Thousands remain in prison unable to afford high legal fee

Sunday May 26 2019

Peter Kyalo, a guard, was walking home from his place of work on August 10, 2014 when he suddenly heard someone scream at him.

He did not pay much attention until he noticed a crowd milling around him.

He was shocked to be told he had been identified by Mr Francis Njuguna as one of the men who had robbed Njuguna and his wife the previous week.


Mr Njuguna was walking with his wife on August 3, 2014, when a three men them into a bush and robbed them.

The mob insisted that Mr Kyalo be taken to the police station, where the officers beat him up to make him disclose the whereabouts of his “accomplices”.


He pleaded his innocence and maintained that he was a victim of mistaken identity. Police would hear none of it.

On June 20, 2017, a court found the guard guilty of robbery with violence and sentenced him to 10 years in jail.

A year later, High Court judge Luka Kimaru acquitted Mr Kyalo him on appeal, upon establishing he was a victim of mistaken identity.

“Taking into consideration the fact that the complainant, as a robbery victim, may have been traumatised during the incident, it cannot be ruled out that the complainant may honestly have been mistaken when identifying Kyalo as a member of the gang that robbed him,” Justice Kimaru said June 20, 2018.

The guard’s experience mirrors that by many other Kenyans who for one reason or another, ended up as victims of injustice.

“The Criminal Justice System Audit” published by the Judiciary through the National Council on the Administration of Justice (NCAJ) in 2017, found that Kenya’s Criminal justice system is largely skewed against the poor.

The report was an indictment of a system that is expected to guarantee justice to people from all walks of life, including the most vulnerable.

The audit found that more poor people are arrested, charged and sent to prison compared to the well-to-do.

According to Chief Justice David Maraga, “it is only when justice reaches the weak and the rule of law protects the indigent, that we, as a country, can say that our Constitution is living up to its developmental promise of equality and equity”.


In an attempt to address the challenge of injustice on individuals who cannot afford a lawyer, the National Assembly passed the Legal Aid Act on April 22, 2016.

It establishes a national legal aid service. Through this, it will be possible to have lawyers to cater for individuals who cannot afford an advocate at the expense of the State.

The guiding principles and objectives of the Act are anchored on constitutional provisions and spirit contained under Articles 19 on rights to fundamental freedoms, Article 48 on right to access justice, Article 50 (2) (g) (h) on the right to choose counsel and be informed of legal representation.

Kituo Cha Sheria, a lobby, has been assisting people who cannot afford legal services to access pro-Bono lawyers.

It has also trained paralegals to assist such individuals.

Kituo Cha Sheria director Gertrude Angote says the government should explain why the funds have not been set aside to make the Act functional.

The state is supposed to allocate funds to be used to pay lawyers hired to represent those poor people,” she said.

“It is possible that with a lawyer, a defective charge can be brought to the attention of the court early enough, and the charge can be amended. A majority who can’t afford a lawyer are languishing in remand, don’t understand the court language or what they are charged with. They may also fear the court.”


Mr Felix Odhiambo of JK Felix & Smith Advocates LLP says the best point of rectifying a defectiveness in a criminal process is the trial court.

“Once the trial has left that stage and there is a conviction, the appeal court will often rely on the trial court records to make a finding,” he said.

“The appeal court rarely admits new evidence. Even to rectify the problem which occurred in the trial court becomes a higher burden especially if one is not being represented by an advocate.”

“If there was a problem in the trial court’s record, the problem replicates in the appeal court. And more importantly, if the accused could not afford a lawyer in the trial court, it becomes even difficult to afford one in the higher court.”

Human rights advocate Samuel Karanja says there is need to encourage Alternative Dispute Resolution (ADR) mechanisms to allow people to talk to one another without being bound by the rules of evidence.

“People are able to ventilate and agree on issues,” he said.

“May be somebody simply wanted to be told sorry but since this option was unavailable in the formal justice system, which is very technical and legal, there is wastage of time and neither the victim nor the accused will fully appreciate the outcome of the case,” Mr Karanja said.

Some urban estates prone to crime have witnessed increased police patrol, especially at night.

The police rely on section 182 of the Penal Code (PC) which allows them to arrest people for being “idle” and “disorderly", particularly those found by the road or market centres at night.


While the law criminalises idleness, the courts have taken the position that gone are the days when marginalised members of the society were thrown into cells under these “offences”.

A majority of informal workers go about their business or employment in factories, where they work in shifts, at times clocking many hours. At the end of it, they also contend with walking to their homes.

“I do not understand why one would criminalise idleness. One wonders the sustainability of the offence of being idle and disorderly in our statute books, save for the reason of being a fertile provision for the police to use it as a tool to infringe and or violate the right to equality and non-discrimination,” High Court judge Reuben Nyakundi said on December 20, 2018.

Undoubtedly, no member of the middle income or economically advantaged class of the society finds himself or herself being arrested or indicted with these kind of offences.

There are instances where an advocate would rush to the police station seeking to offer legal representation to the arrested persons.

However, in the process of agitating for their release and or seeking to see their client, they would also be thrown into the cell “for creating disturbance at a police station”.

Justice Nyakundi said arresting an advocate in the course of conducting his duties without any reasonable cause, not only violates the advocate’s right but also the rights of his clients to legal representation as guaranteed by the Constitution.