Laws of Kenya Active 2016Legal Aid Act
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LAWS OF KENYA THE LEGAL AID ACT CAP. 16A Revised and published by the National Council for Law Reporting with the authority of the Attorney-General as gazetted by the Government Printer www.kenyalaw.org Kenya Legal Aid Act Cap. 16A Legislation as at 31 December 2022 By Kenya Law and Laws.Africa. Share widely and freely. www.kenyalaw.org | [email protected] FRBR URI: /akn/ke/act/2016/6/eng@2022-12-31 There is no copyright on the legislative content of this document. This PDF copy is licensed under a Creative Commons Attribution NonCommercial ShareAlike 4.0 License (CC BY-NC- SA 4.0). This license enables reusers to distribute, remix, adapt, and build upon the material in any medium or format for noncommercial purposes only, and only so long as attribution is given to the creator. If you remix, adapt, or build upon the material, you must license the modified material under identical terms. CC BY-NC-SA includes the following elements: • BY: credit must be given to the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. Legal Aid Act (Cap. 16A) Contents Part I – PRELIMINARY ....................................................................................................................................................................................... 1 1. Short title .................................................................................................................................................................................................... 1 2. Interpretation ............................................................................................................................................................................................. 1 3. Object of the Act ...................................................................................................................................................................................... 3 4. Guiding principles .................................................................................................................................................................................... ...................................................................................................................................................... 3 Part II – THE NATIONAL LEGAL AID SERVICE .......................................................................................................................................... 3 5. Establishment of the National Legal Aid Service ........................................................................................................................ 3 6. Headquarters .............................................................................................................................................................................................. 3 7. Functions of the Service ........................................................................................................................................................................ 4 8. Powers of the Service ............................................................................................................................................................................. 4 Part III – ADMINISTRATION ............................................................................................................................................................................. 5 9. ................................................................................................................................................. 5 9. Establishment of Board of Service .................................................................................................................................................... 5 10. Functions of the Board ....................................................................................................................................................................... 6 11. Powers of the Board ............................................................................................................................................................................. 6 12. Tenure of office ...................................................................................................................................................................................... 6 13. Filling of vacancy .................................................................................................................................................................................. 7 14. Vacancy not to affect proceedings .................................................................................................................................................. 7 15. ................................................................................................................................................ 7 15. Procedures of the Board ..................................................................................................................................................................... 7 16. Remuneration of members ................................................................................................................................................................. 7 17. Committees of the Board .................................................................................................................................................................... 8 18. Delegation by the Board .................................................................................................................................................................... 8 19. Engagement of experts and consultants ...................................................................................................................................... 8 20. Coordination with other agencies ................................................................................................................................................... 8 21. ................................................................................................................................................ 8 21. Protection from Personal liability ................................................................................................................................................... 8 22. Liability of the Board for damages ................................................................................................................................................. 8 23. Independence of the Board ............................................................................................................................................................... 8 Part IV – MANAGEMENT AND STAFF OF THE SERVICE ........................................................................................................................ 9 24. The Director ............................................................................................................................................................................................. 9 25. Removal of Director .............................................................................................................................................................................. 9 26. ................................................................................................................................................ 9 26. Delegation powers of Director ....................................................................................................................................................... 10 27. Staff of the Service ............................................................................................................................................................................. 10 28. Common seal of the Service ........................................................................................................................................................... 10 Part V – THE LEGAL AID FUND ................................................................................................................................................................... 10 29. Establishment of Legal Aid Fund .................................................................................................................................................. 10 .................................................................................................................................................. 10 30. Application of the Fund ................................................................................................................................................................... 11 31. Financial Year ....................................................................................................................................................................................... 11 32. Annual estimates ................................................................................................................................................................................. 11 33. Investment of funds ........................................................................................................................................................................... 11 34. Accounts and Audit ............................................................................................................................................................................ 12 Part VI – LEGAL AID SERVICES .................................................................................................................................................................... 12 35. ............................................................................................................................................... 12 35. General principles of legal aid ...................................................................................................................................................... 12 36. Persons eligible for legal aid ......................................................................................................................................................... 12 37. Legal aid not available in certain civil matters ....................................................................................................................... 13 38. Several parties to a suit ................................................................................................................................................................... 13 39. Alternative dispute resolution ........................................................................................................................................................ 14 Part VII – APPLICATION FOR LEGAL AID ................................................................................................................................................. 14 40. ............................................................................................................................................... 14 40. Application for legal aid .................................................................................................................................................................. 14 41. Persons who may apply for legal aid .......................................................................................................................................... 14 42. Persons in lawful custody ................................................................................................................................................................ 14 43. Duties of the court ............................................................................................................................................................................. 15 44. Decision on application for legal aid .......................................................................................................................................... 15 45. Notification of other parties ........................................................................................................................................................... 16 46. ............................................................................................................................................... 