Group 12 Admin Law

THE UNIVERSITY OF NAIROBI

SCHOOL OF LAW

2013

ADMINSTRATIVE LAW II ASSIGNMENT

Group 12, Second Year, Module I

GPR 209

THE GICHERU RULES AND THEIR APPLICABILITY

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GROUP MEMBERS

1. MAINA ANTHONY KINYUA G34/2358/2011 ……………………………

2. NGARUIYA OLIVER MAKIMII G34/2801/2011 …………………………….

3. OLOO ANNE AKINYI G34/2823/2011 …………………………….

4. CHEROP HILLARY G34/2847/2011 …………………………….

5. KUNG’U ESTHER WAIRIMU G34/2834/2011 ……………………………..

6. BWENGI K ANGELA G34/2835/2011 …………………………….

7. KYUMWA J MUSENYA G34/2840/2011 …………………………….

8. ODALI WINFRED MMBONGA G34/2846/2011 ……………………………

9. OBOBO VIVIANNE A G34/2700/2010 ……………………………..

10. VUNDI MWENDE G34/2849/2011 ……………………………..

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INTRODUCTION

In the awakening of constitutionalism, rule of law and the urge to protect fundamental human

rights and freedoms, different jurisprudential epochs have been manifested hereunder referred to

as Eras. There have been four eras of rules of practice and procedure in respect to the litigation

of constitutional matters. These are: No rules era, Chunga rules era, Gicheru rules era and

recently, the Mutunga rules era.

In this paper, we seek to intricate the following:

1. The evolution of the above mentioned court rules of practice and procedure

2. The Gicheru Rules: The rules, it’s impact and applicability

3. Relevance of Gicheru Rules today

4. Judicial Review vis a vis The Gicheru and Mutunga Rules

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1. THE EVOLUTION OF THE COURT RULES OF PRACTICE AND

PROCEDURE

THE NO-RULES ERA

Before the formulation of Gicheru rules, the law was quite scanty on the procedure for Judicial

Review1. The case of Maina Mbacha v Attorney General

2 highlights this. Here, the High Court

distanced itself from its duty to enforce the Bill of Rights. The court ruled “inoperative” Section

84 of the Constitution (repealed) which granted the court original jurisdiction to enforce the

Fundamental Rights and Freedoms of citizens.

Further, in Gibson Kamau Kuria v The Attorney General3, the applicant who was a critic lawyer

had his passport seized by the government requested for the return of the same because he

wanted to travel outside the country. The request was denied. He made an application under

Section 84(1) of the Constitution saying that the government’s action was contrary to Section 81

of the Constitution, which guaranteed every individual the right to move freely and, therefore,

his right to move freely in and out of Kenya had been infringed upon.

The High Court in dismissing his application stated that it lacked the jurisdiction to hear the

matter since the Chief Justice had not made the Rules of practice and procedure as envisaged by

Section 84(6) of the Constitution. The court held:

“Had there been Rules made under Section 84(6) on which advocates for the applicant

conceived reliance, that might well have been to the advantage of the request for that which is

termed Constitutional court, the jurisdiction of Section 84 was subject to subsection (6) and since

there were no operative Rules of Practice and Procedure of the High Court, such as in the instant

case, there was a void in the search for certainty which is an all important aspect of jurisdiction.”

1 The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation in Kenya. Ongoya Z. Elisha, Kenya Law Reports, 2008 2 High Court Misc. Application No. 356 of 1989, Unreported 3 High Court Miscellaneous Case No. 550 of 1988

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THE CHUNGA RULES ERA

Justice Bernard Chunga, C.J (as he then was) promulgated The Constitution of Kenya

[Protection of Fundamental Rights and Freedoms of the Individual] Practice and Procedure Rules

20014 the rules were made pursuant to Section 84(6) of the Constitution of Kenya. They were

popularly referred to as “the Chunga Rules”. They envisaged and made provision for three

circumstances under which one would move the High Court under Section 84 of the Constitution

i.e.

a) Where an accused person in a criminal case or party to a civil suit in a subordinate court

alleges contravention of his fundamental rights or freedoms under Sections 70 to 83

(inclusive) of the Constitution in relation to himself;

b) Where contravention of fundamental rights and freedoms is alleged otherwise than in the

course of proceedings in a subordinate court or High Court; and,

c) Where violation of fundamental rights and freedoms is alleged in any proceedings

pending in the High Court

The rules provided for an automatic stay of proceedings in subordinate courts pending the

determination of a constitutional reference to the High Court. This led to abuses of the court

process as accused persons took advantage of the automatic stay to permanently delay the

proceedings. This problem was solved by rule 29 of the Gicheru rules.5

4 Legal Notice No. 133 of 2001. 5 The High Court may, upon informal application immediately following the judgment or ruling, grant a stay for 14 days ending appeal.

