Introduction
Access to justice is an essential element of the rule of law and democratic governance.[1] A just system can only function effectively when individuals are able to seek remedies for violations of their rights regardless of their economic or social status. The legal Aid Act of 2016 (hereinafter the Act) was enacted to transform the constitutional promise of access to justice from a paper right into a practical reality for Kenya ‘s most vulnerable populations. By establishing National Legal Aid Service (NLAS)[2]and the legal fund, the act creates a structured framework for delivering legal advice, representation and alternative dispute resolution mechanisms to indigent persons. However, as the legal landscape evolves, a critical question emerges, does the act ‘s eligibility for legal aid framework truly enhance access to justice or does it serve as a restrictive gatekeeper?
The High Court in Dry Associates Limited v Capital Markets Authority & Another held that access to justice extends beyond the mere recognition of rights in law. It encompasses public awareness and understanding of those rights, access to relevant legal information, equal protection by law enforcement institutions and the ability to effectively utilise judicial and dispute resolution mechanisms. The Court further emphasised that justice must be affordable, supported by adequate legal infrastructure and administered in a fair and efficient manner without undue delay.[3] This broader understanding of access to justice is particularly relevant to the legal aid framework in Kenya, since restrictive eligibility requirements may undermine the ability of vulnerable individuals to meaningfully enjoy these constitutional guarantees.
Although the Act is commendable for extending legal aid to vulnerable groups such as refugees, victims of trafficking and stateless persons, its strict eligibility requirements may limit access to justice. [4] In particular, the requirement that a case must demonstrate a probability of success may lead NLAS to selectively support only cases that appear easy to win, thereby excluding legitimate but legally complex claims that still deserve judicial consideration. Furthermore, the explicit exclusion of specific civil matters such as debt recovery and defamation[5], alongside a lack of express provisions for Persons with Disabilities and the working poor category, suggests that the path to justice remains obstructed for many. This blog explores the delicate balance between the Act’s institutional successes and the procedural hurdles that may inadvertently limit the very rights it seeks to protect.
The Legal Framework Governing Eligibility for Legal Aid
The eligibility framework for legal aid in Kenya is primarily governed by the Act. The Act establishes the legal and institutional structures for the provision of legal assistance to individuals who cannot afford legal representation.
One of the central institutions created by the Act is NLAS which is responsible for administering legal aid services, accrediting legal aid providers and determining eligibility for legal aid.[6] Through this institution, the state seeks to ensure that indigent persons are able to obtain legal representation where necessary.
The Act sets out the criteria for determining whether a person qualifies for legal aid. A person is eligible for legal aid if they are unable to afford legal services, a resident of Kenya and is a Kenyan citizen, child, refugee or stateless person and is a victim of human trafficking or internally displaced persons. [7] The Supreme Court in Republic v Karisa Chengo & 2 Others reinforced the constitutional foundation of section 36 of the Act by affirming that legal representation at State expense is necessary where failure to provide counsel would result in substantial injustice.[8] The Court held that legal aid should particularly protect indigent persons who are unable to afford representation and emphasised that factors such as the seriousness and complexity of proceedings, the accused person’s literacy, financial capacity and the risk of injustice must guide the grant of legal aid.[9] This reasoning mirrors the eligibility framework under section 36 of the Legal Aid Act, which conditions legal aid on indigence, vulnerability, public interest and the likelihood of substantial injustice.
In assessing eligibility, NLAS also considers several factors, including the financial circumstances of the applicant,[10] the nature of the legal matter involved and whether providing legal aid would serve the interests of justice. These criteria are intended to ensure that the limited legal aid resources are directed toward individuals who are most in need of legal assistance.
The eligibility framework reflects the broader constitutional obligation placed on the state under Article 48 of the Constitution of Kenya to remove barriers that hinder individuals from accessing the justice system. By establishing formal procedures for determining eligibility, the Act attempts to create a structured mechanism through which vulnerable individuals can obtain legal support.
How Eligibility Rules Enhance Access to Justice
The eligibility provisions under the Act play an important role in promoting access to justice for individuals who lack the financial means to hire private advocates. By establishing clear criteria for determining who qualifies for legal aid, the law ensures that legal assistance is directed toward those who are most likely to face barriers in accessing the justice system.
