Edward v Kenya School of Law & 2 others (Miscellaneous Application E105 of 2022) [2022] KEHC 15458 (KLR) (Constitutional and Human Rights) (18 November 2022) (Judgment)
Neutral citation:
[2022] KEHC 15458 (KLR)
Republic of Kenya
Miscellaneous Application E105 of 2022
HI Ong'udi, J
November 18, 2022
IN THE MATTER OF ARTICLES; 2, 3, 19, 20, 21, 22, 23,
165 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS UNDER ARTICLES; 10, 27, 40,
43, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE KENYA SCHOOL OF LAW ACT
(ACTS NO. 26 OF 2012) LAWS OF KENYA
AND
IN THE MATTER OF THE COUNCIL OF LEGAL EDUCATION
ACT (ACTS NO. 27 F 2012) LAWS OF KENYA
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION
ACT (ACTS NO.4 OF 2015) LAWS OF KENYA
Between
Maina Kithela Edward
Petitioner
and
Kenya School of Law
1st Respondent
Council of Legal Education
2nd Respondent
Director/Chief Executive Officer, Kenya School of Law
3rd Respondent
Judgment
1.The petition dated March 8, 2022 was filed under articles 2, 3, 19, 20, 21, 22, 23, 165 and 259 of the Constitution for the alleged contravention of the rights and freedoms under articles 10, 27, 40, 43, 47, 48 and 50 of the Constitution. Accordingly the petition seeks the following orders:i.An order directing the 1st respondent to consider the petitioner's application for admission to the ATP programme in accordance with the decision of this court for the current admission, 2022/ 2023 academic year.ii.That in the event the current admission is closed, an order be issued directing the 1st respondent to consider the petitioner's application for admission to the ATP programme in accordance with the decision of this court for the next admission.iii.A declaration that the petitioner was and is still entitled to be treated under the legal regime prevailing at the time as having met the qualifications prescribed under the Council of Legal Education (accreditation) regulations, 2009 and 2016 respectively, and therefore legible for admission into the Advocates Training Programme(ATP), Academic year 2022/2023, at the Kenya School of Law.iv.A declaration that the decision declining the petitioner/ applicants' admission into the ATP is a gross violation of the applicants' constitutionally guaranteed rights to education provided under article 43(1) (f) of the Constitution.v.Costs of this petition and interests thereon.
The Petitioner’s Case
2.The petition as supported by the petitioner’s sworn affidavit of even date is premised on the assertion that the 1st and 3rd respondents’ letter dated March 2, 2022 declined his application for admission into the Advocates Training Programme (ATP) for the academic year 2022/2023 at the Kenya School of Law.
3.The petitioner deposed that he sat for his Kenya Certificate of Secondary Education (KCSE) at St Luke’s Secondary School where he obtained a mean grade of B-(minus) with a B- (minus) in English and C+ (plus) in Kiswahili. He thereafter joined the University of Nairobi where he obtained his Bachelor of Laws (LLB) degree on December 11, 2020. Subsequently, he applied for admission into the Advocates Training Programme (ATP) on January 7, 2022 via the online portal provided by the 1st respondent.
4.He deposed that prior to making the application he had inquired on his suitability to join the ATP programme based on his qualifications. He informed that vide a letter dated January 13, 2021, the 2nd respondent informed him that he had met the qualifications prescribed under the Council of Legal Education (accreditation) Regulations, 2009 and 2016 respectively.
5.He however averred that the 1st and 3rd respondents’ through their letters dated February 10, 2022 and March 2, 2022 rejected his application to join the ATP programme. He appealed the respondents’ decision but the same was rejected. It’s his assertion that his right to the legal principle of legitimate expectation was violated.
6.He further deposed that the 1st and 3rd respondents’ actions were discriminatory as they had admitted other applicants with similar qualifications as he had. For the reasons set out, he stressed that the petition was brought against the respondents for the alleged violation of his constitutional rights under articles 23(1), 27(1), (2) 47(1), 165(3),(a),(b), and 258 of the Constitution.
