- Provide legal aid services to indigent, marginalized, and vulnerable persons;
- Establish a legal aid scheme to assist the indigent to access legal aid;
- undertake and promote research in legal aid, and access to justice with special reference to the need for legal aid services among indigent persons and marginalized groups;
- administer and manage the Legal Aid Fund; and
- perform such other functions as may be assigned to it under this Act or any other written law
- receive grants, gifts, donations or endowments and make legitimate disbursements;
- any other expenditure necessary for the purposes of this Act.
- mitigate the likely occasion of loss of any right or the person who may suffer damages;
- mitigate denial of legal aid which would result in substantial injustice to the applicant.
- The idea of legal aid is guaranteed by the Constitution through two key provisions: -
(b.): -Article 50 gives the right to a fair hearing."
-Other provisions of the Constitution relevant to the concept of legal aid include the value of social justice under Article 10; provisions on equality before the law under Article 27; provisions on protection of marginalized and vulnerable persons and the requirement under Article 159 that justice shall be done to all irrespective of status. The overarching notion to be derived from these provisions is that it is difficult to achieve justice where one party has to compete with the elaborate machinery and resources available to the opposite party such as in my GoK imposed indigence where the defendant insurance co AMACO-INSURANCE belongs to the incumbent Ruto, thief and ICC-Indicted character
-The Legal Aid Act 2016 establishes the 'National Legal Aid Service' (the Service) as the successor to NALEAP (s5(1) and (2)). The functions of this Service are, inter alia, to - establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable (s7(1)(a)); facilitate the representation of persons granted legal aid under the Act (s7(1)(l)); assign legal aid providers to persons granted legal aid under the Act; (s7(1)(m); and administer and manage the Legal Aid Fund (s7(1)(p)). Section 29(1) of the Act establishes the Legal Aid Fund.
-Section 30 of the Act expressly provides inter alia for the 'Application of the Legal Aid Fund': "pay the remuneration of legal aid providers for services provided in accordance with this Act; meet the expenses incurred by legal aid providers in providing services under this Act; and meet the expenses of the operations of the Service as approved by the Board."
-Section 35 of the Act provides the general principles of legal aid that: "The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services under this Act; the Service shall provide legal aid services in civil matters; criminal matters; children matters; constitutional matters; matters of public interest; or any other type of case or type of law that the Service may approve. Despite Subsection (2), the Service shall: determine the legal needs of indigent persons and of disadvantaged communities in Kenya; establish priorities for the areas of law, types of proceedings for which it will provide legal aid services; and formulate policies for the kind of legal aid services to be provided in the different areas of law, types of cases and types of proceedings."
-Section 36 of the Act, notes the persons eligible for legal aid and provides that: "A person is eligible to receive legal aid services if that person is indigent, resident in Kenya and is: a citizen of Kenya; a child; a refugee under the Refugees Act (No. 13 of 2006); a victim of human trafficking; or an internally displaced person; or a stateless person. A person who is eligible to receive legal aid services under subsection (1) shall apply to the Service in the prescribed manner. A person shall not receive legal aid services unless the Service has determined that the individual's financial resources are such that the person is eligible for the services. Despite Subsections (1), (2) and (3), the Service shall not provide legal aid services to a person unless the Service is satisfied that: the cost of the proceedings is justifiable in the light of the expected benefits; ... denial of legal aid would result in substantial injustice to the applicant; or there exists any other reasonable ground to justify the grant of legal aid." Part VII of the Act contains provisions on how the application for legal aid should be done.
-In addition to the Constitutional and statutory provisions for the Government to provide legal aid, there is an international framework in place committing the Government of Kenya to provide legal aid. The Government has made commitments under various regional and international human rights instruments to enhance access to justice and provide a state funded legal aid scheme. Some of the international human rights instruments include: the International Covenant on Civil and Political Rights (ICCPR), 1996,The UN Convention on the Rights of the Child (CRC), 1989, The UN Convention on the Rights of Persons Living with Disabilities, 2007, the African Commission on Human and Peoples' Rights (ACHPR),
-Provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory....They must in other words, be able to "argue their cases …on an equal footing."...substantial injustice is likely to result;
-Section 40 of the Act requires that a person who wishes to receive legal aid may apply to the Service in writing so long as such an application is made before the final determination of the matter by a court, tribunal or any other forum to which the application relates.
-In light of the constitutional-and-statutory provisions aforementioned, the provision of legal aid is a constitutional, legal and human right. The appellant is serving a life sentence and in the circumstances of this case, substantial injustice may result unless represented. We therefore find that the applicant, according to Section 41 of the Legal Aid Act is eligible to make the application for legal aid to the Service in person or through any other person authorized by him in writing. The Service may at its discretion grant legal aid to the applicant subject to such terms and conditions, as the Service considers appropriate.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2023.
Erick Otieno Mango: Indigent-Complainant
Appeal virtually submitted and delivered in the knowledge of:-
National Legal Aid Service (NLAS) at info@nlas.go.ke
National Legal Aid and Awareness Programe (NALEAP).at nairobinaleap@gmail.com ;
Commission on Administrative Justice | Office of the Ombudsman at info@ombudsman.go.ke
Office of the Attorney General at communications@ag.go.ke ;
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