[2024] KELEAT 388 (KLR)

Wambua v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E003 of 2024) [2024] KELEAT 388 (KLR) (7 February 2024) (Judgment)

Neutral citation: [2024] KELEAT 388 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Appeal E003 of 2024

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

February 7, 2024

Between

Grace Kathina Wambua

Appellant

and

Kenya School of law

Respondent

and

Council of Legal Education

Interested Party

(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated the 19th of December, 2023 and 28th November 2023 rejecting admission into the Advocates Training Programme)

Judgment

A. Background 1. By a Memorandum of Appeal dated 22nd January 2024, the Appellant herein challenged the decision of the Respondent contained in two of its letters dated 19th December 2023 and 28th November 2023 declining admission to the Appellant to the Advocates Training Programme (“ATP”) in the 2024/2025 academic year.

2. The Appeal seeks the following orders:a.The quashing and/or setting aside of the decision of the Respondent of 19th December 2023b.The quashing and/or setting aside of the decision of the Respondent of 28th November 2023c.The Respondent be directed to unconditionally admit the Appellant to the ATP for the 2024/2025 academic yeard.The costs be provided for

3. The Appellant submits that she completed her first degree in Environmental Studies from Kenyatta University. She then wrote to the Interested Party inquiring about the requirements for admission for a law degree in Kenya.

4. The Interested Party responded on 19th July 2017 providing the admission requirements including a first degree from a recognized university;

5. The Appellant then states that armed with this information, she applied for and was admitted to the University of Nairobi on 6th September 2017 to undertake her law degree.

6. Upon completing her law degree, the Appellant applied for admission to the ATP on 22nd November 2023, however, her application was rejected by the Respondents through its aforesaid letter of 28th November 2023. The Appellant appealed the decision vide a letter of 28th November 2023 which appeal was rejected by the Respondent through its decision of 19th December 2023.

7. Aggrieved by the Respondent’s decisions, the Appellant filed the present appeal before this Tribunal.

8. The Tribunal takes note of the Appellant’s KCSE grades from the KCSE certificate filed together with the other supporting documents. It is noted that she attained a Mean Grade of C+ (Plus) with Grade C+ (Plus) in English and C (Plain) in Kiswahili.

9. The Respondent filed their Replying Affidavit in opposition to the Appeal. The Interested Party indicated to the Tribunal that it would rely on the Respondent’s reply and submissions.

10. The Parties agreed to canvass the matter by way of written submissions

B. The Appeal by the Appellant 11. The Appellant submits that the Respondent acted ultra vires and in disregard of the law, particularly sections 16, 17 and Regulations 1 (a) of the Second Schedule of the Kenya School of Law Act as read together with the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016.

12. The Appellant also takes issue with the Respondent on what she terms as the Respondent’s infringement of her right to fair administrative action under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act.

13. The Appellant states that she had a legitimate expectation to derive the benefits offered under the principles of academic progression as provided in the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016.

14. The Appellant further seeks to rely on the doctrine of crystalized actions as advanced inJavan Kiche Otieno & Another Vs Council of Legal Education (2021) eKLR.

15. The Appellant also challenged the decision of the Respondent to ignore the Interested Party’s letter of 19th July 2017.

16. Finally, the Appellant states that the Respondent’s decision violates her right to education under Article 43(f) of the Constitution.

C. The Respondent’s Position on the Appeal 17. On the other hand, the Respondent through its Replying Affidavit sworn by Mr. Fredrick Muhia on 23rd January 2024 contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act 2012.

18. The Respondent further stated that it is required by its establishing Act the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the School.

19. The Respondent further contends that upon the Appellant in making her application to the ATP, did not meet the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act 2012. Under section 16 of the Kenya School of Law Act 2012, as read with Paragraph 1 of the Second Schedule, the requirement for admission to the ATP is a mean grade of C+ (plus) in KCSE with B (plain) in English or Kiswahili languages which the Appellants did not have.

20. The Respondent further states that the Appellant is relying on academic progression to be admitted for ATP, yet the Kenya School of Law Act 2012 does not have a provision for academic progression.

21. The Respondent states that allowing people to join ATP based on a previous unrelated degree before joining LLB would be to circumvent clear provisions of the law and the Court of Appeal.

22. The Respondent’s also mentions that the Appellant’s diploma is not related to law and cannot be related to academic progression. The Tribunal noted that thisstatement was made in error as there was nothing exhibited by the Appellant to show that she undertook a diploma.Finally, the Respondent contended that the issue of criteria for admission to the ATP has been settled by the Court of Appeal.

