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Petition 420 of 2018 - Kenya Law

Petition 420 of 2018 - Kenya Law

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Petition 420 of 2018 - Kenya Law

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 420 OF 2018

PETER KIPKEMOI CHEBOSSEH.........................................PETITIONER

VERSUS

KENYA SCHOOL OF LAW ...........................................1ST RESPONDENT

COUNCIL OF LEGAL EDUCATION...........................2ND RESPONDENT

JUDGMENT

1.  The Petitioner, Peter Kipkemoi Chebosseh bases his petition on two letters.  The first letter was addressed to him by means of the 1st Respondent, the Kenya School of Law on sixth January, 2014 and spoke to him as follows:-

“Dear Mr. Chebosseh

ADMISSION TO THE KENYA SCHOOL OF LAW – 2014/2015 ACADEMIC YEAR

Reference is made to you software for admission into the Advocates Training Programme (ATP) at the Kenya School of Law.

It is regretted that your application was once now not a success due to the rationale that you have English grade 6 (six) and that your LL.B degree does not meet the edge of Sixteen core topics prescribed through legislation for purposes of admission to the ATP. The lessons lacking are:-

i.    Family Law and Succession

ii.  Commercial Law

iii.   Labour Law

iv.   Equity and the Law of Trusts

v.    Legal Research and Writing

 Yours sincerely

Prof. W. Kulundu-Bitonye, EBS

DIRECTOR/CHIEF EXECUTIVE & SECRETARY,

COUNCIL OF LEGAL EDUCAITON KENYA SCHOOL OF LAW BOARD”

2.  The second letter dated 2nd November, 2018 was once addressed to the Petitioner’s advocates through the 2d Respondent, Council of Legal Education within the following words:-

“Mr. Danstan Omari

Musyoki Mogaka & Co. Advocates

Uganda House, 4th Floor,

Suite 19 Kenyatta Avenue,

P. O. Box 57180-00200 NAIROBI.

Dear Mr. Danstan Omari

RECOGNITION AND APPROVAL OF FOREIGN QUALIFICATIONS – LL.B. UNIVERSITY OF LONDON, UK: PETER KIPKEMOI CHEBOSSEH

Reference is made on your letter dated sixteenth October, 2018 at the above referenced subject.

The documents submitted by way of your shopper show that despite the fact that a substantial collection of core gadgets had been covered at the University, the following units weren't lined as envisaged by Part II of the Second Schedule to the Legal Education Act, 2012:

1.  Legal Research & Writing

2.  Commercial Law (Incl. Sale of Goods, Hire Purchase & Agency)

3.  Equity & Law of Trusts

4.  Labour Law

Council’s determination is that your client, Peter Kipkemoi Chebosseh undertakes the remedial within the above indexed gadgets for Council to recognize and approve his LL.B Degree qualification of the University of London, UK.

Please be aware then again that however your shopper’s undertaking of the remedial programme, the Kenya School of Law reserves the correct beneath Sections 4(2)(a) and 16 and the Second Schedule to the Kenya School of Law Act, 2012 to decide whether your client is certified for admission to the Advocates Training Programme (ATP).

Further, observe that your shopper’s educational qualifications do not supersede the provisions of Sections 12 and 13 of the Advocates Act (Cap.16) as pertains to admission to the Roll of Advocates in Kenya.

Yours sincerely

SECRETARY/CHIEF EXECUTIVE OFFICER

COUNCIL OF LEGAL EDUCAITON”

3.   In his petition dated twenty sixth November, 2019, the Petitioner alleges that the decisions of the respondents as conveyed by way of the two letters violates his more than a few rights and fundamental freedoms as safe by way of the Constitution of Kenya.  He due to this fact seeks the next declarations and orders:-

“a)   A Declaration that the actions and or omissions by the Respondents are opposite to and inconsistent with the provisions of Articles 10, 73 and 232 of the Constitution, 2010.

b)  A Declaration that the Respondents violated and/or are more likely to violate the constitutional rights of the Petitioner and particularly Articles 27, 43, 47 and Forty eight of the Constitution of Kenya, 2010.

c)  An Order to put aside and or quash the verdict contained within the 1st and second Respondents’ letters to the Petitioner dated 6th January, 2014 and 3rd November, 2018 titled “Admission to the Kenya School of Law-2014/2015 Academic Year” and “Recognition and Approval of Foreign Qualifications-LL.B University of London, UK”, respectively.

