JAMES ORENGO ODHIAMBO AND DANIEL KEBAYA MAGETO AND 1 Others VS THE KENYA SCHOOL OF LAW AND THE COUNCIL OF LEGAL EDUCATION AND 5 Others

INTRODUCTION
1. The Petitioners are enthusiastic students at Kisii University pursuing diploma in law under the Career Program Progression Program provided for under section 8(3) (c) Council for Legal Education (CLE) Act. They approached this court in their own capacity and on behalf of all students undertaking the program with the 3rd 4th and 5th Respondents. The Petitioners contended that upon them completing  the program they aspire to transit to study  Bachelor of Laws (LLB) Degree and finally progress to Advocates Training Program (ATP) offered by the 1st Respondent by the Kenya School of Law a creature of the Kenya School of Law Act (KSL  Act )  in order for them to qualify to be  advocates of the High Court of Kenya. 

2. The Petitioners case is that they have since learnt that the Career Progression Program they are undertaking with the 3rd 4th and 5th will not enable them become advocates of the High Court of Kenya in the long run . This they argue is because the 1st Respondent being the only institution mandated to offer the Advocates Training Program (ATP) in their regulations insists  that they must have attained a minimum grade of C+ in KCSE and minimum grade of B in either English or Kiswahili as provided for under section 16 of the Kenya school Act as read together with paragraph 1(a) and (b) of the second schedule of the same Act for them to pursue the Advocates Training program.

3. They contend that the said provisions of the KSL Act are either unconstitutional and if not the 1st Respondent is misapplying them in contravention of their constitutional rights and freedoms under Articles 27, 35(2), 43(1(f) 46, 55(a) and (c) of the constitution of Kenya. They specifically decry that the misapplication of  section 16 as read together with paragraph 1(a) and (b) of the second schedule of the Kenya School of Law Act to exclude students who have attained Bachelors of laws degree through career progression from being admitted to Kenya school of law to undertake the Advocates Training program denies them the following rights;

a) The right to education under Article 43(1) (f) which provides that everyone including them has a right to education.
b) The right to access relevant educational training and access to employment as advocates under article 55(a) and (c) of the constitution
c) The right to equality and non-discrimination under Article 27 wherein they contend that upon them attaining university degrees in accredited universities they are denied an equal opportunities with other students on account of them having attained the degree through career progression
d) The right to legitimate expectation under article 47(1) to the extent that they contend that the  Respondents herein continue to let students undertake the career progression program in the universities without informing them administratively and promptly that they will not at the end of the day be able allowed progress to undertake the ATP program. They went on to argue that as diploma students with the 3rd Respondent, they have a legitimate expectation that after attaining an LLB degree which would be their next step in their progression, they will be able to become advocates, magistrates, judges, legal researchers but their legitimate expectation remain a pipe dream as result of the 1st respondent misapplying its own Act.

4. The Petitioners also raised an  issue with an advertisement that the 1st respondent had placed on its social media platforms inviting students to apply for diploma in law (para-legal studies). They argued that without including a disclaimer that to  the intended applicants that their training would not proceed beyond attaining an LLB degree, it was argued that the 1st Respondent violated the right to information under Article 35(2) of all those prospective students who will rely on the said advertisement to undertake the course but end up not becoming advocates which is the ultimate goal of each of those students.

