Introduction
1. The petition dated 27 th February 2024 is supported by the petitioners’ affidavit in support.
2. The petition challenges the constitutionality of the Community Groups Registration Act. The petitioner contends that it has vague and overbroad provisions that confer upon the Director of Social Development unfettered discretion enabling arbitrary and subjective decision making to the detriment of community groups. The petitioner avers such direction has already been exercised against the 1 st Petitioner herein. In addition, the Act was enacted without adequate public participation and impermissibly authorises usurpation of an express constitutional mandate reserved to County Governments.
3. Consequently, the petitioners seek the following reliefs: -
a) A declaration that the Community Groups Registration Act (CGRA) is void in its entirety because it: -
i. Was enacted without sufficient public participation in violation of Articles 10 and 118 of the Constitution and is void.
ii. Violates the principles of devolved government and assigns to the national government functions that the Constitution had devolved to county governments.
b) A declaration that the definition of ‘community group’ in Section 2 of the CGRA is void because it violates the rule of law and is impermissibly vague.
c) A declaration that Section 3(1) of the CGRA is void because it violates the rule of law and is impermissibly vague.
d) A declaration that Section 3(2)(c) of the CGRA is void because it:
i. Violates Articles 32 and 33 of the Constitution, and
ii. Imposes or threatens to impose an unconstitutional limitation on the exercise of rights or fundamental freedoms in violation of Article 24.
e) A declaration that Sections 6(e) and (h) of the CGRA violates Articles 32, 33 and 36 of the Constitution because they:
i. Give social development community groups the authority to monitor, investigate and influence the activities of community groups
ii. Impose or threaten to impose a limitation on the exercise of rights or fundamental freedoms in violation of Article 24.
f) A declaration that Section 12(b) of the CGRA is void because it violates the rule of law and is impermissibly vague.
g) A declaration that Sections 12-14 of the CGRA are void because they violate Articles 36 and 47 of the Constitution.
h) A declaration that the 2 nd respondent violated Article 35 of the Constitution when it failed to respond to Katiba Institute’s access to information letter.
i) A declaration that the 1 st respondent has violated Sections 2 and 5A of the Statutory Instruments Act.
j) A declaration that the 1 st respondent has violated Section 26(1) of the Statutory Instruments Act.
k) An order of certiorari bringing into this Court and quashing the new revised application form adopted by the respondents.
l) A declaration that the 5 th respondent has violated the Mathare Social Justice Centre’s rights to freedom of conscience, religion, belief and opinion, freedom of expression, and freedom of association under Articles 32, 33 and 36 of the Constitution.
m) A declaration that all orders issued by various sub county social development officers rejecting applications by community groups for registration and renewal of registration which were rejected under Sections 9, 12 and 14 of the CGRA are null and void.
n) An order by means of structural interdict compelling the 6 th through 8 th respondents to develop a program for building the capacity and technical skills of county governments to effectively carry out the devolved functions under Part 2(14) of the Fourth Schedule of the Constitution and to submit the program to this Court for approval and oversight.
o) An order directing the Attorney general to publish in the gazette the orders regarding the constitutionality of the sections of the CGRA and to exercise its authority under the Revision of Laws Act to omit unconstitutional sections of the CGRA from the Laws of Kenya.
p) An order holding the respondents jointly and severally liable for violating the constitution and awarding exemplary, general, consequential and punitive damages as the court deems appropriate.
q) Any further orders the court deems just.
4. In opposition to the petition, the 1 st – 6 th , 7 th and 8 th respondents filed Replying Affidavits dated 7 th May 2024, 14 th October 2024 and 27 th March 2024 respectively.
The Petitioners’ Case
5. The petition starts with the background of the Community Groups Registration Act. It was first read before the National Assembly in June 2021 as a Bill. Thereafter, it was presented to the National Assembly’s Departmental Committee on Labour and Social Welfare (the National Assembly Committee) which submitted its report to the National Assembly in October 2021.
6. The report included a section on public participation which only contained submissions by State organs with stakeholders stated as Ministry of Labour and Social Protection, the Ministry of Interior and Coordination and the Non-Governmental Organization Coordination Board. Not a single non government actor was identified as a stakeholder in the legislation.
7. The Committee report stated that on 11 th June 2021, a notice was placed in the Daily Nation requesting the submission of memoranda via written comments which had to be emailed or hand delivered to the National Assembly. However, the said report did not indicate whether it received any written comments from the public.
8. The Council of Governors (COG) and the Ministry of Public Service Gender Senior Citizen Affairs and Special Programmes (Ministry of Labour and Social Services) submitted comments to the National Assembly Committee.
9. The Council of Governors (COG) raised concerns regarding the proper allocation of functions between national and county governments. The COG noted that Part 2 of the Second Schedule of the Constitution devolves social and community mobilisation to the counties. Part 2(14) of the Second Schedule states that functions of the county governments include: ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level. Further, the COG noted that the Transition Authority established under the Transition to Devolved Government Act had unbundled the functions delegated to counties under Part 14 as follows: developing systems, standards and operational procedures for community participation; facilitating formation/restructuring of community level structures for community engagement and participation in developing initiatives; facilitating formation, registration and certification of community groups; undertake community groups capacity building and sensitization and providing grant support to community groups to support upscaling/replication of best practices and facilitation to community capacity support centres.
10. Based on those devolved functions, the COG proposed amendments that would apply a standard registration process for all counties but ensure that the remaining functions included in the Bill be delegated to counties .
