Requirements for advocates trained in the 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, 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) (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 the 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 become a nullity? 
3. What were 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 - Laying of Statutory Instruments before Parliament

(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 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 Kenyan 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 sections 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 set aside. It was automatically null and void without more ado, though it was sometimes convenient to have the court declare it to be so.

County legislation ought to be published in the Kenya Gazette for it to gain legitimacy.

Brief facts

The County Government of Kiambu (appellant) lodged the instant appeal against the judgment and decree of the High Court in Petition No.52 of 2016 as consolidated with Petition No. 308 of 2015 and Petition No.7 of 2016 that declared section 25(2) of the County Governments Act inconsistent with article 199 (1) of the Constitution. The High Court had declared that section 25(2) of the County Governments Act was inconsistent with article 199 (1) of the Constitution, in so far as the wording used, whichever comes earlier.  The use of the phrase created a scenario where county legislation would come into force on being published in the County Gazette only. If such a publication would precede publication in the Kenya Gazette, it would undermine the intent of article 199 (1) of the Constitution, which provided that county legislation was to only come into effect upon being published in the Gazette (referred to as the Kenya Gazette and not the County Gazette).

The appellants contention was that it did not matter where the proposed County Legislation was published, the one published earlier took effect. The appellant further stated that the phrase whichever comes earlier denoted the urgency of enacting the legislation into law upon publication and not to contravene any law or usurp the operation of the Constitution, and as such the section was not inconsistent with article 199(1) of the Constitution.

Issues

1. Whether county legislation could come into force upon its publication in the County Gazette where the publication in the County Gazette preceded publication in the Kenya Gazette.
2. Whether the County Gazette could supersede the Kenya Gazette.
3. Whether the County Gazette was equivalent to a Kenya Gazette or a supplement of the Kenya Gazette.
4. What was the meaning and implication of the words, whichever comes first, as used in section 25 of the County Government Act?
5. Whether section 25 of the County Government Act that presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette was invalid.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 199 - Publication of county legislation

(1)       County legislation does not take effect unless published in the Gazette.

(2)       National and county legislation may prescribe additional requirements in respect of the publication of county legislation.

Article 260 - Interpretation

In this Constitution, unless the context requires otherwise

Gazette means the Kenya Gazette published by authority of the n ational government, or a supplement to the Kenya Gazette;

County Government Act, Act No. 17 of 2012

 Section 25 - Coming into force of a law

(1)       A legislation passed by the county assembly and assented to by the governor shall be published in the county Gazette and Kenya Gazette within seven days after assent.

(2)       Subject to subsection (3), the county assembly legislation shall come into force on the fourteenth day after its publication in the Kenya Gazette unless the legislation stipulates a different date on, or time at which, it shall come into force.

Held

1. The first appellate courts primary duty was to re-evaluate the evidence on the record in order to come to its own independent conclusion on the evidence and the law, as per rule 29(1)(a) of the Court of Appeal Rules.
2. Article 199(1) of the Constitution provided that county legislation did not take effect unless published in the Gazette. Article 260 defined a Gazette as the Kenya Gazette published by the authority of the National Government or a supplement to the Kenya Gazette. Section 25 (2) of the County Government Act reinforced the position that county legislation ought to be published in both the Kenya Gazette and the County Gazette and that such publication may be done concurrently. The same Section further provided that the legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever came first.
3. It was on the wording 'whichever came first' that the respondents presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette. A County Gazette was a creation of the County Government Act and not the Constitution and could not by any craft of interpretation supersede its publication in the Kenya Gazette. The Constitution explicitly required county legislation to be published in the Kenya Gazette for the same to take effect.
4. A County Gazette was neither a Kenya Gazette nor a supplement to the Kenya Gazette as it departed from the definition of a Kenya Gazette used in article 199 and defined in article 260 of the Constitution. Pursuant to article 199 of the Constitution, section 25 of the County Governments Act was enacted to provide additional requirements with regards to the publication of County Legislation. Any additional requirements contemplated under article 199 should not derogate from the mandatory duty necessitating publication of County Legislation in the Kenya Gazette or its supplement, and no legislation could waive the need for such publication.
5. The provision of section 25 of the County Government Act was that county legislation ought to be published in both the Kenya Gazette and the County Gazette and such publication could be done one after the other. Section 25 provided that the legislation was to come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever came earlier.
6. The wording 'whichever comes earlier under section 25 of the County Government Act presupposed the possibility of county legislation coming into force upon its publication in the County Gazette only where it preceded publication in the Kenya Gazette. Section 25 was a complete derogation from the prerequisite of the Constitution and was invalid to the extent of the words whichever comes first as it envisioned that county legislation could come into effect without being necessarily being published in the Kenya Gazette. The correct position was that county legislation ought to be published in the Kenya Gazette for it to gain legitimacy.