ATP- 100

CONSTITUTIONAL LITIGATION

Caroline Oduor
8th November 2022
Learning Objectives

Learners to understand:

 Determining & Framing constitutional issue for

litigation
 Locus Standi
 Jurisdiction in Constitutional Litigation
 Remedies (JR procedure vs. enforcement of
constitutional rights)
 Constitutional Practice Rules
Determining Constitutional issue for
litigation

• Ordinary civil suit vs. a constitutional petition

• Principle of Constitutional avoidance – “a court will not
determine a constitutional issue when the matter can
be determined on other basis”
• Communication Commission of Kenya & 5 Others vs
Royal Media Services Limited & 5 Others (2014) eKLR,
Supreme Court stated as follows :-
“The appellants in this case are seeking to invoke
the “principle of avoidance”, also known as
“constitutional avoidance”. The principle of
avoidance entails that a Court will not determine a
constitutional issue, when a matter may properly
be decided on another basis”.
Determining Constitutional issue for
litigation
In Uhuru Muigai Kenyatta vs Nairobi Star (2013)eKLR)
petitioner alleged that the respondent had published
statements that defamed his character. A preliminary
objection was raised, inter alia, that the remedy of the
petitioner lay in the tort of defamation which could be
canvassed in an ordinary civil suit. The court upheld the
objection and dismissed the petition. Lenaola J (as he
then was) stated as follows :-

“Turning now to the second issue, it is obvious that

principally, the Petitioner's complaint is that he was
defamed by the publication whose facts are summarized
above. If so, then the remedy for his pain, if at all, lies in
Civil Law and not a reference under the Constitution”.
Determining Constitutional issue for
litigation
Bandari Investment Company Limited v National
Police Service & others [2021] eKLR

“In Wahid Munwar Khan vs. The State AIR (1956)

Hyd.22). The judge went on to add that: “Courts
will not normally consider a constitutional question
unless the existence of a remedy depends on it; if
a remedy is available to an applicant under some
other legislative provision or on some other basis,
whether legal or factual, a Court will usually
decline to determine whether there has been in
addition a breach of the Declaration of Rights.”
Determining constitutional issue for
litigation
In South Africa, in S v. Mhlungu, 1995 (3) SA 867
(CC) the Constitutional Court, Kentridge AJ,
articulated the principle of avoidance in his
minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that
where it is possible to decide any case, civil or
criminal, without reaching a constitutional issue,
that is the course which should be followed.”
Determining constitutional issue for
litigation

Similarly the U.S. Supreme Court has

held that it would not decide a
constitutional question which was
properly before it, if there was also
some other basis upon which the case
could have been disposed of
(Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 347 (1936)).
Framing the constitutional issue for
litigation
In the case of Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021]
eKLR involving a dispute on enforcement of a sale agreement, Judge JM
Mutungi stated as follows:

“It is indisputable that a constitutional petition to be

sustainable as such must at a minimum satisfy a basic
threshold. It must with some reasonable degree of
precision identify the constitutional provisions that
are alleged to have been violated or threatened to
be violated and the manner of the violation and/or
threatened violation. I do not suppose it is enough to
merely cite constitutional provisions. There has to be
some particulars of the alleged infringements to
enable the respondents to be able to respond to
and/or answer to the allegations or complaints”.
Locus Standi

• Article 22 of the Constitution

 Every person has the right to institute court
proceedings claiming that a right or fundamental
freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened;
 a person acting on behalf of another person who
cannot act in their own name;
 a person acting as a member of, or in the interest
of, a group or class of persons;
 a person acting in the public interest; or
 an association acting in the interest of one or more
of its members.
Locus Standi

• Article 258 of the Constitution

 Every person has the right to institute court
proceedings, claiming that this Constitution has
been contravened, or is threatened with
contravention.
 a person acting on behalf of another person
who cannot act in their own name;
 a person acting as a member of, or in the
interest of, a group or class of persons
 a person acting in the public interest; or
 an association acting in the interest of one or
more of its members.
Jurisdiction in Constitutional Litigation

• Supreme Court
• Court of Appeal
• High Court
• Environment and Land
court/Employment and Labour
relation courts
• Subordinate courts
Supreme Court

Article 163 (3) of the Constitution;

“The Supreme Court shall have—
(a) exclusive original jurisdiction to hear and
determine disputes relating to the elections to
the office of President arising under Article 140;
and (b) subject to clauses (4) and (5), appellate
jurisdiction to hear and determine appeals
from—
(i) the Court of Appeal; and
(ii) any other court or tribunal as prescribed by
national legislation.
Supreme Court

Article 163 (4)

Appeals shall lie from the Court of
Appeal to the Supreme Court— (a) as of
right in any case involving the
interpretation or application of this
Constitution;
Court of Appeal

Article 164 (3) of the Constitution

The Court of Appeal has jurisdiction to hear appeals
from—
(a) the High Court; and
(b) any other court or tribunal as prescribed by an
Act of Parliament.
• Appeals raising constitutional issues
High Court

• Article 23 (1)
“The High Court has jurisdiction, in accordance
with Article 165, to hear and determine
applications for redress of a denial, violation or
infringement of, or threat to, a right or
fundamental freedom in the Bill of Rights”.
• Article 165 (3) (b)
“jurisdiction to determine the question whether
a right or fundamental freedom in the Bill of
Rights has been denied, violated, infringed or
threatened”;
High Court

Article 165 (3) (d)

“…jurisdiction to hear any question respecting the interpretation
of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in
contravention of this Constitution;
(ii) the question whether anything said to be done under the
authority of this Constitution or of any law is inconsistent with, or
in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs
in respect of county governments and any matter relating to
the constitutional relationship between the levels of
government; and
(iv) a question relating to conflict of laws under Article 191; “
Environment and Land / Employment and
labour relations court
In International Centre for Insects Physiology
and Ecology (ICIPE) v Nancy McNally [2018]
eKLR, the Court of Appeal stated;
“[27] There cannot be any argument that the ELRC is
clothed with jurisdiction to hear and determine such
constitutional issues as and when they arise from
employment and labour relations. Any doubts on that
jurisdiction were settled in the case of United States
International University (USIU) vs Attorney General
[2012] eKLR which was upheld by this Court in
Daniel N. Mugendi vs Kenyatta University & 3
Others [2013] eKLR.
Environment and Land / Employment and labour
relations court

In the case of Judicial Service Commission v Gladys Boss

Shollei [2014]eKLR, the Court of Appeal observed that;

[41] Under Article 162(2) (a), the Constitution has provided

for special Courts with the “status” of the High Court to
determine employment and labour relations disputes. The
fact that the Industrial Court has been given the “status”
of the High Court enhances the power and discretion of
the Court in granting relief…. the general power provided
to the Industrial Court under Section 12(3) (viii) of the
Industrial Court Act to grant relief as may be appropriate,
read together with Article 23(3), empowers the Industrial
Court to grant the kind of reliefs that the respondent
sought in her petition.”
Environment and Land / Employment and labour
relations court

In Daniel N. Mugendi v Kenyatta University & 3

others {2013} eKLR, the court stated thus:-
"In the same token we venture to put forth the
position that as we have concluded that the
Industrial Court can determine industrial and
labour relations matters alongside claims of
fundamental rights ancillary and incident to those
matters, the same should go for the Environment &
Land Court, when dealing with disputes involving
environment and land with any claims of breaches
of fundamental rights associated with the two
subjects.” (emphasis added).
Employment and Labour relations court

Employment and Labour Relations Court (Procedure)

Rules, 2016 - Rule 7

• (1)A party who wishes to institute a petition shall do so

in accordance with the Constitution of Kenya
(Protection of Rights and Fundamental Freedoms and
Enforcement of the Constitution) Practice and
Procedure Rules, 2012.

• (3) Notwithstanding anything contained in this Rule, a

party is at liberty to seek the enforcement of any
constitutional rights and freedoms or any constitutional
provision in a statement of claim or other suit filed
before the Court
Subordinate Courts

Article 23(2) of the Constitution

“Parliament shall enact legislation to give original
jurisdiction in appropriate cases to subordinate courts
to hear and determine applications for redress of a
denial, violation or infringement of, or threat to, a
right or fundamental freedom in the Bill of Rights”.
Subordinate Courts

In the Communication Commission of Kenya & 5 Others v Royal Media

Services Limited & 5 Others Petition [2014] eKLR the Supreme Court
state as follows:
“341. Although the 1st, 2nd and 3rd respondents have argued that a
party cannot reasonably be expected to raise constitutional claims
before the Public Procurement Administrative Review Tribunal, and
therefore a petition in the High Court regarding their constitutional
rights was in order, we find nothing to suggest that the matters raised in
the High Court could not have accompanied the fundamentals of the
grievance the very item before the Tribunal. The Public Procurement
and Disposal Act, indeed, does not preclude parties from raising
constitutional issues touching on their complaint. We note, besides,
that administrative bodies, such as the Tribunal in question, are bound
by the Constitution.” [Emphasis ours]”
Remedies in Constitutional Litigation

• Article 23 (3)
“In any proceedings brought under Article 22, a
court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
d) a declaration of invalidity of any law that
denies, violates, infringes, or threatens a right or
fundamental freedom in the Bill of Rights and is not
justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.
Remedies in Constitutional Litigation

In Communications Commission of Kenya & 5 Others

v. Royal Media Services Limited & 5 Others; The
Supreme Court stated thus:
“… a close examination of these provisions (Article 23
(3) and 165 (3) (d) of the Constitution) shows that the
Constitution requires the Court to go even further
than the U.S Supreme Court did in the Marbury , and
that Article 23 (3) grants the High Court powers to
grant appropriate relief “ including” meaning that
this is not an exhaustive list.”
Remedies in Constitutional Litigation

Supreme Court Petition No. 3 of 2018. Mitu - Bell Welfare Society Vs.
The Kenya Airports Authority & 2 Others.
• Structural Interdicts as a form of relief in cases of
alleged human rights violations.
• Strathmore Law review, June 2019
“A structural interdict is a supervisory order
through which a court controls compliance with
its order. It targets priority-setting in prompting
the government to observe its constitutional
obligations by refraining from the unreasonable
neglectof socio-economic rights”.
Remedies in Constitutional Litigation

Mitu – Bell High Court Orders:

“(a) That the respondents do provide, by way of affidavit, within
60 days of today, the current state of policies and programmes
on provision of shelter and access to housing for the
marginalized groups such as residents of informal and slum
settlements.
(b) That the respondents do furnish copies of such policies and
programmes to the petitioners, other relevant State Agencies,
Pamoja Trust and such other civil society organizations ….as
would assist in arriving at an appropriate resolution to the
petitioners’ grievances, to analyse and comment on the
policies and programmes provided by the respondents.”
Remedies in Constitutional Litigation

• High Court Mitu – Bell decision overturned by the Court of

Appeal on the following grounds;
“(a) ….
(b) Subject to limited exceptions, delivery of Judgment renders
a trial Court functus-officio. The trial Court erred in law in
reserving for itself outstanding issues to be considered after
Judgment. The Court further erred in allowing affidavits and or
pleadings to filed after delivery of Judgment.
(c) Whereas a Court has jurisdictional competence to issue
interim orders, the trial Court failed to appreciate that the
concept of partial or interim Judgment is not part of the Kenyan
legal system. …the trial Court erred in delivering a Judgment
that was not a final Judgment that determined the rights and
liability of the parties.
Remedies in Constitutional Litigation

• Supreme Court Mitubell Case

“…we hasten to add that, interim reliefs, structural interdicts,

supervisory orders or any other orders that may be issued by the
Courts, have to be specific, appropriate, clear, effective, and
directed at the parties to the suit or any other State Agency
vested with a Constitutional or statutory mandate to enforce the
order. Most importantly, the Court in issuing such orders, must be
realistic, and avoid the temptation of judicial overreach,
especially in matters policy. The orders should not be couched
in general terms, nor should they be addressed to third parties
who have no Constitutional or statutory mandate to enforce
them. Where necessary, a court of law may indicate that the
orders it is issuing, are interim in nature, and that the final
judgment shall await the crystallization of certain actions”.
Remedies in Constitutional Litigation

Cherese Thakur on structural interdicts| ;

