INTRODUCTION.

ACCESS TO JUSTICE

Access to justice entails “the provision of dispute resolution mechanisms which are affordable,

proximate and ensure speedy justice and whose processes and procedures are understood by

users”. In this broader context access to justice includes issues to do with accessibility of courts

(including other judicial and quasi-judicial fora), language of court proceedings including

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interpretation services, court fees, public participation in administration of justice, accessibility

to persons with disability and availability of information.1

However, access to justice in Kenya has not been fully actualized because of myriad of

challenges including high court fees, geographical location, complexity of rules and procedure,

use of legalese, understaffing, lack of financial independence, lack of effective remedies, a

backlog of cases that delays justice, lack of awareness on Alternative Dispute Resolution and

traditional dispute resolution mechanisms.2

The Constitution of Kenya 2010 recognizes access to justice as one of the fundamental rights

guaranteed therein.

Article 48 of the constitution obligates the State to ensure access to justice for all persons and if

any fee is required to ensure that it is reasonable and it does not impede access to justice. 3

Article 22 obligates the Chief Justice to make rules to provide for the right of every person to

access courts and seek the enforcement of rights or fundamental freedoms in the Bill of Rights

that has been denied, violated or infringed or is threatened. Article 22 (3) is geared towards

ensuring that there are no factors that will impede access to justice when enforcing the Bill of

Rights by ensuring that no fees are charged for commencing proceedings; removing the strict

legal requirement of proving locus standi; minimizing procedural formalities, entertaining the

commencement of proceedings on the basis of informal documentation and allowing experts to

appear as friends of the court where necessary.4

1
Draft Report on Audit of Laws on Access to Justice, KLRC (March, 2012)
2
Strengthening Judicial Reform in Kenya; Public Perceptions and Proposals on the Judiciary in the new

Constitution, ICJ Kenya, Vol.III, May, 2002

3
Constitution of Kenya 2010, article 48
4
Constitution of Kenya 2010, article 22(3)

2
Article 35 grants every citizen the right of access to information held by the State and

information held by another person and required for the exercise or protection of any right or

fundamental freedom. It also entitles the citizen the right to the correction or deletion of untrue

or misleading information that affects the person and also obligates the State to publish and

publicise any important information affecting the nation.5

It is arguable that the right to access information will be essential in enhancing access to justice

as the public will have the right to access all the information they may need so as to institute a

suit.

Article 47 guarantees every person the right to administrative action that is expeditious, efficient,

lawful, reasonable and procedurally fair. It requires the giving of written reasons where a right or

fundamental freedom of a person has been or is likely to be adversely affected by an

administrative action. This is aimed at ensuring that access to justice is granted to persons who

appear before administrative bodies.6

Access to justice is further guaranteed by articles 49, 50 and 51 providing for the rights of

arrested persons, fair hearing and the rights of persons who are detained, held in custody or

imprisoned respectively.

Article 49 (1) (c) provides that an arrested person has the right to communicate with an advocate

and other persons whose assistance is needed. 7 This article seems to allow paralegals to intervene

in court proceedings on behalf of the accused or victims which may improve access to justice in

criminal justice.

5
Constitution of Kenya 2010, Article 35
6
Constitution of Kenya 2010, Article 47
7
Constitution of Kenya 2010, Article 49(1)(c)

3
Article 50 (7) stipulates that in the interest a court may allow an intermediary to assist a

complainant or an accused person to communicate with the court. This will have the effect of

ensuring access to criminal justice in Kenyan courts.8

Article 50 (1) provides for the right of every person to have any dispute that can be resolved by

the application of law decided in a fair and public hearing before a court or another independent

and impartial tribunal or body if appropriate. 9Article 50 (1) aims at ensuring expediency,

fairness of process, equality in accessing legal services and effective dispute resolution

mechanisms. This is vital in enhancing access to justice in Kenya.

Article 50 (2) (h) provides for the right of every accused person to have an advocate assigned to

them by the State and at the expense of the state, if substantial injustice would otherwise result

and to be informed of this right promptly. This is aimed at promoting access to justice.10

In article 159(2) of the constitution, there are principles set that will guide courts and tribunals in

exercising judicial authority. These principles are aimed at ensuring that there is access to justice.

They include justice shall be done to all, irrespective of status without delay and undue regard to

procedural technicalities.11

The enunciation that “Justice shall be done to all, irrespective of status” Article 159 echoes the

right of all persons to have access to justice as guaranteed by Article 48 of the constitution. It

also mirrors the spirit of Article 27(1) which provides that “every person is equal before the law

and has the right to equal protection and equal benefit of the law’’.12

8
Constitution of Kenya 2010, Article 50(7)
9
Constitution of Kenya 2010, Article 50(1)
10
Constitution of Kenya 2010, Article 50(2)(h)
11
Constitution of Kenya 2010, Article 159(2)
12
Constitution of Kenya 2010, Article 27(1)

4
The foregoing provisions clearly show that the threshold set by the constitution in relation to

access to justice is high and certain legislative and administrative reforms have to be undertaken

to realize access to justice.

PRO-BONO SERVICES AND PAUPER BRIEFS

Access to justice in Kenya is expensive due to high legal fees levied by lawyers. A majority of

Kenya’s population cannot afford to retain the services of a lawyer and often resort to self-

representation (mostly in criminal cases), legal aid and pro bono legal services.

What are pro-bono services ?

There is no statutory definition of the term “pro bono” under Kenyan law. However, this is

generally accepted as the practice of advocates taking up legal briefs at no charge. In many cases,

this is done where the client is unable to meet the costs incidental to their matter. Whereas

government driven aid or support is referred to as legal aid, some private firms and organizations

offering such services also refer to their activities as legal aid. For example, Kituo Cha Sheria, a

non-governmental organization that pools together volunteer advocates to take up matters on pro

bono basis, refers to this service as legal aid. Private law firms, on the other hand, refer to these

services as pro bono legal services.

