Introduction
1. The Petition dated 15th July 2024 is founded on the alleged lack of transparency in the manner of handling the April 2024 bar examinations by the 1st Respondent. The Petitioners allege that the 1st Respondent did not release credible and verifiable results on 9th July 2024 hence the 1st Respondent’s actions violated their constitutional rights and legitimate expectation.
2. The 1st Respondent in response filed a Notice of Preliminary Objection dated 29th July 2024 on the premise that:
i. The Court lacks jurisdiction to hear and determine this matter until the requirements of Section 31 (1) of the Legal Education Act, CAP 16B as read together with Section 8 (1) and (2) of the said Act are met.
ii. Section 31 (1), (2) and (4) of the Legal Education Act CAP 16B vest the Legal Education Appeals Tribunal with jurisdiction to determine any matter relating to Legal Education.
iii. The suit is premature and the Court ought to decline jurisdiction.
iv. This Preliminary Objection be heard and determined in limine.
1st Respondent’s Submissions
3. The 1st Respondent in support of its case filed submissions dated 9th October 2024 through its advocate, Victoria Wahu who highlighted the issues of determination as: whether the Court has jurisdiction in this matter, whether the Petitioners exhausted the alternative statutory avenues and whether the impugned decision by the 1st Respondent not to release to the Petitioners their marked ATP examination booklet, the marking scheme and to quash the remark and re-sit fee is illegal, irrational, unreasonable, or procedurally unfair.
4. the first issue, Counsel relying in Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd[1989]eKLR recapped as follows:
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. W1thout it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
5. Counsel submitted that this Court lacks jurisdiction to entertain this matter by virtue of Section 31(1) of the Legal Education Act, 2012 as read with Section 8(1). This Section states as follows:
“The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”
6. Counsel submitted that the Petitioners grievance is in relation to the Advocates Training Programme (ATP) examination which is administered by the 1st Respondent as provided under Section 8(1) of the Act. Counsel noted that this matter revolves around these examinations. Counsel as such, observed that the issues raised in this matter relate to matters directly addressed in the Legal Education Act to which the Legal Education Appeals Tribunal (LEAT) is mandated to inquire into, make a finding thereupon and notify the parties concerned.
7. On this basis, Counsel submitted that the Petitioners had failed to exhaust this remedy before approaching this Court. Considering this, Counsel emphasized that this Court’s jurisdiction is ousted by virtue of Section 9(2) and (3) of the Fair Administrative Action Act. Furthermore, Counsel submitted that the Petitioners had not established any exceptional basis why this provision should not apply in their case.
8. Reliance was placed in In the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011 (2011) eKLR where it was held that:
“Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
9. Like dependence was placed in Diana Kemunto Ogega v Kenya School of Law Council for Legal Education & another [2020] eKLR and Secretary County Public Service Board & Another Vs. Hulbhai Gedi Abdille (2017) eKLR.
10. On the second issue, Counsel submitted that the 1st Respondent’s actions were lawful as the marking, release and re-marking of the ATP examination is within the confines of the law and its mandate. Furthermore, Counsel submitted that the 1st Respondent has no obligation in law to release the marked examination booklets and the marking scheme to the Petitioners. In view of this, Counsel stressed that this Court ought not to interfere with the 1st Respondent’s decision as long as the same was within the set guidelines. Moreover that, the decision was not irrational, unreasonable or based on an illegality.
11. Reliance was placed in Republic vs National Water Conservation & Pipeline Corporation & 11 Others [2015] eKLR where it was held that:
“Once a Judicial Review Court fails to sniff any illegality, irrationality or procedural impropriety, it should down its tools forthwith. Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima fade performing the tasks entrusted to it by the legislature hence not contravening the will of Parliament, then a Court will not interfere with the decision. A decision which falls outside that area can therefore be described, interchangeably, as: a decision to which no reasonable decision-maker could have come; or a decision which was not reasonably open in the circumstances.”
12. Comparable reliance was placed in inter alia John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano[2016]eKLR, AAA Investments (Pty) Ltd vs Micro Finance Regulatoiy Council and another (CCT51/05) [2006] ZACC 9, and Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1.
