Kenya School of Law v Kamote (Civil Appeal E389 of 2022) [2024] KEHC 9396 (KLR) (Civ) (30 July 2024) (Judgment)
Neutral citation:
[2024] KEHC 9396 (KLR)
Republic of Kenya
Civil Appeal E389 of 2022
DKN Magare, J
July 30, 2024
Between
Kenya School of Law
Appellant
and
Patience Kathambi Kamote
Respondent
Judgment
1.This is an appeal from the Judgment of the Legal Education Appeals Tribunal given in Tribunal Case No. E016 of 2022 given on 3/6/2022.
2.The Appellant set out grounds of appeal in the Memorandum of Appeal dated 9/6/2922 as follows.a.The Tribunal erred in law and fact in failing to find that it lacked jurisdiction to determine the Appeal.b.The Tribunal erred in law and fact in exceeding its mandate.c.The Tribunal erred in law and fact in failing to properly apply the law and principles on eligibility for admission to the Advocates Training Program.
3.In her appeal to the tribunal vide the memorandum of appeal dated 4/4/2022, the Respondent sought a declaration that she qualified for admission to the ATP by dint of Section 1(a) of the Second Schedule to the Kenya School of Law Act.
4.The Appellant also prayed that the tribunal compels the Appellant to admit the Respondent to the ATP for the 2022 academic year.
5.In its Response, the Appellant maintained that the Respondent did not meet the minimum requirements as required under the Kenya School of Law Act 2012. Further, that the jurisdiction of the tribunal was limited to matters relating to legal education act and not admission requirements for the students.
6.The tribunal considered the case and rendered its judgment on 3/6/2022 allowing the Respondent’s appeal.
Submissions
7.The Appellant relied inter alia on the cases of Law Society of Kenya v Centre for Human Rights and Democracy & 13 Others (2013)e KLR and Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR to submit that the tribunal acted without jurisdiction. On the basis of Owners of the Motor Vessel “Lillian S” (supra) it was submitted as follows: -
8.It was submitted that the Respondent did not meet the requirement under Section 16 of the Kenya School of Law Act, 2012.
9.In rejoinder the Respondent submitted that her revocation was erroneous and the tribunal was correct in its finding. It was further submitted that the Respondent invoked Section 31 of the Legal Education Act to seek intervention of the Tribunal. Further that use of the word or in Section 1(a) of the Schedule to the Kenya School of Law Act, made it eligible for the Respondent to be admitted as two criteria were created for qualification either based on 1(a) or 1(b).
Analysis
10.This court is under the duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
11.In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
12.In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
13.However, in cases where documents are involved or affidavits were used, this court has a wider latitude. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR Kiage JA stated as doth: -
14.The duty of the court is not to substitute the court’s discretion for its own. In Mercy Kirito Mutegi v. Beatrice Nkatha Nyaga & 2 Others [2013] e KLR, the Court of Appeal held:
15.The interpretation of the law must accord with the constitutional imperatives. No interpretation shall be made in a way that allows discrimination or is discriminatory in its effect. In Matindi v CS, National Treasury & Planning & 4 others (Constitutional Petition E280 of 2021) [2023] KEHC 1144 (KLR) (Constitutional and Human Rights) (17 February 2023) (Judgment), this court posited as doth: -
16.The issue is whether the Tribunal acted with jurisdiction and if so, whether the tribunal erred in allowing the Respondent’s appeal.
17.Before venturing into the merits, the Appellant raised an issue that the tribunal acted without jurisdiction. I do know better the response to this issue per the finding of the court in Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR where Mativo J (as he then was) held as doth:
18.The foundation upon which the tribunals in Kenya are established is Article 169(1) of the Constitution of Kenya, 2010. It provides,a.the magistrates courts.b.the Kadhi’s courts;c.the courts martial; andd.any other Court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2).”
19.Parliament has pursuant thereto enacted the Legal Education Act, No. 27 of 2012 which recognizes in its preamble as follows:
20.Furthermore, Section 2 of the Legal Education Act provides for the term ‘Tribunal’ to mean the Legal Education Appeals Tribunal as established by Section 29 of the Act. The jurisdiction of the tribunal is provided for in section 31 of the Act as follows:
21.Consequently, the tribunal was clothed with the requisite jurisdiction. To hold that the tribunal herein is devoid of jurisdiction on a matter relating to the admissibility of students into the Kenya School of Law is to constrict the wide delineation of the powers granted under statute that necessitate the exhaustion through the tribunal of consequential disputes by not necessarily filing originating actions in court.
