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[1] The 1 st petitioner, Elizabeth Wambui Mburu , described herself as a law-abiding citizen of Kenya, a public-spirited individual and a human rights defender. She is the biological mother and sponsor of the 2 nd petitioner, Dennis Mucheru Mburu . She filed the instant Petition dated 2 nd May 2024, initially citing the 2 nd petitioner as the 1 st interested party. The Petition was thereafter amended on 14 th June 2024, to join the 1 st interested party as the 2 nd petitioner. The 2 nd petitioner contends that he is a bona fide student of the Kenya School of Law, having duly signed the 1 st respondent’s Nominal Roll.
[2] The two petitioners averred that, in exercise of their administrative functions, the respondents offered the 2 nd petitioner provisional admission on the 31 st January 2024. This was after the 2 nd petitioner was deemed qualified for admission upon subjecting himself to the requisite registration processes as directed in the admission letter. He was subsequently offered full admission and caused to sign the Nominal Roll as a bona fide student of the Kenya School of Law (KSL). He was also issued with a student identity card.
[3] The petitioners further averred that, in an unexpected turn of events, and without any valid rationale, the respondents whimsically decided to revoke the 2 nd petitioner’s admission to the Kenya School of Law (KSL) on the 15 th April 2024 after he had paid fees and undergone a substantial part of the ongoing Advocates Training Programme for 2024/2025. They contended that the revocation was done in contravention of the constitutional requirements in that the decision was not only arbitrary but also irrational.
[4] Accordingly, the 1 st petitioner prayed for the following reliefs per their Amended Petition:
[a] A declaration that the impugned revocation of admission of the 2 nd petitioner to KSL in the letter dated 15 th April 2024 is null and void, as it egregiously disregarded the principles of fair administrative action, as unequivocally stipulated in Articles 2(4), 3, 10, 25(c), 28, 35(2), 43(1)(f), 46, 47, 48, 50(1) and 232 of the Constitution.
[b] An order of Certiorari, commanding the immediate quashing of the respondents’ impugned revocation letter dated 15 th April 2024.
[c] An order of Mandamus compelling the respondents to make up for the time the 2 nd petitioner missed lectures, examinations or assignment as a result of the impugned revocation letter.
[d] An award of costs of the Petition.
[e] Any other order that the Court may deem fit to grant to achieve the ends of justice and to uphold the constitutional values and principles that underpin our democracy.
[5] Concomitantly, the 1 st petitioner filed an application for conservatory orders to protect the substratum of the Petition pending inter partes hearing and determination of both the application and the Petition. Consequently, interim orders were given on 8 th May 2024 prohibiting the respondents from revoking the 2 nd petitioner’s admission to KSL pending the hearing and determination of the application. Granted the urgency of the Petition, the parties opted to compromise that application in favour of expeditious disposal of the substantive suit. Consequently, they agreed that the status quo be maintained pending the hearing and determination of the Petition.
[6] In response to the Petition, the respondents filed a Replying Affidavit sworn by the 1 st respondent’s Principal Officer, Academic Services, Mr. Fredrick Muhia . They averred that the 1 st petitioner does not have the locus standi to file this suit given that she is not a student of the 1 st respondent.
[7] The respondents further averred that the 1 st respondent is now a state corporation established under Section 3 of the Kenya School of Law Act, 2012; and therefore the successor of the Kenya School of Law as previously established under the Council of Legal Education Act, 1995 (now repealed). Consequently, it was the contention of the respondents that, since the 2 nd petitioner graduated from the University on 4 th November 2010, his application was reconsidered under the Council of Legal Education (Kenya School of Law) Regulations, 2009 and a decision taken to revoke his admission for failure to pass the Pre-Bar Examination (PBE).
[8] In addition to the Replying Affidavit aforementioned, the respondents filed a Notice of Preliminary Objection dated 13 th May 2024 on the following grounds:
[a] The 1 st petitioner lacks locus standi in this matter.
[b] The Petition offends Article 22 of the Constitution.
[c] The Petition is frivolous, vexatious and is an abuse of the process of the Court.
[9] The 2 nd petitioner also filed a Replying Affidavit in which he deposed that he graduated with a Bachelors of Law degree from Kampala International University and was thereafter admitted to the Kenya School of Law. He added that he was undergoing the Advocates Training Programme (ATP) when the respondents revoked his admission on 15 th April 2024. He averred that the decision was taken in an egregious manner and in disregard of the constitutional and legal provisions requiring all administrative actions to be taken legally and in a procedurally fair manner. He further contended that the revocation was contrary to his legitimate expectation; having been found qualified for admission and was in fact admitted by the respondents to KSL.
[10] Subsequently, the 1 st petitioner sought leave of the Court to amend the Petition at a time when the 2 nd petitioner also sought to be joined to the Petition as a co-petitioner. The prayers were unopposed and were accordingly granted on 12 th June 2024. It was further ordered that the Preliminary Objection be canvassed as a response to the Petition; but the same was thereafter abandoned. The explanation given by counsel for the respondents was that, following the joinder of the 2 nd petitioner, the Preliminary Objection had been overtaken by events.
