is to ensure that only qualified candidates are allowed to sit for the examination, and they cannot be compelled to act against the set standards.

H. Analysis and determination 74. The issue of the Tribunal’s jurisdiction has again been taken up in this appeal by the 1st Respondent. The matter has been settled in many decisions delivered by this Tribunal. In the absence of any contrary decision from a superior court, the Tribunal will consistently find that it has jurisdiction on the basis of the decision in 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.”

75. The Tribunal is thus being called upon to inquire into the eligibility of the appellant to join a legal education programme vis-à-vis the decision taken by the 1st Respondent as a legal education service provider. A synopsis of the Legal Act posits that it is the Council which is at the heart of legal training and education in Kenya. The Council has powers not only to regulate and licence the legal education providers but also to supervise what and how they offer their services to the public.

76. The Tribunal finds that the appeal relates to a hybrid dispute arising not only under the Kenya School of Law Act, 2012 but also under the Legal Education Act, 2012 which by dint of section 31 (1) therein empowers the Tribunal to inquire into it.

77. Indeed, the relationship of the Respondents is one of interdependence as opposed to independence. We have said enough to demonstrate that we have jurisdiction to entertain the appeal.

78. Turning to the main appeal, we are called to adjudicate an uncanny contest. The Appellant was admitted to the Kenya School of Law on 11th February 2022 and he was issued with a “revocation” on 22nd February 2023 for what the Respondents state is an error generated by a system.

79. We have considered the rival positions taken by the parties and the robust arguments made to illustrate that the law and facts favour their respective courses.

80. First, we preface our finding by getting the legal definition of a revocation. Black’s Law Dictionary defines revocation in law as:“The recall of some power, authority, or thing granted, or a destroying or making void of some deed that had existed until the act of revocation made it void. It may be either general, of all acts and things done before; or special, to revoke a particular thing. 5 Coke, 00. See Wilmington City Ry. Co. v. Wilmington & B. S. By. Co., S Del. Ch. 40S, 40 Atl. 12. Revocation by act of the party is an intentional or voluntary revocation. A revocation in law, or constructive revocation, is produced by a rule of law, irrespective of the intention of the parties.” [Emphasis Ours].

81. From the evidence on record, which evidence is not controverted, the Appellant was a bona fide student of the Kenya School of Law. He had paid fees which was accepted, he attended classes and other programmes that he believed would lead him the bar. Currently, that is the only route to becoming an Advocate of the High Court of Kenya.

82. We have trouble reconciling with the fact that the “error” was discovered after the Appellant had gone through almost the course for one year and eleven days. With profound respect the Respondents, an epiphany does not come after one year and eleven days. Public bodies, which cause people to arrange their affairs in a certain order must surely be held to a higher standard.

83. This is not a revocation of an offer, it is an expulsion, and the matter is made worse by the nonchalant manner in which the expulsion was carried out.The Appellant was already a student of the school for a year and eleven days. The Respondents contend that they will be breaking the law if they allow the Appellant to sit for the bar examination. We have no difficulty in holding that the decision is not a valid revocation.

84. The Respondents have not cited any instrument that they invoked to expel a student from the school. Titling the letter Revocation of Provisional Admission to the Advocates Training Programme is not only factually incorrect, wrong in premise and manifestly unfair to the Appellant. It would be inequitable to hold that the 1st Respondent can hold a student in a “provisional” mode for a year and eleven days. If there was a condition attached to the admission, this ought to have been communicated to him. The admission, once crystallized, ceases to be a promise of admission on compliance with certain things and affords the student full status that can only be taken away in a manner discussed in this judgment.

85. On 13th January 2022, the Appellant received recognition and approval of foreign qualifications letter Ref No. CLE/RA/12 Vol. V (26) from the 2nd Respondent, commonly referred to as the "Clearance Letter".

86. That the clearance letter's concluding paragraph specified that "in respect to the pre-bar, the final decision rests with the Kenya School of Law, which is the sole authority on admission to the Advocate Training Program (ATP) and guided by the cited decision."

87. The argument that they would be breaking the law is barred by the fact that there is no law that allows them to expel a student who has been admitted for a whole year without reasons, a hearing or an appellate mechanism. It is also promissory estoppel which is now part of our Fair Administrative Action constitutional and statutory architecture. The decisions on the point are also legion. In Kenya Revenue Authority & 2 others v Darasa Investments Limited (2018) eKLR. Here, the Court of Appeal wrote:“Legitimate expectation refers to the principle of good administration or administrative fairness that, if a public authority leads a person or body to expect that the public authority will, in the future, continue to act in a way either in which it has regularly (or even always) acted in the past or on the basis of a past promise or statement which represents how it proposes to act, then, prima facie, the public authority should not, without an overriding reason in the public interest, resile from that representation and unilaterally cancel the expectation of the person or body that the state of affairs will continue. This is of particular importance if an individual has acted on the representation to his or her detriment".

88. Further in Republic v Commissioner of Domestic Taxes & another, ex-parte Kenton College Trust [2013] eKLR, the Court set out the criteria to determine whether a person has a legitimate expectation against a public authority. The criteria is set out below:a.The representation underlying the expectation is clear, unambiguous, and devoid of relevant qualification.b.The expectation is reasonable.c.The representation was made by the decision-maker; andd.The decision-maker had the competence and legal backing for making such representation. [Emphasis Ours].