5.  Based on the above background the Petitioner sought for the following declarations and orders
a) A declaration be issued that law as an Academic Discipline and/or Course is not exclusive of Academic Progression and/or Career Progression.
b) A declaration be issued that the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is unconstitutional, null and void to the extent that it purports to set-out, discriminate, curve out, deny and deprive a huge section of the Students pursuing Law and/or who pursued Law under Upgrading Programme and/or Academic Progression Programme opportunity from Joining Advocates Training Programme.
c) A declaration be issued that misapplication of the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act by the 1st respondent is a threat to the rights, privileges and benefits of citizenship rights to Education, consumer rights as consumers of Legal Education, rights to Access relevant education and Training ,rights to access employment and rights to legitimate expectation to students of law under Upgrading Programme and/or Academic Progression Programme and thus renders the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act invalid.
d) A declaration be issued that the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is inconsistent and in conflict with constitution of Kenya 2010 more particularly the preamble articles 1,2(4),10(2)(b),19,20(2),24,27(2),43(1),46(a),(b) and(c),47(1) and 55(a) and (c), section 8 (3) (a), (b), (c)(d)and (4) of the Legal Education Act,2012 and thus null and void.
e) A declaration be issued that the 1st Respondent has no statutory backing to scrutinize how one gained Admission into a recognized University in Kenya.
f) A declaration be issued that students who have pursued Law under Academic Progression Programme and/or Upgrading Programme for 6 good years and have been conferred with Bachelor of Laws (LL.B) degree in Universities recognized in Kenya should not be subjected to KCSE qualifications into the Advocates Training Programme (ATP).
g) A declaration be issued that Students who have pursued Law under Academic Progression and/or Upgrading Programme are eligible to join Advocates Training Programme (ATP) upon completion of Bachelor of Laws (LL.B) degree.
h) A compelling order directing the 1st and 2nd Respondents directing them to within such time this court shall direct formulate Exception rule to the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b)of the second schedule of the said Act which allows Academic Progression into the Advocates Training Programme (ATP).
i) A compelling order be issued directing the 2nd Respondent directing them to within such time this court shall direct to furnish the 3rd, 4th and 5th Respondent with License of offering Advocates Training Programme (ATP).
j) A declaration be issued that the 2nd respondent is the only body with the legal Mandate to set requirements for the admission of persons seeking to enroll in legal Education Programmes and not the 1st respondent.
k) A declaration be issued that the 1st Respondent is not contra-distinguish from other Legal Education Providers and thus is under the supervision of the 2nd respondent.
l) A declaration be issued that Kenya School of Law   is not a requirement admission as an advocate pursuant to section 13(1) (a),(b) (i),(ii) and (c) of the Advocates Act
m) A declaration be and is hereby made that that advertisement of Application for Diploma in Law (Para-Legal Studies) for July Intake 2023 on the by the 1st respondent on its Social Media Platforms without including a disclaimer to inform the intended Applicants that their Journey to legal profession end at Bachelor of Laws (LL.B) degree Level and the same 1st respondent will not Admit them to Advocates Training Programme (ATP) is contrary to article 35(2) of Constitution of Kenya 2010 on the basis that most of the persons enroll for Diploma in Law(Para-Legal Studies) Course at Kenya School of Law believing that this will lead them to become Advocates.
n) This Honourable Court be pleased to issue an order that each party should bear their own costs on the grounds that this Petition is in the public interest.
o) This Honourable Court be pleased to issue such further or other Orders as it may deem just and expedient for the ends of justice.

6. In response, the 1st Respondent through a Replying Affidavit sworn on 25th August 2023 by its director, Dr. Fredrick Muhia submitted that the Court of Appeal in the case of Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 others reiterated 1st Respondent’s role in scrutinizing academic documents of potential students to ensure that they meet all the mandatory provisions of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act. Dr. Muhia underscored that the constitutional right to education must contextualized with the mandatory academic requirements set out by the law wherein one must prove to have attained all academic qualifications before he can claim to have legitimate expectation to enjoy such right.


7. The 2nd Respondent equally filed a Replying Affidavit that was sworn by one Mary Mutugi. Ms Mutugi restated the role of the 2nd Respondent in legal education under the CLE act and argued that that it has no powers to direct the 1st Respondent in so far as admission of students to undertake Advocates training program is concerned.

8. Ms. Mutugi averred also that in as much CLE Act provides that programs should be put in place by accredited universities to provide for career progression program in legal education, the progression does not extend to the Advocates Training Program being offered by the 1st respondent unless the mandatory provisions of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act are met.

9. Regarding the Para-legal Studies being offered by the 1st Respondent Ms. Mutugi averred that the said program is only designed to train paralegals and not individuals desiring to become mainstream legal professionals/advocates.

10. Ms Mutugi referred this court to the court of Appeal decision Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 others where it was held that all the academic qualifications provided for under paragraph 1(a) and (b) of the 2nd  schedule must be met for one to be allowed to study Advocates Training Program.