d)  An Order Prohibiting the second Respondent from Recognition and Approval or Clearance or Equation of Bachelor of Laws (LL.B) Degree or similar qualifications awarded to the Petitioner through the University of London in line with retrospective provisions of The Kenya School of Law Act, 2012, Laws of Kenya and the Legal Education Act, 2012, Laws of Kenya.

e)   An Order compelling the first Respondent to believe the Petitioner for admission into the Advocates Training Programme (ATP) 2019/2020 instructional year, below the existing cases and rules at the time of enrolling into the LL.B. Degree programme at the University of London–UK between the years 2003-2008.

f) General damages for breach of Petitioner’s constitutional rights and loss of opportunities.

g)   Any other or further reduction that this Honourable Court shall deem fit and simply to grant within the instances.

h)   Costs of this Petition.”

4.  The stunning thing about this example is that the details are not disputed. All the parties agree that the Petitioner holds a Bachelor of Laws degree from the University of London in the United Kingdom. He graduated in 2008. He also has a Bachelor of Science degree in Agricultural Engineering awarded to him by means of the University of Nairobi in 1986.

5.  The Petitioner’s case is that taking into consideration that he graduated in 2008, the Legal Education Act, 2012 is not applicable to him.  The respondents however cling the view that the Legal Education Act, 2012 is applicable to the Petitioner.

6.  The most effective question for the decision of this Court is whether or not the laws enacted after 2008 are appropriate to the Petitioner in recognize of his application for admission to the Kenya School of Law for the Advocates Training Programme (ATP).

7.  Through the pleadings and submissions dated 14th June, 2019 the Petitioner’s counsel submits that the Petitioner carried out for and was admitted by means of the 1st Respondent into the ATP throughout the letter dated twenty fifth November, 2008 for the educational 12 months 2009/2010.  The Petitioner, then again, didn't take the offer as he used to be denied study depart by his employer.  In 2013, the Petitioner reapplied to enroll in the ATP for the instructional 12 months 2014/2015 however his application was rejected.  The Petitioner used to be asked to pursue remedial classes in appreciate of 4 units.  Counsel for the Petitioner submits that this was now not a demand when the Petitioner finished his studies.  He urges that for the respondents to subject the Petitioner’s LLB level transcripts and level certificates to a legislation that got here into drive five years after he had graduated from university used to be now not most effective unlawful but altogether ultra vires and actuated through mala fide to say the least.

8. It is the submission of suggest that the Petitioner’s qualification to be admitted to the ATP used to be in response to the repealed Council of Legal Education Act, Cap. 16A and the Council of Legal Education (Kenya School of Law) Regulations, 2009 (“the 2009 Regulations”). Counsel contends that the Petitioner’s educational papers in any respect levels of schooling are in conformity with Part A(II) of the First Schedule of the 2009 Regulations.

9.  According to suggest for the Petitioner, the Petitioner having obtained one subsidiary and three principals in his Kenya Advanced Certificate of Education and likewise having graduated with a Bachelor of Science level in Agricultural Engineering was once certified for enrolment for a Bachelor of Laws level.  Counsel states that the Legal Education Act, 2012 and the Kenya School of Law Act, 2012 could now not apply to the Petitioner retrospectively.  It is suggest’s view that the one rules appropriate to the Petitioner had been rules Four and Five of the First Schedule of the 2009 Regulations.

10.  In strengthen of the arguments recommend for the Petitioner cites the verdict in Kevin K. Mwiti & others v Kenya School of Law and a pair of others [2015] eKLR by which a few of the orders issued by means of Odunga, J used to be an order that:-

“A declaration that the petitioners who had been already in the LL.B magnificence previous to the enactment of the Kenya School of Law Act are to be handled in the approach pondered via the ideas issued by way of the school prior to the enactment of the Amendment Act.  For avoidance of doubt those that had now not been admitted in the LL.B elegance prior to the enactment of the Kenya School of Law Act are to conform to the provisions of the said Act.”

11. Counsel for the Petitioner submits that the 2d Respondent’s action of purporting to acknowledge and approve the Petitioner’s LLB degree certificates was not in accordance with any lawful procedure and as such breached or violated various principles of regulation.  He states that the 2d Respondent breached the principles of natural justice, acted ultra vires, acted with flawed reason, acted unreasonably, acted in opposition to the principle of proportionality, acted with mala fide and violated the Petitioner’s legit expectation.  The web impact, he submits, was once a contravention of Article 47 of the Constitution and Section 7(2)(b) of the Fair Administrative Action Act, 2015. Counsel asserts that the 2d Respondent overstepped its limitations through purporting to scrutinize the Petitioner’s level.  To him, the role of making sure that an individual is certified for the ATP belongs to the first Respondent.

