Otinga v Cabinet Secretary, Ministry of Education & 2 others; Kenya School of Law (Interested Party) (Constitutional Petition E010 of 2023) [2023] KEHC 19389 (KLR) (Constitutional and Human Rights) (30 June 2023) (Judgment)
Neutral citation:
[2023] KEHC 19389 (KLR)
Republic of Kenya
Constitutional Petition E010 of 2023
LN Mugambi, J
June 30, 2023
IN THE MATTER OF: ARTICLES 2,10,19,20,21,22,23,24,27,47,165 (3) (d), 201, 210, 258 & 260 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUDAMENTAL FREEDOMS UNDER ARTICLES 27 AND 47 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE LEGAL EDUCATION ACT, NO. 27 OF 2012
AND
IN THE MATTER OF: THE KENYA SCHOOL OF LAW ACT, NO. 26 OF 2012 AND THE SECOND SCHEDULE THERETO
Between
Stephen Nikita Otinga
Petitioner
and
Cabinet Secretary, Ministry Of Education
1st Respondent
The Hon Attorney General Of Kenya
2nd Respondent
The Council Of Legal Education
3rd Respondent
and
The Kenya School Of Law
Interested Party
Judgment
1.This Constitutional Petition was filed on 12th January, 2023.
2.The petition contends that the Kenya School of Law Act No. 26 of 2012 is in conflict with the Legal Education Act, Act No. 27 of 2012 in regard to the requirements for legal training, particularly, on the admission requirements to the advocates to training programme hence violating the constitutional principle of rule law for causing uncertainty and unpredictability on the subject matter.
Petitioner’s case
3.The Petitioner averred that to qualify to be admitted as an Advocate of the High Court in Kenya, one needs to fulfil the requirements specified in section 13 (1) (ii) of the Advocates Act whose requirements include passing the relevant examination as may be prescribed by the Council of Legal Education.
4.He stated for admission to the roll of Advocates’ one has to undergo a post graduate training (Advocates Training Programme) at the Kenya School of Law.
5.He averred that this route has in the recent past faced various challenges that include mass failure of students undertaking the Advocates Training Programme at the Kenya School of Law as a result.
6.The petitioner, averred that has raised concerns on the professional competence of the graduates of the Kenya Legal training system to provide quality legal services.
7.Besides this concern, it is also economically draining to the affected students who have to incur huge financial burden of paying for the remarking and examination retakes over and above the high cost of the Advocate Training Programme at the Kenya School of Law.
8.The Petitioner averred that owing to the deteriorating state of legal education the Attorney General (by then Professor Githu Muigai, SC) established a task force on legal reforms through Gazette Notice No. 8116 of 2016 to evaluate, review and make recommendations and reform proposals on among others:i.The suitability and quality of legal education and professional legal training, curriculum, standards, entry qualification criteria and delivery systemsii.The legal and institutional frameworks for regulating and licensing legal education providers.
9.The Task Force came up with a report which among others found that:i.The Kenya School of Law is the only institution that is currently offering Advocates Training Programme in Kenya.ii.That the Kenya School of Law had approximately 3000 students who were either in session or looking to re-sit the Bar Examination and the large number of students had put a significant strain on the resources and facilities at the Kenya School of Law.iii.That the Advocates Training Programme was experiencing a decline in standards occasioned by large number of students in the programme and the apparent strain in resources and facilities at the Kenya School of Law was also a major contributing factor to the dilution of Advocates Training Programme.iv.Proposals towards diversification of the training institutions in Advocates Training Programmes as a long-term measure to alleviate the strain on the Kenya School of Law and also provide alternatives for prospective candidates.
10.That the Task Force Report made a specific recommendation concerning the Advocate Training Programme underscoring the mandate of the Council of Legal Education to develop a regulatory framework and standards to licence other legal education providers as provided in section 8 (1) (b) of the Legal Education Act, 2012 as follows:
11.The Petitioner further averred that notwithstanding the declining state of affairs in provision of legal education particularly the Advocates Training Programme and despite the Task Force’s recommendations, the Council of Legal Education has failed, neglected or refused to perform its statutory mandate under section 8 (1) (b) of the Legal Education Act, 2012.
12.That whereas the Council of Legal Education has established standards and framework to accredit and licence legal education providers at all other levels of training, it has continued to allow only the Kenya School of Law enjoy a monopoly status in offering the Advocates Training Programme despite all the shortcomings.
13.That it is due to lack of action by the Council of Legal Education that has led to the application of apparently vague, imprecise and inconsistent provisions of the Kenya School of Law Act, 2012 instead of the precise provisions of the Legal Education Act, 2012 hence condoning confusion and uncertainty in the legal framework governing legal education and training in Kenya.
14.The petitioner contended that the following constitutional provisions are relevant to this petition: Articles 2 (4), 10, 19 (1) & (3), 20 (1), (2), 3) & 4, 21 (1), 22, 23 (1), 27 (1), 46, 165 (3) and 258 of the Constitution. He cited three major constitutional grounds that that informed this petition as:
I. Violation Of National Values And Principles Of Governance In Article 10 Of The Constitution
15.The petitioner set out article 10 (2) of the Constitution on national values and principles of governance.
16.He averred that pursuant to section 8 (1) of the Legal Education Act, 2012; Council of Legal Education has a mandate to licence legal education providers in Kenya for all legal education programmes which includes, the Advocate Training Programme. Additionally, Section 8 (3) enjoins the Council of Legal Education to prescribe requirements for admission of persons seeking to enrol in legal education programmes.
