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DRAFT RULES FOR THE PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THE CONSTITUTION

LEGAL NOTICE NO.

THE CONSTITUTION OF KENYA

IN EXERCISE of the powers conferred by Article 22(3) as read with Article 23, Article165 (3) (b) and Article 258 of the Constitution of Kenya, the Chief Justice makes the following Rules——

THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THE CONSTITUTION) PRACTICE AND PROCEDURE RULES, 2012

Part I—Preliminary

Citation.

1. These Rules may be cited as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012.

Interpretation.

2. In these rules, unless the context requires otherwise—

“Constitution” means the Constitution of Kenya.

“Costs” means lawyers’ fees and other disbursements of the parties but does not include court fees.

“Court of Appeal” means the Court of Appeal of Kenya as established under Article 164 of the Constitution.

“Document” means any record of information, and includes, anything on which there is writing; anything on which there are marks, figures, symbols or perforation having a meaning for persons qualified to interpret them; information captured in electronic format, a map, plan, drawing or photograph.

“Fees” means money paid to the court at the time of institution or commencement of court proceedings and any other time that the Registrar may determine.

“Friend of the court” which also means “Amicus curiae” is a person or entity that is expert in an issue the subject matter of proceedings but is not party to the case and serves to benefit the court with the expertise.

“High Court” means the High Court of Kenya as established under Article 165 of the Constitution.

“Informal documentation” includes, any publication that is simple and does not conform to any particular form but conveys information. It may not conform to rules of grammar and may be in any language as long as it is legible.

“Interested party” means a person or entity that has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.

“Person” includes an individual, organisation, company, association or any other body of persons whether incorporated or unincorporated.

“Petitioner” means any person who institutes  proceedings under these rules.

“Public Interest Litigation” without limiting the generality of this expression means proceedings initiated for the enforcement or protection of an interest in which the rights or fundamental freedoms of the general public or class of persons or community are affected.

“Registrar” means the Court Registrar in charge of Human Rights cases in any particular court.

“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.

“Service” means delivery of a writ, summons, or other legal papers to the person required to respond to them.

“Subordinate Court” means subordinate court as established under Article 169 of the Constitution.

“Supreme Court” means the Supreme Court of Kenya as established under Article 163 of the Constitution.

Scope and Objectives.

3. (1) These Rules shall apply to all proceedings made under Article 22 and 258 of the Constitution.

(2) The overriding objective of these rules is to ensure that the Court is accessible, fair and efficient.

(3) These rules shall be interpreted and applied with a view to advancing and realising the rights and fundamental freedoms contained in the Bill of Rights and shall be interpreted in accordance with Article 259(1) of the Constitution.

(5) The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases.

(4) For the purpose of furthering the overriding objective, the court shall handle all matters presented before it to achieve the just determination of the proceeding, the efficient use of the available and administrative resources, the timely disposal of proceedings before the court at a cost affordable by the respective parties and the use of suitable technology.

(5) A party to proceedings commenced under these rules, or an advocate for such party is under a duty to assist the Court to further the overriding objective of these Rules and, to that effect, to participate in the processes of the Court and to comply with the direction and orders of the Court.

(6) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially persons with disabilities, the poor, the illiterate, the uninformed and unrepresented.

(7) Nothing in these Rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court

Part II—Instituting Court Proceedings

Contravention of rights or fundamental freedoms.

4. (a) Where any right or fundamental freedom provided for in the Constitution is denied, violated or infringed or threatened, a person so affected or  likely to be affected, may make an application to a Subordinate Court or to the High Court in accordance to these rules.

(b) In addition to a person acting in their own interest, court proceedings under sub rule (a) may be instituted by;

(i) A person acting on behalf of another person who cannot act in their own name.

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

(iii) A person acting in the public interest; or

(iv) An association acting in the interest of one or more of its members.

Addition, joinder, substitution and striking out of parties.

