Muchira v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E018 of 2023) [2023] KELEAT 375 (KLR) (Constitutional and Human Rights) (2 June 2023) (Judgment)

Citation
Muchira v Kenya School of Law; Council of Legal Education (Interested Party) [2023] KELEAT 375 (KLR)
Media Neutral Citation
[2023] KELEAT 375 (KLR)
Court
Legal Education Appeals Tribunal
Outcome
Allowed
Case number
Appeal E018 of 2023
Judges
R.N Mbanya, EO Arwa, R.W Kigamwa, SM Gitonga
Judgment date
2 June 2023
Language
English
Type
Judgment
Original source file
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Order
a. That the appeal by Michael Mwangi Muchira as against the Respondent’s decisions declining admission to the Advocates Training Programme during the 2023/24 academic years as communicated by the respondent by Dr. Henry K. Mutai - Director of the Kenya School of Law in the decision dated the January 24, 2023 is dismissed. b. That each party to bear its own costs of the appeal. c. That any party aggrieved by this decision is at liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.
A. Background
1.The Appellant sat for his Kenya Certificate of Secondary Education Examination in the year 2000 and attained a Mean Grade of B+ (Plus) with Grade B- (minus) in English and C+ (Plus) in Kiswahili. He was thereafter conferred with a Bachelors of Arts degree (in Land Economics) from the University of Nairobi on September 1, 2006
2.On December 6, 2013, he attained a degree in Master of Science (Finance) from the University of Nairobi and on December 19, 2014, he attained a degree in Master of Business Administration from Kenyatta University
3.On September 6, 2019, he was awarded a Masters of Arts degree in Valuation and Property Management from the University of Nairobi.
4.The Appellant’s scholarly journey did not end there, he later enrolled for the Certified Public Secretary Studies and Certified Public Accountant Studies and was issued with a certificate of completion for both courses.
5.On September 10, 2018 the appellant was admitted to study for the Bachelor of Laws Degree at the University of Nairobi, and graduated therefrom with a Second Class Honours (Upper Division) on December 16, 2022
6.The Appellant subsequently applied for Admission to the Advocates Training Programme for the 2023/24 academic year, however his application was rejected by the Respondent vide a letter dated January 24, 2023, signed of by Dr HK Mutai –Director/Chief Executive Officer) of the Kenya School of Law. The reason given for declining his application is that he did not meet the language requirements of a B plain in English or Kiswahili.
7.The Appellant was aggrieved by the Respondent’s decision to decline his application and thus brought this appeal to the tribunal.
8.The Respondent filed their Replying Affidavit in opposition to the Appeal. The interested party, though served with the appeal did not make any response to it.
B. The Appeal by the Appellant
9.The Appellant relied on the grounds on the face of the Memorandum of Appeal dated February 21, 2023, which were inter alia:i.That the Respondent erred in fact and law by holding that the Appellant had not met the requisite qualifications to be admitted for the Advocates Training Programme notwithstanding the fact that the Appellant holds a Bachelor of Arts degree (in Land Economics) from the University of Nairobi, Master Degree of Business Administration from Kenyatta University, Master of Arts from the University of Nairobi, Master of Science from the University of Nairobi, and a Diploma in Project Management from the Kenya Institute of Management. Further, the Appellant is a Certified Public Accountant and a Certified Public Secretary and holds a Bachelor of Laws Degree from the University of Nairobi.ii.That the Respondent failed to appreciate that the Appellant had met the set qualifications for being admitted at the Advocates Training Program by virtue of the Second Schedule 1a of the Kenya School of Law Act, 2012.iii.That the Respondent erred in law and fact by failing to appreciate that the Appellant being from a recognized public university in Kenya was 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.iv.The Respondent failed to appreciate that the Appellant, passed the relevant examination of a recognized public university in Kenya and was conferred the Bachelor of Laws degree and therefore qualified to be admitted to the Advocates Training Programme (ATP).v.The Respondent failed to appreciate that 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 the time the appellant sought admission to the Advocates Training Programme.vi.The Respondent failed to consider that the Interested Party confirmed Appellants eligibility for admission to the Bachelor of Laws degree based on the state of the law as it existed when he sought admission to the undergraduate Programme at the University Nairobi.vii.The Respondent in law and fact by failing to recognize that its powers under the Kenya School of Law Act, 2012 do not include how one gained admission to pursue a Bachelor of Laws degree at a Kenyan University since the said functions belong to the Interested Party.
