[2022] KELEAT 688 (KLR)

Wambua v Kenya School of Law; Council of Legal Education (Interested Party) (Tribunal Appeal E029 of 2022) [2022] KELEAT 688 (KLR) (26 August 2022) (Judgment)

Neutral citation: [2022] KELEAT 688 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Tribunal Appeal E029 of 2022

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

August 26, 2022

Between

Consolata Muendi Naomi Wambua

Appellant

and

Kenya School of Law

Respondent

and

Council of Legal Education

Interested Party

(Being an appeal against the decisions by Dr. H. K. Mutai – Director of the Kenya School of Law dated 10{{^th}} February 2022, 2{{^nd}} March 2022 and 6{{^th}} April 2022 rejecting the Appellant’s application for admission to the Advocates Training Programme during the academic year 2022/2023)

Judgment

A. Introduction and background 1. The appellant, Consolata Muendi Naomi Wambua has lodged a Memorandum of Appeal dated June 7, 2022 against the Kenya School Of Law as a Respondent and the Council Of Legal Education as an Interested Party with the Tribunal. The Appeal was accompanied by a Supporting Affidavit sworn by the Appellant on June 7, 2022. In the Appeal, the Appellant seeks the following prayers:a.The decision contained in various letters dated February 10, 2022, March 2, 2022 and April 6, 2022 respectively be set aside forthwithb.A declaration do issue that the Appellant is qualified for admission to the Advocates Training programmes by dint of section 1(a) of Schedule 2 of the Kenya School of Law Act, 2012 and as amended by the Statute Law Miscellaneous (Amendments)Act, 2014c.An order compelling the Kenya School of Law to admit the Appellant herein to the Advocates Training Programme in the forthcoming academic yeard.The costs of the Appeal to be awarded to the Appellante.Any other order that the Honourable Tribunal may deem fit and just in the circumstances to grant.

2. The Appeal and the accompanying documents were served upon the Respondent and the Interested Party.

3. The Interested Party did not appear or file any documents in the matter despite being duly served.

4. The Respondent filed a Replying Affidavit in response to the Appeal sworn by Mr Fredrick Muhia – the Academic Services Manager of the Kenya School Of Law on June 30, 2022.

5. The tribunal directed that the appeal be disposed of by way of written submissions upon the consent of the Appellant and the Respondent. The Appellant and Respondent lodged their written submissions on July 21, 2022 and August 2, 2022 respectively.

B. The appeals 6. The Appellant is aggrieved by the decisions of the Respondent as taken on the February 10, 2022, March 2, 2022 and April 6, 2022 in respect of her application for admission to the Advocates Training Programme for the academic year 2022/2023 and she seeks to have them set aside. The Appellant attained a mean grade of C (Plain), grades B(Plain) in English and C (Plain) in Kiswahili languages in the Kenya certificate of Secondary Education examination (KCSE).

7. The Appellant has annexed a letter dated July 11, 2017 with which she secured admission to pursue his Bachelor of Laws (LLB) degree.

8. The Appellant submits that she graduated with Bachelor of Laws (LLB) degree from the University of Nairobi in December 2021 with a Second Class Honours (Lower Division).

9. Prior to joining the University of Nairobi for the Bachelor of Laws (LLB) degree, the Appellant graduated with a Diploma in Law from Inoorero University in November 2013.

10. In rejecting the Appellant’s application to the Advocates Training Programme the Respondent in its letter of February 10, 2022, wrote as follows;'Reference is made to your application for admission to the Advocates Training Programme (ATP) at the Kenya School of Law. It is regretted that your application was not successful for admission due to the following reason(s):

The Appellant’s mean grade at KCSE is C Plan. Not admissible.' 11. A similar letter was issued by the Respondent to the Appellant on March 2, 2022 and on April 6, 2022.

12. The Appellant seeks a declaration that she qualifies for admission to the Advocates Training Programme ('ATP') as provided in Section 1(a) of the Second Schedule of the Kenya School of Law Act of 2012 as amended by the Statute Miscellaneous (Amendments) Act of 2014. She also seeks that an order be issued compelling the Respondent to admit her to the ATP.