11. On its part, the Ministry of Labour and Social Protection proposed recommendations that would increase the national government’s authority. For instance approving, monitoring and evaluating community group budget proposals at the national level and that sub county committees to include members appointed from the national level. The ministry justified its extensive role by stating that the management and operation of group registration is relevant to national security and thus under the purview of the national government.
12. The office of the Attorney General also submitted memoranda to the committee arguing that the policy on registration of community groups falls within the jurisdiction of the Ministry and the CGRA was intended to address the gaps in the legislative framework. The Attorney General further noted that Article 191 of the Constitution allows for national legislation to supersede county legislation if certain conditions are satisfied. The conditions included that the national legislation shall apply uniformly throughout Kenya as per Article 191(2)(a) and that the national legislation is necessary for the maintenance of national security as set out in Article 191(3)(c) .
13. The petitioners aver that the National Assembly Committee rejected nearly all the proposals by the COG and accepted many of the proposals from the Ministry including those that increased the role and authority of the national government. The Committee acknowledged that the registration of the community groups was a function assigned by the Constitution to the County Government. It also claimed that taking away the authority granted to the counties by the Constitution was appropriate because regulating community groups had been done by the Ministry of Labour and Social protection prior to the implementation of the Constitution.
14. In addition to referring to the pre-2010 practice, the National Assembly Committee justified assigning significant responsibility to the national government even though the duties had been devolved to the counties because: the Public Benefits Organizations Act was passed in 2013 but has never been implemented; county governments do not have the capacity to carry out due diligence on registration of community groups; registration of community groups at the county levels is not based on any legislation and there is need for a common legal framework/harmonised legal regime across the country to regulate community groups and specifically for security interest. The National Assembly Committee further latched onto Articles 191(2)(a) and (3)(c) of the Constitution , arguing that the constitution allows national legislation to supersede county legislation if certain conditions are satisfied.
15. The National Assembly Committee did not mention its duty under Part 1(32) of the Fourth Schedule of the Constitution to provide capacity building and technical assistance to the counties to ensure that counties could carry out the functions that had been devolved to it. Nor did the committee explain why the relationship between the registration and regulation of community groups and national security was so strong as to override the constitutional requirement that the functions be devolved.
16. Five months after the Committee submitted its report, the Senate’s Standing Committee on Labour and Social Welfare tabled a report concerning the Bill. Like the National Assembly’s Committee report, the stakeholders the Senate engaged only included state agencies being the Ministry of Public Service, Gender, Senior Citizens Affairs and Special Programmes, the Council of Governors and the Non-Governmental Organizations Coordination Board. The Senate Committee Report also published an invitation for submission of memoranda in the Standard asking people to provide written reports within 14 days of the invitation. Other than the invitation for written comments, the Senate Committee does not appear to have made any effort to engage communities about the Community Group Registration Bill.
17. The Senate Committee report also focuses on the extent to which the bill delegated county functions to the National Government. The Senate Committee’s recommendations however were very different from the National Assembly Committee’s as it recognised that the Bill intended to provide a regulatory framework for the mobilisation, registration, co-ordination and regulation of community groups as a national government function even though the constitution allocated those functions to county governments. It further adopted many of the proposals submitted by the COG. Those recommendations maintained a national standard for community group registration but delegated oversight and support functions to the county governments.
18. Following the committee reports, the Bill was presented to the National Assembly and included the proposed amendments by the National Assembly and excluded the proposed amendments from the Senate Committee. The National Assembly passed the Bill on 25 th November 2021 and the President assented to it on 6 th July 2022.
19. The petitioners contend that there seems to have been an impasse between the Senate and National Assembly Committees since all the recommendations by the Senate Committee are not reflected in the CGRA. There is no indication of whether the two houses reached a consensus on the resultant law or whether the Senate abandoned its concerns regarding the Bill. Even if a consensus had been reached, there is no indication that the national government took steps to build the capacity of county governments or provide technical assistance before the devolved functions under Part 2(14) of the Fourth schedule was taken away by the provisions of the CGRA.
20. The petitioners reveal that the CGRA includes numerous provisions that are so vague and overly broad that they allow for significant government overreach and provide no guidance to community groups about how to remain in compliance with the Act. The overbroad language also gives the Director of Social Development extensive authority to approve or reject community group applications based on vague and subjective criteria. Further the language is coupled with an administrative mechanism that does not address or curtail the potential overreach by the administrators of the CGRA starting with the definition of a community group under Section 2 of the CGRA . The phrases ‘champion a political cause’ and ‘contrary to public policy’ are ambiguous and vague as they do not provide guidance to community groups on what objectives and activities are prohibited. They further allow administrators of the CGRA to interpret the phrases in ways that violate fundamental rights and freedoms. Additionally, they are susceptible to varied and inconsistent interpretations by administrative and judicial authorities.
21. The petitioners further argue that the authority given to the Director of Social Development is of equal concern as the Act does not specify what qualifications the Director should have or who has the responsibility for appointing the director. Nevertheless, the Act under Section 12(b) gives the Director of Social Development extensive authority to reject community group registration applications on vague and overly broad terms. Furthermore, the Act does not provide an exhaustive administrative process for challenging the Director’s decision or for appealing that decision to the Cabinet Secretary. Resultantly, a community group applicant cannot attain any effective redress if the broad definition is applied unfairly or in violation of the Constitution. Additionally, although the Director of Social Development has the authority to adopt regulations, it has not done so. As a result, there are no internally established guidelines that could be relied upon to curtail extensive authority given to the national government to control the activities of community groups.