C. Reliefs sought from the Tribunal:i.That the decision of the Director of the Kenya School of Law dated the January 24, 2023 declining the Appellant’s application to the Advocates Training Program as communicated by Dr HK Mutai, the Director of the Kenya School of Law be quashed.ii.The Appellant be forthwith admitted to the Advocates Training Programme for the academic year 2023/2024.iii.Costs of the appeal be awarded to the Appellantiv.The Tribunal in exercise of its jurisdiction to make other orders as it deems fit.
D. The Respondent’s position on the Appeal
10.The Respondent contests the Honourable Tribunal's jurisdiction and states that it is limited to matters that relate to the Legal Education Act, 2012.
11.The Respondent further stated that it is required by its establishing Act the Kenya School of Law Act, to consider applications for admission to the ATP and once satisfied that the applicant is qualified, admit the applicant to the School.
12.The Respondent further contends that upon the Appellant in making his application to the Advocates Training Programme, did not meet the eligibility criteria as provided for under Section 16, read together with Paragraph 1 of the Second Schedule of the Kenya School of Law Act, 2012. That under section 16 of the Kenya School of Law Act, 2012, as read with Paragraph 1 of the Second Schedule, the requirement for admission to the Advocates Training Programme is a mean grade of C+ (plus) in KCSE with B(plain) in English or Kiswahili languages which the Appellants did not have.
13.The Respondent further states that the Appellants are relying on academic progression to be admitted for Advocates Training Programme, yet the Kenya School of Law Act, 2012 does not have a provision for academic progression
14.The Respondent contended that the issue of criteria for admission to the Advocates Training Programme has been settled by the Court of Appeal.
E. The Appellants’ submissions
15.The Appellants set out two issues for determination:i.Whether the Honourable Tribunal has Jurisdiction to entertain the Appellant’s appeal?ii.Whether the Appellant’s prayers sought in the Memorandum of Appeal should be allowed?
16.On the issue of jurisdiction, the appellant contended that Section 31 of the Legal Education Act, 2012 expressly confers upon the Tribunal jurisdiction to deal with any dispute on admission to a Legal Education Programme and that 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, including the Diploma in Law, the LLB degree and the Postgraduate Diploma in Law being offered by the Respondent. The Appellant applied for admission to the Advocates Training Programme whose qualifications are set by the interested party in its Regulations. For this reason, the tribunal has jurisdiction to hear and determine his appeal.
17.The appellant relied on the case of Kimani v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E028 of 2022) [2022] KELEAT 676 (KLR) (26 August 2022)
18.On why the prayers sought by the appellant should be allowed by the tribunal, The Appellant submits that he was admitted to study the LL.B degree at the University of Nairobi in the year 2018 hence graduating in the year 2022. He submits that the law then Applicable in regards to the Appellants’ qualifications was the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 (enacted under the Legal Education Act, 2012), and Section 16 as read together with the 2nd Schedule Paragraphs (a) (1) of the Kenya School of Law Act, 2012. They provided as follows;
5.Undergraduate Degree Programme
(1)The minimum admission requirements for an undergraduate degree programme in law shall be—a.a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;b.at least three Principal Passes in the Kenya Advanced Certificate of Education examination;c.a degree from a recognized university; ord.a Credit Pass in a diploma in law examination from an accredited institution.
19.It is submitted by the appellant that Section 16 as read together with the 2nd Schedule Paragraphs 1 (a) Kenya School of Law Act, 2012 on the other hand provides as follows;“Admission requirementsA person shall not qualify for admission to a course of study at the School, unless that person has met the admission requirements, set out in the Second Schedule for that course.2nd Schedule Paragraphs (1) (a)The Admission requirements will be as follows—Admission Requirements into the Advocates Training Programme (1) A person shall be admitted to the School if—a.having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution,Or;b.having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—(i)attained a minimum entry requirement for admission to a university in Kenya; and,(ii)obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and’(iii)has sat and passed the pre-Bar examination set by the school. (Underlining in bold for emphasis)
20.The Appellant submits that the 2nd Schedule Paragraphs (1) (a) of the Kenya School of Law Act, 2012 provides for dual criteria for admission of students for the ATP Programme and the Appellants were qualified under 2nd Schedule Paragraphs (a) (1) (a).
21.They rely on the case of Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority, (2021) eKLR where at paragraph 110, Justice Chacha Mwita held as follows:“Given the diverse nature of the persons targeted under categories (a) and (b) of the Second Schedule of theKSL Act, it is obvious that their qualifications cannot be similar. It is for those reasons that I echo the position that category (a) and (b) are different hence the visible use of the word ‘or’.”