[11] The 2 nd interested party, the Council for Legal Education, filed a Replying Affidavit sworn on 18 th November 2024 by Jennifer Gitiri , the Acting Chief Executive Officer. She averred that the 2 nd Petitioner did not submit his application to sit for the Advocates Training Programme via its Enterprise Resource Planning (ERP) system; a requirement for every interested candidate who intends to sit for the ATP examination for purposes of processing and verification.
[12] The 2 nd interested party explained that for one’s results to be verified by the 2 nd interested party, the applicant must provide:
[a] High School Certificate to confirm whether they have met the entry requirements as provided for in the Kenya School of Law Act;
[b] University transcript and certificate;
[c] Kenya School of Law Admission Letter;
[d] National Identification Card or Passport and
[e] Passport photograph.
[13] The 2 nd interested party further deposed that that if one did not meet the above minimum requirements, they would be required to produce the PBE results issued by the 1 st respondent as an alternative to the KCSE Certificate. In the case of applicants from foreign universities, they would have to submit a clearance certificate from the 2 nd interested party. The 2 nd interested party further averred that at the point of applying for the ATP examination, every first-time candidate is required to:
[a] Access their candidate portal;
[b] Create an account by in-putting their bio-data into the portal and attaching the national identification card, transcripts and certificates;
[c] Select units they wish to sit for in the scheduled examination series;
[d] Make payment for the units they have selected; and
[e] Submit their application by clicking on the “Submit” button that is normally available at the landing page of the application form in the portal.
[14] The 2 nd interested party also averred that once an application is received by it, an automatic email is generated informing the applicant that their application for the ATP examination is now pending approval; and they are encouraged to keep checking their portal for the application status. It added that an applicant must confirm that they are registered as a candidate as no candidate is allowed to sit for the exams without such registration with the 2 nd interested party.
[15] The 2 nd interested party explained that if an applicant or candidate did not complete their registration, upon clicking “application status” in the system, they would get a pop-up message that their application was not complete. The 2 nd interested party pointed out that, upon clicking the 2 nd petitioner’s status in its system, it indicated “ You are yet to complete your registration,” a clear indication that he did not apply for the November 2024 ATP examinations.
[16] The 2 nd interested concluded its deposition by stating that equity aids those who come to it with clean hands; and that it also aids the vigilant and not the indolent. Hence, the 2 nd interested party stated that the 2 nd petitioner did not register for exams with them despite being called by its representatives to do so, and thus, they could not make an assumption that the 2 nd petitioner was interested in sitting for the examination he never registered for.
[17] In their written submissions dated 9 th September 2024, the petitioners proposed several issues for determination, including the following:
[a] Whether this Court has jurisdiction over this matter.
[b] What is the due process for revocation of admission at the Kenya School of Law and whether it was followed in the case of the 2 nd petitioner.
[c] Whether the petitioners’ constitutional rights were violated as alleged.
[d] Whether the petitioners are entitled to the reliefs sought.
[18] The question of jurisdiction was raised by the respondents and in their submissions the petitioners responded thereto by citing Article 22(1) of the Constitution. In their submission, the Constitution allows the 1 st petitioner to sue in her own capacity for violation of her rights as the biological mother and sponsor of the 2 nd petitioner. They further submitted that the respondents owe the 1 st petitioner a constitutional duty to render services of reasonable quality, information necessary for her to gain full benefit from its services and compensation for loss arising from any defects in their services. They cited Articles 35 and 46 of the Constitution to underscore the 2 nd petitioner’s educational needs.
[19] Further to the foregoing, the petitioners submitted that, under Article 22(2)(a), (c) and (d) of the Constitution, the 1 st petitioner has the right to institute court proceedings on behalf of another person; in this case the 2 nd petitioner. Granted that the respondents abandoned their Notice of Preliminary Objection upon joinder of the 2 nd petitioner, the submissions on locus standi and jurisdiction are now inconsequential.
[20] The petitioners submitted that the admission of the 2 nd petitioner amounted to an award for purposes of Section 20(1) of the Kenya School of Law Act, Cap 16C. In their view, both the provisional and full admission of the 2 nd petitioner after a rigorous approval process and certification amounts to an award by KSL; and therefore the revocation of the 2 nd petitioner’s admission ought to have been done in accordance with the procedure set out in Section 20(2) of the Kenya School of Law Act.
[21] According to the petitioners, an award can only be withdrawn or recalled for purposes of Section 20(2) if the same is found by the Board of Directors of KSL to have been obtained through fraud. They added that the letter dated 15 th April 2024 portends a grave threat to the country’s constitutional order and therefore the respondents ought to be halted in the interest of justice. They relied on Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji & 3 others [2021] eKLR and Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007) 4 (E005) & 8 (E010) of 2022 (Consolidated) [2023] KESC 40 (KLR) (16 June 2023) and urged the Court to uphold their constitutional rights by granting the reliefs sought in the Amended Petition.