5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—

(a) Where the petitioner is in doubt as to the persons from whom he is entitled to obtain redress, he 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.

(b) No petition shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every proceeding deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

(c)  Where proceedings have been instituted in the name of the wrong persons as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as petitioner upon such terms as the court thinks fit.

(d) The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as petitioner or respondent, be struck out, and that the name of any person who ought to have been joined, whether as petitioner or respondent, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the proceedings, be added.

(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.

Amicus curiae and interested parties.

6. The following procedure shall apply with respect to friends of the court and interested parties—

(a) 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 (amicus curiae).

(b) Leave to appear as a friend of the Court may be granted to any person on application orally or in writing.

(c) The Court may on its own motion request any person with expertise to appear as a friend of the court in proceedings before it.

(d) A person may appear in Court and make an oral or written application as an interested party with the leave of the Court.

Jurisdiction.

7. Every case shall be instituted within the local limits of the jurisdiction where the alleged violation took place provided that the High Court may order that the petition be transferred to another station or court either on its own motion or on the application of a party.

Notice of Institution of the petition.

8. The Court may direct that notice of institution of petition be posted on the Court Notice Board or be published in the Kenya Gazette, any newspaper or the judiciary website. Such notice shall contain a brief summary of the case, reference to the provisions of the Constitution violated or infringed and the relief sought.

Form of Petition.

9. (a) An application under Rule 3 shall be made by way of a petition as set out in Form A (for application to the High court) and Form B (for application to a Subordinate Court) in the Schedule to these Rules with such alterations as may be necessary.

(b) The petition shall disclose the following—

  1. The petitioner’s name and address;

(ii) The facts constituting the case;

(iii) The nature of injury caused or likely to be caused to the petitioner, or in a public interest case to the public, class of persons or community;

(iv) Details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is could be related to the matters in issue in the petition;

(v) The petition shall be signed by the petitioner or his advocate;

(vi) The relief sought by the petitioner;

(c) Subject to rule 9 and 10 of these rules the court may also accept oral applications, letters or other informal documentation which disclose denial, violation, infringement or threat to a right or fundamental freedom.

(d) The court may if necessary entertain an oral application about denial, violation, infringement or threat to a right or fundamental freedom which the court shall reduce into writing.

Affidavit in support.

10. The Petition filed under these rules may be supported by an affidavit.

Documents to be annexed to affidavit or petition.

11. If a party wishes to rely on any document, the document may be annexed to the supporting affidavit or the petition where there is no supporting affidavit.

Registrar to assist in filing of petitions.

12. 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.

Placing of petition before court.

13. Every petition filed shall be placed before the court within7 days of its filing for a decision on whether it discloses a cause of action based on the Bill of Rights provided that a petition filed under certificate of urgency may be placed before a Judge or Magistrate for appropriate orders or directions forthwith.

Service of petition

14. (a) The petitioner shall serve the respondent(s) with the petition, documents and relevant annextures.

(b) Proof of service shall be in Form C in the schedule to these rules with such variations as may be necessary.

Replying affidavit.

15. (a) The Attorney-General, or any other State body shall within fourteen days of service of the Petition respond by way of a replying affidavit and if any document is relied upon, it shall be annexed to the replying affidavit.

(b) The respondents not in the category of (i) above shall file a memorandum of appearance or a replying affidavit or an acknowledgment of receipt or a statement setting out the grounds relied upon to oppose the petition within seven days and respond by way of a replying affidavit or provide any other written document as a response to the petition within fourteen days.

Fixing petition for hearing.

16. Where the respondent, fails to respond within the time stipulated in rule 15, the court may determine the petition summarily or hear it.

Evaluating Petition for directions and allocating hearing dates.

17. (a) In giving directions on the hearing of the case,  a Judge or Magistrate may require that parties file and serve written submissions  within fourteen days of such directions.

(b) Any party who wishes to file further information at any stage of the proceedings may do so with the leave of the court.

(c) The court shall frame the issues for determination at the hearing and give such directions as are necessary for expeditious hearing of the case.

Consolidation.

18. The court may on its own motion or on application by any party consolidate several petitions on such terms as it may deem just.

Written Submissions.

19. The written submission shall contain the following—

(a) A brief statement of facts with reference to exhibits, if any, attached to the petition.

(b) Issues arising for determination.

(c)  A concise statement of argument on each issue incorporating the purport of authorities referred to together with the full citation of each such authority.

(d) Copies of the authorities shall be attached to the written submissions.

Hearing of the petition.

20. (a) The hearing of the petition shall be by way of affidavits and oral submissions unless the court otherwise directs.

(b) The court may limit the time for oral submissions by the parties.

(c)            The court may upon application or on its own motion direct that the petition or part thereof be heard by oral evidence.

(d) 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.

(e) A person summoned as a witness by the court, may with leave of the court, be cross examined by the parties to the petition.

Conservatory or interim Orders.

21. (a) Notwithstanding anything contained in these Rules, a judge or magistrate before whom a petition under rule 3 is presented may hear and determine an application for conservatory or interim orders.

(b) Service of the application in (a) above may be dispensed with, with the leave of the court.

(c) the orders  issued in (a) above shall be personally served on the respondent or the respondents as the case may be or with leave of the court by substituted service.

Application under rule 15.

22. An application under rule 21 may be made, if necessary orally, by way of notice of motion or by informal documentation and may be heard ex parte. If the application is made orally the court shall reduce it in writing.

Setting aside, varying or discharge.

23. Any order issued under rule 17 may be discharged or varied or set aside by the court on application by any party dissatisfied with the order.

Costs.

24. (a) The award of costs is in the discretion of the court.

(b) In determining whether or not to award costs, the court may consider among other factors the bona fides of the proceedings, its public interest nature and its role in advancing human rights jurisprudence in Kenya.

(c) In exercising its powers to award costs, the Court shall take appropriate approaches to ensure that ordinary citizens and the indigent have access to the Court to determine their rights and fundamental freedoms and other issues of broad social significance.

Withdrawal or Discontinuance.

25. The petitioner may on notice to the court withdraw the petition or with the leave of the court discontinue the proceedings. The court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision:

Provided that the court may, for reasons to be recorded, proceed with the hearing of a case notwithstanding the petitioner’s wish to withdraw or discontinue the proceedings.

Acquiescence.

26. 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.

Settlement by Consent.

27. The parties may with leave of the court record an amicable settlement reached by the parties in partial or final determination of the case.

Part III—Public Interest Litigation

Courts to entertain public Interest proceedings.

28. The Courts shall entertain a public interest litigation if the subject matter of such proceedings includes but is not limited to—

(a) Enjoyment of the rights and fundamental freedoms of a significant number of people;

(b) Matters of broad public concern related to enjoyment of human rights;

(c)  Gross or systemic violations of any of the human rights enshrined in the Constitution or other international human rights instruments applicable in Kenya by virtue of Article 2 of the Constitution;

(d) Controversy on emerging jurisprudence on human rights;

(e) Alleged discrimination of disadvantaged, minority, or marginalized groups;

Procedure in public interest litigation.

29. The procedure to be followed in instituting public interest suits shall be that provided in Part II of these rules.

Part IV—Enforcement of the Constitution

Procedure for Enforcement of the Constitution

30. The procedure to be followed in instituting proceedings for the enforcement of the Constitution under Article 258 shall be that provided in Part II of these rules.

Part V—General Provisions

Practice directions.

31. The Chief Justice may issue practice directions for the better carrying out of these Rules.

Extension of time

32. The Court may extend time limited by these Rules, or by any decisions of the Court.

Use of alternative dispute resolution.