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2. THE GICHERU RULES: THE RULES, IT’S IMPACT AND

APPLICABILITY

Gicheru Rules, officially cited as The Constitution of Kenya (Supervisory Jurisdiction and

Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice

Rules, 2006 were made in exercise of powers conferred on the Chief Justice to formulate rules

pertaining to practices and procedures of the High Court in relation to its jurisdiction and

powers6 including rules with respect to the time within which applications may be brought and

references made to the Court.7 These rules revoked Chunga rules

8. Any matter that was pending

under the Rules 2001 was to be continued under the Rules 2006 and any party affected by the

Rules 2001 was to be at liberty to apply to the High Court.

The Constitution vests the High Court with four types of jurisdiction, namely:

1. Supervisory jurisdiction

2. Interpretative / Reference jurisdiction.

3. Enforcement jurisdiction in respect of fundamental rights and freedoms

4. The Unlimited Original Jurisdiction of the High Court

The Gicheru rules deal with the first three, enumerated as:

I. Rules to invoke the Court’s Supervisory Jurisdiction

II. Rules to invoke the Court’s Interpretative Jurisdiction

III. Rules to invoke the Court’s Enforcement Jurisdiction

6 S 65(3) of the Repealed Constitution 7 S 84(6) of the Repealed Constitution 8 Rule 36

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I. RULES TO INVOKE THE COURT’S SUPERVISORY JURISDICTION

The Court may move on its own motion9 to invoke this jurisdiction or may be approached

in the manner of an Originating Notice of Motion10

as set out in Form A11

of the Rules.

The Originating Notice of Motion should briefly state the basis for the application and

should be supported with an affidavit.12

The Registrar shall then, within 7 days from the date of filing, place it before a judge for

directions13

.

II. RULES TO INVOKE THE COURT’S INTERPRETATIVE JURISDICTION

This jurisdiction deals with questions of law arising in subordinate courts in either of the

following circumstances;

1. The subordinate court may move to the High Court, on its own motion, through

Form B, if it is of the opinion that the question involves a substantial matter of

law.14

2. Where the question is alleged by a party to the proceedings, he or she shall

request the Presiding Officer of that Court to refer to the High Court using Form

C.15

The subordinate court shall then briefly state the issues and its opinion and refer the

question to the High Court within 14 days.16

The Registrar shall place the reference, within 7 days, before the Chief Justice who shall

then constitute a bench composed of an uneven number of judges not being less than 3.17

However, where there is an interlocutory18

matter, it shall first be placed before a judge

for determination.

III. RULES TO INVOKE THE COURT’S ENFORCEMENT JURISDICTION

An application shall be made to the High Court where there is contravention of the

fundamental rights and freedoms set out in Sections 70 – 83 of the Repealed

Constitution.19

9 Rule 6 10 Rule 2 11 Rule 3 12 Rule 4 13 Rule 5 14 Rule 7 15 Rule 8 16 Rule 9 17 Rule 10; S. 67(3) of the Repealed Constitution 18 Of or pertaining to legal action that is temporary or provisional. It is expressed during a legal action that awaits final decision. 19 Rule 11

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It shall be commenced by way of a petition, as set out in Form D, and supported by an

affidavit. Moreover, a party wishing to rely on any document shall annex it to the

affidavit.20

The petition shall then be served to:21

i. The Attorney General – in criminal cases, or

ii. The Respondent – in civil cases.

