Kenya School of Law loses 18-year monopoly for training of advocates as court orders opening up

The Kenya School of Law (KSL) will no longer have exclusive control over the Advocates Training Programme (ATP) following a ruling by the Court of Appeal, which declared its nearly two-decade-long monopoly unconstitutional.

This landmark decision paves the way for universities and other institutions to offer the ATP, a mandatory qualification for individuals seeking admission to the Bar.

On Friday, a panel of judges—Justices Patrick Kiage, Lydia Achode, and Weldon Korir—directed the Council of Legal Education (CLE), the body responsible for overseeing the ATP, to establish and publish regulations that would permit the accreditation of public and private institutions to provide the program.

The ATP serves as a postgraduate diploma that law graduates must complete before they can be admitted as advocates. Those who successfully pass all nine units are listed in the roll of advocates through a notice in the Kenya Gazette.

Prior to the court ruling, the CLE had already indicated in an affidavit, filed in February 2023 while the case was still before the High Court, that a regulatory framework for licensing interested institutions was in place. The Court of Appeal’s verdict now confirms that universities and other learning institutions can compete with KSL in offering ATP courses.

In addition, the judges invalidated Sections 16 and 26 of the Kenya School of Law Act, which had previously given KSL authority over legal education providers. The court clarified that such regulatory oversight should rest solely with the CLE under the Legal Education Act.

Background of the Case

The ruling stemmed from a petition by Stephen Nikita Otinga, who argued that KSL was overwhelmed by the increasing number of law graduates, resulting in inadequate resources and mass failures among ATP candidates. Otinga initially filed his case at the High Court, naming the CLE, the Ministry of Education, and the Attorney-General’s office as respondents, while KSL later joined as an interested party.

The Ministry of Education opposed the petition, asserting that the CLE lacked the authority to regulate the ATP licensing process. However, the CLE countered that learning institutions were free to apply for approval to offer the programme.

Otinga also highlighted the financial strain imposed on students, who often faced high costs for examination remarking and re-sits on top of already steep tuition fees.

KSL’s Defense and Past Investigations

KSL refuted claims of being overwhelmed, maintaining that student failures were a matter of personal effort rather than institutional shortcomings. It further clarified that re-sits and bar exams were managed by the CLE, not KSL.

“Whether a student passes or fails is based on individual ability and performance. Furthermore, those sitting for re-examinations are no longer KSL students, as they are handed over to the CLE for the bar exams,” court documents stated.

The issue of widespread ATP failures has drawn scrutiny from the Law Society of Kenya (LSK) and Parliament in the past. Former students have accused KSL of using its monopoly to impose exorbitant fees for exam remarking and re-sits, making legal education financially burdensome.

With this ruling, a more competitive and diverse legal training environment is expected to emerge, offering aspiring advocates more options and potentially reducing costs.