Legal Aid Act

This Act may be cited as the Legal Aid Act.

Defines the phrase 'a person who is granted legal aid on an interim basis; and'.

Provides affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution.

Declares that the national values and principles of governance set out in Article 10 of the Constitution are guiding principles.

Establishes the National Legal Aid Service.

The Service must have its headquarters in the capital city and may establish branches in every County in Kenya to ensure reasonable access to its services.

Section 7 lists the functions of the Service, requiring the Service to establish and administer a national legal aid scheme and to perform a range of related duties including advising the Cabinet Secretary, promoting ADR and legal literacy, managing grants and the Legal Aid Fund, supervising paralegals and legal aid services, and issuing guidelines and standards.

The Service has all powers incidental to and necessary for the effective discharge of its functions under this Act and any other written law.

The Board formulates and reviews the policies of the Service.

The Board has the power to control, supervise and administer the Service's assets so as to promote the Service's purposes.

Chairperson is appointed for a single six-year term and cannot be reappointed; most other members are appointed for a single five-year term and cannot be reappointed. Chairperson and members serve on a part‑time basis.

If a vacancy occurs on the Board under section 12(4), the Cabinet Secretary must appoint a new member.

The validity of any Board proceedings is not affected by vacancies, defects in appointment, or participation by someone not entitled.

The Board must run its business according to the Schedule; except as the Schedule provides, the Board may set its own procedures; the Board may co-opt persons to attend meetings but those co-opted persons may not vote.

The chairperson, members of the Board and staff of the Service are entitled to be paid remuneration or allowances determined by the Public Service Commission on the advice of the Salaries and Remuneration Commission.

The Board may create committees to help perform its functions and may co-opt qualified persons into committees.

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

The Board may engage experts and consultants; those engaged may be paid fees and allowances as the Board determines.

Promote the establishment of legal aid schemes by governmental and non-governmental agencies.

Members of the Board and its officers, employees or agents acting bona fide in executing the Board's functions are not personally liable for actions, claims or demands arising from those acts.

The Board remains liable to pay compensation or damages to any person for injury to the person, property or interests caused by the Board's exercise of powers, by any written law, or by failure or works.

The Board must not be subject to direction or control by any person or authority when performing its functions.

Establishes a Board of Service and lists its composition, nomination and appointment processes, qualification and disqualification criteria, and gender balance requirement.

Establishes a Director of the Service to be competitively recruited by the Board, who serves as Secretary to the Board, performs management and administrative functions, manages the Legal Aid Fund subject to the Board, is an ex officio non-voting Board member, serves a three-year term and may be re-appointed once.

Lists grounds for removal of the Director (incapacity, gross misconduct, incompetence or neglect of duty, violation of the Constitution) and requires giving the Director written reasons and an opportunity to be heard.

The Director may, with the Board's approval and in writing, delegate any of their powers or functions under this Act or any other written law to another officer or staff member according to the instrument of delegation.

Section 27 establishes a secretariat for the Service to provide administrative, secretarial and other assistance; the Board may appoint professional, technical and administrative officers and support staff; the Public Service Commission may second public officers on request of the Service; members of staff shall be paid remuneration or allowances as the Board may determine in consultation with the Salaries and Remuneration Commission.

The Board directs custody of the Service's common seal; the seal must be authenticated by the chairperson or a person authorized by Board resolution when affixed; an affixed and authenticated seal is judicially and officially noticed.

Aided persons must pay service costs or prescribed contributions when their financial resources or conduct make them liable, and must pay agreed payments in disputes when they have agreed to do so.

If the Service or an accredited advocate assisted an aided person who is awarded costs, the aided person is deemed to have surrendered those costs to the Service, and the Service is entitled to them; if an aided person receives damages, the aided person is entitled to the award but the Service may deduct costs it incurred.

A legal aid provider must take the necessary steps to enforce a judgment or an out-of-court settlement to recover the proceeds of proceedings.

