Maiga v Council of Legal Education & another (Appeal E015 of 2023) [2023] KELEAT 181 (KLR) (Civ) (10 March 2023) (Judgment)
Neutral citation:
[2023] KELEAT 181 (KLR)
Republic of Kenya
Appeal E015 of 2023
R.N Mbanya, Chair, EO Arwa, R.W Kigamwa & SM Gitonga, Members
March 10, 2023
Between
Maryline Anyango Maiga
Appellant
and
Council of Legal Education
1st Respondent
Kenya School Of Law
2nd Respondent
(Being an appeal against the decision of the Council of Legal Education declining clearance to sit for the Advocates Training Programme examinations as communicated on the 15th of October 2018 by Dr. J. K. Gakeri – Secretary of the Council of Legal Education and subsequently affirmed on the 18th January 2023 and on the 31st January 2023 as communicated by Ms. Mary M. Mutugi, (OGW) – Ag. Secretary of the Council of Legal Education)
Judgment
A. Introduction.
1.MARYLINE ANYANGO MAIGA hereinafter referred to as the Appellant, instituted an appeal against the decision of the Council of Legal Education herein after the respondent declining to clear her to sit for the Advocates Training Programme (ATP) examinations which are scheduled to be held in the month of March 2023. She enjoined the Kenya School of Law hereinafter referred to as the interested party to the appeal. By her memorandum of appeal she seeks relief as follows:a.A declaration that the decision declining to clear her to sit for the Advocates Training Programme (ATP) examinations be quashed.b.An order directing the respondent to immediately and unconditionally clear her to sit for the Advocates Training Programme (ATP) final examinations upon payment of the requisite fees.c.An order be issued directing the respondent to forthwith clear her to sit for the Advocates Training Programme (ATP) examinations slated for March.d.A declaration that the respondent’s action of refusing to clear her to sit for the Advocates Training Programme (ATP) final examinations is a violation of her right to legitimate expectation.e.Costs of the appeal and interest therein be borne by the respondent.
2.The appeal was served upon the respondent and the interested party. Only the respondent filed a response to the appeal vide a replying affidavit sworn on the 24th February 2023 by Mary M. Mutugi the Acting Secretary and Chief Executive Officer of the respondent. The appeal was directed to be disposed of by way of written submissions of which only the appellant and the respondent filed.
B. The appeal.
3.The appellant challenges the decision of the respondent on the grounds:-a.Its decision to refuse to clear her to sit for the Advocates Training Programme (ATP) examinations slated to commence in the course of the month of March 2023 as taken was ultra-vires, made based on errors of law as well as of fact in addition to acting unreasonably and in bad faith.b.The respondent erred in law and fact in declining to clear her to sit for the examinations despite having been meritoriously admitted to attend the Advocates Training Programme Courses at the Kenya School of Law.c.The respondent erred in law and fact in declining to register her for the final examinations despite having attended the Advocates Training Programme courses at the Kenya School of Law, done assignments, being orally examined and participated in the entire course of instruction.d.The respondent erred in law and fact in declining to register her for the examinations yet she qualified and had attained the necessary credentials for admission to the Advocates Training Programme.e.The respondent erred in law and fact in declining to register her for the Advocates Training Programme not withstanding that the interested party had confirmed that she was eligible for the Advocates Training Programme.f.The respondent erred in law and fact in declining to register her for the final Advocates Training Programme examinations in an apparent usurpation of the power of the interested party who had the sole mandate to consider and admit qualified students to the Advocates Training Programme.g.The respondent erred in law and fact by abruptly, suddenly and without explanation declining to issue her with clearance to sit for the Advocates Training Programme final examinations which violated the right to fair administrative action.h.The respondent erred in law and fact in failing to clear her to sit for the Advocates Training Programme examinations while relying on the wrong provisions of the law and criteria for admission to the Advocates Training Programme.