17.It was the pEtitioner’s Case that by failing to outline the standards for accreditation and licencing other legal education providers (In addition to Kenya School of Law) to offer the Advocates Training Programme; The Council of Legal Education is in breach of its statutory obligation under section 8(1) (b) and 8 (2) (a) of the Legal Education Act, 2012 hence violating the principle of rule of law, transparency, accountability and good governance.
18.Moreover, that this failure by the Council of Legal Education is unjustified given the current resource constraints faced by Kenya School of Law and dilution of standards occasioned by large student uptake in Advocates Training programme which poses risks to the consumers of legal services in Kenya.
II. Violation Of The Right To Equality Before The Law And Non-discrimination
19.That the fact that the Council of Legal Education has licensed and accredited various legal education providers that are subject to its regulation, accreditation and licensing to offer various legal education programmes ranging from masters of law to diplomas but has failed or refused to make regulations for the purpose of legal education providers intending to provide the Advocates Training Programme for admission of Advocates is discriminatory.
20.That the Council of Legal Education continues to make regulations prescribing the requirements for admission into legal education programmes by other legal education providers but acquiesces as Section 16 of the Kenya School of Law Act and the second schedule continues to be applied by the Kenya School of Law as the only basis for admission to the roll of advocates.
21.The petitioner averred that this has the effect of removing the Kenya School of Law from the statutory mandate of the Council of Legal Education and entrenching its monopoly status as the sole provider of Advocates Training Programme to the detriment of the other potential legal providers. That non-application of the law by the Council of Legal Education to the Kenya School of Law while applying the same to other legal education providers at different levels of legal training has unlawfully created a monopoly status of the Kenya School of Law as the legally mandatory training centre for those wishing to undertake the Post Graduate Diploma for admission to the Roll of Advocates.
22.That by dint of section 8 (4) of the Legal Education Act, 2012; where any conflict arises between the provisions of that section and provisions of any other written law for the time being in force, the provisions of the section shall prevail hence, it is the provisions of the Legal Education Act that should supersede those of Kenya School of Law Act.
23.That the obtaining state of affairs goes against section 8 (1) as read with section 8 (4) of the Legal Education Act which provides that all legal education providers in Kenya are subject to regulation, licencing and supervision by the Council of Legal Education and also section 8 (3) (a) which provides that in carrying its functions, the Council of Legal Education shall prescribe requirements for the admission of persons seeking to enrol in legal education programmes.
III. Violation Of The Principle Of Legal Certainty And Rule Of Law
24.It is the petitioner’s assertion that the Advocates Training Programme is one of the legal education programmes offered in Kenya and as per section 8 (3) of the Legal Education Act, 2012; the obligation to prescribe the requirements for admission of persons seeking to enrol to the Advocates Training Programme (Post Graduate Diploma in Law) is vested on the Council of Legal Education.
25.Section 16 and the second schedule to the Kenya School of Law Act No. 26 of 2012 is thus inconsistent and/or in conflict with section 8 (3) (a) of the Legal Education Act, No. 27 of 2012 since it purports to define requirements for admission into legal education programmes namely, the Advocates Training Programme, Para Legal Programme, and Continuing Professional Development Programme contrary to section 8 (3) (a) of the Legal Education Act which mandates the Council of Legal Education to prescribe requirements for admission of persons seeking to enrol in legal education programmes.
26.The petitioner thus sought the following reliefs:a.A declaration that pursuant to section 8 (3) of the Legal Education Act, No. 27 of 2012, it is the exclusive mandate of the Council of Legal Education to make regulations in respect of requirements for the admission of persons seeking to enrol in all legal education programmes including Advocates Training Programme (Post Graduate Diploma in Law).b.A declaration that section 16 of the Kenya School of Law Act, No. 26 of 2012, and the second schedule thereto are inconsistent with the provisions of section 8 (3) (a) in so far as they purport to prescribe requirements for admission of persons seeking to enrol in legal education programmes such as the Advocates Training Programme (Post Graduate Diploma in Law)c.A declaration that Section 16 of the Kenya School of Law Act, No. 26 of 2012 and the Second Schedule thereto are null and void the extent that they purport to contradict section 8 (3) of the Legal Education Act, No. 27 of 2012 which is specific legislation to licensing, regulation and supervision of legal education providers such as the Kenya School of Law.d.A declaration that Section 16 of the Kenya School of Law Act, No. 26 of 2012 and the Second Schedule thereto violate Article 27 of the Constitution and are discriminatory to other legal education providers to the extent that they single out one legal education provider in the Republic of Kenya namely the Kenya School of Law and purport to prescribe requirements for persons seeking to enrol in its legal education programmes and therefore unconstitutional, null and void.e.A declaration that Section 16 of the Kenya School of Law Act, No. 26 and the Second Schedule thereto are inconsistent, null and void for violating the mandate of Council of Legal Education under section 8 (3) ( c) of the Legal Education Act 2012 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.f.A declaration that pursuant to Section 8 (1) (b), 8 (a), 8 (4) and 18 and 19 of the Legal Education Act, No. 27 of 2012, the Council of Legal Education has the mandate/duty to develop the regulatory framework, standards and licence other Legal Education Providers that meet the established criteria to provide training in Advocates Training Programme (In addition to Kenya School of Law)g.An order of judicial review by way of mandamus to issue compelling the Council of Legal Education to develop and publish on its website and at least one local daily newspaper with national circulation the regulatory framework and standards for accreditation by Legal Education Providers (Other than Kenya School of Law) for licensing to offer the Advocates Training Programme (Post Graduate Diploma in Law, within 45 days of the judgment herein.h.Any other relief that the court deems fit to make in the interest of justicei.Costs of this petition be awarded to the petitioner.
