Introduction
This blog critically reappraises Kenya’s Legal Aid Act, 2016 (hereinafter the Act), a decade after its enactment, examining whether it has fulfilled its constitutional promise to guarantee access to justice and the right to a fair trial, including legal representation.
At the heart of this inquiry is an illustration of how eligibility thresholds can become barriers rather than gateways. Under the current framework, a person earning Ksh. 30,000 per month may be excluded from legal aid, while another earning Ksh. 29,999 qualifies. This distinction is not based on an actual ability to afford legal representation but on a rigid income threshold that determines eligibility. The blog argues that this narrow eligibility criteria exclude the working poor: individuals who earn slightly above the prescribed limit yet remain unable to afford legal services. While both the indigent and the working poor require legal assistance, only one group qualifies, leaving many to navigate complex legal processes without representation thus deepening inequalities in access to justice.
The blog contends that, unless reformed, the Act risks entrenching unequal access to justice. To address these shortcomings, the blog proposes expanding eligibility criteria, operationalising the Legal Aid Fund to ensure sustainable financing, and providing remuneration to university law clinics. These reforms are essential to transform access to justice from a constitutional aspiration into a practical reality for all.
The Legal Aid Act was enacted as a transformative instrument to give effect to constitutional provisions that; promote social justice[1], guarantee that all persons have a right to access justice[2] and fair trial, including legal representation.[3] At its core, the Act was meant to dismantle the long-standing reality that justice is often dependent on one’s ability to pay for legal services.[4] While the Act has expanded access to justice for the indigent persons,[5] it has left a significant gap for another group, the working poor.[6] Both groups need legal aid, but currently only one qualifies. This exclusion reflects the system’s eligibility criteria, which only captures one form of economic vulnerability. The blog therefore argues that legal aid in Kenya does not operate as a universal constitutional right but as a selective entitlement. The working poor; individuals who are employed but whose income cannot fully meet their basic needs are a key subject of this critique; employed and taxpaying, yet excluded from state-supported legal aid.[7] The blog proceeds in five parts: first; it analyses the legal framework; second, it examines who are the working poor; third, it analyses the two-tier justice system created; fourth, it calls for a change from threshold to reality and finally it concludes by giving recommendations.
- The Legal Framework: Where inclusion ends
The Legal Act establishes the National Legal Aid Services (hereinafter referred to as “NLAS”) as the central body responsible for administering legal aid.[8] NLAS outlines the eligibility criteria, accredits providers and defines the scope of services.[9] In theory, the framework aligns with constitutional and international obligations. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), for example, guarantees the right of an accused person to legal assistance, including state-assigned representation where the interests of justice so require and where the person lacks sufficient means to pay for it.[10]
The Act provides that a person is eligible to receive legal aid services if that person is indigent, resident in Kenya, and falls within one of the specified categories: a citizen of Kenya; a child; a refugee under the Refugees Act; a victim of human trafficking; an internally displaced person; or a stateless person.[11] The Act provides that a person is eligible to receive legal aid services if that person is indigent and resides in Kenya.[12] Section 2 of the Act defines an indigent person as one who cannot pay for legal services.[13] Through the NLAS means test, this has been operationalised using income thresholds where legal aid services are provided to persons who earn a monthly income of below KSh.30,000.[14]
In practise, individuals earning slightly above this threshold are automatically excluded from legal aid. The consequence is stark. A person earning Ksh.29,999 qualifies for legal aid, while another earning Ksh.30,000 or 31,000 does not, despite both being equally unable to afford a lawyer.
In this sense, access to justice in Kenya is not determined by need, but by whether one falls just below or just above an inflexible threshold.[15] The Ksh.30,000 benchmark therefore does more than define eligibility, it actively produces inequality.
- The working poor: Systemically excluded
The working poor though not indigent in the strict statutory sense are functionally excluded from justice. The working poor identified in this blog includes a portion of the 20.2 million individuals currently unable to meet their needs according to the Kenya Bureau of Statistics.[16] The working poor, form the largest group affected by this framework. They include boda boda riders, small-scale traders, domestic workers, and casual labourers: individuals whose incomes are modest and often unstable.
The legal system is inaccessible to this group not because legal aid does not exist, but because it is structured in a way that excludes them. This exclusion is a direct outcome of a system that defines need too narrowly and ignores the realities of economic vulnerability.
The consequence of this exclusion is most visible in daily legal disputes. An individual involved in a civil or criminal case, who falls above the eligibility criteria, must either hire a lawyer or appear as an unrepresented litigant if they cannot hire one. Self-representation places such individuals being the working group, at a severe disadvantage.[17] Courtroom dynamics such as cross examination and evidentiary rules favour trained advocates.[18]
Kenyan jurisprudence has recognised this imbalance. In David Njoroge Macharia v Republic (2011), the Court of Appeal stipulated that the right to legal representation is almost an axiomatic in adversarial systems like Kenya. Adopting Lord Denning’s quote, the court highlighted that “a layman defending himself cannot clearly bring out the points in his own favour or the weakness of the other side because of confusion, nervousness, may be wanting in intelligence and inability to cross examine. Therefore, if justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer”.[19]
Legal representation is essential yet, for the working poor, this principle remains largely theoretical. Their exclusion means that the right to legal representation exists in law, not practice.