Petitioners’ Submissions
13. The Petitioners’ through Mungai J.K. and Company filed submissions dated 14th October 2024 in opposition of the Preliminary Objection. The issues for discussion were identified as: whether this Court has jurisdiction to hear and determine the Petitioners’ application and Petition, whether the Petitioners’ extra-ordinary circumstances in this matter allow them to be exempted from the doctrine of exhaustion, and whether the impugned decision by the 1st Respondents not to allow the Petitioners their marked ATP April 2024 bar examination booklets for purposes of verification of results uploaded in their respective with those actually awarded in their booklets is illegal, irrational and unreasonable.
14. Counsel maintained that this Petition was rightly instigated before this Court as it has the jurisdiction to entertain matters concerning violation of rights under the Bill of Rights. Furthermore, Counsel submitted that at the moment the Petitioners neither have recourse nor forum for their matter to be heard and determined since LEAT members’ term limits expired on 6th September 2024 and there is no a duly constituted Tribunal at the moment. It was noted that the new Tribunal was to be constituted within 6 months. As such, it was stressed that if this Court declines jurisdiction, the Petitioners will be condemned unheard in breach of their right under Article 50 of the Constitution.
15. Accordingly, Counsel submitted that the circumstances of this case present an expectation to the doctrine of exhaustion. Reliance was placed in Robert Uri Dabaly Jimma v Kenya School of Law & another [2020] eKLR where it was held that:
“However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya
(NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.
As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.”
16. Like dependence was placed in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR and Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR.
17. Furthermore, Counsel submitted that the Petition raises issues beyond the jurisdiction of the Legal Education Act such as, access to the answer booklets by the Petitioners and the rationale behind the failure to include the Petitioners’ oral and project work results to their re-sit exams. Equally it was argued that as per Section 43 of the Act, none of the offenses listed pertain to exam irregularities and/or malpractices or the maladministration of exams by the 1st Respondent which is the gist of the Petitioners’ case.
18. Counsel stressed that while the Act provides for the function of the 1st Respondent under Section 8, the Act does not provide a mechanism that ensures the 1st Respondent carries out the said function. Owing to the prevailing circumstances, Counsel urged this Court to find that the 1st Respondent’s Preliminary Objection lacks merit.
19. On the third issue, Counsel submitted that the Respondents’ are bound by the dictates of the Constitution. In this context, Counsel observed that the 1st Respondent had declined to release the sought information by the Petitioners’ in violation of Article 35 of the Constitution yet the limitation did not constitute an exception under Section 6 of the Access to Information Act. Reliance was placed in Commission for Human Rights & Justice & Another v Chief Officer, Medical Services, County Government of Mombasa & 3 others [2022] eKLR where it was held that:
“The burden of establishing that the refusal of access to information was justified rested on the State or any other party refusing access… the reasons have to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.”
20. Equal dependence was placed in Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR.
21. Consequently, Counsel submitted that the 1st Respondent was under both a constitutional and legal obligation to allow the Petitioners access information in their possession. For this reason, the impugned decision is argued to have been illegal, irrational and unreasonable.
Issues for Determination
22. It is my considered opinion that the single issue that arises for determination is:
Whether the 1st Respondent’s Preliminary Objection is merited.
Preliminary Objections
23. The threshold of a Preliminary Objection was summarized in Parbat Siyani Construction Limited v Kenyatta International Convention Centre [2023] KEHC 1603 (KLR) where the Court citing the classic authorities stated as follows:
“54. This Court would wish to remind the parties that it is dealing with a preliminary objection. The validity of any preliminary objection is gauged against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.
55. The foregoing nature of preliminary objections was discussed in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 when the Court observed as follows: -
'So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.'
56. In Civil Suit No 85 of 1992, Oraro vs Mbaja [2005] 1 KLR 141, Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and stated as follows on the operation of preliminary objection: -
'I think the principle is abundantly clear. A 'preliminary objection', correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.'
57. In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -
'In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion…”
24. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
Doctrine of Exhaustion
25. The Supreme Court in Waity vs Independent Electoral & Boundaries Commission and Three Others [2019] KESC 54 (KLR) on this principle noted as follows:
“[63] Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 Others; [2015] eKLR; wherein the Appellate Court observed:
“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
26. Equally, the Supreme Court in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] KESC 83 (KLR) stated as follows:
“…We hold that if indeed the appellant had any dispute with the RBA, he ought to have followed the route prescribed by the RBA, before proceeding to the High Court. We hold like the court below, and for the reasons we have given, that the appellant’s petition lacked merit and was for dismissal.”
