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Kenya: Raising of the Bar

(Feb. 2, 2008) On January 16, 2008, the Nairobi newspaper BUSINESS DAILY reported that Kenya's High Court had issued a judgment refusing 15 law students with degrees from foreign universities the opportunity to retake exams at the Kenya School of Law – the only recognized Kenyan institution to offer the final exams that must be passed to practice law in the country – after they had failed the exam upon two attempts. The ruling, designed to prevent "academic underachievers from graduating from law school and subsequently being admitted to the Bar," means that law-degree holders will not automatically be assured of admission as was formerly the case. (Albert Muriuki, High Court Locks Out Law Students with Weak Marks, BUSINESS DAILY (Nairobi), Jan. 16, 2008, available at
.) It comes at a time when the Council of Legal Education (CLE), the Law Society of Kenya, and the Ministry of Justice and Constitutional Affairs have joined efforts to raise the country's academic and professional standards in the field of law.

A suit had been brought against the CLE by students in February 2004. That January the CLE had informed the students that they were barred from taking any further examinations under the provisions of the Advocates (Admissions) Regulations, 1997. At the time, law graduates had to take exams in eight subjects; the 15 students had passed all but one or two subjects each and asked the High Court to quash the CLE decision and order the CLE to allow them to sit for additional exams. The CLE decision, they contended, was "discriminatory, unfair and unjust" and "harsh, unconscionable and inherently passive and against the principles of natural justice." The CLE, citing the Advocates Act, argued that the petitioners "have not fulfilled the requirements of the Advocates Act, and therefore are not qualified to be Advocates of the High Court of Kenya" and that the Act allows the CLE to require the passing of any examinations it may prescribe. Under the CLE Act, the CLE has the power, with ministerial approval, to issue regulations to give effect to the Advocates Act provisions, and so it duly promulgated the Advocates (Admission) Regulations 1997 through which, the CLE argued before the Court, it exercises general supervision and control over Kenyan legal education. The CLE further argued that the students "had been given the opportunity to sit [the CLE exams] and failed to pass in all the examinable papers at the fourth attempt [the maximum allowable under the Regulations], they are prohibited to any further attempts and cannot be admitted as Advocates of the High Court of Kenya."

In the opinion of the High Court, the CLE, not the courts, is "the best judge of merit pertaining to academic standards" under the mandate and policy prescribed by the CLE Act and the Regulations. Furthermore, Justice [Joseph] Nyama stated, "Parliament clearly vests the power of formulating the policy of training and examining of Advocates on the Council of Legal Education and it would be wrong in the view of this Court to intervene with the merits of the decision by the Council of Legal Education." (Muriuki, id.)