16 46. Notification of change in circumstances .................................................................................................................................... 16 47. Financial information ......................................................................................................................................................................... 17 48. Variation of a decision to provide legal aid ............................................................................................................................. 17 49. Application for review of grant of legal aid by aided person ............................................................................................ 17 50. Application for review by a legal aid provider ........................................................................................................................ 17 51. Review of decision of the Service ................................................................................................................................................ 18 52. ............................................................................................................................................... 18 52. Withdrawal of legal aid .................................................................................................................................................................... 18 53. Consequences of withdrawal of legal aid .................................................................................................................................. 18 54. Termination of legal aid providers' mandate by aided person ........................................................................................... 19 55. Appeal to High Court ........................................................................................................................................................................ 19 Part VIII – ACCREDITATION OF LEGAL AID PROVIDERS ..................................................................................................................... 19 56. Provision of legal aid ........................................................................................................................................................................ 19 57. ............................................................................................................................................... 19 57. Accreditation criteria .......................................................................................................................................................................... 19 58. Application for accreditation .......................................................................................................................................................... 19 59. Accreditation of legal aid providers ............................................................................................................................................. 19 60. Register of accredited legal aid providers ................................................................................................................................. 20 61. Obligations relating to professional conduct ........................................................................................................................... 20 to professional conduct ........................................................................................................................... 20 62. Unauthorized payments .................................................................................................................................................................... 20 63. Legal aid disbursements ................................................................................................................................................................... 20 64. Protection of interests of the Service ......................................................................................................................................... 21 65. Records, monitoring and evaluation ............................................................................................................................................ 21 66. Suspension of accreditation ............................................................................................................................................................ 21 67. Cancellation of accreditation .......................................................................................................................................................... 21 68. ............................................................................................................................................... 21 68. Legal advice and assistance by paralegals ................................................................................................................................ 22 Part IX – ENFORCEMENT OF CONDITIONS OF GRANT OF LEGAL AID ......................................................................................... 22 69. Terms of provision of funded services ........................................................................................................................................ 22 70. Recovery of costs and benefits ...................................................................................................................................................... 23 71. Enforcement of judgment ................................................................................................................................................................ 23 Part X – AWARD OF COSTS IN CIVIL PROCEEDINGS .......................................................................................................................... 23 72. IN CIVIL PROCEEDINGS .......................................................................................................................... 23 72. Liability of aided person for costs ............................................................................................................................................... 23 73. Costs against an aided person ....................................................................................................................................................... 23 74. Aided person not required to provide security for costs ...................................................................................................... 23 Part XI – PAYMENT FOR LEGAL AID SERVICES ..................................................................................................................................... 23 75. Fees payable ......................................................................................................................................................................................... 23 76. Claim for payment by legal aid provider ................................................................................................................................... 24 77. id provider ................................................................................................................................... 24 77. Examination and audit of claims by legal aid providers ...................................................................................................... 24 78. Service to pay approved claims .................................................................................................................................................... 24 79. Payment for services .......................................................................................................................................................................... 24 80. Refund of excess payments ............................................................................................................................................................. 25 81. Waiver of right to recover debts ................................................................................................................................................... 25 Part XII – MISCELLANEOUS PROVISIONS ................................................................................................................................................ 25 82. ............................................................................................................................................... 25 82. Disclosure of information ................................................................................................................................................................ 25 83. Annual report and other reports ................................................................................................................................................... 25 84. Legal Aid Guide ................................................................................................................................................................................... 26 85. Offences .................................................................................................................................................................................................. 26 86. Provisions on delegated powers ................................................................................................................................................... 26 87. Supersession, savings and transitional provisions .................................................................................................................. 27 SCHEDULE [s. sitional provisions .................................................................................................................. 27 SCHEDULE [s. 15] .............................................................................................................................................................................................. 28 ................................................................................................................................................... 28 Legal Aid Act (Cap. 16A) Kenya LEGAL AID ACT CAP. 16A Published in Kenya Gazette Vol. CXVIII—No. 50 on 6 May 2016 Assented to on 22 April 2016 Commenced on 10 May 2016 [Amended by Statute Law (Miscellaneous Amendments) Act, 2017 (Act No. 11 of 2017) on 4 May 2017] [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022] An Act of Parliament to give effect to Articles 19(2), 48, 50(2)(g) and (h) of the Constitution to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for legal aid, and for the funding of legal aid and for connected purposes Part I – PRELIMINARY 1. Short title This Act may be cited as the Legal Aid Act. 2. Interpretation In this Act, unless the context otherwise requires— "accredited paralegal" means a person accredited by the service to provide paralegal services under the supervision of an advocate or an accredited legal aid provider; "advocate" has the meaning assigned thereto in the Advocates Act (Cap. vices under the supervision of an advocate or an accredited legal aid provider; "advocate" has the meaning assigned thereto in the Advocates Act (Cap. 16); "aided person" means a person who is granted legal aid under this Act and includes— (i) a person who is granted legal aid on an interim basis; and (ii) a person whose grant of legal aid has been withdrawn under section 52; "alternative dispute resolution" means settling a dispute by means other than through the court process and includes negotiation, mediation, arbitration, conciliation and the use of informal dispute resolution mechanisms; "applicant" means a person who makes an application for legal aid pursuant to this Act or on whose behalf such an application is made; "Board" means the board established under section 9; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to justice; "chairperson" means chairperson of the Board appointed under section 9; "child" has the meaning assigned to it under Article 260 of the Constitution; "co-operation agreement" means an agreement entered into between the Service and legal aid provider to provide legal aid services; "Director" means the Director of the National Legal Aid Service appointed under section 24; "Fund" means the Legal Aid Fund established under section 29; "grant of legal aid" means a grant of legal aid under this Act and includes any amendments to that grant; 1 gal Aid Fund established under section 29; "grant of legal aid" means a grant of legal aid under this Act and includes any amendments to