C. The Response to the Appeals 13. The Respondent contends that it is a state corporation established under section 3 of the Kenya School of Law Act, 2012 and is the successor of the erstwhile School established under the Council of Legal Education Act, Cap 16A (repealed) with the mandate to train persons for the purposes of the Advocates Act, Cap 16. To this end it offers the Advocates Training Programme. Matters of admission to the said Programme are solely regulated by the Kenya School of Law Act, 2012 while the Tribunal is established under the Legal Education Act, 2012 and therefore lacks jurisdiction in this matter.

14. The Respondent avers that the Appellant made his application to the ATP and was found to be ineligible as per the eligibility criteria under section 16 of the Kenya School of Law Act, 2012 as read with Paragraph 1 of the Second Schedule to the said Act. It is the view of the Respondent that based on the said law, the Appellant in order to be eligible for admission to the Advocates Training Programme ought to have attained a mean grade of C + (Plus) and a B (Plain) in English or Kiswahili languages at the Kenya Certificate of Secondary Education (KCSE) examinations which the Appellant did not have.

15. The Respondent contends that the Appellant was relying on academic progression to gain admission into the ATP which is not provided for in the Kenya School of Law Act, 2012. The Respondent is bound by its statute to only admit students who meet the admission requirements in it. It contends that allowing people to join the ATP on the basis that they had a Diploma in Law prior to enrolling for admission to the LLB Degree would amount to discrimination and application of double standards while circumventing the clear provisions of the law.

16. The Respondent contends that the High Court has on more than one occasion supported its interpretation of the law on admission to the ATP. The interpretation to be accorded to the conjunction ‘or’ in sections 1 (a) and (b) of the Second Schedule to the Kenya School of Law Act, 2012 ought to be a conjunctive one in order to avoid absurdity and discrimination of applicants to the ATP. It seeks to challenge the application of the statutory cannon on interpretation by contending that it ought only to apply where it furthers the legislative intention. It further seeks to have an interpretation that will not create an obnoxious result on public policy even when words prima facie carry only one meaning.

17. The prayer of the Respondent is for dismissal of the Appeal.

D. Submissions by the Parties 18. The Appellant in her submissions summarizes the issues for determination as follows:a.Whether the Honourable Tribunal is clothed with jurisdiction to determine the present Appeal;b.Whether the Appellant meets the requisite qualifications for admission to the Advocates Training Programme;c.Whether the Respondent’s decisions contained in the letters of February 10, 2022, March 2, 2022 and April 6, 2022 respectively are erroneous, unreasonable, illegal and ultra vires the functions of the Respondent under the Kenya School of Law Act, 2012;d.Whether the Appellant’s right to fair administration was violated by the Respondent;e.Who should bear the costs of the Appeal.

19. On jurisdiction, the Appellant submits that since her appeal is anchored on academic progression as provided for under the Legal Education Act, then the Tribunal has jurisdiction. The Appellant quotes the cases of Wamuyu Charity V Kenya School of Law and the Council for Legal Education (2022), Republic V Kenya School of Law & Others Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR.

20. As to whether the Appellant meets the criteria for admission, the Appellant submits that she qualifies by virtue of Section 16 of the Kenya School of Law as read together with the Second Schedule 1(a)

21. The Appellant further submits that the decisions of the Respondent is erroneous, unreasonable and ultravires the functions of the Respondent. She quotes the case of James Muchiri Gchoki and 2 Others V Kenya School of Law and Council for Legal Education (2022) eKLR

22. Finally, the Appellant submits that the Respondent’s decisions contravened the provisions of Article 47 of the Constitution and the Fair Administrative Action Act of 2015 by failing to provide her with an opportunity to be heard.

23. The Respondent in its submissions on the other hand summarizes the issues as follows:a.Whether the Tribunal has jurisdiction over the matterb.Whether the Respondent’s decision to refuse admission into the Respondent’s Advocates Training Programme was a breach of legitimate expectationc.Whether academic progression is applicabled.Whether the double standard in admission qualifications is discriminatory or justifiable.

24. On jurisdiction, the Respondent submits that given that the present Appeal emanates from the Kenya School of Law Act, the Tribunal has no jurisdiction.

