Kithuka v Kenya School of Law; Council of Legal Education (Interested Party) (Appeal E031 of 2023) [2024] KELEAT 306 (KLR) (7 February 2024) (Judgment)

Citation
Kithuka v Kenya School of Law; Council of Legal Education (Interested Party) [2024] KELEAT 306 (KLR)
Media Neutral Citation
[2024] KELEAT 306 (KLR)
Court
Legal Education Appeals Tribunal
Outcome
Dismissed
Case number
Appeal E031 of 2023
Judges
R.N Mbanya, EO Arwa, R.W Kigamwa, SM Gitonga
Judgment date
7 February 2024
Language
English
Type
Judgment
Original source file
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A. Introduction and background.
1.The appellant Mumbi Caroline Kithuka filed an appeal against the decision of the respondent the Kenya School Of Law made on the 28th November, 2023 and subsequently affirmed on the 7th December, 2023 on an internal appeal to the respondent. She has enjoined the Council Of Legal Education as an interested party. By her Memorandum of Appeal she prays that the decision by the respondent as communicated by Dr. Henry K. Mutai – Director/Chief Executive Officer of the Kenya School of Law made on the 7th December, 2023 be set aside in its entirety and substituted thereof: -a.A declaration that the appellant qualifies for admission to the Advocates Training Programme.b.An order be issued compelling the respondent to admit the appellant to the Advocates Training Programme forthwith.c.The Tribunal be pleased to grant any other relief and orders as it may deem fit to further the ends of justice.
2.The respondent was served with the appeal and filed a replying affidavit to the appeal. The interested party did not file any documents in opposition to the appeal but opted to rely on the submissions of the Respondent. It was directed that the appeal be disposed of by way of written submissions with only the appellant and the respondent filing the same. The parties highlighted their submissions at a plenary hearing.
B. The appeal.
3.The appellant sat for the Kenya Certificate of Secondary Education (KCSE) examinations in the year 2015 as a private candidate. She attained a mean grade of a C plain with grades C + plus in English and Kiswahili languages. She applied to the respondent and secured admission to study a Diploma in Law course. Her admission letter to the course is dated the 13th April, 2016.
4.She completed the course in December, 2018 attaining a score of a credit. In the year 2019 she applied and secured admission to study a Bachelor of Laws degree at the Mount Kenya University which she successfully completed in August, 2023. She then applied to be admitted to the Advocates Training Programme (ATP) offered by the respondent during the 2024/2025 academic year.
5.Her application was declined for the reason that she failed to meet the minimum mean grade of a C + plus and a B plain in either English or Kiswahili languages at the Kenya Certificate of Secondary Education (KCSE). She appealed to the respondent against the decision which affirmed the rejection.
6.She has now appealed to this Tribunal against the decision of the respondent based on the grounds that: -a.The decision was arrived at in a cursory and perfunctory manner without careful consideration of the relevant statutory provisions governing admission.b.The appellant had attained a law degree qualification from a recognized University in Kenya.c.There was want of consideration of her academic progression as a relevant statutory consideration.d.The decision is ultra vires, unlawful and illegal for ignoring her Kenya Certificate of Secondary Education qualification, her Diploma in Law from the respondent, the Bachelor of Laws degree from Mount Kenya University an accredited University by the interested party and her constitutional right to education.e.The decision was based on irrelevant considerations against the weight of the evidence and offended the tenets of fairness and justice.
C. The response to the appeal.
7.The respondent has challenged the jurisdiction of the Tribunal on the basis that it is limited to matters that relate to the Legal Education Act, 2012. On the decisions as taken by the respondent, it contends that it is only bound to consider the criteria provided for in the Kenya School of Law Act, 2012 in considering applications for admission to the Advocates Training Programme. It is the respondent’s position that the appellant was ineligible for admission to the programme for failure to meet the minimum qualifications under the said law. The appellant was seeking to rely on academic progression which is not provided for in the Kenya School of Law Act, 2012.
8.Further, she secured admission to the University to undertake studies for the Bachelor of Laws degree in June, 2019 and thus she could not rely on the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. To allow her to join the programme based on her Diploma in Law qualification would be to circumvent the law as the statute was clear on the qualifications. The respondent then seems to proceed on a trajectory by deposing that the appellant’s Diploma is not related to law and cannot consequently be interpreted to be academic progression in the field of law. The respondent finally deposes that the appellant was not qualified as the issue of qualification has been settled by the Court of Appeal.