22.Having found that the tribunal had jurisdiction, the court also finds whether the tribunal erred in allowing the Respondent’s appeal. In Peter Githanga Munyeki v Kenya School of Law, (2017) eKLR Mwita, J held that a holistic interpretation had to be accorded to the schedule of the Act. He held as doth:
23.On merit the question before the court was whether the Appellant erred in refusing revoking provisional admission to Kenya school of law. The Respondent herein scored a C-Plain in her Kenya Certificate of Secondary Education. She proceeded to acquire a Diploma in Law, paralegal studies and eventually attained a Bachelor’s Degree in Law. Subsequently, the Kenya School of Law granted her a provisional admission to the Advocate Training Program but which was revoked when she went for admission on the grounds that she did not meet the minimum requirements for the admission into the Advocate’s Training Program.
24.The Appellant’s case is that the tribunal erred in its finding that the revocation of the Respondent’s provisional admission was improper and ordered for admission of the Respondent so that the finding was in error and without jurisdiction as the Respondent had not attained the minimum qualification for admission into the Kenya School of Law for the Advocates Training Program.
25.On the other hand, the Respondent maintained that the tribunal was correct as she clearly qualified for admission to the Kenya School of Law for the Advocate’s Training Program so that the revocation of admission was unlawful within the meaning of Section 1(a) of the Schedule to the Kenya School of Law Act.
26.The Second Schedule of the Kenya School of Law Act, 2012 as amended by Statute Law (Miscellaneous Amendments) Act, 2014 by sections 1(a) and (b) provides for the admission qualifications to the School as follows:
27.The court notes that the provisional admission letter was dated and issued on 2/3/2022 and the revocation letter was dated and issued on 22/3/2022. The registration process commenced on 7/3/2022 and was expected to last up to 25/3/2022. Therefore, the Respondent’s admission was revoked within the admission window. As such, the revocation was at the earliest juncture before the classes could commence.
28.The court notes that the Respondent sought to benefit under clause 1(a) of the second schedule to the Kenya School of Law Act in order to be granted direct entry into the programme. Even though the tribunal found that the Respondent could derive benefit from clause 1(a) of the Second Schedule to the Kenya School of Law Act, the Respondent was notwithstanding clearly ineligible as she did not meet the minimum K.C.S.E mean grade requirements because she had not attained the minimum qualification Grade of C-plus applicable to all Universities in Kenya. To do otherwise was tantamount to flaunting the standards of education as regulated under statute. In Court of Appeal in Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 others, the court of Appeal [Asike - Makhandia, J. Mohammed and Kantai JJA] stated doth:
29.It therefore follows that the Court of Appeal adopted a conjunctive interpretation of Sections 1(a) and (b) of the Second Schedule of the Kenya School of Law Act, 2012. Based on this, the Respondent not only needed to prove that she acquired or was eligible for a Bachelor’s Degree in Law from a recognized university in Kenya but also that she obtained the minimum KCSE grades of C+ (Plus) and a B Plain in English or Kiswahili.
30.As was held in Victor Juma v Kenya School of Law, Council of Legal Education (Interested Party), (2020) eKLR:
31.The raison d’etre for differentiating the (a) and (b) is that the country cannot control university admission criteria in other countries. This country at least, it can be taken judicial notice that minimum university entry is C plus. The foreign universities have their own criteria. That is why the foreign degrees are to be equated under the Kenya National Qualifications Framework Act, No. 22 of 2014.
32.Under section 3 of the Act, the guiding principles for the Respondent is stated to be:-
33.Some universities can admit if they so wish based on winning a beauty pageant or sports prowess. They cannot impose those qualification on this country. Kenya’s standards are already set and cast in stone. The country can control qualifications and entry level behaviour for students in the country. However, whether there are foreign or locally trained, there must as a corollary be the same entry behaviour.
