[2024] KELEAT 377 (KLR)

Wambua v Kenya School of Law; Council for Legal Education (Interested Party) (Appeal E003 of 2024) [2024] KELEAT 377 (KLR) (5 April 2024) (Ruling)

Neutral citation: [2024] KELEAT 377 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E003 of 2024

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

April 5, 2024

Between

Grace Kathina Wambua

Appellant

and

Kenya School of Law

Respondent

and

Council for Legal Education

Interested Party

((Being an application for contempt of court and enforcement of the judgment of the Tribunal dated the 7th February, 2024 decreeing admission into the Advocates Training Programme at the Kenya School of Law during the 2024/2025 academic year)

Ruling

1. Introduction. 1. On the 7th February, 2024 the Tribunal pronounced itself in respect of the appeal by Grace Kathina Wambua impugning the decisions of the Kenya School of Law declining admission to the Advocates Training Programme as taken on the 28th November, 2023 and 19th December, 2023 in the presence of the advocates for the appellant and the respondent as follows;a.That the appeal by Grace Kathina Wambua as against the respondent’s decisions declining admission to the Advocates Training Programme during the 2024/25 academic years as communicated by the respondent by Dr. Henry K. Mutai – Director of the Kenya School of Law in the decisions dated the 28th November, 2023 and 19th December, 2023 is allowed.b.That the respondent admits the appellant to the 2024/2025 Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.That any party aggrieved by the decision is at liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.”

2. The appellant has now moved the Tribunal under article 159 of the Constitution of Kenya, 2010 and section 31 of the Legal Education Act, 2012 seeking for prayers: -a.That the Honourable Tribunal be pleased to issue summons to Dr. Henry K. Mutai – Director and Chief Executive Officer of the respondent to appear before the Tribunal and show cause why he should not be committed to civil jail for such term as the Tribunal may deem just for contempt of court orders issued on 7th February, 2024. b.That the said Dr. Henry K. Mutai be cited for contempt of court and be committed to civil jail for a term of six (6) months or a fine of a sum to be determined by the Tribunal until the respondent purges the contempt and effectively complies with the order of the Tribunal issued on the 7th February, 2024. c.That the costs of the application be borne by the respondent.

3. The application was directed to be served and the respondent filed a replying affidavit. It was canvassed orally by the parties being invited to advance their respective rival positions on the 27th March, 2024 through Mr. Maingi Advocate for the appellant and Ms. Mbuthu Advocate for the respondent.

2. The background to the motion and submissions. 4. The appellant’s position as set out in motion is that on 7th February, 2024 the respondent was ordered to admit her to the Advocates Training Programme during the 2024/2025 academic year. Her advocate extracted the decree and it was served upon the respondent. On 4th March, 2024 the appellant wrote vide email to the respondent’s advocate Ms. Mbuthu as follows;“Good morning Madam,I hope this email finds you well.My name is Grace Kathina Wambua . I was in your office last Monday when you instructed me to bring the decree and a letter attached to it in regards to the Tribunal’s judgment and order given. I have been in school from 11 a.m and am told to wait for you to come, but I have as well as dropped the letter and decree at the secretary near your office. Kindly advice me on whether to wait for you or what next in regards to this matter. I will wait to hear from you.Kind regards.”

5. On the same day the respondent’s advocate sent a response to the appellant as follows;“Good morning Ms. Kathina,Thank you for your email and accept my apologies as I was indisposed yesterday. Kindly allow me to escalate your matter and revert at the earliest. Thank you.”

6. On the 6th March, 2024 the appellant wrote to the respondent’s Advocate;“Good morning Madam. I hope you are well this morning. I am writing to you, to confirm or know the progress of my issue in regards to admission. How far is the progress? Or when should I be expecting the response? Kind regards.”

7. On 8th March, 2024 the appellant wrote vide email to the Dr. H. Mutai – The Chief Executive Officer of the respondent and copied to her advocate as follows;“Dear Sir,Good afternoon,I hope this email finds you well. I am Grace Kathina Wambua the subject matter on the above issue and as you are all aware that a judgment was entered in my favour for you to admit me on the 7th February, 2024. I went ahead and served you with a decree and a letter attached to it, in regards to the same and no action has been taken as of today. Kindly find the attached letter together with the decree for you quick response.”