25. The Respondent further submits that the Tribunal should adopt a conjunctive rather than a disjunctive interpretation of the word 'or' in the Second Schedule to avoid a discriminatory interpretation of paragraphs 1(a) and (b). It relies on the case ofSollo Nzuki V Salaries and Remuneration Commission & 2 Others (2019) eKLR

26. On legitimate expectation, the Respondent submits that the Appellant undertook her studies while aware of the provisions the Kenya School of Law Act on the criteria for admission to the Respondent. The Respondent distinguished between anticipation and legitimate expectation submitting that the latter is founded on the sanction of law or custom or an established procedure.

27. On whether the decision to refuse admission was illegal and unreasonable, the Respondent submitted that its hands were tied by the Law

28. Lastly, on academic progression, the Respondent states that the applicable law which is the Kenya School of Law Act, 2012 as amended by the Statute Law Miscellaneous Amendments Act (No 18 of 2014) does not provide for academic progression. It relies on Peter Githaiga Munyeki V Kenya School of Law (2017) eklr

E. Analysis and determination . Jurisdiction and competence of the appeals 29. In addressing the issue of its jurisdiction, the tribunal revisits the facts of the appeal. The Appellant herein obtained a Diploma in Law qualification, from Inoorero University in November 2013 before enrolling for a Bachelor of Laws (LLB) degree at the University of Nairobi. The interested party’s statutory mandate under section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations in respect of persons wishing to enrol in Legal Education Programmes. The same provides;'Functions of the Council:

1) 2)

3)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 enroll in legal education programmes.'

30. The Tribunal finds that an inquiry into the issues raised in the appeal is part of the functions of the Tribunal in this appeal. The Tribunal will be addressing matters within the confines of section 31 (1) of the Legal Education Act, 2012. The Tribunal stands guided by the authority 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.'

31. The Appellant also relies on academic progression in seeking to gain admission to the Advocates Training Programme. The Respondent on its part contends that academic progression is not provided for in its establishing law. The Tribunal finds that in section 8 (3) of the Legal Education Act, 2012 it is provided inter – alia on the Interested Party’s functions;'Functions of the Council: 1) 2) 3)In carrying out its functions under subsection (2), the Council shall;c)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;'

32. The Tribunal finds that in determining the question of application of academic progression as a consideration to admission to the Advocates Training Programme which is well spelt-out in the Legal Education Act, 2012 in section 8 (3) (c) it will be dealing with matters within its statutory mandate.

33. The Tribunal has considered the application of the authorities relied on by the respondent amongst them, the Republic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR in which, it was held that a Tribunal is a creature of statute and has only such jurisdiction as has been specifically conferred upon it by the Statute. In this instance section 31 of the Legal Education Act, 2012 expressly confers upon this Tribunal the jurisdiction to deal with any dispute on admission to a Legal Education Programme since section 8;3. (a)Of the Act reposes upon the Interested Party the mandate to make regulations as to admission requirements to the said Programmes. The programs include the Diploma in Law, the LLB degree and the Postgraduate Diploma in Law being offered by the respondent. Before the Tribunal is an appeal by the appellant who applied for admission to the Advocates Training Programme whose qualifications were set by the interested party in its Regulations. Section 31 provides;'(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.2. For the purposes of hearing an appeal, the Tribunal shall have all the powers of the High Court to summon witnesses, to take evidence on oath or affirmation and to call for the production of books and other documents.3. Where the Tribunal considers it desirable for the purposes of avoiding expenses, delay or for any other special reasons, it may receive evidence by affidavit and administer interrogatories within the time specified by the Tribunal.4. When determining any matter before it, the Tribunal may take into consideration any evidence, which it considers relevant to the subject of an appeal before it, notwithstanding that such evidence, would not otherwise be admissible under the law relating to evidence.'

34. While section 8 (3) (c) of the Act addresses progression. The Appellant has appealed in writing to the Tribunal under section 31 (1) of the Act. The Tribunal has wide powers to inquire into any matter under the Act. The Tribunal thus finds that it has jurisdiction to hear the appeal.

The Appeal. 35. The Respondent has denied the Appellant admission to the Advocates Training Programme on the basis of her failure to meet minimum Kenya Certificate of Secondary Education qualifications. We do not agree with the appellant that these were irrelevant factors for the Respondent to consider. It is part of the respondent’s legal mandate to consider her past academic qualifications in order to determine whether she meets the criteria for admission to the Advocates Training Program.

