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Macharia Kaguru
Right to Legal Representation in Criminal Proceedings in Kenya: A Case for With

Prejudice Appeals in the Court of Appeal.

Abstract

“The noble idea of a fair trial before impartial tribunals in which every defendant stands equal

before the law, cannot be realized if the poor man charged with a crime has to face his accuser

without a lawyer” (Gideon v. Wainwright, 372 U.S. 335)

This paper discusses the importance and development of the right to legal representation in

Kenya. It also analyses the provisions of the right to legal representation in the Constitution of

Kenya 2010 and the Legal Aid Act 2016. After demonstrating that the right to legal

representation is adequately provided for in Kenya, it will make a case for with prejudice appeal

in the Court of Appeal from the High Court while acting as a trial court and recommend that

without prejudice appeals in the aforementioned Court should be abolished.

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INTRODUCTION

1
Legal aid in the ancient times was viewed as a charity . The responsibility of providing legal

assistance to the poor was left to private lawyers, religious and charity institutions when it did
2
not involve judicial proceedings . Inadequate legal assistance was inextricably connected to

3 4
poverty .The emergence of the welfare state in France , where poverty eradication was a

collective social responsibility rather than individual concern shifted the responsibility of poverty
eradication to the state. Social exclusion was to be defeated through solidarity in provision of

social welfare in health, education and legal assistance to promote access to justice. Legal
5
assistance to the poor was vital to realization of equality . The gains of the newly founded

6 7
welfare state were not for the few but for all . The poor man’s lawyer doctrine shifted from

sympathizers of the poor to state responsibility. Rawls argued that to achieve justice in a welfare

state, public offices including the judiciary must be open to everyone under conditions of
8
fairness and equality of opportunity . Legal representation is one such way of achieving equality

in a criminal trial.

1
Cappelletti, Mauro, and James Gordley, "Legal Aid: Modern Themes and Variations Part One: The Emergence of
a Modern Theme." Stanford Law Review (1972): 347-386.
2
Ibid.
3
Hilary Silver, Social Exclusion and Social Solidarity, Three Paradigms, International Labour Review,Volume,
133, 1994: 537.
4
Catherine Fwangchi, Access to Justice and Legal Aid: Human Rights Approach, L.L.M Thesis, Central European
University, 2010.
5
Supra note 3.
6
Tamara Goriely, Rushcliffe, Fifty Years on : The changing Role Civil Legal Aid Within the Welfare State, Journal
of Law and Society, Volume 21, No.4 (December 1994):546.
7
Diana Leat,The Rise and Role of the Poor Man‟s Lawyer, British Journal of Law and Society, Vol.2, 1975.
8
Rawls John, A Theory of Justice, Harvard University Press, 2009.

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IMPORTANCE OF LEGAL REPRESENTATION IN CRIMINAL PROCEEDINGS

9 10 11
In a criminal trial, the accused risks deprivation of liberty , property or life (hereinafter
12
referred as the trio). Mill viewed liberty as the most important right a state should never
13
encroach. Locke perceived protection of property as the main reason why a citizen enters into

social contract with the state. Natural law theory believed in sanctity of life. The proponents of
this theory argue that life should not be taken away from an individual, only a supreme being,
14
who grants life, should confiscate it. However, through law the society has limited these
15
rights but since they are at the heart of an individual’s survival, they should not be arbitrarily

taken away. Due to the technical nature of criminal proceedings, even the brightest scientist is
highly unlikely to succeed without legal representation in complex cases. In the words of Lord
Denning:

“It is not every man who has the ability to defend himself on his own. He cannot bring out

the points in his own favor or the weakness in the other side. He may be tongue-tied,

nervous, confused or wanting in intelligence. He cannot examine or cross-examine

witnesses. We see it every day. A magistrate says to a man: „you can ask any questions

you like;‟ whereupon the man immediately starts to make a speech. If justice is to be

9
Section 24 of the Penal Code, Laws of Kenya, Chapter 63
10
Ibid.
11
Some offenses are punishable by death mostly in Capital offenses for instance Section 203 as read together
with Section 204 of Penal Code Laws of Kenya CAP 63.
12
Mill, John Stuart, On Liberty. Longmans,Green, Reader and Dyer, 1869.
13
Locke, John,Peter Laslett. Locke: Second Treatise of Government Student edition,Cambridge University
Press, 1988.
14
The theory propounds that the law of man should accord to natural law. Any law that is inconsistent with
natural law is not law.
15
Article 24 of the Constitution of Kenya 2010

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done, he ought to have the help of someone to speak for him; and who better than a
16
lawyer who has been trained for the task?”

The importance of legal representation cannot therefore be underestimated. Kenya has an

adversarial system where the judge is an umpire; to ensure rules of procedure are followed not to
17
aid any party . The layman suffers from the limited understanding of law and since the judge

cannot aid him, he risks loss of the trio. The African Commission on Human and People’s Rights

further buttressed the importance of legal representation in 1999, thus:

“The right to equal treatment by a jurisdiction, especially in criminal matters, means in

the first place that both the defense and the Public Prosecutor shall have equal
18
opportunity to prepare and present the pleas and indictment during the trial.”