What regulations guide the provision of pro bono legal services?

There are no rules that specifically regulate the provision of pro bono legal services in Kenya.

Kenya has for a long time lacked a substantial legal aid system. However, there have been

noticeable improvements in the past few years. Whereas legal aid services are regulated by the

recently enacted Legal Aid Act No. 6 of 2016 (the “Act”), the provision of pro bono legal

services remains unregulated. The Act establishes the National Legal Aid Service (“NLAS”)

5
under section 5 to provide legal aid services at the expense of the State to persons who qualify

for legal aid services under the Act. The Act therefore, regulates the provision of legal aid

services in Kenya and requires legal aid service providers (which includes in-house lawyers

operating under the pro bono program of the Law Society of Kenya or other civil society

organization or public benefit organization registered in Kenya) to be accredited by the NLAS

established under the Act In 2017, the Office of the Attorney General and Department of Justice

in conjunction with the NLAS launched the National Action Plan on Legal Aid, 2017-2022

which is expected to serve as a road map for coordinated implementation of legal aid

interventions between the government and legal aid actors in Kenya. The National Action Plan,

if successfully implemented, will facilitate the full implementation of the National Legal Aid and

Awareness Policy, 2015 as well as the Legal Aid Act 2016.

What are the areas of law that give opportunities for provision of pro bono services?

Typically, criminal law and civil law related cases present opportunities for provision of pro

bono legal services in Kenya. In most criminal cases, defendants/accused persons are unable to

afford legal services and therefore require legal aid. As regards civil cases, section 37 of the Act

provides that the NLAS may not provide legal aid services in respect of civil proceedings:

 to a company corporation, trust, public institution, civil society, NGO or other artificial

person;

 in matters relating to tax;

 in matters relating to the recovery of debts;

 in bankruptcy and insolvency proceedings; and

 in defamation proceedings

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Currently the major actors in giving pro bono services are non-governmental organizations and

they majorly offer assistance to marginalized groups.

Some of the challenges that face the provision of legal aid services include insufficient resources

to cater for all those who need the pro bono services. There is also requirement for professional

indemnity cover for the cases that the advocates handle. The Advocates (Professional Indemnity)

Regulations, 2004 requires advocates in Kenya (including in-house lawyers) to have professional

indemnity legal insurance cover in place to compensate clients for loss or damage resulting from

claims in respect of any civil liability or breach of trust by the advocate or his employees. The

Regulations are not clear as to:

 whether in-house lawyers can be covered by insurance cover provided by their employers;

and

 whether the mandatory insurance cover relates to both paying and pro bono clients.

As such, it is assumed that pro bono clients are also covered by such insurance. In-house lawyers

are not prohibited from working under the cover of another pro bono provider. If that pro bono

provider is a private law firm, such firm is required to have a professional indemnity legal

insurance cover of not less than KES 1,000,000.

Under the Advocates (Continuing Professional Development) Rules, 2014, the Law Society of

Kenya regulates the continuing professional development (“CPD”) of advocates. CPD programs

emphasize ethical as well as practical and professional aspects of legal practice and every

member of the Law Society of Kenya must obtain a minimum of five CPD units in each CPD

year. 10 Regulation 11 of the Advocates (Continuing Professional Development) Rules, 2014

7
states that regular or pro bono legal work is not an approved CPD activity except for legal work

that is for the purposes of the Legal Aid Program and for which the Continuing Professional

Development Committee of the Law Society of Kenya shall determine how many units an

advocate may accrue in a CPD year for that work.

The majority of pro bono legal assistance in Kenya is provided by non-governmental

organizations that offer assistance to marginalized groups. They include the Federation of

Women Lawyers, The CRADLE, the International Commission of Jurists in Kenya, Kituo Cha

Sheria, the Public Law Institute and KELIN Kenya. NGOs in Kenya are presently registered and

regulated under the Non-Governmental Organizations Coordination Act, 1990 (the “NGO Act”).

Practice Directions on Pauper Briefs/ Pro Bono Services

As of July 2016, the Chief Justice issued the following practice directions on pauoer briefs in

Kenya pursuant to Article 50, 50(2) and 50(2)(h) of the Constitution and Orders 33 and 44 of

the Civil Procedure Act;

1. Pro bono services shall be offered in the Supreme Court, Court of Appeal, High Court

and the Magistrate Courts.

2. Pro bono services shall be offered in capital cases and cases of children in conflict with

the law in the Magistrate Court.

3. To enhance accountability and provide a clear framework of entry and exit to the

Scheme, advocates shall apply to serve using a standard application form.

4. Pro bono briefs shall be allocated to individual advocates and not firms.

5. An advocate appointed by the state shall be discharged if the accused person, appellant or

their family engages an advocate.

8
 6. All stations shall form pro bono committees chaired by the Registrar, Deputy Registrar,

or Head of Station and the member shall include; Court Administrator, a representative of

the Law Society of Kenya and two nominees of the Court Users Committee that shall

allocate pro bono briefs.

7. Any new brief being allocated to an advocate shall be evaluated against pending pro bono

work load of an advocate.

8. The fees payable shall be an all-inclusive sum of Ksh. 30,000.

9. The fees shall be paid in 2 installments: the first installment after first appearance and the

second installment upon completion of the brief.

10. The fees shall be managed centrally at the Chief Registrar’s Office.

11. The fees payment shall be based on certification by the station pro bono Committee.

12. The Registrars of the respective Courts shall keep a register of all advocates involved in

pro bono services where relevant information and feedback on their performance shall be

recorded.