22.Further, they submit that in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR, the Court held that the use of the word “or” after Paragraph (a) (1) (a) of 2nd schedule above provides an alternative to the requirements of Paragraph (a) (1) (b).
23.The court adopted the literal rule of interpretation employed by the Court in the case of Republic v Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another (supra) in its approach. The learned trial judge held thus;“… the petition falls in the first category of persons who studied in Kenya as opposed to those that studied in foreign universities….it is clear to me that having attained the undergraduate degree in commerce, she had qualified for admission for a degree in law as provided under the 2009 regulations.To my mind, to argue that persons falling under paragraph 1(a) of the second schedule of the Kenya School of Law Act must have obtained a C+ (plus) and B (plain) in either English or Kiswahili to qualify for LL.B is to miss the point that a pre-qualification degree qualifies one to be eligible to study LL.B . this was the law under regulations of 2009 and also in the 2016 regulations.”
24.Finally, the Appellants rely on the case of Peter Githaiga Munyeki v Kenya School of Law (2017) eKLR, in which the Learned Judge observed;“According to the Schedule, there are two categories of persons who can be admitted to the ATP. First are those who attended local universities who fall under paragraph 1(a). The other is persons who attended universities outside Kenya who fall under paragraph 1(b) of the Schedule. Paragraph 1(a) of the Schedule does not specifically state the KCSE grades one should have, but a reading of paragraph 1(b) shows that persons who obtained LLB degrees from outside Kenya should have KCSE grades that would have enabled them join LLB programmes in universities in Kenya, and goes ahead to state those grades as a mean grade of C+ (plus),in KCSE, with B (plain) in either English or Kiswahili languages.”
25.The Appellant submits that it is clear that the prevailing legal instrument that was applicable to him at the time of his admission to the LL.B degree was regulation 5 of the 3rd schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.
26.The Appellant submits that he was admitted to the University of Nairobi for the LLB degree programme in 2018. He cites the Court of Appeal decision in Javan Kiche Otieno & another vs Council of Legal Education [2021] eKLR, in which the judges observed as follows: ‘“It is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.”
27.The Appellant contends that his action had crystallized before the said regulations were declared invalid, and thus should not be affected by the said declaration of invalidity.
28.The Appellant submits that with the holding by several courts and even the tribunal on the criteria for qualification to join the Advocates Training Programme, the Respondent is estopped from persisting on denying qualified persons admission to the ATP.
F. The Respondent’s Submissions
29.The Respondents set out the following as the issues for determination:i.Does the Tribunal have jurisdiction over the matter?ii.Is the Double standards in admission qualification discriminatory or justifiableiii.Whether the Respondent’s decision to refuse admission to the Respondent’s Advocates Training Programme was a breach of legitimate expectationsiv.Is Academic progression applicable?
30.The Respondent’s submit that the Tribunal does not have jurisdiction over the matter, they state that LEAT was created by the Legal Education Act under Part VI and its jurisdiction under that Part, is to hear appeals matters arising out of the LEA. The matter before the Tribunal relates to an appeal from a provision of the Kenya School of Law Act.
31.The Respondent submits that this Honourable Tribunal's jurisdiction is limited to matters that relate to the Legal Education Act, 2012 which states in section 31(1) that:“
31.Jurisdiction of Tribunal
(1)The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.
32.The respondent submits that the Tribunal is a creature of the act which was enacted to establish it in this instance, the Legal Education Act 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.
33.The Respondent submits that Section 30 flows from section 29 which established LEAT, spells out its purpose and specifies the membership and crucially, section 31 grants the Tribunal jurisdiction on any matter relating to this Act, it submits that it is clear that these sections do not expressly confer upon Tribunal power to adjudicate matters that are outside the scope of the Legal Education Act, 2012.
34.On whether there is a double standard in admission qualifications and whether it is discriminatory or justifiable the respondent submits inter alia that in constructing a statutory provision, the first and foremost rule is that of literal construction. If the interpretation is unambiguous and the legislative intent is clear then the meaning is applied without resort to other rules of statutory interpretation.
35.The respondent urges the Tribunal to adopt an interpretation that will not only make the statutory provisions on admission operative and workable, but also to make them operative in a just and reasonable manner.
36.On whether the Respondent’s decision to refuse admission into its institution was a breach of legitimate expectation, the respondent submits inter alia that the doctrine of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The respondent submits that the Appellant did not meet the admission criteria.
37.On whether the procedure to refuse admission was illegal and unreasonable the respondent submits that its hands were tied by statute and that the decision was fair and just and procedurally correct.
