The Court of Appeal held that:
- While the under graduate Programme offered by any accredited institution had to compromise core units, there was no express requirement that a student undertaking the Programme at such institution had to take those units.
- Students enrolling for legal education Programmer at universities or other institutions did so for a variety of reasons. Some might or might not have wished to seek postgraduate admission to the ATP. However, for those who wished to gain admission to the ATP at KSL, the Council, under Regulation 5(2) (a) of the Council of Legal Education (KSL) Regulations, 2009 set relevant qualifying examinations.
- The relevant qualifying examinations had to include the 16 core subjects prescribed for the universities under Paragraph 20 of Part III of the Third Schedule to the Council of Legal Education (Accreditation of Legal Education Institutions) Regulations.
- The 16 identified subjects or units were so central and important that for purposes of regulating standards, an under graduate Programme that did not include those units failed the test of accreditation. The Council could not on the one hand determine certain subjects to be core for purposes of accrediting an institution and at the same time not consider them as core for purposes of qualifying for admission to the advocates training Programme at the School.
- The subsidiary legislation by the Council could have been better framed and structured to make it abundantly clear that a degree from any institution that did not include those units would not be recognized for purposes of admission to advocates training Programme.
- Any ambiguity or lack of clarity however was removed with the enactment of the Legal Education Act, that commenced operation on 28th September 2012 and whose objective was to promote legal education and the maintenance of the highest possible standards in legal education. Section 23 of that Act expressly provided for core degree courses and stipulated that a legal education provider offering a course for the award of a degree in law was to in addition to any other courses offered, provide instruction and examination for each of the core courses set out in Part II of the Second Schedule to that Act.
- While foreign universities and institutions outside Kenya were outside the accreditation jurisdiction of the Council, the requirement that a degree from a foreign university or institution had to contain the core units was not to extend the accreditation jurisdiction of the Council to foreign universities but to avoid different or double standards for local and foreign law degree holders.
- Law degrees earned from foreign universities or institutions had to for purposes of admission to the advocates training Programme at the school, be held against the standards that the council had set out. All applications for admission to the School had to be considered against the same standards set by the Council.
- To exclude the appellant from complying with the fulfillment of the requirement of core subjects was propagating the very discrimination the appellant complained about. She could not be admitted to KSL and be required to study the remaining core subjects there as the school no longer offered them.
Appeal dismissed with each party bearing their own costs of the appeal.