Organizations Offering Pro Bono Services

(i) Federation of Women Lawyers (“FIDA Kenya”)

FIDA Kenya is a registered non-government organization. It was established in 1985 during the

third UN conference on Women held in Nairobi and attained registration in 1993 under the NGO

Coordination Act. It is committed to creating a society that is free of all forms of injustices and

discrimination against women.13 Its membership is composed of women lawyers and women law

students. The primary beneficiaries of FIDA are women but the organization also works with

13
East Africa Law Society, Federation of Women Lawyers (FIDA), <https://ealawsociety.org/fida/ > accessed March
7, 2021

9
men to ensure that women rights are upheld and respected in all spheres of development. The

objectives of FIDA Kenya include:

1) To improve the legal status of women in Kenya

2) To increase access to justice by women in Kenya

3) To enhance public awareness on women’s rights issues14

FIDA Kenya meets these objectives by:

i) Offering quality legal services to women (free legal aid)

ii) Undertaking transformative public interest litigation

iii) Increasing women’s awareness of their legal rights

iv) Researching and reporting on women’s rights violations

v) Lobbying for the introduction and implementation of better laws and policies15

What matters does FIDA Kenya focus on?

The matters range from custody and maintenance, matrimonial disputes, discrimination in

Employment, land and succession, family mediation, participation in public positions and sexual

violence. It primarily focuses on matters around family law as these have been evidenced to

affect women in a grave manner.16

Legal aid services

a) Legal Advice and Litigation

FIDA Kenya in-house lawyers take up deserving cases and provide legal aid services in the form

of advice, preparation of court documents and court representation. In all of their offices, weekly
14
Global Alliance Against Traffic in Women, FIDA Kenya, <https://gaatw.org/africa/fida-kenya > accessed March 7, 2021
15
ibid
16
FIDA Kenya, <https://fidakenya.org/site/faqs > accessed March 7, 2021

10
screenings are done for walk in clients. Assessment is done to determine the nature of the case

and the help that should be offered. The client is given directions and is engaged formally to

determine the course to be followed in the pursuit of justice. The success rate of the legal advice

and litigation is 85%. FIDA does not charge for its services.17

b) Pro bono Lawyers Scheme

Due to the high demand for legal representation, this Pro -bono scheme aims to increase and

expedite quality access to justice by assisting FIDA-Kenya legal counsels to attend to more

clients. Pro Bono Lawyers volunteer their services especially in the hard to reach areas and on

matters where clients do not strictly meet the criteria for free legal services. 18 In the matter of the

Estate of A.K.M19, A widowed FIDA-Kenya client was facing eviction from her matrimonial

home. Her in-laws and step-children had united against her and wanted to take away her

property. FIDA-Kenya referred her to a pro-bono lawyer who took up the matter, and obtained

letters of Administration intestate which allowed the client to manage her late husband’s estate.

The letters were later confirmed giving the aggrieved legal authority to manage and benefit from

her matrimonial estate. To date, FIDA-Kenya continues to engage Pro -bono lawyers to execute

its mandate. Lawyers in public practice have continued to volunteer to serve under the FIDA

Kenya pro bono lawyer’s scheme. This has helped women who reside far from the location of

FIDA Kenya offices be able to access justice at a minimum cost. To enhance the pro bono

lawyers’ capacity and as an incentive, FIDA Kenya offers the pro bono lawyers’ training on new

and emerging legal issues.20

17
Access to Legal Aid,< www.womenconnect.org/web/kenya/legal-aid/-/asset_publisher/Gg1twiu9q8Ul/content/federation-of-
women-lawyers-fida-kenya > accessed March 7, 2021
18
supra, n4
19
Succession Cause No.48 of 2014
20
supra, n5

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c) Self-Representation

This intervention was started by FIDA Kenya in the year 2002, as a strategy to further access to

justice for needy women. Women are trained on the general court process, how to give evidence

in court, how to cross-examine a witness as well as how to produce documentary evidence

among other processes. The intervention has equipped women with knowledge and skills on how

to represent themselves in court thus enabling them to file matters on less technical matters such

in court and claim their rights with a success rate of 80%.21

d) Alternative Dispute Resolution (ADR)

With a view of enhancing family unity and mutual respect, FIDA Kenya initiated and runs a

mediation program under which it seeks to avail its clients the opportunity to amicably resolve

disputes through mediation. This is a voluntary process that allows parties in dispute to come up

with their own tailor-made solutions to their differences. The sessions are conducted by trained

in-house mediators being staff and external mediators drawn from different professional

backgrounds.22 The Mediation program is open to all members of the public to join as mediators,

or clients seeking the services. To be a Mediator, there are pre-qualifications necessary. 23 The

success rate of this program is at around 80%. FIDA Kenya has been sensitizing and creating

awareness to the general public on the usefulness of mediation as an alternative dispute

resolution mechanism that is both faster, cheaper, less adversarial and more oriented towards

mending and maintaining relationships in communities.

e) Engagement with the Informal Justice Systems

21
ESCR-Net, Federation of Women lawyers-Kenya (FIDA Kenya), <www.escr-net.org/member/federation-women-lawyers-
kenya-fida-kenya > accessed March 7, 2021
22
supra, n5
23
supra, n4

12
FIDA works with informal justice systems to ensure that women rights are upheld and respected.

FIDA Kenya recognizes the role played by informal justice systems (IJS), such as dispute

resolution by village elders, chiefs etc., in delivering justice to local communities and is keen to

ensure that the systems uphold the principles of human rights in their adjudication and work

under legal provisions in the Constitution.24

(ii) The CRADLE

The CRADLE is a non-profit NGO committed to the protection, promotion and enhancement of

the rights of children, especially girls. The organization was started by a group of Christian

lawyers to respond to the need for the provision of legal assistance to children and it works to

enhance children’s access to justice. The CRADLE’s activities include running a legal aid

program, advocating for policy and legislative enactments protecting children’s rights,

researching, monitoring and documenting issues related to children’s rights, and building

awareness of children’s rights.