38.On the issue of academic progression the Respondent submits that the appellants do not qualify to be admitted to the Advocates Training Programme (ATP) by reason of academic progression because the applicable law, which is the Kenya School of Law Act, 2012, as amended by Statute Law Miscellaneous Amendments Act (No 18 of 2014) does not provide for academic progression.
39.The Respondent submits that the above provisions are clear and do not provide for academic progression. Further the Respondent submits that the Appellants’ argument that because they had obtained his LLB degree, the Respondent should shut its eyes to their KCSE qualifications is gravely erroneous.
40.The Respondent submits that this could not have been the intention of Parliament, as this creates two admission criteria for local universities and foreign universities. The Respondent submits that this would create an outright absurdity.
G. Analysis And Determination
41.On the jurisdiction to entertain the appeal, the primary relief sought by the appellant is hinged on two main points(1)his entitlement to admission to the Advocates Training Programme based on section 1 (a) of the Second schedule of the Kenya School of Law Act, 2012.(2)His academic progression and his entitlement to admissions to the Advocates Training programme under the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 which were formulated by the interested party pursuant to the Legal Education Act, 2012.
42.The function of the interested party in section 8 (3) (a) of the Legal Education Act, 2012 is to make Regulations for persons wishing to enrol in Legal Education Programmes and which function has been confirmed in Nairobi Court of Appeal Civil Appeal No E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 Others, by Justices Asike - Makhandia, J. Mohamed and Kantai JJA at page 21 as follows;“The Council has a duty to regulate how the universities admit students to pursue various cadres of legal education; that is at the certificate, diploma and degree levels. That duty must be discharged at the point of entry of the student at the institution offering such courses. A legal education provider, must, at the direction and supervision of the Council, be able to determine whether a student is qualified to pursue studies in law at the time the student applies to join the institution, be it a college or a university.It should be noted that whereas the Council has to powers to make regulations in respect of requirements for admission of persons seeking to enrol in legal education programmes, it also has the duty to ensure compliance of such regulations at the very point of admission of such persons, at whatever level. Hence, it is upon the Council to ensure that all those enrolled to pursue legal education programmes are duly qualified in law to undertake such studies.”
43.The Tribunal notes that section 8 (3) (c) of the Legal Education Act, 2012 provides for academic progression by requiring the interested party to 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. The Legal Education (Accreditation and Quality Assurance) Regulations, 2016 were formulated by the interested party pursuant to the Legal Education Act, 2012.
44.The Tribunal finds that in inquiring into the matter of applicability of academic progression it will be discharging its mandate under section 31 of the Legal Education Act, 2012.
45.The admission criteria to the 2 legal education programmes namely the Bachelor of Laws degree and the Advocates Training Programme is the main contest in this appeal. 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;“In carrying out its functions under subsection (2), the Council shall—a.make Regulations in respect of requirements for the admission of persons seeking to enroll in legal education programmes;...”
46.In view of the above, there is no doubt that the Tribunal has the requisite jurisdiction to inquire into the appeals before it by dint of Section 31 (1) of the Act which.
47.As regards the appeal, the appellant’s primary contention was that he is entitled to admission to the Advocates Training Programme predicated on the fact that he held a Bachelor of Laws degrees from the University of Nairobi, a recognized university in Kenya. Thus, he was 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.
48.The section provides as follows;“(a)Admission Requirements into the Advocates Training Programme.(1)A person shall be admitted to the School if—(a)having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or(b)having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—(i)attained a minimum entry requirement for admission to a university in Kenya; and(ii)obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and(iii)has sat and passed the pre-Bar examination set by the school.”
49.Indeed, the Appellant cited past authorities where the Tribunal had held that the conjunction ‘or’ between the two sections is an elective, and a disjunctive interpretation has been adopted so that the applicants to the Advocates Training Programme were to only be subjected to a singular as opposed to a conjunct criteria in consideration of their applications to the programme.
50.The Tribunal notes that this position altered, following 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 JJA observed;“It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act, distinguishes applicants who hold a Bachelor of Laws degree from Kenyan University and those from a foreign University. We are of the view that with the use of semi-colon between 1 (a) and (b) of the Act then the conditions follow which to us means that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.”
51.Based on a conjunctive interpretation, as guided by the Court of Appeal, the Respondent’s decision declining the Appellant’s admission to the Advocates Training Programme would be upheld, since the appellant fails to meet the minimum requisite English or Kiswahili languages grades at the Kenya Certificate of Secondary Education examinations embodied above.
