Democracies actions. More so, access to justice is

Democracies with a deeprespect for the realization and enforcement of basic human rights acknowledgethat constitutionalism and the rule of law are key tenents in preserving anorderly and harmonious political, social and economic environment. In such democracies,the constitution is held to be the supreme law directing, defining andpermitting all actions of the state. This adherence to the rule of law andconstitutional supremacy provides a firm guarantee that powers and libertiesprovided to authorities under the law shall not be put into whimsical use,betraying the freedoms and human rights guaranteed to the people. As a result,every person is guaranteed equal treatment before the law; legal institutionssuch as the judiciary become accessible to all, despite their social oreconomic status. Nevertheless, this is a utopia for most peoplein Kenya who live under 1.

25 dollars a day. Laws created to protect the poorfrom exploitation and abuse are flaunted regularly without penance andinstitutions meant to uphold such laws have abandoned their duty. Resultantly, accessto justice in these situations is hindered, leaving those without any economicor social muscle to circumvent the flawed system vulnerable to furtherexploitation and abuse.1.

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1.Povertyand Access to JusticeAccessto justice is a crucial component within any Bill of Rights. It not only enablespeople to enforce their rights and freedoms, it also allows citizens to holdleaders accountable for their actions.

More so, access to justice is a tool fordevelopment and economic progress, enabling the poor to use the law, legalsystems and legal services to protect their rights and advance their interestsas economic actors.1Since she gainedindependence, preceded and influenced by a tyrannical colonial legaldispensation,   Kenya has suffered itsfair share of human rights abuses and violations. The rule of law and constitutionalismand consequently, access to justice, has constantly been disregarded in favorof an autocratic regime serving the interests of a few.

Institutions, meant tobe custodians of the rule of law, have been forced to operate under the bulbousthumb of an almighty executive, denying ordinary Kenyans equal protection bythe law. The judiciary has been stripped bare of its sacrosanct independencethrough the removal of tenure of judges2 spawning a rather weak andtimid judiciary that operates on the whims of its master. The private bar hasbeen undermined and silenced through continuous and frivolous arrests ofprivate attorneys and activists3 who dare, and bravely so, tocontradict the government position.4 These intrusions, by anall too powerful executive that undermines a judiciary struggling to defineitself, have led to the loss of vison and subsequently the loss of integrityfrom judicial officers resulting in an influx of corrupt practices such asbribery.

5 Accordingly, this has ledto the erosion of trust in the judiciary and other legal institutions by thepublic.6 More so, these corrupt practiceshave not only alienated socially and economically disadvantaged people fromaccessing courts and receiving redress for violation of their rights – sincethey are incapable of raising the required economic or social capital tocircumvent these limitations – but have also worsened their living condition;those in dire need of protection from violation and abuse have been cast aside.Without any other place to turn to for redress, they are left in a de factostate of lawlessness.7  Whetherliving below or slightly above the poverty line, these men, women, and childrenlack the protections and rights afforded by the law. They may be citizens ofthe country in which they live, but their resources can neither be effectivelyprotected nor leveraged. Thus, it is not the absence of assets or lack of workthat holds them back, but the fact that the assets and work are insecure,unprotected, and far less productive than they might be.

Their property rightsand economic rights mean nothing in the face of blatant inequality amongclasses. In addition to exclusion based on their poverty, poor women may also bedenied the right to inherit or acquire property. Clearly, vast poverty must beunderstood as created by society itself. The laws, institutions, and policies governingeconomic, social, and political affairs deny a large part of society the chanceto participate on equal terms. This stunts economic development and can readilyundermine stability and security. The outcomes of governance – that is, thecumulative effect of policies and institutions on peoples’ lives – will onlychange if the processes of governance are fundamentally changed.81.

2.The Constitution of Kenya, 2010rk1 Despite this gloomy past, Kenya’s new constitutional dispensationpromulgated in 2010 has sought to restore balance within the three arms ofgovernments and protect the rights and freedoms of individuals, especially marginalized and vulnerable groups of people, including the poor. It provides thatthe State and consequently every state organ has a duty to observe, promote andrespect the rights and fundamental freedoms provided under the Bill of rights.It further states that all state organs and public officers have a duty toaddress the needs of vulnerable groups.9 Article 48 grants that every person has a right to access justice and bestowsthe State with the responsibility to ensure it is achieved.10 It alsoprovides under, the same article, that any fee required to meet this obligationshall be reasonable and not impede access to justice. This provision issupported further under Article 22 (3) which states that the Chief Justiceshall make rules11providing for court proceedings in which the criteria that: formalitiesrelating to proceedings, including the commencement of proceedings, and inparticular, the court entertaining proceedings on the basis of informaldocumentation, when necessary, shall be met.

Moreover, the rules shall ensurethat no fee may be charged for commencing such proceedings. Under the rules, the judiciary’s commitment to enhance access to justicefor all persons is reiterated as the overriding objective of the rules.12 Furthermore,the rules emphasize that the court shall pursue access to justice for allpersons including the poor, illiterate, uninformed, unrepresented and personswith disabilities.13 The rulesfurther guarantee access to justice for all by rescinding as mandatory therequirement that commencement of proceedings should be done through a formalapplication. It states, however, that the court may accept an oral application,a letter or any other informal documentation which disclosesdenial, violation,   infringement or threat to a right or fundamentalfreedom.14Clearly, the Constitution intended that court proceedings, especiallythose highlighting violation of rights, should not be curtailed.