19
In a fair criminal trial, the defense and the prosecution must argue their cases at equal footing .

Equal footing must include legal knowledge, expertise and resources. Justice must not only be
20
done; it must seem to be done . It is not enough to say a court process is being conducted in a

fair manner, we must see the fairness being done.

21
Further, an advocate is an officer of the court . He therefore assists the court in administration
22
of justice . He not only advocates rights of his clients but also acts in the interests of justice. He

also saves court time as the judge does not have to remind the accused at each stage the rules of
16
Pett v. Greyhound Racing Association Ltd [1968] 2 W.L.R. 1471.
17
David Macharia vs Republic [2011] eKLR.
18
Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) / Burundi, 231/99
19
Supra Note 17.
20
R vs Sussex Justices, ex parte McCarthy ([1924] 1 KB 256.
21
The Trial Chamber I of the Special Court for Sierra Leone ,Prosecution v. Sam Hinga Norman, Moinina Fofanah
and Alieu Kondowa, Case No. SCSL-04-14-T.
22
Ibid.

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23
evidence and basic rules of conduct in a criminal trial . Representation is therefore an essential

component of a right to a fair trial.

HISTORICAL DEVELOPMENT OF RIGHT TO THE LEGAL REPRESENATION IN

KENYA SINCE INDEPENDENCE.

24
Independent Constitution

The Independence Constitution, in Chapter two outlined the basic human rights and fundamental

freedoms. In Section 20 (2), it stated that the accused had the right to defend himself before the

court either in person or through a legal representative of his own choice. Further, that the

accused had the right to be afforded facilities to cross examine witnesses in person or through a

lawyer. The provision was plausible to the extent that the accused could choose who to represent
25
him . The state was not however, under the obligation to provide legal representation to

26
accused persons . The prosecution, with all the state resources and machinery could easily sail

through a case securing a conviction.

27
In 1963, Kenya declared war against poverty, disease and illiteracy. It was ironical that a state

having admitted that diseases, illiteracy and poverty were rampant amongst its citizens expected

23
Supra note 21.
24
Constitution of Kenya 1963.
25
Anneli Soo, An Individual‟s ; Right To Effective Assistance of Counsel versus the Independence of the
Counsel: What can The Estonian Courts Do In Case Of Ineffective Assistance Of The Counsel In Criminal
Proceedings? , Juridica Law Review.University of Tartu (1632): 252-263.
26
Section 20(14) stated that Section 20 (2)(d) was not to be construed as entitling a person to legal representation
at public expense.
27
Chege J, Adung’o K.S, Wairimu E. W, Njoroge L, Education and Poverty Alleviation in Kenya: Interrogating
the Missing Link, International Journal of Humanities and Social Science Vol. 5, No. 1; January, 2015.

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the same citizens who could not afford defense lawyers, to defend themselves given the
28
technicality of criminal proceedings .

1969 Constitution

The 1969 Constitution maintained the same position. Section 77 guaranteed the accused person

the right to defend himself before a court in person or through a legal representative of his own
29
choice. Illiteracy was however still a barrier to access to justice . When dictatorship started

taking shape, the right to legal representation was further informally curtailed by the

government. In cases where the accused persons were considered anti-government, lawyers who
30
dared provide them with legal representation in court were mistreated . Some would be falsely

31 32
accused of crimes in a bid to pressurize them to drop the cases . The state again was under no

duty to provide the accused person with legal representation, however grave and serious the

offenses were. Later, it was made a policy that in murder cases before the High Court, the
33
accused would be provided legal representation.

28
Lawson, John Davison, Technicalities in Procedure, Civil and Criminal.Journal of the American Institute
of Criminal Law and Criminology 1, no. 1 (1910): 63-85.

29
Danish Institute for Human Rights, Access to Justice and Legal Aid in East Africa, Dec 2011.
30
Wamwere, Koigi, I refuse to die: My journey for freedom, Seven Stories Press, 2011.

31
Adar, Korwa G., and Isaac M. Munyae. "Human Rights Abuse in Kenya under Daniel Arap Moi, 1978." African
Studies Quarterly 5, no. 1 (20) 2001.
32
Section 77 (14) Reiterated the same position as the independence Constitution at Section 20(14)
33
Kibwana, Kivutha, Fundamental Rights and Freedoms in Kenya,Oxford University Press, 1990: 56-57.

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Non-Governmental Organizations, Civil Societies and Law Society of Kenya

34
After the establishment of the University of Nairobi Law Faculty , young lawyers started

providing legal aid and assistance to the poor in criminal matters. In 1973, two years after the
35
establishment of the Law Faculty, Kituo Cha Sheria was founded by young lawyers who were
36
willing to provide legal representation for free (pro bono) to the marginalized and the poor .