- The two-tier justice system created
The cumulative effect of the dynamics of the indigent and the working poor leads to emergence of a two-tier justice system. On one level are the indigent, who qualify for legal aid and receive state-supported representation while on another, are working poor who do not qualify and must navigate the system alone. This division creates procedural inequality, as unrepresented litigants struggle to present their cases effectively increasing the likelihood of unjust outcomes. Moreover, it also burdens the judiciary, as courts must accommodate self-representing litigants who lack legal knowledge and hold them at the same standards as attorneys, creating a high risk of unfavorable, binding judgments.[20]
Most significantly, it undermines the principle of equality before the law as enshrined in Article 27 of the constitution since justice becomes dependent not on rights, but on one’s position relative to a fixed income threshold.[21]
- Rethinking legal aid: From threshold to realities
The existence of the Act creates an impression that access to justice has been secured. However, this impression is misleading. By setting a rigid eligibility threshold, the Act creates an illusion of progress as the system addresses only a fraction of those in need, leaving many others without access.
The Act masks the structural inequality embedded within the framework. Access to justice should not depend on whether one falls within a narrowly defined income bracket as it is a necessity for any fair society.[22] Instead, a more realistic approach would recognise that inability to afford legal representation exists across a spectrum. Legal aid must be flexible, inclusive, and responsive to real economic conditions.
- Recommendations
“To keep democracy then there must be one commandment: Thou shalt not ration justice”[23]
“In a modern democratic society, lawyers are necessities, not luxuries”[24]
The inequality that ultimately rations justice identified in this blog, particularly the exclusion of the working poor flows from narrow eligibility rules and limited funding. The following reforms target those pressure points directly and are designed to expand access without diluting focus on those most in need. These are:
Replace the Ksh.30,000 threshold with a sliding scale model
The current eligibility system should be replaced with a graduated, capacity-based model. Instead of a hard cut-off, eligibility should reflect real ability to pay, assessed through income bands and household obligations. For example: Those earning below Ksh. 30,000 would receive fully subsidised legal aid; those with limited capacity would access partially subsidised assistance. This approach eliminates the cliff effect; where earning Ksh.30,000 rather than Ksh.29,999 leads to total exclusion and ensures that need, not an arbitrary threshold, determines access to state facilitated legal representation.
Implementation should include: standardised assessment tools that factor dependants, rent, and irregular income; periodic review of bands to reflect inflation; and simplified application procedures to reduce administrative burden. This sliding scale eliminates the cliff effect, since captures the economic reality of the working poor.
Prioritise the immediate operationalisation of the legal aid fund to ensure sustainability
While the Act was enacted in 2016, its most critical engine, the legal aid fund remains unrealised due to limited budgetary allocations.[25]
Currently, NLAS relies heavily on development partners whose support is often temporary and tied to specific targets.[26] To bridge the widening justice gap, the government must fulfil its commitment to fully fund this mechanism, moving from a model of charity-based justice to a sustainable, state-funded mandate that can reliably remunerate legal aid providers and cover the expenses of represented persons.
This funding imperative extends to university law clinics, which the Act already recognises as legal aid service providers.[27] Operationalising the legal aid fund to provide sustained funding to law clinics, would allow them increase their caseloads, expand outreach programmes, and serve more people converting what is currently a fragmented, voluntary ecosystem into a reliable extension of the legal aid system and reducing both geographic and cost barriers to access.
A notable example is the Kabarak University law clinic namely; Centre for Legal Aid and Clinical Legal Education (CLACLE) which offers legal representation, creates legal awareness to members of community whilst employing student supervised participation under qualified advocating promoting social justice and increasing access to justice.[28]
Conclusion
A decade after its enactment, the Act stands at a critical crossroads. While it has supported some indigent persons through statutory recognition, inconsistent funding and an inoperative legal aid fund means that even this group faces unreliable access. Its failure to also address the needs of the working poor has produced a justice system that is formally committed to equality but practically defined by exclusion.
In doing so, it has not eliminated inequality but reorganised it. True access to justice requires a system that recognises the realities of all those who cannot afford legal representation whether they fall above or below an income threshold. Until legal aid is extended to everyone who genuinely needs it, the promise of equal justice under the law will remain unfulfilled.
* Emmanuel Kalama is an LLB Candidate at Kabarak University, where he currently serves as the Chairperson of the Kabarak Law Clinic (CLACLE).He is a dedicated and highly motivated, law student at Kabarak University with a strong orientation in legal research, advocacy, and access to justice.
