Why does Kenya’s Law School keep making the same legal mistake, asks judge?

IF anyone could be expected to understand judicial precedent it should surely be a country’s law school. After all, this is the body with responsibility for ensuring that the next generation of lawyers understands this crucial, basic concept. But the Kenya School of Law keeps getting it wrong.

WHEN Judge Chacha Mwita sounded just a little exasperated at the end of his decision in the case of Laura Lumbasio against the Kenya School of Law, no-one could blame him.

His new decision concerns a young woman who wants to be a lawyer but whose life is being made difficult by the country’s law school. Right at the end of his judgment he asked why the law school failed to remember that the same point arising in her case had been dealt with in a number of earlier cases. Its failure to remember the precedent established results in unnecessary litigation said the judge – and the law school then failed to defend its position when the matter got to court.

For an observer, the behaviour described by the judge hardly amounts to a good advertisement for such a school.

The woman at the heart of the story is Laura Lumbasio a Kenyan citizen, educated in Botswana where she graduated with an LLB in 2016.

She wanted to be admitted to the law school for training to qualify as an advocate. The law school refused to admit her to write the pre-Bar examination, saying, in essence, that her grades were not good enough.

Lumbasio took her case to court. She said the school’s actions were unlawful and illegal, and that the provisions that should be applied in her case were those operating before 2010 when she joined the law degree programme. Having joined the university in 2010, she could not be subjected to a new law that came into operation “way after she had joined university”. The contested decision was both unreasonable and violated her constitutional rights and she asked the court to order that the school admit her.

What was the response of the law school when it received notice that she was contesting its decision to bar her? Though it had been properly notified and given time to file a response it made no response at all nor did it have a representative in court for the hearing, even though the date was agreed by the parties.

Legal counsel for Lumbasio said that her qualifications met the criteria in operation at the time she joined the university and that the law stipulating a new set of criteria came into operation later.

In his decision, Judge Mwita said the only question was whether the school of law was justified in refusing her application: the facts were not in dispute.

He then set out the requirements for admission both before and after she joined the university and said it was trite that laws applied prospectively and not retrospectively.

When Lumbasio joined the LLB programme she knew that her secondary school qualifications would allow her to become a lawyer. He added, “I must also point out that so much litigation has gone into this issue that it cannot keep on engaging the courts every so often.” He said he did not want to list “all the cases” that had taken up the time of judges “over the same issue” but mentioned just one of these against the law school in which the court said “there was no express intention by Parliament to effect the amendments retrospectively, and adopted an interpretation that most favoured enforcement of rights and fundamental freedoms, equality and freedom from discrimination”.

In that case too, the court had said that there was a legitimate expectation that the public authorities would comply with the constitution and the law and that by interpreting the law in a way that went against the values of the constitution the law school was interpreting the law in a way that was “incorrect”.

As the school had given no reason for declining her application it had to be assumed that it had “no reasonable or plausible answer” to her case.

“Despite courts having stated so often that the Kenya School of Law Act was not expected to operate retrospectively, (the school) continues to make decisions to that effect, leading to unnecessary litigation which it then fails to defend.”

Finding in favour of Lumbasio, Judge Mwita ordered that the school admit her to sit the pre-Bar Examination – and awarded costs against the school.

The big questions now: will Lumbasio’s case be the last one on this subject? Will the court’s order, coupled with Judge Mtwita’s comments, plus having to pay costs in the matter, ensure that the School of Law finally gets the message?

Laura Makungu Lumbasio v Kenya School of Law [2018] eKLR

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