Badawi v Kenya School of Law (Constitutional Petition E033 of 2019) [2021] KEHC 306 (KLR) (23 November 2021) (Judgment)
Neutral citation:
[2021] KEHC 306 (KLR)
Republic of Kenya
Constitutional Petition E033 of 2019
JM Mativo, J
November 23, 2021
Between
Sabrina Jelani Badawi
Petitioner
and
Kenya School of Law
Respondent
Judgment
1.The Petitioner, Sabrina Jelani Hajji Badawi is an adult female of sound mind residing in Mombasa.
2.The Respondent, the Kenya School of Law (herein after referred to as the KSL) is a body corporate with perpetual succession and a common seal established under section 3 of the Kenya School of Law Act1 (the KSL Act). In its corporate name it is capable of suing and being sued, taking, purchasing or otherwise acquiring, holding or disposing of movable and immovable property, entering into contracts and doing or performing such other things or acts necessary for the proper performance of its functions under the Act. KSL is the successor of the Kenya School of Law established under the Council of Legal Education Act.2
3.Pursuant to section 4 of the KSL Act, the School is a public legal education provider responsible for the provision of professional legal training as an agent of the Government. Without the generality of the forgoing, it trains persons to be advocates under the Advocates Act;3 it ensures continuing professional development for all cadres of the legal profession; it provides para-legal training and other specialized training in the legal sector; it develops curricular, training manuals, conduct examinations and confer academic awards; and undertakes projects, research and consultancies.
4.The Petitioner graduated from the University of Nairobi with a Bachelors of Law Degree in 2019. Prior to obtaining her LLB degree, she undertook a diploma in Human Resource Management which she completed in 2015 at the same University attaining an overall credit grade. In her Kenya Certificate of Education, she obtained an overall grade C Plain with a B Plus in English. Her case is that she has satisfied the requirements for admission into the Advocates Training Program (ATP) as spelt out in section 16 of the KSL Act as read with the 2nd Schedule to the said act and the Council of Legal Education Act.4
5.She states that being in possession of a LLB degree from the University of Nairobi as provided under the 2nd Schedule, paragraph 1 (a) of the Act, she applied to the Respondent’s ATP but the Respondent rejected her application on the grounds that she had not met the criteria for admission because she scored a mean grade of C (Plain) in her KSCE as opposed to the minimum requirement of a C Plus. She avers that she met the requirements for admission to the said program as set out in section 5 (c), Part 11 of the Schedule to the Legal Education Act5 which allows for admission to the ATP where one has: -
6.Additionally, she avers that in addition to holding a LLB degree, she holds a Diploma in Human Resources Management whereby she undertook a core course as stated in Part 1 of the 2nd Schedule of the Legal Education Act. She contends that her Diploma in Human Resource Management meets one of the minimum requirements for admission into an undergraduate degree programme stipulated in the Council of Legal Education (Accreditation of Legal Education Institutions) Regulation of 2009 and Council of Legal Education Act.
7.Also, the Petitioner states that Regulation 18 as well as the 2nd Schedule of the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations of 2009 provides for the criteria and legal requirements for admission into the undergraduate degree programme which requirements are: -
8.The Petitioner avers that her application for admission into the ATP was declined alleging that she did not satisfy the admission requirements despite her aforesaid qualifications. She avers that the refusal lacks basis in law and it is a breach of her right to education, discriminatory, and a breach of Article 10 of the Constitution. As a consequence of the above, she prays for: -
9.On 20th September 2021, the Respondent’s advocate asked for 14 days to file their response to the Petition which was allowed. The court also granted the Petitioner leave to file a supplementary affidavit and submissions within 7 days. The Respondent was also granted 7 days to file their submissions and the matter was fixed for highlighting on 3rd November 2021. However, on the said date, the Respondent’s counsel did not attend court nor did they file a reply to the Petition or submissions as directed by the court, so this Petition was unopposed
10.The Petitioner’s counsel submitted that admission to the ATP is governed by the KSL Act which sets out the minimum requirements and the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. She cited section 16 of the KSL Act which provides that a person shall not qualify for admission to a course of study at the school unless that person has met the admission requirements set out in the 2nd Schedule for that course. She reproduced Paragraphs 1(a) & (b) of the 2nd Schedule which provides: -
11.Additionally, counsel submitted that apart from possessing the above qualifications, an applicant should have attained a minimum entry requirement for admission to a university in Kenya and 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 has sat and passed the pre-bar examination set by the school.