that grant; 1 Legal Aid Act (Cap. Legal Aid Act (Cap. 16A) Kenya "indigent person" means a person who cannot afford to pay for legal services; "justice advisory centre" means a centre established by the Service for administering and providing legal aid services in Kenya; "legal aid" includes— (a) legal advice; (b) legal representation; (c) assistance in— (i) resolving disputes by alternative dispute resolution; (ii) drafting of relevant documents and effecting service incidental to any legal proceedings; and (iii) reaching or giving effect to any out-of-court settlement; (d) creating awareness through the provision of legal information and law-related education; and (e) recommending law reform and undertaking advocacy work on behalf of the community; "legal aid clinic" means a law clinic accredited by the Service or offered by an accredited legal aid provider; "Legal Aid Guide" means Guide referred to in section 85; "legal aid provider" means— (a) an advocate operating under the pro bono programme of the Law Society of Kenya or any other civil society organization or public benefit organization; (b) a paralegal; (c) a firm of advocates; (d) a public benefit organization or faith based organization; (e) a university or other institution operating legal aid clinics; or (f) a government agency, accredited under this Act to provide legal aid; "marginalized group" has the meaning assigned to it under Article 260 of the Constitution; "maximum grant" means the maximum amount of legal aid granted under a grant of legal aid; "paralegal" means a person employed by the Service or an accredited legal aid provider who has completed a training course in the relevant field of study in an institution approved by the Council of Legal Education; "public benefit organization" means a public benefit organization registered under Public Benefit Organizations Act (No. e Council of Legal Education; "public benefit organization" means a public benefit organization registered under Public Benefit Organizations Act (No. 18 of 2013); "proceeds of proceedings", in relation to civil proceedings for which legal aid has been granted, means— (a) any money or property to which the aided person is entitled under a judgment or out-of-court settlement relating to the proceeding; and (b) any costs awarded or payable to the aided person under a judgment or out-of-court settlement relating to the proceedings; "register of accredited legal aid providers" means the register of persons accredited by the Service under section 60 to provide legal aid services under this Act; "Service" means the National Legal Aid Service established by section 5. 2 the Service under section 60 to provide legal aid services under this Act; "Service" means the National Legal Aid Service established by section 5. 2 Legal Aid Act (Cap. 16A) Kenya 3. Object of the Act The object of this Act is to establish a legal and institutional framework to promote access to justice by— (a) providing affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution; (b) providing a legal aid scheme to assist indigent persons to access legal aid; (c) promoting legal awareness; (d) supporting community legal services by funding justice advisory centers, education, and research; and (e) promoting alternative dispute resolution methods that enhance access to justice in accordance with the Constitution. 4. ucation, and research; and (e) promoting alternative dispute resolution methods that enhance access to justice in accordance with the Constitution. 4. Guiding principles In the performance of the functions and the exercise of the powers conferred on the Service under this Act, the Service shall be guided by— (a) the national values and principles of governance set out in Article 10 of the Constitution; (b) the values and principles of the public service set out in Article 232 of the Constitution; (c) the principles of impartiality, gender equality and gender equity; (d) the principles of inclusiveness, non-discrimination and (e) protection of marginalized groups; (f) the rules of natural justice; and (g) the provisions of any treaty or convention ratified by Kenya, relating to the provision of legal aid. Part II – THE NATIONAL LEGAL AID SERVICE 5. Establishment of the National Legal Aid Service (1) There is established a service to be known as the National Legal Aid Service. LEGAL AID SERVICE 5. Establishment of the National Legal Aid Service (1) There is established a service to be known as the National Legal Aid Service. (2) The Service shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name be capable of— (a) suing and being sued; (b) acquiring, holding, charging or disposing of movable and immovable property; and (c) doing or performing all such things or acts for the proper discharge of its functions under this Act, which may be lawfully performed by a body corporate. (3) The Service shall be the successor to the National Legal Aid and Awareness Program existing immediately before the coming into force of this Act. 6. Headquarters The headquarters of the Service shall be in the capital city but the Service may establish branches in every County in Kenya to ensure reasonable access of its services. 3 he Service shall be in the capital city but the Service may establish branches in every County in Kenya to ensure reasonable access of its services. 3 Legal Aid Act (Cap. 16A) Kenya 7. Legal Aid Act (Cap. 16A) Kenya 7. Functions of the Service (1) The functions of the Service shall be to— (a) establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable; (b) advise the Cabinet Secretary on matters relating to legal aid in Kenya; (c) encourage and facilitate the settlement of disputes through alternative dispute resolution; (d) undertake and promote research in the field of legal aid, and access to justice with special reference to the need for legal aid services among indigent persons and marginalized groups; (e) take necessary steps to promote public interest litigation with regard to consumer protection, environmental protection and any other matter of special concern to the marginalized groups; (f) provide grants in aid for specific schemes to various voluntary social service institutions, for the implementation of legal aid services under this Act; (g) develop and issue guidelines and standards for the establishment of legal aid schemes by Non-Governmental Agencies; (h) in consultation with the Council of Legal Education, develop programs for legal aid education and the training and certification of paralegals; (i) promote, and supervise the establishment and working of legal aid services in universities, colleges and other institutions; (j) promote the use of alternative dispute resolution methods; (k) take appropriate measures to promote legal literacy and legal awareness among the public and in particular, educate vulnerable sections of the society on their rights and duties under the Constitution and other laws; (l) facilitate the representation of persons granted legal aid under this Act; (m) assign legal aid providers to persons granted legal aid under this Act; (n) establish, coordinate, monitor and evaluate justice advisory centers; (o) coordinate, monitor and evaluate paralegals and other legal service providers and give general directions for the proper implementation of legal aid programs; (p) administer and manage the Legal Aid Fund; and (q) perform such other functions as may be assigned to it under this Act or any other written law. ; (p) administer and manage the Legal Aid Fund; and (q) perform such other functions as may be assigned to it under this Act or any other written law. (2) The Service shall issue guidelines specifying matters or classes of matters relating to the provision of legal aid. 8. Powers of the Service The Service shall have all powers incidental to and necessary for the effective discharge of its functions under this Act and any other written law. 4 The Service shall have all powers incidental to and necessary for the effective discharge of its functions under this Act and any other written law. 4 Legal Aid Act (Cap. 16A) Kenya Part III – ADMINISTRATION 9. Legal Aid Act (Cap. 16A) Kenya Part III – ADMINISTRATION 9. Establishment of Board of Service (1) The Service shall be governed by a board which shall consist of— (a) a person appointed by the President from among persons qualified to be appointed as a judge of the High Court, who shall be the chairperson; (b) a judge of the High Court nominated by the Chief Justice; (c) the Principal Secretary in the Ministry for the time being responsible for matters relating to justice; (d) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance; (e) the Principal Secretary in the Ministry for the time being responsible for the interior and co- ordination of National Government; (f) the Director of Public Prosecutions or his representative; (g) one person nominated by the Law Society of Kenya; (h) one person nominated by the Kenya National Commission on Human Rights; (i) one person nominated by the Council for Legal Education from among universities with an operational legal aid clinic; (j) one person elected by a joint forum of Public Benefit Organizations offering legal aid to the public, including women, youth and children; (k) one person nominated by the National Council of Persons with Disabilities; and (l) the Director. the public, including women, youth and children; (k) one person nominated by the National Council of Persons with Disabilities; and (l) the Director. (2) Each nominating body under sub-section 1(h) to (k) shall submit the names of three nominees to the Cabinet Secretary. (3) The nomination of board members shall take into account the principles of equality, non- discrimination, regional balance and in so doing shall ensure that not more than two-thirds of the members of the Board shall be of the same gender. (4) A person shall be qualified for appointment as a member of the Board if such a person is— (a) a citizen of Kenya; (b) meets the requirement of Chapter Six of the Constitution; (c) possesses a university degree from a university recognised in Kenya; (d) has knowledge and experience of not less than seven years in the relevant field; and (e) is a person or professional of good standing in the society or respective professional body. (5) A person shall not be qualified for appointment as a member of the Board if such person— (a) is a member of a governing body of a political party or an employee of a political party; (b) is an un-discharged bankrupt; (c) has been convicted of a criminal offence and sentenced to a term of imprisonment of not less than six months; 5 (b) is an un-discharged bankrupt; (c) has been convicted of a criminal offence and sentenced to a term of imprisonment of not less than six months; 5 Legal Aid Act (Cap. 16A) Kenya (d) has been removed from office for contravening the provisions of the Constitution or any other written law. (6) Members of the Board shall be appointed by the Cabinet Secretary from a list of nominees submitted under subsection (3). (7) The Board shall, at its first meeting elect the vice-chairperson of the Board from among its members. (8) The chairperson and the vice-chairperson of the Board shall be of the opposite gender. [Act No. 11 of 2017, Sch.] 10. Functions of the Board The Board shall— (a) formulate and review the policies of the Service; (b) ensure that the Service performs its functions; (c) monitor and evaluate the performance of the Service; (d) appoint, train, discipline and remove members of staff of the Service; (e) accredit and enter into cooperation agreements with legal aid providers; (f) set and monitor standards for the establishment and operations of legal aid schemes; (g) establish departments within the Service and allocate responsibilities to such departments; (h) submit annual reports to the National Assembly; and (i) perform such other functions as prescribed by this Act or any other written law. 11. ents; (h) submit annual reports to the National Assembly; and (i) perform such other functions as prescribed by this Act or any other written law. 11. Powers of the Board The Board shall have all powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to— (a) control, supervise and administer the assets of the Service in such manner as best promotes the purposes for which the Service is established; (b) determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Board; (c) receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom; (d) enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Service is established; (e) open a banking account or banking accounts for the funds of the Service; and (f) invest any of its funds not immediately required for its purposes in the manner provided in section 33. 