High court fees threatens access to justice, warns lawyer

High court fees are driving away poor Kenyans from accessing justice as enshrined in the Constitution, a human rights lawyer has said.

Human rights lawyer Nyokabi Ngari has also expressed concern over lack of public participation before the Judiciary increased court fees.

The latest fees schedule was published by Chief Justice Martha Koome and passed by a committee of the Judiciary and the Law Society of Kenya. The application of the new fees took effect on September 1.

"As a human rights lawyer, I oppose the increase of court fees as it has far-reaching implications on access to justice for the poor," argued Ms Ngari.

She was speaking in Naivasha during the second National Legal Aid conference which was organised by Egerton University Faculty of Law Legal Aid Project (FOLLAP) and supported by the European Union and UNDP through the Amkeni Wakenya project.

She added: "Access to justice is a fundamental constitutional human right and the increase in court fees interferes with the access to the court."

Criminal matters

The schedule states that filing any type of application at the High Court, except on criminal matters, now costs Sh1,500 up from Sh750, while registration of arbitration awards related to disputes at the Environment and Lands Court now costs Sh10,100, up from Sh2,250.

While defending the new court fees Chief Justice Koome said litigants will make a one-off payment and will not be charged for different items in their cases.

Chief Justice Koome further allayed fears that the new court fees will be a big disadvantage to the very vulnerable as the judiciary has put a mechanism to exempt them from paying fees when filing their documents.

Ms Ngari said that people might simply struggle to apply for an exemption "because we know when it comes to exemptions they are a bit technical and there is a requirement of extensive details of the applicants' financial positions. This might not work to marginalise people."

She added: "With an inflation rate of 5.87 per cent, the state should ensure justice for all Kenyans. The fee increase should be reasonable and should not impede access to justice as guided by Article 48 of the Constitution."

Marginalised Kenyans

She observed that the increment in filing fees has become an impediment to the right to access justice for marginalised Kenyans.

She argued that a properly funded justice system is a core function of the state and called for a balanced means of financing the courts.

"Poor Kenyans seeking justice are torn between paying high fees of between Sh1,000 and Sh5,000 and buying basic items like food. This emerging trend needs to be reversed,” said Ms Ngari who is also the Chairperson and founder of African Woman Global Initiative.

"Under Legal Aid Act of 2016 poor Kenyans are supposed to get legal assistance but this is not available to all civil matters," said Ms Ngari

She urged the judiciary to carefully analyse the impact of the new court fees on access to the courts.

"There is an urgent need for rigorous data collection from the Judiciary and civil societies to monitor the effect of the new court fees.  The Judiciary set court fees on an ad hoc basis to satisfy budget priorities rather than access to justice," said Ms Ngari

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