Nairobi Legal AID Clinic Report - Kelin

LEGAL AID CLINICHELD IN NAIROBI COUNTY, KENYAON 19TH APRIL, 2013Kindaruma Road, off Ngong Road, Kilimani254 -­‐‐ 251 5790(Landline), 0717 261 408(Mobile),P.O. Box 112 -­‐‐ 00202 KNH, Nairobi,E-­‐‐mail: info@kelinkenya.org;www.kelinkenya.org

Legal Aid Nairobi Report1TABLE OF CONTENTSTABLE OF CONTENTS ......................................................................................................................... 1 ABBREVIATIONS .................................................................................................................................. 2 1.0 BACKGROUND ............................................................................................................................... 3 2.0 EXECUTIVE SUMMARY ................................................................................................................ 4 3.0 LEGAL AID OBJECTIVES ............................................................................................................... 5 4.0 SUMMARY OF APPROACH ......................................................................................................... 5 5.0 TABLE OF CASES ............................................................................................................................ 5 6.0 METHODOLOGY ............................................................................................................................ 9 7.0 WAY FORWARD ............................................................................................................................. 9

Legal Aid Nairobi Report2ABBREVIATIONSADRAlternative Dispute ResolutionHAPCA HIV and AIDS Prevention and Control Act 2006HIVOSFNEPHAKPLHIVLSKGEMWOFAKHuman Immuno-­‐‐deficiency virusOpen Society FoundationNational Empowerment Network of People Living with HIV and AIDS inKenyaPersons Living with HIVLaw Society of KenyaAfrica Gender and Media InitiativeWomen Fighting Aids in Kenya

Legal Aid Nairobi Report31.0 BACKGROUNDOn 21 st – 23 rd November 2012 in Nairobi KELIN in partnership with The NationalEmpowerment Network of People living with HIV &AIDS in Kenya (NEPHAK) and The LawSociety of Kenya (LSK) collaborated to deliver a workshop for advocates on HIV and the Law.Funded by the Open Society Foundation (OSF), this seminar was the second in a series ofseminars to be conducted around the country. The seminar sought to develop a criticalunderstanding among legal practitioners on HIV law and related human rights in order toinfluence sound case law on this issue in Kenya.The trained lawyers were encouraged to register with KELIN as pro bono lawyers. The legalpractitioners were required to provide pro bono legal services in relation to cases of healthand HIV related human rights violations from their respective counties. The support of thelawyers was also to be used during legal aid clinics 1 that were envisioned to be conducted inthe counties of Kisumu and Nairobi to raise awareness of the members of the community onhuman rights and HIV related issues and to pick up public interest cases and test cases.1 Legal Aid Clinics involve the provision of free legal advice to members of the public by pro bono lawyers. It isthrough such clinics that cases for litigation are identified. Legal aid Clinics also accord members of the public anopportunity to receive one off professional legal advice on matters touching on health and HIV related humanrights.

Legal Aid Nairobi Report42.0 EXECUTIVE SUMMARYKELIN is a human rights NGO working to protect and promote HIV-­‐‐related human rights inKenya. We do this byproviding legal services and support, training professionals on humanrights, engaging in advocacy campaigns that promote awareness of human rights issues,conducting research and influencing policy that promotes evidence-­‐‐based change.The Law Society of Kenya (LSK) is Kenya’s premier bar association, with membership of allpracticing advocates, currently numbering in excess of seven thousand. It has the mandate toadvise and assist members of the legal profession, the government and the larger public in allmatters relating to the administration of justice in Kenya.The National Empowerment Network of People Living with HIV and AIDS in Kenya(NEPHAK) is an NGO that unites support groups of PLHIV and individual PLHIV into anational and formidable force to counter the impact of HIV and AIDS on their lives and thatof their loved ones in Kenya.KELIN, in partnership with LSK and NEPHAK, collaborated to deliver a legal aid clinic,which is a follow up activity to a workshop for advocates on HIV and the law that was held inNovember 2012. The Open Society Foundation (OSF) funded the Legal aid clinic, which issought to bring the services closer to the people who ordinarily would not afford to haveaccess to lawyers.The one-­‐‐day activity was held at the Mchanganyiko Hall, Karanja Road-­‐‐ Kibera in Nairobi on19 th April 2013 as from 8:00 am to 2:00pm. Other organizations that were involved in thisinitiative were Women Fighting Aids in Kenya (WOFAK) and African Gender and MediaInitiative (GEM).

