Kenya School Of Law VS Isaiah Munoru Mucheke

1. This appeal filed through a memorandum dated 3/1/2023 seeks the setting aside of the judgment of the Legal Education Appeals Tribunal dated 16/12/2022. The judgment arose out of an appeal to the Tribunal by the respondent herein seeking for two substantive orders first that the decision of the Director/Chief Executive Officer, Kenya School of Law dated 25/4/2022 be quashed and second that the respondent be forthwith admitted to the Advocate Training Programme (ATP) for the academic year 2022/2023. Upon hearing the parties, the Tribunal granted the orders as prayed in its decision dated 16/12/2022.
2. Dissatisfied with that decision, the appellant filed the present appeal under section 38 of the Legal Education Act (Cap. 16B) Laws of Kenya upon the grounds that the Tribunal erred in law and in fact:
   1. in failing to find that it lacked jurisdiction to hear and determine the appeal.
   2. by exceeding its mandate;
   3. by addressing itself on matters outside its jurisdiction;
   4. by failing to properly interpret and apply the judgment of the Court of Appeal in a similar matter;
   5. by failing to properly apply the law on eligibility for admission to the Advocates Training Programme;
   6. that the whole judgment of the Tribunal is against the law and fatally flawed.
3. The first three grounds are all essentially on the jurisdiction of the Tribunal to handle the matter and so can be compressed into one. That leaves grounds (d) and (e) as the others for consideration because ground (d) is subsumed in the first three. That makes three grounds for this court’s consideration.
4. I am satisfied that these three grounds are all on matters of law and therefore are properly before this court on appeal under section 38 of the Legal Education Act.
5. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. I have not seen participation by the Interested Party, Council of Legal Education either by way of response or filing submissions.
6. I note that even though the appellant raised it first issue on jurisdiction, it did not submit on the same. Similarly, the respondent did not make any submissions on the issue.
7. Starting with the issue of jurisdiction, there is no doubt that jurisdiction is a fundamental issue and without it, the court or any tribunal or body exercising judicial authority cannot proceed to deal with the matter before it. In the well-known case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal explained the issue of jurisdiction as follows:

"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."

1. The issue of jurisdiction can be raised for determination at any point either as a preliminary issue, during trial or even on appeal. In the case of Kenya Ports Authority v Modern Holding [EA] Limited MSA CA Civil Appeal No 108 of 2016 [2017] eKLR, the Court of Appeal held that:

"We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the court itself provided that where the court raises it suo motu parties are to be accorded the opportunity to be heard.”

1. Therefore, even though parties did not submit on the issue in this appeal, this court has to consider it before moving forward.
2. The Kenya School of Law (KSL) is established under the Kenya School of Law Act (Cap. 16C) Laws of Kenya. It is a public legal education provider responsible for the provision of professional legal training as an agent of the Government as provided for under section 4(1) of the Act. Among its objects as provided for under section 4(2)(a) of the Act is to train persons to be advocates under the Advocates Act (Cap. 16) Laws of Kenya.
3. The Legal Education Appeals Tribunal is established under section 29 of the Legal Education Act (Cap. 16B). Its jurisdiction is provided for under section 31 and 32 of the Act. For the purposes of this appeal what is relevant under section 31 is subsection (1) which provides as follows:

S. 31(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.

Section 32 provides that:

Any person aggrieved by any decision of the Council to—

1. refuse to grant a licence;

(b)   impose conditions on a licence; or

(c)   suspend or revoke a licence,

may appeal to the Tribunal against such decision within thirty days from the date of receipt of the decision of the Council.

1. That is as far as the jurisdiction of the Legal Education Appeals Tribunal goes. There is nothing more. Under section 31(1), it is clear that the jurisdiction is on matters relating to the Act. Section 32 is specific on the extent of the jurisdiction conferred. I am therefore, finding it difficult to appreciate under which part of the two sections of the Legal Education Act that the Tribunal derived jurisdiction to handle the matter. The Supreme Court has frowned upon the practice of judicial bodies expanding jurisdiction by what it termed judicial craft or innovation. In Samuel Kamau Macharia v Kenya Commercial Bank and others SCK Application No 2 of 2011 [2012] eKLR the Supreme Court observed that:"

“A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law ….. the court must operate within the constitutional limits. It cannot expand jurisdiction craft or innovation." (Emphasis mine).

