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

22 February 2019 · Carmel Rickard

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

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.