89. Further, the 2nd Respondent indicated that The common position taken by the Respondents in defending this appeal in light of the clear breaches of the Appellant’s rights is disconcerting.

90. The law is a sword as well as a shield. The 2nd Respondent argues that it follows that statutory words override an expectation howsoever founded. Thus, a decision maker cannot be required to act against clear provisions of a statute just to meet one's expectations otherwise his decision would be illegal and a violation of the principle of legality, a key principle in the rule of law.

91. We disagree. This is especially so when the Respondents act in concert to breach the law and leave the Appellant in a state of suspended animation. What, pray, is his recourse, after studying for a year and being expelled without any legal instrument being cited? The superior court in Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others [2015] eKLR found that the 1st Respondent has no power to expel a student who has already been admitted to the school without according them a fair hearing.

92. We must distinguish the present circumstances from the decisions where we have held that provisional admissions may be revoked because they are ad interim. For the avoidance of doubt, it is our finding that the admission held by the Appellant was not provisional. Therefore, it is at that hearing that the applicants would have been afforded an opportunity to urge their case whether or not in the circumstances of the case the Respondents were empowered to take the decision they took. This case must be distinguished from the decision in Republic vs. The Council of Legal Education ex parte Keniz Otieno Agira & 23 Others. In that case the applicants had not yet been admitted to the School.

93. The Respondent also submits that there cannot be legitimate expectations against the clear provisions of a statute. The 2nd Respondent argues that the relevant provisions of the law cited clearly show that the 2nd Respondent's decision is grounded on the relevant statutory provisions.

94. We do not disagree. However, public bodies are now being held to higher ideals especially where their decisions affect others on the scale demonstrated here. In Republic v Kenya Revenue Authority Ex-parte L.A.B. International Kenya Limited [2011] eKLR, where the High Court held as follows as regards the duty imposed by the Kenya Revenue Authority when dealing with applications for refund of taxes:“The common law, in its evolution, has defined the rules of conduct for a public authority taking a public decision, entrusting the overall control-jurisdiction in the hands of the Courts of law; but for Kenya, such a general competence of the Courts is now no longer confined to the terms of statute law and subsidiary legislation, but has a fresh underwriting in the Constitution of Kenya, 2010, Article 47, which imposes a duty of fair administrative action, and [Art. 10(2) (c)] demands “good governance, integrity, transparency and accountability”. [Emphasis Ours].

95. Public bodies cannot be allowed to break the law to “comply” with the law. The phrase that the law is both a sword (as sought to be used by the Respondents in this case) as well as a shield (as sought to be used by the Appellant) is apt. The Respondents rely on the law in certain circumstances but are in breach of the same law in the circumstances leading to the Respondents’ need to seek shelter under the law.

96. In the same way that the Respondents wield the law as a sword, the Appellant has made out a case for the same law to come to his defence, together with legal precedents that state unequivocally that you cannot abrogate a person’s rights or interfere with his affairs like in the manner before us, without affording him an opportunity to be heard.

97. The law also prohibits the taking of such actions as the one taken by the Respondents without introspection about their conduct that threatens to ravage a whole year’s toil. In Msagha vs. Chief Justice & 7 Others Nairobi HCMCA No. 1062 of 2004 [2006] 2 KLR 553 the High Court expressed itself as follows:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision.” [Emphasis Ours].

98. We also wish to say something about the submission by the 2nd Respondent. They contend that the Legal Education Appeals Tribunal cannot compel them to exercise their discretion in a particular manner. The 2nd Respondent relies on the case of Republic v Public Procurement Administrative Review Board & 2 others ex parte Pelt Security Services Limited and Cherono Gladys v University of Nairobi in support of its case.

99. We respectfully wish to point out that this determination is not about bending the 2nd Respondent’s discretion. It is an adjudication about a matter flowing from the Legal Education Act. It relates to matters flowing from Section 8 of the Legal Education Act. We have found above, supported by two decisions of the superior court, that we have jurisdiction to adjudicate such matter. We will accept, with deference to the hierarchy of courts, any decision from the Higher Courts holding a contrary opinion. None has been exhibited.

100. The 2nd Respondent is a regulator and susceptible to the powers vested by the law to ensure that it operates within the law.

101. Charles Darwin, in his book, The Origin of Species wrote “...for the shield may be as important for victory, as the sword or spear.” In the matter before us, this statement is true. The law has shielded the Appellant from the Respondent’s conduct that is in breach of the law.

I. Disposition. a.The appeal is allowed

b.The decisions revoking the Appellant’s admission to the Advocates Training Programme – 2023/2024 academic year as communicated by Dr. Henry K. Mutai – Director/Chief Executive Officer of the respondent on the 22nd February, 2023 is hereby set-aside and the Appellant’s admission to the Kenya School of Law is reinstated forthwith.

c.The 1st Respondent is ordered to forthwith allow the Appellant to return to the Advocates Training Programme during the current academic year of 2023/24.

d.Each party to bear own costs of the appeal.

e.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 TH DAY OF JUNE, 2023. ROSE NJOROGE – MBANYA - (MRS.)CHAIR PERSONEUNICE ARWA - (MRS.)MEMBERRAPHAEL WAMBUA KIGAMWA (MR.)MEMBERSTEPHEN GITONGA MUREITHI (MR.)MEMBERI Certify this is a true copy of the original judgment of the Tribunal.