Kimani v Kenya School of Law; Council for Legal Education (Interested Party) (Appeal E002 of 2021) [2021] KELEAT 346 (KLR) (Civ) (21 August 2021) (Judgment)
Leon Kamau Kimani v Kenya School of Law;
Council of Legal Education(Interested Party) [2021] eKLR
Neutral citation:
[2021] KELEAT 346 (KLR)
Republic of Kenya
Appeal E002 of 2021
R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members
August 21, 2021
Between
Leon Kamau Kimani
Appellant
and
Kenya School of Law
Respondent
and
Council for Legal Education
Interested Party
(Being an appeal against the decision declining admission to the Advocates Training Programme during the academic year 2021/2022 as communicated by Dr. H. K. Mutai the Director of the Kenya School of Law dated the 5thMay, 2021)
Judgment
Introduction.
1.Leon Kamau Kimani lodged an appeal with the Tribunal against the Kenya School of Law as a respondent and the Council of Legal Education as an interested party. The appellant’s appeal relates to the decision of the respondent declining admission to the Advocates Training Programme during the academic year 2021/2022 as communicated by the respondent through Dr. H. K. Mutai – Director of the Kenya School of Law on the 5th May, 2021. The appellant in his amended memorandum of appeal pursuant to leave granted by the Tribunal seeks for relief as follows:-a.That the decision of the Director of the Kenya School of Law dated the 5th May, 2021 Ref: no. Nxxxx be quashed.b.That the appellant be admitted to the Advocates Training Programme for the year 2021/2022.c.That any other order as the Honourable Tribunal deems fit be granted.d.That the costs of the appeal be awarded to him.
2.In the appeal the appellant has taken up 6 grounds of appeal as against the impugned decision to wit:-a.That the Director of the Kenya School of Law has no legal basis to monitor legal education in Kenya.b.That the appellant having scored a mean grade of x+ (Plus), x- (Minus) in English, x+ Plus in Kiswahili languages in the Kenya Certificates of Secondary Education (KCSE) examinations and being eligible for the conferment of a Bachelor of Laws degree from the Mount Kenya University, he is qualified to be enrolled to the Advocates Training Programme.c.That the respondent has infringed on his right to education.d.That the respondent has no basis to disqualify him whereas he has completed his Bachelor of Laws degree and he is qualified for admission to the Advocates Training Programme.e.That the only mandate of the Kenya School of Law is to offer the Advocates Training Programme and not to check how one acquired his/her Bachelor of Laws degree.f.That the decision of the Director was ultra-vires, unlawful and illegal as in doing so the Director of the Kenya School of Law ignored the facts:-i.The appellant did his Kenya Certificate of Secondary Education in Kenya.ii.The appellant has a Diploma in Law from an accredited University.iii.The appellant has completed the Bachelor of Laws from Mount Kenya University an accredited university by the Council of Legal Education.iv.The appellant has a constitutional right to education.
3.Accompanying the appeal as instituted is a certificate of urgency urging the fast tracking of the appeal and a supporting affidavit by the appellant.
4.The respondent and interested parties were served with the requisite pleadings as originated by the appellant. The respondent filed a replying affidavit through Mr. Fredrick Muhia – The Academic Services Manager at the School. The interested party did not respond to the appeal. The Tribunal gave directions for the disposal of the appeal by way of written submissions which the appellant and the respondent filed but the interested party failed to. The appeal came up for mention for directions as to highlighting with the appellant acting as a prose litigant and the respondent represented by Ms. Pauline Mbuthu – Advocate both of whom indicated to the Tribunal that they were relying on the rival positions as tendered in the documents lodged with the Tribunal and dispensed with highlighting. The matter was accordingly set down for judgment.
2. The appellant’s appeal.
5.The appellant obtained a mean grade of x+ (Plus), grades x- (Minus) in English and x+ (Plus) in Kiswahili in the Kenya Certificate of Secondary Education (KCSE) being a student at the [Particulars Withheld] High School during the examination of November/December, 2010. He enrolled at the Mount Kenya University where he pursued a Diploma in Law and successfully completed in the year 2013 obtaining an award of Credit II. He sought and was granted admission by the Mount Kenya University to pursue a Bachelor of Laws degree. By a letter of completion issued on the 1st. July, 2021 by Dr. Ronald Maathai the Registrar Academic Administration of the said University, it is acknowledged that he completed the course work and examinations for the 4 year Bachelor of Laws degree and was awaiting graduation. He applied to be enrolled to the Advocates Training Programme, however the respondent rejected his application. The letter rejecting admissibility of the appellant to the Advocates Training Programme is as follows;
6.The appellant’s grievance is that the Director did not consider his Bachelor of Laws qualification but based his decision on the Kenya Certificate of Secondary Education certificate. It is his view that it is not the duty of the Director of the Kenya School of Law to check how one was admitted to the Bachelor of Laws degree but he ought to restrict himself to only offering the Advocates Training Programme. In a nutshell he terms the Director as a busy body by the action of going into pre - Bachelor of Laws degree admission criteria. He complains of discrimination by asserting that it is unreasonable for the respondent to discriminate against him just because of his Kenya Certificate of Secondary Education certificate. In the penultimate he deposes that it is in the best interest of justice if he is admitted to the Advocates Training Programme forthwith and the decision of the Director of the Kenya School of Law quashed. He reiterates that the Tribunal has the requisite jurisdiction to decide the matter.