7.He filed a further affidavit dated April 19, 2022 in response to the respondent’s reply. He deponed that in addition to the Bachelor of Laws degree, he has a Bachelor of Science degree in applied Biology, from Kenya Methodist University (2003). Master of Science Degree (Medical microbiology) from Jomo Kenyatta University of Agriculture and Technology in (2007). Doctor of Philosophy, PHD (Medicine) degree from Hirosaki University (2013).
The 1St & 3rd Respondent’s Case
8.The 1st and 3rd respondents in response filed their replying affidavit dated April 8, 2021 sworn by the 1st respondent’s Academic Services Manager. He deponed that the 2022/2023 ATP Programme was inaugurated on March 30, 2022 with a cohort of approximately 1200 students, and has an annual intake.
9.He deposed that the 1st respondent had published an advertisement inviting applicants to apply for admission to the ATP programme for the 2022/2023 academic year setting out the eligibility criteria for admission in line with the second schedule of the Kenya school of Law Act, 2012.
10.When the 1st respondent reviewed the petitioner’s application, it was realized that he fell short of the eligibility criteria as provided for under section 16 as read with paragraph 1 of the second schedule of the Kenya School of Law Act, 2012. This is since the provisions require a mean grade of C+ in KCSE with B (plain) in English or Kiswahili languages which the petitioner did not have. This conclusion was accordingly communicated to the petitioner. To this end it was contended that the 1st respondent had not violated the petitioner’s rights as alleged since they only applied the criteria as required by the law.
Submissions
11.The petitioner through the firm of Nchoe Jaoko & Company Advocates filed written submissions dated May 4, 2022 and further submissions dated July 8, 2022. Counsel begun by submitting that the refusal by the 1st respondent, to admit the petitioner into the ATP programme for the academic year 2022/2023, as contained in the 1st and 3rd respondent's letters dated February 10, 2022 and March 2, 2022 was in total violation of the petitioner's right to the legal principle of legitimate expectation.
12.Relying on the principles set out in the case of Republic v Kenya Revenue Authority, Ex parte Shake Distributors Limited [2012] eKLR counsel noted that a legitimate expectation arose when the respondents being the decision makers in respect of the subject matter, led the petitioner to believe that he would receive or retain a benefit or advantage from the respondents who are a public body. Further that the respondents would act in a certain manner and which promise was made within the confines of the law.
13.Counsel contends that the representation was clear and unambiguous. Similar reliance was placed on the cases of R (Bibi) v Newham London Borough Council (2001(EWCA) 607, (2002)WLR 237, Republic v Kenya Revenue Authority & another Ex-Parte Trade Wise Agencies (2013)eKLR and Kenya Revenue Authority Universal Corporation Ltd (2020) eKLR.
14.Counsel submitted that the respondents vide their replying affidavit attempted to mislead the court by stating that section 16 of the Kenya School of Law Act, 2012 disqualifies the petitioner yet the provisions state that a person shall qualify for admission at the School if he meets the requirements set out in the second schedule. The said schedule provides that 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.
15.According to counsel the wording of this schedule provides two distinct categories which means if one meets any of the qualifications then are eligible for admission which the petitioner has. In view of this he submitted that the 1st respondent had declared the petitioner unqualified without any basis and without affording the petitioner a hearing contrary to the law. As such it was submitted that the 1st respondent had failed on the duty to act fairly in the present case. In support reliance was placed on the case of Republic v Nakuru Water & Sewarage Services (Ministry of Environment & Natural Resources) & 2 others Ex- Parte Londra Ltd (2005) eKLR.
16.Counsel further submitted that the impugned decision was discriminatory and had exposed the petitioner to serious mental torture and cruel, inhuman or degrading treatment contrary to article 25(a) of the Constitution. This is because his peers are now continuing with the ATP programme. He explained that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations as defined in the case of Peter K.Waweru v Republic (2006) eKLR. To buttress this point further counsel relied on the case of Gichuru v Package Insurance Brokers Ltd (petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) (Judgment).
