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Njeri v Kenya School of Law & another; Riara University (Interested Party) (Petition E002 of 2021) [2022] KEHC 10468 (KLR) (14 March 2022) (Judgment)

Njeri v Kenya School of Law & another; Riara University (Interested Party) (Petition E002 of 2021) [2022] KEHC 10468 (KLR) (14 March 2022) (Judgment)
Citation
Njeri v Kenya School of Law & another; Riara University (Interested Party) [2022] KEHC 10468 (KLR)
Media Neutral Citation
[2022] KEHC 10468 (KLR)
Court
High Court
Court station
High Court at Kajiado
Outcome
Allowed in part
Case number
Petition E002 of 2021
Judges
SN Mutuku
Judgment date
14 March 2022
Language
English
Type
Judgment
Original source file
Download DOCX (54.1 KB)
Collections
Date published
04 August 2022
Case action
Judgment
Court division
Constitutional and Human Rights
Filing county
Kajiado
Order
(a) a declaration issued that the actions of the 1st Respondent are contrary to and inconsistent with the 30 | Judgment in Kajiado Constitutional Petition No. E002 provisions of Articles 10, 73 and 232 of the Constitution of Kenya 2010. (b) a declaration issued that the 1st Respondent violated the Petitioner’s rights and in particular under Articles 27, 43, 47 and 48 of the Constitution of Kenya 2010. (c) an order issued to quash the 1st Respondent’s decision contained in its letter to the Petitioner dated 6th January2020. (d) an order issued to compel the 1st Respondent to consider and admit the Petitioner into the Advocates Training Program (ATP) for the next academic year perhaps the 2022/2023 academic ear. (e) costs of Petition be met by the 1st Respondent. (f) an order for general damages was declined
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Petitioner's Case
1.The Petitioner through a petition dated 15th January, 2021 brought pursuant to Articles 2, 3, 10, 19, 20, 21, 22, 23, 27, 29, 41, 43(1)(f), 47, 48, 50, 73, 232, 165 and 259 of the Constitution of Kenya 2010, the Council of Legal Education Act (CAP 16A) (Repealed), The Kenya School of Law Act, Act No. 6 of 2012 Laws of Kenya and Legal Education Act, Act No. 27 Laws of Kenya and The Fair Administrative Actions Act, Act No. 4 of 2015 seeks the following prayers:-1.A declaration that the actions and or omissions by the 1st Respondent are contrary to and inconsistent with the provisions of Articles 10, 73 and 232 of the Constitution 2010.2.A declaration that the 1st Respondent violated and/or is likely to violate the constitutional rights of the Petitioner and in particular Articles 27, 43, 47 and 48 of the constitution of Kenya.3.An order to set aside and or quash the 1st Respondent’s decision contained in its letter dated 6th January, 2020 to the Petitioner dated 6th January, 2020.4.An order compelling the 1st Respondent to consider and admit the Petitioner into the Advocates Training Program (ATP) for the 2021/2022 academic year.5.General damages for breach of Petitioner’s constitutional rights and loss of opportunities.6.Any other or further relief that this Honorable Court shall deem fit and just to grant in the circumstances.7.Costs of the Petition.
2.The petition is supported by the grounds found on the face of it and in a Supporting Affidavit sworn by the Petitioner on 15th January 2021.
3.It is the Petitioner’s case that she sat for the Kenya Certificate of Secondary Education (KCSE) in November/December 2005 and attained a mean grade of C (Plain) and grade B (Minus) in English Language; that she applied and was admitted at the Interested Party for a Bachelor of Laws (LLB) Degree which she obtained on 15th March 2019; that in addition to the LLB degree, she also obtained a Bachelor of Commerce Degree in Business Administration and Management from Daystar University on 28th June 2014; that she applied for admission to the Advocates Training Programme (ATP) at the Kenya School of Law on 2nd October 2019 for the 2020/2021 academic year but her application was rejected through a letter dated 6th January 2020 on the grounds that she had not qualified for this training having obtained a mean grade of C (Plain) and grade B (Minus) in English Language in her KCSE.
