Abstract
Legal Representation is fundamental to protecting individual rights and ensuring a fair hearing as per Article 50 of the Constitution. Nevertheless, vulnerable groups, particularly persons with disabilities (PWDs), remain disproportionately excluded from representation. This is attributed to systematic ableism, lack of resources and inaccessibility of the justice system despite the enactment of the Legal Aid Act.
This blog seeks to examine why Persons with Disabilities (PWDs) in Kenya continue to face disproportionate criminalisation, detention and denial of representation within the criminal justice system. We argue that the discrimination originates not only from legal gaps, but also from ableism, resource constraints, and a failure to operationalise the Legal Aid Act and the Persons with Disabilities Act.
Furthermore, we aim to highlight systemic failures like police misinterpreting disability related behaviours as defiance, chronic resource shortages, entrenched ableism and underutilisation of legal aid funds leading to prolonged remand violating their constitutional rights. Ultimately, this blog calls for legal education for PWDs, precise operationalisation of the Legal Aid Act, and substantive legal reforms to ensure equality, dignity, and access to justice
Introduction
Navigating Kenya’s justice system is layered with confusion[1], delay, and intimidation. The pathway to justice quickly becomes a disorienting maze of procedural hurdles, overstretched institutions, and power imbalances that leave ordinary people exposed. Across Kenya, interactions with the law are not only shaped by the facts of a case, but also by income, access to information and ability to secure representation.[2] Article 27(6) of the Kenyan Constitution recognises this existing inequality that influences how individuals and communities experience justice and dictates that the State enact legislation, including affirmative action programs, to address any form of discrimination when it comes to access to justice.[3]
To address this reality, the Legal Aid Act was enacted in 2016. The act establishes the National Legal Aid Service (NLAS) to provide legal assistance to those who cannot afford it.[4] Through legal aid schemes, accreditation of paralegals, and the creation of a legal aid fund, the Act promised to make justice more accessible across civil, criminal, children’s, and constitutional matters.
Unfortunately, this promise remains woefully unfulfilled. Vulnerable groups, particularly low-income individuals and persons with disabilities, continue to be disproportionately criminalised, detained, and denied meaningful legal representation.[5]
This blog begins by examining the systemic and institutional barriers that continue to exclude persons with disabilities from meaningful access to justice, with emphasis on ableism within the criminal justice system. Second, it analyses the limitations in implementing the Legal Aid Act and the Persons with Disabilities Act, highlighting how inadequate funding, lack of awareness, and weak institutional coordination undermine access to legal representation for PWDs. Third, the blog evaluates the evolving role of Kenyan courts in advancing disability rights through jurisprudence that challenges punitive and discriminatory approaches toward persons with mental disabilities. Finally, it proposes legal and institutional reforms aimed at strengthening legal aid, improving accessibility and accommodation measures, and promoting a more inclusive justice system grounded in dignity, equality, and substantive access to justice.
Ableism on the Rights and Needs of PWDs
The Persons with Disabilities Act of 2025 defines Persons with Disabilities (hereinafter referred to as PWDs) as persons with long-term physical, mental, intellectual, developmental or sensory impairments, including visual, hearing or albinism, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.[6]
Undue criminalisation is the inappropriate or unjust expansion of criminal law to punish behaviours, personal statuses, or minor regulatory infractions that do not cause genuine harm. This is a regular occurrence for Persons with Disabilities (PWDs) as the state excessively relies on penal powers rather than civil solutions, rehabilitation, or social support.
The Persons with Disabilities Act defines disability broadly and affirms that PWDs are entitled to equal rights and consideration before the law, and support services in relation to that.[7] More importantly, access to justice is an enforceable right that requires cross-cutting procedural and age-appropriate accommodations. This ranges from arrests, detention, trial, and confinement,[8] and includes physical access as well as access to information.[9]
The justice system has failed immensely to properly and practically realise the rights of PWDs, a matter which is a constitutional rights issue[10], not merely a social grace. In addition to the Persons With Disabilities Act, the Convention on the Rights of Persons with Disabilities,[11] advocates for awareness raising, accessible facilities, granting PWDs legal capacity, procedural accommodations, training for police and prison staff, and protection against discriminatory, arbitrary detention.[12]
Other than that, PWDs are also vulnerable to policing activities that perceive the behaviour of disabled people as threatening and infer it as misconduct, disturbance or non-compliance. For example, communication differences and psychological distress are often mistaken for defiance, increasing their chance for unlawful arrests rather than support.[13]
To ensure there is no plea of ignorance, the law further requires that its agents be familiar with the rights and needs of PWDs in the justice system. The Legal Aid Act tasks the NLAS with promoting legal literacy among the public.[14] The Board of the Legal Aid Service also includes a nominee from the National Council of Persons with Disabilities, a clear indicator that inclusivity is intentionally incorporated into the architecture of legal aid.[15]
The judiciary continues to play a transformative role in challenging ableist assumptions embedded in the criminal justice system. While systemic barriers continue to hinder access to justice for PWDs, recent jurisprudence demonstrates a gradual shift from punitive approaches towards a rights-based framework grounded in dignity, equality and legal capacity.