17.He further noted that the 1st respondent’s actions violated the petitioner’s rights under article 10(2) (b), 43(f) and 47 of the Constitution. Counsel submitted that the 1st respondent acted contrary to article 10(2) (b) in handling the petitioner's case by failing to conceptualize the requirement of impartiality which is one of the national values and principles of governance adopted in the Constitution as human dignity, equity, social justice. To this end it was submitted that article 23(1) of the Constitution enjoins this court to uphold and enforce the bill of rights in order to protect the rights of the vulnerable and the powerless in the society.
18.In rebuttal to the respondent’s denial of the meaning allocated to section 16 of the Kenya School of Law Act 2012as read with the second schedule, counsel submitted that the Supreme Court in the case of Raila Amolo Odinga v Independent Electoral and Boundaries Commission & 2 others (2017) eKLR had held that the word "or" as used in a statutory provision clearly makes the two limbs disjunctive. Similar reliance was placed on the case of Bernard Ndeda & 6 others v Magistrates and Judges Vetting Board & 2 others (2018) eKLR.
The 1st & 3rd Respondents Submissions
19.The 1st and 3rd respondents through their counsel, Dr Henry K. Mutai filed written submissions dated June 27, 2022.He submitted the issues for determination to be:i.Whether KCSE grades matter in admission to the ATP programme under the admission criteria under section 16 and second schedule of Kenya School of Law Act, 2012.ii.Whether academic progression is provided for in the Kenya School of Law Act 2012.iii.Whether the petitioner has a right to legitimate expectation and whether it was violated by the 1st and 3rd respondent.iv.Whether the 1st respondent’s employee should be liable for carrying out his lawful duties.
20.On the first issue counsel o submitted that it is settled in law that all applications to the ATP Programme are to be evaluated in keeping with the applicable time when applicants commenced their Bachelor of Laws as held in the case of Kevin Mwiti & others v Kenya School of Law & others (2015) eKLR. The court noted that those who had been admitted to LLB after the Kenya School of Law Act 2012 came into force were to comply with the provisions of the Act. Similarly those who commenced their LLB studies before the enactment of the Kenya School of Law Act, 2012, could join the ATP programme on the basis of the admission criteria in force before the Act was enacted. It was thus on this basis that the application advertisement was issued.
21.Counsel moreover submitted that section 16 as read with the second schedule of the Kenya School of Law Act, 2012 under clause 1(ii) provides that a student will be admitted to the school if he/she has obtained a minimum of grade B (plain) in English or Kiswahili and a mean grade of C (plus) in KCSE certificate or its equivalent. In view of this counsel argued that the critical question that the court was to answer was whether or not secondary school qualifications matter for one who wants to join the ATP programme and what the implication would be in that context.
22.In his opinion interpretation of the provisions of the second schedule of the Kenya School of Law Act, 2012 with reference to the word 'or' has two schools of thought. It can be interpreted as either a conjunctive or a disjunctive. He argued that the same ought to be granted the plain and ordinary meaning. He urged the court to adopt an interpretation that will not only make the statutory provisions on admission operative and workable, but also to make them operative in a just and reasonable manner. In his opinion the provisions of schedule 2 (1) (a) and (b) in their respective plain meaning are identical in that under l(a) before candidates are admitted to University to pursue a Bachelors of Law degree, they must have attained qualifications in b(i)(ii).
23.In support of his interpretation reliance was placed on the case of Republic v Kenya School of Law & another Ex Parte; Okoth Scarlet Susan [2022] eKLR where the court held that Parliament in its wisdom did not intend to have two standards of admission to the 1st respondent. A purposeful interpretation of the law clearly demonstrates that since the admission seeks to train the students to qualify and join the same profession, they must start on the same footing as regards the entry requirements to the institution.
24.To interpret otherwise, counsel argued would bring about discrimination as between applicants from Kenyan universities and those from foreign universities. Reliance was placed on the case of Sollo Nzuki v Salaries and Remuneration Commission & 2 others (2019) eKLR which noted that discrimination is affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to restrictions to which persons of another description are not made subject to.