22. The petitioners contend that the 1 st petitioner is an organization formed by young people to promote social justice in Mathare area. It addresses issues relating to fundamental human rights and good governance that affect Mathare and other informal settlements in Nairobi. The 1 st petitioner initially registered as a community group in January 2015 and filed a replacement certificate with the Mathare sub county Social Development Officer on 28 th January 2021. Its constitution lists it objectives which include providing a platform for legal redress and political accountability for all members of the community. On 15 th August 2023, the 1 st petitioner received a letter from Caroline Nziu, the Mathare sub county Social Development Officer instructing them to amend their objectives to align with the CGRA. Ms. Nziu attached a new revised application form that listed community group activities that had been approved by the Director which was to guide them on which group activities it did. The revised application form provided by Ms. Nziu included the following activities: community project, community empowerment, community advocacy, crop farming, cultural/traditional activities, environment conservation, financial services, fishery, health care, livestock rearing, poultry keeping, skills development, tourism, youth empowerment, merry go round, table banking and others.
23. The 1 st petitioner responded to the letter dated 27 th September 2023 to which they disagreed with Ms. Nziu’s assessment of their objectives stating that the objectives were in line with Article 10 of the Constitution and to the extent that the CGRA prohibited engaging in human rights activities, it was unconstitutional. Ms. Nziu replied on 9 th November 2023 to clarify circumstances under which the 1 st petitioner was not in line with the Community Groups Registration Act. She referred to the definition of a community group in Section 2 of the CGRA and stated that the objective c in their constitution- providing a platform for legal redress and political accountability for all members of the community- may be interpreted as championing a political cause and thus disqualify them as a community group under the Act. She advised them to change the group objectives in its constitution to be in line with the meaning assigned to a community group under the Act or in the alternative, she suggested they register as a legal entity under a different Act.
24. The petitioners argue that Ms. Nziu’s efforts to interfere with the activities of the 1 st petitioner highlights the flaws in the CGRA and the way those flaws can be abused to infringe on fundamental rights and freedoms. Although the 1 st petitioner’s objective of providing a platform for legal redress and political accountability for all members of the community would seem to qualify as community advocacy and community empowerment, it has been determined by the respondents as inappropriate because it champions a political cause or is contrary to public policy. Further adopting a list of approved activities as a basis for limiting what community groups can do is another example of how the respondents have taken advantage of the vague language in the Act to establish mechanisms for excluding activities that do not fit within their prescribed categories. The list of approved activities is sui generis, and has not been subject to public scrutiny or administrative approval, and has not been developed through a regulatory framework.
25. The petitioners reveal that on 25 th October 2023, the 2 nd petitioner emailed a request for information to the Principal Secretary for the Ministry of Labour and Social Protection, State Department for Social Protection and Senior Citizen Affairs requesting for the following information: all regulations implemented to carry out the provisions of the CGRA; all forms adopted for carrying out the provisions of the CGRA; information regarding public participation and citizen engagement conducted before adoption of regulations or forms; information regarding the Ministry’s interpretation of the terms ‘political cause’ and ‘contrary to public policy’ as used in the definition of ‘community group’ in Section 2 of the CGRA; a list of all community groups that have been informed that their objectives are not in line with community registration activities developed under the CGRA and a list of all community groups that have been requested to amend their objectives to be in line with the CGRA. They aver that they sent the request on 25 th October 2025 but are yet to receive a response.
The 1 st – 6 th Respondents’ Case.
26. Joseph Motari, MBS, the Principal Secretary, State Department for Social Protection and Senior Citizens Affairs swore the affidavit on behalf of the 1 st – 6 th respondents and states that the petition is an outright abuse of the court process because suing the 1 st , 2 nd and 5 th respondents by name is mischievous and misguided by law. Further the petitioners have ended up confusing the functions and responsibilities and the leadership in charge of various state departments as regulation of community groups under the impugned legislation falls under the jurisdiction of the State Department for Social Protection and Senior Citizens Affairs.
27. The deponent avers that the 7 th and 8 th respondents conducted meaningful public participation with respect to the impugned legislation. He avers that the development of the Act began by identifying and inviting various stakeholders, both state and non state actors who would provide technical support and guidance to the process. The key stakeholders who formed the task force comprised of officers drawn from the Office of the Attorney General, Kenya Law Reform Commission, various Ministries Departments and Agencies, Council of Governors, Academic institutions, Civil Society Organizations and Social Development Officers.
28. Notices were issued calling for reviews and comments from the general public and stakeholders which included publishing a notice in MyGov.com newspaper of 20 th February 2018 and further uploaded in the State Department’s website, www.socialprotection.go.ke for access by the general public. The ministry collected views upon which a meeting was held on 14 th March 2018 in Nairobi to consider and incorporate the comments received from the public participation exercise. Additionally, stakeholder forums were held at the national and county level to hear views of the community members and community-based organizations.