12. In reinforce of his competition that the two Acts of Parliament handed in 2012 could no longer retrospectively observe to the Petitioner, suggest cited the case of Pauline Anna Benadette Onyango v Kenya School of Law [2017] eKLR the place E.C. Mwita, J pronounced that:-

“The Respondent’s determination that the Petitioner was once now not qualified to sign up for ATP by means of distinctive feature of the Kenya School of Law (Act), 2012 was once irrational and unreasonable. It used to be made with out justification.  The Respondent may now not observe the provisions of the Act retrospectively to render qualifications acquired before its enactment irrelevant.”

13.  Other choices cited in give a boost to of the Petitioner’s case are Republic v Council of Legal Education & every other Ex-parte Mount Kenya University [2016] eKLR; Republic v Kenya School of Law & 2 others Ex-parte Juliet Wanjiru Njoroge & 5 others [2015] eKLR; R v Cabinet Secretary for Transport and Infrastructure Principal Secretary & 5 others Ex-parte Kenya County Bus Owners Association & 8 others [2014] eKLR; Republic v The District Land Adjudication & Settlement Suba District & some other [2013] eKLR; and, Rahab Wanjiru Njuguna v Inspector General of Police & every other [2013] eKLR. According to suggest for the Petitioner, all the cited choices discuss to the desire for public bodies to adhere to honest administrative procedures.

14. The 1st Respondent filed submissions dated twelfth July, 2019.  In transient the first Respondent’s case is that the Petitioner having acquired his degree from a international college required clearance from the second Respondent as in line with the Legal Education Act, 2012 sooner than joining the ATP.  Counsel for the first Respondent submits that since there used to be no clearance from the 2nd Respondent, the first Respondent may just now not admit the Petitioner for the ATP.

15. Counsel for the 1st Respondent additional states that the Petitioner admits that he did not take all the 16 core LLB subjects prescribed by way of law and was thus not eligible for admission as held by the Court of Appeal in Eunice Mwikali Maema v Council of Legal Education, Civil Appeal No. 121 of 2013.  According to recommend the Court of Appeal held that the sixteen topics had been obligatory regardless of the time an applicant for the ATP got the LLB degree.  Counsel subsequently urges that the 1st Respondent did not violate any of the Petitioner’s constitutional rights and the declare for damages is subsequently unfounded and without benefit.  The Court is therefore requested to push aside the petition.

16.  The 2nd Respondent’s position as expressed in the course of the submissions dated 27th January, 2020 is that it acted within the tenor and letter of Section 8(1)(a), (c) and (e) of the Legal Education Act, 2012 and in particular Part II of the Second Schedule to the said Act.  Counsel issues out that underneath Section 8(1)(a) the second Respondent is the regulator of felony schooling and criminal training in Kenya that means that it's tasked with the accountability of making sure that the governing laws are in tandem with the current academic wishes of the occupation. Further, that underneath Section 8(1)(c) the 2nd Respondent is the supervisor of all legal training providers in Kenya together with the first Respondent.

17.  It is submitted that the second Respondent’s position is subsequently to make sure that all felony providers adhere to the appropriate and available regulations when sporting out their mandate. Also, that Section 8(1)(e) duties the second Respondent with the accountability of approving and recognizing qualifications bought out of doors Kenya.  This, suggest states, is to make sure that all persons with local or foreign qualifications in search of to join the 1st Respondent are subjected to the same standards.

18. Counsel for the 2nd Respondent states that some of the qualifications required for admission to the ATP by Part II of the Second Schedule to the Legal Education Act, 2012, is that a candidate must have carried out and handed the 16 core courses stated therein.  It is recommend’s position that those topics are necessary and a candidate must possess them before becoming a member of the Kenya School of Law.  He stresses that the necessities are appropriate to any candidate who wishes to join the 1st Respondent after the graduation of the Legal Education Act, 2012 on twenty eighth September, 2012.  He states that the regulation is acceptable to the Petitioner as he implemented to enroll in the 1st Respondent in 2012.  Further, that even the 2009 Regulations at Part III, Paragraph 24 of the Third Schedule of the repealed Council of Legal Education Act, Cap. 16A equipped for core topics. It is suggest’s position that the issue raised by the Petitioner used to be determined by way of the Court of Appeal in the case of Eunice Cecilia Mwikali Maema v Council of Legal Education and a couple of others [2013] eKLR. The Court is due to this fact urged to disregard the petition with prices.