(iii) International Commission of Jurists in Kenya (“ICJ-Kenya”)

ICJ-Kenya is a non-profit, non-partisan membership-based NGO with over 300 members who

are dedicated to the legal protection of human rights in Kenya. The organization has a permanent

secretariat with a team of full-time lawyers charged with running its programs. ICJ-Kenya’s

objectives include improving access to justice and protection of human rights, increasing citizen

empowerment, investing in the development and involvement of key stakeholders, and

increasing awareness of human rights.

(iv) Kituo Cha Sheria

24
FIDA KENYA,< www.fidakenya.org/site/work?id=7> accessed March 7, 2021

13
This is a human rights nongovernmental organization committed to helping the disadvantaged,

poor and marginalized people in Kenya access justice, it was established in the year 1973, due to

its early establishment it has vast experience in legal aid programs. It has been established in

Kenya, across the East and Horn of Africa region.

Its establishment was liberated by the then Kenyan constitution, the independence constitution.

the laws in Kenya then had much discrimination and unjust provisions against gender, like land

ownership laws, this negatively impacted the justice system to the point of establishment of an

organization to help to counter such injustices.

By then, the constitution was amended several times to fit into the colonial rule which were

racist, and unjust, it discriminated against gender and class, subsequently illiteracy and lack of

knowledge of the strange laws put many indigenous Kenyans at great disadvantage. It was only

KITUO that provided pro bono legal services as there was no other organization. The demand for

KITUO services increased and hence the institution growth was rapid.

Kituo cha Sheria deals with issues of legal aid education, forced migration, advocacy,

governance and community partnerships. We represent the poor and marginalized through

advocating, networking, legal aid and representation as well as lobbying. Kituo continues to

empower the poor and marginalized people in society to effectively access justice and achieve

their human and peoples’ Rights-We Care for justice, as their slogan.

There focus is in citizenship, community land rights, customary land rights, generalist legal

service, labor and employment, land and natural resources,

It has rolled out programs which are being undertaken, it includes

1.Legal aid and education.

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Legal education program began, when it was notably clear that access to justice was not fully

developed to the financially challenged personnel, people with disabilities and the less fortunate

in the society The Legal Aid and Education Programme is managed through in-house lawyers

and volunteer advocates service (VAs). They offer mobile outreach legal education and aid to

KITUO’s clients through legal representation and mediation.

The concept of legal aid and education is based on the assistance of the socially and

economically disadvantaged persons in the society to enable them understand and protect their

rights

The legal aid and education programme within KITUO focuses on policy advocacy and law

reform in the areas of Land rights; Housing and Labor rights; Refugee rights; Internally

Displaced Person’s (IDPs); and other areas such as Criminal, Alternative Dispute

Resolution/mediation. Under the legal aid programme core activities include; provision of legal

services to walk-in clients (at the Head Office and the branch offices in Nairobi and Mombasa

respectively) as well as through mobile legal aid clinics country-wide.

The programme also undertakes the training of community groups and paralegal officers in

efforts to enhance their capacity in legal aid work. The programme is made a success by the

following strategic objectives.

i. To provide legal aid to indigent and marginalized persons in the selected counties and

prisons.

ii. To source, develop and motivate staff in the department including volunteer advocates

for optimal performance.

15
 iii. To build the capacity of communities for self-representation and public interest litigation

matters.

iv. To build the capacity of advocates on litigation.

v. To establish partnerships with Volunteer Advocates and caucuses and enhance Bar

relationships

vi. To sensitize and communicate to larger society on access to justice.

vii. To procure facilities for operations and accessing courts in the remote and

underdeveloped areas of Kenya.

2.Advocacy, governance and community partnerships

The Advocacy, Governance and Community Partnerships (AGCP), exists to enhance equity and

access to justice for all through outreach and empowerment of the poor and the marginalized

communities. Thus, AGCP promotes good governance and advocacy for pro-poor policies and

legislation both at the grassroots and at the national level.

AGCPs work is guided by the need to “minimize” in the conventional regions where KITUO has

been working while doing more outreach in the marginal areas. AGCP focuses more on need-

driven interventions informed by clear baseline information. AGCP links grassroots

empowerment with national-level advocacy processes and institutions to be able to impact policy

and legislative reforms; aligning community mobilization and organization with KITUOs core

business of access to justice, especially at the grassroots level; and approaching equal access to

justice as a human rights issue, rather than just dwelling on provision; electoral justice, and

16
transitional justice. it has strategic objectives which helps the partnership achieve its purpose, the

objectives are as follows;

i. To build and strengthen existing community networks and the capacities of the poor and

marginalized communities to be effective champions and monitor their legal and human

rights.

ii. To increase access to justice by the poor and the marginalized.

iii. To promote good democratic governance through devolution.

iv. To lobby, advocate and monitor the implementation of pro-poor policies and legislation

on land, labor, housing governance and domestication of human rights standards.

v. To strengthen program leadership, team building and PME.

3.Forced migration programme

FMP is devoted to the welfare of the poor and marginalized urban refugees and IDPs in Kenya.

Among the urban inhabitants, are refugees and asylum seekers, fresh in the country, among other

reasons, having been compelled to flee their countries of origin for want of security.

KITUO in partnership with the United Nations High Commission for Refugees (UNHCR) and

the International Rescue Committee (IRC) opened the FMP Branch Office to assist the urban

refugees in need of legal protection. The inspiration to start an Urban Refugee Intervention

Centre was mooted when KITUO found itself unable to turn away refugees and asylum seekers,

who were survivors or witnesses of various human right abuses in their home countries and their

country of asylum (Kenya).