27.The Petition is supported by the affidavit of the Petitioner which mainly reiterates the contents of the petition.
Response by the 1st Respondent
28.The 1st Respondent filed a replying affidavit sworn on its behalf by Beatrice Inyangala, the Principal Secretary of the State Department for University Education on February 2, 2023.
29.The deponent stated that Universities Act No. 42 of 2012 provides for development of university education, establishment and governance of universities, establishment of Commission for University Education, universities funding boards of which the implementer is the Cabinet Secretary for the time being responsible for University Education.
30.The degrees programmes offered by the Kenyan Universities must be accredited by the Commission for University Education but post graduate courses are accredited and supervised by Regulatory and Professional bodies.
31.That accreditation by Council for Legal Education does not authorize universities to offer post graduate diploma in legal practice which is a pre-requisite for professional legal practice.
32.That the Cabinet Secretary in the Legal Education Act No. 27 of 2012 refers to Cabinet Secretary for the time being responsible for matters relating to legal education and that the Act establishes Council of Legal Education whose function is to regulate legal education and training in Kenya.
33.That the Kenya School of Law Act No. 28 of 2012 establishes the Kenya School of Law as a public legal education provider responsible for the provision of professional legal training as an agent of the Government and the Cabinet Secretary responsible for the implementation of the Act is the one for the time being responsible for matters relating to legal education.
34.That Executive Order No. 1 of 2022 which outlined the functions of Government Departments placed Legal Policy Management, Council of Legal Education and the Kenya School of Law under the State Law Office which is headed by Attorney General. As every Government Department operates within the mandate stipulated by the Executive Order No. 1 of 2022, it is not therefore the responsibility of the 1st Respondent to develop regulatory framework for the legal sector as doing so would be in contravention of Executive Order No. 1 of 2023, hence 1st Respondent is non-suited and ought to be expunged from the proceedings.
Response by the 3rd Respondent
35.Mary M. Mutugi on behalf of the 3rd Respondent, Council of Legal Education, swore a replying affidavit on 29th March, 2023.
36.She affirmed that Legal Education Act No. 27 of 2012 establishes the Council of Legal Education and sets out its functions as specified in Section 8 (1) a, b, c & d. These functions are: -a.Regulate legal education and training in Kenya offered by legal education providers,b.Licence legal education providers,c.Supervise legal education providers and,d.Advise the Government on matters relating to legal education and training.
37.On licensing of Legal education providers, she cited Section 18 (1) and (2) which specifies as follows:1.An institution that intends to offer any course or programme of legal education in Kenya for award of a degree, diploma or certificate as professional qualification in law shall apply to the Council for a licence.2.An application under sub-section (1) shall be in the prescribed form and shall be accompanied by the prescribed fee.
38.Accordingly, she asserted that it is up to an interested legal education provider to apply for any type of a licence to the 3rd Respondent in the prescribed form as nothing bars Legal Service Providers from seeking the licence to offer the Advocates Training Programme (ATP), and thus it is not the fault of the 3rd Respondent that none of the Institutions has applied to offer the Advocates Training Programme.
39.That in fact, the regulatory framework for licensing legal education providers to offer Advocates Training Programme (ATP) is in place. She stated that Legal Education (Accreditation & Quality Standards, 2016) provide for the process of licensing and standards to be met by Legal Education Providers to be licensed to offer legal education programmes including Advocate Training Programme.
40.The 3rd Respondent conceded that at the moment, there is inconsistency in regard to the minimum admission criteria to the Advocates Training Programme whereby regulation 6 of the Third Schedule to the Legal Education (Accreditation & Quality Assurance) Regulations provides:
41.On the other hand, she explained that Section 16 and 17 as read with second schedule of the Kenya School of Law Act, 2012 also prescribes admission requirements for the Advocate Training Programme and the point of departure between the two Statutes is that Legal Education regulations recognize relevant progression whereas the Kenya School of Law Act does not. She nonetheless asserted that the Legal Education Regulations of 2016 cannot override an Act of Parliament.
42.That in the meantime, the 3rd Respondent has developed proposals for reforms through the Office of the Attorney General to have admission criteria to the Advocate Training Programme at the Kenya School of Law be pegged on the Legal Education Act.
43.That although the 3rd Respondent is in the process of developing Advocates Training Programme (ATP) regulations; Institutions can still be licensed to offer ATP despite the absence of specific regulations as the Legal education providers only need to demonstrate different learning outcomes and methodologies of delivery of the advocates training programme and resources specifically meant for the programme especially lecturers who are more practice oriented than academics.
44.That the 3rd Respondent affirmed that it has acted in conformity with the law and prayed that the petition be dismissed.
Interested Party
45.The interested party (Kenya School of Law) filed a notice of preliminary objection dated 23rd January, 2023 contending that this Court lacks jurisdiction to hear and determine this matter on account of section 31 (1) of the Legal Education Act, 2012 as read with sections 8 (1) and (2) of the said Act as the Petitioner never exhausted the alternative statutory avenues for ventilating his grievance before filing this petition before this court.
