• State presently provides legal assistance to suspects of crimes punished by death.
• Persons currently seeking to sue as paupers face daunting procedures.
Image: FILE
If you earn less than Sh30,000 a month, the government could soon pay for your lawyer.
If you get into legal trouble or summoned by a tribunal in the process of solving a dispute, your legal expenses will be picked up by the Attorney General.
Mentally unstable litigants might also enjoy legal aid through the managers of their estates, guardian, or public trustee appointed by the court.
New rules drawn by Attorney General Kihara Kariuki said legal aid would be available to advise, assist or representation.
The only exception to the rule is burial disputes.
The new rules provide that a person with a net monthly income of below Sh30,000; or whose spouse earns less than Sh30,000 or is a member of a household that earns the sum will qualify for legal aid in a criminal or civil case.
“An applicant who is not a member of a household may qualify for legal aid in relation to a civil or criminal case,” the rules read.
The regulations stand to end over half a century wait for Kenyans to get access to legal aid by the government.
Legal aid services remain limited to capital offences but one can sue as a pauper albeit after undergoing lengthy procedures argued to hamper access to justice.
AG Kihara unveiled the action plan on legal aid in 2017 but the associated laws could not be implemented for lack of the regulations.
So slow has been the uptake that even a circular issued by Chief Justice Martha Koome on Wednesday specified that only robbery suspects would get legal aid.
“It is hereby directed that every person accused of robbery with violence must be provided with legal representation as a matter of right as provided in the Constitution,” the CJ said.
But should the National Assembly Committee on Delegated Legislation approve the proposed regulations, legal aid would be provided to all eligible persons.
In assessing the means of an applicant for legal aid, income tax and living expenses of less than Sh15,000 would not be taken into account.
Payments to a pension scheme as well as spousal maintenance or child support and of spouse whom one is separated will also not be taken into account.
“An applicant who disposes of any movable or immovable assets – directly or indirectly, to qualify for legal aid shall be disqualified from the grant of legal aid,” the rules read.
In the new proposal, the National Legal Aid Services will be devolved to all counties. Persons in need of legal services, advisory and not legal representation will apply there.
“Where an application is made for legal representation, the applicant shall apply to the service nearest office,” the regulations state.
Legal aid would be provided to Kenyans seeking advice concerning any issue, assistance in dispute resolution, drafting documents for cases, or giving effect to out of court settlement.
“A person who has an interest in any civil or criminal proceedings, including a witness, may apply for legal aid,” the rules read.
There would, however, be no aid for civil proceedings in any court outside Kenya whereas parents or legal custodians would be the ones to apply for cases involving children.
“Legal aid in respect of a child offender shall be provided at all stages of criminal justice process – arrest, trial, sentencing and appeal.”
Child offenders shall not be subjected to means test of purposes of determining their eligibility for legal aid.
Legal aid would not be granted where the claim is displeasing or where there is no substantial material benefit likely to accrue to the applicant.
However, legal aid would be provided to persons facing criminal charges regardless of the applicant’s means if the interest of justice requires so.
This would apply to an accused person who is convicted of a criminal offence punishable by life imprisonment or death penalty.
“A beneficiary of legal aid in criminal trial is entitled to legal aid on appeal,” the new rules state.
Where an instructed legal aid provider withdraws services, engages in professional misconduct, ceases to be accredited or quits practice, the legal aid would be terminated.
Advocates would be eligible for accreditation as a legal aid provide as long as they are in the roll and hold a valid annual practicing license.
(Edited by Bilha Makokha)