29. The deponent states that the Bill was later presented to members of the Parliamentary Departmental Committee on Labour & Social Welfare as well as key stakeholders on 28 th March and 29 th March 2019 which invited submissions from the public via advertisements in the daily newspaper of 11 th June 2021. Additionally, key stakeholders were invited on 31 st August 2021 by the said Departmental Committee to give submissions on the Bill. He further avers that the Ministry made its submissions on 31 st August 2021and other key stakeholders such as the Council of Governors, Ministry of Interior and Coordination of National Government and the NGO Board opted to submit memoranda on the Bill to the said committee following a consultative retreat workshop held in Mombasa from 29 th August 2021 to 4 th September 2021. The deponent affirms that the Ministry is aware of the advertisement by the Senate Committee in the Daily Nation of 31 st December 2021 seeking submissions from the public. The said Senate Committee undertook a stakeholder forum on 2 nd February 2022 upon which the Ministry also submitted a memorandum.
30. The deponent affirms that the Council of Governors made submissions on the national government usurping their role of registration of community groups during the law making process and in particular during the Parliamentary Departmental Committee on Labour and Social welfare meeting. He further avers that Schedule 4 part 2(14) of the Constitution does not explicitly speak to community groups registration as the emphasis is on community participation in governance at the local level. He states that group mobilization and registration is a function the 1 st respondent has been undertaking since independence through the harambee movements as provided for in the Sessional Paper No. 10, 1965 on African Socialism and its Application to Planning in Kenya. Due to the weak regulatory system, there arose the need for a standardized and uniform process of community groups in the country. Further, the management and operation of group registration has a direct bearing on national security.
31. The deponent avers that to enhance regulatory compliance; the 1 st respondent maintained a Community Development Management Information System (CDMIS) that will eventually be linked to the Integrated Population Registration System (IPRS) and other relevant management information systems for verification of the group members and their activities prior to registration . Further, the committee provides a platform for the two levels of government to collaborate and Section 5(1)(b) of the Act provides for the inclusion of two representatives from the county government one of whom is an officer responsible for social development at the county level.
32. Additionally, the deponent avers that by dint of Article 186(3) of the Constitution, a function or power that is not assigned by the constitution or national legislation to a county remains a function of the national government.
33. On the issue of the definition of community groups in Section 2 of the Act being vague, the deponent argues that public policy as used in the text of definition should be interpreted in line with the established canons on interpretation of statutes that a definition clause should not be read in isolation but given meaning in the context in which it is used in the text of legislation taking into account its bearing in all the relevant provisions of law. Further it is trite that the phrase ‘contrary to public policy’ as used in a text of legislation is informed by the impracticality to exhaustively list prohibited activities and in normal parlance means inconsistent with the constitution or any other law of Kenya whether written or unwritten or inimical to the national interest of Kenya or contrary to justice and morality. The deponent further states that the definition of the word community group should be guided by the text under Sections 10, 11, 12, 14 and 15 of the Act .
34. The deponent argues that the essence of Section 3(1) of the Act is to establish an office of the Director of Social Development as an office in the public service and therefore given meaning within the constitutional scheme at Article 234(2)(g) of the Constitution which empowers the Public Service Commission to review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service. Therefore, the operationalization of the office is done through the appropriate Human Resource Management Policies such as the Human Resource management Policy and Procedures Guidelines, Career Guidelines and the Organization Structure, Grading and Staff Establishment. He further argues that at the point of developing the law, the office of the Director was already in existence as established through the public service and whose functions are decentralized to the county and sub county levels.
35. The deponent asserts that the essence of Section 3(2)(c) of the Act is to designate the function to the office of the Director established under Section 3(1) of the Act . However operationalization and due exercise of that function is to be gleaned from Sections 4, 5, 33, 34, 35, 36 and 40 of the Act . He further asserts that the Ministry is on course in developing appropriate regulations to facilitate the better carrying out of the provisions of the Act. With regard to the allegation of the monitoring and investigatory power of the Director having a consequential effect of limiting Articles 32 and 33 of the Constitution , the exercise of the said function is reasonable and justifiable in the circumstances and is informed by law.
36. Regarding the vagueness of Section 12(b) of the Act , the deponent states that the ultimate objective of the impugned section is to instil a value-based approach to running community groups and to ensure compliance with the rule of law under the Act, the Constitution and the Penal Code. The Act under Section 13(2) provides for an administrative procedure within which the function is to be exercised first, by requiring the Director to notify the applicants of the refusal to register noting to state reasons for the rejection and secondly, an applicant aggrieved by this decision has the right to appeal the decision of the Director to the Cabinet Secretary in writing. The provisions of the Act notwithstanding, a party aggrieved by an administrative action or decision has the opportunity to move the court for judicial review in accordance with the provisions of the Fair Administrative Action Act. The deponent further states that Sections 12-14 of the Act have taken into account the requirements of Articles 36 and 47 of the Constitution on freedom of association and right to fair administrative action.
37. The deponent denies the violation of Article 35 of the Constitution and states that for the better part of Quarter 2 of the Financial Year 2023/2024 the State Department was in the process of migrating its email services from the Microsoft Outlook platform to the Zimbra platform in order to enhance its efficiency. Thus in the event the 2 nd petitioner sent the letter via email, the same may not have been reflected on the end of the state department. As regards receipt of a hard copy letter, the State Department has no records of such receipt. He further argues that the said allegation is premature and ill advised in light of a specific avenue under Section 14(1) of the Access to Information Act on redress mechanisms where refusal to furnish an applicant with requested information is alleged.
38. On the allegation that the 1 st respondent has violated Section 26(1) of the Statutory Instruments Act, the deponent states that upon enactment of the Act, the Ministry embarked on the review of the already existing group application forms to align with the Act. The forms have since been incorporated into the Community Development Management Information System (CDMIS) which is the main platform under which the re
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1. The petition dated 27 th February 2024 is supported by the petitioners’ affidavit in support.
