Kiboi & 5 others v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E018, E019, E020, E012, E022 & E023 of 2022 (Consolidated)) [2022] KELEAT 243 (KLR) (Civ) (17 June 2022) (Judgment)
Neutral citation:
[2022] KELEAT 243 (KLR)
Republic of Kenya
Appeal E018, E019, E020, E012, E022 & E023 of 2022 (Consolidated)
R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members
June 17, 2022
Between
Michael Kariuki Kiboi
1st Appellant
Wilkista Claire Ooga
2nd Appellant
Salome Wanjiku Karau
3rd Appellant
Martin Omondi Achola
4th Appellant
Teddy Mungai Kiragu
5th Appellant
Teresia Njeri Wanjiku
6th Appellant
and
Kenya School of Law
Respondent
and
Council of Legal Education
Interested Party
(Being consolidated appeals against the decisions by Dr. H. K. Mutai – Director of the Kenya School of Law rejecting applications for admissions to the Advocates Training Programme during the 2022/2023 academic year)
Judgment
A. Introduction and background.
1.the appellants michael kariuki kiboi, wilkista claire ooga, salome wanjiku karau, martin omondi achola, teddy mungai kiragu and teresia njeri wanjiku lodged individual appeals against the kenya school of law as a respondent and the council of legal education as an interested party with the tribunal. the appeals were consolidated for ease of disposal with the lead file being designated as e018 of 2022. the appeals were served upon the respondent and the interested party. the interested party did not appear or file any documents in the matter despite being duly served. the respondent entered appearance and lodged a response to the appeals through mr. fredrick muhia – the academic services manager of the kenya school of law. the appeals were directed to be disposed of by way of written submissions. the appellants lodged the respective appeals through the firm of wambui shadrack & Associates Advocates. The matter came up for the highlighting of the respective submissions with Ms. Odongo; Advocate appearing for the appellants while the respondent was represented by Ms. Pauline Mbuthu; Advocate.
B. The appeals.
2.Michael Kariuki Kiboi The 1st appellant seeks to impugn the decision of the respondent as taken on the 8th February, 2022 rejecting his application for admission to the Advocates Training Programme. The 1st appellant attained a mean grade of C plain and grades B – minus in English and a D + plus in Kiswahili languages in the Kenya Certificate of Secondary Education examinations. He was admitted by the respondent to pursue a Diploma in Law. He undertook the course in the years 2014 – 2016. He successfully completed the course with a grade of a Credit. The appellant secured admission to pursue a Bachelor of Laws degree at the Kenyatta University in the year 2017. Prior to the University granting him admission it sought confirmation as to the eligibility of the appellant from the interested party. The interested party on the 30th August, 2017 wrote to the University confirming that the appellant was eligible for admission. An extract of the letter is in the following terms;
3.The appellant graduated with an LL.B degree from the Kenyatta University on 17th December, 2021 with a Second Class Honours Lower Division.
4.In rejecting the appellant’s application to the Advocates Training Programme the respondent wrote as follows;
5.Wilkista Claire Ooga the 2nd. appellant attained a mean grade of C (plain) in the Kenya Certificate of Secondary School (KCSE) with grades B - (minus) in English and C – (minus) in Kiswahili. She was enrolled at the Kenya School of Law in the years 2014 - 2016 where she successfully completed a Diploma in Law course with a grade of a Credit. She was then admitted to the Mount Kenya University in the year 2017 where she pursued the Bachelor of Laws Degree and graduated on the 6th August, 2021 with an award of a Second Class Honours Upper Division. She made an application for admission to the Advocates Training Programme and was informed of the rejection of her application on the 15th. February, 2022. In the communication it is indicated as follows:
6.Salome Wanjiku Karau the 3rd appellant attained a mean grade of C (plain) in the Kenya Certificate of Secondary School (KCSE) with grades B plain in English and B – (minus) in Kiswahili. She was enrolled at the Kenya School of Law in the years 2014 - 2016 where she successfully completed a Diploma in Law course with a grade of a Credit. She was then admitted to the University of Nairobi School of Law in the year 2017 where she pursued the Bachelor of Laws Degree and has been confirmed to have completed the course by a letter dated the 24th January, 2022 by the Dean of the School of Law and being entitled to an award of a Second Class Honours Upper Division. She made an application for admission to the Advocates Training Programme and was informed of the rejection of her application on the 8th. February, 2022. In the communication it is indicated as follows:
7.Martin Omondi Achola the 4th appellant seeks to impugn the decision of the respondent as taken on the 26th February, 2022 rejecting his application for admission to the Advocates Training Programme. He attained a mean grade of C plain and grades B – minus in English and a C + plus in Kiswahili languages in the Kenya Certificate of Secondary Education examinations. He was admitted by the respondent to pursue a Diploma in Law. He undertook the course in the years 2014 – 2016. He successfully completed the course with a grade of a Credit. The appellant secured admission to pursue a Bachelor of Laws degree at the Kenyatta University in the year 2017. Prior to the University granting him admission it sought confirmation as to the eligibility of the appellant from the interested party. The interested party on the 30th August, 2017 wrote to the University confirming that the appellant was eligible for admission. An extract of the letter is in similar terms to that of the 1st appellant herein already reproduced.