[118] In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
[119] Such a deferred jurisdiction and the postponement of judicial intervention and reliefs until the mandated statutory or constitutional bodies take action rests, not alone on the disinclination of the judiciary to interfere with the exercise of the statutory or any administrative powers, but on the fact of a legal presumption that no harm can result if the decision maker acts upon a claim or grievance. Such formulation underlies the analogous cases, frequently cited for the exhaustion doctrine, in which the court refuses to enjoin an administrative official from performing his statutory duties on the ground that until he has acted the complainant can show no more than an apprehension that he will perform his duty wrongly, a fear that courts will not allay. Such cases may be expressed in the formula that judicial intervention is premature in the absence of administrative action.”
27. That said, Courts have also discussed instances where an exception is justified in application of this doctrine. The Court in Krystalline Salt Limited v Kenya Revenue Authority [2019] KEHC 6939 (KLR) observed as follows:
“62. Additionally, what constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile. These requirements have not been shown to exist in this case.
63. The Fair Administrative Action Act does not define ‘exceptional circumstances.’ However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.
64. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.
65. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule.”
28. The Court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) observed as follows:
“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
Legal Analysis
29. The Preliminary Objection in this matter revolves around a challenge to this Court’s jurisdiction on the basis of the doctrine of exhaustion. This as is apparent is a pure point of law as affects the Court’s ability to entertain a matter before it. The Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) on this issue guided as follows:
“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
These words were echoed by this Court in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR in the following words:-
“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S.18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, it is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same.
…In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.”
30. The 1st Respondent posits that the dispute herein ought to have been resolved by LEAT as stipulated in the Legal Education Act. This Tribunal is established under Section 29 of the Act.
31. Section 31 of the Act defines the jurisdiction of LEAT as follows:
(1) The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.
(2) For the purposes of hearing an appeal, the Tribunal shall have all the powers of the High Court to summon witnesses, to take evidence on oath or affirmation and to call for the production of books and other documents.
(3) Where the Tribunal considers it desirable for the purposes of avoiding expenses, delay or for any other special reasons, it may receive evidence by affidavit and administer interrogatories within the time specified by the Tribunal.
(4) When determining any matter before it, the Tribunal may take into consideration any evidence, which it considers relevant to the subject of an appeal before it, notwithstanding that such evidence, would not otherwise be admissible under the law relating to evidence.
32. In making a determination, the Tribunal is empowered under Section 35 to issue the following remedies to an aggrieved party:
Upon hearing an appeal the Tribunal may—
(a) confirm, set aside or vary the order or decision in question;
(b) exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or
(c) make any other order, including an order, for costs, as it may consider just.
33. A perusal of the Petition and its Supporting affidavit reveals that the Petitioners take issue with the manner in which the 1st Respondent’s handled the April 2024 bar examination results. In addition, the Petitioners argued that their case warrants an exception owing to the various issues raised in the Petition and the non-existence of a properly constituted LEAT at the time of filing this suit. As a result, the Petitioners instituted this suit citing violation of their constitutional rights and seeking the following reliefs:
i. A declaration that the Petitioners' fundamental rights and freedoms as enshrined under Articles 27, 35 of the Constitution, have been, contravened and infringed upon by the Respondents by their refusal to grant the Petitioners access to their April 2024 Advocates Training Programme Bar Examination booklets.
ii. A declaration that the Respondents failure to compute project and oral marks on the Petitioners re-sit exams contravenes the national values and principles including: nondiscrimination, equity, equality, inclusiveness, and social justice and the right to equality and freedom from discrimination.
iii. Judicial review orders of mandamus compelling the Respondents to produce the April 2024 Advocates Training Programme Bar Examination booklets before this Court and the Petitioners to enable verification of actual results awarded in their booklets and those tallied in their respective student portals.
iv. Judicial review order of certiorari quashing the imposition of any extra fee above the normal set fee on the resit exams, and the extra fees on remark applications by students.
v. Any other appropriate relief the court may deem just to grant.
vi. The 1st Respondent herein pay the costs of this Petition.
34. In my humble view, although the Petition claims violation of constitutional rights, the bedrock of the dispute stems from the 1st Respondent’s decision. The Legal Education Act under Section 32 provides as follows:
Appeals from decisions of the Council
Any person aggrieved by any decision of the Council to—
(a) refuse to grant a licence;
(b) impose conditions on a licence; or
(c)
[...truncated]
1. The Petition dated 15th July 2024 is founded on the alleged lack of transparency in the manner of handling the April 2024 bar examinations by the 1st Respondent. The Petitioners allege that the 1st Respondent did not release credible and verifiable results on 9th July 2024 hence the 1st Respondent’s actions violated their constitutional rights and legitimate expectation.
