Kenya School of Law v Vincent O Juma

e. That the whole judgement and order of the Tribunal is against the law and fatally flawed. 2. The Appellant proposes that the appeal be allowed with costs and the decision of the Tribunal be set aside. 3. A brief history of the dispute is that by a decision made on 18th December, 2022, the Appellant herein declined the Respondent’s application for admission to the Advocates Training Programme (“the ATP”) during the 2023-2024 academic year. The decision was communicated to the Respondent by the Appellant’s Director, Dr. Henry K. Mutai. 4. Being aggrieved by the Appellant’s decision, the Respondent appealed to the Tribunal, which, vide the judgement delivered on 14th April, 2023 allowed the Respondent’s appeal, rendering itself as follows: a. That the appeal is allowed. b. That the Respondent’s decisions issued on 18th December, 2022 declining the admission of Vincent O. Juma to the Advocates Training Programme during the 2023-2024 academic year as communicated by the Respondent’s Dr. Henry K. Mutai – the Director of the Kenya School of Law is hereby set aside. c. That the Respondent is ordered to admit the Appellant Vincent O. Juma to the Advocates Training Programme. d. That each party bears its own costs of the appeal. e. That any party aggrieved has the liberty to appeal to the High Court under Section 38(1) of the Legal Education Act, 2012 on a point of law. 5. The Appellant preferred the instant appeal, being aggrieved by the judgement and decree of the Tribunal. 6. This court issued directions that the appeal be canvassed by way of written submissions and the parties complied by filing their respective submissions. 7. I note that in its submissions, the Appellant only addressed grounds d and e of its memorandum of appeal. The grounds on jurisdiction (a, b and c) were not addressed. Therefore, the only issue that the Appellant addressed was that of the criteria for admission to the Kenya School of Law for the ATP. 8. The Appellant submitted that the Court of Appeal conclusively addressed the ATP admission criteria in the case of Kenya School of Law v Akomo & 41 others (Civil Appeal E472 of 2021) [2022] KECA 1132 (KLR) (21 October 2022) (Judgment) and held that in considering an application for admission to the ATP, the academic qualifications of the applicant must be taken into account regardless of the university the applicant went to, whether local or foreign. The Appellant referred the court to the following passage in Akomo: “ 39. In interpreting Statutes, it is also a requirement that the court looks at both the text and context in order to ascertain the true legislative intent. In Reserve Bank of India v Peerless General Finance and Investment Co Ltd, 1987 SCR (2) 1 the Supreme Court of India stated thus: “Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 2

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context is what gives the colour. Neither can be ignored. Both are important… A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” 40. On the same principle, Ngcobo, J of the Constitutional Court of South Africa stated in Bato Staff Fishing (PTY) Ltd v Minister of Environmental Affairs and Tourism and others [2004] ZACC 15; 2004(4) SA 490(CC): 2004(7) BCLR 687(CC) that: “The technique of paying attention to context in statutory construction is now required by the Constitution section 39(2). As pointed above, that provision introduces a mandatory requirement to construe every piece of legislation in a manner that promotes the spirit, purport and objects of the Bill of rights. 41. It is our view that there is also the need to give a Statute a holistic reading and interpretation in order to ascertain the true legislative intent. This was stated by this court in the case of The Engineers Board of Kenya v Jesse Waweru Wahome & Others Civil Appeal No 240 of 2013 thus: “One of the canons of statutory interpretation is a holistic approach… no provision of any legislation should be treated as ‘stand -alone’ An Act of parliament should be read as a whole, the essence being that a proposition in one part of the Act is by implication modified by another proposition elsewhere in the Act.” 42. 9. It would not make any sense to interpret the section as meaning that two students who score the same mean grade at KCSE and one decides to study at a university outside Kenya and another at a university in Kenya would be treated differently in considering their entry requirements to the ATP, just because one was in the local university thus does not need to prove whether he attained the required score in KCSE or not but subject to the foreign earned degree to KCSE confirmation. This ideally would be negative discrimination and against the principles of natural justice and goes beyond the spirit of the CLE Act informing the qualifications.” In the Appellant’s view, had the Tribunal properly analyzed the matter before it, it ought to have reached the finding that under the Kenya School of Law Act, secondary school qualifications, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 3