The emergence of civil societies and Non-Governmental Organizations that provided free legal

representation in Court relieved majority of the political detainees and accused persons who were

considered anti-government. It is however notable that the environment for the civil societies
37
was unfavorable . This posed a challenge to legal representation in courts for the poor and those

considered anti-government.

The Law Society of Kenya also at this time started encouraging its members to provide pro-bono

services to members of the public in criminal matters. This was a boost to the criminal justice
38
system .

39
The clamor for a new Constitution started after the introduction of multiparty democracy . The
40
Bill of Rights was at the centre of the need for change and the right to legal representation for
41
the poor and indigent persons was vigorously advocated for by the civil society groups .

rd,
34 The University of Nairobi, School of Law history available at law-school.uonbi.ac.ke accessed on 3
September 2016 at 12:30 am.
35
Organisational Study Kituo Cha Sheria Ripoca Project available at www.jus.uio.no/smr/.../
th
Kenya_Org_study_Kituo_cha_Sheria accessed on 24 ,August 2016 at 9:00 am.
36
Ibdi
37
Supra Note 31.
38
Latham & Watkins LLP, A Survey of Pro bono Practices and Opportunities in 71 Jurisdictions, For Probono
Institute, 2012.

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Children Act
42
In 2001, Children Act was enacted. In Section 186 it provides that every child accused of

infringing any law in Kenya, has a right to obtain legal assistance provided by the government to

assist in the preparation and presentation of his defense where the child is unable to obtain legal

assistance on his own. This was a milestone provision. The implementation of this provision,

however, remained challenging since there was no legal or policy framework to guide the
43
securing of legal assistance .

Bomas Draft Constitution

The Bomas Draft Constitution of Kenya 2004 (Bomas Draft) was the first document that
44
attempted to provide sufficiently for the right of the accused to be represented in court . Under

Article 74 of the Draft, the accused had the right to choose and to be represented by an advocate

and to be informed of that right promptly by the court. The welfare state model of France started

to take shape in Kenya. In Article 74, it provided that the accused had the right to be assigned

with an advocate by the state and at the state’s expense , if substantial injustice would otherwise

result and to be informed of that right promptly. The state was to be under an obligation to offer

legal representation to the accused person and to inform him of that right. This was the most

39
Section 2A of the 1969 Constitution was amended in 1992. The provision provided a single party system. Its
ammedment introduced multiparty democracy.
40
Koki Muli ,The Draft Constitution Of Kenya 2004 (Bomas Draft): Reflections and Commentary on Issues of
Content and Process, Institute for Education in Democracy.2005
41
Civil Societies Taking these Rights Seriously: Civil Society Organizations‟ Parallel Report to the Initial State
Report of the Republic of Kenya on the implementation of the International Convention on Economic, Social and
Cultural Rights October 2008.
42
No. 8, Laws of Kenya.
43
Final Report of the Task Force on Judicial Reforms in Kenya,2010.
44
Supra note 40.

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progressive Bill of Rights that Kenya would have had. However, in 2005, through a referendum,
45
the Draft Constitution was shot down and was never to be .

National Legal Aid (and Awareness) Programme

46
In November 2007, the National Legal Aid (and Awareness) Steering Committee was

appointed. Its functions were to monitor, coordinate and provide policy guidelines on the

National Legal Aid (and Awareness) Programme. Though the Programme was not to result to

representation in court, its impact cannot be underrated. The government had shown its

commitment in ensuring that the poor and the marginalized had access to justice.

Task Force on Judicial Reforms

47
In 2009, a task force was appointed to investigate and make recommendations on possible

judicial reforms to reinstate confidence in members of the public in the judicial system. In 2010,

a Report on Judicial Reforms proposed a policy that there be established a legislation on Legal
48
Aid on cases that amounted to public interest litigation .

Constitution of Kenya 2010

49
In August 2010, the promulgation of the Constitution of Kenya 2010 breathed life in many

sectors of governance. It overhauled every sector of governance. It contains one of the most
50
progressive Bill of Rights in Africa.

45
Kimenyi, Mwangi S., and William F. Shughart II. "The political economy of constitutional choice: a study of the
2005 Kenyan constitutional referendum." Constitutional Political Economy 21, no. 1 (2010): 1-27.
46
Kenya Gazette, Legal notice 11598/ 2007.
47
Irene Ndungu,Cautious Optimism over Judicial Reforms in Kenya, Institute for Security Studies, 2012.
48
Supra note 43.See also Mbote, Migai: Justice Sector and the Rule of Law, The Open Society Initiative for
Eastern Africa, 2011.
49
Kenya Constitution of Kenya 2010 was the culmination of over two decade struggle for a new Constitution

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The right to a fair trial is enshrined in Article of 50 of the Constitution. It is the pillar in the
51
criminal justice system of any modern state . While Article 24 of the Constitution envisages

limitation of rights and fundamental freedoms, Article 25 lists rights and fundamental freedoms

that cannot be limited. They include inter alia the right to a fair trial. Further, under Article 255,

to amend any Article in the Bill of Rights, a referendum would have to be conducted. This

demonstrates how dear the people of Kenya hold the right to fair trial since first, it cannot be

limited and secondly to amend its provision a referendum would have to be conducted.