12. Tenure of office (1) The chairperson of the Board appointed under section 9(1) (a) shall be appointed for a single term of six years and shall not be eligible for re-appointment. irperson of the Board appointed under section 9(1) (a) shall be appointed for a single term of six years and shall not be eligible for re-appointment. (2) A member of the Board, other than a member under section 9(1) (c), (d), (e), and (g), shall be appointed for a single term of five years and shall not be eligible for re-appointment. 6 a member under section 9(1) (c), (d), (e), and (g), shall be appointed for a single term of five years and shall not be eligible for re-appointment. 6 Legal Aid Act (Cap. 16A) Kenya (3) The chairperson and members of the Board shall serve on a part-time basis. (4) The office of the chairperson or a member shall become vacant if the holder— (a) dies; (b) ceases to be a member of the nominating body under section 9(1); (c) is absent from three consecutive meetings of the Board without reasonable cause; (d) resigns from office by notice in writing addressed to the Cabinet Secretary; (e) is unable to perform the functions of the office arising out of physical or mental infirmity; (f) is negligent or incompetent in the performance of his or her functions; (g) is adjudged or otherwise declared bankrupt under any law in force in Kenya; (h) violates Chapter Six of the Constitution; or (i) is convicted of a criminal offence and sentenced to imprisonment for a term of not less than six months. lates Chapter Six of the Constitution; or (i) is convicted of a criminal offence and sentenced to imprisonment for a term of not less than six months. (5) The Cabinet Secretary shall— (a) notify every vacancy in the Gazette within fourteen days of the occurrence of the vacancy; (b) invite nomination of a replacement by the nominating bodies within fourteen days from the date of the Gazette Notice referred to in paragraph (a); and (c) appoint a new member to fill the vacancy within seven days from the date of receipt of the nominations under paragraph (b). 13. Filling of vacancy (1) Where a vacancy occurs in the membership of the Board under section 12 (4), the Cabinet Secretary shall appoint a new member in accordance with the provisions of this Act. (2) An appointment to fill a vacancy shall be for the remainder of the term of the member being replaced and the new member shall be eligible for reappointment. 14. Vacancy not to affect proceedings The validity of any proceedings of the Board shall not be affected by any vacancy among its members or by any defect in the appointment of any member or by the fact that a person who was not entitled to do so took part in the proceedings of the Board. 15. Procedures of the Board (1) The business and affairs of the Board shall be conducted in accordance with the Schedule. he proceedings of the Board. 15. Procedures of the Board (1) The business and affairs of the Board shall be conducted in accordance with the Schedule. (2) Except as provided in the Schedule, the Board may regulate its own procedure. (3) The Board may co-opt any person to attend its meetings but that person shall not vote at such meeting. 16. Remuneration of members The chairperson, members of the Board and staff of the Service shall be paid such remuneration or allowances as the Public Service Commission may, on the advice of the Salaries and Remuneration Commission, determine. 7 be paid such remuneration or allowances as the Public Service Commission may, on the advice of the Salaries and Remuneration Commission, determine. 7 Legal Aid Act (Cap. 16A) Kenya 17. Committees of the Board (1) The Board may, in the performance of its functions under this Act, constitute such committees of the Board as the Board may consider necessary for the efficient performance of its functions. (2) The Board may co-opt into the membership of a committee established under subsection (1) any person whose knowledge and skills are considered necessary for the effective discharge of the functions of the Board. 18. Delegation by the Board The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law. 19. Engagement of experts and consultants (1) The Board may engage the service of experts and consultants in respect of any of the functions of the Service. (2) An expert or consultant engaged under this section may be paid such fees and allowances as the Board may determine. 20. functions of the Service. (2) An expert or consultant engaged under this section may be paid such fees and allowances as the Board may determine. 20. Coordination with other agencies In the discharge of its functions under this Act, the Board shall coordinate with other governmental and non-governmental agencies and other persons or organizations engaged in the promotion of legal aid services and shall— (a) promote the establishment of legal aid schemes by governmental and non-governmental agencies; and (b) in consultation with the Cabinet Secretary responsible for matters relating to finance, recommend incentives, including tax rebates and waivers to persons and organizations that contribute to the Fund or otherwise support the provision of legal aid. 21. Protection from Personal liability No matter or thing done by a member of the Board or any officer, employee or agent of the Board shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Board, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever. 22. render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever. 22. Liability of the Board for damages The provisions of section 21 shall not relieve the Board of the liability to pay compensation or damages to any person for an injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, or any works. 23. Independence of the Board The Board shall not be subject to the direction or control of any person or authority in the performance of its functions. 8 Independence of the Board The Board shall not be subject to the direction or control of any person or authority in the performance of its functions. 8 Legal Aid Act (Cap. 16A) Kenya Part IV – MANAGEMENT AND STAFF OF THE SERVICE 24. The Director (1) There shall be a Director of the Service who shall be recruited competitively by the Board. (2) The Director shall be the Secretary to the Board. (3) A person is qualified for appointment as the Director if such person— (a) is a citizen of Kenya; (b) has been an advocate of the High Court of Kenya for at least seven years; and (c) meets the requirements of Chapter Six of the Constitution. (4) The Director shall be the Chief Executive Officer of the Service and shall— (a) be responsible for— (i) implementing the decisions of the Board; (ii) the day-to-day administration and management and the control of the other staff of the Service; and (iii) the arrangement of business, recording and keeping of the minutes of the Board and such other records as the Board may direct; (b) subject to the general or special direction of the Board, manage and disburse funds from the Legal Aid Fund for the purposes of this Act; and (c) perform such other functions as may be assigned by the Board. (5) The Director shall be an ex officio member of the Board with no right to vote at any meeting of the Board. ctions as may be assigned by the Board. (5) The Director shall be an ex officio member of the Board with no right to vote at any meeting of the Board. (6) The Director shall hold office for a term of three years but shall be eligible for re-appointment for one further term. 25. Removal of Director (1) The Director may be removed from office by the Board only for— (a) inability to perform the functions of the office of Director arising out of physical or mental incapacity; (b) gross misconduct; (c) incompetence or neglect of duty; or (d) violation of the Constitution. (2) The Board shall, before removing the Director under subsection (1)— (a) inform the Director in writing of the reasons for the intended removal; (b) give the Director an opportunity to be heard in accordance with the provisions of the Fair Administrative Action Act (Cap. 7L). 9 ntended removal; (b) give the Director an opportunity to be heard in accordance with the provisions of the Fair Administrative Action Act (Cap. 7L). 9 Legal Aid Act (Cap. 16A) Kenya 26. Delegation powers of Director The Director may, with the approval of the Board, delegate in writing any of his or her powers or functions under this Act or any other written law to any other officer or member of staff on the terms specified in the instrument of delegation. 27. Staff of the Service (1) There shall be a secretariat of the Service which shall provide administrative, secretarial and other assistance to the Service. (2) The secretariat shall comprise of— (a) such professional, technical and administrative officers and support staff as may be appointed by the Board in the discharge of its functions; and (b) such public officers as may be seconded by the Public Service Commission upon the request of the Service. (3) The members of staff of the Service shall be paid such remuneration or allowances as the Board may, in consultation with the Salaries and Remuneration Commission, determine. 28. Common seal of the Service (1) The common seal of the Service shall be kept in such custody as the Board shall direct and shall not be used except on the order of the Board. ice (1) The common seal of the Service shall be kept in such custody as the Board shall direct and shall not be used except on the order of the Board. (2) The affixing of the common seal shall be authenticated by the chairperson or any other person authorized by a resolution of the Board. (3) The common seal of the Service shall, when affixed to a document and duly authenticated, be judicially and officially noticed and unless the contrary is proved, any necessary order or authorization of the Board under this section shall be presumed to have been duly given. Part V – THE LEGAL AID FUND 29. Establishment of Legal Aid Fund (1) There is established a fund, to be known as the Legal Aid Fund, which shall vest in and be managed by the Service. (2) The Fund shall consist of— (a) moneys allocated by Parliament for the purposes of the Service; (b) any grants, gifts, donations, loans or other endowments given to the Service; (c) such funds as may vest in or accrue to the Service in the course of the exercise of its powers or the performance of its functions under this Act; and (d) moneys from any other lawful source accruing to the Fund. (3) The Service shall open and maintain such bank accounts as are necessary into which shall be paid monies payable to the Fund. 10 ruing to the Fund. (3) The Service shall open and maintain such bank accounts as are necessary into which shall be paid monies payable to the Fund. 10 Legal Aid Act (Cap. 16A) Kenya 30. Application of the Fund The Service may use the monies of the Fund to— (a) defray the expenses incurred in the representation of persons granted legal aid in accordance with this Act; (b) pay the remuneration of legal aid providers for services provided in accordance with this Act; (c) meet the expenses incurred by legal aid providers in providing services under this Act; and (d) meet the expenses of the operations of the Service as approved by the Board. 31. Financial Year The financial year of the Fund shall be the period of twelve months commencing on the first of July and ending on the thirtieth June of the subsequent year. 32. Annual estimates (1) At least three months before the commencement of each financial year the Board shall cause to be prepared estimates of the revenue and expenditure of the Service for that financial year. mencement of each financial year the Board shall cause to be prepared estimates of the revenue and expenditure of the Service for that financial year. (2) The annual estimates shall make provision for all estimated expenditure of the Service for the financial year concerned, and in particular shall provide for— (a) the expenses stipulated in section 30; (b) the payment of salaries, allowances and other charges in respect of the members of the Board and staff of the Service; (c) the payment of pensions, gratuities and other charges in respect of benefits which are payable out of the funds of the Service; (d) the proper maintenance of the buildings and grounds of the Service; (e) the maintenance, repair and replacement of the equipment and other property of the Service; (f) the funding of training, research and development activities of the Service; (g) the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the Service may think fit; and (h) any other expenditure necessary for the purposes of this Act. ns, equipment and in respect of such other matters as the Service may think fit; and (h) any other expenditure necessary for the purposes of this Act. (3) The annual estimates shall be approved by the Board of the Service before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after the Cabinet Secretary's approval, the Service shall not increase the annual estimates without the consent of the Cabinet Secretary. 