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particularly the Kenya Certificate of Secondary Examination (“KCSE”) grades ought to be mandatorily considered for an applicant to join the ATP. As such, the Appellant faulted the Tribunal’s finding that “KCSE grades were not necessary for Applicants who sought to join the ATP”. 10. The Appellant urged that the question of the interpretation of the Second Schedule of the Kenya School of Law Act, 2012, specifically the use of the word “or” between paragraphs 1(a) and (b) ought not to result in an absurdity. 11. In its further submissions, the Appellant urged that the Tribunal in its judgement failed to consider the resulting absurdity that two applicants to the ATP who have the same exact qualifications would be subjected to two different standards and measures depending on whether they obtained their law degrees in Kenya or from a foreign university. 12. The Appellant argued that applying the Tribunal’s decision would mean that an applicant with a law degree from a foreign university with higher qualifications would not be granted admission to the ATP. The Appellant thus proffered the position that there is no justification or explanation for the differential treatment of the two classes of applicants as doing so would be discriminatory against individuals who attended foreign universities. 13. The Appellant invited this court to consider the import of the decision of Akomo (supra) in determining the instant appeal. 14. The Appellant further relied on the authority of Republic v Public Procurement Administrative Review Board; Kenya Ports Authority & 7 others (Interested Party); Liaison Group (Insurance Brokers) Limited & 3 others ex parte (Judicial Review Application 3A & 30 of 2020 & Judicial Review Miscellaneous Application 2 of 2020 (Consolidated) [2022] KEHC 285 (KLR) (16 March 2022) (Ruling) in which Mativo J (as he then was) stated as follows: “ The Constitution of Kenya provides for the hierarchy of courts in Kenya. At the helm is the Supreme Court followed by the Court of Appeal. This Court falls below the Court of Appeal. The decisions of the Court of Appeal are binding on this Court. The issue of the constitutionality of Section 175 of the PPAD Act has been determined by the Court of Appeal. In light of this, entertain this matter in respect of which the Court of Appeal has pronounced itself, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm. In this regard, I am guided by the holding in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated: “Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts. Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 4

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concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.” 15. In concluding, the Appellant took the view that the Tribunal’s judgement went against the doctrine of stare decisis in determining, with a contrary position, what the Court of Appeal had determined in Akomo. 16. In his submissions, the Respondent went at length to address the issue of jurisdiction as presented in grounds a, b and c of the memorandum of appeal. However, as I have said above, the Appellant did not address the said grounds and I will in the premises treat the same as having been abandoned. 17. With respect to the ground argued by the Appellant – the issue of the criteria for admission to the Kenya School of Law for the ATP – the Respondent took the position that the Tribunal properly applied the law on eligibility for admission to the ATP. 18. The Respondent submitted that contrary to the Appellant’s argument, the Tribunal did not reach the finding that the Respondent qualified for the ATP based on Section 1(a) of the Second Schedule to the Kenya School of Law Act, 2012 and that it disregarded Section 1(b) of the same Schedule. 19. The Respondent stated that his admission to the ATP as determined by the Tribunal was not based on the provisions of the Kenya School of Law Act, 2012 and the Second Schedule to the Act but under the Council for Legal Education Act Cap 16A Laws of Kenya and the rules thereunder; and the Legal Education Act, 2012 and the rules thereunder. 20. The Respondent thus stated that the Appellant did not address itself to the findings of the Tribunal on the admission criteria under which the Tribunal found, in its judgement, that the Respondent was qualified to be admitted to the ATP. 21. In his further submissions, the Respondent stated that it is under the Legal Education Act (Accreditation and Quality Assurance) Regulations, 2016 that he enrolled for his bachelor of laws undergraduate degree, having commenced his journey with a diploma in 2004 when the law in force at the time was the Council of Legal Education Act, Cap 16A Laws of Kenya and the rules thereunder, which provided for upward mobility in legal training. He enrolled for his law degree in 2016. 22. Accordingly, the Respondent argued that whereas there were minimum qualifications set by the Section 1(a) and 1(b) of the Second Schedule to the Kenya School of Law Act for the ATP, which included a minimum of B plain in English or Kiswahili and an aggregate grade of C+ (plus) in KCSE, (which the Respondent admittedly fell short in obtaining as he scored a B- (minus) in English and a C+ (plus) in Kiswahili), the Tribunal applied a different criterion in its judgement, whereby it found that he qualified for admission to the ATP. The Respondent urged that the law that was in force at the time he commenced his LL.B. degree also provided for academic progression, which he achieved by first obtaining a diploma before proceeding to get his LL.B. degree. 23. Having considered the grounds of appeal, the submissions by the parties and the record of the Tribunal, what I discern this court should now determine is whether the criteria of admission that the Tribunal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 5

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applied with regard to the Respondent was one provided for in law and whether, subject thereto, the Tribunal erred in its findings. 24. The ATP admission is generally dictated by Sections 16 and 17 of the Kenya School of Law Act. The said provision of statute states as follows: 16. Admission requirements A 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. 17. 25. Application for admission (1) Any person who wishes to be admitted to any course of study at the School shall apply in the prescribed form and pay the prescribed application fees. (2) The School shall consider an application submitted under subsection (1) and if it is satisfied that the applicant meets the admission criteria, admit the applicant to the School. It is instructive from the reading of Section 16 of the Act that the same must be considered together with the Second Schedule to the Act. It is not disputed that the particular course for which the Respondent sought to be admitted to was the ATP. Let us read the relevant provisions of the Second Schedule: The Admission requirements will be 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. 26. The record of the Tribunal bears it that although the Respondent stated that he commenced his LL.B. programme at Mount Kenya University in the year 2016, the exact date as to when he was admitted to the university was not provided. 27. The Respondent’s argument was that his case fell under the Legal Education (Accreditation and Quality Assurance) Regulations, 2016. It is however to be recalled that the Regulations of 2016 were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 6

