Legal Aid Act

Section 1. Short title Section This Act may be cited as the Legal Aid Act.

Section 2. Interpretation Section a person who is granted legal aid on an interim basis; and

Section 3. Object of the Act Section providing affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution;

Section 4. Guiding principles Section the national values and principles of governance set out in Article 10 of the Constitution;

Section 5. Establishment of the National Legal Aid Service Section 5(1) There is established a service to be known as the National Legal Aid Service. Section 5(2)(a) suing and being sued; Section 5(2)(b) acquiring, holding, charging or disposing of movable and immovable property; and Section 5(2)(c) doing or performing all such things or acts for the proper discharge of its functions under this Act, which may be lawfully performed by a body corporate. Section 5(3) The Service shall be the successor to the National Legal Aid and Awareness Program existing immediately before the coming into force of this Act.

Section 6. Headquarters Section The headquarters of the Service shall be in the capital city but the Service may establish branches in every County in Kenya to ensure reasonable access of its services.

Section 7. Functions of the Service Section 7(1)(a) establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable; Section 7(1)(b) advise the Cabinet Secretary on matters relating to legal aid in Kenya; Section 7(1)(c) encourage and facilitate the settlement of disputes through alternative dispute resolution; Section 7(1)(d) undertake and promote research in the field of legal aid, and access to justice with special reference to the need for legal aid services among indigent persons and marginalized groups; Section 7(1)(e) take necessary steps to promote public interest litigation with regard to consumer protection, environmental protection and any other matter of special concern to the marginalized groups; Section 7(1)(f) provide grants in aid for specific schemes to various voluntary social service institutions, for the implementation of legal aid services under this Act; Section 7(1)(g) develop and issue guidelines and standards for the establishment of legal aid schemes by Non-Governmental Agencies; Section 7(1)(h) in consultation with the Council of Legal Education, develop programs for legal aid education and the tr...

Section 8. Powers of the Service Section The Service shall have all powers incidental to and necessary for the effective discharge of its functions under this Act and any other written law.

Section 9. Establishment of Board of Service Section 9(1)(a) a person appointed by the President from among persons qualified to be appointed as a judge of the High Court, who shall be the chairperson; Section 9(1)(b) a judge of the High Court nominated by the Chief Justice; Section 9(1)(c) the Principal Secretary in the Ministry for the time being responsible for matters relating to justice; Section 9(1)(d) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance; Section 9(1)(e) the Principal Secretary in the Ministry for the time being responsible for the interior and co-ordination of National Government; Section 9(1)(f) the Director of Public Prosecutions or his representative; Section 9(1)(g) one person nominated by the Law Society of Kenya; Section 9(1)(h) one person nominated by the Kenya National Commission on Human Rights; Section 9(1)(i) one person nominated by the Council for Legal Education from among universities with an operational legal aid clinic; Section 9(1)(j) one person elected by a joint forum of Public Benefit Organizations offering legal aid to the public, including women, youth and children; Section 9(1)(k) one p...

Section 10. Functions of the Board Section formulate and review the policies of the Service;

Section 11. Powers of the Board Section control, supervise and administer the assets of the Service in such manner as best promotes the purposes for which the Service is established;

Section 12. Tenure of office Section 12(1) The chairperson of the Board appointed under section 9 (1) (a) shall be appointed for a single term of six years and shall not be eligible for re-appointment. Section 12(2) A member of the Board, other than a member under section 9 (1) (c), (d), (e), and (g), shall be appointed for a single term of five years and shall not be eligible for re-appointment. Section 12(3) The chairperson and members of the Board shall serve on a part-time basis. Section 12(4)(a) dies; Section 12(4)(b) ceases to be a member of the nominating body under section 9 (1); Section 12(4)(c) is absent from three consecutive meetings of the Board without reasonable cause; Section 12(4)(d) resigns from office by notice in writing addressed to the Cabinet Secretary; Section 12(4)(e) is unable to perform the functions of the office arising out of physical or mental infirmity; Section 12(4)(f) is negligent or incompetent in the performance of his or her functions; Section 12(4)(g) is adjudged or otherwise declared bankrupt under any law in force in Kenya; Section 12(4)(h) violates Chapter Six of the Constitution; or Section 12(4)(i) is convicted of a criminal offence and se...