33. Investment of funds (1) The Service may, subject to the approval of the Cabinet Secretary for the time being responsible for matters relating to finance, invest any funds not immediately required for its purposes, as it may determine. (2) The Board may place or deposit with such bank or banks as it may determine any money not immediately required for the purposes of the Board. 11 e. (2) The Board may place or deposit with such bank or banks as it may determine any money not immediately required for the purposes of the Board. 11 Legal Aid Act (Cap. 16A) Kenya 34. Accounts and Audit (1) The Board shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Service. (2) Within a period of three months after the end of each financial year, the Service shall submit to the Auditor-General the accounts of the Service in respect of that year together with a— (a) statement of the income and expenditure of the Service during that year; and (b) statement of the assets and liabilities of the Service on the last day of that financial year. (3) The annual accounts of the Service shall be prepared, audited and reported upon in accordance with the provisions the Article 226 and 229 of the Constitution and the law relating to public audit. Part VI – LEGAL AID SERVICES 35. General principles of legal aid (1) The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services under this Act. f legal aid (1) The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services under this Act. (2) The Service shall provide legal aid services in— (a) civil matters; (b) criminal matters; (c) children matters; (d) constitutional matters; (e) matters of public interest; or (f) any other type of case or type of law that the Service may approve. (3) Despite subsection (2), the Service shall— (a) determine the legal needs of indigent persons and of disadvantaged communities in Kenya; (b) establish priorities for the areas of law, types of proceedings for which it will provide legal aid services; and (c) formulate policies for the kind of legal aid services to be provided in the different areas of law, types of cases and types of proceedings. (4) The Service shall establish and administer a cost effective and efficient system for providing high quality legal services within the financial resources available to the Service. nd administer a cost effective and efficient system for providing high quality legal services within the financial resources available to the Service. (5) Except as is otherwise provided under this Act— (a) the assistance or representation through legal aid shall not affect the relationship between the rights of an advocate and a client or any privilege arising out of such relationship; and (b) the rights conferred by this Act on an aided person shall not affect the rights or liabilities of any other parties to any proceedings or the principles on which the discretion of any court is normally exercised. 36. Persons eligible for legal aid (1) A person is eligible to receive legal aid services if that person is indigent, resident in Kenya and is— (a) a citizen of Kenya; 12 for legal aid (1) A person is eligible to receive legal aid services if that person is indigent, resident in Kenya and is— (a) a citizen of Kenya; 12 Legal Aid Act (Cap. 16A) Kenya (b) a child; (c) a refugee under the Refugees Act (Cap. 173); (d) a victim of human trafficking; or (e) an internally displaced person; or (f) a stateless person. (2) A person who is eligible to receive legal aid services under subsection (1) shall apply to the Service in the prescribed manner. (3) A person shall not receive legal aid services unless the Service has determined that the individual's financial resources are such that the person is eligible for the services. legal aid services unless the Service has determined that the individual's financial resources are such that the person is eligible for the services. (4) Despite subsections (1), (2) and (3), the Service shall not provide legal aid services to a person unless the Service is satisfied that— (a) the cost of the proceedings is justifiable in the light of the expected benefits; (b) resources are available to meet the cost of the legal aid services sought; (c) it is appropriate to offer the services having regard to the present and future demands; (d) the nature, seriousness and importance of the proceedings to the individual justify such expense; (e) the claim in respect of which legal aid is sought has a probability of success; (f) the conduct of the person warrants such assistance; (g) the proceedings relate to a matter that is of public interest; (h) the proceedings are likely to occasion the loss of any right or the person may suffer damages; (i) the proceedings may involve expert cross-examination of witnesses or other complexity; (j) it is in the interest of a third party that the person be represented; (k) denial of legal aid would result in substantial injustice to the applicant; or (l) there exists any other reasonable ground to justify the grant of legal aid. 37. gal aid would result in substantial injustice to the applicant; or (l) there exists any other reasonable ground to justify the grant of legal aid. 37. Legal aid not available in certain civil matters The Service shall not provide legal aid services in respect of civil proceedings— (a) to a company, corporation, trust, public institution, civil society, Non-Governmental Organization or other artificial person; (b) in matters relating to tax; (c) in matters relating to the recovery of debts; (d) in bankruptcy and insolvency proceedings; and (e) in defamation proceedings. 38. Several parties to a suit (1) The Service may grant legal aid to an applicant in a matter in which more than one person is a party with the same interest and the applicant is entitled to sue or has been sued on behalf of all those persons. 13 which more than one person is a party with the same interest and the applicant is entitled to sue or has been sued on behalf of all those persons. 13 Legal Aid Act (Cap. 16A) Kenya (2) Except in the case of public interest matters, if an applicant has the right to be joined with others as a plaintiff in one action because a common question of law or fact arises, the Service may grant legal aid to the applicant that is limited to the proceedings necessary to preserve the applicant's right to relief. 39. Alternative dispute resolution (1) The Service may, where it deems it necessary, recommend an aided person to alternative forms of dispute resolution and may for that purpose, provide the aided person with such services at the expense of the Service. (2) An alternative dispute resolution service may be provided by— (a) an employee of the Service; or (b) a person or institution with expertise in the area of alternative dispute resolution that is engaged by the Service specifically to conduct an alternative dispute resolution programme. Part VII – APPLICATION FOR LEGAL AID 40. Application for legal aid (1) A person who wishes to receive legal aid, shall apply to the Service in writing. art VII – APPLICATION FOR LEGAL AID 40. Application for legal aid (1) A person who wishes to receive legal aid, shall apply to the Service in writing. (2) Where a person wishes to apply for legal aid the person shall apply before the final determination of the matter by a court, tribunal or any other forum to which the application relates. (3) An application under subsection (1) shall be assessed, with respect to the applicants' eligibility for legal aid services in accordance with this Act. 41. Persons who may apply for legal aid An application for legal aid may be made by— (a) the applicant in person; (b) any other person authorized by the applicant in writing; (c) any person or organization— (i) authorized by the applicant in writing, on behalf of the applicant; or (ii) on behalf of the applicant where the authority of the applicant cannot be reasonably obtained due to physical or mental incapacity. 42. icant; or (ii) on behalf of the applicant where the authority of the applicant cannot be reasonably obtained due to physical or mental incapacity. 42. Persons in lawful custody (1) The officer-in-charge of a prison, police station, remand home for children or other place of lawful custody shall— (a) ensure that every person held in custody, is informed, in language that the person understands, of the availability of legal aid on being admitted to custody and is asked whether he or she desires to seek legal aid; (b) maintain a register in which shall be entered the name of every person held there and the response of each such person when asked if he or she desires to seek legal aid; and (c) ensure that a legal aid application form is made by a person in their custody wishing to apply for legal aid and shall inform the Service of the application within twenty-four hours of the making of the application. 14 r custody wishing to apply for legal aid and shall inform the Service of the application within twenty-four hours of the making of the application. 14 Legal Aid Act (Cap. 16A) Kenya (2) A person who willfully obstructs a person held in lawful custody from applying for legal aid commits an offence. 43. Duties of the court (1) A court before which an unrepresented accused person is presented shall— (a) promptly inform the accused of his or her right to legal representation; (b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and (c) inform the Service to provide legal aid to the accused person. (1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration— (a) the severity of the charge and sentence; (b) the complexity of the case; and (c) the capacity of the accused to defend themselves. (2) The Service shall provide legal aid to the accused person in accordance with this Act. (3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child. (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child. (4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused. (5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act. (6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person. [Act No. 11 of 2017, Sch.] 44. Decision on application for legal aid (1) On an application for legal aid, the Service may, in respect of the whole or any part of a matter, proceedings or appeal— (a) grant legal aid to the applicant subject to such terms and conditions as the Service considers appropriate; (b) grant legal aid to the applicant on an interim basis pending further consideration of the application; or (c) refuse to grant legal aid to the applicant. nt legal aid to the applicant on an interim basis pending further consideration of the application; or (c) refuse to grant legal aid to the applicant. (2) Where the Service grants legal aid to an applicant under this Act, the Service shall specify— (a) the conditions, if any, attaching to the grant; (b) the name of the accredited legal aid provider assigned to the aided person; and (c) may specify a maximum grant. (3) The Service shall make a decision on every application for legal aid without undue delay but not later than forty eight hours from the date of receipt, by the Service, of such application. 15 y application for legal aid without undue delay but not later than forty eight hours from the date of receipt, by the Service, of such application. 15 Legal Aid Act (Cap. 16A) Kenya (4) The decision of the Service shall be in writing and shall specify— (a) the conditions, if any, attaching to the grant of legal aid; (b) the matter for which the legal aid is granted or not granted; (c) the date on which the grant of legal aid takes effect; (d) the benefits included in the grant of legal aid; (e) the possible deductible amount from the grant to the aided person; and (f) the name of the legal aid provider assigned to the aided person. (5) The conditions referred to in subsection (4)(a) shall specify the amount, if any, that shall be payable by the applicant to the Service on account of costs recovered by the applicant in the proceedings in respect of which legal aid was provided. (6) Where the Service grants legal aid the Service shall issue a certificate of grant of legal aid to a successful applicant and shall send a copy of the certificate to the designated legal aid provider. all issue a certificate of grant of legal aid to a successful applicant and shall send a copy of the certificate to the designated legal aid provider. (7) Where the Service does not grant legal aid to an applicant, the Service shall send a written notice to the applicant stating— (a) the reasons for refusal to grant legal aid; and (b) the right to seek review of the decision of the Service and of appeal to the High Court. 