D. The Appellant’s Submissions 23. The Appellant’s submits on 2 broad issuesa.Jurisdictionb.Whether or not the Appellant met the criteria for admission to ATP

24. On the issue of jurisdiction, the Appellant contended that Section 31 of the Legal Education Act, 2012 expressly confers upon the Tribunal jurisdiction to deal with any dispute on admission to a Legal Education Programme and that the Appeal is predicated on Regulation 5 of the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016. He also states that Section 8(3) of the Legal Education Act, 2012 becomes the operative law granting the Tribunal jurisdiction.

25. The Appellant relied on the case of Mucheke v Kenya School of Law; Appeal E026 of 2022 [2022] KELEAT 853 (KLR)

26. On whether the Appellant met the criteria for admission to ATP, the Appellant had legitimate expectation that in placing reliance on the assurance given by the letter of the Interested Party of 19th July 2017, the Respondent would give due consideration to the principles in JAVAN KICHE case Supra and Kenya School Of Law V Otenne Richard Akomo & 41 Others (Civil Appeal No. E 472 Of 2021)

27. The Appellant also contends that she is qualified by virtue of academic progression under Regulation 5(1)(c) of the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016.

28. The Appellant submits that the said Regulations were declared unconstitutional on 21st December 2021 and by that time, the Appellant had already been admitted for her law degree on 6th September 2017 and therefore qualifies under the doctrine of crystallized action. She relies on the cases of Kenya School Of Law V Otene Richard Akomo, Javan Kiche, Mucheke Supra

E. The Respondent’s Submissions 29. The Respondent set out the following as the issues for determination:a.Is the Double standards in admission qualification discriminatory or justifiableb.Whether the Respondent’s decision to refuse admission to the Respondent’s ATP was a breach of legitimate expectationsc.Is Academic progression applicable?

30. Concerning 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.

31. The Respondent urges the Tribunal to adopt the golden rule approach to avoid the consequences of a literal interpretation of the wording of a statute when such an interpretation would lead to a manifest absurdity or a result that is obnoxious to principles of public policy, in this instance unfair discrimination. It relies on the case of Kenya School of Law V Otene Richard Akomo Supra to support this argument.

32. On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the Respondent, quotes from the Kenya School of Law V Otene Richard Akomo Supra to support its position that legitimate expectation doctrine is inapplicable in this case. On whether the procedure to refuse admission was illegal and unreasonable the Respondent submits the decision was fair and just and procedurally correct.

33. On the issue of academic progression the Respondent submits that the Appellant did not qualify to be admitted to the 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 and further cited Kenya School Of Law V Otene Richard Akomo Supra prior learning ought to be prior in law.

34. The Respondent also submits that the cut-off date for relying on the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016 was 30th January 2018 while he was admitted to the University for his LLB degree in 2019.

35. The Respondent submits that this position was upheld in Hcca 062 Of 2021 Kenya School of Law V Charity Wamuyu and Hcca E166 Of 2022 Kenya School V James Muchiri Gachoki And Duncan Kyalo Muusya And 1 Other.

F. Analysis and determination. 36. It is the Tribunal’s finding that two issues stand out to be determined in this matter:a.Whether the Tribunal has jurisdiction to determine this matterb.Whether the Appellant qualifies for admission into the ATP

37. On the jurisdiction to entertain the appeal, the primary relief sought by the appellant is hinged on two main points (1) his entitlement to admission to the ATP based on section 1 (a) of the Second schedule of the Kenya School of Law Act, 2012. (2) His academic progression and his entitlement to admissions to the ATP under the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which were formulated by the interested party pursuant to the Legal Education Act, 2012.

38. The function of the interested party in section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations for persons wishing to enrol in Legal Education Programmes and which function has been confirmed in Nairobi Court of Appeal Civil Appeal No. E472 OF 2021 - Kenya School Of Law V Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at page 21 as follows;“The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.It should be noted that whereas the Council has to powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”

39. The Tribunal notes that section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the interested party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels. The Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the interested party pursuant to the Legal Education Act, 2012.

40. The Tribunal finds that in inquiring into the matter of applicability of academic progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012.

41. The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the ATP is the main contest in this appeal. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the interested party the powers to amongst others regulate the admission criteria to legal education programmes. It provides;“In carrying out its functions under subsection (2), the Council shall—a.make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes;...”

