Diploma, certificate holders to now access Advocates Training Programme

The Court of Appeal has opened up the Advocates Training Programme (ATP) to diploma and certificate holders who have progressed to law degrees.

Justices Patrick Kiage, Weldon Korir, and Lydiah Achode unanimously ruled that the Legal Education Act—the foundation of the Council for Legal Education (CLE)—is the governing law for training lawyers in Kenya. They determined that the ATP diploma, which leads to admission as an advocate of the High Court, should be accessible to diploma and certificate holders who meet the progression requirements.

CLE provides for educational progression, allowing a certificate or diploma route to legal education. It recognises prior learning, experience in law, and a diploma in law as sufficient qualifications for pursuing a law degree.

Previously, the Kenya School of Law (KSL) relied on Section 16 of the KSL Act to exclude students who were not directly admitted to university for a law degree after meeting the required Kenya Certificate of Secondary Education (KCSE) cut-off mark.

The three-judge bench overturned a High Court ruling by Justice Lawrence Mugambi in a case filed by Stephen Nikita against the Education Cabinet Secretary, the Attorney General, CLE, and KSL.

“It is evident that the Legal Education Act is the framework for legal education and training in Kenya, including the ATP. Consequently, its provisions apply to all legal training in the country, including the ATP. We accordingly set aside the judgment and decree of the High Court and substitute it with an order granting the petition as prayed,” stated the bench, led by Justice Kiage.

At the same time, the judges ended KSL’s monopoly on training advocates, ruling that Justice Mugambi erred by not compelling CLE to draft regulations to liberalise legal education.

“The first and third respondents conceded that the learned judge failed to address whether CLE had neglected or refused to create regulations for licensing legal education providers seeking to offer the ATP,” they stated.

Challenges in Kenya’ legal training

In his petition, Nikita highlighted challenges in Kenya’s legal training system, particularly at KSL. He pointed to the high failure rates in ATP examinations as a significant issue.

He argued that students who fail the ATP are left with two options: retake the failed examinations or request a remark. However, both options come with substantial financial implications, adding to the already high cost of the ATP. Meanwhile, CLE—the body responsible for administering the examinations—benefits financially from these retakes and remarks.

The court also heard that the high failure rates in the ATP raise concerns about the professional competence of Kenyan lawyers and the ability of graduates to deliver quality legal services.

Nikita referenced a task force report by former Attorney General Prof. Githu Muigai, which found that the ATP was experiencing declining standards due to the large number of students in the programme. The report recommended liberalising the ATP to allow other institutions to offer the training.

Despite this, the court heard that CLE had yet to develop the necessary regulatory framework and standards to accredit other legal education providers.

CLE, KSL defend monopoly in legal training

In response, Principal Secretary for University Education and Research, Beatrice Inyangala, acknowledged the existence of a report on liberalising legal education. However, she argued that KSL and CLE fall under the Attorney General’s office, which is responsible for developing the required regulations.

CLE opposed the petition, stating that there was nothing preventing institutions from applying for ATP accreditation.

KSL, on the other hand, urged the court to dismiss the case, arguing that the High Court lacked jurisdiction. It denied claims that its facilities were overwhelmed by student numbers and insisted that Nikita had relied on an outdated report.

The institution told the court that it had continued expanding its capacity by hiring more lecturers, improving physical infrastructure, acquiring more textbooks, enhancing online library resources, and introducing virtual classes. It also cited the establishment of a revolving fund to provide financial aid to needy ATP students.

In a further affidavit, Nikita countered that no other institution could offer the ATP due to the absence of accreditation standards.