Requirements to be met by advocates trained in commonwealth countries to be eligible for admission to the roll of advocates in Kenya

Brief facts

The appellants averred that the respondent legislated and gazetted the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 (impugned Regulations) which provided that a Kenyan undergoing training in a foreign institution and who had attained professional qualifications for the practice of law had to first practice for 5 years in that country before applying to the respondent for recognition of their professional qualifications. The appellants claimed that the respondent did not have powers to enact the impugned Regulations. The appellants further argued that the respondent commenced implementation of the impugned Regulations prior to adoption by Parliament which was in contravention of sections 6 and 7 of the Statutory Instruments Act.

Aggrieved, the appellants filed a constitutional petition against the respondent in the High Court wherein they sought for, among others: an order of certiorari to quash the impugned Regulations; and an order of mandamus compelling the respondent to recognize and approve the petitioner's professional qualifications for purposes of section 13 of the Advocates Act.

The appellants contended that they were Kenyan citizens and that they held diplomas in legal practice from the only Bar School in Rwanda. It was the appellants case that they applied under section 13 of the Advocates Act, Cap 16, Laws of Kenya (as amended by the Statute Laws Miscellaneous (Amendment) Act 2012) for the respondent to recognize and approve the qualifications they obtained in Rwanda so that they could be admitted to the roll of advocates in Kenya. The appellants claimed that the respondent refused to recognize their qualifications, and instead demanded that in order to qualify for admission, they had to first be admitted to the Bar in Rwanda, and have practiced law in Rwanda for five years, which were conditions precedent for the recognition and approval of their professional qualifications.

The High Court dismissed the petition for want of merit, for among other reasons, that the impugned Regulations having not been enacted had no force of law and in view of the appellants failure to meet the threshold requirements for admission to the roll of advocates in Kenya. The appellants were dissatisfied with the High Courts decision and thus filed the instant appeal.

Issues

1. What were the requirements to be met by advocates trained in commonwealth countries for purposes of admission to the roll of advocates in Kenya?
2. When did a piece of legislation declared unconstitutional by a court became a nullity? 
3. What was the effect of failure to lay the Legal Education (Accreditation and Quality Assurance) Regulations, 2016  before Parliament and the failure of Parliament to adopt the Regulations?

Relevant provisions of the law

Statutory Instrument Act, 2013

Section 11(4)

If a copy of a statutory instrument that is required to be laid before the relevant House of Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void.

Held

1. On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it had never seen or heard the witnesses and should make due allowance in that respect. The responsibility of the court was to rule on the evidence on the record and not to introduce extraneous matters not dealt with by the parties in evidence.
2. The record did not disclose that following gazetting of the impugned Regulations, that they were thereafter laid before Parliament and adopted. Since there was nothing that showed that they were at any time passed into law in accordance with the procedures set out in section 11(4) of the Statutory Instrument Act, 2013 and which shortcoming the appellants had conceded. The impugned Regulations were not adopted by Parliament and as a consequence, did not acquire the force of law. As such, they were inapplicable for want of legality, and therefore could not have been the basis upon which the appellants were denied admission to the roll of advocates.
3. The amended provisions of the Advocates Act by the Statute Laws Miscellaneous (Amendment) Act 2012) expanded to include advocates of the High Court of Rwanda and Burundi as being eligible for admission to the roll of advocates in Kenya. Whereas, prior to the amendment, the only advocates eligible for admission were from Tanzania and Uganda. Though the appellants attended the Bar School in Rwanda, there was nothing indicative of their admission as advocates to the High Court of Rwanda; without such admission, for all intents and purposes, they were ineligible for admission to the roll in Kenya under section 13(1)(d) of the Advocates Act.
4. In the event section 13(1)(d) of the Advocates Act was inapplicable, the appellants could be admitted as advocates in a commonwealth country, Rwanda being one such, but provided they had practiced for 5 years, and been found to be persons of good standing from the relevant professional body in that country, as required by section 13(1)(e) of the Advocates Act. Nothing demonstrated that the appellants were admitted to the High Court of Rwanda or to a commonwealth country, with the effect that they did not qualify for admission to the roll of advocates in Kenya since, the strictures of section 13(1)(e) were also not satisfied.
5. The decision of the instant court in the case of Law Society of Kenya v Attorney General & 2 others, (2019) eKLR nullified the amended sections 12 and 13 of the Advocates Act. In that case, the court found that Parliament in enacting the provisions, overreached its limits by passing substantive amendments in an unprocedural and non-participatory manner through the Statute Law Miscellaneous (Amendment) Act 2012. That decision had not been appealed against or set aside and therefore the unconstitutionality of the amended sections 12 and 13 remained the situation.
6. The amended sections 12 and 13 of the Advocates Act having been declared unconstitutional meant that the law reverted to the position where, only advocates from the High Court of Tanzania and the High Court of Uganda were eligible for admission to the Kenya Bar and, it no longer extended to those from Rwanda and Burundi. Given their Rwandan qualifications, were they to be admitted as advocates in Rwanda, the nullification rendered the appellants ineligible for admission to the roll of advocates in Kenya.
7. It could be argued that the unconstitutionality or not of section 12 and 13 of the Advocates Act would not apply to the circumstances of the instant case as, the decision of the court was rendered after the appellants had filed their petition, and after the High Court had rendered its decision. However, a court having declared a piece of legislation or a section of an Act to be unconstitutional, that Act or law became a nullity from the date of inception or enactment and not from the date of the judgment. But it would not be applicable to actions already crystallised whilst the expunged law was in force. 
8. The judgment in Law Society of Kenya v Attorney General & 2 others, [2019] eKLR declared the amendments to section 12 and 13 of the Advocates Act unconstitutional since they were enacted in contravention of the Constitution prerequisites. Once the sections were declared unconstitutional, the provisions became void from the date of inception of the amendments, which in the instant case was when section 13 was amended in 2012.
9. The decision of the court in Law Society of Kenya v Attorney General & 2 others, (2019) eKLR would not only apply to the instant matter, but would also bind other matters seeking to rely on the impugned provisions, particularly those pending before the courts. The judgment would not affect or nullify admissions of those advocates who were already admitted under the expunged provisions and during the pendency of the case.
10. Even if the respondent had sought to comply with the impugned provisions, the relevant provisions having been struck out and declared unconstitutional, meant that the appellants application grounded on the amended section 13 of the Advocates Act, would have had no legal basis or foundation upon which the respondent could rely to admit them. Were they to do so; they would be in clear contravention of the law.
11. If an Act was void, then it was in law a nullity. It was not only bad but incurably bad. There was no need for an order of the court to setting aside. It was automatically null and void without more ado, though it was sometimes convenient to have the court declare it to be so.