42. In view of the above, there is no doubt that the Tribunal has the requisite jurisdiction to inquire into the appeals before it by dint of Section 31 (1) of the Act which.

43. On the issue of whether the Appellant qualifies for admission into ATP, the Appellant has submitted that she is entitled to admission to the ATP predicated on the fact that she holds a Bachelor of Laws degrees from the University of Nairobi, a recognized university in Kenya. Thus, she was only to be subjected to the scrutiny in section 1 (a) as opposed to 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012.

44. The section provides 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.”

45. The Tribunal notes that previously, it had held that the conjunction ‘or’ between the two sections is an elective, and a disjunctive interpretation has been adopted so that the applicants to the ATP were to only be subjected to a singular as opposed to a conjunct criteria in consideration of their applications to the programme.

46. In line with the doctrine of vertical binding precedent, this position was altered, following the pronouncement of the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A observed;“It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act,distinguishes applicants who hold a Bachelor of Laws degree from Kenyan University and those from a foreign University. We are of the view that with the use of semi-colon between 1 (a) and (b) of the Act then the conditions follow which to us means that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.”

47. Based on a conjunctive interpretation, as pronounced by the Court of Appeal, the Respondent’s decision declining the Appellant’s admission to the ATP would be upheld. This is because the Appellant fails to meet the minimum requisite English or Kiswahili language grades at the Kenya Certificate of Secondary Education examinations embodied above.

48. The Appellant attained Grade C+(Plus) in English and C(Plain) in Kiswahili languages respectively which were below the stipulated minimum.

49. The Appellant has explored his entitlement to benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.

50. The Interested Party had formulated criteria for admission to the Bachelor of Laws degree and the ATP based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree, the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;“5. Undergraduate Degree Programme

(1)The minimum admission requirements for an undergraduate degree programme in law shall be —(a)a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;(b)at least three Principal Passes in the Kenya Advanced Certificate of Education examination;(c)a degree from a recognised university; or(d)a Credit Pass in a diploma in law examination from an accredited institution.”

51. The validity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, was successfully challenged in a Constitutional Petition lodged in the High Court at Nakuru in Petition No. 20 of 2016 - Javan Kiche Otieno & Another V Council Of Legal Education & Another, on account of the failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 and stated as follows;“The first issue here is the legality of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The petitioners contend that the said regulations were made in contravention of article 10 of the Constitution. They further contend that the 1st respondent was not properly constituted in accordance with section 4 (5) of the Legal Education Act at the time of making the said Regulations and that the 1st respondent does not have the powers to accredit foreign institutions. However, the true position is that the Regulations have not yet become subsidiary legislation because they have not yet been adopted by Parliament as required by section 14 of the Statutory Instruments Act. Thus this provision renders the said regulations void and

unenforceable.” 52. The court of appeal affirmed the declaration of invalidity in its judgment of 21st December 2021, in JAVAN KICHE OTIENO & ANOTHER V COUNCIL OF LEGAL EDUCATION, (2021) eKLR, and went on to add, that the declaration of invalidity would not affect actions already crystallized whilst the expunged law was still in force. Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 47 of the judgment stated;47. consequently, it is explicit that a court havingdeclared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.”

53. The operative date of the declaration of invalidity is 30th January 2018 (being the date of the decision by the High Court as later affirmed by the Court of Appeal), on this date, the said regulations which contained the criteria for admission ceased to have had any legal consequence from their inception. This included the set out admission criteria to the various legal education programmes contained in them.

54. The appellant secured admission to the Bachelor of Laws degree on 9th May 2017 (see the letter of admission) which was before the date of the declaration of invalidity of the 2016 regulations by the superior court. The Tribunal therefore finds that the declaration of invalidity does not affect her eligibility to the ATP.

55. The Tribunal has pondered on whether the appellant would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the interested party to formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels.

56. It follows therefore that the Appellant had a legitimate expectation to be admitted into the ATP based on her qualification the Legal Education (Accreditation and Quality Assurance Requirements) Regulations, 2016. Disposition.

It is Decreed:-a.THAT the appeal by GRACE KATHINA WAMBUA as against the Respondent’s decisions declining admission to the ATP 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 ATP forthwithc.THAT each party to bear its own costs of the appeal.d.THAT any party aggrieved by this 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.It is so ordered by the Legal Education Appeals Tribunal.

Dated at Nairobi this… 7th … day of …February… 2024. 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.7