4.The appellant sat for the Kenya Certificate of Secondary Examinations in the year 2007 at the Kahuhia Girls High School. She attained a mean grade of C (plain) with grades B + (plus) in English and B - (minus) in Kiswahili languages. She applied to the Kampala International University in Uganda for admission to the Bachelor of Laws (LL.B) degree course which was granted to her in the month of September 2008. She undertook the course successfully, completed and graduated with the Bachelor of Laws degree Second Class Honours Upper Division on the 18th of December 2013. She then undertook a Master’s Degree in Public Administration at the Cavendish University of Uganda which she completed in the year 2018. On the 9th of October 2018, the appellant did apply for the equation of her foreign qualification to the respondent and paid the requisite equation fees of sh. 10,000 (Ten Thousand). The respondent in its communication to the appellant on the 15th of October 2018 declined recognition and approval of the foreign qualification of her LL.B degree from the Kampala International University. The extract of the letter being as follows;
5.The appellant, was nonetheless enrolled and then sat for the Pre - Bar examinations at the Kenya School of Law during the January 2019 - 2020 examinations period and based on the communication dated the 31st of January 2020 to the appellant by Dr. Henry K. Mutai - Director/ Chief Executive Officer of the Kenya School of Law she passed in the examinations pertaining to Legal Methods, Systems and Constitutional Law, Law of Contract, Law of Torts, Family and Succession Law and Commercial Law. The appellant failed Land Law and did a re-sit whose results were communicated on 11th February 2022 by the interested party as having been successful.
6.The interested party then proceeded to grant the appellant admission to undertake the Advocates Training Programme and on the 9th March 2022 and she paid the school fees of Ksh. 145,000 (One hundred and Forty-Five Thousand).
7.On the 16th of January 2023 the appellant sought a review of the decision of the respondent made on the 15th of October 2018 which was declined and communication was made to her as follows:
8.The appellant upon receipt of the said communication, being indefatigable, did on the 25th of January 2023 seek the assistance of the interested party in obtaining clearance from the respondent and it was communicated as follows;
9.The appellant once again approached the respondent and sought clearance to enable her to sit for the Advocates Training Programme examinations on 30th January 2023 and the respondent communicated as follows;
C. The response to the appeal.
10.The respondent in its replying affidavit states that it is statutorily mandated through the Legal Education Act, no. 27 of 2012 by section 8 thereof to regulate legal education training in Kenya and to administer such professional examinations as may be prescribed under section 13 of the Advocates Act. It is further mandated to advice the Government on the standardization, recognition and equation of legal education qualifications awarded by foreign institutions. It is also obligated to issue clearance certificates to students who have obtained their law degree qualifications from foreign universities.
11.On the 15th of October 2018 it addressed the appellant’s application for recognition and approval of her LL.B decree from Kampala International University for purposes of admission to the Advocates Training Programme offered at the Kenya School of Law which it found that she failed to meet the threshold for entry into the LL.B programme. At the time she was undertaking the programme, the applicable law for admission to the Advocates Training Programme was the Council of Legal Education Act, Cap. 16A which required that for one to qualify they must show progression from Diploma in Law or have attained at least two (2) principal passes at advanced ‘A’ level or IB qualification prior to undertaking the LL.B degree. Accordingly, the application was declined.
12.On 18th January 2023 the respondent clarified the position further to the appellant by informing her that at the time of admission to the LL.B degree programme in the year 2008 she failed to attain the minimum grades of a mean grade of a C + (plus) and B (plain) in English language as prescribed in the first schedule part (A) II, 5 (ii) of the Council of Legal Education Act. The appellant also failed to produce evidence of progression from Diploma in law to the LL.B degree. The appellant ought to have liaised with it for further advisory prior to proceeding to undertake the Pre - Bar examinations offered by the interested party since when it requires one to undertake the same it expressly indicates so.
13.The respondent states that in arriving at the impugned decision it acted in the public interest of seeking to maintain proper standards of excellence in all professions which is essential. The Tribunal ought to uphold the rule of law as the respondent complied with the doctrine of legality. It also contends that it had not only a statutory duty but also a moral duty to uphold the law which includes its due compliance.