• Its purpose is neither deterrence nor compensation. Rather, it
is intended to eliminate systemic violations existing especially
in institutional or organisational settings;
• Its focus is to adjust future behaviour rather than compensate
for past wrongs;
• It is deliberately fashioned rather than logically deduced
from the nature of the legal harm suffered; and
• Its prominent feature is the creation of a complex ongoing
regime of performance, which is made possible by the
court’s retention of jurisdiction and sometimes by its active
participation in the implementation of the order.
Remedies in Constitutional Litigation

In Masai Mara (SOPA) Limited v Narok County

Government, Nairobi High Court Petition Number 336 of
2015, court stated that:-

“…Order 53 of the Civil Procedure Rules do not

consequently apply to Constitutional Petitions where the
court is expected to exercise a special jurisdiction which
emanates from the Constitution and not a statute. I
consequently decline to accede to the Respondent’s
contention that the Petitioner ought to be denied the
reliefs sought on the basis that the Petition was filed more
than six months after the action complained of took
place.”
Constitutional Practice Rules

• Article 22 (3)
The Chief Justice shall make rules providing for the court
proceedings referred to in this Article, which shall satisfy the
criteria that—

(a) the rights of standing provided for in clause (2) are fully
facilitated;

(b) formalities relating to the proceedings, including

commencement of the proceedings, are kept to the minimum,
and in particular that the court shall, if necessary, entertain
proceedings on the basis of informal documentation;

(c) …
Constitutional Practice Rules

• Constitution of Kenya (Protection of Rights and Fundamental

Freedoms) Practice and Procedure Rules, 2013 - Mutunga Rules
• “petitioner” means any person who institutes
proceedings or cross petitions under these
rules and for the purposes of a cross petition
includes a cross petitioner
• “respondent” means a person who is alleged
to have denied, violated or infringed, or
threatened to deny, violate or infringe a right
or fundamental freedom;
Constitutional Practice Rules

Rule 10 - Form of petition

(1) An application under rule 4 shall be made by way of a petition as set out in Form
A in the Schedule with such alterations as may be necessary.

(2) The petition shall disclose the following—

(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in
whose name the petitioner has instituted the suit; or in a public interest case to the
public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of
the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner;
and
(g) the relief sought by the petitioner.
Constitutional Practice Rules

Rule 10
(3) Subject to rules 9 and 10, the Court may
accept an oral application, a letter or any
other informal documentation which discloses
denial, violation, infringement or threat to a
right or fundamental freedom.
(4) An oral application entertained under sub
rule (3) shall be reduced into writing by the
Court.
Constitutional Practice Rules

Rule 11
Documents to be annexed to affidavit or petition
(1) The petition filed under these rules may be
supported by an affidavit.
(2) If a party wishes to rely on any document, the
document shall be annexed to the supporting
affidavit or the petition where there is no supporting
affidavit.
Constitutional Practice Rules

Rule 13 - Petition filed under certificate

of urgency
A petition filed under certificate of
urgency may be placed before a
Judge for appropriate orders or
directions.
Constitutional Practice Rules

Rule 14 Service of petition

(1) The petitioner shall serve the respondent with
the petition, documents and relevant annexures
within 15 days of filing or such time as the court
may direct.
(2) Proof of service shall be the affidavit of
service set out in Form B in the Schedule with
such variations as may be necessary.
Constitutional Practice Rules

Rule 15 Reply to a petition

(1) The Attorney-General or any other State
organ shall within fourteen days of service of a
petition respond by way of a replying affidavit.
(2) (a) A respondent not in the category of sub-
rule (1) shall within seven days file a
memorandum of appearance and either a—
(i) replying affidavit; or
(ii) statement setting out the grounds relied
upon to oppose the petition
Constitutional Practice Rules

Rule 18 - Amendment of pleadings

A party that wishes to amend its pleadings at any
stage of the proceedings may do so with the leave
of the Court.
Rule 19 - Formal applications
A formal application under these rules shall be by
Notice of Motion set out in Form D in the Schedule
and may be supported by an affidavit.
Constitutional Practice Rules

Rule 20 - Hearing of the petition

(1) The hearing of the petition shall, unless the
Court otherwise directs, be by way of—
(a) affidavits;
(b) written submissions; or
(c) oral evidence.
Questions ? Clarifications?
Comments?