Abstract:
Legal aid is defined as legal advice, legal representation, and assistance in
resolving disputes by alternative dispute resolution, drafting relevant
documents ad effecting service incidental to any legal proceedings, and
reaching or giving effect to any out of court settlement as provided for in
section 2 of the Legal Aid Act , 2016. The Black’s Law Dictionary 9th Edition
at page 912, further defines legal aid as the free or inexpensive services
provided to those who cannot afford to pay full price. In a bid to adequately
assess the evolution of legal aid in Kenya, this paper evaluates the position
before and after the promulgation of Constitution of Kenya 2010. Before the
Constitution of Kenya 2010, access to justice in Kenya was bedevilled with
countless challenges including prohibitive court fees, geographical location,
complexity of rules and procedure, use of legalese, understaffing by the
providers of the service, lack of financial independence, lack of effective
remedies, backlog of cases that delays justice, lack of awareness on ADR
and traditional dispute resolution mechanisms. Prior to the promulgation of
the 2010 contitution the government provided indigent persons with legal aid,
however, in a limited matter as elucidated in the National Action Plan Legal
Aid 2017-2020 Kenya. Legal aid was only available to accused persons who
were charged with capital offences of murder facing trial in High Court.
Despite the Civil Procedure Code having a provision for persons to sue as
Paupers the procedure to determine eligibility was and remains nerve
wracking. This paper traces the historical development of legislation and
policy on legal aid in Kenya. Over the years we see how legal aid has evolved
from being more of theoretical aspect to being a prevalent practical service
that is offered across the country. The Constitution of Kenya 2010 and the
Legal Aid Act 2016 strengthened the principle of access to justice as the
instruments birthed the need of effective legal aid provision. Currently, the
the pivotal organ for legal aid and awareness established by the government is
the National Legal Aid Service and the monitoring and evaluation of all the
stakeholders by the institutio