4.The Petitioner claims that the Bachelor of Commerce Degree in Business Administration and Management was a further prequalification for purposes of her admission for LLB Degree. She claims that her admission and study at the Interested Party from 2015 through to 2018 was guided/informed by the prevailing laws at the time. She states that the 1st Respondent’s actions to blatantly ignore the criteria provided by the 2nd Respondent on the study of legal education has altered her legitimate expectation in her career progression; that the same is a violation of her constitutional rights and that Respondents’ outright rejection of her academic qualification for purposes of admission into the ATP exposed her to an outright discrimination and as such the Petitioner cannot take any further steps towards an eventual enrolling into the Roll of Advocates of the High Court of Kenya thereby breaching her legitimate expectation.
5.She asserts that she had legitimate expectations that the 1st Respondent would not act contrary to the provisions of the Constitution of Kenya, 2010, the Kenya School of Law Act, 2012, the Legal Education Act 2012, the Council of Legal Education Act (Cap. 16A) (repealed) and any other related laws in addition to the principles of public policy and rules of natural justice; that the 1st Respondent would exercise its powers strictly in compliance with the provisions of Articles 10, 47, 73 and 232 of the Constitution of Kenya, 2010 in arriving at its decision; and that the 1st Respondent would treat all persons seeking admission into the ATP fairly and not act in any manner that is discriminatory.
6.It is the Petitioner’s case that on account of the foregoing actions and omissions by the 1st Respondent, the Petitioner’s right to education guaranteed under Article 43 (1) (f) of the Constitution of Kenya, 2010, has been interfered with, with a likelihood of permanently curtailing her career path and progression; that the 1st Respondent has discriminated against the Petitioner contrary to Article 27 of the Constitution of Kenya, 2010 by failing to consider her application for admission into ATP based on her academic qualification; that the 1st Respondent has violated the Petitioner’s inherent right to economic and social rights which include the right to work and earn a living guaranteed under Article 41 and 43 of the Constitution of Kenya, 2010 and that the 1st Respondent has violated the Petitioner’s right to administrative action that is efficient, lawful, reasonable and procedurally fair guaranteed under Article 47 of the Constitution of Kenya, 2010.
Respondents’ Case
7.The Petition is opposed. In his Replying Affidavit sworn on 24th March 2021, Fredrick Muhia, who describes himself as the Academic Services Manager for the 1st Respondent, deposed that the Petitioner applied for admission for ATP at the 1st Respondent for the 2020/2021 academic year which application was received on 2nd October, 2019; that after consideration the Petitioner was found ineligible for failure to meet the requirements in her KCSE grades; that this was communicated to the Petitioner through a letter dated 6th January, 2020. He deposed that the Petitioner’s allegation that the 1st Respondent violated the Council of Legal Education (Accreditation and Quality Assurance) Regulations 2016 was erroneous since those regulations do not apply to admissions by the 1st Respondent to the ATP and that the 1st Respondent operates under its own legal regime.
8.It is further stated that there is a conflict on the provisions between the Council of Legal Education (Accreditation and Quality Assurance) Regulations 2016 and Section 16 of the Kenya School of Law Act as read with the second schedule to the Act, and that the former being regulations cannot override the latter; that therefore there was no violation of the Petitioner’s rights; and that allowing people to join ATP on the basis that they had a degree prior to joining LLB degree programme would be to circumvent clear provisions of a statute and would result in discrimination and application of double standards.
Petitioner’s Submissions
9.Through directions given by my predecessor, this matter was canvassed through written submissions. The Petitioners filed her written submissions dated 10th June, 2021. She raised three issues for determination as follows;-i.Whether the Respondents have violated the Petitioner’s right to education as guaranteed under Article 43(1)(f) of the Constitution of Kenya, 2010.ii.Whether the Petitioner’s legitimate expectation has been violated.iii.Who should bear the costs of the proceedings?
10.Relying on Article 43(1)(f) of the Constitution of Kenya that guarantees the right to education, the Petitioner argued that though the right to education can be limited, no such limitation can be lawful unless the purported limitation complies with Article 24. It was the Petitioner’s view that the Respondents’ conduct amounted to a limitation and/or violation of the Petitioner’s right to education, is illegal and cannot be let to stand unchallenged.