45. Notification of other parties (1) Where a party to civil proceedings is granted legal aid, the legal aid provider under the grant shall immediately give notice of that fact to every other party to the proceedings, and to the Registrar of the relevant court. (2) If any other person subsequently becomes a party to the proceedings, the legal aid provider shall give notice to the new party. (3) If the grant of legal aid is withdrawn, the legal aid provider under the grant shall immediately notify all parties to the proceedings and the Registrar of the relevant court, of that fact. 46. legal aid provider under the grant shall immediately notify all parties to the proceedings and the Registrar of the relevant court, of that fact. 46. Notification of change in circumstances (1) An applicant for legal aid, an aided person or a person acting for an aided person shall notify the Service of— (a) any increase in the income or disposable capital of the applicant by an amount that may affect the aided person's eligibility for legal aid; and (b) any change in the address of the applicant, aided person or of the person acting for the aided person. (2) For the purposes of subsection (1), an aided person is deemed to have waived any legal professional privilege that might otherwise prevent a person acting for the aided person from complying with that subsection. (3) Where an aided person or person acting for an aided person fails to give information under subsection (1)(a), the Service— (a) shall cancel the certificate issued under section 44(6) and cease to provide legal aid services to the aided person; (b) may declare that, with respect to part of the legal aid services rendered, the aided person is not entitled to legal aid services; and 16 person; (b) may declare that, with respect to part of the legal aid services rendered, the aided person is not entitled to legal aid services; and 16 Legal Aid Act (Cap. 16A) Kenya (c) may recover from the aided person the amount that it has paid or is obligated to pay to the legal aid provider. (4) Where an advocate or legal aid service provider knowingly fails to give information under subsection (1) (a), the Service shall, with respect to part or all of the legal aid services declare that the advocate, or service provider is not entitled to payment by the Service and, if any payment has already been made for such services, the Service shall recover the amount it has paid for services rendered after the date of the failure to discharge the obligation. 47. Financial information The Service may require an aided person to provide up-to-date information about the person's financial means if the Service requires the information to make any decision under this Act. 48. to provide up-to-date information about the person's financial means if the Service requires the information to make any decision under this Act. 48. Variation of a decision to provide legal aid (1) The Service may where it is satisfied that there is sufficient reason to vary its decision, vary a decision to provide legal aid services to a person under this Act at any time in order to— (a) terminate the provision of legal aid services; (b) alter the nature or extent of the legal aid services, including the variation of a decision relating to the person or persons who will provide the legal aid services; (c) make the provision of legal aid services subject to conditions; or (d) alter a condition to which the provision of legal aid services is subject. (2) The Service shall issue a notice of the decision under subsection (1) to the aided person within fifteen days of the decision. 49. Application for review of grant of legal aid by aided person (1) Where a decision has been made in relation to an application for legal aid, the aided person may apply to the Service for a review of the grant of legal aid in accordance with this Act. elation to an application for legal aid, the aided person may apply to the Service for a review of the grant of legal aid in accordance with this Act. (2) On an application under sub-section (1) the Service may review any decision in relation to any of the following— (a) any conditions imposed on a grant of legal aid; (b) the suspension or cancellation of the accreditation of a legal aid provider; (c) any amount payable by the applicant, under a grant of legal aid; (d) the appointment of any legal aid provider in a grant of legal aid; (e) the maximum grant; or (f) the withdrawal of, or variation of the terms or conditions on which legal aid is granted. (3) The Service, may after considering an application for review of the grant— (a) reject the application for review; (b) vary the terms on which the grant was made; or (c) review its decision to grant legal aid. 50. Application for review by a legal aid provider Any legal aid provider appointed by the Service who is aggrieved by a decision of the Service in respect of an amount payable by the Service to the legal aid provider may apply to the Service to review its decision. 17 a decision of the Service in respect of an amount payable by the Service to the legal aid provider may apply to the Service to review its decision. 17 Legal Aid Act (Cap. 16A) Kenya 51. Review of decision of the Service (1) The Service may review a decision to grant legal aid where— (a) the conditions on which legal aid was granted have substantially changed; or (b) the aided person has for any reason ceased to be eligible for legal aid. (2) The Service shall send a written notice of its decision to the aided person and the designated legal aid provider within seven days of such decision. (3) The Service shall not be liable for any costs incurred by the aided person and the legal aid provider, subsequent to service upon them of the notice specified in subsection (2). (4) Where an aided person is no longer entitled to legal aid, any service by a legal aid provider subsequent to cessation of legal aid shall not be the responsibility of the Service. 52. er entitled to legal aid, any service by a legal aid provider subsequent to cessation of legal aid shall not be the responsibility of the Service. 52. Withdrawal of legal aid (1) Where the Service decides to withdraw legal aid provided to an aided person the Service shall, as soon as is practicable send a written notice to the aided person and the legal aid provider of— (a) the intention to withdraw legal aid; (b) the reasons for the decision to withdraw legal aid; and (c) the right of the aided person to seek a review of the decision. (2) An aided person or a legal aid provider who is served a notice pursuant to subsection (1) may, within fourteen days of receipt of the notice, submit a written statement of objection to the intended withdrawal to the Service. (3) The Service shall, within fourteen days of receipt of the statement of objection specified in subsection (2) notify the aided person or legal aid provider of its final decision. (4) Where a grant of legal aid is withdrawn, the Service shall within seven days notify the aided person, the legal aid provider and the Court of the date on which the withdrawal takes effect. 53. he Service shall within seven days notify the aided person, the legal aid provider and the Court of the date on which the withdrawal takes effect. 53. Consequences of withdrawal of legal aid (1) The withdrawal of legal aid does not affect— (a) obligations of the aided person arising out of the conditions of the grant; (b) the rights of the Service to enforce the obligations arising out of the conditions of the grant; or (c) the obligations of the Service to pay for services provided under the grant before the date of withdrawal. (2) If legal aid is withdrawn in respect of an aided person, the legal aid provider has the right to recover from the aided person the difference between the amount paid or payable by the Service under this Act and the full amount of that legal aid provider's fees and disbursements. (3) For the purposes of subsection (2), the amount payable by the Service shall be for services rendered by the legal aid provider prior to the receipt of notice of withdrawal. (4) Upon the withdrawal of legal aid, a legal aid provider shall apply for leave of Court to cease providing legal aid services in the relevant case. 18 ) Upon the withdrawal of legal aid, a legal aid provider shall apply for leave of Court to cease providing legal aid services in the relevant case. 18 Legal Aid Act (Cap. 16A) Kenya 54. Termination of legal aid providers' mandate by aided person (1) An aided person may apply to the Service to terminate the services of a designated legal aid provider for good cause and the Service shall appoint another legal aid provider to represent the aided person. (2) The Service shall give written notice of any application made under subsection (1) to the legal aid provider whose services are to be terminated within seven days of receipt of such application. (3) The legal aid provider may make representations on his own behalf in response to the application of the aided person. (4) In determining an application for termination of the services of a designated legal aid provider, the Service shall be guided by the Fair Administrative Action Act (Cap. 7L). (5) A legal aid provider whose services are terminated under this section shall be entitled to payment for services rendered at the request of the Service, prior to the date of termination. 55. Appeal to High Court 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. 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. Part VIII – ACCREDITATION OF LEGAL AID PROVIDERS 56. Provision of legal aid A person or organization shall not provide legal aid services under this Act unless that person or organization is accredited to provide those services. 57. Accreditation criteria (1) The Service shall, through regulation, develop and adopt criteria for accreditation of persons and institutions to provide legal aid services. (2) In developing accreditation criteria, the Service shall consult with the Law Society of Kenya, the Attorney-General, the Director of Public Prosecutions, public benefit organizations and any other person that the Service considers necessary. 58. Application for accreditation (1) A person or organization wishing to provide legal aid services shall apply to the Service for accreditation in the prescribed manner. (2) A person who or an organization which— (a) gives false information in an application for accreditation; (b) purports to provide legal aid services under this Act as an accredited legal aid provider without accreditation, commits an offence. 59. ditation; (b) purports to provide legal aid services under this Act as an accredited legal aid provider without accreditation, commits an offence. 59. Accreditation of legal aid providers The Service may accredit a person or an institution providing the services prescribed by the Service. 19 Accreditation of legal aid providers The Service may accredit a person or an institution providing the services prescribed by the Service. 19 Legal Aid Act (Cap. 16A) Kenya 60. Register of accredited legal aid providers (1) The Service shall maintain a register of accredited legal aid providers containing— (a) the personal details and contact addresses of all accredited legal aid providers; (b) in the case of a registered association or a public benefit organization, the nature of the association or organization and the particulars of its registration; (c) the nature of services in respect of which the legal aid providers are accredited; (d) the number of cases being handled by the legal aid provider at any given time; and (e) any other matter prescribed by regulations. (2) The Service shall ensure that the register maintained under subsection (1)— (a) is publicized, placed or posted and made available for inspection at no charge by members of the public at police stations, courts, prisons and such other public places as may be determined by the Service; and (b) is available in electronic form or other accessible formats. 