The ICJ Kenya’s 2025 report on Access to justice for Persons with Disabilities highlights the courts' failure to provide reasonable accommodations. This disproportionately disadvantages PWDs by limiting their ability to effectively participate in legal proceedings, communicate their needs, and meaningfully access legal remedies.[16]
The consequences are particularly apparent in cases involving persons with psychosocial and intellectual disabilities. Historically, the justice system seeks to control them instead of seeing them as rights-bearing individuals. The shift from this is evident in Kimaru & 17 others v Attorney General & another. Here, the High Court declared that PWDs are persons with equal legal capacity and constitutional protections as able-bodied. This includes the right to a fair trial and freedom from indefinite detention. Thus, the “president’s pleasure” detention model was declared unconstitutional for PWDs.[17]
This decision is significant not only because of its constitutional outcome but also because it outrightly rejects the historical assumption that mental disability automatically justifies prolonged state control. This affirms the autonomy of PWDs as the court repositioned disability from a reason for exclusion to one requiring accommodation and protection.
Subsequent decisions have reinforced this judicial shift. In R v Ngochi,[18] The High Court stressed that an accused person with mental illness should be treated on an equal basis with other offenders and should not suffer longer incarceration solely because of mental illness. This acknowledges that mental illness had historically resulted in discriminatory treatment, where accused persons were detained indefinitely under the guise of treatment or public protection.
Similarly, in Republic v Mulili,[19] The court went further to the finding that a person “guilty but insane” is a legal ambiguity as it assumes liability but lacks legal capacity for processing in the system. The court favoured the formulation, a “not guilty by reason of insanity” accompanied by appropriate treatment measures. This distinction reflects a deeper judicial recognition that mental disability should not be confused with criminality. The language and reasoning adopted better align with the constitutional values of dignity, equality and human treatment.
Collectively, this jurisprudence illustrates the judiciary’s growing role in dismantling ableist legal frameworks and advancing substantive equality for PWDs. They effectively demonstrate how courts are not merely interpreters of the law but also have the capability of reshaping societal understanding of PWDs within the justice system. Despite this advancement, the ICJ Kenya report revealed that judicial progress alone remains insufficient without broader institutional reforms[20], public legal education and consistent implementation of reasonable accommodation measures across the justice sector.[21]
Despite these important judicial gains, the impact of these decisions is limited in practice, as systemic and structural barriers, particularly resource constraints, continue to hinder meaningful access to justice for persons with disabilities.
Lack of Resources
The systemic criminalisation of Persons with Disabilities (PWDs) in Kenya is also linked to a persistent lack of resources. This financial disenfranchisement is not accidental but is rooted in a self-perpetuating cycle of socio-economic exclusion. In Kenya, approximately 50% of the general population lives below the poverty line. Still, this figure is drastically higher among PWDs, who comprise 67% of those continuously struggling to access basic social amenities.[22]
This inequality is due to systemic barriers to education and employment, which are compounded by biased policing and a lack of awareness of their fundamental rights.[23] Poverty severely limits their access to private legal services, which in turn diminishes their capacity to prepare an adequate defence or to challenge evidence effectively. Consequently, PWDs remain among the most vulnerable actors within an adversarial system that demands financial muscle to navigate its complexities.
This deficiency creates a crippling structural imbalance. While the prosecution is fully state-funded, the defence for an indigent PWD is not. This lack of state investment means that unrepresented accused persons, often laypeople, struggle to navigate the technical judicial administrative procedure. The result is a system where PWDs are frequently held in prolonged remand for minor offences simply because they lack the financial resources to secure their release.[24] Ultimately, without the financial empowerment of PWDs, the promise of equal protection remains an illusion.