3. The respondent’s position on the appeal.
7.It asserts that it is a state corporation established under section 3 of the Kenya School of Law Act, 2012 previously established under the Council of Legal Education Act, 1995 (now repealed). It is mandated to train persons for purposes of the Advocates Act, Cap. 16 and for which it offers the Advocates Training Programme. In its view matters of admission to the Advocates Training Programme are exclusively provided for under section 16 of the Kenya School of Law Act, no. 26 of 2012. It contests the jurisdiction of the Tribunal to deal with the appeal on the basis that it is limited to the Legal Education Act, 2012. It is the Respondent’s position that it is required by the establishing law to consider applications for admission to the Advocates Training Programme and once satisfied that an applicant is qualified proceed to admit the applicant to the School.
8.The respondent then sets out the procedural route to consideration of admissibility to the Advocates Training Programme as commencing with the publication of a notice in the local newspaper of an advertisement inviting applications at the beginning of every cycle. The advert sets out the eligibility criteria as provided for in the second schedule of the Kenya School of Law Act, 2012. The respondent contends that upon the appellant making the application to the Advocates Training Programme he did not meet the eligibility criteria provided for under section 16 as read together with paragraph 1 of the second schedule of the Kenya School of Law Act, 2012. Under section 16 of the Act as read with paragraph 1 of the second schedule thereof the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in the Kenya Certificate of Secondary Education (KCSE) with a B (plain) in English or Kiswahili language of which the appellant does not have. The appellant was relying on his Diploma in Law qualification to be admitted to the Advocates Training Programme yet the Kenya School of Law Act, 2012 does not have any provision for academic progression. It is bound by the provisions of the said law in determining eligibility to the Programme and it cannot grant admission on any other criteria save for the second schedule of the Act.
9.The respondent notified the appellant of his unsuccessful application and has not infringed on any of his rights and freedoms. It finally asserts that its decision as taken is consistent with the position that the High Court has in more than one decision taken while relying in the authority by Justice Weldon Korir in Nairobi High Court Petition no. 20 of 2019 – Victor Juma v Kenya School of Law & Council of Legal Education.
4. Appellant’s submissions.
10.The appellant submits that the respondent’s powers as stipulated in section 5 of the Kenya School of Law Act, 2012 do not include a mandate to investigate how one gains admission to pursue a Bachelor of Laws degree in a Kenyan University. He submits that sections 8, 18 and 19 of the Legal Education Act, 2012 assign the said function to the interested party. He submits that the Director of the respondent has also no mandate to undertake a background check on how one gained admission to pursue a Bachelor of Laws degree in a Kenyan University as the functions of the said office are confined to the School as provided for in section 14 (4) of the Kenya School of Law Act, 2012 and do not extend to the same.
11.On academic progression it is the appellant’s view that the paragraph 2 of the second schedule to the Kenya School of Law Act, 2012 allows the School to admit students for para-legal programmes who upon completion are eligible to join Universities in Kenya to pursue a Bachelor of Laws degree. He submits that the course units taught at the School are provided for in part iii of the second schedule to the Legal Education Act, 2012. The said law is the only law that governs academic programmes at the School and it administers the Bar examinations while the School offers tuition. The said law provides for academic progression.