Section 13. Filling of vacancy Section 13(1) Where a vacancy occurs in the membership of the Board under section 12 (4), the Cabinet Secretary shall appoint a new member in accordance with the provisions of this Act. Section 13(2) An appointment to fill a vacancy shall be for the remainder of the term of the member being replaced and the new member shall be eligible for reappointment.

Section 14. Vacancy not to affect proceedings Section The validity of any proceedings of the Board shall not be affected by any vacancy among its members or by any defect in the appointment of any member or by the fact that a person who was not entitled to do so took part in the proceedings of the Board.

Section 15. Procedures of the Board Section 15(1) The business and affairs of the Board shall be conducted in accordance with the Schedule. Section 15(2) Except as provided in the Schedule, the Board may regulate its own procedure. Section 15(3) The Board may co-opt any person to attend its meetings but that person shall not vote at such meeting.

Section 16. Remuneration of members Section The chairperson, members of the Board and staff of the Service shall be paid such remuneration or allowances as the Public Service Commission may, on the advice of the Salaries and Remuneration Commission, determine.

Section 17. Committees of the Board Section 17(1) The Board may, in the performance of its functions under this Act, constitute such committees of the Board as the Board may consider necessary for the efficient performance of its functions. Section 17(2) The Board may co-opt into the membership of a committee established under subsection (1) any person whose knowledge and skills are considered necessary for the effective discharge of the functions of the Board.

Section 18. Delegation by the Board Section The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law.

Section 19. Engagement of experts and consultants Section 19(1) The Board may engage the service of experts and consultants in respect of any of the functions of the Service. Section 19(2) An expert or consultant engaged under this section may be paid such fees and allowances as the Board may determine.

Section 20. Coordination with other agencies Section promote the establishment of legal aid schemes by governmental and non-governmental agencies; and

Section 21. Protection from Personal liability Section No matter or thing done by a member of the Board or any officer, employee or agent of the Board shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Board, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.

Section 22. Liability of the Board for damages Section The provisions of section 21 shall not relieve the Board of the liability to pay compensation or damages to any person for an injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, or any works.

Section 23. Independence of the Board Section The Board shall not be subject to the direction or control of any person or authority in the performance of its functions.

Section 24. The Director Section 24(1) There shall be a Director of the Service who shall be recruited competitively by the Board. Section 24(2) The Director shall be the Secretary to the Board. Section 24(3)(a) is a citizen of Kenya; Section 24(3)(b) has been an advocate of the High Court of Kenya for at least seven years; and Section 24(3)(c) meets the requirements of Chapter Six of the Constitution. Section 24(4)(a) implementing the decisions of the Board; Section 24(4)(a)(i) implementing the decisions of the Board; Section 24(4)(a)(ii) the day-to-day administration and management and the control of the other staff of the Service; and Section 24(4)(a)(iii) the arrangement of business, recording and keeping of the minutes of the Board and such other records as the Board may direct; Section 24(4)(b) subject to the general or special direction of the Board, manage and disburse funds from the Legal Aid Fund for the purposes of this Act; and Section 24(4)(c) perform such other functions as may be assigned by the Board. Section 24(5) The Director shall be an ex officio member of the Board with no right to vote at any meeting of the Board. Section 24(6) The Director shall hold office f...

Section 25. Removal of Director Section 25(1)(a) inability to perform the functions of the office of Director arising out of physical or mental incapacity; Section 25(1)(b) gross misconduct; Section 25(1)(c) incompetence or neglect of duty; or Section 25(1)(d) violation of the Constitution. Section 25(2)(a) inform the Director in writing of the reasons for the intended removal; Section 25(2)(b) give the Director an opportunity to be heard in accordance with the provisions of the Fair Administrative Action Act (Cap. 7L).