2. The petition challenges the constitutionality of the Community Groups Registration Act. The petitioner contends that it has vague and overbroad provisions that confer upon the Director of Social Development unfettered discretion enabling arbitrary and subjective decision making to the detriment of community groups. The petitioner avers such direction has already been exercised against the 1 st Petitioner herein. In addition, the Act was enacted without adequate public participation and impermissibly authorises usurpation of an express constitutional mandate reserved to County Governments.
3. Consequently, the petitioners seek the following reliefs: -
a) A declaration that the Community Groups Registration Act (CGRA) is void in its entirety because it: -
i. Was enacted without sufficient public participation in violation of Articles 10 and 118 of the Constitution and is void.
ii. Violates the principles of devolved government and assigns to the national government functions that the Constitution had devolved to county governments.
b) A declaration that the definition of ‘community group’ in Section 2 of the CGRA is void because it violates the rule of law and is impermissibly vague.
c) A declaration that Section 3(1) of the CGRA is void because it violates the rule of law and is impermissibly vague.
d) A declaration that Section 3(2)(c) of the CGRA is void because it:
i. Violates Articles 32 and 33 of the Constitution, and
ii. Imposes or threatens to impose an unconstitutional limitation on the exercise of rights or fundamental freedoms in violation of Article 24.
e) A declaration that Sections 6(e) and (h) of the CGRA violates Articles 32, 33 and 36 of the Constitution because they:
i. Give social development community groups the authority to monitor, investigate and influence the activities of community groups
ii. Impose or threaten to impose a limitation on the exercise of rights or fundamental freedoms in violation of Article 24.
f) A declaration that Section 12(b) of the CGRA is void because it violates the rule of law and is impermissibly vague.
g) A declaration that Sections 12-14 of the CGRA are void because they violate Articles 36 and 47 of the Constitution.
h) A declaration that the 2 nd respondent violated Article 35 of the Constitution when it failed to respond to Katiba Institute’s access to information letter.
i) A declaration that the 1 st respondent has violated Sections 2 and 5A of the Statutory Instruments Act.
j) A declaration that the 1 st respondent has violated Section 26(1) of the Statutory Instruments Act.
k) An order of certiorari bringing into this Court and quashing the new revised application form adopted by the respondents.
l) A declaration that the 5 th respondent has violated the Mathare Social Justice Centre’s rights to freedom of conscience, religion, belief and opinion, freedom of expression, and freedom of association under Articles 32, 33 and 36 of the Constitution.
m) A declaration that all orders issued by various sub county social development officers rejecting applications by community groups for registration and renewal of registration which were rejected under Sections 9, 12 and 14 of the CGRA are null and void.
n) An order by means of structural interdict compelling the 6 th through 8 th respondents to develop a program for building the capacity and technical skills of county governments to effectively carry out the devolved functions under Part 2(14) of the Fourth Schedule of the Constitution and to submit the program to this Court for approval and oversight.
o) An order directing the Attorney general to publish in the gazette the orders regarding the constitutionality of the sections of the CGRA and to exercise its authority under the Revision of Laws Act to omit unconstitutional sections of the CGRA from the Laws of Kenya.
p) An order holding the respondents jointly and severally liable for violating the constitution and awarding exemplary, general, consequential and punitive damages as the court deems appropriate.
q) Any further orders the court deems just.
4. In opposition to the petition, the 1 st – 6 th , 7 th and 8 th respondents filed Replying Affidavits dated 7 th May 2024, 14 th October 2024 and 27 th March 2024 respectively.
The Petitioners’ Case
5. The petition starts with the background of the Community Groups Registration Act. It was first read before the National Assembly in June 2021 as a Bill. Thereafter, it was presented to the National Assembly’s Departmental Committee on Labour and Social Welfare (the National Assembly Committee) which submitted its report to the National Assembly in October 2021.
6. The report included a section on public participation which only contained submissions by State organs with stakeholders stated as Ministry of Labour and Social Protection, the Ministry of Interior and Coordination and the Non-Governmental Organization Coordination Board. Not a single non government actor was identified as a stakeholder in the legislation.
7. The Committee report stated that on 11 th June 2021, a notice was placed in the Daily Nation requesting the submission of memoranda via written comments which had to be emailed or hand delivered to the National Assembly. However, the said report did not indicate whether it received any written comments from the public.
8. The Council of Governors (COG) and the Ministry of Public Service Gender Senior Citizen Affairs and Special Programmes (Ministry of Labour and Social Services) submitted comments to the National Assembly Committee.
9. The Council of Governors (COG) raised concerns regarding the proper allocation of functions between national and county governments. The COG noted that Part 2 of the Second Schedule of the Constitution devolves social and community mobilisation to the counties. Part 2(14) of the Second Schedule states that functions of the county governments include: ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level. Further, the COG noted that the Transition Authority established under the Transition to Devolved Government Act had unbundled the functions delegated to counties under Part 14 as follows: developing systems, standards and operational procedures for community participation; facilitating formation/restructuring of community level structures for community engagement and participation in developing initiatives; facilitating formation, registration and certification of community groups; undertake community groups capacity building and sensitization and providing grant support to community groups to support upscaling/replication of best practices and facilitation to community capacity support centres.
10. Based on those devolved functions, the COG proposed amendments that would apply a standard registration process for all counties but ensure that the remaining functions included in the Bill be delegated to counties .