46.The interested party also filed a replying affidavit through its Principal Officer, Academic Services, Fredrick Muhia sworn on 9th March, 2023. He stated that Kenya School of Law is a State Corporation established under Section 3 of Kenya School of Law act with the mandate of among others; to train persons for purposes of the Advocates Act Cap 16 by offering the Advocates Training Programme. He emphasised that it is not equivalent to a University.
47.He stated that the interested party conducts examination as an agent of the Council of Legal Education which is mandated to develop the ATP curriculum but the admission to the Advocates Training Programme is exclusively provided for under section 16 of the Kenya School of Law Act No. 26 of 2012, a position affirmed by the Court of Appeal. According to the Interested Party there is no conflict between section 16 of the Kenya School of Law Act and section 8 (3) of the Legal Education Act.
48.The interested party disputed the assertion that its facilities are strained by high number of students and stated that the task force report referred to in the Petition is outdated as it was released in 2018 and fails to take into account that the Interested party continues to grow its capacity such as recruitment of full time and adjunct lecturers, putting up additional physical facilities, and introduction of on-line classes.
49.It denied that it has 3000 students and indicated it has 1500 students adding that the capacity of the Institution has never been exhausted. It deposed that all duly qualified applicants to the Advocates Training Programme are absorbed and no applicant has ever been rejected for lack of space.
50.On financial hardships faced by the students, the Interested party stated that it has created a revolving fund to provide financial aid to needy students and exhibited a copy of the letter of admission for the year 2025/2024 showing that those in need of financial assistance are advised to apply for consideration.
51.It contended that failing or passing an examination depends on an individual’s excellence and endeavour. Further, that those waiting to resit examinations are no longer students of the Interested party as after their training, they are released to the 3rd Respondent to sit for the bar examination. That in any event, the petitioner had not provided evidence that the current pass rate is below acceptable standards or that failure is attributable to the training methodology of the interested party.
52.That the provisions of Kenya School of Law Act are applicable to other legal education providers.
Petitioner’s rejoinder
53.The petitioner filed a rejoinder through the further affidavit dated 5th April, 2023.
54.In the rejoinder reacted to the assertion by the 3rd Respondent that it has the power to licence any other Institution to offer Advocate Training Programme in addition to the Kenya School of Law by conceding the position taken by the 3rd Respondent was correct one by stating that both the Legal Education (Accreditation of Legal Education institutions) Regulations, 2009 and Legal Education (Accreditation and Quality Assurance) Regulations, 2016 separately and distinctively mandate the Council of Legal Education to accredit and licence legal education providers that intend to offer Advocates Training Programme.
55.He nonetheless pointed out that there is confusion as to which regulations, between Legal Education (Accreditation of Legal Institutions) Regulations, 2009 and Legal Education (Accreditation & Quality Assurance) Regulations, 2016 are in force in view of the Court of Appeal Judgment in Javan Kiche Otieno & Fred Momanyi Vs. Council of Legal Education (2021) eKLR where it observed in obiter dictum that Legal Education (Accreditation & Quality Assurance) Regulations were unenforceable having not been tabled before Parliament as required under the Legal Instruments Act.
56.He stated that whether or not the said regulations are in force; it did not affect the substratum of this petition whose basis is on the obligations created under the provisions of the Legal Education Act.
57.He clarified that the petition is founded on the failure by the Council of Legal Education to promulgate regulations and establish standards for accreditation of legal education providers for purposes of licensing them to offer the Advocates Training Programme in addition to KSL as required by section 8 (2) (a) of the Legal Education Act. He thus explained:
58.He said that the admission by the 3rd Respondent in paragraph 14 of the replying affidavit that it had not developed or set standards for licensing of legal education providers that intend to offer ATP coupled with the confusion on whether the Legal Education (Accreditation & Quality Assurance) Regulations 2016 are enforceable necessitate the need to make an order to compel the Council of Legal Education to set standards for accrediting and licensing of other legal education providers who intend to offer Advocates Training Programme in addition to Kenya School of Law.
59.On the preliminary objection raised by the interested party (Kenya School Law) that this matter ought to have been filed before the Legal Education Appeals Tribunal under sections 31 and 32 of the Legal Education Act, 2012; he averred that the Tribunal not only lacks jurisdiction to direct the Council of Legal Education to set standards and promulgate Regulations for accreditation but cannot determine the constitutionality of section 16 and the second schedule to the Kenya School of Law Act, 2012.
Petitioner’s Submissions
60.The Petitioner contended that the 3rd Respondent had in its replying affidavit conceded that it was its duty to licence other legal education providers to offer the Advocates Training Programme in addition to Kenya School of Law save that none has applied for a licence yet in the same affidavit at paragraph 14 thereof, it admitted that Advocates Training Programme Regulations that should provide a framework for licenced institutions to operate have not been promulgated.
61.On the issue of lack of jurisdiction which raised by the Kenya School of Law that insisted that the proper forum to determine this matter is the Legal Education Appeals Tribunal; the Petitioner countered that the jurisdiction of that tribunal was limited as under section 31 (1) of the Legal Education Act; The Tribunal’s jurisdiction is confined to dealing with persons aggrieved by the Council of Legal Education decision refusal to grant a licence; impose conditions on a licence or suspend or revoke a licence which is not what this petition is about. He stated that he is not in any way challenging the Council’s refusal to grant a licence or imposing conditions on the licence or revocation.
62.The petitioner submitted that the petition challenges the Constitutionality of sectionb16 and the second schedule to the Kenya School of Law Act in relation to principles of rule of law under article 10 (2) of the Constitution and further, the legality of the Council’s failure to develop guidelines relating to the accreditation of legal education providers for purposes of licensing them to offer the Advocates Training Programme which is beyond the mandate of the Legal Education Appeals Tribunal.