17
FMP acts as the people’s watchdog over the implementation of the Refugees Act of 2006, to

ensure the refugee’s rights under the new law are realized. In addition, the programme advocates

for the respect and protection of IDPs rights. The programme offers a range of services in legal

protection and guidance to its clients in the areas of legal advice in all legal issues, legal

representation, assisting Refugees in obtaining of work permits, birth and death certificates,

Identity cards etc., referral service to our other partners and investigations of systematic Human

Rights violations against refugees. FMP helps its target group in identifying and litigating on

Public Interest issues touching on refugees, monitoring cases of Insecurity and Gender Based

Violence, research, and training on Human Rights and Refugee law. It has strategic objectives as

follows.

i. To develop a detailed strategy including a rapid response programme to address issues of

forced migration (i.e. refugees, statelessness, asylum seekers, deportees, evictees,

detainees).

ii. To expand legal service community outreach to areas outside Nairobi (namely Mombasa,

Kakuma, Dadaab Garissa, and other parts of the country) through volunteer networks and

branch offices entry points on priority basis.

iii. To establish a “Poor man’s Kitty” and link needy communities to micro-financing

institutions.

iv. To carry out advocacy on the rights and durable solutions for forced migrants, refugee

and people with special needs issues including policy and legislation for national legal

framework on refugees and the international refugee law like local integration,

repatriation and resettlement.

18
 v. To strengthen the research component of the programme for advocacy and learning (e.g.,

on statelessness, asylum seekers, refugees and migrant generally).

vi. To Monitor and evaluate all programme activities.

vii. Research communication and knowledge management programme

The vision of RCKM is a visible KITUO that undertakes high quality research in the thematic

areas of access to justice, land, housing, labor, refugee rights and other emerging human rights

concerns to inform KITUO’s interventions, influence policy as well as ensure proper and up to

date documentation, publication and dissemination of properly researched and packaged

information.

Through the RCKM, KITUO contributes towards solutions to issues and problems faced by its

clients in the areas of interventions. These issues and problems have complex causes and effects

that require sound and critical analysis in order to identify viable, realistic and relevant solutions.

Casual and shallow interventions may only act as palliatives to the underlying systemic and

structural problems that bear local, national and global dimensions. High quality research is

therefore a prerequisite to proper, relevant and effective interventions. The RCKM department

notes that effective advocacy is informed by quality research on key issues. The objectives

include,

i. To raise public awareness on KITUO’s thematic areas, by documenting KITUO’s work

and undertaking publication of Information Education and Communication materials.

ii. To enhance the visibility/ image/ reputation/ profile of KITUO as a premier CSO in our

core areas.

iii. To create an enabling and friendly ICT infrastructure environment in KITUO with the

necessary complimentary assets.

19
 iv. To empower and enable KITUO staff to undertake interdisciplinary research to address

key legal issues.

v. Undertake excellent cutting-edge research on issues of access to justice, land, labor,

housing, refugees and other emerging human rights concerns.

Kituo cha Sheria is an important organization as far as legal aids programmes is concerned in

Kenya. It has helped a lot in meeting legal justice to even the ones who had no faith in ever

getting assistance in legal matters.

(v) Public Law Institute (“PLI”)

PLI is an NGO that was created by the National Council of Churches of Kenya and the Law

Society of Kenya to promote human rights and the rule of law in Kenya. PLI’s activities include

providing legal representation and services to the poor and disadvantaged, and protecting

consumer and environmental rights. PLI also provides legal education through publications,

workshops, seminars and paralegal training programs. The organization has 12 lawyers on staff

and relies heavily on volunteers.

(vi) KELIN Kenya

KELIN was registered as an NGO in 2001. It is a human rights organization working to protect

and promote HIV-related human rights in Kenya. The NGO’s objective is to undertake advocacy

and provide leadership in enhancing human rights approaches in health, as well as HIV strategies

and programs. KELIN does this by providing legal services and support, training professionals

on human rights, engaging in advocacy campaigns that promote awareness of human rights

issues, conducting research, and influencing policy that promotes evidence-based change.

KELIN works with vulnerable and often marginalized groups such as people living with HIV

20
and at-risk populations. It also engages with key stakeholders, policy makers and involves itself

in the process of policy development and reform in order to improve protection against health

and HIV-related human rights violations for such groups.

(vii) Law Society of Kenya

One of the key components of the Law Society’s strategic plan is to increase the availability and

quality of legal services, and generally improve access to justice in the country. As noted in its

strategic plan, the key outcome of a pro bono legal scheme would be to enhance access to justice

for the indigent and marginalized in society. The Law Society of Kenya, in conjunction with the

judiciary of Kenya, offers annual legal aid and pro bono services over a number of days at its

branches throughout Kenya. In Nairobi, lawyers advise pro bono clients at the grounds in the

High Court of Kenya and Milimani Law Courts.

(viii) University Legal Clinics and Law Students

Some Kenyan universities have established legal aid clinics that allow students to provide pro

bono assistance during their legal studies. This is a relatively recent development, arising from

the growing acceptance of incorporating practical skills into legal education. This recognition

can be traced back to 1994, following the establishment of the Moi University Faculty of Law.

Through the Moi University Legal Aid Clinic, students can render legal advice and routine legal

assistance to indigent clients. By using legal education as a tool for engaging and assisting the

public, students can also learn to be competent lawyers committed to the provision of quality

legal services and the ideal of social justice.

The Constitutional and Human Rights Division of the High Court has affirmed that costs should

not be awarded against a party who has litigated an unsuccessful public interest proceeding

21
against the state. In John Harun Mwau & Others v Attorney General & Others [2012] eKLR,

the court stated that

“In matters concerning public interest litigation, a litigant who has brought proceedings

to advance a legitimate public interest and contributed to a proper understanding of the

law in question without private gain should not be deterred from adopting a course that is

beneficial to the public for fear of costs being imposed. Costs should therefore not be

imposed on a party who has brought a case against the state but lost. Equally, there is no

reason why the state should not be ordered to pay costs to a successful litigant.”