61. ts, prisons and such other public places as may be determined by the Service; and (b) is available in electronic form or other accessible formats. 61. Obligations relating to professional conduct (1) Except as may be expressly provided for by or under this Act, the fact that a legal aid provider provides services under this Act does not in any way affect that provider's obligations under any rules or codes of conduct of any professional or similar body to which that provider belongs, nor does it in any way affect their rights, obligations, responsibilities, or duties as a member of such body. (2) The Service shall develop a code of conduct to apply to accredited legal aid providers. (3) The code of conduct referred to under subsection (2) shall provide for— (a) the protection of the rights and interests of an aided person; (b) duties to the aided person, the Service, court or tribunal; (c) conflict of interest; (d) observance of confidentiality; (e) in the case of professionals, the duty to observe prescribed ethical standards of their respective professional bodies; and (f) probity and ethical conduct. 62. e of professionals, the duty to observe prescribed ethical standards of their respective professional bodies; and (f) probity and ethical conduct. 62. Unauthorized payments (1) No legal aid provider, agent or staff of the Service shall demand, request or receive payment from or in respect of an aided person, in relation to services rendered under this Act, unless such payment is authorized under this Act. (2) Any person who demands, requests or receives the payment specified under subsection (1) commits an offence. 63. Legal aid disbursements Except as otherwise authorized by the Service, an accredited legal aid provider shall pay all disbursements relating to a matter in which legal aid has been granted and may claim for reimbursement of those costs. 20 l aid provider shall pay all disbursements relating to a matter in which legal aid has been granted and may claim for reimbursement of those costs. 20 Legal Aid Act (Cap. 16A) Kenya 64. Protection of interests of the Service (1) A legal aid provider shall— (a) take all reasonable steps to protect the interests of the Service and the aided person; and (b) inform the Service if the legal aid provider is aware that the aided person has avoided, is avoiding, or is attempting to avoid making payments to the Service from proceeds of proceedings. (2) If a person to whom subsection (1) applies fails to fulfill his or her duties under that subsection, the money that should have been paid to the Service or from proceeds of proceedings, may be deducted from any money owing, by the Service, to that person. 65. Records, monitoring and evaluation (1) A legal aid provider shall— (a) keep proper records of activities undertaken on behalf of an aided person; and (b) provide legal services, as prescribed by the Service. (2) The Service shall monitor and evaluate the activities and the quality of legal representation offered by a legal aid provider under sub-section (1). 66. e Service shall monitor and evaluate the activities and the quality of legal representation offered by a legal aid provider under sub-section (1). 66. Suspension of accreditation (1) The Service may temporarily suspend any approved services in the accreditation of a registered legal aid provider for a specified period if the accredited legal aid provider— (a) is in breach of the code of conduct prescribed under this Act, a code of conduct prescribed by the relevant professional body or under any other written law; (b) is convicted of an offence; (c) is subject to disciplinary procedures before the relevant professional body of which he or she is a member; or (d) fails to keep proper records of activities undertaken on behalf of an aided person or to provide legal services, and the Service considers that this shall have an adverse effect on the interests of the aided person generally or in any particular case. (2) The Service shall give written notice of its decision to suspend the accreditation of a legal aid provider within seven days of the suspension. (3) A legal aid provider whose accreditation is suspended shall cease to provide the relevant service, and the Service shall not be liable to pay for any service rendered to an aided person after the date on which the suspension takes effect. t service, and the Service shall not be liable to pay for any service rendered to an aided person after the date on which the suspension takes effect. (4) A legal aid provider whose accreditation is suspended may request the Service to review its decision within fourteen days of receipt of the notice of suspension. (5) The Service shall, within twenty eight days of receipt of the request specified in sub-section (4) notify the aided person or legal aid provider of its decision. 67. Cancellation of accreditation (1) The Service may cancel the accreditation of a legal aid provider on any of the following grounds— (a) the Service is satisfied that the accreditation was obtained by mistake, fraud, undue influence or misrepresentation; 21 of the following grounds— (a) the Service is satisfied that the accreditation was obtained by mistake, fraud, undue influence or misrepresentation; 21 Legal Aid Act (Cap. 16A) Kenya (b) the legal aid provider— (i) does not meet the accreditation criteria, whether or not that criteria was adopted before or after the accreditation was given; (ii) is not providing, or has not provided, the service for which they are accredited to the prescribed standard; (iii) has been adjudged bankrupt, is insolvent or has entered into an arrangement with his or her creditors; (iv) has failed to comply with one or more of the conditions of the accreditation; or (v) is convicted of an integrity related offence which touches on his or her integrity, accountability, or is subject to an order made under the relevant body. (2) The Service shall give written notice of its decision to cancel the accreditation of a legal aid provider under subsection (1) to the legal aid provider within seven days of the cancellation. (3) A legal aid provider whose accreditation is cancelled shall cease to provide the relevant service, and the Service shall not pay for any services provided after the date on which the cancellation takes effect. cease to provide the relevant service, and the Service shall not pay for any services provided after the date on which the cancellation takes effect. (4) A legal aid provider whose accreditation is cancelled may request the Service to review its decision within fourteen days of receipt of the notice of cancellation. 68. Legal advice and assistance by paralegals (1) An accredited paralegal employed by the Service or supervised by an accredited body may provide legal advice and assistance in accordance with this Act. (2) An accredited paralegal shall not demand payment of a fee from a person who qualifies for legal aid under this Act. (3) An accredited paralegal who demands payment of a fee as specified under subsection (2) commits an offence. Part IX – ENFORCEMENT OF CONDITIONS OF GRANT OF LEGAL AID 69. legal who demands payment of a fee as specified under subsection (2) commits an offence. Part IX – ENFORCEMENT OF CONDITIONS OF GRANT OF LEGAL AID 69. Terms of provision of funded services (1) An aided person who receives legal aid shall— (a) pay a fee of such amount as may be determined by the Service; (b) if the financial resources of the aided person are, or relevant conduct is, such as to make the aided person liable to do so, pay the cost of the services or make a contribution in respect of the cost of the services of such amount as may be prescribed; or (c) if the services relate to a dispute and the aided person has agreed to make a payment (which may exceed the cost of the services) only in specified circumstances, make in those circumstances a payment of the amount agreed or determined in the manner agreed by the aided person. (2) For purposes of this section, "relevant conduct" means conduct in connection with the services, an application for funding or any proceedings in relation to which they are provided. 22 evant conduct" means conduct in connection with the services, an application for funding or any proceedings in relation to which they are provided. 22 Legal Aid Act (Cap. 16A) Kenya 70. Recovery of costs and benefits (1) Where the Service or an advocate who is accredited under section 59(1) has assisted an aided person who has been awarded costs in any proceedings, the aided person is deemed to have surrendered the costs to the Service, and the Service shall be entitled to such costs. (2) Where an aided person has been compensated through an award of damages in any proceedings, such person shall be entitled to the award, provided that the service shall have the right to deduct from the award, the costs it incurred in respect of the proceedings. 71. Enforcement of judgment A legal aid provider shall take the steps necessary to enforce a judgment or an out-of-court settlement in order to recover the proceeds of proceedings. Part X – AWARD OF COSTS IN CIVIL PROCEEDINGS 72. Liability of aided person for costs (1) If an aided person receives legal aid for civil proceedings and loses the case, the court shall not award an order of costs against the aided person, unless there are exceptional circumstances. ivil proceedings and loses the case, the court shall not award an order of costs against the aided person, unless there are exceptional circumstances. (2) In determining whether there are exceptional circumstances under subsection (1), the court may take into account any of the following conduct by the aided person— (a) conduct that causes the other party to incur unnecessary costs; (b) misleading or deceitful conduct; (c) unreasonable pursuit of one or more issues on which the aided person fails; (d) unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution; or (e) other conduct that abuses the processes of the court. 73. Costs against an aided person If an order is made under section 72 specifying that an aided person is liable for costs, the Service shall not be liable for the payment of such costs. 74. Aided person not required to provide security for costs (1) Unless there are exceptional circumstances, an aided person shall not be required to provide security for costs during litigation or appeal proceedings. (2) An order of security for costs made in any proceedings against any person to whom legal aid services are rendered under this Act shall not be enforceable against the Service or any accredited legal aid provider. Part XI – PAYMENT FOR LEGAL AID SERVICES 75. endered under this Act shall not be enforceable against the Service or any accredited legal aid provider. Part XI – PAYMENT FOR LEGAL AID SERVICES 75. Fees payable (1) The Service shall, in consultation with relevant professional bodies, determine the scales of fees payable to legal aid providers contracted by the Service in the performance of its functions under this Act. 23 l bodies, determine the scales of fees payable to legal aid providers contracted by the Service in the performance of its functions under this Act. 23 Legal Aid Act (Cap. 16A) Kenya (2) In determining the scales of fees payable under this Act, the Service shall take into account— (a) sustainability of the legal aid scheme; (b) reasonableness; (c) accessibility of legal aid services; and (d) extending the Service to as many beneficiaries as possible. (3) Notwithstanding the provisions of subsection (1), the Service may, in exceptional circumstances, enter into an agreement with a legal aid provider to provide services under this Act on such terms as may be agreed between the legal aid provider and the Service. (4) The scale fees determined by the Service shall be less than the legal fee applicable to persons not aided by the Service. 76. der and the Service. (4) The scale fees determined by the Service shall be less than the legal fee applicable to persons not aided by the Service. 76. Claim for payment by legal aid provider A claim for payment in respect of legal aid under this Act shall be made by the legal aid provider to the Service in the prescribed manner and shall indicate— (a) the fees claimed by, or the charges due to the legal aid provider; (b) the fees claimed by or the charges due to, any other provider who acted on the matter with the approval of the Service; and (c) the disbursements claimed by the legal aid provider and any other provider who represents the aided person, with the approval of the Service. 