End of an era: Court ruling paves way for more institutions to offer training for advocates
The decision allows universities and other institutions to offer the course, which is a prerequisite for admission to the Bar.
The Kenya School of Law (KSL) will no longer be the sole provider of the Advocates Training Programme (ATP) after the Court of Appeal ruled that its long-standing 18-year monopoly was unconstitutional.
The decision allows universities and other institutions to offer the course, which is a prerequisite for admission to the Bar.
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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 a regulatory framework and standards that would allow for licensing of other public and private institutions to offer the course.
The ATP is a postgraduate diploma that law graduates must complete to qualify as 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, while the petition was still at the High Court, the CLE filed an affidavit stating that the regulatory framework for licensing learning institutions wishing to offer the ATP was already in place. This means that the Court of Appeal’s ruling now clears the way for public and private universities to compete with KSL in offering the ATP.
The Court of Appeal judges also declared Sections 16 and 26 of the Kenya School of Law Act unconstitutional. The two provisions had given KSL the authority to regulate legal education providers, a role the judges determined should solely belong to the CLE.
“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.
The landmark decision follows a petition by Stephen Nikita Otinga, who argued that the rising number of aspiring lawyers had strained financial and human resources at KSL, leading to mass failure of ATP students. Otinga initially sued at the High Court, listing the CLE, Education Ministry and the Attorney-General’s office as respondents. KSL was later joined as an interested party.
At the High Court, the Education Ministry opposed Otinga’s petition, arguing that the CLE does not have the authority to develop a regulatory framework for licensing institutions to offer the ATP. The CLE, however, countered this argument, stating that there was nothing preventing 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 a huge financial burden of paying for the remarking and examination retakes over and above the high cost of the Advocates Training Programme at the Kenya School of Law,” Otinga said in his petition.
KSL denied claims of being overstretched and insisted that its classes had not reached maximum capacity. It attributed student failures to individual effort rather than institutional shortcomings, adding that re-sits are handled by the CLE.
“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 (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,” read the court papers.
The mass failure of ATP students has previously led to multiple investigations by the Law Society of Kenya (LSK) and Parliament.
High fees
Some former students have claimed that KSL’s monopoly allowed it to exploit students financially through high fees for remarking and re-sitting exams.
Between 2015 and 2018, an average of only 14.7 per cent of students who sat the bar exam at KSL passed.
KSL charges Sh15,000 to re-mark a failed exam and Sh10,000 for each exam a student re-sits.
In 2018, if all 1,520 students who failed opted for re-marking, they would have collectively paid Sh22.8 million. If they all chose to re-sit, the total amount paid would have been Sh15.2 million.
The judges were tasked with determining whether the ATP, in the eyes of the law, falls under legal education programmes, which include undergraduate and postgraduate law courses.
Powers to issue licenses
The Court of Appeal answered in the affirmative, effectively granting the CLE powers to issue licenses to other institutions to offer the ATP. Currently, KSL charges Sh5,000 for each of the nine units that students must undertake.
Opening the ATP to competition from other institutions is expected to introduce pricing flexibility, a move that could benefit students who have previously raised concerns about the high cost of legal training.
The ATP consists of units in civil litigation, criminal litigation, legal writing and drafting, trial advocacy, professional ethics, legal practice management, conveyancing, and commercial transactions.
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