8.The appellant graduated with an LL.B degree from the Kenyatta University on 17th December, 2021 with a Second Class Honours Lower Division.
9.In rejecting the appellant’s application to the Advocates Training Programme the extract of the letter reads as follows;
10.Teddy Mungai Kiragu is the 5th appellant he seeks to impugn the decision of the respondent as taken on the 8th February, 2022 rejecting his application for admission to the Advocates Training Programme. He attained a mean grade of C plain and grades B + (plus) in English and a D + (plus) in Kiswahili languages in the Kenya Certificate of Secondary Education examinations. He was admitted by the respondent to pursue a Diploma in Law. He undertook the course in the years 2014 – 2016. He successfully completed the course with a grade of a Credit. The appellant secured admission to pursue a Bachelor of Laws degree at the University of Nairobi School of Law and graduated with an LL.B degree from the University on 17th December, 2021 with a Second Class Honours Lower Division.
11.In rejecting the appellant’s application to the Advocates Training Programme the respondent wrote as follows;
12.Teresia Njeri Wanjiku is the 6th appellant and she seeks to impugn the decision of the respondent as taken on the 2nd March, 2022 rejecting her application for admission to the Advocates Training Programme. She attained a mean grade of C plain and grades B – minus in English and a B - minus in Kiswahili languages in the Kenya Certificate of Secondary Education examinations. She was admitted by the respondent to pursue a Diploma in Law. She undertook the course in the years 2014 – 2016. She successfully completed the course with a grade of a Credit. The appellant secured admission to pursue a Bachelor of Laws degree at the Kenyatta University in the year 2017. However, prior to the University granting her admission it sought confirmation as to her eligibility from the interested party which on the 30th August, 2017 wrote to the University confirming that she was eligible for admission. An extract of the letter is on similar terms to the 1st appellant herein already reproduced above. She graduated with an LL.B degree from the Kenyatta University on 17th December, 2021 with a Second Class Honours Upper Division.
13.In rejecting her application to the Advocates Training Programme the respondent wrote as follows;
14.The appellants other than the reasons advanced in the letters issued by the respondent also depone in their affidavits in support of the appeals that they were informed to await the conclusion of the matter in Nairobi Court of Appeal Civil Appeal no. E472 of 2021 - Kenya School of Law & Others v Richard Akomo Otene & 32 Others inorder for admission letters to be issued. They have made efforts to expedite the hearing and determination of the said appeal by following up with the appellate court to nought. They further contend that they qualify for admission to the Advocates Training Programme by dint of regulation 5 of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.
C. The response to the appeals.
15.The respondent contends that it is a state corporation established under section 3 of the Kenya School of Law Act, 2012 and is the successor of the erstwhile School established under the Council of Legal Education Act, Cap. 16A (repealed) with the mandate to train persons for the purposes of the Advocates Act, Cap. 16. To this end it offers the Advocates Training Programme. Matters of admission to the said Programme are solely regulated by the Kenya School of Law Act, 2012 while the Tribunal is established under the Legal Education Act, 2012 and it is devoid of jurisdiction.
16.The appellants made their respective applications to the Programme and were found not to have satisfied the criteria set in section 16 of the Kenya School of Law Act, 2012 as read with section 1 of the Second Schedule to the said Act. It is the view of the School that based on the said law, the appellants inorder to be eligible for admission to the Advocates Training Programme they ought to have attained a mean grade of C + plus and a B plain in English or Kiswahili languages at the Kenya Certificate of Secondary Education (KCSE) examinations.
17.The respondent contends that the appellants were relying on academic progression to gain admission into the Advocates Training Programme which is not provided for in the Kenya School of Law Act, 2012. The respondent is bound by its statute to only admit students who meet the admission requirements in it. It contends that allowing people to join the Advocates Training Programme on the basis that they had a Diploma in Law prior to enrolling for admission to the LLB Degree would amount to discrimination and application of double standards while circumventing the clear provisions of the law.
18.The respondent contends that the High Court has on more than one occasion supported its interpretation of the law on admission to the Advocates Training Programme (ATP). The interpretation to be accorded to the conjunction ‘or’ in sections 1 (a) and (b) of the Second Schedule to the Kenya School of Law Act, 2012 ought to be a conjunctive one inorder to avoid absurdity and discrimination of applicants to the Advocates Training Programme. They seek to challenge the application of the statutory cannon on interpretation by contending that it ought only to apply where it furthers the legislative intention. They seek to have an interpretation that will not create an obnoxious result on public policy even when words prima facie carry only one meaning. The prayer of the respondent is for dismissal of the appeals.
D. Analysis and determination.
i. Jurisdiction.
19.On the issue of the jurisdiction of the Tribunal to deal with the consolidated appeals, it is the finding of that section 31 (1) of the Legal Education Act, 2012 empowers it to deal with the appeals. The Tribunal stands guided by 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;
20.The Tribunal has considered the fact that appellants herein obtained Diploma in Law qualifications from the respondent before enrolling for a Bachelor of Laws degree at various Universities that are recognised in Kenya which was provided for as a qualification for enrolment to an LLB qualification in a Kenyan University by the interested party in it’s Regulations. Further, the interested party in it’s communication to Kenyatta University where some of the appellants were conferred with the LLB degree had on the 30th August, 2017 confirmed that they were eligible for admission to the Bachelor of Laws degree. It took into account the High School and Diploma in Law qualifications. The interested party relied on regulation 5 of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 as made by it. The interested party’s statutory mandate under section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations inrespect of persons wishing to enroll in Legal Education Programmes. The same provides;
21.The interested party and the Tribunal are established in the same statute. The Tribunal finds that an inquiry into the matters is part of the functions of the Tribunal in this appeal.
22.The appellants also rely on academic progression in seeking to gain admission to the Advocates Training Programme of which the respondent on its part contends that it is not provided for in its establishing law. The Tribunal finds that in section 8 (3) of the Legal Education Act, 2012 it is provided inter – alia on the interested party’s functions;Functions of the Council:1)......2)…3)In carrying out its functions under subsection (2), the Council shall—…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;
….”
….”
23.The Tribunal finds that in determining the question of application of academic progression as a consideration to admission to the Advocates Training Programme which is well spelt-out in the Legal Education Act, 2012 in section 8 (3) (c) it will be dealing with matters within its statutory mandate. In this instance section 31 of the Legal Education Act, 2012 expressly confers upon this Tribunal the jurisdiction to deal with any dispute on admission to a Legal Education Programme since section 8 (3) (a) of the Act reposes upon the interested party the mandate to make Regulations as to admission requirements to the said Programmes. These include the Diploma in Law, the LLB degree and the Postgraduate Diploma in Law being offered by the respondent. Before the Tribunal are appeals’ by the appellants who applied for admission to the Advocates Training Programme whose qualifications were set by the interested party in its Regulations. Section 31 provides;
(ii) The appellants appeals.
24.The respondent has denied the appellants admission to the Advocates Training Programme on the basis of failure to meet minimum Kenya Certificate of Secondary Education qualifications prior to seeking admission to the LLB degree programmes. It is the finding of the Tribunal that the appellants were granted admission to the various LLB degree programmes by recognised Universities in Kenya basing on the state of the law as it was in regulation 5 of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The interested party was also consulted in some instances and gave a node for the admissions to be granted. The law relied on by the interested party in making the representation as to the eligibility was regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;
25.The appellants relied on the said Regulations as they then were in force before the Court of Appeal declared the same to be invalid for want of compliance with the Statutory Instruments Act, 2013 on 21st December, 2021 in the decision of Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR in securing admission to the undergraduate Degree Programme. The respondent cannot now deny them admissions to the Advocates Training Programme as their admissions were crystallized actions prior to the declaration of invalidity.
26.The Tribunal finds that the appropriate time if an issue existed as to qualifications to undertake the LLB degree was at the point of admission to the said programme as opposed to at the moment the appellants sought admission to the Advocates Training Programme. The Tribunal is well guided by the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR by Justice Antony Mrima as follows at paragraphs 85 – 86;
27.The respondent by virtue of the Fair Administrative Action Act, 2015 was not empowered to take the decision or undertake the exercise it did by inquiring into minimum undergraduate LL.B degree entry requirements as it was a function of the interested party as a regulator. The same provides at section 7 (2) (a) (i) therein while empowering the Tribunal to review the decisions of the respondent in the following terms;
28.The Tribunal also finds that the communication of the decision as regards the 4th appellant was erroneous as it referred to a rejection of his appeal which is a clear inference that his application to the Advocates Training Programme was never as submitted initially considered. The said decision by referring to an appeal as opposed to the initial application runs a foul section 7 (2) (f) and (i) of the Fair Administrative Action Act, 2015 as it was based on failure to take into account the relevant consideration that an initial application to the Advocates Training Programme had been submitted to the respondent as opposed to an appeal and the decision was equally not rationally connected to the purpose for which is was made.
29.The Tribunal finds that the appellants being from recognized University in Kenya were only to be subjected to section 1 (a) considerations for eligibility to the Advocates Training Programme of the Second Schedule to the Kenya School of Law Act, 2012 as opposed to 1 (b) of the said Schedule. The provisions in issue provide;
30.The conjunction ‘or’ can only be read as connoting an election of the route an applicant to the Advocates Training Programme choose in pursuing his/her LLB Degree qualification. The wisdom of Parliament in the enactment can only be left to it and it is not for the Tribunal to make a finding which is inconsistent with the express text of the law in seeking to allegedly remedy what the respondent refers to as the application of double standards or perceived discrimination that has not been substantiated before the Tribunal. The Tribunal adopts the interpretation of the second schedule to the Kenya School of Law Act, 2012 as done in Republic v Kenya School of Law & Another ex – parte Kithinji Maseka Semo & Another, (2019) eKLR by Justice Mativo as follows;“48.Since no legislature ever intends to give two simultaneous inconsistent commands, every statute must if possible be reduced to a single, sensible meaning before it is applied to any case….49.From the dictionary and judicial precedents discussed above, it is clear that the word ''or'' is ordinarily used to introduce another possibility or alternative, that is either or. Depending on context, it can also be used interchangeably with the word "and." It follows that in construing statutory provisions, the context is important so as to get the real intention of the legislature.50.Guided by the authorities cited above and the ordinary meaning of the word “or” in the context of the provision under consideration, it is my view that the use of the word “or” immediately after the semi-colon at the end of the sentence in section 1 (a) of the second schedule introduces another possibility, the first possibility being the category referred to in paragraph (a), that is:-51.The ex parte applicants hold Bachelor of Laws degrees from a recognized University in Kenya. By dint of the above provision, they qualified for admission to the ATP. To suggest otherwise, is in my view an insult to the above provision, which is framed in a simple and clear language. A contrary interpretation is misguided and unfaithful to the provision. It follows that any decision emanating from such a misguided interpretation cannot be read in a manner that is consistent with the enabling provision.”
31.The respondent has sought to press for a holistic interpretation by relying in the decision by Justice Chacha Mwita in Peter Githaiga Munyeki v Kenya School of Law, (2017) eKLR in which the Learned Judge observed;
32.The Tribunal is however, persuaded to adopt the position by the superior court in Sabrina Jelani Badawi v Kenya School of Law (Constitutional Petition E033 of 2019) [2021] KEHC 306 (KLR) (23 November 2021) by Justice John Mativo in which he held;
33.The Tribunal is further fortified by the authority in Stephen Kipkemei Rutto v Kenya School of Law & Another, (2022) eKLR in which Justice J. A. Makau held;
34.Finally, the appellants had in the affidavits in support of their respective appeals deposed to the fact that the respondent had informed them to await the determination by the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law & Others v Richard Akomo Otene. It is the finding of the Tribunal that the same remains an unsubstantiated allegation since it is not backed up by an documentary evidence. The said fact notwithstanding it was not expressly denied by the respondent, it required to be established by way of credible evidence tendered by the appellants. The Tribunal adopts the provisions of section 3 (4) of the Evidence Act, Cap. 80 of the Laws of Kenya which provides;
E. Disposition.
The Tribunal now decree as follows:-a.That the appellants appeals namely Michael Kariuki Kiboi, Wilkista Claire Ooga, Salome Wanjiku Karau, Martin Omondi Achola, Teddy Mungai Kiragu and Teresia Njeri Wanjiku are allowed.b.That the decisions as communicated by the Director of the Kenya School of Law declining admission to the Advocates Training Programme to the appellants namely Michael Kariuki Kiboi on 8th February, 2022, Wilkista Claire Ooga on 15th February, 2022, Salome Wanjiku Karau on 8th February, 2022, Martin Omondi Achola on 26th February, 2022, Teddy Mungai Kiragu on 8th February, 2022 and Teresia Njeri Wanjiku on 2nd March, 2022 are quashed.c.That an order is issued directing the respondent to forthwith admit the appellants namely Michael Kariuki Kiboi, Wilkista Claire Ooga, Salome Wanjiku Karau, Martin Omondi Achola, Teddy Mungai Kiragu and Teresia Njeri Wanjiku to the Advocates Training Programme.d.That each party to bear own costs of the appeal.e.That 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 17TH. DAY OF JUNE, 2022.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