11.  The 3rd Respondents filed a Replying Affidavit sworn by Mr. Seth Ong’uti who is its legal officer. Mr. Ong’uti averred that the 3rd Respondent is a public university, chartered under section 13(1) of the Universities Act, 2012, Laws of Kenya and is licensed by the Council of Legal Education, the 2nd Respondent herein to offer Bachelor of Laws degree ( LLB)and Diploma in Law (Para-legal Studies) Programmes. He also deponed  that the 3rd Respondent's mandate is to train student is in Diploma in Law students and Bachelor of Laws guided by curriculums approved by the 2nd Respondent. He contended that the 3rd Respondent cannot be faulted by the Petitioners for actions of the 1st and 2nd Respondents of not admitting students who have pursued law under Academic Progression Programme into Advocates Training Programme (ATP) since universities are guided by the provisions of Legal Education Act, 2012 and Universities Act, 2012 which are statutes they have been instructed to apply when admitting students to pursue law at the University. He deponed further the 3rd Respondent lectures and examines students under Career Progression Programme and upon being satisfied that they qualify for Bachelor of Laws (LL.B) degree it confers the said degree to the said students pursuant to Universities Act, 2012 and Legal Education Act, 2012. He reiterated that the 3rd Respondent position is that the issues relating admission to advocates Training Programme (ATP) are  guided by the Kenya School of Law Act and the obligation to prescribe the requirements for admission of persons seeking to enroll to the Advocates Training Programme (Post Graduate Diploma in Law) is vested with the 1st Respondent and the 2nd Respondent and not the 3rd Respondent.
12.  He concluded by stating that the Petition herein is premature as the Petitioners herein are currently pursuing Diploma in Law and have not qualified for admission to Kenya School of Law and same should be dismissed in entirety.
13. The Attorney general filed a preliminary objection on grounds that the Petitioners do not have locus standi to file this petition by dint of section 16 of the KSL Act as read together with the Paragraphs 1(a) and (b) of the second schedule.

14. The 4th Respondent filed a Replying Affidavit sworn by Mr. Ronald Mathai who stated the Petition did not disclose any actions or omissions attributed to the 4th Respondent that led to the violation of their rights. He insisted that the 4th Respondent does not have oversight role  over the 1st Respondent. . Just like the 3rd Respondent, he reiterated that Petition is premature as the petitioners herein are currently pursuing Diploma in Law and have not qualified for admission to Kenya School of Law and same should be dismissed in entirety. He equally stated that Petitioners not being their employees did not have the mandate to seek an order from this court to compel the 2nd Respondent to confer upon it powers to offer the Advocate Training Program.

15. The 5th Respondent through the Affidavit sworn by Sister Immaculate Muthoni averred that 5th respondent has no power to direct the 1st Respondent on its mandate under the KSL Act. Also that the Petitioners did not have any authority from them to seek an order of this court to compel the 2nd Respondent to grant them a license to offer the Advocates Training Program.

16. This court directed   that he Petition be canvassed by way of written submissions. This court notes that the all the parties with the exception of the 1st Respondent filed their submissions.
DETERMINATION.
17. Having carefully  considered the Petition, the responses filed by the respondents and the able  written submissions filed herein , I find the following as the issues  arising for determination;
a) Whether the petitioners have the locus standi to file the petition  herein by dint of  Section 16 and paragraph 1a and 1b of the 2nd schedule of the Kenya School of Law Act ,
b) Whether the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is unconstitutional.

c) If the finding in( b ) above  is to  the negative; whether 1st Respondent has misapplied the said section of the law to deny students pursuing legal education from accessing the Advocates Training Programme leading to breach of the constitutional rights under Article 27, 43, 46, 47 and 55.

d) Whether the misapplication of section 16 as read together with paragraph 1(a) and 1(b) of the second schedule violates right legitimate expectation of the petitioners

e) Whether the Applicant is entitled to the orders sought in the Petition.