It shall be responded to, within 14 days of service, by way of a replying affidavit and if

any document was referred upon, it shall be annexed to the replying affidavit.22

A petitioner can also file a further affidavit within 7 days of service of the replying

affidavit.23

The Registrar shall then place the matter before a judge for fixing of a hearing date and

giving of directions within 7 days from the date of service of response or the further

affidavit, whichever is the later. The judge, in giving directions, may require the parties to

make submissions.24

Moreover, a petitioner may set down the matter for hearing and determination where the

Attorney General or the respondent, as the case may be, fails to respond within the 14

days set out above.25

GENERAL RULES

Regardless of the above rules, a judge may hear and determine an application for conservatory or

interim orders commenced in the manner of Chamber Summons. These applications may be

heard ex parte. However, persons affected by proceedings commenced in this manner may apply

for the setting aside of the decisions arrived at.26

The constitutional issue may arise either in the High Court or in subordinate courts. In the High

Court such an issue shall be treated as a preliminary point and shall be heard and determined.27

20 Rules 12, 13, 14 21 Rule 15 22 Rule 16 23 Rule 17 24 Rule 18 25 Rule 19 26 Rules 20, 21, 22 27 Rule 23

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A constitutional issue arising in the subordinate courts is dealt with in two ways, namely;

1. Where it arises in proceedings before a subordinate court whose Presiding Officer is of

the opinion that it is neither frivolous nor vexatious, he refers it to the High Court in

Form E.28

2. Where it is alleged by a party to the proceedings, he or she shall informally apply to the

Presiding Officer during pendency of proceedings for reference to be made to the High

Court to determine the alleged violation. If the Presiding Officer sees merit in the matter,

but does not think it frivolous or vexatious, he shall frame the question to the High Court

under Form F.29

The subordinate court shall then refer to the High Court within 21 days of framing of the

question or as soon as possible.30

The Registrar shall place the matter before a judge, within 7 days of the receipt of reference, for

fixing of a hearing date.31

At the hearing of a reference, only questions set out in Form F shall be determined.32

If a party

intends to rely on authorities, such as cases or quotes from a book, he shall lodge with the court

and serve copies of the same 2 days before the hearing.33

The High Court may, on application by a party, order staying of all further proceedings before

the subordinate court ending the hearing and determination of the reference.34

Hearing of all applications and references to the High Court shall be given priority over all other

cases and shall be heard and determined expeditiously.35

The High Court may, upon informal application immediately following the judgment or ruling,

grant a stay for 14 days ending appeal.36

Appeals to the Court of Appeal37

shall be governed by

Court of Appeal Rules.38

28 Rule 24 29 Rules 25, 26 30 Rule 27 31 Rule 28 32 Rule 30 33 Rule 31 34 Rule 29 35 Rule 32 36 Rule 33 37 Under S 84(7) 38 Rule 34

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IMPACT AND APPLICABILTIY OF THE GICHERU RULES

The Gicheru Rules were not well received. They were immediately met with resistance. For

instance, the Law Society of Kenya moved to court to oppose the Gazette Notice in the High

Court of Nairobi.39

Led by its chairman, Mr. Tom Ojienda, they challenged the Hon. Evans

Gicheru’s failure to follow the law in making the rules. They appeared before Justice Nyamu

seeking, inter alia, that the petition be certified as urgent and for it not to be referred to the Chief

Justice because he was the respondent. The petition was certified as urgent but the matter was

nonetheless referred to the Chief Justice as the court found that he had tremendous respect for the

rule of law. The legality, proportionality, rationality and validity of the Gazette Notice were

under question. The rules were seen by the applicants as curtailing the jurisdiction of the High

Court. This was because the rules vested jurisdiction on the High Court of Nairobi only and the

leave of the Chief Justice had to be sought to have any court hearings outside Nairobi. However,

there were no clear guidelines on how this was going to be done.

It is interesting to note that C.J. Evans Gicheru was criticized as purporting to make rules of

practice and procedure pursuant to section 67 of the constitution 1963. It therefore appeared that

the rules made under section 67 (Rule 7-10 of the Gicheru Rules) were made in excess of the

Chief Justice’s rule making power and an argument could be sustained that they were null and

void for having been made ultra vires the power of the maker.

Despite the initial opposition to the Gicheru rules, they have been applied in a number of cases.

