Kevin Mwiti & Others v Kenya School of Law
Constitutional Petitions 377, 395 & JR 295 of 2015 (Consolidated)
High Court at Nairobi
G V Odunga J
November 19, 2015
Reported by Kipkemoi Sang
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Brief Facts:
Accordingly, the School and Council (1st and 2nd Respondents) published guidelines providing for a three year transition period beginning 15th January 2013 to enable applicants who had joined the university system before the coming to force of the Act to complete their study programmes.
Those guidelines were used in the admission to the School's Advocates Training Programme (ATP) for the academic years 2014/2015 and 2015/2016 and would have been used for the third and last lot of admissions for the academic year 2016/2017. However, in 2014, Parliament passed the Statute Law (Miscellaneous) Amendment Act, 2014 which changed the eligibility for admission to the ATP by making it mandatory for applicants to sit and pass pre-bar examinations.
As a result, on 2nd September 2015 the School invited the applicants to apply for a ‘Pre-bar’ examination prior to admission to the School. Applicants had to have obtained a mean grade of C(plus) with a minimum grade of B in English or Swahili at KCSE, obtained or become eligible to obtain an LLB degree from a university recognized in Kenya and passed all 16 core subjects at the university level as provided under the Legal Education Act, 2012. It was this advert that provoked the Petition.
Issues:
- Which institution between the Legal Education Appeals Tribunal and the High Court had the jurisdiction to entertain the controversy between the Petitioners and the Respondents?
- Whether the Respondents discriminated the Petitioners thus violating their rights under the Constitution of Kenya.
- Whether the Respondents countermanded a legitimate expectation in favour of the petitioners
- Whether the Kenya School of Law in charging fees for the supposed pre-bar exams acted unreasonably
- Whether the Respondents violated article 47 of the constitution on obligations relating to fair administrative action.
- Whether the Kenya School of Law, acted reasonably in the selection of examinable subjects for pre-bar or it amounted to re-examination of students on the courses that were already examined by the universities accredited by the Council for Legal Education.
- Whether the effect of the amendment in so far as to relates to the Kenya School of Law Act was to adversely affect the rights accrued by the petitioners or even some of them.
Constitution of Kenya, 2010
Article 24
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
Kenya School of Law Act No. 26 of 2012
Section 5- Powers of the School
The School shall have the power to—
(a) establish and manage a centre for research and training in legal education for the furtherance of the objects of the School;
(b) charge reasonable fees and other charges for services rendered and liaise with appropriate bodies to extend loans and other assistance to enable and assist needy students to meet their fees obligations;
(c) regulate and supervise the discipline of the students of the School;
(d) co-operate with institutions of higher learning in any manner that may be conducive to the objects of the School;
(e) collaborate with other local and international organizations or bodies in the furtherance of the objects of the School;
(f) make such regulations as may be considered necessary for regulating the affairs of the School; and
(g) perform such other acts as are necessary, for the attainment of the objects of the School.
Second Schedule to Kenya School of Law Act, No 26 of 2012 OR (Statute Law (Miscellaneous) Amendment Act, 2014
Section 1 -Admission Requirements into the Advocates Training Programme
(1) A person shall be admitted to the School if—
Council of Legal Education (cap 16A) (Repealed)(a) having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any 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.
First Schedule
Section 5 -Admissions Requirements into the Advocates Training Programme
A person shall not be eligible for admission for the Post Graduate Diploma (Advocate Training Programme) unless that person has–
(a) passed the relevant examination of any recognized university in Kenya, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university;
(b) passed the relevant examinations of a university, university college or other institutions prescribed by the Council, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) in the grant of that university, university college or other institution, had prior to enrolling at that university, university college or other institution–
(i) attained a minimum entry requirements for admission to a university in Kenya; and
(ii) a minimum grade B (plain) in English Language and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent;
(c) a Bachelor of Laws Degree (LL.B) from a recognized university and attained a minimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in the Kenya Certificate of Secondary Examination, holds a higher qualification e.g. “A” levels, “IB”, relevant “Diploma”, other “undergraduate degree” or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws Programme; or
(d) a Bachelor of Laws Degree (LL.B) from recognized university and attained a minimum grade of C- (C minus) in English and a minimum of an aggregate grade of C- (C minus) in the Kenya Certificate of Secondary Examination sits and passes the Pre-Bar Examination set by the Council of Legal Education as a precondition for admission.