63.He relied on the cases Kamau Mburu Vs. Kenya Accreditation Service (2021) eKLR where the Court found that Public Service Commission was not an appropriate forum to determine a dispute on interpretation of the Constitution and also William Odhiambo Ramogi & 3 others Vs. Attorney General & 4 others (2020) eKLR where a similar finding was reached.
64.He argued that since the applicant is not a legal education provider, he would not have audience before the tribunal to address the unconstitutionality of section 16 and the second schedule to the Kenya School of Law Act, 2012 or whether the failure to develop guidelines to offer Advocate Training Programme by the Council is a violation of Consumer rights and abdication of statutory duty by the 3rd Respondent.
65.Moreover, he submitted that section 16 of the Kenya School of Law fosters discrimination in favour of KSL by singling out one legal education provider to prescribe admission requirements to its programme which is contrary to Section 8 (3) of the Legal Education Act which obligates the Council of Legal Education to come up with regulations to establish admission requirements and 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. According to the petitioner, Section 16 and the second schedule to the Kenya School of Law Act, leave no doubt that there is no place for prior learning and experience in law as a basis for admission into Advocates Training Programme yet the Council of Legal Education is required to formulate a system of prior learning under the Legal Education Act. Consequently, the Petitioner contended that section 16 of the Kenya School of Law Act is unconstitutional for violating the principle of legality and certainty under Article 10(2)(a) of the Constitution. He argued that Section 16 and the second schedule are bound by the test of rule of law as provided under Article 10 (2) (a) of the Constitution and relied on the case of Kenya Medical Laboratory Technicians & Technologists Board & 6 others Vs. Attorney General where the High Court held as follows:Citing the Law Society of Kenya case (supra) he quoted from the decision the following paragraph:
66.He was emphatic that regulation of legal education is solely in the hands of the Council of Legal Education a fact he said is also buttressed by the Advocates Act at Section 13 (1) b and Section 13 (b) ii of the Advocates Act Cap 16 Laws of Kenya.
67.The petitioner cited the response by the Council of Legal Education and said that it had omitted to provide timelines within which the Advocates Training Programme (ATP) Regulations will be developed to guide legal education providers who intend to offer ATP. He submitted that pursuant article 259 (8) of the Constitution, where a particular time is not prescribed by law for performing a required act, the act shall be done without unreasonable delay. He thus contended that considering that the Legal Education Act came into force in 2012, the admitted failure by the Council to develop the Advocates Training Programme Regulations for over a decade amounted to a refusal to do what the Act provided and that inaction ought to be remedied by a judicial review order of mandamus. He cited a number of judicial decisions to demonstrate an order of mandamus can appropriately be issued in the present case as well. The judicial precedents relied on were Kenya National Examinations Council Vs. Republic & 2 others (2019) eKLR, Kenya National Examination Council Vs R exparte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR and John Wamalwa Wamare Vs. Saboti Land Disputes Tribunal & 3 Others (2022) eKLR and the Supreme Court decision Communications Commission of Kenya Vs. Royal Media Services Limited & 5 others (2014) eKLR.
68.The Petitioner submitted further that the Legal Education Act is the later statute hence its provisions override those of the Kenya School of Law Act. He said that Kenya School of Law is Act No. 26 of 2012 while the Legal Education Act is Act No. 27 of 2012. He argued”In that submission, he relied on the High Court decision of Martin Wanderi & 19 Others Vs. Engineers Registration Board of Kenya (2014) eKLR.
69.On discriminatory aspect of Section 16 and the second schedule to the Kenya School of Law Act, he posited that Kenya School of Law is a legal education provider just like other legal education providers that have been accredited and licenced to offer legal education programmes by Council of Legal Education hence laws, policies and programmes applicable ought not to discriminate other legal education providers as in the case where Section 16 singles out Kenya School of Law and goes further to prescribe requirements for admission to its programmes yet under section 8 (3) of Legal Education Act, 2012 it is the Council that is mandated to prescribe admission requirement to all legal education programmes offered by Legal Education providers in Kenya.
70.On violation of consumer rights, he argued that consumers have a right to services of reasonable quality and protection of economic interest under Article 46 (1) a & c of the Constitution. He relied on Mark Ndumia Ndung’u Vs. Nairobi Bottlers Ltd & Anor (2018) where the Court observed:
71.Tying this right to the present petition, he made reference to the Report of the Task Force on Legal Sector Reforms, 2018 which observed that the absence of other legal education providers to offer Advocates Training Programme has put a strain on the resources of Kenya School of Law resulting to poor performance in bar examination, failure to develop market driven skills and competency based bar programmes yet students undergoing the training are pursuant to article 46 expected to receive training of reasonable quality and protection of economic interest. That Consumers of legal services are also expected to get services of reasonable quality. That the failure to develop standards and licence other additional education providers to offer ATP has denied students and opportunity to access market driven skills and has also led to declining pass rates exposing the students to mass failure and causing them to incur additional costs.
1st and 3rd Respondents Submissions
72.The 1st & 3rd Respondents filed their written submissions through Senior State Counsel, Macheso Weche.
73.In their submissions, the 1st and 3rd Respondents conceded the jurisdiction of this Court indicating that these proceedings cannot be heard by the Legal Appeals Tribunal established under the Legal Education Act, 2012 as the Petition is challenging the constitutionality of a statutory provision in the Kenya School of Law Act, namely section 16 and the second schedule thereto which was beyond the competence of the Tribunal.