25.Similar reliance was placed on the cases of Victor Juma v Kenya School of Law; Council of Legal Education (Interested Party) [2020] eKLR, Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR, R v Kenya School of Law, Ex-parte Daniel Mwaura Marai [2017] eKLR Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR, Republic v Kenya School of law & Council of Legal education Ex parte Daniel Mwaura Marai [2017] eKLR.
26.Counsel submitted therefore that a purposive interpretation should be given to statutes so as to reveal the intention of the statute as held by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court petition No 26 of 2014 [2014] eKLR, and similarly in Raila Odinga and another v IEBC and others (2017) eKLR
27.On the second issue, he submitted that the petitioner does not qualify to be admitted to the ATP programme by reason of academic progression because 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.
28.On the third issue, counsel submitted that according to the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR legitimate expectation would arise when a body, by representation or by past practice has aroused an expectation that is within its power to fulfil. He argued that the petitioner seeks to have the 1st respondent make an unlawful decision in admitting him into the ATP Programme while he is not qualified. Reliance was placed on the case of Victor Juma v Kenya School of Law (supra) where the court stated that the respondents could not be faulted for enforcing the applicable law which is the Kenya School of Law Act by refusing the applicant’s admission to the ATP programme. In view of this he submitted that the petitioner’s claim to legitimate expectation could not succeed.
29.On the final issue, counsel submitted that as per section 25 of the Kenya School of Law Act, the law states that no matter or thing done by a member of the board or any officer, employee or agent of the school shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the school, render the member, officer, employee or agent or any person acting by his directions personally liable to any action, claim or demand whatsoever. In light of this counsel submitted that no evidence had been presented to demonstrate that the 3rd respondent had not carried out his duties in good faith.
Analysis and Determination
30.From the foregoing account, the central issues that arise for determination are:i.Whether the petitioner met the threshold to be admitted into the ATP programme.ii.Whether the 1st and 3rd respondents violated the petitioner’s right against discrimination by denying his application.iii.Whether the 1st and 3rd respondents violated the petitioner’s right to legitimate expectation.
31.The petitioner’s main argument throughout has been that he is qualified to be admitted into the Advocates Training Programme (ATP) based on the wording and meaning of section 16 the Kenya School of Law Act 2012 as read with the second schedule. According to the petitioner the correct interpretation of the second schedule provides two options based on the interpretation of the word ‘or’ which in his view means one can fall in either category to be qualified. He contended hence that he was qualified under 1(a) which states having passed the relevant examination of any recognized university in Kenya.
32.The respondent opposed this notion stressing that such an interpretation would cause discrimination against the eligible students who had studied in foreign universities. This is since 1(b) provides that to be eligible one has to 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.
33.In answering this question this court has to bear in mind the relevant guiding principles in the interpretation of a statute. At the forefront the spirit of the Constitution must preside and permeate the process of judicial interpretation which is this court’s mandate as spelt out under article 259 of the Constitution.
34.There are a number of set principles that guide the court while interpreting a statute. The first principle is the general presumption that Acts of Parliament are enacted in conformity with the Constitution. This position was affirmed by the Court of Appeal of Tanzania in the case of Ndyanabo v Attorney General [2001] EA 495 which was a restatement of the law in the English case of Pearlberg v Varty [1972] 1 WLR 534. In the former, the court held that:
35.Secondly, this court is required to examine the purpose and effect of the impugned statute. This principle was indicated in the case of R v Big M Drug Mart Ltd 1985 CR 295, as cited with approval in the case of Geoffrey Andare v Attorney General & 2 others [2016] eKLR. The court held as follows:
36.Additionally, this court is beholden to interrogate the intention articulated while drafting the statute. This was confirmed by the Court of Appeal in the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR when it stated as follows:
37.The impugned provisions are found in the Kenya School of Law Act, 2012. Part iii which deals with the requirements of admission into the school, provides as follows under section 16:
38.The second schedule provides 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 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.
