Kamau Kibunja v Attorney General & 12 others

High Court, at Nairobi

October 18, 2002

Chunga CJ

Miscellaneous Civil Application No 259 of 1998

Constitutional Law – constitutional rights – application for enforcement of constitutional rights – where there is alleged violation of such rights – factors that the application should specify – where the application was filed before the rules on enforcement of constitutional rights were promulgated – whether hearing of such application should be in accordance with the rules subsequent to their promulgation – section 84 of the Constitution.

Constitutional Law – constitutional rights – enforcement of constitutional rights – application for enforcement of the rights – where the applicant has an alternative mode of action under other laws – whether that applicant has the right to bring the application under the constitution.

Constitutional Law – constiutional rights - application for enforcement of the rights – number of judges to hear the application - factors that the Chief Justice considers in determining whether such an application should go to hearing and the number of judges to hear it.

The applicant was a member of the 13th respondent co-operative society. His membership was terminated and he was expelled from the society. In 1998, the applicant, by Originating Motion, complained of breach or likely breach of his constitutional rights. The motion was brought under section 84 of the Constitution.

The applicant, during the mention stage, specified the particular provisions of the Constitution which were allegedly violated and the manner in which they had been violated. The applicant accordingly asked the Chief Justice to set down the application for hearing before an appropriate bench.

The 2nd and 8th respondents urged that the applicant should pursue his complaints at an appropriate tribunal established under the Co-operative Societies Act (cap 490) which dealt with disputes involving co-operative Societies. The 7th to 13th respondents supported the submissions of the 2nd and 8th respondents that the applicant should have exhausted the machinery of redress given to him by the provisions of the Co-operative Societies Act (cap 490).

In reply, the applicant argued that when the application was filed, rules had not been made by the Chief Justice under section 84(6) of the Constitution. Now that the rules had been made, it was only prudent and desirable that the matter be mentioned before the Chief Justice as required by those rules.

Held:

1. Although the application was filed before the rules under section 84(6) of the Constitution of Kenya had been made, the hearing comes when the rules were in force and that hearing had to be in accordance with the rules.

2. An application under section 84 of the Constitution should be able to specify the sections of the Constitution which have been breached or are in danger of being breached and the manner of the alleged breaches, to persuade the Chief Justice that there is a clear case that should go forward for a full hearing before a bench appointed by him in accordance with the rules in Legal Notice No 133 of 2001.

3. Where a party alleges infringement of constitutional rights, he has the right to bring an application directly and speedily under the Constitution, irrespective of any other mode of action that may be available to him under any other law. Constitutional matters take precedent over any other matters.

4. The number of judges to hear an application under section 84 of the Constitution remains in the discretion of the Chief Justice. In exercising that discretion, the Chief Justice takes into account several factors, including but not limited to the complexity of the case and the issues raised, their nature, their weight, their sensitivity if any, and the public interests in them if any.

5. Several of these factors are obtainable in the present application.

Orders accordingly.

Cases

No cases referred to.

Statutes

1. Constitution of Kenya sections 71; 75; 80; 82; 84(1), (2), (6)

2. Co-operative Societies Act (cap 490)

Advocates

Dr Kamau Kuria for the Applicant

Mr Gichuru for the 2nd and 8th Respondents

 Mr Wachira for the 7th to 13th Respondents