Abstract
The Legal Aid Act (No. 6 of 2016) lists stateless persons among those entitled to state-funded legal aid. However, the Legal Aid (General) Regulations (No. 86 of 2022) require every applicant to produce payslips, tax returns, and asset records before their application can be considered. Stateless persons, such as the Nubian community in Kenya, who often live outside the formal systems that generate these documents, find it impossible to meet these requirements.
This blog argues that the documentary conditions in regulation 7(4) and the application form (NLAS 1) in Schedule 1 of the Regulations effectively block access to legal aid for stateless persons. This is in total disregard of the legislative intent in section 36 of the Legal Aid Act. Drawing on the constitutional guarantee of access to justice and the right to legal representation, this blog proposes three measures that the National Legal Aid Service (NLAS) can take to close the gap: converting the statutory declaration alternative in regulation 7(5) from a discretion into a right; revising the Schedule 1 application form to accommodate applicants without identity documents; and issuing internal guidelines that treat statelessness as a standing ground for the substantial injustice exception under section 36(4)(k) of the Act.
Key words: Stateless persons, legal aid, access to justice, legal representation.
Introduction
A stateless person is someone who is not legally recognised as a citizen by any country.[1] When Parliament enacted the Legal Aid Act in 2016, one of its most significant decisions was to extend the reach of state-funded legal aid beyond Kenyan citizens.[2] The Act lists six categories of eligible persons: citizens, children, refugees, victims of human trafficking, internally displaced persons, and stateless persons.[3] This blog focuses on the last category; stateless persons.
Ten years after the enactment of the Act, the question is whether the legislative intent of access to justice by stateless persons has translated into real access. The answer, for most stateless persons in Kenya, is that it has not. The reason is not that the Act fails them but that the regulations issued under the Act impose documentary requirements that are structurally impossible for stateless persons to satisfy. The means test under regulation 4 is reasonable on its face.[4] The problem is that proving one meets the means test requires formal financial documents that stateless persons, by definition, cannot hold.
This blog examines that gap and proceeds in five parts. This introduction constitutes Part 1. Section 2 sets out who stateless persons are and why their situation matters for legal aid. Section 3 analyses the specific provisions of the Regulations that create the barrier. Section 4 considers what the courts have said about legal aid, access to justice, and the right to legal representation. Section 5 proposes practical ways to close the gap.
Who are stateless persons and why they matter
The 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as someone who is not recognised as a national by any country under the operation of its law.[5] This means stateless person(s) do not appear in any state鈥檚 citizenship register.
Kenya has several communities that have lived in conditions of statelessness for generations. The Nubian community, settled in Kenya since the colonial era after serving in the British military, has faced discrimination in accessing identity documents for over a century.[6] Members of the Pemba community, the Shona, and segments of Kenyan-Somali communities in border counties have faced similar obstacles.[7]
The High Court confronted the documentary reality of statelessness directly in Nubian Rights Forum and 2 others v Attorney General and 6 others.[8] The petitioners demonstrated that members of the Nubian community had for decades been subjected to an extra vetting process before they could obtain national identity cards. They were required to produce the identity cards of parents and grandparents, appear before a committee of elders, and swear oaths before a magistrate. Many completed this process and still did not receive a card. Without a card, they could not vote, attend university, access healthcare, get formal employment, or exercise most of the rights that the Constitution guarantees.[9]
The African Commission on Human and Peoples鈥� Rights had earlier, in Nubian Community in Kenya v Republic of Kenya,[10] found that Kenya鈥檚 identity documentation practices violated the African Charter on Human and Peoples鈥� Rights.[11] The Commission held that procedures for granting access to citizenship documentation could not be applied on the basis of ethnic or religious background, and directed Kenya to establish objective, transparent, and non-discriminatory criteria. Years later, the problem persists.
The consequence of this history is that stateless persons in Kenya are overwhelmingly poor and undocumented. They work in the informal economy. They do not file tax returns because they cannot get tax identification numbers. They do not have payslips because they do not have formal employment. They do not hold registered assets. When they need a lawyer, they cannot pay for one.[12] They are, in every sense, the persons that legal aid was designed to serve.
