Mutichillo v Council of Legal Education (Appeal E001 of 2021) [2021] KELEAT 347 (KLR) (Civ) (28 July 2021) (Judgment)
Mike Mutichillo v Council of Legal Education [2021] eKLR
Neutral citation:
[2021] KELEAT 347 (KLR)
Republic of Kenya
Appeal E001 of 2021
R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members
July 28, 2021
Between
Mike Mutichillo
Appellant
and
Council of Legal Education
Respondent
Judgment
Introduction and background.
1.Mike Mutichilo the appellant instituted an appeal against the Council of Legal Education the respondent at the Tribunal on the 20th May, 2021. The appeal seeks to challenge the decision of the respondent as communicated on the 21st. April, 2021 and reaffirmed on review on the 6th May, 2021 by the respondent declining to recognize and approve his foreign law degree from the Southern Federal University in Russia. The genesis of the decision of the respondent is based on the public notice placed by the Kenya School of Law inviting applications for admission to the Advocates Training Programme (ATP) for the 2021/2022 academic year. In the said notice the eligibility requirements for foreign law degree holders were indicated under the title of graduates of foreign universities and of relevance to this appeal included inter alia:-a)Hold or be eligible for conferment of a recognized LLB degree from a foreign university; andb)Obtain clearance from the Council of Legal Education.
2.The appellant in his appeal seeks for prayers:-a)That the decision of the Council of Legal Education dated 21st. April, 2021 and reaffirmed on 6th May, 2021 be quashed and be set aside.b)That the appellant’s request for a clearance letter for persons with LLB from foreign universities from the respondent be issued to the appellant for purposes of admission to the Advocates Training Programme (ATP) for the 2020/2021 academic year.
3.The grounds of appeal by the appellant as framed by Kipng’eno and Associates Advocates are as follows;
4.The Tribunal by way of directions on disposal of the appeal directed that service be effected upon the respondent. An affidavit of service was lodged with the Tribunal. The Tribunal reviewed the evidence of service and satisfied itself that the same had been duly effected. It proceeded to give directions that this appeal does proceed for disposal by way of written submissions and highlighting by the appellant. The respondent did not appear or file any response to the appeal. The appellant duly complied by filing the submissions and highlighted through his Learned Counsel Mr. Amutala.
2. The impugned decision and documents filed.
5.The decision under challenge by the respondent is embodied in a communication dated the 21st. April, 2021. Due to its relevance to the appeal it is reproduced as follows;
6.To buttress his appeal the appellant presented to the Tribunal the following documentary evidence:-a)A Bachelor’s Diploma translated by the Ministry of Education and Science of the Russian Federation issued on 3rd. July, 2017. An extract of which indicates;b)An official transcript of a Bachelors Diploma which indicates that by the decision of the State Examination Board it conferred the qualification of Bachelor 40.03.01 Legal to Mutichilo Mike after a full time education period of 4 years.c)Information about contents and performance of a Master’s programme. The same has a series of units of study undertaken by the appellant and the respective credit points/academic hours.d)A Masters Diploma translation from Russia to English issued on the 25th November, 2017 by the Ministry of Education and Science of the Russian Federation indicating;e)Information about contents and performance of the Masters programme which indicates the names of the subjects (modules), programme type, the credit points and academic hours.f)A letter seeking an internal review of the decision of the respondent declining recognition and approval of his qualification dated 4th May, 2021 headed as an appeal.g)A letter from the Ministry of Higher Education, Science and Technology of Kenya to Mutichilo Mike embodying a nomination for the Russian Government Scholarship, 2012/2013 informing that he had been nominated to study a law course to be undertaken in the Russian Federation.h)A recognition and equation of qualifications letter dated the 30th September, 2020 from the Commission of University Education. The contents of the letter considering the impugned decision being relevant are reproduced;i)The decision declining recognition and approval of foreign qualifications in law – LLB Southern Federal University, Russia dated 21st. April, 2021 as communicated by Dr. J. K. Gakeri – Secretary/Chief Executive Officer of the Council of Legal Education.j)The communication declining internal review of the decision not to recognize and approve the foreign qualification in law – LLB Southern Federal University, Russian dated the 6th. May, 2021 and being of relevance it is reproduced;“Ref. no. CLE/RA/VOL/VI/(17)Date: 6th May, 2021Mr. Mutichilo MikeDear Mr. Mutichilo,Review of Recognition And Approval of Foreign Qualifications In Law – LLB Southern Federal University, RussiaReference is made to your email dated 4th May,2021 regarding the above subject matter.Regrettably, the application raises no new grounds on which to found a review. As a consequence, Council re-affirms its decision as communicated via letter Ref; CLE/RA/11 VOL.V. (20) dated 21st. April, 2021.Council wishes you well in your endeavors.Yours sincerelyDr. J. K. GakeriSecretary/chief Executive Officer - Council of Legal Education.”k)A blank application form for recognition and approval of foreign legal qualifications CLE/EQ/001.l)The public notice by the Kenya School of Law inviting applications for admission to the Advocates Training Programme (ATP) for the 2021/2022 academic year.m)The Kenya Certificate of Secondary Education certificate of Mutichilo Mike from Hobunaka Secondary School for the examination period November/December, 2010 where he attained a mean grade of B (plain) with grades B (plain) in English, B + (Plus) in Kiswahili, C- (Minus) in Mathematics, B - (Minus) in Biology, C + (Plus) in Chemistry, B+ (plus) in History and Government , A – Minus) in Christian Religious Education and B + (Plus) in Business Studies.
