Being admitted to the Kenya school of Law by case law


Eunice Cecilia Mwikali Maema v Council of Legal Education & 2 others Civil Appeal No 121 of 2013

Brief Facts

The appellant (Eunice Cecilia Mwikali Maema) upon completion of her Bachelor of Laws (LLB) at Coventry University in England and Master of Laws (LLM) degree in University of Warwick in England in 2011 applied to be admitted to the Advocates Training Programme (ATP) for the 2013/2014 Academic Year. She however received a regret letter from the Kenya School of Law’s (KSL) Director on the basis that her LLB degree did not meet the threshold of the 16 core subjects as prescribed by law for purposes of admission to ATP.

Aggrieved by that decision she petitioned the High Court seeking declarations that she had complied with all requirements for admission to the ATP under Legal Notice 169 of 2009. She sought an order of certiorari to quash the decision contained in the letter rejecting her application for admission to the ATP; an order of mandamus to compel KSL and the Council to admit her to ATP. The High Court (Isaac Lenaola J) dismissed the appellant’s petition hence the appeal.

It was argued by the appellants counsel that when the appellant applied for admission the law did not require completion of the 16 core subjects; that the requirement only came with the enactment of the Legal Education Act of 2012, which could not apply retrospectively. They submitted that Legal Notice 170 of 2009 had nothing to do with admission with ATP but only dealt with accreditation of legal education institutions in Kenya. It only required universities to offer the 16 core subjects and there was no requirement that the students had to take those subjects. Further that if some subjects had not been covered at the university than they should be undertaken during the ATP at KSL.

The respondents however argued that Legal Notice 169 did not contain the councils prescribed examinations but they were set as core subjects in the Legal Notice 170 of 2009 to be offered by all accredited universities. That other applicants in a similar position as the applicants had taken the missing subjects at locally accredited universities

Issue

i. Whether it was a legal requirement for an applicant to have covered the 16 core subjects at the LLB degree Programme prior to application for admission to the Kenya School of Law.

Held

While the under graduate Programme offered by any accredited institution had to comprise core units, there was no express requirement that a student undertaking the Programme at such institution had to take those units.
Students enrolling for legal education Programmer at universities or other institutions did so for a variety of reasons. Some might or might not have wished to seek postgraduate admission to the ATP. However, for those who wished to gain admission to the ATP at KSL, the Council, under Regulation 5(2) (a) of the Council of Legal Education (KSL) Regulations, 2009 set relevant qualifying examinations.
The relevant qualifying examinations had to include the 16 core subjects prescribed for the universities under Paragraph 20 of Part III of the Third Schedule to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations.
The 16 identified subjects or units were so central and important that for purposes of regulating standards, an undergraduate Programme that did not include those units failed the test of accreditation. The Council could not on the one hand determine certain subjects to be core for purposes of accrediting an institution and at the same time not consider them as core for purposes of qualifying for admission to the advocates training Programme at the School.
The subsidiary legislation by the Council could have been better framed and structured to make it abundantly clear that a degree from any institution that did not include those units would not be recognized for purposes of admission to advocates training Programme.
Any ambiguity or lack of clarity however was removed with the enactment of the Legal Education Act, that commenced operation on 28th September 2012 and whose objective was to promote legal education and the maintenance of the highest possible standards in legal education. Section 23 of that Act expressly provided for core degree courses and stipulated that a legal education provider offering a course for the award of a degree in law was to in addition to any other courses offered, provide instruction and examination for each of the core courses set out in Part II of the Second Schedule to that Act.
While foreign universities and institutions outside Kenya were outside the accreditation jurisdiction of the Council, the requirement that a degree from a foreign university or institution had to contain the core units was not to extend the accreditation jurisdiction of the Council to foreign universities but to avoid different or double standards for local and foreign law degree holders.
Law degrees earned from foreign universities or institutions had to for purposes of admission to the advocates training Programme at the school, be held against the standards that the council had set out. All applications for admission to the School had to be considered against the same standards set by the Council.
To exclude the appellant from complying with the fulfillment of the requirement of core subjects was propagating the very discrimination the appellant complained about. She could not be admitted to KSL and be required to study the remaining core subjects there as the school no longer offered them.
Appeal dismissed with each party bearing their own costs of the appeal.

There are sixteen courses in total: Legal Research; Torts; Contracts; Constitutional Law; Legal Systems and Methods; Criminal Law; Family Law and Succession; Law of Evidence; Commercial Law (Including Sale of Goods, Hire Purchase and Agency); Law of Business Associations (including Insolvency); Administrative Law; Jurisprudence; Equity and Law of Trusts; Property Law; Public International Law; Labour Law. 2 Students who have advanced law degrees (master’s or doctorate degrees) or postgraduate diplomas in the mandatory course units may apply for exemption in writing.

see http://kenyalaw.org/caselaw/cases/view/92992/

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