[22] On their part, the respondents relied on their written submissions dated 17 th October 2024 and proposed the following issues for determination:
[a] Whether the impugned decision was illegal, irrational or procedurally unfair;
[b] Whether the respondents’ actions were justified and anchored in the law;
[c] Whether the petitioners are entitled to legitimate expectation.
[23] The respondents submitted that, in determining whether the petitioners’ right to administrative action was infringed, their Petition must be scrutinized as to whether the action of the respondents was illegal, irrational or procedurally unfair. They relied on John Wachiuri T/A Githukwa Graceland & Wandumbi Bar & 50 others v the County Government of Nyeri & another [2016] eKLR. Their contention was that the impugned decision was taken in accordance with the Constitution and the applicable law governing the provision of professional legal training.
[24] The respondent contended that it is incumbent upon them to ensure adherence to the set quality standards, including the admission of only those persons who meet the 1 st respondent’s admission criteria. They added that, for it to act to the contrary, as sought by the petitioners, would amount not only to discrimination but also an infringement of the consumer rights of the public as to the quality of education; and therefore a violation of Article 46 of the Constitution.
[25] The respondents reiterated their contention that, prior to January 2013, the law governing admissions to the Advocates Training Programme (ATP) was the Council of Legal Education Act, Cap 16A, with its attendant Regulations, namely, The Council of Legal Education (Accreditation) Regulations, 2009 and Council of Legal Education (Kenya School of Law) Regulations, 2009. They pointed out that, in September 2012, Parliament enacted the Kenya School of Law Act, 2012 which came into force on 15 th January 2013.
[26] It was the submission of the respondents that, since the Kenya School of Law Act did not contain transitional provisions to cater for the students undertaking degree courses in various universities at the time, they formulated Guidelines to plug the gap during the transitional period. They added that the transition of the two laws was later considered in the case of Kevin Mwiti & others v Kenya School of Law & others [2015] eKLR in which the court ruled that all persons who had commenced their LLB studies before the enactment of the Kenya School of Law Act, 2012 could join the ATP on the basis of the admission criteria in force before the Act was passed.
[27] On the basis of the above authority, the respondents proceeded consider the 2 nd petitioner’s application for admission as per the qualification criteria set out in the Council of Legal Education (Kenya School of Law) Regulations, 2009. They submitted that since the provisions are mandatory their decision was inevitable. They made reference to the words of Wessels JA in Standard Bank Ltd v Van Rhyn [1925] AD 266 on the interpretation of the word “shall” and urged the Court to find that they were under obligation to comply with the admission criteria.
[28] On whether the petitioners are entitled to legitimate expectation, the respondents cited Communications Commission of Kenya & 5 others v Royal Media Services & 5 others, Supreme Court Petition Nos. 14, 14A, 14B & 14C of 2024, among other authorities, for the submission that an expectation whose fulfillment requires that a decision-maker makes an unlawful decision cannot be a legitimate expectation. They accordingly prayed for the dismissal of the Petition with costs.
[29] In the light of the foregoing, the issues for determination are as follows:
[b] What is the due process for admission at the Kenya School of Law and whether it was followed in the case of the 2 nd petitioner.
[c] Whether the petitioners’ constitutional rights were violated as alleged.
[d] Whether the petitioners are entitled to the reliefs sought.
A. On the KSL admission criteria:
[30] From the foregoing, it is not in dispute that the 2 nd petitioner graduated with an LLB degree from Kampala International University. Therefore, at the time of his first attempt to join the KSL in 2011 the applicable regime governing qualification for admission was as provided for by the Council of Legal Education Act, 1995 (now repealed), which created the Kenya School of Law. Accordingly, the contention of the KSL herein that the 2 nd petitioner’s application for admission had to be considered from the prism the Council of Legal Education (Kenya School of Law Regulations) 2009 is valid.
[31] Regulation 4 of the Council of Legal Education (Kenya School of Law Regulations) 2009 provides:
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 First Schedule to these Regulations for that course.
[32] The First Schedule of the Council of Legal Education (Kenya School of Law) Regulations, 2009 provided as follows in Regulation 5:
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;
(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 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 pre-condition for admission.
[33] With regard to the PBE, Regulation 10(1) and (2) of the Council of Legal Education (Kenya School of Law Regulations) 2009 provided thus: -
10. (1) A pre-bar examination shall be administered to students who hold a Bachelor of Laws Degree (LL.B) from a recognized University but do not qualify for direct admission under these Regulations.
(2) The pre-bar examination shall test the mastery of legal techniques, legal writing and substantive legal principles at the degree subject level and proficiency in English.
[34] Regarding the time lapse between his graduation in 2010 and his 2024 admission, the respondents averred, in their Replying Affidavit sworn on 3 rd June 2024, that the 2 nd petitioner sat for the PBE in September 2011 under the 2009 Regulations (commonly referred to as the old Pre-Bar). At paragraphs 13 and 14, the respondents deposed that in that attempt, the 2 nd petitioner sat for six papers but passed only one, namely, the Law of Tort.