Legal Education Act No. 27 of 2012
Section 3- Objective of Act
The objective of this Act is to—
(a) promote legal education and the maintenance of the highest possible standards in legal education; and
(b) provide a system to guarantee the quality of legal education and legal education providers.
Fair Administrative Action Act No. 4 of 2015
Section 9– Procedure for judicial review.
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person (5) from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
- From section 31(1) of the Legal Education Act, it was clear that the Tribunal’s power was restricted to matters relating to the Act. The powers of the Tribunal were however enumerated under section 35 of the said Act stated that upon hearing appeals, the tribunal could confirm, set aside or vary the order or decision in question; exercise any of the powers which would have been exercised by the Council, in the proceedings in conclusion with which the appeal was brought or made any other order, including an order, for cost as it could consider just.
- Under article 165(3) (d) of the Constitution, the High Court was the proper forum to hear any question respecting the interpretation of the Constitution including the determination of inter alia the question as to whether any law was inconsistent with or in contravention of the Constitution; the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution. Therefore, the dispute did not fall within the jurisdiction of the Tribunal in order to warrant the invocation of section 9 of the Fair Administrative Action Act.
- Section 1 of the Second Schedule to the Kenya School of Law Act provided for the eligibility for joining the Advocates training Programme. The eligibility required inter alia that a person (candidate) to have passed the relevant examination from any recognised university in Kenya or from any university college or any other institution prescribed by the Council, held or became eligible for the conferment of the Bachelors of Law (LLB) degree of that university college or other institutions prescribed by the Council of Legal Education, held or had become eligible for the conferment of the Bachelors of Law Degree, in the grant university, university college or other institution. Such a person was required to have attained a minimum entry requirement for admission to a university in Kenya; and 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 had sat and passed pre-Bar examination set by the School.
- It was clear that the Second Schedule had not locked out those who had alternative qualifications from being eligible for admission to the Programme. What was however required was that whatever qualification an applicant possessed it should be equivalent to a mean grade of C (plus) in the Kenya Certificate of Secondary Education. There was no contention that by applying the standard equivalent to KCSE other applicants with alternative qualifications had been necessarily locked out. However notification of pre-bar examination seemed not to have factored in the other equivalent eligibility for admission. The notification only mentioned KSCE qualifications. To the extent that the notification of pre-bar examination did not conform to the Second Schedule to the Act and as such, that notification was clearly unlawful.
- The law required the Applicants to the School to demonstrate that they had become eligible for conferment of Bachelor of Laws Degree and that the applicants could show by furnishing the School with provisional transcripts. The School would, however, not accept applicants who had not completed their Bachelor of Laws Degree programme. Under the law, such applicants were not eligible to join the ATP programme.
- Under the Second Schedule the criteria for admission to the ATP was inter alia that the applicant held or had become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of a recognised university, university college or other institution. There was no hard and fast rule thereunder that an applicant should possess the degree certificate since eligibility for conferment thereof was an option. The notice clearly provided for the option of eligibility for conferment. To impose conditions which were not contemplated under the Act amounted to acting ultra vires the powers conferred by the Act.
- Whereas the School was entitled to decide what amounted to proof of eligibility for conferment with a degree, such proof should be reasonable in the circumstances. There was no reason why the School could not rely on documents confirmed by the accredited Higher Institutions of Learning to admit the applicants. To the extent that the notice talked of final transcripts which the Petitioners contend were only issued upon graduation, that requirement was not only unreasonable but outside the contemplation of the Act.