This lack of financial empowerment is further tied to another systemic barrier, which is the limited access to legal aid, which leaves the PWDs vulnerable in their quest for justice in the criminal justice system.
Limited Access to Legal Aid
Arguably, limited access to legal aid in Kenya exposes persons with disabilities to increased legal vulnerability, mainly because PWDs lack financial muscle and the state is therefore obligated to provide legal aid with regard to section 35 of the Legal Aid Act.[25] As mentioned early, the Legal Aid Act established NLAS) and a dedicated Legal Aid Fund to assist vulnerable groups like PWDs.[26] However, these funds remain largely idle due to a lack of government allocation and the absence of necessary subsidiary legislation.
Limited access to legal aid in Kenya condemns PWDs to legal misfortune. They are not only more likely to be criminalised, but also less able to resist detention or assert their rights within the criminal justice system. In an adversarial system such as Kenya’s, this creates a structural imbalance because the prosecution is State-funded, whereas many accused Persons with Disabilities must defend themselves with no legal support, which not only undermines equality when it comes to access to justice but also undermines the constitutional right to a fair hearing as dictated by Article 50 of the Constitution.[27]
Moreover, accused persons are often lay people and cannot apply for bail effectively without legal assistance. This inaccessibility means they cannot effectively challenge unlawful detention and remain in remand longer than necessary. Hence they may be unable to effectively invoke their constitutional rights, including the right to legal representation and to be informed of the charge.[28] Furthermore, limited access to legal aid breeds legal illiteracy, resulting in ignorance that greatly disadvantages PWDs, leaving them less able to navigate procedures, understand court processes or identify when their rights are being violated.[29]
Recommendations
To ensure that legal aid is afforded to the PWDs in their pursuit of justice, Kenya should move from documented recognition of disability rights to active enforcement in the criminal justice system. This can be achieved through institutions including the Judiciary, the National Police Service, the Office of the Director of Public Prosecutions, prisons, and the National Legal Aid Service. They should adopt mandatory disability-sensitivity training for all frontline justice actors, with specific modules on reasonable communication with and accommodation of PWDs, and the dangers of treating disability-related behaviour as defiance or suspicious conduct. This shall equip the officers with skills to be able to recognise psychological or intellectual disabilities, which are often misinterpreted, especially among the PWDs, where they are often manipulated into making incriminating statements without realising the consequences.
Second, in accordance with Section 28 of the Persons with Disabilities Act, the law enforcement parties should require disability screening and accommodation protocols at all stages of the criminal justice system so that no accused person is actually a PWD without the assistive devices or services required.[30] This is because PWDs cannot effectively participate in their own defence without the necessary assistive materials, such as professional sign language interpreters for persons with hearing impairment. Depriving PWDs of assistive materials not only violates their right to dignity as mandated in the Constitution but also their right to a fair hearing.[31]
Third, as mandated by Section 3 of the Legal Aid Act, legal aid should be fully operationalised through sufficient funding and clear operational models to ensure that PWDs and other law enforcement parties and representatives are not left without information or support.[32] Parliament should also mandate annual reporting of disability accommodation in law enforcement agencies, as well as any claims of lack of such, to hold such parties accountable. This ensures accountability in providing the financial resources they ought to avail under the Legal Aid Act.
Conclusion
Ultimately, the undue criminalisation of Persons with Disabilities in Kenya persists not because the law is silent, but because the justice system remains a disorienting maze where progressive legislation fails to meet practical enforcement. While Article 50 of the Constitution and the Persons with Disabilities Act (2025) guarantee the right to a fair hearing and free legal representation, these mandates are consistently undermined by entrenched ableism and the idleness of the Legal Aid Fund.
With 67% of PWDs facing continuous socio-economic challenges, the lack of government allocation for the Legal Aid Act (2016) creates a structural imbalance that leaves the most vulnerable trapped in prolonged pre-trial detention without counsel.
Jurisprudence such as SK v Republic and Republic v Mulili has begun to dismantle discriminatory practices like the "President’s pleasure" detention model and the denial of assistive devices, yet judicial redirection alone is insufficient. For the promise of the law to be realised, the state must move beyond "documented recognition" to actively fund legal aid and mandate disability-sensitivity training for all frontline justice actors. Only through the substantive operationalisation of these resources can the Kenyan justice system transform disability from an invitation for suspicion into a call for dignity and reasonable accommodation.