11. On its part, the Ministry of Labour and Social Protection proposed recommendations that would increase the national government’s authority. For instance approving, monitoring and evaluating community group budget proposals at the national level and that sub county committees to include members appointed from the national level. The ministry justified its extensive role by stating that the management and operation of group registration is relevant to national security and thus under the purview of the national government.
12. The office of the Attorney General also submitted memoranda to the committee arguing that the policy on registration of community groups falls within the jurisdiction of the Ministry and the CGRA was intended to address the gaps in the legislative framework. The Attorney General further noted that Article 191 of the Constitution allows for national legislation to supersede county legislation if certain conditions are satisfied. The conditions included that the national legislation shall apply uniformly throughout Kenya as per Article 191(2)(a) and that the national legislation is necessary for the maintenance of national security as set out in Article 191(3)(c) .
13. The petitioners aver that the National Assembly Committee rejected nearly all the proposals by the COG and accepted many of the proposals from the Ministry including those that increased the role and authority of the national government. The Committee acknowledged that the registration of the community groups was a function assigned by the Constitution to the County Government. It also claimed that taking away the authority granted to the counties by the Constitution was appropriate because regulating community groups had been done by the Ministry of Labour and Social protection prior to the implementation of the Constitution.
14. In addition to referring to the pre-2010 practice, the National Assembly Committee justified assigning significant responsibility to the national government even though the duties had been devolved to the counties because: the Public Benefits Organizations Act was passed in 2013 but has never been implemented; county governments do not have the capacity to carry out due diligence on registration of community groups; registration of community groups at the county levels is not based on any legislation and there is need for a common legal framework/harmonised legal regime across the country to regulate community groups and specifically for security interest. The National Assembly Committee further latched onto Articles 191(2)(a) and (3)(c) of the Constitution , arguing that the constitution allows national legislation to supersede county legislation if certain conditions are satisfied.
15. The National Assembly Committee did not mention its duty under Part 1(32) of the Fourth Schedule of the Constitution to provide capacity building and technical assistance to the counties to ensure that counties could carry out the functions that had been devolved to it. Nor did the committee explain why the relationship between the registration and regulation of community groups and national security was so strong as to override the constitutional requirement that the functions be devolved.
16. Five months after the Committee submitted its report, the Senate’s Standing Committee on Labour and Social Welfare tabled a report concerning the Bill. Like the National Assembly’s Committee report, the stakeholders the Senate engaged only included state agencies being the Ministry of Public Service, Gender, Senior Citizens Affairs and Special Programmes, the Council of Governors and the Non-Governmental Organizations Coordination Board. The Senate Committee Report also published an invitation for submission of memoranda in the Standard asking people to provide written reports within 14 days of the invitation. Other than the invitation for written comments, the Senate Committee does not appear to have made any effort to engage communities about the Community Group Registration Bill.
17. The Senate Committee report also focuses on the extent to which the bill delegated county functions to the National Government. The Senate Committee’s recommendations however were very different from the National Assembly Committee’s as it recognised that the Bill intended to provide a regulatory framework for the mobilisation, registration, co-ordination and regulation of community groups as a national government function even though the constitution allocated those functions to county governments. It further adopted many of the proposals submitted by the COG. Those recommendations maintained a national standard for community group registration but delegated oversight and support functions to the county governments.
18. Following the committee reports, the Bill was presented to the National Assembly and included the proposed amendments by the National Assembly and excluded the proposed amendments from the Senate Committee. The National Assembly passed the Bill on 25 th November 2021 and the President assented to it on 6 th July 2022.
19. The petitioners contend that there seems to have been an impasse between the Senate and National Assembly Committees since all the recommendations by the Senate Committee are not reflected in the CGRA. There is no indication of whether the two houses reached a consensus on the resultant law or whether the Senate abandoned its concerns regarding the Bill. Even if a consensus had been reached, there is no indication that the national government took steps to build the capacity of county governments or provide technical assistance before the devolved functions under Part 2(14) of the Fourth schedule was taken away by the provisions of the CGRA.
20. The petitioners reveal that the CGRA includes numerous provisions that are so vague and overly broad that they allow for significant government overreach and provide no guidance to community groups about how to remain in compliance with the Act. The overbroad language also gives the Director of Social Development extensive authority to approve or reject community group applications based on vague and subjective criteria. Further the language is coupled with an administrative mechanism that does not address or curtail the potential overreach by the administrators of the CGRA starting with the definition of a community group under Section 2 of the CGRA . The phrases ‘champion a political cause’ and ‘contrary to public policy’ are ambiguous and vague as they do not provide guidance to community groups on what objectives and activities are prohibited. They further allow administrators of the CGRA to interpret the phrases in ways that violate fundamental rights and freedoms. Additionally, they are susceptible to varied and inconsistent interpretations by administrative and judicial authorities.
21. The petitioners further argue that the authority given to the Director of Social Development is of equal concern as the Act does not specify what qualifications the Director should have or who has the responsibility for appointing the director. Nevertheless, the Act under Section 12(b) gives the Director of Social Development extensive authority to reject community group registration applications on vague and overly broad terms. Furthermore, the Act does not provide an exhaustive administrative process for challenging the Director’s decision or for appealing that decision to the Cabinet Secretary. Resultantly, a community group applicant cannot attain any effective redress if the broad definition is applied unfairly or in violation of the Constitution. Additionally, although the Director of Social Development has the authority to adopt regulations, it has not done so. As a result, there are no internally established guidelines that could be relied upon to curtail extensive authority given to the national government to control the activities of community groups.