Thus, Article 159directs the judiciary to be guided by these principles while carrying out itsduties: i.                   that justice shall be done to all,irrespective of status;ii.                 that justice shall not be delayed; iii.               that justice shall be administeredwithout undue regard to procedural technicalities;iv.               that the purposes and principles ofthe Constitution shall br protected and promoted.These provisions, if implemented religiously, are a foundation upon whichepistolary jurisdiction may be enforced within the judicial process. TheConstitution has strived to ensure that every Kenyan, especially thosevulnerable to abuses have access to courts and are able to receive audience andredress. However, we are still a long way from achieving this.

Case in point, the Civil Procedure Rules of 2010 provide that a pauper may instituteany suit subject to the rules provided therein.15 A pauper is defined as aperson who is not possessed of sufficient means to enable him to payfor the fee prescribed by law for the institutions of such suit.16 However, such rules, asappealing as they may seem, are negated by succeeding provisions which providefor grounds for rejection of an application to sue as a pauper.

One of thegrounds for rejection of such applications by thecourts is where pleadings are not framed and presentedin the prescribed manner.17 This provision isoblivious of the fact that a poor, illiterate, uninformed or an unrepresented person does not know how to draft pleadings in accordance with the required prescriptions under the law. It is,therefore, unfair to equate the threshold of compliance of such a person to that of an advocate who has specializedin the law. After all, provisions of Article 159(2) (c) of the Constitution should come intoeffect in this case.

Moreover, where the application to sueas a pauper is approved but the suit fails, the rules require the pauper (orthe plaintiff) to cater for the fees as may be directed by the court.18 This brings into questionthe entire purpose of the provisions to sue as a pauper if such applicationshall only be credible if your suit succeeds. Considering the state of paupers,many of whom are unrepresented, illiterate and uninformed, these provisionsdiscourage many of them from instituting proceedings since they may fail- thatis, if they are even aware of the provision itself.

The Order continues toprovide that where an application to sue as a pauper fails, the plaintiff (orthe pauper) shall be barred from any subsequent applications of the like natureas a pauper.19Advocates are also required pursuant to the LawSociety of Kenya’s (LSK) digest of professional conduct and etiquette toassist poor persons who are unable to pay an advocate’s fee in the ordinary way, on a pro bono or pro deo20 basis. Whereas the Rulegoes ahead to provide guidelines on the exercise ofsuch a mandate, such assistance is not mandatory.

It is, therefore, clear that more needs to be done toenhance access to justice in Kenya. As Albert Einstein stated once, inmatters of truth and justice, there is no difference between large and smallproblems, for issues concerning the treatment of people are all the same. Although many strideshave been taken to promote equal access to justice for all, there is still alot to be done to guarantee it. Epistolary jurisdiction, as this dissertationtries to advance, is a credible and efficient way to provide access to justicefor all, regardless of their status. This will not only enhance a culture ofhuman rights protection and advancement but also provide a basis for economicprogress and poverty alleviation.1 Making the Law Work For Everyone:A Report by the Commission on Legal Empowerment of the Poor.

Volume 1.2 Constitution of Kenya AmendmentAct No. 4 (1988).3 Justice Willy Mutunga (retired), Mr.  John Khaminwa and Mr. Gibson Kamau Kuria weredetained for allegedly teaching ‘subversion’, for defending a politicaldetainee and, filing a habeus corpus application on behalf of Mirugi Kariuki,respectively.

4 Drew Days III Et Al., JusticeEnjoined: The State Of The Judiciary In Kenya 4 (1992) Publication Of TheRobert F. Kennedy Memorial Center For Human Rights.5 Human Rights Watch, World Report2000: Events Of 1999, 48-50 (2000).6 Kenya at the Crossroads pg.

10.7 Making the Law Work For Everyone:A Report by the Commission on Legal Empowerment of the Poor, Volume 18 Making the Law Work For Everyone:A Report by the Commission on Legal Empowerment of the Poor, Volume 19 Article 21, the Constitution ofKenya, 2010.10 Article 48, the Constitution ofKenya, 2010.11 TheConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practiceand Procedure Rules, 2013.12 Rule 3 (1), the Constitution of Kenya (Protection of Rights andFundamental Freedoms) Practice and Procedure Rules, 2013.13 Rule 3 (7), the Constitution of Kenya (Protection of Rights and FundamentalFreedoms) Practice and Procedure Rules, 2013.14 Rule 10 (3), the Constitution of Kenya (Protection of Rights andFundamental Freedoms) Practice and Procedure Rules, 2013.

 15 Order 33 Rule 1-1, Civil ProcedureRules, 2010.16 Order 33 Rule 1-2, Civil ProcedureRules, 2010.17 Order 33 Rule 5, Civil ProcedureRules, 2010.18 Order 33 Rule 11, Civil ProcedureRules, 2010.

19 Order 33 Rule 14,20 Where legal costs are paid by theState at the instruction of the Court. rk1Include Art. 22 on Public interest Litigation for reference inChapter 3


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