14.It advances the position that academic decisions are distinguishable from administrative decisions when taken by an academic body and with which the Tribunal should be slow to interfere with. However, the Tribunal should intervene when the decisions under challenge are constitutionally so fragile and unsustainable. It also contends that it would be wrong for the Tribunal to make a pedantic and purely idealistic approach to a problem of this nature as the respondent did not breach the fair administrative action law since it communicated to the appellant on time. Further, the letter of the statute did override legitimate expectations howsoever founded.
D. The appellant’s submissions.
15.She submits that the law governing her admission to the Advocates Training Programme was the Council of Legal Education Act, Cap. 16A since she secured admission to the LL.B degree in the year 2008 coupled with the Regulations of the year 2009 then in-force. To buttress the said argument the appellant relies on the findings in Kevin K. Mwiti & Others v Kenya School of Law & 2 Others (2015) eKLR in which Justice George Odunga as he then was held that the applicants to the Advocates Training Programme were to be subjected to the law in-force in terms of qualifications when they joined the LL.B Programme prior to the enactment of the Kenya School of Law, 2012.
16.It contends that the appellant had met the criteria in the first schedule to the Council of Legal Education Act, Cap. 16A and also she had a legitimate expectation that she would sit for the final Advocates Training Programme examinations. The respondent had sought to mislead the Tribunal on the findings in Maharashta State Board of Secondary and Higher Education & Another v Kurmastheth (1985) LRC and Republic v The Council of Legal Education ex-parte James Njuguna & 14 Others (2007) eKLR.
E. The respondent’s submissions.
17.The respondent submitted that the applicable law for enrolment to the LL.B degree programme in the year 2008 and which also governed the admission to the Advocates Training Programme was the Council of Legal Education Act, Cap. 16 A which at part II 5 (ii) provided that for foreign LL.B degree holders they ought to have obtained the minimum grade of entry to a university in Kenya being a mean grade of a C + (plus) coupled with a minimum grade of a B (plain) in English language at the Kenya Certificate of Secondary Education. The appellant had a mean grade of a C (plain) in the Kenya Certificate of Secondary Education examinations. Having not met the threshold, she ought to have taken a Diploma in Law then progressed to the LL.B degree. The respondent to buttress the said point relied on the authority in Nairobi Court of Appeal Civil Appeal no. E472 of 2021 – Kenya School of Law v Otene Richard Akomo & 41 Others, in which it was held:
18.The respondent submitted it had acted legally and the doctrine of legitimate expectation was in applicable in this matter. It relied on the decision in Communication Commission of Kenya v Royal Media Services Limited & 5 Others, (2014) eKLR in which the Supreme Could held;
19.The respondent also relied in the decision in Cherono Gladys v University of Nairobi (2020) eKLR in which it was held;
20.The respondent also relied in the locus - classicus in Maharashta State Board of Secondary and Higher Education & Another v Kurmasheti, (1985) CLR 1083. It also relied in the decision in Penina Wothaya Wachira v Methodist University, (2018) eKLR in which it was held in review in academic matters, these areas are not disturbed by courts unless the decisions under challenge are constitutionally so fragile and unsustainable. If the decision is legal and lawful, the unreasonableness and propriety of the same may not be questionable by the court. In other words, among the Wednesbury principles of illegality, irrationality and impropriety if the decision can get over the first test, it may withstand the other two tests, unless, it is shockingly unreasonable, perverse and improper.