[35] The respondents further explained that the 1 st petitioner later attempted the PBE in September 2012, where he undertook the remaining five units. Again, he passed only one paper, namely, Land Law. He was therefore expected to re-sit the remaining four papers to qualify for admission. In proof of their averments, the respondents annexed a copy of the 2 nd petitioner’s PBE results for September 2011 and September 2012 as Annexures “FM1 and FM2 to their Replying Affidavit.
[36] It was further the contention of the respondents that it was not until January 2024 that the 2 nd petitioner re-activated his PBE exams; but that he only applied to retake three papers, namely, Legal Methods, Systems and Constitutional Law, Law of Contract and Family Law and Succession. [37] The respondent further deposed that, again, the 2 nd petitioner did not promptly follow up on his 2012 results until twelve (12) years later in 2024 when he went back to the KSL and specifically applied to re-sit only three papers Legal Methods, Systems and Constitutional Law, Law of Contract and Family Law and Succession. On his part the 2 nd petitioner averred that it was absurd that the respondent should lay the blame on him yet it is the depository of all results.
[38] The Court takes judicial notice that in the same year of 2012, Parliament enacted the Legal Education Act with a commencement date of 28 th September, 2012, and the Kenya School of Law Act whose commencement date was 15 th January 2013. The Legal Education Act indicates in its preamble that it is:
“ An Act of Parliament to provide for the establishment of the Council of Legal Education; the establishment of the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes.”
[39] The effect of the enactment of the Legal Education Act under Section 47 , was to repeal the Council of Legal Education Act, 1995. This is manifest at Section 47 of the Legal Education Act. The question to pose then is which regime is applicable to the 2 nd petitioner’s application for admission. While the respondent was of the posturing that the applicable regime is that which was in force before the enactment of the Legal Education Act and the Kenya School of Law Act, the 2 nd Interested Party’s stance was that for one to register to sit for the PBE, they had to comply with the admission requirements set out under the Kenya School of Law Act.
[40] Before the said amendment the Second Schedule to the Act at section 1 and 2 thereof provided:
(1) A person shall be admitted to the School if:
(a)having passed the relevant examination of any recognized university in Kenya holds, or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university; 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 (LL.B) 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; or 2. has sat and passed the Pre-Bar examination set by the School.
[41] In this regard, Section 16 of the Kenya School of Law Act provides:
“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.”
[42] The Second Schedule on Admission Requirements provides: -
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
[43] The question whether the Kenya School of Law Act was intended to operate retrospectively in respect of those who, like the 2 nd petitioner, obtained their undergraduate degrees and applied for admission of the ATP prior to 2012 was the subject of discussion in Kevin Mwiti & others v Kenya School of Law & others [2015] eKLR. The position taken by Hon. Odunga, J. (as he then was) and which I entirely agree with, is that:
“…the Petitioners who were already in the LLB Class prior to the enactment of the Kenya School of Law Act are to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. For avoidance of doubt 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…”
[44] It is therefore not in dispute that in 2011, the 2 nd Petitioner was required to sit the PBE because he had not attained B (plain) in English in the Kenya Certificate Secondary Education (KCSE). It is therefore my finding that the applicable admission criteria in this instance is that which prevailed before the 2012 amendment.
B. On whether the petitioners’ constitutional rights under Articles 2(4), 3, 10, 25(c), 28, 35(2), 43(1)(f), 46, 47, 48, 50(1) & 232 of the Constitution were violated by the Respondent:
[45] There is no gainsaying that the 2 nd Petitioner’s provisional admission to the KSL was conditional on his having passed his PBE. The petitioners and the respondents took divergent positions on this aspect in that, while the 2 nd petitioner averred that he was fully compliant, the contention of the respondents was that he did not qualify; and that he was only given provisional admission pending verification of his PBE scores. In particular, the respondents contended that the 2 nd Petitioner had not passed one paper, namely Commercial Law.
[46] Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, is explicit:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
[47] Section 109 of the Evidence Act provides:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
[48] Hence, in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, the Supreme Court held:
“[47] It is a timeless rule of the common law tradition, Kenya’s juristic heritage, and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the Respondent bore responsibility, in whole or in part.
[49] That position was reiterated by the Supreme Court in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) thus:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[50] The 2 nd petitioner admittedly failed to avail transcripts to prove that he successfully undertook the PBE. He indicated that he enquired from the KSL about his 2012 results and was told verbally that he had passed Commercial Law as part of the exams he sat for in 2012; and that the results were then written for him on the back of a receipt which he annexed to his Supporting Affidavit. On that basis he decided not to re-sit that paper, notwithstanding that he had not been issued with a transcript of his results as had been done previously. Clearly therefore, in this regard, the petitioners failed to avail credible proof of having qualified.
[51] The petitioner posited that when he was admitted and commenced the ATP, a legitimate expectation was thereby created that he had qualified and was entitled to complete the ATP. He averred that he was awarded a letter of admission to the School, whereupon he paid fees, signed the Nominal Roll and participated in school activities; and therefore he is a bona fide student of KSL.