- Section 5(b) of the KSL Act empowered the School to charge reasonable fees and other charges for services rendered and liaise with appropriate bodies to extend loans and other assistance to enable and assist needy students to meet their fees obligations. It was not mere unreasonableness which would justify the interference with the decision of an inferior tribunal. This was so because unreasonableness per se was largely a subjective test and therefore to base a decision merely on unreasonableness placed the Court at the risk of determination of a matter on merits rather than on the process.
- To justify interference the decision in question should be so grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would have arrived at such a decision. Such a decision should be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it. Whereas the Court was entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness was met, it was only when the decision was so grossly unreasonable that it could be found to have met the test of irrationality for the purposes of Wednesbury test of unreasonableness. The Courts would only interfere with the decision of a public authority if it was outside the band of reasonableness.
- The doctrine that powers should be exercised reasonably had to be reconciled with the no less important doctrine that the court should not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness was the area in which the deciding authority had genuinely free discretion. If it passed those bounds, it acted ultra vires. The court should therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It should strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature was presumed to have intended. In the instant case, the threshold for Wednesbury test of unreasonableness or irrationality was in a more appropriate term met with respect to the payment required from the Petitioners.
- Where discretion was donated to a particular body the Courts ought to exercise restraint in and ought not to readily accede to invitation to interfere with the exercise of such powers and discretion. Article 47 of the Constitution was now emphatic on the fairness of administrative action. The purpose of judicial review was to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that was detrimental to the public at large. It was meant to uplift the quality of public decision making, and thereby ensure for the citizen civilised governance, by holding the public authority to the limit defined by the law. Judicial review was therefore an important control, ventilating a host of varied types of problems. Judicial review was an acknowledged most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tool against abuse of power and arbitrariness.
- The circumstances under which the Court would be entitled to interfere with discretion even where it appeared to be unfettered were only:
- where there was an abuse of discretion;
- where the decision-maker exercised discretion for an improper purpose;
- where the decision-maker was in breach of the duty to act fairly;
- where the decision-maker had failed to exercise statutory discretion reasonably;
- where the decision-maker acted in a manner to frustrate the purpose of the Act donating the power;
- where the decision-maker fetters the discretion given;
- where the decision-maker failed to exercise discretion;
- where the decision-maker was irrational and unreasonable.
- In the instant case, to curtail the powers of the School in deciding what subjects to examine its prospective students would amount to usurping the powers of the School and substituting the Court’s discretion for that of the School. There was nothing inherently wrong or unreasonable in the School setting what in its view were appropriate exams for the admission of students to the School as long as the exams in question were relevant to the course of study. The Court could not decide for the School which subjects were appropriate for it to administer on their prospective students even if the Court was of the view that such subjects were not suitable as long as they were geared towards the attainment of the School’s objectives. The school was the best judge of merit pertaining its standards and not the Court.
- So long as the body entrusted with the task of framing the rules or regulations acted within the scope of the authority conferred on it in the sense that the rules and regulations made by it had a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It was exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute could best be implemented and what measures substantive as well as procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purposes of the Act.
- It was not for the Court to examine the merits and demerits of such a policy because its scrutiny had to be limited to the question as to whether the impugned regulation felt within the scope of the regulation-making power conferred on the delegate by the statute. The responsible representative entrusted to make bylaws should ordinarily be presumed to know what was necessary, reasonable, just and fair.
- Under Article 10 of the Constitution some of the values and principles of governance included equity and non-discrimination. The said Article bound all State organs, State officers, public officers and all persons whenever any of them enacted, applied or interpreted any law or made or implemented public policy decisions. In enacting the Amendment Act, Parliament did not set out to deprive the Petitioners of their rights if any or discriminate against them and it could not do that. The presumption was and had always been the principle that Parliament enacts constitutional legislation. Every statute passed by the legislature enjoyed a presumption of legality and it was the duty of every Kenyan to obey the very law that were passed by the representatives in accordance with their delegated sovereign authority.