2. The 1st Respondent in response filed a Notice of Preliminary Objection dated 29th July 2024 on the premise that:
i. The Court lacks jurisdiction to hear and determine this matter until the requirements of Section 31 (1) of the Legal Education Act, CAP 16B as read together with Section 8 (1) and (2) of the said Act are met.
ii. Section 31 (1), (2) and (4) of the Legal Education Act CAP 16B vest the Legal Education Appeals Tribunal with jurisdiction to determine any matter relating to Legal Education.
iii. The suit is premature and the Court ought to decline jurisdiction.
iv. This Preliminary Objection be heard and determined in limine.
1st Respondent’s Submissions
3. The 1st Respondent in support of its case filed submissions dated 9th October 2024 through its advocate, Victoria Wahu who highlighted the issues of determination as: whether the Court has jurisdiction in this matter, whether the Petitioners exhausted the alternative statutory avenues and whether the impugned decision by the 1st Respondent not to release to the Petitioners their marked ATP examination booklet, the marking scheme and to quash the remark and re-sit fee is illegal, irrational, unreasonable, or procedurally unfair.
4. the first issue, Counsel relying in Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd[1989]eKLR recapped as follows:
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. W1thout it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
5. Counsel submitted that this Court lacks jurisdiction to entertain this matter by virtue of Section 31(1) of the Legal Education Act, 2012 as read with Section 8(1). This Section states as follows:
“The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.”
6. Counsel submitted that the Petitioners grievance is in relation to the Advocates Training Programme (ATP) examination which is administered by the 1st Respondent as provided under Section 8(1) of the Act. Counsel noted that this matter revolves around these examinations. Counsel as such, observed that the issues raised in this matter relate to matters directly addressed in the Legal Education Act to which the Legal Education Appeals Tribunal (LEAT) is mandated to inquire into, make a finding thereupon and notify the parties concerned.
7. On this basis, Counsel submitted that the Petitioners had failed to exhaust this remedy before approaching this Court. Considering this, Counsel emphasized that this Court’s jurisdiction is ousted by virtue of Section 9(2) and (3) of the Fair Administrative Action Act. Furthermore, Counsel submitted that the Petitioners had not established any exceptional basis why this provision should not apply in their case.
8. Reliance was placed in In the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011 (2011) eKLR where it was held that:
“Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
9. Like dependence was placed in Diana Kemunto Ogega v Kenya School of Law Council for Legal Education & another [2020] eKLR and Secretary County Public Service Board & Another Vs. Hulbhai Gedi Abdille (2017) eKLR.
10. On the second issue, Counsel submitted that the 1st Respondent’s actions were lawful as the marking, release and re-marking of the ATP examination is within the confines of the law and its mandate. Furthermore, Counsel submitted that the 1st Respondent has no obligation in law to release the marked examination booklets and the marking scheme to the Petitioners. In view of this, Counsel stressed that this Court ought not to interfere with the 1st Respondent’s decision as long as the same was within the set guidelines. Moreover that, the decision was not irrational, unreasonable or based on an illegality.
11. Reliance was placed in Republic vs National Water Conservation & Pipeline Corporation & 11 Others [2015] eKLR where it was held that:
“Once a Judicial Review Court fails to sniff any illegality, irrationality or procedural impropriety, it should down its tools forthwith. Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima fade performing the tasks entrusted to it by the legislature hence not contravening the will of Parliament, then a Court will not interfere with the decision. A decision which falls outside that area can therefore be described, interchangeably, as: a decision to which no reasonable decision-maker could have come; or a decision which was not reasonably open in the circumstances.”
12. Comparable reliance was placed in inter alia John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano[2016]eKLR, AAA Investments (Pty) Ltd vs Micro Finance Regulatoiy Council and another (CCT51/05) [2006] ZACC 9, and Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC 1.
Petitioners’ Submissions
13. The Petitioners’ through Mungai J.K. and Company filed submissions dated 14th October 2024 in opposition of the Preliminary Objection. The issues for discussion were identified as: whether this Court has jurisdiction to hear and determine the Petitioners’ application and Petition, whether the Petitioners’ extra-ordinary circumstances in this matter allow them to be exempted from the doctrine of exhaustion, and whether the impugned decision by the 1st Respondents not to allow the Petitioners their marked ATP April 2024 bar examination booklets for purposes of verification of results uploaded in their respective with those actually awarded in their booklets is illegal, irrational and unreasonable.