One of the barriers to pro bono assistance is the statutory prohibition on advocates charging

amounts below those stipulated under the Advocates Act, through the Advocates Remuneration

Order. Under the Advocates Act, it is prohibited for a lawyer to agree or accept remuneration

less than the Order. Although this provision is designed to prevent lawyers undercutting each

other, it is also prejudicial to clients. Unless clients can afford to pay the set rates of

remuneration, they may have to forego legal representation.

Immigration regulations affect the ability of foreign-qualified lawyers to provide pro bono

services. Foreign lawyers must obtain the requisite work permit in order to offer pro bono

services in Kenya, and must also obtain a clearance letter from the Law Society. Professional

indemnity in Kenya is governed by the Advocates (Professional Indemnity) Regulations, 2004

made under the Advocates Act. Every advocate (enrolled in the Kenyan Bar) practicing on his

own behalf or in partnership is required to purchase a policy of “professional indemnity cover”,

the value of which shall be not less than 1,000,000 Kenya shillings (approximately $ 9,881). This

cover is to be used to compensate clients for loss or damage in respect of any civil liability or

breach of trust by the advocate or the advocate’s employees.

22
The Regulations are silent on whether the requirement for professional indemnity includes pro

bono clients; however, as the Regulations do not distinguish between paying clients or pro bono

clients and the advocate’s duty of care to all clients is the same, it seems that pro bono clients

would be covered by such professional indemnity.

I. CASE STUDY

In Alloys Omondi Nanga v Republic the appellant was accused of murder. He was offered free

legal aid by the appointment of two counsel Nishi Pandit and Miss Oketch respectively. The

appellant appealed to the High court stating that he was not given his full rights as per section 77

(1) (d) of the constitution where one is given a mandate to choose a counsel of their own choice.

It was also stated that the court did not inform the appellant of this right and option of him

representing himself or choosing a counsel. In this matter though it was argued that the appellant

was well aware of the events and that the said counsel both acted with the permission from the

appellant in that when Nishi approached the court and said that the appellant agrees and wants to

change their plea to being guilty then this was with permission from the appellant. It was also

said that the appellant had all the time and he would have addressed the court on the matter and

said that he wanted a counsel of his own choice. The two-year period was more than enough for

the appellant to raise such issues. Miss Oketch had already received payment for the pauper

service which was Ksh 29,000.

It was then stated by the learned judge that not all people will be happy with free legal aid thus

all courts should be able to make the accused aware of their rights and let them make the

decision themselves and if one accepts free legal aid then an acceptance form needs to be drawn.

He also stated that the government was in no obligation of offering free legal aid because it is not

enshrined in the constitution or any other laws of Kenya. The court also stated that the appellant

23
did not deny or accept the assignment of the two counsel officers to which the government had

fully settled the bill. Thus, the court found no substance in the constitutional issue raised.

In Republic v Thomas Patrick Gilbert Colmondeley, [2009] eKLR The accused was convicted

of manslaughter. He had shot a man, Robert Njoya, who succumbed to the gunshot on the way to

Hospital. The deceased had trespassed the accused land and I a bid to scare away the deceased

together with his dogs, he shot at the them instead of firing in the air.

It is important to note that the Director of Public Prosecution, Mr. Keriako Tobiko, brought to

the attention of the court that the accused was a first offender. The prosecutor also informed the

court that sentencing is at the discretion of the judge and should be exercised in a manner that

reflects the evidence adduced and uphold the principles of sentencing.

The principle of equality before the law provides that every person should be treated equally

before the law without regard to their social status, political status, wealth, race, sex,

employment status and marital status.

The prosecution brought to the court’s attention several mitigating factors; The accused after

shooting the deceased personally administered first aid and offered his car to rush Robert Njoya

to hospital and offered his credit card for the deceased to be treated. In fact it is the accused who

commenced the investigations by contacting the Kenya wildlife services and the police.

Furthermore, the accused had been in police custody for three years pending the determination of

his case.

In making its determination the court acknowledged that indeed the accused did not bear any ill

feelings, malice or intention to kill the deceased. The court held that the accused had been

subjected to the due process of the law. This is evident since he was arraigned and charged in a

24
court of law without any regard to his wealth, status and race. Furthermore, prior to his

arraignment in 2009, he was held in custody for approximately 1000 days which equates to

3years. The accused was sentenced to 8 months in prison.25

CONTINUING LEGAL EDUCATION (CLE)

Continuing legal education (CLE) is derived from and is intricately intertwined with the concept

of continuing professional development (CPD). CPD is the systematic maintenance and

improvement of knowledge, skills and competence, and enhancement of learning, undertaken by

a person throughout his or her working life.

It encompasses both formal and informal means of maintaining an existing knowledge base by

updating on changes; acquiring new knowledge connected to the practice of a profession in order

to extend and amplify knowledge, sensitiveness or skill; and enhancing existing knowledge to

improve the overall standards of practice of a professional.

CLE connotes a formal educational experience such as lectures, seminars, or workshops related

to the practice of law and sponsored by a bar association; or experience in law schools or

organizations which specialize in such advanced professional training. It covers all kinds of

educational programs for those who are qualified to practice law through admission to the bar.

Continuing legal education (CLE) also known as Mandatory or minimum continuing legal

education (MCLE) or in some jurisdictions as Professional development consists of professional

education for attorneys that takes place after their initial admission to the bar.

In Kenya, both the Law society of Kenya (LSK) and the Council of Legal Education CLE) are

mandated with the task of promoting legal education and training.

25
R v Thomas Patrick Gilbert Cholmondeley [2009] eKLR.

25
The LSK has a Continuous Professional Development (CPD) program which is mandated with

the responsibility of ensuring continuous professional learning for all advocates in Kenya after

they are admitted to the bar.

All advocates practicing in Kenya are required to attend the CPD sessions. The program is self-

financed by registration fees charged on participant for the sessions.

The Law Society of Kenya Committee on Continuous Professional Development (CPD):

● Provides policy direction to the program

● Meets monthly to discuss any pertinent issues surrounding the CPD program

● Accredits other institutions that facilitate sessions on professional development for

lawyers.

