Council of Legal Education v Tusasirwe & 13 others (Civil Appeal 242 of 2017) [2025] KECA 459 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that East African nationals can qualify as Kenyan advocates without first practising in their home countries, and Parliament must urgently fix conflicting statutes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this appeal is moot
- 2.If not moot, what is the proper interpretation of sections 12 and 13 of the Advocates Act, and sections 4 and 16 of the Kenya School of Law Act
- 3.What remedies are available to the parties
Key legal issues
#Mootness - whether the appeal should be determined despite the petitioners having been admitted to the Roll
The appeal is technically moot but the Court exercised its discretion to determine it because the interpretation of sections 12 and 13 remains live and will affect future non-Kenyan applicants
The doctrine of mootness bars courts from deciding academic disputes, but courts retain discretion to hear technically moot matters where an unsettled issue of importance to government operations or future conduct exists. Since the admission of non-Kenyans to the Advocates Training Program and the Roll remains a live question, and the decision will have practical effect on future applicants, it was in the interest of justice to determine the interpretation.
Interpretation of sections 12 and 13 of the Advocates Act
The two sections must be read conjunctively: citizenship of a named country plus satisfaction of one of the five alternative categories of qualification in section 13; no prior admission in the country of origin is required
Section 12 names five countries whose citizens qualify, subject to section 13 qualifications. A disjunctive reading would produce the absurdity of automatic admission on nationality alone. Section 13 sets out five distinct, alternative categories, including admission as advocates of the High Courts of Uganda, Rwanda, Burundi or Tanzania, or of a Commonwealth superior court with five years' practice. Nothing in the Act requires prior admission in the applicant's country of origin.
Relationship between the Advocates Act and sections 4 and 16 of the Kenya School of Law Act
There is a disconnect between the two statutes: literal application of the Second Schedule to the Kenya School of Law Act would nullify sections 12 and 13 of the Advocates Act; legislative intervention is needed
The Second Schedule's qualifications for admission to the Advocates Training Programme are minimalist compared to those for admission to the Roll. Strict literal application of the Schedule would void, constrict or emasculate sections 12 and 13 of the Advocates Act, which the Court could not countenance. The Court flagged the inconsistency for urgent legislative attention rather than resolving it judicially.
Whether applying section 12 to South Sudan, not named therein, erred in law
The Court declined to interfere: section 12 was enacted to discharge Kenya's obligations under the EAC Treaty, and South Sudan is a partner state; Kenya is not fully compliant until all partner states are accommodated
The rationale behind section 12 is treaty compliance, as shown by the 2002 and 2012 amendments following accession of partner states. Under article 2(6) of the Constitution, ratified treaties form part of Kenyan law. A purposive interpretation is legitimate to avoid violation of international obligations. South Sudan acceded in 2016 and is a partner state, so its omission from section 12 reflects a compliance gap, not an eligibility bar.
Whether giving effect to sections 12 and 13 undermines Kenya's sovereignty
No: the provisions were enacted by Kenya's Parliament in exercise of sovereign power, and entering treaties is an attribute of sovereignty that involves agreed restrictions on its exercise
Sections 12 and 13 were enacted by the Kenyan Parliament pursuant to Kenya's ratification of the Treaty. International law recognises that when a state accepts treaty obligations, it agrees to exercise its sovereignty in a particular way. An act done in exercise of sovereign power cannot undermine the sovereignty of the same state.
Legal principles established
#- Sections 12 and 13 of the Advocates Act must be read conjunctively: an applicant must be a national of one of the countries named in section 12 AND satisfy one of the alternative qualifications in section 13; nationality alone does not confer admission
- A non-Kenyan national from a country named in section 12 (or a partner state to the EAC Treaty) is not required to first qualify as an advocate in their country of origin; section 13 sets out five distinct, alternative categories of qualification
- Section 12's rationale is Kenya's compliance with the EAC Treaty; courts may adopt a purposive interpretation to give effect to treaty obligations, and partner states not named in section 12 (such as South Sudan) may benefit from it
- A state may require nationals of other partner states to satisfy the same or equivalent qualifications as Kenyan nationals, provided the conditions are non-discriminatory and consistent with treaty obligations
- A court may exercise discretion to determine a technically moot matter where an unsettled legal question of practical importance to future applicants and government operations remains
Court orders
#- 1.The appeal was dismissed in the sense that the Court was 'not persuaded that the High Court erred in its interpretation of sections 12 and 13 of the Advocates Act'
- 2.The Court declined to interfere with the High Court's decision regarding admission of applicants from South Sudan, a partner state to the Treaty not named in section 12
- 3.The Court noted the disconnect between the Advocates Act and the Kenya School of Law Act and urged urgent legislative intervention to make the two statutes consistent
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No 505 of 2016 and Petition No 509 of 2016 (consolidated)
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court (not stated in the judgment as an Article 163(4) appeal); the appeal challenges the High Court's interpretation of the Advocates Act
- Consolidated with
- Petition No 509 of 2016 (consolidated with Petition No 505 of 2016 by the High Court on December 20, 2016)
Relief refused
#Appellant's contention that non-citizens must first qualify as advocates in their countries of origin before admission in Kenya
Sections 12 and 13 create distinct alternative avenues; there is no requirement of prior admission in the country of origin
Appellant's contention that including South Sudan among eligible countries erred in law
South Sudan is a partner state to the Treaty, which is the rationale behind section 12
Setting aside the High Court judgment
The Court found no error in the High Court's interpretation
Costs
We direct each party to bear their own costs. It is so ordered.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As regards costs, from the nature of this appeal, the obvious public, national and regional interest involved, we direct each party to bear their own costs. It is so ordered.
Ultimately, to the limited extent that we have engaged with this appeal in so far as it is not caught by the doctrine of mootness, we are not persuaded that the High Court erred in its interpretation of sections 12 and 13 of the Advocates Act, as they now stand.
Section 12 and 13 must be read conjunctively.
From our analysis of sections 12 and 13 of the Act, we agree with the High Court that there is nothing in the Act that required the petitioners to be first admitted as advocates in their nations of origin.
we are satisfied that the decision of this court will have practical efiect on future non-Kenyan applicants, and that it is a fit and proper matter to exercise discretion and determine notwithstanding the fact that the dispute between the parties is otherwise technically moot.
Urgent legislative intervention is necessary to make the two statutes consistent, and if need be, to require in precise and clear terms that East African Community nationals seeking admission to the roll of advocates of the High Court of Kenya should meet tabulated or specified qualifications required of Kenya nationals or their equivalent.
Issues in the judgment
#The judgment states the Court 'agree[s] with the High Court' on the interpretation of sections 12 and 13, yet the High Court had held the two provisions create 'two avenues' for persons from the named countries, which arguably sits in tension with the Court's holding that the provisions 'must be read conjunctively' - the difference is elided rather than expressly reconciled
The judgment records the trial court's order as of December 20, 2016 but also states that a replying affidavit of the appellant was sworn on November 25, 2017 and heard thereafter; the chronology as printed is internally consistent but the consolidation order date precedes some pleadings, which readers should verify against the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Council of Legal Education v Tusasirwe & 13 others (Civil Appeal 242 of 2017) [2025] KECA 459 (KLR)", Case Analysis (2025). Court of Appeal, Nairobi (Civil Appeal) - number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/459/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.