8. On the same day the respondent’s Director wrote to the appellant as follows;“Your letter Ref. No. GK/MMA/LIT/702/24 dated 4th March, 2024, the contents of which are duly noted refers. Kindly note that given the progression of the semester, we regret that we cannot admit you in this intake as it will breach the 1/3 requirement for attendance. Your application will be considered in the next intake. Kindly note that the school has exercised it’s right of appeal and your application will be considered subject to any orders, directions or decrees resulting from the appeal.Yours Sincerely,Dr. Henry K. MutaiDirector/chief Executive Officer.”

9. The appellant’s advocate reiterated the afore - going matters based on the exchange of the correspondence as evidence of disobedience of the decision of the Tribunal. To buttress his client’s position he relied on the authorities in Elphas Omondi v Orange Democratic Party Movement & 5 Others (2017) eKLR, Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning (2017) eKLR and Hon. Basil Criticos v Attorney General & 8 Others (2012) eKLR.

10. The respondent on it’s part confirmed that the judgment of the Tribunal declared that the appellant was qualified for admission to the Advocates Training Programme. It contended that the Tribunal had in several of it’s judgment required the school to adhere to it’s own procedures and gave the example of Diana Kemunto Ogega v Kenya School of Law as an instance. It therefore had requested the appellant to avail the decree in order to follow the set procedure for implementing court orders for admission but she delayed in availing the same as requested by the respondent who had acted in good faith in requiring the same to be availed. It was it’s view that the respondent could only act within it’s understanding of the law and regulations. The delay in compliance was occasioned by the appellant which caused the window for the 2024/25 academic year to close. But however, the respondent had assured her in writing that it would admit her in the next intake. It contended that the threshold for contempt proceedings had not been met. It had never willfully failed, refused and/or neglected to obey the Court Order and was merely acting in good faith of the understanding of the law. The non-compliance on the part of the respondent was out of a bonafide attempt to follow its procedures. It was basic to the Constitution of Kenya, 2010 that a subject ought not to be deprived of liberty albeit only to constrain compliance with a court order if reasonable doubt exists about the essentials that constitute contempt of court. It was impermissible to find an alleged contemnor guilty of contempt in the absence of conclusive proof of the essential elements.

11. The respondent’s position was that it was not driven or actuated by malice but rather an overzealous desire to be transparent, compliant and avoided to be seen as disobeying a court order. The respondent ought not to be punished for the consequences of over enthusiastic adherence to a procedure. The respondent was nonetheless willing to comply by admitting the appellant to the next intake as the admission window had closed.

3. Analysis and determination. 12. The Tribunal notes that the respondent had knowledge of the terms of the judgment requiring it to admit the appellant to the Advocates Training Programme during the 2024/25 academic year on the 7th February, 2024 when it’s advocate Ms. Pauline Mbuthu was present while the same was delivered. The advocate had no issues by then and did not seek for any ex-extempore stay orders as to it’s implementation or require a certified decree for that matter to be supplied as a precondition for compliance. The advocate did not inform the Tribunal at that point that it will not be able to comply with it’s unequivocal findings as to the admissibility of the appellant to the Advocates Training Programme forthwith. The settled juridical position on knowledge and service of a decision of the Court/Tribunal has been well echoed in a legion of judicial pronouncements both from within our jurisdiction and away; all of which maintain a consistent position. The Tribunal hereby recites a few commencing with the Supreme Court of Canada in Bhatnagar v Canada (Minister of Employment and Migration) (1990) 25. C.R.217 at page 226 in which Justice Sopinka held;“In my opinion, a finding of knowledge on the part of the client may in some circumstances be inferred from the fact that the solicitor was informed. Indeed, in the ordinary case in which a party is involved in isolated pieces of litigation, the inference may readily be drawn. In the case of Ministers of the Crown who administer large departments and are involved in a multiplicity of proceedings, it would be extraordinary if orders were brought routinely to their knowledge, in such a case there must be circumstances which reveal a special reason for bringing the order to the attention of the Minister.”

13. In Kenya the Tribunal is well fortified by the decision in Siokwei Tarita Limited v The Commission of University Education & Another (2017) eKLR in which Justice Ombwayo observed;“Our jurisprudence has shifted from the rigid principles that there must be personal service. A party cannot feign ignorance of a court order and yet the advocate was in court. Lenaola J. in the case of Hon. Basil Criticos v Attorney General & 8 Others (2012) eKLR pronounced himself as follows:-“….The law has changed and as it stands today knowledge supersedes personal service. Where a party clearly acts, and shows, that he had knowledge of a court order; the strict requirement that personal service must be proved is rendered unnecessary….”In this matter, the advocate for the respondent was in court representing the respondents managed by the alleged contemnors and the orders were made in his presence. There is an assumption which is not unfounded, and which in my view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it requires him/her to report back to the client all that transpired in court that has a bearing on the client’s case. This is the position in other jurisdictions within and outside the commonwealth.”

