Javan Kiche Otieno & 1 other v Council of Legal Education
The bottom line
#Kenya's Court of Appeal dismissed foreign-trained lawyers' bid for admission, holding unadopted regulations had no legal force and they lacked required qualifications.
What this practically means
#Executive summary
#Key legal issues
#Whether the gazetted but unadopted Regulations had the force of law
The regulations, gazetted as Legal Notice No 15 of 2016 but never laid before and adopted by Parliament under section 11(4) of the Statutory Instruments Act, never became law and were unenforceable
The respondent conceded that Parliament was on recess and the draft regulations were never laid before Parliament or republished. Section 11(4) of the Statutory Instruments Act provides that such an instrument ceases to have effect. The appellants conceded non-adoption. Accordingly the regulations were inapplicable for want of legality and could not be the basis of denying admission, but equally there was nothing to quash.
Whether the appellants qualified for admission to the Roll of Advocates under section 13 of the Advocates Act
The appellants did not qualify: they were not admitted as advocates of the High Court of Rwanda under section 13(1)(d) and had not practised for five years in a Commonwealth jurisdiction under section 13(1)(e)
Admission of persons who studied outside Kenya was governed by section 13(1)(d) or (e). Both required prior admission as advocates of the High Court of Rwanda or of a Commonwealth jurisdiction, with five years' practice and good standing for (e). The appellants held only post-graduate diplomas from the Rwandan Bar School and had not been admitted to the Rwandan Roll.
The effect of the nullification of the amended sections 12 and 13 of the Advocates Act in Law Society of Kenya v Attorney General
The nullification reverted the law to the pre-2012 position, so even had they been admitted in Rwanda, the appellants (with Rwandan qualifications) were ineligible for admission to the Kenyan Bar
The court in Law Society of Kenya v Attorney General & 2 others nullified the amended sections 12 and 13 for having been passed unprocedurally through the Statute Law (Miscellaneous Amendment) Act 2012. Relying on Mary Wambui Munene and the retrospective effect of decisions declaring legislation unconstitutional, the Court held that the amendments became a nullity from inception in 2012, binding pending cases, without affecting already-crystallised admissions.
Whether mandamus could issue to compel recognition of the appellants' qualifications
Mandamus could not issue because it would compel the respondent to disregard the law and perpetuate an illegality
The relevant provisions having been struck out, the appellants' application had no legal foundation upon which the respondent could admit them. An act done in contravention would be a nullity, citing Macfoy v United Africa Company. The answer to whether the respondent could be compelled was in the negative.
Legal principles established
#- A statutory instrument required to be laid before Parliament but not so laid ceases to have effect and does not acquire the force of law
- A declaration of unconstitutionality operates retrospectively to the date of inception of the impugned provision, but does not disturb actions already crystallised or admissions already made while the law was in force
- A court cannot compel a public body to act in contravention of the law or perpetuate an illegality
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nakuru
- Constitutional Petition dated 21st April 2016
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR)[2024] KECA 1099 (KLR)19 Aug 2024
- Kenei v Egerton University & another (Petition E009 of 2022) [2023] KEELRC 918 (KLR)[2023] KEELRC 918 (KLR)20 Apr 2023applied
Cite this brief
#Cite this brief
Caselaw, "Javan Kiche Otieno & 1 other v Council of Legal Education", Case Analysis (2021). Court of Appeal at Nakuru (Civil Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/349/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.