D. Appellant’s submissions.
9.On jurisdiction, the appellant submits that the Tribunal is conferred with the same based on the Legal Education Act, 2012. Section 31 therein empowers it to determine an appeal on any matter relating to the Act. She relies on the decision in Maina & Another v Kenya School of Law & Another (2022) KELEAT in which the Tribunal held;“The interested party and the Tribunal are established in the same statute. The Tribunal finds that an inquiry into this matter is part of the functions of the Tribunal in this appeal. The Tribunal will be addressing matters within the confines of section 31 (1) of the Legal Education Act, 2012.”
10.On the appeal, she submits that based on the second schedule to the Kenya School of Law Act, 2012 she was eligible for admission to the Advocates Training Programme as she had attained a Bachelor of Laws degree from Mount Kenya University. She relies on the decisions in Republic v Kenya School of Law & Another – ex-parte Kithinji Maseka Semo & Another (2019) eKLR; Gachoki & 2 Others v Kenya School of Law & Another (2022) KELEAT and Wamuyu Charity v Kenya School of Law & Another (2022) eKLR. On academic progression she submits that the second schedule to the Kenya School of Law Act, no. 26 of 2012 should be read together with paragraph 6 of the Third Schedule to the Legal Education (Accreditation and Quality Assurance) Regulations, 2012. She submits that her academic progression has been immense, worthy of noting and consideration ought to be accorded to it by the Tribunal as she was appointed as a court process server in the year 2013 and has been renewing her licence ever since.
11.In May, 2016 she was enrolled for a Diploma in Law course at the respondent’s institution which she completed with a score of a credit in December, 2018. She has been working as a legal intern and law clerk at the offices of Muma & Kanjama Advocates for the past 10 years during which she has gained substantial experience in the practice of law. The Appellant contends that the same amounts to both academic and career progression of which the Tribunal cannot gloss over while determining this matter. In support of her submission she relies on the decision in Robert Uri Dabaly Jimma v Kenya School of Law & Another (2022) eKLR in which Justice Antony Mrima held;“The law recognizes prior learning and experience as factors to be considered in ascertaining academic progression in legal education. Therefore a person may start from lower levels of legal education and progressively move to higher levels.
12.She further submits that the decision declining her application was arrived at in a cursory manner without according careful consideration to the relevant statutory provisions governing admission to the programme. She relies on the decision in Kimani v Kenya School of Law & Another, (2021) KELEAT in which the Tribunal was emphatic that the Kenya School of Law Act, 2012 and the Legal Education Act, 2012 were to be read together. In the said decision it was held as follows;“The respondent cannot purport to operate in sole isolation of the Kenya School of Law Act, 2012 as the power to make Regulations for persons wishing to enroll in legal education programmes and progression in the legal sphere are a sole preserve of the interested party.”
13.The appellant submitted that her application for enrollment to the LL.B degree was considered by the University and found to have met the criteria existing by then of eligibility and therefore the respondent could not revert to an inquiry as to her eligibility to enroll for the programme based on the Kenya Certificate of Secondary Education grades. She relied on the decision in Kibegwa & 8 Others v Kenya School of Law & Another, (2021) KELEAT in which the Tribunal held;“Indeed the point of checking for minimum LLB degree entry qualifications is at the time of an applicant seeking admission to the course at the undergraduate entry point as opposed to waiting for the applicant to present the degree for purposes of admission to the respondent for the Post Graduate Diploma in Law.”
14.On legitimate expectation, it was her submission that upon making an enquiry, the respondent through its Academic Department assured her that upon successful completion of the the Diploma in Law (paralegal studies) and the L.L.B degree she would gain admission to the Advocates Training Programme. Further, the respondent was a public institution and she had no reason to doubt its representation. She relies on the decision in Kihara Mercy Wairimu & 7 Others v Kenya School of Law & 4 Others, (2019) eKLR in which Justice Makau held;“In the instant petition, the petitioners have tendered evidence through their affidavit that the respondents had been enrolling LL.B students from Riara University and that gave the petitioners legitimate expectation, that they would get automatic or direct entry for the ATP Programme to the Kenya School of Law. The petitioners have demonstrated that they had a legit expectation that upon taking the degree at Riara University the petitioners would be entitled to the ATP Programme. I find the petitioners allegations of having legitimate expectation to be justified as the respondents have a statutory duty to ensure that qualified candidates enroll for the law degree and take the ATP Programme.”