39.An interpretation of the second schedule elicited two schools of thought in the High Court on the subject as rightly presented by the petitioner and the 1st and 3rd respondents in their cited authorities. This was aptly been examined by this court in the case of Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR. This court opined as follows:
40.The affirmative position on the two schools of thought was finally settled by the Court of Appeal in its recent decision in Kenya School of Law v Otene Richard Akomo & 41 others civil appeal No 472 of 2021 where it opined as follows on the interpretation of the impugned section:
41.I stand guided by the cited authority. Accordingly based on the principles of interpretation of statutes this section ought to be interpreted holistically. This means that the qualifications of students who studied both in local and international universities’ are uniform as stipulated under section 16 of the Kenya School of Law Act. In essence this means that the petitioner was required to have attained the requisite KCSE qualifications as set out in section 16 to attain entry into the ATP programme.
42.It is my considered view that the decision by the 1st and 3rd respondent rejecting the petitioner’s application to the ATP programme was supported by the law. I say so because the petitioner despite attaining a mean grade of B-, he failed to secure B (Plain) either in English or Kiswahili as required under section 16 (b) (ii) of the Act. This essentially rendered him ineligible for consideration for admission into the Kenya School of Law by virtue of this prerequisite.
Whether the 1st and 3rd Respondents’ violated the Petitioner’s right against discrimination.
43.The petitioner contended that the 1st and 3rd respondents’ action of rejecting his application were discriminatory as other applicants applications with similar qualifications had been accepted. This was disputed by the respondents.
44.Article 27 of the Constitution provides that:1.Every person is equal before the law and has the right to equal protection and equal benefit of the law.2.Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
45.The court in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR on the right to equality and freedom from discrimination opined as follows:
46.Accordingly discrimination is defined in the Black’s Law Dictionary 10th edition as differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.
47.It is apparent from the 1st and 3rd respondents’ correspondence to the petitioner that his application was rejected owing to the reason that he had not attained a B (plain) in either English or Kiswahili. The petitioner averred that this rejection was discriminatory as other students with similar qualifications had been accepted into the ATP programme.
48.A look at the material provided by the petitioner does not demonstrate this averment. It is imperative for one to prove a violation of a fundamental right to show how the said right was infringed upon. This requirement was emphasized by the Supreme Court in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where it was stated that:
49.It is my considered view from the foregoing provision and authority that the petitioner in this matter bore the obligation to lay significant evidence in discharge of the evidential burden. The petitioner did not produce any material to support his claim. For instance he did not issue a list of applicants who had been accepted yet had similar qualifications to his. It is not enough to just state that a right was violated. This averment must be demonstrated by the material produced in court for it to be sustained. It is my humble finding that the petitioner did not discharge this burden and as such did not prove how the 1st and 3rd respondents violated his right to freedom against discrimination.
Whether the 1st and 3rd Respondent violated the Petitioner’s right to legitimate expectation
50.The petitioner argued that the 1st and 3rd respondents denial to admit him into the ATP violated his right to legitimate expectation. The respondents in opposing this noted that the right could not arise where the law dictated otherwise. In this case they argued that their rejection of the application was based on the law.
51.The Supreme Court in the case of Communications Commission of Kenya case(supra) explained the principle of legitimate expectation as follows:
52.From the foregoing analysis it is apparent that the 1st and 3rd respondents’ decision was based on the dictates of the law as espoused in the Kenya School of Law Act. It cannot therefore be said that they breached the petitioner’s legitimate expectation since the expectation was not anchored in law. Accordingly the 1st and 3rd respondents’ action of rejecting the petitioner’s application did not violate his right to legitimate expectation.
53.In view of the foregoing and the determination on the issues raised by the parties I find that the petition dated March 8, 2022 lacks merit and is hereby dismissed and the petitioner condemned to pay half of the costs to both the 1st & 3rd respondents.
Orders accordingly.
Delivered virtually, dated and signed this 18th day of November, 2022 in open court at Milimani, Nairobi.H. I. Ong’udiJudge of the High Court