[52] The doctrine of
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[1] The 1 st petitioner, Elizabeth Wambui Mburu , described herself as a law-abiding citizen of Kenya, a public-spirited individual and a human rights defender. She is the biological mother and sponsor of the 2 nd petitioner, Dennis Mucheru Mburu . She filed the instant Petition dated 2 nd May 2024, initially citing the 2 nd petitioner as the 1 st interested party. The Petition was thereafter amended on 14 th June 2024, to join the 1 st interested party as the 2 nd petitioner. The 2 nd petitioner contends that he is a bona fide student of the Kenya School of Law, having duly signed the 1 st respondent’s Nominal Roll.
[2] The two petitioners averred that, in exercise of their administrative functions, the respondents offered the 2 nd petitioner provisional admission on the 31 st January 2024. This was after the 2 nd petitioner was deemed qualified for admission upon subjecting himself to the requisite registration processes as directed in the admission letter. He was subsequently offered full admission and caused to sign the Nominal Roll as a bona fide student of the Kenya School of Law (KSL). He was also issued with a student identity card.
[3] The petitioners further averred that, in an unexpected turn of events, and without any valid rationale, the respondents whimsically decided to revoke the 2 nd petitioner’s admission to the Kenya School of Law (KSL) on the 15 th April 2024 after he had paid fees and undergone a substantial part of the ongoing Advocates Training Programme for 2024/2025. They contended that the revocation was done in contravention of the constitutional requirements in that the decision was not only arbitrary but also irrational.
[4] Accordingly, the 1 st petitioner prayed for the following reliefs per their Amended Petition:
[a] A declaration that the impugned revocation of admission of the 2 nd petitioner to KSL in the letter dated 15 th April 2024 is null and void, as it egregiously disregarded the principles of fair administrative action, as unequivocally stipulated in Articles 2(4), 3, 10, 25(c), 28, 35(2), 43(1)(f), 46, 47, 48, 50(1) and 232 of the Constitution.
[b] An order of Certiorari, commanding the immediate quashing of the respondents’ impugned revocation letter dated 15 th April 2024.
[c] An order of Mandamus compelling the respondents to make up for the time the 2 nd petitioner missed lectures, examinations or assignment as a result of the impugned revocation letter.
[d] An award of costs of the Petition.
[e] Any other order that the Court may deem fit to grant to achieve the ends of justice and to uphold the constitutional values and principles that underpin our democracy.
[5] Concomitantly, the 1 st petitioner filed an application for conservatory orders to protect the substratum of the Petition pending inter partes hearing and determination of both the application and the Petition. Consequently, interim orders were given on 8 th May 2024 prohibiting the respondents from revoking the 2 nd petitioner’s admission to KSL pending the hearing and determination of the application. Granted the urgency of the Petition, the parties opted to compromise that application in favour of expeditious disposal of the substantive suit. Consequently, they agreed that the status quo be maintained pending the hearing and determination of the Petition.
[6] In response to the Petition, the respondents filed a Replying Affidavit sworn by the 1 st respondent’s Principal Officer, Academic Services, Mr. Fredrick Muhia . They averred that the 1 st petitioner does not have the locus standi to file this suit given that she is not a student of the 1 st respondent.
[7] The respondents further averred that the 1 st respondent is now a state corporation established under Section 3 of the Kenya School of Law Act, 2012; and therefore the successor of the Kenya School of Law as previously established under the Council of Legal Education Act, 1995 (now repealed). Consequently, it was the contention of the respondents that, since the 2 nd petitioner graduated from the University on 4 th November 2010, his application was reconsidered under the Council of Legal Education (Kenya School of Law) Regulations, 2009 and a decision taken to revoke his admission for failure to pass the Pre-Bar Examination (PBE).
[8] In addition to the Replying Affidavit aforementioned, the respondents filed a Notice of Preliminary Objection dated 13 th May 2024 on the following grounds:
[a] The 1 st petitioner lacks locus standi in this matter.
[b] The Petition offends Article 22 of the Constitution.
[c] The Petition is frivolous, vexatious and is an abuse of the process of the Court.
[9] The 2 nd petitioner also filed a Replying Affidavit in which he deposed that he graduated with a Bachelors of Law degree from Kampala International University and was thereafter admitted to the Kenya School of Law. He added that he was undergoing the Advocates Training Programme (ATP) when the respondents revoked his admission on 15 th April 2024. He averred that the decision was taken in an egregious manner and in disregard of the constitutional and legal provisions requiring all administrative actions to be taken legally and in a procedurally fair manner. He further contended that the revocation was contrary to his legitimate expectation; having been found qualified for admission and was in fact admitted by the respondents to KSL.
[10] Subsequently, the 1 st petitioner sought leave of the Court to amend the Petition at a time when the 2 nd petitioner also sought to be joined to the Petition as a co-petitioner. The prayers were unopposed and were accordingly granted on 12 th June 2024. It was further ordered that the Preliminary Objection be canvassed as a response to the Petition; but the same was thereafter abandoned. The explanation given by counsel for the respondents was that, following the joinder of the 2 nd petitioner, the Preliminary Objection had been overtaken by events.