Whether the petitioners have the locus standi to file the petition herein by dint of  Section 16 and paragraph 1a and 1b of the 2nd schedule of the Kenya School of Law Act ,
18. On whether the petitioners had capacity to file this petition, the 2nd, 6th and 7th Respondents filed a notice of preliminary objection on the ground that the petitioner lacks locus  standi to file this Petition by dint of Section 16 paragraph 1(a) and (b) of the 2nd schedule of the KSL Act . The 2nd, 6th and 7th Respondents submitted that the Petitioners have no locus standi to question section 16 of the KSL Act as they did not attain the minimum qualification for admission to ATP. Counsel cited the case of Republic vs Kenya school  of Law & Council for legal Education ex-parte Daniel Mwaura Marai (2017) eKLR  where it was held that
‘’  In that event the applicant having not 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 would be locked out from admission to the ATP ‘’ 
19. The Petitioners on their part argued that they had capacity to institute this petition as they have a stake in the legal education. They cited the case of  Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] KEHC 7697 (KLR) where it was held that:
  I am of the view that Article 22(1) and (2) of the Constitution has expanded the horizons of locus standi in matters of enforcement of fundamental rights and freedoms. The same provides that:-
“22.   (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by–
a) a person acting on behalf of another person who cannot act in their own name;
b) a person acting as a member of, or in the interest of, group or class of persons;
c) a person acting in the public interest; or
d) an association acting in the interest of one or more of its members.” 
20. Section 16 of the KSL Act provides that for one to qualify for admission to a ATP  at the School, he must have met the admission requirements set out in the Second Schedule for that course Paragraph 1 (a) and (b) of the second schedule to the Kenya School of Law Act, 2012 provides as follows;
“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 any other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or
(b) having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—
(i) attained a minimum entry requirement for admission to a university in Kenya; and
(ii) obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and
(iii) has sat and passed the pre-Bar examination set by the school.”

21.  The Petitioners alleged a violation of their rights as law students and they cited the Articles alleged to have been violated .The preliminary objection by the 2nd 6th and 7th respondents is more of a reply to the petition.  I find that The Petitioners had a right to move this court under Article 22 of the Constitution of Kenya. Whether the petition is merited is not for determination under this head. The preliminary objection is overruled.
Whether the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is unconstitutional.
22. The Petitioners in prayer b and d seek for declaration that Section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is inconsistent with constitution of Kenya 2010 and thus null and void and in violation to their constitutional rights listed therein.  On the other hand the Petitioners at prayer c seek  a declaration  that  the 1st respondent’s misapplication of the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act is a threat to the rights, privileges and benefits of citizenship rights to education, consumer rights as consumers of legal education, rights to access relevant education and Training ,rights to access employment and rights to Legitimate Expectation of  Students of Law under Upgrading Programme and/or Academic Progression Programme and thus renders the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act invalid. It would appear that the Petitioners espoused two conflicting positions; one being that the section is inconsistent with the constitution the other being that 1st Respondent is misinterpreting and/or misapplying the section by the 1st Respondent to detriment of students pursuing legal education through career progression.
23. When the constitutionality of a statute or provision of a statute is called to question, the court is under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the Article(s) of the constitution and determine whether it meets the constitutional test. The court must also check both the purpose and effect of the Section or the Act, and see whether the same is inconsistent with the Constitution.
24. This position was stated in the case of R v Big M Drug Mart Ltd 1985 CR 295, thus;
“Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.  All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of legislation, object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.”
25. This principle was applied in the case of Olum and another v Attorney General  [2002] 2 E A , where the  Constitutional Court of Uganda stated;
“To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the constitution, the impugned statute or section thereof shall be declared unconstitutional…”  (see Muramga Bar Operators Association & another Vs. Minister of state  for Provincial Administration  and Internal Security & another; (petition No. 3 of 2011) 2011 eKLR.
26. In the case of Nairobi Metropolitan PSV Saccos Union Limited & 25 others vs County of Nairobi Government & 3 others [2013] eKLR. It was observed that the burden is always on the person challenging the constitutionality of provision in a legislation or the legislation to prove the unconstitutionality alleged.

27. Section 16 of the KSL Act provides that for one to qualify  for admission to a course of study at the School, he must have met the admission requirements set out in the Second Schedule for that course Paragraph 1 (a) and (b) of the second schedule to the Kenya School of Law Act, 2012.