Article 50 (2) states:

Every accused person has the right to a fair trial, which includes the right-

(g) to choose, and be represented by, an advocate, and to be informed of this

right promptly;

(h) to have an advocate assigned to the accused person by the State and at the State‟s

expense, if substantial injustice would otherwise result, and to be informed of this right
52
promptly. (Emphasis added)
53
This provision is central to criminal justice system in major legal criminal systems. The

accused person has the right to choose an advocate to represent him in court. The Court is also

under a duty to inform the accused person of the right to be represented by advocate of his

choice. Legal illiteracy is still rampant among Kenyans and it cannot be assumed that every

person knows about the Bill of rights. Although there is continued public awareness of the Bill of

50
Cornelia Glinz, Kenya's New Constitution, Konrad-Adenauer-Stiftun ,2014.
51
Powell Jr, Lewis F. "The Right to a Fair Trial." American Bar Association Journal (1965): 534-538.
52
Article 50(h) of the Constitution of Kenya 2010
53 th
See the 6 Amendment to The United States of America Constitution

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54
rights by various stakeholders, Kenyans are still not sufficiently aware of their rights . The

court therefore is obligated to inform the accused person about his right to be represented by an
advocate of his choice immediately he appears before the court. It is a rule of procedure and
55
therefore failure to inform the accused renders the subsequent trial a nullity .

56
It can be sufficiently argued that Kenya is now a welfare state . The Constitution guarantees the

right to be represented by an advocate at the state’s expense. The provision is a paradigm shift

from the previous Constitution where the state was under no obligation to provide legal

representation to the accused persons. It has been argued that though it appears to be a civil
57
political right, it has a color of social economic rights . Civil and Political rights guarantee

citizens liberty and respect of the person and exercise of democratic rights. They are viewed as a

generation of rights that prohibits the state from interfering with the dignity and liberty of a
58
person . They are implementable immediately. Unlike civil and political rights, social and

economic rights require the state to provide. They place an obligation on a state to fund and

support the people in realization of the rights. Although once the minimum content of social

54
Henry Owino ,Kenya‟s insecurity caused by ignorance and new found natural resources, available at
http://kw.awcfs.org/article/kenyas-insecurity-caused-by-ignorance-and-new-found-natural-resources/ accessed on
nd
22 , August 2016 at 11:53 pm.
55
Supra note 17, David Macharia v. Republic [2011] eKLR.
56
It is a state where the government undertakes to provide social services to the poor, See also Article 43 of the
Constitution of Kenya 2010 on Social Economic Rights.
57 Inter-American Commission on Human Rights: Access To Justice As A Guarantee Of Economic, Social And
Cultural Rights. A Review of the Standards adopted by the Inter American System of Human Rights, available at
nd
https://www.cidh.oas.org/countryrep/AccesoDESC07eng/Accesodesci-ii.eng.htm accessed on 22 , August 2016 at
11:55 pm.
58
Howard, Rhoda. "The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil and Political Rights?
Evidence from Sub-Saharan Africa." Human Rights Quarterly 5, no. 4 (1983): 467-490.

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economic right is arrived at, no state can go below the minimum provision, they require
59
progressive realization .

The right is however not absolute. It is only available where substantial injustice would
60
otherwise result if the accused is unrepresented. Unfortunately, the Constitution neither

defines substantial injustice nor does it give guidelines of determining what substantial injustice

entails. This is a limitation to this right and therefore courts and/or any person interpreting the

phrase must do so cautiously lest the right be rendered meaningless.

Going through the gate: “Where substantial injustice would otherwise result”

The Court of Appeal of Kenya has had the privilege to pronounce itself on the interpretation of
61
the above phrase. In David Macharia Njoroge Vs Republic the court held:

“Article 50 sets out a right to a fair hearing, which includes the right of an accused

person to have an advocate if it is in the interests of ensuring justice. This varies with the

repealed law by ensuring that any accused person, regardless of the gravity of their

crime may receive a court appointed lawyer if the situation requires it. Such cases may

be those involving complex issues of fact or law; where the accused is unable to

effectively conduct his or her own defense owing to disabilities or language difficulties or

simply where the public interest requires that some form of legal aid be given to the

accused because of the nature of the offence. (Emphasis added).

The court continued:

59
Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997
(12) BCLR 1696 (27 November 1997)

60
Supra note 17.
61
Ibid.

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“We are of the considered view that in addition to situations where “substantial injustice

would otherwise result”, persons accused of capital offences where the penalty is loss of

life have the right to legal representation at state expense” (Emphasis added).

