Maema v Council of Legal Education & 2 others (Civil Appeal 121 of 2013) [2013] KECA 118 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that all law graduates, including those with foreign degrees, must show the 16 core law subjects to join the Kenya School of Law.
What this practically means
#Executive summary
#Key legal issues
#Whether the 16 core subjects requirement under Legal Notice 170 of 2009 governed admission to the advocates training programme at the material time
Yes. The core units prescribed for accreditation purposes were also the qualifying standard for admission; the two Legal Notices must be read together.
The Council prescribed 16 units as 'core' under the Accreditation Regulations. 'Core' means the central or most important part. The Court could not see how subjects could be core for accreditation yet not core for admission. Regulation 5(2)(a) of LN 169/2009 requiring 'relevant qualifying examinations' incorporates those core subjects. Reading LN 170 out of the regime would render it meaningless.
Whether applying the core subjects requirement to the appellant was retrospective legislation
No. Legal Notices 169 and 170 of 2009 were in operation since 2009 and the new Legal Education Act introduced nothing new; no retrospectivity arose.
The core-subject requirement did not originate in the Legal Education Act 2012 but in LN 170 of 2009, which was operational when the appellant applied. The new Acts consolidated the existing position rather than introducing new requirements, so the rejection of the application involved no retrospective application of the law.
Whether requiring foreign degree holders to show the core subjects was discriminatory or extended the Council's accreditation jurisdiction extraterritorially
No. It ensures uniform standards and avoids double standards; the allegation of discrimination against the appellant was unsupported by material.
The requirement is not an extension of the Council's accreditation jurisdiction over foreign institutions but a recognition standard for admission. Applying the same standard to all applicants prevents the very discrimination the appellant complained of; her plea that similarly circumstanced applicants were admitted was unsupported by evidence.
Whether the judge erred in relying on Legal Notice 170 of 2009 and authorities not canvassed by the parties
No error. A matter of law may be raised by the court even if not pleaded.
Although the respondents did not plead LN 170 of 2009, being a question of law the court could rely on it. The Court endorsed the judge's reading of LN 169 and LN 170 together and his refusal to countenance a selective interpretation.
Legal principles established
#- A law degree, including one from a foreign university, must be shown to contain the 16 core units prescribed by the Council in order to be recognised for purposes of admission to the advocates training programme; the same standards apply to local and foreign degree holders.
- The Council may prescribe core subjects for accreditation of legal education institutions and treat them as prerequisites for admission to the advocates training programme; the same standards apply to all persons seeking entry to the profession.
- A court may raise and apply a matter of law, such as a subsisting Legal Notice, even if not pleaded by the parties.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 64 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a constitutional petition decided by the High Court (Constitution of Kenya, Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maema v Council of Legal Education & 2 others (Civil Appeal 121 of 2013) [2013] KECA 118 (KLR)", Case Analysis (2013). Court of Appeal, Nairobi, Civil Appeal (Petition) – judgment of 22nd November 2013 (Petition appeal from High Court Petition No. 64 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/118/eng@2013-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.