15.During the highlighting session, the appellant brought out the issue of recognition of prior learning. She referred to the Recognition of Prior Learning (RPL) Policy Framework in Kenya by the Kenya National Qualifications Authority as validated by the stakeholders on 28th January, 2020, which is due for the next review in April, 2025. The same had been approved by the Cabinet and she referred the Tribunal to the dispatch from Cabinet of the 15th. January, 2024 in which at pages 5 - 6 it was stated;“In keeping with the administration’s Bottom Up Economic Transformation Agenda, Cabinet also considered and approved the policy on Recognition of Prior Learning in Kenya. The approval by Cabinet was the last milestone in a process that commenced in the year 2020. By dint of the decision by Cabinet, there is now a functional and credible system for recognition of knowledge skills and competencies that have been acquired through practical work but which are not supported by corresponding academic or institutional qualifications.”
16.The appellant through her advocate Mr. Charles Kanjama; SC sought to distinguish the application of the decisions in the Court of Appeal in Javan Kiche Otieno & Another v Council of Legal Education, (2021) eKLR and Nairobi Court of Appeal Civil Appeal no. E472 of 2021 – Kenya School of Law v Akomo Richard Otene & Others, on the basis that in the former, the petitioners in the matter held qualifications from a foreign country while herself, she held qualifications from a recognized university in Kenya. It was submitted on her behalf that the operational date for the invalidity of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 was the 21st. December, 2021 and therefore she was entitled to derive benefit from them based on the notion of a crystallized action as she had already secured admission to the LLB degree in August, 2019.
17.Her Advocate then proceeded to fault the finding of invalidity by the Court of Appeal on the Regulations for want of compliance with the Statutory Instruments Act, 2013. It was submitted that the Regulations could not run afoul the said statute as they were already in force before the statute was enacted and that the said Act could not be invoked retrospectively to invalidate Regulations that were already in place.
E. Respondent’s submissions.
18.For the respondent it was submitted that the Legal Education Act, no. 27 of 2012 did not grant the Tribunal express jurisdiction to deal with disputes arising from decisions of the respondent on eligibility for admission to the Advocates Training Programme. The said matter arose under section 16 of the Kenya School of Law Act, 2012. It relied on the decision in Bakeries Limited v Rent Restriction Tribunal and Kiriti Raval Nbi. HC. Misc. Appli. No. 241 of 1981 in which it was held;“Testing whether a statute has conferred jurisdiction on an inferior court or a Tribunal …… the wording must be strictly construed. It must in fact be an express conferment and not a matter of implication and that a Tribunal is a creature of statute and has only such jurisdiction as has been specifically conferred upon it by the statute.”
19.On the admission requirements to the Advocates Training Programme, the respondent drew the attention of the Tribunal to sections 16 and 17 and the Kenya School of Law Act, 2012. It emphasized that its duty was to consider an application as submitted to it and if satisfied that the admission criteria was met admit the applicant to the School. In the appellant’s case her application failed to meet the criteria set in the law. The respondent relied on the authority of Stephen Nikita Otinga v Cabinet Secretary University of Education & 3 Others Nbi. HC. Petition no. E010 of 2023.
20.It was further submitted that the appellant was asking the Tribunal to grant her admission to the programme which would amount to usurping the mandate of the respondent. It relied in the authority in Kenya Pipeline Company Limited v Hyosoung Ebra Company Limited & 2 Others, (2012) eKLR in which it was stated;“Unless there is restriction on the power… the court will under the guise of preventing abuse of power be itself guilty of usurping power. Judicial review as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
21.It was submitted that the appellant was required to not only meet the undergraduate degree qualifications in schedule two section 1 (a) of the Kenya School of Law Act, 2012 but also section 1 (b) as it had been settled that the requirements applied to all applicants to the Advocates Training Programme. The respondent referred the Tribunal to Nairobi Court of Appeal Civil Appeal no. E472 of 2021 – Kenya School of Law v Akomo Richard Otene & Others in which it was observed;“To us, the interpretation we discern from the above section is that the section should be read as a whole. The text is that paragraph 1 (a) and (b) is separated by a semicolon, then there are the key elements mentioned after the colon on 1 (b) which meant that both 1 (a) and (b) must meet the conditions precedent in roman (i) and (ii). In essence whether you obtained a degree in a University in Kenya or out of a Kenyan University, the basic requirement is the score in one’s KCSE results which should correspond to those in the Act.”
