Constitutional Petition in Kenya: Procedure, Timelines and Possible Outcomes

A constitutional petition Kenya litigants file is the procedure for asking the High Court to protect a right or fundamental freedom in the Bill of Rights. It is the route to use when the state, a public body or sometimes a private actor has denied, violated or threatened a constitutional right. This guide explains who can bring a petition, where and how it is filed, the deadlines the procedural rules set, the interim relief available and the outcomes a court can order.

The constitutional basis for a petition

Article 22 of the Constitution gives every person 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. Article 165(3)(b) gives the High Court jurisdiction to determine that question, and Article 23(1) confirms that the High Court hears applications for redress under Article 165.

Standing is deliberately wide. Article 22(2) allows proceedings to be brought by a person acting in their own interest, by someone acting for another person who cannot act in their own name, by a person acting as a member of or in the interest of a group or class, by a person acting in the public interest, and by an association acting in the interest of one or more of its members. Article 22(3) directs the Chief Justice to make rules that keep formalities to a minimum, which is why the procedure is more flexible than ordinary civil litigation.

The rules that govern a constitutional petition Kenya courts hear

Those rules are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, published as Legal Notice 117 of 2013. They are often called the Mutunga Rules. They set out the form of the petition, where it is filed, service, replies, interim orders and hearing methods.

Where to file

Rule 8 requires a petition to be instituted in the High Court within whose jurisdiction the alleged violation took place. The court may transfer a petition to another court of competent jurisdiction, on its own motion or on a party’s application.

What a constitutional petition Kenya filing must contain

Rule 10 requires the petition to be made in the form in the Schedule to the Rules, with necessary alterations. It must disclose:

• the petitioner’s name and address;
• the facts relied upon;
• the constitutional provision said to have been violated;
• the nature of the injury caused or likely to be caused to the petitioner, or to the public, class or community in a public interest case;
• details of any civil or criminal case involving the petitioner that relates to the matters in issue;
• the petitioner’s or advocate’s signature; and
• the relief sought.

The Rules also allow the court to accept an oral application, a letter or other informal documentation that discloses a denial, violation, infringement or threat to a right, subject to the requirements the Rules attach to such applications. That flexibility exists for people who cannot easily reach a lawyer, but a properly drafted petition is still the safer course. Rule 11 deals with documents that may be annexed to the petition or to a supporting affidavit.

Service and response timelines

Under rule 14, the petitioner must serve the petition, documents and annexures on the respondent within 15 days of filing, or within such time as the court directs. Proof of service is by affidavit of service in the Form set out in the Schedule.

Rule 15 sets the response periods. The Attorney-General or any other State organ must respond by replying affidavit within fourteen days of service, annexing any document it relies on. Other respondents have seven days to file a memorandum of appearance and either a replying affidavit or a statement of the grounds relied on. These are procedural deadlines, and the court has power to vary time under the Rules, so confirm the current directions in your case rather than assuming they cannot move.

Interim relief while the constitutional petition Kenya court case is pending

Where a violation is continuing or imminent, waiting for a final judgment may make the case pointless. Rule 23 requires a judge before whom a petition is presented to hear and determine an application for conservatory or interim orders. With the court’s leave, service of that application may be dispensed with. Orders issued must be served on the respondent or their advocate in the manner the rule provides, unless the court permits otherwise.

Conservatory orders are a feature of constitutional litigation specifically, and Article 23(3)(c) lists them among the forms of relief a court may grant. They preserve the position until the petition is decided, for example by stopping a demolition, an eviction or a dismissal while the petition is heard.

How a petition is heard

Rule 20 provides that, unless the court directs otherwise, the hearing is by affidavits, written submissions or oral evidence. The court may direct that all or part of the petition be heard by oral evidence, either on application or on its own motion, and may limit the time for oral submissions. Rule 22 deals with written submissions, and rule 31 allows the court to refer a matter to alternative dispute resolution.

Possible outcomes

Article 23(3) of the Constitution lists the relief a court may grant in proceedings under Article 22. The list is not exhaustive, since the court may grant appropriate relief including:

• a declaration of rights;
• an injunction;
• a conservatory order;
• a declaration of invalidity of any law that denies, violates, infringes or threatens a right and is not justified under Article 24;
• an order for compensation; and
• an order of judicial review.

Which of these you ask for should follow from the facts. A petition challenging a statute seeks a declaration of invalidity, while one about a wrongful detention is more likely to seek compensation and a declaration. Plead alternative relief, because the court is not bound to grant exactly what you ask for.

Choosing the right route

Not every grievance against a public body is a constitutional matter. A dispute that is really about a statutory process, a private contract or an ordinary civil wrong may belong in a different forum. Article 23(3)(f) shows that judicial review is itself a form of relief available in constitutional proceedings, so the choice between a petition and a separate judicial review application is a drafting and strategy decision. Our litigation and dispute resolution practice can assess which route fits your facts before you file.