These cases are discussed below:

Beach Bay Holdings Ltd v Ratim Relators Ltd & 2 others (2013) e-KLR

This was petition 11 of 2011 in the High Court at Malindi. The petitioner was seeking for several

declaratory orders against the respondents, the main one being that the acts carried out by the

respondents in the preparation and production of the letter of allotment reference number

5529/102 dated 24th

December, 1991 be declared void and that the letter of allotment and any

title subsequently issued by the court be cancelled.

The 1st respondent filed a notice of preliminary objection. This is what was before the court.

It raised two issues for determination:

a) The suit is a land case and should be filed in the Land and Environmental Division.

b) The suit is defective since it was filed as a petition and should have been a plaint under

the Land Act.

It was held by Angote J that the preliminary objection was correctly before the court but that it

should raise purely a point of law.

39The Standard, Kenya: Lawyers Take Gicheru to Court Over New Rules, By Jibril Adan, 12 February 2007.

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Article 22(1) of the Constitution of Kenya provides every person with a right to institute court

proceedings claiming denial/ violation of their rights or fundamental freedom.

The procedure of moving the High Court or Environment & Land Court, which has the same

status as the High Court where the petitioner was alleging infringement of his rights and

freedoms or seeking for orders enumerated under article 22(3) of the Constitution of Kenya is in

the Gicheru Rules. The only procedure recognized under the Gicheru Rules of moving to the

court for enforcement of the bill of rights is by way of petition. The respondents were supposed

to answer the case by filing replying affidavits and annex any documents that they wish to rely

on.

Trusted Society of Human Rights Alliance v AG & 5 others (2012) e-KLR

This was a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu as

the Chairperson of the Ethics and Anti- Corruption Commission. Among the issues for

determination was whether the court had jurisdiction to hear the petition.

It was held that the High Court had the jurisdiction to hear the petition and properly review both

the procedures of appointment of the Interested Party (Mumo Matemu) as well as the legality of

his appointment. The procedure recognized under the Gicheru Rules of moving the court for

enforcement of the bill of rights is by way of a petition. Therefore, the petition was rightly before

the High Court.

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3. RELEVANCE OF GICHERU RULES TODAY

The introduction of the Mutunga rules on 28th

June 2013 has rendered Part III of the Gicheru

rules void. In this section we discuss the provisions of the Mutunga rules that were lacking in the

Gicheru Rules.

THE MUTUNGA RULES

The Constitution 2010 asserts that 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,

infringed upon or is threatened40

and that the State shall ensure access to justice for all persons.41

It also gives powers to the Chief Justice under Article 22(3) to make rules as pertaining to the

enforcement of the Bill of Rights espoused in Chapter 4 of the Constitution. In this light, the C.J.

Dr. Willy Mutunga made rules of practice and procedure for the enforcement of the Bill Of

Rights cited as The Constitution of Kenya (Protection of Rights and Fundamental Freedoms)

Practice and Procedure Rules, 2013.

As much as the Mutunga rules serve to provide the new procedures and rules to be followed in

bringing matters concerning the Bill of Rights, these rules do not entirely replace the Gicheru

Rules. Rule 33(1) of the Mutunga rules revokes only Part III of the Gicheru rules. However, any

matter currently pending under Part III of the Gicheru rules may be continued under the Mutunga

Rules.42

The Mutunga rules, 2013 encompass a number of provisions that were not in the Gicheru rules.

These include:

I. Enforcement of rights not provided for in the repealed constitution: One such right to be

enforced by the Mutunga rules is Intellectual Property Rights. The right to property as

provided for in section 75 of the old constitution did not include the IP rights. However,

in the new constitution under article 40 as read with article 260 extend the right of

property to cover both real and intangible property rights.

II. Introduction of the “Friend of the Court” (amicus curiae): This is provided for under rule

6. The rule provides that the court may allow any person with expertise in a matter before

the court to appear as a friend of the court with leave43

or by the court’s own motion.44

III. Inclusion of the Overriding Objective: Provided for under Rule 4, the court in exercising

its powers is to ensure the just, expeditious, and proportionate and resolution of all cases.