The CPD Committee is mandated to work with the Law Society of Kenya Secretariat in the

implementation of the CPD Calendar of Events, development of the curriculum and content of

the program. The committee constantly reviews and develops the program and envisions a

program that provides legal knowledge to all advocates practicing in different areas of law at an

affordable rate and in an efficient manner.

The Council of Legal Education is re-established under the Legal Education Act No. 27 of 2012

with the mandate to:

1) Promoting legal education and training.

2) Maintain the highest standards by legal education providers.

3) Provision of a system to guarantee the quality of legal education and its providers.

26
The legislation re-establishes the Council as the regulator and supervisor of Legal Education in

Kenya. It is however, segregated from the Kenya School of Law which through parallel

legislation has been set up as a government agency for post-university professional legal training.

The Council of Legal Education plays an important and critical role in:

• Regulating legal education and training in Kenya

• Licensing legal education providers

• Supervising legal education providers

• Setting standards for accrediting legal education providers

• Setting standards for curriculum and modular instruction

• Setting standards for modes and quality of examinations

• Setting standards for harmonization of legal education programs in Kenya and the region

• Monitoring and evaluation of legal education providers and programs, and

• Advising Government on matters relating to legal education and training

PURPOSE OF CLE

• Legal training ensures that legal and judicial reforms contribute to changing the attitudes

and behaviors of lawyers and citizens. For this reason, legal training should be an integral part of

legal and judicial reform strategies that are anchored on the rule of law and reflect a country’s

societal values.

• Legal education strengthens professionalism, builds public confidence, and facilitates

consensus and momentum for further reforms.

27
• Legal education also improves the performance of legal professionals, enhances service

quality and stimulates public respect. As a result, training programs should be designed not only

to enhance performance but also to instill the values of impartiality, professionalism,

competency, efficiency and public service.

• Continuing Legal Education and training programs enhance and update the skills of legal

professionals.

• CLE undertakes to improve professional competence such as providing “brush-ups”

instruction for lawyers who have lost their familiarity with a field of practice or have never really

developed it.

CHALLENGES IN LEGAL AID AND LEGAL EDUCATION

1)Lack of public awareness

There is little public awareness on the National Legal Aid Service and the services it offers. Most

people may also not know how to access their offices. For this reason, a lot of people who may

need legal services may not get them.

2)Funding

The budgetary allocations towards legal aid services can best be described as minimal. Most of

the allocation goes towards administrative functions within the National Legal Aid Service. This

leaves very little for the actual legal aid activities. Ideally, the government should fully fund

legal aid services in the country, but that is not the case in Kenya. Most of the National Legal

Aid Service activities are donor funded. Such funding is time bound and specifically targeted,

and is therefore not sustainable.

28
3)Undocumented Work

A lot of the work done in legal aid is undocumented. The only records that exist are mostly the

court records and outcomes. This gives no point of reference and motivation to existing legal aid

workers and those that may want to seek such services.

4)Lack of commitment from some stakeholders

Apart from legislation and some policies, there appears to be a general lack of commitment by

the government towards legal aid. This can be seen in the amount of funding that is allocated to

legal aid in the country. There is also little to no recognition of those involves in legal aid work.

This may serve to demotivate them.

Some individual lawyers and other actors in the system are also not fully committed to providing

quality aid. This may be due to little or no compensation offered by the government. Without

much supervision, the services offered may be substandard.

PROBLEMS FACING LEGAL EDUCATION IN KENYA

1. There is a shortfall of funding in institutions of higher learning. This is despite the

increase of the number of students in Law Schools in Kenya. Insufficient funds affect a school’s

capacity to hire academic staff, procure academic materials and support research programs

among other activities. This in turn diminishes the quality of legal education.

2. Most law schools are focused on teaching theory. The practical bit of law has been

relegated to the Kenya School of law. This is unsustainable as it overburdens the institution. It is

necessary to integrate theory and practice as it generates a market ready graduate.

29
3. Some programs do not offer the students the required market skills. Some players in the

system have revealed that some law school graduates lack the requisite skills for the market.

These include advocacy, legal drafting, research and writing and even critical legal thinking.

This may adversely affect the quality of legal representation that such graduates offer.

4. The Kenya School of Law is currently the only institution that offers the Advocates’

Training Program, and every year there’s an intake of over 1,000 students. This severely limits

the capacity of the institution to provide quality training. The outcome of this is below-par

performance in the Bar examinations.

In addition, G. K defines legal education as the knowledge of law and society which is essential

in the settlement of disputes in an African post-colonial society which is seeking to remove the

injustices of the colonial rule and to give effect to the African personality or the humanity of the

African.26

From this definition, he came up with the problems of legal education including;

1. Determining the kind of man that the Kenya society wants to produce. The Kenya law

teacher does not know the kind of legal education that is required to help in settling

disputes.27

2. The second problem is that of producing a lawyer to help in settling disputes in a neo-

colonial state with many pressure groups with different interests reflecting their cultural

backgrounds, economic classes and philosophies. This problem arises from the fact that

Kenya, like all former British territories, is a neo-colonial state which is trying to create a

welfare state, that is a capitalist society of the western kind, and to remove some of the

26
Kamau, G.K. “Current Problems of Legal Education in Kenya,” Journal of East African Research & Development, vol. 9. No.1/2,
1979, pp.33. JSTOR, www.jstor.org/stable/24325592. Accessed seventh March 2021.
27
Ibid.

30
 injustices that the colonialism produced. Even in connection with this problem, there is

the problem of identifying the nature of the neo-colonial Kenya.28

3. However, G.K was explaining his view in his article which was published in the 1970s

and so he was explaining the problems of the neo-colonial lawyers at the time when the

only university in the country offering Bachelors of Law was the University of Nairobi.