14. Counsel maintained that this Petition was rightly instigated before this Court as it has the jurisdiction to entertain matters concerning violation of rights under the Bill of Rights. Furthermore, Counsel submitted that at the moment the Petitioners neither have recourse nor forum for their matter to be heard and determined since LEAT members’ term limits expired on 6th September 2024 and there is no a duly constituted Tribunal at the moment. It was noted that the new Tribunal was to be constituted within 6 months. As such, it was stressed that if this Court declines jurisdiction, the Petitioners will be condemned unheard in breach of their right under Article 50 of the Constitution.
15. Accordingly, Counsel submitted that the circumstances of this case present an expectation to the doctrine of exhaustion. Reliance was placed in Robert Uri Dabaly Jimma v Kenya School of Law & another [2020] eKLR where it was held that:
“However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya
(NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.
As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.”
16. Like dependence was placed in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR and Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR.
17. Furthermore, Counsel submitted that the Petition raises issues beyond the jurisdiction of the Legal Education Act such as, access to the answer booklets by the Petitioners and the rationale behind the failure to include the Petitioners’ oral and project work results to their re-sit exams. Equally it was argued that as per Section 43 of the Act, none of the offenses listed pertain to exam irregularities and/or malpractices or the maladministration of exams by the 1st Respondent which is the gist of the Petitioners’ case.
18. Counsel stressed that while the Act provides for the function of the 1st Respondent under Section 8, the Act does not provide a mechanism that ensures the 1st Respondent carries out the said function. Owing to the prevailing circumstances, Counsel urged this Court to find that the 1st Respondent’s Preliminary Objection lacks merit.
19. On the third issue, Counsel submitted that the Respondents’ are bound by the dictates of the Constitution. In this context, Counsel observed that the 1st Respondent had declined to release the sought information by the Petitioners’ in violation of Article 35 of the Constitution yet the limitation did not constitute an exception under Section 6 of the Access to Information Act. Reliance was placed in Commission for Human Rights & Justice & Another v Chief Officer, Medical Services, County Government of Mombasa & 3 others [2022] eKLR where it was held that:
“The burden of establishing that the refusal of access to information was justified rested on the State or any other party refusing access… the reasons have to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.”
20. Equal dependence was placed in Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016] eKLR.
21. Consequently, Counsel submitted that the 1st Respondent was under both a constitutional and legal obligation to allow the Petitioners access information in their possession. For this reason, the impugned decision is argued to have been illegal, irrational and unreasonable.
Issues for Determination
22. It is my considered opinion that the single issue that arises for determination is:
Whether the 1st Respondent’s Preliminary Objection is merited.
Preliminary Objections
23. The threshold of a Preliminary Objection was summarized in Parbat Siyani Construction Limited v Kenyatta International Convention Centre [2023] KEHC 1603 (KLR) where the Court citing the classic authorities stated as follows:
“54. This Court would wish to remind the parties that it is dealing with a preliminary objection. The validity of any preliminary objection is gauged against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.
55. The foregoing nature of preliminary objections was discussed in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) EA 696 page 700 when the Court observed as follows: -
'So far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.'
56. In Civil Suit No 85 of 1992, Oraro vs Mbaja [2005] 1 KLR 141, Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and stated as follows on the operation of preliminary objection: -
'I think the principle is abundantly clear. A 'preliminary objection', correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.'
57. In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -
'In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion…”
24. Likewise, the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR) observed as follows:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
Doctrine of Exhaustion
25. The Supreme Court in Waity vs Independent Electoral & Boundaries Commission and Three Others [2019] KESC 54 (KLR) on this principle noted as follows:
“[63] Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 Others; [2015] eKLR; wherein the Appellate Court observed:
“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
26. Equally, the Supreme Court in Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] KESC 83 (KLR) stated as follows:
“…We hold that if indeed the appellant had any dispute with the RBA, he ought to have followed the route prescribed by the RBA, before proceeding to the High Court. We hold like the court below, and for the reasons we have given, that the appellant’s petition lacked merit and was for dismissal.”