F. Analysis and determination.
21.The appellant, the respondent and the interested party are in common agreement that the appellant secured admission at Kampala University to undertake the undergraduate LL.B degree in the year 2008. The Tribunal accordingly, finds that the applicable criteria in determining the appellant’s eligibility to the Advocates Training Programme ought to have been the Council of Legal Education Act, Cap. 16A (now repealed). The subsidiary legislation made thereunder and applicable at the time was the Council of Legal Education (Admission) Regulations, 2007. At regulation 8 therein it was provided for qualifications for admission to the Kenya School of Law as follows:
22.The Tribunal accordingly faults the reliance and reference by the parties to the Council of Legal Education (Kenya School of Law) Regulations, 2009 which were not in force in the year 2008 when the appellant secured admission to the Kampala International University. To apply the 2009 Regulations will be a clear breach on the tenet of retrospective application of the law where no express stipulation is made in the Regulations. The Tribunal is well fortified by section 28 of the Interpretation and General Provisions Act, Cap. 2 which provides;The decision of the respondent to demand that the appellant demonstrates progression by way of having undertaken a Diploma in Law prior to enrolling for the LL.B degree lacks juridical basis as no such pre-condition had been provided for in the Council of Legal Education Act, Cap. 16A and the Council of Legal Education (Admission) Regulations, 2007. The said decision lacks juridical backing, and it renders itself amendable for review and setting aside under section 7 (2) of the Fair Administrative Action Act, no. 4 of 2015 which empowers the Tribunal to so act where an administrator’s decision is materially influenced by an error of law. In this instance, the respondent Council acted on a misapprehension of the express law then in force in the year 2008 this being the period when the appellant obtained admission to the LL.B degree at the Kampala International University. The respondent thus fails the test of legality in undertaking administrative action. The Tribunal is well guided by the authority in Peter Kipkemoi Chebosseh v Kenya School of Law & Another, (2020) eKLR in which Justice Weldon Korir held;
23.The Tribunal further finds that the appellant was to be subjected to the law as it was at the time of admission to the LL.B degree programme and not based on a subsequent enactment. The superior courts have so consistently held and of which the Tribunal well adopts commencing with the authority in Robert Uri Dabaly Jimma v Kenya School of Law & Another, (2020) eKLR in which Justice Antony Mrima at paragraph 86 held:
24.The Tribunal also is well guided by the findings on the issue based on the decision in Nairobi Court of Appeal Civil Appeal no. E472 of 2021 – Kenya School of Law v Otene Richard Akomo & 41 Others, in which Justices Asike - Makhandia, J. Mohamed and Kantai JJ.A at pages 21 rendered themselves as follows;
25.The Tribunal in reinforcing the finding that the respondent applied the wrong statutory instrument and runs a foul the law on retrospective application thus proceeds to adopt the position in Kevin K. Mwiti & Others v Kenya School of Law & 20 Others, (2015) eKLR in which Justice George Odunga as he then was granted relief while pronouncing himself as follows on the issue;
26.Indeed the respondent can at best be said to have condemned the appellant for having gone to school early. The Tribunal is so fortified by the authority in Pauline Anna Benadette Onyango v Kenya School of Law (2017) eKLR in which Justice Enock Chacha Mwita held;
27.In this matter the Tribunal has reviewed the evidence of the appellant’s Kenya Certificate of Secondary Education results and has no doubt that she failed to attain the requisite mean grade of a C (plus) prescribed in regulation 8 (1) (b) of the Council of Legal Education (Admission) Regulations, Legal Notice no. 400 of 2007 as she attained a mean grade of a C (plain). However, the Tribunal finds that the respondent failed to exhaust its further mandate in considering an application to grant the clearance to the appellant as provided for in regulation 8 (1) (c) and (2) therein. The same required the Council to consider if the appellant was possessed of any other qualifications which were acceptable and recognized by the Council in this matter. The appellant had prior to being accorded admission to the LL.B degree by the Kampala International University sat for what is christened as the access exam administered by the said university and of which the appellant placed before the Tribunal by way of 2 documents being the clearance for the access results and the final grades slip. In the said examinations it is indicated that the appellant had scored a grade point average (GPA) of 3.4. No comment was made by the respondent in its decision as taken on the said qualification and accordingly, the respondent failed to take into an item that was of material and decisive character. Thus, its decision flouts section 7 (2) (f) of the Fair Administrative Action Act, no. 4 of 2015 which provides;
28.The respondent also failed to consider whether it could exercise the discretion accorded to it by regulation 8 (2) of the Council of Legal Education (Admission) Regulations, Legal Notice no. 400 of 2007 which enabled it in its discretion to require a person such as the appellant to sit for any other test approved by the Council as a pre -condition to admission to the School for clearance. The respondent did not address whether the Pre - Bar examination already sat by the appellant could amount or was deficient in its opinion for purposes of satisfying said sub - regulation. In deed a plethora of decisions by the superior court confirm that the Pre - Bar examinations had been put in place to remedy any deficiencies by applicants to the Advocates Training Programme. Such as the decision in Ngugi Gathu Daniel v Council of Legal Education & 2 Others, (2019) eKLR in which Justice Weldon Korir as he then was held;
29.It is not disputed that in 2007 a person could be admitted to the 2nd Respondent if, he/she had among other qualifications a grade B plain in English language and a mean grade C plus in the Kenya Certificate of Secondary Examination. The Petitioner did not meet the qualifications as he had a mean grade of C plain and C plus in English.