11.It is submitted that the Petitioner was admitted to study law at the Interested Party in the year 2015 and graduated in the year 2019; that the law that was applicable to the Petitioner’s qualifications was the Legal Education(Accreditation and Quality Assurance) Regulations 2016 (enacted under the Legal Education Act, 2012), and Section 16 as read with the 2nd Schedule paragraphs (a)(1) of the Kenya School of Law Act, 2012, the Kenya National Qualification Framework Act, 2014; that by dint of paragraph 5 of the Third Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations 2016, which provided that the minimum admission requirements for an undergraduate degree programme in law shall be “a degree from a recognized university”; that the 2nd Schedule provides for a dual criteria for admission of students to the ATP programme and the petitioner was therefore qualified. On this point, she quoted the case of Adrian Kamotho Njenga -v- Kenya School of Law [2017] eKLR in which the court held that admission requirements for students who possess qualifications from universities in Kenya are different from those required of students with qualifications from foreign universities as far as administration of pre- bar exam was concerned hence the word “or” after paragraph (a). The Petitioner also relied on Republic -v- Kenya School of Law & another Ex parte Kithinji Maseka Semo & another [2019]eKLR, where the court held that the use of the word “or” after paragraph (a)(1)(a) of the 2nd schedule above provides an alternative to the requirements of paragraph (a)(1)(b).
12.It is the Petitioner’s submissions that the literal interpretation of 2nd Schedule paragraphs (a)(1) of the Kenya School of Law Act, 2012 is the most appropriate as has been held by courts time and again. In support of this point, the Petitioner relied on the case of Association of Retirement Benefits Schemes -v Attorney General and 3 others [2017] eKLR.
13.On the second issue, the Petitioner submitted that she was admitted to study a Bachelor of Laws Degree by the Interested Party on the strength of the provisions of paragraph 5 of the Legal Education (Accreditation and Quality Assurance) Regulations 2016 and therefore she had a legitimate expectation she would not be denied the opportunity to proceed with her studies and career progression. She argued that these regulations are to be adhered to by the 1st Respondent as being a legal education provider in Kenya; that the Petitioner was qualified as she had acquired a first degree of Bachelors of Commerce from Daystar University, which at the time was acceptable to transition to study law as a second degree. It was her argument that the applicable law was the Council of Legal Education (Accreditation and Quality Assurance) Regulations 2009 then enacted under the Council of Legal Education (Cap 16A) Laws of Kenya (now repealed). She contended that the said regulations, under regulation 18 as read together with paragraph 2 of the Second Schedule, should be the criteria to be applied to her case and that the amendments introduced by the Kenya School of Law Act, 2012 should not be applied retrospectively in order to deny her the benefit conferred by the above provisions.
14.On the above issue, the Petitioner relied on the case of Commissions of Income Tax -v Pan African Paper Mills (E.A) Limited [2018] eKLR in which the court of Appeal cited with approval the case of Samuel Kamau Macharia and Another -v- Kenya Commercial Bank Ltd and 2 others[2012]eKLR. She also referred to the case of Sydney Douglas Webuye v Kenya School of Law [2018] eKLR.
15.On the issue of legitimate expectations the Petitioner relied on the case of Kalpana H. Rawal -v- Judicial Service Commission & 4 others [2015]eKLR and the Supreme Court case of Communication Commissions of Kenya & 5 Others -vs- Royal Media Services Ltd & 5 others [2014] eKLR.
16.On the issue of costs the Petitioner referred to Rule 26 of the Constitution of Kenya (protection of Rights and fundamental Freedoms) practice and procedure Rules 2013 which provides that costs are at the discretion of the Court and that the court should exercise this in their favor.
Respondents’ Submissions
17.The 1st Respondent filed its submissions dated 17th September, 2021 in which three issues have been identified for determination as follows:-i.Whether the 1st Respondent’s decision to refuse admission into the 1st Respondent’s Advocates Training Programme was a breach of legitimate expectation?ii.Whether the procedure to refuse her admission was unfair and a breach of fair administrative action?iii.Is academic progression applicable?iv.Should the 1st Respondent bear the costs?
18.In addressing the 1st issue it is submitted that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors to such legitimate expectation. They referred to the case of Union of India -vs Hindustan Development Corporation, where the court noted legitimate expectation should be differentiated from anticipation, mere wish to desire or hope and mere disappointment. It is submitted that no legitimate expectation could have been created given the Petitioner’s non-qualification.