36. The Tribunal however finds that the appellant being from a recognized University in Kenya was only to be subjected to section 1 (a) and not 1(b) of the Second Schedule to the Kenya School of Law Act, 2012. The provisions in issue provide;'(a) Admission Requirements into the Advocates Training Programme. 1. A person shall be admitted to the School if—a.Having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; orb.Having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—i.Attained a minimum entry requirement for admission to a university in Kenya; andii.Obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; andiii.Has sat and passed the pre-Bar examination set by the school.'

37. The conjunction ‘or’ can only be read as connoting an election of the route an applicant to the Advocates Training Programme chooses in pursuing his/her LLB Degree qualification. This Tribunal is bound to make a finding which is consistent with the express text of the law, it cannot deviate from it in a bid to seek to remedy what the respondent alleges to be the application of double standards or perceived discrimination. The Tribunal is guided by the authority in Warburton v Loveland, (1831) 2 Dow & Cl (HL) at page 489 in which Tindal LJ held;'Where the language of an Act is clear and explicit we must give effect to it whatever may be the consequences for in that case the words of the statue speak the intention of the legislature.'

38. The Tribunal is further fortified by Maxwell on Interpretation of Statutes, 12 edition page 1 in which it is observed;'Granted that a document which is presented to it as a statute is an authentic expression of the legislative will, the function of a court is to interpret that document ‘according to the intent of them that made it.’ From that function the court may not resile; however ambiguous or difficult of application the words of an Act of Parliament may be, the court is bound to endeavour to place some meaning upon them. In so doing it gives effect, as the judges have repeatedly declared, to the intention of Parliament, but it may only elicit that intention from the actual words of the statute. ‘If,’ said Lord Greene MR,‘If the language is clear and explicit, the court must give effect to it, ‘for in that case the words of the statute speak the intention of the Legislature.’And in so doing it must bear in mind that its function is jus dicere, not jus dare: the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of Parliament.'

39. Finally, The Tribunal adopts the interpretation of the second schedule to the Kenya School of Law Act, 2012 in Republic v Kenya School of Law & Another ex – parte Kithinji Maseka Semo & Another, (2019) eKLR by Justice Mativo as follows;'48. Since no legislature ever intends to give two simultaneous inconsistent commands, every statute must if possible be reduced to a single, sensible meaning before it is applied to any case.49. From the dictionary and judicial precedents discussed above, it is clear that the word 'or' is ordinarily used to introduce another possibility or alternative, that is either or. Depending on context, it can also be used interchangeably with the word 'and.' It follows that in construing statutory provisions, the context is important so as to get the real intention of the legislature.50. Guided by the authorities cited above and the ordinary meaning of the word 'or' in the context of the provision under consideration, it is my view that the use of the word 'or' immediately after the semi -colon at the end of the sentence in section 1 (a) of the second schedule introduces another possibility, the first possibility being the category referred to in paragraph (a), that is:-'Having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any 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.'51. The ex parte applicants hold Bachelor of Laws degrees from a recognized University in Kenya. By dint of the above provision, they qualified for admission to the ATP. To suggest otherwise, is in my view an insult to the above provision, which is framed in a simple and clear language. A contrary interpretation is misguided and unfaithful to the provision. It follows that any decision emanating from such a misguided interpretation cannot be read in a manner that is consistent with the enabling provision.'

40. On the issue of legitimate expectation, the Tribunal finds that the Appellant has a legitimate expectation that the express provisions of the Law in section 1(a) of the second schedule of the KSL act, 2012, afford her the opportunity to pursue the Advocates Training Programme.

41. As stated in the cited case of Union of india -v- Hindustan Development Corporation,'The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular natural sequence.such expectation should be justifiable legitimate and protectable'

F. Disposition. 42. The Tribunal now decree as follows:-a.That the appeal dated June 7, 2022, is allowed.b.That the decisions dated the February 10, 2022, March 2, 2022 and April 6, 2022 as communicated by the Director of the Kenya School of Law to Consolata Muendi Naomi Wambua denying her admission to the Advocates Training Programme, are quashed.c.That an order is issued directing the respondent to forthwith admit the appellant Consolata Muendi Naomi Wambua to the Advocates Training Programme.d.That each party to bear its own costs of the appeal.e.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 26TH DAY OF AUGUST , 2022. ROSE NJOROGE-MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR