Self representation is a constitutional right, not a workaround.

There is a quiet assumption that runs through Kenyan civil litigation, and it is that the litigant who appears without counsel has somehow lost a coin toss. They were unlucky, the assumption goes, or unable, or unwise. The full machinery of the legal profession was on offer to them, and they have elected, for reasons that must be sad ones, to do without it. The court will be patient with them. The court will explain things. The court will, in its kindness, treat them with the gentle condescension reserved for those who have wandered into a forum they do not properly belong in. This is the prevailing posture, and it is wrong about the Constitution.

Read Article 50(2)(g) of the Constitution of Kenya, 2010, slowly. Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly. Notice the structure of the sentence. The right is not the right to be represented. The right is the right to choose, and it is the choice that is constitutional. The choice runs in two directions. A litigant may choose to engage an advocate, and the State must inform them of that option promptly so that they can exercise it knowingly. Or they may choose to appear in person, which is the choice the framers of the Constitution placed first in their conception of how a fair hearing actually works. The State carries no constitutional duty to push them in either direction, only the duty to make sure whichever direction they take, the choice is theirs and the hearing is fair.

Now read Section 20 of the Small Claims Court Act, No. 2 of 2016,, Number 2 of 2016. A party to proceedings before the Court may appear in person or be represented by an advocate. Notice the order of the verbs. Personal appearance is named first. Representation is named second. The legislature did not write that section by accident, and it did not write it as a concession to the indigent. It wrote it as a statement about the nature of the forum it was creating. The Small Claims Court was always meant to be a place where ordinary Kenyans could vindicate their rights without the apparatus of representation, in language they understand, on a timeline they can absorb, with their own evidence in their own words. Self representation is the constitutional default in that forum. Engagement of counsel is the optional add on. The hierarchy is the opposite of what most Kenyans have been taught to believe.

Where the assumption came from

The assumption that an unrepresented litigant is a litigant in trouble is not stupid, and it is not malicious. It is the residue of a particular history. For most of the twentieth century, Kenyan civil procedure was modelled on English procedure of an earlier vintage, in which the formality of pleadings, the strictness of the rules of evidence, and the technical character of advocacy made personal appearance genuinely difficult for someone without legal training. In that older system, the unrepresented litigant was often disadvantaged in concrete and sometimes irreversible ways. Pleadings could be struck out for non compliance with form. Evidence could be excluded for failure to lay a foundation. Hearings could turn on procedural objections that the litigant did not see coming. The legal profession's role as a translator between the citizen and the system was real, and the absence of that translator was a real loss.

That older system is no longer the system we have. The Constitution of 2010 changed it deliberately. Article 159(2)(d) directs that justice shall be administered without undue regard to procedural technicalities. Section 1A of the Civil Procedure Act, Cap 21, was amended in 2009 to embed an overriding objective requiring the courts to support the just, expeditious, proportionate and affordable resolution of civil disputes. The Small Claims Court Act, 2016, disapplies the strict rules of evidence at Section 32 and gives the Adjudicator broad discretion to receive any material that helps reach a just result. The procedural barriers that once made self representation hazardous have been substantially dismantled, and the constitutional mandate to keep dismantling them is explicit. The forum the unrepresented litigant walks into in 2026 is not the forum their grandmother would have walked into in 1976. The assumption has not caught up.

What the Section 31 reservation actually reserves

The countervailing argument, made most strongly by some sections of the legal profession, runs through Section 31 of the Advocates Act, Cap 16. That section provides that no unqualified person shall act as an advocate or hold himself out as one, and it sets out the offences associated with practising law for reward without admission to the Roll. The reservation is constitutionally legitimate, in my view, and it serves a genuine public interest. A profession that holds the privilege of acting on behalf of others before the courts owes that privilege to the discipline that comes with regulation, training, and accountability to a professional body. Section 31 of the Advocates Act protects the public from people who would purport to act for them without those credentials, and it protects the courts from a degraded standard of advocacy.

What Section 31 of the Advocates Act does not do, and was never intended to do, is reach into the relationship between a citizen and their own legal system. The reservation operates against persons who would act as advocates for others. It does not operate against a citizen who appears in their own matter, on their own behalf, in a forum where the law specifically permits them to do so. Read carefully, the reservation is narrower than it is often described. It reserves the privilege of representing other people. It does not reserve the privilege of understanding the law, exercising the law, or vindicating one's own rights under the law. None of those things has ever required admission to the Roll, in Kenya or anywhere else with a functioning common law tradition.

The deeper logic

Step back from the textual argument and consider the underlying logic. The law is, by the founding premise of every constitutional democracy, the property of the people who are governed by it. The Constitution belongs to every Kenyan equally. The statutes are passed by representatives the people elect. The judgments of the superior courts are public records. None of that material is, in any meaningful sense, the proprietary domain of the legal profession. The profession has expertise in handling it, and that expertise commands a price in the market for litigation services, and the price is fair where the matter genuinely warrants it. But the underlying material, the rights and the duties and the procedures, is owned by the citizens whose lives it governs.

If that is true, then the framing in which an unrepresented litigant is a person attempting something irregular gets the relationship backwards. They are not attempting something irregular. They are exercising something natural. They are engaging directly with the legal system that was built to govern them, in the forum that was constitutionally designed for them, asserting rights that belong to them by birth. The advocate's role, where it arises, is to help them do that more effectively. The advocate's role is not to be the bearer of legal knowledge to which they would otherwise have no access. That bearer was the printing press in the eighteenth century, the public library in the twentieth, and the smartphone in the twenty first. The technology of access has changed. The advocate's value has not disappeared, but it has shifted upward. It now lies in the matters that genuinely require professional judgment, not in the basic literacy that ordinary Kenyans should never have had to pay an intermediary to acquire in the first place.

What this means in practice

Practically, taking the constitutional text seriously has consequences for how courts treat unrepresented litigants, how the profession describes its own role, and how access to justice infrastructure is built.

For the courts, it means a posture of fairness rather than condescension. The unrepresented litigant is exercising a constitutional right of choice. They are not a nuisance, and they are not a problem. They are the audience the Small Claims Court Act, 2016, was specifically drafted for. The court owes them the procedural accommodation Article 159(2)(d) requires, but it does not owe them, and should not extend to them, the suggestion that their case is somehow lesser because counsel is not standing beside them. The Adjudicators of the Small Claims Court have, in my observation, internalised this posture better than most judicial officers in Kenya. The High Court is catching up. The Magistrate's Courts are uneven.

For the profession, it means a more honest description of the value advocates actually add. Advocates are not the gatekeepers of legal knowledge. They are the professionals who deploy that knowledge in matters that warrant their professional engagement. The two propositions are different, and the second is the one the Section 31 Advocates Act reservation actually defends. A profession secure in the second proposition does not need the first, and a profession honest about it would be the first to encourage citizens to engage with the law on their own where the matter does not require the profession's deeper apparatus. The good advocates I know already do this. They send their friends to the Small Claims Court. They explain when an advocate is needed and when one is not. They treat that conversation as part of the public service their position carries. The profession as a whole would do well to follow them.

For access to justice infrastructure, including platforms like Sheria Smart, the constitutional posture is the licence to build. The Constitution makes legal information a public entitlement. The Small Claims Court Act makes the forum accessible. The Civil Procedure Act prioritises proportionate dispute resolution. None of that work is rendered unlawful, or even questionable, by the Section 31 Advocates Act reservation, provided the platforms are careful to remain within the boundaries of legal information rather than legal advice, to refer users to qualified counsel where matters warrant it, and to respect the reserved space of the profession in the matters where the profession's apparatus is required. The line is real. The line has been drawn carefully. And the space on the citizen's side of the line is much larger than the legal profession has historically pretended.

The closing point

Article 50(2)(g) is one of the most important provisions in the Bill of Rights, and it is one of the least understood. It does not say the State must hand every citizen an advocate. It does not say every legal matter requires representation. It says the citizen has the right to choose. The choice is what the Constitution protects. The choice is what makes the hearing fair. And the choice, in many of the matters ordinary Kenyans bring to the legal system, is properly exercised in favour of personal appearance, in the citizen's own voice, on the citizen's own behalf, in the forum the legislature has built for exactly that purpose.

That is not a workaround. That is the Constitution, working as designed.