[11] The 2 nd interested party, the Council for Legal Education, filed a Replying Affidavit sworn on 18 th November 2024 by Jennifer Gitiri , the Acting Chief Executive Officer. She averred that the 2 nd Petitioner did not submit his application to sit for the Advocates Training Programme via its Enterprise Resource Planning (ERP) system; a requirement for every interested candidate who intends to sit for the ATP examination for purposes of processing and verification.
[12] The 2 nd interested party explained that for one’s results to be verified by the 2 nd interested party, the applicant must provide:
[a] High School Certificate to confirm whether they have met the entry requirements as provided for in the Kenya School of Law Act;
[b] University transcript and certificate;
[c] Kenya School of Law Admission Letter;
[d] National Identification Card or Passport and
[e] Passport photograph.
[13] The 2 nd interested party further deposed that that if one did not meet the above minimum requirements, they would be required to produce the PBE results issued by the 1 st respondent as an alternative to the KCSE Certificate. In the case of applicants from foreign universities, they would have to submit a clearance certificate from the 2 nd interested party. The 2 nd interested party further averred that at the point of applying for the ATP examination, every first-time candidate is required to:
[a] Access their candidate portal;
[b] Create an account by in-putting their bio-data into the portal and attaching the national identification card, transcripts and certificates;
[c] Select units they wish to sit for in the scheduled examination series;
[d] Make payment for the units they have selected; and
[e] Submit their application by clicking on the “Submit” button that is normally available at the landing page of the application form in the portal.
[14] The 2 nd interested party also averred that once an application is received by it, an automatic email is generated informing the applicant that their application for the ATP examination is now pending approval; and they are encouraged to keep checking their portal for the application status. It added that an applicant must confirm that they are registered as a candidate as no candidate is allowed to sit for the exams without such registration with the 2 nd interested party.
[15] The 2 nd interested party explained that if an applicant or candidate did not complete their registration, upon clicking “application status” in the system, they would get a pop-up message that their application was not complete. The 2 nd interested party pointed out that, upon clicking the 2 nd petitioner’s status in its system, it indicated “ You are yet to complete your registration,” a clear indication that he did not apply for the November 2024 ATP examinations.
[16] The 2 nd interested concluded its deposition by stating that equity aids those who come to it with clean hands; and that it also aids the vigilant and not the indolent. Hence, the 2 nd interested party stated that the 2 nd petitioner did not register for exams with them despite being called by its representatives to do so, and thus, they could not make an assumption that the 2 nd petitioner was interested in sitting for the examination he never registered for.
[17] In their written submissions dated 9 th September 2024, the petitioners proposed several issues for determination, including the following:
[a] Whether this Court has jurisdiction over this matter.
[b] What is the due process for revocation of admission at the Kenya School of Law and whether it was followed in the case of the 2 nd petitioner.
[c] Whether the petitioners’ constitutional rights were violated as alleged.
[d] Whether the petitioners are entitled to the reliefs sought.
[18] The question of jurisdiction was raised by the respondents and in their submissions the petitioners responded thereto by citing Article 22(1) of the Constitution. In their submission, the Constitution allows the 1 st petitioner to sue in her own capacity for violation of her rights as the biological mother and sponsor of the 2 nd petitioner. They further submitted that the respondents owe the 1 st petitioner a constitutional duty to render services of reasonable quality, information necessary for her to gain full benefit from its services and compensation for loss arising from any defects in their services. They cited Articles 35 and 46 of the Constitution to underscore the 2 nd petitioner’s educational needs.
[19] Further to the foregoing, the petitioners submitted that, under Article 22(2)(a), (c) and (d) of the Constitution, the 1 st petitioner has the right to institute court proceedings on behalf of another person; in this case the 2 nd petitioner. Granted that the respondents abandoned their Notice of Preliminary Objection upon joinder of the 2 nd petitioner, the submissions on locus standi and jurisdiction are now inconsequential.
[20] The petitioners submitted that the admission of the 2 nd petitioner amounted to an award for purposes of Section 20(1) of the Kenya School of Law Act, Cap 16C. In their view, both the provisional and full admission of the 2 nd petitioner after a rigorous approval process and certification amounts to an award by KSL; and therefore the revocation of the 2 nd petitioner’s admission ought to have been done in accordance with the procedure set out in Section 20(2) of the Kenya School of Law Act.
[21] According to the petitioners, an award can only be withdrawn or recalled for purposes of Section 20(2) if the same is found by the Board of Directors of KSL to have been obtained through fraud. They added that the letter dated 15 th April 2024 portends a grave threat to the country’s constitutional order and therefore the respondents ought to be halted in the interest of justice. They relied on Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji & 3 others [2021] eKLR and Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007) 4 (E005) & 8 (E010) of 2022 (Consolidated) [2023] KESC 40 (KLR) (16 June 2023) and urged the Court to uphold their constitutional rights by granting the reliefs sought in the Amended Petition.