Section 26. Delegation powers of Director Section The Director may, with the approval of the Board, delegate in writing any of his or her powers or functions under this Act or any other written law to any other officer or member of staff on the terms specified in the instrument of delegation.

Section 27. Staff of the Service Section 27(1) There shall be a secretariat of the Service which shall provide administrative, secretarial and other assistance to the Service. Section 27(2)(a) such professional, technical and administrative officers and support staff as may be appointed by the Board in the discharge of its functions; and Section 27(2)(b) such public officers as may be seconded by the Public Service Commission upon the request of the Service. Section 27(3) The members of staff of the Service shall be paid such remuneration or allowances as the Board may, in consultation with the Salaries and Remuneration Commission, determine.

Section 28. Common seal of the Service Section 28(1) The common seal of the Service shall be kept in such custody as the Board shall direct and shall not be used except on the order of the Board. Section 28(2) The affixing of the common seal shall be authenticated by the chairperson or any other person authorized by a resolution of the Board. Section 28(3) The common seal of the Service shall, when affixed to a document and duly authenticated, be judicially and officially noticed and unless the contrary is proved, any necessary order or authorization of the Board under this section shall be presumed to have been duly given.

Section 69. Terms of provision of funded services Section 69(1)(a) pay a fee of such amount as may be determined by the Service; Section 69(1)(b) if the financial resources of the aided person are, or relevant conduct is, such as to make the aided person liable to do so, pay the cost of the services or make a contribution in respect of the cost of the services of such amount as may be prescribed; or Section 69(1)(c) if the services relate to a dispute and the aided person has agreed to make a payment (which may exceed the cost of the services) only in specified circumstances, make in those circumstances a payment of the amount agreed or determined in the manner agreed by the aided person. Section 69(2) For purposes of this section, "relevant conduct" means conduct in connection with the services, an application for funding or any proceedings in relation to which they are provided.

Section 70. Recovery of costs and benefits Section 70(1) Where the Service or an advocate who is accredited under section 59 (1) has assisted an aided person who has been awarded costs in any proceedings, the aided person is deemed to have surrendered the costs to the Service, and the Service shall be entitled to such costs. Section 70(2) Where an aided person has been compensated through an award of damages in any proceedings, such person shall be entitled to the award, provided that the service shall have the right to deduct from the award, the costs it incurred in respect of the proceedings.

Section 71. Enforcement of judgment Section A legal aid provider shall take the steps necessary to enforce a judgment or an out-of-court settlement in order to recover the proceeds of proceedings.

Section 29. Establishment of Legal Aid Fund Section 29(1) There is established a fund, to be known as the Legal Aid Fund, which shall vest in and be managed by the Service. Section 29(2)(a) moneys allocated by Parliament for the purposes of the Service; Section 29(2)(b) any grants, gifts, donations, loans or other endowments given to the Service; Section 29(2)(c) such 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 this Act; and Section 29(2)(d) moneys from any other lawful source accruing to the Fund. Section 29(3) The Service shall open and maintain such bank accounts as are necessary into which shall be paid monies payable to the Fund.

Section 30. Application of the Fund Section defray the expenses incurred in the representation of persons granted legal aid in accordance with this Act;

Section 31. Financial Year Section The financial year of the Fund shall be the period of twelve months commencing on the first of July and ending on the thirtieth June of the subsequent year.

Section 32. Annual estimates Section 32(1) At least three months before the commencement of each financial year the Board shall cause to be prepared estimates of the revenue and expenditure of the Service for that financial year. Section 32(2)(a) the expenses stipulated in section 30 ; Section 32(2)(b) the payment of salaries, allowances and other charges in respect of the members of the Board and staff of the Service; Section 32(2)(c) the payment of pensions, gratuities and other charges in respect of benefits which are payable out of the funds of the Service; Section 32(2)(d) the proper maintenance of the buildings and grounds of the Service; Section 32(2)(e) the maintenance, repair and replacement of the equipment and other property of the Service; Section 32(2)(f) the funding of training, research and development activities of the Service; Section 32(2)(g) the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the Service may think fit; and Section 32(2)(h) any other expenditure necessary for the purposes of this Act. Section 32(3) The a...