28. The Petitioners extensively took their time to demonstrate how the 1st Respondent has misapplied and/or misinterpreted the section in a manner that they deem to be discriminating and/or infringing the constitutional rights of students pursuing legal education through career progression. One would therefore wonder why the Petitioners would on one hand seek to have a section they want declared unconstitutional be also at the same time be declared as being misinterpreted by a party. However a review of the entire Petition reveals that the Petitioners have not demonstrated how section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule thereof is in inconsistent with the constitution

29. From the forgoing since it was the onus of the Petitioners to prove the unconstitutionality of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act; and since they did not to do so and pursued the path  of proving that the 1st Respondent’s Misapplication of the said section then I find no reason to declare the section unconstitutional.
Whether 1st Respondent has misapplied the said section of the law to deny students pursuing legal education from accessing the Advocates Training Programme leading to breach of the constitutional rights under Article 27, 43, 46, 47 and 55.
30. The Petitioners argue that 1st Respondent is misapplying and misinterpreting the provisions of section 16 of the KSL act as read together with paragraphs 1(a) and 1(b) of the second schedule  in contravention of the constitutional rights and freedoms under Articles 27, 35(2), 43(1(f) 46, 55(a) and (c) of the constitution of Kenya. They contend that as a result of such misapplication the said provision students who have attained Bachelors of law  Degree through Career Progression Program are likely or have been excluded from being admitted to Kenya school of law to undertake the Advocates Training program. 
31. They urged this court to adopt an interpretation paragraphs 1(a) and 1(b) of the second schedule  that was espoused by Mativo J(as he then was) in Republic v Kenya School of Law & another exparte Kithinji Maseka Somo & another  [2019]eKLR  that the conjunction “or” immediately after a semi-colon means that the paragraph 1(a) and (b) are disjunctive rather than conjunctive to each other such that once a person has attained an LLB degree from an accredited  local university to offer legal education by the 2nd Respondent through say career progression program, it is not mandatory for him to meet condition under 1(b) which require one to attain an aggregate mean grade of C + and B in either English or Kiswahili. Having that interpretation in mind, the petitioners  contend that all students pursuing legal career with 3rd 4th and 5th which have been all been accredited to offer law diplomas and who through the section 8(3) (c) of the legal education have been given a leeway to offer career progression program in legal education should be allowed to undertake the ATP with the 1st Respondent without any hindrance upon obtaining their LLB degrees.
32.  Also the Petitioner argue that the 1st Respondent having misinterpreted the provision and adopted regulations that insists an applicant seeking to undertake the ATP must meet all conditions in paragraph (1)(a) and (1)b without considering that they are alternatives to each other threatens to violate their constitutional rights and freedoms under Articles 27, 35(2), 43(1(f) 46, 55(a) and (c) of the constitution of Kenya. 
33.  Hon Justice  Mativo(as he then was) in Republic v Kenya School of Law & another exparte Kithinji Maseka Somo & another  [2019]eKLR observed as follows
49.From the dictionary and judicial precedents discussed above, it is clear that the word ''or'' is ordinarily used to introduce another possibility or alternative, that is either or. Depending on context, it can also be used interchangeably with the word "and." It follows that in construing statutory provisions, the context is important so as to get the real intention of the legislature.
50.Guided by the authorities cited above and the ordinary meaning of the word “or” in the context of the provision under consideration, it is my view that the use of the word “or” immediately after the semi-colon at the end of the sentence in section 1 (a) of the second schedule introduces another possibility, the first possibility being the category referred to in paragraph (a), that is:-
“having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution.”