19.The 1st Respondent argued that the admission criteria to the ATP is set out in the Second Schedule did not meet the minimum KCSE mean grade requirement of a C+ (plus) and B (plain) in English. It is argued that the above position was upheld in the case of Peter Githaiga Munyeki -v- Kenya School of Law [2017] eKLR where the court stated that:-25.According to the Schedule, there are two categories of persons who can be admitted to the ATP. First are those who attended local universities who fall under paragraph 1(a). The other is persons who attended universities outside Kenya who fall under paragraph 1(b) of the Schedule. Paragraph 1(a) of the Schedule does not specifically state the KCSE grades one should have, but a reading of paragraph 1(b) shows that persons who obtained LLB Degrees from outside Kenya should have KCSE grades that would have enabled them join LLB programmes in universities in Kenya, and goes ahead to state those grades as a mean grade of C+ (plus), in KCSE with B (plain) in either English or Kiswahili languages.26.In that regard, therefore, applying the principle a holistic reading of a statute persons falling under paragraph 1(a) of the Schedule to KSL Act, must have obtained a mean grade of C+(plus) with B (plain) in English or Kiswahili languages to have qualified to join LLB programme in local universities. That is why there is reference of this requirement in paragraph 1(b) (ii) of the Schedule. (See Adrian Kamotho Njenga v Kenya School of Law (petition No. 398 of 2017)).”
20.Counsel for the 1st respondent, submitted on the interpretation of paragraph 1 of the Second Schedule to the Act, and in particular clauses 1(a) and (b) thereof. He contended that the perception that clause 1(a) creates a distinct eligibility criteria from 1(b) is incorrect. He contended that if paragraph 1(a) was to be treated as a stand- alone provision on eligibility to join ATP, it would imply the High School requirements in 1(b)(i) and (ii)would not apply to these applicants. Counsel also submitted that these would give rise to two standards being set. The Applicants who attended Kenyan universities would be allowed to join the ATP in a scenario where the applicants may have lower qualifications than applicants who attended foreign universities. He argued that there is no reasonable distinction between the two categories of applicants that would justify the existence of two sets of standards. Further that it is unfair, arbitrary and manifestly discriminatory.In concluding on this point, he submitted that as an institution, the 1st Responent could not look beyond the provisions of its enabling Act in admitting students to the ATP.
21.On the second issue, reference was made to Article 47(1) of the Constitution and also relied on the case of Kenya Revenue Authority-vs Menginya Salim Murgani Civil Appeal No. 108 of 2009 where the court stated that there is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. It was submitted that the 1st Respondent is therefore tied by statute and cannot admit students who lack the most basic qualifications.
22.On the third issue the 1st Respondent argued that the Petitioner cannot qualify to be admitted to the ATP by reason of academic progression. This is 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) doesn’t provide for academic progression and that no discretion or alternates are provided for. He relied on the case of Peter Githaiga Munyeki -v- Kenya School of Law [2017] eKLR.It was further argued that the reliance by the Petitioner on Legal Education (Accreditation and Quality Assurance) Regulations 2016, paragraphs 3,4 and 5 of the Third Schedule which provides for academic progression is erroneous. It was the view of the 1st Respondent that subsidiary legislation cannot be used to override a substantive Act of parliament to the extent of providing different ATP admission criteria from those set out in the Kenya School of Law Act, 2012 rendering the subsidiary legislation void. The 1st Respondent relied on Section 31(b) of the Interpretation and General Provision Act (Cap 2. Laws of Kenya) and the case of Evans Kidero & 4 others -v- Ferdinand Ndungu Waititu & 4 others [2014] eKLR.
23.On the issue of costs it was submitted that the costs are left to the discretion of the court but the same should be granted to them. It was also submitted that the Petition is a futile attempt to overturn an administrative action which was fair, expeditious, just and unbiased and hence the same should be dismissed with costs.
Analysis and Determination
24.To my mind, the issues that emerge are as follows:i.Whether the Petitioner’s constitutional rights have been violated.ii.Whether the Respondents’ actions amount to a breach of the Petitioner’s legitimate expectation and fair administrative action?iii.Who should bear the costs of the proceedings?
25.The Petitioner holds the view that she has a right to education guaranteed under Article 43(1) (f) of the Constitution and that although this right can be limited, the actions of the Respondents in failing to admit her for ATP when she had qualified for the programme, amounted to an illegality and a violation of that right. She argues that she had complied with the necessary requirements obtaining as at the time she was admitted to the LLB degree and therefore she qualifies to be admitted into the ATP.