12.It is submitted that section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the Advocates Training Programme. Further sections 1 (a) and 1 (b) of the second schedule to the Kenya School of Law Act, 2012 have distinct application for applicants who hold a Bachelor of Laws degree from a Kenyan University and from a foreign University. He relies on the authority in Adrian Kamotho Njenga v Kenya School of Law (2017) eKLR in which Justices Chacha Mwita held;The appellant submits that the findings by Justice Mwita supra were expounded on in the authority in Republic v Kenya School of Law & Another ex – parte Kithinji Maseka Semo & Another, (2019) eKLR in which Justice John Mativo while affirming the same held;
13.The Judge also noted that the respondent had on countless occasions misconstrued the law on admissibility to the Advocates Training Programme in the aforesaid matter and went on further in Republic v Kenya School of Law & Another ex – parte Otene Richard Akomo & Another, (2019) eKLR to hold;
14.The appellant winds up his submissions by stating that the final examinations are offered by the interested party and marked by it of which it is the only body that regulates legal education in Kenya. It also prescribes through regulation the units to be undertaken in the Advocates Training Programme offered by the respondent. However, it seems not to have an issue with the admissibility of the appellant to the programme and thus it would be absurd for the respondent to be allowed to decline his admissibility.
5. Respondent’s submissions.
15.It contests the jurisdiction of the Tribunal as the relief sought by the appellant falls outside the scope of its jurisdiction the Tribunal having been established under the Legal Education Act, 2012. The interested party plays a regulatory role only in legal education as opposed to one for admission to the Advocates Training Programme. The jurisdiction of the Tribunal is espoused in section 31 (1) of the Legal Education Act, 2012 as being;
16.The respondent then submits on legitimate expectation quoting the treatise by B. N. Pandley, titled The Doctrine of Legitimate Expectation that it imposes in essence a duty on a public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. It acknowledges that the appellant has a law degree from Mount Kenya and applied for admission to the Advocates Training Programme. It reproduces the requirements for admission as set in the sections 1 (a) and (b) of the second schedule to the Kenya School of Law Act, 2012. It is submitted that the appellant cannot gain benefit from section 1 (a) of the schedule to the Act as he fails to meet the minimum KCSE mean grade of C+ (plus). It relies on the decision in Peter Githaiga Munyeki v Kenya School of Law (2017) eKLR by Justice Mwita in which the Learned Judge in interpreting section 1 (a) of the schedule to the Act he indicated that it applied to persons who attended local universities while 1 (b) applied to persons with foreign law qualifications. He then proceeded to apply the holistic reading tenet of interpretation as including the minimum secondary school qualification to both those who attended local universities and foreign universities. Reliance is then placed on the decision in Union of India v Hindustan Development Corporation (1993) 3 SCC 499 where the court noted;
17.The respondent well asserts the provisions of article 47 of the Constitution of Kenya, 2010 as providing that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The respondent then invokes the aid of the decision in Kenya Revenue Authority v Menginya Salim Murgani, Civil Appeal no. 108 of 2009 in which the Court of Appeal rendered itself as follows;
18.The respondent submits that the Kenya School of Law Act, 2012 does not provide for academic progression. It is erroneous to refer to regulations 3, 4, and 5 of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 that provide for academic progression in legal education. The subsidiary legislation was inconsistent with the establishing statute of the School. Section 31 (b) of the Interpretation and General Provisions Act, Cap. 2 provides;
19.The decision in Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others (2014) eKLR is quoted to fortify the said view. The respondent also relies in Victor Juma v Kenya School of Law & Another (2020) in which Justice Weldon Korir held;
20.Finally, it submits that the respondent as an institution, it cannot look beyond the provisions of its enabling Act in admitting students to the Advocates Training Programme. It relies in the authority in Peter Githaiga Munyeki v Kenya School of Law (2017) eKLR in which Justice Mwita held;
6. Analysis and determination.
a. Jurisdiction.
21.John Beecroft Sanders in his treatise, Words and Phrases Legally Defined, vol. 3 at page 113 gives the definition of the term ‘jurisdiction’ as follows;
22.The issue has to be decided first in tandem with Justice Nyarangi J. A. as he then was in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, [1989] KLR 1. The relevant edict from the authority is as follows;
23.The appellant and the respondent have both canvassed the issue of progression in the legal progression. The position of the appellant is that he did after completion of his secondary school education undertake a Diploma in Law qualification and then proceeded to obtain a Bachelor of Laws degree. The position of the respondent is that academic progression is not provided for in the law governing its operations which is the Kenya School of Law Act, 2012. It is apparent the appellant gained admission into the degree by dint of the Diploma qualification which brings out the fact that he derives benefit from academic progression. The said progression is a matter falling under the mandate of the interested party which is established under the Legal Education Act, 2012 and in which law the Tribunal is also established. Therefore, it is clear that Tribunal is empowered to deal with the appeal as by dint of section 31 (1) of the Legal Education Act, 2012 it is entitled to deal with any matter under the Act. The Tribunal derives guidance from the authority in Republic v Kenya School of Law & 2 others Exparte Kgaborone Tsholofelo Wekesa (2019) eKLR in which Justice Mativo held at paragraph 33 therein;
24.Also the respondent cannot purport to operate in sole isolation of the Kenya School of Law Act, 2012 as the power to make regulations for persons wishing to enroll in legal education programmes and progression in the legal education sphere are a sole preserve of the interested party. The relevant provisions are in sections 8 (1) (a), 8 (2), 8 (3) (a) and (b) of the Legal Education Act, no. 27 of 2012 which provides;
25.Also, the body mandated to administer examinations for persons who intend to be admitted to the Bar is the interested party and the respondent remains a delegate for the purposes of admission to the programme and the conduct of the examinations. Infact, the Bar examination structure confirms that the interested party is a central player as the school deals with 40% of the total examination mark through the project course work and oral examinations while the interested party deals with the written examination marked out of 60%. Thus the Tribunal has the mandate to inquire into the admission process that will eventually lead to the Bar examinations. The said issue was addressed by the High Court in Nabulime Miriam & Others v Council of Legal Education & 5 Others, (2016) eKLR in which Justice Odunga held;
26.In the premises the Tribunal confirms that it has the requisite jurisdiction to deal with the appeal.
