2013 Tina Hlimi 100x150A hypothetical scenario:

In order to be married in Kianyaga, Kenya, a couple must obtain a marriage license from the Office of Registrar of Marriages by paying a Kshs 200 licence fee. The marriage license fees will not the waived even if the couple applying for the licence cannot afford to pay it. Assume then there is a couple in Kianyaga who desire to marry but simply cannot afford the license fee, what happens?

The couple will not be able to get married legally. This is because licence fees, even part of court proceedings, (e.g. land title deeds; 520 Ksh) must be paid out-of-pocket by all individuals regardless of socio-economic status.

Thus, the delineation between proceeding fees and licence fees is important. In the case of indigents or individuals with access to legal aid, the cost of the former may be alleviated (in civil and criminal matters), whereas licence fees are generally mandatory and consistent across the board.

The inability to pay filing and advocate fees within the matrimonial, family and property law realm is a serious problem for marginalized litigants in Kenya. According to the Pittsburgh Jurist legal website and the US Department of Justice:

Court fees for filing and hearing cases are high for ordinary citizens. The daily rate of at least $25 (2,000 shillings) for arguing a case before a judge is beyond the reach of most citizens.[1]

Further, Kituo Cha Sheria, a Nairobi-based legal organization, which we have been in close partnership with, has reiterated:

Filing and legal fees are too high for a good number of Kenyans. Time, cost and transport keep many away. Women, children and poor men are the ones most affected by this. There is no dependable or practical state provided legal aid scheme. NGOs and Faith Based Organisations have stepped in to provide legal aid and advice the poor and women but they are only able to reach a very small percentage […].[2]

Each week we hear complaints from clients stating that they are still unable to access the judiciary. With our legal aid program we have alleviated the first impediment: namely the costs of hiring an advocate; this is paid for by the organization in aid of the client. The second barrier, consisting of court proceeding and licence fees, is still more difficult to overcome. Given our limited resources, it is fiscally impossible for the organization to cover all of the litigant’s costs.

The complaint is nevertheless valid. The GDP per capita in Kenya is roughly $ 1800 per year (2012 figure; $ 900 per month)[3] or Kshs 156,240 (Kshs13,020 per month). In consideration of amassing legal costs (see table 1), it is clear that legal fees can form a significant portion of an individual’s salary. In these circumstances the principle of proportionality is imperative. If the costs of filing and litigation are more than the amount owed to the client by the defendant (e.g. for a property dispute or land gracing case) then perhaps the case is not worth litigating.  It is of course difficult to explain the idea of proportionality to the client as some simply want retribution.

.Table 1: An example of legal costs in the Kenyan judiciary; much of these costs accumulate to form a significant amount which many individuals will not be able to pay thus delaying proceedings and acting as a deterrent to the judiciary.

Description Cost in Ksh $ CDN
Depositing a will of a living person 500 6
Withdrawing from deposit or inspecting a will of a living person 300 3.59
Depositing a will or certified copy of  a will of a deceased 300 3.59
Particulars of a plaint 100 1.20
Hearing fee in the High court 2000 per day! 23.93
Judicial review 6000 71.80
Order of mandamus 6000 71.80
Prohibition certiorari 6000 71.80
Decree or order 150 1.80
Origination summons Minimum of 1500 17.95
Issue of witness summons 50 0.60
Issue of execution (e.g. warrant of attachment or a sale of property) 50 0.60
Bill of costs for taxation 250 2.99
Affidavit/declaration 50 0.60
For each exhibit or affidavit declaration 10 0.12
communication with a court or tribunal outside of Kenya 250 2.99
Execution of civil warrants 100-200 1.20-2.39

Despite the inability of countless individuals to pay court filing fees, access to justice is an enshrined legal right guaranteed to Kenyans through the International Covenant on Civil and Political rights (ICCPR), which the government ratified in 1972.[4] The Covenant states that an accused offender (in criminal cases) is allowed “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it” (art. 14(3)). [5] In addition to this criminal clause, the Committee on Economic, Social and Cultural Rights has established that under the International Covenant on Economic, Social and Cultural Rights (ICESCR), State-governments should likewise grant legal aid to individuals who are facing evictions (civil cases). The Human Rights Committee has also encouraged states to provide indigents with free legal aid in civil cases and if interpreted purposely States may even have to provide civil legal aid as per s. 14 of the ICCPR.[6] As a result, some State parties to the ICCPR have consistently reported on their efforts to provide counsel in civil matters.[7] It is nevertheless important to stress that the civil legal aid is not obligatory and that there is no legal right to civil legal aid despite the attention afforded to the issue by some States. This has been reiterated by countries like the United States (e.g. Lassiter v. Department of Social Services).[8]  The same rings true in Kenya, where state-funded legal aid is only available for murder suspects thereby excluding marginalized members of society.[9]