22. The petitioners contend that the 1 st petitioner is an organization formed by young people to promote social justice in Mathare area. It addresses issues relating to fundamental human rights and good governance that affect Mathare and other informal settlements in Nairobi. The 1 st petitioner initially registered as a community group in January 2015 and filed a replacement certificate with the Mathare sub county Social Development Officer on 28 th January 2021. Its constitution lists it objectives which include providing a platform for legal redress and political accountability for all members of the community. On 15 th August 2023, the 1 st petitioner received a letter from Caroline Nziu, the Mathare sub county Social Development Officer instructing them to amend their objectives to align with the CGRA. Ms. Nziu attached a new revised application form that listed community group activities that had been approved by the Director which was to guide them on which group activities it did. The revised application form provided by Ms. Nziu included the following activities: community project, community empowerment, community advocacy, crop farming, cultural/traditional activities, environment conservation, financial services, fishery, health care, livestock rearing, poultry keeping, skills development, tourism, youth empowerment, merry go round, table banking and others.
23. The 1 st petitioner responded to the letter dated 27 th September 2023 to which they disagreed with Ms. Nziu’s assessment of their objectives stating that the objectives were in line with Article 10 of the Constitution and to the extent that the CGRA prohibited engaging in human rights activities, it was unconstitutional. Ms. Nziu replied on 9 th November 2023 to clarify circumstances under which the 1 st petitioner was not in line with the Community Groups Registration Act. She referred to the definition of a community group in Section 2 of the CGRA and stated that the objective c in their constitution- providing a platform for legal redress and political accountability for all members of the community- may be interpreted as championing a political cause and thus disqualify them as a community group under the Act. She advised them to change the group objectives in its constitution to be in line with the meaning assigned to a community group under the Act or in the alternative, she suggested they register as a legal entity under a different Act.
24. The petitioners argue that Ms. Nziu’s efforts to interfere with the activities of the 1 st petitioner highlights the flaws in the CGRA and the way those flaws can be abused to infringe on fundamental rights and freedoms. Although the 1 st petitioner’s objective of providing a platform for legal redress and political accountability for all members of the community would seem to qualify as community advocacy and community empowerment, it has been determined by the respondents as inappropriate because it champions a political cause or is contrary to public policy. Further adopting a list of approved activities as a basis for limiting what community groups can do is another example of how the respondents have taken advantage of the vague language in the Act to establish mechanisms for excluding activities that do not fit within their prescribed categories. The list of approved activities is sui generis, and has not been subject to public scrutiny or administrative approval, and has not been developed through a regulatory framework.
25. The petitioners reveal that on 25 th October 2023, the 2 nd petitioner emailed a request for information to the Principal Secretary for the Ministry of Labour and Social Protection, State Department for Social Protection and Senior Citizen Affairs requesting for the following information: all regulations implemented to carry out the provisions of the CGRA; all forms adopted for carrying out the provisions of the CGRA; information regarding public participation and citizen engagement conducted before adoption of regulations or forms; information regarding the Ministry’s interpretation of the terms ‘political cause’ and ‘contrary to public policy’ as used in the definition of ‘community group’ in Section 2 of the CGRA; a list of all community groups that have been informed that their objectives are not in line with community registration activities developed under the CGRA and a list of all community groups that have been requested to amend their objectives to be in line with the CGRA. They aver that they sent the request on 25 th October 2025 but are yet to receive a response.
The 1 st – 6 th Respondents’ Case.
26. Joseph Motari, MBS, the Principal Secretary, State Department for Social Protection and Senior Citizens Affairs swore the affidavit on behalf of the 1 st – 6 th respondents and states that the petition is an outright abuse of the court process because suing the 1 st , 2 nd and 5 th respondents by name is mischievous and misguided by law. Further the petitioners have ended up confusing the functions and responsibilities and the leadership in charge of various state departments as regulation of community groups under the impugned legislation falls under the jurisdiction of the State Department for Social Protection and Senior Citizens Affairs.
27. The deponent avers that the 7 th and 8 th respondents conducted meaningful public participation with respect to the impugned legislation. He avers that the development of the Act began by identifying and inviting various stakeholders, both state and non state actors who would provide technical support and guidance to the process. The key stakeholders who formed the task force comprised of officers drawn from the Office of the Attorney General, Kenya Law Reform Commission, various Ministries Departments and Agencies, Council of Governors, Academic institutions, Civil Society Organizations and Social Development Officers.
28. Notices were issued calling for reviews and comments from the general public and stakeholders which included publishing a notice in MyGov.com newspaper of 20 th February 2018 and further uploaded in the State Department’s website, www.socialprotection.go.ke for access by the general public. The ministry collected views upon which a meeting was held on 14 th March 2018 in Nairobi to consider and incorporate the comments received from the public participation exercise. Additionally, stakeholder forums were held at the national and county level to hear views of the community members and community-based organizations.