The regulatory barrier
The Legal Aid Act states that a person is eligible for legal aid if they are indigent, resident in Kenya, and fall within one of the listed categories.[13] Stateless persons are one of those categories.[14] The Act then directs that the National Legal Aid Service (NLAS) must determine the individual鈥檚 financial resources before granting legal aid, and it authorises the Cabinet Secretary to make regulations prescribing the criteria for eligibility.
The Legal Aid Regulations carry out that mandate through a means test. Under regulation 4(1), a person qualifies if their net monthly income after tax does not exceed thirty thousand shillings, or if they have no income at all.[15] So far, so good. A stateless person who earns below that threshold, or earns nothing at all, would pass this test in principle. However, stateless persons are, by definition, excluded from the formal economy. Without identity documents, they cannot obtain tax identification numbers, hold formal employment, or register assets.
In addition, the difficulty lies in regulation 7(4), which specifies that the applicant must provide a list of all assets and their estimated value.[16] They must provide documentary evidence of monthly income earned from those assets.[17] They must provide payslips covering the three months before the application.[18] And they must provide their tax returns for the preceding financial year.[19] Every one of these documents assumes that the applicant participates in the formal, documented economy.
For a stateless person, that assumption is false at every step. Without a national identity card, a person cannot obtain a Kenya Revenue Authority personal identification number. Without that number, they cannot file tax returns. Without formal employment, they have no payslips. Without registered assets, there is no documentary evidence of asset income. The application form in Schedule 1 of the Regulations compounds the problem. It asks for an identity card number. There is no field for a person who has no identity card, no field for an informal economy worker, and no guidance on what to do if the required documents simply do not exist.
Regulation 7(5) does provide a partial safety valve. Where the required documents are not available, the Director of NLAS may, at their discretion, require the applicant to make a statutory declaration under oath of their net monthly income.[20] The word 鈥榤ay鈥� is the problem. The provision frames this alternative as something the Director can choose to do rather than something the applicant is entitled to demand. In practice, that means a stateless person arriving at NLAS office with no documents depends entirely on the understanding and goodwill of the officer they meet. If that officer applies the document checklist mechanically, the application goes nowhere.
The Act itself is clear about what it is trying to achieve. Its stated object is to provide affordable, accessible, sustainable, credible, and accountable legal aid services to indigent persons in Kenya.[21] The Constitution of Kenya (2010) states that the state must ensure access to justice for all persons, and any fee charged must not impede that access.[22] When the Regulations impose a condition that a named eligible category of persons cannot satisfy, they work against both the Act and the Constitution. That is a serious legal problem.
What the courts have said
The courts have spoken on legal aid, access to justice, and the duty of the state in ways that are directly relevant to the situation of stateless persons.
The Supreme Court considered the right to legal representation extensively in Republic v Karisa Chengo and 2 others, decided in 2017.[23] The case arose from a criminal appeal where the accused persons had not been provided with legal representation. The Supreme Court noted that the right to be assigned an advocate at state expense under Article 50(2)(h) of the Constitution is qualified by the requirement that substantial injustice would otherwise result.[24] The court treated this not as a barrier to legal aid but as a trigger for legal representation. The Legal Aid Act translates this into a positive obligation on NLAS and on courts.[25] For a stateless person facing prosecution or eviction or detention, the risk of substantial injustice without legal representation is not abstract. It is the ordinary condition of their existence.
In the same vein, the High Court鈥檚 analysis in Nubian Rights Forum case.[26] The court examined how the absence of identity documentation translates directly into the inability to access state services and exercise constitutional rights. That the administrative vetting system applied to Nubian communities raised serious constitutional concerns about discrimination and equal treatment, the court confirmed that the state cannot use its own administrative failures to deny rights to persons its administrative system has excluded. Applied to legal aid, this principle argues powerfully that the NLAS cannot cite the absence of documents as a reason to deny legal aid when the state鈥檚 own identity system is what prevented those documents from being issued in the first place.
