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Court of AppealDismissedCourt of Appeal, Nairobi, Civil Appeal (Petition) – judgment of 22nd November 2013 (Petition appeal from High Court Petition No. 64 of 2013)· [2013] KECA 118 (KLR)

Maema v Council of Legal Education & 2 others (Civil Appeal 121 of 2013) [2013] KECA 118 (KLR)

Court of Appeal of Kenya
22 November 2013
4,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, a holder of an LLB from Coventry University and an LLM from Warwick, applied in September 2012 for admission to the advocates training programme at the Kenya School of Law. The Council of Legal Education rejected her application because her degree did not include the 16 core subjects prescribed in Legal Notice 170 of 2009. The High Court (Lenaola J) dismissed her petition, and she appealed to the Court of Appeal arguing that the core-subjects requirement was introduced only by the Legal Education Act 2012 and could not apply retrospectively, and that the judge erred in relying on Legal Notice 170 of 2009, which was neither pleaded nor canvassed. The Court of Appeal dismissed the appeal. It held that Legal Notices 169 and 170 of 2009 were both in operation at the material time and must be read together: subjects prescribed as 'core' for accreditation of legal education institutions were equally the qualifying standard for admission to the advocates training programme. The requirement did not originate in the 2012 Act, so no retrospectivity arose. Requiring foreign degrees to contain the core units was not an extraterritorial extension of the Council's accreditation jurisdiction but a means of avoiding double standards; the same standards apply to all entrants to the profession. The Court held that a matter of law may be raised even if not pleaded, endorsed the High Court's interpretation, and affirmed its dismissal of the petition, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the 16 core subjects requirement under Legal Notice 170 of 2009 governed admission to the advocates training programme at the material time

Holding

Yes. The core units prescribed for accreditation purposes were also the qualifying standard for admission; the two Legal Notices must be read together.

Reasoning

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.

p. 7
02

Whether applying the core subjects requirement to the appellant was retrospective legislation

Holding

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.

Reasoning

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.

p. 4
03

Whether requiring foreign degree holders to show the core subjects was discriminatory or extended the Council's accreditation jurisdiction extraterritorially

Holding

No. It ensures uniform standards and avoids double standards; the allegation of discrimination against the appellant was unsupported by material.

Reasoning

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.

p. 8
04

Whether the judge erred in relying on Legal Notice 170 of 2009 and authorities not canvassed by the parties

Holding

No error. A matter of law may be raised by the court even if not pleaded.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Bill of Rights (Articles allegedly violated, as pleaded)
  • Advocates ActChapter 16
  • Council of Legal Education Act (repealed)Chapter 16A / Chapter 16B; sections 6, 6(2)(i), 14
  • Legal Education ActNo. 27 of 2012; section 23; section 47; Part II of Second Schedule
  • Kenya School of Law ActNo. 26 of 2012
  • Council of Legal Education (Kenya School of Law) Regulations, 2009Legal Notice 169 of 2009; Regulations 4, 5; First Schedule paragraph 5; Third Schedule
  • Council of Legal Education (Accreditation of Legal Education Institutions) Regulations, 2009Legal Notice 170 of 2009; Regulation 11; Third Schedule paragraph 20, Part III
  • Rules of this Court (Court of Appeal Rules)Rules 93 and 94

Cases cited (6)

  • Butime Tom v Muhuza David and The Electoral Commission
    Election Petition Appeal No. 11 of 2011
  • National Director of Public Prosecutions v Jacob Zuma
  • Mamela Taxi Association and 2 others v Mamela Taxi Rank (Pty) Ltd
  • KNEC v Kemunto Regina Ouro
    (2010) eKLR
  • Rita Biwott and Council of Legal Education
    Civil Application 23B of 1994
  • Susan Mungai v The Council for Legal Education
    Petition No. 152/2011
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.