*Maria Hawi is a 4th-year law student at Strathmore Law School. She is passionate about decolonial law reform and legal policy development. She is a member of the Strathmore Law Clinic, where she serves as the Under Secretary General of the Human Rights Unit
** Alpha Brian Ndung'u Kamau is a 3rd year law student at Strathmore University and a Certified Secretary (CS) trainee. He is a member of the Strathmore Law Clinic, where he provides legal aid to persons with disabilities and people living with HIV/AIDS.
*** Edwin Mike is a 2nd-year law student at Strathmore University and a passionate aspiring lawyer with the objective of restoring justice in the society. He is currently a member of Strathmore Law Clinic in the Criminal Justice unit and the Research Wing.
[1]Damaris Kemunto, ‘Access To Justice: Responding To Justice Needs For Persons With Mental Disabilities’ International Commission of Jurists(ICJ), February 20, 2024.
[2] Office of the Attorney General and Department of Justice (2017) National Action
Plan on Legal Aid 2017-2022 Kenya Towards Access to Justice for All, pg. 5.
[3] Constitution of Kenya (2010) Article 27(6)
[4] Legal Aid Act (No 6 of 2016) Section 5
[5] Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice & another; Office of the Director of Public Prosecutions & another (Interested Parties) [2021] eKLR.
[6] Persons With Disabilities Act( No 4 of 2025) Section 2
[7] Persons With Disabilities Act(No 4 of 2025) Section 7(1)–(3
[8] Persons with Disabilities Act (No 4 of 2025) Section 28.
[9] Persons with Disabilities Act(No 4 of 2025) Section 30.
[10] Constitution of Kenya (2010) Article 27 (1)-(2), 28, 48, 50(2)(j), 54(1)(a)–(e)
[11] Constitution of Kenya (2010) Article 2 (5)–(6)
[12] Convention on the Rights of Persons with Disabilities, 13 December 2006, GA Res 61/106, Annex I, article. 8, 9, 12, 13, 14, 17, pp. 7–10
[13] Southern Africa Litigation Centre & others, ‘An Explanatory Study of the Interaction Between the Criminal Justice System and Persons with Intellectual and Psychological Disabilities in Nairobi Kenya’, ADAT & Article 48, September 2021.
[14] Legal Aid Act (No 6 of 2016) section. 3, 7(1)(k)
[15] Legal Aid Act (No 6 of 2016) section 9(1)(k)
[16] ICJ report, pages. 6, 37–38
[17] Kimaru & 17 others v Attorney General & another [2022] KEHC (KLR)
[18] Republic v Ngochi [2024] KEHC 10950 (KLR)
[19] Republic v Mulili [2025] KEHC 10182 (KLR)
[20] Criminal Procedure Code (No 27 of 1930) Sections 162-167.
[21] ICJ, ‘Access to Justice for Persons with Disabilities in Kenya: Progress and Challenges’, International Commission of Jurists, July 2025
[22] United Nations Partnership on the Rights of Persons with Disabilities (UNPRPD) Fund, ‘Situational analysis of the rights of persons with disabilities in Kenya’, United Nations Kenya, April 2024.
[23] International Commission of Jurists (ICJ) Kenya, ‘Access to justice for persons with disabilities in Kenya: Progress and challenges’, International Commission of Jurists, July 2025.
[24] African Policing Civilian Oversight Forum (APCOF), ‘Pre-trial detention for persons with disabilities in correctional institutions’, National Gender and Equality Commission, March 2017.
[25] The Legal Aid Act( No 6 of 2016) Section 35.
[26] The Legal Aid Act (No 6 of 2016) Section 9.
[27] Constitution of Kenya (2010) Article 50.
[28] Constitution of Kenya (2010) Article 50.
[29] Damaris Kemunto, ‘Access To Justice: Responding To Justice Needs For Persons With Mental Disabilities’ International Commission of Jurists(ICJ), February 20, 2024.
[30]The Legal Aid Act ( No 6 of 2016) Section 28.
[31] Constitution of Kenya (2010) Article 28 & 50.
[32] The Legal Act (No 6 of 2016) Section 3