Establishes the Legal Aid Fund which vests in and is to be managed by the Service; the Service must open and maintain necessary bank accounts for monies payable to the Fund and the Fund may receive specified sources of money.

The Fund must defray expenses for representing persons granted legal aid in accordance with this Act.

The financial year of the Fund is a period of twelve months running from 1 July to 30 June of the following year.

The Board must prepare annual revenue and expenditure estimates and submit them for approval before the financial year starts.

The Service may invest funds not immediately required for its purposes subject to Cabinet Secretary approval; the Board may place or deposit money not immediately required with banks.

The Board must keep proper accounting books and the Service's annual accounts must be prepared, audited and reported in line with constitutional and public audit law.

The Service must provide legal aid services at State expense to persons who qualify under the Act and must set up a cost‑effective system within its available finances.

Section 36 lists categories of persons eligible for legal aid, requires eligible persons to apply to the Service in the prescribed manner, and states that a person shall not receive legal aid unless the Service determines financial eligibility.

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

The Service may grant legal aid to an applicant where multiple persons share the same interest and the applicant can sue or has been sued on behalf of them; and, except for public interest matters, may grant limited legal aid to preserve an applicant's right to relief when they have the right to be joined with others as a plaintiff.

The Service may recommend aided persons to alternative dispute resolution and may provide such ADR services at the Service's expense.

People seeking legal aid must apply in writing to the Service, and must do so before the final determination of the matter.

The applicant may apply for legal aid in person.

Section 42 requires that persons held in custody are informed, in a language they understand, about availability of legal aid and asked if they wish to seek it; a register of names and responses must be maintained; a custody person wishing to apply must make a legal aid application form and the Service must be informed within twenty-four hours; and a person who willfully obstructs someone in custody from applying commits an offence.

Courts must inform accused persons of rights to legal representation and may order the Service to provide representation; the Service must provide legal aid under the Act.

The Service must decide every application for legal aid without undue delay and not later than forty eight hours from receipt.

When legal aid is granted or withdrawn, the legal aid provider must immediately notify every other party and the Registrar; the provider must also notify any person who later becomes a party.

Requires notification of increases in income or disposable capital and changes of address relevant to legal aid eligibility; waives privilege for aided persons for compliance purposes; the Service may deny or recover payments if advocates or providers fail to provide required information.

The Service may require an aided person to provide up-to-date information about the person's financial means when the Service needs it to make a decision under this Act.

The Service must give the aided person written notice of a subsection (1) decision within fifteen days.

An aided person may apply to the Service for a review of the grant of legal aid where a decision has been made on an application for legal aid.

A legal aid provider appointed by the Service who is aggrieved by a decision about an amount payable by the Service may apply to the Service for a review of that decision.

The Service must send written notice of its decision within seven days to the aided person and the designated legal aid provider; after that notice the Service is not liable for costs incurred, and services provided after cessation of legal aid are not the Service's responsibility.

Sets what must be included in a withdrawal notice, allows aided persons or legal aid providers to object within 14 days, requires the Service to notify of its final decision within 14 days of an objection, and requires the Service to notify parties and the Court within 7 days when a grant is withdrawn.

When legal aid is withdrawn, certain obligations arise for the aided person and the Service; the Service and legal aid providers have rights to enforce or recover amounts, and providers must apply to Court to stop providing services.

An aided person may apply to terminate a designated legal aid provider for good cause; the Service must notify the provider within seven days, must appoint another provider, must follow the Fair Administrative Action Act when deciding, providers may make representations, and a terminated provider is entitled to payment for prior services.

An applicant, an aided person or a legal aid provider who is aggrieved by a decision of the Service may appeal to the High Court within thirty days of the decision.

A person or organization shall not provide legal aid services under this Act unless accredited to provide those services.

The Service must, through regulation, develop and adopt accreditation criteria for persons and institutions to provide legal aid services, and must consult specified bodies when developing those criteria.