IV. Alternative Dispute Resolution: The Mutunga rules provide that the court may refer a

matter for determination by alternative dispute resolution mechanism45

. This is to further

40 Article 22(1) 41 Article 48 42 Rule 33(2) of The Mutunga Rules 43

Rule 6(b) 44

Rule 6(c); Article 22 (3)(e) 45

Rule 31

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the Overriding Objective which seeks the timely disposal of cases and facilitates access

to justice for all persons.46

V. In addition to a person acting in their own interests, court proceedings may also be

instituted by:47

a) A person acting on behalf of another person who cannot act in their own name

b) A person acting as a member of, or in the interest of, a group or class of persons

c) A person acting in the public interest

d) An association acting in the interest of one or more of its members

46 Rule 5(c); Article 48 47 Rule 7; Article 22(2)

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4. JUDICIAL REVIEW VIS A VIS THE GICHERU AND MUTUNGA RULES

Judicial review seeks to offer redress to suffering caused by the decision making process of

administrative bodies. It strictly deals with the manner in which a decision is arrived at.

e.g. where there was an error of law on the face of the records, where the exercise of power was

in bad faith, where a decision was arrived at is ultra vires, or where there was failure to exercise

power by either delegating it to another body or fettering itself in its free exercise of power.

The Gicheru and Mutunga rules, on the other hand serve a facilitative function. They set out the

procedure to be followed in approaching the High Court 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 and outline procedures of how one may institute proceedings with the High

Court to invoke its supervisory jurisdiction and to seek interpretation of the Court on a question

of law. Under these rules, when questions are framed in a reference from a subordinate court,

only those questions framed in the prescribed form are to be addressed. While in Judicial Review

the decision making process of an administrative body is looked at in its entirety.

The key difference lies on the fact that in one case a person approaches the High Court in its

Judicial Review Division whilst seeking orders such as mandamus, certiorari or prohibition

while in the other, a person petitions the High Court in its Constitutional and Human Rights

Division while seeking declaratory orders.

It is interesting to note that one of the orders a court may grant in proceedings brought under

Article 22 is an order for judicial review.48

Furthermore, the court, while observing the rules of natural justice, shall not be unreasonably

restricted by procedural technicalities.49

In fact, the court shall, if necessary, entertain

proceedings on the basis of informal documentation.50

Other than the fact that applications and references to the High Court will be procedurally

governed by the Gicheru and Mutunga rules whereas the Judicial Review process is governed by

Order 53 of the Civil Procedure Rules, there is little difference if one is to look at the substance

of the matter. The end result of both the rules and judicial review is the same: attainment of

justice. Thus, an applicant’s case should not be thrown out on the mere basis that it was filed

wrongly and in the wrong division of the court. Why shouldn’t the matter be easily solved by

transferring the documents from one division of the High Court to the other? Doesn’t this, in the

long run, lead to dispensation of justice? And is this not the paramount role of our courts?

48 Article 23 (3) (f) 49 Article 22 (3) (d) 50 Article 22 (3) (b)

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Nonetheless, actions that violate human rights could equally qualify as administrative mal-

practices which warrant judicial intervention by way of judicial review or as an action for

enforcement under Gicheru (now under the Mutunga) Rules.

This was reiterated in the celebrated case of Githunguri v Republic.51

This case addressed the issue of how to approach the High Court. The applicant was charged in a

magistrate’s court with several counts alleging contraventions of The Exchange Control Act

(Cap 113).52

He complained the present charges against him had been resurrected years after he

had not been charged and that he was charged notwithstanding all previous assurances by the

police that he would not be prosecuted. He successfully made an application under section 67(1)

of the Constitution.

The Court held that it was a proper exercise of the powers of the A.G. to institute proceedings in

this manner provided that nothing further had been done such as informing the person concerned

that no proceedings will be instituted or returning to him or disposing of any property involved.

This is because, as a consequence of being led to believe that the there would be no prosecution,

the accused may have destroyed or lost evidence in his favour. It was also held that unless good

and valid reasons exist for doing so, such as discovery of important and credible fresh evidence

or the return from abroad of the person concerned, such a charge is vexatious, an abuse of the

process of the Court and contrary to public policy.

The Constitutional Court followed up by saying that in the proceedings before them, they could

do no more than answer the questions contained in the reference. The trial magistrate was still at

liberty to proceed with the trial unless the Attorney-General, in light of the Court’s answers to

the questions referred to it, decided, as the Court hoped he would, to terminate the proceedings

or unless the accused applied for a prerogative order.