[1] Constitution of Kenya (2010), Article 19(2).
[2] Constitution of Kenya (2010), Article 48.
[3] Constitution of Kenya (2010), Article 50.
[4] Damaris Kemunto, “Legal And Regulatory Gaps Inherent to the Implementation Of The Legal Aid Act”, International Commission of Jurists, Kenya section, 6 March 2024 -< https://icj-kenya.org/news/legal-and-regulatory-gaps-inherent-to-the-implementation-of-the-legal-aid-act/#:~:text=Legal%20aid%20services%20to%20vulnerable,thus%20hindering%20its%20full%20operationalization> -on 20 March 2026. See also Onyango Aaron Ojoth, “Rethinking The National Legal Aid Service”, (2021) Journalofcmsd Volume 7(1), p 11 -< https://journalofcmsd.net/wp-content/uploads/2021/08/Rethinking-The-National-Legal-Aid-Service-.pdf >- on 20 March 2026.
[5] Legal Aid Act (No. 6 of 2016), Section 36.
[6] Nanjala, Christine, “Determinants of effective legal Aid service delivery in Kenya” International Journal of Social Sciences and Entrepreneurship, 1 (5), 271-288, 2013
[7] International Labour Organization, “The working poor or how a job is no guarantee of decent living conditions” April 2019 -< file:///C:/Users/ADMIN/Downloads/wcms_696387%20(1).pdf >- on 20 March 2026, p 1; See also Lundin, Laura L, “Working Poor’, 2022 -< https://www.ebsco.com/research-starters/political-science/working-poor >-, 20 March 2026.
[8] Legal Aid Act (No. 6 of 2016), Section 5.
[9] Legal Aid Act (No. 6 of 2016), Section 7(1).
[10] International Covenant on Civil and Political Rights, 16 December 1966, UNTS, Vol 999. P 171, 14668, Article 14.
[11] Legal Aid Act (No. 6 of 2016), Section 36.
[12] Legal Aid Act (No. 6 of 2016), Section 36.
[13] Legal Aid Act (No. 6 of 2016), Section 2.
[14] National Legal Aid Services, “Legal Aid Service; who is eligible” -< Legal Aid | National Legal Aid Service >- on 20 March 2026.
[15] Kihali Ronald Omedo, “The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice”, Egerton Law Journal, Vol. 1, p. 189.
[16] Kenya National Bureau of Statistics (KNBS), 2024. The Kenya Poverty Report: Based on the 2022 Kenya Continuous Household Survey. Nairobi, Kenya.
[17] Cinthya Magallanes, “Are courts biased against self-represented people?”, University of Texas, 7 November 2020 < https://www.legaldecisionlab.com/post/are-courts-biased-against-self-represented-people > 21 March 2026
[18] Jennifer Leitch, “Coming Off the Bench: Self-Represented Litigants, Judges and the Adversarial Process”, Osgoode Hall Law School of York University, p.4.
[19] In the matter of David Njoroge Macharia v Republic, Court of Appeal at Nairobi, Judgement (2011), p. 6.
[20] Law Office of Christopher G. Frey Esg, ‘The Risks and Drawbacks of Pro Se Litigants’, February 3, 2023 -< https://www.cgfreylaw.com/blog/2023/02/the-risks-and-drawbacks-of-pro-se-litigants/#:~:text=On%20Behalf%20of%20Law%20Office,expertise%20of%20a%20professional%20attorney. >- on 21 March 2026.
[21] Constitution of Kenya (2010), Article 27(1).
[22] Equallex Advocacy Foundation, ‘Justice Shouldn’t Depend on Wealth: Breaking the Barrier of Legal Costs’, 7 September 14, 2025, < https://eqlexx.org/justice-shouldnt-depend-on-wealth-breaking-the-barrier-of-legal-costs/#:~:text=Conclusion,legal%20help%20faster%20and%20cheaper. >, 21 March 2026.
[23] Jurist Learned Hand, Speaking at the Legal Aid Society of New York’s 75th anniversary celebration in 1951.
[24] Justice Hugo Black, In the matter of Gideon v. Wainwright 372 U.S. 335 (1963).
[25] Onyango, “Rethinking The National Legal Aid Service”, 2021, p 11.
[26] Open Government Partnership, ‘Improving Access to Justice and Legal Aid (KE0039)’, 2023 < https://www.opengovpartnership.org/members/kenya/commitments/KE0039/#:~:text=Further%2C%20it%20establishes%20a%20national,in%20accessing%20digitized%20justice%20services > 21 March 2026.
[27] Legal Aid Act (No. 6 of 2016), Section 2
[28]Kabarak University, ‘Centre for Legal Aid and Clinical Legal Education’ -< The Center for Legal Aid and Clinical Legal Education (CLACLE) > on 21 March 2026; Kabarak University Law School, ‘CLACLE Report 2025’, p. 7-15.