77. Examination and audit of claims by legal aid providers (1) Every claim, or part of a claim, shall be examined by the Service to ensure that the claim or part of a claim is in accordance with the approved rates and applicable agreement. (2) The Service may audit the quality and value of the services provided by the legal aid provider that have been, or may be, paid for by the Service. (2) The Service may audit the quality and value of the services provided by the legal aid provider that have been, or may be, paid for by the Service. (3) A legal aid provider who is subject to an examination or audit shall co-operate with the officer of the Service and, in particular shall ensure that the officer of the Service is at all reasonable times, given access to— (a) all documents under the control of the legal aid provider that relate to the claim under examination; or (b) matters for which the legal aid provider has claimed or may claim payment from the Service. 78. Service to pay approved claims (1) The Service shall pay a legal aid provider in respect of every claim or part of a claim that the Service approves for payment. (2) The Service shall not withhold payment of part of a claim on the ground that another part of the claim has been deferred for examination by the Service or has been declined by the Service. 79. Payment for services (1) An aided person shall not be required to make any payment in connection with the provision of services, except where it is otherwise provided. (2) An aided person may be required to pay for— (a) the cost of services; 24 on with the provision of services, except where it is otherwise provided. (2) An aided person may be required to pay for— (a) the cost of services; 24 Legal Aid Act (Cap. 16A) Kenya (b) a contribution in respect of the services; (c) administration costs; and (d) any other service provided to the aided person. 80. Refund of excess payments The Service shall refund any amount paid by an aided person to the Service where the amount paid by the aided person exceeds the amount the aided person is required to pay to the Service. 81. Waiver of right to recover debts (1) The Service may waive its right to recover a debt due to the Service by an aided person, if— (a) the enforcement of the debt would cause serious hardship to the aided person; (b) the cost of enforcing the debt is likely to exceed the debt sought to be recovered; (c) the Service considers that it would be just and equitable in the circumstances of the case to do so. (2) The Service may at the request of an aided person make a decision under subsection (1) at any time. (3) Where the Service waives its right to recover a debt, under sub-section (1), the Service shall give notice of the waiver to the debtor. (4) The waiver of a debt does not affect the obligation of the Service to pay any person who provided legal services under the relevant grant of legal aid. he waiver of a debt does not affect the obligation of the Service to pay any person who provided legal services under the relevant grant of legal aid. Part XII – MISCELLANEOUS PROVISIONS 82. Disclosure of information Except for the purposes of this Act, no member of the Service or its employees or accredited legal aid providers shall disclose any personal information relating to an aided person obtained in the course of their duties. 83. Annual report and other reports (1) The Service shall, not later than three months after the end of each financial year, submit to the Cabinet Secretary an annual report covering the activities and the operations of the Service under this Act during the immediately preceding year. (2) The annual report of the Service shall contain, in respect of the year to which it relates— (a) the financial statements of the Service; (b) a description of the activities of the Service; (c) such other statistical information as the Board may consider appropriate relating to the functions of the Service; (d) the impact of the exercise of the mandate or functions of the Service; (e) the gender, regional and ethnic diversity in the Service; (f) the challenges, if any, faced in the implementation of the Act; and (g) any other matter relating to the functions of the Service that the Board considers necessary. 25 any, faced in the implementation of the Act; and (g) any other matter relating to the functions of the Service that the Board considers necessary. 25 Legal Aid Act (Cap. 16A) Kenya (3) The Service shall publish and publicize the annual report in such manner as the Service may determine. (4) The Cabinet Secretary shall, within one month after the receipt of the annual report submit the report to the National Assembly together with a statement of the views of the Cabinet Secretary on the performance of the Service during the year to which the report relates. (5) The Service shall submit to the Cabinet Secretary any other report that the Cabinet Secretary may in writing, request. 84. Legal Aid Guide The Service shall, at least once in every three years, prepare and publish a Legal Aid Guide detailing in simple language— (a) the provisions of this Act and other relevant legislation and regulations; (b) the policies and directives of the Service; and (c) the legal aid services available from the Service. 85. Offences (1) A member of the Board or an employee of the Service who— (a) knowingly subverts the process of providing legal aid; (b) knowingly obstructs the Service in the discharge of its functions; or (c) otherwise interferes with the functions of the Service, commits an offence. knowingly obstructs the Service in the discharge of its functions; or (c) otherwise interferes with the functions of the Service, commits an offence. (2) Any person who commits an offence under this Act for which no penalty is provided is liable on conviction to a fine not exceeding two hundred and fifty thousand shillings or to imprisonment for a term not exceeding one year or to both. 86. Provisions on delegated powers (1) The Cabinet Secretary may make Regulations generally for the better carrying into effect the provisions of this Act. rovisions on delegated powers (1) The Cabinet Secretary may make Regulations generally for the better carrying into effect the provisions of this Act. (2) Notwithstanding the generality of subsection (1), the Regulations made under this Act may provide for— (a) the criteria for eligibility for legal aid; (b) the procedures for the provision of legal aid to persons detained at police stations, or in remand, prison or other places of lawful custody; (c) procedures and terms and conditions of accreditation of service providers; (d) the records to be kept by legal aid providers in relation to legal aid assignments and the reports to be submitted to the Service; (e) the manner of applying for legal aid under this Act; (f) the manner of assessing the financial resources of applicants and the eligibility of applicants for legal aid; (g) the amount or amounts payable by a aided person; (h) the method or methods for calculating what maximum grant, if any, should be set under a grant of legal aid in respect of proceedings; 26 d person; (h) the method or methods for calculating what maximum grant, if any, should be set under a grant of legal aid in respect of proceedings; 26 Legal Aid Act (Cap. 16A) Kenya (i) the manner in which applications for, and grants of, legal aid in respect of a child, and other persons with special requirements, are to be dealt with; (j) the class or classes of defendants to whom priority shall be given or for whom services may be limited; (k) the conditions relating to the delivery of services under any scheme; (l) the methods for calculating the cost of services; (m) the payment of interest in respect of costs of service; (n) the circumstances and terms of refusal, variation and withdrawal of legal aid; (o) anything required to be prescribed under this Act; and (p) any other matters necessary for the administration of this Act. ithdrawal of legal aid; (o) anything required to be prescribed under this Act; and (p) any other matters necessary for the administration of this Act. (3) For the purposes of Article 94 (6) of the Constitution— (a) the purpose and objective of delegation under this section is to enable the Cabinet Secretary to make regulations to provide for the better carrying into effect of the provisions of this Act and to enable the Service to discharge its functions effectively; (b) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and to fulfil the objectives specified under this section; (c) the principles and standards applicable to the regulations made under this section are those set out in the Interpretations and General Provisions Act (Cap. 2) and the Statutory Instruments Act (Cap. 2A). 87. Supersession, savings and transitional provisions (1) In any matter relating to legal aid, in the event of any conflict between the provisions of this Act and those of any other written law, the provisions of this Act shall prevail. gal aid, in the event of any conflict between the provisions of this Act and those of any other written law, the provisions of this Act shall prevail. (2) Until the Board is established, the National Legal Aid and Awareness Steering Committee appointed pursuant to Gazette Notice number 11598 of 2007 and in existence immediately before the coming into force of this Act shall continue to operate as if it were the Board under this Act. (3) A case handled by a legal aid pilot existing immediately before the coming into force of this Act and which is not concluded shall continue and be concluded in such manner as the Service shall determine. (4) Any asset, right or property held on behalf of a legal aid pilot in existence immediately before the coming into force of this Act shall be transferred to the Service. (5) An obligation or liability subsisting against a legal aid pilot immediately before the coming into force of this Act shall, on the commencement of this Act, subsist against the Service. (6) The Service shall be bound in all contracts including contracts of service, if any, subsisting at the commencement of this Act and to which the National Legal Aid and Awareness Programme was a party directly or through the State department responsible for legal aid. 27 his Act and to which the National Legal Aid and Awareness Programme was a party directly or through the State department responsible for legal aid. 27 Legal Aid Act (Cap. 16A) Kenya SCHEDULE [s. 15] MEETING AND PROCEDURE OF THE BOARD 1. Meetings (1) The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting. (2) Notwithstanding subparagraph (1), the chairperson may, and upon requisition in writing by at least five members shall, convene a special meeting of the Board at any time for the transaction of the business of the Board. (3) Unless three-quarters of the members otherwise agree, at least seven days notice in writing of a meeting shall be given to every member. (4) A meeting shall be presided over by the chairperson or in his or her absence by the vice- chairperson. 2. Conflict of interest (1) If any person has a personal or fiduciary interest in any matter before the Board, and is present at a meeting of the Board or committee at which any matter is the subject of consideration, that person shall as soon as is practicable after the commencement of the meeting, declare such interest and shall not take part in any consideration or discussion of or vote on any question touching such matter. ment of the meeting, declare such interest and shall not take part in any consideration or discussion of or vote on any question touching such matter. (2) A disclosure of interest made under sub-paragraph 1 shall be recorded in the minutes of the meeting at which it is made. (3) Any person who contravenes sub-paragraph 1 commits an offence and is liable, upon conviction, to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding seven years or to both such fine and imprisonment. (4) No member or staff of the Board shall transact any business or trade with the Board directly or indirectly. 3. Quorum (1) Subject to sub-paragraph (2) the quorum of the meeting shall not be less than half of the appointed members. (2) Where there is a vacancy in the Board, the quorum of the meeting shall not be less than three appointed members. 4. Voting A question before the Board shall be decided by a majority vote of those members present and forming a quorum. 5. Rules of procedure and minutes The Board shall— (a) determine rules of procedure for the conduct of its business; and (b) keep minutes of its proceedings and decisions. 28
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