34.In Maalim v Kenya National Qualifications Authority (Petition E124 of 2022) [2023] KEHC 2002 (KLR) (Constitutional and Human Rights) (17 February 2023) (Judgment), this court posited as follows: -Further, the Kenya National Qualifications Framework Act, No. 22 of 2014 was enacted on 14th January, 2015 to;-“establish the Kenya National Qualifications Authority to provide for:-a.The development of Kenya Qualifications Framework.b.Establish standards for recognizing qualifications obtained in Kenya and outside Kenya.c.Develop a system of compliant lifelong learning and attained of National Qualifications.d.Align qualifications obtained in Kenya with global benchmarking in order to promote National and Transnational mobility of workers.e.Strengthen the national quality assurance system for national qualifications andf.Facilitate mobility and progression within education, training and career paths.89.Therefore, the Respondent has a mandate to develop standards for recognizing qualification. There has been no challenge on the Constitutionality of the KNQR Act, 2014.The Court therefore shall presume the statute as valid law. The foregoing is based on tenets on interpretations clearly enunciated in Kenya Human Rights Commission Versus Attorney General (2018) eKLR. “There is a general but rebuttable presumption that a statute or statutory provision is Constitutional and the burden is on the person alleging unconstitutionality to prove that the statute or its provision is constitutionally invalid. This is because it is assumed that the legislature as peoples’ representative understands the problems people they represent face and, therefore enact legislations intended to solve those problems. In Ndynabo v Attorney General of Tanzania [2001] EA 495 it was held that an Act of Parliament is constitutional, and that the burden is on the person who contends otherwise to prove the country.”90.As a result, the Respondent established various Regulations to carry out its mandate. The last in respect of the matters covered by the petition is the Kenya National Regulations 2018. The said regulations provide in Regulation as doth in Regulation 18:-18.(1)The Authority may recognize competencies or attainment through the following qualification types —(a)a Certificate;(b)a Diploma;(c)a Bachelor’s Degree;(d)a Postgraduate Certificate or Diploma;(e)a Master’s Degree; and(f)a Doctorate Degree.(2)The recognition of attainment referred to in sub regulation(1)shall be guided by the volume of learning assessed based on credits earned, with one credit being equal to ten notional hours.(3)The volume of learning referred to in sub regulation(2)shall be specified in terms of the total minimum number of credits required, and in terms of the minimum number of credits required at its specified exit level on the National Qualifications Framework and, where appropriate, the maximum number of credits from the preceding level may be specified.(4)The credits rating of a qualification shall not depend on the mode of delivery of learning.91.The regulations go ahead and specify qualifications needed to attain a decree as doth:-(5) In determining the volume of learning for a qualification, the following guidelines on credits shall apply —(d)for a craft certificate, the minimum number of credits shall be one hundred and twenty;(e)for a Diploma, the minimum number of credits shall be two hundred and forty;SUBA(f)for a Bachelor’s Degree, the minimum number of credits shall be four hundred and eighty;92.Regulation 21(8) provides as doth:-(8)The Authority shall promote recognition of qualifications attained in Kenya through various mechanisms that include — (a) aligning the National Qualifications Framework and progression pathways with best practices which supports internationally recognized standards;
35.The quality assurance part is an imperative that must be respected in an open and democratic society. When a university sets its own admission criteria, it cannot impose the same upon the Appellant. Not all who train intend to practice. It could be for fun or other need. However minimum qualification are imperative. The Respondent did not have them.
36.There are two issues that came up that need unbundling, that is, the degree alone is sufficient and that a diploma in paralegal studies is a subset of LLB and can be used to admit students to the Appellant institution. LLB is a base qualification without a diploma subset. A diploma in paralegal studies can only lead to a degree in paralegal studies once established.
37.Award of the underlying degree by the University of Nairobi cannot be questioned. It cannot however be a basis for admission to Kenya School of Law.
38.Consequently, I find that the tribunal erred in its finding that the Respondent had qualified for admission to the Kenya School of Law in the glare of the requirement that the minimum university entry was grade C-Plus and for which it was not in dispute that the Appellant had not achieved. In the Indian case of Maharashtra State Board -VS- Kurmarsheth & Others [1985] CLR 1083, it was stated as follows:
39.I find merit in the appeal and allow it. Section 27 of the Civil procedure Act provides as follows: -(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
40.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
41.The Respondent was led down a garden path by institutions that should have known better. The Respondent innocently or otherwise followed the path to her ruin. The best order should be that each party bears its own costs.
Determination
42.In the upshot, I make the following orders:a.The Judgment of the Tribunal dated 3/6/2022 is set aside and substituted thereof with an order dismissing the Appeal in LEAA No. E016 of 2022.b.No order as to costs.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 30TH DAY OF JULY, 2024. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for partiesCourt Assistant – Jedidah