These cases together point to a clear legal position. The right to access justice is not a right for persons who already have their documents in order. Article 48 of the Constitution of Kenya uses clear language: It is a right for everyone- from citizen to non-citizen - even those with stateless statues. The more administratively excluded a person is, the more seriously the state must take its obligation to ensure access to justice is real and not merely theoretical.[27] Statelessness, it should be noted, is often intergenerational. The children of stateless parents inherit that condition, making access to justice a matter of multigenerational consequence.
Closing the gap
The good news is that the gap identified in this blog does not require an Act of Parliament to fix. The Cabinet Secretary can amend the Regulations. The National Legal Aid Service can issue administrative guidelines. And the universities operating legal aid clinics have a practical role to play. Three measures would make a real difference.
First, regulation 7(5), which currently allows the Director to accept a statutory declaration in place of documents, should be converted from a discretion into a right for applicants who fall into the categories listed in section 36(1)(b) to (f)[28] of the Act. For those categories, which include refugees, stateless persons, victims of trafficking, and internally displaced persons, the documentary alternative should be the default route rather than a fallback that depends on an officer鈥檚 initiative. The Cabinet Secretary has the power to make this change through a simple amendment to regulation 7.[29]
Second, the application form in Schedule 1 must be revised.[30] A form that asks for a national identity card number and has no alternative field for persons without identity documents is not fit for the population it is supposed to serve. The revised form should include a field for applicants who hold no identity documents, and should provide written guidance, in plain language, on how such persons can demonstrate their circumstances through alternative means, including community attestation letters, witness statements, or an oral declaration before a Service officer. Regulation 14(3) already acknowledges that some applicants may be unable to follow standard procedures by allowing a representative to explain in writing why an applicant cannot personally sign the application.[31] The same logic should apply to the proof of financial means.
Third, the National Legal Aid Service should issue internal guidelines requiring its officers to treat the section 36(4)(k) ground, namely that denial of legal aid would result in substantial injustice, as a standing consideration for all applications by stateless persons.[32] Statelessness is itself a condition that courts and regional human rights bodies have recognised as productive of substantial injustice. Officers should not need to make this determination case by case from scratch. A standing guideline would ensure consistency and reduce the risk that an eligible applicant is turned away simply because the officer at the desk applied the document checklist without exercising the judgment the law requires.
University law clinics accredited under the Regulations have a complementary role. 蜜桃视频 School of Law, through CLACLE, and other clinical legal education programme, can partner with the National Legal Aid Service to create dedicated outreach to stateless communities. This is possible through helping members to prepare statutory declarations, understand their rights, and navigate the application process. This is not a substitute for fixing the Regulations but a bridge that can serve real people while the institutional reforms are being made.
Conclusion
A right that cannot be exercised in practice is not much of a right. For stateless persons in Kenya, the Regulations that are supposed to give the Act its operational content instead function as a paper wall. The document requirements of regulation 7(4) and the design of Schedule 1 assume an applicant who is integrated into the formal economy and holds identity documents that stateless persons structurally cannot obtain.
The courts have made clear that the constitutional guarantee of access to justice is real and not merely formal. The High Court has recognised that Kenya鈥檚 own identity documentation system has discriminated against stateless communities. It applies directly to a stateless person who walks into a National Legal Aid Service office and is told they need payslips and tax returns they have never been allowed to hold, failure of which, the discretion of the director takes precedence.
The Legal Aid Act at ten is an occasion to be honest about this mismatch and to act on it. The Cabinet Secretary can amend regulation 7. The National Legal Aid Service can revise its application form and issue guidelines. University law clinics can reach communities that the Service has not yet reached. None of these steps are impossible. They simply require a recognition that access to justice for stateless persons must mean more than a line in a statute. It must mean a system that actually works for them.