51.The ex parte applicants hold Bachelor of Laws degrees from a recognized University in Kenya. By dint of the above provision, they qualified for admission to the ATP. To suggest otherwise, is in my view an insult to the above provision, which is framed in a simple and clear language. A contrary interpretation is misguided and unfaithful to the provision. It follows that any decision emanating from such a misguided interpretation cannot be read in a manner that is consistent with the enabling provision.”
34. They also urged the court to consider the decision of Mrima J in the case Robert Uri Dabaly Jimma v Kenya School of Law & Kenya National Qualifications Authority [2021] eKLR who agreed with the holding by Justice Mativo stated that:-
“the two categories are different and ought to be treated as such. He further opined that category (1) (a) dealt with those persons who joined a recognized university in Kenya and obtained or became eligible for conferment of the Bachelor of Laws (LLB) degree of that university. Mostly, such persons would be those who studied under the 7-4-3-3 or 8-4-4 systems in Kenya and qualified to join the universities and were eligible for and were admitted to pursue studies towards the conferment of the Bachelor of laws (LLB) degrees.”
35. It should be noted however that were   two schools of thought by the High court on the interpretation of paragraph 1 (a) and 1 (b) of the 2nd schedule of the KSL Act . One school fronts the position that requirements in paragraph 1 (a) and 1 (b) must be similar otherwise there shall be discrimination of the students falling within category paragraph 1 (a) and those in 1 (b). The other school of thought is of the position that the two categories are different and ought to be treated as such. Some of the decisions which posit that the qualifications must be similar include Nairobi High Court Petition No. 20 of 2019 Victor Juma v Kenya School of Law, Bishar Adan Mohamed v Kenya School of Law (2020) eKLR, Peter Githaiga Munyeki v Kenya School of Law (2017) eKLR, R. v Kenya School of Law exparte Daniel Mwaura Marai (2017) eKLR, among many others.  On the other hand the Courts in Judicial Review Application Nos. 7, 8, 13, 20, 21 and 26 of 2020 Republic v Kenya School of Law & Others (2020) eKLR and in Kevin K. Mwiti & Others v Kenya School of Law & 2 Others (2015) eKLR were categorical that the qualifications for persons intending to join the ATP under 1(a) and 1(b) are different..
36. The 3rd to 7th respondents argued that they have no capacity to set standards of who can be admitted to ATP as this the sole mandate of the KSL.
37. The Court of Appeal settled the position in the interpretation of the said provisions in Civil Appeal No. E472 of 2021 - Kenya School of Law v Otene Richard Akomo & 41 others, Asike - Makhandia, Mohammed and Kantai JJA] while overturning  the decision by Justice Mativo who was the greatest of proponent of the school of thought that the two provisions are different to each other observed as follows:
“It was submitted that section 1 (a) of the Second Schedule to the Act, is clear that upon being eligible for an award of a Bachelor of Laws degree from a Kenyan University an applicant would be eligible for admission to the ATP. Further, sections 1 (a) and 1 (b) of the Second Schedule to the KSL Act, distinguishes applicants who hold a Bachelor of Laws degree from Kenyan University and those from a foreign University. We are of the view that with the use of semi-colon between 1(a) and (b) of the Act then the conditions follow which to us means that you are eligible, firstly, based on your LL.B degree either from a Kenyan University or as in (b) from a foreign university but in all situations, the conditions are same and are enlisted therein which are mandatory to all irrespective of whether you have a degree from within or without Kenya.”
38.  This court is bound by decisions of the court of Appeal.  I have carefully considered the Petition and Section 16 of the KSL Act as read with sections 1a and b of the 2nd schedule of the said Act and find that sections 1a and 1b of the Second Schedule of KSL Act provides that for one to be admitted to the Kenya school of Law he must have a degree whether  acquired locally or from a foreign university and must also meet the academic qualifications set out therein. The Kenyan universities offering studies leading to the award of a degree in law are thus not allowed to set their individual admission qualifications for ATP as the same are already set by the law. 