22.On legitimate expectation, the respondent submitted that none existed. It relied on the authority in Otene supra in which it was observed,“In the end, with respect, we find that the trial court’s interpretation that the respondents were eligible for an admission on the mere fact that they had completed LLB studies without having regard to their KCSE grades to be erroneous. The key entry point to any career course in the Kenyan education system is the KCSE examination results and thus it cannot be that the grades obtained at KCSE do not matter or that the certificate itself is of no value at all.”
23.On the decision declining the application by the appellant, it was submitted that the procedure adopted was fair and just. No unreasonable delay was occasioned in informing the appellant of the decision. Thus, the rights to fair administrative action and education were not breached. The respondent once again relied on the decision in Otene supra in which it was observed;“Thus, the rejection of the respondents who did not meet the above requirements was not a violation of their constitutional rights or infringement of any of their rights to education provided for under article 43 (1) (f). Thus the decision by the appellant declining each and every individual respondent for admission into the ATP for 2020/2021 academic year was made within the law and is upheld.”
24.On academic progression, the respondent submitted that the appellant did not qualify as the applicable law being the Kenya School of Law Act, 2012 as amended by the Statute Law (Miscellaneous) (Amendment) Act, no. 18 of 2014 did not provide for academic progression. The respondent relied on the decision in Otene supra in which it was observed,“The wording of 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 aeronautical 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 is a diploma culminating in law or a related course in law. We therefore hold that such degree and diploma are not to be categorized as progression in law of whatsoever kind and even if they were, then the appellant had to consider the primary requirements of grades in KCSE. We refuse to be swayed by the respondent’s argument that even having obtained a mean grade D plain, one can still proceed and pursue law and only wave the diploma in other disciplines as a condition for admission to the ATP.”
25.The respondent finally implored the Tribunal not to find favour with the appeal as the appellant could not seek to rely upon the CLE Quality Assurance Regulations. The Tribunal had stated on several occasions that the cut off for what was termed as crystallized action for purposes of being able to rely upon the Regulations was set out in Javan Kiche v Council of Legal Education as 30th January, 2018 while the appellant obtained her admission to the university in June, 2019.
F. Analysis and determination.
26.Jurisdiction being primordial it will be addressed as a preliminary inquiry. The legislature has enacted the Legal Education Act, 2012 which by section 8 (3) (a) therein confers upon the interested party the powers to inter - alia 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;...”
27.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;“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.”
28.The interested party and the Tribunal are established under the same statute and accordingly, the Tribunal has the requisite jurisdiction to inquire into the appeal which involves the question of qualifications of entry to a legal education programme offered by a legal education provider in this case being the respondent. The Tribunal is so guided by section 31 (1) of the Act which provides;“(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.”
29.The appellant has also sought to rely on academic progression which is a matter provided for under section 8 (c) of the Legal Education Act, 2012 as a function bestowed upon the interested party by the legislature. The respondent challenges the appellant’s reliance on academic progression, on account of want of a provision in its establishing regime as deposed to in its replying affidavit and fortified in its submissions. Based on the rival positions on the matter, the Tribunal finds that academic progression is a matter within its mandate to determine. The Tribunal is fortified by the decision in Kenya School of Law v James Muchiri Gachoki and Duncan Kyalo Muusya and 2 Others; Nbi. HC. Civil Appeal no. E166 of 2022 in which the decision of the Tribunal on the scope of its jurisdiction when challenged on appeal was upheld by Justice Majanja. He held that;“
17.The dispute that the learned Judge was referring to above was one where the ex parte applicant was denied admission into KSL’s ATP ‘due to lack of an equation of… secondary school qualifications.’ This dispute was similar to the present one where the Respondents were denied admission to KSL’s ATP for reasons that they had not met the requisite secondary school requirements. The Tribunal, being subordinate to the High Court, was bound by the aforementioned decision and thus rightly held that it had jurisdiction to determine the appeals before it.