12.Counsel submitted that the Petitioner has attained a minimum entry requirement for admission into a university in Kenya as set out in paragraph 2 (b) (i) of the 2nd Schedule to the KSL Act, the Council of Legal Education Regulations, 2009 which were in force when the Petitioner obtained her Diploma in 2015 which provided one of the grounds for admission to an undergraduate degree program under Schedule 2, paragraph 2 (d). Also, counsel submitted that the Petitioner has a Diploma in Human Resource Management from a University duly recognized by the Commission for Higher Education, which means that she qualified to be admitted to an LLB program which is an accredited institution. As consequence, counsel submitted that the Petitioner meets the requirements in Schedule 2, Paragraph 1 (b) (ii).
13.Further, counsel submitted that in its letter dated 10th December 2019, the Respondent stated that its reason for declining the Petitioner’s application was that she obtained a C plain grade in her KCSE instead of the stipulated C Plus. She submitted that the Petitioner has satisfied the requirements in paragraph 1(a) of the 2nd Schedule. In addition, she argued that the Petitioner satisfied the requirements in Council of Legal Education Regulations, 2009, Schedule 2 Paragraph 2 (d) by obtaining a credit pass in her diploma. She submitted that the Petitioner met the two requirements for admission into the ATP.
14.Counsel submitted that the Respondent’s refusal to admit the Petitioner based on the reasons that she did not obtain the minimum required grade in her KCSE exam is discriminatory. She argued that the Respondent has chosen to selectively apply the requirements disregarding the obvious provisions of Schedule 2 paragraph 1 (a) and purporting to read paragraph 1(a) (b) together. Further, counsel argued that the Respondents refusal to admit the Petitioner is biased and illogical. She cited Republic v Kenya School of Law & another ex parte Richard Akomo & 41 other; Council of Legal Education (Interested Party)7 in which the court dismissed the Respondent’s contention that paragraphs 1 (a) & (b) are to be read together holding that the said provisions create two distinct categories.
15.Further, counsel submitted that the KSL is bound to discharge its duties and functions in accordance with the law and by failing to do so, it violated Articles 10 ,27 (1) and 47 of the Constitution. Lastly, counsel urged the court to be guided by Equity Bank Limited v West Link MBO Link Ltd8 in support of the proposition that courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of the law, to ensure that the ends of justice are met.
16.For starters, the issues presented in this case have been litigated before and determined in numerous cases filed against the Respondent by students seeking to be admitted into the ATP. Notwithstanding the many judicial pronouncements interpreting the law governing qualifications for admission into the ATP and faulting the Respondent for misapprehending the law governing credentials for eligibility into the ATP, the Respondent has persisted in misconstruing the provisions of Paragraph 1 (a) & (b) of the 2nd Schedule to the KSL act to the chagrin of helpless students. For instance, the High Court in Adrian Kamotho Njenga v Kenya School of Law9 addressed the subject with admirable clarity as follows: -
17.As the Apex Court held in Raila Amolo Odinga v Independent Electoral and boundaries Commission and 42 Others,10 the word “or” as used in a statutory provision clearly makes the two limbs disjunctive. A similar position was held in Bernard Ndeda & 6 Others v Magistrates and Judges Vetting Board & 2 Others,11 Wilson Kaberia Nkuja v Magistrates and Judges Vetting Board & another12 and Edward Njoroge Mwangi v Francis Muriuki Muraguri & Another13 among other cases all of which held that the word “or” is normally disjunctive and it is used to introduce another alternative.
18.Despite the above explication of the provisions of the law implicated in the said excerpt, clearly supported by a lucid exposition of the meaning of the letter “or”, the KSL, an institution charged with the responsibility of teaching law has consistently misconstrued the two-letter word. Article 163(7) provides in peremptory terms that decisions of the Supreme Court are binding to all courts in this country. The said Article is an edict addressed to all courts in this country decreeing that its decisions are binding upon them. That being the case, the said decision enjoys the force of the law and one wonders why the KSL has persistently maintained an interpretation which is contra to statute and against clear judicial pronouncements.