39. The 1st Respondent can therefore not be faulted for enforcing the Law to   ensure that the conditions set in the KSL are complied with by the LLB graduates to the letter.

40. The Petitioner have also claimed that the 1st Respondent has disregarded the provisions of section 8(3) of the Council of Legal Education Act which provides for promotion of career progression in the legal education. However as was correctly observed by Mwita J in the case of Peter Githaiga Munyeki v Kenya School of Law [2017] eKLR, the KSL is the only institution mandated to train persons to become professional Advocates and that mandate is exercisable pursuant to the KSL Act and regulations made thereunder.  The KSL Act in conferring that mandate to KSL does not make reference to any other Act so far as admission requirements to ATP are concerned.  In that regard, section 16 of the KSL Act is clear and unequivocal that qualifications for admission to ATP are those contained in the Second Schedule to the Act. Allowing LLB graduates to join ATP at KSL on the basis that they attained an LLB degrees through career progression would be in contravention of the clear provisions of the law. The intention of the legislature in enacting Section 16 of the KSL Act is clear that it was for  quality assurance of the law graduates before admission to the school.

41. The Council for Legal Education on the other hand is mandated to regulate the licensing of legal education service providers among other functions. The preamble of the Legal Education Act, No. 27 of 2012 provides 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.”
42. Section 8 (3) of the CLE Act must be read together with Section 16 of the KSL Act and not vice versa since for one to complete the journey to qualify  be an advocate he must go through Kenya School of Law for ATP.. The career progression envisaged by section 8 (3) of the legal Education Act applies only to persons who have attained the mandatory qualifications   set under Section 16 KSL Act. The 1st respondent is thus acting within its mandate by enforcing the provisions of Section 16 of the KSL Act.
Whether the misapplication of section 16 as read together with paragraph 1(a) and 1(b) of the second schedule right legitimate expectation of the petitioners
43. The Petitioner contend that the respondents herein continue to let students undertake career progression programs in the universities without informing them administratively and promptly that they will not at the end of the day be able allowed progress to undertake the ATP program. They went on to argue that as students with the 3rd Respondent, they have a legitimate expectation after progression into LLB degree they will be able to become  advocates, magistrates, judges, legal researchers but their legitimate expectation  remains a pipe dream as result of the 1st respondent misapplying its own Act. The respondents in opposing this noted that the right could not arise where the law dictated otherwise. Counsel for 2nd, 6th and 7th respondents  submitted that ignorance of law is no excuse and that the petitioners ought to have conducted  due diligence to know the requirements for admission to the ATP program. Further that legitimate expectation only arises where one has been promised something and this case there was no promise by 1st respondent for admit the petitioners to ATP. 

44.  Counsel for 2, 6th and 7th respondents cited the  Supreme Court  case of  Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR explained the principle of legitimate expectation as follows:
“[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.
[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) SA 42 (SCA) at [paragraph 28]: the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following
:i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.
(ii)The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.
iii. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”
The Petitioners did not prove that the respondents promised them admission to KSL after their studies. I also agree with counsel for the 2nd, 6th and 7th respondents that the petitioners had a duty to conduct due diligence before enrolling to the course. It cannot therefore be said that the 1st Respondents breached the petitioners legitimate expectation the KSL Act which as is clear on the qualifications for admission to the school.
45. The petitioners equally prayed that that this court to issues a compelling order directing the 1st and 2nd Respondents directing them to within such time this court shall direct formulate an Exception rule to the provision of section 16 of the Kenya School of Law Act, 2012 as read together with paragraph 1(a) and (b) of the second schedule of the said Act which allows Academic Progression into the Advocates Training Programme (ATP).  The Petitioners also want this court to issue an order directing 2nd Respondent directing it to within such time this court shall direct to furnish the 3rd, 4th and 5th Respondent with License of offering Advocates Training Programme (ATP). This court lacks jurisdiction to repeal or amend the KSL Act to allow the 2nd Respondent offer 3rd 4th and 5th Respondent licenses to offer the Advocates training program like the 1st Respondent. The principle of separation of powers cannot allow this court assume such a role as law making is within the ambit of parliament. And the duty of this court is to interpret the laws. 
46. In any event, the 4th and 5th Respondents submitted that, the Petitioners did not have any capacity to seek orders on their behalf directing the 2nd Respondent to give the licence to offer the Advocates Training Program. I agree with the 4th and 5th respondents as they are independent public bodies to with powers to sue and be sued on their own behalf and nothing would have stopped them from taking steps with a view to get  such powers if they want. I believe the said bodies have kept to their lanes as they are very well aware of their mandates and they do not want to usurp the powers of the 1st respondent. No  such compelling orders can thus issue against the 1st respondent in this petition.
47. In the upshot, the prayers in the  petition must therefore fail.
CONCLUSION
48.  In the end find that the petition is devoid of merit and the same is dismissed with no orders to cost.
49. It is so ordered.

DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 10TH DAY OF FEBRUARY 2025 IN THE PRESENCE OF THE 1ST AND 3RD PETITIONERS, MR WECHE FOR 2ND , 6TH AND 7TH RESPONDENTS MISS ABUTI HOLDING BRIEF FOR MR WASIKE FOR THE 5TH RESPODENT
CA : OIGO .

ORENGO -1ST PETITIONER : I seek a copy of t5he said judgment.
Order : The same be supplied .