Constitutional Petitions

A constitutional petition is a legal proceeding brought under Article 22 of the Constitution of Kenya, 2010 to enforce fundamental rights and freedoms or to challenge the constitutionality of a law, a decision, or a conduct. The Constitution transformed the enforcement of rights in Kenya by making the Bill of Rights binding on all state organs and all persons, by allowing any person (not just the victim) to bring a petition, by removing the requirement for locus standi in public-interest cases, and by giving the High Court broad remedial powers — including the power to award compensation, to declare laws unconstitutional, and to order the state to take positive action.

This area covers the full range of rights enforcement and constitutional litigation. Advocates file petitions for the enforcement of the full spectrum of rights guaranteed by the Bill of Rights — including the right to life, liberty, equality and freedom from discrimination, human dignity, freedom and security of the person, freedom of conscience, religion, belief and opinion, freedom of expression, freedom of the media, freedom of assembly, freedom of association, political rights, the right to a fair trial, the right to labour relations, the right to a clean and healthy environment, the right to economic and social rights (health, housing, food, water, social security, and education), and the rights of children, persons with disabilities, youth, minorities, and older members of society.

Advocates handle petitions challenging the constitutionality of statutes — where a law enacted by Parliament or a county assembly violates the Constitution. Advocates identify the constitutional provision that the statute violates, they prepare the petition setting out the grounds of unconstitutionality, and they argue the matter before the High Court. The work also covers the procedural rules that govern constitutional petitions — the Mutunga Rules (the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013) — and in the unique features of constitutional litigation, including the requirement for sworn affidavits in support, the relaxed rules of evidence, and the court's power to fashion appropriate remedies.

Advocates handle judicial review proceedings — challenging administrative decisions that are unlawful, unreasonable, procedurally unfair, or made in excess of jurisdiction. Advocates use the grounds developed under the common law and codified in the Fair Administrative Action Act, 2015 — including lawfulness, reasonableness, procedural fairness, and the requirement for reasons. Advocates handle applications for certiorari, mandamus, prohibition, and declarations, and advocates also handle the conduct of judicial review proceedings before the High Court.

Advocates act in public-interest litigation — cases brought not for the benefit of the individual petitioner but for the benefit of a group, a community, or the public at large. Advocates work with civil society organisations, community groups, and professional bodies to identify issues of public interest, to develop litigation strategies, and to navigate the procedural requirements of representative and public-interest proceedings.

Advocates handle the enforcement of court orders — a significant challenge in Kenya, where the issuance of a judgment does not always result in compliance. Advocates use contempt of court proceedings, the attachment of state assets (where legally available), and other enforcement mechanisms to ensure that constitutional judgments are given practical effect. Advocates also advise on the implementation of constitutional judgments — including the monitoring of compliance with structural remedies and the use of follow-up proceedings to compel implementation.