Persons or organisations who wish to provide legal aid services must apply to the Service for accreditation in the prescribed manner.

The Service may accredit a person or an institution providing the services prescribed by the Service.

Section 60 prescribes the contents of the register of accredited legal aid providers and requires the register to be publicized and made available, including in electronic or accessible formats.

The Service must develop a code of conduct for accredited legal aid providers; providing services under this Act does not affect providers' existing rights, obligations, responsibilities, or duties under their professional bodies (except as expressly provided by or under the Act).

Legal aid providers, their agents, and staff must not demand, request, or receive payment from aided persons for services under this Act unless that payment is authorized by the Act; anyone who does so commits an offence.

An accredited legal aid provider must pay all disbursements for a matter in which legal aid was granted and may claim reimbursement of those costs.

Legal aid providers must inform the Service if they are aware the aided person is avoiding payments; if such duties are not fulfilled, the Service may deduct those amounts from money it owes that person.

The Service shall monitor and evaluate the activities and the quality of legal representation offered by a legal aid provider under subsection (1).

Section 66 sets out suspension rules for accredited legal aid providers, including notice, cessation of service, payment consequences, review requests, and Service notification timelines.

The Service may cancel a provider's accreditation for specified reasons; when it cancels, the Service must give written notice within seven days, the provider must stop providing the service, the Service will not pay for services after cancellation, and the provider may request a review within fourteen days.

Accredited paralegals employed by the Service or supervised by an accredited body may provide legal advice and assistance; they must not charge fees to persons who qualify for legal aid, and charging such a fee is an offence.

The court shall not award costs against a person who received legal aid and lost, except in specified exceptional circumstances.

If an order is made under section 72 that an aided person is liable for costs, the Service is not liable to pay those costs.

An aided person is not required to provide security for costs in litigation or appeals, except in exceptional circumstances; also, an order for security for costs cannot be enforced against the Service or an accredited legal aid provider.

The Service must determine scales of fees payable to contracted legal aid providers, consulting relevant professional bodies; in exceptional circumstances it may enter agreements on different terms; the scale fees must be less than fees for persons not aided by the Service.

Legal aid providers may claim payment for fees or charges due to them.

The Service must examine every claim or part of a claim to ensure it matches approved rates and the applicable agreement; the Service may audit the quality and value of services provided by legal aid providers paid by the Service.

The Service must pay legal aid providers for every claim (or part of a claim) it approves, and the Service must not withhold payment of part of a claim because another part is deferred or declined.

An aided person is entitled not to be required to make any payment for legal aid services except where otherwise provided.

The Service must refund any amount an aided person pays that is more than they are required to pay.

The Service may waive its right to recover a debt in specified circumstances, must notify the debtor when it does so, and must still pay legal service providers under the grant.

Members of the Service, their employees, and accredited legal aid providers must not disclose personal information about an aided person obtained in the course of their duties, except for the purposes of this Act.

The Service must submit an annual report to the Cabinet Secretary within three months after each financial year; the report must include specified items, the Service must publish the report, the Cabinet Secretary must send it to the National Assembly within one month with views, and the Service must provide other reports when requested in writing by the Cabinet Secretary.

Section 84. Legal Aid Guide

Knowingly subverting the provision of legal aid, obstructing the Service in its functions, or otherwise interfering with the Service are offences; persons convicted where no other penalty is provided face a fine up to two hundred and fifty thousand shillings or imprisonment up to one year, or both.

The Cabinet Secretary may make regulations to better carry into effect the provisions of this Act.

Transitional rules: the existing National Legal Aid and Awareness Steering Committee will act as the Board until the Board is established; ongoing pilot cases will continue and be concluded as the Service decides; assets of pilots transfer to the Service; liabilities of pilots become liabilities of the Service; and the Service is bound by existing contracts to which the Programme was a party.