Kenya School of Law v Akomo & 41 others
The bottom line
#Kenya's Court of Appeal ruled that all Kenya School of Law applicants must meet KCSE grade requirements, regardless of where they earned their law degree.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the basic requirements for KCSE under section 16 and the second schedule to the KSL Act were applicable to applicants who studied in or out of Kenyan universities
- 2.Whether an interpretation that section 16 and the second schedule to the KSL Act estopped persons who studied in foreign universities from having their KCSE results being considered was discriminatory and violated their right to education
- 3.What was the scope of the duties of the Council of Legal Education in regulating how universities admitted students to pursue various cadres of legal education
- 4.What were the factors to consider when interpreting statutes
- 5.What type of degree could be considered as a progression towards studying law
- 6.What ought to be considered in formulating a system for the progression in legal education
Key legal issues
#Applicable admission criteria to the ATP for locally and foreign-trained LLB graduates
Section 16 and the second schedule of the KSL Act must be read as a whole; the KCSE requirements are mandatory for all applicants irrespective of where the LLB was obtained.
Paragraphs 1(a) and 1(b) of the second schedule are separated by a semicolon with conditions following; both limbs must meet the conditions precedent. Reading 1(a) as exempting local graduates from KCSE requirements would treat identically-scoring students differently based only on where they studied, producing absurdity and negative discrimination contrary to legislative intent.
Whether declining admission violated the right to education and was discriminatory
No violation; the rejection was lawful. The law prohibits only unfair discrimination, and the respondents' interpretation would itself create negative discrimination.
The court distinguished discrimination from unfair discrimination, relying on Nyarangi v AG and Griggs v Duke Power. The common denominator of KCSE grades applies equally to all applicants; the trial court's interpretation would have discriminated against foreign-trained graduates and was not the legislative intent.
Scope of the Council of Legal Education's duties
The Council regulates legal education at certificate, diploma and degree levels and must ensure compliance with admission requirements at the point of entry, but its regulations cannot override the KSL Act.
The Legal Education Act empowers the Council to make admission regulations and supervise providers, but the KSL Act, an Act of Parliament, sets the admission criteria to the ATP; subsidiary legislation is subordinate and cannot displace the statutory criteria.
Progression in legal education
Only prior learning and experience in law counts as progression; a diploma in law or related course may qualify, but the statutory KCSE requirements must still be met first.
Section 8(3)(c) of the Legal Education Act requires a system recognising prior learning and experience in law. Unrelated qualifications such as aeronautics degrees or interior design diplomas are not progression towards law, and even relevant diplomas cannot displace the primary statutory KCSE requirements.
Legal principles established
#- The KCSE basic requirements under section 16 and the second schedule of the KSL Act apply to all applicants to the ATP, whether their LLB was obtained from a Kenyan or a foreign university; the section must be read as a whole.
- Subsidiary legislation cannot override the provisions of an Act of Parliament.
- Only prior learning and experience in law can constitute progression in legal education; unrelated diplomas or degrees are not progression towards studying law.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the trial court set aside
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Petition No. 20 of 2020 (consolidated with JR Petitions No. 7, 8, 21 & 26 of 2020)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeal from High Court judicial review judgment and decree)
- Consolidated with
- Judicial Review Petitions No. 7, 8, 20, 21 & 26 of 2020
Relief refused
#Respondents' orders of certiorari, prohibition and mandamus compelling admission to the ATP
The trial court's interpretation was erroneous; KSL's decision declining admission was lawful and not a violation of the right to education
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the appeal is allowed, the judgment and decree of the trial court are set aside. Based on the type of litigation, each party will bear their own costs.
For the avoidance of doubt, the basic requirements for KCSE under section 16 and the second schedule of the KSL Act are for both applicants who studied in or out of Kenyan universities.
The section should be read as a whole and not in bits and pieces and the three conditions which are precedent must be met before admission to KSL.
Failure to meet the basic requirements of the qualifications in KCSE as envisaged in the above section renders one’s application incompetent and hence ripe for rejection by the appellant.
We do not think a degree in aeronautics or a diploma in interior design for instance, can be termed as progression towards studying law.
Issues in the judgment
#The court's disjunctive reading of 'or' is stated to require both categories to hold similar qualifications, which is conceptually conjunctive.
The court says the pre-bar exam became optional after the 2014 amendment, yet the quoted amended text makes it a condition under 1(b)(iii).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya School of Law v Akomo & 41 others", Case Analysis (2022). Civil Appeal E472 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1132/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.