b. The appeal.
27.The admission qualifications for entry into the Advocates Training Programme are well spelt out in sections 1 (a) and 1 (b) of the second schedule to the Kenya School of Law Act, 2012. For ease of reference the same provides as follows;
28.The contention by the appellant that he falls under section 1 (a) of the second schedule is proper. He has become eligible to be conferred with an LLB degree by the Mount Kenya University which is a recognized University in Kenya based on the letter of the Registrar of the said University. The respondent has sought to extend the requirements in section 1 (b) of the second schedule to the appellant, it is the finding of the Tribunal that the same would be improper. The conjunction ‘or’ between (a) and (b) means that only one is applicable to an applicant. If the applicant is from a recognized university in Kenya the category applicable is (a) without resort and reference to (b). The distinction is well addressed by Justice Chacha Mwita in Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR at paragraph 110 as follows;
29.The Learned Judge addressed the various pronouncements made by the courts and which covers the decisions relied on by the parties to this appeal on said legal provisions relating to admissibility to the Advocates Training Programme as follows;
30.In the premises the decision of the respondent rejecting the appellant’s application to the Advocates Training Programme is not supported by the law. The Tribunal has a duty to ensure that the respondent and the interested party follow the law as it is not a choice but an obligation on their part. The Tribunal derives guidance from the authority in Resley v The City Council of Nairobi, (2006) 2 EA 311 where it was held that;
31.The decision of the respondent becomes one amenable to be set aside by the Tribunal based on it being an action or decision which has been materially influenced by an error of law as provided for in section 7 (2) (d) of the Fair Administrative Action Act, 2015. This is so notwithstanding the fact that the respondent has sought to justify its actions based on the decision in Kenya Revenue Authority v Menginya Salim Murgani, Civil Appeal no. 108 of 2009 in which the Court of Appeal concluded that there is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. The Tribunal makes a finding that the said position is no longer permissible with the enactment of the Fair Administrative Action Act, 2015 and the promulgation of the Constitution of Kenya, 2010 which in article 47 of therein recognizes the right to fair administrative action and of which the respondent well acknowledges to be applicable in its submissions.
32.The Tribunal having arrived at a finding that the appellant is eligible to admission to the Advocates Training Programme it will not delve into the issues of the mandate of the Director of the respondent and the breach of the right to education as taken up by the appellant and the issue of legitimate expectation raised by the respondent as they are now otiose, bearing in mind the finding reached on the admissibility of the appellant to the Advocates Training Programme.
7. Disposition.a.That the decision of the respondent as communicated by the Director of the Kenya School of Law dated the 5th May, 2021 Ref: no. Nxxxx declining admissibility of the appellant to the Advocates Training Programme is set aside and substituted thereof a finding that the appellant is eligible to admission based on section 1 (a) of the second schedule to the Kenya School of Law Act, 2012.b.That the appellant be admitted to the Advocates Training Programme forthwith.c.That each party to bear own costs of the appeal.d.That any party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38 (1) of the Legal Education Act, 2012.It is so ordered by the Legal Education Appeals Tribunal.
DATED AT NAIROBI THIS 20TH DAY OF AUGUST, 2021ROSE NJOROGE – MBANYA - (MRS.)CHAIRPERSONEUNICE ARWA - (MRS.)MEMBERRAPHAEL WAMBUA KIGAMWA (MR.)MEMBERSTEPHEN GITONGA MUREITHI (MR.)MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR