Korir v Board of Management Kenya School of Law (Tribunal Appeal E017 of 2022) [2022] KELEAT 677 (KLR) (15 July 2022) (Judgment)
Neutral citation:
[2022] KELEAT 677 (KLR)
Republic of Kenya
Tribunal Appeal E017 of 2022
R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members
July 15, 2022
Between
Kenneth Kipkoech Korir
Appellant
and
Board of Management Kenya School of Law
Respondent
(Being an appeal against the decision declining admission to the Advocates Training Programme dated 8th February, 2022 and as subsequently affirmed on the 1st April, 2022 as communicated by Dr. Henry K. Mutai the Director/Chief Executive Officer of the Kenya School of Law)
Judgment
A. Introduction.
1.Kenneth Kipkoech Korirthe appellant has by an originating summons filed on the April 19, 2022 sought to challenge the decision of the respondent the Board of Management Kenya School of Law declining his application for admission to the Advocates Training Programme (hereinafter 'ATP') dated February 8, 2022. The appellant did appeal against the decision declining the application to the School which was unsuccessful, based on the communication by the respondent of the April 1, 2022.
2.In his originating summons filed through George Gilbert Advocates, the appellant prays for relief as follows:-b.That a declaration do issue that appellant is qualified having attained the required qualification to the ATP course.c.That a declaration do issue that the respondent and/or any other person acting on its instruction be restrained from refusing to admit the appellant to the ATP and to issue an admission letter.d.That a declaration do issue that the refusal letter dated April 1, 2022 by the respondent be declared null and void.e.That the costs of the appeal be borne by the respondent.
3.The respondent did file a replying affidavit through its Academic Services Manager Mr Fredrick Muhia. The appeal was directed to be disposed of by way of written submissions.
B. The appeal.
4.The appellant sat for the Kenya Certificate of Secondary Education in the year 2003 at the RCEA Kuinet Secondary School where he attained a mean grade of a D + (Plus) with grades D (Plain) and C - (Minus) in English and Kiswahili languages respectively. He then proceeded to Seguku Hill College in the Republic of Uganda where he studied and sat for the Uganda Advanced Certificate of Education examinations in the year 2006. In the examined subjects he attained the grades of subsidiaries in General paper, History and Christian Religion with a principal in Kiswahili. He was then admitted to the Law Development Centre in Uganda where he studied a Diploma in Law and attained the grade of a Pass in the year 2009. The appellant then secured admission to the Kampala International University to study a Bachelor of Laws degree which he successfully completed and graduated with Second Class Honours Upper Division in the year 2015.
5.On February 1, 2022 he made what he dubed a late application to the respondent for admission to the Advocates Training Programme. On the February 8, 2022 the respondent through its Director declined the application and informed the appellant as follows:-
6.He appealed against the decision to the School predicating his appeal on the grounds that he had in his undergraduate LLB degree from Kampala International University covered the 16 mandatory core units required under the Council of Legal Education (Accreditation of Legal Institutions) Regulations, 2009 and the Council of Legal Education had on January 31, 2022 duly accredited his degree for purposes of joining the ATP in tandem with the provisions of sections 4 (2) (a) and 16 of the Kenya School of Law Act, 2012 as read with sections 12 and 13 of the Advocates Act, Cap 16. 7.
7.In the letter by the Council of Legal Education it was stated;
8.The respondent in addressing the appeal to it on the April 1, 2022 communicated as follows;
C. The response to the appeal.
9.The respondent in opposition to the appeal states that matters of admission to the Advocates Training Programme were prior to the enactment of the Kenya School of Law Act, 2012 exclusively provided for under the Council of Legal Education (Kenya School of Law) Regulations), 2009 being Legal Notice no 169 of 2009. It contends that the Tribunal lacks jurisdiction to entertain the appeal as it is limited to matters that relate to the Legal Education Act, 2012. Further, the said Act cannot apply retrospectively.
10.The Council of Legal Education (Kenya School of Law) Regulations, 2009 Legal Notice no 169 of 2009 do not have provisions for academic progression as contemplated by the appellant. The respondent being cognizant of the fact that appellant had secured admission to LL.B degree Programme in 2009 prior to the enactment of the Kenya School of Law Act, 2012 did not consider the application to the ATP based on it.
D. The submissions by parties.
11.The appellant submits through his advocates that admissibility to the ATP is a matter for the Council of Legal Education as a supervisor of legal education in Kenya in accordance with section 8 (1) (c) and (e) of the Legal Education Act, 2012. It is within its powers to recognize and approve qualifications obtained outside Kenya for purposes of admission to the Roll of Advocates as is the case with the appellant. The appellant ought to be admitted to the Programme having been cleared by the Council of Legal Education. The appellant relies in the decision in Leonard Kipkurui Sang v Council of Legal Education & Another, (2020) eKLR in which it was held;
12.The appellant’s Advocate further contends that his client was denied admission based on section 1 (a) of the second schedule to the Kenya School of Law Act, 2012 without having regard to section 1 (b) thereof. He relies on the decision in Kihara Mercy Wairimu & 7 Others v Kenya School of Law & 4 Others, (2019) eKLR in which it was held;
13.On the jurisdiction of the Tribunal, the appellant submits that it is vested with same by dint of section 31 of the Legal Education Act, 2012. The issue before the Tribunal being one that is based on the rejection letters issued by the respondent on April 8, 2022 and April 1, 2022. The appellant winds up by insisting that he well qualifies for admission to the ATP by dint of section 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012.
14.The respondent submits that the Tribunal is bereft of jurisdiction to entertain the appeal as it cannot apply its establishing law retrospectively. The respondent relies in the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others, (2012) eKLR in which the Supreme Court pronounced itself as follows;
15.The Supreme Court further emphasized as follows;
16.It submits that the appeal before the Tribunal relates to the provisions of the Council of Legal Education Act, 1995 and which was repealed by the Legal Education Act, 2012. The repealed statute did not have a provision for the Tribunal. Further, the establishing the law of the Tribunal by dint of section 31 (1) therein limits it to dealing with matters relating to the Act. The appeal herein did not arise from a matter in the said Act.
17.On the decision to deny the appellant admission, it is submitted that prior to January, 2013 the law governing admissions to the ATP was the Council of Legal Education (Accreditation) Regulations, 2009 and Council of Legal Education (Kenya School of Law) Regulations, 2009. The Kenya School of Law Act, 2012 was enacted and came into force on January 15, 2013. The said law however had no transitional provision. The High Court in Kevin Mwiti & Others v Kenya School of Law & Others, (2015) eKLR addressed the issue by finding that all the students who had been admitted to pursue the LL.B degree prior to the enactment of the Kenya School of Law Act, 2012 could join the ATP based on the admission criteria before the enactment of the said Act. The appellant was thus bound by the Council of Legal Education (Kenya School of Law) Regulations, 2009 which in the first schedule stated at regulation 5 as follows;
18.The appellant’s qualification of a mean grade of a D + (Plus) in the Kenya Certificate of Secondary Education denied him an opportunity to qualify under the said Regulations. He could not even qualify for the Pre-Bar examinations under 5 (d) as he did not meet the minimum grade of a C - Minus indicated therein.
19.The respondent finally concluded by submitting that legitimate expectation was not applicable to the appellant. The decision to deny the appellant admission was procedurally proper. It relied on the decision in Jemimah Nyambura Mwangi v Kenya School of Law, (2022) eKLR in which Justice JA Makau upheld the decision of the respondent declining admission to the Advocates Training Programme.
E. Analysis and determination.
i. Jurisdiction.
20.The Tribunal will first address its jurisdiction to entertain the appeal based on the guidelines in Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Limited, (1989) KLR 1 in which Justice Nyarangi JA as he then was held;
21.In this appeal the respondent and the Council of Legal Education acknowledge that the admissibility of the appellant to the ATP is to be considered based on the Council of Legal Education, Cap 16A (repealed) and the subsidiary legislation made there under being the Council of Legal Education (Kenya School of Law) Regulations, 2009 being Legal Notice no 169 of 2009 and the Council of Legal Education (Accreditation) Regulations, 2009. The statute in issue was repealed by the Legal Education Act, 2012 which also established this Tribunal. The latter statute in the course of the repeal provides for transition and saving in sections 48 and 49 therein. In 48 (2) (a) it is provided;
22.While in section 49 (1) (a) it is provided;
23.With the said provisions, the Regulations made under the repealed Act are instruments in the Legal Education Act, 2012 and are amenable for consideration by the Tribunal.
24.Had the Legislature intended to exclude the Tribunal from inquiring into appeals on matters that arose from the Regulations made before its establishment it would have by express stipulation so provided. What indeed can be discerned from the language of the enactment is that it confers upon the Tribunal by dint of section 31 therein the jurisdiction to deal with any matters under the Act. Thus, the application or otherwise of the Regulations made under the repealed Act are now matters under the Act. The Tribunal cannot be said to have acted retrospectively in entertaining this appeal. For ease of reference section 31 (1) of the Act provides;
25.It is clear that an express conferment of jurisdiction exists in this matter as opposed to being an implication since the wording of section 31 (1) seeks to cast the net as wide as possible by giving the Tribunal powers to deal with any matters arising under the Act. Based on the authority in Republic v Rent Restriction Tribunal Ex-parte: Mayfair Bakeries Limited & Another, (1982) eKLR the Tribunal is well empowered to deal with the appeal. In the said matter it was stated;
26.The Tribunal is further fortified in its finding by the fact that when an Act is repealed the subsidiary legislation remains in force unless an express stipulation is made revoking the subsidiary legislation or the statutory instrument. The Tribunal is well minded in its finding based on section 24 of theInterpretation and General Provisions Act, Cap 2 which provides;
27.The Tribunal further derives guidance from the authority in Republic v Kenya School of Law & Another Ex Parte: Ibrahim Maalim Abdullahi, (2014) eKLR in which Justice Odunga dealt with a matter similar to that before the Tribunal and observed;
28.Finally, regulation 5 (d) of the Council of Legal Education (Kenya School of Law) Regulations, 2009 being Legal Notice no 169 of 2009 provides that it is the Council of Legal Education which is to set the pre-bar examination which if the appellant is eligible to admission thereunder is to sit. This clearly brings the appeal within the realm of the jurisdiction of the Tribunal as it is a matter involving the Council of Legal Education.
ii. The appeal.
29.The impugned decision as communicated by the respondent found that the appellant was unqualified for admission to the ATP since he failed to meet the minimum Kenya Certificate of Secondary Education grades stipulated in regulation 5 (d) of the Council of Legal Education (Kenya School of Law) Regulations, 2009 being Legal Notice no 169 of 2009. By the said regulation the appellant was required to have attained a Bachelor of Laws Degree (LL.B) from a recognized university and attained a minimum grade of C - (minus) in English and a minimum of an aggregate grade of C - (minus) in the Kenya Certificate of Secondary Examination, sits and passes the Pre- Bar Examination set by the Council of Legal Education as a pre- condition for admission. The Council of Legal Education in it’s letter to the appellant well recognized and approved his LL.B degree from the Kampala University however, contrary to the contention of the appellant the said Council never unequivocally confirmed his eligibility for admission to the ATP as can be deciphered from the letter of January 31, 2022.
30.The Tribunal has also considered the provision of regulation 5(d)Aforesaid and finds that the appellant’s Kenya Certificate of Secondary Education examinations result of a mean grade of D + (plus) just as the respondent concluded do not meet the minimum grade of C - (minus) to render him eligible under limb 5 (d) of the Regulations in issue as they were in force then. The respondent’s decision cannot thus be faulted in declining his application to the Advocates Training Programme. The Tribunal is well guided by the authority in Jemimah Nyambura Mwangi v Kenya School of Law, (2022) eKLR in which Justice JA Makau held;
31.The Tribunal finds the appellant’s submission that the applicable law in determining his eligibility to the ATP as being the section 1 (b) of the second schedule to the Kenya School of Law Act, 2012 to be misplaced. The said law was not in force when he secured admission to the LL.B degree at the Kampala International University in the year 2009. It is clear that to apply the said law in considering his eligibility to the ATP will definitely defy the concept of retrospective application of the law. The Tribunal adopts the position as postulated in the decision in Jemimah Nyambura Mwangi supra in which Justice JA Makau held;
32.The Tribunal further finds that to adopt the submission of the appellant on the applicable law as being section 1 (b) of the second schedule to the Kenya School of Law Act, 2012 it will run a foul the established and well settled law that the point of checking for admission requirements to the undergraduate LL.B degree is at the point of admission to the University as opposed to when one makes an application to the ATP. In this matter as already discussed the appellant secured admission to the LL.B degree in the year 2009 before the said statute was enacted. The Tribunal is so guided by the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR by Justice Antony Mrima in which he held;
33.On legitimate expectation, the Tribunal finds that it will be contrary to the law to grant admission to the appellant when his qualifications fail to meet the basic requirements set in the law. A legitimate expectation ought not to run contrary to the law. The appellant also failed to establish the other facets for the application of the doctrine of legitimate expectation as settled by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 Others, (2014) eKLR in which it was stated as follows;
34.The Tribunal is also guided by the decision in Ian Lutta v Kenya School of Law, (2020) eKLR in which Justice Weldon Korir held;
35.The Tribunal finds that no competent and lawful promise based on the state of the law on admission to the ATP was proved to have been made by a public officer authorized to make the same. The denial of admission to the ATP was based on a correct exposition of the state of the law by the respondent. The Tribunal is guided by the authority in Simon Krypton Letambui v Kenya School Law & Another, (2018) eKLR in which Justice Winfrida Okwany held;
36.The appellant well set out his journey from when he left secondary school in Kenya and progressed through ‘A’ levels in the Republic of Uganda, to Diploma in Law and eventually graduated with an LL.B degree. The respondent denied in it’s response that academic progression was provided for in the law. The Tribunal finds that the assertion by the respondent is not correct since regulation 5 (c) of the Council of Legal Education (Kenya School of Law) Regulations, 2009 provides for progression in a legion of manners in the following terms;
37.However, the Tribunal finds in this appeal that the appellant could not benefit from the said options as he failed to attain the minimum Kenya Certificate of Secondary Education grades stipulated in the said Regulations.
F. Disposition.*The Tribunal ultimately now decrees as follows:-a.That the appeal by Kenneth Kipkoech Korir seeking to impugn the decision of the respondent declining his application for admission to the Advocates Training Programme dated February 8, 2022 and as subsequently affirmed on appeal on the April 1, 2022 is dismissed.b.That each party to bear own costs of the appeal.c.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 15TH. DAY OF JULY, 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