It is arguable that the Court of Appeal extended the right by including capital offences where the

penalty is loss of life. By including the phrase, the drafters of the Constitution must have

intended that cases be determined on case by case bases, rather than listing the classes of cases

that would be included. In Mill’s view, one should not be deprived of liberty even for one
62
minute .

The High Court adopted the above decision in John Sakwa vs Director of Public Prosecutions

& 2 others but observed at paragraph 39 :-

“The Court of Appeal thus expanded the constitutional requirement that legal

representation be provided at state expense in cases where „substantial injustice might

otherwise result‟ to include all situations where an accused person is charged with an

offence whose penalty is death. The implication of this, in my view, would be that not just

the indigent on whose behalf this petition is brought, but all persons, regardless of their

economic circumstances, would be entitled, as of right, to legal representation at state

63
expense if they are charged with an offence whose penalty is death.”

64
South African Courts have also interpreted a provision in the South African Constitution
65
containing similar provisions. In S v. Khanyile & Another Judge Didcott while interpreting

“substantial injustice would otherwise result” first ruled out cases that would not fall into this
category. He stated:

62
Supra note 12.
63
John Swaka v The Director of Public Prosecutions & 2 others [2013]eKLR.
64
Constitution Act (200 of 1993), section 25(3)(e).
65
1988 (3) SA 795., The Constitution of South Africa

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"those so petty that the average person involved in them who was able to afford a lawyer

would in all probability seek none"

The judge then outlined factors in determining those other cases that fitted in the “substantial

injustice would otherwise result” category. He enumerated them as

a) The legal and factual complexity of the case;

b) The accused ability to defend himself/herself;

c) The gravity of the charge; and

d) The consequence of the offence.

66
The International Convention on Civil and Political Rights uses the phrase “where the interest

of justice so requires” as the determining factor whether the accused has the right to legal
67
representation in a certain case at state expense. The United Nations Human Rights Committee

(hereinafter the Committee) in Robinson v Jamaica decided on 30 March 1989 stated:

“noting that article 14 (3) (d) stipulates that everyone shall have 'legal assistance

assigned to him, in any case where the interests of justice so require', believes that it is

axiomatic that legal assistance be available in capital cases. This is so even if the

unavailability of private counsel is to some degree attributable to the author himself, and

even if the provision of legal assistance would entail an adjournment of proceedings . . .

68
the absence of counsel constituted unfair trial.

The Committee when interpreting “interests of justice” considers the severity of the charge and
69
the complexity of the case in making the determination. In O.F. vs. Norway , the Committee

66
Article 14(3)(b).
67
It is the body mandated to oversee implementation of rights in states that are members of United Nations.
68
Communication No. 223/1987,UN. Doc. CCPR/C/35/C/D/223/1987 (1987)
69
Communication No. 158/1983)

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held that in a case where the accused is charged with a minor offence whose punishment is a
70
fine, the accused would not require state funded legal representation.

71
The African Commission on Human and Peoples Right (the Commission) drafted Guidelines
72
on Fair Trial and Legal Assistance. It has listed the seriousness of the offence, severity of the

sentence and capital sentences as factors relevant considering while determining the cases that
fall under “ in the interest of justice” realm.

73
It is unfortunate that the Legal Aid Act does not define “substantial injustice”. The Act will be

analyzed later in this work. From the decisions of the Courts, the Commission and the

Committee communications, there are salient factors that emerge which are to be considered

when determining what “substantial injustice would otherwise result”. They are:

 Legal complexity ;

 Factual complexity;

 Where the accused cannot conduct his defense properly due to disability of any kind;

 Gravity of the charge;

 The consequence of the offence ( severity of the offence) ;

 Capital offences where the accused is not economically empowered;

 Economic ability of the accused to afford legal services; and

 Any other case that public interest requires some form of legal assistance be availed.

70
However fines are relative, some are high and others low
71
Established under African Charter on Human and People’s Rights( Banjul Charter)
72
The African Commission on Human and Peoples’ Rights Resolution on the Right to Fair Trial and Legal Aid
in Africa meeting at its 26th Ordinary Session, held in Kigali, Rwanda, from 1-15 November 1999.
73
No. 6 of 2016, Laws of Kenya.

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It is up to the institutions bestowed with the mandate of availing legal representation at the

state’s expense to faithfully interpret this provision in good faith and in line with the spirit of the

Constitution.

Legal Aid Act 2016.

74
After heated debate, consultation and heavy lobbying , The Act was enacted and became

operational in May 2016. The Act is to gives effect to Articles 19 (2), 48, 50 (2) (g) and (h) of

the Constitution. It will also facilitate access to justice, establish the National Legal Aid Service

[a body that will succeed National Legal Aid (and Awareness) Programme] and provide for legal

aid and for the funding of legal aid.