[22] On their part, the respondents relied on their written submissions dated 17 th October 2024 and proposed the following issues for determination:
[a] Whether the impugned decision was illegal, irrational or procedurally unfair;
[b] Whether the respondents’ actions were justified and anchored in the law;
[c] Whether the petitioners are entitled to legitimate expectation.
[23] The respondents submitted that, in determining whether the petitioners’ right to administrative action was infringed, their Petition must be scrutinized as to whether the action of the respondents was illegal, irrational or procedurally unfair. They relied on John Wachiuri T/A Githukwa Graceland & Wandumbi Bar & 50 others v the County Government of Nyeri & another [2016] eKLR. Their contention was that the impugned decision was taken in accordance with the Constitution and the applicable law governing the provision of professional legal training.
[24] The respondent contended that it is incumbent upon them to ensure adherence to the set quality standards, including the admission of only those persons who meet the 1 st respondent’s admission criteria. They added that, for it to act to the contrary, as sought by the petitioners, would amount not only to discrimination but also an infringement of the consumer rights of the public as to the quality of education; and therefore a violation of Article 46 of the Constitution.
[25] The respondents reiterated their contention that, prior to January 2013, the law governing admissions to the Advocates Training Programme (ATP) was the Council of Legal Education Act, Cap 16A, with its attendant Regulations, namely, The Council of Legal Education (Accreditation) Regulations, 2009 and Council of Legal Education (Kenya School of Law) Regulations, 2009. They pointed out that, in September 2012, Parliament enacted the Kenya School of Law Act, 2012 which came into force on 15 th January 2013.
[26] It was the submission of the respondents that, since the Kenya School of Law Act did not contain transitional provisions to cater for the students undertaking degree courses in various universities at the time, they formulated Guidelines to plug the gap during the transitional period. They added that the transition of the two laws was later considered in the case of Kevin Mwiti & others v Kenya School of Law & others [2015] eKLR in which the court ruled that all persons who had commenced their LLB studies before the enactment of the Kenya School of Law Act, 2012 could join the ATP on the basis of the admission criteria in force before the Act was passed.
[27] On the basis of the above authority, the respondents proceeded consider the 2 nd petitioner’s application for admission as per the qualification criteria set out in the Council of Legal Education (Kenya School of Law) Regulations, 2009. They submitted that since the provisions are mandatory their decision was inevitable. They made reference to the words of Wessels JA in Standard Bank Ltd v Van Rhyn [1925] AD 266 on the interpretation of the word “shall” and urged the Court to find that they were under obligation to comply with the admission criteria.
[28] On whether the petitioners are entitled to legitimate expectation, the respondents cited Communications Commission of Kenya & 5 others v Royal Media Services & 5 others, Supreme Court Petition Nos. 14, 14A, 14B & 14C of 2024, among other authorities, for the submission that an expectation whose fulfillment requires that a decision-maker makes an unlawful decision cannot be a legitimate expectation. They accordingly prayed for the dismissal of the Petition with costs.
[29] In the light of the foregoing, the issues for determination are as follows:
[b] What is the due process for admission at the Kenya School of Law and whether it was followed in the case of the 2 nd petitioner.
[c] Whether the petitioners’ constitutional rights were violated as alleged.
[d] Whether the petitioners are entitled to the reliefs sought.
A. On the KSL admission criteria:
[30] From the foregoing, it is not in dispute that the 2 nd petitioner graduated with an LLB degree from Kampala International University. Therefore, at the time of his first attempt to join the KSL in 2011 the applicable regime governing qualification for admission was as provided for by the Council of Legal Education Act, 1995 (now repealed), which created the Kenya School of Law. Accordingly, the contention of the KSL herein that the 2 nd petitioner’s application for admission had to be considered from the prism the Council of Legal Education (Kenya School of Law Regulations) 2009 is valid.
[31] Regulation 4 of the Council of Legal Education (Kenya School of Law Regulations) 2009 provides:
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 First Schedule to these Regulations for that course.
[32] The First Schedule of the Council of Legal Education (Kenya School of Law) Regulations, 2009 provided as follows in Regulation 5:
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;
(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 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 pre-condition for admission.
[33] With regard to the PBE, Regulation 10(1) and (2) of the Council of Legal Education (Kenya School of Law Regulations) 2009 provided thus: -
10. (1) A pre-bar examination shall be administered to students who hold a Bachelor of Laws Degree (LL.B) from a recognized University but do not qualify for direct admission under these Regulations.
(2) The pre-bar examination shall test the mastery of legal techniques, legal writing and substantive legal principles at the degree subject level and proficiency in English.
[34] Regarding the time lapse between his graduation in 2010 and his 2024 admission, the respondents averred, in their Replying Affidavit sworn on 3 rd June 2024, that the 2 nd petitioner sat for the PBE in September 2011 under the 2009 Regulations (commonly referred to as the old Pre-Bar). At paragraphs 13 and 14, the respondents deposed that in that attempt, the 2 nd petitioner sat for six papers but passed only one, namely, the Law of Tort.