26.To determine issues (i) and (ii) above, this court must address the issue of qualifications for admission to the ATP. What is the applicable law in this regard?
27.The Petitioner’s pleadings show that she was admitted to study for the LLB degree in 2015. At that time the applicable law was the Kenya School of Law Act, 2012 and the Legal Education (Accreditation and Quality Assurance) Regulations, 2009. As argued by the Petitioner, Section 16 of the Kenya School of Law Act, 2012 reads as follows: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 Second Schedule for that course.
28.The Second Schedule paragraph (a) (1) reads as follows:The Admission requirements will be as follows:-a.Admission Requirements into the Advocates Training Programme1.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 examination of a university, university college or other institution 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 the School.
29.The argument by the Petitioner is that she qualifies for admission to ATP by dint of the above provisions, specifically Section 16 of the Kenya School of Law Act as read with Second Schedule paragraph (a) (1) (a). She has invited this court to adopt the literal interpretation of the Second Schedule of the Kenya School of Law Act. The Petitioner relied on Republic v. Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR where the court held thus: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.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 degree of that university, university college or institution.”The ex-parte applicants hold Bachelor of Laws degree 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.”
30.On the contrary, the 1st Respondent has argued that the Petitioner did not qualify for admission. The 1st Respondent holds the view that paragraphs (1) (a) and (b) of the Second Schedule are identical, meaning that persons who hold LLB from Kenyan Universities and those from foreign universities must possess same qualification from KSCE (grade C+ (plus) and B Plain in English or Kiswahili) before they are admitted to study law. The 1st Respondent posed the question as to why the legislators would create two classes of qualifications that are literally distinguishable? It advanced an argument that assuming that (1) (b) targets students from foreign universities, nothing would have been easier than for the legislator to expressly say that (1) (b) relates to graduates from foreign universities.
31.The arguments of the 1st Respondent are that there is no reasonable distinction between the two categories of applicants that would justify the existence of two sets of standards of admission as this would be unfair, arbitrary and manifestly discriminatory; that there is no rational explanation why similarly placed persons should be treated in a substantially different way and that they must be held to the same standard for to do otherwise would amount to discrimination against students who attend foreign universities.
32.I have analyzed the two opposing arguments. I am persuaded to go with the interpretation adopted by the court in the Republic v. Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another. It is my view that there are two alternatives for admission to the ATP, one for applicants from Kenya Universities and the other for applicants from foreign universities. The rationale behind that distinction has been explained in the above case specifically where the court took the view that paragraph 1(a) contains the disjunctive word “or” at the end of the paragraph just before the beginning of paragraph (b).
33.The reason given by the 1st Respondent for not admitting the Petitioner to ATP is that she did not meet the requirements for admission into the LLB degree programme in the first place having failed to attain a mean grade of C+ (plus) and grade B (plain) in her KCSE examination. The Petitioner maintains that she had qualified for admission to LLB degree programme having obtained a prequalification Bachelor degree in Commerce from Daystar University in June 2014 before her admission to the LLB degree programme. Although the Petition seems confused on what law was applicable at the time of her admission to the LLB degree, having cited the Council of Legal Education (Accreditation and Quality Assurance) Regulation, 2009 enacted under the Council of Legal Education Act (Cap. 16A) Laws of Kenya now repealed and the 2016 Regulations, it is clear to me that at the time of her admission to LLB degree programme in 2015, the 2016 Regulations had not come into effect. The Legal Education (Accreditation & Quality Assurance) Regulations 2016, enacted under the Council of Legal Education Act, 2012, were gazette under Special Issue dated 6th February 2016. They were not in use in 2015 when the Petitioner was admitted to study law. The Regulations that were in force at the time of her admission to LLB degree in 2015 are the Council of Legal Education (Accreditation & Quality Assurance) Regulations 2009
34.Regulation 18 of the Council of Legal Education (Accreditation and Quality Assurance) Regulations, 2009 provided as follows:
18.Eligibility for admissionA student shall not be eligible for admission to a legal education training programme under these Regulation, unless that student has attained the required minimum qualifications set out in the Second Schedule.