The objects of the Act are to facilitate provision of affordable, accessible, sustainable, credible

and accountable legal aid services to indigent persons in Kenya. Further, it is to provide a legal

aid scheme to assist indigent persons to access legal aid, to promote legal awareness, supporting

community legal services by funding justice advisory centers, education, research and promotion

of alternative dispute resolution methods that enhance access to justice in accordance with the
75
Constitution .

The Act defines legal aid to include legal representation. An indigent person is defined as a
76
person who cannot afford to pay for legal services.
77
The Act establishes the National Legal Aid Service which is the institution responsible for the

implementation of the Act. It has functions; among others; to facilitate the representation of

persons granted legal aid under the Act and to assign legal aid providers to persons granted legal

74
The Legal Aid Bill had been pending since 2013.
75
Article 159(2) of the Constitution of Kenya 2010.
76
Section 2.
77
Section 5.

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78 79
aid under the Act . The Service must make its decisions independently . The Act obligates the

Service in performance of its functions to observe values and principles in Article10 and 232 of

the Constitution being impartiality, gender equality and gender equity, inclusiveness, non-
80
discrimination, protection of the marginalized groups and rules of natural justice .

Section 29 establishes the Legal Aid Fund whose sources include money allocated by

Parliament, grants, gifts, donations, loans or other endowments given to the Service, funds as

may vest in or accrue to the Service in the course of the exercise of its powers or the

performance of its functions under the Act and moneys from any other lawful source accruing to

the Fund. The Fund is to be used to defray the expenses incurred in the representation of persons

granted legal aid, pay the remuneration of legal aid providers and meet the expenses incurred by

legal aid providers for their providing services among others.

The Service is obligated to provide legal aid in civil matters, criminal, children, constitutional,
81
public interest cases and any other type of cases the Service may determine . In so doing, the

Service is required to determine the needs of the indigent person and priorities in areas of law.

The legal aid services provided by the Service shall in no way prejudice the relationship between
82
the aided person and the legal aid provider . This extends to confidentiality, due diligence, duty

of care and best interests of the aided persons.

Any citizen, child , refugee, victim of human trafficking , internally displaced person and a

stateless person are all eligible to be provided with legal aid by the Service provided they are
83
indigent and resident in Kenya .The service must at all times consider the financial ability of

78
Section 7.
79
Section 23.
80
Section 4.
81
Section 35.
82
Section 35 (5)( b).
83
Section 36.

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the person applying for legal aid. In addition, the Service should only provide the services if the

cost of the proceedings is justifiable in the light of the expected benefits. Further, whether

resources are available to meet the cost of the legal aid services sought and if it is appropriate to

offer the services having regard to the present and future demands. Additionally, the Service

should consider the nature, seriousness and importance of the proceedings to the individual to

justify such expense, whether the conduct of the person warrants such assistance, whether the

proceedings relate to a matter that is of public interest, whether the proceedings are likely to

occasion the loss of any right or the person may suffer damages , whether the proceedings may

involve expert cross-examination of witnesses or other complexity , whether it is in the interest

of a third party that the person be represented and finally whether denial of legal aid would result
84
in substantial injustice to the applicant . The application may be made by the indigent person or

through an authorized person.

In the cases where the applicant is in lawful custody, the officer-in-charge of a prison, police
85
station, remand home for children or other place of lawful custody is required to inform the

person in custody of the right to apply to the Service for legal representation in a language that

he understands and once an application is made, forward the application to the Service. Where

the accused is unrepresented and substantial injustice would result, Section 43 obligates the
86
Court to inform the accused of the right to be represented and to order the Service to provide

87
the legal aid .

84
Supra note 83
85
Section 42
86
Section 43
87
Ibid

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The Service is required in mandatory terms to provide legal services to persons charged with
88
offences punishable by death subject to eligibility criteria stated above and cases where

children offenders are involved. Lack of provision of legal representation cannot however be a
89
bar to continuance of cases .

The aided person’s legal representation comes to an end if there is increase in economic power or

capital that may affect the eligibility of the person. The Service cannot withdraw the legal aid

without a reasonable notice detailing reasons for withdrawal and informing the aided person of

his right to apply for a review of the withdrawal .If the Service rejects the applicant’s application,

under Section 55 the indigent person can apply for review by the Service and thereafter to the

Court. All legal aid providers are paid by the Service and are required to be registered by the

Service. In order to ensure professionalism, Section 61 requires the Service to formulate a code

of conduct for legal aid providers.

This Act sufficiently breathes life to Articles of the Constitution 2010 earlier alluded to. It is the

climax of legal representation in Kenya. What used to be the preserve of the rich and mighty is

now available to all. In a welfare state, solidarity in poverty eradication through legal
90
representation even to the accused is vital . It is what any modern state worth its name does.

Kenya has also ratified several treaties that provide the right to legal representation and which
91
form part of the laws of Kenya . They include among others the International Convention on
92
Civil and Political Rights, United Nations Declaration for Human Rights and African

Convention on Human and Peoples Rights.

