The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

Section 1. Citation Section These rules may be cited as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.

Section 2. Interpretation Section any publication, or any matter written, expressed, or inscribed on any substance by means of letters, figures or marks, or by more than one of those means, that is intended to be used or may be used for the purpose of recording that matter; and

Section 3. Scope and objectives Section 3(1) These Rules shall apply to all proceedings made under Article 22 of the Constitution. Section 3(2) The overriding objective of these rules is to facilitate access to justice for all persons as required under Article 48 of the Constitution. Section 3(3)(a) rights and fundamental freedoms enshrined in the Bill of Rights; and Section 3(3)(b) values and principles in the Constitution. Section 3(4) The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases. Section 3(5)(a) just determination of the proceedings; Section 3(5)(b) efficient use of the available and administrative resources; Section 3(5)(c) timely disposal of proceedings at a cost affordable by the respective parties; and Section 3(5)(d) use of appropriate technology. Section 3(6)(a) participate in the processes of the Court; and Section 3(6)(b) comply with the directions and orders of the Court. Section 3(7)(a) poor; Section 3(7)(b) illiterate; Section 3(7)(c) uninformed; Section 3(7)(d) unrepresented; and Section 3(7)(e) persons with disabilities Section 3(8) Nothing in these rules shal...

Section 4. Contravention of rights or fundamental freedoms Section 4(1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules. Section 4(2)(i) a person acting on behalf of another person who cannot act in their own name; Section 4(2)(ii) a person acting as a member of, or in the interest of, a group or class of persons; Section 4(2)(iii) a person acting in the public interest; or Section 4(2)(iv) an association acting in the interest of one or more of its members.

Section 5. Addition, joinder, substitution and striking out of parties Section Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.

Section 6. Friend of the Court Section The Court may allow any person with expertise in a particular issue which is before the Court to appear as a friend of the Court.

Section 7. Interested party Section 7(1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party. Section 7(2) A court may on its own motion join any interested party to the proceedings before it.

Section 8. Place of filing Section 8(1) Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place. Section 8(2) Despite sub rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party.

Section 9. Notice of institution of the petition Section 9(1) The Court may direct that notice of institution of petition be posted on the Court notice board or be published in the Gazette , a daily newspaper with national circulation or the Judiciary’s website. Section 9(2)(a) contain a brief summary of the case, reference to the provisions of the Constitution violated or infringed and the relief sought; and Section 9(2)(b) be approved by the Registrar.

Section 10. Form of petition Section 10(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. Section 10(2)(a) the petitioner’s name and address; Section 10(2)(b) the facts relied upon; Section 10(2)(c) the constitutional provision violated; Section 10(2)(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; Section 10(2)(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; Section 10(2)(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and Section 10(2)(g) the relief sought by the petitioner. Section 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. Section 10(4) An oral application entertained under sub rule (3) shall be reduced into...

Section 11. Documents to be annexed to affidavit or petition Section 11(1) The petition filed under these rules may be supported by an affidavit. Section 11(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.

Section 12. Registrar to assist in filing of petitions Section The Registrar shall cause a prescribed form to be available in the Registry to assist petitioners who bring oral applications to have them reduced in writing.

Section 13. Petition filed under certificate of urgency Section A petition filed under certificate of urgency may be placed before a Judge for appropriate orders or directions.

Section 14. Service of petition Section 14(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. Section 14(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.

Section 15. Reply to a petition Section 15(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 and if any document is relied upon, it shall be annexed to the replying affidavit. Section 15(2)(a) replying affidavit; or Section 15(2)(a)(i) replying affidavit; or Section 15(2)(a)(ii) statement setting out the grounds relied upon to oppose the petition. Section 15(2)(b) After filing either of the documents referred to in sub-rule (2)(a), a respondent may respond by way of a replying affidavit or provide any other written document as a response to the petition within fourteen days. Section 15(3) The respondent may file a cross-petition which shall disclose the matter set out in rule 10(2).

Section 16. Failure to respond within stipulated time Section 16(1) If the respondent does not respond within the time stipulated in rule 15, the Court may hear and determine the petition in the respondent’s absence. Section 16(2) The Court may set aside an order made under subrule (1) on its own motion or upon the application of the respondent or a party affected by the order.