First, the eligibility framework helps ensure that indigent individuals are able to obtain legal representation in situations where the absence of counsel could lead to unfair outcomes.[11] This is particularly important in criminal proceedings where the consequences of conviction may include imprisonment or other serious penalties.[12] This enhances access to justice because it removes the financial and procedural barriers that often prevent vulnerable persons from asserting their rights before courts. Moreover, legal aid is defined inclusively to include legal advice, assistance in drafting documents and alternative dispute resolution mechanisms.[13]
Secondly, the eligibility rules help ensure that legal aid resources are used efficiently. Since legal aid programs operate with limited funding, it is necessary to prioritise individuals who are genuinely unable to afford legal services. The eligibility criteria therefore function as a mechanism for allocating scarce resources in a fair and systematic manner. Eligibility rules further enhance cost effective platforms. By prioritising alternative dispute resolution[14], the act provides mechanisms for indigent persons to resolve disputes without burden of high court filing fees.[15]
Thirdly, the eligibility framework contributes to greater accountability and transparency in the administration of legal aid[16]. By establishing formal procedures for evaluating applications, NLAS can regulate the distribution of legal aid services and ensure that assistance is provided in accordance with the law.
Fourthly, the eligibility enhances protection of vulnerable groups. By explicitly naming groups like refugees and victims of trafficking ensures that marginalised populations who lack social capital are not automatically excluded from the justice system. [17]
How eligibility rules may limit access to justice
Despite the important role played by eligibility criteria in regulating legal aid services, the framework may also create unintended barriers to justice for certain individuals.
One of the key challenges concerns the strict financial assessment used to determine eligibility for legal aid. [18] Through the NLAS 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.[19] Individuals who fall slightly above the established income thresholds may be denied legal aid even though they cannot realistically afford the cost of hiring a private advocate. This creates a category of individuals who are effectively excluded from both legal aid services and private legal representation. .[20] The Ksh.30,000 benchmark therefore extends beyond a mere eligibility threshold and instead perpetuates inequality.
A major limitation also arises from the probability of success requirement which requires NLAS to assess the merits of a case before trial.[21] NLAS therefore tends to be choosy by evaluating the merit of a case before trial which critics argue assumes a judicial role and may exclude complex but meritorious claims.[22]
Another limitation arises from the administrative procedures involved in applying for legal aid. The application process may require individuals to provide documentation regarding their financial status or other personal circumstances[23]. For individuals living in rural or marginalised communities, gathering such documentation may be difficult and time-consuming, potentially discouraging them from applying for legal aid.
Eligibility mandates for civil matter exclusions rules. Legal aid is prohibited for matters relating to tax, debt recovery, bankruptcy and defamation as well as for all artificial persons like the small NGOs or trusts.[24] These exclusions limit access to justice because they deny certain individuals and entities the opportunity to obtain legal assistance even where they may lack the financial ability to pursue or defend legal claims. Furthermore, by excluding matters such as tax disputes, debt recovery, bankruptcy and defamation, the Act narrows the scope of legal protection available to vulnerable persons despite the fact that such disputes may have serious economic, reputational or livelihood consequences.
The Legal Act does not specifically recognise persons with disabilities as a special group that should automatically receive special consideration for legal aid. Instead, persons with disabilities must go through the same financial eligibility tests as everyone else to prove that they are poor or indigent before they can qualify for assistance.[25]
The working poor have also been systemically excluded. This category comprises of individuals who are employed but earn an income that falls below the government established poverty line, rendering them unable to afford basic necessities such as food, clothing and shelter.[26] They include subsistence farmers, Jua Kali workers, street vendors, boda boda riders and casual retail workers. Legal aid is inaccessible to this group not because legal aid does not exist, but because the eligibility for legal aid is structured in a way that excludes them.
Eligibility creates the progressive realisation paradox rules. Although Article 48 of the Constitution guarantees every person the right to access justice, the Supreme Court in Republic v Karisa Chengo interpreted legal aid as a right that can be implemented progressively depending on the State’s available resources.[27] This means that the government is not required to provide legal aid to all deserving persons immediately, but may expand the service gradually over time. Such an interpretation creates a tension between the constitutional promise of immediate access to justice and the practical reality of limited state resources. As a result, many indigent and vulnerable persons may continue to face barriers in accessing legal representation, thereby weakening the full and immediate enforcement of Article 48.[28]
Moreover, eligibility rules enhance financial discretion. The NLAS determines fees for aided persons, an ambiguous provision that may make free legal aid too expensive for the truly indigent.[29]
These challenges illustrate that while eligibility rules are necessary for managing legal aid programs, they must be designed carefully to avoid excluding individuals who genuinely require legal assistance.