88
Supra note 87
89
Ibid.
90
Supra note 6.
91
Article 2(5) and (6) of the Constitution of Kenya 2010.
92 nd
Famously know as UDHR 1948, It was formulated after the 2 World War.

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Right to Legal Representation in Criminal Proceedings in Kenya: Should we shift to With

Prejudice Appeals in the Court of Appeal in Respect of Appeals from the High Court while

acting as a trial Court?

Without prejudice appeals means that if an appeal is successful, the appellate court determines

the law but cannot reverse the acquittal. With prejudice appeals on the other hand are to the
93
effect that if an appeal is successful, the acquittal can be reversed .Section 379 of the Criminal

94
Procedure Code introduces without prejudice appeals in the Court of Appeal from decisions of

the High Court when exercising original jurisdiction. When the accused person has been

acquitted by the High Court while exercising its original jurisdiction, the Director of Public

Prosecution (hereafter referred as DPP) can appeal to the Court of Appeal for review. The DPP

can only appeal if the case involves a point of law which is of exceptional public importance and

if it is desirable in the public interest that the point be determined. However, after the review, the

Court of Appeal can only issue a declaratory order and the acquittal cannot be reversed even if

the acquittal by the High Court was blatantly wrong.

One argument for this position was that the accused did not have resources, knowledge and
95
expertise in law to sufficiently defend himself . It was a safeguard against constant risk of

being convicted. However, as has been demonstrated in previous pages, this position in Kenya

and the World has changed. Lord O’ Higgins observed:-

“We have advanced very far from days when the lonely prisoner with inadequate means,

faced at his trial the full resources of the state. Today the prisoner has access, at state

expense, not only to the finest professional assistance but also to all other scientific and

93 th
Irish Law Review Group Final Report, Balance in the Criminal Law Review Group, March 15 2007.
94
CAP 75, Laws of Kenya.
95
Alogna, Forrest G. "Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction." Cornell L. Rev. 86
,2000.

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technical aides required for his defense. The hardship which he faces is the charge and
96
trial ”

Back then the accused had no tool to defend himself. The accused can now access legal

representation at the state’s expense. The apparent inequality that existed during the formulation
97
of the rule has changed . The Prosecution and the defense are now at equal footing in arguing

their cases.

Recommendations and Conclusion

As has been demonstrated, the journey to the recognition of the right to legal representation has

not been a walk in the park. However, tremendous steps have been made and the apparent

inequality between the defense and the prosecutor has now been bridged. Should we then retain

provisions that were formulated when there was apparent inequality between the DPP and the

accused? Wouldn’t we be unfair treating equals unequally?

The same right accorded to the accused to appeal in the Court of Appeal and to get the

conviction reversed should also apply to the DPP and the Court of Appeal should be able to
98
reverse an acquittal . When the accused legal representation has been funded by the public so

that the accused and the public( through the DPP) are at the same level, they should both be the

accorded same right to appeal and the Court of Appeal should be able to reverse the respective
99
decree when it is satisfied that it was erroneously arrived at .

96
People (DPP) v. O‟Shea [1982] IR 384.
97
Gayle, Nigel B. "What Ensures Effective State-Funded Legal Aid System? (A guide for the reform of the
current state-funded Legal Aid System in Jamaica), Loyola University Chicago, July 2013.
98
Republic v. Edward Kirui [2014] eKLR.
99
Ibid.

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The right to legal representation is now well protected in Kenya. The accused person can worry
100
no more . What he now faces is the trial and the charge. When the society has made changes,

the law should also change in order to cater for the changes if it is to serve the changed
101
society . The without prejudice appeals, in the Court of Appeal from the High Court while

exercising original jurisdiction should therefore in this writer’s view, be abolished and with

prejudice appeals introduced.

Bibliography

CONSTITUTIONS

1) The Constitution of Kenya 1963

2) The Constitution of Kenya 1969

3) The Constitution of Kenya 2010

4) The Constitution of the Republic of South Africa.

5) The United States Constitution.

Statutes

1) Penal Code, CAP 63, Laws of Kenya.

2) Children Act, No. 8 of 2001, Laws of Kenya.

3) Legal Aid Act, No. 6 of 2016, Laws of Kenya.

4) Criminal Procedure Code CAP 75, Laws of Kenya

100
Supra note 96
101
Moore, Sally Falk. "Law and social change: the semi-autonomous social field as an appropriate subject of study."
Law & Society Review 7, no. 4 (1973): 719-746.

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Books

1) Diana Leat, The Rise and Role of the Poor Man‟s Lawyer, British Journal of Law and

Society, Vol.2, 1975.

2) Rawls, John, A Theory of Justice. Harvard University Press, 2009.

3) Mill, John Stuart, On Liberty. Longmans,Green, Reader and Dyer, 1869.

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Cambridge University Press, 1988.

5) Wamwere, Koigi, I refuse to die: My journey for freedom, Seven Stories Press, 2011.