Section 17. Consolidation Section The Court may on its own motion or on application by any party consolidate several petitions on such terms as it may deem just.

Section 18. Amendment of pleadings Section A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.

Section 19. Formal applications Section 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.

Section 20. Hearing of the petition Section 20(1)(a) affidavits; Section 20(1)(b) written submissions; or Section 20(1)(c) oral evidence. Section 20(2) The Court may limit the time for oral submissions by the parties. Section 20(3) The Court may upon application or on its own motion direct that the petition or part thereof be heard by oral evidence. Section 20(4) The Court may on its own motion, examine any witness or call and examine or recall any witness if the Court is of the opinion that the evidence is likely to assist the court to arrive at a decision. Section 20(5) A person summoned as a witness by the court may be cross examined by the parties to the petition.

Section 21. Evaluating petition for directions and allocating hearing dates Section 21(1) In giving directions on the hearing of the case, a Judge may require that parties file and serve written submissions within fourteen days of such directions or such other time as the Judge may direct. Section 21(2) A party who wishes to file further information at any stage of the proceedings may do so with the leave of the Court. Section 21(3) The Court may frame the issues for determination at the hearing and give such directions as are necessary for the expeditious hearing of the case.

Section 22. Written submissions Section 22(1) Each party may file written submissions. Section 22(2)(a) a brief statement of facts with reference to exhibits, if any, attached to the petition; Section 22(2)(b) issues arising for determination; and Section 22(2)(c) a concise statement of argument on each issue incorporating the relevant authorities referred to together with the full citation of each authority. Section 22(3) Copies of the authorities to be relied on shall be attached to the written submissions.

Section 23. Conservatory or interim orders Section 23(1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders. Section 23(2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court. Section 23(3) The orders issued in sub-rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.

Section 24. Application under rule 21 Section 24(1) An application under rule 23 may be made by way of notice of motion or by informal documentation. Section 24(2) Where an oral application is made under rule 23, the Court shall reduce it in writing.

Section 25. Setting aside, varying or discharge Section An order issued under rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.

Section 26. Costs Section 26(1) The award of costs is at the discretion of the Court. Section 26(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.

Section 27. Withdrawal or discontinuance Section 27(1)(a) on notice to the court and to the respondent, apply to withdraw the petition; or Section 27(1)(b) with the leave of the court, discontinue the proceedings. Section 27(2) The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision. Section 27(3) Despite sub rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case petition in spite of the wish of the petitioner to withdraw or discontinue the proceedings.

Section 28. Acquiescence Section If the respondent does not dispute the facts in the petition whether wholly or in part, the Court shall, after hearing the parties, make such orders as it may deem fit.

Section 29. Settlement by consent Section The parties may, with leave of the Court, record an amicable settlement reached by the parties in partial or final determination of the case.

Section 30. Extension of time Section The Court may extend time limited by these rules, or by any decision of the Court.

Section 31. Use of alternative dispute resolution Section The Court may refer a matter for hearing and determination by alternative dispute resolution mechanism.

Section 32. Stay pending appeal Section 32(1) An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed. Section 32(2) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just. Section 32(3) A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct.

Section 33. Revocation of part III of L.N. 6 of 2006. Section 33(1) Part III of The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 is revoked. Section 33(2) Despite sub rule (1), a matter currently pending in Court under Part III of Legal Notice No. 6 of 2006 may be continued under these rules.

Section 34. Court Fees Section There shall be paid in respect of all proceedings under these Rules the same court fees as are payable in respect of civil proceedings in the High Court in so far as the same are applicable.

Section 35. Waiver of court fees Section 35(1) A person who wishes to be exempted from paying court fees may apply to the Registrar. Section 35(2) An application under sub-rule (1) may be made by informal documentation. Section 35(3) The reasons for the Registrar’s decision shall be recorded.

Section 36. Practice Directions Section The Chief Justice may issue practice directions for the better carrying out of these rules.

Section 37. Review Section The Chief Justice may review these rules from time to time.