Kenya Gazette Supplement No. 7
 

LEGAL NOTICE NO. 6
 

IN EXERCISE of the powers conferred by section 65(3) and section 84(6) of the Constitution of Kenya, the Chief Justice makes the following Rules:-
 

1. Citation
These Rules may be cited as the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006.
 

2. Originating notice of motion.
Unless a matter is specifically provided for under section 67 or section 84 of the Constitution or any other law, a party who wishes to invoke the jurisdiction of the High Court under section 65 of the Constitution, shall do so by way of Originating Notice of Motion (hereinafter referred to as “the Motion”)

3. Form of Motion.
The Motion shall be as set out in Form A in the Schedule to these Rules.

4. Content of Motion.
The Motion shall state the concise grounds for the application, and shall be supported by the applicant’s affidavit.

5. Motion to be place before judge.
Upon the filing of the Motion, the Registrar shall place the motion before a judge for directions within seven days from the date of filing.

6. Court may move on its own motion.
The High Court may in exercise of the powers conferred by Section 65(2) of the Constitution move on its own motion.
 

7. Reference to the High Court by subordinate court on its own motion.
Where a question as to the interpretation of the Constitution arises in proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may refer the question to the High Court in Form B set out in the Schedule to these rules.

8. Reference to the High Court by subordinate court upon request by parties.
Where a party to proceedings in a subordinate court alleges that there is a question as to the interpretation of the Constitution and the court is of the opinion that it involves a substantial question of law, the party shall informally request the presiding officer of that court to refer the question to the High Court and the court shall do so in Form C in the Schedule to these rules.

9. Subordinate court to state issues and its opinion.
The court shall in either case state concisely the issues and its opinion in Form B and Form C and shall within fourteen days refer the question to the High Court.

10. Registrar to place reference before Chief Justice or judge.
Upon receipt of the reference, the Registrar shall within seven days place the matter before the Chief Justice to constitute a bench in accordance with the provisions of section 67(3) of the Constitution, unless there is an interlocutory matter in the reference, in which case the Registrar shall place the matter before a judge for determination.
 

11. Contravention of fundamental rights and freedoms.
Where contravention of any fundamental rights and freedoms of an individual under sections 70 to 83 (inclusive) of the Constitution is alleged or is apprehended an application shall be made directly to the High Court.

12. Form of petition.
An application under rule 11 shall be made by way of a petition as set out in Form Din the Schedule to these Rules.

13. Petition to be supported by affidavit.
The petition under rule 12 shall be supported by an affidavit.

14. Documents to be annexed to affidavit.
If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit.

15. Petition to be served.
The petition shall, in a criminal case, be served on the Attorney-General and in a civil case, on the respondent, within seven days of filing.

16. Replying affidavit.
The Attorney-General or the respondent, as the case may be, 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.

17. Further affidavit.
A petitioner who wishes to file a further affidavit shall do so

18. Fixing Petition for hearing by the court.
(1) Within seven days from the date of service of the response or further affidavit, whichever is the later, the Registrar shall place the matter before a judge for fixing a hearing date or directions.

(2) The Judge may in giving directions require that parties file and serve written submissions.

19. Fixing Petition for hearing by petitioner.
Where the Attorney-General or the respondent, as the case may be, fails to respond within the time stipulated in rule 16, the petitioner may set down the matter for hearing and determination.

20. Conservatory or interim Orders.
Notwithstanding anything contained in these Rules, a judge before whom a petition under rule 12 is presented may hear and determine an application for conservatory or interim orders.

21. Application to be by chamber summons.
An application under rule 20 shall be by chamber summons supported by an affidavit and may be heard ex parte.

22. Setting aside.
A person affected by an order under rule 20 may apply to set aside such order.

23. Constitutional issues in a matter before the High Court.
Where a constitutional issue arises in a matter before the High Court, the court seized of the matter may treat such issue as a preliminary point and shall hear and determine the same.

24. Reference to the High Court by subordinate court on its own motion.
Where in proceedings in a subordinate court a question arises as to the contravention of any of the provisions of sections 70 to 83 (inclusive) of the Constitution, and the presiding officer is of the opinion that the question raised is not frivolous or vexatious, he may refer the question to the High Court in Form E set out in the Schedule to these Rules.

25. Informal application to the presiding officer.
Where a party to proceedings 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, he shall apply informally to the presiding officer during the pendency of the proceedings that a reference be made to the High Court to determine the question of the alleged violation.

26. Court to frame question.
If the presiding officer is satisfied that there is merit in the allegation made under rule 24, and that it has not been made frivolously or vexatiously, he shall grant the application whereupon the court shall frame the question to be determined by the High Court in Form F set out in the Schedule to these Rules.

27. Subordinate court to refer matter to High Court.
As soon as is practicable, and in any case not later than twenty one days from the date of framing the question, the subordinate court shall refer the matter to the High Court.

28. Registrar to place matter before judge.
The Registrar shall within seven days of receipt of the reference under rule 25 place the matter before a judge to fix a hearing date or give further directions.

29. Stay of proceedings.
The High Court may on an application by a party order that all further proceedings before the subordinate court shall be stayed pending the hearing and determination of the reference.

30. Question for determination.
At the hearing of a reference only the questions framed in Form F shall be raised.

31. Authorities for the hearing.
Where a party intends to rely on any reported or unreported case, or to quote from any book, he shall lodge with the court, and serve copies of the reported or unreported case or the quotation, as the case may be, two days before the hearing.

32. Applications and references to be given priority.
The 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.

33. Stay pending appeal.
The High Court may upon an informal application immediately following the delivery of judgment or ruling grant a stay for fourteen days pending appeal.

34. Court of Appeal Rules to apply.
An appeal from the decision of the High Court to the Court of Appeal under section 84(7) of the Constitution shall be governed by the Court of Appeal Rules.

35. Revocation of L.N. 133 of 2001.
The Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 are revoked.

36. Transitional Provisions.
(1) Any matter currently pending in court under Legal Notice No. 133 of 2001 shall be continued under these rules.

(2) Any party affected by the operation of Legal Notice No. 133 of 2001 shall be at liberty to apply to the High Court.

Made on the 16th February, 2006.
 

Form A

IN THE MATTER OF AN APPLICATION UNDER SECTION 65
 

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

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

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:

 

IN THE MATTER OF SECTION 67

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

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

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........

Form C

IN THE MATTER OF SECTION 67

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

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

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(1) of the Constitution.

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

2. The parties contend as follows ........... (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........

Form D

IN THE MATTER OF SECTION 84(1)

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

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

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

TO:

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

IN THE MATTER OF SECTION 84(3)

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

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

C.D. (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. On the .........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........

 

Form F
 

IN THE MATTER OF SECTION 84(3)

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

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

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

C.D. (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. The parties contend as follows ........... (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 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........