In re Rita Biwott [1994] eKLR

Kenya Law

Automated Summary

Key Facts

Rita Biwott, a Kenyan citizen, obtained a B.A. from McGill University in 1991 and was exempted from one year of study at the University of Edinburgh, completing her LLB in two years (October 1991–1993). The Council of Legal Education (CLE) rejected her application to enroll at the Kenya School of Law under the Advocates Act (Cap 16), arguing her two-year LLB from Edinburgh was insufficient. The court found CLE's decision arbitrary, noting Edinburgh's associate dean confirmed the two-year LLB is academically equivalent to the three-year program. The court ruled CLE violated natural justice principles by delaying a decision and failing to consider the applicant's full evidence. A mandamus was issued to enroll Biwott retrospectively from September 16, 1994, and the court ordered CLE to cover her costs.

Issues

  • Whether the two-year LLB degree from the University of Edinburgh, granted to a student with prior academic qualifications, is legally equivalent to the standard three-year LLB degree for the purpose of admission as an advocate in Kenya under the Advocates Act.
  • Whether the Council of Legal Education (CLE) violated the principles of natural justice by rejecting Rita Biwott's application without providing her an opportunity to present her case, thereby breaching the 'Audi Alteram Partem' rule.
  • Whether CLE exceeded its statutory jurisdiction under the Advocates Act by unilaterally rejecting qualifications based on the duration of study, disregarding evidence of academic equivalence and international academic standards.

Holdings

  • The court determined that the Council of Legal Education (CLE) acted unfairly and unjustly in rejecting Rita Biwott's two-year LLB degree from the University of Edinburgh, as it was equivalent to the three-year degree and CLE had no jurisdiction to impose such a requirement. The court emphasized that CLE's exercise of discretion was capricious and violated principles of natural justice.
  • The court issued a mandamus order compelling the CLE to issue a certificate of enrollment to Rita Biwott with retrospective effect from 16th September 1994 and directing the Kenya School of Law to admit her immediately. This was in response to CLE's failure to exercise its discretion fairly under the Advocates Act.

Remedies

  • The court awards the applicant's legal costs to be paid by the Council of Legal Education in response to their refusal to admit her despite meeting qualifications.
  • The court grants a mandamus order compelling the Council of Legal Education to issue Rita Biwott a certificate of enrollment with retrospective effect from 1994-09-16.
  • The court also mandates the Kenya School of Law to admit Rita Biwott forthwith to continue her legal education program.

Legal Principles

The judgment centered on the principle of natural justice, particularly the requirement for the Council of Legal Education (CLE) to act fairly and judiciously when exercising its discretionary powers. The court held that CLE's rejection of the applicant's qualifications without affording her a hearing (violating 'Audi Alteram Partem') was an arbitrary and capricious exercise of discretion. It emphasized that administrative decisions affecting legal rights must comply with natural justice principles, citing precedents like David Oloo Onyango vs A.G. and A.G vs Ryan. The court concluded CLE had no jurisdiction to deprive the applicant of her right to pursue legal practice in Kenya based on an unfair procedural approach.

Precedent Name

  • A.G vs Ryan
  • David Oloo Onyango vs A.G.
  • Fairmount Investments Ltd vs Secretary of State for the Environment
  • Associated Provincial Picture House Ltd vs Wednebury Corporation

Cited Statute

  • Advocates Act
  • Repealed Advocates Act

Passage Text

  • CLE cannot in all fairness ask the applicant to go back to Edinburgh as to complete a course which she had already completed (emphasis mine). That is unjust and unfair and that is where the court can interfere with the discretion of CLE.
  • What stands out and what was not considered by CLE was that the course completed by the applicant was exactly the same as she would have completed in 3 years.
  • In the said appeal the above-mentioned cases were followed with approval. It would be not out place to quote: "It is however quite clear that it is not within the powers of the Act to depart from the principles of natural justice when the discretion is being exercised under this sub-section."