6) Kibwana, Kivutha. Fundamental Rights and Freedoms in Kenya, Oxford University Press,

1990.

Articles

1) Cappelletti, Mauro, and James Gordley. "Legal Aid: Modern Themes and Variations Part

One: The Emergence of a Modern Theme." Stanford Law Review, 1972.

2) Hilary Silver, Social Exclusion and Social Solidarity, Three Paradigms, International

Labour Review, Volume 133, 1994.

3) Catherine Fwangchi, Access to Justice and Legal Aid: Human Rights Approach, L.L.M

Thesis, Central European University, 2010.

4) Tamara Goriely, Rushcliffe, Fifty Years on : The changing Role Civil Legal Aid Within the

Welfare State, Journal of Law and Society, Volume 21, No.4 ,December 1994.

5) Anneli Soo, An Individual‟s ; Right To Effective Assistance of Counsel versus the

Independence of the Counsel: What can The Estonian Courts Do In Case Of Ineffective

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24 | P a g e

Assistance Of The Counsel In Criminal Proceedings? Juridica Law Review.University of

Tartu, 1632.

6) Adar, Korwa G., and Isaac M. Munyae. "Human Rights Abuse in Kenya under Daniel Arap

Moi, 1978." African Studies Quarterly 5, no. 1 (20) 2001.

7) Latham & Watkins LLP, A Survey of Probono Practices and Opportunities in 71

Jurisdictions, For Probono Institute, 2012.

8) Koki Muli, The Draft Constitution Of Kenya 2004 (Bomas Draft): Reflections and

Commentary on Issues of Content and Process, 2005.

9) Kimenyi, Mwangi S., and William F. Shughart II. "The political economy of constitutional

choice: a study of the 2005 Kenyan constitutional referendum." Constitutional Political

Economy 21, no. 1, 2010.

10) Irene Ndungu, Cautious Optimism over Judicial Reforms in Kenya, Institute for Security

Studies, 2012.

11) Mbote, Migai: Justice Sector and the Rule of Law, The Open Society Initiative for Eastern

Africa, 2011.

12) Cornelia Glinz, Kenya's New Constitution, Konrad-Adenauer-Stiftun, 2014.

13) Powell Jr, Lewis F. "The Right to a Fair Trial." American Bar Association Journal, 1965.

14) Organization of America States: Access to Justice As A Guarantee Of Economic, Social And

Cultural Rights. A Review of the Standards Adopted by the Inter American System of Human

Rights, Inter-American Commission on Human Rights, 2007.

15) Howard, Rhoda. "The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil

and Political Rights? Evidence from Sub-Saharan Africa." Human Rights Quarterly 5, no. 4

1983.

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25 | P a g e

16) Gayle, Nigel B. "What Ensures Effective State-Funded Legal Aid System? (A guide for the

reform of the current state-funded Legal Aid System in Jamaica), Loyola University

Chicago, July 2013.

17) Alogna, Forrest G. "Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction."

Cornell L. Rev. 86 (2000): 1131.

18) Moore, Sally Falk. "Law and social change: the semi-autonomous social field as an

appropriate subject of study." Law & Society Review 7, no. 4 1973.

Reports

1) Danish Institute for Human Rights, Access to Justice and Legal Aid in East Africa, Dec 2011.

2) U.S. DEP’T OF STATE, Country Reports on Human Rights Practices, Kenya 7, 2006.

3) Organizational Study Kituo Cha Sheria , Ripoca Project ,University of Oslo, 2010.

4) Civil Societies, Taking these Rights Seriously: Civil Society Organizations‟ Parallel Report

to the Initial State Report of the Republic of Kenya on the implementation of the

International Convention on Economic, Social and Cultural Rights October 2008.

5) United Nations Human Rights Committee in Robinson v Jamaica Communication No.

223/1987, U.N. Doc. CCPR/C/35/D/223/1987 (1989).

6) The African Commission on Human and Peoples’ Rights Resolution on the Right to Fair

Trial and Legal Aid in Africa meeting at its 26th Ordinary Session, held in Kigali, Rwanda,

from 1-15 November 1999.

7) United Nations Human Rights Committee in O.F. vs. Norway Communication No. 158/1983.

8) Irish Law Review Group Final Report, Balance in the Criminal Law Review Group, March
th
15 2007.

List of Cases

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1) David Macharia vs Republic [2011] eKLR

2) R vs Sussex Justices, ex parte McCarthy ([1924] 1 KB 256.

3) Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi [1999]

4) Prosecution v. Sam Hinga Norman, Moinina Fofanah and Alieu Kondowa, SCSL-04-14-T.

5) John Swaka v The Director of Public Prosecutions & 2 others [2013] Eklr

6) S v. Khanyile & Another1988 (3) SA 795. Pett v. Greyhound Racing Association Ltd [1968]

2 W.L.R. 1471

7) People (DPP) v. O‟Shea [1982] IR 384.

8) Republic v. Edward Kirui [2014] eKLR.

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