[118] In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
[119] Such a deferred jurisdiction and the postponement of judicial intervention and reliefs until the mandated statutory or constitutional bodies take action rests, not alone on the disinclination of the judiciary to interfere with the exercise of the statutory or any administrative powers, but on the fact of a legal presumption that no harm can result if the decision maker acts upon a claim or grievance. Such formulation underlies the analogous cases, frequently cited for the exhaustion doctrine, in which the court refuses to enjoin an administrative official from performing his statutory duties on the ground that until he has acted the complainant can show no more than an apprehension that he will perform his duty wrongly, a fear that courts will not allay. Such cases may be expressed in the formula that judicial intervention is premature in the absence of administrative action.”
27. That said, Courts have also discussed instances where an exception is justified in application of this doctrine. The Court in Krystalline Salt Limited v Kenya Revenue Authority [2019] KEHC 6939 (KLR) observed as follows:
“62. Additionally, what constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile. These requirements have not been shown to exist in this case.
63. The Fair Administrative Action Act does not define ‘exceptional circumstances.’ However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.
64. By definition, exceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.
65. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule.”
28. The Court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) observed as follows:
“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
Legal Analysis
29. The Preliminary Objection in this matter revolves around a challenge to this Court’s jurisdiction on the basis of the doctrine of exhaustion. This as is apparent is a pure point of law as affects the Court’s ability to entertain a matter before it. The Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) on this issue guided as follows:
“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
These words were echoed by this Court in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR in the following words:-
“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S.18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign, it is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same.
…In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.”
30. The 1st Respondent posits that the dispute herein ought to have been resolved by LEAT as stipulated in the Legal Education Act. This Tribunal is established under Section 29 of the Act.
31. Section 31 of the Act defines the jurisdiction of LEAT as follows:
(1) The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Council or by any committee or officer of the Council, on any matter relating to this Act, inquire into the matter and make a finding thereupon, and notify the parties concerned.
(2) For the purposes of hearing an appeal, the Tribunal shall have all the powers of the High Court to summon witnesses, to take evidence on oath or affirmation and to call for the production of books and other documents.
(3) Where the Tribunal considers it desirable for the purposes of avoiding expenses, delay or for any other special reasons, it may receive evidence by affidavit and administer interrogatories within the time specified by the Tribunal.
(4) When determining any matter before it, the Tribunal may take into consideration any evidence, which it considers relevant to the subject of an appeal before it, notwithstanding that such evidence, would not otherwise be admissible under the law relating to evidence.
32. In making a determination, the Tribunal is empowered under Section 35 to issue the following remedies to an aggrieved party:
Upon hearing an appeal the Tribunal may—
(a) confirm, set aside or vary the order or decision in question;
(b) exercise any of the powers which would have been exercised by the Council, in the proceedings in connection with which the appeal is brought; or
(c) make any other order, including an order, for costs, as it may consider just.
33. A perusal of the Petition and its Supporting affidavit reveals that the Petitioners take issue with the manner in which the 1st Respondent’s handled the April 2024 bar examination results. In addition, the Petitioners argued that their case warrants an exception owing to the various issues raised in the Petition and the non-existence of a properly constituted LEAT at the time of filing this suit. As a result, the Petitioners instituted this suit citing violation of their constitutional rights and seeking the following reliefs:
i. A declaration that the Petitioners' fundamental rights and freedoms as enshrined under Articles 27, 35 of the Constitution, have been, contravened and infringed upon by the Respondents by their refusal to grant the Petitioners access to their April 2024 Advocates Training Programme Bar Examination booklets.
ii. A declaration that the Respondents failure to compute project and oral marks on the Petitioners re-sit exams contravenes the national values and principles including: nondiscrimination, equity, equality, inclusiveness, and social justice and the right to equality and freedom from discrimination.
iii. Judicial review orders of mandamus compelling the Respondents to produce the April 2024 Advocates Training Programme Bar Examination booklets before this Court and the Petitioners to enable verification of actual results awarded in their booklets and those tallied in their respective student portals.
iv. Judicial review order of certiorari quashing the imposition of any extra fee above the normal set fee on the resit exams, and the extra fees on remark applications by students.
v. Any other appropriate relief the court may deem just to grant.
vi. The 1st Respondent herein pay the costs of this Petition.
34. In my humble view, although the Petition claims violation of constitutional rights, the bedrock of the dispute stems from the 1st Respondent’s decision. The Legal Education Act under Section 32 provides as follows:
Appeals from decisions of the Council
Any person aggrieved by any decision of the Council to—
(a) refuse to grant a licence;
(b) impose conditions on a licence; or
(c)
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