3. The submissions and the highlighting.
7.The appellant through his Learned Counsel Mr. Amutala submitted that the public notice inviting applications to the Advocates Training Programme by the Kenya School of Law acknowledged that foreign universities are global teaching institutions with different types of legal systems and thus in it is wisdom decided not to include that all applicants to the Advocates Training Programme must be or have obtained their degrees from a common wealth jurisdiction. The appellant was admitted to study law in Russia in September, 2013. In the view of the appellant’s Advocate he was covered by section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 which provided,
8.He then proceed to set out extensively paragraphs 53 – 60 of the decision in Robert Uri Dabaly Jimma v Kenya School of Law & Another (2020) eKLR by Justice Antony C. Mrima. The appellant while relying on the authority in Martin Wanderi & 9 Others v The Engineers Registration Board, Supreme Court Petition no. 19 of 2015 submitted that the rejection of his LLM degree had no legal bearing at all. The form for application and approval of foreign legal qualifications he was required to fill had no legal backing. From the requisite extracts from the decision supra at paragraphs 102 and 108 it was held;
9.The appellant then persisted on to submit on the LLM degree as opposed to an LLB degree. He insisted that he had an LLM degree which had been recognized and approved by the Commission for University Education hence the matter was beyond the respondent’s mandate to seek for another recognition and approval. He sought to invoke section 5A (1) of the Universities Act, 2014 which provides;
10.He then reverted to section 5 (1) (g) of the aforesaid Act which provides;
11.As to whether the appellant was to seek equation from the Kenya National Qualifications Authority (KNQA) it was submitted that the requirement was not applicable to the appellant as he sat for his Kenya Certificate of Secondary Education examination in the year 2010 in Hobunaka Secondary School which was a public school approved by the Kenya National Examinations Council. Even the public notice inviting applications for admission to the Advocates Training Programme was restrictive on the applicability of the said requirement by indicating;
11.Finally, the appellant implored the Tribunal to allow the appeal with costs.
4. Analysis and determination.
12.The Tribunal has considered the appeal and finds that the respondent erred in seeking to restrict admissibility to the Advocates Training Programme to only commonwealth countries LLB degree holders. The said requirement was never incorporated in the public notice by the Kenya School of Law. The respondent could not by extrapolation seek to include the said issue as an additional requirement to exclude the prospective applicants to the Advocate Training Programme. The respondent in the letter denying admissibility to the appellant indicated that it was a practice that non – commonwealth LLB degree holders were not eligible for admission to the Programme a position the Tribunal departs from. The operations of the respondent are not managed by practice but by dint of law as it is established under a regulatory juridical framework clearly spelling out what it is to undertake in and how it is to discharge the well spelt out mandate. The Legal Education Act, no. 27 of 2012 and by extension the Kenya School of Law Act, no. 26 of 2012 including the subsidiary legislation made there - under do not incorporate a practice of exclusion of LLB degree graduates from non commonwealth jurisdictions from admissibility to the Advocates Training Programme. The respondent has also not demonstrated any enabling law entitling it to arrive at the said exception to admissibility to the Programme in the impugned decision.
13.Though the Tribunal recognizes as the Court of Appeal did in the Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others [2013] eKLR that the respondent has the duty to set standards to ensure the highest professional standards are maintained in the profession when it stated that:
14.The said standards ought to be documented and communicated.