14. The Tribunal accordingly finds that in this matter the insistence of the tendering of the decree was immaterial as firstly, it was not a precondition set in any law for the validity of the judgment of the Tribunal to be enforceable and secondly the advocate for the respondent had full knowledge of the exact terms of the judgment and it was upon her to bring the terms thereof to her client the respondent. The respondent acted improperly by requiring the appellant to serve a copy of the decree upon it for compliance while it was already aware of the terms of the judgment as of the 7th February, 2024.

15. The respondent’s conduct was deliberately calculated to deny the appellant the opportunity to join the 2024/25 academic year as no good reason is proferred as to why from the 7th February, 2024 despite being aware of the decision it did not implement the judgment by formalizing the appellant’s admission forthwith as ordered by the Tribunal by issuing a letter of offer to the appellant as required by regulation 8 (1) of the Kenya School of Law (Training Programmes) Regulations, 2015. The same provides;“Where the School is satisfied that an applicant meets the admission requirements under the Act or these Regulations, the School shall issue a letter of offer to the applicant.”

16. The demand for the decree by the respondent could not be justified by reliance on regulation 6 (2) (f) of the Kenya School of Law (Training Programmes) Regulations, 2015 which provides for the provision of any other document the school may require to formalize an admission since the respondent was aware of the outcome of the litigation as between the parties as already adumbrated. The demand for the decree was superfluous and was rendered otiose by the existence of the fact of the knowledge of the terms of the judgment by the respondent through the audible pronouncement of the Tribunal in the presence of the respondent’s advocate at the time of it’s delivery.

17. The Tribunal also takes great exception and frowns upon the respondent’s action of having kept the appellant in waiting from the 7th February, 2024 to the 8th March, 2024 being a period of a month only to inform her that it was unable to comply with the decision of the Tribunal as it had lodged an appeal and of which particulars were not brought to the attention of the appellant or the Tribunal itself. Further, the 1/3rd lecture attendance rule breach by granting admission and an expression to comply at it’s own pleasure during the next academic year all in the pursuit of an appeal to the Superior Court in the intervening period would not have changed the existing finding of the Tribunal where no stay had been granted. The respondent’s action falls short of bonafide and militates against the national value on observance of the rule of law under article 10 of the Constitution of Kenya, 2010. The Tribunal is well guided by the decision in Republic v Kenya School of Law & 2 Others ex-parte Juliet Wanjiru Njoroge & 5 Others (2015) eKLR in which Justice Odunga as he then was observed;“In my considered view, court orders are not made in vain and are meant to be complied with, if for any reason a party has difficulty in complying with court orders the thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a court order is made in a suit the same is valid unless set aside on review or on appeal. Court Orders, it is appreciated are serious matters that ought not to be evaded by legal ingenuity or innovations. By deliberately interpreting court orders with a view to evading or avoiding their implementation it can only be deemed to be contemptuous of the court.”

18. The respondent cannot also arrogate to itself the time as to when it will comply with a decision of the Tribunal as in this case where the respondent conveniently decided to queue the appellant’s consideration of admission to the Advocates Training Programme to the next academic year. Such a situation will result in undermining the authority of the Tribunal to render binding pronouncements and respect to the rule of law as a fundamental facet in the administration justice. The Tribunal is well fortified by the decision in Wildlife Lodges Limited v County Council of Narok & Another, (2015) 2 F A 344 (HCK) in which it was held while reinforcing the plain and unqualified obligation of every person against whom an order is made to comply as follows;“Consistent obedience to court orders is required and parties should not take it upon themselves to decide on their own which court orders are to be observed and which ones overlooked.”