Implementation challenges affecting eligibility for legal aid.
In addition to the structural limitations of the eligibility framework, several practical challenges affect the implementation of legal aid services in Kenya.
One major challenge is inadequate funding for legal aid programs. NLAS relies largely on government allocations and donor support to finance its activities. Limited funding restricts the ability of the Service to expand legal aid programs and support a sufficient number of legal aid providers across the country. The NLAS and the legal aid fund remain underfunded leading to low remuneration for providers.[30]
Comparative studies from other African jurisdictions demonstrate that underfunding significantly undermines the effective implementation of legal aid mandates. A needs assessment of legal aid institutions in The Gambia found that funding was grossly inadequate to implement their mandates, resulting in staffing shortages, poor working conditions, limited infrastructure, and inadequate access to justice services for vulnerable populations.[31] The World Bank and International Bar Association similarly recognise that legal aid institutions globally operate within challenging budgetary environments, which affect the allocation of adequate resources for access to justice initiatives.[32]
Another challenge is the shortage of advocates willing to participate in legal aid work. In many parts of Kenya, advocates are entirely absent from specific areas and communities, which creates a barrier to justice. Even in areas where they are present, the ratio of advocates to the population requiring legal services is disproportionately low.[33] The legal profession consists of highly trained lawyers whose fees are frequently so high to prevent the less fortunate the accessibility to their services.[34] Moreover, low fees result in cases being handled by junior counsel with limited experience, potentially compromising the quality of representation.[35]
Procedural barriers to Appeal also affect access to legal aid services. Aggrieved applicants must appeal to the high court within thirty days which ironically requires paying court fees that the indigent cannot afford.[36]
Geographical disparities, financial and physical barriers also affect the accessibility of legal aid services.[37] Many rural communities lack nearby legal aid offices, requiring individuals to travel long distances to obtain assistance. This further, compounds the barriers faced by vulnerable populations in accessing justice.
Public awareness remains another important concern. Many individuals who qualify for legal aid are unaware that such services exist or do not know how to apply for assistance. Without adequate public education initiatives, the effectiveness of the legal aid system remains limited.
Recommendations for reform
Drawing from the foundational work of Mauro Cappelletti and Bryant Garth on access to justice, the implementation of legal aid should not merely exist in theory but must operate as a practical mechanism that enables vulnerable persons to meaningfully access the justice system. Cappelletti and Garth argue that rights are ineffective unless individuals possess the practical capacity to enforce them through accessible institutions and supportive legal structures.[38]
The following reforms specifically address structural weaknesses and seek to broaden access to justice while maintaining priority for the most vulnerable members of society. These reforms include:
Integrate protections for persons with disabilities - Legislate legal aid as a mandatory form of reasonable accommodation for PWDs and shift from substituted to supported decision-making.[39] The law should recognise that persons with disabilities may require legal assistance because of the disadvantages linked to disability itself, not merely because they are financially disadvantaged.
Reform protections for the working poor – Legislate legal aid eligibility in a manner that recognises economic vulnerability beyond extreme indigence. The law should acknowledge that many working Kenyans, including informal sector workers, low-income salaried employees, and subsistence farmers, may earn an income yet still lack the financial capacity to afford legal representation due to inflation, insecure employment, and high living costs.
Abolish Ambiguous Fees - Amend Section 79 to remove vague charges like any other service[40] to ensure legal aid remains genuinely free for the indigent.
Formalise Non-Lawyer Assistance - Recognise and regulate the role of accredited paralegals, law students, and traditional dispute resolution mechanisms (like Maslah) to reach rural areas where lawyers are scarce.[41]
Independent Oversight - Establish an independent body to review refused legal aid applications to ensure transparency and impartiality.
Resource Parity - The government should budget for the NLAS with the same priority as the prosecution to ensure equality of arms in the criminal justice system.[42]
Conclusion
The Act 2016 is a landmark achievement that moves Kenya toward substantive social justice by creating a statutory right to representation. However, its current eligibility framework for legal aid is a double-edged sword that simultaneously facilitates and obstructs access. For the Act to truly enhance justice, Kenya must address its funding imbalances, integrate marginalised groups like PWDs and indigenous peoples, and remove procedural bottlenecks that continue to exclude the very people the law was designed to protect.
* Qurry Ombati is a second year law student at Kabarak University with a strong interest in human rights law, access to justice, constitutionalism, clinical legal education and legal aid in Kenya
[1] Constitution of Kenya (2010) Article 48.