15.The Tribunal thus finds that the respondent to the said extent acted in excess of its mandate and jurisdiction. The Tribunal is well fortified by section 7 (2) (a) (i) and (ii) of the Fair Administrative Action Act, no. 4 of 2015 which provides;
16.The Tribunal also faults the respondent’s decision to the extent that it sought to exclude the appellant from admissibility on the basis of want of an LLB degree acquired from a commonwealth jurisdiction as it militates against legal dynamism at a time when the world has transformed into a global village. The Constitution of Kenya, 2010 is a progressive instrument that draws values and tenets from diverse legal systems thus an exclusionary approach to legal training will be retrogressive to its spirit and letter. The decision is devoid of evidence of prior existence of an exception to admissibility. The Tribunal derives guidance from the authority in Zachariah Wagunza & Another v Office of the Registrar Academics Kenyatta University & 2 Others, (2013) eKLR in which it was held;
17.The Tribunal now proceeds to address the issue as to whether the appellant met the requirement of holding or being eligible to the award of an LLB degree as well set out in the public notice by the Kenya School Law inviting applications to the Advocates Training Programme of the 2021/2022 academic year and entitlement to the clearance letter by the respondent. The relevant law applicable to address the appellant’s admissibility to the Programme is section1 (b) as opposed to 1 (a) of the Second Schedule to the Kenya School of Law Act, 2012. This is because the appellant holds a foreign degree qualification from Russia. For ease of reference the provisions are stated hereunder as follows;
18.The bachelor’s degree well spelt out is a Bachelor of Laws degree (LLB). The degree held by the appellant is a Bachelor in Legal Studies based on the letter from the Commission of University Education. The same is not the Bachelor of Laws degree (LLB) contemplated and indicated as a bare minimum in the public notice by the Kenya School of Law and the Second Schedule to its establishing law. The appellant’s degree in Legal Studies has its genesis from the interdisciplinary, liberal arts major that engages the meanings, values, practices, and institutions of law and legality. The Legal Studies curriculum examines how law shapes and is shaped by political, economic, and cultural forces. The same is different from the Bachelor of Laws degree set as a minimum entry to the Advocates Training Programme by the respondent. The distinction of the two qualifications is well espoused in Wikipedia which discusses the genesis of the LLB degree as follows;
19.It is clear that the appellant does not hold an LLB degree but a Bachelor of Legal Studies which renders him inadmissible for admission to the Advocates Training Programme and thus the decision declining the clearance letter by the respondent cannot be faulted on whatever score. For the avoidance of doubt the fact that the appellant may hold a higher qualification in law by way of a Masters degree does not render him admissible to the Advocates Training Programme as the minimum remains the LLB degree.
20.The appellant has refuted the capacity of the respondent to address the issue of his degree and submits that the ultimate and final authority remains with the Commission of University Education. He relies on section 5A (1) of the Universities Act, 2014 already adumbrated in this judgment. The said amendment was the subject of the decision in Kenya Medical Laboratory Technicians and Technologists Board & 4 others v Attorney General; Council of Legal Education (Petitioner); Kenya Law Reform Commission & 4 others (Interested Parties), (2020) eKLR in which Justice Makau held while finding that the amendment of the law stripped the individual regulatory professional bodies of the powers vested in the Commission of University Education by dint of the doctrine of implied repeal as follows;
21.The respondent herein who was also amongst the unsuccessful petitioners in the aforesaid matter moved the appellate court vide an application for stay of execution which was disallowed by the court in Kenya Medical Laboratory Technicians & Technologists & 7 others v Attorney General; Commission of University Education & another (Interested Parties), (2020) eKLR by Justices Warsame, Musinga and Sichale; JJ.A who rendered themselves as follows;
22.To the said extent, the Commission of University Education takes precedence over the respondent thus the appellant is correct. However, the only issue that arises is that the said institution which equated his qualification concluded that he held a Bachelor of Legal Studies which the Tribunal just as the respondent did, finds not to amount to an LLB degree for purposes of admissibility to the Advocates Training Programme. The respondent’s decision to the said extent cannot be faulted. Further, the Commission is explicit that he is subject to the individual professional organizations qualifications and regulations as may be demanded. In this case for those who aspire to be legal practitioners it is the respondent. With the finding of the High Court and the order refraining stay of execution by the appellate court it seems section 8 (3) (g) of the Legal Education Act, 2012 have to bow to section 5A of the Universities Act, 2014 the former which provides;
23.Same to section 8 (4) of the Legal Education Act, 2012 therein which provides;
24.On the issue of the appellant’s secondary school qualifications nothing much turns on it as he had the requisite qualifications prescribed in the law to undertake a law degree and the respondent has no issue with it. It is a qualification from the Kenya National Examinations Council which does not require equation of whatever nature.
5. Disposition.a)The decision of the respondent to the extent that it sought to deny the appellant admission to the Advocates Training Programme on the basis that he was not a graduate or had not become eligible to a degree in law from a commonwealth jurisdiction is set aside.b)The decision denying the appellant admission on the basis he does not hold a Bachelor of Laws (LLB) degree as taken by the respondent is affirmed and the finding that the appellant is not entitled to a clearance letter by the respondent.c)Each party to bear own costs of the appeal.d)Any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.It is so ordered by the Legal Education Appeals Tribunal.
DATED AT NAIROBI THIS 28TH DAY OF JULY, 2021.ROSE 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