74.Nevertheless, the 1st and 3rd Respondents submitted that the petition has no merit since it had not been demonstrated that the Council of Legal Education had declined any application. It was argued on behalf of the Council of Legal Education that it cannot be faulted when no application for license to offer the Advocate Training Programme has been submitted to the Council of Legal Education for consideration. That the 3rd Respondent affirmed that it has the power to issue licenses to any provider who qualifies to offer the Advocates Training Programme but only after they have applied.
75.On Section 16 and second schedule of Kenya School of Law Act, 1st and 3rd Respondent submission was that this section does not recognize the concept of prior learning and experience in law as the basis for admission into Advocates Training Programme hence obstructs the Council of Legal Education from giving effect to Legal Education Act No. 27 of 2012 in regard to this aspect in its mandate thus Section 16 and the schedule thereto should be declared unconstitutional to the extent that it goes against the spirit of the Constitution as captured in article 10 and 259 of the Constitution.
76.Concerning the petitioners claim on discrimination, the 3rd respondent submitted that there is no evidence that any other education legal provider has applied for a license and denied by the Council of Legal Education on the basis of any discrimination.
Interested Party’s Submissions
77.The Interested Party equally filed written submissions dated 8th May, 2023 through Dr. Henry K. Mutai. On the matter of jurisdiction, Counsel relied on section 31 (1) of the Legal Education Act which establishes the Tribunal and defines its mandate to be ‘on any matter relating to this Act, inquire into the matter and make finding thereupon and notify the parties concerned...”
78.The Interested party contended that other than prayer (e) which deals with costs, all other prayers in this petition relate to the extent as to which the provisions of Legal Education Act applies to the Interested Party’s Programme and a determination of this point would dispose of the entire petition. In that regard, the jurisdiction of this Court stands ousted on the basis of Section 9 (2) & 3 of the Fair Administrative Action Act, 2015. He argued that a similar conclusion was reached in the case of Diana Kemunto Ogega Vs. Kenya School of Law (2020) eKLR and urged this Court to likewise be guided as petitioner ought to have exhausted alternative available remedies first before approaching the Court. He also cited the case of R Vs. Birmigham City Council exparte Ferreno Ltd (1993) All ER 530 where it was held thus:
79.Counsel submitted that this principle has a constitutional underpinning in Article 159 (2) of the Constitution as well as in exercising judicial authority, Courts and Tribunals are required to be guided by certain principles of which alternative forms of dispute resolution including reconciliation, arbitration and traditional dispute resolutions mechanisms are to be promoted.
80.On the substance of petition, the interested party submitted that it lacks merit. That the mandate of the 3rd Respondent is not in dispute and the interested party complies with all the regulations by the 3rd Respondent as their relationship is that of regulator and regulated.
81.That the 3rd Respondent did in fact publish Legal Education (Accreditation & Quality Assurance) Regulations which defined minimum standards for the providers of legal education but which, being subsidiary legislation could not override the substantive legislation, that is the Kenya School of Law Act. The Interested Party relied on Republic Vs. Kenya School of Law & Council of Legal Education ex parte Daniel Mwaura Marai (2017) eKLR.
82.He made reference to Section 31 (b) of the Interpretation & General Provisions Act (Cap. 2) to underscore the fact that subsidiary legislation cannot be used to provide Advocates Training Programme admission requirements different from those set out Substantively in a Statute, namely The Kenya School of Law, 2012 since subsidiary legislation cannot prevail over statutory provisions.
83.The Interested Party submitted that the issue of applicable law on admission criteria to the Advocates Training Programme was duly considered by the Court of Appeal in NRB Civil Appeal Number E472 of 2021 Kenya School of Law Vs. Richard Otene Okomo & 41 Others.
84.The Interested Party submitted that the assertion by the Petitioner that the Interested Party does not have ability to execute its mandate was without proof as it is based on an outdated Task Force Report that does not reflect the current position of the Interested Party. It affirmed in its the Replying Affidavit that it has capacity to accommodate and train every qualified student that it admits to its ATP Programme, it has continuously been increasing its capacity on different fronts and so far, none of the qualified students has ever been rejected on account of lack of capacity.
Analysis and Determination
85.Having regard to the pleadings and submissions by the Petitioner, the Respondents and the Interested Party, I opine that the following are the issues for determination in this petition:1.Whether this Court has jurisdiction to deal with this petition.2.Whether there is conflict between the section 8(3) of the Legal Education Act No. 27 of 2012 and The Kenya School of Law Act, No. 26 of 2012 that violates the constitutional principle of rule of law by creating uncertainty and unpredictability in the law.3.Whether the 3rd Respondent (Council of Legal Education) in violation of Legal Education Act No. 26 of 2012, has failed/neglected/refused to formulate guidelines for licensing of other legal education providers to offer Advocates Training Programme (ATP) in addition to the Kenya School thereby discriminating against other legal education providers by according the Kenya School of Law (KSL) a monopoly status as the sole provider of Advocates Training Programme (ATP).4.Whether Kenya School of Law as the existing provider of Advocates Training Programme (ATP) for persons seeking to qualify for admission as advocates has detrimentally contributed to the deterioration of legal training that has affected the competence and quality of legal education leading to mass failures by the students, financial losses to the affected students which poses risk of poor quality of legal services in violation of Article 43 of the Constitution.5.Finally, whether this petition has merit and who pays the costs.
