[2016] KEHC 7848 (KLR)
The court found that while Article 50(2)(h) of the Constitution guarantees the right to State-appointed counsel where substantial injustice would result, there was no legal mechanism in place at the time of the application to compel the State to provide such counsel for the appellant. The enactment of the Legal Aid...
Source-derived case information.
- Citation
- [2016] KEHC 7848 (KLR)
- Parties
- Appellant: Jefferson Muthee Nganga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 130 of 2013
- Procedural Posture
- Criminal Appeal / Application for State Appointed Counsel Pending Appeal
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Right to Counsel, Fair Trial Rights, Legal Aid, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jefferson Muthee Nganga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for State Appointed Counsel Pending Appeal
Legal Issues
- 1 Whether the State is constitutionally obligated to provide counsel to the appellant at the appellate stage under Article 50(2)(h) of the Constitution.
- 2 Whether the absence of State-appointed counsel for the appellant, who was a minor at the time of arrest, occasioned substantial injustice.
- 3 Whether the court has legal authority to compel the State to provide counsel prior to the operationalization of the Legal Aid Act, 2016.
Ratio Decidendi
The court found that while Article 50(2)(h) of the Constitution guarantees the right to State-appointed counsel where substantial injustice would result, there was no legal mechanism in place at the time of the application to compel the State to provide such counsel for the appellant. The enactment of the Legal Aid Act, 2016 subsequently established a framework for legal aid, but its implementation was pending the establishment of the National Legal Aid Service. The court therefore declined to grant the appellant's request for State-appointed counsel at this stage, advising the appellant to seek legal aid from the designated body once operational. The application was dismissed for the...
Court Disposition
application dismissed
Orders
- The application for State-appointed counsel is dismissed for the time being.
- The appellant may reapply if his application for legal aid under the Legal Aid Act, 2016 is not favourably considered.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.130 OF 2013
(An Appeal arising out of the conviction and sentence of L. MBUGUA - SRM delivered on 25th July 2013 in Nairobi CM. CR. Case No.440 of 2012)
JEFFERSON MUTHEE NGANGA.………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………...........RESPONDENT
RULING
The Appellant, Jefferson Muthee Nganga has applied to this court to compel the State to provide him with counsel as provided under Article 50 of the Constitution. The Appellant stated that on account of failure by the trial court to appoint an advocate to act on his behalf, he was occasioned substantial injustice. In particular, he stated that at the time of his arrest, he was a minor of slightly less than 18 years. He reiterated that the right to counsel was constitutionally enshrined and therefore the State should appoint him an advocate before this appeal is heard. He told the court that his parents were unable to hire a lawyer for him and therefore he was pleading with the court to compel the State to appoint an advocate to act on his behalf in this appeal.
Ms. Aluda for the State opposed the application. She submitted that there was no provision under the law that would compel the State to provide an advocate for the Appellant in this appeal. She stated that the State only budgeted for counsel who will appear on behalf of indigent accused persons who are facing the charge of murder or whose appeal on capital offences was being canvassed at the Court of Appeal. She explained that the Appellant was at liberty to procure any pro bono lawyer to act on his behalf in the case. She was afraid that if the court compelled the State to provide counsel for the Appellant, then a precedent would be set which will ultimately be a burden to the tax payer. She urged the court to dismiss the application.
This court has carefully considered the rival submission made by the parties to this application. Article 50 (2)(h) of the Constitution provides thus:
“Every accused person has the right to fair trial, which includes the right to have an advocate assigned to the accused person by the State at the State expense, if substantial injustice would otherwise result and be informed of this right promptly.”
The Appellant has invoked this Article of the Constitution seeking to compel the State to provide an advocate to act on his behalf on this appeal. At the time the application was heard, there was no legal mechanism upon which this court would have compelled the State to give effect to the said Article of the Constitution. However, with the enactment by Parliament of the Legal Aid Act 2016, such mechanism is now in place. The said Act came into effect on 10th May 2016. TheAct envisages that a body known as National Legal Aid Service (see Section 5 of the Legal Aid Act) will be established in due course to administer legal aid in Kenya. The State shall be required to provide budgetary provision for the establishment of the said body. The Appellant herein is therefore advised to be patient and seek legal aid from the body upon its establishment.
In the premises therefore, this court will not grant the orders sought by the Appellant at this stage. In the event that the Appellant’s application for legal aid from the body established under the Legal Aid Act, 2016 is not favourably considered, he shall be at liberty to file an appropriate application before this court. Otherwise, the application stands dismissed for the time being. It is so ordered.
DATED AT NAIROBI THIS 14TH DAY OF JUNE 2016
L. KIMARU
JUDGE