The Attorney-General refused to terminate the proceedings. Consequently, the applicant, after

obtaining leave under Order LIII rule 1(2) of the Civil Procedure Rules, by motion asked the

High Court to make an order prohibiting the magistrate from further proceeding to hear the case.

The application was heard by two judges who, after failing to reach a unanimous decision, were

divested of it by the Acting Chief Justice who ordered the application to be re-heard de novo53

by

three judges of the High Court.

The three-judge bench held (obiter) that the applicant’s questions had been wrongly referred to

the Constitutional Court under section 67(1) of the Constitution as none of the questions related

to the interpretation of the Constitution.54

The questions would have been properly framed under

51 [1986] KLR 1 52 That has since been repealed by Act No 11 of 1995 53 Anew, afresh, from the beginning; without consideration of previous proceedings. 54 The two prerequisites for reference to a Constitutional Court are that the question must relate to the interpretation of the Constitution and that the subordinate Court must be of the opinion that the question involves a substantial question of law.

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an application to the High Court under section 84 of the Constitution for redress for the

infringement of a fundamental right under section 77(1) of the Constitution.55

In its main decision, the Court held that the delay to prosecute was so inordinate as to make the

non-action inexcusable. Furthermore, the applicant was entitled to the order of prohibition sought

because Attorney General’s right to change the decision to prosecute had been lost. Prosecution

of the applicant would therefore be an abuse of the process of the Court, oppressive and

malicious, and it would not be in the public interest.

The prohibition order was granted.

Githunguri was an isolated judgment. Prior to the Constitutional Review Cases, the courts

adopted an inconsistent and conservative approach to constitutional interpretation.56

This can be

seen in the diversity of the manner in which the two cases below were decided.

In R v Kenya Road Board Ex parte John Harun,57

the Court held that:

“The remedy of Judicial Review is available as a procedure through which the applicant can

come to court for the determination of any Constitutional issue including striking down of

legislation which may be unconstitutional. Judicial Review in this sense means the power to

scrutinize laws and executive acts, the power to test their conformity with the Constitution and

the power to strike them down if they are found to be inconsistent with the Constitution. I am

convinced that the Kenyan courts have been given such jurisdiction under sections 60, 84 and

123(8) of the Constitution.”

Where there are no rules of practice and procedure one can find justification in the general

argument that in the absence of rules of practice and procedure, judicial review may be an

available remedy.

In R v Hon. Chief Justice of Kenya & Others Ex Parte Roseline Naliaka Nambuye, the Court

held that:

“For any alleged breach of fundamental rights to be properly articulated, an application by

way of an Originating Summons is required by the Rules made under the Constitution. Where

the applicant purports to enforce such rights by way of a Notice of Motion seeking Judicial

55 Namely, the right of an accused person to a fair hearing within a reasonable time. 56 Muthomi Thiankolu, Landmarks for El Mann to the Saitoti Ruling: Searching a philosophy of Constitutional Interpretation in Kenya, Kenya Law Review 57 eKLR 2005

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Review Orders of certiorari, mandamus and prohibition, such an application is clearly defective

under the law. The prayers sought must fail on this ground.”

The difference between the two cases, hence the different grounds taken by the court, was that

the Nambuye case was determined at a time when rules of practice and procedure had been

promulgated by the Chief Justice to govern applications relating to enforcement of fundamental

rights and freedoms spelt out under Sections 70 to 83(inclusive) of the Constitution 1963. While

the Kenya Roads Board case was decided before the promulgation of the Gicheru Rules.

In essence, from the above, an action for enforcement of fundamental rights and freedoms of the

Constitution under Section 84 (now under Article 165) is available “without prejudice to any

other action with respect to the same matter that is lawfully available”. Logically, one of the

lawful avenues for redress may be judicial review but the applicant can choose to go by either, or

even both.

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CONCLUSION

As a country, we have gradually evolved from an era of futile protection of fundamental rights

and freedoms embedded in the Constitution to an era where fundamental freedoms and rights are

being enforced. Previously, these rights could not be upheld by the Courts due to the absence of

rules of practice and procedure to guide the Courts. This was the issue in Gibson Kamau Kuria v

The Attorney General (1988).

