Kevin K. Mwiti & Others v Kenya School of Law, Council for Legal Education & Attorney General [2017] KEHC 2458 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL PETITION NO. 377 OF 2015

CONSOLIDATED WITH PETITION NO. 395 OF 2015 AND JR NO. 295 OF 2015

KEVIN K. MWITI & OTHERS….………………………..PETITIONERS

VERSUS

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

COUNCIL FOR LEGAL EDUCATION................2ND RESPONDENT

THE ATTORNEY GENERAL................................3RD RESPONDENT

RULING/DIRECTIONS

1. On 19th day of November, 2015, this Court delivered its judgement in this matter in which it expressed itself, inter alia, as hereunder:

“It is however clear that the Amendment Act did not make any pretence as to its retrospective operation or effect. The only issue for determination is therefore whether the effect of the Amendment in so far as to relates to the Kenya School of Law Act was to adversely affect the rights accrued by the petitioners or even some of them. That this fact was appreciated by the Respondents was clear from the notice issued by the School which provided:

“The Second Schedule to the Kenya School of Law Act will be followed subject any discretionary powers which have hitherto been exercised by the Council of Legal Education and the Kenya School of Law prior to 2012 to ensure conformance with the anti-discriminatory provisions of Article 27 of the Kenya Constitution, 2010”

In enacting the Amendment Act, Parliament did not set out to deprive the Petitioners of their rights if any or discriminate against them and it could not do that…Just like the school correctly interpreted the enactment that preceded the Amendment Act, the Respondents were likewise expected to interpret the Amendments Act in a manner that upholds the constitutional values and principles. I accordingly commend the Council for recognising in the oral submissions through its learned counsel Mr Bwire that for the students who were already in the LLB Class prior to the enactment of the Kenya School of Law Act, the outgone Regulations bore to them legitimate expectation that their interest would be preserved in relation to their eligibility to the Advocates Training College…In considering its earlier position the School appreciated that some of the Petitioners’ predecessors and who were with the said Petitioners at the University had not been subjected to the same treatment. It has not been shown that the circumstances between the said Petitioners and their predecessors had changed. To subject those Petitioners to whom a benefit had been conferred in order to avoid discriminating against them itself amounts to discrimination.”

2. The Court therefore issued inter alia the following order:

A declaration that the Petitioners who were already in the LLB Class prior to the enactment of the Kenya School of Law Act are to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. For avoidance of doubt those who had not been admitted in the LLB Class prior to the enactment of the Kenya School of Law Act are to comply with the provisions of the said Act.

3. By a Notice of Motion dated 29th September, 2017, the 1st Respondent herein now seeks that this Court reviews and clarifies/interprets the said order in order to determine whether the transition criteria is applicable only for four years in line with the duration of the LLB Degree programme (and as contemplated by the guidelines issued by the 1st Respondent prior to the enactment of the Amendment Act); or is applicable ad infinitum so long as the applicant had joined the LLB degree programme prior to the enactment of the Act, whenever such applicant applies to the 1st Respondent irrespective of the effluxion of time, change in curriculum or other circumstances at 1st Respondent, the transition criteria would be applicable to them.

4. In the alternative the 1st Respondent sought an order reviewing or varying the Court’s decision so as to include a finding that the transition criteria contemplated by the guidelines issued by the 1st Respondent prior to enactment of the Amendment Act is applicable only to four years beginning 15th January, 2013 in line with the duration of the LLB Degree programme.

5. According to the 1st Respondent its guidelines were time bound and only provided for a limited transitional period in line with the duration of the LLB Degree Programme and were to be effective for a period of four years from 15th January, 2013. It was contended that the said period has elapsed and the 1st Respondent is now implementing the Amendment Act but is facing implementation challenges from the applicants who had joined the LLB degree programme prior to the enactment of the Amendment Act who claim they should benefit from the transition criteria.

6.    In the said earlier decision this Court was emphatic that:

“In considering its earlier position the School appreciated that some of the Petitioners’ predecessors and who were with the said Petitioners at the University had not been subjected to the same treatment. It has not been shown that the circumstances between the said Petitioners and their predecessors had changed. To subject those Petitioners to whom a benefit had been conferred in order to avoid discriminating against them itself amounts to discrimination.”

7. It is therefore clear that the 1st Respondent itself in issuing the guidelines in question appreciated that the students would be leaving the University at different times and it would be unjust to subject different students who had entered the university under the same legal regime to differential treatment. The applicant now wants this Court to direct that at the end of the four year period from 15th January, 2013, any student who had not completed the degree programme would be automatically locked out from the benefit conferred on them by the law as it existed prior to the amendment no matter the reasons. In other words, from day one following the lapse of the four year period, any person who had not met the new requirements would be left out.

8. This Court appreciates that public university education in this country is no respecter of timelines and it is not unknown that courses which ordinarily ought to take four (4) years quite often than not take more than that period due to reasons beyond the control of the students.

9. In my view to accede to the proposition put forward by the 1st Respondent would lead to the mischief which this Court set out to cure in its judgement of subjecting students in the same cluster to differential treatment. The law as it stands presently does not permit that.

10. The 1st Respondent’s apprehension is that some students to whom the former provisions benefit may apply to be admitted to the School long after the new provisions have taken effect and when their qualifications may not be at par with those students admitted at the school pursuant to the amended provisions hence subjecting the 1st Respondent to apply two parallel admission criteria at the same time. Whereas that fear may not be totally unfounded, as this Court appreciated in its judgement, that fear cannot be solved by taking short cuts. What the applicant needs to do is to convince Parliament to enact an appropriate legislation to deal with the situation.  As long as the law the remains as it that there is no express provision permitting the retrospective application of the Amendment Act to those students who had joined the LLB Degree Court before the same came into effect, those students can only be subject to the law as it then existed.

11. The long and short of this decision is that those who had joined the LLB Course prior to the effective date of the Amendment Act are to be subjected to the admission criteria prevailing before that date. Any other decision would amount to a violation of Article 27 of the Constitution.

12. It is however not lost to this Court, that the Courts in this country have been inundated with several law suits revolving the regulatory framework for admission of students to the Advocates Training Programme. This scenario does not, in my view, augur well for the legal profession. The solution however lies on those tasked with formulation of policies regarding the regulation of legal profession in the country. Those polices must however be in accordance with the Constitution and the law. It is in this regard that Ihighly recommend that a task force be formed to look at the regulatory framework surrounding legal education in this country in order to bring the circus the courts have been subjected to, to an end. To that end, I hereby direct the Deputy Registrar of this Court to facilitate the service this ruling/directions on the Attorney General to consider taking appropriate action along those lines in his capacity as the chief/principal legal adviser to the Government.

13. Orders accordingly.

Dated at Nairobi this 9th day of November, 2017

G V ODUNGA

JUDGE

Delivered in the absence of the parties.

CA Ooko