86.A jurisdictional question is pertinent as without jurisdiction, a court lacks the necessary competence to adjudicate a matter. The interested party raised the exhaustion doctrine stating the the statutory remedies provided for in the Legal Education Act, No. 27 of 2012 ought to have been extinguished by the Petitioner before invoking the jurisdiction of this Court. On the other hand, the Petitioner as well as the 2nd and 3rd Respondent staunchly submitted that the scope of this Petition takes it beyond the jurisdiction of the Legal Education Appeals Tribunal as it raises issues outside the Legal Education Act, some stretching to the Kenya School of Law Act of which their constitutionality is also raised.
87.Jurisdiction has to be settled before delving into a dispute. That was the holding of the Court of Appeal in Civil Appeal Number 244 of 2010 Phoenix of E.A Assurance Company Vs. S.M Thiga T/A Newspaper Service (2019) eKLR Where it held as follows:The Court further clarified;
88.The Supreme Court In the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011 (2011) eKLR stated thus on the issue of jurisdiction:
89.Section 31(1) of the Legal Education Act provides for jurisdiction of the Tribunal as follows:
90.The doctrine of exhaustion would only arise if the matters before this court squarely fell under the Legal Education Act. The Court of Appeal decision in Speaker of the National Assembly Vs. James Njenga Karume (1992) eKLR affirmed this principle which it laid down as follows:
91.Further, the Court of Appeal in Secretary County Public Service Board & Another Vs. Hulbhai Gedi Abdille (2017) eKLR after extensive examination of the relevant case law castigated parties who directly approached courts for judicial review orders without exhausting other mechanisms provided for in the statutes for resolution of disputes. It stated:
92.The question then becomes, do the issues in this Petition lie for determination under the Legal Education Appeals Tribunal?
93.I think not. It is obvious that the issues go beyond the Legal Education Act. They transcend into interpretation of another statute, the Kenya School of Law Act whereby the petitioner contends certain provisions contradict the Legal Education Act. The Legal Appeals Tribunal’s jurisdiction does not extend into interpreting the Kenya School of Law Act as its jurisdiction is confined to the Legal Education Act only.
94.Further, the Petition challenges the constitutionality of section 16 of the Kenya School of Law Act and the second schedule thereto on the basis that it creates confusion that leads to unpredictability and inconsistency in law hence is in violation the principle of rule of law. That constitutionality of that provision is outside the competence of the Legal Education Appeals Tribunal.
95.I thus concur with the submissions by the Petitioner as well as the 3rd Respondent that the preliminary objection citing lack of jurisdiction on the basis of exhaustion principle lacks merit.
96.The second issue is on whether Whether there is conflict between the Section 8(3) of the Legal Education Act No. 27 of 2012 and Section 16 of the Kenya School of Law Act, No. 26 of 2012 thereby violating the constitutional principle of rule of law by creating uncertainty and unpredictability of the law.
97.It is important to lay down the statutory provisions subject to this contention.The Legal Education Act No. 27 of 2012 at Section 8 (3) provides as follows:
98.On the other hand, The Kenya School of Law Act, Number 26 states:
99.The Petitioner argued that the fact that the admission requirements for persons desiring to undergo professional training to become advocates is provided for in the Kenya School of Law Act deprives or takes away the ability of the Council of Legal Education to fully implement the provisions of Section 8 (3) with the net effect being to remove the Kenya School of Law from the supervision of the Council of Legal Education’s mandate of developing standards or requirements to be met by those enrolling in any legal education programmes that should apply to all Legal Education Providers. He contended this creates uncertainty and unpredictability of the law hence it violates article 10 (2) of the Constitution.
100.The Interested Party disputed this assertion by submitting that regulations made under section 8(3) cannot override express statutory provisions.
101.The Kenya School of Law Act is specific in its objects and functions of the School. It provides as follows:(1)The School shall be a public legal education provider responsible for the provision of professional legal training as an agent of the Government.(2)Without prejudice to the generality of subsection (1), the object of the School shall be to—(a)train persons to be advocates under the Advocates Act (Cap. 16);(b)ensure continuing professional development for all cadres of the legal profession;(c)provide para-legal training;(d)provide other specialized training in the legal sector;(e)develop curricular, training manuals, conduct examinations and confer academic awards; and(f)undertake projects, research and consultancies.
102.Part (a) of Section 4 specifies one of its functions as “train persons to be advocates under the Advocates Act (Cap 16).”
103.The Legal Education Act on the other hand creates the Council of Legal Education and confers upon it a broader mandate to make regulations setting standards in respecta)of requirements for the admission of persons seeking to enroll ‘in legal education programmes’(b)establish criteria for the recognition and equation of academic qualifications in legal education;(c)formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels”
104.One of the canons of statutory interpretation is expressed in Latin maxim as ‘generallis specialibus non-derogant’. It means that general laws do not prevail over special laws or the general does not derogate from the specifics. The maxim is particularly applied when a Court has to decide which statute is applicable between an earlier and later statute especially when the scope of two laws is in question as in the present case.
105.The Petitioner’s contention was that the provisions of the Legal Education Act supersede those of the Kenya School of Law Act since the Legal Education Act is the later statute hence the doctrine of implied repeal applies. That is not necessarily the case where one is faced with a specific statute and one that has general provisions. In the American case Rogers Vs. United States (1902) U.S. 83185, is a persuasive authority on this the principle, the Court held:It has thus been held that where there is a provision in special statute and another is in a general statute on the same subject and there is inconsistency between them, if special statute fully addresses the subject matter in question, the provision in the special legislation will be construed to be an exception to the subject matter in the general statute (United States; Lalonde Vs. Sun Life 3 SCR 261.