- State Officers, public officers and all persons should adopt an interpretation which promoted and underpinned values and principles of governance set out in the Constitution unless the contrary intention appeared in the enactment. A legislative enactment should be presumed to uphold constitutional values and principles including the Bill of Rights unless the provisions of Article 24(1), (2) and (3) of the Constitution were complied with. Parliament did not set out to apply the enactment retrospectively or in a manner that discriminated against the rights of the Petitioners.
- The position adopted by the School before the Amendment Act was the correct position as it was in line with the values and principles in Article 10. There was no express intention by Parliament to effect the amendment retrospectively; the Amendment Act was not unconstitutional. Pursuant to Article 20(3) (b) the court was required to adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and in the instant case equality and freedom from non-discrimination.
- A legitimate expectation arose where a person responsible for taking a decision had induced in someone a reasonable expectation that he would receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations was at the root of the constitutional principle of the rule of law, which required predictability and certainty in government’s dealings with the public.
- Parliament did not dictate the manner in which the implementation was to be done. It should be presumed however that Parliament intended that the implementation of the enactment complied with the dictates of the Constitution Just like the school correctly interpreted the enactment that preceded the Amendment Act; the Respondents were likewise expected to interpret the Amendments Act in a manner that upholds the constitutional values and principles.
- There was a legitimate expectation that public authorities would comply with the Constitution and the law. It was expected that public authorities would adhere to the constitutional values and principles including those enumerated in Article 10. The Petitioners could therefore be said to have expected the Respondents to interpret the Amendment Act in a manner that upheld their rights and fundamental freedoms as long as the interpretation did not contradict the express language of the Act. An interpretation that upheld the freedom of equality and non-discrimination could not be said to be inimical to the Amendment Act just like it was not inimical to the prior enactment.
- The School appreciated that some of the Petitioners’ predecessors and who were with the said Petitioners at the University had not been subjected to the same treatment. It had not been shown that the circumstances between the said Petitioners and their predecessors had changed. To subject those Petitioners to whom a benefit had been conferred in order to avoid discriminating against them, in itself amounted to discrimination.
- Discrimination which was forbidden by the Constitution was unfair or prejudicial treatment of a person or group of persons based on certain characteristics. The element of what was unfair or prejudicial treatment had to be determined objectively in the light of the facts of each case. Unfair discrimination which recognized that although a society which afforded each human being equal treatment on the basis of equal worth and freedom was a fundamental goal, it could not achieve that goal by insisting upon identical treatment in all circumstances before the goal was achieved.
- Each case, therefore would require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact was one which furthered the constitutional goal of equality or not. A classification which was unfair in one context could not necessarily be unfair in different context.
- In the instant case, there was the recognition that not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriate perspective from which to analyse a claim of discrimination had both a subjective and an objective component.
- According to the Black’s Law Dictionary, discrimination was the effect of a law or established practice that conferred privileges on a certain class or that denied privileges to a certain class because of race, age, sex nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured. Similarly, The Bill of Rights Handbook, Fourth Edition 2001, defined discrimination as a particular form of differentiation on illegitimate ground. The law did not prohibit discrimination but rather unfair discrimination.
- Unfair discrimination was treating people differently in a way which impairs their fundamental dignity as human beings, who were inherently equal in dignity. Unlawful or unfair discrimination could be direct or subtle. Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex or religion compared with someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement which was a smaller proportion of those with the attribute are able to comply with, without reasonable justification.
The extent that the pre bar notice talked of final transcripts, that requirement was not only unreasonable but outside the scope and contemplation of the Act and was set aside.
The Petitioners who were already in the LLB Class prior to the enactment of the Kenya School of Law Act were to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. i.e those who had not been admitted in the LLB Class prior to the enactment of the Kenya School of Law Act are to comply with the provisions of the said Act.
No order as to costs