18.On my part, I do not see any reason to depart from the settled position on jurisdiction. Section 31 (1) of the Legal Education Act grants the Tribunal jurisdiction to inquire into, “… any matter relating to this Act,’’ which is an all-encompassing clause that affirms the Tribunal’s jurisdiction to deal with matters concerning legal education arising not only within the Act itself but also from the Kenya School of Law Act under which the KSL is guided by and applies the provisions of the Legal Education Act. This ground of appeal by KSL therefore fails.”
30.Having settled the issue of jurisdiction, the Tribunal now proceeds to inquire into the appeal. The crux of the appeal stems from the rejection of the appellant’s application by the respondent to the Advocates Training Programme. In a nutshell the appellant seeks that her application to the programme be considered based on provisions of 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 same provide;“(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.”
31.The matter of interpretation of the said law on admission to the Advocates Training Programme has been addressed by the Court of Appeal in Nairobi Civil Appeal no. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & Others in which Justices Asike - Makhandia, J. Mohammed and Kantai JJ.A 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 a semi-colon between 1 (a) and (b) of the Act then the conditions follow which to usmeans 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.”
32.With a conjunctive interpretation being adopted, the respondent’s decision as taken declining admission to the Advocates Training Programme of the appellant for failure to meet the minimum requirements of the Kenya Certificate of Secondary Education examinations appears sound. The appellant relied on the decision of the Tribunal in Charity Wamuyu supra in which it had set aside the decision of the respondent declining admission to the Advocates Training Programme, and which based on the doctrine of stare decisis was applicable to the appellant’s situation. The Tribunal wishes to draw the attention of the appellant to the fact that the said decision is no longer good law as the superior court on appeal did on the 31st January, 2024 set aside the Tribunal’s decision. In Nbi. HCCA no. E062 of 2022 - Kenya School of Law v Charity Wamuyu Justice Majanja held;“
13.Turning to the conclusion by the Tribunal that the Respondent was eligible to be admitted to KSL for the ATP, I find that the Court of Appeal in Kenya School of Law v Akomo & 41 others (Civil Appeal E472 of 2021) [2022] KECA 1132 (KLR) has conclusively determined this issue that Paragraphs 1(a) and (b) of the Second Schedule of the Kenya School of Law Act should be read as a whole and that failure to meet the basic requirements of the qualifications in KCSE as envisaged in the above provisions renders one’s application incompetent and hence ripe for rejection by KSL. Further, that the rejection of an applicant who did not meet the above requirement was not a violation of their constitutional rights or infringement of any of their rights to education provided for under Article 43 (1) (f) of the Constitution.”
33.The appellant in her appeal has sought reliance on the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. The Tribunal recognizes that the same constituted the fulcrum of academic progression as well as laid down the criteria for admission to the various legal education programmes in the field of law before they were found to be invalid for want of compliance with the Statutory Instruments Act, 2013. The interested party had formulated a 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.”
34.The said Regulations were found to be invalid based on the decision of the Superior Court initially and as affirmed by the Court of Appeal in a Constitutional Petition which was originated in the High Court at Nakuru in Petition no. 20 of 2016 - Javan Kiche Otieno & Another v Council of Legal Education & Another. In the said petition a challenge as to 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 was taken up. Justice Maureen Odero in a judgment delivered on the 30th January, 2018 rendered herself 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.”
35.With the said pronouncement which was a declaration of invalidity of law, the said Regulations which contained the formulated criteria for progression, the same ceased to have any legal consequence from their inception. However, the Court of Appeal barred the retrospective application of the said declaration as not being applicable to crystalized actions 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 at paragraphs 34, 35 and 47 of the judgment while upholding the decision of the Superior Court as made on the 30th January, 2018 pronounced themselves additionally as follows;“The record does not disclose that following gazetting of the impugned regulations, that they were thereafter, laid before Parliament and adopted….Since there is nothing that shows that they were at any time passed into law in accordance with the procedures set out in the above cited provision, and which shortcomings the appellants have conceded, it becomes evident that the impugned regulations were not adopted and as a consequence, did not acquire the force of law…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.”