35.The Second Schedule to these Regulations provided that:Admission into an Undergraduate Degree ProgrammeA student shall not be eligible for admission into an Undergraduate Degree Programme unless that student has –a.A degree from a recognized university;b.At least two principal passes at an advanced level or an equivalent qualification;c.A mean grade of C+ (C plus) in Kenya Certificate of Secondary Education (KCSE); ord.A diploma of an institution recognized by the Commission for Higher Education and the applicant shall have obtained at lease credit pass.
36.For comparison purposes, Regulation 10. (1) of the 2016 Regulations provides that:“The quality standards to be satisfied by a legal education provider for purposes of accreditation and quality assurance under these Regulations are set out in the Third Schedule to these Regulations.”
37.Paragraph 5 of the Third Schedule to the 2016 Regulation provide as follows:“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.
38.It is clear to me that the 2016 Regulations introduced B Plain in English or Kiswahili in KCSE and three Principal Passes in KACE. It is also clear that both Regulations provide a degree from a recognized university as one of the minimum admission requirements for an undergraduate degree programme in law.
39.The Petitioner has argued that she had a legitimate expectation that a first degree would enable her qualify to study LLB degree as the applicable law allowed. She argues that the criteria for admission to be applied in her case should have been the 2009 Regulations and that the amendments introduced by the Kenya School of Law Act, 2012 should not have been applied retrospectively in order to deny her the benefit conferred by the dint of the above regulations.
40.From my reading the submissions of the parties herein, it is clear to me that the 1st Respondent denied the Petition admission to its ATP programme basing it on the admission criteria set out in the Kenya School of Law Act No. 26 of 2012 and the Legal Education (Accreditation and Quality Assurance) Regulations 2016 which provide for qualifications for admission for undergraduate LLB degree.
41.Kenya School of Law Act Section 16 provides that:A person shall not quality for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course.
42.The Second Schedule to the Kenya School of Law Act, No. 26 of 2012, provides that:The Admission Requirements will be as follows:a.Admission Requirements into the Advocates Training Programme1.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 BB(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.
43.I have stated above that in respect to Section 16 of the Kenya School of Law Act and Second Schedule of the same Act, I will go with the literal interpretation adopted by the court in the case of Republic v. Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another. The Petition falls in the first category of persons who studied law in Kenya as opposed to those that studied law in foreign universities. It is shown in this judgment that the applicable law at the time the Petitioner was admitted to study for LLB is the 2009 Regulations. She had qualified to be admitted for a course in LLB undergrade degree by virtue of her having attained a prequalification degree in commerce. It is clear to me that having attained an undergraduate degree in commerce, she had qualified for admission for a degree in law as provided in the 2009 Regulations.
44.To my mind, to argue that persons falling under paragraph 1 (a) of the Second Schedule of the Kenya School of Law Act must have obtained C+ (Plus) and B Plain in either English or Kiswahili to qualify for LLB is to miss the point that a pre-qualification degree qualifies one to be eligible to stud LLB. This was the law under Regulations of 2009 and also in the 2016 Regulations.
45.Should the law, 2016 Regulations, be applied retrospectively to deny the Petitioner admission? The court in Pauline Anna Benadette Onyango v Kenya School of Law[2017] eKLR cited Maxwell on Interpretations of Statutes, 12th Edition (Sweet & Maxwell 1969) thus:“Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, "involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary."
46.The principle of retrospective application of the law has been discussed in various decision including the Supreme Court of India in the case of Mithilesh Kumari and another, vs. Prem Behari Khare, AIR 1989 SC 1247, where that court stated as follows:“A retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of past transaction, or impair contracts, or impose new duty or attach new disability in respect of past transactions or considerations already passed, However, a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The general scope and purview of the statute and the remedy sought to be applied must be looked into and what was the former state of law and what the legislation contemplated has to be considered. Every law that impairs or takes away rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole may relate to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper construction the legislature may be said to have so expressed its intention".