52.The Appellant attained Grade B- (minus) in English and C+ (Plus) in Kiswahili languages respectively which were below the stipulated minimum.
53.The Appellant has explored his entitlement to benefit from the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016.
54.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;“
5.Undergraduate Degree Programme
(1)The minimum admission requirements for an undergraduate degree programme in law shall be —(a)a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education examination or its equivalent with a minimum grade of B Plain in English or Kiswahili;(b)at least three Principal Passes in the Kenya Advanced Certificate of Education examination;(c)a degree from a recognised university; or(d)a Credit Pass in a diploma in law examination from an accredited institution.”
55.The validity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016, was challenged 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, on account of the failure to obtain Parliamentary approval as required by the Statutory Instruments Act, 2013. The Hon. Justice Maureen Odero in a judgment delivered on the January 30, 2018 and stated as follows;“The first issue here is the legality of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The petitioners contend that the said regulations were made in contravention of article 10 of the Constitution. They further contend that the 1st respondent was not properly constituted in accordance with section 4 (5) of the Legal Education Act at the time of making the said Regulations and that the 1st respondent does not have the powers to accredit foreign institutions. However, the true position is that the Regulations have not yet become subsidiary legislation because they have not yet been adopted by Parliament as required by section 14 of the Statutory Instruments Act. Thus this provision renders the said regulations void and unenforceable.”
56.The court of appeal affirmed the declaration of invalidity in its judgment of December 21, 2021, in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR, and went on to add, that the declaration of invalidity would not affect actions already crystallized whilst the expunged law was still in force. Justices DK Musinga (P), RN Nambuye and AK Murgor; JJA in paragraphs 47 of the judgment stated;
47.consequently, it is explicit that a court having declared a piece of legislation or a section of an act to be unconstitutional, that act or law becomes a nullity from the date of inception or enactment and not from the date of judgment. But it will not be applicable to actions already crystallized whilst the expunged law was in force.”
57.The operative date of the declaration of invalidity is January 30, 2018 (being the date of the decision by the High Court as later affirmed by the Court of Appeal), on this date, the said regulations which contained the 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.
58.The appellant secured admission to the Bachelor of Laws degree on September 10, 2018 which was after the date of the declaration of invalidity of the 2016 regulations by the superior court. The Tribunal therefore finds that the declaration of invalidity adversely affects his eligibility to the Advocates Training Programme.
59.The great scholarly effort of the appellant is noted and applauded, it is evident that he has put in great effort, time and resources in successfully pursuing respective fields of study to advanced levels.
60.The Tribunal has pondered on whether the appellant would be eligible under section 8 (3) (c) of the Legal Education Act, 2012 which empowers the interested party to 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.
61.The law on progression as enacted in section 8 (3) (c) of the Legal Education Act, 2012 confines progression to the field of law. The said matter was a subject of consideration 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 JJA observed at page 28;“The wording in part C above is clear as it is, that prior learning and experience in law is what ought to be considered in formulating a system that would see the progression in legal education. We do not think a degree in aeronautics or a diploma in interior design for instance, can be termed as progression towards studying law. Indeed, the only closer aspect contemplated is experience and learning in law culminating in a diploma in law or related course in law. We therefore hold that such degree and diploma are not to be categorized as a progression in law of whatsoever kind and even if they were, the appellant had to consider the primary requirements in the Act first before reverting to the regulations and which is the requirement of grades in KCSE.”
62.It is noted that the various degrees and courses held by the Appellant are not in the field of law and therefore do not fall within the realm of academic progression contemplated under Sec 8(3) of the Legal Education Act.
63.It follows that legitimate expectation cannot accrue if the action or benefit expected is not supported by the law. Discussing legitimate expectation, H. W. R. Wade & C. F. Forsyth (Administrative Law, by H.W.R. Wade, C. F. Forsyth, Oxford University Press, 2000), at pages 449 to 450 states thus:“It is not enough that an expectation should exist; it must in addition be legitimate. First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation.Second, clear statutory words, of course, override an expectation howsoever founded. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."
H. Disposition
64.It is decreeda.That the appeal by Michael Mwangi Muchira as against the Respondent’s decisions declining admission to the Advocates Training Programme during the 2023/24 academic years as communicated by the respondent by Dr Henry K. Mutai - Director of the Kenya School of Law in the decision dated the January 24, 2023 is dismissed.b.That each party to bear its own costs of the appeal.c.That any party aggrieved by this decision is at 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 2ND DAY OF JUNE, 2023.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.REGISTRAR
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