It is interesting to note that this vacuity of rules was not resolved until 2001 when the Chunga

Rules were introduced. Since then, the Gicheru Rules were introduced and recently, the Mutunga

Rules have been established to guide the court in terms of procedure in enforcing human rights

as provided for in the Constituiton. Moreover, the law has, it seems in the abundance of caution,

set up a constitutional provision that states that even the absence of rules will no longer limit the

right of any person to commence court proceedings and to have the matter heard and determined

by a court.58

58 Article 22(4)

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REFERENCES

1. The Constitution of Kenya [Protection of Fundamental Rights and Freedoms of the

Individual] Practice and Procedure Rules 2001. Legal Notice No. 133 of 2001.

2. The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental

Rights and Freedoms of the Individual) High Court Practice Rules, 2006. Legal Notice

No. 6 of 2006.

3. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice

and Procedure Rules, 2013. Legal Notice No. 117 of 2013.

4. The Constitution of Kenya, 1969 (as amended to 1997)

5. The Constitution of Kenya, 2010.

6. Muthomi Thiankolu, Landmarks for El Mann to the Saitoti Ruling: Searching a

philosophy of Constitutional Interpretation in Kenya, Kenya Law Review.

7. The Standard, Kenya: Lawyers Take Gicheru to Court Over New Rules, By Jibril Adan,

12 February 2007.

8. The Law, the Procedures and the Trends in Jurisprudence on Constitutional and

Fundamental Rights Litigation in Kenya. Ongoya Z. Elisha, Kenya Law Reports, 2008.

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Form A (rule 3)

IN THE HIGH COURT OF KENYA AT………………………………….

CONSTITUTIONAL APPLICATION NO ................ OF…………………………...

IN THE MATTER OF AN APPLICATION UNDER SECTION 65

BETWEEN

(insert names of parties)...... APPLICANT

AND

(insert names of parties). ................................. RESPONDENT

ORIGINATING NOTICE OF MOTION

TAKE NOTICE that on the ...................................... day of .................. 20. .at .......... O'clock in the

forenoon or so soon thereafter as can be heard, the above applicant/counsel for the applicant will move the Court for an Order that ……………………………………………………………............................................

……………………………………………………………………………………………………………….

State the concise grounds.............................................................................

The application is supported by the annexed affidavit of……………………………sworn on the ............. day of .................... 20...

The address for service of the applicant is…………………………….

DATED this ................................. day of ..................................................................... 20. . .

SIGNED ............................................................................ Applicant/Advocate for applicant

DRAWN AND FILED BY:

TO BE SERVED UPON:

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FORM B (rule 7)

IN THE HIGH COURT OF KENYA AT……………………………

CONSTITUTIONAL REFERENCE NO ........................ OF ......................

IN THE MATTER OF SECTION 67

IN THE MATTER OF CRIMINAL/CIVIL CASE NO……………………………..OF...............

AT ................................................COURT

BETWEEN

A.B. (insert names of parties)……………………………………..APPLICANT

AND

C.D. (insert names of parties). …………………………………………..RESPONDENT

To: The High Court of Kenya;

Question(s) for Interpretation of the Constitution by the High Court pursuant to Section 67 of the Constitution.

1. On the ............. day of ................................ 20. .......... a question(s) as to the

interpretation of the Constitution arose.

2. ... (briefly set out the opinion of the subordinate court on the point of law raised)

3. ... (briefly set out the facts necessary to enable the High Court to properly decide the point of law raised)

4. The question(s) for the decision of the High Court is .... (state the question(s).

DATED this…………………………..day of………………………………20……………….

Magistrate/ Presiding Officer

Group 12

FORM C (rule 8)

IN THE HIGH COURT OF KENYA AT ..............

CONSTITUTIONAL REFERENCE NO.....OF .........................

IN THE MATTER OF SECTION 67

IN THE MATTER OF CRIMINAL/CIVIL CASE NO .................... .0F.....

AT ................................................ COURT

BETWEEN

(insert names of parties) ………………………………………..APPLICANT

AND

( i n s e r t n a m e s o f p a r t i e s ) … … … … … … … … . . . R E S P O N D E N T

The High Court of Kenya;

Question(s) for Interpretation of the Constitution by the High Court pursuant to Section 67(1) of the Constitution.