19. I have cautious learn the verdict of Eunice Cecilia Mwikali Maema (supra) upon which the respondents position really extensive reliance in urging the Court to push aside the petition.  I must immediately state that the Court of Appeal didn't state that the appropriate regulation is the Legal Education Act, 2012 irrespective of the time the regulation degree was obtained. It is noted that the appellant if that's the case had got her degree in July, 2010. When she applied to enroll in the ATP her software was once rejected and he or she was once knowledgeable that she had not coated the core subjects. The Court of Appeal used to be transparent that the acceptable regulation used to be the legislation in place in 2009.  This is showed through the statements made by way of the Court of Appeal within the judgment.  At Paragraph 26 the Court of Appeal said:-

“It is not unusual ground that Legal Notice 169 of 2009 implemented to the appellant’s application for admission to the advocates training program.”

At Paragraph 39 the Court again stated:-

“To forget Legal Notice a hundred and seventy of 2009, which used to be operational at the subject material time, can be to act in disregard of existing Regulations.  Yes, the respondents won't have pleaded Legal Notice one hundred seventy of 2009 but being a question of regulation it will in our view be raised.”

20.  The Court of Appeal did certainly grasp that the core units were appropriate to each local and overseas LLB levels.  I, however, do not see any commentary in the judgment that the requirement for the law degree to satisfy the core devices used to be to apply retrospectively to degrees that have been got previous to the enactment of the legislation. The decision of the Court of Appeal is subsequently no longer of any assist to the respondents.

21. Although suggest for the Petitioner appear to indicate that the 2009 Regulations did not provide for core gadgets to be met sooner than one may well be admitted to the ATP, the Court of Appeal noticed in Eunice Cecilia Mwikali Maema (supra) that:-

“31. Under Regulation 11 of Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, the standards governing the operation of felony schooling establishments authorized by means of the Council had been set out in the Third Schedule to these Regulations underneath the name “Physical, Library and curriculum standards for felony schooling institutions”. Paragraph 20 of Part III of the Third Schedule that dealt with curriculum standards provided that:

“20. The Under-Graduate Programme shall include   of the following core gadgets –(i) prison analysis and writing;(ii) regulation of torts;(iii) law of contracts;(iv)    legal systems and strategies;(v)    constitutional law;(vi)   prison regulation;(vii)   family law & succession;(viii) legislation of evidence;(ix)    business legislation (together with sale of products,   hire-  purchase and company);(x)      regulation of industrial associations (to incorporate insolvency);(xi)    administrative legislation;(xii)   jurisprudence;(xiii) equity and the legislation of trusts;(xiiv) public international law;(xv)    belongings legislation; and(xvi) labour law.”

22.  Nevertheless, my view is that even the 2009 regulations are not applicable to the Petitioner’s case as his degree was once received in 2008.  The respondents have now not mentioned that there was a regulation in place in 2008 that provided for sure core devices to be met earlier than one might be admitted to the ATP.  If there was this type of law, then the first Respondent may just no longer have admitted the Petitioner for training when he first carried out to enroll in the ATP in 2008.

23.  The query subsequently is whether or not the 2009 and 2012 laws could retrospectively apply to the Petitioner’s LLB degree. The case of Pauline Anna Benadette Onyango v Kenya School of Law [2017] eKLR presented very similar facts to the case before this Court. The petitioner therein had been admitted to the Kenya School of Law’s ATP for the 2005/2006 academic 12 months. She, on the other hand, deferred her research for lack of faculty charges.  She rejoined the School for the 2010/2011 instructional yr but once more sought to defer her research.  Her request used to be rejected and she or he used to be advised she may handiest defer her research once.  She carried out to rejoin the ATP for the 2015/2016 educational 12 months however her application was declined at the flooring that she didn't meet the requirements of the Kenya School of Law Act, 2012 for admission to the ATP. She sued the Kenya School of Law. Allowing her petition, E.C. Mwita, J held that:-

“47.  The petitioner having enrolled in LL.B magnificence, and in fact obtained her degree qualifications previous to the enactment of the new regulation, cannot and will have to no longer be subjected to it.  Doing so would amount to condemning the petitioner for having long gone to school early, and that's the unreasonableness that Article Forty seven seeks to forestall.  She should be handled based on the legislation that existed when she got her qualifications.  In quick, the petitioner qualifies to use for admission to ATP at the college.”

24. The learned Judge proceeded to hold that:-

“50. From what I've stated herein above, I find that the petitioner was certified to use for admission to ATP at the respondent School, and the respondent was once wrong in applying the law retrospectively to hide her stage obtained previous to the enactment of the new legislation.”

