Practice area
Constitutional & Human Rights
Public-interest litigation, rights enforcement and judicial review.
Overview
Constitutional and human rights law is the practice of enforcing the rights and freedoms guaranteed by the Constitution of Kenya, 2010, and challenging the unlawful exercise of power by the state and its agencies. The 2010 Constitution transformed the Kenyan legal landscape, introducing a Bill of Rights that is among the most progressive in Africa, establishing the supremacy of the Constitution, and creating new mechanisms for the enforcement of rights — including the constitutional petition under Article 22 and judicial review under Article 47 and the Fair Administrative Action Act, 2015.
This area handles public-interest litigation, rights enforcement, and judicial review. Advocates file constitutional petitions before the High Court under Article 22(3) for the enforcement of fundamental rights and freedoms, including the right to life, liberty, equality, freedom of expression, freedom of assembly, the right to a fair trial, the right to health, the right to education, and the rights of arrested persons. Advocates act for individuals, civil society organisations, and communities whose rights have been violated by state action or inaction.
Judicial review is a core component of this practice. Advocates challenge administrative decisions that are unlawful, unreasonable, procedurally unfair, or made in excess of jurisdiction — using the grounds developed under the common law and codified in the Fair Administrative Action Act, 2015. Advocates handle applications for certiorari (to quash unlawful decisions), mandamus (to compel the performance of a public duty), prohibition (to prevent an impending unlawful action), and declarations. The work also covers challenges to the decisions of government ministries, county governments, regulatory bodies, and public universities.
Public-interest litigation is a powerful tool for systemic change. The area also covers cases challenging the constitutionality of statutes, the allocation of public funds, the conduct of elections, and the management of public land. Advocates work with civil society organisations and community groups to identify issues of public interest, to develop litigation strategies, and to navigate the procedural requirements of representative and public-interest proceedings under the Constitution and the Civil Procedure Rules.
Advocates also advise on the constitutional dimensions of commercial and regulatory matters — including the constitutional challenges to tax legislation, the protection of property rights under Article 40, the right to information under Article 35, and the limitations on the exercise of statutory powers. Advocates help businesses and individuals understand when a regulatory decision can be challenged on constitutional grounds, and they develop strategies that combine constitutional and ordinary litigation where appropriate.
On the human rights side, they handle cases involving police brutality, extrajudicial killings, arbitrary detention, forced evictions, and violations of the rights of marginalised communities. Advocates also advise on the implementation of court orders — a significant challenge in Kenya — and the use of contempt proceedings to compel compliance with judicial decisions.
What’s typically covered
- Constitutional petitions to enforce rights in the Bill of Rights
- Judicial review of administrative decisions under the Fair Administrative Action Act
- Public-interest litigation on governance, public land and public funds
- Challenges to the constitutionality of statutes and regulations
- Conservatory orders to preserve rights while a petition is heard
- Advice to organisations on rights compliance and public participation
Typical scenarios
- Residents challenging a county decision made without public participation.
- An individual whose property was demolished without notice seeking compensation.
- A professional body challenging new regulations that exceed the parent Act.
Legal services
What Constitutional & Human Rights includes
Each service below has its own page with a detailed explanation of the work, the process and what to expect.
FAQs
Constitutional & Human Rights: common questions
Article 22 of the Constitution allows any person to go to court claiming that a right has been denied, violated or threatened — on their own behalf, for someone who cannot act for themselves, for a group, in the public interest, or as an association acting for its members.
A constitutional petition asks the court to enforce rights or interpret the Constitution. Judicial review asks the court to check whether a public body’s decision was lawful, reasonable and procedurally fair. Many cases combine both; an advocate will choose the right route for your facts.
Applications for an order of certiorari to quash a decision must generally be brought within six months of the decision. Constitutional petitions have no fixed limitation period, but unreasonable delay can count against you.
Yes. Article 23 allows the High Court to grant appropriate relief, including declarations, injunctions, conservatory orders and compensation.
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