The High Court has issued an order compelling the Chief Registrar of the Judiciary to admit a lawyer who was barred from practising because of a foreign degree. Why be a lawyer.
Justice Weldon Korir said the lawyer should be admitted for a hearing before Chief Justice David Maraga for admission to the Roll of advocates of the High Court of Kenya.
Naomi Okello, through lawyer Daniel Achach, had sued the Council of Legal Education and the Law Society of Kenya, claiming they acted unfairly by refusing to admit her as an advocate.
She stated that she obtained her law degree from Busiga University and came back to the country for her one-year course at the Kenya School of Law but was rejected.
Naomi moved to Rwanda and was admitted as a Rwandan advocate and a member of the East Africa Law Society.
In a judgment delivered on Monday, Korir declared that subjecting Okello to the provisions of Section 13(1)(b) of the Advocates Act when she qualifies under Section 13(1)(d) amounts to unfair administrative action.
"A declaration is hereby issued that the conduct and decisions by the Council of Legal Education and the LSK are discriminative and infringe on the petitioner’s rights under Articles 27 and 47 of the Constitution," Korir said.
The judge also gave an order quashing the decision by the CLE communicated in a letter dated July 27, 2017, and the decisions by the LSK dated March 10, 17, and May 16 2017.
Attorney lawyer difference
Lawyer Achach urged the court to declare that it was unfair for his client to be subjected to the provisions of Section 13 (1) (b) of the advocates Act when she qualifies to be a lawyer in Kenya.
He said the council’s conduct and decisions were discriminating and infringing on her rights under the Constitution.
"We pray that the court quashes the decisions of the LSK dated March 10,15 and May 16, 2017, which said it was illegal for her to practice in Kenya," Achach said.
Okello sought an order to compel the LSK to clear Okello’s application and forward her name to Chief Justice David Maraga for admission.
She also sought an order compelling the chief registrar of the Judiciary to admit her petition for hearing before the Chief Justice.
Okello stated that she is a Kenyan by birth and a graduate of Busoga University in Uganda, having graduated in 2012 with a Bachelor of Laws.
"I proceeded to enrol with the Institute of Legal Practice and Development in Rwanda and graduated with a post-graduate diploma in legal practice in 2016 and was admitted to the roll of advocates in Rwanda," she said.
On February 2017, pursuant to the Advocates Act, Okello wrote to the LSK seeking admission to the roll of advocates in Kenya. She said that on March 10, 2017, the LSK council deferred her application.
"By a letter dated March 15, 2017, the LSK communicated to the petitioner that the reason for deferring the decision on her admission was pending confirmation with the council on the academic qualification under section 13(b) of the Advocates Act," the affidavit reads.
Achach said Okello was aggrieved with the decision of the LSK and sought review of the decision vide a letter dated April 7, 2017, explaining that her application for admission was under section 13(1)(d) and not section 13(1)(b) of the Advocates Act that the LSK council relied on.
The council and the LSK said Busoga University was not an approved university.
The CLE and the LSK, however, defended themselves by stating that they discharged their statutory function under the Legal Education Act, which provides that one of its functions is to recognise and approve qualifications obtained outside Kenya for purposes of admission to the roll of advocates.
They added that the decision was made within the confines of the law and in effect did not violate Okello's rights.
Justice Korir, however, noted that there was unstated discomfiture concerning the fact that the petitioner may not have qualified to undertake a law degree in Kenya, went to a university not recognised by the CLE.
The meaning of lawyer
He also said Okello obtained admission as an advocate in Rwanda and is now seeking to be admitted to practice law in Kenya.
"This is indeed a big dilemma not only for the respondents but also for the legal profession in general. There may be a need to closely look at this issue and find a way of imposing regulations without prejudicing the objective of the EAST African Community of breaking down legal barriers hampering integration," Justice Korir said.