25.  In Kevin K Mwiti & others v Kenya School of Law & 2 others [2015] eKLR, the main issue was once whether or not a 2014 amendment to the Kenya School of Law Act, 2012 would observe to students who have been already in university when the Kenya School of Law Act, 2012 came into force.  G. V. Odunga, J, allowed the petition and granted, among other reliefs, an order:-

“A declaration that the Petitioners who have been already within the LLB magnificence previous to the enactment of the Kenya School of Law Act are to be treated in the manner pondered through the guidelines issued by way of the School prior to the enactment of the Amendment Act.  For avoidance of doubt those who have been admitted in the LLB class prior to the enactment of the Kenya School of Law Act are to conform to the provisions of the mentioned Act.”

26.  I indeed find benefit in the Petitioner’s submission that the respondents can not measure his LLB level in opposition to regulations that did not exist at the time he undertook his route.  It is due to this fact obtrusive that the first Respondent acted in far more than its powers via declining to admit the Petitioner to the ATP.  This discovering similarly applies to the second Respondent’s purported attempt to recognize and approve the Petitioner’s degree.

27.  An administrator who applies a regulation to a person who does no longer fall within the purview of that law acts in violation of Article Forty seven of the Constitution which requires administrative motion to be expeditious, environment friendly, lawful, reasonable and procedurally truthful. This remark of the legislation reveals beef up within the resolution of the Supreme Court in Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR the place it was held that:-

“[126] In examining Article 47(1) of the Constitution, the place to begin is a presumption that the person exercising the executive power has the felony authority to exercise that authority. Once happy as to the lawfulness of the ability exercised, is when the court will delve into inquiring whether in the sporting out of that administrative motion, there was violation of Article 47(1).  This is the take a look at of legality. So that the question of the unlawfulness or otherwise to act is at the onset of the inquiry. Where the act done used to be extremely vires the mandate of the executive entity, the act is void ab initio and the inquiry stops there as there may be an outright violation of the Constitution. The question of legality or the lawfulness of an act lies on the core Article 47(1).”

28.  There is nothing lawful, reasonable or procedurally honest in the respondents’ determination to apply to the Petitioner’s level regulations that didn't exist on the time he went to university.  They should treat him in the context of the regulations that existed at the time he undertook his legislation research. 

29.  Having discovered that the respondents violated the Petitioner’s proper to fair administrative motion, it also follows that their actions violated the Petitioner’s proper to schooling under Article 43(1)(f) of the Constitution.  Their actions unlawfully denied the Petitioner admission to the ATP although he was qualified to be admitted to the programme. In doing so, they ended up violating the Petitioner’s constitutional right to education.

30. The Petitioner has, however, not positioned any proof prior to this Court in reinforce of his claim that the other constitutional provisions cited in his petition had been violated by the respondents.

31. On the amount of damages to be awarded, the Petitioner depends on the Court of Appeal resolution in Peter M. Kariuki v Attorney General [2014] eKLR and prays for Kshs. Eight million as normal damages. It is, alternatively, noted that the cited resolution was about violation of the appellant’s rights to fair trial and liberty. The Petitioner has no longer cited circumstances very similar to his.  It may be clear that the Petitioner played a significant position in the state of affairs that faces him.  The 1st Respondent made its choice in 2014 and he took no motion.  He waited till the second Respondent rejected his utility for admission in 2008 earlier than taking motion. In Martin Wanderi (supra) an award of Kshs. 200,000/- was once made to engineering students who were denied registration via the respondent board. In my view that should be the right dimension of the award to be made in a case like the only ahead of this Court. I due to this fact award the Petitioner Kshs. 200,000/- as general damages against the respondents jointly and severally.

32.  In abstract the petition succeeds and orders shall issue as follows:-

a) A declaration is hereby issued that the respondents’ decision as contained within the letters dated sixth January, 2014 and 2d November, 2018 violated the Petitioner’s rights underneath Articles 43(1)(f) and 47 of the Constitution.

b) An order is hereby issued calling into this Court and quashing the 1st and 2nd respondents’ letters to the Petitioner dated 6th January, 2014 and 2d November, 2018;

c) An order of mandamus is issued directing the respondents to admit the Petitioner to the ATP;

d) The Petitioner is awarded general damages of Kshs. 200,000/- towards the respondents; and

e) The Petitioner is awarded costs of the proceedings against the respondents.

Dated, signed and delivered through video conferencing/ email at Nairobi this 14th day of May, 2020.

W. Korir,

Judge of the High Court

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