Section 33. Investment of funds Section 33(1) The Service may, subject to the approval of the Cabinet Secretary for the time being responsible for matters relating to finance, invest any funds not immediately required for its purposes, as it may determine. Section 33(2) The Board may place or deposit with such bank or banks as it may determine any money not immediately required for the purposes of the Board.

Section 34. Accounts and Audit Section 34(1) The Board shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Service. Section 34(2)(a) statement of the income and expenditure of the Service during that year; and Section 34(2)(b) statement of the assets and liabilities of the Service on the last day of that financial year. Section 34(3) The annual accounts of the Service shall be prepared, audited and reported upon in accordance with the provisions the Article 226 and 229 of the Constitution and the law relating to public audit.

Section 35. General principles of legal aid Section 35(1) The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services under this Act. Section 35(2)(a) civil matters; Section 35(2)(b) criminal matters; Section 35(2)(c) children matters; Section 35(2)(d) constitutional matters; Section 35(2)(e) matters of public interest; or Section 35(2)(f) any other type of case or type of law that the Service may approve. Section 35(3)(a) determine the legal needs of indigent persons and of disadvantaged communities in Kenya; Section 35(3)(b) establish priorities for the areas of law, types of proceedings for which it will provide legal aid services; and Section 35(3)(c) 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 35(4) The Service shall establish and administer a cost effective and efficient system for providing high quality legal services within the financial resources available to the Service. Section 35(5)(a) the assistance or representation through legal aid shall not affect the relationship between the rights of an advocate and a...

Section 36. Persons eligible for legal aid Section 36(1)(a) a citizen of Kenya; Section 36(1)(b) a child; Section 36(1)(c) a refugee under the Refugees Act (Cap. 173); Section 36(1)(d) a victim of human trafficking; or Section 36(1)(e) an internally displaced person; or Section 36(1)(f) a stateless person. Section 36(2) A person who is eligible to receive legal aid services under subsection (1) shall apply to the Service in the prescribed manner. Section 36(3) 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. Section 36(4)(a) the cost of the proceedings is justifiable in the light of the expected benefits; Section 36(4)(b) resources are available to meet the cost of the legal aid services sought; Section 36(4)(c) it is appropriate to offer the services having regard to the present and future demands; Section 36(4)(d) the nature, seriousness and importance of the proceedings to the individual justify such expense; Section 36(4)(e) the claim in respect of which legal aid is sought has a probability of success; Section 36(4)(f) the conduct of the person warran...

Section 37. Legal aid not available in certain civil matters Section to a company, corporation, trust, public institution, civil society, Non-Governmental Organization or other artificial person;

Section 38. Several parties to a suit Section 38(1) The Service may grant legal aid to an applicant in a matter in which more than one person is a party with the same interest and the applicant is entitled to sue or has been sued on behalf of all those persons. Section 38(2) Except in the case of public interest matters, if an applicant has the right to be joined with others as a plaintiff in one action because a common question of law or fact arises, the Service may grant legal aid to the applicant that is limited to the proceedings necessary to preserve the applicant's right to relief.

Section 39. Alternative dispute resolution Section 39(1) The Service may, where it deems it necessary, recommend an aided person to alternative forms of dispute resolution and may for that purpose, provide the aided person with such services at the expense of the Service. Section 39(2)(a) an employee of the Service; or Section 39(2)(b) a person or institution with expertise in the area of alternative dispute resolution that is engaged by the Service specifically to conduct an alternative dispute resolution programme.

Section 40. Application for legal aid Section 40(1) A person who wishes to receive legal aid, shall apply to the Service in writing. Section 40(2) Where a person wishes to apply for legal aid the person shall apply before the final determination of the matter by a court, tribunal or any other forum to which the application relates. Section 40(3) An application under subsection (1) shall be assessed, with respect to the applicants' eligibility for legal aid services in accordance with this Act.

