Hussein v Kenya School of law and Council of Legal Education (Tribunal Case E007 of 2023) [2023] KELEAT 183 (KLR) (17 March 2023) (Judgment)
Neutral citation:
[2023] KELEAT 183 (KLR)
Republic of Kenya
Tribunal Case E007 of 2023
R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members
March 17, 2023
Between
Issa Mohamed Hussein
Appellant
and
Kenya School of law and Council of Legal Education
Respondent
(Being an appeal against the decision of Dr. H. K. Mutai – Director/Chief Executive Officer of the Kenya School of Law dated 4th January 2023 declining admission into the Advocates Training Programme during the 2023/2024 academic__ year)
Judgment
A. Introduction.
1.Issa Mohamed Huseein instituted an appeal against the decision of the Respondent the Kenya School Of Law denying him admission to the Advocates Training Programme for the academic year 2023/2024. The impugned decision is contained in a letter dated 4th January 2023 authored by the Respondent’s Director, Dr. Henry K. Mutai. The Appellant enjoined the Council of Legal Education as an Interested Party in the matter. The Appellant’s Notice of Appeal and Memorandum of Appeal both dated 11th January 2023 were accompanied by a Certificate of Urgency of even date and a Supporting Affidavit sworn by the Appellant on 11th January 2022. The Appellant also relies on his Further Affidavit sworn on 14th February 2023.
2.The Respondent filed its response through a Replying Affidavit of Mr. Fredrick Muhia – its Academic Services Manager. The Interested Party did not file any documents but sought to rely on the documents filed by the Respondent.
3.The Parties consented to the Appeal being disposed of by way of written submissions.
4.The Appeal seeks the following prayers:-a.That the decision of the Respondent as communicated by its Director in the letter dated 4th January 2023 declining admission of the Appellant to the Advocates Training Programme for the academic year 2023/2024 is set aside and substituted thereof with 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 decision of the Director of the Kenya School of Law contained in the letter dated 4th January 2023 be quashed;c.That the Appellant be admitted to the Advocates Training Programme for the academic year 2023/2024.d.That any other order that this Honourable Tribunal may deem just and expedient be granted.e.That the costs of the appeal be awarded to the Appellant.
B. The Appeal.
5.The Appellant states that the Respondent has declined to admit him into the Advocates Training Programme for the academic year 2023/2024 yet he is qualified under section 1(a) of the second schedule to the Kenya School of Law Act, 2012. He attained a mean grade of B (Plain) with a grade of a C + (plus) in both English and Kiswahili languages in his Kenya Certificate of Secondary Education (KCSE). He possesses a Bachelor of Arts Degree from the University of Nairobi attained in 2014. The Appellant states that in 2016, he was admitted to the University of Nairobi for a Bachelor of Laws Degree that commenced on 5th September 2016. He thereafter graduated with a Bachelor of Laws Degree (Second Class Honours (Upper Division)) attained on 16th December 2022 from the same University of Nairobi. In 2019, he attained a Master’s Degree in Public Policy and Administration from Kenyatta University.
6.Having attained these qualifications, the Appellant applied for admission to the Advocates Training Programme for the academic year 2023/2024 which application was declined by the Respondent vide its letter of 4th January 2023.
7.The letter of 4th January 2023 reads in part as follows:
8.The Appellant impugns the decision taken on 4th January, 223 on the basis that it is based on a misinterpretation of the law as he is qualified under section 1(a) of the second schedule to the Kenya School of Law Act, 2012. He also states that the decision infringes on his right to education and finally that having done his KCSE examination in Kenya, his Bachelor of Laws Degree from the University of Nairobi which is a university accredited by the Interested Party, he is qualified for admission to the Advocates Training Programme for the academic year 2023/2024. He finally states that he has a constitutional right to education.
C. The Response to the Appeal.
9.The Respondent states that its mandate is to inter-alia train persons for purposes of the Advocates Act (Cap 16) for which it offers the Advocates Training Programme. It further states that matters of admission to the Respondent’s Advocates Training Programme are exclusively provided for under Section 16 of the Kenya School of Law Act, 2012. Therefore, since according to the Respondent, the Tribunal’s jurisdiction is restricted to matters under the Legal Education Act 2012, the Tribunal lacks jurisdiction to handle the matter.