36.The appellant has in her appeal sought to sustain a robust case that the date of the invalidity of the Regulations is the 21st December, 2021. The Tribunal reiterates that the date of invalidity of the Regulations in issue stands at the 30th January, 2018 when the pronouncement by the Hon. Justice Maureen Odero was made on the same. The decree of the superior court as entered was simply affirmed by the appellate court with the rendering of a negative order when it issued its decision on appeal in the year 2021. It found the initial petition as lodged in the superior court to have been devoid of merit.
37.Accordingly, the Tribunal finds as it has done before that the date for reckoning crystallized actions remains the 30th January, 2018 and in this case the appellant having secured admission to the LLB degree programme in the month of June, 2019 is outside the scope of the applicable date.
38.The appellant has sought to rely on recognition of prior learning and called into aid the criteria formulated in the Recognition of Prior Learning (RPL) Policy Framework in Kenya by the Kenya National Qualifications Authority in her submissions. By section 8 (3) (c) of the Legal Education Act, no. 27 of 2012 the interested party had in place formulated a system for recognizing prior learning and experience in law to facilitate progression in legal education from lower levels of learning to higher levels. Through the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice no. 15 of 2016. The said Regulations were made pursuant to section 46 (1) of the Legal Education Act, 2012. In regulation 8 recognition of experiential learning was provided for in the following terms;“(1)A person who has worked in any field of law for a period of not less than ten years may apply to the Council for recognition and award of a certificate of experiential learning:Provided that—a.an applicant who does not hold a certificate in law may be eligible for admission to a diploma in law programme or granted experiential learning equivalent to the status of a diploma in law holder; and(b)an award of a certificate of experiential learning may be used by the awardee of the certificate to transpose his or her professional orientation.(2)An application for a certificate in experiential learning shall be made in the form CLE/L/007 set out in the First Schedule to these Regulations.(3)The Council shall determine an application for experiential learning in accordance with the quality standards set out in the Third Schedule of these Regulations.”
39.The said Regulations however, failed to meet the requirements of the Statutory Instruments Act, 2013 which by section 11 obligated the same to be laid before Parliament and were declared a nullity by the High Court and subsequently the decision was affirmed by the Court of Appeal vide the findings in Javan Kiche & Another v Council of Legal Education, (2021) KECA 349 (KLR) (17 December 2021) by Justices Musinga, Nambuye and Murgor JJ.A. Notwithstanding the same, the Tribunal finds that the criteria by the interested party and the Kenya National Qualifications Authority could not apply to the appellant. Her case was one not predicated on recognition of prior learning abinitio but one hinged on her Kenya Certificate of Secondary Education qualifications as at the point she applied to enroll for the Diploma in Law course she presented her form 4 grades to the respondent and she gained admission based on the same. She did not present a certificate of experiential learning as contemplated in the invalidated Regulations made by the interested party. We believe that addresses the appellant’s concern on the point taken up.
40.On the submission on retrospective application of the Statutory Instruments Act, 2013 to the Legal Education (Accreditation and Quality Assurance) Regulations, Legal Notice no. 15 of 2016, the Tribunal finds that the Regulations were formulated after the Act had been enacted and they had to comply with the same. It could not therefore be correct that the Regulations were in place before the Act was enacted.
G. Disposition.The Tribunal now decrees: -a.That the appeal by Mumbi Caroline Kithuka as against the decision of the Kenya School of Law dated the 28th November, 2023 and as affirmed by the respondent on 7th December, 2023 is dismissed and the decision of the respondent upheld.b.That each party to bear own costs of the appeal.c.That any party so aggrieved is at liberty to lodge an appeal with the High Court on a point of law in-accordance with section 38 (1) of the Legal Education Act 2012.It is so ordered by the Legal Education Appeals Tribunal.
Dated at Nairobi this 7th day of February, 2024.ROSE NJOROGE – MBANYA - (MRS.)CHAIRPERSONEUNICE ARWA - (MRS.)MEMBERRAPHAEL WAMBUA KIGAMWA (MR.)MEMBERSTEPHEN GITONGA MUREITHI (MR.)MEMBER6
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1. Constitution of Kenya 28005 citations
2. Statutory Instruments Act 241 citations
3. Legal Education Act 199 citations
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