[2] Legal Aid Act (No. 6 of 2016) Section 5.
[3] Dry Associates Ltd v Capital Markets Authority and another; Crown Berger (K) Ltd (Interested Party), Petition 328 of 2011, Judgment of the High Court (2012) KLR, para 110.
[4] Legal Aid Act (No. 6 of 2016) Section 36.
[5] Legal Aid Act (No. 6 of 2016) Section 37.
[6] Legal Aid Act (No. 6 of 2016) Section 5.
[7] Legal Aid Act (No. 6 of 2016) Section 36.
[8] Constitution of Kenya (2010) Article 50(2) (h).
[9] Republic v Chengo and 2 others, Petition 5 of 2015, Judgment of the Supreme Court (2017) KLR, para 17.
[10] Legal Aid Act (No. 6 of 2016) Section 36(4).
[11] Legal Aid Act (No. 6 of 2016) Section 35.
[12] Constitution of Kenya (2010) Article 50(2) (g) and (h
[13] Legal Aid Act (No. 6 of 2016) Section 2.
[14] Legal Aid Act (No. 6 of 2016) Section 39.
[15] Kihali Ronald Omedo , ‘The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice’ (2021) 187.
[16] Legal Aid Act (No. 6 of 2016) Section 9-23.
[17]Isaac, George, ‘How the Supreme Court Undermined the Right to Legal Aid in Kenya’, (2025) 4.
[18] Legal Aid Act (No. 6 of 2016) Section 36(3).
[19] National Legal Aid Services, “Legal Aid Service; who is eligible” < Legal Aid | National Legal Aid Service > 20 March 2026.
[20] National Legal Aid Services, “Legal Aid Service; who is eligible” < Legal Aid | National Legal Aid Service > 20 March 2026.
[21] Legal Aid Act (No. 6 of 2016) Section 36(4)(e).
[22] Kihali Ronald Omedo , ‘The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice’ (2021) 189.
[23] Legal Aid Act (No. 6 of 2016) Section 40.
[24] Legal Aid Act (No. 6 of 2016) Section 37.
[25] Juma, Paul Ochieng, and Morris Mbondenyi, "Access to Legal Aid for Accused Persons with Disabilities in Kenya’s Criminal Justice System: An Outcomes-based Approach," Journal of African Law (2025) 463.
[26] Lundin, Laura L, “Working Poor’, 2022.
[27] Isaac, George, ‘How the Supreme Court Undermined the Right to Legal Aid in Kenya’, (2025) 1.
[29] Legal Aid Act (No. 6 of 2016) Section 69.
[30] Juma, Paul Ochieng, and Morris Mbondenyi, "Access to Legal Aid for Accused Persons with Disabilities in Kenya’s Criminal Justice System: An Outcomes-based Approach," Journal of African Law (2025) 156.
[31] National Agency for Legal Aid and the Alternative Dispute Resolution Secretariat, ‘Needs assessment of the National Agency for Legal Aid and the Alternative Dispute Resolution Secretariat’, Ministry of Justice, The Gambia, October 2024 11.
[32] World Bank and the International Bar Association, ‘A tool for justice: the cost benefit analysis of legal aid’, World Bank, September 2019.
[33] Kenya School of Law, ‘Assessment of the impact of paralegal work on the legal sector and on access to justice’, Kenya School of Law, January 2026.
[34] KSL 2026 Report.
[35] Legal Aid Act (No. 6 of 2016) Section 75.
[36] Legal Aid Act (No. 6 of 2016) Section 55.
[37] https://rolhr.undp.org/annualreport/2024/impact/africa/kenya.html.
[38] M Cappelletti, B Garth and N Trocker, ‘Access to justice: comparative general report’, 40(3 or 4) Rabels Zeitschrift für ausländisches und internationales Privatrecht or The Rabel Journal of Comparative and International Private Law (1976) 669.
[39] African Disability Protocol, art 13(2).
[40] Legal Aid Act (No. 6 of 2016) Section 79(d).
[41] Nanjala, C, "Determinants of effective legal Aid service delivery in Kenya," International Journal of Social Sciences and Enterpreneurship (2013) 14.
[42]McQuoid-Mason, David. "Challenges when drafting legal aid legislation to ensure access to justice in African and other developing countries with small numbers of lawyers: Overcoming obstacles to including the use of non-lawyers to assist persons in conflict with the law." African Human Rights Law Journal (2018) page 505.
