Epistolary jurisdiction as a means of enhancing access to justice in Kenya

Abstract

The right of access to justice is a fundamental right provided for under any Bill of Rights. It establishes the right of any individual to move to a court or any judicial tribunal in order to enforce or protect rights and freedoms from violation or threat of violation. The lack of enforcement of this right can lead to a myriad of violations of other civil, political, social and economic rights since it is the basic right through which other rights are enforced. Kenya has endeavored to guarantee the right of access to justice by ratifying various treaties which emphasize on the guarantee of access to justice and equal protection of the law. Moreover, it has included in its Constitution guarantees of the right under the Bill of Rights. However, Kenya still faces the heavy burden of enforcing this right to everyone regardless of their status. Poverty and other social inequalities complemented by legal, institutional and structural deficiencies of the judicial process has led to the minimal impact of Kenya's efforts to guarantee access to justice to everyone. In light of this, this dissertation seeks to discuss poverty as the primary limiter of access to justice. In further discussion of the influence of poverty on access to justice, this dissertation shall elaborate on various legal, institutional and structural problems, including: the lack of legal identity, rigid legal formalism and corruption; facing the Judiciary and the judicial process in its entirety, which further deter poor people from seeking legal redress for their . Thereafter, this dissertation shall discuss Epistolary jurisdiction as a viable procedural mechanism of circumventing the aforementioned challenges. Furthermore, through a comparative study of application of Epistolary jurisdiction in India, this dissertation shall provide viable recommendations on a legislative framework to be applied in the application and implementation of Epistolary jurisdiction in Kenya.