Legal Aid Nairobi Report53.0 LEGAL AID OBJECTIVESThe objectives of the legal aid clinic were;1) To provide legal aid services for individuals facing violations of their Health and HIVrelated human rights.2) To identify cases for possible mediation arbitration, and litigation.3) To promote comprehensive rights of persons living with HIV (PLHIV) and utilize theavailable redress mechanism.4.0 SUMMARY OF APPROACHThe clients were received by a KELIN staff who took down their personal details andthereafter directed them to a specific pro-­‐‐bono advocate to listen to their case and provide thenecessary legal advice.During the clinic a total of 14 clients were attended to. 8 were female while 6 were male. Mostof the clients attended to have an average income of Kshs. 8,000 per month.A large number of the cases reported were on land and property ownership, custody andmaintenance, discrimination and succession.The following is a breakdown on the cases. The clients have been given reference numbers toconceal their identities.5.0 TABLE OF CASESREF NOLEGALADVICEFOLLOW UPISSUEGIVEN1 KELIN/LAN/001/2013 Revocation ofa grant ofletters ofadministrationas it wasissued withouther consentand theadministratordid notClient was given abrief on how torepresent herself incourt.The Client has beencontacted and helped todraft supplementaryaffidavit and a processserver contracted to doservice. Matter came up on3 rd June, 2013 for hearing ofthe application onrevocation of summons torevoke the grant at the High

Legal Aid Nairobi Report6disclose to thecourt all thedependants ofthe deceasedCourt in Kakamega onwhich date the respondentrequested for time to put ina further affidavit. Matter tobe heard on 14 th October,2013.2 KELIN/LAN/002/2013 The clientpresented amedicalproblemwhich hasarisen due toher HIV status3 KELIN/LAN/003/2013 Custody ofchildrenThe father ofthe childrenhas denied thelady access toher children.4 KELIN/LAN/004/2013 Discriminationon the basis ofher HIV Statuswhich led toher dismissalfromemployment-­‐‐Seekingmaintenancefor herchildren fromher estrangedShe was advised tovisit a hospital fortreatmentClient advised toreport the matter tothe children’sdepartmentClient advised toreport the matter tothe childrendepartment.-­‐‐On terminationfrom employmentbased on HIV status,a case to be filedN/AThe client was referred tothe CRADLE for legalassistance.-­‐‐Case filed at the HIV andEquity tribunal to challengeher wrongful dismissalbased on her HIV status-­‐‐Client referred to CRADLEon the issue of maintenanceof children.

Legal Aid Nairobi Report7husband5 KELIN/LAN/005/2013 Custody andmaintenanceof the children6 KELIN/LAN/006/2013 Client came into find outwhat the lawon HIV is.Client advised as afirst step to reportthe matter to theChildrenDepartment.The client was takenthrough theprovisions of theConstitution and theHIV Prevention andControl Act 2006.Client referred to theCRADLE.N/A7 KELIN/LAN/007/2013 Land Dispute Client asked toassemble alldocuments relatingto the dispute andland in questionClient to be helped to file amatter in the Environmental& Land Court.8 KELIN/LAN/008/2013 Discriminationby familybased on hisHIV status i.e.uses ofderogatorylanguage,denial of basicneeds likefood.9 KELIN/LAN/009/2013 Medicalnegligence:she was givenexpired familyplanning pillsClient advised tovisit KELIN office towrite a statement; hewas taken throughthe provisions of thelaw.Client taken throughthe provisions of theconstitutionA case has been filed at theHIV & Equity tribunal.Matter to be filed togetherwith the sterilizationpetition KELIN intends tofile.

Legal Aid Nairobi Report8then later onat the samehospital thedoctorperformedtubal ligation/sterilization onher withouther informedconsent.10 KELIN/LAN/010/2013 MedicalNegligence: Adoctor at ahealthinstitutionperformedtubal ligation/sterilization onher withouther informedconsent.11 KELIN/LAN/011/2013 Assault onclient becauseof her HIVstatus.12 KELIN/LAN/012/2013 Custody andmaintenanceas the childwas takenfrom herClient taken throughthe provisions of theconstitutionClient taken throughthe provisions of thePenal Code.Client taken throughthe provisions of theChildren ActMatter to be filed togetherwith the sterilizationpetition KELIN intends tofile.Client advised to report thematter to the police forinvestigation and possibleprosecution and onceprosecuted, KELIN willwatch brief.Matter cannot beprosecuted on the issue ofcustody, as the ‘child’ inquestion is not a minor.

Legal Aid Nairobi Report9because of herHIV Status14 KELIN/LAN/013/2013 Road TrafficAccidentClient taken throughthe provisions of thelaw.The matter referred to Kituocha Sheria.6.0 METHODOLOGYEach client spoke to a pro bono lawyer who provided the requisite legal advice. KELINensured that a confidential atmosphere was created.KELIN undertook to do a follow up on each of the cases and either files them in court or therelevant tribunals. For the cases already filed, KELIN would assign pro bono advocates tolitigate on behalf of the clients.KELIN referred some of the cases that are not within her mandate to partner organizationslike FIDA (K), Kituo Cha Sheria, CRADLE (the Children’s foundation) and NALEAP.7.0 WAY FORWARDAt the end of the Legal Aid Clinics:1) KELIN, will go through the cases presented and documented by the pro bono advocatesand do follow ups, thereafter offer legal representation to the clients who need thesame.2) KELIN will refer some of the cases not within its mandate to partners.