In that regard, there are other problems which have come up. Among the current

problems affecting legal education, is the scarcity of funding. This is a threat to the

sustainability of schools of law which in turn affects ability to attract and recruit

academic staff or dedicate resources for sustainable growth of learning resources and

activities. This situation is not only dire for public institutions which draw their entire

budgets exclusively from the public exchequer, but also private institutions which do not

have the cushion of public funding.29

4. There is also the problem of overwhelming numbers; The Kenya School of Law is the

only institution that runs an Advocate’s Training Program (ATP) in Kenya. Since it

admits more than 1500 students yearly, it ends up straining in its attempt to offer quality

training with the limited resources owing to the overwhelming numbers.30

MARKET FORCES IN RELATION TO ACCESS TO JUSTICE

Market forces according to the dictionary means the economic factors affecting the price of,

demand for, and availability of a commodity.

One of the key hallmarks of the 2010 constitution is its provision for a robust and progressive

bill of rights. The bill of rights in Kenya’s constitution contains various provisions that have

28
Ibid.
29
Moses Njoroge Muchiri, Emerging Issues in Regulation of Legal Education in Kenya, 2020.
30
Ibid.

31
traditionally been aimed at ensuring access to justice for individuals. Among others, these

include fair trial rights and rights of an accused person. However, the constitution goes on to

further specifically provide for the right of access to justice. Article 48 of the constitution

provides that the state shall ensure access to justice for all persons and, if any fee is required, it

shall be reasonable and shall not limit access to justice. 31 While the spirit of Article 48 is

commendable, there is a lot that needs to be done in order to ensure that Kenyans of all walks of

life are able to access justice. 32

The great majority of Kenyans do not have access to legal services in the formal justice system.

Clement Ochola, an official with Kenya’s Ministry of justice, estimated that Kenya had fewer

than five thousand lawyers, most of who charge for their services. There is no national free legal

aid program in Kenya, and there are few organizations established as legal aid clinics through

which people can obtain free or low-cost legal services. Few cases related to HIV have come

before Kenyan courts, and the country has very limited jurisprudence on issues around AIDS and

human rights.

In the absence of a national legal aid program, most low-cost legal services fall to specialized

nongovernmental organizations that are largely funded by outside donors. FIDA-Kenya, for

example, has provided legal services to women since 1985. The Kituo Cha Sheria (Kiswahili for

Legal Advice Centre) has existed since the 1970s, and continues to offer legal aid to men and

women, mostly from the working middle class. The Centre for Rehabilitation and Education of

Abused Women offers legal aid in addition to providing a shelter for abused women and their

children, but it is the only institution of its kind in Kenya. FIDA staff often refers survivors of

31
Article 48 Kenyan Constitution, 2010
32
Yohan Ouma and Esther Chege, Strathmore University Law School, Kenya, Practice report, law clinics and access to justice in
Kenya: bridging the legal divide. P.g. 111

32
gender-based violence to the centre, though they expressed concern that it may soon be closed

due to lack of financial support. Several organizations provide legal aid to children, including

CLAN (Centre for Legal Action Network), CRADLE (Child Rights Advisory and Legal Centre),

and the Africa Network for the Prevention of Child Abuse and Neglect. However, both legal

restrictions and objections from private practitioners make it difficult for NGOs to provide

effective legal aid. In some cases, NGOs are barred from representing clients on the grounds that

they lack legal standing. As one long-time practitioner on behalf of women has observed,

legislation governing legal practice in Kenya did not foresee the provision of legal aid by non-

traditional actors such as NGOs.33

According to Kamau and Ochieng from FIDA, the formal legal system is overloaded with these

types of cases, and insufficient emphasis is placed on supporting informal methods of mediation

and arbitration. FIDA takes clients who make less than 500 Kenyan shillings (US$7.00) per

month—well below the rate of extreme poverty. FIDA often incurs financial losses subsidizing

transportation and court filing fees for their clients. FIDA stressed the importance of economic

empowerment for their clients, noting that this would help women move their cases through the

system. It is important to note that legal services cannot claim to address the multiple burdens

and vulnerabilities faced by people affected by HIV and AIDS, especially women. Women of all

ages seeking justice for violence or abuses of their inheritance rights, for example, face what one

lawyer in South Africa has termed “cumulative injustice.”34

In addition to being denied her rights, a woman may be illiterate, forced to care for orphaned

children, unable to produce birth certificates establishing registration or land ownership, and

33
J. Thongori, “Nongovermental Experiences in the provision of legal aid Services in Kenya: A Practitioner’s Perspective”
(unpublished manuscript, copy on file at open society institute)
34
As defined by Tara Polzer, director of the Acorn Hoek Advice Centre, South Africa, from 2002-2004 and current advisor to the
program.

33
unemployed due to HIV-related illness. Faced with the prospect of destitution, she may feel her

only option is to be “inherited” by her brother-in-law or to become a sex worker along the nearby

trucking route. For such a woman, seeking legal advice to assert her property rights may be a

low priority. She is faced with so many levels of vulnerability—chronic personal vulnerability

through lack of education, customs and traditions that increase her vulnerability once her

husband dies, discrimination on the basis of her gender, lack of protection of her equal right to

employment, dependence on public health systems that have been slow to provide medication to

the area where she lives—that it may not occur to her to seek legal representation even if such

representation is available. Her multiple levels of vulnerability keep her in a “cycle of silence” in

which she is hardly able to ask for help. It is important to note, however, that sometimes just

taking the first step to seeking justice can be empowering in itself. Accessible legal services

could help poor women see themselves and their plight differently, so they might break out of

this cycle. While it is impossible to address all of these issues at once, a holistic and long-term

strategy toward justice is as necessary as the immediate availability of legal services to those

who need them.35

35
Example adapted from Tara Polzer, “Breaking the cycles of silence: community Justice for the Rural,”

34