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challenged and the court (Odero J.), in its judgement delivered on 30th January, 2018 in the case of Nakuru High Court Petition No. 20 of 2016 Javan Kiche Otieno & another v Council of Legal Education held that the Regulations did not amount to subsidiary legislation as the same had not been adopted by Parliament as was mandatorily required under Section 14 of the Statutory Instruments Act. On that basis, the court rendered the said Regulations void and unenforceable. 28. The decision of Javan Kiche was upheld on appeal by the Court of Appeal (Musinga, Nambuye & Murgor, JJ.A) save that the court clarified that the declaration of invalidity would not apply to or affect any actions that had crystallized before the declaration. That then meant that any action that had crystallized between 6th February, 2016 being the date the 2016 Regulations were gazetted and 30th January, 2018 when the declaration of invalidity of the 2016 Regulations was made, remained valid under the 2016 Regulations. 29. It would appear, although not specifically stated, that the Tribunal took the position that the Respondent was admitted to Mount Kenya University for his LL.B. degree before 6th February, 2016. That then meant that the Respondent’s action did not crystallize under the 2016 Regulations, but under the predecessor of those Regulations, being the Council of Legal Education (Kenya School of Law) 2009 Regulations. 30. The position of the Tribunal that the Respondent commenced his LL.B. programme before 6th February, 2016 can be discerned from its judgement, where it held as follows: “ 40. It is clear that the Appellant’s academic progression finds favour with this Tribunal as he meets the qualifications set out in the 2009 regulations, having scored a C+ (plus) main grade and a B - (minus) in his English grade in KCSE.” 31. As that position remains unchallenged, I have no reason to disturb it. 32. That being the unchallenged position, the Tribunal in my view then correctly observed (as I have also stated) that for a person who secured admission for the LL.B. degree on or after 6th February, 2016, his action would be deemed to be a crystallized action under the 2016 Regulations and that if the admission for the LL.B. degree came before 6th February, 2016, the applicable regime would be the Council of Legal Education (Kenya School of Law) 2009 Regulations. 33. I say so because in Kevin K. Mwiti & others v Kenya School of Law & others [2015] eKLR the court, while noting that there had been several changes to the law applicable in respect to ATP admissions, held that the provisions of law applicable to an applicant are those that were applicable and/or in force when the applicant commenced his/her LL.B degree. 34. The foregoing being the position, the Appellant’s legal training was therefore governed by the Council of Legal Education (Kenya School of Law) 2009 Regulations, which provided on the criteria for admission to the ATP, (once he completed his LL.B. degree) as follows: ii – Admissions requirements into the advocates training programme 5. 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; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 7

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(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. 35. It then follows that the Appellant’s case fell under Section 5(c) for the reason that before completing his law degree, he had attained B – (minus) grade in English and an aggregate grade of C+ (plus) in KCSE and a higher qualification being a relevant diploma in law. The provision required that he attains an LL.B. degree, a relevant diploma or other degree, minimum of C – (minus) in English and a minimum aggregate grade of C – (minus) in KCSE. 36. The Appellant did not address itself on the issue of qualifications for the ATP programme under the Council of Legal Education (Kenya School of Law) 2009 Regulations, which was the basis upon which the Tribunal reached its findings that the Respondent was qualified to be admitted for the ATP. 37. My understanding of the case of Akomo is that the same addressed criteria for admissions under Section 1(a) and 1(b) of the Second Schedule to the Kenya School of Law Act and not the position in law that at the time subsisted when the Respondent herein commenced his LL.B. degree, which is under the regime of the Council of Legal Education (Kenya School of Law) 2009 Regulations. 38. It would then appear that the Appellant based its decision to deny the Respondent admission to the ATP under Sections 16 and 17 of the Kenya School of Law Act and the Second Schedule to the Act. That perhaps informed the Appellant’s heavy reliance on the Court of Appeal decision of Akomo (supra) which largely addressed admission qualifications under the two Sections and the Second Schedule to the Kenya School of Law Act. The authority is in the premises distinguishable as the applicable admission criteria that the Tribunal addressed in this case was different from that that the Court of Appeal considered and addressed. 39. In my view, as rightfully held by the Tribunal in paragraphs 25 and 29 of its judgement, there are various admission criteria to the ATP. The applicable criterion depends on the circumstances of the particular case and the law applicable in those circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 8

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40. Being of the foregoing persuasion, I reach the determination that the Tribunal correctly applied the ATP admission criteria provided for under the Council of Legal Education (Kenya School of Law) 2009 Regulations, and reached the correct finding that the respondent was eligible for admission into the ATP by virtue of his academic progression. 41. The result I then reach is that I find no reason to fault the Tribunal’s findings. The appeal lacks merit and I proceed to dismiss. The judgement of the Tribunal is upheld. 42. The Appellant shall bear the Respondent’s costs of the appeal. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 7TH DAY OF JULY, 2025. JOE M. OMIDO JUDGE For Appellant: No appearance. Respondent: Mr. Vincent Juma present virtually. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19101/eng@2025-07-07 9

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