At first blush, it seems that civil legal aid is excluded from federal legal assistance in Kenya. This is partially true; Order 33 of the 2010 Kenyan Civil Procedure Rules includes a section on paupers or indigents. The section guarantees legal assistance (upon proof) to indigent individuals seeking to access the judiciary. In essence, the pauper’s advocate/ filing costs will be covered. However, if the pauper or plaintiff wins his/her case the court will then deduct the costs that the pauper would have paid devoid his/her pauperism (clause 10). If a pauper loses his/her case s/he will have to pay the outstanding court fees as though the suit has not been filed under the pauper designation (clause 11). The latter is an evident disincentive for indigent individuals to pursue their case.

Order 33 clause 10 states:

10. Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

11. Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

12. The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.

It is also difficult to prove to the judiciary that one is deserving of indigent status. Kituo Cha Sheria states the courts often requires proof of indigent status, necessitating a chief’s letter and his/her presence which is expensive (e.g. transport costs) and complicated; chiefs often refuse to attend court to provide evidence. Further, proof of income is not easy, particularly due to lack of documentation among rural laborers or those working in the non-formal sector.[10] It is ultimately the court’s discretion as to whether they are willing to accept a suit by a pauper. The 2013 Kenyan Supreme Court decision, John Mbugua and another v. the Attorney General, elucidated the requirements for pauperism:

“The threshold of proving that an applicant deserves the leave of the Court to be pronounced as one capable of filing in forma paupers is extremely high […]The onus in pauper briefs lay squarely on the applicant to candidly and in extreme openness reveal all about his status to the Court. Failure to provide disclosure in its strict sense would knock out the matter and would render a matter as uncreditworthy […]The court must be satisfied on the application of an applicant that he lacks the means to pay the required fees or to deposit the security for costs and that the matter is not without reasonable possibility of success […]A court [is] entitled to reject such an application where the court [is] satisfied that the applicant [may] not recover more than nominal damages [idea of proportionality], the court might well be justified in refusing permission because it would be unjust to the other party who [may] have to incur substantial costs which might not be recoverable.”[11]

Akin to legal aid in Canada the question then arises: what about lower income individuals (non-paupers) who are classified as making too much money (or own assets) in order to qualify for legal assistance (income is too high to access legal aid and too low to afford standard legal fees)? This is the case for many individuals living in Kianyaga. Many of our clients own land and assets but still find court filing fees pricey. This is why they protest. Without our aid (seeing an advocate) they would literally have no access to the judiciary.[12]We try to alleviate some of the filing fiscal issues by first asking the client to exhaust all of their potential economic resources (e.g. friends, family, church etc.). If the client has thoroughly searched and exhausted their network and is still unable to siphon together the required money, our research organization is willing to step in and grant the necessary funding. This is, however, only a temporary solution. I believe that the larger issue is systemic and needs to be corrected at both an international and domestic level in order to ensure access to justice (lawyers, court fees and licence fees) for lower-income individuals.

[1] Victor Mosoti, “Constitution, Government & Legislation” online: The Jurist <http://jurist.law.pitt.edu/world/kenya.htm>.

[2] Kituo Cha Sheria, “Kituo Newsletter April 2010”, online: <http://www.kituochasheria.or.ke/index2.php?option=com_docman&task=doc_view&gid=71&Itemid=44>.

[3]The Central Intelligence Agency, “The World Factbook: Kenya,” online: CIA   <https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html>.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 15 July 2013]

[5] Ibid.

[6] Zachary Zarnow,  “Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States is Doing Instead,  and How Legal Empowerment Can Help” Journal of Gender Journal of Gender, Social Policy & the Law, Vol. 20, (1) [2011] at p. 4.

[7]  Ibid at page 5.

[8] Ibid.

[9] Supra note 2.

[10] Andrew Novak, “The globalization of the student lawyer: a

Law student practice rule for indigent Criminal defense in Sub-Saharan Africa” 3 Hum. Rts. & Globalization L. Rev 33 2009-2010

[11] John Mbugua and another v. the Attorney General online: <http://www.kenyalaw.org/newsletter1/supreme/Issue072013.php>.

[12] Supra note 10.