*Oketch Odhiambo is an LLB candidate at 蜜桃视频 School of Law with a keen interest in human rights policy making, particularly the rights of stateless persons. He is a legal intern at New Life Children鈥檚 Trust, a home for abandoned children below the age of three years. He is a member of 蜜桃视频 Legal Aid (CLACLE) and engages in research and advocacy that bridges law, governance, and social justice for the vulnerable populations. ORCID iD: 0009-0002-2645-7888. ()
[1] United States Committee for Refugees and Immigrants, 鈥榃hat is Statelessness? Causes, Impact, and Solutions鈥� USCRI, 13 September 2024
[2] International Commission of Jurists Kenya, 鈥楢ccess to Justice: Reflections on Salient Features of the Legal Aid Act 2016鈥�, ICJ Kenya, 22 February 2019.
[3]Legal Aid Act (No 6 of 2016) Section 36(1)(f).
[4] Legal Aid (General) Regulations (Legal Notice 86 of 2022) Section 4.
[5]Convention Relating to the Status of Stateless Persons, 28 September 1954, 360 UNTS 117, Article 1.
[6] Cecilia Ngaiza, 鈥楥olonial Legacy and the Nubians in Kenya: A Question of Identity鈥� African Legal Studies Blog, 25 February 2022.
[7] Rugenge wa Nciko, 鈥楳aking a Case for the Right to Access Justice for Non-Citizens in Kenya: The Role of Law Clinics in Ensuring the Right to Legal Aid for Migrants鈥� Kabarak Law Review Blog, 9 June 2024.
[8]Nubian Rights Forum and 2 others v Attorney General and 6 others; Child Welfare Society and 8 others (Interested Parties), Petition No 56 of 2019, Judgment of the High Court at Nairobi (2020) eKLR.
[9] Nubian Community in Kenya v Kenya, 鈥楴ubian Community in Kenya v Kenya鈥� Justice Initiative,
[10] Nubian Community in Kenya v Republic of Kenya (decision on merits), 317/2006, ACmHPR (2015).
[11]Nubian Community in Kenya v Republic of Kenya (decision on merits), ACmHPR.
[12] United Nations High Commissioner for Refugees, 鈥榃hat we do: Statelessness鈥� UNHCR Kenya, n.d.
[13]Legal Aid Act (No 6 of 2016) Section 36(1).
[14]Legal Aid Act (No 6 of 2016) Section 36(1)(f).
[15]Legal Aid (General) Regulations (No 86 of 2022) Regulation 4(1).
[16]Legal Aid (General) Regulations (No 86 of 2022) Regulation 4(1).
[17]Legal Aid (General) Regulations (No 86 of 2022) Regulation 7(4)(b).
[18]Legal Aid (General) Regulations (No 86 of 2022) Regulation 7(4)(c).
[19]Legal Aid (General) Regulations (No 86 of 2022) Regulation 7(4)(d).
[20]Legal Aid (General) Regulations (No 86 of 2022) Regulation 7(5).
[21]Legal Aid Act (No 6 of 2016) Section 3.
[22]Constitution of Kenya (2010) Article 48.
[23]Republic v Karisa Chengo and 2 others, Criminal Appeal No 44 of 2014, Judgment of the Supreme Court (2017) eKLR.
[24]Constitution of Kenya (2010) Article 50(2)(h).
[25]Legal Aid Act (No 6 of 2016) Section 36(4)(k).
[26]Nubian Rights Forum and 2 others v Attorney General and 6 others, Judgment of the High Court at Nairobi (2020) eKLR.
[27] StatelessHub, 鈥楰enya鈥� StatelessHub,
[28] Legal Aid Act (No 6 of 2016) Section 36
[29]Legal Aid Act (No 6 of 2016) Section 47.
[30] Legal Aid (General) Regulations (No 86 of 2022) schedule 1.
[31]Legal Aid (General) Regulations (No 86 of 2022) Regulation 14(3).
[32]Legal Aid Act (No 6 of 2016) Section 36(4)(k).