19.I am aware of the High Court decision in Peter Githaiga Munyeki v Kenya School of Law14 which contradicted numerous High Court decisions among them Adrian Kamotho Njenga v Kenya School of Law.15 In the former case, it was held: -
20.Certainty, the High Court in Peter Githaiga Munyeki v Kenya School of Law16 contradicted not only decisions rendered by courts of coordinate jurisdiction, but also it went against the Supreme Court decision in Raila Amolo Odinga v Independent Electoral and boundaries Commission and 42 Others,17 which construed the word “or” as disjunctive, creating two categories. The said decision cannot be good law. Section 16 of the KSL Act bears the short title “admission requirements.” It provides that a person shall not qualify for admission to a course of study at the school, unless that person has met the admission requirements, set out in Paragraph 1 of the 2nd Schedule reproduced earlier.
21.At the center of the Respondents refusal to admit the Petitioner is the meaning of the word “or” in legal parlance. As stated above, courts have consistently construed the word “or” to be disjunctive introducing another possibility. It would be a waste of judicial time and ink to add to what the numerous cases have decided. In this long list of decided cases on the same subject, I can usefully add Republic v Kenya School of Law & another ex parte Richard Akomo & 41 other; Council of Legal Education (Interested Party)18and Republic v Kenya School of Law19 both of which following the Supreme Court decision and a long chain of jurisprudence on the subject held that the word “or” as used in paragraph 1 (a) is disjunctive and it creates two distinct categories.
22.In Natarajan K.R. v Personnel Manager, Syndicate Bank, Industrial Relation Division20 the apex Court of India construed the word "or" as follows:-
23.Further, the Supreme Court of India in J. Jayalalitha vs Union of India21 held that the term "or" which is a conjunction, is normally used for the purpose of joining alternatives and also to join rephrasing of the same thing but at times to mean "and" also. It stated:-
24.The proper course in all cases is to adopt that sense of the words which best harmonizes with the context, and promotes in the fullest manner the policy and objects of the legislature. The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings.22 It remains that the intention of a statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted for courts to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute. The implied intention of Parliament is adequate to overcome the express words of the statute. The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, but the words should be taken in such a sense as will best manifest the legislative intent. Decided cases have recognized that a broader construction may be permissible on the basis of contextual factors that make clear the legislative intent where it is within the fair meaning of the statutory language.23
25.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. When Lord Brougham said that we must ascertain the ". . . intention from the words of the statute and not from any general inferences to be drawn from the nature of the objects dealt with by the statute ...." he must have been referring to statutes susceptible of but one sensible meaning that is plain and explicit. But, if a statute is susceptible of another interpretation- a contextual or implied meaning-which is derived from the whole text itself with or without the use of extrinsic aids and if such contextual meaning is a fair one in that it accords with the ordinary use of language and with the object and purpose of the statute, it is clearly superior to any obvious or literal meaning which does not fulfil these demands.24 Thus, if Parliament in its wisdom intended both possibilities to apply, then, nothing prevented it from using the word “and” immediately after the end of paragraph 1 (a) instead of the word “or.” A reading of the Petitioner’s qualifications leaves no doubt that she qualified under paragraph 1 (a). In addition to the requirements set out in the Regulations.
26.The Petitioner argued that the refusal to admit her is an affront to her right to education under Article 43 (1) (f) of the Constitution. From the material before me, I am clear in my mind that the impugned decision cannot be read in a manner that is consistent with the fundamental right to education. On the contrary, the refusal is a breach of the Petitioner’s right to education guaranteed under the Constitution. The Constitution provides that the Bill of Rights binds all state organs. Thus, the Respondent has an obligation to respect the Bill of Rights. Article 19 provides that: -
27.Article 21 places provides that:-
28.It is evidently clear that the applicant has a breach of her constitutionally guaranteed right to education under Article 43 (1) (f) the Constitution. Any action that limits or diminishes this right is a violation of the Constitution, unless it can pass the tests provided in Article 24 of the Constitution. There is nothing before be to suggest that the breach of the Petitioner’s rights meets an aticle 24 Analysis test.
Conclusion
29.In view of my conclusions herein above, I find that the Petitioners Petition is merited. Indeed, this court is empowered by Article 23 (3) of the Constitution to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as this one. Perhaps the most precise definition "appropriate relief" is the one given by the South African Constitutional Court in Minister of Health & Others vs Treatment Action Campaign & Others25thus: -
30.I fully adopt this definition of "appropriate reliefs" and shall deploy it in my disposition of this Petition. Arising from the findings of evidence, conclusions of facts and law, constitutional and statutory interpretations and various pronouncements of law, I hereby the following orders:-
SIGNED,DATED AND DELIVERED VIRTUALLY ATMOMBASATHIS 23 RD DAY OF NOVEMBER 2021JOHN M. MATIVOJUDGE