On the...day of ...................................20 .......... a question(s) as to the

interpretation of the Constitution arose.

2 . T h e p a r t i e s c o n t e n d a s f o l l o w s (set out, in consecutive paragraphs the specific issues contended by each of the parties referring where necessary to Acts or decided cases.) ..............................................

3 . ...…..(briefly set out the opinion of the subordinate court on the point of law raised)

4 . …….. (briefly set out the facts necessary to enable the High Court to properly decide the point(s) of law raised)

5 . The question(s) for the decision of the High Court is . (state the question(s) .

DATED this…………………………..day of………………………………20……………….

Magistrate/ Presiding Officer

Group 12

FORM D (r. 12)

IN THE HIGH COURT OF KENYA AT…………

PETITION NO………OF……….20…...

IN THE MATTER OF SECTION 84(1)

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION (insert section)... .............

BETWEEN

(insert names of parties) ...................................................................PETITIONER

AND (insert names of parties) ……………………………………………………RESPONDENT

The High Court of Kenya

The humble petition of A.B (insert names of petitioner) of ............................... in

The Republic of Kenya is as follows-

........................ (the allegations upon which the petitioner (s) rely must be concisely

set out, in consecutively numbered paragraphs)………...................................

Your Petitioner(s) therefore humbly pray(s) that ...............................................

(set out exact Order (s) sought) ..........................................................................................................

Or that such other Order(s) as this Honourable Court shall deem just.

DATED at ................... this ................... day of………………………………………….. .20……………

Signed ......................................................... Petitioner/Advocate for the Petitioner

DRAWN & FILED BY:

TO BE SERVED UPON:

FORM E (r.24)

Group 12

IN THE HIGH COURT OF KENYA AT..............................

CONSTITUTIONAL REFERENCE NO.....OF……….


IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION (insert section)............................................................................................................

IN THE MATTER OF CRIMINAL/CIVIL CASE NO ......................... OF ......................

AT ............................................... .COURT

BETWEEN

(insert names of parties)…………………………. APPLICANT

AND

(insert names of parties). ....................................................................... RESPONDENT

To The High Court of Kenya;

Question(s) for determination on the alleged contravention of Section(s)…………… of

The Constitution of Kenya.

1 . O n t h e . . . . . . . day of ................................... 20........... a question(s) arose as to the contravention of section(s) ................... .of the Constitution.

2 . .......(briefly set out the opinion of the subordinate court on the question raised)

3. (Briefly set out the facts necessary to enable the High Court to properly decide the question(s) raised.)

4 . The question(s) for determination by the High Court is.... (state the question(s).

DATED this ........................ .day of………………………………………………………………20……..

Magistrate / Presiding Officer

Form F (r.26)

IN THE HIGH COURT OF KENYA AT ......... ………..

Group 12

CONSTITUTIONAL REFERENCE NO...........OF………………


IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL

RIGHTS AND FREEDOMS UNDER SECTION (insert section).....................................

IN THE MATTER OF CRIMINAL/CIVIL CASE NO ....................... OF ........................

AT ................................................ COURT

BETWEEN

(insert names of parties), .................. APPLICANT

AND

(insert names of parties) ................................................................ RESPONDENT

To: The High Court of Kenya;

Question(s) for determination of the alleged contravention of Section(s) ...... of the Constitution of Kenya.

1. On the ................................ day of ....................................... 20….a question(s) arose as to the contravention of section(s) ....... of the Constitution.

2. T h e p a r t i e s c o n t e n d a s f o l l o w s . . . . . . . . . . . . . . . (set out, in consecutive paragraphs the specific issues contended by each of the parties referring where necessary to Acts or decided cases.).........

3. (briefly set out the opinion of the subordinate co4rt on the question raised) 4. ... (briefly set out the facts necessary to enable the High Court to properly decide the question(s) raised) 5. The question(s) for determination of the High Court is ...............................

(state the question(s) .

DATED this ............................... day of .................................................................... .20 .....

Magistrate/Presiding Officer

Group 12 Admin Law

Documents

Transcript of Group 12 Admin Law