10.The Respondent further states that upon examining the application for admission to the Advocates Training Programme by the Appellant, it found him ineligible as per the eligibility criteria set out in Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, 2012. The Appellant, according to the Respondent was relying on academic progression to be admitted to the Advocates Training Programme yet the Kenya School of Law Act, 2012 does not have a provision for academic progression.
11.Finally the Respondent indicated that the Court of Appeal has supported the Respondent’s interpretation of the law on admission to the Advocates Training Programme.
D. The submissions by the Parties.
12.The Appellant submits in his written submissions dated 14th February 2023 that he qualified for admission into the University of Nairobi Bachelor of Laws Degree programme by dint of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. He states in his submissions that he was admitted to the degree programme in 2016 and it commenced on 5th September 2016.
13.He relies on the case of Mucheke v Kenya School of Law ( Appeal E026 of 2022) KEL EAT 853 (KLR).
14.The Appellant further submits that he meets the requirements under section 1(a) of the second schedule to the Kenya School of Law Act, 2012 and relies on the cases of Maina & Another v Kenya School of Law and Council of Legal Education ( Appeal E012 & 14 of 2022) KEL EAT 1 (KLR) and the decision of Justice Mativo as he then was in Republic v Kenya School of Law & Another ex-parte Kithinji Maseka Semo & Another (2019) eKLR.
15.Through its submissions dated 20th February 2023, the Respondent first takes issue with whether the Tribunal has jurisdiction to hear and determine the Appeal. The Respondent relies on the definition of “jurisdiction” in Black’s Law Dictionary, Sixth Edition and Halsbury’s Laws of England, 4th Edition, Volume 10, Paragraph 314. It also quoted the Constitution of Kenya, 2010, article 159. The Respondent also relies on the cases of the Law Society of Kenya V Centre for Human Rights and Democracy & 13 Others (2013) eKLR, Bakeries Limited v Rent Restriction Tribunal and Kiriti Raval Nairobi HCMCC No. 246 of 1981, Ex-Parte Mayfair Bakeries Limited V rent Restriction Tribunal and Kirit Raval, Nairobi HCMCC No 246 of 1981 and the Owners of the Motor Vessel “Lillian S” Vs Caltex Oil(Kenya Limited (1989)eKLR.
16.The Respondent contends in these submissions that the Tribunal was created by the Legal Education Act, 2012 under part VI and its jurisdiction under that Part, is to hear appeals on matters arising out of the Act. That the matter before the Tribunal relates to an appeal from a provisions of the Kenya School of Law Act, 2012. The Tribunal’s jurisdiction is limited to matters that relate to the Legal Education Act, 2012. That the Tribunal is a creature of the Act which was enacted to establish it in this instance, the Legal Education Act, 2012 which is an Act to provide for the establishment of the Council of Legal Education, the establishment of the Legal Education Appeals Tribunal, the regulation and licensing of legal education providers and for connected purposes. The Respondent, therefore, submitted that the Tribunal does not have jurisdiction to hear and determine this appeal.) eKLR .
17.The Respondent also submits that the process of admission to the Respondent’s Advocates Training Programme (ATP) is exclusively provided for under section 16 of the Kenya School of Law Act, No. 26 of 2012 which states that;
18.The Respondent further submitted that it is required by its establishing Act; the Kenya School of Law Act, 2012 to consider applications for admission to the Programme and once satisfied that the applicant is qualified, admit the applicant to the School which is provided in section 17 of the Act. The Respondent submitted that the Appellant’s appeal essentially asks for the Tribunal to grant her admission to the School and thereby arrogate the statutory duties of the School. The Respondent relied on the decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others, (2012) eKLR it was stated that;
19.The Respondent contends that the establishment of two routes for consideration of applications to the Programme amounts to discrimination. It relies on Odunga J in Sollo Nzuki v Salaries and Remuneration Commission & 2 Others, (2019) eKLR sought to make a determination of what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination.
20.On whether the Respondent’s decision to refuse admission was a breach of legitimate expectation, the Respondent relied on in the recent pronouncement by the Court of Appeal in Nairobi 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 held;The regulations cannot override the provisions of an Act of Parliament.”
21.On academic progression, the Respondent states that the Kenya School of Law Act, 2012 as amended by the Statute Law Miscellaneous Amendments Act (No. 18 of 2014) does not provide for academic progression.