47.Closer home, the court in the Pauline Anna Benadette Onyango case cited above had this to say on the same principle:“The petitioner’s complaint is not without merit. She obtained her academic qualifications way before the law was amended to introduce new admission requirements for the ATP. The new Act does not contain transitional provisions from those who obtained their Law degrees under the old legal regime to the new Act. It would therefore be unreasonable to subject the petitioner to a law that was not in place or did not exist when she obtained her law degree a qualification that allowed one join the School. That would be akin to applying the law retrospectively in violation of the petitioner’s right to seek admission to the School. It is a cardinal rule of statutory construction that a retrospective operation should not be given to a statute so as to impair an existing right or obligation, except with regard to procedure……”
48.I am persuaded by the reasoning above. To my mind the Petitioner’s case is meritorious. She had qualified for admission to an undergraduate LLB degree programme which she undertook at the at the Interested Party. She now holds a degree in law (LLB). The requirements by the 1st Respondent for admission to its ATP are to hold an LLB degree which the Petitioner holds, but the 1st Respondent denied her entry into ATP on grounds that she had not qualified to join the LLB programme in the first place. Applying the retrospective principle, this court finds that the 1st Respondent is out of order to close the door for the Petitioner in her quest to join the 1st Respondent’s ATP programme.
49.It is clear to me that the rights of the Petitioner have been violated by the 1st Respondent in declining to admit her to the ATP programme and by applying the law retrospectively in doing so.
50.I have considered the submissions on the issue of legitimate expectation. The Petitioner cited Kalpana H. Rawal v Judicial Service Commission & 4 others[2025] eKLR, where the court opined, inter alia, that:“A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. In all instances the expectation arises by reason of the conduct of decision maker and is protected by the courts on the basis that principles of fairness, predictability and certainty should not be disregarded.”
51.It is clear to me that the 1st Respondent holds the view that its hands are tied by the law and therefore it could not admit the Petitioner to the ATP because she did not qualify for admission into the LLB degree programme in the first place having failed to qualify under Section 16 and Second Schedule paragraph (a) (1) (b). It is not enough to claim that the 1st Respondent’s hands are tied. This is an escapism attitude employed in order to avoid blame.
52.I have shown above that the Petitioner was admitted to study law Riara University in 2015 where there was in existence the Council of Legal Education Act (Cap. 16A) now repealed and the Council of Legal Education (Accreditation and Quality Assurance) Regulations, 2009 enacted thereunder. I have reasoned that this was the applicable law at the time and the new legal regime should not be applied retrospectively to deny the Petitioner her right to education.
53.The Petitioner has identified the right to education under Article 43(1) (f) of the Constitution as the right which has been violated and explained how the same has been violated. She also argued that she has legitimate expectation that a first degree would enable her to qualify to study for LLB since the law at the time allowed this. I agree with her. In so doing, I am guided by the Communication Commission of Kenya 5 others v Royal Media Services Ltd, & 5 Others (2014) eKLR where the Court stated, inter alia, that:“……. An instant of legitimate expectation would arise when a bod, by representation or by past practice, has aroused an expectation that is within its power to fulfill. A party that seeks to rely on the doctrine of legitimate expectation has to show that it has locus stand to make a claim on the basis of legitimate expectation.….. The emerging principles may be succinctly set out as follows”a.There must be an express, clear and unambiguous promise given by the public authority;b.The expectation itself must be reasonable;c.The representation must be one which it was competent and lawful for the decision-maker to make; andd.There cannot be a legitimate expectation against a clear provisions of the law or the Constitution.´
54.The culmination of my consideration of all the issues raised: whether the Petitioner’s constitutional rights have been violated and whether the Respondents’ actions amount to a breach of the Petitioner’s legitimate expectation and fair administrative action is an answer in the positive. The Petitioner has argued her case and I am persuaded to rule in her favour. In view of this I proceed to hereby grant this Petition in the following orders:a.That a declaration is hereby issued that the actions of the 1st Respondent are contrary to and inconsistent with the provisions of Articles 10, 73 and 232 of the Constitution of Kenya 2010.b.That a declaration is hereby issued that the 1st Respondent violated the Petitioner’s rights and in particular under Articles 27, 43, 47 and 48 of the Constitution of Kenya 2010.c.That an order is hereby issued to quash the 1st Respondent’s decision contained in its letter to the Petitioner dated 6th January 2020.d.That an order is hereby issued to compel the 1st Respondent to consider and admit the Petitioner into the Advocates Training Program (ATP) for the next academic year perhaps the 2022/2023 academic year.e.That costs of this Petition be met by the 1st Respondent.f.That an order for general damages is declined.Orders shall issue accordingly.
DATED, SIGNED AND DELIVERED ON 14TH MARCH 2022.S. N. MUTUKUJUDGE
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