[35] The respondents further explained that the 1 st petitioner later attempted the PBE in September 2012, where he undertook the remaining five units. Again, he passed only one paper, namely, Land Law. He was therefore expected to re-sit the remaining four papers to qualify for admission. In proof of their averments, the respondents annexed a copy of the 2 nd petitioner’s PBE results for September 2011 and September 2012 as Annexures “FM1 and FM2 to their Replying Affidavit.
[36] It was further the contention of the respondents that it was not until January 2024 that the 2 nd petitioner re-activated his PBE exams; but that he only applied to retake three papers, namely, Legal Methods, Systems and Constitutional Law, Law of Contract and Family Law and Succession. [37] The respondent further deposed that, again, the 2 nd petitioner did not promptly follow up on his 2012 results until twelve (12) years later in 2024 when he went back to the KSL and specifically applied to re-sit only three papers Legal Methods, Systems and Constitutional Law, Law of Contract and Family Law and Succession. On his part the 2 nd petitioner averred that it was absurd that the respondent should lay the blame on him yet it is the depository of all results.
[38] The Court takes judicial notice that in the same year of 2012, Parliament enacted the Legal Education Act with a commencement date of 28 th September, 2012, and the Kenya School of Law Act whose commencement date was 15 th January 2013. The Legal Education Act indicates in its preamble that it is:
“ An Act of Parliament to provide for the establishment of the Council of Legal Education; the establishment of the Legal Education Appeals Tribunal; the regulation and licensing of legal education providers and for connected purposes.”
[39] The effect of the enactment of the Legal Education Act under Section 47 , was to repeal the Council of Legal Education Act, 1995. This is manifest at Section 47 of the Legal Education Act. The question to pose then is which regime is applicable to the 2 nd petitioner’s application for admission. While the respondent was of the posturing that the applicable regime is that which was in force before the enactment of the Legal Education Act and the Kenya School of Law Act, the 2 nd Interested Party’s stance was that for one to register to sit for the PBE, they had to comply with the admission requirements set out under the Kenya School of Law Act.
[40] Before the said amendment the Second Schedule to the Act at section 1 and 2 thereof provided:
(1) A person shall be admitted to the School if:
(a)having passed the relevant examination of any recognized university in Kenya holds, or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university; 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 (LL.B) 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; or 2. has sat and passed the Pre-Bar examination set by the School.
[41] In this regard, Section 16 of the Kenya School of Law Act provides:
“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.”
[42] The Second Schedule on Admission Requirements provides: -
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
[43] The question whether the Kenya School of Law Act was intended to operate retrospectively in respect of those who, like the 2 nd petitioner, obtained their undergraduate degrees and applied for admission of the ATP prior to 2012 was the subject of discussion in Kevin Mwiti & others v Kenya School of Law & others [2015] eKLR. The position taken by Hon. Odunga, J. (as he then was) and which I entirely agree with, is that:
“…the Petitioners who were already in the LLB Class prior to the enactment of the Kenya School of Law Act are to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. For avoidance of doubt 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…”
[44] It is therefore not in dispute that in 2011, the 2 nd Petitioner was required to sit the PBE because he had not attained B (plain) in English in the Kenya Certificate Secondary Education (KCSE). It is therefore my finding that the applicable admission criteria in this instance is that which prevailed before the 2012 amendment.
B. On whether the petitioners’ constitutional rights under Articles 2(4), 3, 10, 25(c), 28, 35(2), 43(1)(f), 46, 47, 48, 50(1) & 232 of the Constitution were violated by the Respondent:
[45] There is no gainsaying that the 2 nd Petitioner’s provisional admission to the KSL was conditional on his having passed his PBE. The petitioners and the respondents took divergent positions on this aspect in that, while the 2 nd petitioner averred that he was fully compliant, the contention of the respondents was that he did not qualify; and that he was only given provisional admission pending verification of his PBE scores. In particular, the respondents contended that the 2 nd Petitioner had not passed one paper, namely Commercial Law.
[46] Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, is explicit:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
[47] Section 109 of the Evidence Act provides:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
[48] Hence, in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, the Supreme Court held:
“[47] It is a timeless rule of the common law tradition, Kenya’s juristic heritage, and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the Respondent bore responsibility, in whole or in part.
[49] That position was reiterated by the Supreme Court in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) thus:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[50] The 2 nd petitioner admittedly failed to avail transcripts to prove that he successfully undertook the PBE. He indicated that he enquired from the KSL about his 2012 results and was told verbally that he had passed Commercial Law as part of the exams he sat for in 2012; and that the results were then written for him on the back of a receipt which he annexed to his Supporting Affidavit. On that basis he decided not to re-sit that paper, notwithstanding that he had not been issued with a transcript of his results as had been done previously. Clearly therefore, in this regard, the petitioners failed to avail credible proof of having qualified.
[51] The petitioner posited that when he was admitted and commenced the ATP, a legitimate expectation was thereby created that he had qualified and was entitled to complete the ATP. He averred that he was awarded a letter of admission to the School, whereupon he paid fees, signed the Nominal Roll and participated in school activities; and therefore he is a bona fide student of KSL.
[52] The doctrine of
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