E. Analysis and determination.
22.The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme constitute the crux of the appeal herein. The Parties have taken up the said matters. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the interested party the powers to amongst others regulate the admission criteria to legal education programmes. It provides;
23.The said position has been upheld by the pronouncement of Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A held;
24.The interested party and the Tribunal are established under the same statute thus, the Tribunal has the requisite jurisdiction to inquire into the appeal before it by dint of section 31 (1) of the Act which provides;
25.Indeed it is clear that an express conferment of jurisdiction exists in this matter as opposed to being an implication. Hence 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.Now turning to the substantive Appeal, the Appellant’s primary contention was that he was entitled to admission to the Advocates Training Programme predicated on the fact that he held Bachelor of Laws degrees from recognized university in Kenya. Thus, they were only to be subjected to the scrutiny in section 1 (a) as opposed to 1 (b) of the Second Schedule to the Kenya School of Law Act, 2012. For ease of reference the Tribunal reproduces the same as follows;
27.The Tribunal had in its earlier decisions adopted the literal cannon on statutory interpretation of the said law by finding that the existence of the conjunction ‘or’ between the two sections connotes an elective and a disjunctive interpretation has been to be adopted. Hence, the applicants to the Advocates Training Programme were only to be subjected to singular as opposed to conjunct criteria in consideration of their applications to the programme. The said position has however since changed based on the pronouncement of the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A observed;
28.Based on a conjunctive interpretation, the Respondent’s decision as taken declining admission to the Advocates Training Programme on a cursory examination would be upheld as the Appellant fails to meet the minimum English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above. The Appellant attained grades C+ (plus)) in both English and Kiswahili languages which was below the stipulated minimum of a B(plain).
29.We also note that the Appellant also contended that he qualifies for admission under Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Interested Party had formulated criteria for admission to the Bachelor of Laws degree and the Advocates Training Programme based on its mandate under section 8 (3) (a) of the Legal Education Act, 2012. For the Bachelor of Laws degree the same was provided for vide regulation 5 of the 3rd Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which provided;
30.The said efforts were however, found to have been inchoate based on the decision of the superior court initially and as affirmed by the Court of Appeal in a Constitutional Petition lodged in the High Court at Nakuru in Petition no. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another. The petitioners challenged the formulation of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 on account of failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 rendered herself as follows;
31.With the said pronouncement which was a declaration of invalidity of law, the said Regulations (which had come into force on 6th February 2016) that contained the formulated criteria for admission ceased to have had any legal consequence from their inception. This included the set out admission criteria to the various legal education programmes contained in them. However, on appeal to the Court of Appeal the retrospective application of the said declaration was clarified as not being applicable to crystalized actions. The Court in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR Justices D. K. Musinga (P), R. N. Nambuye and A. K. Murgor; JJ.A in paragraphs 34, 35 and 47 of the judgment while upholding the decision of the superior court as made on the 30th January, 2018 pronounced itself additionally as follows;
32.In this appeal, the crystalized actions that arise would entail a consideration of the point at which the Appellant had secured admission to the Bachelor of Laws degree programmes at the time the initial decision on the invalidity of the Regulations was entered by the superior court on the 30th January 2018. As regards the Appellant, he secured admission to the said degree on the 5th of September 2016 accordingly, he is entitled to the benefit of a crystalized action as a saving to the effect of the declaration made on 30th January 2018.
32.On legitimate expectation, the Appellant did not raise the same though the Respondent submitted on it. We shall not make any findings on the same.
F. Disposition.
It is decreed:-a.That the appeal by Issa Mohamed Hussein is allowed and the decision dated the 4th of January 2023 as communicated by Dr. Henry K. Mutai - Director of the Kenya School of Law declining admission to the Advocates Training Programme is quashed and set aside.b.That an order is issued directing the Respondent to forthwith admit the Appellant Issa Mohamed Hussein to the Advocates Training Programme.c.That each party to bear its 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 17TH DAY OF MARCH 2023.ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSON .....................................EUNICE ARWA - (MRS.) - MEMBER.....................................RAPHAEL WAMBUA KIGAMWA (MR.) – MEMBER .....................................STEPHEN GITONGA MUREITHI (MR.) - MEMBERI Certify this is a true copy of the original judgment of the Tribunal. REGISTRARSIGNED BY: ROSE WAITHERA NJOROGE(CHAIRPERSON)