30.It is the Petitioner’s case that having sat and passed the pre-bar examination set by the 2nd Respondent he was qualified to join the Advocates Training Programme. The Petitioner assertion was not contested by the 1st Respondent and it could not be contested because it is a correct statement. I find support for the Petitioner’s position in the decision in the case of Kevin K. Mwiti (supra) where it was stated at paragraph 57 that:-
31.The Tribunal having faulted the decision of the respondent finds for the appellant based on the evidence on record as there exists considerable merit to review the decision of the respondent as taken and affirmed. Thus it proceeds to set the same aside. The Tribunal also finds that based on the facts and the evidence on record this appeal satisfies and warrants an exception to the restrictive policy in non- intervention by the judicial organ on matters involving decisions taken in academic matters by an entity such as the respondent. The same constitutes an exception to the said proposition as laid down in Maharashta State Board v Kurmarsheti & Others, (1985) CLR 1083. The Tribunal is well guided by the decision in Indian Borough of Newham v Khatun-Zeb and Iqbal, (2004) EWCA Civ. 55 where it was held;
32.The Tribunal has considered the relief sought by the appellant however, it not grant the same as sought since it will amount to proceeding to exercise the mandate of the respondent. It is indeed evident that there was an omission to give comment and consideration to available documentation of the respondent which warranted its consideration. In the premises, the best course that the Tribunal adopts is to remit this matter for fresh consideration by the respondent based on regulations 8 (1) (c) and (2) of the Council of Legal Education (Admission) Regulations, 2007 and any other applicable law. The Tribunal refrains from exercising the powers of the Council of Legal Education in this matter to enable it to address the matter de-novo and with the requisite dispatch having regard to the expeditious obligation prescribed by the provisions of article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Act, no. 4 of 2015. The Tribunal is well guided by the authority in Godwin Mwangi Maina & Another v Kenya School of Law, (2015) eKLR in which Justice Mumbi Ngugi in quashing the decision declining to admit the petitioners to the Advocates Training Programme and directing the applications be re-considered held at paragraph 67 - 69 therein;
33.In determining this appeal the Tribunal has had regard to section 31 of the Legal Education Act, no. 27 of 2012 and is also conscious of its power under section 35 of the said Act, which empowers it to inter-alia to make any order as it considers just.
G. Disposition.
It is Decreed:-a.That the decision of the respondent as communicated on the 15th of October 2018 by Dr. J. K. Gakeri Secretary and Chief Executive Officer of the Council of Legal Education and also as subsequently affirmed on the 18th of January 2023 and the 31st of January 2023 by Ms. Mary M. Mutugi (OGW) Ag. Secretary and Chief Executive Officer of the Council of Legal Education is hereby reviewed and set aside based on the powers of the Tribunal under section 35 of the Legal Education Act, no. 27 of 2012 and section 7 of the Fair Administrative Act, no. 4 of 2015.b.That the respondent is directed to reconsider the appellant’s application for a clearance to sit for the Advocates Training Programme examinations while having regard to the urgency of the current Bar Examinations period and the laid down legal prescriptions.c.That each party to bear their own costs of the appeal.d.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 10th of March 2023.ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS.) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR.) – MEMBERSTEPHEN MUREITHI GITONGA (MR.) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal. REGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)