1. On the issue of jurisdiction, the Tribunal stated that:

“Based on the fact that the dispute before the Tribunal involves whether the appellant was qualified to be granted admission to undertake the LL.B. degree based on his degree from Moi University is a matter within the juridical mandate and province of the Tribunal to hear and determine by way of this appeal.”

1. I think with respect, that was an erroneous interpretation of the dispute before it. The appeal to the Tribunal was the qualification of the Respondent to join the KSL and not his qualifications to undertake a law degree at Moi University, these two institutions offering legal education being separate and independent. When offering its law degree to the respondent at the time, Moi University followed the requirements as set out under the Legal Education (Accreditation and Quality Assurance) Regulations which provided under paragraph 5 the qualifications for undergraduate degree programme. It is my finding that meeting those qualifications for admission to study law and eventually obtaining an LL.B. degree by the respondent was no guarantee for admission to the KSL which has its own qualifications.  Concomitantly, the KSL does not admit to its ATP any holder of an LL.B. degree be it from Moi University or any other institution offering legal education as accredited by the Council of Legal Education. It follows its criteria for admission to the ATP as provided for under the KSL Act section 16, second schedule which provides that.

(a)Admission Requirements into the Advocates Training Programme

(1) A person shall be admitted to the School if—

(a) having passed the relevant examination of any recognized university in Kenya, or of any university, university college or other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or

(b) having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—

(i) attained a minimum entry requirement for admission to a university in Kenya; and

(ii) obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and

(iii) has sat and passed the pre-Bar examination set by the school.

1. The issue of whether or not the Legal Education Appeals Tribunal has jurisdiction to entertain an appeal filed before it by a person who has been denied admission to the Kenya School of Law on account of his qualifications had been the subject of various court cases. In the case of Kenya School of Law v Maina & another; Council for Legal Education (Interested Party) [2024] KEHC 3168 (KLR) the same issue arose. The respondents appealed a decision of the KSL refusing them admission to its ATP on the basis that the respondents did not attain the minimum qualifications for admissions to study law. The 1^st respondent attained a mean grade of B- in his Kenya Certificate of Secondary School (KCSE) and scores of B- and C+ respectively in English and Kiswahili while the 2^nd respondent attained a mean grade of C in her Kenya Certificate of Secondary Education (KCSE) with grades C+(plus) and C-(minus) in English and Kiswahili respectively. The Tribunal quashed the decision by the director KSL declining the respondents’ admission to the Advocates Training Program and directed the KSL to admit the respondents to the Advocates Training Program. The High Court on appeal held that: 

“On the issue as to whether the Legal Education Appeals Tribunal had jurisdiction to hear the appeal from the appellant, I find that the issue for determination was regulated by Kenya School of Law Act 2012 and therefore not within the province of Legal Education Act.”

1. I am persuaded to follow this decision by the High Court and find that the jurisdiction of the LEAT is derived from the LEA and not the KSL Act. That jurisdiction has not been extended to cover issues arising under the KSL Act like the issue herein.
2. Therefore, on the first three issues of the appeal which touch on jurisdiction, I find that the LEAT acted without jurisdiction in the matter at hand and therefore its decision cannot stand as it has no basis.
3. That being my finding, it follows that there is no point to proceed to consider the other issues raised in the memorandum of appeal since the same ought not to have been considered by the Tribunal in the first place. In any case, the Court of Appeal in the case of Kenya School of Law vs Richard Otene Okomo & 41 others-Nairobi Civil Appeal No. E472 of 2021 has conclusively determined the issues and this court is bound by that decision. The argument by the respondent that the Court of Appeal did not address itself properly on interpretation of the relevant provisions of the law is itself absurd. His argument would do well if he was making it before the Court of Appeal persuading it to reverse its decision above or the Supreme Court. However, before this court, it cannot find favour as this court is bound by the decisions of the Court of Appeal.
4. Consequently, I find that the appeal herein has merit and the same is allowed. The decision of the Legal Education Appeals Tribunal dated 16/12/2o22 is hereby set aside and replaced with one striking out the respondent’s appeal and reinstating the appellant’s decision declining the respondent’s application to the Adocates’ Training Programme. 
5. There shall be no orders for costs.
6. Orders accordingly.

ANDAYI W. FRANCIS

JUDGE

In the presence of:

Ms Pauline Mbuthu for Appellant.

Isaac Munoru Mucheke (in person) Respondent.

Etropia Court Assistant.