33. The Court may refer any matter for hearing and determination by alternative dispute resolution mechanism.

Part VI—Transitional Provisions

Revocation of part III of L.N. 6 of 2006.

34. 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.

Transitional Provisions.

35. Any matter currently pending in court under part III of Legal Notice No.6 of 2006 may be continued under these rules.

Application of Rules to Subordinate Courts.

36. These Rules shall apply to Subordinate Courts in determining cases under the Bill of Rights.

Made on the ………………….…… of …………………….…, 2012

W. Mutunga

Chief Justice

SCHEDULE

Form A                                                                                           (r. 4)

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

PETITION NO. …….. OF ………………… 20…..

IN THE MATTER OF Article 22 (1)

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS

OR FUNDAMENTAL FREEDOMS UNDER SECTION

(insert section) ……………………

BETWEEN

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

AND

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

TO:

The High Court of Kenya

The humble Petition of A.B (insert names of Petitioner) of (insert address of Petitioner) ………..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 and should address the following

(a) the facts constituting the case,

(b) nature of the injury caused or likely to be caused to Petitioner or public in public interest suits,

(c) details regarding any civil, criminal or other litigation involving the Petitioner which could have a legal nexus with the issue raised in the suit) ………………………..

(d) 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 B                                                                                           (r. 4)

IN THE ………………… MAGISTRATES COURT AT ……………………

PETITION NO. ……… OF ………………… 20…..

IN THE MATTER OF Article 22(1) and 23(2)

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

BETWEEN

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

AND

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

TO:

The ………….Magistrates’ Court at ……………………………

The humble Petition of A.B (insert names of Petitioner) of (Petitioner’s address) …………… 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 and should address the following:

(a) the facts constituting the case,

(b) nature of the injury caused or likely to be caused to Petitioner or public in public interest suits,

(c) details regarding any civil, criminal or other litigation involving the Petitioner which could have a legal nexus with the issue raised in the suit) ………………………..

(d) 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 C                                                                                       (r. 9 (iii)

AFFIDAVIT OF SERVICE

(Title)

I ……………………………………………………….. of …………………………. an adult of sound mind/advocate/a police officer/a process server of the court make oath and say as follows:

(1) On ………………………….., 20 ……….. at …………. (time)   I served the petition/replying affidavit/document in this case on …………………….. (name) at …………………… (place) by tendering a copy thereof to him/her and requiring a signature on the original. He/She signed/refused to sign the petition/replying affidavit/document. He/She was personally known to me/was identified to me by ………………………. and admitted that he/she was the respondent/petitioner.

(2) Not being able to find the respondent/petitioner on ……………………., 20 ……… at …………… (time) I served the petition/ replying affidavit/document on ……………………………………. (name) an adult member of the family of the respondent/petitioner who is residing with him/her.

(3) Not being able to find the respondent/petitioner or any person on whom service could be made, on ………………………., 20 ……….. at ……………. (time), I affixed a copy of the petition/replying affidavit/ document to the outer door of …………………………… being the house in which he/she ordinarily resides/carries on business/personally works for gain. I was accompanied by ………………………………………………… who identified the house to me.

(4)  (Otherwise specify the manner in which the petition/replying affidavit/ document was served).

SWORN by the said …………………………………… this ……………….. day …………………….. of ……………………………….., 20 …………………..

Before me ………………………………………………………………………………

A Commissioner of Oaths/Magistrate.

Form D                                                                                       (r.15 (iii)

SUBSTITUTED SERVICE BY ADVERTISEMENT

To: ……………………………………………………………………………………………

of ………………………………………………………………………………………………

Take notice that a petition has been filed in the …………………………. Court at ……………………. in Civil Suit No. ………………….. of 20 …………., in which you are named as respondent. Service of the petition on you has been ordered by means of this advertisement. A copy of the petition may be obtained from the court at ……………………………………..

(insert postal address of registry).

And further take notice that, unless you enter an appearance within ……………. days, the case will be heard in your absence.

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