106.Applying the above principle in the present petition, it is clear to me that the Kenya School of Law clearly states its objective as ‘to train persons to be advocates under the Advocates Act (Cap 16)’. The Legal Education Act does not have such a distinctive and definitive purpose.
107.To ensure the achievement of that objective which was clear in the mind of the Legislature; it found it necessary to also stipulate the training requirements persons willing to undergo that training of becoming an advocate under section 16 and second schedule to the Act.
108.On the other hand, the Legal Education Act is not specific to advocates training. It generally addresses the entire spectrum of legal education by establishing The Council of Legal Education to oversee the broad environment of legal education generally where it gives the Council the mandate to among others:a)‘set standards for requirements for the admission of persons seeking to enroll ‘in legal education programmes’(b)establish criteria for the recognition and equation of academic qualifications in legal education;(c)formulate a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels.’
109.The Legal Education Act unlike the Kenya School of Law Act is thus general while the Kenya School of Law Act is definite not only in purpose but also the scope, which is to train advocates. The Legal Education Act is a general regulatory statute for legal education generally. There is a specific statute that gives a clear road-map for persons who specifically desire to become advocates by profession where all the requirements for training are provided, that is the Kenya School of Law Act. The Council of Legal Education cannot make regulations on requirements for admission to train as Advocates for purposes of the Advocates Act Cap 16 as this is specifically set aside and provided for under the Kenya School of Law Act whose objective is to train advocates. The generality of scope given to the Council of Legal Education to make requirements for admission of persons seeking to enroll in legal education programmes is limited by the specific provisions of the Kenya School of Law Act to the extent that the Council of Legal Education cannot prescribe other requirements for admission to train as advocates as this will contradict express Statutory provisions.
110.The Legislature could have intended that the Council of Legal Education would have the power to make regulations that would supersede express statutory provisions. The statutory provisions in the Kenya School of Law under section 16 of the Act and the second schedule thereto are not in conflict with those of the Legal Education Act, as the Council’s mandate is develop standards for people who may enroll in legal education programmes generally is intact. Those who want to go a step further and train as advocates have to comply with section 16 of the Kenya School of Law Act as read with second schedule thereof. I hold similar position as Justice E.C Mwita in the case of Peter Githaiga Munyeki vs. Kenya School of Law [2017] eKLR where he remarked as follows:
111.On the same breath, I also find that section 16 and the second schedule of the Kenya School of Law Act is not unconstitutional. It does not introduce uncertainty or unpredictability in the legal education programmes. It merely provides the statutory criteria that has to be met by those aspiring to train and become professional advocates. The Council of Legal Education does not have the mandate to tamper with that criteria through making regulations under 8(3) as was erroneously opined by the Petitioner. The regulations would be subordinate to the provisions of the Statute, that is, the Kenya School of Law Act which is the specific law that specifies the requirements for persons whose intent is to train as advocates.
112.The Petitioners contended that section 16 of the Kenya School of Law Act entrenches a monopoly status of the Kenya School of Law and thereby fomenting discrimination of the other legal education providers. Firstly, section 16 of Kenya School of Law Act and second schedule thereto only addresses admission requirements for persons seeking to train as advocates. It is meant to facilitate Kenya School of Law realize the objective for which it was established, namely to train advocates. Section 16 of the Kenya School of Law Act does not discriminate against any person who meets the admission requirements.
113.Further, it is a fact that the mandate of admission into advocate training programme currently lies with Kenya School of Law as operationalized under the Kenya School of Law Act, but does this discriminate against other legal education providers? Section 22 (1) (e) of the Legal Education Act mandates the Council of Legal Education to accredit institutions that have applied to offer Legal education programmes. The consideration of legal education providers to be licensed to offer legal education programmes is not done under section 16 of the Kenya School of Law Act. Indeed, the entire Kenya School of Law Act does not deal with licensing of legal education providers.
114.The matter squarely falls for consideration under section 22 (1) of the Legal Education Act under which the Council of Legal Education is given the mandate to deal.
115.It is however evident that the Legal Education Act has intrinsic insufficiencies in its architecture which might be impeding effective realization of its complete objectives and which therefore, the Petitioner wrongly believes can be sorted out by declaring section 16 of the Kenya School of Law unconstitutional whereas the solution lies in addressing the shortcomings in the Legal Education Act itself rather than annihilating the Kenya School of Law Act.
116.The allegation on discriminative nature of section 16 of the Kenya School of Law Act is thus devoid of merits.
117.The Petitioner cited some of the excerpts from the 2018 Task Force Report as the basis of his contention that Kenya School of Law is experiencing a myriad of challenges that has led to poor performance by students undertaking the Advocates Training Programme at the Institution. This was disputed by the Kenya School of Law (the interested party) in these proceedings. It asserted that it has continuously been improving its facilities as well as recruiting personnel to cope with emerging needs. It also denied that the programme has been recording mass failures.
118.This particular allegation by the Petitioner was not substantiated by any verifiable evidence or data that the mass failure if any, was substantially caused by the ineffectiveness of the training offered by the Kenya School of Law to its students.
119.The upshot of the foregoing findings is that this petition lacks merit. It is dismissed in its entirety.
120.On costs, I find that the petition touches on a matter of public interest. Each Party shall thus bear its own costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JUNE, 2023.L.N. MUGAMBIJUDGE