Date of publication:
04/22/2025
Kenya
Do domestic laws and policies provide the right of recourse to effective administrative or judicial remedies, for forcibly displaced and stateless persons who are denied the choice of residence?
Assessment by population
Analysis
According to section 48 of the Constitution, the State has the duty to ensure access to justice for all persons and if any fee is required, it shall be reasonable and shall not be impede access to justice. Furthermore, under section 159 (2) (a), the Constitution provides that the courts and tribunals shall be guided by the principle of justice shall be done to all irrespective of status. Hence, the Government has the duty to ensure access to justice to all including to refugees. The Legal Aid Act, 2016, with its objective to ensure the provision of affordable, accessible, and sustainable legal aid and promote alternative dispute resolution mechanisms, has included refugees and asylum-seekers among the indigent groups that should benefit from legal aid.
Related provisions of domestic law or policy
The Constitution of Kenya
- Year: 2010
- Type: Domestic law
- Rights Category: Asylum, Education, Freedom of movement, Health, Housing, land & property, Liberty & security of person, Social protection, Work & Workplace rights, Family life, Documentation
- Link to external source: https://www.refworld.org/legal/legislation/natlegbod/2010/en/75699
Legal provision
Article 159(2) - Judicial authority
In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a) justice shall be done to all, irrespective of status.
Article 48 - Access to justice
The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
Legal Aid Act
- Year: 2016
- Type: Domestic law
- Rights Category: Social protection
- Link to external source: https://new.kenyalaw.org/akn/ke/act/2016/6/eng%402017-05-04
Legal provision
Section 36 - Eligibility for Legal Aid
An applicant is eligible for legal aid if that person is— (a) an indigent person; (b) a resident of Kenya; and (c) a child; or (d) a refugee under the Refugees Act; or (e) a victim of human trafficking; or (f) an internally displaced person; or (g) a stateless person.
Section 40 - Application for Legal Aid:
A person who wishes to receive legal aid shall make an application to the Service in the prescribed form.
Section 43.1 - Duties of the Court
A court before which an unrepresented accused person is presented shall— (a) promptly inform the accused of the 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.