29. The deponent states that the Bill was later presented to members of the Parliamentary Departmental Committee on Labour & Social Welfare as well as key stakeholders on 28 th March and 29 th March 2019 which invited submissions from the public via advertisements in the daily newspaper of 11 th June 2021. Additionally, key stakeholders were invited on 31 st August 2021 by the said Departmental Committee to give submissions on the Bill. He further avers that the Ministry made its submissions on 31 st August 2021and other key stakeholders such as the Council of Governors, Ministry of Interior and Coordination of National Government and the NGO Board opted to submit memoranda on the Bill to the said committee following a consultative retreat workshop held in Mombasa from 29 th August 2021 to 4 th September 2021. The deponent affirms that the Ministry is aware of the advertisement by the Senate Committee in the Daily Nation of 31 st December 2021 seeking submissions from the public. The said Senate Committee undertook a stakeholder forum on 2 nd February 2022 upon which the Ministry also submitted a memorandum.
30. The deponent affirms that the Council of Governors made submissions on the national government usurping their role of registration of community groups during the law making process and in particular during the Parliamentary Departmental Committee on Labour and Social welfare meeting. He further avers that Schedule 4 part 2(14) of the Constitution does not explicitly speak to community groups registration as the emphasis is on community participation in governance at the local level. He states that group mobilization and registration is a function the 1 st respondent has been undertaking since independence through the harambee movements as provided for in the Sessional Paper No. 10, 1965 on African Socialism and its Application to Planning in Kenya. Due to the weak regulatory system, there arose the need for a standardized and uniform process of community groups in the country. Further, the management and operation of group registration has a direct bearing on national security.
31. The deponent avers that to enhance regulatory compliance; the 1 st respondent maintained a Community Development Management Information System (CDMIS) that will eventually be linked to the Integrated Population Registration System (IPRS) and other relevant management information systems for verification of the group members and their activities prior to registration . Further, the committee provides a platform for the two levels of government to collaborate and Section 5(1)(b) of the Act provides for the inclusion of two representatives from the county government one of whom is an officer responsible for social development at the county level.
32. Additionally, the deponent avers that by dint of Article 186(3) of the Constitution, a function or power that is not assigned by the constitution or national legislation to a county remains a function of the national government.
33. On the issue of the definition of community groups in Section 2 of the Act being vague, the deponent argues that public policy as used in the text of definition should be interpreted in line with the established canons on interpretation of statutes that a definition clause should not be read in isolation but given meaning in the context in which it is used in the text of legislation taking into account its bearing in all the relevant provisions of law. Further it is trite that the phrase ‘contrary to public policy’ as used in a text of legislation is informed by the impracticality to exhaustively list prohibited activities and in normal parlance means inconsistent with the constitution or any other law of Kenya whether written or unwritten or inimical to the national interest of Kenya or contrary to justice and morality. The deponent further states that the definition of the word community group should be guided by the text under Sections 10, 11, 12, 14 and 15 of the Act .
34. The deponent argues that the essence of Section 3(1) of the Act is to establish an office of the Director of Social Development as an office in the public service and therefore given meaning within the constitutional scheme at Article 234(2)(g) of the Constitution which empowers the Public Service Commission to review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service. Therefore, the operationalization of the office is done through the appropriate Human Resource Management Policies such as the Human Resource management Policy and Procedures Guidelines, Career Guidelines and the Organization Structure, Grading and Staff Establishment. He further argues that at the point of developing the law, the office of the Director was already in existence as established through the public service and whose functions are decentralized to the county and sub county levels.
35. The deponent asserts that the essence of Section 3(2)(c) of the Act is to designate the function to the office of the Director established under Section 3(1) of the Act . However operationalization and due exercise of that function is to be gleaned from Sections 4, 5, 33, 34, 35, 36 and 40 of the Act . He further asserts that the Ministry is on course in developing appropriate regulations to facilitate the better carrying out of the provisions of the Act. With regard to the allegation of the monitoring and investigatory power of the Director having a consequential effect of limiting Articles 32 and 33 of the Constitution , the exercise of the said function is reasonable and justifiable in the circumstances and is informed by law.
36. Regarding the vagueness of Section 12(b) of the Act , the deponent states that the ultimate objective of the impugned section is to instil a value-based approach to running community groups and to ensure compliance with the rule of law under the Act, the Constitution and the Penal Code. The Act under Section 13(2) provides for an administrative procedure within which the function is to be exercised first, by requiring the Director to notify the applicants of the refusal to register noting to state reasons for the rejection and secondly, an applicant aggrieved by this decision has the right to appeal the decision of the Director to the Cabinet Secretary in writing. The provisions of the Act notwithstanding, a party aggrieved by an administrative action or decision has the opportunity to move the court for judicial review in accordance with the provisions of the Fair Administrative Action Act. The deponent further states that Sections 12-14 of the Act have taken into account the requirements of Articles 36 and 47 of the Constitution on freedom of association and right to fair administrative action.
37. The deponent denies the violation of Article 35 of the Constitution and states that for the better part of Quarter 2 of the Financial Year 2023/2024 the State Department was in the process of migrating its email services from the Microsoft Outlook platform to the Zimbra platform in order to enhance its efficiency. Thus in the event the 2 nd petitioner sent the letter via email, the same may not have been reflected on the end of the state department. As regards receipt of a hard copy letter, the State Department has no records of such receipt. He further argues that the said allegation is premature and ill advised in light of a specific avenue under Section 14(1) of the Access to Information Act on redress mechanisms where refusal to furnish an applicant with requested information is alleged.
38. On the allegation that the 1 st respondent has violated Section 26(1) of the Statutory Instruments Act, the deponent states that upon enactment of the Act, the Ministry embarked on the review of the already existing group application forms to align with the Act. The forms have since been incorporated into the Community Development Management Information System (CDMIS) which is the main platform under which the re
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