19. The fact of the lodging of an appeal and into his case none has been proved to exist by the respondent does not operate as a stay of execution. The Tribunal is least dissuaded from allowing the respondent not to obey it’s decision by it’s having created an unacceptable state of affairs arising from what it perceived to be it’s position of what the law may have been while the Tribunal had already pronounced itself unequivocally. The Tribunal will not allow the appellant to be kept in waiting as the respondent pursues what it alleges to be it’s undoubtedly right of appeal which has not been demonstrated to have been exercised as the statutory time lines have since lapsed with no evidence of the same and a reasonable inference can be drawn as against it that it is bent on rendering the decision to be a pyrrhic victory.

20. On the 2/3rd rule alluded to in the letter by the respondent dated the 8th March, 2024 as amongst the reasons to refrain from complying with the decision, the Tribunal finds that the same is not a bar to admission to the programme. At regulation 6 of the Kenya School of Law (Training Programme Regulations), 2015 the same is not provided for as a consideration for admission. The respondent did not inform the Tribunal as to when time commenced to run for purposes of reckoning the said 2/3rd lecture attendance rule. The Tribunal at the plenary enquired from the respondent’s advocate as to when time began to run of which she was unable to tender any satisfactory explanation to it’s satisfaction. The Tribunal can at best from it’s interpretation of rule 26 (1) (a) of the Kenya School of Law (Training Programmes) Regulations, 2015 find that it will become applicable at the stage of registering for examinations and sitting for only written examinations as opposed to admission to the Advocates Training Programme. The same cannot act as a hindrance to the appellant’s judgment not being complied with forthwith as entered on the 7th February, 2024. The said regulation provides;“A student shall be eligible to register and sit for a written examination if the student: -a.has attended at least two thirds of all the lectures offered in relation to that course unit; andb.has paid all the fees in relation to that course unit.”

21. The respondent did not also inform the Tribunal as to whether the 30 days period to the examinations for registration had reached to enable the consideration of regulation 26 (2) of the Kenya School of Law (Training Programmes) Regulations, 2015. The Tribunal can only reiterate that it’s decision must be complied with in the form it is in. It is well fortified by the decision in Central Bank of Kenya & Another v Ratilal Automobiles Limited & Another Civil Application no. Nai. 247 of 2006 in which the court held that judicial power in Kenya vests in the Courts and other Tribunals as established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person (s) and in our case the respondent herein to choose whether or not to comply with or to ignore such orders as directed to it by this Tribunal. In this matter no good cause exists for the actions of the respondent in unduly procrastinating compliance with the judgment of the Tribunal.

22. The Tribunal appreciates that the respondent has albeit remotely expressed willingness to comply by postponing the date of the same to the next academic year. The Tribunal finds that the said position is untenable with it’s spirit of upholding the effective administration of justice. Accordingly, pursuant to section 35 (c) of the Legal Education Act, Cap. 16 B the respondent is ordered to forthwith issue a letter of admission to the Advocates Training Programme pursuant to regulation 8 (1) of the Kenya School of Law (Training Programmes) Regulations, 2015 and in any event not later than 7 days of the delivery of this decision or should the respondent be unrepresented at the time of delivery of the decision the reckoning of time to commence upon service of the ruling of Tribunal herein. The Tribunal has reached this position in consideration of it’s decision in Michael Waweru Gitau & Hazel Wanjiku Kamau v Kenya School of Law; LEAT. Appeal no. E021 of 2023 delivered on 9th August, 2023 in which the matter taken up was of similarity over compliance with a judgment on admission to the Advocates Training Programme. The Tribunal rendered itself as follows;“In this matter though it involves contempt proceedings, the Tribunal has well noted that the respondent has expressed willingness to comply with the decree of the Tribunal and it’s directions. In such cases the respondent would not be categorized as a recalcitrant litigant for contempt proceedings.”

23. The Tribunal will give a mention date in 7 days time to track compliance with it’s directions and order herein.

4. Disposition. a.That the respondent is to comply unconditionally with the judgment of the Tribunal without according any qualifications to it’s terms and must issue an offer letter to the appellant forthwith and in any event within a period of not more than 7 days after the delivery of this decision or should it be absent at the time of it’s delivery within 7 days of service of the ruling by admitting the appellant to the 2024/25 Advocates Training Programme.

b.That this matter will be mentioned to track compliance in 7 days time on the 12th April, 2024 at 11 a.m.

c.That each party to bear own costs of the application.

d.That any party aggrieved has the liberty to appeal to the High Court of Kenya on a point of law in-accordance with section 38 (1) of the Legal Education Act , 2012. It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 5 TH . OF APRIL, 2024ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBEREUNICE ARWA - (MRS.) - MEMBER