Section 41. Persons who may apply for legal aid Section the applicant in person;

Section 42. Persons in lawful custody Section 42(1)(a) ensure that every person held in custody, is informed, in language that the person understands, of the availability of legal aid on being admitted to custody and is asked whether he or she desires to seek legal aid; Section 42(1)(b) maintain a register in which shall be entered the name of every person held there and the response of each such person when asked if he or she desires to seek legal aid; and Section 42(1)(c) ensure that a legal aid application form is made by a person in their custody wishing to apply for legal aid and shall inform the Service of the application within twenty-four hours of the making of the application. Section 42(2) A person who willfully obstructs a person held in lawful custody from applying for legal aid commits an offence.

Section 43. Duties of the court Section 43(1)(a) promptly inform the accused of his or her right to legal representation; Section 43(1)(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and Section 43(1)(c) inform the Service to provide legal aid to the accused person. Section 43(1A)(a) the severity of the charge and sentence; Section 43(1A)(b) the complexity of the case; and Section 43(1A)(c) the capacity of the accused to defend themselves. Section 43(2) The Service shall provide legal aid to the accused person in accordance with this Act. Section 43(3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child. Section 43(4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused. Section 43(5) The provision of legal representation under sub-section (4) shall be subje...

Section 44. Decision on application for legal aid Section 44(1)(a) grant legal aid to the applicant subject to such terms and conditions as the Service considers appropriate; Section 44(1)(b) grant legal aid to the applicant on an interim basis pending further consideration of the application; or Section 44(1)(c) refuse to grant legal aid to the applicant. Section 44(2)(a) the conditions, if any, attaching to the grant; Section 44(2)(b) the name of the accredited legal aid provider assigned to the aided person; and Section 44(2)(c) may specify a maximum grant. Section 44(3) The Service shall make a decision on every application for legal aid without undue delay but not later than forty eight hours from the date of receipt, by the Service, of such application. Section 44(4)(a) the conditions, if any, attaching to the grant of legal aid; Section 44(4)(b) the matter for which the legal aid is granted or not granted; Section 44(4)(c) the date on which the grant of legal aid takes effect; Section 44(4)(d) the benefits included in the grant of legal aid; Section 44(4)(e) the possible deductible amount from the grant to the aided person; and Section 44(4)(f) the name of the legal aid prov...

Section 45. Notification of other parties Section 45(1) Where a party to civil proceedings is granted legal aid, the legal aid provider under the grant shall immediately give notice of that fact to every other party to the proceedings, and to the Registrar of the relevant court. Section 45(2) If any other person subsequently becomes a party to the proceedings, the legal aid provider shall give notice to the new party. Section 45(3) If the grant of legal aid is withdrawn, the legal aid provider under the grant shall immediately notify all parties to the proceedings and the Registrar of the relevant court, of that fact.

Section 46. Notification of change in circumstances Section 46(1)(a) any increase in the income or disposable capital of the applicant by an amount that may affect the aided person's eligibility for legal aid; and Section 46(1)(b) any change in the address of the applicant, aided person or of the person acting for the aided person. Section 46(2) For the purposes of subsection (1), an aided person is deemed to have waived any legal professional privilege that might otherwise prevent a person acting for the aided person from complying with that subsection. Section 46(3)(a) shall cancel the certificate issued under section 44 (6) and cease to provide legal aid services to the aided person; Section 46(3)(b) may declare that, with respect to part of the legal aid services rendered, the aided person is not entitled to legal aid services; and Section 46(3)(c) may recover from the aided person the amount that it has paid or is obligated to pay to the legal aid provider. Section 46(4) Where an advocate or legal aid service provider knowingly fails to give information under subsection (1) (a), the Service shall, with respect to part or all of the legal aid services declare that the advocate,...

Section 47. Financial information Section The Service may require an aided person to provide up-to-date information about the person's financial means if the Service requires the information to make any decision under this Act.