The Court of Appeal has ended an 18-year monopoly that the Kenya School of Law (KSL) has enjoyed in offering the Advocates Training Programme (ATP), an 18-month course that law graduates must pass to be allowed to represent clients in court.
On Friday, Justices Patrick Kiage, Lydia Achode and Weldon Korir ordered the Council of Legal Education (CLE), which administers the ATP, to develop and publish regulatory framework and standards which would then allow for licensing of other public and private institutions to offer the course.
The ATP is a postgraduate diploma and is mandatory for any lawyer who wants to be admitted to the roll of advocates.
Individuals who pass all nine units in the ATP have their names published in the roll of advocates through a notice in the Kenya Gazette.
In February 2023, when the petition was still at the High Court, the CLE filed an affidavit stating that the regulatory framework for licensing of learning institutions that wish to offer the ATP is already in place.
Justice Weldon Korir.
Photo credit: File | Nation Media Group
This means that the Court of Appeal has cleared the way for public and private institutions like universities to rival the KSL in offering the ATP.
The Court of Appeal judges also declared that sections 16 and 26 of the Kenya School of Law Act unconstitutional.
The two sections gave the KSL authority to regulate legal education providers, which the Appellate judges held is a preserve of the Council of Legal Education.
The judges held that section 8 of the Legal Education gives the CLE authority to regulate all law programmes and institutions in Kenya, hence, the two provisions in the KSL Act were in conflict.
“It is evident that the Legal Education Act is the framework of legal education and training in Kenya, including training in ATP. Consequently, the provisions therein are the ones applicable to all legal training in Kenya including the ATP,” the Court of Appeal judgment reads in part.
The landmark decision follows a petition by Stephen Nikita Otinga, who argued that the increasing number of aspiring lawyers had strained financial and human resources at the KSL, and contributed to the mass failure of ATP students.
Mr Otinga initially sued at the High Court and listed the CLE, Education ministry, and Attorney-General’s office as respondents. The KSL was joined as an interested party.
At the High Court, the Education ministry opposed Mr Otinga’s petition and argued that the CLE does not have authority to develop a regulatory framework for licensing of other institutions to offer the ATP.
The CLE argued that nothing stops learning institutions from applying for licenses to offer the ATP.
“Besides this concern, it is also economically draining to the affected students who have to incur huge financial burden of paying for the remarking and examination retakes over and above the high cost of the Advocate Training Programme at the Kenya School of Law,” Mr Otinga said in his petition.
But the KSL denied being overstretched and argued that its classes have not reached maximum capacity. The school blamed failure on individual students. It added that the re-sits are handled by the CLE.
Lady Justice Lydia Achode .
“…Failing or passing an examination depends on an individual’s excellence and endeavour. Further, those waiting to resit examinations are no longer students of the interested party (KSL) as after their training, they are released to the 3rd respondent (CLE) to sit for the bar examination. That in any event, the petitioner (Mr Otinga) had not provided evidence that the current pass rate is below acceptable standards or that failure is attributable to the training methodology of the interested party,” the court papers state.
The mass failure of students has in the past led to multiple investigations by the Law Society of Kenya (LSK) and Parliament.
Some past students have in their petitions for investigations claimed that the monopoly had turned the KSL into an uncontrollable monster, minting millions from intentionally failing students to charge them for re-marking and re-sitting exams.
Between 2015 and 2018, an average of only 14.7 per cent of students who sat the bar exam at the KSL passed.
The KSL charges Sh15,000 to re-mark a failed exam. It also charges Sh10,000 for each exam that a student re-sits.
This means that in 2018, for example, if all the 1,520 students who failed opted for re-marking, they would have parted with Sh22.8 million. If they all chose to re-sit, they would have paid Sh15.2 million collectively.
In court, the judges were tasked with determining whether the ATP, in the eyes of the law, falls under law programmes. Other law programmes include undergraduate and postgraduate courses.
The Court of Appeal answered in the affirmative, effectively giving the CLE powers to issue licenses to public and private institutions to compete with the ATP.
Currently, the KSL charges Sh5,000 for each of the nine units that students have to undertake.
Opening the course to other institutions could trigger a price war, as some students have in the past complained of the financial strain during their time in the ATP.
Mr Otinga, in his petition, said that the re-sits and re-marking of exams, which the majority of students end up opting for, have placed a financial burden.
“Besides this concern, it is also economically draining to the affected students who have to incur huge financial burden of paying for the remarking and examination retakes over and above the high cost of the Advocate Training Programme at the Kenya School of Law,” Mr Otinga said in his petition.
The units are in civil litigation, criminal litigation, legal writing and drafting, trial advocacy, professional ethics, legal practice management, conveyancing and commercial transactions.
